Volume 218 — Pennsylvania State Reports

Appeal, No. 378, Jan. T., 1906, by plaintiffs, from order of O. P. No. 1, Phila. Co., March T., 1904, No. 4,136, refusing to take-off nonsuit in case of Edward Brooks, Jr., Administrator of the Estate of George W. Hamilton, and Clara Amelia Hamilton, his wife, v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Beitler, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeals, Nos. 383 and 384, Jan. T., 1906, by Philip Valverdi and Edward H. Wood, from judgment of Superior Court, Oct. T., 1905, Nos. 165 and 166, affirming judgment of Q. S. Phila. Co., Nov. T., 1904, No. 282, on verdict of guilty in case of Commonwealth v. James McCartney, Philip Valverdi and Edward H. Wood.</p> <p>Appeal from the Superior Court. See 32 Pa. Superior Ct. 241.</p> <p>The opinion of the Superior Court, by Porter, J., was as follows:</p> <p>The indictment charged the defendants with conspiracy to unlawfully and fraudulently assess and place, and cause and procure to be assessed and placed upon the assessor’s list of voters of the thirteenth election district of the first ward of the city of Philadelphia “the names of a large number of, to wit, fifty and more persons, as voters of said thirteenth election district of the first ward aforesaid who did not reside in the said thirteenth election district of the said first ward and were not then and there qualified to vote therein.” Upon the trial McCartney was acquitted, and Valverdi and Wood were found guilty and have now taken these appeals.</p> <p>The first and fourth specifications of error refer to evidence to the admission of which no exception was taken in the court below, ahd for that reason cannot be considered. The defendants took no general exception to the charge of the court, and upon that ground the tenth, eleventh and thirteenth specifications of error are dismissed.</p> <p>The commonwealth, having proved that a large number of persons had been assessed and their names placed upon the list of voters of the election district who in fact did not reside in the district and were not qualified voters therein, and that the appellants were.active in causing and procuring the names of such persons to be placed upon said list of voters, introduced evidence which tended to establish that the appellants caused and procured to be placed upon said list of voters the names of a large number of persons who, although they resided in the district, were not qualified to vote therein, because they were foreign born and had never been naturalized, and that the appellants knew that fact. There was no exception taken to the admission of the evidence as to the registration of unnaturalized persons, but the defendants subsequently moved to strike out this evidence and requested the court to charge the jury that they were not to take it into consideration. The court refused to strike out the evidence and declined to charge as requested, which rulings are the foundations of the second, third and seventh specifications of error. These specifications raised but one question : the relevancy of the testimony as to the registration of unnaturalized persons to the issue being tried. The indictment charged a conspiracy to cause the registration, as voters of the district, of persons ivho did not reside in' said district and were not then and there qualified to vote therein. The offense as charged referred only to voters of a particular class, and having thus been limited by the indictment, the burden was upon the commonwealth to establish a conspiracy to cause the unlawful registration of persons who came within the class. Had the evidence been insufficient to justify a finding that there had been a conspiracy to cause an unlawful registration which embraced persons falling within the particular class, the conviction could not be sustained. The commonwealth having proved, however, that the names of a large number of persons who were not residents of the district, and for that reason not voters, had been placed upon the list of voters and that the appellants had been active in causing this to be done, their motives and intentions in so acting became material to the inquiry as to their guilt or innocence of the offense actually charged. "Were they misled by innocent mistakes, or acting in pursuance of a corrupt combination ? For the purpose of throwing light upon their motives and intentions it was competent for the commonwealth to prove all that they did at the time of the offense charged . in the indictment, in dealing with the same subject-matter and which contributed to the same specific purpose.. The evidence in question directly tended to establish that the placing upon the list of voters of the names of persons who did not ' reside in the district was not an innocent mistake, but was but a part of a general scheme, to which the appellants were parties, to cause the registration of a large number of persons who were not voters of the district, and for this reason it was relevant to the issue as to the intentions of the appellants: Commonwealth v. Bell, 166 Pa. 405 ; Goersen v. Commonwealth, 106 Pa. 477; Commonwealth v. Johnson, 133 Pa. 293; Friend v. Hamill, 34 Maryland, 298; Penn Mutual Life Insurance Company v. Mechanics’ Savings Bank & Trust Co., 72 Fed. Repr. 413; Commonwealth v. White, 145 Mass. 392 (14 N. E. Repr. 611); Regina v. Francis, L. R. 2 C. C. R. 128; Blake v. Assurance Society, L. R. 4 C. P. D. 94. The second, third and seventh specifications of .error are dismissed.</p> <p>The fifth specification of error refers to the refusal of the court below to grant a new trial, “ in view of the inflammatory, prejudicial and untruthful publications in the newspapers of Philadelphia concerning the trial of the said cause.” The depositions taken in support of the motion for a new trial indicated that a number of the jurors had, during the trial, read newspaper accounts of the proceedings, and that publications in question were offered in evidence in support of the motion. The granting or refusing of a new trial in a criminal case, upon the ground that during the trial jurors have heard improper oral or have read unauthorized printed statements concerning the case, is a matter within the discretion of the court below, and the conclusion of that court will only be reversed where there is a clear abuse of discretion: Alexander v. The Commonwealth, 105 Pa. 1; Commonwealth v. Chauncey, 2 Ashmead, 90; Commonwealth v. Haines, 15 Philadelphia, 363; Commonwealth v. Striepeke, 32 Pa. Superior Ct. 82. We have carefully considered the publications in question and are of opinion that, as the articles did not refer to any previous misconduct of the defendants, or discredit any material witness, or misstate the evidence, it is by no means clear that they could.have affected the verdict. The learned judge of the court below, in his opinion refusing a new trial, referring.to the publications, says: “ They narrate incidents of the trial which had already happened in the presence of, or within the hearing of, the jurors themselves, nor do they make false statements of such incidents.” The matter was one peculiarly within the discretion of the court below, to be conscientiously passed upon in view of all the circumstances surrounding the trial, and we cannot say that the conclusion arrived at involved an abuse of discretion. The fifth specification of error is dismissed, as is also the twelfth for the same reason.</p> <p>The sixth specification of error refers to the refusal of the court to arrest the judgment, upon the ground that the acquittal of McCartney, the assessor, is a finding that no crime had been committed by him, and, therefore, the other two defendants could not have conspired with him to commit a crime. Nothing is better settled than that it is not necessary for the commonwealth to establish that all the persons charged in the indictment had been guilty of an unlawful conspiracy. If the evidence establishes that any two have been guilty of the conspiracy charged they may be convicted, although all the others are acquitted. If these appellants conspired to cause to be placed on the list of voters the names of persons who were not residents of the district they were guilty of the offense charged in this indictment, even if the assessor was not a party to the conspiracy and was the victim of the deception of those who were carrying out the purpose of the unlawful combination. The offense charged was one which affected all the people of the commonwealth; its purpose and effect, if successful, was to corrupt a public election, and it was indictable at common law, independently of the provisions of the Act of January 30, 1874, P. L. 31. The sixth specification is dismissed.</p> <p>There was evidence which, if believed, warranted the conviction of both the appellants, and the court properly overruled the motion to discharge them, respectively, upon the ground that there was no evidence to connect them with the conspiracy. The eighth and ninth specifications of error are dismissed.</p> <p>The judgments in the appeals Nos. 165 and 166, October Term, 1905, are affirmed, and it is ordered that the appellants, Phillip Valverdi and Edward II. Wood, appear in the court below, to the end that they, respectively, be committed to serve such part of their respective sentences as had not been complied with at the time their respective appeals were made a supersedeas.</p> <p>There were ho dissenting opinions.</p> <p>Errors assigned were (1-13) in dismissing the assignments of error to the quarter sessions, and (14) in affirming the judgment of quarter sessions.</p>

Appeal, No. 93, Jan. T., 1906, by defendant, from judgment of C. P. Berks Co., Nov. T., 1903,. No. 47, on verdict for plaintiff in case of William H. Sperry v. Henry J. Seidel. Trespass for wrongful eviction. Before Endlich, J. The opinion of the Supreme Court states the case. Yerdict for plaintiff for $3,947.83, upon which judgment was entered for $3,000, all above that amount having been remitted.

<p>Appeal, No. 118, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., May T., 1902, No. 762, on verdict for plaintiff in case of Mary E. Hoodmacher and Florence M. Hoodmacher, widow and minor child of George B. Hoodinacher, v. Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Halsey, J.</p> <p>At the trial it appeared that the deceased, a flagman, was injured by an explosion of a locomotive belonging to the defendant, at Bloomsbury, New Jersey, on May 15, 1901. The evidence tended to show that the company had failed properly to inspect and repair the locomotive at the company’s roundhouse in Easton, Pennsylvania.</p> <p>Verdict and judgment for plaintiff for $7,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 292, Jan. T., 1906, by defendant, from decree of O. P. Del. Co., March T., 1905, No. 16, on bill in equity in case of City of Chester v. Union Railway Company of Chester, Pa., and The Chester Traction Company. Bill in equity for an injunction. Before Johnson, P. J. Error assigned, was the decree of the court awarding an injunction.

<p>Appeal, No. 293, Jan. T., 1906, by defendant, from judgment of C. P. Del. Co., June T., 1904, No. 208, on verdict for plaintiff in case of Annie Schmelzer v. Chester Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P, J,</p> <p>The opinion of the Supreme Court states the case.</p> <p>At the trial the court charged that the plaintiff Avould be entitled to be compensated, if the ¡jury found for her “ for the loss of her earning power, both before the trial and after.”</p> <p>Verdict for plaintiff for $2,366, on Avhich judgment Avas entered for $1,500, all above that amount being remitted.</p> <p>Errors assigned were (1) in permitting the amendment; (2) above instruction, quoting it.</p>

<p>Practice, C. P. — Judgment non obstante veredicto — Act of April 22, 1905, P. L. 286.</p> <p>Act of April 22, 1905, P. L. 286, was not intended to change the relative functions of court and jury, so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do subsequently on review of the whole case what it then appeared it would have been proper to do by a binding direction at the trial.</p> <p>Negligence — Railroads—Crossings—“Stop, loolc and listen” — Judgment non obstante veredicto — New trial.</p> <p>Where a verdict has been recovered against a railroad company for personal injuries sustained at a grade crossing, and a motion has been made for judgment for defendant non obstante veredicto, and upon the hearing of this motion the court is of opinion that the verdict was clearly against the weight of the evidence, the proper remedy is a new trial, and not an entry of judgment for defendant non obstante veredicto.</p>

<p>Criminal law — Murder—Accidental tailing — Burden of proof.</p> <p>The burden of proof in homicide cases, where the defense of accidental killing is set up, does not shift, but rests on the commonwealth to show that the killing was willful and intentional.</p> <p>On the trial of a homicide case it is reversible error for the court to charge “that the burden is upon the defendant to convince you beyond a reasonable doubt that the killing of the deceased was purely accidental, before he should be acquitted upon that ground.”</p> <p>Criminal law — Murder—Erroneous instructions — Appeals.</p> <p>In a murder case where clear error appears in the instructions to the jury upon the vital and controlling defense set up, the appellate court cannot judicially say that no harm was done the defendant and that, therefore, no reversible error was committed.</p>

Appeal, No. 17, Jan. T., 1907, by A. E. Brittain, ancillary administrator c. t. a., from decree of O. C. Monroe Co., dismissing exceptions to auditor’s report in Estate of William Wallace, deceased. Exceptions to report of Iiarvey Huffman, Esq., auditor. The facts are stated in the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to auditor’s report.

Appeal, No. 98, Jan. T., 1906, by defendant, from judgment óf C. P. Lycoming Co., March T., 1904, No. 73, on verdict for plaintiff in case of William W. Braine v. Northern Central Railway Company. Trespass to recover damages for injuries to land. Before Hart, P. J. The facts appear by the opinion of the Supreme Court. Plaintiff presented the following points : 1.

<p>Appeal, No. 101, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1904, No. 848, on case stated in suit of New York Finance Company v. United Security Life Insurance & Trust Company of Pennsylvania.</p> <p>Case stated to determine the ownership of a policy of life insurance.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

<p>Appeal, No. 121, Jan. T., 1907, by N. Dubois Miller, receiver of Pennsylvania Mutual Life Insurance Company, from decree of O. P. No. 5, Phila. Co., J une T., 1905, No. 2,040, dismissing petition to pay balance in full in case of Commonwealth ex rel. v. City Trust, Safe Deposit & Surety Company of Philadelphia.</p> <p>Petition to pay money.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court dismissing the petition.</p>

Appeal, No. 397, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Pbila. Co., March Term, 1903, No. 2,667, on verdict for plaintiff in case of Robert Camblin v. Philadelphia, Wilmington & Baltimore Railroad Company; Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $4,275. Defendant appealed.

Appeal, No. 375, Jan. T., 1906, by defendants, from judgment of G. P. No. 2, Phila. Co., March Term, 1902, No. 1,659, on verdict for plaintiff in case of Martha Bardsley v. Gill & Company. Trespass to recover damages for death of plaintiff’s husband. Before Barratt, J. Verdict and judgment for plaintiff for $7,500. Defendants appealed. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 258, Jan. T., 1906, by Celia May, from decree of O. C. Phila. Co., April T., 1905, No. 734, sustaining exceptions to adjudication in Estate of Simon May, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining exceptions to adjudication.</p>

<p>Appeal, No. 393, Jan. T., 1906, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1903, No. 1,382, on verdict for plaintiff in case of Stephen B. Fotterall v. Jonathan O, Armour.</p> <p>Assumpsit for rent. Before Bregy, J.</p> <p>In addition to the facts stated in the opinion of the Supreme Court it appeared at the trial that the letters of July 14 and August 10, 1898, were in full as follows:</p> <p>“ July 14th, 1898.</p> <p>“ 7 & 9 Manhattan Market, N. Y.</p> <p>“Mr. S. B. Fotterall,</p> <p>“No. 622 North 19th St., Phila., Pa.</p> <p>“ Dear Sir:—</p> <p>“ On my return to New York I found your letter of July 7th returning check for $666.66.</p> <p>“ As you are undoubtedly aware, the City of Philadelphia will evict us from these premises on the first day of August next, and in consequence of their taking part of the premises at that time, it will be necessary for us to vacate them, and after that date we will, together, have a claim against the City of Philadelphia for this rent. In any event we can probably arrange this satisfactorily and amicably at the time of appearing before the City’s jury to assess damages, and we will be pleased to have you accept this check as payment of rent, up to and including the first day of August, and then I have no doubt we can make an amicable arrangement for the future.</p> <p>“Yery respectfully yours,</p> <p>“ P. P. Adams.”</p> <p>“ 7 & 9 Manhattan Market, N. Y.</p> <p>“ Aug. 10, 1898.</p> <p>“Mr. S. B. Fotterall,</p> <p>“ 2001 Chestnut St., Phila., Pa.</p> <p>“ Dear Sir :—</p> <p>“We enclose you herewith our checks for $999.99 and also a postage stamp for two cents, being for rent in full for premises at No. 40 South Delaware Avenue, Phila., Pa. for the months of April, May, June, July, August and Sept, and would be pleased to have you send us proper receipt therefor. We have delayed sending you check for August and September thinking that it would be agreeable for you to make the claim against the city for the rent, in our place. However, we enclose you rent up to the first of October, and as we will be compelled to vacate the premises within a very short time, under the city’s notice to quit, we will try to make some further arrangement with you at the time of meeting of the city’s jury to assess the damages.</p> <p>“ Yours respectfully,</p> <p>“ (Enclosures.) “ P. B. Adams.”</p> <p>Yerdict and judgment for plaintiff for $3,581.25. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 94, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., May T., 1903, No. 670, on verdict for plaintiff in case of Mary M. Tischler v. Pennsylvania Coal Company.</p> <p>Trespass to recover damages for injuries to surface of land. Before Lynch, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Defendant presented these points:</p> <p>3. Under the pleadings the burden was on the plaintiff to prove that the subsidence which affected the plaintiff’s property was caused by mining directly beneath the said property or adjacent thereto within six years prior to May 2, 1902. This the plaintiff has failed to do, and the verdict must be for the defendant. Answer: Refused. [4]</p> <p>4. The plaintiff has failed to produce any evidence of mining directly beneath plaintiff’s land by the defendant which affected her land, and she can recover no damages for the buildings thereon. Answer: Refused. [5]</p> <p>The court charged the jury in part as follows :</p> <p>Mrs. Tischler, being the conceded owner of the property at the time in question, was not, as a matter of grace, but as an absolute right, entitled to have her property supported, not damaged, by the mining of coal from beneath this property. N o deed, conveyance or agreement of any kind, so far as the court recalls, has been put in evidence, showing the Pennsylvania Coal Company was the owner of any coal beneath this property or had any right to mine it. In most cases in which this question has arisen in the courts, the miner, that is, the company or person who mines and removes the coal, has put in evidence title to the coal and his right to mine and remove it, and also, generally, some paper showing the miner was free from liability for damages in letting down the surface. Except as to the Livingston lot, of which I shall speak hereafter, there has been no such paper presented here.</p> <p>Plaintiff’s statement has not been offered in evidence. The court has not seen it before. We submit it to you that you can see what plaintiff, when she brought this suit, charged against the defendant in this particular: “ The defendant on the 13th of January, 1901, was the owner of the coal underneath the said above described lot and engaged in the business of mining and removing said coal, and although said defendant owed to the said plaintiff the duty of leaving sufficient support to maintain the surface over said coal, the defendant negligently and carelessly so mined said coal that the support to the surface was insufficient to maintain the same, whereby the said surface of said above described lot, on said 13th day of January, 1900, fell in, destroying the surface to the amount of and damaged the said building erected on the said surface, to a certain amount.”</p> <p>Such was the charge of plaintiff at the time she brought the suit and it would therefore be fair to assume plaintiff alleged the defendant at that time owned the coal. [6]</p> <p>V erdict and judgment for plaintiff for $2,800. Defendant appealed.</p> <p>Errors assigned were (4-6) above instructions, quoting them.</p>

<p>Appeal, No. 112, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Oo., May T., 1905, No. 347, on verdict for defendant in case of James M. Norris and Grizzie G. Norris, his wife, v. Delaware, Lackawanna & Western Railroad Company and Charles D. Foster.</p> <p>Ejectment for land in Plymouth township. Before Ferris, J.</p> <p>At the trial the jury returned a verdict for defendants under binding instructions.</p> <p>On a rule for a new trial Ferris, J., filed the following opinion:</p> <p>On and before February 2, 1882, Sarah Horton was the owner in fee of fourteen acres of land in the said township, being part of a larger body of land lying between the hills forming the northwesterly boundary of the Wyoming Talley and the Susquehanna river, and commonly known as “ the Kingston Flats” — or simply as the “ Flats.” By a written instrument of that date, termed a coal lease, she granted to the Delaware, Lackawanna and Western Railroad Company, defendant, all the coal underlying the said tract, with the right to mine and remove the same. The lease was duly recorded in the office of the recorder of deeds on February 10, 1882. Upon the execution of this instrument a severance was effected between the surface land and the subjacent strata; Mrs. Horton.remaining liable for the taxes on the former, and the defendant company becoming primarily responsible for taxes on the latter (Sanderson v. Scranton, 105 Pa. 469), although by terms of the coal lease, as between the parties thereto, the lessors assumed the payment of taxes on the coal in place.</p> <p>Mrs. Horton died intestate July 18, 1888, leaving to survive her six children, who, by their deed dated May 26, 1892, conveyed the surface estate in the said fourteen acres to Uriah Beacham.</p> <p>By indenture of assignment, dated June 13, 1894, Julian G-. Horton, one of the six heirs of Sarah Horton, deceased, assigned to C. D. Foster (defendant) all the former’s right, title and interest in and to the coal lease above mentioned.</p> <p>For the years 1897 and 1898, Mr. Beacham was assessed for, and paid to the proper collector, taxes on his fourteen acres of surface land in Plymouth township. The description in the original assessment for each year is, as to location, “ Kingston Flats,” and as to quantity, etc. (under the heading “acres — No. of acres of cleared land”), the figures “14.”</p> <p>The assessment boohs for Plymouth township for these same years also show the following :</p> <p>1. For the year 1897. — Under the heading “Names of taxables,” etc., is the name “Mrs. Sarah Horton;” under the heading “Description of real estate .... street, adjoining owner ” is the word “ Flats; ’’ and under the heading “ Seated lands improved and unimproved — Number of acres of coal only —acres ” are the figures “ 14.” No other description of the coal estate sought to be assessed is given.</p> <p>The tax collector’s return, filed December 31, 1897, contains the fofiowing: In column with word “ owner ” is the name “ Mrs. Sarah Horton Estate; ” in column headed “ Quantity and description of property, boundary by warrantee name, number of lot, street or adjoining property” appear the words “ Kingston Flats cannot find.”</p> <p>2. For the year 1898. — The assessment book for Plymouth township contains the following:</p> <p>In the column headed “name of owner,” etc., is the name “Mrs. Sarah Horton, C. H. WeEes, 5/6, Scranton;” in the column headed “ Description of i’eal estate,” etc., is. the single word “ Flats;” in the column headed “ Real Estate ” — subdivision “coal only, acres” are the figures “14.” No othe); description or identification of the coal sought to be assessed is given.</p> <p>. The tax collector’s return, filed December 31,1898, contains the following: In the column with the word “ owner ” appears the name “ Sarah Horton,” and opposite her name and in the column headed “ Quantity and description of property,” etc., is the single word “ Flats.” No other description or identification of the land returned is given.</p> <p>In each return the collector certified that the owners had neglected or refused to pay the tax assessed on the land mentioned, and that after a proper effort at the proper time he could not find sufficient personal property by a legal sale of which the taxes specified in the return could have been collected. The tax collector for 1897 and 1898 was sworn oh the trial and testified that he made no demand on the owners of the coal estate for the taxes assessed as above stated; that he went to Mrs. Horton’s late residence for that purpose, but was told that the heirs had sold the property; that he made no inquiry as to whom it had been sold, nor did he examine the records to ascertain that fact; but that he then made the return marked with “ cannot find.” (Page 24 of testimony.)</p> <p>' It will be observed that no “ coal only” or land described in any way as coal land was returned as delinquent. The return of fourteen acres of land as “ Flats ” or as “ Kingston Flats ” contained nothing to indicate what particular piece of land embracing fourteen acres located on what is known as the “ Flats ” was intended, except in so far as the name “ Sarah Horton ” or “ Sarah Horton Estate ” might tend to identify it. Let it be assumed that Sarah Horton owned no other tract of fourteen acres on these flats. There is still absolutely nothing to show the owner of the coal that this property had been returned for sale for unpaid taxes. Upon examination he might discover that a tract containing fourteen acres of “ Flats ” had been so returned in 1897 and 1898 for taxes assessed for those years against “ Sarah Horton” and “ Mrs. Sarah Horton Estate.” He could not know from these returns that his coal was intended rather than the surface sold by the Horton heirs to Beaeham. Indeed, the only descriptive words used, “ Flats ” in the one case, and “ Kingston Flats cannot find ” in the other, might well be taken to mean surface land as opposed to “ coal only.” where there had been a severance, of which latter fact the coal owner must have been aware. We were of opinion at the trial, and that opinion remains unchanged, that a return and sale for taxes by the treasurer and commissioners of fourteen acres of land designated as “ Plats ” is not a return and sale of a like quantity of other land whose sole distinctive description is that it is “ coal only ; ” and that the collector’s return was insufficient to operate as notice to the coal owner that his estate was liable to be divested. That the tax collector not only failed to make a demand for the taxes on the owner, but also failed to use due diligence to that end, is clear from his own evidence. Neither was there anj^thing in the published advertisement of the tax sale to notify the owner of the coal estate that his property wa^ liable to be sold .for taxes.</p> <p>“Coal only” was assessed. No coal was returned. No coal was sold. The conclusion would seem to follow that no coal can be recovered by the plaintiff in this action.</p> <p>As was said by the present Chief Justice in Kean v. Kinnear, 171 Pa. 639, and by Mr. Justice Dean in the recent case of Davis v. Beers, 201 Pa. 288, so it may with equal propriety be said here — “ that (in cases of seated lands) the law has established the order for liability for taxes to be, first, the personal property on the premises ; second, demand on the owner individually, and lastly, the land itself, and it is only the failure to collect by the first two methods that resort can be had to the third and the land be legally sold or returned for sale.”</p> <p>The contention that the owner of coal in place may have his property swept away by a deed for “ land ” based on a return of land called “ Plats ” for nonpayment of taxes assessed on “ coal only,” where he had covenanted with his lessor that such taxes should be paid by the latter, where no demand had been made on the owner for their payment nor any notice given him by advertisement or otherwise, that the taxes on the coal remained unpaid — such a contention might with some show of reason be held to be open to the criticism expressed by Mr. Justice Mestkezat in Simpson v. Meyers, 197 Pa. 522 (527), quoting from the syllabus to Jenks v. Wright, 61 Pa. 110 : “ The acts authorizing sales of land by the Commissioners or Treasurer are laws for collection of taxes ; not to sacrifice individual property as a forfeiture.”</p> <p>Counsel for the plaintiff urge, as the fourth reason for a new trial, that “ the court erred in admitting in evidence the papers (newspapers) offered by the defendants to show how the property in controversy had been advertised,” and argue, in support of this reason, that the advertisements were admitted without prior proof that they were official and were authorized to be published in the newspapers in question by the county commissioners. This might have been a good objection if it had been made at the trial. But it was not, and therefore is to be treated as waived. But it is difficult to see how the admission of this evidence, even if it was error, could prejudice the plaintiff’s case, since the advertisements are in substantial conformity with the recital in the commissioners’ deed to Mrs. Norris “ that a public sale of the said described lot or tract of land” had been duly advertised, etc.; “the said described lot being a certain lot, piece or parcel of land situate in the Township of Plymouth, in the County of Luzerne and Commonwealth of Pennsylvania, containing one-sixth interest in 14 acres on which is--and which was assessed in the year of our Lord one thousand eight--, in the name of Mrs. Sarah Horton, and adjoining property of-,” etc. The declared purpose of the offer was to show that there was no mention made in the advertisement of the fact that any coal property was delinquent for the nonpayment of taxes. The objection which was made is as follows: “ Plaintiff objects to the offer for the purpose stated inasmuch as there is nothing in the act of assembly prescribing the form of advertisement to the effect that coal only should be advertised as coal.” If the newspapers had been excluded it would be presumed from the recital in the deed that an advertisement of the sale of “ the said described lot ” had been duly published. Either the advertised description of the lot was as contained in the deed or it was not. If it was, then it (like the deed)' did not follow the assessment. If it was not, then the deed did not follow the advertisement.</p> <p>The first, second and third reasons assigned for new trial relate to the rejection of testimony. ¥e are not satisfied that there was error in the rulings complained of.</p> <p>The fifth, sixth, seventh, eighth and ninth reasons allege error in the court’s remarks to the jury and answers to points for charge. As binding instructions were given, what was said to the jury or by way of answers to points was immaterial except the affirmance of defendants’ fifth point, which asked for binding instructions: Trust and Safe Deposit Co. v. White, 206 Pa. 611.</p> <p>Error assigned among others was in giving binding instructions for defendant.</p>

<p>Municipalities — Municipal contracts — Competitive bidding — Act of May 23, 1874, P. L. 230.</p> <p>Private negotiations between municipal authorities and a successful bidder for a city contract, through which the terms and conditions of the competitive bids are so modified and changed that the successful bidder becomes in fact the lowest bidder, are not within the spirit and purpose of the Act of May 23, 1874, P. L. 230. The proper method for the municipal authorities to pursue, if convinced that the best interests of the city demand it, is to set aside all of the bids, re-advertise and secure another open competitive bidding, when all of the bidders will be on an exact equality.</p>

<p>Taxation — Municipal taxation — Real estate — Title in the United States government — Sale—Articles of agreement — Equitable title.</p> <p>Where the United States government has sold real estate under articles of agreement reserving the legal title to itself until all payments are made and conditions performed, such real estate is not taxable by municipal authorities until the vendee has made all the payments and performed all the conditions of the articles of agreement.</p> <p>Mestrezat and Potter, JJ., dissent.</p>

<p>Negligence — Death—Damages—Exemplary damages.</p> <p>Examplary damages cannot be recovered for injuries resulting in death when the action is brought by surviving parents.</p>

<p>Appeal, No. 344, Jan. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1904, No. 74, on verdict for plaintiffs in case of William Brehony and Delia Brehony, his wife, v. Pottsville Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Yerdict for Delia Brehony for $1,800 and for William Brehony for $400. Defendant appealed.</p> <p>Error assigned among others was in submitting the case to the jury.</p>

<p>Appeal, No. 381, Jan. T., 1906, by plaintiffs, from decree of C, P. Schuylkill Co., Jan. T., 1906, No. 2, dismissing bill in equity in case of George Kolb and William Williams v. Burgess and Town Council of the Borough of Tamaqua et al.</p> <p>Bill in equity to declare invalid a borough contract, and for an injunction.</p> <p>Bechtel, P. J., filed the following opinion:</p> <p>•In substance the bill charged that the council, by resolution of December 6, 1904, instructed the president and secretary to advertise for proposals for street lighting, and that said resolution was not signed by the chief burgess of the borough. That proposals were invited, and council accepted the bid of Shepp and McGinty at $60.00 for open arc lights, by resolution, and by resolution ordered a contract to be drawn, and that these resolutions were never presented to the chief burgess for his approval. That by resolution the president and secretary were instructed to execute a contract with Shepp and McGinty, that said contract, but not the resolution directing the execution, was presented to the burgess for approval. That at the same meeting, January 3, 1905, an ordinance was adopted which was approved by the burgess, giving said parties power to erect poles and appliances necessary to furnish electricity. That on July 4, Shepp and McGinty reported that the Edison company was agent in Tamaqua for the open arc light and it was impossible for them to furnish them; the council, by resolution, agreed to accept inclosed arc lights at a reduction of $1.00 a lamp. That said resolution was not signed by the burgess or submitted to him. That by special meeting of council it approved of the bond of the contractors and of the contract, and said resolution was not presented to the burgess for approval. That the burgess returned the contract and bond on July 11, 1905, stating it was no part of his duty to approve thereof. That the contract is not legal, not being signed by the burgess. That the contract is an improvident one, being for ten years. That a corrupt arrangement or agreement existed to obtain the vote of one of the councilmen in favor of said contract.</p> <p>The answer covered the charges of the bill, it denied the passages of the resolutions mentioned above, and asserted they were mere motions and mere ministerial acts, and needed no approval of the burgess, that an ordinance and contract were regularly passed and approved and advertised and recorded and denied all allegations of fraud or corrupt arrangements or agreement with anyone or anybody.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 72, Jan. T., 1907, by defendant, from order of C. P. Lackawanna Co., Jan. T., 1902, No. 320, dismissing exceptions to referee’s report in case of Mary C. Ansley and Edward Ansley,- Executors of the Estate of Joseph Ansley, deceased, v. City of Scranton.</p> <p>Trespass to recover damages for injuries sustained by the obstruction of a sewer in a lumber yard.</p> <p>The case was tried before J. W. Carpenter, Esq., referee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The referee by his first report found in favor of the plaintiff for $3,767.</p> <p>The court sustained exceptions to the report, and in a second report the referee awarded the plaintiff $10,902.</p> <p>Error assigned was in dismissing exceptions to referee’s second report.</p>

<p>Appeal, No. 93, Jan. T., 1907, by defendant, from order of C. P. Berks Co., Nov. T., 1906, No. 56, making absolute rule for judgment on answers of garnishee in case of Thomas J. Nolan v. Helen T. Nolan, Defendant, and The Reading Trust Company, Garnishee.</p> <p>j Rule for judgment against garnishee on answers.</p> <p>From the record it appeared that Helen T. Nolan, a widow with six children, on May 31, 1898, by deed duly recorded conveyed certain property to the Reading Trust Company in trust to pay her the-income for life in monthly installments, and upon her death to transfer the principal to such persons as she might by will appoint, and in default of appointment to her next of kin. The deed recited that it was deliberately made irrevocable, but the trustee was authorized to reconvey the property to her if the trustee at any time should think it expedient to do so.</p> <p>On March 6, 1904, she confessed a judgment to Thomas J. Nolan for $2,500, on which he issued an attachment execution summoning the Reading Trust Company as garnishee. The garnishee answered, admitting in its hands: Principal of above trust, $23,125 ; income of above trust, $370.36 ; other moneys due Helen T. Nolan, $250.14.</p> <p>On the argument of the rule for judgment on the answers it was conceded that the last two items were subject to the attachment. The court entered judgment against the garnishee for the entire amount.</p> <p>Garnishee appealed^</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 73, Jan. T., 1907, by defendant, from judgment of Superior Court. Oct. T., 1906, No. 5, affirming judgment of 0. P. No. 5, Phila. Co., Sept. Term, 1903, on verdict for plaintiff in case of Henry Frech v. G. Lambert Lewis.</p> <p>Appeal from Superior Court.</p> <p>The facts are stated in the opinion of the Supreme Court. See also 32 Pa. Superior Ct. 279.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeals, Nos. 57, 58, 59, 60, 61, 62, 68 and 70, by defendants, from judgment of Superior Court, Oct. T., 1906, Nos. 104, 226 and 229, affirming judgment of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 1,214, and judgment of C. P. Del. Co. March T., 1905, No. 108, making absolute rule to pay over money in case of Lewis A. Haspel, Receiver of the United Building and Loan Association of Philadelphia, v. Daniel O’Brien, Mortgagor, Wilson H. Brown, Sheriff, and the City of Philadelphia, and the cases of Lewis A. Haskel, Receiver, v. May Ellen Robinson, Mortgagor, and the City of Philadelphia, and of Lydia Gibbons et al. v. I. Engle Cochran, Jr., et al.</p> <p>Appeal from the Superior Court.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Gift — Gift inter vivos — Intention—Delivery.</p> <p>To constitute a valid gift inter vivos two essential elements must combine, an intention to make the gift then and there, and such an actual constructive delivery at the same time to the donee as divests the donor of all dominion over the subject, and invests the donee therewith.</p> <p>An elderly woman accompanied by her nephew went to the vaults of a trust company, took out her box containing her securities, called in an officer of the company to whom she declared her purpose to make a gift of the securities to her nephew, asked the officer to witness the transaction, executed blank transfers prepared at that time, and thereupon placed the securities in a box rented by the nephew, surrendering her own box. The nephew about to go to a distant state appointed the aunt as his deputy to have access at all times to the box. Held, (1) that a valid gift of the securities is to be derived from the transaction; (2) that'the fact that the aunt subsequently exercised a certain control over the securities — except as otherwise explained — will be referred to her agency in connection therewith; (3) that even if it were otherwise, such fact could not be allowed to overcome the plain and necessary inference to be derived from the transaction itself, except as knowledge of it be traced to the donee, and such acquiescence on his part be shown as would warrant an inference that in the mutual understanding of the parties that by the transaction something less than an absolute gift was intended.</p>

Appeals, Nos. 240 and 297, Jan. T., 1906, by defendants, from decree of C. P. Clearfield Co., Sept. T., 1903, No. 5, on bill in equity in case of W. L. Shellenberger et al. v. Altoona & Philipsburg Connecting Railroad Company et al. Bill in equity to foreclose a railroad mortgage. The opinion of the Supreme Court states the case. Error assigned was decree confirming sale.

<p>Appeal, No. 243, Jan. T., 1906, by the Real Estate Trust Company of Philadelphia et al., Executors of the will of Mary C. Dulles, deceased, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of Mary C. Dulles, deceased.</p> <p>Exceptions to adjudication. Before Ashman, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>School law — Vaccination—School directors — Mandamus—Act of June' 18,1895, P. L. 203.</p> <p>The Act of June 18, 1895, P. L. 203, imposes no duty upon school directors to exclude from a school a child who has failed to submit a certificate of vaccination signed by a physician, and mandamus cannot issue against them to compel them to exclude such a child. The duty is imposed by the act upon superintendents, principals, teachers and other persons in immediate charge of the schools.</p>

Appeal, No. 26, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. Term, 1906, No. 797, for defendant on case stated in suit of W. L. Scott and C. L. Saxton v. R. J.… Held: that Mrs. McWhinney took only a life estate, and consequently entered judgment for defendant. Error assigned was the judgment of the court.

<p>Negligence — Railroads—Grade crossing in open country — “Stop, look and listen” — Evidence—Speed.</p> <p>In an action against a railroad company to recover damages for the death of a person at a grade crossing, the presumption that the deceased stopped, looked and listened, is not overcome by the testimony of a single witness, the engineer of the locomotive, who stated that he did not see the deceased stop, where it appears from the witness’s own testimony that he was not in a position to see whether the deceased stopped or not.</p> <p>When a witness testifies that, at or near a railroad crossing, his attention was upon an approaching train, that he was listening for it, heard its approach and heard no whistle, his testimony is not of a negative grade, but may be regarded, if believed, as proof that no whistle had been sounded, and it receives additional weight when taken in connection with the testimony of other witnesses which may be of a negative character.</p> <p>In a grade-crossing case where a time-table is offered to show distance between points as a basis for fixing speed, it will not be rejected merely because of the allegation on the part of the railroad company that the distances were only approximate, but leave will be given to the company to show that it was not correct.</p> <p>In an action against a railroad company to recover damages for death at a grade crossing in the open country, where there is nothing in the case to show that the warning by a whistle of the approach of a train at the crossing could not have been heard, and nothing to show that looking and listening would not have protected the deceased, it is reversible error for the court to so charge, that the jury may find a verdict in favor of the plaintiff simply because the train was running at a high rate of speed, even if the proper warning had been given of its approach.</p> <p>It is not the rate of speed that prevents the traveler from passing safely over a railroad crossing in an open country, but the failure to give notice of the approach of the train by those in charge of it, or disregard of such notice by the traveler when given.</p> <p>If one about to cross a railroad in the open country stops and listens, and no train is heard, that is, no warning of its approach is given by the engineer, the railroad company cannot, under such circumstances run its train at such a reckless rate of speed as will run down the unwarned traveler-.</p>

Appeal, No. 75, Jan. T., 1907, by-plaintiff, from judgment of C. P. Monroe Co., Sept. T., 1906, No. 8, on verdict for defendants in case of Ida .Burt, Executrix of the last will and testament of William II. Burt, deceased, v. Margaret Burt, John Burt, Jr., A. R. Brittain, Guardian of William IT. Burt, Jr., and Plora Burt, now intermarried with John Yan Campen. Peigned issue to determine ownership of money paid into court.

Appeal, No. 265, Jan. T., 1906, by plaintiff, from order of C. P. Lycoming Co., Sept. T., 1903, No. 386, refusing to take off nonsuit in case of Charles W. E. Best v. Williamsport Staple Company. Trespass to recover damages for personal injuries. Hart, P. J., described the accident as follows : The plaintiff was employed by the defendant to operate a machine for the pressing of pieces of leather.

Appeal, No. 400, Jan. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1906, No. 2,387 discharging rule for judgment on answers in case of Eugene D. Egbert, Trustee, v. Sidney J. B. de Solms, defendant, and the Philadelphia Trust, Safe Deposit & Insurance Co., Garnishee. Rule for judgment on answers to interrogatories.

<p>Will — Provision for unborn child — Act of April 8, 1833, sec. 15, P. L. 249.</p> <p>All that the Act of April 8, 1833, sec. 15, P. L. 249, requires relative to the provision for an unborn child, is that the testator shall have the child in mind and shall make clear his intention that the will shall apply to it. Any provision which does that is sufficient, and the inquiry whether large or small, equal or unequal, vested or contingent, present or future, is irrelevant and outside the jurisdiction of the courts except so far as it tends to throw light on the question of intention.</p> <p>Testatrix after having made provision for her children in the last clause of her will declared as follows: “I declare this to be and contain my last will and testament, and that after-born children are herein provided for.” Held, that the provision for after-born children was sufficient.</p>

Appeal, No. 395, Jan. T., 1906,-by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 2,250, on verdict for plaintiff in case of Daisy Lovering v. William W. Miller and Israel Kaufman, trading as Miller & Kaufman. Assumpsit on a contract of employment.

<p>Negligence — Master and servant — Charge.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, where the evidence on behalf of the plaintiff shows clear negligence on the part of the defendant, but such evidence is flatly contradicted, it is reversible error for the court to affirm without qualification a point to the effect that the failure of the defendant to render the plaintiff proper protection, rendered the defendant liable for the injuries suffered by plaintiff, and that the verdict should be for the plaintiff.</p>

Appeal, No. 106, Jan. T., 1907, by defendants, from judgment of O. P. No. 1, Phila. Co., June T., 1900, No. 414, on verdict for plaintiff in case of William Dannenhower by his next friend and guardian, Ambrose Higgins, v. Western Telegraph Company and the Philadelphia Local Telegraph Company. Trespass to recover damages for death of plaintiff’s father. Before Biddle, P. J. The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $6,500.

Appeal, No. 391, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila, Co., Sept. T., 1905, No. 3,823, on veidict for plaintiff in case of John Thomas and Mary Ann, his wife, v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 132, Jan. T., 1906, by defendants, from order of O. P. Blair Co., Oct. T., 1903, No. 617, refusing a continuance in case of M. A. Young, Guardian of James P. Malone et al., v. C. B. Malone et al. Scire facias sur mortgage. The opinion of the Supreme Court states the case. Yerdict and judgment for plaintiff. Defendant appealed. Error assigned amongst others was refusal of continuance.

Appeal, No. 331, Jan. T., 1906, by-plaintiff, from order of C. P. Huntingdon Co., Dec. T., 1905, No. 172, making absolute rule to open judgment in case of J. E. Trexler and J. L. Trexler v. H. P. Reynolds. Rule to open judgment. The opinion of the Supreme Court states the case. Error assigned was the order of the court.

Commonwealth ex rel. Edward M. Biddle, Jr., v. William E. Crow. Miscellaneous docket, No. 2, No. 292. Suggestion for writ of quo warranto.

<p>Equity — Equity practice — Evidence—Findings of fact — Electric light companies.</p> <p>On a bill in equity by one electric light company against another electric light company, to restrain the erection of poles and the stringing of wires on the same side of a street already occupied by the poles and wires of the plaintiff, a finding by the court below based upon sufficient evidence, that the wires of the defendant were sufficiently distant from the wires of the plaintiff and were sufficiently secured, so as not to endanger the public, or interfere with the plaintiff, will be sustained by the appellate court in the absence of manifest error.</p>

Appeal, No. 285, Jan. T., 1906, by defendant, from judgment of C. P. Carbon Co., Oct. T., 1905, No. 24, on verdict for plaintiff in case of EL A. Butler v. M. S. Kemmerer. Assumpsit on an alleged contract to share profits. Before EIeydt, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned among others was in refusing binding instructions for defendant.

<p>Road law — Eminent domain — Passageway under public road — Adverse possession — Damnum absque injuria.</p> <p>All rights of the individual in property are subordinated to the sovereign power of the state in the exercise of its right of eminent domain to appropriate such property for its public highways.</p> <p>Neither the commonwealth nor a township is liable for damages occasioned by the appropriation of private property for the construction of public highways, nor for injuries resulting therefrom in the absence of legislation providing for compensation.</p> <p>Where a landowner had a passageway for cattle which also answered as a water course, under a private way, and the township appropriated the road as a public road, and maintained a stone culvert of such a size as to answer the purpose not only of a water course, but also as a passageway for cattle, the township had the right fifty years thereafter to close up the culvert and substitute therefor a pipe for the passage of water without any liability to the landowner for the loss of the passageway for cattle.</p> <p>Supervisors have the whole- care and entire supervision of the public highway, and no person, not even an abutting landowner, can make any permanent private use thereof without their consent and approval, and even then subject to the right of the township to discontinue the private use when it is deemed expedient or necessary in order to promote the public use of the highway.</p>

<p>Vendor and vendee — Fraudulent misrepresentations — Action for purchase money — Evidence—Province of court and jury.</p> <p>In an action by a vendor of real estate to recover purchase money, where the defendant sets up as a defense alleged misrepresentations of the vendor as to the location of the land with respect to a stream of water not included in the premises bargained for, and supports such defense by his own testimony, which is full, clear and explicit, the case must be submitted to the jury, although the defendant's testimony is not supported by any other witness. In such a case, however, the defendant must show that he was in fact misled by such misrepresentations, and if he fails to do so, it is proper to give binding instructions in favor of the plaintiff.</p>

Appeal, No. 111, Jan. T., 1907, by plaintiff, from order of C. P. Monroe Co., Sept. T., 1906, No. 15, refusing to take off nonsuit in case of Catherine E. LeBar v. The New York, Susquehanna & Western Railroad Company. ' Trespass to recover damages for death of plaintiff’s husband. Before Staples, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 390, Jan. T., 1906, by defendant, from judgment of C. P. Columbia Co., Feb. T., 1905, No. 12, on verdict for plaintiff in case of Wilson Yeager and Clara Yeager, bis wife, v. Berwick Borough. Trespass to recover damages for personal injuries. Before Ferris, J. The facts are stated in the opinion of the Supreme Court. Verdict for Clara Yeager for $3,225, and for Wilson Yeager for $275. Defendant appealed.

Appeal, No. 156, Jan. T., 1907, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1906, No. 1, on bill in equity in case of Northern Coal & Iron Company v. City of Wilkes-Barre. Bill in equity for an injunction. Before Perris, J. The facts are stated in the opinion of the Supreme Court. Error assigned, was the decree of the court.

Appeal, No. 235, Jan. T., 1906, by plaintiffs, from judgment of C. P. Sullivan Co.,- Sept. T., 1901, No. 51, on verdict for defendant in case of W. W. Jackson and Blanche W. Sturdevant, Trustees for the devisees of George D. Jackson, deceased, and W. W. Jackson, Administrator d. b. n. c. t. a. of the Estate of George D. Jackson, deceased, v. Walter B. Gunton. Trespass for an alleged illegal mining of coal.

Appeal, No. 402, Jan. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., • 1906, No. 2,360, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Standard Interlock Elevator Company v. George B. Wilson. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 67, Jan. T., 1907, by defendant, from decree of C. P. No. 5, Phila: Co., March T., 1903, No. 3,316, on bill in equity in case of Joseph W. Ken-worthy et al. v. The Equitable Trust Co., Administrator for the Estate of Moses T. Johnson, deceased, et al. Bill in equity for an injunction.

Appeal, No. 119, Jan. T., 1907, by Benjamin E. Saurman, from order of C. P. No. 2, Phila. Co., dismissing appeal from the decision of the commissioners of registration. Appeal from commissioners of registration.

Appeal, No. 113, Jan. T., 1907, by Edward Wharton, Jr., from decree of O. C. Phila. Co., Jan. T., 1906, No. 659, dismissing exceptions to adjudication in Estate of Francis R. Wharton, deceased. Exceptions to adjudication.

<p>Corporations — Officers—Salary—President—Vote of officer on his own salary.</p> <p>The president of a corporation cannot, against the protest of a minority of the board of directors, and as against stockholders who choose to challenge the action, sustain a claim for an increase of salary, the right to which, if it exists, is secured by his own vote as a member of the board which allows it.</p>

<p>Appeal, No. 152, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., Oct. T., 1904, No. 1,058, on verdict for plaintiff in case of Mary T. Moore v. City of Wilkes-Barre.</p> <p>Trespass to recover damages for personal injuries. Before Wheaton, J.</p> <p>The opinion of the Supreme Court states the circumstances of the accident.</p> <p>Yerdict and judgment for plaintiff for $2,583.33. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 282, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., Feb. T., 1900, No. 68, refusing to take off nonsuit in case of Joseph Meyers by his next friend and mother, Josephine Meyers, v. the Central Railroad Company of New Jersey. Trespass to recover damages for personal injuries. Before Wheaton, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 318, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., March T., 1904, No. 36, on verdict for plaintiff in case of George W. Everhart et al. v. Lehigh Valley Coal Company.</p> <p>Assumpsit for royalties. Before Halsey, J.</p> <p>At the trial the .jury returned a verdict for plaintiffs for $31,248.95.</p> <p>On a motion for a new trial Halsey, J., filed an opinion which after quoting Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118, concluded as follows :</p> <p>It is further contended that under the covenants in the lease referred to, the lessees are relieved from the payment of minimum royalties covering a stipulated period of time, because of a fire which destroyed one of the breakers through which the coal mined was prepared for market.</p> <p>The eighth paragraph of the lease between the parties provides that if the breaker or necessary machinery or mining improvements be destroyed' or seriously injured by fire, then and in either such cases, the said lessee shall be excused from the payment of any rental except for coal acually mined during the time when the production or shipping of coal is so actually prevented; provided always, however, as to the cases of fires, that the said lessee shall use all due and proper diligence to rebuild the said breaker, machinery or other mining improvements.</p> <p>There never was a breaker erected upon the premises described in the lease. The coal from the leased premises was prepared for market through breakers upon adjoining properties. The breaker burned, the Babylon breaker, was upon an adjoining property, and was one of the breakers through which the coal was prepared for market. The Babylon breaker was never rebuilt. Coal was never actually prevented from being mined and prepared from the property as a consequence of the burning of the Babylon breaker. Coal was actually mined and shipped after burning of the Babylon breaker the same as it had been prior to the burning of the said breaker, through the Phoenix and Seneca breakers. This is clear from the testimony.</p> <p>The fire, therefore, did not actually prevent the mining of coal from the leased premises. Therefore, in our judgment, the fire did not bring in operation the clause of the lease quoted which would relieve the lessee from the payment of the royalties stipulated.</p> <p>Motion denied.</p> <p>Errors assigned were various instructions.</p>

Appeal, No. 199, Jan. T., 1906, by-plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 1,101, on verdict for defendant in case of Lloyd Karchner v. Pennsylvania Railroad Company. Trespass to recover damages for injuries to plaintiff’s land.

<p>Appeal, No. 96, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1904, No. 774, refusing to take off nonsuit in case of Margaret Leñaban v. The Pittston Coal Mining Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Halset, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Public officers — Actions—Bond—Moneys due commonwealth — Local taxes — Acts of April 16, 1845, P. L. 532; April 21, 1846, P. L. 413, and April 21, 1857, P. L. 266.</p> <p>Under the Act of April 21, 1857, P. L. 266, which extended the Acts of April 16, 1845, P. L. 532, and April 21, 1846, P. L. 413, a collector of local township taxes is not a defaulting public officer against whom a suit may be brought in the manner provided by these acts. The acts apply only to suits for the collection of moneys due the commonwealth.' The proper remedy by which a township may enforce its rights against a collector of local township taxes and his bondsman, is by an ordinary action of assumpsit under the Act of May 25, 1887, P. L. 271.</p>

Appeal, No. 157, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1894, No. 50, on verdict for plaintiff in case of Hillside Coal & Iron Company v. Henry Zeigler. Ejectment for land in Pittston township. The opinion of the Supreme Court states the case. Yerdict and judgment for plaintiff. Defendant appealed. Error assigned was in giving binding instructions for plaintiff.

Appeal, No. 103, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1904, No. 314, on verdict for defendant in case of J. R. Coolbaugh, Administrator of the Estate of Milton Dana, deceased, v. Le-high & Wilkes-Barre Coal Company. Assumpsit for royalties.

<p>Negligence — Master and servant — Employment of incompetent fellow servant.</p> <p>An employer is bound to use ordinary care, in the selection of his employees, and if he neglects to do so, or if he retains them after he becomes aware of their unfitness or incompetency, he is answerable to his servant for his negligence in this respect.</p> <p>Practice, C. P. — Trial—Charge—Insufficient instructions.</p> <p>The mere omission to say to the jury what might have been properly said, cannot be treated as reversible error when no points were submitted to the court below asking for specific instructions, and it does not appear that any injustice was done to the parties by the omission, or that the charge was clearly erroneous.</p>

Appeal, No. 161, Jan. T., 1907, by defendant, from judgment of O. & T. Lackawanna Co., Feb. T., 1906, No. 8, on verdict of guilty of murder of the first degree in case of Com. v. Saverio Curcio. Indictment for murder. Before Newcomb, J. At the trial Edward II. Strohl testified on his voir dier that he had formed a strong opinion about the case. He was examined and cross-examined, and finally challenged by the commonwealth.

<p>Bridges — County bridges — Statutory requirements — Record—Act of June 13, 1836, P. L. 651.</p> <p>Under the Act of June 13, 1836, P. L. 551, the prerequisites to the authority of county commissioners to build a county bridge are: (1) a report of viewers that the bridge is necessary and would be too expensive for the township; (2) that these facts have been made to appear to the court, grand jury and commissioners of the county; and (3) that the bridge has been entered on record as a county bridge. Each one of these several steps is necessary to the validity of the proceeding authorizing the erection of a county bridge. If either has not been taken the commissioners are not empowered to expend the money of the county in the erection of the bridge.</p> <p>The proper practice in conforming to the statutory provision as to recording a county bridge, is for the commissioners to pass a resolution formally expressing their concurrence in the view that the bridge is necessary, and too expensive for the township, and to file a copy of such resolution in the quarter sessions, the record of which will then show a complete proceeding carrying authority to build. The mere fact that the commissioners had advertised for proposals to erect the bridge, and that this appeared in the records of the court, is not a compliance with the statutory provision that the bridge shall be entered of record.</p>

<p>Negligence — Railroads—Crossing—“Stop, look and listen” — Death.</p> <p>In an action against a railroad company for death, it appeared that the deceased was killed while seated in a wagon at the rear end of the vehicle. The accident occurred after dark. The driver of the wagon stopped and waited several minutes near the tracks where it was usual for drivers to stop, look and listen for a train. The deceased got on the wagon after it had started, and sat with the driver. The horses were struck on the'first of the defendants’ three tracks by an engine running south very rapidly. Plaintiffs witnesses testified that no notice was given by bell or whistle. The crossing was a very dangerous one. After leaving the usual stopping place there were seven tracks of the road of another company to cross; then there was an open space of thirty-six feet with a down grade of three feet to the tracks of the defendant’s road. Until the open space was.reached, the view to the south was cut off by a high board fence, and on the night of the accident cars were standing on the tracks of the other company and obscured a view to the north. In the open space there was a view of the tracks north for 1,500 feet, but there were switch lights among the tracks that might confuse a person looking for the headlight of an engine. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Election law — Primary elections — Mandatory provisions as to time— Act of February 17, 1906, P. L. 36.</p> <p>The provisions of section 3 of the Act of February 17, 1906, P. L. 36, known as the “Uniform Primaries Act” specifying the exact time when notices are to be sent to the county commissioners and the time when publication shall begin, are mandatory as to the times specified, and must be strictly followed where vacancies are known in advance in the usual time. Other vacancies “happening'or existing after the date of the primary ” are to be filled under section 12 of the act.</p>

<p>Trusts and trustees — Mismanagement of trust estate — Liability of trustees —Misconduct of cotrustee.</p> <p>Where a testator appoints three trustees of his estate, and two of them permit their cotrustee to manage and control the estate, and die without any of the trust funds ever having been received by them, and it comes to light many years after their death that the third trustee had embezzled the trust money, in order to charge the estates of the earlier deceased trustees with the loss it must be made to appear that the devistavit occurred in their lifetime, and that their mismanagement and neglect contributed to the result.</p>

Appeal, No. 14, Jan. T., 1907, by Frank D. Graham and John D. Ford, Executors of and Trustees under the will of David Young, deceased, from decree of O. O. Phila. Co., April T., 1896, No. 239, dismissing exceptions to auditor’s report in Estate of David Graham, deceased. Petition for order to pay.

<p>Appeal, No. 269, Jan. T., 1906, by Maria Elizabeth Graham, Executrix of the will of David Graham, Jr., deceased, from decree of O. C. Phila. Co., April T., 1896, No. 239, dismissing exceptions to auditor’s report in Estate of David Graham, deceased.</p>

Appeal, No. 118, Jan. T., 1907, by plaintiff, from judgment of O. P. No. é, Phila. Co., June T., 1906, No. 2,518, on verdict for defendant in case of Dugald S. Paterson v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. At the trial Audenreid, J., in giving binding instructions for defendant, described the accident as follows: The plaintiff was a passenger in one of the defendant’s cars. He was riding inside of it.

Appeal, No. 117, Jan. T., 1907, by Bryant E. Sherman et al., from decree of O. C. McKean Co., Oct. T., 1905, No. 12, setting aside guardian’s sale in Estate of Stella A. Qurtis Tanner, Minor. Petition to set aside sale.

<p>Appeal, No. 104, Jan. T., 1907, by Ella Aaron, from decree of O. C. Phila. Co., Oct. T., 1905, No. 495, dismissing appeal from register of wills in Estate of Catherine Emernecker, deceased.</p> <p>Appeal from register of wills.</p> <p>Penrose, J., filed an opinion in part as follows:</p> <p>The petition for appeal avers that the decedent died May 13, 1905 ; that on July 16, 1903, she executed a will giving .all her estate, real and personal, to her granddaughter, the petitioner, who, from the time she was thirteen years old, had lived with and given to her her wages and had aided in supporting her; that the decedent had often declared her intention to leave the whole of her estate to the petitioner because the money of the latter had gone into it; that the decedent was a “person of little education and very susceptible to the influence of her friends and neighbors and those with whom she constantly associated, and was so anxious to have her estate go to the petitioner that she constantly discussed her will ” after it had been so executed, with them; that “divers of them’believed tbe said will to be invalid and so stated to ” her “ because no provision was made therein for the devise or bequest to her children of at least the sum of one dollar each”; “that shortly before her .... death a friend and neighbor declared said will .... to be invalid because it did not so provide ” ; that “ influenced by such statement ” and her own belief to the same effect, she destroyed the will, “ declaring at the same time her intention to have another will drawn precisely of the same tenor as the said will .... adding thereto a clause leaving one dollar to each of her children, under the belief that her will would otherwise be of no validity and with no intention of revoking the gift of her estate to the petitioner.”</p> <p>It also avers that the decedent left children, Leopold Hutz, Wilhelmina Sherman, and Caroline Ellis, and grandchildren, William Albright, Caroline Mitchell, Mary ITowells, and Ella Aaron, formerly Albright, the petitioner, of whom Caroline Ellis and Caroline Mitchell desire that a copy of the will so destroyed should be admitted to probate — the application being also joined in by George P. J. Braun, the executor named therein. But that the register refused probate of the copy.</p> <p>The facts are, substantially, as averred in the petition. The testamenta^ capacity of the decedent was admitted, and it was also admitted that the will was duly executed, and that the copy offered was a true and pei’fect copy.</p> <p>When the will was drawn, the testatrix, an elderly German woman, was under the impression that the provision in favor of her granddaughter to the exclusion of her children and other grandchildren, would be invalid unless she gave a nominal amount, at least, to each of those so excluded; but upon the assurance of Mr. Braun, by whom it was drawn, that this was unnecessary, she executed it in the presence of two witnesses.</p> <p>Notwithstanding this she appears to have been uneasy on the subject, and, in April, 1905, about three weeks before her death, she had a conversation with Mrs. Seheidt, an old friend, who told her that the will was not good because of the omission of gifts to her children of at least $1.00.</p> <p>A week or ten days later, in a conversation with another friend, Mrs. Bolst, she spoke of her will with reference to what Mrs. Scheidt had said to her on the subject, and declared -that she would “ make another will so that nobody will be able to take anything from the property what she knows she wished to will to Ellie.” She then, in the presence of Mrs. Bolst, tore the will up and threw the pieces into the fire, saying to her that “ on the first fine day ” they (the decedent and Mrs. Bolst, who also wanted to have her own will drawn) would go to “ Ladner, to Eighth and Green,” to have him “ draw a new will,” in which she would give to each of her children $1.00, “ and for Ellie everything she had in her possession because she was working for her.”</p> <p>At this time the decedent appeared to be in perfect health, but when, about a week later, on Eriday morning, Mrs. Bolst called to go with her to Mr. Ladner’s, she found that she had been taken sick the previous night. She died the next day.</p>

<p>Appeal, No. 97, Jan. T., 1906, by defendant, from decree, of C. P. No. 5, Phila. Co., March T., 1901, No. 1,355, on bill in equity in case of S. Frank Sharp-less and T. W ilson Sharpless, committee of the person and Estate of Samuel J. Sharpless, a lunatic, v. George C. Boldt, George A. Fuller Company, L. J. Ríendeau and A. IL Riendeau, doing business as L. J. Riendeau & Son, and George W. Hewitt and ¥m. D. Hewitt, trading as Hewitt & Company.</p> <p>Bill in equity for an injunction.</p> <p>Davis, J., found the facts to be as follows :</p> <p>The lunatic’s estate and the defendant, George C. Boldt, are owners of adjoining lots of ground on the south side of Walnut, between Broad and Fifteenth streets, in the city of Philadelphia. On the ground of plaintiffs there is erected a three-story brick dwelling house, the easternmost wall of which is a party wall. On his own ground the defendant Boldt has erected a hotel building, extending to within thirty feet of the westernmost line of his lot, which is the easternment line of that of the plaintiff. In this area or space he has excavated, or is excavating, to the depth of thirty feet below the bottom of the foundation partj'’ wall on the line between the two properties. This party wall is eighteen inches in thickness, and immediately beneath it defendant has erected another wall which supports the party wall, of a thickness of not less than three feet at its base, and not less than two feet four inches at its top, extending north and south for at least fifty-six feet along the party wall. This underpinning wall extends westwardly at the top two feet beyond the easternmost line of plaintiffs’ lot, being one foot two inches beyond the limit prescribed and permitted by the Act of Assembly of May 1, 1855, P. L. 464, and increases in thickness as it progresses towards its base. The easternmost side or face-of the underpinning wall is vertical or plumb, and is located about four inches westward of the eastern vertical plane or surface of the present party wall, and with the exception of" about five inches the whole of the underpinning wall is constructed to the westward of the center of the party wall, and is of the average depth of about thirty feet.</p> <p>The contention of the plaintiff is, that this use of his soil by the defendant is a trespass, is improper and illegal, and that the underpinning wall should have been so constructed as to have adequately supported the present wall without encroaching unlawfully on- the adjoining property.</p> <p>The defendants, on the other hand, contend that the underpinning is not a party wall, but a support to plaintiff’s house ; that, admitting the old wall to be a party wall, it is not intended to use it, nor the underpinning wall nor the space thereunder; that the underpinning wall was erected in accordance with plans duly submitted to and approved by the ' bureau of building inspection, and a sufficient support for the old wall; that it was constructed for the benefit of the complainants under the provisions of the twenty-fourth section of the Act of June 5,1901, P. L. 469 ; and further, that the work was done with the consent of Mr. S. Frank Sharpless, one of the complainants, who could, by examination of the same, ascertain exactly the extent and nature of the underpinning.</p> <p>Under sec. 4 of the Act of May 5, 1899, P. L. 193, and the subsequent act of 1901, it is directed that in every case where such walls are defective, out of repair, or insufficient only for the purpose of the new building, the cost and expense of such repairs or removal, together with the expense of the new wall or walls to be erected in lieu thereof, shall be borne and paid exclusively by the parties erecting the new building, and by the Act of June 7, 1895, P. L. 135, see. 7, the owner or owners desiring to excavate to a greater depth than fifteen feet shall protect, and, if necessary, underpin the wall of any adjoining structure at his or their own expense.</p> <p>The wall built upon the dividing line between these two properties is admitted to be a party wall, erected on the line between two adjoining estates belonging to different persons, for the use of both estates.</p> <p>The court entered the following decree:</p> <p>And now, February 23, 1906, this cause coming on to be further heard at this term upon bill, answer, proofs and argument of counsel, upon consideration it is ordered, adjudged and decreed as follows:</p> <p>The defendants in underpinning the eastern stone foundation -wall of the dwelling house on property known as No. 1418 ~Walnut street, built and constructed thereunder a brick and cement wall much thicker than said stone foundation wall, Avhich brick and cement Avail is irregular in thickness, Avidening towards the bottom and which is located upon the said property at the top two feet and at the bottom three feet.</p> <p>Said wall, so far as it thus occupies the property of the plaintiffs to a greater extent than ten inches thereof in Avidth or thickness, is in violation of the legal rights of said plaintiffs, and must be removed.</p> <p>The defendants within three months from the date hereof, must remove so much of said underpinning wall as encroaches to a greater extent than ten inches upon the land of the plaintiffs, in such manner as will insure the safe and proper underpinning of said easternmost stone foundation wall.</p> <p>The defendants shall pay the costs.</p> <p>Error assigned Avas the decree of the court.</p>

Appeals, No. 283, Jan. T., 1905, and No. 2, Jan. T., 1906, by both plaintiff and defendant, from decree of C. P. Crawford Co., Nov. T., 1900, No. 1, disposing of exceptions to referee’s report in case of Samuel B. Dick v. Arthur C. Huidekoper. Exceptions to referee’s report.

Appeal, No. 388, Jan. T., 1906, by defendant, from judgment of C. P. Lehigh Co., June T., 1906, No. 31, on verdict for plaintiff in case of Emma E. M. Melroy and Thomas B. Bachman, trading as Melroy & Bachman, v. Charles R. Kemmerer. Assumpsit for goods sold and delivered.

<p>Master and servant — Dismissal of servant — Grounds for dismissal.</p> <p>Where a person is employed by a mining company as foreman “for so long a time up to five years that he satisfactorily performs his duties as foreman,” the company has the absolute right, whenever it becomes in good faith dissatisfied with the services of the foreman, to discharge him; and if the company discharges him for a cause assigned and not sufficient, and it appears that at the time the company had the right to discharge him for another cause, such discharge will not be unlawful because a wrong reason had been given for it.</p> <p>The master is not bound to give any reason for the dismissal at the time, and if he does, he is not thereby estopped from setting up any other, or different cause, which really existed when the servant was discharged.</p> <p>Corporations — Dividends and profits — Suit for dividends.</p> <p>A shareholder cannot ordinarily sue the corporation- for his share of accumulated profits until a dividend has been declared, a matter which generally rests within the sound discretion of the directors, which discretion the courts will not control unless it has been plainly abused.</p> <p>The sale of the stock of a corporation carries to the vendee the right to all dividends thereafter declared, and this is the case, although the profits from which such dividends have been declared, may have accrued prior to the sale of the stock.</p> <p>Mines and mining — Mine foreman — Mine superintendent.</p> <p>A person who was employed as a “mine foreman” and whose duties as such are confined to the underground portion of a colliery which constitutes the mine proper, is not the superintendent of the colliery withiii the meaning of the Act of June 2, 1891, P. L. 176, and is therefore not required to give the notices prescribed by article 14.</p> <p>Appeals — Review—Reasons for judgments.</p> <p>The appellate court does not review reasons for judgments. If the judgment be right, even though the reasons given wholly fail to sustain it, or would logically lead to a different one, it must stand.</p>

Appeal, No. 164, Jan. T., 1907, by defendant, from judgment of C. P. Erie Co., May T., 1906, No. 22, on verdict for plaintiff in case of Frances Mosten for herself, Julia Mosten'and Yincent Mosten v. The Lake Shore & Michigan Southern Railway Company. Trespass to recover damages for death of plaintiff’s husband. Before Walling, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned, among others, was in refusing binding instructions for defendant.

Appeal, No. 51, Oct. T., 1907, by plaintiff, from judgment of O. P. Beaver Co., March T., 1904, No. 272, on verdict for defendant in case of Robert R. Warren v. Charles F. Mount. Ejectment for land in Big Beaver township. Before Holt, P. J. The opinion of the Supreme Court states the facts of the case. The court directed a verdict for defendant. Yerdict and judgment for defendant. Plaintiff appealed. Error assigned was the instruction to the jury.

<p>Constitutional law — Soldiers’ monument — Memorial building — Title of statute — Local legislation — Acts of May 22, 1895, P. L. 96, and April 3, 1903, P. L. 136.</p> <p>The Act of April 3, 1903, P. L. 136, amending the Act of May 22, 1895, P. L. 96, and reciting in its own title the title of the act of 1895, in full, gives sufficient notice of a provision contained in the amended act authorizing county commissioners in counties having a population of over 500,000 and less than 1,000,000 inhabitants to erect “ a suitable memorial hall or building in memory of the soldiers and sailors of the late War of the Rebellion from such counties.”</p> <p>The title of an amending or supplementary act is sufficient if it declares itself to be such, and its provisions are germane to the subject of the original.</p> <p>While a monument is not a building, a building may be a monument.</p> <p>The Act of April 3, 1903, P. L. 136, is not a local act regulating the affairs of Allegheny county, but is pro tanto a classification of counties according to population for the purposes of authorizing the expenditure of public money in a specified way.</p>

<p>Appeals — Assignments of error — Trivial assignments — Criminal cases.</p> <p>The multiplication of assignments of error upon trivial points having no substantial bearing on the merits of the issue, is always injurious to an appellant’s case, by their inevitable suggestion that the record has been hunted over less to discover real error or injustice than to pick a flaw on which to hang an objection. Assignments of error in criminal cases are particularly open to this inference.</p> <p>Criminal law — Murder—Evidence—Expert—Opinion.</p> <p>Where on a trial of an indictment for murder it is shown that the prisoner when arrested was wearing a hat which belonged to the murdered man, a doctor who has examined both may express an opinion that the location of certain cuts in the hat corresponded to cuts on the head of the murdered man.</p> <p>Where a knife is offered in evidence, and it is shown that it was found at the exact spot where the prisoner was arrested, and it also appears that the murder was committed with a knife, the connection of the knife with the crime is for the jury.</p> <p>Where several objects are offered in evidence and objection is made to the offer as a whole, and certain of the objects are properly admissible, there is no error in overruling the objection.</p> <p>Circumstantial evidence is always admissible on the trial of an indictment for murder, whether there were eyewitnesses of the crime, or not.</p> <p>On the trial of an indictment for murder, the district attorney is not bound to call as a witness everybody that anybody else may think desirable. The responsibility is upon him, and a large measure of discretion must be allowed him in meeting it. While he should try the case fairly in all respects, yet he is the commonwealth’s officer with a duty to take the commonwealth’s view, and present it with zeal.</p> <p>Where there is nothing to show that the commonwealth knew anything about an alleged eyewitness until another witness went on the stand, and no objection is made at the trial because of the nonproduotion of the eyewitness, an assignment of error based upon the non-production of such witness will not be sustained.</p>

<p>Insurance — Fire Insurance — Inventory—Statement of loss.</p> <p>Where a policy of fire insurance provides that if a fire occurs, the insured shall give the company immediate notice in writing, protect the property, “ make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon, and, within sixty days after the fire .... render a statement to the company, signed and sworn to by said insured, stating .... the cash value of each item thereof, and the amount of loss thereon,” the insured is not required to furnish the inventory to the insurance company, but if he furnishes a proper statement of loss, signed and sworn to, he will have sufficiently complied with the provision of the policy.</p> <p>In such a case the insured delivered within the proper time a statement of loss signed and sworn to. In the proof of loss, it was stated that “the statement of loss” shows “the cash value of the property insured by you, and for which claim for loss is hereby made .... as is shown in statement of loss; hereto attached.” The statement of loss showed the items destroyed, and the price of each item. The word “price” instead of “cash value” was put at the head of the column in which the value of each item was given. In a letter the insured advised the company that: “Our proofs of loss are filed upon the basis of actual cash market value at time of fire.” Held, that the statement of loss was sufficient.</p> <p>Insurance — Fire insurance — Whisky—Measure of damages.</p> <p>A policy insuring whisky against loss by fire provided as follows: “This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quantity.” It appeared that the whisky insured was all made by the same company, but was of different ages. Held, (1) that the cash value of the whisky could not be determined by taking together, the cost of material, the expense of manufacturing the whisky, the charges of carrying it in bond, insurance, and interest on the amount invested; (2) that the “cash value” within the meaning of the policy and as applicable to whisky, was the market value in the wholesale liquor market at the time the whisky was destroyed.</p> <p>A contract of insurance must have a reasonable interpretation, such as was probably in the contemplation of the parties when it was made, and when the words of a policy are, without violence, susceptible of two interpretations, that which will sustain a claim to the indemnity it was the object of the assured to obtain, should be preferred.</p> <p>Standard Sewing Machine Co. v. Royal Ins. Co., 201 Pa. 645, distinguished.</p>

<p>Trial — Charge—Failure to object — Inadvertent error — Harmless error — - Insurance.</p> <p>In an action on a policy of fire insurance it appeared that the limit of the defendant's liability under the terms of the insurance policy was the actual cash value of the building insured, not in any event to exceed “what it would cost the insured to repair or replace the same with materials of like kind and quality.” At the trial the court used the word “restore” instead of “repair” in the charge, but the trial judge’s attention was not called to the mistake at the time. Held, that the mistake was an inadvertent error which would have been corrected, and that it was not a ground for reversal.</p> <p>A party may not sit silent and take his chances of a verdict, and then if it is adverse complain of a matter which if an error would have been immediately rectified and made harmless.</p>

<p>Judgment — Setting aside judgment — Record—Opening judgment.</p> <p>A judgment can be set aside or struck off only on the ground of irregularity or invalidity appearing on the face of the record. The court may for sufficient cause under its equitable powers open a judgment, and let the defendant into a defense. The two proceedings are entirely different.</p> <p>No court has power to strike off a judgment regular on its face; and no facts dehors the record will justify a court in setting aside, or striking off a judgment.</p> <p>Judgment — Striking off judgment — Judgment for want of a plea — Acts of May 25,1887, P. L. 271, and April 22,1889, P. L. 41.</p> <p>Where a rule of court adopted under the authority of the Act of April 22, 1889, P. L. 41, provides that a judgment may be entered in an action of assumpsit against a defendant who has failed to plead within fifteen days after the return day, a judgment entered for such default cannot be struck off. The rule of court in no way conflicts with the procedure Act of May 25,, 1887, P. L. 271, which merely provides a system of practice regulating the filing of affidavits of defense, except that it abolishes special pleading.</p> <p>It is error to contend that the defendant has no right to file a plea until the plaintiff has had an opportunity to signify his election as to the affidavit of defense, and that until that time the plaintiff has no right to take judgment in default of the plea.</p>

Appeal, No. 85, Jan. T., 1907, by defendant, from judgment of O. & T. Clearfield Co., Dec. T., 1906, No. 30, on verdict of guilty of manslaughter in the case of Commonwealth v. D. P. Loughhead. Indictment for murder. Before Smith, P. J. At the trial it appeared that the defendant after having arrested Lotsy Cardohely on an indictment charging assault, shot and killed the prisoner while the latter was attempting to escape.

Appeal, No. 337, Jan. T., 1906, by Sarah Jane Pierce, from judgment of the Superior Court, Oct. T., 1905, No. 179, affirming decree of O. C. Chester Co., sustaining exceptions to auditor’s report in Estate of Sarah Jane Rogers, deceased. Appeal from Superior Court. The facts appear in the opinions of the Supreme Court. See also Rogers’s Estate, 31 Pa. Superior Ct. 620. Error assigned was the decree of the Superior Court.

<p>Criminal law — Murder—Evidence—Circumstantial evidence.</p> <p>In a murder trial, the fact that some of the evidence offered to prove the corpus delicti is circumstantial, is no objection to the competence or conclusiveness of the evidence.</p>

<p>Negligence — Telephone company — Live wire.</p> <p>It is the duty of a telephone company to inspect its poles and lines, to maintain them in a safe condition as to the public and its employees and to keep them free from contact with dangerous and deadly currents of electricity not properly protected whether produced by it or by some other company.</p> <p>In an action against a telephone company to recover' damages for the death of plaintiff’s husband, it appeared that the decedent was killed while descending a telephone pole while in the employ of the defendant. The testimony showed that the pole in question was charred at a point where an electric light wire either did, or could have come in contact with it. The pole leaned towards the electric wire and away from its proper position, and the wire sagged in the direction of the pole. At some time, at least six weeks before the accident, a person not disclosed by the testimony nailed a piece of board over the charred place on the pole, and attached thereto a bracket a few inches wide on the end of which was a glass insulator, to which was fastened the electric wire. The decedent was not familiar with the lines in the vicinity of the place of the accident. In an emergency caused by a storm, he was sent out to aid other employees to locate the trouble, and make repairs to the lines. While descending the pole in question, his body suddenly fell to the ground, his face was black, and his shoe burst open. He did not live long enough to tell the story. Immediately after the accident it was noticed that the electric wire for a few inches on either side of the glass insulator was uninsulated. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeals, Nos. 256 and 257, Jan. T., 1906, bjr defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 2,135, on verdict for plaintiffs in case of Henry E. Thompson, by his father and next friend, Edward H. Thompson, and Edward H. Thompson, in his own right, v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for personal injuries to a boy eight years old. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiffs for $2,500.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Negligence — Railroads—Fright of horse — Glare of tin.</p> <p>An owner of real estate has the right to use his property for every lawful purpose for which he may desire to use it, and is only required to exercise ordinary care in that use in order to relieve him from liability for damages on account of injuries incidentally resulting to a traveler on the highway.</p> <p>A railroad company cannot be convicted of negligence in removing bags of phosphate from a station building in the course of repairs, piling them on its own premises abutting on a public highway, and covering the bags with tin with the bright side up, so that the glare of sunlight from the tin frightens a horse and injures the person driving it.</p> <p>Mr. Justice Mestrezat dissents.</p>

<p>Appeal, No. 306, Jan. T., 1906, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1904, No. 623, on verdict for plaintiff in case of Helen A. Lee v. Caroline Hamilton.</p> <p>Ejectment for an undivided interest in a farm in Scott township. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned among others, were (3) in admitting in evidence the paper dated November 21, 1887; and (1) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 371, Jan. T., 1906, by defendant, from judgment of O. P. Northampton Co., Sept. T., 1905, No. 80, on verdict for plaintiff in case of Henry Beil v. The Bonneville Portland Cement Company.</p> <p>Trespass to recover damages for personal injuries. Before Scott, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 1, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 3,969, on verdict for defendant in case of Catherine A. Bond v. Philadelphia.</p> <p>Appeal from award of jury of view. Before Beitler, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the .trial the court refused to permit the plaintiff to show what would be the cost of making the property conform with the new grade precisely as it conformed to the old grade. [1, 2]</p> <p>The court refused the plaintiff’s request that the jury be permitted to examine the property. [17]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions; (17) refusing to permit the jury to view the premises.</p>

<p>Appeal, No. 98, Jan. T., 1907, by Hamilton M. Barksdale, Executor of the will of Susan Macfarland, deceased, from order of C. P. No. 1, Phila. Co., March T., 1897, No. 1,232, dismissing exceptions to auditor’s report In re Trust Created by Moncure Robinson by deed of trust dated February 21,1881.</p> <p>Exceptions to report of Henry G-. Swayne, Esq., auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 150, Jan. T., 1907, by defendants, from judgment of O. & T. Lancaster Co., Sept. T., 1906,-No. 172, on verdict of murder in the first degree in case of Commonwealth v. Anthony Delero, Joseph Celione, Stephen Oarlui and Silverio Rodelli.</p> <p>Indictment for murder. Before Landis, P. J.</p> <p>The circumstances of the killing are recounted in the opinion of the Supreme Court.</p> <p>Verdict and judgment of guilty of murder of the first degree.</p> <p>On a rule for a new trial Landis, J., filed an opinion which was in part as follows:</p> <p>It was alleged that, in accordance with an unwritten rule of the court, the cases, having been returned within ten days of the beginning of the sessions, should have been continued without other cause to the next term. After examination counsel candidly admitted that they had found no rule of court upon the subject and no act of assembly to sustain their position, and this is, therefore, not now open to doubt. Without going into the question of right, we may concede that cases have been at times continued upon this ground; but because of this, however, I cannot see that the court was therefore bound to follow such a'procedure. As a uniform practice, it was a bad practice at best, even though existing. In these more modern times, it is impossible to dispatch business and yet conform to old customs of slow trials and indefinite delays. While every defendant is entitled to a fair trial, it should be as expeditious as the circumstances fairly warrant, and at least the proverbial law’s delays should be, as far as possible, avoided. The rights of a defendant occupy no higher ground than the rights of society, and when a custom exists which impedes instead of aids in the administration of justice, it should be abrogated. It is better in its breach than in its observance. Therefore, even if it was for the first time broken in this trial, and the defendants thus felt the force of its repudiation, that fact should not affect the results arrived at, if they received a fair trial and their whole case was properly presented before ¿n intelligent jury. I believe that they have no just reason to complain in this regard.</p> <p>Errors assigned among others were (1) in refusing a continuance ; (2) in refusing a new trial; (3) in refusing the defendants the benefit of a custom alleged to prevail in the criminal courts of Lancaster county, to wit: that any defendant returned to court less than ten days before the beginning of the sessions, is entitled as of right to a continuance until the next session.</p>

<p>Appeal, No. 152, Jan. T., 1907, by defendant, from judgment of O. & T. Lancaster Co., Sept. T., 1906, No. 174, on verdict of guilty of murder of the first degree in case of Commonwealth v. Stephen Carlui.</p>

<p>Appeal, No. 151, Jan. T., 1907, by-defendant, from judgment of O. & T. Lancaster Co., Sept. T., 1906, No. 173, on verdict of guilty of murder of the first degree in case of Commonwealth v. Silverio Rodelli.</p>

<p>Appeal, No. 128, Jan. T., 1907, by defendants, from judgment of O. P. Luzerne Co., March T., 1905, No. 98, on verdict for plaintiff in case of Anna Boyce v. The Union Dime Permanent Loan Association.</p> <p>Foreign attachment to recover for a loss resulting from failure to comply with an agreement to insure real estate. Before Ferris, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,597. Defendant appealed.</p> <p>Errors assigned were in the following form :</p> <p>1. The court erred in not granting a new trial.</p> <p>2. The court erred in refusing to enter judgment for the defendant non obstante veredicto.</p> <p>3. The court erred in permitting the testimony of the equity case between Anna Boyce with the Union Dime Permanent Loan Association against the Hamburg Bremen Fire Insurance Company, for the reformation of the policy.</p> <p>4. The court erred in not affirming the point of the defendant asking for instructions directing the jury to find under all the evidence for the defendant.</p>

<p>Appeal, No. 153, Jan. T., 1907, by defendant, from judgment of O. & T. Lancaster Co., Sept. T., 1906, No. 175, on verdict of guilty of murder of the first degree in case of Commonwealth v. Joseph Celione.</p>

<p>Appeal, No. 159, Jan. T., 1907, by plaintiff, from order of O. P. Luzerne Co., Feb. T., 1907, No. 34, refusing writ of mandamus in case of George J. Stegmaier, Treasurer, etc., v. Fred Goeringer, Controller, etc.</p> <p>Petition for mandamus.</p> <p>The petition was as follows:</p> <p>1. By lawful ordinance, duly passed by the select council of the city of Wilkes-Barre, in said county, on March 13,1906, and by the common council on March 21, 1906, and duly approved by the mayor of that city on March 24, 1906, the sum of $5,000 was lawfully appropriated for a certain public celebration, held on May 10, 11 and 12, 1906, designated a “ Centennial Jubilee,” and designed to commemorate events of great public interest connected with the history of Wilkes-Barre, in a manner and with the intent to promote, maintain and advance the material welfare of the city and its inhabitants, and its trade, commerce and manufactures.</p> <p>2. By lawful concurrent resolution passed by the said councils on April 24, 1906, and approved by the. mayor on April 25, 1906, it was resolved, pursuant to said ordinance, that a warrant in the sum of $5,000, payable out of the item of “ Centennial Jubilee ” in the miscellaneous appropriation, be drawn in favor of George J. Stegmaier, treasurer of the general centennial jubilee committee, the petitioner, plaintiff, to be expended for the purpose of decorations under the direction of the jubilee decorating committee, said decorations being of a public character and necessary .for the public celebration aforesaid.</p> <p>3. Thereupon, to wit: on April 25, 1906, a city order for the payment of said sum to the petitioner, plaintiff, duly drawn upon the city treasurer, was presented to Fred Goeringer, the defendant, then and now the controller of said city, for countersignature, in accordance with law.</p> <p>4. Thereupon, it became and was the ministerial duty of the defendant to countersign the said order as a legal prerequisite to payment thereof by the treasurer.</p> <p>5. Nevertheless, the defendant unlawfully refused, and still refuses, to countersign the said order, so that payment of the same cannot be made, and the intention of councils in respect to the said appropriation is wholly frustrated.</p> <p>6. Upon the faith of said appropriation the general centennial jubilee committee, composed of sundry citizens, whereof the the petitioner, plaintiff, is treasurer, expended for the purpose 'of decorations, as directed in the said resolution, a sum exceeding $5,000.</p> <p>This petition is filed as well in behalf and at instance of said committee beneficially interested to the extent of $5,000, as of the petitioner, plaintiff, himself, and individuals composing said committee beneficially interested to the’extent of their respective personal contributions to the fund expended as aforesaid.</p> <p>The petition prayed for a peremptory mandamus.</p> <p>The respondent filed an answer denying the right of the relator to relief, and the relator thereupon demurred to the answer.</p> <p>The court overruled the demurrer.</p> <p>Error assigned was in overruling the demurrer.</p>

<p>Appeal, No. 342, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., May T., 1903, No. 353, on verdict for plaintiff in case of Harper ~W. Agnew v. Albert Lewis Lumber & Manufacturing Company.</p> <p>Trespass to recover damages for cutting timber. Before Terry, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Error assigned, was in overruling motion for judgment for defendant non obstante veredicto.</p>

<p>Practice, O. C. — Accounts—Auditor—Distribution.</p> <p>An auditor who had been appointed to pass upon exceptions filed to a particular account of a trustee, and to distribute such balance as he would find to be, among those entitled to receive it, has no power to charge the accountant with certain balances which it was alleged remained unpaid to some of the distributees on a former account. In such a case the auditor must confine himself strictly to the account which he was appointed to audit.</p> <p>Trusts and trustees — Commissions—Compensation.</p> <p>Where a trustee has for a period of four years given constant and careful attention to the trust estate, and his management has been attended with success and with profitable results to the beneficiaries, the appellate court will not reverse the orphans’ court in allowing the trustee a compensation somewhat in excess of the per centum rate usually allowed in such cases.</p>

<p>Appeals, No. 260, Jan. T., 1906,</p> <p>by George H. Ashman, No. 261, Jan. T., 1906, by Cornelius I. Ashman, No. 262, Jan. T., 1906, by Lillian Bernhardt, and No. 263, Jan. T., 1906, by II. H. Ashman, from decree of O. C. Huntingdon Co., overruling exceptions to auditor’s report in Estate of Mary Jane Ashman.</p>

<p>Appeal, No. 15, Jan. T., 1907, by ■George H. Ashman, from order of O. C. Huntingdon Co., striking off transcript in Estate of Mary Jane Ashman.</p> <p>Buie to strike off transcript.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 16, Jan. T., 1907, by George H. Ashman, from order of O. G. Huntingdon Go., striking off transcript in Estate of Mary Jane Ashman.</p>

<p>Appeal, No. 283, Jau. T., 1906, by defendants, from judgment of C. P. Clearfield Co., Sept. T., 1889, No. 320, on verdict for plaintiff in case of James J. Daley and H. A. Daley v. Adrian Iselin et al., Executors of Adrian. Iselin, deceased.</p> <p>Assumpsit on a contract in writing. Before Smith, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $4,882.89. Defendant appealed.</p> <p>Error assigned among others was in discharging rule for judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 108, Jan. T., 1907, by defendant, from judgment of C. P. Blair Co., March T., 1903, No. 54, on verdict for plaintiff in case of American Car & Foundry Company v. Altoona & Beech Creek Railroad Company.</p> <p>Replevin for six passenger cars. Before Kooser, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were various rulings on evidence and instructions.</p>

Appeal, No. 17, Oct. T., 1907, by plaintiffs, from judgment ,of Superior Court, April T., 1906, affirming judgment of C. P. Jefferson Co., Aug. T., 1904, No. 87, on case tried by the court without a jury in suit of T. M. Kurtz, S. Keltonik and G-. L. Glenn, Assignees of the Punxsutawney Mutual Building & Loan Association, v. Ira J. Campbell, S. K. Livingood and Rebecca M, Livingood, his wife. Appeal from Superior Court. See 31 Pa. Superior Court, 516.

<p>Railroads — Damages to land — Trespass—Evidence—Opinion of witness — Cross-examination.</p> <p>Where in an action against a railroad company to recover damages for the flooding of land by reason of the construction of a bridge, a witness for the plaintiff has testified as to the flooding, and the size and extent of the gullies and depressions which had resulted, may be asked on cross-examination whether the land before the building of the bridge had not been subject to overflow, and whether at that time there were not depressions on it and ponds four or five feet deep.</p> <p>Principal and agent — Declarations—Res gestee — Statements after the event.</p> <p>What an agent says while acting within the scope of his authority is admissible against his principal as part of the res gestee, but not statements or representations made by him at any other time.</p> <p>Negligence — Evidence—Repairs made after accident.</p> <p>Repairs made after an accident do not in themselves give rise to a presumption of negligence.</p>

<p>Trial — Charge—Assignments of error.</p> <p>A charge is not to be judged by detached sentences, but is to be taken as a whole. If the charge considered as a whole presents a fair and full presentation of the issue of the facts involved, the appellate court will not reverse.</p> <p>Insurance — Accident insurance — Income of insured- — Agent of company as policy holder.</p> <p>An agent of an accident insurance company was instructed not to take applications for policies that provided for a weekly indemnity greater than three-fourths of the weeldy wages or income of the insured. He took out a policy in his own name, but neither in the application nor in the policy was there any statement as to his income. The company claimed that the insured had procured policies for himself in excess of the three-fourths limitation. It appeared that the income from the insured was from his earnings as an attorney at law, and as an insurance solicitor. It was uncertain in amount, and his weekly receipts were at times less, and at other times more than would warrant an applicatian for the’amount of indemnity for which he applied. The court charged that, if in making his application the insured acted in good faith with no intention to obtain overinsurance, or to defraud the company, he could recover, otherwise he could not. Held that the instruction was proper, and that a verdict and judgment for the plaintiff should be sustained.</p>

<p>Lease — Coal lease — Extension of lease — Evidence—Question for jury.</p> <p>A coal lease provided that if the lease should not be renewed at the end of the term, the lessors should pay to the lessees a certain share of the cost of coke ovens erected on the premisés by the lessees. At the end of the term the lessees continued mining coal, making coke and paying royalties. The lessors contended that the lease had been renewed, and that they were not liable years after the termination of the original term to pay any share of the cost of the coke ovens. The lessees contended that the lease had not been renewed. The evidence on the subject was conflicting. A letter was admitted in evidence written by the lessees in reference to the renewal of the lease, just before the expiration of the term. Held (1) that the letter was properly admitted in evidence; (2) that the case was for the jury; (3) that a verdict and judgment for defendants, the lessors, should be sustained.</p> <p>Evidence — Writing—Offer of whole paper.</p> <p>Where a party offers a paper in evidence he must offer the whole of it.</p>

<p>Appeal, No. 129, Jan. T., 1907, by plaintiff, from judgment of C. P. Huntingdon Co., May T., 1904, No. 23, on verdict for defendant in case of American Car & Foundry Co., Subcontractors, v. Alexandria Water Company, Owner, or Reputed Owner, and William M. Powell & Company, Contractors.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial when W. F. Lowery, district manager of the plaintiff wras on the stand, he was asked on cross-examination, this question:</p> <p>“ Q. Then the contract was made and concluded by you % ”</p> <p>Mr. Waite: We object to this examination for the reason that it is not a cross-examination of the witness. We have proved a contract entered into by the witness between William M. Powell & Company and the American Car and Foundry Company, and he was not asked with regard to how that contract came to be made, or whether he communicated with the home office before he entered into it or not. The fact is that contract is now involved in the controversy and it is not cross-examination.</p> <p>Mr. Bailey: I wish to inquire what the authority of the district manager is and for that reason I wish the jury to understand that the contract was made without conference with the home office ; in that light the question is proper.</p> <p>The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for plaintiff. [1]</p> <p>“ Q. What did you do with those notes ? A. Forwarded them to the treasurer at St. Louis. Q. For what purpose? A. For him to rule on the matter.”</p> <p>Mr. Bailey : It is objected to that what transpired between William F. Lowery and the other officers of the American Car & Foundry Company with regard to those notes is not evidence against the defendant, the Alexandria Water Company, the only question being with what understanding they were received by William F. Lowery, who is a witness in this case, holding the position of district manager of the American Car & Foundry Company, and the American Car & Foundry Company cannot now excuse itself of liability by any juggling of the notes or transmitting them from one officer to another of the American Car & Foundry Company.</p> <p>2. What occurred between the witness and any other officer of the American Car & Foundry Company is not rebuttal.</p> <p>The Court: The second objection as to this not being rebuttal is sustained ; evidence rejected and bill sealed for the plaintiff. [9]</p> <p>Mr. William F. Lowery on the stand.</p> <p>Mr. Waite : I propose to prove by the witness on the stand that when Mr. Mandeville and Abner Smith were at the office at Berwick, Pa., on December 29, 1903, and suggested the giving of promissory notes for the balance due the plaintiff company from William M. Powell & Co., the witness told them that he could do nothing more than receive the notes, and sent them to the home office at St. Louis for approval or rejection by the company ; that in pursuance of that conversation a day or two after the notes were sent to him by mail from Hazleton, Pa., signed by William M. Powell & Co., and not in evidence; that he immediately sent those notes to the home office in St. Louis, and that he received a letter in reply thereto from S. S. Delano, the treasurer of the American Car & Foundry Company, which is as follows:</p> <p>“ January 4, 1904.</p> <p>“ Mr. Wm. F. Lowerv, District Manager, Berwick, Pa.</p> <p>“ Dear Sir : Replying to your favor of the first inst., inclosing three notes signed by Messrs. William M. Powell & Co., covering the account. Before accepting these notes I would thank you to advise me if, under the state laws of Pennsylvania, the time limit for filing builders’ lien on the" construetion into which this material entered has expired. We prefer to see that .our interests are legally protected before being forced into accepting these notes.</p> <p>“ S. S. Delano, Treasurer.”</p> <p>That in reply to this letter William F. Lowery, on January 6, 1904, wrote to S. S. Delano, of St. Louis, the following letter : '</p> <p>“ Berwick, Pa., January 6, 1904.</p> <p>“ Mr. S. S. Delano, Treasurer, St. Louis, Mo.</p> <p>“ Dear Sir : I am in receipt of your favor of the 4th instant, account William M. Powell & Co. The law of Pennsylvania requires a notice to be given ninety days from time of furnishing the materials, and the filing of the lien ninety days after such notice, a total of six months from the time of furnishing the materials until the lien itself expires. It is important, however, that the notice be given in ninety days. If you so instruct, I will have our local attorney, Mr. Charles C. Evans, to take care of this feature which would probably give us a good position on the October and November shipments.</p> <p>(Signed) “Wm. F. Lowert.”</p> <p>To which letter S. S. Delano made the following reply :</p> <p>“ January 23, 1904.</p> <p>“ Mr. William F. Lowery, District Manager, Berwick, Pa.</p> <p>“ Dear Sir: Inclosed I beg to hand you the three notes of Messrs. William M.' Powell & Co., which were tendered in settlement of their account. Since we have made other arrangeménts to protect our interests we are forced to return these notes. I will thank you to advise me from time to time as anything develops on this account.</p> <p>“ Yours very truly, S. S. Delano, Treasurer.”</p> <p>In reply to which William F. Lowery wrote the following :</p> <p>“ Berwick, Pa., January 26.</p> <p>“ Mr. S. S. Delano, Lincoln Trust Building, St. Louis, Mo.</p> <p>“ Dear Sir : I am in receipt of your favor of the 23d inst. inclosing William M. Powell & Co.’s notes. Owing to the disarrangement of railroad traffic in this region on account of high water and ice gorges, our attorney, C. C. Evans, has been unable to go to Alexandria yet. We have, however, received an acknowledgment of our notice from, the treasurer of that company, and Mr. Evans will visit Alexandria the earliest date possible. Pending his return I retain the notes here under his advice, and will communicate with Powell & Co. under our attorney’s directions after the visit above referred to.</p> <p>(Signed) “ William P. Lowery.”</p> <p>We also offer in evidence letter written January 1, 1904, in which the following is stated :</p> <p>* • “ Berwick, Pa., January 1, 1904.</p> <p>“ Mr. S. S. Delano, Treasurer A. M. C. Co., St. Louis, Mo.</p> <p>“ Dear Sir : Referring again to my letter of the 30th, W. M. Powell & Co., I hand you herewith copy of letter from this concern under that date (30th), the three notes therein mentioned and copy of special report from Dunn relative to the concern. I see the notes are written covering interest to maturity, but do not care of the back interest from due date of account to date of the notes themselves. I have not written Messrs. Powell & Co. anything regarding this matter, and will not do so until you have passed upon the facts presented. The mutual acquaintance to whom I have referred says he has been away from Hazleton too long to be in close touch with the movements of Mr. Powell, and, therefore, is not in position to give information of value. Our sales agent will be in Hazleton within a few days, and will study the question from that standpoint. Aside from the fact that the transaction has not been conducted so as to give us legitimate returns from the work into which our material entered, on the surface the account would seem to be good, only slow in adjustment. Awaiting your favor.</p> <p>(Signed) “ William P. Lowery.”</p> <p>This offer is for the purpose :</p> <p>1. Of corroborating the witness in his testimony with respect to what occurred in the office at Berwick with Mr. Mande ville and Mr. Smith.</p> <p>2. Por the purpose of showing that the witness has no authority or power to enter into such a contract as Mr. Mandeville and Mr. Smith testified to at the time the notes were given. This is to be followed by proof that the witness in all such cases is required by the company to forward to the home office in St. Louis any application or applications, such as were given to the plaintiff company in this case, for the approval or rejection of the treasurer, S. S. Delano.</p> <p>Mr. Bailey: Counsel for defendants do not object to that part of the offer which proposes to show what occurred between the witness in his office at Berwick, Pa., and Abner Smith and Mr. Mandeville. It is objected, however, that the balance of the offer is immaterial, irrelevant and inadmissible for the following reasons :</p> <p>1. For the reason that what occurred between William F. Lowery, one of the officers of the American Car & Foundry Company, and other officers, with relation to those notes is utterly immaterial to this issue, it being in evidence that William F. Lowery had authority, and complete authority, to make this contract with William M. Powell & Co., and that he did make it; that they manufactured the materials sent to Alexandria, and the American Oar & Foundry Company cannot now seek to escape the consequences of this contract by any secret limitation of the authority of William F. Lowery ; they cannot take advantage of the profit derived from this contract, or-of this power to make the contract and then repudiate his authority to settle for it.</p> <p>2. It is not rebuttal. The question of his authority to receive these notes in payment having been ruled upon by your honor in the case in chief.</p> <p>3. Generally irrelevant and incompetent, and the letters on their face show that they were not all the correspondence, but the letters, together with all the rest of the testimony after the testimony as to what took place at the office at Berwick, is utterly immaterial and irrelevant.</p> <p>The Court: The conversation which took place between the witness on the stand and with the witness on the part of the defense, Abner Smith, is evidence in rebuttal. The balance of the testimony offered is rejected and bill of exceptions sealed for plaintiff. [10]</p> <p>Mr. Waite : I propose to prove by the witness on the stand that he is not clothed with power and authority to receive notes in settlement of accounts ; that as soon as cash, checks or notes are received by him they are forwarded to the home office in St. Louis, Mo., and that all collections for the sale of goods from the factory at Berwick, Pa., are made through the home office at St. Louis, and this has been the practice ever since the witness served as district manager at Berwick, Pa.</p> <p>Mr. Bailey : It is objected to that the court has already ruled in chief that the limitations put upon the authority of the witness are utterly immaterial, irrelevant and incompetent, it having been proved that the witness was general agent and clothed with authority to make contracts anywhere in this country from his office at Berwick, that under the same powers he was clothed with authority in the settlement of contracts. The evidence is, therefore, immaterial and incompetent and cannot be used to the injury of the third party..</p> <p>The Court: The plaintiff having already produced testimony to the effect that it sought to and did obtain a judgment note to secure this claim, the offer is not rebuttal to the proposition offered on the part of the defendant. Evidence rejected. Bill of exceptions sealed for plaintiff. [11]</p> <p>Mr. Waite : “ Q. Were the notes returned to you ? A. Yes, sir. Q. From the home office in St. Louis ? A. Yes, sir; rejected.”</p> <p>Mr. Bailey : We object. What became of the notes after-wards was excluded by the court.</p> <p>The Court: It is ordered stricken out.</p> <p>Mr. Waite : I propose to ask the witness if they were rejected at the home office in St. Louis and rejected by him.</p> <p>Mr. Bailey: That is objected to as immaterial, irrelevant and incompetent. Exception. [12]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1, 9, 11, 12) rulings on evidence, quoting the bill of exceptions.</p>

<p>Municipalities — Borough—Supply of water and gas — Right to alienate property.</p> <p>A borough, or other municipal corporation has the incidental or implied right to alienate or dispose of its property real or personal, of a private nature, held for the emolument and advantage of the municipality, unless restricted by charter or statute.</p> <p>A borough which has undertaken to supply water to its inhabitants acts in a private, and not a public capacity.</p> <p>A borough which has purchased the stock of a corporation organized to supply the inhabitants of the borough with gas and water, may sell such stock, unless prohibited from doing so by charter, or by statute. A provision in the ordinance authorizing the purchase of the stock to the effect that so long as the borough held one-third of the stock, it was to have the right to appoint three managers of the company, in no way operates to prevent an alienation of the stock. Even if it should be held that the borough’s relation with the company was one of partnership, still it would have the right of a partner to dispose of its interest, subject to the rights, liabilities and equities of the partnership.</p>

<p>Negligence — Railroads—Grade crossings — “Stop, look and listen”— Contributory negligence.</p> <p>It is the duty of a railroad company in the running of its trains, to exercise care according to the circumstances, and when the railroad track crosses a much traveled street or highway, the company is bound to exercise a degree of care commensurate with the danger; to give some sufficient notice of the train’s approach, and to moderate the speed of the train to such rate as, under the circumstances, is reasonably consistent with public safety.</p> <p>In a case'against a railroad company to recover damages'for personal injuries or death at a grade crossing, where there is a disagreement among the witnesses as to whether a bell was rung, the question whether the failure to ring a bell is negligence, is a question for the jury to determine from all the circumstances in the case.</p> <p>In such a case where there is evidence that the deceased stopped, looked and listened, before going upon the track, but the evidence is conflicting as to the place at which he stopped and as to the manner in which he started to cross, it is for the jury to determine, under the proper instructions of the court, whether the deceased did all that he was.bound to do upon the situation as he found it, and the circumstances in which he was placed.</p>

<p>Railroads — Farm crossings — Covenant—Agreement with landowner— Abolition of crossing.</p> <p>Where a railroad company covenants with a landowner to provide for “suitable farm crossings,” and it appears that the successors in title of the original covenantee, for a long period of years had used one of the crossings as a means of egress from their lands, and to reach a village, post office and station, and such use had been acquiesced in by the railroad company, the railroad company cannot abolish the crossing, on the ground that it had ceased to be used as a farm crossing.</p> <p>All contracts made by a railroad company with the landowner whereby privileges are wholly or in part obtained without condemnation, are favorably regarded by the courts and will be construed strongly in favor of the landowner.</p>

<p>Partition — Findings of fact — Review.</p> <p>Findings of fact by a court below in partition proceedings based upon , sufficient evidence that the plaintiffs had no title whatever in the real estate in question, will not be reversed by the appellate court where there is no manifest error.</p> <p>In such a case the fact that there was some conflict of testimony on the question involved, or a difference of opinion as to the inferences to be drawn from the established facts, is not sufficient to warrant the appellate court in reversing the findings unless it clearly appears there was manifest error.</p>

Appeal, No. 193, Jan. T., 1906, by plaintiff, from order of C. P. Lancaster Co., May T., 1902, No. 13, refusing to take off nonsuit in case of Kate Stark v. Lancaster Electric Light, Heat & Power Company. Trespass to recover damages for death of plaintiff’s son. Before Hassler, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Taxation — Assessments—Appeals—Location of property — Finding of fact — Change of venue.</p> <p>A corporation appealed from a tax assessment and thereupon petitioned for a change of venue. The petition was dismissed, but no exception was taken to such dismissal. The court found as a fact that the property was situated in the county where the assessment was made. On an appeal by the corporation this finding was sustained. Subsequently a neighboring county claiming that the property assessed was within its limits, intervened, but the court again found that the property was within the other county. The intervening county then took an appeal. Held, that on the appeal the intervening county could raise no question as to the dismissal of the petition for the change of venue, and had no standing to contend that the Act of April 14, 1905, P. L. 157, in relation to the surveying and marking of county lines, ousted the jurisdiction of the court.</p>

<p>Appeal, No. 155, Jan. T., 1907, by Fourth Street National Bank, from decree of C. P. York Co., April T., 1905, No. 1, sustaining exceptions to auditor’s report in case of The Tenth National Bank of Philadelphia v. Smith Construction Co.</p> <p>Exceptions to report of David P. Klinedinst, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in sustaining exceptions to report of auditor.</p>

<p>Appeal, No. 188, Jan. T., 1907, by Edgar A. Frey and Chester H. Thomas, trading as Frey & Thomas, from order of C. P. York Co., dismissing exceptions to auditor’s report in case of the Tenth National Bank of Philadelphia v. Smith Construction Company.</p> <p>Exceptions to report of David P. Klinedinst, Esq., auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 180, Jan. T., 1907, by plaintiff, from judgment of C. P. York Co., April T., 1906, No. 135, on verdict for defendants in case of First National Bank of York v. S. K. Diehl et al.</p> <p>Assumpsit on a promissory note. Before Bittenger, P. J.</p> <p>The court charged as follows :</p> <p>We have tried an important case in a very short time by means of an agreement between counsel by which they have admitted all the facts in the case. A promissory note was signed by the carriage company, and the note indorsed for $5,000 and discounted in the First National Bank of York. It was indorsed by a number of indorsers, among whom were the four parties defendant in this case, namely, W. J. Reider, N. S. Brillhart, S. K. Diehl and J. Fletcher Lutz. The parties have agreed upon the facts contained in the paper which has been offered by the plaintiffs in evidence, -from which it appears that the bank granted time to W. C. Roller, who was president of the carriage works and also an indorser on the note, amounting in all to nearly a year; and that he was the president of the company to which they gave this extension of time. [A matter of law is raised in those admissions as to the effect of giving time upon this note, and the court has ■been asked to instruct the jury that by giving that time the bank prevented itself from suing the company and Mr. Roller during the time of extension given, and by that act the law discharged the sureties on this note, four of whom are in this case as defendants, whose names I have stated. We are of the opinion strongly that the action of the bank in this case was such as to prevent their recovering in this action against these indorsers who were sureties on this note. They were indorsers only for accommodation, and not for value. The Supreme Court has decided that in such cases the extension of time is a discharge of the surety, and ive are compelled to hold that opinion in this case. We think that the law applies in this case, and we therefore instruct the jury that their verdict should be for the defendants. While they have produced a note in evidence upon which they have shown a prima facie case on which they could recover a verdict, the defendants have produced evidence which is a perfect defense, and to that there has been no answer; therefore it will be for the jury to find a verdict in favor of the defendant.] [2] [The amount claimed was $1,037.95 with interest from May 11, 1905, with costs of suit. The plaintiff has not sustained his action showing that plaintiff is entitled to recover any amount of this money and, therefore, you will render a verdict in favor of the defendants.] [3]</p> <p>Yerdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (2, 3) above instructions, quoting them ; (7) in refusing plaintiff motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 186, Jan. T., 1907, by defendant, from judgment of O. P. York Co., April T., 1906, No. 92, on verdict for plaintiff in case of John S. Zearfoss v. Norway Iron & Steel Company of York, Pa.</p> <p>Trespass to recover damages for personal injuries. Before Bittenger, J.</p> <p>At the trial it appeared that the plaintiff was injured on June 17,1905, while at work in defendant’s furnace at a cupola.</p> <p>The circumstances of the accident are described in the charge as follows:</p> <p>Plaintiff was engaged as a laborer in the yard of the defendant company, unloading a car of sand. It was in the morning, shortly after going to work, about half past seven o’clock. On that particular morning, for some reason not explained, the man whose duty it was to attend, and charge, and care for this cupola, and furnish the molten iron, or a part of the molten iron, to the works, did not appear at this place of business. It was a Saturday morning; and it was usual to close the place at 12:45 o’clock on Saturday; and it was necessary to do a certain amount of work before the shop was closed and the hands were discharged for the week. It seems to have been necessary that morning to get a heat in this cupola to produce the molten iron required for manufacture of articles in the shop, and the employment of the hands there. It was then that Mr. Baugher, who was the foreman of the hands in the yard and in the shop, and his assistant, Mr. Reiser, who were both present, called upon the plaintiff, according to his testimony, to take the place of this hand on the cupola, who had not appeared that morning, and to prepare the heat in the cupola. He was at work at the time unloading this car of sand, that we have spoken of, with another man; and this foreman came and requested the plaintiff to take charge of the cupola ; that the man had not appeared, and that he should go up on the cupola platform, and get up the heat. He demurred at the time, according to his testimony, and said it was too late to do anything of that character that day. I infer — but the jury will draw their own inference' — I infer that he meant to say that it was too late to get up a heat sufficient to have a moulding that morning, or before the shop closed, at 12:45. He said it was too late, and demurred about going up to the cupola. He testified that then Mr. Baugher said that he should go and hurry the matter, and get up the heat; and that upon that request, or that command, he went to the cupola. It was about half past seven o’clock in the morning.</p> <p>When he’examined the cupola he found that before any heat could be made, or before the cupola could be used, it was necessary to clean it out. As he went to the cupola he found that the large partition did not extend between the cupola and shop below, as I understand, at that time; but it was only above, where the platform was ; that this wooden partition had a hole or window in it between the cupola platform and the shop. He found that the cupola had to be cleaned, and in doing so it was necessary to use water, and he ordered the man who was down below to turn on the hose, when he gave him orders from the platform above. He testifies that when he was ready to have the water turned on, he called to the man below to turn on the water in the hose, and that he got no reply from him ; that he called to him again, and got no reply; that he then leaned out of this window or the hole in the partition that led to the foundry, and called to him. After calling some time the man made answer, but the dust was so great — or the foggy morning with the dust — and the noise was so great, that he did not seem to know where the call was coming from ; and then he leaned out of the window for the purpose of calling him again.</p> <p>[He had not been there, I think, more than fifteen minutes, in the cupola, before he called to the man below ; and while he was looking down to see the man, with the dust so great that he could hardly see where he was to speak to him, he looked up suddenly, and he saw this crane coming toward him on this track, and only about two and a half feet from him when he first discovered it.] [8]</p> <p>He was then leaning out of the window, with his head and shoulders out of the window; and whether or not he had his hand on the beam at that time, or on the track, he is not certain ; but seeing the danger he was in, and a part of his body out of this hole, and the crane rapidly approaching, he made an effort to draw his body from the danger of being struck by the car, and threw himself back; and, he said, in doing so, his hand got on the track. Whether it was necessary to put his hand there to withdraw his body is one of the questions which the jury will have to consider; whether he did it in the endeavor to withdraw his body from still greater danger, or whether he placed his hand there when he was looking out of the window, and failed to withdraw his hand when he had the time to do so, and in the meantime to escape injury. That is one of the important questions that the jury will have to consider. He did manage to withdraw his body, but his hand remained on the rail,,which was supported by the beams, which I have already mentioned; and he was standing facing the foundry. While in this position his thumb and front finger were caught by the wheel; and he says by wrenching the other fingers aside when he was struck he managed to save the balance of his hand, and keep it from being run over by this wheel.</p> <p>But if, after considering all the evidence, you come to the conclusion that the defendant was guilty of negligence in maintaining this cupola and platform, and the opening, and the crane in near proximity, and not giving him proper instructions, or warning, or giving him this particular work which he never performed before, why, then, the jury will have to proceed further.] [9] If you find there was negligence on the part of the defendant, you will have to proceed further to determine whether the plaintiff was himself guilty of such negligence as will prevent him from recovering in this case. The law requires the employer of hands to furnish them with reasonably safe tools and materials with which to work, and to furnish an ordinarily safe place for the employee to work in ; [and the law further requires also that the employee shall take upon himself the risk of his employment when properly instructed. In a case like this, where he is urged about the work, where some allowance is made for the employee, his not being as vigilant as he is at other times to take upon himself the risk of his employment — but he must be shown and made to understand the dangers connected with his employment, and to be able to comprehend the danger which he undertakes, and the risk which he takes when he goes into the employment]; [10] and, if understanding the risks and dangers which he is in, if he is guilty of any negligence in the performance of his work which contributes to his injury — the injury which- he may receive in any accident or injury resulting from this employment — -why, then, he cannot recover damages against his employer for any negligence on the part of the employer. In other words, when both parties are proven to be negligent, it is impossible for the jury to divide the responsibility, or for the court to divide the responsibility — that is, the theory of the law — and that if he helps to produce, or causes or inflicts an injury upon him, or causes an accident by which he is injured, that he cannot then call upon the defendant to pay for damages which he helped to bring upon himself. There cannot be a recovery of damages in a case where both parties are negligent, or where any negligence is shown on the part of the plaintiff which contributed to this injury — the burden must be with the plaintiff.</p> <p>The defendant’s testimony in this case does not materially differ from or contradict the plaintiff’s testimony as to his orders that morning as to his duties, nor as to the crane being there, and the placing of the crane there. It is in evidence, and not contradicted, that the plaintiff worked at annealing at the works for two years; that this crane was not there, or not in operation.</p> <p>The defense is, first, that the defendants were not guilty of negligence in anything that they did; and, secondly, that the plaintiff having been guilty of negligence by putting his hand there unnecessarily, and keeping it there, and not removing it in time to save, these members, that he cannot recover. The witnesses for the defense testify that there were no such noises produced by this cinder mill, and by the chipping machine, as to deaden the sound or noise which the crane would make in running on that track; and that there was no such dust produced by this cinder machine, and the state of the weather that June morning, as to make it so that he could not see, or to produce such a darkness that the plaintiff could not see the danger that he was in by the approaching of this crane on those wheels; and that there was no such a noise but what he could have, heard the crane approaching. The testimony on the part of the defendant is that the crane made a peculiar noise in starting, which could have been heard a considerable distance; that it made a noise when running, which would not be deadened by the noise of the cinder machine, and that the plaintiff could have heard it; that the sound could be heard outside of the shop, at the office, when that crane was running; and that the rail upon which this crane ran was. five inches above the window — several inches from the window, the track, by measurement — and that other operators there had called the hands easily by just calling out at the cupola; that there was an opening in the boards below by which the call could be heard; and it was not necessary to put himself out of that hole at all in order to call to the hands below to turn on the water; that they heard otherwise the call of the operators.</p> <p>[This case is peculiarly different from many cases of this character, such as damages by employers, from the fact that he was ordered to this particular work by the foreman suddenly, and ordered to hurry the work, and to take a position that he had not been accustomed to fill, and which he at first objected to occupying, and which he says he did not know the danger of, from that particular- running of the crane past this hole or window in the partition.] [13]</p> <p>Yerdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned among others were (8-10, 13) above instructions, quoting them.</p>

Appeal, No. 192, Jan. T., 1907, by defendant, from judgment of the Superior Court, Oct. T., 1906, No. 186, affirming judgment of C. P. Lancaster Co., April T., 1905, No. 44 on verdict for plaintiff in case of Rebecca J. Moss v. The Lancaster & York Furnace Street Railway Company. Appeal from judgment of Superior Court.

<p>Railroads — Condemnation proceedings — Viewers—Practice, C. P.— Damages.</p> <p>An order of the court of'common pleas in condemnation proceedings referring back to the viewers their report with directions to state the quantity and quality of the land condemned, will not be reversed, where it appears that the effect of the order was merely to add matter as to which there was no dispute.</p> <p>A verdict and judgment in a railroad condemnation proceeding will not be reversed on the ground that the jury allowed for probable injuries by flood to land not appropriated, where it appears that at the time of the trial the construction work had been completed, that there was no complaint of negligent construction, and the court in its charge carefully distinguished between injuries that might result from faulty construction, and those that would naturally result from the work, and limited the recovery to the latter.</p> <p>There may be a recovery of damages in condemnation proceedings for the flooding of lands outside the limits of the lands condemned by a railroad company where the flooding is the natural result of the changing of the course of a stream made necessary by the construction of the railroad.</p>

Appeal, No. 319, Jan. T., 1906, by Andrew Banks, Administrator c. t. a. of Jane Gallagher, deceased, from decree of'O. C. Juniata Co. refusing to appoint an auditor in Estate of Robert C. Gallagher, deceased. Petition to appoint auditor. From the record it appeared that Robert C. Gallagher died testate April 1, 1872, leaving a widow who elected to take against the will.

<p>Appeal, No. 203, Jan. T., 1906, by defendant from judgment of C. P. Chester Co., Aug. T., 1904, No. 28, on verdict for plaintiff in case of National Bank of Kennett Square v. P. B. Shaw.</p> <p>Assumpsit on a promissory note. Before Hemphill, P. J.</p> <p>At the trial it appeared that on April 4, 1899, the defendant gave his promissory note to the plaintiff for $5,000, payable in four months. At the time the note was given the following agreement was entered into between the - bank and defendant.</p> <p>“ It is hereby understood and agreed that P. B. Shaw shall not be held responsible for the payment of his note of five thousand dollars ($5,000) payable to the order of himself and dated 4th day of Feb., a. d. 1899, at four months and discounted by said bank, and tbe proceeds whereof was for the benefit of the Pennsylvania Marble and Granite Co., a corporation incorporated under the laws of the state of New Jersey ; the said amount of Five Thousand Dollars to be repaid to said Bank out of the first earnings or profits of the business of the above named company to the extent of one-third of said earnings, or profits arising from monthly sales of marble, granite or other stone from the quarries of said company, and said bank shall participate in said profits until said note shall be paid in full with discounts on same. In the event of said company failing to earn sufficient profits to pay said note and discounts, the said bank will not hold said Shaw personally liable for the repayment of said note or any unpaid portion thereof. This action being taken on an agreement of the members or stockholders of said Pennsylvania Marble and Granite Co., upon its reorganization to repay said bank out of the earnings or from sale of stock of said company, or in lieu of same (if not paid in cash) issue and deliver to said bank such an amount of stock as will in the aggregate amount to the entire balance unpaid of the indebtedness of the Acme Lime Co., Avondale Marble Co., indorsed notes of Hunt, Hepburn and Yolmer, also business paper of Gimm Deitrich, or any other like obligations on which the former operations or companies have received the money on, by being discounted at and by said bank, and said obligations still remaining unpaid, or any portion thereof, after all collateral held by said bank (that can legally be disposed of) have been sold, and the proceeds thereof applied to the payment and discharge of said indebtedness of said several companies or operations above mentioned, dated at Kennett Square, Pa., April 4, 1899.”</p> <p>Yerdict and judgment for plaintiff for $7,012.50. Defendant appealed.</p> <p>Errors assigned were (1-10) above instructions quoting them.</p>

<p>Appeal, No. 237, Jan. T., 1906, by defendants, from judgment of O. P. Lackawanna Co., March T., 1904, No. 559, on verdict for plaintiff' in case of William B. Rogers v. Charles H. Schadt and Adolph Marcus.</p> <p>Trespass for wrongful levy and sale of stock of goods. Before Newcomb, J.</p> <p>At the trial the jury returned a verdict for plaintiff for $2,093.40, upon which judgment was entered.</p> <p>On the rule for a new trial Newcomb, J., filed the following opinion:</p> <p>This is an action of trespass growing out of an attachment under the Act of March 17, 1869, P. L. 8, and its supplements. The defendants are the sheriff and the attaching creditors. The writ went out against one O. R. Rogers, a brother of the plaintiff here. It was issued July 2, 1903, returnable to September term following, for the purpose of seizing a stock of merchandise in a store at Moosic where O. R. Rogers had for some three years been in business. On that date the sheriff made a paper service of the writ, and finding W. B. Rogers in possession summoned him as garnishee, and not finding the defendant returned the writ as to him “nihil habet.” July 6 the sheriff closed the store, locked it, and put it in charge of a watchman by whom he kept possession of the property until July 24, when, with his permission and in his presence, the goods, or most of them, were sold at public sale by a constable. The sale was made on an execution upon a judgment recovered against O. R. Rogers, June 30, before an alderman at the suit of another creditor. In order that a levy might be made for this purpose the sheriff caused the store to be opened for the constable July 18. Out of the proceeds of the sale the sheriff received from the hands of the constable enough money to cover his writ, costs and expenses, including $54.00 paid for services of the watchman. Later, at the instance of the defendant in that proceeding and after hearing on the merits, the lien of the attachment was dissolved. The point at issue there was the bona fides of a transfer of the property by O. R. to William B. Rogers, claimed to have been made June 27. In the judgment of the court the attaching creditor failed to impeach that transaction. The plaintiff’s case here was founded upon title acquired by that transfer, coupled with notice to the defendants prior to his exclusion from the store.</p> <p>There was no dispute about the plaintiff being found in possession of the property and claiming it as his own when the sheriff went there July 2.</p> <p>As to the other defendant the evidence, if believed by the jury, was sufficient to warrant the finding that after service of the writ on this plaintiff as garnishee, but before anything had been done to exclude him from possession of the goods, he had definite notice of the plaintiff’s claim when the parties were together at the sheriff’s office; that on that occasion he assured the plaintiff of his intention to close the store unless his claim, together with one which he held by assignment, was paid in full with costs; that he was present as a bidder at the constable’s sale, and accepted the benefit of it to the extent that its proceeds were applied to the payment of costs incurred on his writ, amounting to $68.00, for which he was liable. These facts, if found, we held sufficient to warrant the inference that he participated in the trespass, if any there, were, of the sheriff. We held that the sheriff was bound upon the dissolution of his lien to restore the goods to the owner unless prevented by the intervention of some cause over which he could have no control; and that if in the meantime he voluntarily and without co-operation of the other defendant suffered them to be disposed of by the constable, the liability for their value would be that of the sheriff alone. In the abstract the duty of the sheriff in the event that his hen is dissolved, is to restore the property to the possession of the person from whom he took it, but in this case it is a matter of no moment that we said “ owner ” instead of the party in possession. The plaintiff was the party from whose possession the goods were taken, but in order to recover he had to show that he was the owner. There was a verdict against the defendants jointly showing that Marcus was found to have participated in the acts of the sheriff. His conduct was entirely consistent with that conclusion. It was such as implied his knowledge of the fact that the constable had been permitted to take the property in execution, for he was present at the time and place of sale. He participated in it as a bidder, and thereby aided and abetted it. This was the uncontradicted evidence, and coupled with his alleged declaration at the sheriff’s office before the store was closed, also uncontradicted, and with his sharing in the proceeds of the sale, and in the absence of any evidence to the contrary, leaves no doubt in our minds that it was for the jury to say whether there was any concert of action between the defendants in and about the seizure and subsequent disposition of the goods, whereby the plaintiff, if the owner, lost them. If the attaching creditor discountenanced the proceeding in any way he did not say so at the trial.</p> <p>We see no error in submitting the question of joint liability^ to the jury, and this disposes of the only reason urged for new trial on behalf of Marcus.</p> <p>As to the merits: The ground of defense was the alleged fraudulent character of the sale under which the plaintiff claimed title from the defendant in the attachment. At the outset we were inclined to adopt the plaintiff’s theory that the action of the court in dissolving the lien of that writ was conclusive on that question. Further consideration convinced us that this theory was untenable and the case went to the jury at large under instructions which upon review appear to have been adequate. The verdict establishes the following facts :</p> <p>1. The plaintiff took title to the goods in question by bill of sale June 2T, 1903, in good faith for a valuable and. fairly adequate consideration, without collusion with his brother in any intent to hinder, delay or. defraud the brother’s creditors.</p> <p>2. Transfer of possession accompanied the sale: and</p> <p>3. The sheriff acted in the premises at the suggestion and instance of his codefendant after both had notice of plaintiff’s claim of title.</p> <p>These are the essentials of a case for trespass against both defendants and leave for consideration only the question of damages. The jury were instructed, as we think clearly, that the measure of damages was the value of the goods of which the evidence showed the plaintiff to have been deprived. It is now contended that we erred in commenting on the figures at which Mr. Marcus estimated the stock. An examination of the testimony shows that in referring to his testimony we had in mind the figures mentioned by Mr. Whitehead, one of his witnesses. This, of course, was a mistake, but indeed we fail to see how it is sufficient to call for a retrial of the case. It was the privilege as well as the duty of counsel to call our attention to the error at the time, and we can only account for his failure to do so upon the assumption that it passed unnoticed, a thing that would not be likely to happen where the confusing of. one witness’s testimony with that of another is at all calculated to do any harm.</p> <p>The verdict shows that the jury assessed the value of the goods at about $1,800, to which they added an amount equivalent to the legal rate of interest. Under the evidence we cannot say the damages at that figure are excessive.</p> <p>On a careful review of the whole case it is believed to have been fully tried and fairly submitted. To grant another trial would be only to allow another experiment with it. That we cannot do. The rule for new trial is, therefore, discharged.</p> <p>Errors assigned were various instructions sufficiently indicated in the opinion of the Supreme Court.</p>

<p>Trust and trustees — Resulting trust — Husband and wife — Deed—Evidence — Declarations.</p> <p>Where a married woman executes a deed of land the title to which stood in her name, without her husband joining in the deed, and subsequently brings an action of ejectment against her own grantees to recover the land on the ground that no title had passed because of the nonjoinder of the husband in the deed, evidence is admissible on the part of the defendants, that both husband and wife had on a number of occasions before the date of the deed, declared that the property was in fact the property of the husband, and not of the wife, and that the husband at the time of the execution of the deed took and appropriated to his own use the purchase money without any objection on the part of his wife.</p> <p>Where one purchases an estate with his own money and the deed is taken in the name of another, a trust of the land results by presumption, or implication of law, and without any agreement, to him who advances the money; and the consideration moving from the cestui que trust need not be money; a bond or mortgage may be given for the deed.</p>

<p>Appeal, No. 81, Jan. T., 1901, by the City of Williamsport, from judgment of Superior Court March T., 1906, No. 9, reversing judgment of C. P. Lycoming Co., March T., 1901, No. 332, assessing damages from appeal of award of jury of view In re Grafius Run.</p> <p>Appeal from judgment of the Superior Court. See 31 Pa. Superior Ct. 638.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 114, Jan. T., 1907, by defendants, from decree of C. P. Lycoming Co., March T., 1907, ,No. 1, on bill in equity in case of the Muncy Electric Light, Heat & Power Company and Jennie A. Painter v. The Peoples’ Electric Light, Heat & Power Company of Muncy, Pa., and the Burgess and Town Council of the Borough of Muncy.</p> <p>Bill in equity for an injunction.</p> <p>The bill alleged that the Muncy Electric Light, Heat & Power Company was incorporated under the laws of the state of Pennsylvania in 1893, for the purpose of furnishing light, heat and power by electricity in the borough of Muncy, that by ordinance No. 89 of the borough of Muncy approved September 11, 1893, and the proposition referred to therein, said borough, for a valuable consideration, granted to the Muncy Electric Light, Heat and Power Company plaintiff, the exclusive right to erect poles and extend wires upon the highways of the borough; that nevertheless said borough on October 1,1906, passed an ordinance granting to the Peoples’ Electric Light, Heat and Power Company of Muncy, Pennsylvania, the right and power to erect and maintain poles, and extend its wires upon the highways of said borough for the purpose of supplying light, heat and power by means of electricity, to the borough and citizens of Muncy, and that in pursuance of such authority, said Peoples’ Electric Light, Heat and Power Company were planting their poles and stringing their wires on the highways of the borough, and prayed for an injunction to restrain the Peoples’ Electric Light, Heat and Power Company, defendant, from exercising its corporate functions within said borough.</p> <p>The borough of Muncy and the Peoples’ Electric Light, Heat and Power Company, defendants, filed a joint answer and denied that the borough of Muncy by virtue of said borough ordinance No. 89, dated September 11, 1893, or by any agreement, granted to the Muncy Electric Light, Heat and Power Company, plaintiff, the exclusive right to erect poles and extend its wires upon the public highways of the borough, or that any consideration for such exclusive right passed from said Muncy Electric Light, Heat and Power Company to said borough. The answer further averred that the Peoples’ Electric Light, Heat and Power Company was duly chartered under the laws of the state of Pennsylvania on October 23, 1906, for the purpose of the manufacture and supply of light, heat and power or any of them by means of electricity to the public in the borough of Muncy; that by virtue of an ordinance of the burgess and town council of the borough of Muncy dated October 1, 1906, the Peoples’ Electric Light, Heat and Power Company was authorized to erect its poles and extend its wires upon the highways of said borough, and that said Peoples’ Electric Light, Heat and Power Company was in good faith prosecuting its chartered privileges, when arrested by injunction.</p> <p>The case was heard on bill, answer and proofs.</p> <p>The court in an opinion by Hart, P. J., filed the following decree:</p> <p>1. That the ordinance of the borough of Muncy, dated October 1, 1906, in so far as the same purports to grant to the Peoples’ Electric Light, Heat and Power Company of Muncy, Pennsylvania, or to any person or persons in its behalf, authority to erect and maintain poles and extend electric wires through the streets, alleys and thoroughfares for the purpose of supplying light, heat and power by means of electricity to the borough and the citizens of Muncy and vicinity, is declared null and void.</p> <p>2. That the Peoples’ Electric Light, Heat and Power Company of Muncy, Pennsylvania, one of the defendants, is enjoined and restrained from erecting poles or extending electric light wires in the streets, alleys or thoroughfares of the borough of Muncy aforesaid, for the purpose of furnishing light, heat or power to the borough and citizens of Muncy, until September 11, 1913, the date of the expiration of the contract entered into between the said borough of Muncy and the Muncy Electric Light, Heat and Power Company of Muncy, Pennsylvania, dated September 11, 1893.</p> <p>Error assigned, amongst others was the decree of the court.</p>

<p>Appeal, No. 324, Jan. T., 1906, by defendant, from judgment of O. P. Montgomery Co., March Term, 1905, No. 17, on verdict for plaintiff in case of Perkiomen Railroad Company v. Michael M. Kremer.</p> <p>Ejectment for land in the borough of Schwenksville. Before Weand, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged as follows :</p> <p>Generally, when property is acquired by a railroad company, either by grant or condemnation, the extent of the grant or of the taking under the proceedings in condemnation can be ascertained from the papers on file, either from the deed or from the drafts accompanying the condemnation proceedings. Where that is done, there can be no question as to the location of the road, or, rather, of the property deeded or taken. Now, although a deed may be made to a railroad company for a certain quality of land, and the railroad company, in the location of its land, locates it over such lines, it cannot be said that they have lost their right to the full extent of the grant. By so doing they may be trespassers on another’s property; but that fact does not take away their title to the land actually claimed then or taken by them under proceedings in condemnation and paid for under such proceedings. Where the extent of the grant is uncertain and cannot be definitely ascertained, either from the deed or from the proceedings in condemnation, or from the necessary papers fixing the location and construction of the road, evidence can be introduced to show what the railroad has done as defining the extent of their grant.</p> <p>In this case, the first duty of the railroad company was to show title to this property in dispute. They produce a deed of release, which calls for thirty-five feet of ground on the west side of the railroad. There have been, produced here drafts, field notes, and another data in the possession of the railroad company, according to which this railroad was constructed.</p> <p>It was said, in Philadelphia & Reading Railroad Co. v. Obert: “ To establish the true location of a railroad in Pennsylvania, is a matter peculiarly within the power of the railroad company. There is not, and never has been, any requirement that the location should be anywhere filed or recorded for the benefit of parties interested. The papers indicating the lines are the property of the company, and are ordinarily inaccessible to persons having no connection with the company.” Therefore, these original records are evidence, and strong evidence, as to what the railroad company did in this particular case. The engineer, who was examined upon the stand, testifies that he examined these documents, in the possession of the railroad company, which show the original surveys and location; that the description therein contained of this particular property accords, in every particular, with the description and with the draft accompanying the deed of release ; and he further says: “ Q. Are there any metes or bounds contained upon that draft, any more than there are upon the draft attached to the release in question ? A. They are the same. Q. Then there are no metes and bounds? A. There are. Q. There are metes and bounds ? A. The curvature is given, the width is given, the beginning and ending points were given.” And then he declares that, from his measurements made recently, he has located this railroad property with such accuracy as that it brings the disputed point 'within the deed of release and as being part of the thirty-five feet that time mentioned as being on the west side of the railroad company. This evidence, of pourse, if believed, would establish that this defendant unfortunately is on the railroad property; and, in order that the, jury could find against this evidence, there ought to be something which would warrant such a finding.</p> <p>The only evidence introduced that would contradict the testimony of the railroad engineer is that of Mr. Miller, a surveyor, and there is nothing in his testimony, in the opinion of the court, which contradicts the testimony of the railroad engineer. Mr. Miller admits that he knows nothing of the original location of the„road. He did not have access to these original documents, and he is not prepared to say that the evidence of the railroad engineer is not corred Therefore, in the opinion of the court, the jury would not be justified in rejecting this testimony as to where this property was located, as defined and mentioned in the deed of release. Now, if that is the case, then what is there to show that this defendant has any rights to this property ?</p> <p>It is said, in the first place, that the railroad company, instead of taking forty-five feet on the east side of the road, have taken more than that, and, with what they have taken there, some fifty-five feet, added to twenty-five feet on the west side, would give them their full eighty feet, and would give Mr. Kremer the ground that he claims. I cannot admit that such is the fact. The ground on the east side of the road is not inclosed by any fences, nor is there any evidence that the railroad company has ever assumed any ownership over it, even to the extent of their forty-five feet; and if, therefore, they have committed an illegal act, yet even if they have done so, it would hot divest them of their right to the thirty-five feet on the west side. It is further said that, inasmuch as this deed of release required the owners of the property on the west side to maintain fences, the erection of the buildings on that line is equivalent to the erection of fences and establishes the line. I do not understand that to be the law. There is not a particle of evidence in.this case that the railroad company ever consented to the erection of those buildings, nor that any person connected with the railroad company had any authority to define the limits of the railroad company, by which either Mr. Kremer or Mr. Bergy, or their predecessors, would have the right to say that that was the line. It may have been that the employees of the railroad company were mistaken, and that they actually thought that twenty-five feet would be all that the railroad company was entitled to; but because they may have thought so, or may have led Mr. Kremer, or Mr. Bergy, or any one at that time owner, to have believed that such was the fact, that cannot affect the railroad company. It cannot be that the employees of a railroad company can give away the property of the railroad company in that way.</p> <p>It is further said that Mr. Kremer and his predecessors have used this property for such length of time, as that, by adverse user, they have acquired title thereto. I cannot assent to this proposition. It is said that there is no Pennsylvania case on this subject. In Philadelphia & Reading Railroad Co. v. Obert, 109 Pa. 193, it is assumed that such cannot be the fact. It is said there: “ Assuming that a railroad is, in a qualified sense, a public highway, held under the commonwealth’s right of eminent domain, under the charter, and that title to the lands covered by the location as against the company could not be acquired by adverse possession,” and so forth. That same expression was used in Bassett v. Penna. R. R. Co., 201 Pa. 226, where again this same question was raised: “ Assuming that a railroad is, in a qualified sense, a public highway, held under the commonwealth’s right of eminent domain under the charter, and that title to the lands covered by the location as against the company could not be acquired by adverse possession,” and so forth. And so in Zahn v. Ry. Co., 184 Pa. 66, this same expression of opinion occurs ; and, therefore, whilst the authorities are numerous in other states that it can be acquired, the trend of authority in Pennsylvania is against such a doctrine. Railroads are regarded as public highways, the same as turnpike companies and the same as our ordinary roads, and the law does not allow their rights to be interfered with in the manner claimed by this defendant.</p> <p>[I, therefore, am of the opinion that this is purely a question of law, that there is no evidence here which would warrant its submission to the jury, and that, no matter what injury this may inflict upon this defendant, I am bound to instruct the jury as I view the law, and that is, that, under all the evidence in this case, their verdict must be for the plaintiff.] [9]</p> <p>[I, therefore, direct that all evidence on the part of employees of the railroad company, tending to show consent by the railroad company of the building of the buildings on this line, or of the fixing of the line, be stricken out.] [10]</p> <p>Yerdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned among others were (9, 10) above instructions, quoting them.</p>

<p>Appeal, No. 377, January 3,1906, by defendants, from decree of C. P. No. 2, Phila. Co., March T., 1904, No. 4,595, on bill, in equity in case of Frank Barnett et al., trading as Wolf Brothers and Company, and Abraham Lehman, trading as N. Lehman and Brother, v. The Philadelphia Market Company et'al. and the Quaker City Cold Storage & Warehouse Company.</p> <p>Bill in equity to ascertain value of stock of a corporation and to secure payment therefor. Before Wiltbank, J.</p> <p>The plaintiffs averred in their bill that Frank A. Barnett, on October, 19, 1903, became, and at the time of filing the bill, still was the owner of 100 shares of the capital stock of the Philadelphia Market Company, the equitable title to which, however, was in the other plaintiffs; that the said Philadelphia Market Company and the Quaker City Cold Storage & Warehouse Company were both corporations duly incorporated, under the laws of the state of Pennsylvania, and had en-. tered into an agreement of-merger, under date of February 16, 1904, which was filed in the office of the secretary of the commonwealth of Pennsylvania and by reason thereof, there was duly incorporated on March 15, 1904, the Pennsylvania Cold Storage. & Market Company for the purpose of succeeding to all the property rights, franchises and privileges by law theretofore vested in said Philadelphia Market Company and the Quaker City Cold Storage & Warehouse Company respectively ; that the action of the stockholders of the Philadelphia Market Company taken to produce this result was at a meeting which was not attended by any of the complainants; that the said Pennsylvania Cold Storage & Market Company under date of May 11, 1904, notified the complainants of the vesting of said property in it, and requiring the complainants to return the said certificate of stock standing in the name of the said Frank A. Barnett, for which would be issued a certificate of stock in the said Pennsylvania Cold Storage & Market Company; that none of the complainants ever consented to the said merger and consolidation, and demanded that the officers of the Philadelphia Market Company should abandon what they denominated as an unlawful scheme.</p> <p>The bill prayed for an injunction restraining the Philadelphia Market Company from transferring to the Pennsylvania Cold Storage & Market Company its said property rights, privileges and franchises; that all of the said proceedings should be declared illegal and void, and that the Pennsylvania Cold Storage & Market Company be ordered and decreed to return to the Philadelphia Market Company all of said property that it should be decreed that the Philadelphia Market Company and the Pennsylvania Cold Storage & Market Company, or either of them pay to the complainants thejfull market value $)f their said stock in the said Philadelphia Market Company.</p> <p>The answer set forth that-the meeting of the stockholders of the Philadelphia Market Company was duly held in accordance with all provisions of law, of which meeting notice was given to the said Frank A. Barnett, who did not attend the said meeting, nor was he represented thereat; that the agreement referred to in the bill was duly submitted to the stockholders, and a resolution duly adopted approving the same by an unanimous affirmative vote of more than a majority of the stock of said Philadelphia Market Company ; that the said merger had taken place under the provisions of the Act of assembly of Pennsylvania approved May 29, 1901, P. L. 319; that the said Frank A. Barnett had been requested to surrender his certificate for 100 shares of the stock of the Philadelphia Market Company of the par value of $50.00, and receive in exchange therefor a certificate of the Pennsylvania Cold Storage & Market Company for 100 shares of the par value of $50.00; that all of the stockholders had received similar requests, and that the said' Frank A. Barnett was entitled to receive proportionately exactly as much stock as any other stockholder in said Philadelphia Market Company; that the said plaintiffs never opposed the said merger, but, on the contrary, remained entirely silent until the bill in this case was filed, and that no demand that the said plan of merger be abandoned was ever made prior to the time of filing the bill by the plaintiffs; that the said merger was neither a scheme nor unlawful, but, on the contrary, was to the interest and advantage of all of the stockholders of the Philadelphia Market Company, and that the stock of the Philadelphia Market Company had been made of greater value than it was before the said merger took place.</p> <p>The case was heard on bill and answer on the general question, and referred to Willis E. Barker, Esq., to ascertain the market value of the stock.</p> <p>Exceptions to the report of the referee were dismissed by the court.</p> <p>Error assigned among others was in decreeing the payment of the par value of the shares of the Philadelphia Market Company. ¡</p>