Volume 215 — Pennsylvania State Reports

<p>Appeal, No. 374, Jan. T., 1906, by plaintiff, from judgment of C. P. Lebanon Co., March T., 1900, No. 163, refusing to take off nonsuit in case of L. G. Hallock and James Kinney, Jr., trading as Hallock & Kinney, v. City of Lebanon.</p> <p>Assumpsit for work done and materials furnished under a contract. Before Ehrgood, P. 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 among others was (9) refusal to take off non-suit.</p>

<p>Corporations — Church law — Annual meetings — Trustees—Evidence.</p> <p>Where a church corporation has no by-laws, and the date of its annual meetings is not established by any custom, evidence of the date of meetings of a faction of the congregation after its division is inadmissible to show a custom as to the time of holding annual meetings before the division.</p>

Appeal, No. 189, Jan. T., 1905, by Sue McMahon, from decree of O. C. Clinton Co., refusing an order to stay proceedings in Estate of Mary McMahon. Petition to stay proceedings. Before Matee, P. J. The opinion of the Supreme Court, states the case. See also McMahon’s Estate, 211 Pa. 292. Error assigned was decree refusing to stay proceedings.

<p>Patents — Patent for apparatus — Patent for process — Lácense—Contract.</p> <p>On a bill in equity for an accounting, it appeared that by an agreement in writing plaintiff licensed the defendant to use a patented improved apparatus in the process of making steel, and also agreed to instruct him in and permit him to use certain secret improved methods of manufacturing steel in connection with the patented apparatus. The defendant agreed to pay certain royalties. It appeared that the defendant paid the royalties for a time, and then ceased to pay them without annulling the agreement. Defendant claimed that the plaintiff’s patent infringed upon another patent, but the evidence showed that the patent referred to was one for an improved process in making steel while the plaintiff’s patent was for an apparatus only, and it did not appear that anybody had raised any question of infringement. Held, that the plaintiff was entitled to a decree for an accounting.</p> <p>Under the patent laws of the United States an improvement in a process and an improvement in a machine are entirely different things, but each in its own department may present subject-matter which is patentable.</p>

Appeal, No. 35, Jan. T., 1906, by plaintiff, from decree of C. P. Northampton Co., Sept. T., 1905, No. 2, dismissing bill in equity in case of Donato Donatelli and Filippo Giacomo Donatelli v. Filippo Oasciola et al. Bill in equity to enforce a resulting trust. The opinion of the Supreme Court states the case. The court in an opinion by Scott, J., dismissed the bill. Error assigned was decree dismissing the bill.

Appeal, No. 21, Oct. T., 1906, by plaintiffs, from decree of C. P. Cambria Co., Sept. T., 1905, No. 7, dismissing bill in equity in case of D. J. Llewellyn and J. C. Yeagley, trading as Llewellyn & Yeagley, v. Daniel Cauffiel. Bill in equity for an injunction.

<p>Negligence — Master and servant — Place of employment — Quarry.</p> <p>While it is the duty of the employer to provide an employee with a reasonably safe place to work, it does not follow that the question of what constitutes a safe place must always be submitted to a jury. Negligence is the want of care under the circumstances, but there can be no recovery of damages in any case unless there has been a breach of legal duty, and if there has been no breach of a legal duty, it is the province of the court to say so.</p> <p>Where an owner of a quarry sets an employee to work to clear off a bank of earth from the top of a ledge of stone, and the workman comes upon a large loose stone imbedded in the earth, but not connected with the ledge, and no part of the quarry proper, and this stone becomes dislocated not through any operation of the quarry, but from the digging under it, and slides suddenly upon the workman, who is thereby injured, the latter cannot recover from the owner of the quarry for the injuries which he has sustained.</p>

<p>Easement — Alley—Obstruction of easement — Equity.</p> <p>Where a person's easement in a private alley or court is defined in his deed as “the common use and privilege of said twenty feet wide court with or without horses, cattle and carriages,” and, “of a water course therein,” such person cannot complain of any use of the space above or beneath the surface not affecting the rights defined by his deed; but doors or shutters which when open project into the court, or a fire escape used as an exit for a theater, which projects into the court, so as to interfere with the rights of the owner of the easement, will be enjoined. Schmoele v. Betz, 2X2 Pa. 32, followed.</p>

Appeal, No. 75, Jan. T., 1906, by defendants, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 355, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John J. Patterson v. Charles Freihofer and William Freihofer. Assumpsit for purchase money of real estate. Rule for judgment for want of a sufficient affidavit of defense. The court made absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Assignment for creditors — Distribution—Contract—Compromise—Valuation of property.</p> <p>Where a debtor agrees, in compromise of a claim which he deems exorbitant, to transfer to his creditor houses and stock of a corporation at a valuation, which the agreement on its face shows is in excess of the market value, and before the agreement is executed, the debtor makes an assignment for creditors, the creditor on distribution will be entitled to a dividend only upon the market value of the houses and stock, and not upon the valuation stated in the agreement.</p>

<p>Appeal, No. 385, Jan. T., 1905, by plaintiff, from decree of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 3,516, dismissing bill in equity in case of Ellwood Van Sciver v. Frank P. Churchill, David Carson and the Central Trust and Savings Company.</p> <p>Bill in equity to declare a trust.</p> <p>The averments of the bill are set forth in the opinion of the Supreme Court.</p> <p>The court sustained a demurrer and dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 97, Jan. T., 1905, by-plaintiff, from decree of C. P. No. 3, Phila. Co., March T., 1904, No. 3,646, dismissing bill in equity in case of The Merchants’ Trust Company, substituted trustee under the Great Eastern Seaboard Coal Mining Company’s Mortgage or Deed of Trust, dated October 1, 1900, v. The Real Estate Trust Company of Philadelphia, Individually and as Trustee under the Raystown Branch Coal Company’s Mortgage or Deed of Trust, dated December 1,1890, et al.</p> <p>Bill in equity for an account.</p> <p>A demurrer was filed on the ground that the plaintiff had an adequate remedy at law.</p> <p>The court in an opinion by yon Moschziskeb, J., sustained the demurrer and dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 387, Jan. T., 1905, by W. Creighton Owens, from decree of O. C. Phila. Co., April T., 1883, No. 596, dismissing exceptions to adjudication in Estate of Richard King, Jr.</p> <p>Exceptions to adjudication of Hanna, P. J.</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., 1906, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1905, No. 1,468, refusing to take off nonsuit in case of Ben Zion Hoffman v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Martin,, P. J. The facts are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was the order of the court.

<p>Appeal, No. 53, Jan. T., 1906, by plaintiff, from judgment of O. P. No. 2, Phila. Co., March T., 1903, No. 4,078, on verdict for defendants in case of Charles S. Phillips, Henry H. Ashley and Charles P. Hunt, copartners, trading as Parrish, Phillips & Co., v. William S. Pilling and Theron I. Crane, copartners, trading as Pilling & Crane.</p> <p>Assumpsit for breach of a contract for the sale of coal. Before Sulzberger, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The plaintiff presented the following points :</p> <p>1. It was the duty of the defendants to purchase or acquire coal of the kind agreed upon and deliver the same to the plaintiffs from the market or from any source from which they could have acquired the same, and which was known to them, or, with due diligence, might have become known, and they would not be excused from the delivery of the coal merely because the single seller with whom they made a contract failed to deliver the coal to them which they had purchased for the purpose of filing the contract in suit. Answer: The principles, some of which are quite correct, stated herein, are in such complicated relations and require so much qualification, that I think I prefer to stand by the announcement of the legal principles, and the relations of the facts to them, that have been given in my general charge, and I decline to affirm this point as put. [1]</p> <p>2. The shortage of cars which, under the terms of the contract would excuse the defendants from making deliveries except proportionally from time to time on all cars, means an inability of tbe defendants to obtain car-loads of coal of the kind agreed upon for delivery to the plaintiffs in the open market, and the mere fact that the defendants were unable to obtain the delivery to them of sufficient cars of coal to fill the contract with the plaintiffs under the contract or arrangement under which they expected to receive them, is not sufficient to justify the failure of the defendants to deliver the coal at the rate called for by the contract of 2,000 tons per month. Answer: For the same reason, I decline to affirm the second point. [2]</p> <p>Defendant presented these points:</p> <p>1. The contract between the plaintiffs and the defendants expressly provided that if there should be a shortage of cars during the period fixed for delivery, shipments should be divided from time to time in fair proportion on all orders. If, therefore, you find that there was such shortage of cars, and that by reason thereof an insufficient quantity of the kind of coal to which under their contract plaintiffs were entitled, was obtainable by defendants, delivered f. o. b. cars at South Am-boy, then they were only obliged to deliver to plaintiffs such quantity of such coal so delivered, as was the fair proportion of the plaintiffs, upon all defendants’ orders for such coal. In determining what was such fair proportion, you will take into consideration all orders for the kind of coal which, before the happening of the shortage and in ignorance that there would be any such shortage, they had bound themselves to fill, and which but for such shortage they could have filled. Answer : I affirm that point. [3]</p> <p>2. In determining the total quantity of coal of the kind which plaintiffs bought, which, f. o. b. cars at South Amboy, was shipped to defendants, you will not include any of the kind of coal for which transportation could only be secured in cars of railroad companies, other than the Pennsylvania Railroad Company, which the latter would not transport to South Amboy. Answer: I affirm that point. [4]</p> <p>3. If you find that to meet the pressing demands of the plaintiffs for coal, bituminous coal was delivered to them from time to time, to a greater extent than their proportion of the kind of coal, which they bought, then the defendants had a right, when the kind of coal that they bought arrived at South Amboy, to convert the same to their own use, to the extent of the excess coal theretofore delivered under such demand, if any, to the plaintiffs. Answer : I have, in general terms, stated that substantially. I affirm this point. [6]</p> <p>8. There was no guarantee by the defendants to the plaintiffs that the former would receive the full quantity of coal purchased. There was an exemption of liability for any failure in deliveries, prevented by interruptions of transportation, shortage of cars, or any cause or occurrence beyond defendants’ control, provided that if the delay was because of a shortage of cars, shipments should be divided, from time to time, by the defendants in fair proportion on all orders. Answer : I affirm that point. [6]</p> <p>9. Whether the contract was for Nonpareil or for Sonman Shaft coal, if you find Nonpareil coal designated a coal mined only at the Nant-y-Glo mine, and that Sonman Shaft coal designated a coal mined only at the Sonman Shaft mine; and if you find that before entering into their contract with the plaintiffs, the defendants had secured a supply of Nonpareil or of Sonman Shaft coal, to be delivered at the times stipulated for with plaintiffs, amply sufficient as to quantity, to fill the order of the plaintiffs, and all other orders accepted by the defendants; and if you find that they would have received such supply and could have filled the contract with the plaintiffs, saving for the fact that there was a shortage of cars, interruption of transportation, or a cause or occurrence beyond the defendants’ control which prevented, then I instruct you that it was the duty of the defendants to deliver to the plaintiffs only a fair proportion,</p> <p>apportioned amongst all such orders, of the coal which they, from time to time, received, of the kind designated. If they did furnish such proportion, they are not liable in damages. If they failed, they are only liable to the extent of the deficiency in the failure to deliver the proper proportion calculated on all such orders. It was not the duty of the defendants to deliver any other kind of coal than that stipulated for. Answer: I affirm that point. [7]</p> <p>10. If prevented from delivering coal of the kind stipulated for by any of the causes above specified, and if coal, because of any such causes, had risen in price in the market, it is not the duty of the defendants to go out into the market and to purchase such other coal at such prices, enhanced by reason of said causes. Answer: Subject to the limitations in my general charge, as to the effect in case this was a general contract for bituminous coal, I affirm that point. [8]</p> <p>Certificate and judgment for defendants for $1,222.14. Plaintiffs appealed.</p> <p>Error assigned were (1-8) above instructions, quoting them.</p>

<p>Practice, C. P. — Affidavit of defense — Building contract — Conditional acceptance of a building.</p> <p>In an action to recover a balance alleged to be due on a building contract, an affidavit of defense is sufficient which alleges that the work had not been completed according to the terms of a conditional acceptance of the same.</p> <p>Corporations — Minutes—Evidence.</p> <p>The minutes of a corporation are prima facie evidence of the facts therein stated, but parol testimony is admissible to explain or supplement them.</p>

<p>Corporations — Capital stock — Subscription—Reduction of subscription— Meetings — Notice—Waiver—Act of April 29, 1874, P. L. 73.</p> <p>A corporation organized under the act of 1874, with a capital stock of-$100,000 divided into shares of $100 each, all of which is subscribed at the tifne of the organization, and forty-five per cent of which has been paid, has a right four years after its organization when solvent and without existing creditors, to call in the 1,000 shares part paid stock, cancel the original subscriptions, and issue in lieu thereof 450 full paid shares, the remaining 550 shares to be held by the corporation for its use and future disposition.</p> <p>The meeting for the reduction of such subscription need not be held in the manner provided by the statute for a reduction of the capital stock, inasmuch as a reduction of the subscriptions is an entirely different matter from the reduction of capital stock. If the meeting is attended by all of the stockholders, except one, and such stockholder subsequently surrenders his part paid stock, and accepts a less amount of full paid stock in exchange therefor, the validity of such meeting cannot be attacked by a creditor whose debt against the company was created several years after the meef.ing; nor in such a case can subsequent creditors of the corporation maintain actions against the shareholders individually for the corporate debts, merely because the corporation failed to file annual reports in the office of the recorder of deeds as required by clause 8 of section 39 of the act of April 29, 1874; and this is especially so where such creditors had actual notice of the reduction of the subscriptions.</p>

Appeal, No. 211, Jan. T., 1905, by defendant, from judgment of C. P. Luzerne Co., Jan. T., 1901, No. 169, on verdict for plaintiff in case of Anthony Ginley and Sarah Ginley v. Ashley Borough. Trespass to recover damages for personal injuries.

Appeal, No. 119, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Go., May T.? 1902, No. 496, on verdict for plaintiff in case of Thomas Byron, by his next friend and father, Thomas J. Byron, and Thomas J. Byron in his own right as father of Thomas Byron v. Central Railroad of New Jersey. Trespass to recover damages for personal injuries. Before Wheaton, J. At the trial it appeared that on March 4,1903, plaintiff was injured at a grade crossing in Newport township.

Appeal, No. 147, Jan. T., 1905, by plaintiff, from decree of C. P. No. 1, Pbila. Co., Sept. T., 1897, No. 733, dismissing bill in equity as to certain defendants in case of Robert W. Finletter, receiver of the Acetylene Light, Heat and Power Company v. The Acetylene Light, Heat and Power Company et al. Bill in equity to enforce alleged liability on stock assessments. Before Beitler, J. The opinion of the Supreme Court states the case.

Appeal, No. 122, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1902, No. 2,525, on verdict for plaintiff in case of Maries Carved Moulding Co. v. Theodore B. Stulb. Assumpsit on a stock subscription. At the trial it appeared that the subscription paper was as follows: “ Marles Carved Moulding Company. “ Room 614 Real Estate Trust Building, Philadelphia, Pa. Capital $4,500,000 consisting of 900,000 shares of $5.00 each.

<p>Appeal, No. 328, Jan. T., 1905, by plaintiffs, from order of C. P. Lehigh Go., Oct. T., 1903, No. 11, refusing to take off nonsuit in case of Isabella Strauss and Thomas Strauss, her husband, and Henry N. Sleifer v. City of Allentown.</p> <p>Trespass to recover damages for injuries to a mill race. Before Trexler, P. 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, Nos. 60 and 61, Jan. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1905, No. 2,544, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Vulcanite Paving Company v. Daniel J. McNichol, James P. Mc-Nichol and Israel W. Durham, Copartners, trading as D. J. Mc-Nichol.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned in No. 60 was in discharging rule to open judgment.</p> <p>Error assigned in No. 61 was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 21, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1902, No. 1,571, for defendant non obstante veredicto in case of Anna Bell Miller v. Charles H. Harvey. Trespass to recovery damages for alleged unlawful conspiracy to injure plaintiff. Before Ralston, J. The opinion of the Supreme Court sufficiently states the case. Verdict for plaintiff for $14,960. The court subsequently entered judgment for defendant non obstante veredicto.

<p>Appeal, No. 315 Jan. T., 1905, by plaintiff, from judgment of C. P. No.. 5, Phila. Co., June T., 1904, No. 1,725, on verdict for defendant in case of Thomas J. McDade v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The court charged in part as follows:</p> <p>In order to find for the plaintiff, you must first find that the defendant was negligent. There was a collision; there is no doubt that there was injury to persons inside the car, and there is no doubt that the plaintiff was injured in consequence of that collision, to what extent it is for you to find. The next question is, was the plaintiff guilty of any contributory negligence ? Did he, by any act of his, become a part of that accident? If he did, he cannot recover, because where two parties cause an accident, neither can recover. If the plaintiff was negligent, it does not matter how negligent the defendant was, because, by his own negligence he debarred himself from recovery. The real question in the case is whether the plaintiff was guilty of contributory negligence, and let me.say to you at this point that it is the province of the jury to pass upon the facts of every case, as they get them from the witness stand, and from the probabilities and surrounding conditions. From the court you will take the law, and from no other source. [The Supreme Court has laid down the law in this state that a man standing on the front platform of a car, when there is room for him inside of that car, is standing in a dangerous place, and if he is injured, he cannot recover against the company operating the car.] [1] The plaintiff admits that he stood upon the front platform until the time that he saw the accident was imminent, until he saw that a collision was about to occur, and then he turned in the act of going into the car, and was pressed by those behind him on the platform and crushed down with others on top of him between the two sides of the door which slide open. The plaintiff says that he got on the car at Franklin street and Columbia avenue, and rode to Seventeenth and Columbia avenue, where the collision occurred, and that when he got on, the back platform and front platform were crowded, or, at least, the back platform and inside of the car were crowded, and he got on the front platform because there was no other room or place for him to stand. If that be true, he can recover. A gentleman who testified for the plaintiff said that he got on the car at some other place, but covered this same distance, and that the car was full, but, he says, at Twelfth street two ladies got in. It is for you to say, in view of that fact, whether the car could have been full, these two ladies having gotten in at that point, and having been given seats by gentlemen who arose. That is the testimony for the plaintiff.</p> <p>[On behalf of the defendant, the conductor testified that at Franklin street he had a full-seated load, that there were two or three upon the back platform and two or three in the rear end of the car inside, and at least one on the front platform, but that the standing room in the car was comparatively empty. If that be true, this man cannot recover if he stood upon the front platform.] [2] But the plaintiff is interested in this case because of his desire to get a verdict, a natural desire. The conductor is interested because of his desire to shield the company, also a natural desire. Waiving them aside, and coming down to the disinterested witnesses, we find, first, the witness who testified for the plaintiff, to whom I have already referred. He testifies that the car was full, and that at some point he was frightened at the speed of the car and wanted to get inside and could not, and also that at Twelfth street two ladies got in the car and got seats, the seats being furnished them by gentlemen who arose. Besides the plaintiff, jmu have got one witness on his side of the case. Apart from the conductor, we have, first a gentleman who rode all the way up from Fourth and Market streets on the car, and he said that alongside of him all the way out Columbia avenue there were two vacant seats. We have another man who got in at either Tenth street or Franklin street, and got a seat and was in that seat when the collision occurred. We have a lady who got in at Broad street and got a seat, and we have the testimony of others as to the fact that the body of the car was not crowded, although there may have been people standing.</p> <p>In addition to this oral testimony, you have before you the statement which was signed and sworn to by the plaintiff. That statement has been very severely criticised, but as business men you will take into consideration whether or not it is proper before a man to whom an accident has happened has been reached by other influences than yoiir own, to get a statement from that man as to how the accident happened, immediately, when everything is fresh. It is for you to decide whether that is proper or improper. You will take the statement for what it is worth and compare it with the testimony of the witnesses for the defendant. To a certain extent, it differs from the testimony given by the plaintiff to-day. Today he says that the car was full; in the statement he says that he cannot say how many passengers were on the car. Take the statement, take it with the testimony of all the witnesses ; make it, if you can, consistent with the other testimony in the case as to the condition of the car, as to its being crowded or empty, or cast it aside and depend entirely upon the verbal testimony. But the statement was made, read and signed by the plaintiff, and sworn to by him before the notary public; then it was handed over to the company, in whose possession it has since been. That is the testimony. You will take all of it, and take no suggestions from me, except as to the law; the facts are yours. I have no opinion, and no right to any opinion as to the facts. [I give you the testimony, and say to you that the law of this state is that if that man stood upon the front platform of that car, and there was room for him to be, comfortably, inside that car, he voluntarily put himself in a place of danger, and cannot recover.] [3] On the other hand, if the car was so crowded that he could not get in, he may recover. [If there were vacant seats, or even places to stand inside the car, he cannot recover, because it is common sense, as well as law, that the inside of a car is safer than- the platform, and a man who stands upon a platform when lie can go inside, voluntarily places himself in a position of danger, and must suffer the consequences of his action.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 334, Jan. T., 1905, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1903, No. 15, on verdict for plaintiff in case of The William H. Moudy Manufacturing Company v. Pennsylvania Railroad Company.</p> <p>Appeal from award of jury of view. Before Woods, P. J.</p> <p>See William H. Moudy Manufacturing Co. v. Pennsylvania Railroad Co., 212 Pa. 156.</p> <p>Plaintiff presented the following points:</p> <p>1. The Pennsylvania Railroad Company, the defendant, under its right of eminent domain, having condemned a strip of land owned by the plaintiff company, which strip of land is of the length of 300 feet and of an average width of thirty feet, and having taken the said strip for railroad purposes, the plaintiff company is entitled to recover for the actual market value of the land so taken. Answer: This point is affirmed if the jury believe from the evidence that no street existed and that all the land belonged to the plaintiff; otherwise, it would only be entitled to twenty feet by 300 feet. [1]</p> <p>3. The railroad company, having taken under its right of eminent domain a strip of land belonging to the plaintiff, the plaintiff is entitled to recover the actual value of the land taken. In considering such value they are to consider the uses to which the land was or could be put, and all other circumstances shown by the evidence in any way tending to affect the value thereof; and this will be the first item of the verdict. Answer: This point is affirmed. [2]</p> <p>7. In estimating the damages the jury are not to be limited to any particular use of the land, but the adaptation of the property in question to any particular use, to which it has been or may be applied, is a proper element to be considered by the jury in estimating its market value before and after the change was made by the defendant company. Answer: This point is affirmed. [3]</p> <p>Verdict and judgment for plaintiff for $6,500. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

Appeal, No. 369, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1905, No. 2,515, refusing to take off nonsuit in case Thomas Thompson v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Beitler, J. The opinion of the Supreme Court states the case. Error assigned was refusal to take off nonsuit.

Appeal, No. 24, Oct. T., 1906, by defendant, from judgment of Superior Ct., April T., 1905, No. 183, affirming order of C. P. No. 3, Allegheny Co., May T., 1904, No. 487, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Farmers Deposit National Bank of Pittsburg v. Western Pennnsylvania Fuel Company. Appeal from Superior Court. See 29 Pa. Superior Ct. 69. Error assigned was judgment of the Superior Court.

<p>Appeal No. 233, Jan. T. 1905, by-Samuel E. Anderson, from order of Q. S. Delaware Co., vacating office of supervisor In re Petition of Removal of Supervisor of Netber Providence Township.</p> <p>Petition for removal of Samuel E. Anderson, Supervisor of Nether Providence Township.</p> <p>The petition averred that the respondent had not filed his bond within one month after his election as required by the Act of March 16, 1860, P. L. 174.</p> <p>Anderson filed an answer the substance of which appears in the opinion of the Supreme Court.</p> <p>The court in an opinion by Johnson, P. J., held that the second section of the act of March 16,1860, was mandatory in its terms, and that the court was bound to grant the prayer of the petition.</p> <p>Error assigned was the order of removal.</p>

<p>Equity — Contract—Rescission—Discovery—Costs—Dismissal of bill.</p> <p>Where a bill in equity for the rescission of a contract by reason of fraud fails as a whole, but a portion of it is sustained as a bill for discovery, the bill may be dismissed with costs imposed upon the defendant.</p> <p>Equity — Equity practice — Amendment of bill.</p> <p>Where an amendment to a bill in equity is moved and objected to and the hearings continued without any disposition of the amendment having been made, the court will not allow the amendment after the hearings have been closed.</p> <p>Contract — Rescission—Laches.</p> <p>The rescission of a contract must be applied for promptly and if possible while the parties can be restored to their original position.</p>

Will — Devise—Buie in Shelley’s case. The testator after devising a house to his grandson A, for life, charged with a valuation of $1,200 and an obligation to… Held: that the rule in Shelley’s case did not apply, and that A took a life estate only. Appeal, No. 213, Jan. T., 1905, by plaintiff, from judgment of C. P. Berks Co., Dec. T., 1904, No. 53, on case stated in suit of Albert It. Hoover v. Cameron E. Strauss. Case stated to determine marketable title to real estate.

Appeal, No. 226, Jan. T., 1905, by defendant, from judgment of C. P. Berks Co., Aug. T., 1903, No. 2, on verdict for plaintiff in case of City of Reading v. Reading and Southwestern Street Railway Company. Assumpsit to recover the cost of repaving part of a street.

Appeal, No. 18 Jan. T., 1906, by plaintiffs, from decree of C. P. Berks Co., Equity Docket, 1904, No. 866, dismissing bill in equity in case of J. Pearson Reeser and George O. Reeser v. Philadelphia & Reading Railway Company and William F. Krick. Bill in equity for an injunction.

<p>Appeal, No. 43 Jan. T., 1906, by defendant, from decree of C. P. Monroe Co., Dec. T., 1905, No. 3, on bill in equity in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Bill in equity for an injunction.</p> <p>Before Staples, P. J.</p> <p>The court after finding the facts found the following conclusions of law:</p> <p>1. It was the duty of the defendant railroad company upon appropriating and occupying the original road through the Delaware Water Gap and changing the site thereof, to reconstruct the same in as favorable a location and hi as perfect a manner as the original road, and, inter alia, to locate and establish it of the width of thirty-three and one-half feet.</p> <p>2. The erection of the buildings of the stone crusher plant partially within the lines of said public road or street, and the overhead chute extending across the public road or street by the defendant company was illegal, and by the obstructions and operations within said street lines it is maintaining a nuisance which should be abated, and the plaintiff is entitled to a decree to that effect.</p> <p>3. The blasting of the defendant company as carried on in the operation of its work has been dangerous and should be conducted in such a manner as to prevent the throwing or casting of stones or other material either into the public road or the Delaware river, both public highways.</p> <p>Error assigned was decree awarding the injunction.</p>

Appeal, No. 62, Jan. T., 1906, by defendant, from judgment of C. P. Franklin Co., April T., 1905, No. 380, for plaintiff on case stated in suit of Jacob Lemaster Benedict v. Emma Maude Zimmerman. Case stated to determine marketable title to an interest in real estate.

<p>Appeal, No. 63, Jan. T., 1906, by plaintiff, from decree of C. P. Franklin Co., Equity Docket 3, page 5, dismissing bill in equity in case of Edward C. Stull v. J. H. Reber, Charles H. Coover, Chester A. Geesaman and Dr. Samuel G. Dixon.</p> <p>Bill in equity for an injunction. Before Rowe, P. J.</p> <p>The bill after reciting that the complainant was a resident and taxpayer of the borough of Waynesboro and that Grace Stull was his daughter of the age of fourteen years continued as follows:</p> <p>“ The said Grace Stull is now and has been since the beginning of the present school year or term, to wit: September 4, 1905, properly and justly enrolled as a pupil in and attending the common or public school known as A grammar school conducted in the Snider avenue school building situate in the third ward of the said borough; that she is in good health and is not suffering from any contagious or infectious disease and is legally and justly entitled to continue to attend the said school for the remainder of the school term or year and is entitled to remain enrolled as a pupil thereof.</p> <p>“ J. H. Reber is the superintendent of all the common or public schools of the said borough of Waynesboro; Charles H. Coover is the principal of the said Snider avenue school building and has charge of the schools therein conducted; Chester A. Geesaman is the teacher of said A grammar school in which your orator’s said child Grace Stull is enrolled and in attendance as a pupil.</p> <p>“ There is not at the time of the filing of this bill, nor has there been for many years, any person in the said borough of Waynesboro or within many miles thereof suffering from smallpox (variola or varioloid).</p> <p>“ Charles H. Coover, principal of said Snider avenue school, and Chester A. Gessaman, teacher of said A grammar school conducted therein, have by order and direction of said J. H. Reber, superintendent of the common and public schools of the said borough, notified your orator and the said Grace Stull, his daughter, that she, the said Grace Stull, will be dismissed and excluded from the said A grammar school conducted in the said Snider avenue school building in which she is enrolled and in attendance as a pupil, on the 11th day of December, 1905. And the said J. H. Reber, superintendent, Charles H. Coover, principal, and Chester A. Gessaman, teacher, as aforesaid, defendants, in violation of their statutory duty and to the prejudice of the petitioner’s right in the premises, threaten and intend to dismiss and exclude the said Grace Stull from the said school on the 11th day of December, 1905.</p> <p>“ Your orator avers that unless .restrained by your honorable court the said defendants will carry out their said threat and dismiss and exclude the said Grace Stull from the said school, whereby both the said Grace Stull and your orator will suffer great and irreparable injury for which, there is no adequate remedy at law.”</p> <p>The bill prayed for an injunction,</p> <p>The answer admitted the material averments of the bill.</p> <p>The court found, inter alia, the following facts:</p> <p>There is not at the time of the filing of this bill, nor has there been for a period of about forty (40) years, any person in the said borough of Waynesboro, or within many miles thereof, suffering from smallpox, (variola or varioloid).</p> <p>Occasionally it is beyond the power of children of school age as well as adults to be successfully vaccinated, although they may not previously have had smallpox nor previously been vaccinated; that even repeated attempts to perform the operation of vaccination upon such children or adults is without effect and vaccination will not take. In such cases vaccination is not successful and the physician cannot certify that such child or adult has been successfully vaccinated.</p> <p>Sometimes a child may be suffering from a constitutional weakness or its system may be in such an unhealthy condition as to render the operation of vaccination exceedingly dangerous to said child.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 194, Oct. T., 1905, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1905, No. 987, dismissing bill in equity in case of Robert C. Hall v. Pennsylvania Railroad Company. Bill in equity for an injunction. The opinion of the Supreme Court states the case. Error assigned was decree dismissing the bill.

<p>Municipalities — Cities of the third class — Municipal contracts — Prior appropriation.</p> <p>A prior appropriation by a city of the third class is essential to every contract entered into by it, in which “the appropriation of money” is involved.</p> <p>A mandamus will not be granted against the controller of a city of the third class to certify a contract for furnishing electric lights to the city, where it appears that no appropriation had ever been made either by resolution or ordinance of the councils of the city for the payment of any moneys under the contract.</p>

<p>Appeal, No. 250, Jan. T., 1905, by plaintiff, from judgment of C. P. Lebanon Co., June T., 1905, No. 139, for defendant on case stated in suit of Commonwealth ex rel. v. Edison Electric Illuminating Co. v. Charles Foster, Controller of the City of Lebanon.</p>

<p>Trusts and trustees — Husband and wife — Separate use — Investment with wife’s money.</p> <p>Where a husband purchases real estate with his wife’s money and takes the title in his own name, and subsequently conveys the property to a trustee for the sole and separate use of his wife and her heirs and assigns, and in the deed recites the fact that the property had been purchased with his wife’s money, the wife takes an absolute estate in the land, which she has power to alienate.</p>

<p>Mechanics’ liens — Gas fixtures — Contract—Statutes—Act of June 15, 1897, P. L. 155.</p> <p>The Act of June 15,1897, P. L. 155, extending the right to file a mechanic’s lien to persons supplying gas fixtures and other appliances mentioned in the act, gives no right of lien where the goods were contracted for before the passage of the act, but delivered to the building after its passage and approval.</p> <p>A statute will always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature.</p>

<p>Husband and wife — Equity—Bill in equity by wife against husband — Fraud —Acts of April 11, 1848, P. L. 536, June 8, 1893, P. L. 344.</p> <p>A married woman may maintain a bill in equity against her husband for the protection of her separate estate against his fraud or other wrongdoing.</p> <p>The declaration in the Act of April 11, 1848, P. L. 536, that a married woman shall own and enjoy her separate property secured to her the title and right to the possession of the property which a court of equity will recognize and protect.</p> <p>There is nothing in the third section of the Act of Juno 8, 1893, P. Ij. 344, which can be construed as depriving a married woman of the right to invoke the assistance of a court of equity to secure to her the possession and enjoyment of her separate property against the fraud of her husband.</p> <p>A court of equity will set aside a conveyance of real estate by a wife to her husband where it appears that the conveyance was obtained from the wife by threats on his part of a permanent separation, and by such persistent importunities that the peace of the wife was almost destroyed, and to regain it she executed the conveyance.</p> <p>Evidence — Competency of witness — Husband and wife — Acts of May 23, 1887, P. L. 158, and June 8, 1893, P. L. 344.</p> <p>Neither the Act of May 23, 1887, P. L. 158, nor the Act of June 8, 1893, P. L. 344, makes the plaintiff or defendant a competent witness to testify in a suit in equity by a wife against her husband to cancel a deed and compel a i'econveyance of her separate property.</p>

<p>Res adjudicata — Pleadings—Ejectment—Bill in equity.</p> <p>Whore a prior adjudication, in equity is pleaded as a bar to an action of ejectment between the same parties, the court will examine the pleadings and the decree of the court in the equity suit to determine precisely what was adjudicated in that suit. In such an examination the court will exclude all extraneous questions not raised by the pleadings, although such questions may have been injected into the suit collaterally by the counsel of the parties.</p> <p>Where, in an action of ejectment, a prior equity suit between the same parties is set up as a bar, the plea of res adjudicata will not prevail where it appears that the purpose of the equity suit was to have a deed absolute on its face declared to be a conveyance of land as collateral security for the payment of a debt, while the evidence offered in the ejectment showed that the purpose of the ejectment was to have the defendant declared a trustee ex maleficio.</p> <p>In such a case the plea of former adjudication cannot be sustained, as the same evidence will not support a cause of action which requires proof of an express parol agreement to reconvey real estate, and a cause of action which requires proof that the holder of the title to the real estate is a trustee ex maleficio. The one requires proof, not of fraud in the grantee, but of an express contract which alone would entitle the party to recover; the other is established by proof of fraud of the grantee holding the title which converts him into a trustee for the beneficial owner.</p>

<p>Negligence — Townships—Defective bridge — Act of June 12, 1893, P. L. 451.</p> <p>The Act of June 12, 1893, P. L. 451, which gave taxpayers the right to contract with a township to furnish materials and labor necessary for opening and repairing roads and bridges of the township, did not in any way relieve the supervisors from their duty to see that the roads and bridges are kept in proper repair, nor did it relieve the township from liability for injuries sustained by reason of defects in the roads and bridges.</p> <p>Negligence — Trial—Improper remarks of counsel.</p> <p>Where, in an action against a township to recover damages for personal injuries sustained by reason of a defect in a bridge, counsel for plaintiff orally offers in the presence of the jury to show that in a suit against a street railway company for the same injuries a verdict had been recovered by plaintiff for $6,000, but had been reversed by the Supreme Court on the ground that the township alone was liable, it is reversible error for the trial court to refuse to withdraw a juror because of the impropriety of counsel in stating the amount of the former verdict.</p> <p>Where an attorney in the trial of a cause wilfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the cause at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected. The imposition of the costs will remind the client that he has an attorney unfaithful to him as well as to the court. The obligation of fidelity to the court which an attorney assumes on his admission to the bar is ever thereafter with him, and when he attempts to defeat the justice of the cause by interjecting into the trial wholly foreign and irrelevant matter for the manifest purpose of misleading the jury, he fails to observe the duty required of him as an attorney and his conduct should receive the condemnation of the court. This condemnation can and should be made effective. Per Mestrezat, J.</p>

Appeal, No. 123, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., June T., 1902, No. 212, on verdict for plaintiff in case of John Walsh v. City of Wilkes-Barre. Trespass to recover damages for personal injuries alleged to have been sustained on a defective sidewalk in the city of Wilkes-Barre.

Appeal, No. 110, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1896, No. 62, on verdict for plaintiff in case of Peter Munley by his next friend and mother, Margaret Munley, v. Sugar Notch Borough. Trespass to recover damages for personal injuries.

<p>Appeal, No. 136, Jan. T., 1906, by defendant, from order of C. P. Delaware Co., Sept. T., 1902, No. 225, refusing change of venue in case of David Newlin Everson and Ella E. Everson, his wife, v. Sun Company.</p> <p>Petition for change of venue. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court refusing change of venue.</p>

Appeal, No. 170, Oct. T., 1905, by-defendant, from order of C. P. No. 3, Allegheny Co., May T., 1898, No. 215, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bovaird & Seyfang Manufacturing Company v. J. D. Ferguson. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. The facts appear by the opinion of the Supreme Court.

<p>Negligence — Telephone companies — Electric shock — Evidence—Burden of proof — Bes ipsa loquitur.</p> <p>In an action to recover damages for the death of a person killed by an electric current from a telephone on his premises, the rule res ipsa loquitur applies, and this notwithstanding the fact that the deadly current was not generated by the telephone company.</p> <p>Though the wire which connects with a telephone is intended to conduct only a harmless current of electricity, the telephone company is bound to know, that it can become the conductor of a deadly one, and that such a current will pass over it, if it is not properly insulated and should come in contact with a wire heavily and dangerously charged. It is as much the duty of the telephone company to see that no such current shall thus pass over its wires as it is to send only a harmless one from its own exchange.</p> <p>It is the duty of a telephone company to its patrons to exercise at all times the highest degree of care and vigilance to protect them from a dangerous electric current over its wires from any source. This is the implied undertaking of every such company, and in towns and cities threaded with dangerous electric wires the duty of the company is, by constant supervision of its wires, to prevent their becoming conductors of a dangerous current from others. When they do become conductors of it, there is reasonable evidence that there has been a neglect of duty, and the burden is cast upon the telephone company of showing that it has not been negligent. As it is not an insurer of its patrons against the danger of electric currents on its wires, the law will not hold it responsible for what it cannot help; but when there is an accident which in itself affords reasonable evidence of negligence, it must show why it should be relieved from liability.</p> <p>In an action against a telephone company to recover damages for death of plaintiffs’ father, it appeared that the deceased had been a patron of the defendant, and that some time prior to his death his telephone had been disconnected. About three weeks prior to the accident the deceased received a letter from the company stating that his ’phone would be “connected at the earliest possible moment.” On the evening of the accident a sound resembling the noise made by a cricket came from the direction of the telephone. The deceased said, “I believe that is the ’phone; I wonder if it is in use.” He then got up, walked over to it, and took the metal transmitter down while standing on a wet carpet and was almost instantly killed by an electric shock. Held, (1) that the case came within the rule res ipsa loquitur, and that plaintiffs were not required in the first instance to prove more than that their father was killed by an electric shock in using the instrument which, with its connections, the defendant had furnished to him, as one of its subscribers; (2) that the evidence was not sufficient to sustain a ruling of the court that the deceased had been guilty of contributory negligence.</p> <p>Negligence — Damages—Parent and child.</p> <p>Where, in an action by children to recover damages for the death of their father, it appears that one of the plaintiffs is a deaf mute about seven years of age, a judgment for the plaintiffs will not be reversed because of a remark made by the trial judge to the effect that the father might have been liable to contribute more to such child’s support “than he ordinarily would,” where it also appears that the jury were distinctly instructed in language that they could not have misunderstood, that if the appellees were entitled to recover, the amount of the verdict would have to be limited to compensation to them for loss of what they could have expected from their father for their support and education while in their minority, during which period he would have been entitled to their earnings.</p> <p>Practice, C. P. — Trial—-Evidence—Testimony taken at former trial. It is within the discretion of the court to permit the testimony of a witness, taken at a former trial of the case, to be offered, upon proof of the effort that had been made to subpoena the witness.</p>

Appeal, No. 294, Jan. T., 1905, by defendant, from judgment of O. P. Berks Co., Sept. T., 1902, No. 16, on verdict for plaintiff in case of city of Reading v. United Traction Company. Assumpsit to recover the cost of paving streets. Before Endlich, J. The opinion of the Supreme Court states the case.

<p>Appeal, No. 293, Jan. T., 1905, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 37, reversing judgment of C. P. Lancaster Co., April T., 1901, No. 6, on verdict for defendant in case of Leonard P. Heilig et al. v. Sarah A. Heilig et al.</p> <p>Appeal from Superior Court. See Heilig v. Heilig, 28 Pa. Superior Ct. 396.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 8, Jan. T., 1906, by plaintiffs, from judgment of O. P. No. 4, Phila. Co., March T., 1906, No. 4,092, on verdict for defendant in case of Reuben Grant and Margaret Grant v. Philadelphia, Baltimore & Washington Railroad Company. Trespass by parents to recover damages for the death of their adult son. Before Carr, J. The opinion of the Supreme Court states the case. Verdict and judgment for defendant. Plaintiffs appealed.

<p>Appeal, No. 130, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 572, on demurrer for defendant in case of Henry C. Thompson, Jr., v. Springfield Water Company.</p> <p>Trespass to recover damages for loss by fire. Before Davis, J.</p> <p>Demurrer to statement.</p> <p>Error assigned was in entering judgment for defendant on demurrer to statement.</p>

<p>Divorce — Adultery—Evidence of wife's good character.</p> <p>In a suit for divorce by a husband against a wife, where the ground is adultery, evidence of the wife’s good reputation for virtue and chastity is inadmissible.</p> <p>Divorce — Adultery—Charge.</p> <p>A wife may condone the adultery of her husband so as to allow him to be divorced from her for the same offense committed by her subsequently to her condonation.</p> <p>Divorce — Adultery—Charge.</p> <p>In a suit for divorce on the ground of adultery, respondent requested the court to charge as follows: The two essential elements of the offense are, first, opportunity, and, second, adulterous desire or inclination of the parties charged. If these two facts appear in conjunction, you are at liberty to draw an inference of adultery provided you are satisfied thereof by a preponderance of the evidence, and believe the testimony offered in support of the charge. Either of these two facts alone would not be enough to justify you in returning a verdict against the defendant, and if you find that either is absent, your verdict must be in her favor. Held, that the court committed no error in refusing to affirm the point, the jury having been referred to the general charge where adequate instructions were given</p>

<p>Negligence — Collision between wagon and car — Evidence.</p> <p>In an action against the owner of a butcher wagon to recover damages for personal injuries, it appeared that on the morning of the accident, plaintiff boarded a summer street car, and while in the act of stepping from the running board into the car, which was then moving at the usual rate of speed, was struck in the back by the end gate of the wagon, which was standing with horses to the north, in charge of its driver on the west side of the street about twelve inches frotn the track. It appeared that the gate of the wagon had been opened for purposes of delivery and was closed back along the side of the wagon next the track. As the car came near the wagon the gate swung out towards the car, plaintiff was struck and the gate was broken loose from the wagon. There was nothing to show that force was applied by anyone so as to cause the gate to swing outward. The uncontradicted evidence was that whatever started the gate came from the front of the wagon where no one was standing. Defendant’s theory was that the advancing car, by driving a current of air behind the gate to the side of the wagon, displaced the gate from the wagon’s side and threw it out towards the track. The trial judge left it to the jury to determine whether the force supplied came from the wagon, or from the front. Held, that this charge gave plaintiff a larger opportunity for recovery than he was entitled to, inasmuch as there was no evidence that force had been applied to the end gate from behind, but as the verdict was for defendant the verdict should be affirmed.</p> <p>In such case an ordinance which required that wagons in stopping on the streets should stop on the right of the highway, is immaterial, although the wagon at the time of the accident was on the left-hand side of the street. The purpose of such an ordinance was merely to secure an orderly movement of traffic, and not to prevent accidents from end gates which might swing either to the right of or the left according to the construction of the wagon.</p>

<p>Appeal, No. 3, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1886, No. 313, on verdict for plaintiff in case of Frank Bums, surviving partner with Thomas Garrick, trading as Thomas Canicie and Company, v. Frank Ross, defendant, with notice to Harry J. Makiver, terre-tenant.</p> <p>Scire facias to revive judgment. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for |6,125. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 78, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 3,595, on verdict for defendant in case of American Bridge Company of New York v. Colonial Trust Company.</p> <p>Assumpsit on a guaranty. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error■ assigned amongst others was in directing a verdict for defendant.</p>

<p>Contract — Building contract — Rescission—Subcontractor.</p> <p>A contractor for a building operation excavated the cellars of the houses, and had the cellar walls built by another person. He then entered into a contract with a subcontractor for the superstructures. When the buildings were nearly up, one of the walls fell, and the contractor addressed a joint letter to the builder of the cellar walls and to the subcontractor for the superstructures, in which he notified them that he would hold liable whichever one of them was chargeable for the fall of the wall, and further stated that he would employ new contractors to do the necessary work. The contractor subsequently completed the operation himself. In an action by the subcontractor against the contractor, the court left it to the jury to determine whether the fall of the building resulted solely from the defective and improper cellar walls, or whether it was due to the failure of the plaintiff to do his work properly. Held, that a verdict and judgment for plaintiff should be sustained.</p>

Appeal, No. 156, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1904, No. 2,752, on verdict for defendant in case of Thomas Morris, by his next friend and mother Margaret T. Morris, v. The Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Davis, J. The statement of claim was not printed in the appellant’s paper-book.

Appeal, No. 94, Jan. T., 1906, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1905, No. 4,999, discharging rule for judgment for want of a sufficient affidavit of defense in case of John H. Hook v. Charles F. Jones. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 219, Jan. T., 1905, by Mary Birkbeck, from decree of O. C. Luzerne Co., No. 468 of 1900, dismissing exceptions to adjudication in Estate of Joseph Birkbeck, deceased. Exceptions to adjudication. Freas, P. J., found the facts to be as follows: Joseph Birkbeck died testate November 14,1900. He left a widow, Mary Birkbeck, the claimant, no children, and numerous collateral heirs.

Appeal, No. 360, Jan. T., 1905, by plaintiff, from decree of C. P. Clearfield Co., May T., 1905, No. 1, dismissing bill in equity in case of Pennsylvania Coal & Coke Company v. David Witlierow. Bill in equity for an injunction. Before Smith, P. J. The facts are set forth in the opinion of the Supreme Court. The court entered the following decree : 1. That the plaintiff’s bill be dismissed. 2. That the preliminary injunction issued March 15, 1905, be dissolved. 3.

<p>Contract• — Sale—Partnership—Judgment note.</p> <p>Where a partnership consisting of two persons sells all of the lumber manufactured by it at a fixed price, and is paid for it in advance of delivery, one of the partners cannot sell his interest in the partnership and take a judgment note therefor, assuring the purchasers of the lumber that the contract will be carried out by a new partnership, and assign the note to a bank as collateral for an antecedent indebtedness, and give the bank the right to levy under the judgment entered on the lumber not delivered to the purchasers.</p>

<p>Appeal, No. 76, Jan. T., 1906, by plaintiff, from judgment of C. P. Huntingdon Co., Dec. T., 1905, No. 49, for plaintiff on feigned issue in case of Kelly Springfield Road Roller Co. v. S. I. Spyker.</p> <p>Feigned issue to determine title to a steam road roller. Before Woods, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for plaintiff.</p>

<p>Appeal, No. 151, Jan. T., 1905, by-Charles B. Colt, from order of C. P. Erie Co., May T., 1905, No. 21, appointing guardian for weak-minded person in the matter of Charles B. Colt, alleged weak-minded person.</p> <p>Petition by the directors of the poor of Erie county praying for the appointment of a guardian for Charles B. Colt.</p> <p>The court entered the following decree :</p> <p>And now, April 3, 1905, due notice of the proceedings in above case having been given according to law, and Charles B. Colt, the party against whom the proceedings were taken, having been present at the hearing, and the court having heard all the testimony offered on both sides, including that of said respondent, the court being clearly satisfied that said Charles B. Colt is not able owing to weakness in mind to take care of his own property, the court does so decide and decree, and L. B. Jones, Esq., is appointed guardian to take care of the property of said Charles B. Colt. The costs of this proceeding to be paid out of respondent’s estate. Said guardian to give bond in the sum of five thousand dollars.</p> <p>Error assigned was the decree of the court.</p>

<p>Railroads — Eminent domain — Widening road — Width of right of way.</p> <p>On a bill in equity to restrain a railroad company from appropriating land for tbe widening of its road without having secured to tbe plaintiff compensation therefor, a decree continuing a preliminary injunction is properly entered where the court finds as a fact that the original entry on the land thirty years before was without permission or authority, and as there were no monuments on the land to indicate an appropriation of the full width of sixty feet, authorized by the defendant’s charter, no right had been acquired by occupation except as to the land actually used.</p>

Appeal, No. 9, Jan. T., 1906, by plaintiffs, from decree of C. P. Crawford Co., May T., 1905, No. 2, sustaining demurrer to bill in equity in case of Jane Megahey v. The Farmers’ and Mechanics’ Savings Fund and Loan Association and Myron Houghtaling. Bill in equity for an injunction. Before Thomas, P. J. The opinion of the Supreme Court states the case. Error assigned was the decree of the court sustaining the demurrer.

Appeal, No. 68, Jan. T., 1906, by the Union Trust Company, from decree of O. C. Erie Co., May T., 1905, No. 66, directing payment of money in Estate of William L. Scott, deceased. Petition for order to pay over money. Walling, P. J., filed the following opinion: William L. Scott, a resident of this city, died testate on September 19, 1891.

Appeal, No. 135, Jan. T., 1906, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1905, No. 123, on verdict for defendant in case of Wesley Noggle and Harvey Noggle v. Carlisle & Mt. Holly Railway Company. Trespass to recover damages for personal injuries. Before Sadler, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. The court directed a verdict for defendant. Plaintiff appealed. Error assigned was the order of the court.

<p>Appeals, Nos. 223 and 329, Jan. T., 1905, by Oliver Dalrymple et al., and by the Commonwealth of Pennsylvania, from decree of O. C. Warren Co., Dee. T., 1904, No. 27, on appeal from collaterial tax in Estate of W. F. Dalrymple.</p> <p>Appeal from appraisement for collateral tax.</p> <p>The court in a very lengthy opinion by Lindsey, P. J., found that the testator was domiciled at Pittsfield at the time of his decease, citing: Jacobs on Domicil, 120; Carey’s Appeal, 75 Pa. 201; Price v. Price, 156 Pa. 617; Kellogg v. City of Oshkosh, 14 Wisconsin, 678; Com. v. Emerson, 1 Pearson, 204; Hans v. State of Louisiana, 24 Fed Repr. 55; Frick’s App., 114 Pa. 29.</p> <p>The court also found that there was a conversion as to the land in North Dakota, citing: Drayton’s App., 61 Pa. 172; Miller v. Com., Ill Pa. 821; Williamson’s Estate, 153 Pa. 508, and Handley’s Estate, 181 Pa. 339.</p> <p>The court also further found as follows:</p> <p>In paragraph six of the second section the testator directs his executors and trustees to give to Frank Dalrymple,' his nephew, the use of the home farm on which he now resides, in Sugar Grove, Warren County, Pa., consisting of about seventy-five acres, for ten years, and at the expiration of ten years, to convey the same to him in fee simple. This title unquestionably passes to Frank Dalrymple as real estate and is not subject to any life estate or estate for years, and therefore does not come within the provisions of the third section of the act of 1887. The tax is presently payable on this legacj1’ by Frank Dalrymple, the legatee.</p> <p>In paragraph seven, the testator directs his executors and trustees to hold, manage, operate, develop, improve, etc., all the balance of his estate for a term of ten years and for such longer time as they may deem necessary, not exceeding twenty years. And in paragraph eight he makes the following direction : “ At the expiration of ten (10) years- after my decease, or at such other time or times after said ten (10) years but prior to the expiration of twenty (20) years from my decease as my said executors and trustees or their successors in the trust shall deem expedient or advisable, and for the best interests of my estate, I direct that all the said balance of my estate, together with all proceeds of the sale thereof and all interest, income and accumulations thereof then remaining in their hands, except the above mentioned specific devises and bequests, be by them paid over, delivered and distributed as follows, to-wit, in equal shares to the then living children or lineal descendants by right of representation of my six brothers, to-wit, David Dalrymple, Mark Dalrymple, Reuben Dalrymple, Clark Dalrymple, Oliver Dalrymple and Sheldon N. Dalrymple.”</p> <p>We do not think this paragraph falls under the third section of the act of 1887. There is no life estate created, or such estate for years as is contemplated by this section of the act. Therefore Coxe’s Estate relied on by appellants does not apply to this case, either as reported in 181 Pa. 369, or in 193 Pa. 100.</p> <p>The court entered the following decree :</p> <p>And now, June 12, 1905, it is ordered, adjudged and decreed that the executors and trustees of the estate of W. F. Dalrymple, deceased, George H. Noyes, H. C. Hale and Jay M. Smith, pay to the register of wills of Warren county, Pennsylvania, within thirty days from this date, the collateral inheritance tax at the rate of $5.00 on every $100 on each of the specific bequests named in paragraphs three, four and five of section 2 of the testator’s will, amounting in the aggregate to $3,900. And it is further ordered, adjudged and decreed that the said trustees pay to the said register of wills the collateral inheritance tax on the balance of said estate passing to the legatees at the rate of $5.00 upon every $100, as provided in paragraph eight of said will, amounting in the aggregate to $2,872.67, within thirty days from this date. And it is further ordered, adjudged and decreed that Frank Dalrymple pay to said register of wills, $5.00 for every $100 on the appraised value o£ the farm devised to him, amounting to $60.00 within thirty days from this date ; and it is ordered, adjudged and decreed that the said executors and trustees pay the costs of these proceedings within thirty days from this date.</p> <p>Error assigned amongst others was the decree of the court.</p>

<p>Appeal, No. 166, Jan. T., 1905, by plaintiff, from judgment of Superior Court Oct. T., 1904, No. 131, reversing judgment of C. P. Delaware Co., Dec. T., 1903, No. 223, on verdict for plaintiff, in case of Joseph Robinson v. Borough of Norwood.</p> <p>Appeal from Superior Court. See 27 Pa. Superior Ct. 481.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 200, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1905, No. 877, on verdict for plaintiff in case of Charles S. Wagoner, Assignee of Wilmer W. Slack et ah, v. City of Philadelphia. Assumpsit for wages. Before Davis, J. The facts are stated in the opinion of the Supreme Court. The court refused binding' instructions for defendant. Verdict and judgment for plaintiff for $3,112.39. Defendant ■ appealed.

<p>Equity — Equity practice — Opinion—Findings of fact and law — Equity Rule 62.</p> <p>Where an opinion in an equity case is arranged in a clear and orderly way, and the facts and law are considered separately, the decree based upon the opinion will not be reversed because the findings of fact and law are not set forth in separate and numbered paragraphs as provided by Equity Rule 62.</p> <p>Equity — Equity practice — Review.</p> <p>The appellate court will not reverse a final decree in equity because the court did not sit in bano to pass upon the exceptions, where on the face of the decree it appears to have been made “By the Court” and not by an individual judge.</p> <p>Easement — Merger—Extinguishment of easement.</p> <p>Where there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish the easement on the servient estate absolutely and forever, for the reason no man can have an easement in his own land.</p> <p>Deed — Description—Courses and distance.</p> <p>Where land is sold according to a plan of lots, and a deed for one of the lots shows that a course was evidently omitted, the missing course may be shown from the description in the deed for the adjoining lot.</p> <p>Easement — Right of way — Express grant — Permissive use.</p> <p>An express grant of the use of a stable yard for access to the rear of adjoining premises is a privilege personal to the owner of such premises, and does not enure to the benefit of adjoining owners.</p> <p>Where a user is with the knowledge and acquiescence of the owner of the land traversed, and is under his leave, favor and permission, and at his will, no title by prescription can arise.</p>

<p>Easement — Bight of way — Permissive use — Presumption of grant — Adverse use.</p> <p>If the use of a way is merely a permissive use, no presumption of- grant can use from lapse of time.</p> <p>Even where a right of way or other easement has been acquired by grant twenty-one years’ occupation of the land adverse to the easement and inconsistent with it bars the right.</p>

Appeal, No. 5, Jan. T., 1906, by defendant, from judgment of C. P. Bucks Co., Sept. T., 1903, No. 1, on case stated for plaintiff in suit of Joseph C. Cooke v. William E. Doron. Case stated to determine title to an interest in real estate. From the case -stated it appeared that Catharine H. Doron, was a sister of the defendant and seized with him as tenant in common of certain real estate in Bucks county. In 1893 Catharine II. Doron married Joseph C. Cooke, the plaintiff.

Appeal, No. 77, Jan. T. 1905, by defendant, from judgment of C. P. Berks Co., Jan. T., 1902, No. 18, on verdict for plaintiff in case of Milton L. Shirey v. The Consumers’ Gas Company. Trespass to recover damages for injuries caused by the explosion of gas. Before Endlich, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,296.80. Defendant appealed.

Appeal, No. 284, Jan. T., 1905, by defendant, from judgment of O. P. Bradford Co., Sept. T., 1898, No. 468, on verdict for plaintiff in case of James Dalton v. Towanda Borough. Trespass to recover damages for personal injuries. Before Cameron, P. J., specially presiding. The circumstances of the accident are set forth in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,000. Defendant appealed.

Appeal, No. 372, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., June Term, 1904, No. 5,239, on verdict for plaintiff in case of Mattie O’Brien by her mother and next friend, Louisa O’Brien, and Louisa O’Brien v. City of Philadelphia. Trespass to recover damages for personal injuries.

Appeal, No. 379, Jan. T., 1905, by-plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1901, No. 1,339, for defendant non obstante veredicto in case of Louis Dalrnas v. Clay Kemble. Assumpsit for commissions. Before McMichael, J. At the trial the jury returned a verdict for plaintiff for $5,000. On a motion for judgment non obstante veredicto under the Act of April 22, 1905, P. L. 286, the court entered judgment for the defendant non obstante veredicto.

<p>Factors — Commission merchants — Counsel fees.</p> <p>Where a commission merchant starts litigation to maintain his rights as a pledgee of goods consigned to him, and this litigation is not against the consignor, but against other persons claiming goods as their own, and the litigation results successfully in favor of the commission merchant, the latter is not entitled to take from the balance in his hands after his debt has been paid counsel fees and expenses incurred by him in the litigation.</p> <p>There can be no recovery for counsel fees from the adverse party to a cause in the absence of express statutory allowance of the same.</p>

<p>Appeal, No. 107, Jan. T., 1906, by the Equitable Trust Company, Assignee and Receiver of the Keen-Sutterle Company, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 792, dismissing exceptions to report of referee in case of C. Shillard Smith et al., trading as Phillip Jagode & Company v. The Equitable Trust Company et al.</p> <p>Exceptions to report of H. Gordon McCouch, Esq., referee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to report of referee.</p>

<p>Appeal, No. 104, Jan. T., 1906, by J. B. Moors & Company, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 792, dismissing exceptions to referee’s report in case of C. Shillard Smith etal., trading as Philip Jagode & Company, v. Joseph B. Moors and Arthur W. Moors, trading as J. B. Moors & Company et al.</p> <p>Exceptions to report of H. Gordon McCoueh, Esq., referee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to report of referee.</p>

<p>Appeal, No. 54, Oct. T., 1906, by C. O. Lappe et al., from decree of O. C. Allegheny Go., Oct. T., 1905, No. 218, refusing an appeal from register of wills in Estate of John Christian Lappe, deceased.</p> <p>Appeal from register of wills.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the appeal.</p>

Appeal, No. 317, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., June T., 1902, No. 165, dismissing exceptions to report of referee in case of House of Refuge v. County of Luzerne. Exceptions to report of Joseph D. Coons, Esq., referee. The opinion of the Supreme Court states the case. Error assigned was order dismissing exceptions to report of referee.

Appeal, No. 271, Jan. T., 1905, by plaintiff, from order of ■ C. P. Luzerne Co., Oct. T.,' 1895, No. 247, refusing to take off nonsuit in case of John Slota v. The Albert Lewis Lumber & Manufacturing Co., and the Lehigh Valley Railroad Company. Trespass to recover damages for personal injuries. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Railroads — Eminent domain — Witness—Competency of witness.</p> <p>Where land is taken by a railroad in a neighborhood where sales of real estate are few and at long intervals, a witness called to testify as to values is not required to have as full and detailed knowledge on the subject as in other localities where sales are frequent and of public interest,and attention. In all questions of competency on such a subject there must be a sliding scale, the only standard of which is that the witness shall have such knowledge of the subject-matter as can be reasonably expected in view of the circumstances of the particular case.</p>

<p>Evidence — Witness—Interested witness — Assignment of interest — Act of May 23, 1887, P. L. 158.</p> <p>An assignment of a party to a controversy made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends, and is ineffectual to accomplish that purpose.</p> <p>Appeals — Rulings on evidence — Arbitration—Exceptions.</p> <p>Where no exceptions are taken to the rejection by a referee of an offer of evidence, the question whether the rejection of the offer is erroneous cannot be considered on appeal.</p> <p>Evidence — Minutes of corporation — Rejection of minutes.</p> <p>The minutes of a corporation cannot be excluded as evidence on the ground that the secretary who produces them is a stockholder, and therefore interested; but they may be excluded where they are not shown to be pertinent to the issue.</p> <p>Statutes of limitations — Account stated — Running accounts — Act of March 27, 1713, 1 Sm. L. 76.</p> <p>The statute of limitations begins to run against an account stated from the date when rendered, but this rule does not apply to such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants.</p>

Appeal, No. 303, Jan. T., 1905, by defendant, from order of C. P. Luzerne Co., Oct. T., 1905, No. 607, discharging rule to arbitrate in case of Sallie Henry and Sarah J. Atherton, Executrix of James P. Atherton, v. Lehigh Valley Coal Company. Rule to show cause why an agreed submission to arbitrate should not be made a rule of court.

Appeal, No. 84, Jan. T., 1906, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1905, No. 107, on verdict for plaintiff in case of George White and Emily D. White v. The Columbia and Montour Electric Railway Company. Trespass to recover damages for personal injuries. Before Staples, P. J., specially presiding. At the trial the jury returned a verdict of @5,000 for George White and @7,000 for Emily D. White.

<p>Appeal, No. 115, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., May T., 1901, No. 370, refusing to take off nonsuit in case of M. J. Mulderig v. Wilkes-Barre Times.</p> <p>Trespass for libel. Before Wheaton, J.</p> <p>The publication complained of was as follows:</p> <p>“ A weekly contemporary has suggested the dropping of the Dillionis ease, a much to be desired result, but the prosecutors of that much abused man will not let the matter drop. And as the principle of free speech, so dear to all Americans is involved, the matter must be fought out with these ignorant foreigners until they are taught that they are not now in barbarous Russia. The last and worst feature of the Dillionis episode was the prosecution, on Friday night, before a Justice named Mulderig, of the Rev. J. J. Fletcher, the pastor of the First Presbyterian Church, of Pittston, an eminent Christian minister, on trumped up charges under the disorderly conduct Act of 1895.</p> <p>“ The head and front of the Rey. Mr. Fletcher’s offending is that he has stood up in defence of Dillionis and in behalf of that constitutional right of every American, free speech. It appears that on the night of February 3d, the reverend gentleman went to Booth’s Hall, Pittston, and on his arrival he found a fight on, the crowd having Dillionis in a side room. Mr. Fletcher endeavored to assist him, and remonstrated with the assailants. These very assailants are now the prosecutors of Mr. Fletcher and it was hoped by the assistance of one Mulderig, Justice of the Peace, at Inkerman, that they would humiliate him and compel him to spend a night in jail. The evidence of the prosecutors to the effect that he was flourishing a revolver was entirely disproved, but the sycophantic Justice immediately gave judgment.</p> <p>“He said that under the testimony given and in view of the fact that Mr. Fletcher admitted going to the place in question, and as disorderly conduct was committed (?) he would find the defendant guilty and would fine him $10 and costs or thirty days in jail.</p> <p>“ So determined was he to send Mr. Fletcher to the county prison after the latter had refused to pay the fine, that he hesitated about obeying Judge Halsey’s order to allow the defendant to give bail in $30 and appeal.</p> <p>“ This man Mulderig ought to be impeached and a full investigation into his past record might possibly develop other charges for securing his ignominious discharge from a magisterial office.</p> <p>“Never in coercion days in Ireland was there a more wicked conspiracy to deprive men of their right to their spoken opinions and to railroad them to prison for daring to stand up in defence of those rights.</p> <p>“ This man Mulderig has certainly mistaken his vocation and has not yet realized that he is living in the land of the free and the home of the brave.</p> <p>“ The vicious disorderly conduct Act of 1895 is largely responsible for opening the way for wicked and unfounded charges, and many an innocent man and woman has been ‘ pulled,’ under a certain construction of its clauses, and mulcted in heavy fines and costs and in default sent up to jail. These charges are invariably heard at night so that very little opportunity is given to the defendants to obtain bail, hence it has been ‘ pay up promptly or go to jail.’</p> <p>“ Ample illustrations can be given of the dangerous character of this Act, and we hope no effort will be spared to secure its repeal this session. There is not a decent member of Luzerne bar that will speak a word in its favor and there is no better body of legal gentleman in the State of Pennsylvania. Pittston and West Pittston has never had an opportunity of fairly-testing this blot upon our statute books and realizing its vicious character. A special petition should therefore be sent by the citizens to the legislature without delay and we have no doubt it will be extensively signed.”</p> <p>• The court entered a compulsory nonsuit whiehiit subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Contract — Bailment—Sale—Replevin.</p> <p>In an action of replevin it appeared that the plaintiff by an instrument in writing leased to the defendant a quantity of rails together with a steam shovel and a number of dump cars. A rental payable in installments was provided for, and it was further agreed that upon the payment of $10.00 in addition, defendants could purchase the equipment. It was also provided that in case of default in payment of rental plaintiff might take possession of the property. Throughout the contract the articles leased were repeatedly referred to as “said equipment.” The articles were separately valued. The cars and shovel were marked as the property of the plaintiff, while nothing of the kind was required with respect to the rails. It was also stipulated that the shovel and cars were not to be removed from the lessee’s work. Held, that the contract was a contract of bailment, and not a sale of the rails as well as of the shovel and cars, and that on default the lessors could seize the rails as well as the shovel and cars.</p>

Appeal, No. 116, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., May T., 1903, No. 387, refusing to take off nonsuit in case of Abe Baicker v. Peoples Street Railway Company of Nanticoke & Newport. Trespass to recover damages for personal injuries. Before Ferris, J. . The opinion of the Supreme Court states the case. Error assigned was refusal to take off nonsuit.

Appeal, No. 117, Jan. T., 1906, by-plaintiffs, from judgment of C. P. Clearfield Co., May T., 1903, No. 146, on verdict for defendants non obstante veredicto in case of Dimeling & Co. v. Buffalo, Rochester & Pittsburg Railway Company. Assumpsit on an alleged oral contract. Before Atjten, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $9,324.

<p>Practice, C. P. — Amendment—Cause of action — Statute of limitations— Prcecipe.</p> <p>Where the prothonotary by mistake issues a summons in assumpsit on a prieeipe in trespass, the court may permit the record to be amended so as to show that the action was in trespass, although such amendment is made after the statutory period within which to bring the action had expired. In such a case the amendment does not involve a change in the cause of action.</p> <p>The praecipe is a part of the record.</p> <p>Negligence — Damages—Wrongful instructions — Reversal of judgment.</p> <p>Where in an accident case the instructions as to damages are manifestly erroneous, the Supreme Court will reverse the judgment, although neither the plaintiff nor defendant asked at the trial for specific instructions as to the measure of damages.</p> <p>- In a negligence case when future payments are to be anticipated and capitalized in a verdict, the plaintiff is entitled only to their present worth.</p> <p>In such a case it is error for the court to charge the jury that “in arriving at the amount, you will find what her earning power was prior to the accident, and deduct that from her earning power since the accident, and then take the period of time she will be deprived of her earning power and compute it accordingly.”</p>

<p>Appeal, No. 224, Jan. T., 1905, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1904, No. 72, on verdict for defendant in case of Job L. Green y. T. Fernley Brooks, Trustee, and Strang & Forsythe.</p> <p>Feigned issue to determine the title to personal property taken in execution. Before Smith, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>In the course of the trial counsel for the defendants made the following suggestion to the court:</p> <p>Mr. Krebs: May if please the court, a circumstance the jury may consider is that plaintiff’s son was here in court and was not called.</p> <p>The Court: Well, that is of course for the jury. Was that proven ?</p> <p>Mr. Krebs: Yes.</p> <p>The Court: It was proven in evidence, I believe, that George W. Green was present in court and was not called in the case. That is to be taken into consideration by you in your final determination.</p> <p>Mr. Boulton: We take exception there. There is no evidence at all of that.</p> <p>The Court: That is the only point there is in it. My recollection is there is evidence, I recall now there was. If that is not true, gentlemen of the jury, that should not be taken into consideration. The statement of Judge Krebs that he was here in court has no weight, but if it was proven here that George W. Green was here in court, then that is to be taken into consideration, and my recollection is now that that was proven, but that is entirely for you. The statement of counsel either one way or the other cannot have any weight on any question of fact. Counsel are not here to testify. But if that is a fact, that it was proven here that George W. Green was in court and did not testify or was not called upon to testify, it is to be taken into consideration by you along with other facts, not as a conclusive fact, however. [1]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned among others was (1) above instruction, quoting it.</p>

<p>Appeal, No. 44, Jan. T., 1906, by defendant, from judgment of O. P. Erie Co., Feb. T., 1905, No. 30, on verdict for plaintiff in case of M. B. Messinger v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Thomas, P. J., specially presiding.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $6,000. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Railroads — Eminent domain — Damages—Division of land — Town lots— Witness.</p> <p>Where an owner of 150 acres of land divides ninety acres thereof into town lots, and subsequently a railroad company condemns a right of way through the ninety acres, the owner will not be permitted in condemnation proceedings to divide his land into two tracts, and to assess his damages for the injuries done to the ninety acre tract alone, as being the only part of the property affected by the appropriation.</p> <p>Where land has been divided into lots and subsequently a railroad company has condemned a right of way through such land, the owner will not be permitted to introduce testimony to show that the railroad would take so many lots shown on the plan of lots, and the average value of the lots.</p> <p>In railroad condemnation proceedings a witness as to land values cannot be interrogated in his examination in chief as to the money values of land similar to that under investigation.</p> <p>In railroad condemnation proceedings it is’error to admit in evidence an unrecorded paper plan of lots which were not marked on the ground, made twelve years prior to the time of the appropriation, and not including all. of the land as to which damages were to bo assessed.</p>

<p>Railroads — Eminent domain — Measure of damages — Profits—Map—Evidence.</p> <p>The measure of damages for land taken or injured by a railroad company under the right of eminent domain is the difference in the market value of the tract as a whole before the taking and afterwards as affected by it. In adjusting this difference, the landowner is entitled to have the jury take into consideration the value of his property for any and every purpose or use to which it may be adapted, and to have the damages assessed upon a basis of the most valuable use to which the property may be adapted. On the other hand, the railroad company is entitled to any benefits or advantages which may accrue to the part of the tract of land, not taken or injured, by reason of the construction of the improvement.</p> <p>No allowance of damages for an actual or supposed loss of business profits carried on upon the premisos can be made.</p> <p>A landowner is not limited to any one use for which his property may be available, but ho is entitled to have its value considered for any and all purposes for which it can be used. He may, therefore, show by any competent testimony, expert or otherwise, that it is specially valuable for a certain particular purpose, such for instance as the raising of ducks. He will not, however, be permitted to show how many ducks he raised, or could raise in a year; nor will his witnesses be permitted to base the estimate of damages upon the profits which they thought the owner would derive from the duck-raising business.</p> <p>In such a ease the defendant railroad company cannot show that the use of the land as a duck farm would pollute the stream passing through it, and thereby prevent the use of the land for duck-raising purposes. Such a question is a collateral issue relating to matters between the owner and the lower riparian owners, and the railroad company in condemnation proceedings is not in a position to raise it.</p> <p>In railroad condemnation proceedings it is proper to reject a map which is shown to be an incorrect representation of the ground, and made by a party who had not the data from which he could make an accurate map.</p>

<p>Mortgage — Bond—Evidence.</p> <p>At the trial of a scire facias sur mortgage, the mortgage may be admitted without the accompanying bond. In such a case there is a presumption that the bond has not been discharged.</p> <p>Mortgage — Presumption of payment — Evidence.</p> <p>A lapse of less than twenty years from the time a mortgage became due if aided by other circumstances to support it as a presumption of payment, may be submitted to the jury as a ground for presuming the fact of payment; but where there are no other circumstances tending to support the presumption of payment, and there is evidence that the mortgage had not been paid, the court may give binding instructions for the plaintiff on a scire facias on the mortgage.</p>

Appeal, No. 335, Jan. T., 1905, by-defendant, from judgment of C. P. Potter Co., Sept. T., 1903, No. 177, on verdict for plaintiff in case of D. H. Lamb v. Pike Township. Trespass to recover damages for personal injuries, alleged to ' have been sustained by permitting a natural gas pipe to remain as an obstruction in a highway.

<p>Receivers — Railroads—Appeals—Bond—Act of May 19, 1897 — Quashing appeal.</p> <p>Where the receiver of a railroad company fails to intervene in a pending suit against the company, and judgment is entered in sdch suit for plaintiff, an appeal taken by the receiver after filing an unapproved bond for a nominal sum only, will be quashed.</p>

<p>Mechanic’s lien — Notice—Sworn statement — Contract—Act of June 4, 1901, P. L. 431.</p> <p>Under the Act of June 4, 1901, P. L. 431, relating to mechanics’ liens, it is not necessary to set out a copy of the notice to the owner in the claim itself. An averment of the date when, and the manner in which, the notice was served, is a sufficient compliance with the requirements of the act.</p> <p>The notice and sworn statement provided by the Act of June 4, 1901, P. L. 431, are sufficient to sustain a lien for water pipe, where' such notice and statement set forth the contract, and specifications as to the size, weight and price of the water pipe, with averments as to the kind of pipe furnished, the amount due, the manner in which such amount was made up, and the date when the last of the material was furnished. In such a ease it is not necessary that the notice should allege that the materials were furnished in accordance with the specifications of the contract.</p> <p>A bill of particulars annexed to a mechanic’s claim and filed therewith is to be taken as part of the lien.</p> <p>It cannot be objected to a mechanic’s lien filed under the Act of June 4, 1901, P. L. 431, that the lien is defective because the bill of particulars did not set forth “the kind of materials furnished” where it appears from the claim, the bill of particulars and the notice filed with it taken as a whole, that there could be no possible misunderstanding as to “the kind of materials furnished.”</p> <p>An objection to a mechanic’s lien that it does not contain any averment that the material was shipped in accordance with the specifications of the contract, is unfounded, where it is expressly alleged that under the contract the subcontractors furnished the materials set forth in the bill of particulars.</p> <p>A substantial compliance with the Act of June 4, 1901, P. L. 431, is sufficient, and this is shown to exist wherever enough appears, on the face of the statement, to point the way to successful inquiry. Adherence to the terms of the statute is indispensable, but the rule must not be pushed into such niceties as serve but to perplex and embarrass a remedy intended to be simple and summary, without in fact, adding anything to the security of the parties having an interest in the building sought to be encumbered. Certainty to a common intent has, therefore, always been held to suffice.</p>

Appeal, No. 143, Jan. T., 1905, by plaintiff, from judgment of C. P. Erie Co., May T., 1904, No. 129, on verdict for defendants in case of Rosalia A. Ross, v. Edwin C. Dewey and William H. Ross. Ejectment for land in North East Borough. Before Bouton, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 148, Jan. T., 1906, by plaintiff, from order of C. P. Tioga Co., Sept. T., 1904, No. 273, refusing to take off nonsuit in case of DeLana Keeney v. Eben B. Campbell and Girard F. Hagenbuch, copartners under the firm name of Campbell & Hagenbuch.</p> <p>Trespass to recover damages for personal injuries. Before Cameron, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Appeal, No. 304, Jan. T., 1905, by plaintiff, from order of G. P. Montgomery Co., March T., 1905, No. 166, striking off judgment in case of William P. Lawrence v. Bernard Smith.</p> <p>Scire facias sur mortgage.</p> <p>Rule to open judgment. Before We and, J.</p> <p>The writ was issued April 11, 1903, returnable May 11, 1903, and was duly served upon the defendant, who was mortgagor and real owner.</p> <p>On April 17, 1905, judgment was entered against the defendant by default for want of an appearance.</p> <p>On May 15, 1905, the executors -of the defendant presented a petition averring that defendant had died on November 30, 1904 (about five and one-half months before the entry of judgment, and a little over a year and a half after the return day of the writ which was served upon him), asking to have the judgment and all proceedings thereon stricken off, because the said Bernard Smith was dead at the time the judgment was entered, and the petitioners were not made parties to the action.</p> <p>On this petition a rule was granted to show cause why the judgment should not be opened, and later a rule to strike off.</p> <p>After argument the court made the rule to strike off absolute.</p> <p>Error assigned was the order of the court striking off the judgment.</p>

Appeal, No. 253, Jan. T., 1905, by plaintiff, from order of C. P. Fayette Co., Sept. T., 1904, No. 331, refusing to -strike off nonsuit in case of D. R. Snider and J. H. Campbell, under the firm name of D. R. Snider & Co., v. William L. Harvey. Assumpsit to recover a balance of account alleged to be d.ue. Before Umbel, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 38, Jan. T., 1906, by defendant, from judgment of C. P. Fayette Co., June T., 1904, No. 272, for plaintiff on case stated in suit of James West and Morgan West v. Pierce Frazee Yernon.</p> <p>. Case stated to determine marketable title to real estate. Before Umbel, J.</p> <p>From the case stated it appeared that James West died seized of the property in question, leaving a will, the part of it material to the controversy being quoted in the opinion of tlie Supreme Court. James West and Morgan West, the plaintiffs, were the only living children and heirs of James West, the testator. After the death of the testator, Mary Frances West was married to Pierce Frazee Yernon, the defendant, to whom she devised all her estate in fee simple. She died childless. The ease stated submitted for the determination of the court the question as to whether or not Mary Frances West took only a life estate in the land under her father’s will or whether she took a fee simple which passed by her devise to her husband, Pierce Frazee Vernon.</p> <p>The court entered judgment for plaintiffs on case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Contract — Evidence—Technical terms — Parol evidence.</p> <p>In. an action upon a written contract where it appears that the plaintiff was to do all of what was “properly brick work” in a building operation, and it nowhere appears from the contract, or the specifications what was included by the words “properly brick work,” parol evidence is admissible to explain their meaning.</p>

<p>Negligence — Street railways — Crossing—“Stop, look and listen” — Car and wagon — Nonsuit.</p> <p>In an action against a street railway company to recover damages for personal injuries it appeared that the plaintiff was riding in a closed laundry wagon going in the direction in which the cars ran, and the only precaution he took before crossing the tracks was to stop and look back when twenty-five or thirty feet from the crossing. He then drove on slowly and without looking again turned across the tracks, and was struck by a car which he could have seen if he had looked again before turning or when at the edge of the tracks. Held, that a nonsuit was properly entered.</p> <p>Appeal, No. 304, Jan. T., 1904, by plaintiff, from order of C. P. Lancaster Co., April T., 1902, No. 2, refusing to take off nonsuit in ease of Charles A. Kannenberg v. The Conestoga Traction Company.</p> <p>Trespass, to recover damages for personal injuries. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Taxation — Mercantile tax — Manufacturers—Tanners—Exemption.</p> <p>Where a tanner concedes that he manufactures leather in Virginia, and sells it in a store in Pennsylvania, the commonwealth has a prima facie right to the mercantile tax upon the whole volume of the business, and the burden of showing that any portion of the sales is exempt, rests upon the tanner. The fact that the leather is cut in the store into various sizes and pieces, but not manufactured into any complete article, does not exempt from taxation the leather thus treated, on the ground that it was manufactured into articles for sale.</p>

<p>Appeals, Nos. 29, 30, 31, 32 and 33, Jan. T., 1906, by plaintiff, from judgment of Superior Court April T., 1905, Nos. 187, 188, 189, 190, 191 and 192, reversing judgment of C. P. Fayette Co., June T., 1894, Nos. 4, 5, 6, 7, Augustine, for use of Daniel Augustine, for use of Jasper Au-9 and 11, discharging rule to open judgments in case of Jasper gustine v. Joseph Wolf.</p> <p>Appeal from the Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court and by the report of the case in 29 Pa. Superior Ct. 336.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 4, Jan. T., 1906, by plaintiff, from order of O. P. Lancaster Co., Aug. T., 1904, No. 136, refusing to take off nonsuit in case of Mosheh W. Eisenberg by bis father and next friend, Abraham Eisenberg, and Abraham Eisenberg v. Edward T. Fraim, Proprietor of the Keystone Lock Works. Trespass to recover damages for personal injuries. Before Hassler, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 278, Jan. T., 1904, by plaintiff, from order of C. P. Lancaster Co., Aug. T;, 1902, No. 68, refusing to take off nonsuit in case of Abraham B. Levenite v. City of Lancaster. Trespass to recover damages for personal injuries. Landis, P. J, filed the following opinion: The facts of this case were not doubtful.

<p>Public offlcers — County treasurer — Warrants—Evidence.</p> <p>On an appeal from the report of county auditors settling the account of a county treasurer, it is proper to exclude offers of warrants, where it appears that the alleged warrants were not delivered to the several persons entitled to payment, and paid by the treasurer on presentation to him, but that they were warrants issued by the county commissioners for the aggregate amount of various bills previously paid by the treasurer, and that ■many of such bills were altered, raised and forged.</p>

<p>Railroads — Condemnation proceedings — Witness—Expert—Cross-examination — Evidence.</p> <p>On the trial of a proceeding to assess damages for land condemned by a railroad company, it is error to refuse to permit the counsel for the railroad to cross-examine the landowner’s witnesses as to their competency before they testify in chief as to the value of the land and the damages sustained.</p> <p>In such a case, as the competency of the witnesses is a primary question for the court, it should be made to appear and be passed upon by the court before the witnesses are permitted to express any opinion. It is not sufficient that if, after the witnesses have testified in chief as to the damages in the case, it should appear on cross-examination that they did not have the requisite knowledge to make them competent, their testimony could then be struck out. The harm done by the submission of their opinions to the jury cannot be cured.</p> <p>In a railroad condemnation case it is error to deny to the counsel of the railroad the right to interrogate the landowner’s witnesses on cross-examinafion as to the value of a part of the plaintiff’s land after it had been cut by the railroad. Although such questions cannot be asked the witnesses in their examination-in-chief, they are entirely proper on cross-examination.</p> <p>In a railroad condemnation case counsel for the railroad company cannot be permitted to show the price at which the plaintiff purchased the land seventeen years prior to the time when the railroad company entered upon it.</p>

<p>Mines and mining — Registration of miner — Constitutional law — Constitution of the United States — Act of July 15, 1897, P. L. 287 — Statutes.</p> <p>Tho Act of July 15, 1897, P. L. 287, is to be construed so as to require as a qualification for registration of miners two years’ experience in the anthracite coal mines of the commonwealth, and thus construed the act is not unconstitutional as violating the constitution of the United States, as to the privileges and immunities of citizens.</p> <p>The courts may put a literal construction on a penal clause, and a liberal construction on a remedial clause in the same statute.</p>

<p>Appeal, No. 177, Oct. T., 1905, by plaintiff, from decree of O. P. No. 2, Allegheny Co., Oct. T., 1908, No. 185, dismissing bill in equity in case of Eliza Thaw Edwards v. Pittsburg Junction Railroad Company.</p> <p>Bill in equity for an injunction.</p> <p>The plaintiff, who was the owner of a tract of land in the city of Pittsburg, containing about eight acres on which was erected a three-story brick mansion house, occupied continuously for thirty years by the plaintiff and her family, complained that the defendant company entered into the city of Pittsburg with its railroad adjacent to the plaintiff’s property (after the plaintiff had acquired her property) under an ordinance of the city of Pittsburg, which made it the express condition of such occupancy that the defendant should not use its locomotive steam whistles as signals, and that bituminous-coal should not be used for fuel on locomotives on the route. Plaintiff represented among other things that the defendant company did use bituminous coal for fuel in the running of its locomotives and lines of freight to such an extent as to constantly emit great clouds of dense black smoke or soot, and signaled the running of its trains by loud and shrill whistles at all hours of the day and night; that the smoke and soot so emitted penetrated into the property and residence of the plaintiff to the great injury and depreciation thereof, and the discomfort, annoyance and injury to the health of the plaintiff and her family; and that the constant whistling of the steam whistles disturbed the sleep, quiet and comfort of her family and herself, and was annoying and greatly to the prejudice of their health and comfort; that the injury to the property has continued and is constantly depreciating the desirability of the same for residences and the value of the same for sale, should she desire to sell it, and that the health and enjoyment and comfort of her home has been seriously menaced and affected by the said grievances, and will continue to be so so long as the defendant company continue the grievances complained of.</p> <p>Plaintiff prayed that the defendant company be enjoined and restrained from using upon its locomotives upon the route of its railroad bituminous coal as fuel, and that the defendant company be enjoined from permitting signaling by steam whistles, or the pulling of steam whistles by its locomotives while upon, standing upon or traversing the route aforesaid, and for other relief.</p> <p>Defendant filed an answer, and testimony was taken before Shaker, J., who after argument entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 256, Jan. T., 1905, by defendant, from decree of C. P. Lackawanna Co., Sept. T., 1905, No. 3, on bill in. equity in case of John Hayes, Burgess, v. Frank Sturges et al.</p> <p>Bill in equity for an injunction. Before Newcomb, J.</p> <p>The court found the facts to be as follows :</p> <p>1. The borough of Old Forge was incorporated by decree of the quarter sessions of this county in 1899. In accordance with the Act of May 22, 1895, P. L. 109, it had seven councilmen to be elected at large, three of whom were elected at the February election in 1900 for three years, two for two years, and two for one year. As these terms expired the vacancies were filled by the election of the corresponding number for three years.</p> <p>2. By subsequent proceedings in accordance with the Act of May 14, 1874, P. L. 159, and its supplements, the borough was divided into six wards by decree of the court of quarter sessions. It was ordered that each ward should be entitled to elect two councilmen, but not so as to interfere with the terms of those already elected, and that at the next municipal election the qualified voters should elect councilmen for terms of three years in all but the first ward, to wit: two each in the second, third and fifth, and one each in the fourth and sixth wards, a total of eight. It will be noted, by reference to the next finding, that for the year 1904 the borough had thirteen councilmen, but that circumstance is not material to this case.</p> <p>3. Three members had been elected at large in 1903, for three years, viz.: Philip Swartz, William H. Jones, A. Constanzo. Their term expires in 1906. Two had been elected in 1902^ viz.: Martin O’Malley, Daniel Dougherty. Their term expired this year. These five under the law continued in office after the ward elections in 1904, in pursuance of the decree, at which the following were elected without designating by the- ballots or otherwise, any specific terms :</p> <p>Second Ward, Frank T. Sturges,</p> <p>Eugene Mott.</p> <p>Third Ward, John H. Conway,</p> <p>Patrick F. Coyne.</p> <p>Fourth Ward, Clarence Snyder.</p> <p>Fifth Ward, James Melvin,</p> <p>Thomas Pickerell.</p> <p>Sixth Ward, P. J. Conway.</p> <p>It may be noted in this connection that two of the “ holdovers,” Constanzo and Swartz, lived in the first ward; Jones lived in the fourth ward; and Dougherty in the sixth ward. In which ward O’Malley lived doesn’t appear.</p> <p>4. Dougherty died in 1904, and Jonah Hapgood was appointed to fill the vacancy thereby created.</p> <p>5. In 1905, at the Spring election, the following were elected councilmen for specific terms noted as follows :</p> <p>Second Ward, Frank T. Sturges, 3 years.</p> <p>Edward Priest, 2 years.</p> <p>Third Ward, James Bonner, 3 years.</p> <p>Antonio Ripa, 3 years.</p> <p>Fourth Ward, Clarence Snyder, 1 year.</p> <p>Fifth Ward, William Allen, 2 years.</p> <p>Richard E. Gray, 2 years.</p> <p>Sixth Ward, William Thomas, 2 years.</p> <p>Jonah Hapgood, no term.</p> <p>6. With the exception of Hapgood, these, together with the three members elected at large in 1903, claim to be the town council. Hapgood declined to recognize the body so constituted, refused to attend their meeting, they declared his seat vacant and appointed Robert White in his place. The evidence doesn’t show that Hapg'ood was elected in 1905 for any specific term, and it is agreed by counsel that his election is not in controversy.</p> <p>7. Mott, Coyne, Melvin, P. J. Conway and JohnH. Conway, claim to be eouncilmen by virtue of their election in 1904, and with Hapgood claim that they, together with the “hold-overs ” and Sturges, Snyder and Pickrell elected in 1904, form the legal council. They claim that because the decree dividing the borough specified an election for three years, they were elected for that term. The other body claims that the Act of June 1, 1883, P. L. 54, governs the election of eouncilmen in all boroughs, and that the decree was erroneous in specifying such term generally; that it should have provided for the election of one-third for three years, one-third for two years, and one-tliird for one year, and not having done so the voters had the right, at the following election, to put the act in operation by electing for specific terms, so that the terms of one-third the whole number shall expire each successive year.</p> <p>Pickrell is postmaster of the village, and claims that he has given up his seat because of advices from the post-office department. But as the case now stands we can take no notice of that in determining the composition of the council.</p> <p>The court entered a decree in accordance with the prayer of the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 54, Jan. T., 1906, by defendant, from decree of C. P. No. 5, Philadelphia Co., June Term, 1905, No. 8,844, on bill in equity in case of Fidelity-Trust Company, Trustee, et al., v. Lehigh Valley Railroad Company.</p> <p>Bill in equity for an injunction. Before Ralston, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 103, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1902, No. 578, on verdict for plaintiff in ease of James M’Guire and Margaret M’Guire, parents of James M’Guire, v. Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Lynch, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for §3,075. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for the defendant.</p>

<p>Appeal, No. 1, Jan. T., 1906, by defendant, from judgment of C. P., No. 4, Phila. Co., Dec. T., 1904, No. 2,424, on verdict for plaintiff in case of James L. Towner v. Public Ledger 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>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $10,760. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 85, Jan. T., 1906, by plaintiff, from judgment of Superior Ct., Oct. T., 1905, No. 77, reversing judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 3,054, on verdict for plaintiff in case of Diana Beeman v. Supreme Lodge, Shield of Honor. Appeal from Superior Court. The facts are stated in the opinion of the Supreme Court and by the report of the case in 29 Pa. Superior Ct. 387. Error assigned was the decree of the Superior Court.

<p>Insurance — Life insurance — Application—False representations as to health —Evidence.</p> <p>In an action upon a policy of life insurance where the defendant sets up false representations by the insured as to his health, and there is evidence tending to show that the applicant was afflicted with a lingering and progressive disease at the time the application was made, it is proper to admit in connection therewith evidence of the continuance of the same disease afterwards, and until the death; and it is also proper to admit in evidence declarations made by the applicant prior to the date of the policy as to suffering from a disease, which he denied ever having had, when making his application for insurance.</p>

<p>Appeal, No. 66, Jan. T., 1906, by defendant, from judgment of C. P. Clearfield Co., May T., 1904, No. 290, on verdict for plaintiff in case of Annie Dorris, Julia Dorris et al., Executors of William Dorris, v. Morrisdale Coal Company.</p> <p>Assumpsit to recover royalties on a mining lease. Before Reed, P. J., specially presiding.</p> <p>At the trial it appeared that William Dorris in his lifetime owned the undivided four-tenths interest in about 2,666 acres of land in Clearfield county. On March 1,1898, he leased his interest in the “ B ” seam of coal under 1,000 acres of that land to his cotenants. The interest of the lessees (his cotenants) under this lease in 1895 became vested in the Morrisdale Coal Company. On September 1, 1898, William Dorris leased his interest in the “ B ” seam of coal under the remaining 1,666 acres to the Morrisdale Coal Company. Each of these leases contained a provision for the payment of a minimum royalty of $3,200 per year, that is to say, the Morrisdale Coal Company agreed to mine under each lease 100,000 tons of coal annually, “ unless a serious fault in the mine or other unusual or unforeseen occurrence or inability to obtain sufficient transportation, or the quality of the coal on the demised premises be of such a character as to justify a prudent operator in restricting the operation of the mine.”</p> <p>The lease of September 1,1898, contained a stipulation as to the sinking of a second shaft. No second shaft was sunk in the land covered by the second lease, and no coal was mined from this land. There was evidence that a second shaft was sunk, or an old one cleared out, on the 1,000-acre tract. The defendants attempted to excuse a nonpayment of royalties under the second lease by reason of serious faults in the strata of the coal covered by the first lease, and attempted to show that it was the intention of the parties that if there was a fault in the coal in the first tract it would relieve the lessee from payment of royalties under the second lease.</p> <p>The court refused to admit in evidence the diary of William Dorris, deceased. [22]</p> <p>The court charged in part as follows:</p> <p>[If the location of shaft No. 2, as made, was agreed upon between the parties, and if this is to be treated or considered as a part of the agreement of lease dated September 1,1898, then that lease is rendered somewhat ambiguous and difficult of interpretation. The defendant recognizes this, and alleges that the lease as written does not fully and clearly express the purpose and intent of the parties executing it, and has offered testimony to amend or reform it; but the testimony introduced for this purpose does not fully meet all the legal requirements necessary to amend or reform a written contract, and therefore I am constrained to say to you that the written lease of September 1, 1898, signed by the parties, contains the entire contract made between them, and is the only evidence of what that contract is, and its interpretation is for the court, unless the parties themselves have put upon it an interpretation upon which they acted.] [17]</p> <p>[If the defendant has established by evidence that is clear, precise and indubitable that as to the second lease the real contract between the parties is not fully and precisely expressed in the preliminary agreement of April 25, 1898, and the lease of September 1, 1898, as to the extent of the demised premises, in that the same extended to the entire property jointly owned by the parties, to wit: the two tracts containing 2,666 acres, and was not confined to the upper tract containing 1,666 acres as stated therein, and that the stipulation that it thus extended to the property as a whole was omitted from the said contracts by the accident or mistake of both parties, said contracts should be reformed, and if the jury so find from the evidence, then the rights of the parties are to be judged of from the contracts as they thus really existed between them.</p> <p>As already stated, I do not think the evidence is sufficient to amend or reform the written contract, and therefore this point is refused. The jury will recall what has been said in our general charge on the question of what interpretation the parties themselves placed upon said contract and how that affects it and the operations under it.] [19]</p> <p>[But if the shaft was located without his (Dorris’) knowledge or consent at the point "where it is located, and is not properly located to develop and take out the coal from under the 1,666 acres and is practically useless for that purpose, then the plaintiffs cannot be required to contribute the $8,000 or any other sum to its construction, and consequently no reduction on that account should be made from royalties accruing to the plaintiff under the lease of September 1, 1898.] [20]</p> <p>[What I have said about the production of coal in shaft No. 1 and the prosecution of the work at that shaft applies in every particular to shaft No. 2, providing you find under the evidence under the instructions already given that the parties agreed to this location and also interpreted the lease of September 1, 1898, as authorizing it at its present site, and the defendant in that event would be liable for minimum royalties from September 1,1898, to September 1, 1908, or be relieved from their payment on the same conditions that it would be liable for or relieved from their payment at shaft No. 1; and it is unnecessary for me to repeat what has just been said to you about the defendant’s liability for minimum royalties at shaft No. 1 and what would relieve it from the payment of such royalties. The only difference between the two leases in this respect is the dates.] [21]</p> <p>[If you find from the testimony that it was to be located on the leased premises as contended for by the plaintiffs, it appearing that no such location has been made, and it further appearing that no mining has been done by the defendant on the 1,666 acres, or that there was anything to prevent the mining of the coal, it would follow from the terms of the lease that the plaintiffs are entitled to recover the minimum royalty of $3,200 per year under that lease from September 1, 1898, to September 1, 1903, against which the defendant would be entitled to a credit for the payment of the Girard Trust Company mortgage of $6,000 and interest at five per cent as provided for in the lease, but would not be entitled to any credit for the $8,000 which the lessor agreed to contribute to the construction of shaft No. 2, since it was not located in accordance with the agreement of the parties.] [23]</p> <p>Verdict and judgment for plaintiff for $21,308.52.</p> <p>On motion for a new trial Reed, P. J., filed the following opinion:</p> <p>The defendant’s contention that shaft No. 2, in connection with the lease of September 1,1898, was to be located at the southwest corner of the tract covered by the lease of March 1, 1893, made it practically impossible to give effect to the most important feature of the first-mentioned lease so far as the lessor was concerned. The undisputed testimony showed that in the absence of faults and other difficulties that might be encountered in mining the coal, if there had been nothing but clean coal of workable height to drive through, the coal in the demised premises described in the lease of September 1, 1898, could not have been reached from shaft No. 2, located as contended for by the defendant, short of three years, and with the difficulties of mining the coal which actually existed, and which were manifestly known to the defendant at the time of executing the lease, it could not be reached in ten years. Yet the lease provides for the payment of a minimum royalty of $8,200 per year on coal to be mined from the demised premises through shaft No. 2. Recognizing that its location of shaft No. 2 postponed indefinitely the payment of royalty to the lessor, contrary to the express provisions of the lease, it was contended that the lease of September 1, 1898, was intended to be an enlargement of the lease of March 1,1893, so as to make it cover the entire tract of 2,666 acres, with two openings, from each of which a minimum royalty of $3,200 per year was to be paid, unless the mining of 100,000 tons of coal annually from each shaft was prevented by some serious fault, etc. In support of this contention an attempt was made to reform the written lease so as to effectuate what the defendant alleged was the intent of the parties in executing it. If we have a proper conception of the law with reference to altering, modifying or reforming a written instrument, this attempt on the part of the defendant failed utterly. If the testimony offered for this purpose demonstrated anything, it clearly demonstrated that there was neither fraud, accident nor mistake in the execution of the written lease, and furthermore, that the lease as written embodied precisely the contract as agreed upon between the parties. It may be that they entertained different views as to the interpretation that might be placed upon it, or of which it was susceptible. If they did, these views were not expressed, or made a part of the contract at the time of its execution by them. Hence, if any error was committed in submitting the case to the jury on the question of whether the lease was to be interpreted as written, it was committed in favor of the defendant. While counsel for the defendant, in reply to their inquiry, were told that the question of reforming the written lease would be withdrawn from the consideration of the jury, they were at the same time informed that the question of whether or not shaft No. 2, as located, was an agreed location would be submitted to the jury, and that question was fully argued by them, and, we think, fairly presented in the charge of the court to the jury for their determination. The court eonstrued the lease with reference to such location, and thus the defendant had the benefit of all that it contended for, and if there was any error in this it is one the defendant cannot complain about. The complaint that the court failed to call the attention of the jury to the distance and intervening difficulties between the shaft so located and the 1,666-acre tract, to mining the coal from said tract, is not well founded. If the lease of September 1, 1898, was an enlargement of the lease of March 1, 1893, as contended for by the defendant, then the defendant was liable for the payment of the minimum royalty from shaft No. 2 if the coal could be mined anywhere on the entire tract of 2,666 acres. This shows the vice in defendant’s second point and explains why that point was refused. The jury was fully instructed as to what would relieve from payment of the minimum royalty on coal to be taken out through shaft No. 2, and the distance of its location from the 1,666-acre tract was not an element to be considered. Neither can we assent to the contention that the lease of September 1,1898, provides for the location of shaft No. 2 on the demised premises which are stated to be the 1,666-acre tract, and that recognizing the right to locate it as actually located is reforming the written lease. Excluding all extraneous evidence, and having recourse to the writing alone, that is the interpretation the court would be disposed to put upon it. But it is to be observed that the lease does not in terms provide whether shaft No. 2 shall be sunk on or off the demised premises, and this leaves room for a construction of the lease by the parties that would permit of the location contended for by the defendant. In any event, it is immaterial whether the lease could be reformed by an interpretation of it by the parties, on which they acted, since the defendant had the benefit of such instruction to the jury, and it being entirely clear that the evidence was otherwise insufficient to reform it. In other words, if the court was right in withholding from the consideration of the jury the question of the reformation of the written lease because of a lack of evidence to warrant its submission to them, the defendant ought not to complain because it was given an opportunity through another channel to reach the same port.</p> <p>We are not convinced that there is error in our answer to the defendant’s fifth point for charge. The point was affirmed, omitting the words “and the coal mined without loss.” To have affirmed it with those words included would have been to insert in the contract of the parties causes for relieving against mining the coal not specified in the contract. The condition of the market might make the mining of the coal unprofitable, and other conditions not specified in the lease might arise which would prevent the coal being mined except at a loss to the defendant. If it was intended to say that the coal could not be mined without loss because of the obstacles designated in the lease, the words “ and the coal mined without loss ” should have been so limited. The point was complete without these words, and the defendant was not harmed by its affirmation with the said words omitted. The defendant’s eleventh point substitutes reasons other than those provided for in the lease for relieving against its failure to mine the minimum quantity of coal annually. The facts suggested in this point do not constitute an estoppel, nor are they sufficient in law to discharge a breach of the defendant’s contract in not taking out the stipulated quantity of coal each year. Neither do they justify the conclusion that Mr. Dorris was satisfied with the work of the defendant in carrying out the contract, or warrant the presumption that the defendant did its entire duty in respect to the amount of coal mined. For these reasons the point was refused, and our examination of the authorities cited on the argument of this motion has failed to convince us that there was error in its refusal. Neither can we assent to the contention that the burden was on the plaintiffs to show that the minimum quantity of coal could be mined annually. The authorities cited in support of this contention are made to turn on the stipulations of the litigated contract, and- are readily distinguishable from the case in hand. The defendant, in the lease under consideration, bound itself to take out of the demised premises at least 100,000 tons of coal annually, or pay royalty on that quantity whether taken out or not, “ unless a serious fault in the mine, or other unusual or unforeseen occurrence, or inability to obtain sufficient transportation, or the quality of the coal on demised premises be of such character as should justify a prudent operator in restricting the operation of the mine. No hindrance involving a stoppage of mining for less than thirty days to be considered as a factor in relieving the said party of the second part from the full performance of this covenant.” It is not alleged that there was not sufficient merchantable coal in the demised premises to meet the requirements of this covenant. Nor does the case involve any question of mining the coal advantageously or at a profit to the lessee. The covenant to take out at least 100,000 tons each year could only be discharged by showing a serious fault in the mine, etc., that prevented the lessee from taking out the stipulated quantity. Moreover, the relieving causes involve matters largely, if not exclusively, within the knowledge of the lessee, and therefore when interposed as a defense the burden was on it to prove the same.</p> <p>In the reasons assigned for a new trial it is alleged that the court erred in the admission and rejection of evidence. The only error in this respect commented upon by counsel was the refusal of the court to compel the production of the diary kept by William Dorris, deceased. It appeared that Miss Dorris, the executrix, had possession of this diary, and had it with her in court at the time defendant called for its production. If it be conceded that a diary is such book or writing the production of which will be compelled by the court, there were no grounds laid for its production in this case. There was nothing before the court to show that the diary in question contained anything pertinent and material to the defense. We are not aware of any statute, or rule of the common law, that authorizes a court to require the production of books and writings in the possession of the adverse party without proof that they contain evidence pertinent to the issue. If notice to produce a certain book or writing is not complied with, the remedy by the common law is to admit secondary evidence of its contents. This implies that the court is without authority to compel its production ; it also implies that the book or writing, the production of which is asked for, contains evidence material and relevant to the case. If production is claimed under the act of February 27, 1798, 8 Sm. L. 808, proof must be made that the book or writing contains evidence pertinent to the issue. The defendant failed to bring itself within any recognized legal rule authorizing the court to require the production of the diary called for, and furthermore, the application was properly refused on the ground that it was manifestly for the purpose of a fishing examination of the decedent’s diary to see if any evidence could be found in it to contradict his testimony in the case that he had no knowledge of the location of shaft No. 2, which fact was controverted by the defendant.</p> <p>Regarding the contention that the present location of shaft No. 2 was the location agreed upon between the parties, it must be conceded that there is considerable testimony to sustain it. But it is opposed by testimony equally strong and persuasive that it is not the place of the location of the shaft contemplated by Mr. t) orris for taking out the coal from the demised premises covered by the lease of September 1,1898. If the rights of the lessor under that lease are to receive any consideration whatsoever, then the lease must receive a construction either by itself or in connection with some other lease that will secure to the lessor the payment of the annual rental for which it provides. Considered by itself the location of shaft No. 2 at its present site would virtually nullify this provision in the lease, and before any rational mind would be willing to accept that location as being within the contemplation of the parties executing the lease, the testimony would have to be overwhelming to that effect. The defendant is laboring under a serious error in assuming that there is no testimony save that of Mr. Dorris himself opposed to its contention that shaft No. 2 is located at the place agreed upon between them. The lease of September 1, 1898, in all its essential provisions, is so antagonistic to such location that the plaintiffs might stand on it alone as an answer to all of tire defendant’s testimony to the contrary. But it is alleged by the defendant that the lease of September 1, 1898, was intended to be an enlargement of the lease of March 1,1898, and that the two leases are to be construed together as constituting one lease covering the entire tract of 2,666 acres. But even here the defendant is inconsistent, because it contends that taking the two leases together, it is not liable for the minimum royalty from shaft No. 2, as located by it, until the coal can be reached through it and mined from the premises described by the lease of September 1, 1898. (See defendant’s second point for charge.) And this position was insisted upon in the argument of this motion for a new trial. As already stated, it is scarcely conceivable that the parties in executing the lease of September 1, 1898, intended to make shaft No. 2, as located, the opening for taking out the coal from the demised premises, and if they intended that lease merely as an enlargement of the lease of March 1, 1893, it is likewise inconceivable that intelligent business men and eminent lawyers, after mature deliberation in reaching the terms of the contract and careful examination to see that the lease contained them and clearly expressed the intent of the parties to it, should have made such a bungling job of it. However this may be, the defendant had a full and fair opportunity of proving before the jury its contention that shaft No. 2 was sunk at the place agreed upon, and we think the facts and circumstances in evidence to the contrary warranted the finding of the jury against such location. The defendant’s third reason for a new trial is that the jury did not consider this question, but this assignment was abandoned and need not be further considered.</p> <p>The jury, under instructions from the court, returned an itemized verdict, and this enables us to correct an error which we believe was committed in submitting to the jury the question of an additional royalty claimed by the plaintiffs on the coal mined from the “ D ” or Moshannon seam of coal. In our judgment the evidence did not warrant the submission of that question to the jury, and the defendant’s sixth point should have been affirmed. Mr. Dorris, beyond question, knowingly accepted royalty at the rate of three and one-fifth cents per ton to him on all the coal mined from this seam, and with full knowledge of the quantity being mined assented to this rate, and he thereby estopped himself from claiming a higher rate than that for which he settled. This item of the plaintiff’s claim as shown by the verdict amounts to $2,757.76, and by striking it out of the verdict we shall accomplish what should have been accomplished by an instruction to the jury to reject or disregard this item of the plaintiffs’ claim in reaching their verdict. This reduces the verdict -121,308.52, for which amount, when paid, the defendant is entitled to reimbursement out of the royalties accruing on coal mined from the demised premises in excess of the stipulated minimum quantities to be mined each year.</p> <p>And now, February 2, 1906, the rule heretofore granted is discharged and the motion for a new trial refused, and thereupon it is ordered, in accordance with the foregoing opinion, that judgment be entered on the verdict for the plaintiffs and against the defendant for the sum of #21,308.52, with interest from September 28,1905, and costs of suit upon payment of the jury fee.</p> <p>Mrrors assigned were (17, 19, 20, 21, 23) above instructions, quoting them ; (22) ruling on evidence, quoting the bill of exceptions.</p>

Appeal, No. 58, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Pliila. Co., March T., 1898, No. 1,101, on verdict for plaintiff in case of David Evans v. Philadelphia Bourse. Assumpsit by an architect for his compensation. Before Barratt, J. At the trial there was evidence offered for plaintiff which tended to show that the parties treated the drawings furnished by the plaintiff as those stipulated for by the contract.

Appeal, No. 309, Jan. T., 1905, by order of C. P. Luzerne Co., June T., 1904, No. 229, discharging rule to open judgment in case of Ella D. Parrish, Executrix of Frederick B. Parrish, v. Isaac B. Felts. Rule to open judgment. Error assigned was order discharging the rule.