Volume 214 — Pennsylvania State Reports

Appeal, No. 117, Jan. T., 1905, by-plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1902, No. 2617, refusing to take off nonsuit in case of William J. Casey, a minor, by his next friend, Harris N. Street, v. United States Express Company. Trespass to recover damages for personal injuries. Before McMichael, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 91, Jan. T., 1905, by-defendant, from order of C. P. No. 5, Phila. Co., March T., 1903, No. 2097, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Hess v. David Gerstlauer. Assumpsit on a promissory note. The supplemental affidavit of defense which incorporated the averments of the affidavit of defense was as follows : “ That your deponent denies that he is indebted to the plaintiff in any amount whatever.

<p>Appeal, No. 214, Jan. T., 1905, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1904, No. 1641, refusing to take off nonsuit in case of John A. Weatherbee and Earl David Weatherbee, by his next friend and father, John A. Weatherbee v. Philadelphia, Baltimore & Washington Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Appeal, No. 206, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 199, on verdict for plaintiff in case of Francis Creachen, by his next friend and mother, Elizabeth Creachen, v. The Bromley Brothers Carpet Company.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Defendant’s points refused by the court were as follows :</p> <p>1. If the jury believe that the defendant had placed a conspicuous sign that machinery must not be cleaned while in motion, close to the machine, so that the plaintiff could see'it during all the time that the plaintiff worked on this machine, your verdict must be for the defendant.</p> <p>5. If the jury believe that the choking of the machine in the rear would have stopped the machine, throwing off its belt from the tight pulley, and the plaintiff was instructed when that occurred to call another employee to remedy the choke, your verdict should be for the defendant.</p> <p>6. ' If the jury believe that the plaintiff’s testimony on the first trial was correct and that his subsequent testimony contradictory thereof was given after he had learned that the testimony of the first trial would not entitle him to recover, then your verdict must be for the defendant.</p> <p>7. If the jury believe that the injured plaintiff has sworn consciously falsely as to any material fact, the verdict must be for the defendant.</p> <p>9. Under all the evidence, the verdict must be for the defendant.</p> <p>Verdict for plaintiff for $9,700 on which judgment was entered for $8,500, all above that amount having been remitted.</p> <p>Errors assigned were:</p> <p>(1) The learned trial judge erred in sustaining the plaintiff’s objection to the defendant’s question to the plaintiff on cross-examination: “Q. You do not know that your testimony in these two trials was contradictory as to very many material facts ? ”</p> <p>(2) The learned trial judge erred in sustaining the plaintiff’s objection to the defendant’s offer in evidence of- the first statement filed in this case and signéd and sworn to by the plaintiff.</p> <p>(3-7) Refusal of defendant’s points as above, quoting them..</p>

Appeal, No. 265, Jan. T., 1905, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1903, No. 4364, refusing to take off nonsuit in case of John Gr. Zeilmann v. John McCullough. Trespass to recover damages for personal injuries. Before McMichael, J. At the trial it appeared that on April 22, 1903, plaintiff was engaged in hauling iron columns on a log truck. He was an experienced driver and had driven the log truck three or four times before.

<p>Appeal No. 194, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., 1908, No. 1509, on verdict for plaintiff in case of Jennie E. M. Righter, Administratrix of Washington Righter, deceased, v. John H. Livingston and Pauline Livingston.</p> <p>Scire facias sur mortgage.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,890. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Practice, C. P. — Pleading—Statement of claim — Suggestion of insufficiency —Affidavit of defense.</p> <p>Judgment for want of an affidavit of defense, or of a sufficient affidavit of defense is a judgment for default, and if there is no default at the time it is entered it is irregular and void, even though it might have been regularly entered earlier while the default existed.</p> <p>Where a statement of claim is insufficient, it is proper practice to file of record a suggestion to that effect. Such a suggestion of insufficiency is in the nature of a demurrer, and if it is overruled, the court may in its discretion either enter judgment for want of an affidavit of defense, or permit the defendant to file an affidavit of defense.</p> <p>An affidavit of defense may be filed as a matter of right at any time before judgment. No leave of the court is necessary. The Procedure Act of May 25, 1887, P. L. 271, made no change in the practice in this respect. The penalty provided by the act of 1887, for neglect of the defendant to file an affidavit of defense is the risk of having a judgment entered against him, not the termination of his right to file his affidavit.</p> <p>If the affidavit is filed after the expiration of the statutory period of fifteen days, the affidavit stands in the way of judgment for the plaintiff if the latter did not move for judgment, before the affidavit was filed.</p> <p>It is the practice of the courts to consider the question of fractions of a day so far as to inquire into the actual priority of an affidavit of defense filed and a judgment for default entered on the same day.</p> <p>A rule of court providing that “The court or any judge thereof may enlarge the time to declare or plead on cause shown but not to file an affidavit of defense,” has no applicability to a case where an affidavit of defense has been filed after the expiration of the statutory period. The rule gives the court no authority to enter judgment for plaintiff after the affidavit of defense is filed.</p>

<p>Appeal, No. 282, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 2, Pbila. Co., March T., 1903, No. 3407, on verdict for defendant in case of Harry L. Burkhart v. The North American Company.</p> <p>Trespass for libel. Before Barratt, J.</p> <p>The alleged libelous article was as follows:</p> <p>“Mrs. Carter Victor in War on Orchestra.</p> <p>“ Stubborn Musicians Nearly Prevented Performance of 'Du Barry ’ at the Broad.</p> <p>“Discords Enraged Her.</p> <p>“Row Behind Scenes Ends in Ejectment of Oboe, Bassoon and Four Brasses.</p> <p>“Those persons who were in the audience at the Broad Street Theater last Tuesday night will not know, until they read this, how near they came to being turned, away without seeing the performance of 'Du Barry.’</p> <p>“For a full half-hour before the curtain rose there was a. lively time behind the scenes, with David Belasco and Mrs. Carter as the contestants on the one side and representatives of Nixop,&1iZj,npnerman on the other. In the end the BelascoCarter forces were victorious.</p> <p>“It was all about the Broad Street Theater Orchestra. When the ‘ Du Barry ’ engagement began that organization was enlarged from eleven to seventeen pieces; Mr. Belasco paying more than half of the additional expense.</p> <p>“ Before the first performance there was ended Mrs. Carter complained that the discords of the orchestra had almost set her frantic, and she sent for Arthur Pell, her musical director, and instructed him to ‘ cut out ’ the extra pieces, which consisted of four brasses, an oboe and a bassoon.</p> <p>“ But they Only Laughed.</p> <p>“ Mr. Pell obedientiy informed the brasses, the oboe and the bassoon to this effect, but to his amazement they discordantly laughed at him, saying that they had been engaged by Mr. Kearney, the leader of the Chestnut Street Theater Orchestra, who employs all musicians for the Nixon & Zimmerman theaters, and that only from him would they take their dismissal.</p> <p>“ The matter was then allowed to rest until Mr. Belasco should return from- Atlantic City, Mrs. Carter vowing in the meantime that the frightful noises of those six ‘ extras ’ were rapidly ruining her nervous system.</p> <p>“ Mr Belasco arrived last Monday night, listened to a few bars of the overture and fled, with his fingers in his ears. When quiet had been restored he returned and notified the Nixon & Zimmerman representatives that unless the six wind compressors were discharged before the next night there would be no performance of ‘ Du Barry.’</p> <p>“ When the next evening arrived and Director Pell took his seat the six were still there, and when he ordered them out they again turned up their noses at him and asked him who he was, anyway ; they didn’t know him; they had been employed by Mr. Kearney, etc.</p> <p>“ Then Mr. Belasco and Mrs. Carter took action. They declared with unmistakable emphasis, that the curtain would not rise until the objectional sextette had been evicted, and Mrs. Carter went so far as to produce her street costume, preparatory to leaving the theater.</p> <p>“ Called Off by Kearney.</p> <p>“ At this interesting point the Nixon & Zimmerman authorities, represented by one Love, who felt anything but his name for the Belasco-Carter interests, called up Kearney over the ’phone and had Kearney call off the objectionable six.</p> <p>“ The curtain then arose and the performance proceeded, ‘ with just eleven-seventeenths of the previous amount of discord,’ as one of the company phrased it.</p> <p>“ Apropos of the incident it is said, on good authority, that when the Rogers Brothers played at the Chestnut Street Theater they found the orchestra there so little to their lildng that they had it exchanged for that of the Broad Street Theater, but when they got the latter it was so much worse that they asked and obtained the return of the first aggregation.”</p> <p>At the trial the court excluded under objection and exception evidence of the plaintiff’s reputation as a musician.</p> <p>Defendant presented the following points :</p> <p>2. If the jury believe that the article published does not designate or identify the plaintiff, the verdict must be for defendant. Answer : That point I affirm. [5]</p> <p>3. If the article is substantially true as published, there can be no verdict for plaintiff. Answer: That point I affirm. [6]</p> <p>4. If the article correctly reports the fact of the plaintiff’s discharge, and does not make any reflections or allegations respecting his professional competency, your verdict should be for defendant. Answer : This point I affirm. [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions ; (5-7) above instructions, quoting them.</p>

Appeal, No. 348, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1904, No. 2946,-refusing to take off nonsuit in case of Margaret Mcllhenney v. City of Philadelphia. Trespass to recover damages for personal injuries. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 377, Jan. T., 1905, by defendant, from judgment of O. & T. Fayette Co., Sept. T., 1905, No. 30, on verdict of guilty of murder of the first degree in case of Commonwealth v. Giovanni Mallini.</p> <p>Indictment for murder. Before Reppert, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>.Errors assigned were in refusing to quash the indictment, and in refusing to arrest the judgment.</p>

<p>Contract — Oral contract — Written contract — Commissions on sale of property — Partnership.</p> <p>On a bill in equity for an accounting, it appeared that plaintiffs and defendant had entered into an oral agreement to divide profits realized from any sale of a certain property, and that subsequently they entered into a written agreement as to division of profits on one particular sale that was contemplated. The court below, affirmed by the Supreme Court, held from a construction of the oral and written agreements, and from the acts of the parties, that the written agreement superseded the oral agreement so that the plaintiffs were not entitled to share in the profits realized by defendant, on a sale other than that specified in the written agreement.</p>

<p>Appeal, No. 353, Jan. T., 1905, by Percival Parrish et al., from order of C. P. No. 1, Phila. Co., Sept. T., 1905, No. 4410, refusing to appoint overseers of elections In re Petition of Percival Parrish et al.</p> <p>Petition for the appointment of overseers of election for the second division of the seventh ward of the city of Philadelphia.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the order of the court refusing to appoint overseers.</p>

Appeal, No. 5, May T., 1905, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1901, No. 55, for defendant on case tried by the court without a jury in suit of Commonwealth ex rel. Attorney General v. Consumers’ Gas Company of Scranton. Quo warranto against a gas company. Before Jacobs, J. The findings of fact by the court below are quoted in the dissenting opinion of Mr. Justice Potter, infra. The court entered judgment for defendant.

<p>Negligence — Railroads—Pedestrians.</p> <p>A pedestrian on a public street, where he ordinarily has a right to be, does net become a trespasser thereon merely because the municipality has granted to a railroad company the privilege of temporarily laying a track thereon for its own convenience and benefit.</p> <p>Where a railroad company runs its trains over tracks on a public street, it is under no imperative duty to continuously give danger signals while the train is moving. It is the duty of the engineer to look ahead, and if he sees drivers of vehicles or pedestrians in a place of danger, to give them warning of the approaching train by proper signals. In the absence of evidence as to whether the engineer was or was not looking ahead, the presumption is that he was doing his duty.</p> <p>In an action by a boy against a railroad company to recover damages for personal injuries, it appeared that the railroad company had the privilege of temporarily laying a track in a public street; that before the accident occurred the boy had been walking on the sidewalk of the street, but near the middle of the square he left the pavement, stepped on the street, and walked along the street about nine feet before he was struck. There was no evidence that the engineer saw him either on the pavement or on the street. The distance between the curb and the first rail of the track was four and one-half feet. This-allowed a safe place for the plaintiff to walk, even allowing for the overhang of the freight cars. Plaintiff testified that the engine and tender passed him safely, and that he was struck by a box car. It did not appear how far the engine was away from him when he stepped into the street. Reid, that there was no' evidence to convict the defendant of negligence.</p>

Appeal, No. 128, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1902, No. 923, on verdict for plaintiff in ease of John H. Hoffman and Minnie J. Hoffman, his wife, v. The Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Willson, P. J. The circumstances of the accident are set forth in the opinion of the Supreme Court.

Appeal, No. 172, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 2783, for defendant non obstante veredicto in case of City of Philadelphia to use of Edward L. Taylor v. Richard A. Malone and Richard J. Malone, trading as R. A. Malone & Co., and Fidelity and Deposit Company of Maryland. Assumpsit on a municipal contractor’s bond. Verdict for plaintiff for $1,687.15 subject to question of law reserved.

Appeal, No. 187, Jan. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1900, No. 754, on verdict for plaintiff in case of Thomas P. Conard and I. S. Williams, trading as Thomas P. Conard, v. Pennsylvania Railroad Company. Assumpsit for breach of contract of sale. Before Barratt, J. The fact are stated in the opinion of the Supreme Court. At the trial the court refused to charge that upon all the evidence the verdict should be for the defendant.

<p>Appeal, No. 188, Jan. T., 1905, by plaintiff, from order of C. P., No. 5, Phila. Co., June T., 1908, No. 1931, refusing to talce off nonsuit in case of Henry Danisch by his next friend, Henry Rajsik, v. William Amer and Company.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 90, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1902, No. 633, refusing to take off nonsuit in case of Mary Morgan v. United Gas Improvement Company.</p> <p>Trespass to recover damages for personal injuries. Before Beitler, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 198, Jan. T., 1905, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1904, No. 4,329, on verdict for plaintiff in case of Margaret Prethrow v. West Jersey and Seashore Railroad Company. Trespass to recover damages for personal injuries. Before McMichael, J. The facts are stated in the opinion of the Supreme Court. Defendant presented the following points : 1.

<p>Appeal, No. 201, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Go., Sept. T,, 1901, No. 3,298, on verdict for defendant in case of William Sheridan v. Gray’s Ferry Abattoir Company.</p> <p>' ■ Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were as follows :</p> <p>1. Rejection of evidence of plaintiff that the covering of the pit deceived him as to any danger.</p> <p>2. Sustaining objection to offer that defendants neglected to warn plaintiff as to dangerous character of hole.</p> <p>3. Sustaining objection to offer to prove repairs made to the covering after the accident by the defendants.</p> <p>' 4. Sustaining objection to proof as to condition of the lid over the hole a month prior -to the accident.</p> <p>5. Sustaining objection to offer of plaintiff to show how such holes were usually protected.</p> <p>6. Giving binding instructions directing verdict for defendants.</p>

<p>Equity — A mounting — Mutual accounts — Discovery — Jurisdiction—Evidence — Books of account.</p> <p>A bill in equity for a discovery and for an accounting of profits under a contract, may be maintained where it appears that the contract imposed upon both parties mutual duties of accounting.</p> <p>In such a case books procured and opened by the parties for the purpose of keeping therein their joint accounts are admissible as evidence in support of the bill.</p> <p>On a bill in equity for discovery and an accounting, it appeared that the plaintiff and defendant agreed in writing that they would “together enter into certain contracts for municipal and government work, etc.,” defendant to advance all the moneys required, and the plaintiff “in lieu of advancing money shall devote his entire time and best services to the execution of the work thereupon.” Plaintiff was to receive $100 per month as compensation for his services, and a certain per cent “of the actual profits accruing from the business from said certain contracts” that he and the defendant “had mutually agreed to enter into, as aforesaid.” The defendant filed an answer in which he alleged that the contract was for the construction of underground conduits, sewers and drains, and that no contracts for such construction had been obtained. The answer admitted that the defendant had obtained a large number of contracts for general construction work. All of these contracts had been taken in defendant’s own name. Held, (1) that the agreement between the parties was not limited merely to contracts for conduits, sewers and drains; (2) that it was immaterial that the contracts were taken in the name of the defendant alone; (3) that the plaintiff was entitled to the equitable relief which he sought.</p>

<p>Appeal, No. 202, Jan. T., 1905, by John H. Hinkle, trading as J. H. Hinkle & Company, plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1903, No. 4,279; for defendant on case-tried without a jury in the matter of John H. Hinkle, trading as J. H. Hinkle & Company, v. City of Philadelphia.</p> <p>Before Mitchell, C-. J.,</p> <p>Assumpsit to recover moneys retained by the city. Before von Moschzisker, J.</p> <p>The case was tried by the court by agreement of counsel without a jury under the act of April 22, 1874.</p> <p>The facts are stated in the opinion of the Supreme Court-</p> <p>Plaintiff presented the following requests :</p> <p>9. That the plaintiff was not in default on his part in the performance of any duty or obligation resting upon him by not beginning the said work by January 5, 1904; as he was required to do by the director of public works in the letter of January 4, 1904.</p> <p>To which the court made answer:</p> <p>The court refuses to so find and finds that the plaintiff was in default in not executing the contract when notified that same was ready for his execution, and thereby putting himself in a position to carry out his proposal for said work. Such a refusal on his part amounted in law to a declination to perform the work for which he had bid. [6]</p> <p>11. That the plaintiff was not, under the conditions then existing, bound to begin the work by noon of January 5,1904, as required by the director of public works, and a failure or refusal on his part to begin the work under such conditions as then existed would not justify the city in appropriating to its own use and withholding from the plaintiff the said sum of $5,000, so deposited by the plaintiff as aforesaid.</p> <p>To which the court made answer:</p> <p>The court refuses to find as requested, for the reason that all of the conditions then existing are not stated in the point, nor have they been duly stated in former requests. The point of law where sought to be raised will be discussed and decided in the opinion of the court to be filed herewith. [9] .</p> <p>18. Judgment ought to be entered for the plaintiff for the said sum of $5,000, with interest thereon, from January 5,1904.</p> <p>To which the court made answer:</p> <p>The court refuses to so find. [11]</p> <p>Defendant requested as follows :</p> <p>1. That under all the evidence the verdict must be for the defendant.</p> <p>The court so finds. [13]</p> <p>2. That under all the evidence the defendant is entitled to a certificate in its favor against the plaintiff for the sum of $5,000.</p> <p>To which the court made answer:</p> <p>The court finds that the defendant is entitled to have judgment entered in its favor, that the plaintiff shall take nothing by his writ, and shall pay costs. [14]</p> <p>3. That under the conditions of the proposal bond the defendant is entitled to recover from the plaintiff the sum of $5,000, being the difference between his bid, $239,000, and the bid and price paid Ruch, McLaughlin & Company, $244,000, for the performance of the said work.</p> <p>To which the court made answer :</p> <p>The court so finds. [15]</p> <p>The court made the following conclusion of law :</p> <p>In this case judgment will have to be entered that the plaintiff take nothing by his writ and shall pay the costs. [82] .</p> <p>JErrors assigned were, among others (8, 9, 11, 13, 14, 15 and 32), rulings on requests as above.</p>

<p>Appeal, No. 249, Jan. T., 1905, by plaintiff, from 'judgment of C. P. No. 4, Pliila. Co., March T., 1902, No. 3,408, on verdict for defendant in case of Change of Grade of Sixty-Second Street from Race Street to Vine Street in the city of Philadelphia.</p> <p>Appeal from report of jury of view. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Appeals — Supreme Court — Superior Court — Error of counsel — Misapprehension of facts.</p> <p>On an appeal from the judgment of the Superior Court, the question for the decision of the Supreme Court is whether the judgment of the Superior Court is correct on the record which was before it. If there has been a misapprehension of the facts, through the inadvertent error of counsel in presenting the case, the remedy is to be sought by an application to that court and not by an appeal to the Supreme Court.</p> <p>Taxation — Exemption—Charity—Portion of year.</p> <p>A defense to a scire facias on a tax lien, which alleges that after the liability for tax became fixed for the year the property was devoted to a use which exempted it from taxation, is not available.</p>

<p>Statute of limitations — Promissory notes — Payment of interest — Evidence.</p> <p>Where a man has given a promissory note to his mother-in-law, and has paid interest thereon for twenty-three years until his death, and such payments have been at stated interest periods either by the maker personally, or by his daughter with money supplied by the maker, and the note remains in the hands of the payee, the bar of the statute of limitations is tolled, and the daughter will not be permitted after her father’s death to assert that the note was given to her by her mother.</p> <p>The declarations of a decedent that he had been paying and would continue to pay interest on a note may be shown by the testimony of a stranger.</p> <p>Evidence — Party dead — Decedent’s estates.</p> <p>Where the claimant against the estate of a decedent is called as a witness in his own behalf, and testifies to facts occurring since the death of the deceased, and on cross-examination is interrogated as to matters occurring during the lifetime of the deceased, he becomes a competent witness for himself as to all relevant and material matters.</p>

Appeal, No. 29, Jan. T., 1905, by plaintiff, from order of C. P. No. 5, Pbila. Co., Sept. T., 1902, No. 1143, refusing to take off nonsuit in case of Catharine Rice v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Martin, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 337, Jan. T., 1905, by Leiper Janeway Hodge, by his guardian, from decree of O. C. Phila. Co., Jan. T., 1893, No. 462, dismissing exceptions to adjudication in estate of Rachel Wetherill, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

Appeal, No. 86, Jan. T. 1905, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T. 1904, No. 2,810, making absolute rule for judgment for want of a sufficient affidavit of defense in case of city of Philadelphia to use of James F. Brown v. Samuel Gourley, Sr., and. Samuel Gourley, Jr. Assumpsit on a bond given by a contractor to a city to protect material men and subcontractors.

<p>Bond — Conditions—Covenants—Breach—Indemnity—Guaranty.</p> <p>A bond may have two separate and distinct conditions and upon a breach of one condition an action will lie.</p> <p>Where a bond is conditioned not only as an indemnity against loss but as a covenant to complete a building operation, failure of the obligor to complete the building operation is a breach of the condition of the bond for which an action lies.</p>

<p>Appeal, No. 288, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Pbila. Co., March. T., 1904, No. 8,611, refusing to take off nonsuit in case of Maryan Politowski v. George Burnham et al., trading as Burnham, Williams & Company.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, J.</p> <p>The facts appear by the- opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was order refusing to take off- nonsuit.</p>

<p>Appeal, No. 177, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phil'a. Co., Sept. T., 1899, No. 239, on verdict for defendant in case of T. Kittera Van Dyke, Receiver of the Trust Mutual Relief Association, v. Franklin Baker, Jr.</p> <p>Assumpsit to recover assessments. Before McMichael, J.</p> <p>. At the trial plaintiff claimed that he had been induced to become a member of the company by false statements made by its president as ,to the amount of its contingent fund- and the total worth of its insurance in force. The plaintiff alleged that equities had intervened which barred the defendant from setting up the alleged fraud.</p> <p>The court charged in part as follows :</p> <p>[ Then you will have to determine whether or not the rights of any bona fide creditors intervened, and what they were. You have a book offered here in evidence, which is alleged to be one of the books of the company, but the receiver, through no fault of his — as far as appears, he did his whole duty in the premises — has been unable to give you all the books of the company. I think the evidence would persuade reasonable men that they were abstracted by the president of the company. At least, they were in the safe one night and they were not there the next day. The receiver has offered you some evidence that there were policies-or contracts out, but it is for you to determine from the evidence whether any equity and any rights of any bona fide creditors had intervened (that is, come in between) after the fraud was discovered. I do not think T can bring the case down to any simpler terms for you.] [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1) refusal of binding instructions for plaintiff, and (7) portion of charge above quoted.</p>

<p>Negligence — Municipalities—Streets—Sidewalks—Contributory negligence —Province of court and jury.</p> <p>In an action against a city by a. woman fifty-two years old to recover damages for personal injuries sustained by a fall on a sidewa-lk, it appeared that one week prior to the accident a plumber employed by the owner of the property in front of which plaintiff fell dug a trench- across the sidewalk. One, if not more of the witnesses, testified positively that the ditch was left unfilled and was not rammed, and that the pavement was not relaid. Other witnesses for the plaintiff did not support this testimony: One witness at least noticed the depression into* which plaintiff fell and that it had been in the same condition since the plumber left it the. week before. It appeared that the night was dark, that there was no light near the place and the. plaintiff had no prior knowledge of the condition of the sidewalk. Plaintiff testified that she was walking carefully and looking ahead as she proceeded. Held, (I) that the conflict among the plaintiff’s witnesses as to the condition of the- trench did not take the case from the jury; (2) that the question of the city’s constructive notice was for the jury; and (3) that the question of plaintiff’s contributory negligence was for the jury.</p>

<p>Affidavit of defense — Escrow—Delivery.</p> <p>In an action by the grantor against the depositary of an escrow for delivery to the grantee without performance of the required conditions, an affidavit of defense denying the breach of the conditions is sufficient to prevent judgment.</p>

Appeal, No. 236, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 2,298, on verdict for defendant in case of Frank J. Chroust v. Acme Building and Loan Association. Trespass to recover damages for personal injuries sustained by a fall over an obstruction on what was alleged to be a sidewalk of a public street.

<p>Negligence — Street railways — Passengers—Open summer cars — Protection 0f passengers — Running chains.</p> <p>In an action by a passenger against a street railway company to recover damages for personal injuries sustained while alighting from a car, it appeared that the defendant operated open summer cars on a double-track railway. These cars were equipped on both sides with short chains running from post to post inclosing the ends of the passageway between the seats. The chains were ordinarily left hanging down, and were only put up and into use when the tracks approached each other in the center of the highway, and it was necessary to protect passengers from descending on the left-hand side of the car, and being run over by cars on the other track. It was not shown that the chains were used for any other purpose, or that they were ever put up on the right hand-side to protect passengers from danger on the highway. At the time of the accident the car in which plaintiff was riding was' stopped in such a position that a portion of the car extended along a ditch or gutter on the right-hand side of the roadway. Plaintiff attempted to alight immediately opposite the place where she had been sitting, and fell into the ditch. If she had moved a step or two along the running board she could have alighted safely. The negligence alleged in the statement of claim was the improper stopping of the cars at the point in question. The trial judge eliminated this ground as a question in the case, and of his own initiative left it to the jury to determine whether it was or was not negligence to fail to use the chain on the right-hand side of the car at the point in question. Held, that a judgment for plaintiff should be reversed.</p> <p>Mesteezat, J., dissents.</p>

Appeal, No. 339, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Go., Sept. T., 1903, No. 3,240, for defendant non obstante veredicto in case of Emma B. Engle, Executrix of the Estate of Mary B. Engle, deceased, v. Harry M. Betz. Assumpsit to recover the amount of an alleged loan.- Before Audenried, J. The court charged as follows: This ease is before you in a very unsatisfactory and fragmentary shape. The plaintiff’s testatrix, Mary B. Engle, is dead.

<p>Appeal, No. 227, Jan. T., 1905, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1902, No. 430, on verdict for plaintiff in case of Henry G. Standen v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Beitler, J.</p> <p>At the trial the plaintiff offered evidence which tended to show that on August 3,1901, she was injured at the Haverford station of the defendant by a sudden jolt and. start of the train when she was attempting to alight. Mrs. Standen lived with her husband at Haverford in a house connected with greenhouses in which her husband conducted a florist business. The evidence showed that the plaintiff, Mrs. Standen, assisted her husband in this business.</p> <p>When Henry G. Standen was on the stand, he was asked this question:</p> <p>“ Q. To what extent was your wife able to be of assistance or of service to you ? ”</p> <p>Mr. Barnes: I ask for an' offer what they propose to prove.</p> <p>Mr. Porter: We offer to prove by this part of the testimony and by this witness on the stand that his wife previous to the accident was of service to him, or to what extent she was an aid, comfort, and of assistance to him.</p> <p>Mr. Wiler: “ Q. Now, Mr. Standen (question repeated), to what extent was your wife able to be of assistance or of service to you ? ”</p> <p>“ A. She would do her own household duties — do her own washing and ironing — and while I was not working she would attend to the greenhouse; yes, and pot plants and hybridize seed and propagate and make cuttings, and from the knowledge I obtained during my seven years’ service in the royal nurseries in England-.” *</p> <p>Mr. Barnes: I now object to the immediately preceding part and as to what the witness is about to say ; and I move that so much of the answer be stricken out as applies to the duration of the work by the wife in their combined business.</p> <p>Objection overruled and motion refused.</p> <p>Exception for defendant. [1]</p> <p>Mr. Basmes: “ Q. Now, there is included in this sum of money which you have named an extra man or men ? A. Extra man. Q. Man? A. Yes. Q. $1,676.66? A. Yes; that is wages I paid to the extra man taking Mrs. Standen’s plaqe in the greenhouse.”</p> <p>Mr. Barnes: If the court please, I ask that that item be deducted, be striken out; that is the same question.</p> <p>The Court: .1 will overrule the objection and give you an exception; that raises the question fairly and squarely.</p> <p>Exception for the defendant. [1]</p> <p>Defendant presented these points :</p> <p>5. If the jury should find a verdict for the plaintiff, Henry Standen, it cannot, under the evidence in this case, award any damages to him for loss of services of his wife, because of the fact that prior to the accident she took part in the business of florist carried on by him, and that since the accident she had not been able to assist him in the business. [2]</p> <p>6. If the jury find a verdict for the plaintiff, Henry Standen, it cannot award to him as damages any amount which he was required to pay as wages to additional or extra men employed by him to do the work in his florist business formerly done by his wife. Answer: Of course, gentleman, you have got to treat that matter if you come to find a verdict for the plaintiff, in a reasonable way. This man says his wife did His washing, ironing, looked after all the children, and I think she had five of them, and in addition to that helped him in the florist business — potted and so on. ' Now, I don’t know what the experience of most men is, but my experience would teach me that a woman who did the washing, ironing, cooking, and attended to five children would not have very much time to Took after the florist business in addition to that. Hence, when a man says, “ I want you to pay me for a housekeeper to do the housework my wife used to do, and I want you to pay me for a man in the greenhouse,” it is manifest she did not work six days a week at home and six days a week in the greenhouse; she could not be in two places at the- same- time. Hence it would hardly be fair to charge the defendant for a man and housekeeper both. [3]</p> <p>The court charged in part, as follows:</p> <p>[Now, I will pass to the question of whether there is liability. I said yesterday when Judge Porter was arguing the case, and I say it now, in order that it may go down upon the minutes, that in my judgment the plaintiffs’ case practically rests upon the uncorroborated testimony of Mrs. Standen. Let me read her testimony. It has been read to you this morn-, ing, but I want to- read it in conjunction with the testimony of Mr. Gallagher.. Now, this lady was asked, “Tell us what occurred when the- train arrived at Haverford.” She is the woman who was hurt; she is the woman who is suing here for damages, and it was her duty, of course, to tell all that occurred as far as she could. She starts, not where one would imagine a person would start, with a statement of how she arose, when she arose, but she says, “ I was getting off the-car, the car next to the last car, at the rear end of the car, when the train started with a jolt, and threw me back on the steps.” There is no statement, there of how far down the steps she had gotten. Unless, she was part way down the steps the jolt would not have thrown her back on the steps ; it would have thrown her back on the platform. Yet, it may be that she meant by “ steps ” to include the whole, thing outside of the doorway. (Continuing reading.) “ I don’t remember nothing after that until a gentleman picked me up — was assisting me and giving me my caba and a small package I had with me.” She does not give the gentleman’s name, and if I have read her testimony accurately, she does not mention the fact that Mr. Gallagher mentioned here, that, he gave her a card. If I am incorrect as- to. that, counsel will call my attention to it. She says with regard to getting up, “ I sat in my seat until the train came to a full stop ; I did not' loiter; I used the same speed in getting off the- car as I generally used.”</p> <p>Now, Mr.. Gallagher says, that, he got off the train, and looking around discovered that lie was at the wrong station. “ And I turned around towards the car again and seeing the mistake, I turned around to- the car to go, and I saw the cars give a jolt, and I just had a glance of a woman falling from the car; and I turned around, and. I saw it was a woman; and I turned around and picked her up, and carried, helped her over to one of the benches; and I went back again and I picked up her parcel and her bag, and placed it alongside of her; and I asked her if she was hurt, and she told me she did not know quite yet whether she was hurt or not. I said after a few minutes, I said again, ‘You could go home?’ and she said, ‘I think I can,’ and so I went then to Bryn Mawr.” He spoke of a crush or a jolt, and in answer to the question, “Describe what the crusli was,” he said, “ The starting up of the car, and moving it from the top they gave a jolt to go.”</p> <p>Continuing reading. “ Q. Then what did you see ? A. I saw a shadow in the back of me, and I turned around quick and see it was a woman, turned back here. Q. Did the car go on then ? A. Yes. Q. That was the train starting on its forward course ? A. Yes.”</p> <p>Now, on the part of the defendant, evidence is presented to show — and it is for you to give the weight that you think proper to it — to show that that train in its due course stopped at Haverford station; that it was a local, stopping at every station between Paoli and Philadelphia; prior to reaching Haverford announcement was made that the next stop would be Haverford; when the train reached Haverford announcement was made that that stop was Haverford; that the train stopped to let off a number of people; that it was the occasion of a half holiday, in August; and that it was a main line train, a local. Mr. Kincaid, Mrs. Baird, and perhaps others I do not recall whether others testified to that or not — testified, not all to one complete story, but the story as taken from the testimony of the defendant’s witnesses, if you believe that they are referring to the Standen incident, is that Mrs. Standen was in the car, the car was there until everybody that wanted to get off got off; that the car then started ; that after it started Mrs. Standen stepped from the steps of the car onto the platform and did not fall.] [4]</p> <p>[If she stepped off of that car after it had moved half a car length or a car length, and took several quick steps upon the platform, you can determine better than I, or as well as I can, what would be the effect of that upon a woman. A woman is more delicately constructed than a man, and I think a little less properly constructed for stepping off of a moving car than a man, and yet men have been hurt by doing it. Would that account for the injury she now has? Would that account, for instance, for two broken ribs ? Counsel for the plaintiffs contend that the two broken ribs practically show that the woman must have received some injury at that time other than that which possibly could have come to her by stepping from the steps of a car. That strikes’ me as a fair argument ; and yet on the other side it is argued that there is no testimony with regard to broken ribs except the testimony of the attending physician. There is no evidence at all from the woman herself that she had any fractured ribs, nor is there anything to indicate exactly what the doctor means by the technical term “ fracture.” “ Fracture ” is a break. A rib may be broken without being broken off.; that is to say, it may be fractured, as I understand, without' being broken off; but, at any rate, that is a matter for you to consider. That has been fairly argued on both sides, and it is for you to consider. It has to my mind considerable bearing upon the question of whether these people are referring to Mrs. Standen or not.] [5]</p> <p>Verdict for Henry G. Standen for $10,000, and for Ruth Standen for $5,000.</p> <p>The verdict for Ruth Standen was paid.</p> <p>Defendant appealed from the judgment entered in favor of Henry G. Standen.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions ; (2-5) above instructions, quoting them.</p>

<p>Appeal, No. 322, Jan. T., 1905, by plaintiff, from judgment of C. P. Lehigh Co,, Sept. T., 1904, No, 107, on verdict for defendant in case of Emma P. Minnich v. Robert E. Wright, Charles M. Bates and George W. Norris, Receivers of the Lehigh Valley Traction Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Hevdt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court directed a verdict for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 74, Jan. T., 1905, by plaintiff, from order of C. P. Montgomery Co., March T., 1903, No. 121, refusing to take off nonsuit in case of Isaac F. March and Emma L. Brinley v. Joseph C. Lukens and Emily Irene Yerkes, trading as Lukens & Yerkes.</p> <p>Trespass to recover damages for injuries to a quarry. Before We and, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 162, Jan. T., 1905, by defendants, from judgment of Superior Court Oct. T., 1904, No. 30, affirming decree of C. P. Lehigh Co., April T., 1904, No. 2, awarding perpetual injunction in case of City of Allentown and C. J. Otto, President of the Board of Health, v. Robert A. Wagner et al., Directors of the School District of Salisbury Township, Lehigh County, and the Board of Health of said Township.</p> <p>Appeal from Superior Court. See 27 Pa. Superior Ct. 485.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was judgment of the Superior Court.</p>

<p>Master and servant — Definitions—When the relation exists.</p> <p>A master is one who stands to another in such a relation that he not only controls the results of the work of that other but also may direct the manner in which such work shall be done.</p> <p>A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter.</p> <p>The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct both what work shall be done, and the way and manner in which it shall be done.</p> <p>Bailment — Master and servant — Railroad cab service.</p> <p>A railroad company owning cabs, by an agreement in writing, let them out to drivers in consideration of the payment of a fixed sum per day. The agreement provided that the driver was to assume all liability for damages to any person or property, that he should not use a horse longer than six and one-half hours without returning to the stable for exchange, that he should wear a uniform, abstain from the use of intoxicating liquors, present a neat and clean appearance, and conform to the prescribed rates and regulations. Upon failure to observe these conditions the company reserved the right to cancel the unexpired' term of the lease. The regulations provided in detail the rates to be charged for various distances, limited the area beyond which the driver could not go without permission, and restricted the driver from performing other kinds'of work. It also appeared that the company employed a cab agent to supervise the service, to secure men for the work, make contracts with the drivers, and enforce the terms and conditions of the lease. Held, (1) that the contract between the railroad company and the driver was one of bailment, and not one creating the relation of master and servant; (2) that the railroad company was not liable for injuries sustained through the negligence of the driver.</p>

<p>Appeal, No. 254, Jan. T., 1905, by plaintiff, from decree of C. P. No. 5, Phila. Co., June T., 1903, No. 1,408, dismissing bill in equity in case of Joseph W. Ken-worthy, Substituted Trustee, under Deeds of Trust bearing date July 9, 1889, and August 6, 1889, created by James P. and Mary Bell Henry v. Julius C. Levi, Trustee for Fannie Levi, The Equitable Trust Company, Administrator for the Estate of Moses T. Johnson, deceased, and Samuel C. Adams.</p> <p>Bill in equity to compel the reassignment of a mortgage. Before Davis, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeals, Nos. 182 and 183, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1901, No. 4,066, for defendant non obstante veredicto in case of John S. Green and Buelah May Green, his wife, v. The Baltimore & Ohio Railroad Company. Trespass to recover damages for personal injuries. Before von Moschzisker, J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 352, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1903, No. 2,175, on verdict for defendant in case of Mary E. Sowers and Philip Sowers v. Patricius McManus.</p> <p>Trespass to recover damages for personal injuries. Before Wiltbank, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for defendant.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Taxation — Lien of taxes — Sheriff’s sale — Discharge of lien.</p> <p>Under the Acts of February 3, 1824, P. L. 18, and March 11, 1846, P. L. 114, taxes in the city of Philadelphia are discharged by a sheriff’s sale if the proceeds of the sale are sufficient to pay them.</p> <p>Where real estate in the city of Philadelphia is sold under proceedings on a mortgage for $7,000, and it appears that taxes aggregating $2,000 for four years were at the time liens upon the property, and the city receives from the proceeds the taxes for the two years immediately preceding the sale,-but makes no demand for the taxes for the other two years, any claim filed for such taxes, or judgment entered on such claim, is absolutely void.</p>

Appeal, No. 95, Jan. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1904, No. 719, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Yardley National Bank v. Edward A. Yansant. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. Tlie averments of the affidavit of defense are sufficiently-stated in the opinion of the Supreme Court.

Appeal, No. 132, Jan. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1902, No. 3,409, on verdict for plaintiff in case of Thomas Dougherty, by his next friend and father, John A. Dougherty, v. John and James Dobson. Trespass to recover damages for personal injuries. Before Barratt, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,500. Defendant appealed.

<p>Factors — Advances—Contract—Debt—Assignment for creditors.</p> <p>' Where a factor makes advances to his principal for goods consigned, the only agreement implied by law in the transaction is that the consignor will repay to the consignee any balance due on the advances, if it appeal’s, that, after a sale of the consigned goods, and upon an account stated, the proceeds are insufficient to repay the advances. Until the factor, if he keeps the goods consigned to him, has performed the whole of his contract by selling them, and accounting to his principal, there is no default by the latter, and, therefore, no debt or liability to the former. If in such a case the consignor makes an assignment for the benefit of creditors, the claim of the consignee against the assigned estate is limited to the difference between the amount of the advances and the proceeds of the goods sold. He cannot claim for the whole amount of the advances on the theory that the advances are a debt, for which he holds the goods as collateral security. In such a case the rule of allowing no interest in insolvent estates properly applies.</p>

<p>Municipalities — Contractors—Bonds to protect subcontractors and material men.</p> <p>Where a contractor’s bond to secure subcontractors and material men, required by city ordinance, has been voluntarily given, it may be enforced according to its terms, although it exceeds the requirements of the ordinance.</p> <p>A city ordinance provided that contractors for public work should execute a bond to pay all persons supplying them “with labor or materials, whether as subcontractors or otherwise, in the prosecution of the work provided for in such contracts.” The ordinance authorized anyone who had furnished “labor and materials, either as a subcontractor or otherwise,” to bring suit on the bond in the name of the city to his use. The condition of such a bond was to pay “any and all persons, any and all sums of money which may be due, for labor and material supplied or performed in and about the said work.” The contractor and the subcontractor for bricks both became financially embarrassed, and a material man of the subcontractor continued to furnish bricks to parties who were carrying on the original contracts who had an interest to do so. Suit was brought by the material man against the contractor, the surety in the bond, and the subcontractor. Another person was by amendment made a codefendant. Neither this person nor the subcontractor were partners of the contractor, and the surety was not charged as a surety for a partnership. The court amended the record by striking out the name of the subcontractor, and of the-additional codefendant, as parties defendant, and a judgment was obtained against the contractor and the surety. Held, (1) that the bond was not broader than the purpose and scope of the ordinance, and could be enforced according to its terms; (2) that the surety was not relieved by reason of the work being carried on under the original contract by one having an interest in seeing that the contract was executed; (3) that the amendment of the record was properly allowed; (4) that a verdict and judgment for plaintiff should be sustained.</p>

<p>Railroads — Eminent domain — Land damages — Evidence—Competency of witness — Instructions—Request for instructions.</p> <p>Witnesses are, competent to testify as to land values in railroad condemnation proceedings, where it appears that they are property owners, are well acquainted with the property under investigation, that they know what people are asking for property in the vicinity, and of the actual selling price of two or three properties, and that they had lived in the neighborhood for nearly twenty years, and had experience for a long period in appraising the values of properties for the purpose of making loans thereon.</p> <p>On the trial of a railroad condemnation case the trial judge cannot be convicted of error in failing to call the attention of the juiy to the assessed value of plaintiff’s property, based on the testimony of the township assessor who had held office for many years, where it appears that the railroad company did not ask for specific instructions as tó the weight to be given to the testimony of the assessor, or that the attention of the trial judge had been called to the omission to charge on this subject.</p> <p>In the absence of request the court will not be reversed for what is left unsaid, if what was said was not misleading.</p> <p>On the trial of an issue to assess damages for land taken by a railroad company for the purpose of widening its right of way, the defendant company is entitled to the affirmance of a point framed with the purpose of calling attention to the necessity for distinguishing between the results from the operation of the railroad at and before the time of the taking of the land in question, and those which might follow in increased measure from the future and enlarged operation of the road.</p> <p>A party is entitled to a distinct and responsive answer to his points if they are properly drawn, present questions that fairly arise, and can be answered by a simple affirmance or refusal.</p>

<p>Will — Devise—Construction of will — Vested and contingent estates.</p> <p>Testatrix left the residue of her estate in trust with the intent of keeping it “intact” until after the death of her husband, and to pay one-half of the income to him during the joint lives of her son and husband, and to the latter in prescribed proportions according to circumstances, should the son die first. By a subsequent clause she directed that after the death of her husband all of the estate “and the income accruing therefrom, shall descend to my son.” “Should, however, my son die before my husband all the estate shall remain intact until after the death of my husband.” Then followed a different division of the income varying according to the survivorship of testatrix’s grandchildren. In a subsequent clause she provided that after the death of the husband and the son the estate should remain in trust and the income “shall be for the use of the legitimate children of my son.” The son died before the father. Held, (1) that the estate devised to the son was contingent on his surviving his father, and as he died first it never vested; (2) that on the death of the father the estate passed under a dry trust to the son’s children.</p>

<p>Appeal, No. 283, Jan. T., 1904, by defendant, from judgment of C. P. Delaware Co., June T., 1903, No. 78, on verdict for plaintiff in case of Samuel S. Hughes v. Fayette Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>. Towards the conclusion of the plaintiff’s case, counsel for plaintiff made the following offer:</p> <p>Mr. Alexander: If your honor please, just one minute. I would like to offer in evidence the Carlisle tables to show the expectancy to us.</p> <p>Mr. Schaffer: They are objected to.</p> <p>The Court: Objection overruled.</p> <p>Mr. Schaffer: Will your honor grant me an exception?</p> <p>The Court : Yes. They are slight evidence. [6]</p> <p>Defendant presented these points :</p> <p>1. The allegata and probata in the case not being in agreement, the verdict must be for the defendant. Answer: Refused. [3]</p> <p>2. Under all the evidence in the case, the verdict must be for the defendant. Answer: Refused. [4]</p> <p>Verdict and judgment for plaintiff for $5,378.62. Defendant appealed.</p> <p>Errors assigned were (2) in entering judgment on verdict for plaintiff; (3, 4) answer to points; (5) in charging that “ To entitle this plaintiff to recover he must be free from negligence himself, because if he materially contributed by his conduct to this accideirt he cannot recover; ” (6) ruling on evidence, quoting the bill of exceptions.</p>

Appeal, No. 263, Jan. T., 1905, by plaintiff, from order of C. P. Chester Co., Jan. T., 1905, No. 74, refusing to take off nonsuit in case of Annie S. Downing v. Coatesville Borough. Trespass to recover damages for personal injuries. Before Hemphill, P. J. From the record it appeared that plaintiff was • injured by falling in a hole on a sidewalk in the borough of Coatesville.

<p>Boroughs — Contracts—Borough engineer — Parol evidence — •Evidence.</p> <p>Where a bid for a borough sewer and a contract based thereon contain no reference to rock excavation, and both bid and contract have been approved by the borough council, the contractors cannot subsequently allege that they were induced to execute the contract by the assurances of the borough engineer who prepared it, that the rock excavations would be paid for at the established and usual rate.</p>

<p>Negligence — Railroads—“ Stop, look and listen ” — Nonsuit.</p> <p>In an action against a railroad company to recover damages for personal injuries, it appeared by the plaintiff's own testimony that he stopped his wagon at a point 101 feet from the grade crossing where he was injured, and looked and listened. At that point it was admitted that he had an uninterrupted view of the track for at least 672 feet, the weight of the evidence being that it was 972 feet. As he approached the railroad his view gradually extended, until just before coming on the tracks he could see 1,429 feet. His horse was struck on the track; whether or not the carriage actually reached the track did not appear. Held, that a nonsuit was properly entered.</p>

Appeals, Nos. 326 and 371, Jan. T., 1905, and No. 20, Jan. T., 1906, from decrees of C. P. Del. Co., June T., 1905, Nos. 309, 326 and 340, awarding and refusing to award preliminary injunctions in cases of Radnor Township and Haverford Township v. Philadelphia & Western Railroad Company. Bill in equity for an injunction.

Appeal, No. 22, Jan. T., 1906, by plaintiff, from judgment of C. P. Chester Co., April T., 1904, No. 54, on verdict for defendant in case of John Taylor v. D. W. Entriken et al., School Directors of the Borough of Kennett Square, and W. E. Dengler, Principal. Mandamus proceedings under the Act of June 8,1881, P. L. 76.

Appeal, No. 23, Jan. T., 1906, by defendant, from judgment of C. P. Bucks Co., Jan. T., 1904, No. 21, on verdict for plaintiff in case of S. F. Fries v. John S. Mather, Charles Sidney Mather and Tacie A. Mather. Assumpsit on promissory notes. At the trial it appeared that the notes in question were given by John S. Mather, Charles S. Mather, and Tacie A. Mather to S. F. Fries. Tacie A. Mather was the wife of Charles S. Mather and mother of John S. Mather.

<p>Appeal, No. 164, Jan. T., 1906, by plaintiff, from judgment of C. P. Bucks Co., April T., 1906, No. 48, for defendants in mandamus proceedings in case of Commonwealth ex rel. Philadelphia, Bristol & Trenton Street Railway Company v. Lewis R. Bond and Thomas B. Stockham, surveyors, and Lewis A. Howell, Harry J. Burns and James H. Cox, Committee on Streets and Highways of the Borough of Morrisville.</p> <p>Petition for mandamus. Before Stout, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned among others was in entering judgment for defendants.</p>

<p>Appeal, No. 297, Jan. T., 1905, by plaintiff, from order of C. P. Schuylkill Co., March T., 1904, No. 22, refusing to enter judgment for full amount of plaintiff’s claim in suit of George W. Ryon v. David Starr.</p> <p>Assumpsit on a contract. Before Bechtel, P. J.</p> <p>The court below filed the following opinion:</p> <p>From the plaintiff’s statement it appears, that the defendant by writing dated January 21, 1902, authorized and empowered him to sell or lease, a certain tract of land, and agreed to pay to him the sum of $20,000 in case of a sale, for the price therein named. This writing also gives the plaintiff power to lease, subject to the approval of the defendant, and upon the terms therein named. The plaintiff did, subsequently, effect a lease with the Black Diamond Anthracite Coal Company, for a period of 999 years, upon terms which were satisfactory to the defendant, and of which he approved, as appears from the instrument which he signed. This though termed a lease, would perhaps be more properly termed a sale. It recites the payment of $1.00, and the further consideration of 900,000 shares of stock, of the par value of $1.00 per share, with the same “ privileges and rights as of deed.” The 900,000 shares of stock were in due course of time delivered, under this written instrument which is dated June 17, 1902. Upon the same day (June 17, 1902) David Starr, the defendant, executed an instrument, in which he sets forth that he is the owner of the 900,000 shares of stock of the Black Diamond Anthracite Coal Company, and agrees to deposit said stock in such trust company as Peter Whitney, the other party to the agreement, may select, to be held in escrow, and to be delivered to said Whitney, when he paid therefor at the rate of ten cents per share, or to such parties as said Whitney might select. The said shares of stock were deposited, in pursuance of this agreement in the Trust Company of the Republic, and subsequently in the Commonwealth Trust Company on November 2,1908. On July 15, 1902, David Starr, the defendant, entered into an agreement with the plaintiff, in which he promises and agrees to pay to the plaintiffj one-fourth of all the money received by the said trust company and placed to the credit of Starr, until the amount thereof equaled the sum of $20,000. The agreement made between Starr and Whitney, dated June 17, 1904, and the agreement dated July 25, 1904, do not change or in any way affect the plaintiff’s rights. In pursuance of the sales of stock thus deposited in the trust company the defendant received $37,640, and of this sum he paid to the plaintiff the sum of $9,140, or one-fourth, being the exact proportion or sum he contracted and agreed to pay, under the agreement of July 15, 1902. The copy of account filed shows, that Starr began to receive money, arising from the sale of stock, as early as July 15, 1902, and continued to receive money almost every month, down to and including September 19, 1904. Out of these moneys he paid the exact portion required by his contract of July 15, 1902, .thereby recognizing his contract obligation and its binding force, down to and including September 19,1904, the time of the last payment. •Up to this point no difficulty arose, as far as this record shows, between the plaintiff and the defendant. In December, 1904, according to the affidavit of defense, about the 6th or 7th, Starr, without the knowledge or consent of the plaintiff, sold to Peter Whitney all his right, title and interest in the stock remaining unsold, and gave him full power to transfer the same to any party or parties. In addition he says, “ I do relinquish now and forever, on behalf of myself and my heirs at law, all claim whatsoever to said shares of the stock, of the said Black Diamond Anthracite Coal Company.” He also agrees to deliver a quitclaim deed to said Whitney, or anyone he may elect,' of all claim to the property. In this agreement the 'shares .of stock are mentioned as being •“ Five Hundred Thousand more or less.” As a consideration for this action, on the part of the defendant, he received $12,500, and of this sum be has paid nothing to the plaintiff. The plaintiff now claims $3,125, as one-fourth of the $12,500, received by Starr; and $7,465, which with the sum paid, to wit: $9,140, would make tbe $20,000 provided for in the agreement of July 15, 1902. And the defendant denies his liability, for any further sum than the amount already paid. Just here and in this way, arises the real question, the pinch in the case. The plaintiff’s statement is sufficient to call upon the defendant for an affidavit of defense. We turn now, to the affidavit to learn what is therein given as a defense to the plaintiff’s cause of action. The defendant admits the execution of all the instruments referred to, and the receipt of the amounts, set out in the copy of the account. The defendant alleges that the agreement of lease, and the agreement with Whitney, both of June 17,1902, were illegal and says “ this affiant avers cannot be made the .basis for recovery in this action.” The statement is based upon the assertion, that these instruments created a fictitious valuation of the leasehold premises. Just how these agreements created a fictitious valuation of the leasehold premises does not seem clear. In effect the stock was to be sold to secure Starr’s purchase money and could not be sold save through him; he gave an option to Whitney and thereafter extended it, and subsequently sold the stock to him. We cannot see how this created “a fictitious valuation of the leasehold premises.” The leasehold premises were worth just as much after the sale to Whitney as before and were not worth anything more. The sale furnished no quotation of price, or value for the stock; it was a private transaction in which Starr sold the stock which he owned, at a price satisfactory to himself, and this he' had a light to do, as far as Whitney or the coal company are concerned, in fact as to them, he had a right to give it away if he wished. His relation to the plaintiff is, however, different, but of this we do not wish to speak now, save to say, that Starr contracted to account to him (the plaintiff) for the money arising from said stock sale, and he (Ryon) is no party to the Whitney agreements. The defendant denies that he owes anything to the plaintiff, upon the ground that the amount paid him is an adequate compensation for the services rendered. But the amount paid him is not the amount Starr contracted to pay, nor is it the proportion he contracted to pay, of the money he has already received. After the plaintiff rendered the services he was employed to render, and Starr received the benefit thereof, he now proposes to alter the contract, under which they were rendered, and say to the plaintiff, your services are worth less than half what I contracted to pay you, and I will simply repudiate my contract. This may be a convenient, but does not seem to be a legal, way of disposing of his contract liability. We next have the suggestion, that the agreement or sixty-day option given to F. P. Christian, and the agreement with the plaintiff, providing for the disposition of the money, arising from the said option, to some extent modified the plaintiff’s agreement of January 21, 1902, how or to what extent is not even suggested. But it is difficult to-understand how it affected the said agreement of January 21, 1902. It was but an option given to Christian, which' was never taken up, n'ever completed, nothing paid in pursuance thereof, and which expired in sixty days. If, however, the agreement made to protect Ryon under Christian’s option, were to be substituted, for the one under which he now claims, Starr’s liability would be just twice as great, hence he, Starr, can profit nothing by setting it up as a defense. The next statement of defense is, that the “ plaintiff has received one-fourth of all the money received by the Trust Company of the Republic of the City of New York which was put to the credit of this affiant.” This simply means that unless the money was placed to the credit of Starr in the trust company the plaintiff could receive none of it. This is apparent not only from this paragraph but a subsequent one, in which he admits he received the $12,500 and has paid none of it over to the plaintiff. Starr is the only party who possessed the power to transfer the shares of stock, they belonged to him, he could if he wished, require the purchase money to be paid, in every instance, to the trust company, and tlieb receive it from that source, and he was the only person who could dispose of it, and take the money without passing it through the trust company. It is immaterial in which of these ways he received the money, so that he did receive it, as the proceeds of the shares, for he has contracted to pay over one-fourth thereof to the plaintiff. As to the claim of damages offered as set-off, it is alleged to arise out of a failure to claim the 100,000 shares, which Peter Whitney was to have without charge, after he paid for all the other unsold shares at ten cents per share. We see no reason why either the plaintiff or defendant should make any formal claim or demand, for the 100,000 shares. Whitney never acquired any title to said shares, either under his agreement of June 17, 1902, or June 17, 1904, for he never complied with either, and they expired by the limitation of time mentioned in the instruments. But if Whitney ever had acquired any claim, and consequently disputed defendant’s right to the stock, the defendant has put it out of his own power, as well as the power of his attorney, to make any claim to said 100,000 shares, because he sold the same to Whitney, and forever released both Whitney and the coal company. Having done this, without the knowledge or consent of the plaintiff, and having by this act disarmed both himself and his attorney, how can he now claim set-off in damages, because his attorney did not claim the 100,000 shares? Over and above this, however, is the fact that there was nothing to claim, as Whitney had acquired no title, and as far as now appears nobody ever disputed his title to these or any of the 900,000 shares. This entire difficulty arises out of the defendant’s act in entering into the contract of sale, and actually selling the stock on December 7, 1904. He seeks to excuse himself by saying that “ Frank P. Christian induced this affiant to leave his home on December 6, 1904, and took him to the coal company’s office in New York, and then and there Christian and Whitney made statements as to the title, and threats of suits, and charges of fraud, and he fearing trouble executed the writing of December 7, 1904.” If this be true it might afford him some ground for proceeding against Christian, Whitney, and possibly the coal company, to relieve him from the written instrument thus secured. But can it relieve him from liability to Ryon, this plaintiff? He had no part in this transaction. Why should he suffer.in consequence thereof? That the defendant was conscious of the position he was placing himself in, with reference to the plaintiff, is evident from his affidavit in which he says he “ especially stipulated that whatever interest the plaintiff might have in the transaction was to be provided for, by the said Whitney and the said Christian,” and that they “ represented that they would satisfy, and take care of any interest, the said plaintiff might have, growing out of the subject-matter.” If the plaintiff had already been paid all he was entitled to, and if his claim was covered by set-off, or if he had no claim, why was he (the defendant) seeking to make Whitney and Christian responsible for its payment ? It is a significant fact, that the writing given to Whitney is silent upon this subject, but carefully releases said Whitney and the coal company in this language “ arid to surrender all claim of any nature whatsoever against either Peter Whitney or the Black Diamond Anthracite Coal Company or their heirs or assigns now and forever.” If the defendant’s statement is correct, then the transaction of December 7, 1904, is, to say the least of it, not creditable to the parties concerned, and wears the appearance of an intention to circumvent the plaintiff and his claim. We have thus considered the affidavit, and now briefly refer to the requirements of a sufficient affidavit. The general rule may be stated in this language: “An affidavit of defense should aver distinctly every fact necessary to constitute a defense, nothing should be left to inference : ” Peck v. Jones, 70 Pa. 83, and Gas Co. v. Construction Co., 30 W. N. C. 222. Nothing should be left to conjecture.-; that which is not stated is taken not to exist: Class v. Kingsley, 142 Pa. 636 ; National Bank v. Stadehnan, 153 Pa. 634; Kaufman v. Iron Co., 105 Pa. 537 ; Noble v. Kreuzkamp, 111 Pa. 68, and Sanders v. Sharp, 153 Pa. 555. We regard the affidavit as insufficient, at least so far as the money actually received is concerned, especially in view of the above cases and the decisions in Savings Bank v. Miller, 179 Pa. 412; Erie City v. Butler, 21 W. N. C. 459 ; Vollmer v. Mago wan, 180 Pa. 110; Moore v. Ins. Co., 196 Pa. 30, and Penna. R. R. Co. v. Steel Co., 201 Pa. 624, and numerous other authorities. We are therefore of the opinion that the affidavit of defense is not good, not sufficient as to the money received and that the plaintiff is entitled to judgment for one-fourth of the $12,-500 or $3,125. The remaining part of plaintiff’s claim rests upon different ground, and under the statement and affidavit of defense, will likely involve questions of fact, that must be passed upon by a jury. In pursuance of the views herein expressed, we now make the following order under the act of 1897, upon the motion of the plaintiff:</p> <p>And now, April 24, 1905, the affidavitis adjudged insufficient as to the money received and sustained as to the balance of the claim. We therefore direct judgment to be entered for $3,125 in favor to the plaintiff and against the defendant, and grant permission to proceed as to the balance of the claim, under the provisions of the Act of July 15,1897, P. L. 276.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 148, Jan. T., 1905, by defendant, from order of C. P. Schuylkill Co., March T., 1905, No. 22, making absolute rule for judgment for a sum apparently due under affidavit of defense in case of George W. Ryon v. David Starr.</p> <p>Assumpsit for commissions on the sale of real estate.</p> <p>The facts appear in the case of Ryon, Appellant, v. Starr, ante p. 310.</p> <p>Error assigned was the order of the court.</p>

<p>Mandamus — Legal right — Legal remedy — Practice, C. P.</p> <p>The remedy by mandamus is a strictly legal one; and the relator must establish a specific legal right as well as a want of a specific legal remedy.</p> <p>Mandamus — Quo warranto — Boroughs.</p> <p>Where a person claiming that the office of councilman of a borough had been vacated by reason of the removal of the member from the borough, has his own name placed on the official ballot by some method not prescribed by law, and at the ensuing election his name is voted for by a majority of the electors, he cannot maintain mandamus against the councilmen to compel his admission to office; and this is the ease although the petitipn for mandamus was not filed until there was an actual and admitted vacancy in the office created by the resignation of the previous member.</p>

<p>Appeal, No. 87, Jan. T., 1906, by defendant, from judgment of O. P. No. 5, Phila. Co., March T., 1903, No. 848, on verdict for plaintiff in case of Christine K. Murtland et al v. Joseph J. English.</p> <p>Appeal from justice of the peace in landlord and tenant proceedings. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $1,800, upon which the court entered the following judgment: “Judgment for plaintiff for possession of the premises and $1,800, the amount of the verdict.”</p> <p>Errors assigned were as follows :</p> <p>1. The learned court erred in instructing the jury “thatthe lease expired by its own limitation.”</p> <p>2. In discharging the rule for a new trial.</p> <p>3. In instructing the jury that the defendant became a tenant from year to year after the expiration of the term of five years provided for in the original letting and hiring.</p> <p>4. In not instructing the jury that defendant having held over after the end of, five years without notice amounts to an election by him to claim the privilege to hold the premises for five years, the extended term as provided in the lease.</p> <p>5. In not instructing the jury that the option in the lease for an extended term of five years was in favor of the lessee, and both parties having assented to it, the lessee holding over and paying the rent and the lessor accepting the rent for two years in the extended term amounted to an extension of the term of five years, as is provided in covenant nine of the lease.</p> <p>6. In not saying to the jury, if the landlord had a right to re-enter at the end of five years, because of the failure of the lessee to give notice, as provided in covenant nine of the lease, but thereafter accepted rent under the same covenants and upon the same terms, such acceptance of rent was a waiver of any right of forfeiture on the part of the lessor, and that the lessee became a tenant for the extended term of five years.</p> <p>7. In changing the verdict of the jury from a money verdict to a verdict as follows : “ Judgment for plaintiff for possession of the premises and $1,800, the amount of the verdict.”</p> <p>8. In not instructing the jury that the terms of the lease fixed the rental value of the property.</p> <p>9. In not finding as matter of law that the words in the lease, “ When and as soon as the term hereby created shall have expired by its own limitation,” must be held to mean after the expiration of the term of ten years as contemplated in the lease.</p> <p>10. In entering judgment for the plaintiff.</p>

Appeal, No. 231, Jan. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1905, No. 547, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bordentown Banking Company v. Rebecca Restein, trading as E. P. & L. Restein Co. Assumpsit on a promissory note.

<p>Appeal, No. 232, Jan. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1905, No. 4,247, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bordentown Banking Company v. John Sparhawk, Jr.</p>

<p>Wills — Gift to class or individuals — Intestacy.</p> <p>Testator gave life estates in his residuary estate to his wife and sister. He further directed as follows: “After the decease of both my said wife and sister, I direct my estate to be divided into two equal shares, one of the said shares I give to my uncle [naming him], and my aunt [naming her], absolutely. Should neither of them survive me, I then give said share to my cousins [naming two cousins on the maternal side], and the children of my deceased .cousin [naming another cousin on the maternal side], to be divided per stirpes. The other equal part of my estate after the death of my wife and sister, I give to be equally divided between my first cousins on my father’s side per capita.” The uncle and aunt mentioned were on the maternal side. The uncle and aunt, and one of the cousins named, died in testator’s lifetime. Held, that the cousins on the maternal side took individually, and not as a class, and that there was an intestacy as to the share of the cousin on the maternal side who died in the lifetime of the testator.</p>

Appeal, No. 350, Jan. T., 1906, by plaintiff, from decree of C. P. Fayette Co., No. 470, in Equity, refusing to grant a preliminary injunction in case of Frank Peifly v. The Mountain Water Supply Company. Bill in equity for an injunction. From the record it appeared that the second clause of the defendant company’s charter was as follows: “ 2.

Appeal, No. 181, Oct. T., 1905, by-plaintiff, from decree of C. P. Beaver Co., Dec. T., 1901, No. 13, dismissing bill in equity in case of Bridgewater Borough v. Beaver Valley Traction Company. Bill in equity for an injunction. Before Wallace, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of the court dismissing the bill.

<p>Appeal, No. 52, Oct. T., 1905, by defendants, from decree of C. P. Butler Co., March T., 1904, No. 1, on bill in equity in case of J. L. Purvis and L. O. Purvis, trading as S. G. Purvis & Company, v. L. C. Wick, Local No. 500, United Brotherhood of Carpenters and Joiners of America et al.</p> <p>Bill in equity for an injunction. Before Galbreath, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree :</p> <p>That the defendants (not including L. C. Wick) and each and every of them, their officers, committees, agents, employees, servants, members, associates, and all others that may act in concert with them, of by their direction, each and every one, be restrained and strictly enjoined from interfering and from combining, conspiring or attempting to interfere, for the purpose of doing injury to plaintiffs in their business, with the sale or contract .for sale by the plaintiffs of building materials by representing or causing to be represented in express or implied terms to any customer of the plaintiffs, or to any person or persons or corporation who might become customers of the plaintiffs, that such customers will suffer or are likely to suffer loss or trouble in their business for purchasing or continuing to purchase or contracting for the purchase of building materials from the plaintiffs; or' by intimidating or attempting to intimidate by threats, direct or indirect, express or implied, of loss or trouble in business, or otherwise, any persons or corporation who are now customers or who may hereafter become or desire to become customers of the plaintiffs; or from sending out to any person or persons or corporation who are now customers, or who may hereafter become or desire to become customers of the plaintiffs, through the mails, or delivering to them otherwise, may written or printed card, letter, circular or other notice, stating that members of the United Brotherhood of Carpenters and J oiners will not handle or work mill work or materials coming from mills which fail to comply with regulations of the Carpenters’ District Council and that the plaintiffs had failed to comply with an agreement of the planing mill association of Western Pennsylvania with the Carpenters District Council, or an agreement adopted by the Master Builders’ Association and said Council, and requesting such customers or prospective customers of the plaintiffs to have their mill work done by mills that operate under said agreement so that no controversy can arise on account of nonunion mill work, or from sending out to such customers or prospective customers of the plaintiffs any card, circular or other notice of similar character or purpose, directly or indirectly, or from writing or sending through the mails or otherwise, any written or printed card, circular, letter or other communication, conveying or intending to convey, to any customers or prospective customers of the plaintiffs that the plaintiffs are under the ban of Local No. 500, United Brotherhood of Carpenters and Joiners of America, or the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, or other trades union, or of similar import; or from attempting by any scheme, combination or conspiracy among themselves or with others, to annoy, hinder or interfere with or prevent any person or persons or corporation from purchasing building materials, or making contracts for the purchase of the same, from the plaintiffs, and from any and all acts, and from the use of any and all ways, means and methods with a purpose to injure plaintiffs in their business, which (acts, ways, means and methods) by putting or attempting to put any person or persons or corporation in fear of loss or trouble will tend to hinder, impede or obstruct the plaintiffs from making sale, or making contracts for sale, of building materials; or from interfering and from combining, conspiring, or attempting to interfere, for said purpose, with the business of the plaintiffs, by the enforcement, under pain of penalties and forfeitures, of rule 7 of the working rules adopted for the government of local unions under the jurisdiction of the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters, and Joiners of America, which provides that, “ No member shall be allowed to work any material coming from any non-union mill and shall comply with this rule when the local unions are so informed and instructed by the district council,” or by other like coercive rules, the natural and necessary effect of which would be to deter the members of said trades unions or others from working upon buildings or other constructions to which the plaintiffs were furnishing materials, or contractors, builders or owners of said buildings or other constructions, or others, from purchasing materials from the plaintiffs; or from interfering and from combining, conspiring, or attempting to interfere with the business of the plaintiffs for the purpose of injuring them in their business, by the enforcement of fines or forfeitures, suspension or expulsion from membership in any of the locals within the jurisdiction of the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, for failure to observe rule 7, of the working rules adopted for the government of local unions under the jurisdiction of said Carpenters’ District council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, or for failure to observe any of the rules adopted and in force in that union, or that may hereafter be adopted, which would by coercion of said members interfere with the business of the plaintiffs, or from otherwise restraining, coercing and intimidating any one or more of the members of said union for said purpose from working for any' contractors, builders, owners or other persons because they are doing or desire to do business with the plaintiffs ; or from interfering and from combining, conspiring or attempting to interfere with the business of the plaintiffs by the issue of union labels to any mill within the jurisdiction of the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, such issue of labels being made for the purpose of interfering with the business of the plaintiffs. From the doing of any and all of which acts and things, for the purpose of injuring plaintiffs in their business and thereby compelling them to unionize their mill or have such injury continued, the said defendants (not including L. C. Wick) and each and every of them, their officers, committees, agents, employees, servants, members, associates and all others that may act in concert with them, or by their direction, are hereby enjoined and restrained.</p> <p>The decree further assessed $1,770 damages against the defendants, and in favor of the plaintiffs.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Appeal, No. 366, Jan. T., 1904, by-Joseph Stelwagon et al., from decree of O. C. Phila. Co., April T., 1880, No. 257, dismissing exceptions to adjudication in Estate of Joseph H. Duckett, deceased.</p> <p>Exceptions to adjudication.</p> <p>The material portions of the will of the testator were as follows:</p> <p>“ 3. I give and bequeath to my daughter, Sarah Duckett, the sum of $1,000 to be paid to her immediately after my decease as an equivalent for gifts by me to my other children made during my lifetime and, in the event of my said daughter Sarah Duckett dying before me leaving issue, then the same to be paid to such children of the said Sarah Duckett as may then be living equally share and share alike, but if the said Sarah Duckett dies before me without issue then the said sum to become part of my residuary estate.</p> <p>“ 4. I give devise and bequeath unto my sister Mrs. Elizabeth Wilson — widow—the house and lot of ground situate No. 1,228 Palethrop street in said city to use, occupy and enjoy the same for and during the term of her natural life, also to let and demise the same for said period and from and immediately after her decease unto her daughter Rosamond Wilson for her sole and separate use her heirs and assigns forever; but in the event of the said Rosamond dying before the decease of her mother, Elizabeth Wilson, leaving issue living, then to such issue their heirs and assigns forever absolutely. And if the said Rosamond should die without leaving any such child or children to survive her then unto my children or the issue of my children as may be living, their heirs and assigns absolutely.</p> <p>“ 5. All the rest, residue and remainder of my estate and property, real personal and mixed whatsoever and wheresoever whereof I may die seized and possessed, or to which I may be in any manner entitled at the period of my decease I do give, devise and bequeath unto my executors hereinafter named and the survivor of them and the heirs and assigns of such survivor forever to hold the same in trust to collect and receive the income, interest and dividends thereof and pay over the same from time to time as received in manner following, viz.: One-third of the annual net profits and income thereof to my said wife Harriet E. Duckett for and during all the term of her natural life and the remaining two-thirds of the annual net profits and income thereof to be divided equally between my three children, viz., Margaret W. Stel wagon (formerly Duckett), wife of Joseph Stel wagon of said city, paper manufacturer, Sarah Duckett, and William Henry Duckett — for and during all the terms of their natural lives — except the share thereof to the said William Henry Duckett which is to be divided as follows, viz., two-thirds of said one-third share of the residue of said annual net profits and income unto the said William Henry Duckett for and during all the term of his natural life. And the remaining one-third of said one-third share of the residue of said annual net profits and income unto my two granddaughters Harriet and Laura Duckett, children of the said William Henry Duckett to be applied .in half yearly payments to and for the support, maintenance and education of my said granddaughters in equal shares during their minority and afterwards as they respectively attain majority to pay the said proportions of thé residue of the said income interest and dividends to them in equal shares as received for and during all the term of each of their natural lives and in the event of either of my said granddaughters dying before their said father, then to pay the same to the survivor of them and in the event of the father of my said granddaughters surviving both of them to pay the whole of the said one-third of the residue of the net annual income and profits thereof unto their said father William Henry Duckett for and during all the term of his natural life.</p> <p>“ And from and after the decease of my said wife Harriet E. Duckett and of my children, Margaret W. Stel wagon, William Henry Duckett and Sarah Uuekett then to hold all the said estate and property in further trust upon the uses and trusts following, that is to say: to and for the only proper use and behoof of the lawful issue of my said children, Margaret W. Stel wagon, William Henry Duckett and Sarah Duckett their heirs and assigns forever share and share alike, and in case there shall not be any such lawful issue then the same to be divided between my nearest of kin their heirs and assigns share and share alike.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Res adjudicóla — Decree of orphans’ court — Refusal to surcharge — Parties— Injunction.</p> <p>Where certain of the distributees under a will have asked the orphans’ court to surcharge the executor and trustee of the will with failure to collect from another distributee rent and damages for use and occupation of real estate belonging to the decedent, and it is sought through the surcharge to diminish the distributee’s share by the amount of the rent and damages, and it appears that the distributee actively resisted the surcharge, the decree of the orphans’ court refusing the surcharge is final and conclusive, and a suit at law brought by the other distributees in the name of, and with the permission of, the trustee will be properly enjoined by the orphans’ court.</p>

<p>Corporations — Assignment of property and business to corporation — Agreement to pay debts — Evidence.</p> <p>Where a person indebted assigns all of his property and business to a corporation in consideration of the latter paying his debt, a creditor of the assignor may maintain an action against the corporation, and may prove the assumption of the debt by the corporation by showing that the corporation paid other debts of the assignor, had entered in its books his own debt as a liability against the company, and had made payments on account of it.</p>

<p>Appeal, No. 298, Jan. T., 1905, by plaintiff, from judgment of C. P. Del. Co., Dec. T., 1901, No. 5, on verdict for William Provost, Jr., Garnishee, in case of The Shannon Manufacturing Company v. George W. McCaulley & Son Company, defendant, and William Provost, Jr., Garnishee.</p> <p>Issue in foreign attachment. Before Johnson, P. 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>[Now, the court says to you that if you believe 'from all the evidence in the case that prior to December 4, 1901, that the parties or the persons who were the owners of this contract and entitled to receive the money due on it from Provost did in good faith and for a proper consideration, a valuable consideration, did transfer, assign or make over to Fender this contract, in good faith, and for a valuable consideration — the persons who were the owners of it and entitled to it — then the plaintiff cannot recover, if that transaction was honest and fair and was prior to December 4, 1901. That is the great question in this cause, and it will be for you to say under all the evidence in the case, who it was at- the time of the transfer, if it was made to Fender, was the owner of this contract, and entitled to receive the consideration due upon it, and whether they did transfer, assign and turn over to Fender in good faith for a valuable consideration that contract. If they did, the plaintiff cannot recover. If they did not, and you shall find that this corporation was the owner of this contract; that if was turned over to them by the firm; that they were its owners and entitled to receive the money due under it, then the plaintiff is entitled to recover, unless you find that after it had been vested in them, they had transferred it to Fender prior to December 4.] [2]</p> <p>[I think the court ought to call the jury’s attention to the fact, because it is an important one bearing upon the question as to who the jury shall find were the owners of this contract, and entitled to receive the money. The uncontradicted evidence is that, so far as the McCaulleys were concerned, whether the firm or the corporation, the two persons, and the only two persons, so far as has been disclosed, that had anything to do with it was George W. McCaulley and Clarence, his son. It was they who had signed the contract originally; it was they who had dictated the letters bearing the name of Son Company or written; it was they who had dictated the letters, or written them, after October bearing the name of the firm, and it was they who executed the paper, if it was executed, on November 5, and it was they who had the conversation and the talk relative to the terms upon which Mr. Fender should take this contract. And you will say whether, under all the circumstances of the case, they were the owners as the representatives of the firm or of the corporation.] [8]</p> <p>[So that you will see that whatever the relation that the firm bore, or that the corporation bore, the whole of the business was carried on, so far as McCaulley & Son were concerned by George W. McCaulley and Clarence McCaulley, two of the members, the only two members of the firm, and two out of the three members of the corporation, one of whom was president of it, the father, George W., and Clarence, secretary and treasury. So that the whole question will be for you to say whether or not that transfer made, if it was made to Fender, on or about prior to December 4, was such a turning over as vested the right to control this contract and the moneys arising out of it in the hands of Fender. If it did, the' plaintiff cannot recover in the judgment of the court.] [4]</p> <p>Plaintiff presented this point:</p> <p>1. If the jury believe that in April, 1901, the McCaulley firm turned over the Provost contract to the McCaulley company to be performed by the company, and the company took said contract and performed it, and that Provost accepted the performance of said contract by the company, and had in his hands on December 4, 1901, $4,350, the balance due for said performance, the verdict should be in favor of the plaintiff, finding in the hands of William Provost, the sum of $4,350, with interest from May 17, 1904, at the rate of two per cent per annum, with leave to the court to mould the judgment. Answer: That is affirmed, unless you find after April, 1901, and before December 4, 1901, the owner of this contract and those entitled to receive the money due under it, in good faith parted with their interest by assigning, transferring or turning it over to James C. Fender for a valuable and honest consideration. [5]</p> <p>Verdict and judgment for garnishee. Plaintiff appealed.</p> <p>Errors assigned were (2-5) above instructions, quoting them.</p>

Appeal, No. 368, Jan. T., 1905, by defendant, from judgment of C. P. Del. Co., June T., 1904, No. 280, on verdict for plaintiff in case of Thomas Doyle and Fannie Doyle, his wife, v. Chester Traction Company. Trespass to recover damages for personal injuries. Before Johnson, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff Thomas Doyle for $568.89 and for Fannie Doyle for $3,371.12. Defendant appealed.

<p>Negligence — Boroughs—Defect in sidewalk — Notice—Nonsuit.</p> <p>In an action against a borough to recover damages for personal injuries caused by a defect in the cover of a gutter, a nonsuit is properly entered where it appears that the defect in the cover was not structural nor apparent to persons using the pavement; that no one had seen the defect when the cover was in ordinary use; that the borough had no actual notice of it, and there was nothing in the case from which notice to the borough could be imputed.</p> <p>Borough authorities are not required to seek for defects in sidewalks, but only to be vigilant to observe them by the exercise of reasonable supervision.</p>

<p>Appeal, No. 370, Jan. T., 1905, by-plaintiff, from order of C. P. Schuylkill Co., May T., 1900, No. 204, refusing to take off nonsuit in case of William Mankewicz v. Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for personal- injuries. Before Shay, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 150, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dee. T., 1904, No. 1,695, for defendant on demurrer to statement in case of John E. Martin v. Emma R. Martin, Luther Martin, Jr., Robert W. Martin and Fidelity Trust Company, a corporation of the state of Pennsylvania, coexecutors and trustees under the. last will and testament of Luther Martin, deceased; the said Emma R. Martin, Luther Martin, Jr., Robert W. Martin, Ida M. Evans, Sophie M. Stelwagon, Emma M. Love and Alice M. Meredith, legatees and devisees under the last will and testament of Luther Martin, deceased.</p> <p>Assumpsit on a foreign judgment.</p> <p>Demurrer to statement.</p> <p>In addition to the facts set forth in the opinion of the Supreme Court, it appeared that the portion of the will of Hugh Martin, Sr., deceased, bearing upon the question involved was as follows :</p> <p>“ I give, devise and bequeath after the death of my said wife, Sophie, unto my sons Luther Martin and Edward L. Martin, and to the survivor of them one equal sixth part or share of my estate remaining after the payment of the legacies and bequests hereinbefore mentioned, both real and personal to have and to hold said equal sixth part or share unto said Luther Martin and Edward L. Martin and the survivor of them his heirs ex-editors, and administrators, as joint tenants and not as tenants in common, to and for the following intents and purposes, that is to say :etc.</p> <p>The court entered judgment for the defendants on the demurrer.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 338, Jan. T., 1905, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1904, No. 508, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Camden National Bank of Camden, N. J., v. Fries-Breslin- Company.</p> <p>Assumpsit on a foreign attachment. Before Wiltbank, J.</p> <p>Judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 268, Jan. T., 1905, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1900, No. 1,657, M. L. D. overruling exceptions to referee’s report in case of De La Vergne Refrigerating Machine Company v. Theodore Kolischer, Reputed Owner and Contractor. Scire facias sur mechanic’s lien. Exceptions to report of M. Hampton Todd, Esq., referee. The facts are stated in the opinion of the Supreme Court.

<p>Malicious prosecution — Probable cause — Malice—Reversal of conviction.</p> <p>A verdict of guilty returned by a jury, then set aside by the court, a new trial granted followed by a second trial, and a verdict of not guilty, is not conclusive evidence of probable cause.</p> <p>Where one commences a criminal prosecution for the purpose of compelling his debtor to pay a just debt, it is prima facie evidence of want of probable cause and of malice, and shifts the burden of showing it was not so, on the defendant.</p>

Appeal, No. 145, Jan. T., 1905, by plaintiff, from order of O. P. No. 3, Phila. Co., June T., 1901, No. 3,608, refusing to take off nonsuit in case of Samuel Stokes v. Pennsylvania Railroad Company. Trespass to recover damages for injuries to land.

Appeal, No. 191, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1902, No. 659, on verdict for plaintiffs in case of Ezra S. Bartlett and George W. Shepherd, Jr., copartners, trading as Bartlett & Shepherd, v. Jacob Rothschild. Assumpsit to enforce personal liability of an agent of a foreign insurance company under the Act of May 1, 1876, sec. 48, P. L. 53. Before Davis, J. The facts are stated in the opinion of the Supreme Court.

<p>Appeals, Nos. 196 and 197, Jan. T., 1905, by Importers’ and Traders’ National Bank from decree of C. P. No. 1, Phila. Co., March T., 1899, No. 760, on bill in equity in cases of Elizabeth J. Lyons v. Samuel Simpson and the Importers’ and Traders’ National Bank of New York and the Importers’ and Traders’ National Bank of New York v. Elizabeth J. Lyons.</p> <p>Bill of peace.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 273, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Go., June T., 1904, No. 631, on verdict for plaintiff in case of William Hay-man v. The Philadelphia and Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned among others was in not entering judgment for defendant non obstante veredicto.</p>

<p>Will — Devise—Heirs—Remainder.</p> <p>Testator devised a dwelling-house to his wife “as long as she remains my widow, in case she marries or death it will go to my son, or his lawful heirs. If he should die without any lawful heirs then it shall go to my 'brother’s children.” The son died without issue leaving a will, and subsequently the widow of testator died. Held,, that the children of testator’s brother took the estate.</p>

Appeal, No. 308, Jan. T., 1905, by Olive B. Pratt et al., from decree of C. P. No. 5, Phila. Co., March T., 1904, No. 4,582, dismissing exceptions to report of auditor in Estate of Lucious S. Beaumont. Exceptions to report of John M. Scott, Esq., auditor. The facts are stated in the opinion of the Supreme Court. .Error assigned was in dismissing exceptions to auditor’s report.

<p>Trusts and trustees — Negligence—Fraud—Surcharge—Will.</p> <p>Where a will appoints two trustees, and directs that the estate shall be invested in a particular manner, .and one .of the trustees takes the estate and embezzles it, the other trustee' will be- liable for the loss, if it appears •that he made ho effort to' invest, the estate in the manner directed by the will, and merely relied upon the statement of the other trustee that it had been So invested.</p>

Appeal, No. 344, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1902, No. 1,113, on verdict for plaintiff in ease of Richard C. Snyder, Trustee of the Estate-of James Henry, Bankrupt, v. Martin W. Bougher. Assumpsit to recover for a loss on a resale by a trustee in bankruptcy.

Appeal, No. 100, Jan. T., 1905, by plaintiff, from order of O. P. No. 5, Pbila. Co., March T., 1908, No. 1,822, refusing to take off nonsuit in case of William P. Hotchkin v. John B. Erdrich, trading as Andrew Erdrich & Son. Trespass to recover damages for personal injuries. Before Davis, J. The facts are stated in the opinion of 'the.

<p>Appeal, No. 286, Jan. T., 1905, by John Lloyd, from order of C. P. No. 2, Pliila. Co., June T.., 1904, No. 3,929, •compelling, witness to.answer question in case of International Coal Mining Company v. Pennsylvania Railroad -Company.</p> <p>Assumpsit to recover rebates.</p> <p>From the record it appeared that while an action was pending, plaintiff entered a rule to take depositions on John Lloyd on eight days’notice. At a meeting held in pursuance of the .rule ■ Lloyd was asked whether any officer-or director of the Pennsylvania Railroad Company was a stockholder in the Columbia Coal Company. The witness refused to answer the question. The court subsequently made an order directing him to answer the question propounded to him.</p> <p>Error assigned was the above order of the court.</p>

<p>Appeals — Interlocutory order — Evidence—Rule for an attachment.</p> <p>An order under a rule for an attachment against a witness directing that the proceedings shall stand over until a day named, in order to give the witness an opportunity to testify or to come into court, is not a final order from which an appeal lies, inasmuch as the appellant was mot directed by the order to answer the question propounded to him.</p>

Appeal, No. 172, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1903, No. 4,463, on verdict for defendant in case of Herman Timler v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Davis, J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

<p>Evidence — Declarations—Telephone—Identification of person speaking over telephone.</p> <p>In an action by a wife against another woman for the alienation of the affections of plaintiff’s husband, plaintiff sought to prove declarations of the defendant made to herself over the telephone. Plaintiff called her young son to testify that the phone hung in a bathroom where he could hear everything that was said while his mother held the receiver. He testified that he heard the defendant announce her name and start an angry conversation. On cross-examination he admitted that he did not know the defendant, had never seen her, and had never heard her voice before, unless it was she who had earlier in the same day attempted to call up the plaintiff on the ’ phone. The evidence was ruled out. Defendant was then called on cross-examination, and was asked whether she had called up the plaintiff on the day designated by the boy. She admitted one conversation with the plaintiff over the ’ phone, but asserted her inability to fix the date when it occurred, hour, day or month. She also admitted that the conversation was an angry one. The boy was subsequently recalled, and permitted to testify as to the alleged statements of defendant over the ’ phone. Held, that the defendant’s voice was not sufficiently identified, and that it was error to permit the boy to testify as to what he heard.</p> <p>Testimony may be rejected which appears to be founded on data so scanty that the witness’s alleged inferences from them may be pronounced either absurd or extreme.</p> <p>Husband and wife — A lienation of husband’s affections — Damages—Evidence.</p> <p>In an action by a wife against another woman to recover damages for the alienation of her husband’s affections, where the plaintiff shows as the basis of damage the probable annual expenditure required for the support of plaintiff’s family in the style in which they had been living before the cause of action arose, the defendant may show that the plaintiff had an income of her own which had been applied towards the costs of the family’s living, and that the actual loss of support was the difference between the total and the plaintiff’s contribution.</p> <p>Evidence — Harmless error — Reversal.</p> <p>The admission of evidence manifestly harmless is no ground for reversal, even if it be erroneous to admit it.</p>

<p>Mortgage — Release of portion of mortgaged, premises — Discharge of mortgagee.</p> <p>Where a mortgagee after a conveyance of the mortgaged premises by the mortgagor, releases from the lien of the mortgage a portion of the premises without the knowledge or consent of the mortgagor, the latter is released from any loss to the mortgagee resulting from a deficiency in the proceeds of a subsequent sale in foreclosure proceedings. In such a case it is immaterial that the deed of the mortgagor of which the mortgagee had no knowledge, was not made subject to the mortgage, and contained a covenant against incumbrances.</p>

<p>Appeal, No. 139, Jan. T., 1905, by defendant, from judgment of G. P. Lackawanna Co., Sept. T., 1903, No. 934, on verdict for plaintiff in case of Daisy E.</p> <p>Lingle v. Scranton Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Plaintiff presented, inter alia, the following point:</p> <p>14. Of course if you believe the testimony of Doctor Brewster, Mr. Donlin, Mr. Piper, the motorman and conductor and the other witnesses to the accident called by the defendant, then a case is presented of a passenger undertaking to leave a moving car without waiting for it to stop and she was plainly guilty of contributory negligence and of course cannot recover. Answer: I cannot affirm that point without qualifying it in this way: The point assumes that the motorman testified to the circumstances of the accident and so far as the “ other witnesses ” to the accident are concerned, the point does not specify them. I do not remember that the motorman testified to the circumstances of the accident as I understand the term “ circumstances of the accident.” I only affirm it with this qualification, that if you believe these witnesses that are specified and the other witnesses or any of them on the part of the defendant who testified that this lady got off of the car while it was in motion, if you believe any of the witnesses who did so testify, believe that they know what they are talking about, are speaking from accurate knowledge, then of course it would warrant you in so finding because the plaintiff could not in that state of evidence recover and with that qualification the point is affirmed. [12]</p> <p>Verdict and judgment for plaintiff for $1,775. Defendant appealed.</p> <p>Errors assigned among others were (8) that the charge as a whole was unfair and biased, quoting the whole charge and (12) answer to point as above, quoting it.</p>

<p>Sewers — Ordinance—Viewers—Damages.</p> <p>Where a city ordinance for the construction of a sewer fixes the proportions of the costs of construction which are to be paid respectively by the city and the abutting landowners, and the ordinance is made part of the petition for the appointment of viewers, and the viewers in assessing the damages name the exact amount set forth in the ordinance even to the fraction of dollars, the report of the viewers should be set aside. In such a ease the parties in interest are entitled to have the judgment of the viewers as to the damages and benefits and the cost of the sewer, and are not compelled to accept the judgment of the city engineer, or of the city councils on the subject.</p> <p>A provision in a city ordinance fixing the cost of a sewer and the amount of benefits to be assessed against the city and the property owners respectively, does not render the whole ordinance invalid. Such a provision may be treated as surplusage.</p>

<p>Public officers — County auditors — County controller — Compensation of county treasurer.</p> <p>The duties and powers of county auditors and county controllers are substantially the same, and where a controller is substituted for county auditors, he performs the duties of the latter under section 41 of the Act of April 15, 1834, P. L. 537, which requires county auditors to approve the compensation of the county treasurer as fixed by the county commissioners.</p> <p>Under the Act of April 15, 1834, P. L. 537, sec. 41, which provides that the county treasurer shall receive as his compensation “a certain amount per cent on all moneys received and paid by him which rate shall be settled from time to time by the county commissioners with the approbation of the county auditors,” a fixing of the compensation each year is a judicious exercise of the power conferred by the act.</p> <p>Where the county commissioners and the county controller in joint session resolve that “the county treasurer be allowed the same commissions for the ensuing year as that allowed the past year,” the compensation so fixed cannot be extended beyond the year named without additional action by the county commissioners and the county controller. If the commissioners and controller fail or neglect to fix a rate of compensation after the expiration of the year, the county treasurer has his remedy under the Act of April 16, 1875, P. L. 54, by appeal to the common pleas, and this remedy is exclusive.</p>

<p>Appeal, No. 343, Jan. T., 1905, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1903, No. 8, dismissing bill in equity in case of John J. Brown et al. v. John M. Kemmerer et al.</p> <p>Bill in equity for discovery and an account. Before Edwards, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Taxation — Collateral inheritance tax — Decedents’ estates — Will—Compromise.</p> <p>An agreement to set aside a will and to make distribution in accordance with its provisions will not relieve legacies passing to collaterals from the collateral inheritance tax; but money paid in good faith in compromise of threatened litigation is not subject to the tax.</p> <p>Where certain legatees under a will claim that the provision for their benefit was in discharge of an obligation of the decedent, and the heirs deny the validity of the writing as a will because of the want of testamentary capacity, and the parties without fraud or collusion make-a compromise by which the will is set aside and the legatees are allowed a part of their demands, the payment made to the legatees is not subject to the collateral tax. In such a case payments made to other legatees who .had no demand against the estate, are also relieved from the tax.</p>

<p>Appeal, No. 34, Jan. T., 1906, by plaintiffs, from decree of C. P. Berks Go., dismissing bill in equity in case of George M. Folk, John T. Balsley, Edward W. Madden and W. H. Fisher v. State Capital Savings and Loan Association.</p> <p>Bill in equity for an injunction.</p> <p>Endlich, J., filed the following opinion:</p> <p>The plaintiff, suing for himself and others in like interest who may join him, is the holder of stock in the defendant building association, incorporated under Act April 29, 1874, P. L. 73. The par value of its stock is $100 per share. The ordinary installment stock issued by the association is to be paid for until matured by monthly dues of fifty cents. The by-laws, however, in article 8, provide for prepayment of the par value of stock subscribed for at the time of subscription and for its issuance upon such prepayment as “ Full Paid Stock” bearing dividends not exceeding five per cent per annum payable out of, but not otherwise participating in, the profits of the corporate business. In the same.article provision is made for voluntary withdrawals of stock, a definite and invariable charge thereon per share being established during the first and second years, which, as the answer explains, is in lieu of and fairly approximates the average share of expenses above earnings apportionable during that period to each share. In the prosecution and extension of its business throughout the state, the association employs agents to solicit and receive stock subscriptions and to collect and receipt for payments due the association-, allowing them a reasonable compensation for their services. It is contended by the plaintiff that (1) the issuance of full paid dividend bearing stock, (2) the deduction of a withdrawal fee, and (3) the employment of paid solicitors and collectors are contrary to law and prejudicial to the interests of the plaintiff and other shareholders in the association, and that its corporate existence will be jeopardized by the continuance of these practices. Upon these grounds it is prayed that they be restrained by injunction. The cause was set down for hearing and heard upon bill and answer.</p> <p>1. The right of a building association to issue paid up dividend bearing stock has been put upon express statutory basis in England: see Acts 37 & 38 Yict. Ch. 42, sec. 13; and in Tennessee: see Wilson v. Parvin, 119 Fed. Repr. 652; 56 C. C. A. 268; Kirklin v. Savings & Loan Ass’n, 107 Ga. 313 (33 S. E. Repr. 83). It is denied in Illinois as contravening a positive statutory direction that stock “ shall be payable in .... periodical installments: ” see Rhodes v. Savings & Loan Co., 173 111. 621 (50 N. E. Repr. 998), and in North Carolina as inconsistent with the building association system as there legalized: see Meroney v. B. & L. Ass’n', 116 N. C. 882 (21 S. E. Repr. 924). It has been affirmed as existing in the absence of any statutory provision expressly authorizing or prohibiting it, in England (under a statute previous to that above referred to) : In re Guardian Permanent Benefit Bldg. Soc. L. R., 23 Ch. D. 440, sustained on appeal to the House of Lords ; Murray v. Scott L. R., 9 App. Cas. 519; in Alabama: Johnson v. Bldg., etc., Ass’n, 125 Ala. 465 (28 So. Repr. 2); Bell v. B. & L Ass’n, 140 Ala. 371 (37 So. Repr. 237) ; in Iowa: Tootle v. Singer, 118 la. 533 (88 N. W. Repr. 446), in Missouri: Hohenshell v. S. & L. Ass’n, 140 Mo. 566 (41 S. W. Repr. 948) ; State v. Loan, etc., Ass’n, 142 Mo. 325 (41 S. W. Repr. 916) ; Latimer v. Loan, etc., Co., 81 Fed. Repr. 776; and in New York: People v. Preston, 140 N. Y. 549 (35 N. E. Repr. 979). In Pennsylvania, in Criswell’s App., 100 Pa. 488, on distribution of the assets of an insolvent building association, the holders of “ cash matured stock, for which payment was made in advance,” were adjudged to come in pari passu with other stockholders (that much being decided also in Wisconsin) : Leahy v. Bldg., etc., Ass’n, 100 Wis. 555 (76 N. W. Repr. 625), and in Bldg. & L. Ass’n v. Linhart, 4 Pa. Dist. Rep. 620, it was held by Judge McIlvaine, that a building association incorporated under the act of 1874 has the power to issue, under its by-laws, paid up stock carrying a fixed annual dividend. The same view was expressed by Mr. Attorney General Elkin in an opinion reported, 8 Pa. Dist. Rep. 567, whilst a contrary view is intimated by Mr. Attorney General Carson in a recent opinion reported, 14 Pa. Dist. Rep. 80.</p> <p>The act of 1874, with its supplements, provides for the incorporation and regulation of corporations generally. It declares, in section 1, that “ each of them ” shall by virtue of its existence as a corporation thereunder have certain powers, “ unless otherwise specially provided.” Following this section, with its enumeration in broadly comprehensive terms of powers thus common to all corporations, comes the division of these into classes, building associations being included in the second class, and various provisions of a more or less general character regulating the mode and procedure of incorporation, the details of organization, conduct of business, etc. These provisions in turn are succeeded by a series of sections each containing special directions relative to a particular species of corporation, among them section 37 relating to building associations. This section has been modified and. added to from time to time by later enactments, but in its essentials remains unchanged. Like all the other special provisions concerning particular corporations, those dealing with building associations, whether contained in section 37 as originally enacted or incorporated in or added to it by subsequent legislation, are of course to be read as part, and in connection with the general provisions, of the act of 1874. They were not intended and.cannot be properly understood as denying or limiting any of the powers conferred upon corporations generally except in so far as the subject-matter of those powers has been specifically dealt with in such a way as to expressly negative or necessarily imply a curtailment of them- — as, e. g., concerning the purchase of real estate, the borrowing of money, the measure of fines, and the like. Apart from directions of this sort, the specific provisions on the subject of building associations are rather of an enlarging, enabling character, conceding to them exceptional powers by no means common to corporations generally and giving rise to no implication of an intent to deprive building associations of rights incidental, in the absence of special provisions, to their status as corporations under the general provisions of the act of 1874, and consistent with the character and objects of building associations generally. It is, indeed, to be noted that the legislature has attempted no definition of what constitutes a building association. It has assumed that certain features and methods are essential to it, and there is no room for doubt that without them no corporation, whatever its label, can claim to be a building association. But it has not excluded the possibility that, consistently with these essential features, the legitimate development of the business of these associations may add others which, at the date of the enactment, were not foreseen and against which, therefore, it is not to be taken as implying any prohibition. Thus it is well understood to be one of the differentiating characteristics of the building association scheme that it affords an opportunity to shareholders to subscribe for stock payable in small periodical installments. A society discarding this feature could hardly be looked upon as within any definition of building associations. In a society, however, which retains this feature, a provision enabling those who may wish to do so to acquit themselves at once of liability for periodical payments by an advance payment at the time of the subscription of the fixed par value of the shares subscribed by thém, is manifestly not to be declared a departure from its fundamental purpose. It is but the affording of an opportunity for voluntarily anticipating a result eventually contemplated. Anil if upon such advance payment, the society agrees to allow to the paid up shareholder a periodical dividend reasonably within the margin of profit shown by experience to be likely to accrue to the society on the sum thus paid, which dividend is understood to be payable only out of the profits earned and in lieu of any share therein upon winding up, it is not clear how the principle of mutuality of profit and loss as among the whole number of shareholders is at all violated. It is settled that this principle justifies and requires dereliction in the payment of dues to be made good by fines, and that the lawful measure of theser ordinarily is the real damage sustained by the society through the failure of payment, plus such slight excess as will make it more profitable for the member to pay promptly than to lag behind: Lynn v.' B. & L. Ass’n, 117 Pa. 1, and the Act April 10,1879, P. L. 16, section 6, has accordingly fixed the maximum fine at two per cent per month on all arrearages. If, however, the principle of mutuality requires compensation to the society by the member for deferring payment, it would seem equally to justify compensation by the society to the member prepaying. Nor ought the importance of this element in building associations to be overlooked. Doubtless it was originally supposed that every member would eventually become a borrower, and some accepted doctrines of building association law are traceable to that theory. Practically there never was a time when building associations generally could get along without a' considerable nonborrowing constituency, simply because accumulations would have been too slow to wait for. The mere investor, therefore, however inferior in merit, was always needed. He lias become more and more indispensable as the opportunities for borrowing money have multiplied, the rates of interest gone down, and the terms of repayment offered outside of building associations to borrowers become more flexible and easy. When interest ruled high and the small borrower had difficulty in finding a lender upon property affording a narrow margin of security and liquidation of the debt piecemeal was possible only in building associations, their loans were eagerly sought, obtained at high premiums and supplied out of a comparatively slender stock of cash; and profits were correspondingly great. But all this has changed.' Premiums amount to very little. Profits are small on individual transactions, mounting up only where the aggregate of the transactions is considerable. Partly in deference to this circumstance the Act June 4, 1901, P. L. 403, permits loans, with all the incidents of building association loans, to be made not only - to members but also to outsiders willing to become members if advances are granted to them. To accommodate borrowers in sufficient numbers, however, the associations are under a necessity to have on hand a greater stock of cash. As much as fourteen years ago the legislature felt called upon by express enactment to sanction and at the same time to restrain within safe limits the practice of building associations of borrowing money wherewith to meet applications for loans in excess of available accumulations : Act June 2, 1891, P. L. 174, amended by Act June 25, 1895, P. L. 303. The device of issuing paid up stock bearing a fixed dividend was but a means of inducing investors to become members, of putting into the hands of the associations the larger funds demanded by altered conditions, and of avoiding, to some extent if not altogether, the haphazard, expensive and perilous expedient of temporary loans from parties having no interest in the proper and economical management of the corporate affairs. At the bottom of it all there would seem to be real necessity and sound policy. The possible danger from over-accumulation is guarded against by the statute authorizing by-law provisions for involuntar}' withdrawals: Act April 10, 1879, P. L. 16, section 3, and in the case of this defendant by a by-law empowering the directors to discontinue the issuance of stock. Neither is it alleged, nor does it appear that an allowance of five per cent upon prepaid stock is unreasonable or disproportionate to the general earnings of the association. That stock participates in no other way in the profits of the business. Even to that extent it participates only if the profits are sufficient to pay the dividend. In case of disaster it is entitled to no preference upon distribution. The installment stock on the other hand shares-in the net earnings upon the paid up stock and in the event of insolvency comes in pari passu with it. It would seem in view of all this that there can be no criticism on the score of reasonableness in an arrangement whereby, so long as the association is a going concern, the paid up shareholder is secured a portion of the current profit's up to five per cent upon the sum advanced by him. There is no allegation that it is either more or less than the holders of installment stock are likely to realize. The allowance made by the association upon voluntary withdrawals considered in the light of its averments on that subject in the answer would indicate that the two classes of stock are on the long run very much in the same case.</p> <p>Beyond these mere suggestions it will not be attempted to add anything to the general discussion of this subject by that profound lawyer and great judge, Sir George Jessel, M. R., in re Guardian Permanent Benefit Bldg. Soc. L. R., 23 Gh. D. 440, and by the distinguished judges speaking for their respective courts in the other cases above cited as substantially in line with it. Neither is it needful to restate, by way of excerpts, necessarily lengthy, from these various decisions the reasoning upon which they are severally based. It is enough to say that they sufficiently stand upon common ground and agree in their 'results to furnish authority of a very high and persuasive order for holding that the acceptance of prepayment of stock and the issuance thereupon of full paid dividend bearing stock is in no proper sense a borrowing of money (see to the same effect also Coltrane v. Blake, 113 Fed. Rep. 785; 51 C. C. A. 457), that; remembering that a building association cannot successfully perform its intended functions without members who are simply investors and not borrowers, its power to aid the latter class of members, and thus the main purpose of its creation, will be promoted by attracting investing members capable of putting larger sums at the society’s disposal than can be speedily gathered by means of periodical payments alone; that the allowance of a fixed dividend upon such paid up stock out of the profits of the corporate business is a reasonable incident to its issuance, just to both classes of shareholders and not calculated to give either an undue advantage over the other; that on the contrary the practical effect of the concurrent issuance of both installment and full paid stock is likely to prove beneficial to both classes of shareholders; that no essential characteristic of the building association scheme can be regarded as forbidding and no essential purpose of it as defeated by this device; that it is contrary to no accepted rule of policy applicable to or involved in the nature of building associations ; and that it is not excluded by statutory provisions in terms authorizing and regulating operations on the footing of installment stock, but not clearly confining associations thereto or expressly prohibiting any other. And it is to be noted that with this view every adjudicated case involving the point under discussion appears to be in harmony, except perhaps the one above referred to decided in North Carolina.</p> <p>Objections on the score of policy, consistency, etc., being out of the way, i. e., it being apparent that in the absence of any difficulty arising from statutory limitations the ordinary nature and powers of building associations as generally understood include the right here questioned, the inquiry in this case recurs to the terms of the act of 1874 and its supplements. Is there anything in these amounting to a special express or implied prohibition against their issuing, besides installment stock, full paid stock bearing dividends at a fixed rate payable out of, and not further participating in profits ? There is no question here of the right to issue preferred stock. There is no by-law authorizing that to be done and no attempt to do it. As regards the existence of the only power here involved, it must be conceded that the statute law of this state contains no express prohibition against it. Neither does it say, as the Illinois statute does, that the stock issued by building associations shall be paid in installments. It directs that the capital stock shall not go beyond a certain maximum and shall be divided into shares of such denomination, not exceeding $500 each, as the ajpplication for incorporation may specify; that it may be issued in series (a well-understood term implying nothing as to the manner of payment) not exceeding certain figures; that the time and place for payment of periodical installments on stock shall be appointed by by-law; that no periodical installment over $2.00 per share shall be allowed ; that unpaid installments shall be liens, etc. In short, it regulates the respective rights and duties of the society and the shareholder as regards installment stock, its issuance and the subject of payments thereon, and provides for their enforcement — all matters which from the beginnings of building associations have been the source of uncertainty and litigation and which called for definitive settlement by legislative enactment. It is, however, silent as to any other manner of paying for the stock, under which, in the nature of things, similar questions cannot arise. The act of 1879 makes it lawful for the association to provide for the involuntary withdrawal and cancellation of unadvanced shares “ at or before maturity,” but does not require the retirement of shares when full paid, and it may be noted that the act June 22, 1897, taxing certain building association stocks seems to consist with no such necessity. We have then here a set of provisions which in terms neither authorize nor prohibit the issuance of full paid stock and from whose terms no implication of legislative intention on the subject fairly arises. We have in sec. 1 of the act of 1874 a declaration that all corporations formed under it shall, “ unless otherwise specially provided,” possess certain general powers, among which are :</p> <p>“ Sixth. To make by-laws not inconsistent with law, for the management of its property, the regulation of its affairs and the transfer of its stock.</p> <p>“ Seventh. To enter into any obligation necessary to the transaction of its ordinary affairs.”</p> <p>We have, in sec. 5, as amended by Act May 14, 1891, P. L. 61, a further declaration that:</p> <p>“ The by-laws of every corporation created under the provisions of this statute .... shall be deemed and taken to be its law, subordinate to this statute. . . . They shall prescribe the time and place of meeting of the corporation, the powers and duties of its officials, and such other matters as may be pertinent and necessary for the business to be -transacted. . . .”</p> <p>When it comes to determining what is “ necessary” for the conduct of the business and transaction of the affairs for which a corporation has been chartered, it must of course be understood that what is meant is a due and profitable prosecution of its lawful purposes; that the “ necessity ” contemplated is a relative one having reference to economy, convenience, efficiency and success ; and that some latitude is to be allowed to the discretion of the corporation itself in deciding what, from time to time, is or is not in that sense necessary; see Pittsburg Junct. R. R. Go.’s App., 122 Pa. 511. In view of that meaning of the word, of what has been said above and of what has been decided elsewhere, and it may be added in view of what is known to be the practice among building associations pretty much everywhere in recent years, it surely cannot be affirmed by the courts that the addition of the paid up stock feature to the original installment stock plan is not necessary in the building association scheme at this clay. The weight of judicial opinion is decidedly to the contrary. And so is the practical testimony of those most largely interested in these associations, who have adopted it. It will not do to treat these people indiscriminately as devoid of business sense or as self-seeking schemers. Nor is it an argument against the existence of a power which may be legitimately employed and when so employed made the instrument of accomplishing a good and useful purpose, that it may, in the hands of dishonest men, be perverted to evil ends. It ought, therefore, upon principle, to be held that the power to receive prepayment of stock and allow a reasonable fixed dividend thereon payable out of the profits of the corporate business, i. e., to issue the kind of paid up stock here in question, exists in building associations chartered under the act of 1874 by virtue of the provisions of that act. And this view of it is greatly aided by the fact that it accords with the construction put upon the act by the legislature itself. The Act June 22, 1897, P. L. 178, “ Taxing certain stocks of building and loan associations for State purposes,” imposes a tax upon “ all full paid, prepaid and fully matured, or partly matured stock in any building and loan association incorporated under the laws of this state .... upon which annual,, semiannual, quarter^ or monthly cash dividends or interest shall be paid.” There is no law in Pennsylvania under which building associations can be incorporated save the act of 1874. It cannot be assumed that the legislature meant to make stock unlawfully issued by building associations a source of regular revenue to the state. The only possible alternative is that according to the legislative understanding of the act of 1874, building associations have, under it, the right and power to' issue full paid dividend bearing stock as well as installment stock, which latter is expressly exempted from the tax imposed by the act of 1897 while unmatured and even when matured while in process of liquidation. The potency of such legislative interpretation of a statute is illustrated by the decision in Bourguignon Bldg. Assn. v. Com., 98 Pa. 54; Pardee’s App., 100 Pa. 408; Seaman v. Washington Boro., 172 Pa. 467, and many other cases. That of Com. v. Hauck, 103 Pa. 536, goes to the length of referring to a statute imposing a penalty for the improper use of sidewalks constructed by individuals in unincorporated villages as legalizing such and relieving them of the objection of being public nuisances.</p> <p>2. The defendant’s by-laws provide that withdrawals of full paid stock during the first year shall be entitled to the full amount paid less a charge of $1.00 per share; during the second year the full amount paid less a charge of fifty cents per share ; and thereafter the full amount paid — withdrawals of installment stock during the first year to the full amount paid less a charge of fifty cents per share; during the second year the full amount paid with 4 per cent interest less a charge of fifty cents per share ; during the third year the full amount paid with 4 per cent interest, thereafter and up to 108 months the full amount paid with 5 per cent interest, and after that period the full amount paid with full profits.</p> <p>According to section 37, clause 2, act 1874, a member voluntarily withdrawing during the first year is entitled to receive the amount paid “ less all fines and other charges,” and during any subsequent year “ in addition thereto,” (i. e., to the amount paid less fines and other charges), legal interest thereon : this latter allowance being modified by the provision of section 2, act 1879, the obvious effect of which is to substitute therefor “ such proportion of the profits of the association, or such rate of interest, as may be prescribed by the by-laws.”</p> <p>The answer avers upon the basis of actual experience, that during the first and second years of the running of installment stock the expenses fairly chargeable against it are relatively heavy and greater than its earnings, but thereafter relatively lighter and less than its earnings; that during the first and second years after the issue of full paid stock its average earnifigs do not exceed its proportion of the expenses and the state tax and dividends paid by the association, but thereafter yield a margin of profit to it; that in practice it is impossible to calculate upon each withdrawal of stock the exact proportion of expenses with which it is chargeable, and therefore necessary to fix a definite charge fairly approximating the same; and that the withdrawal charges objected to do so.</p> <p>It is of course true that the terms of withdrawal fixed by statute cannot be materially altered by the society to the prejudice of its stockholders: Rhoads v. B. & S. Ass’n, 82 Pa. 180; Baker v. Sav., etc., Ass’n, 23 R. I. 243 (49 Atl. Repr. 967). But it is equally sure that, in obedience to the fundamental principle of mutuality already adverted to, every shareholder in a building association is liable to the extent of his stock interest for the losses and expenses of the enterprise, and that he cannot by withdrawing escape that liability : McGrath v. Savings & Loan Ass’n, 44 Pa. 383. This applies to installment stock and of course to paid up stock which is not preferred stock. Whatever may be the rule elsewhere, in this state it is settled that this liability is enforceable by way of deduction from, or set off against the withdrawal claim: B. & L. Ass’n v. Silverman, 85 Pa. 394, 396 ; Christian’s App., 102 Pa. 184, 189. Indeed the act of 1874 makes it so by not only limiting the withdrawing member to what he has paid in, etc., “ less all fines and other charges,” (which latter phrase under the decisions last cited clearly includes a due proportion of the expenses), but also by making every share of stock subject to a lien in favor of the association “ for the payment of unpaid installments and other charges incurred thereon under the provisions of the .... by-laws: ” section 37. The only question open here is whether the association can by by-law fix a definite and invariable sum per share as representing the proportion of expenses, etc., chargeable to it upon voluntary withdrawal— call the sum so fixed and deducted a withdrawal fee or whatever else you please. It is difficult to see why not, provided the amount thus charged be in fact and according to actual experience a reasonable one, fairly approximating the proportion which upon the most accurate practicable calculation would appear chargeable against each share at the date of withdrawal. Absolute accuracy in this particular is never attainable before winding up, and the right of withdrawal does not involve a right to an account of profits and losses : Watkins v. B. & L. Ass’n, 97 Pa. 514, 522, 524. Approximation being concededly the most that is ever possible before dissolution: Watkins v. B. & L. Ass’n, supra, there would seem to be no tenable objection to a permanent regulation fairly accomplishing it. That such is the purpose and effect of the charge here in question appears by the answer. It is thus clearly distinguishable from the charge adversely considered by the attorney general in 14 Pa. Dist. Rep. 80, which was not treated as a liability of the association and not carried on its books, but went towards the payment of salaries, etc. In New Jersey membership was acquired in a building association in 1898, whose charter at the time validly provided for the right of voluntary withdrawal of the amount paid in with interest, less a withdrawal fee of $ 1.00. A statute passed in 1899 directed that a voluntarily withdrawing shareholder^should be paid “ not less than the sum of his installment paid in, less all unpaid fines and his proportionate share of any loss sustained by the association.” In a suit against the association by the member upon his withdrawal after the passage of this enactment, it was decided that it ought not to be held applicable because the rights of the parties were fixed by the law obtaining in 1898 ; but that, assuming the act of 1899 to apply, there was no inconsistency between it and the charter provision referred to, justifiable as intended to cover clerical expenses, and that the withdrawal fee should be deducted : Intiso v. S. & L. Ass’n, 68 N. J. L. 588 (53 Atl. Repr. 206).</p> <p>3. The remaining point raised by the bill and answer requires but brief notice. The power of corporations generally to employ and compensate subordinate agents is of course not open to question: 4 Thompson’s Corp. sec. 4,783. If statutory authority for so doing is needful, it is in the act of 1874, section 1, expressly conferred in the enumeration of powers applicable alike to building associations and to other corporations formed under it, viz.:</p> <p>“5. To appoint and remove such subordinate officers and agents as the business of the corporation requires, and to allow them a suitable compensation.”</p> <p>What has been said concerning the meaning of the word “necessary” is equally pertinent to the restriction, in this clause, of the power to appoint and compensate agents to “such .... as the business of the corporation requires.” The question whether the business does require the employment, etc., of collectors and solicitors is one to be determined according to changing circumstances and must rest largely in the discretion of the corporation and its managers. Certainly as against their judgment it can he a question for the courts only in clear and flagrant cases. There is in this respect no discrimination to he made against building associations. There was a time when they were looked upon with suspicion and treated by the courts with some degree of disfavor. But by and by the beneficial results they were capable of achieving became manifest and their methods better understood. Thereupon the laws of the state admitted them to incorporation and legalized their business. Under those laws they are nothing less than full-fledged corporations, and their business is a lawful business. The right granted to them to prosecute that business carries with it the power to employ all the usual means appropriate for its efficient prosecution, just as in the case of any other corporation: Millvale Boro. v. Ry. Co., 131 Pa. 1, and to do all such things as are fairly incidental or auxiliary to its business, just as in the case of any other corporation: Malone v. Gas Light, etc., Co., 182 Pa. 309, 322. See also Howley v. R. R. Co., 213 Pa. 36, 41, 42. The possibility that such a power may be abused or the fact that in some instances it may have been abused is not decisive against its existence. As against this defendant there is no allegation of abuse, actual or threatened. The presumption is to the contrary. Nor is it difficult to understand how in view of the changes which have affected the business of building associations in recent years, the employment of solicitors and collectors may have become not only a convenience and a material aid in profitably carrying on their lawful operations, but positively indispensable to their survival. It may be added that this case presents no question as to the right to maintain branch offices, and its decision involves no expression of opinion on that question.</p> <p>The conclusion is that there is no case here for an injunction under any of the prayers of plaintiff’s bill, nor for any other relief, and that the bill is to be dismissed with costs.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 255, Jan. T., 1905, from decree of Q. S. Lackawanna Co., April Sess. 1903, No. 283, in the Matter of the Election of'John Hayes, to the office of Burgess of Old Forge. Appeal from decree imposing costs on the petitioners in a contested election case. The case is stated in the opinion of the Supreme Court.

Appeal, No. 192, Jan. T., 1905, by-defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1899, No. 59, on verdict for plaintiff in case of Samuel F. Houseman v. International Navigation Company. Ejectment for land in the fortieth ward of the city of Philadelphia. . Before von Moschzisker, J. The facts are stated in the opinion of the Supreme Court. Plaintiff presented the following points : 1.

Appeal, No. 241, Jan. T., 1905, by Percival Roberts, Jr., from judgment of C. P. Montgomery Co., June T., 1903, No. 20, on verdict for plaintiff in case of George F. Payne and Charles G. Wetter, trading as George F. Payne & Co., v. Percival Roberts, Jr. Assumpsit for breach of a building contract.

Appeal, No. 12, Jan. T., 1906, by-Amy L. Fallon, from decree of O. O. Del. Co., reversing decree of Register of Wills in Estate of Christopher Fallon, deceased. From the record it appeared that Christopher Fallon died March 27, 1905, leaving a widow and four minor children.

<p>Appeal No. 173, Jan. T., 1905, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1903, No. 175, for defendant on case stated in suit of Scranton Gas and Water Company v. City of Scranton.</p> <p>Case stated to determine liability of a city for injuries to the property of a gas and water company. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered judgment for defendant. Plaintiff appealed.</p> <p>JSrror assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 25, Jan. T., 1906, by-plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 19, on case tried’by the court without a jury in suit of Commonwealth to use of City of Scranton v. Charles H. Schadt, August Robinson, O. S. Johnson and E. N. Willard.</p> <p>Assumpsit on a bond. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The case was tried by the court without a jury.</p> <p>Error assigned was in entering judgment for defeJidant.</p>

<p>Appeal, No. 24, Jan. T., 1906, by plaintiff, from judgment off C. P. Lackawanna Co., Jan. T., 1905, No. 17, on case tried by the court without a jury in suit of Commonwealth to use of City- of Scranton v. Joseph A. Scranton and Fidelity and Deposit Company of Maryland.</p> <p>Assumpsit on a bond. Before Edwards, P. J. •</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The case was tried by the court without a jury.</p> <p>Error assigned wag in entering judgment for defendant.</p>

<p>Appeal, No. 383, Jan. T., 1905, by plaintiff, from order of G. P. Wyoming Co., Oct. T., 1903, No. 68, discharging rule for change of venue in case of C. B. Little, Administrator of O. A. Little, v. Wyoming County.</p> <p>Rule for change of venue. Before Terry, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the order discharging the rule.</p>

<p>Estoppel — Injury—Evidence.</p> <p>In order to create an estoppel in pais the party pleading it must not only have been misled, but he must also have suffered a loss of a substantial character, or have been induced to alter his position for the worse in some material respect.</p> <p>Where a purchaser of real estate at a sheriff’s sale avers that he was induced to buy the property by a statement made to him by a mortgagee of the property that the lien of the mortgage had been released, he cannot establish an estoppel against the mortgagee unless he shows by evidence of a clear and convincing character not only that the statement averred was made to him, but also that he sustained a loss by relying upon it.</p>

<p>Insurance — Life insurance — Application—Truth of answers.</p> <p>In an action upon a policy of life insurance it appeared that the application signed by the insured contained an answer of “no” to a question as to whether the insured ever had a severe surgical operation. The application contained a warranty of the truth of the answers, and further provided that “no statement or declaration made to any agent, examiner or other person, and not contained in this application, shall be taken or considered as having been made to or brought to the notice or knowledge of said company, or as charging it with any liability by reason, thereof.” At the trial it appeared that the insured had prior to the date of the policy undergone a severe surgical operation. The plaintiff offered to show that at the time the insured made the application the agent filled out the answers, and asked the applicant to sign the paper which she did without reading, and that the ■witness heard the applicant state to the agent that she had undergone an operation. Held, that the court committed no error in overruling the offer.</p>

<p>Practice, C. P. — Striking off action from record — Agreement of party.</p> <p>An action or writ can only be stricken off when irregular, defective, or improper. Thus it is error to strike from the record an action for libel because of an alleged agreement between the parties, where the defendant denies that any such agreement had been made.</p> <p>In an action of trespass for libel where the defendant files a petition for an order to strike off the action on the ground of an alleged agreement that such order should be made, and the plaintiff files an answer denying the existence of such an agreement, the answer must be taken as true until overcome by the testimony of two witnesses, or its equivalent.</p>

<p>Negligence — Master and servant — Unforeseen accident — Place of employment.</p> <p>An employer when charged with negligence after an accident has happened, is not to be deemed negligent for not having anticipated what no one else, under the circumstances, would have anticipated.</p> <p>That which has never happened before, and which is not of such a character that prudent men ought naturally to guard against its happening at all, cannot, when’ it does happen, furnish a good ground for a charge of negligence in not foreseeing its possible happening and guarding against what no one could have foreseen.</p> <p>In an action by an employee against .his employer to recover damages for personal injuries, it appeared that the accident happened when the plaintiff was engaged in erecting a scaffold. While engaged on work far above the level of the floor of the room in which the scaffold was placed, he knelt down and extended one of his legs backward until it came into contact with the revolving shaft, and his overalls were caught in a projecting set screw, and his leg was crushed. The revolving shaft was far above the reach of the employees generally, and plaintiff’s work had nothing to do in connection with it. Plaintiff testified that he did not know that the shaft was there and that it was too dark for him to see it. Held, that the evidence was insufficient to establish negligence on the part of the defendant.</p>

<p>Res adfudicata — Court of common pleas — Orphans’ court — Life insurance.</p> <p>While the orphans’ court alone can distribute the proceeds of an insurance policy in the hands of an administrator among those entitled to receive them, the fund cannot be awarded by that court to a claimant whose claim has been adversely passed upon by the court of common pleas to which he, in a proper proceeding before it, had submitted the same.</p>

<p>Appeal, No. 252, Jan. T., 1905, by-defendants, from judgment of C. P. Schuylkill Go., Nov. T., 1902, No. 319, on verdict for plaintiff in case of Mary P. George v. Lloyd T. Brandon, and Nellie F. Brandon, his Wife, and J. H. Reichenderfer and Hilda Reichenderfer.</p> <p>Ejectment for land in East Union township. Before Marr, 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>[The plaintiff contends that Brandon and his wife, having passed title to this property to William P. George, who was the grantor to the plaintiff in this case, that he cannot after-wards come in and purchase an outstanding title; so far as the record goes he had been paid in full for the value of this property, and they claim, notwithstanding these incumbrances which existed as issued by Nelson F. Brandon in 1866, that under all the evidence in this- case, after he purchased this outstanding title, which was acquired by virtue of this mortgage, that the purchasing of that title would inure to the benefit of his grantee, who was William P. George, and inuring to William P. George, it would, as a matter of law, inure to the plaintiff or his grantee, who is the plaintiff in this case. So far as the record appears in this case, we feel it our duty to sustain this contention of the plaintiff.] [2]</p> <p>[As I have intimated in the opening remarks, that the case is not free from some doubt, but as I look upon it, under the evidence which has been admitted in this case, Lloyd T. Brandon and wife having sold this property with a general warranty to William P. George, the grantor of the plaintiff in this case, and that deed having set forth that the consideration of $5,000 was paid in full, with no reservations in it in reference to any incumbrances, it seems to me that if Lloyd T. Brandon after-wards obtained the title to that property by virtue of incumbrances, which existed prior to his title, although he was not the maker of that incumbrance, yet he, procuring the title through a sheriff’s sale by virtue of that prior incumbrance, that he ought to be held to make good his warranty, and he cannot purchase that to the detriment of his grantee. Viewing it in that way, he and his wife should be held to their warranty. Whilst it is true in this case the wife becomes the subsequent purchaser, not Brandon himself, but his wife having joined in a deed, which was duly acknowledged, as provided by the act of assembly, she ought to be held to her warranty, as implied in .the deed from her and her husband to William P. George, who was the grantor to the plaintiff in this' case, especially since the act of 1893 and possibly before that, she having acknowledged this deed.] [3]</p> <p>[With that view of it, and under that state of facts, it seems to me that so far as the evidence has been offered in this case, the plaintiff is entitled to recover, and we direct you to render a verdict for the plaintiff for the property in controversy as described in the writ with six cents damages and costs.] [4]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (2-4) above instructions, quoting them.</p>

<p>Appeal, No. 58, Jan. T., 1905, by defendant, from judgment of C. P. Berks Co., Nov. T., 1898, No. 36, on verdict for plaintiff in case of William F. Ganster et al. v. Metropolitan Electric Company.</p> <p>Trespass to recover damages for a continuing nuisance. Before Ermentrout, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $3,729.16. Defendant appealed.</p> <p>Error assigned among others was in giving binding instructions for defendant.</p>

<p>Executors and administrators — Coexecutors—Compensation—Counsel fees.</p> <p>Where an individual and a trust company are coexecutors of an estate, and the individual has taken and administered the assets to the exclusion of the trust company, and the latter has been compelled for its own protection to require the coexecutor to file an account, an allowance to the trust company for compensation and counsel fees of an amount slightly in excess of one-half of the compensation and counsel fees allowed to the other executors, will not be set aside by the Supreme Court, where it appears that the amount allowed to the individual executor was not objected to in any way by the beneficiaries under the will.</p>

<p>Appeal, No. 373, Jan. T., 1905, by Margaret Reifsnyder et al., from decree of O. C. Berks Co., May T., 1905, No. 3, dismissing petition for partition in Estate of John F. Reifsnyder, deceased.</p> <p>Petition for partition.</p> <p>The opinion of the Supreme Court states the case.</p> <p>-Error assigned was decree dismissing the petition.</p>

<p>Landlord and tenant — Covenants of lease — Assumption of unperformed contract.</p> <p>Where a tenant agrees in his lease to assume an unperformed contract of the lessor-, but makes default thereon, and judgment is recovered against the lessor for the breach, and the sheriff’s return shows a payment of the judgment, the lessor may maintain an action of assumpsit against the lessee for.the loss. ' .. -</p> <p>Evidence — Fraud—Presumption.</p> <p>Fraud is never presumed but must be established either by direct proof, or by facts clearly proved sufficient to warrant a presumption of its existence.</p> <p>Landlord and tenant — Covenant for quiet enjoyment — Agreement to assume unperformed contract — Set-off.</p> <p>In an action by a landlord against his tenant for a breach of the covenant in the lease to assume an unperformed contract, damages for a breach of the covenant for quiet enjoyment cannot be set off where it appears that there had been no eviction at the impetration of the writ. In such a case no set-off will be allowed for a breach of the covenant to keep the premises in repair where no competent evidence is submitted to the jury as to the amount of the loss from the breach of the covenant.</p> <p>Corporation — Trading corporation — Expiration of charter — Act of May 21, 1881, P. L. 30.</p> <p>A corporation chartered for the purpose of erecting a dam and for cutting, storing and selling of ice is a trading corporation within the meaning of the Act of May 21, 1881, P. L. 30, entitled “An Act to enable mining, manufacturing and trading companies to wind up their affairs, after the expiration of their charter.”</p> <p>•The Act of May 21, 1881, P. L. 30, applies to all trading corporations whose business has ceased or terminated for any cause whatever, and is not confined to corporations whose charters have expired by express limitation. It applies to a corporation whose property and franchises have been sold under execution. .'</p> <p>The statute is remedial and is therefore to be extended to cases in equal mischief.</p>

Appeal, No. 277, Jan. T., 1905, by plaintiffs, from order of C. P. Monroe Co., Dec. T., 1904, No. 18, discharging rule to change venue in case of A. R. Brittain and Frank Reeder and Geo. F. Coffin, trading as Reeder & Coffin, v. Monroe County. Rule for change of venue. The opinion of the Supreme Court states the case. Error assigned was order discharging rule to change venue.

Appeal, No. 357, Jan. T., 1905, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1899, No. 406, dismissing exceptions to referee’s report in case of Michael McManus v. James V. Watson. Bill in equity for an account. Exceptions to report of referee. The opinion of the Supreme Court states the case. Error assigned was the decree of the court.