Volume 22 — Pennsylvania Superior Court Reports

Appeal, No. 91, Oct. T., 1902, by defendant, from order of C. P. Lancaster Co., Jan. T., 1902, No. 15, discharging rule to set off judgment against judgment in case of William Leitz v. John W. Hohman. Rule to set off judgment against judgment.

Appeal, No. 46, April T., 1902, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1900,-No. 356, on verdict for defendant in case of M. H. Pickering v. F. J. Breen, The Knoxville Land Improvement Company and Matthew Best. Replevin for goods distrained. Before Coluer, J. At the trial it appeared that the goods distrained belonged to a stranger, and were distrained when standing on the sidewalk of the demised premises in process of removal to a wagon.

<p>Appeal, No. 18, Oct. T., 1902, by plaintiffs, frpm order of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 3787, discharging rule for judgment for want of a sufficient affidavit of defense in case of Henry L. Strouse and John B. Mencke, trading as Strouse & Company v. Mary Querns.</p> <p>Assumpsit on a written guaranty of credit.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>cited: Green v. North Buffalo Twp., 56 Pa. 110; Johnston v. Patterson, 114 Pa. 398; Lewis v. Dunlap, 5 Pa. Superior Ct. 625.</p> <p>cited: Freedley v. French, 154 Mass. 339 (28 N. E. Rep. 272); Kingman v. Reinemer, 166 Ill. 208 (46 N. E. Repr. 786); Smith v. Smith, 134 N. Y. 62 (31 N. E. Repr. 258); McGinn v. Tobey, 62 Mich. 252 (28 N. W. Repr. 818); Resh v. First Nat. Bank, 93 Pa. 397; Foster v. Mackinnon, L. R. 4 C. P. 704.</p>

<p>Appeal, No. 10, Oct. T., 1902, by defendants, from order of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 1456, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Andrew Simpson, Jr., James D. Simpson and Frederick C. Simpson, trading as Simpson Brothers, v. Jacob A. Karr, trading as Jacob A. Karr & Company.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>This was an executory contract of sale in which there was an express warranty as to quality. The goods did not correspond with the sample as expressly agreed, and, therefore, the defendant had a right to refuse acceptance. This he did by giving prompt notice thereof to the plaintiffs: Fogel v. Brubaker, 122 Pa. 7; Jones v. Jennings Bros. & Co., 168 Pa. 493; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224.</p> <p>The affidavit of defense was insufficient: Ogden v. Beatty, 137 Pa. 197; Gould v. Gage, 118 Pa. 559; American Watch Tool Co. v. Reed Mfg. Co., 18 Pa. Superior Ct. 24.</p>

Appeal, No. 19, Oct. T., 1902, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1901, No. 255, on verdict for plaintiff in case of Rebecca Foran v. Union Traction Company. Trespass to recover damages for personal injuries. Before Finletter, P. J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $200. Defendant appealed.

<p>Appeal, No. 170, Oct. T., 1902, by Daniel Buchanan, from decree of O. C. Franklin Co., dismissing exceptions to report of auditor in estate of Samuel Bricker, deceased.</p> <p>Exceptions to report of H. H. Spangler, Esq., auditor.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to report of auditor.</p> <p>If the fund which is the object of this contest is made by the sale of the land of the decedent under proceedings in partition in the orphans’ court, it is liable to be applied in payment of the intestate’s debt: Wallace’s Appeal, 5 Pa. 103; Snyder’s App., 36 Pa. 166; Wilson’s App., 45 Pa. 435.</p> <p>cited: Ramsey’s App., 4 Watts, 71; Arndt’s App., 117 Pa. 120; Com. v. Pool, 6 Watts, 32; Wright v. Vickers, 81 Pa. 122; Dresher v. Allentown Water Co., 52 Pa. 225; Wilson’s App., 45 Pa. 435; Stoner’s Estate (No. 2), 8 York, 27; Parkinson’s Est., 1 Del. Co. 349; Miller’s Estate, 9 Pa. Dist. Rep. 510.</p>

<p> Promissory note—Husband and wife—Principal and surety—Wife as surety—Province of court and jury. </p> <p>Where in a suit on a promissory note signed by a husband and wife, all the testimony goes to show that the wife signed as surety for the husband, it is proper for the court to leave the ease to the jury on the credibility of the witnesses.</p> <p> Promissory notes—Signature—Province of jury. </p> <p>Where in a suit on a promissory note one of the defendants acknowledged that he signed the note, but asserts that he signed it on the back and as an indorser, but the note shows that his signature is on the face of the note, a verdict and judgment against him will be sustained.</p>

<p> Irial—Charge—Conspiracy. </p> <p>A trial judge in trying an indictment for conspiracy cannot be convicted of error in failing to call the jury’s attention to evidence introduced by the defendants as to certain explanatory circumstances, where it appears that such circumstances had no bearing on the question whether the defendants had formed a conspiracy, since they arose subsequently to the overt acts, and as to these, explained nothing.</p>

Appeal, No. 8, Feb. T., 1903, by defendant, from judgment of Q. S. Lycoming Co., March T., 1902, No. 66, on verdict of guilty incase of Commonwealthv. Henry W. Dorman, Arthur Dorman and Charles N. Purvis. Indictment for conspiracy. Before Hart, P. J. The last paragraph of the charge and the conclusion of the printed record were as follows: Now, gentlemen, take this .whole case into consideration. All the evidence in the cases is for you.

<p> Appeals—Criminal law—Quashing indictment. </p> <p>Where the appellate court has reversed an order quashing an indictment and sent the case back with a procedendo, it will be presumed on a subsequent appeal in the same case that all the grounds for quashing the indictment were presented and passed upon in the prior proceeding.</p> <p> Appeals—Quashing appeals—Reducing charge to writing—Judge's certificate. </p> <p>An appeal will be quashed where the record fails to disclose any request made to the court below to have the charge and other proceedings reduced to writing and filed, or any certificate from the court that the charge and testimony as printed are correct and part of the record.</p> <p> Appeals—Paper-books—Failure to print evidence. </p> <p>An appeal will be quashed where it appears that a bill in equity offered in evidence, and an. important, and, in a sense, controlling, item of evidence, has not been printed by the appellant.</p>

<p> Common carriers—Loss of goods—Action—Parlies—Assignment. </p> <p>Where a railroad company has negligently permitted the wrong person to take goods from its station, and it appears that the goods had been consigned by the shippers to themselves, but for delivery to a purchaser, and it also appears that the purchaser had paid for the goods partly in advance and partly by lifting a draft attached to the bill of lading, the railroad company after settling for the loss with the purchaser, may take an assignment of his claim and use the name of the purchaser in a suit for the company’s use, against the person who had wrongfully taken the goods.</p>

<p> Negligence—Borough—Icy condition of sideioalk—Constructive notice. </p> <p>In an action against a borough to recover damages for personal injuries sustained by a fall on an icy sidewalk, if it appears that the dangerous condition of the sidewalk existed for three or four days prior to the accident, there is sufficient evidence of constructive notice to the borough authorities to carry the case to the jury. In such a case the fact that the plaintiff walked in the roadway instead of upon the sidewalk for a considerable distance and returned to the sidewalk only when it was covered by an awning, and the pavement was, therefore, protected, was of itself evidence of care on her part.</p>

Appeal, No. 144, Dec. T., 1902, by defendant, from order of C. P. Schuylkill Co., Jan T., 1902, No. 64, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of C. Hershey Backenstoe, Receiver of Susquehanna Mutual Fire Insurance Company, v. Harrison H. Nine. Assumpsit on a policy of fire insurance. Before Shay, J. Motion to quash appeal.

Appeal, No. 171, Oct. T., 1902, by Minnie May Heins, from decree of O. C. Montgomery Co., April T., 1902, No. 46, dismissing appeal from register of wills in estate of Henry Heins, deceased. Appeal from register of wills. Solly, P. J., filed the following opinion : Henry Heins, who was domiciled in Saline county, Nebraska, died there on April 6,1888, leaving a will, which was probated in that county.

<p>Appeal, No. 262, Oct. T., 1901, by defendant, from judgment of O. P. Schuylkill Co., May T., 1898, No. 26, on verdict for plaintiff in case of Jonathan D. Boyer v. Elizabeth Webber.</p> <p>Proceedings by purchaser at sheriff’s sale to recover possession of the land purchased. Before Marr, P. J.</p> <p>At the trial plaintiff offered in evidence the mortgage assigned to him by the executor.</p> <p>Mr. Heblich: The object of offering this mortgage at this time is to show that at the time the mortgage was given there was also a bond executed bearing date the same date, which bond was subsequently entered of record, and the sale took place under the bond, for the purpose of -showing that it is one and the same debt, and that the mortgage was secured for the bond and secured upon the premises in dispute.</p> <p>Mr. Schalck: Objected to because as already stated by counsel the bond referred to, which was a judgment bond, has been entered up in court, judgment entered thereon and execution process issued thereon, and the sheriff’s sale under which this plaintiff claims was had under the judgment entered on that bond. We do not object to any evidence of the bond itself or the entry of judgment thereon, or the proceedings had thereon, but we do object to the introduction of this mortgage at this time. It is neither relevant nor material, nor does it form any part of the issue. It only tends to mislead and confuse this case. As shown by the records in this case, and the admission of counsel in open court, the mortgage is not in issue and forms no part of the proceedings under which the alleged sheriff’s sale under which the plaintiff claims he secured title, and is therefore incompetent, irrelevant and immaterial at this stage of the case.</p> <p>The Court: The mortgage having been given by Joseph Webber at the time that the bond was given under which the sale took place, we think that the title of the plaintiff or the purchaser at the sheriff’s sale would date back to the date of the mortgage which was entered up as security of the payment of that bond, and we think that the plaintiff “ would have a right to show that the mortgage was taken at the time the bond was given and that the mortgage was duly entered and that the sale was in pursuance of the provisions of the judgment bond, which are referred to in that mortgage. We, therefore, overrule the objection and admit the evidence.</p> <p>Defendant excepts. Bill sealed. [1]</p> <p>Mr. Heblich: Then we have also a further assignment of the judgment and mortgage, which is as follows : Abraham Boyer et al. to Jonathan D. Boyer, mortgage dated December 30, upon a certain farm or tract of land situate in South Manheim township, and fully described.</p> <p>Mr. Schalck: Note an objection to that assignment, so far as it covers the mortgage, the terms of which have already been objected to.</p> <p>The Court: Assignment admitted.</p> <p>Defendant excepts. Bill sealed. [2]</p> <p>Mr Heblich: We now offer the sheriff’s deed from Alexander Scott, sheriff, to Jonathan D. Boyer, dated July 12, 1897, and acknowledged on July 29, 1897, in the open court of common pleas. Entered in sheriff’s deed book No. 12, fi. fa., page 78.</p> <p>Mr. Schalck: What is that offered for, the purpose ?</p> <p>Mr. Heblich: For the purpose of showing that the sheriff afterwards executed a deed and delivered it to the plaintiff in this issue, for the premises described in the issue.</p> <p>Mr. Schalck: Objected to, because there is no evidence of any sheriff’s sale having taken place under this writ of fi, fa., No. 45 July term, 1897. ‘</p> <p>There is no return on this writ of fi. fa., showing what action was taken under it, or what process was had, nor is there any return upon which the sheriff’s deed now offered in evidence can be based. That in the absence of any return of this execution, or any other return to authorize the execution of a deed to this purchaser by the sheriff, no such deed can be admitted in evidence.</p> <p>Objected to further, that the papers produced by counsel on the other side do not show any levy on the four several tracts in question here, and for the possession of which these proceedings are had. The only levy shown by the papers attached to this writ is a levy on one tract containing seventy-four acres, more or less, with the appurtenances, describing the improvements, and nothing more; that such a levy will not warrant a a sale by the sheriff of four separate and distinct piecés of ground, but it would pass and only hold good to the one tract so levied on. Therefore, that the attempted sale by the sheriff of four tracts of land, when only one has been levied on, is manifestly without power and authority, and that the execution of the sheriff’s deed for the whole of said four tracts does not better it. That the deed now offered in evidence for four tracts of land in question, when only one tract of land has been levied upon by the sheriff, is unauthorized, illegal and void, and does not pass title, certainly not to the other three tracts, they having not been levied on.</p> <p>We deny also that it vests the title to the one tract that was levied on, for reasons previously stated. It further appears, from the conditions of sale attached to this writ, that the sheriff undertook to sell on July 8, the whole four tracts in one lumping sale, which was clearly illegal and unauthorized, and did so sell, as shown by his return. Therefore, that a sheriff’s deed of four separate and distinct tracts in one lumping sale, especially so in the absence of a return showing that such sale had been made in this way, and approved by the court, will not cure these manifest defects, and consequently the sheriff’s deed now offered in evidence is inadmissible.</p> <p>We object to the whole of the evidence as immaterial, inadmissible and incompetent at this stage of the case, and without the necessary preliminary proofs to sustain the sheriff’s deed now offered.</p> <p>The Court: We will admit this deed.</p> <p>Defendant excepts. Bill sealed. [4]</p> <p>Mr. Heblich: I also offer the assessments in reference to the property, showing that the assessment of this property was made as early as 1883 and continued down to 1897, in the name of Joseph Webber, showing that he claimed ownership to this property right along in his individual name.</p> <p>Mr. Schalek: Objected to, because the mere assessment is no evidence whatever of the claim of ownership by any one, as it frequently occurs and is well .known to practitioners that married women’s property is often assessed in their husband’s name. It is argumentative and amounts to nothing. The assessment is not evidence on the question of title as between this plaintiff and this defendant, Elizabeth Webber. Objected to as irrelevant, incompetent and immaterial.</p> <p>The Court: As bearing upon the question of his holding himself out as the owner of this property, we will admit the assessments.</p> <p>Defendant excepts. Bill sealed. [8]</p> <p>Defendant presented, inter alia, the following points:</p> <p>2. That the plaintiff seeks to recover the lands in controversy as the purchaser at a sheriff’s sale thereof as the property of Joseph M. Webber, and .that the only title he has shown, upon which to base a recovery in this action, is the deed from the sheriff, showing such sale to have been held under his judgment against said Joseph M. Webber, entered to No. 262, July term, 1897, and under the writ of fi. fa. issued thereon' to No. 45, July term, 1897, and unless such sale under these proceedings gives him a valid title to said lands, superior to the equitable title of said Elizabeth Webber, and to the resulting trust in her favor therein, he cannot recover in this case. Answer: Overruled. [11]</p> <p>2|. This present action of ejectment is not brought, nor is the plaintiff’s title based on the mortgage executed on the lands in question on December 30, 1891, by Joseph M. Webber unto George Boyer, or on any proceedings had thereunder, and, therefore, the plaintiff’s right to recover in this action is in nowise strengthened by the existence of said mortgage or by the alleged assignment thereof to him. Answer: Overruled. [12]</p> <p>3. That as against the equitable title to said lands and the resulting trust therein claimed by said Elizabeth Webber, the mortgage executed by Joseph M. Webber unto George Boyer on said lands, dated December 30, 1891, is of no avail, and said mortgage cannot affect or prejudice the rights of said Elizabeth Webber in this case, and the jury must wholly disregard and dismiss from further consideration the said mortgage in deciding the issue joined between said Jonathan Boyer and said Elizabeth Webber. Answer: Overruled. [13]</p> <p>4. Neither does the assignment of said mortgage from the executors of George Boyer to said Jonathan Boyer affect or prejudice the said Elizabeth Webber in this case, or strengthen the title acquired by said plaintiff at said sheriff’s sale, and the jury in deciding the issue joined between the plaintiff and said Elizabeth Webber must disregard and dismiss said assignment from further consideration. Answer: Overruled. [14]</p> <p>5. This is no action of ejectment based on said mortgage, nor were there any proceedings ever had on said mortgage, and the plaintiff’s title under which he seeks to recover ■ the land in controversy from Elizabeth Webber is in nowise based on said mortgage, or on any proceeding thereunder, and, therefore, said mortgage can in nowise affect or prejudice the rights of said Elizabeth Webber in the issue joined between her and said 'plaintiff in this case. Answer: Overruled. [15]</p> <p>6. The undisputed evidence in this case showing that the plaintiff, Jonathan Boyer, had ample notice and knowledge for some years prior to the sheriff’s sale, at which he purchased these lands as the property of Joseph M. Webber, and also at and before such sale itself, of the fact that Elizabeth’s inheritance money had been used to pay the purchase money (in part if not in whole) for the lands in controversy, and of her equitable rights and interests therein,—he cannot be held to be an innocent purchaser; but he was put upon his guard, and it became his duty to make inquiry into these matters, and he is chargeable with the knowledge of all matters and things which a proper inquiry should have disclosed. Answer : Overruled. [16]</p> <p>7. The undisputed evidence in this case further also shows that George Boyer, before he loaned his money to Joseph M. Webber and took as security therefor the bond in evidence on which said judgment was entered and on which said execution process had issued, had notice and knowledge of the fact that Elizabeth Webber’s money was used to pay the purchase money for the lands in question (in part, if not in whole) it became his duty to make further inquiry into the premises, and he is chargeable with all matters and things which he might, on proper inquiry, have learned concerning Elizabeth Webber’s rights and equities in the premises. Answer: Overruled. [17]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2, 4, 8) rulings on evidence, quoting the bill of exceptions ; (11-17) ; above instructions, quoting them.</p> <p>One who takes a conveyance of an estate in payment of an antecedent debt, and does not actually part with value, cannot be regarded as a bona fide purchaser, without notice, as against .the holder of the unrecorded instrument: Spackman v. Ott, 65 Pa. 131; Beck v. Uhrich, 13 Pa. 636; Uhrich v. Beck, 13 Pa. 639; Beringer v. Lutz, 179 Pa. 1; Beringer v. Lutz, 188 Pa. 364; Miller v. Baker, 160 Pa. 172; Gilchrist v. Brown, 165 Pa. 275.</p> <p>A judgment creditor is not entitled to the protection of the purchaser of a legal title against an equitable owner, or his creditors, or to any advantage which his debtor had not.</p> <p>The fact that the sheriff’s deed was duly acknowledged in open court and delivered to the plaintiff, Jonathan D. Boyer, is a. full and complete return as is required by law: Smull v. Mickley, 1 Rawle, 95; Hinds v. Scott, 11 Pa. 19; Gibson v. Winslow, 38 Pa. 49; Cock v. Thornton, 108 Pa. 637.</p> <p>A sheriff’s sale on a bond secured by a mortgage is a sale under the mortgage: Pierce v. Potter, 7 Watts, 475; McGrew v. McLanahan & Drum, 1 P. & W. 44; Berger v. Hiester, 6 Wharton, 210; West Branch Bank v. Chester, 11 Pa. 282.</p> <p>Jonathan D. Boyer, plaintiff in this case, took this mortgage together with $50.00 in money in full satisfaction of all claims and demands which he had against the estate of his father, George Boyer, the original mortgagee, and executed and delivered to the executors of the said estate an absolute release in full satisfaction of such demands and claims. Under those circumstances he became a bona fide purchaser for value of this bond and mortgage, and therefore took it free, clear and discharged of any secret or latent equities which might exist or attempt to be set up or alleged by third parties, total strangers to the said bond and mortgage: Pryor v. Wood, 31 Pa. 142; Wethrill’s Appeal, 3 Grant’s Cases, 281; Twitchell v. McMurtrie, 77 Pa. 383; Lance v. Gorman, 136 Pa. 200; Lawrence v. Keener, 149 Pa. 402.</p> <p>Evidence of assessments were proper : Miller v. Baker, 160 Pa. 172.</p>

<p> Partition—Sale—Divestiture of liens. </p> <p>Where a trustee for sale in partition assures an intending bidder that ■ any liens that might be filed for street improvements already made will be divested by the sale, and the bidder purchases the land on such assurance, he takes it free from the' liens for street improvements, and such liens will be paid out of the proceeds.</p>

Appeal, No. 62, April T., 1903, by defendant, from judgment of Q.. S. Erie Co., May T., 1902, No. 24, on verdict of guilty in case of Commonwealth v. S. T. Houghton. Indictment for larceny and for receiving stolen goods.

<p>Appeal, No. 79, April T., 1903, by John C. Sneatben et al., from decree of O. C. Allegheny Co., April T., 1901, No.-123, dismissing exceptions to adjudication in estate of John B. Sneathen, deceased.</p>

<p>Appeal, No. 165, Oct. T., 1902, by defendant, from order of C. P. Lebanon Co., Sept. T., 1901, No. 18, making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit for forfeited recognizance.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>On reargument Ehrgood, P. J., filed the following opinion :</p> <p>It is claimed by counsel for defendants that the discretion of the court, in this case, was arbitrarily exercised, and that, instead of directing conditionally a judgment against the defendants, the entire amount of the forfeited recognizance should have been remitted, and especially as against the surety.</p> <p>: The case in which the principal was charged, and afterwards convicted, of fornication and bastardy, is by no means the ordinary case. The prosecutrix is a weak-minded woman, who is herself a burden to her relatives without a bastard child. The father of a bastard child with such a woman ought not and cannot expect the very favorable consideration at the hands of the court asked for by him, and he who becomes the bail of such a man voluntarily assumes the risk of placing himself in the position in which the bail in this case now finds himself.</p> <p>In New York it is held that when, after a forfeiture, the accused appears, is tried and sentenced to pay a fine, and pays the fine, the forfeiture will be remitted: People v. Brady, 7 N. Y. Supp. 661; People v. Pearlstein, 7 N. Y. Supp. 662; People v. Madden, 8 N. Y. Supp. 531. The remission of a forfeited recognizance should' only be allowed for good cause shown; the rearrest and conviction of the accused is not sufficient: State v. Warwick, 3 Ind. App. 508.</p> <p>In Bross v. Commonwealth, 71 Pa. 262, the defendant pleaded “ Not guilty ” to an indictment charging him with adultery; a jury was empaneled, the defendant was called, and, not appearing, the recognizance was forfeited. The court ordered the trial to proceed and issued a bench warrant, under which the defendant was brought into court while the trial was progressing. He was found guilty and sentenced to pay a-fine and be imprisoned for nine months. On the same day a motion was made on behalf of the defendant and his surety that the forfeiture be remitted. The motion was refused.</p> <p>Under a statute allowing the remission of the whole or part of the sum specified in a forfeited recognizance upon the appearance or the arrest of the accused, it was held that the court had power to remit part of the penalty and enter judgment for the, balance: Lee v. State, 25 Tex. App., 331 (S. W. Repr. 277).</p> <p>The 2d section of the act of December 9, 1783, 2 Sm. L. 84, provides that both the quarter sessions and the common pleas are “empowered to order the said recognizances to be levied, moderated or remitted on hearing the circumstances of the case, according to equity and their legal discretion.”</p> <p>The discretion vested in the courts, and from which there is no appeal, is not an arbitrary but a legal discretion, based upon the equity of each particular case.</p> <p>The recognizance in this case was regularly forfeited in default of the appearance of the principal therein bound in the presence of one of his counsel, who had no explanation to offer for the absence of his client. On the same day, however, the defendant voluntarily appeared, was tried and convicted. Taking into consideration only the defendant and his surety and viewing the case from their .standpoint, equity would dictate the remission of the entire recognizance upon payment of costs, but viewing it from the standpoint of the injured and weak-minded prosecutrix, a remission of the entire recognizance would just as clearly be inequitable. In our former order we had given the defendant an oppórtunity to show his willingness to fully comply with the sentence. He has failed to take advantage of the conditional order. Under the circumstances we cannot remit the whole amount of the recognizance, but we believe that the remission of a part thereof will do equity be tween the parties and will be the exercise of the legal discretion vested in the court.</p> <p>And now, March 14, 1902, the order of January 9, 1902, is revoked and set aside, and it is now ordered and directed that the sum of $200 of the forfeited recognizance be and the same is hereby remitted, and judgment is directed to be entered in favor of the plaintiff and. against the defendants for the sum of $300 for want of a sufficient affidavit of defense.</p>

Appeal, No. 143, Oct. T., 1903, by plaintiff, from judgment of O. P. Chester Co., April T., 1901, No. 69, on verdict for defendant in case of James Grogan v. William Leike. Trespass quare clasum fregit. Before Hemphill, P. J. At the trial the plaintiff testified that the defendant had, in constructing a new fence, moved back a boundary stone onto the plaintiff’s land.

Appeal, No. 113, Oct. T., 1902, by William H. Keller, from decree of O. C. Lancaster Co., March T., 1902, No. 87, dismissing exceptions to report of auditor in estate of R. E. Fahnestock.

<p>Appeal, No. 22, Jan. T., 1903, by defendant, from judgment of Q. S. Lackawanna Co., Feb. T., 1902, on order for nonsupport in case of Commonwealth v. J. R. White.</p> <p>Proceedings against husband for order for support. Before Weand, J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The husband applied for a divorce. The wife had him arrested for desertion. The court made an allowance for support pending the divorce proceeding.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 122, Oct. T., 1902, by plaintiff, from judgment of C. P. Berks Co., Sept. T., 1897, No. 62, on verdict for defendant in case of Reading Trust Company, trustee of Esther J. Boas, Deceased, v. Henry H. Jackson and Jenkin Hill.</p> <p>Assumpsit on bond for rent. Before Ermentrotjt, P. J.</p> <p>Tbe facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in refusing binding instructions for plaintiff.</p> <p>In this case the tenancy was not a tenancy from year to year and was not determined by the notice to quit, and the case cited has no application. The lease by its terms was to expire at a certain time, namely, April, 1893, and a notice to quit could have no effect in determining it: Bedford v. McElherron, 2 S. & R. 49; MacGregor v. Rawle, 57 Pa. 184.</p> <p>If the lessees continued in the occupancy the lease would continue for a further period of one year and so on for further periods of one year each ad infinitum unless terminated by a notice to quit before the expiration of some succeeding year. In other words, the notice to quit clause was not operative in the first year: Ashhurst v. Eastern Pennsylvania Phonograph Co., 166 Pa. 357; Stiles v. Himmelwright, 16 Pa. Superior Ct. 649; McNamee v. Cresson, 3 W. N. C. 450.</p> <p>The notice to quit in this case, therefore, while useful as the foundation for statutory proceedings to recover possession at the end of the term, had nothing to do with determining the tendency either under the law or under the terms of the lease, and the court below was in error in giving any effect to it in this suit: Duffee v. Mansfield, 141 Pa. 507.</p> <p>A lessee who fails to vacate after a three months’ notice cannot claim that any effect should be given to it, but is treated as holding over under the old agreement: Graham v. Dempsey, 169 Pa. 460; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599.</p> <p>cited: Kaier v. Leahy, 15 Pa. C. C. Rep. 243; Duffee v. Mansfield, 141 Pa. 507; Nat. Gas Co. v. Philadelphia Co., 158 Pa. 317; Wood, Landlord and Tenant, sec. 48, p. 88; Doe v. Mil ward, 3 M. & W. 328; Tayleur v. Wildin, L. R. 3 Ex. 303; Blyth v. Dennet, 13 C. B. 178; Pleasanton’s App., 75 Pa. 344.</p>

<p>Appeal, No. 279, Oct. T., 1901, by plaintiff, from decree of C. P. No. 3, Phila. Co., June T., 1897, No. 14, dismissing exceptions to master’s report in case of Herman C. Heidrich v. Anna M. Heidrich.</p> <p>Libel for divorce.</p> <p>Exceptions to report of Alexander H. Scott, Esq., master.</p> <p>The ground for divorce alleged in the libel was adultery.</p> <p>The master found that the evidence was insufficient to sustain the libel. The testimony tended to show that the respondent after she was turned out of the house by her husband boarded in two houses, the reputations of which were questionable.</p> <p>Error assigned was in dismissing exceptions to master’s report.</p>

<p>Appeal, No. 168, Oct. T., 1902, by Norristown Trust Company, guardian of Elsie Barrett and Lottie Barrett, minors, from decree of O. C. Montgomery Co., dismissing exceptions to adjudication in estate of Jesse Barrett, deceased.</p> <p>Exceptions to adjudication. Before Vosburg, P. J., specially presiding.</p> <p>The facts appear by the opinion of tbe Superior Court.</p> <p>Error assigned was in deciding that the legacies to Elsie, Lottie and Edward Barrett must abate.</p> <p>If stock or money be specifically given in fractional parts, and if the person to whom the last fraction or part is given he appointed to take it as the residue or remainder of a specific fund, whatever may be its amount, then, on deficiency of assets, he, as residuary legatee, will only be entitled to the surplus of the fund after full satisfaction of the other aliquot parts specifically bequeathed: Danvers v. Manning, 2 Bro. C. C. 18; Long v. Short, 1 P. Wms. 403; McGlaughlin v. McGlaughlin, 24 Pa. 20.</p> <p>Where the gift is of the fund itself in whole or in part, or so charged upon the object made subject to it as to show an intent to burden that object alone with the payment, it is esteemed specific : Walls v. Stewart, 16 Pa. 275; Cryder’s Appeal, 11 Pa. 72; Smith’s Appeal, 103 Pa. 559; Welch’s Appeal, 28 Pa. 363; Grim’s Appeal, 89 Pa. 333; Armstrong’s Appeal, 63 Pa. 312; Haddock’s Est., 16 W. N. C. 196; Barclay’s Est., 10 Pa. 387; Hallowell’s Est., 23 Pa. 223; Duncan v. Alt, 3 Penrose & Watts, 382.</p>

<p> Orphans' court—Finding of fact—Auditing judge. </p> <p>A finding of fact by an auditing judge will not be disturbed except in cases of fraud, clear mistake or manifest lack of due consideration, when based upon evidence sufficient to sustain the verdict of a jury.</p> <p> Appeals—Joint appeal—Orphans' court. </p> <p>An appeal from a decree of the orphans’ court taken jointly by eleven individuals who claim to have been second cousins of the decedent, and her next of kin at the time of her death, but who do not claim in a joint right, and are not all even children of the same parents, will be quashed as the appellants have no standing to maintain a joint appeal.</p>

<p> Release—Seal—Receipt. </p> <p>The payment of a part of an obligation without release under seal will not have the effect of extinguishing the whole.</p> <p>Where an actress playing under a contract signs a receipt not under seal for weekly-salary, the receipt cannot be considered as a release of damages for breach of contract, where it appears that at the time the receipt was given the actress was under notice of dismissal, which was not, however, to take effect until after the date of the receipt.</p> <p> Master and servant—Other employment—Mitigation of damages. </p> <p>Where an actress contracts to play eight times per week and receives therefor $100 as salary, and she is wrongfully discharged, and thereafter secures employment in a situation where she has to play fourteen times per week at a salary of $175 per week, her first employer is only entitled to credit; in mitigation of damages, of the sum of $100 per week. In such a case where the plaintiff claims merely for unpaid salary for a certain number of weeks, she may show as evidence of performance on her part, but not as an element of damages, that she expended certain moneys for costumes, etc., which she was required to do under the contract.</p> <p> Practice, O. P.—Reserved point—Execution—Trial. </p> <p>Where it nowhere appears that at the trial, or subsequent thereto, in the certificate of exceptions, or in the bill of exceptions sealed, that objection was raised to the form of a reserved point, and it also appears that the case was tried upon the merits, the appellate court will not overthrow the judgment, because the trial judge said in reserving the point, “ I will reserve,” instead of using words of the present tense, or following the words he did use by further action.</p>

<p>Appeal, No. 197, Oct. T., 1902, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1895, No. 40, on verdict for plaintiff in case of Kirk Johnson, trading as Kirk Johnson & Company, v. Abram E. Groff.</p> <p>Replevin for a piano. Before Livingston, P. J.</p> <p>At the trial it appeared that in August, 1893, the plaintiff sold the piano in question to the defendant. The plaintiff showed that the piano had been delivered to the defendant upon representations made by him that he owned a farm, and that it had been paid for. Shortly after the purchase of the piano, defendant confessed judgment to his father and to his wife, and thereafter made an assignment for creditors. At the assignee’s sale plaintiff gave notice that he claimed the piano, but it was purchased by a relative of the defendant’s wife. It was alleged that the purchaser gave the piano to the defendant’s wife.</p> <p>When Gabriel Pioso was on the stand the following offer was made:</p> <p>Plaintiff offers to prove by witness on the stand that a few weeks before Groff’s failure and assignment, A. E. Groff procured from him two horses on the representation that he owned his farm clear of debt.</p> <p>Objected to by defendant. Admitted. Defendant excepts. [12]</p> <p>“ Q. What if any representations did he make to you at the time he bought them ? ” Mr. Davis :• “ Did you take a note ? ” Objected to by plaintiff. Disallowed. Defendant excepts. “ Q. State what if any representations Groff made to you at the time he got these horses worth $475. A. Well, he came down to the stable. That is the first pair of horses I ever sold •him. He picked two gray horses out, and I sold them to him for $475. Q. What if any representations did he make about financial conditions ? A. He went into the office and wanted to settle and he gave a note. Q. What if any representations did he make about financial conditions? A. I wanted him to give security, and he told me he owned a farm. I asked him then whether he owned the farm where he lives on. He said yes. I knowed where the farm was.” [13]</p> <p>“ Q. Did he get the horses ? A. Yes, sir.” Objected to by defendant. “ Q. Did you get a note ? ” Objected to by defendant. “A. Yes, sir. Q. Did he or not get the horses? A. Yes, sir. Q. Was the note ever paid?” Objected to by defendant. Admitted. Defendant excepts. “A. No, sir.” [14]</p> <p>Milton Kendig, a witness called by the plaintiff, testified as follows: “ Q. State whether or not about that time he procured any property from you ? A. He bought a horse from me the 4th day of September, 1893. Q. What price ? A. $350. Q. Did he ever pay you for him ? A. No, sir.” Mr. Davis asks that the testimony of this witness be stricken out on the ground no proof of fraud in the sale or transaction was shown by the witness.</p> <p>Plaintiff objects to its being stricken out.</p> <p>The Court: I order it to remain. Defendant excepts. [15]</p> <p>Frederick Andes was asked these questions : “ State how many horses he procured from you on August 30, 1893.” Objected to by defendant. Admitted. Defendant excepts. “A. Six. Q. What was the value of them? A. $1,025. Q. What did you get for them? A. Nothing. Q. Do you know what became of them ? A. No.” [16]</p> <p>Defendant presented these points:</p> <p>4. The representation which Brinkman, the salesman and witness for plaintiff, testified to, that the defendant made some time before the contract of sale was made, viz: “ That the farm or property is mine and the beauty of it is that it is paid for ” (or words to that effect) has not been shown to have been false, and therefore the verdict should be in favor of the defendant, as fraud cannot be presumed but must be proven. Answer: The jury will say, will answer that question. It is a question of fact. They have heard what the proof is in regard to that statement at that time. [5]</p> <p>5. There is no proof that the defendant made any statements to either the plaintiff or his salesman, Brinkman, about his indebtedness in any amount or to any person, and therefore it makes no difference in this case, that he was indebted to his father, his wife and others, at the time of the sale of the piano to Groff. Answer: The jury will scan the testimony and ascertain whether that be true or not. They have seen the papers and heard the testimony presented showing what time he became indebted, and will say whether he was indebted at that time or not. [6]</p> <p>6. If Wayne I. Groff, the purchaser of the piano in suit at the assignee’s sale, bought the same, without notice or knowledge of the plaintiff’s claim thereto, and without knowledge of fraudulent representations, if any, by A. E. Groff, the defendant, he acquired a good and legal title thereto, and any other person acquiring title through or under him also held a good and legal title thereto. Answer: Our answer to that is, that the only verdict that can be had here would be a verdict for an amount, the value of the piano with interest from the time it was obtained. [7]</p> <p>7. If Sarah Jane Groff received the piano in suit as a gift from her father, Adam Diller, who bought the same from Wayne I. Groff, the purchaser .thereof at the assignee’s public sale of A. E. Groff’s personal property, without knowledge or notice of plaintiff’s claim of title thereto, and without knowledge of ajiy false or fraudulent representations, if any, made by the said A. E. Groff, defendant, at of about the time he bought said piano, her title to the same is good, and the verdict of the jury must be in favor of the defendant. Answer : That does not necessarily follow at all, because the only verdict you can render here will be against the man on the record, Abram E. Groff, I believe it is. You cannot find against her, you cannot take the piano away from her. The only thing you can do will be if you find it was fraudulent on the part of Abram E. Groff to find against Mm for its value and for the interest due on it from the time it was sold until the present time. [8]</p> <p>9. If A. E. Groff, the defendant, were insolvent at the time of the purchase of said piano, that fact alone does not permit the plaintiff to rescind the contract of sale nor entitle him to a verdict in this case. Answer : That we fail to affirm. [9]</p> <p>10. If the plaintiff attended the assignee’s sale of the personal property of A. E. Groff, the defendant, and bid on said piano, running the price up to the sum of $208, by that act he not only ratified the sale thereof but treated the same as the property of the assigned estate, and he thereby affirmed the contract of sale, and is estopped from claiming ownership in the piano in suit. Answer: That we disallow. [10]</p> <p>Verdict and judgment for plaintiff for $1,036. Defendant appealed.</p> <p>Errors assigned were (4-7, 9,10) above instructions, quoting them; (12-16) rulings on evidence, quoting the bill of exceptions.</p> <p>The court committed error in not leaving to the jury to decide whether notice was given at the assignee’s sale by the plaintiff of his claim : Sinclair v. Healy, 40 Pa. 417; Root v. French, 13 Wendell, 570.</p> <p>Insolvency and knowledge of it at the time of the sale are evidence to go to the jury with other facts to show intended fraud, though they are not sufficient by themselves : Rodman v. Thalheimer, 75 Pa. 232; Winters v. Mowrer, 163 Pa. 239; Reel v. Martin, 12 Pa. Superior Ct. 340; Smith v. Smith, Murphy & Co., 21 Pa. 367; Bughman v. Central Bank, 159 Pa. 94.</p> <p>Gabriel Pioso and others were called by the plaintiff and appellee to show a system of fraud on the part of appellant. We objected, unless the plaintiff showed he made the purchase by false and fraudulent representations. This he did not do, and therefore we contend that such evidence improperly prejudiced the jury against us : Ralph v. FonDersmith, 3 Pa. Superior Ct. 618.</p>

<p> Executors and administrators—Accounts—Partition proceedings. </p> <p>Where executors have included in their account moneys received from a sale of lands in partition proceedings, objections to the regularity of the partition proceedings cannot be raised at the adjudication of the executor’s account.</p> <p> Will—Trust and trustees—Separate use. </p> <p>Testator directed as follows: “ It is my will and desire that it (the entire estate) be divided between my children, share and share alike, with the condition that the shares flowing to my daughters shall be protected as their separate estate, free from any claim that their said husbands may have or make and the fee simple to their children.” The daughters were at the date of the will all married and continued so until after the death of the testator. Held, that the will created a separate use trust for the daughters.</p> <p>Appeals—Joint claims—Act of May 5, 1899, P. L. 248.</p> <p>Where a decree of the orphans’ court directs distribution of testator’s estate into five equal parts among his children, three of the children cannot take a joint appeal, and procure a review of the decree of the court below upon their distinct individual claim.</p>

<p>Appeal, No. 10, April T., 1903, by defendant, from judgment of Q. S. Mercer Co., Jan. T., 1902, No. 16, on verdict of guilty in case of Commonwealth v. C. C. Campbell, alias Charles Cunningham Campbell.</p> <p>Indictment 'for illegally practicing medicine. Before Miller, P. J..</p> <p>Verdict of guilty.</p> <p>On motion for arrest of judgment Miller, P. J., filed the following opinion: •</p> <p>The defendant is indicted on two counts, the first count, practicing medicine and surgery without having exhibited a license to the prothonotary of Mercer county, the second count, keeping an office open for the practice of medicine and surgery without having been duly registered. He was convicted as’ indicted. A motion was made for an arrest of judgment, and subsequently twenty-one reasons in support of said motion were filed. . They may all be embraced under three heads: 1. In refusing the motions of the defendant to quash the indictment. 2. In overruling the pleas of the defendant. 3. In permitting the jury to pass on the second count of the indictment.</p> <p>First. The reasons set fortlr in the several motions of the defendant for quashing the indictment are: '</p> <p>1. That the information upon which the warrant was issued was made by M. Jenkins, constable, upon information and belief, and without any actual knowledge orí the part of the prosecutor, and did not purport to have been made by direction of the court or district attorney; and that the jurat was made by M. Jenkins, constable, and sworn to him as such and not as an individual.</p> <p>The transcript in the case shows that the information was made on oath of M. Jenkins, constable, but shows that it was made on information received and which the informant “verily believes to be true,” and further shows that the person making the information verily believed all of the facts set forth in the information.</p> <p>■ 2. That the defendant was deprived of his rights to a pre-. liminaiy hearing before the justice of the peace.</p> <p>The transcript shows that the information was made on October 18, 1901, that a warrant issued, directed to A. K. Tate, constable of the borough of Greenville, on October 18, 1901. The return on the warrant is as follows: “ November 1, 1901. Constable A. K. Tate returns warrant, ‘Do not find in my bailiwick.’ ”</p> <p>The defendant in his motion to quash the indictment for the second reason above sets forth that he was a resident of Green-ville, and on this motion to quash the court made the following order: “ And now, January 29, 1902, this motion to quash the indictment is overruled for the following reasons: the transcript shows on its face that the information was made and sworn to October 18, 1901; that the warrant was issued by the justice of the peace October 18, 1901, directed to A. K. Tate, constable of the borough of Greenville, and the court takes cognizance of the fact that A. K. Tate is constable of the borough of Greenville where the defendant resides; that the said A. K. Tate returned said warrant November 1, 1901, ‘Do not find in my bailiwick.’ ”</p> <p>3. Defendant moved to quash the indictment for the reason that E. Maud Womer and James Callen testified before the grand jury as witnesses in the case, and their names were not marked by the district attorney on the bill of indictment, nor were they sworn by the court. *■</p> <p>To determine the question of fact set forth in this reason, the court heard the testimony of W. A. Filson who was a member of the grand jury and who acted as clerk of the grand jury under the directions of the district attorney. In refusing the motion to quash for the reason set forth above, the court made the following order: “And now, January 29, 1902, it appearing by the testimony of W. A. Filson that he was a member of the grand jury that found this indictment, and that at the request of the district attorney he acted as clerk and that he wrote down the names of all the witnesses who appeared before the grand jury in this case on the indictment; and it appearing to the court that the name of Miss Moore was written for the name Miss Womer, and that at the time Mr. Filson wrote the name Miss Moore, Miss Womer was the witness whom he thought was Miss Moore; said Filson having during his testimony identified Miss Womer as the witness; and it further appearing that the name of James Callen appears indorsed on the indictment under the name of Mr. J. Calahan, and' that Mr. Filson thought that was the witness’s name ; and the court being satisfied that the names of all the witnesses that appeared before the grand jury and were sworn were indorsed on the indictment before the indictment was returned to court, this motion is overruled.”</p> <p>We are of opinion that no error was committed, in refusing' the several motions of the defendant to quash the indictment, and all reasons in arrest of judgment which are based on the action of the court in refusing to quash the indictment are overruled and refused.</p> <p>Second. The pleas of the defendant are as follows:</p> <p>1. That he had been lawfully acquitted of the offenses charged in the indictment in this case at No. 9, October sessions, 1899, and also pleads that he had been lawfully acquitted of the offense charged in the second count of the indictment in this case at No. 13, June sessions, 1901.</p> <p>On these pleas the court made the following order: “ And now, January 29, 1902, the special plea' of the defendant of autrefois acquit is overruled for the reason that the offenses charged against the defendant in the indictment at No. 16, January sessions, 1902, were continuing offenses, and an acquittal of any or all of the offenses charged in this indictment at No. 9, October sessions, 1899, the verdict having been rendered October 27, 1899; or an acquittal under the indictment at No. 13, June sessions, 1901, the verdict having been rendered June 25, 1901, would not be a bar to an indictment charging the defendant with having committed the same offenses since June 18, 1901, the date of the finding of the last-mentioned indictment; the verdict in said case having been rendered June 25, 1901, “ the special plea of autrefois acquit is therefore overruled.”</p> <p>In the trial on the indictment as the record will show no evidence was admitted of any offenses alleged in the indictment of having been committed prior to June 18, 1901, and the evidence admitted was all confined to acts committed by the defendant subsequent to June 18, 1901, the date of the finding of the last-mentioned indictment.</p> <p>2. That the court should have submitted to the jury to find as a question of fact whether the defendant had been tried of the same offenses charged in the indictment and acquitted before the jury was sworn as to the facts charged in the indictment at No. 16, Januarj'- sessions, 1902.</p> <p>In the view that the court took of the law this woxild have been useless. It is true that the defendant was substantially charged in the indictments at No^. 9, October sessions, 1899, and No. 13,. June sessions, 1901, of the same offenses charged in this indictment and was acquitted. But we held and still hold that the trial and acquittal of the same offenses charged in this indictment would not be a bar to the prosecution of the. defendant on the same charges committed since the date' of the finding of the indictment immediately preceding this one, to wit: that at No. 18, June sessions, 1901. To hold that an acquittal under such circumstances would be a bar to any further prosecution would be to legally determine that one claiming to be a physician could practice medicine and surgery in Pennsylvania without first obtaining a license duly granted to him under the act of May 18, 1893, and when once tried and either acquitted or convicted of that offense could thenceforth practice medicine and surgery in Pennsylvania with immunity without being qualified as required by the act of 1893.</p> <p>3. That the second count of the indictment does not allege that the defendant entered upon the practice of medicine and surgery after the date of the passage of the act of 1893 or after the passage of any of the acts of assembly regulating the practice of medicine and surgery or the registry of physicians and surgeons.</p> <p>The second count of the indictment charges that the defendant did “ unlawfully and wilfully then and there engage in the practice of medicine and surgery, and did then and there open an office and occupy the same for said practice of medicine and surgery without first having then and there duly and lawfully registered himself or caused himself to be duly and lawfully registered as a regularly qualified physician and surgeon in the office of the prothonotary of the court of common pleas of the said county.”</p> <p>The Acts of June 8, 1881, P. L. 72, and May 18, 1893, P. L. 94, are both in force, although the qualifications relative to the registration of practitioners of medicine and surgery are not the same. Both acts require that physicians and surgeons shall be registered. It is true that the 14th section of the act of 1893 provides that “ no person shall enter upon the practice of medicine or surgery in the state of Pennsylvania unless he or she complied with the provisions of this act,” etc. The defendant contends that this only applies to one who enters upon or “ commences ” the practice of medicine, and that if one does enter upon the practice of medicine or surgery and is prosecuted, tried and either convicted or acquitted, that such conviction Or acquittal is a complete bar to any subsequent prosecution against the same person for practicing medicine or surgery under the acts of 1881 and 1893. For a court to so hold would absolutely annul the whole intention and import of the two acts. Even if we were in doubt about the matter we ought not to arrest the judgment in this case but rather refuse the motion; and if the defendant desires it he may review our action and get a decision from an appellate court which would be binding throughout the state on all of the lower courts.</p> <p>This practically disposes of all the reasons of the defendant in arrest of judgment. The judgment ought not to be arrested unless the law in the case imperatively demands such action. The defendant had been practicing medicine in the county of Mercer since early in January, 1897, without either having a license issued to him under the act of 1893, or without being duly and legally registered as provided by the acts of 1881 and 1893. It is true that on January 13, 1897, as will appear on page 10 of the medical register of Mercer county, the defendant caused himself to be registered without producing to the prothonotary a license which had been duly granted to him as provided by the act of 1893; but by proceedings had in the court of common pleas of Mercer county the said record was corrected by the court, for the reason that the registry had been obtained illegally and fraudulently. An appeal was taken from this action of the lower court at No. 36, January term, 1900, to the Supreme Court of the state for the western district, and on January 17,1901, the Supreme Court filed an opinion affirming the action of the common pleas of Mercer county, the report of said case to be found in 197 Pa. 581.</p> <p>The evidence taken in the said proceedings as well as the evidence that had been taken in court on the trials that had been had in the court of quarter sessions against the defendant, clearly show that the defendant had appeared before the examining board provided for by act of 1893 twice, was examined by said board and failed to get a license, and that he has never had a license from said board. This has never been denied by the defendant, and yet in the face of these facts he has continued to practice medicine and surgery since January of 1897.</p> <p>The Supreme Court in the case above referred to as found in 197 Pa. 581, rendered its decision on January 7, 1901, affirming the lower court in striking the name of the defendant from the medical register of Mercer county on the ground that he was illegally registered, the record in that case showing that he had been registered by presenting his diploma from a medical college to the prothonotary.</p> <p>On January 14, 1901, seven days after the aforesaid decision of the Supreme Court, the defendant again, as shown by the medical register of Mercer coutny, presented himself in the prothonotary’s office, and by some means unknown to the court, induced the prothonotary to again register him on his diploma, in accordance with the act of assembly entitled “An act to provide for the registration of practitioners of medicine and surgery approved June 8,1881.” He persists in practicing medicine although it has been clearly demonstrated again and again in this court that he has no license. We do not recite these facts to criticise the defendant. Doubtless he believes that he is proceeding legally, bub we can see no reason why he should be made an exception to all the other practitioners in Mercer county who have graduated since the act of 1893.</p> <p>ORDER.</p> <p>And now, April 28, 1902, the motion in arrest of judgment is overruled and refused and the clerk of the quarter sessions is directed to enter judgment on the verdict, and the defendant is ordered to appear before the court that the sentence of the law may be imposed.</p> <p>Error assigned among others was in refusing to arrest the judgment.</p> <p>The indictment should have charged defendant with entering upon, but inasmuch as the commonwealth well knew that defendant had entered' upon the practice in 1897, and had been twice since tried and acquitted of the offenses endeavored to be charged in this indictment, they realized that if the indictment read that way they would be met at once by these verdicts of former acquittal, and therefore, they changed the charge from entering upon to engaging. We submit, however, that this was usurping the functions of the legislature : Updegraph v. Com., 11 S. & R. 394, 409.</p> <p>A former conviction of the same offense may therefore always be pleaded; and if the truth of such plea be established, it is a plain bar to another judgment against the accused: Solliday v. Com., 28 Pa. 13; Com. v. Demuth, 12 S. & R. 389.</p> <p>An information is sufficient to support a warrant of arrest if made “ to the best of affiant’s knowledge, information, and belief: ” Com. v. Green, 185 Pa. 641; Com. v. Brenan, 193 Pa. 567.</p> <p>Keeping in mind the well-settled principle that an indictment is sufficient which “ substantially charges the offense set forth in the act,” we submit that the indictment does substantially set forth such offense : Com. v. Branthoover, 31 P. L. J. (N. S.) 267.</p> <p>In a plea. of autrefois acquit, it is the duty of the court to declare the legal effect of the record pleaded: Com. v. Trimmer, 84 Pa. 65.</p>

<p>Election law—Primary elections—Making false returns—Act of June 29, 1881, P. L. 128—Criminal law.</p> <p>An indictment under the Act of June 29,1881, P. L. 128, which charges that the defendant as the judge of a primary election did “ then and there unlawfully, wilfully and fraudulently make false returns, and was then and there concerned in the making of false returns of the number of duly qualified electors, and the number of votes cast,” is not bad for duplicity; nor can it be quashed on the ground that it does not aver that the defendant was sworn as a judge of election.</p> <p>Where the votes at a primary election have been properly cast and counted, but the returns have been altered after they were certified by the election officers, the judge of the election may be convicted of making a false return by giving effect to the alteration by handing the returns to the county chairman, although he may not himself have made the alteration.</p>

<p>Appeal, No. 39, Oct. T., 1902, by defendant, from judgment of C. P. No. 5, Pbila. Co., March T., 1901, No. 466, on verdict for plaintiff in case of Amalia Scholtz v. John Scholtz.</p> <p>Assumpsit on a promissory note.</p>

<p> Justice of the peace—Jurisdiction—Trespass—Assumpsit—Action quasi ex contractu. </p> <p>On an appeal from a judgment of a justice of the peace the plaintiff filed a statement averring in substance that he had entered into a contract with ■the defendant for the cleaning of a carpet, and that the defendant had undertaken to clean the carpet without causing it to shrink; that the defendant had cleaned and dried the carpet so negligently as to cause it to shrink, and that the carpet was by such negligence damaged to the amount of $75.00. Held that the action was quasi ex contractu, and within the jurisdiction of the justice of the peace.</p>

<p>Appeal, No. 128, Oct. T., 1902, by defendant, from judgment of O. P. No. 2, Phila. Co., Dee. T,, 1899, No. 708, on verdict for plaintiff in case of Abraham W. Nolt v. Alexander Crow, Jr.</p> <p>Assumpsit against the sheriff for an alleged wrongful distribution of funds raised by a sheriff’s sale of real estate. Before Pennypacker, P. J.</p> <p>At the trial it appeared that on October 1, 1897, A. W. Nolt contracted with Henry L. Weer to do all the painting and glazing upon eighty-six houses which Weer was then building in the city of Philadelphia. A mortgage against the property was recorded on September 16, 1898. Plaintiff filed a mechanic’s lien on May 17,1899. A scire facias was issued on the mortgage, and judgment entered thereon on November 4,1899. On May 25,1899, judgment was confessed on a mechanic’s lien on four of the buildings. The land, bound by the above incumbrances was sold on the mortgage judgment, and the proceeds paid by the sheriff to the mortgagee. The defendant alleged that there were defects in the claims filed, and that it was not filed within six months after the completion of the work.</p> <p>The court rejected under exceptions certain papers alleged to be United States weather bureau reports to show the character of the weather on November 17,18 and 19,1898.</p> <p>The court refused binding instructions for defendant. [1]</p> <p>Defendant presented this point:</p> <p>1. As the plaintiff’s contract with the owner of the premises in question was an entire contract for painting and glazing eighty-six houses for a lump sum of $5,001, and as the claim filed is for work done under this contract on sixty-two of said houses for the aggregate sum of 13,415, and as the said claiin contains no averment that the work under the contract was completed or that such completion was excused or prevented by the owner, the said lien claim is defective in law, and being defective it created no such valid lien upon the said premises as entitled it to share in the distribution of the fund raised by the sheriff’s sale. The sheriff, therefore, properly disregarded the claim in making distribution of the fund. Answer: I decline that point. [3J</p> <p>Verdict and judgment for plaintiff for $337.09. Plaintiff appealed.</p> <p>Errors assigned were (1, 8) above instructions, quoting them; (2) ruling on evidence but not quoting the papers rejected.</p> <p>The mortgage was recorded before the judgment on the claim was entered. As between lien claimants the lien of the judgment entered upon a mechanic’s claim dates only from the date of the entry of judgment: Safe Deposit Co. v. Columbia Iron & Steel Co., 176 Pa. 536; Norris’s Appeal, 30 Pa. 122; Dalzell v. Patterson, 6 W. N. C. 493.</p> <p>In a contest over the fund raised by the sheriff’s sale any lien creditor can raise any objection to the validity of the claim; Norris’s Appeal, 30 Pa. 122; Safe Deposit Co. v. Columbia Iron & Steel Co., 176 Pa. 536; Dalzell v. Patterson, 6 W. N. C. 493; Knabb’s App., 10 Pa. 186; McAdam v. Bailey, 1 Phila. 297.</p> <p>The contract in the suit in hand is an entire contract: Shinn v. Bodine, 60 Pa. 182; Quigley v. DeHaas, 82 Pa. 267; Easton v. Jones, 193 Pa. 147; West Republic Mining Co. v. Jones, 108 Pa. 55; Shires v. O’Connor, 4 Pa. Superior Ct. 465; Parmentier v. Wheat, 33 Pa. 192; Lucesco Oil Co. v. Brewer, 66 Pa. 351.</p>

Appeal, No. 142, Oct. T., 1902, by-defendants, from order of C. P. No. 5, Phila. Co., March T., 1902, No. 1191, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Manufacturers’ Record Publishing Company v. Thomas J. Ilolton and Charles P. Miller, trading as Champion Machine Company. Assumpsit upon a contract in writing. Suit was based upon the following paper: “ October 4, 1900.

Appeal, No. 159, Oct. T., 1902, by Allen Waters, from decree of O. C. Phila. Co., Oct. T., 1901, No. 116, dismissing exceptions to adjudication in estate of Thomas Wiley, deceased. Exceptions to adjudication.

<p> Promissory notes—Acceptance of second note—Presumption—Collateral security—Payment—Evidence. </p> <p>When a creditor receives from his debtor the note or check of the latter, or of a third person, on account of the pre-existing debt, such note or check is only collateral to the original indebtedness. It is taken not as absolute but as conditional payment; and the debt will be extinguished only if the collateral obligation be paid. This presumption, however, may be rebutted by proof that the parties intended absolute payment thereby, and the burden of proof is on the party alleging such intention.</p> <p>It is not material from which of the parties to the original note the collateral security is received. Maker and indorsers are alike debtors to the holder. As against him, absolute payment by any debtor discharges all, while conditional payment by any leaves the note in force against all upon nonpayment of the collateral.</p>

<p>Appeal, No. 198, Oot. T., 1902, by-defendant, from order of C. P. No. 1, Phila. Co., June T., 1902, No. 1949, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of James Fish v. Daniel M. Barr.</p> <p>Assumpsit on a contract.</p> <p>Plaintiff in his statement of claim after setting forth the value of four bales of yarn delivered by defendant averred that on September 23,1899, the said Daniel M. Barr secured possession of the said five bales of mixed yarn under an agreement that he would sort out the same, and then, on the following Monday, the said plaintiff and defendant would agree upon a price, and that he, the said defendant, would pay it, and that failing to so agree upon a price, that the said defendant would immediately return the said yarn to the said plaintiff.</p> <p>That on the following Monday he called upon the defendant and was informed that the work of sorting had not been completed, but on the next day the work would be finished and the agreement made, and the price paid as hereinbefore set out or the yarn returned.</p> <p>That on the next day when the said plaintiff called at said defendant’s place of business he was unable to find him and the yarn had disappeared.</p> <p>Defendant filed an affidavit of defense and a supplemental affidavit of defense. In the latter paper he averred:</p> <p>That deponent did agree to purchase said yarn, which was not new yarn but mixed seconds, upon the express agreement that he should pay the plaintiff two thirds of the then market price of new yarn, which was the same price at which he had bought another lot of yarn from the plaintiff shortly before this transaction.</p> <p>When the yarn was received by this deponent he found it was in such a condition that he could only use a part of it. That it all had to be sorted, and he then sent the balance to Schell, Taylor & Longstreth, a commission firm, in order to get a better price therefor. Shortly afterwards the plaintiff called and made a demand for his yarn. Deponent then sent him an order on Schell, Taylor & Longstreth for the yarn they held, and requested a bill for the difference or the yarn retained by deponent, and the plaintiff on receiving said order went to Schell, Taylor & Longstreth’s, saw his yarn there, but refused to take it, saying ■he wanted the money and not the yarn, and never sent any bill to this deponent for any of said yarn.</p> <p>Deponent then attempted to have the yarn delivered to the plaintiff in accordance with the plaintiff’s agreement and statement that if a price could not be agreed upon the yarn should be returned to the plaintiff, and he accordingly sent the Kensington Express the following orders, to wit:</p> <p>“ Philadelphia, Nov. 24, 1899.</p> <p>“ Kensington Express :</p> <p>“ Please call at Schell, Taylor & Longstreth’s, 230 Chestnut Street, and present order herewith for some bundles of gray yarn to be delivered by you to James Fish, 1810 Letteriy Street, for our account, being sure to get his receipt for same.</p> <p>“ D. M. Barr.”</p> <p>“ Philadelphia, Nov. 24,1899.</p> <p>“ Schell, Taylor & Longstreth :</p> <p>“ Please deliver to bearer, (Kensington Express) the lots of gray yarn you received from us and for which we gave James Fish an order some time ago to get from you, but which he failed to remove. The Kensington Express will deliver the yarn to him. Please hold all moneys received for what you sold for the present.</p> <p>“Yours truly,</p> <p>“ D. M. Barjr.</p> <p>“ Send us weights of yarn returned.”</p> <p>Upon presentation of this order, Schell, Taylor & Longstreth refused to deliver the said yarn to the Kensington Express, stating they had already received notice it was Fish’s yarn and was to be delivered at Fish’s order, and they could not recognize any one else.</p> <p>Deponent therefore denies any liability to pay for the yarn unused at Schell, Taylor & Longstreth’s which is worth $61.19, first, because the plaintiff would not accept the price deponent agreed to pay him therefor; and secondly, because plaintiff refused to accept the yarn back even after he had made demand that it be returned, but deponent states the plaintiff can get his yarn iron Schell, Taylor & Longstreth any time he calls therefor.</p> <p>Deponent further denies liability on this unused yarn for the reason that the plaintiff himself sets forth in his statement that the yarn was to be returned if the price could not be agreed upon, and deponent has offered to do this, but the plaintiff has failed to keep his own agreement.</p> <p>Deponent is ready and willing to pay the plaintiff $52.32 for the yarn used by him, and is also willing and ready to gave an order to Schell, Taylor & Longstreth to pay to the plaintiff the sum of $69.57, the full proceeds of the yarn sold by them, and which money this deponent has never had.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 210, Oct. T., 1902, by plaintiff, from decree of C. P. No. l,Phila. Co., Dec. T., 1894, No. 1005, on bill in equity in case of Arthur McGinn v. A Penrose Benner.</p> <p>Bill in equity for an account. Before Bregy, J.</p> <p>The facts are stated in the opinion.of the Superior Court.</p> <p>Error assigned was the decree of^the court.</p> <p>Courts of equity, when they entertain jurisdiction of a cause, first require all the parties interested to be brought before them, and then do complete justice between all the parties, settle all their controversies, and make an ending of the case for all time, leaving nothing for future litigation: Johnston v. Price, 172 Pa. 427; McGinn v. Benner, 180 Pa. 396; Parker v. Dee, 2 Ch. Cas. 20; Gloninger v. Hazard, 42 Pa. 389.</p> <p>When a court of equity has acquired jurisdiction over a cause for one purpose, it may retain it for the purposes of equitable relief not covered by the original prayers for relief in the bill: Allison’s Appeal, 77 Pa. 221; McGinn v. Benner, 180 Pa. 396-400.</p>

<p>Appeal, No. 211, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 357, on verdict for plaintiff in case of Walter A. Wood v. Schomacker Piano Forte Manufacturing Company.</p> <p>Appeal from judgment of magistrate.</p> <p>Yerdict and judgment for plaintiff for 1112.56. Defendant appealed.</p> <p>Errors assigned were as follows:</p> <p>1. The learned judge below erred in charging the jury as a whole as follows (quoting whole charge), because it was partial to the plaintiff below.</p> <p>2. Because the learned judge below erred in his charge aforesaid as a whole in sympathizing with the plaintiff below, to the prejudice of the defendant below.</p> <p>3. Because the learned judge below erred in his charge aforesaid as a whole by unduly influencing the jury to believe and understand that the extra compensation claimed was upon a right, under a contract, and not as a present.</p> <p>4. Because the learned judge below erred in his charge as aforesaid as a whole in not mentioning or drawing the attention of the jury to the conflict of testimony between the plaintiff and H. W. Gray, as to the cause of discharge.</p> <p>5. Because the learned judge below erred in his charge as aforesaid as a whole in giving the jury to understand and believe as a matter of fact proved that the plaintiff had been unjustly discharged.</p> <p>6. Because the said charge as aforesaid as a whole was inadequate.</p> <p>7. Because the said charge as aforesaid as a whole was misleading.</p> <p>8. Because the said charge as aforesaid as a whole withdrew the attention of the jury from the material issues and evidence in the case.</p> <p>9. Because the tendency of the said charge as aforesaid as a whole was to unduly magnify the importance of plaintiff’s proofs and to belittle those introduced by the defendant.</p> <p>10. Because the learned judge erred in declining to grant defendant’s request for binding instructions in his favor.</p>

<p>Appeal, No. 206, Oct. T., 1902, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1899, No. 88, on verdict for plaintiff in case of William H. Harrison v. George H. Farrell.</p> <p>Assumpsit on a promissory note.</p> <p>The note was as follows:</p> <p>“$253.98-100. Phila., Dec. 1, 1898.</p> <p>“ Three months after date, value received, I promise to pay to the order of W. H. Harrison, Sr., Two Hundred and Fifty-three Dollars and ninety-eight cents without defalcation.</p> <p>“ Payable at the first National Bank of Darby.</p> <p>“ (6c. Rev. Stamps.) George H. Farrell.</p> <p>At the trial defendant’s attorney made the following offer:</p> <p>I offer to prove by the witness that at the time of the execution and delivery of the said note to the plaintiff by the defendant, that the plaintiff represented to the defendant that he, the plaintiff, was authorized to receive payment of the money due the estate of Dr. Jacob Boone, who was then deceased; that the note was given for rent alleged to be due under a lease of a quarry made between the said Dr. Jacob Boone, in his lifetime and the defendant; that as a matter of fact the said plaintiff was not the administrator or executor of the estate of the said Dr. Jacob Boone, but that letters of administration on the estate of the said Dr. Jacob Boone were issued by the 'register of wills in and for the county of Delaware, state of Pennsylvania, on November 8, 1900, to one Lizzie Boone.</p> <p>The Court: What'is the date of the death of Boone?</p> <p>Mr. Ashbridge: August 22, 1898. That the lease dated October 27, 1897, purporting to be between William H. H. Harrison, and George H. Farrell, was as a matter of fact made out in the name of Dr. Boone, and that after the defendant had signed the lease the name of Dr. Boone was stricken out and the name of William H. H. Harrison, Sr., was written into the lease after it had been executed and delivered by the defendant, without his knowledge or consent and without any authority from him; that the defendant had paid the rent accruing during the lifetime of Dr. Boone, to the said Dr. Jacob Boone, and received receipts from him; that there was no consideration for the note in suit, but that the same was received by the plaintiff from the defendant under the false representation as to his being authorized to collect the debts due to Dr. Jacob Boone, in his lifetime, and that the defendant is not indebted to the plaintiff in any sum whatever.</p> <p>The Court: The offer as made in my judgment amounts, (1) to a confession by the defendant of his indebtedness for the amount to somebody; (2) it amounts to an acknowledgment that in extinction of that indebtedness he gave a promissory note; (3) it amounts to an objection that he is now afraid; from certain evidence which he thinks has come to him, that the giving of that promissory note was not a valid extinction of the debt, and that therefore he may be liable to the action of another. The defect in the offer is that there is no offer to prove that the note given is not accepted by the party who has the real claim as a full discharge and payment of the obligation, and unless the offer is supplemented by that it is, in my judgment, inadequate to stand as a defense.</p> <p>Verdict for plaintiff for $302.23. Defendant appealed.</p> <p>Error assigned was ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 222, Oct. T., 1902, by defendants, from order of C. P. No. 2, Phila. Co., Dec. T., 1901, No. 1537, making absolute a rule to open judgment in case of Good Hope Building Association v. Frederick J. Amweg and Blanche E. Amweg.</p> <p>Rule to open judgment.</p> <p>From the record it appeared that on April 8, 1895, plaintiff entered up a judgment against the defendants, who were husband and wife, on a bond accompanying a mortgage. The rule in this case was taken by the wife to show cause why the judgment should not be opened as to her. There was nothing to show that Mrs. Amweg in signing the bond did so as surety for her husband. On the contrary it appeared that the money borrowed was used to pay off incumbrances on her estate. The court made absolute the rule to open the judgment.</p> <p>Error assigned was the order of the court.</p> <p>cited: Real Estate Investment Co. v. Roop, 132 Pa. 496; Latrobe Bldg. & Loan Assn. v. Fritz, 152 Pa. 224; Milligan v. Phipps, 153 Pa. 208; Dennis v. Grove, 4 Pa. Superior Ct. 480; Voskamp v. Connor, 173 Pa. 109; Bankard v. Shaw, 199 Pa. 623; Adams v. Grey, 154 Pa. 258; McCormick v. Bottorf, 155 Pa. 331; McNeal v. McNeal, 161 Pa. 109; Cloud v. Markle, 186 Pa. 614; Phillips v. Meily, 106 Pa. 536; Hoffman v. Jacobs, 12 Lanc. Law Rev. 25; Mangan v. McHale, 6 Kulp, 459; Pfaff v. Thomas, 3 Pa. Superior Ct. 419; Woods v. Irwin, 141 Pa. 278.</p>

<p>Corporations—Building and loan association—Mortgage—Payment— Secretary.</p> <p>An agreement to accept anything but money, in satisfaction of a judgment held by a corporation, is not within the implied authority of the secretary of the corporation.</p> <p>Where the defendant in a judgment entered on a bond accompanying a building and loan association’s mortgage, executes a deed of the mortgaged property to -the association, at the suggestion of the latter’s secretary, and the secretary receives the deed and lays it before the directors of the association who refuse to accept it, the defendant cannot claim that the conveyance was payment of the judgment.</p>

<p> Contract—Evidence—Parol stipulations—Question for jury. </p> <p>Plaintiff and defendant entered into a written contract whereby the former agreed “ to sell to the said party of the second part, all now unsold, being about twelve thousand tons of ice.” When the contract was made the ice was stored in a mass of many tons. A sale or sales of some of it had been made. This was known by defendant, although there was controversy as to the number of precedent sales. Deliveries were made from time to time and defendant received 8,650 tons. At the time of final delivery there was due to plaintiff payments for some of the earlier shipments. For the amount due the plaintiffs sued. Defendant claimed to set off damages for failure to deliver 12,000 tons by reason of which ice had to be bought from other parties. The court excluded evidence of conversations prior to the contract, there being no offer to show that in these conversations there were any false or fraudulent inducements or statements intended to deceive. The court left it to the jury to determine what the parties intended as to the contract. Held that a verdict and^judgment for plaintiff should be sustained.</p>

<p> Hoad law—Vacation—Vacation of street—Laches. </p> <p>Whore a person files a petition for the appointment of viewers to assess damages caused by the vacation of a street, and being in doubt as to whether such damages are recoverable in law, has the jury continued successively for two terms, and thereafter takes no further step for six years, when he secures the appointment of a new jury under the original petition, the award of such jury assessing benefits against another owner who had no notice of appointment of the new jury, cannot be sustained.</p>

<p>Appeal, No. 168, Oct. T., 1901, by defendant, from decree of C. P. No. 3, Phila. Co., March T., 1893, No. 645, on bill in equity in case of People’s Passenger Railway Company v. John Taylor, Receiver of Taxes of the City of Philadelphia.</p> <p>Bill in equity for an injunction, to restrain the collection of taxes on plaintiff’s horses.</p> <p>The facts as they appeared from the bill, answer and proofs are stated in the opinion of the Superior Court.</p> <p>The court in an opinion by McCarthy, J., entered a decree restraining the collection of a tax assessed on plaintiff’s horses.</p> <p>Error assigned was the decree of the court.</p> <p>Quasi-public corporations are not given by the laws of Pennsylvania absolute immunity from all taxation. Thus it has been held that the following varieties of property owned by such companies are not exempt:</p> <p>Wood and coal yards, coal shutes: Railroad Co. v. Berks Co., 6 Pa. 70.</p> <p>Buildings in a city used for receiving and transshipping goods and merchandise to and from the canal and railroad, and houses used as boarding houses for the workmen, and horses for drawing the cars on the railroad, and the barns and stables for them: Comrs. of Wayne Co. v. Del. & Hudson Canal Co., 15 Pa. 351; West Chester Gas Co. v. Chester County, 30 Pa. 232.</p> <p>Grain elevators, warehouses and offices, held by defendant company engaged in business of transporting farm and other merchandise : Erie v. Erie & Western Transportation Co., 87 Pa. 434.</p> <p>Shops owned and operated by a railroad company, for the construction and repair of its locomotives and cars : Penna., etc., Canal & R. R. Co. v. Vandyke, 137 Pa. 249.</p> <p>The fact that the company pays a tax upon its capital stock, and its property represents these funds, is not now the basis of exemption. If it were, all property of quasi-public corporations, and indeed the property of all corporations whatsoever, would be exempted : West Chester Gas Co. v. County of Chester, 30 Pa. 232; Carbon Iron Co. v. Carbon County, 39 Pa. 251; Union Canal Co. v. Dauphin Co., 3 Brewster, 124 (see p. 127); Scranton v. Scranton Elec. Light & Power Co., 8 Pa. C. C. Rep. 626; Allegheny Co. v. McKeesport Diamond Market, 123 Pa. 164; Com. v. Fall Brook Coal Co., 156 Pa. 488.</p> <p>It remains for us to show that the decisions in Pennsylvania have been directed to this very consideration. Not one of them, we believe, from the court of last resort, with one significant exception, has sustained an exemption for transitory, mutable property, such as horses: R. R. Co. v. Berks Co., 6 Pa. 70; Comrs. of Wayne Co. v. Del. & Hudson Canal Co., 15 Pa. 351; People’s Street Ry. Co. v. Scranton, 8 Pa. C. C. Rep. 633; Citizens’ Pass. R. Co. v. Donohugh, 10 W. N. C. 62; Smith v. Phila. City Pass. Ry. Co., 12 W. N. C. 171; Del. Co. v. Chester St. Ry. Co., 10 Pa. C. C. Rep. 326.</p> <p>A street passenger railway company operating its cars by horse power, which pays a tax on its capital stock to the state, is not subject to local taxation upon its horses used in drawing its cars, and indispensable to the exercise of its public franchise: Schuylkill Bridge Co. v. Frailey, 33 S. & R. 422; Lehigh Coal & Nav. Co. v. Northampton County, 8 W. & S. 334; Philadelphia v. Philadelphia & Reading R. R. Co., 1 Pa. Superior Ct. 236; Carbon Iron Co. v. Carbon County, 39 Pa. 251; Ridgway Light & Heat Co. v. Elk County, 191 Pa. 465; Western New York & Penna. Ry. Co. v. Venango County, 5 Pa. Superior Ct. 304.</p> <p>The fact that there is an occasional use of horses (not exceeding fourteen in number), and taken indiscriminately out of the 1,600 horses used for pulling the cars, for necessary objects of the corporation, which use does not bring it in any revenue does not subject the company to taxation upon its horses, either in whole or in part;—the objects being, hauling feed from one stable to another, hauling money from the depot to the bank, and the repairing of the streets aiong which the railway runs as required by its charter : Southern Electric Light & Power Co. v. Phila., 191 Pa. 170.</p>

<p>Appeal, No. 52, Jan. T., 1902, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1899, No. 763, for plaintiff on case tried by the court without a jury in case of Pulaski P. Carter, Marvin P. Carter and Amelia M. Kennedy v. Ridge Turnpike Company.</p> <p>Ejectment to recover..a strip of land in the'city of Scranton. Before Kelly, J. . •</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Error assigned was entering of judgment for plaintiffs.</p> <p>All the essentials of title by adverse possession were present in. this case: Lehigh Valley R. R. Co. v. McFarlan, 43 N. J. L. 605; Overfield v. Christie, 7 S. & R. 173; Cunningham v. Patton, 6 Pa. 355; St. L. A. & T. H. R. R. Co. v. Nugent, 152 Ill. 119 (39 N. E. Repr. 263); James v. Ind. & St. Louis R. R., 91 Ill. 554; Faloon v. Simshauser, 130 Ill. 649 (22 N. E. Repr. 835); Probst v. Board of Missions, 129 U. S. 182 (9 Sup. Ct. Repr. 263); Leffingwell v. Warren, 2 Black. 599; Tolson v. Kane, 3 Brod. & Bing. 217; Lewis v. Marshall, 5 Pet. 470; Sherlock v. Louisville, etc., Ry. Co., 115 Ind. 22 (17 N. E. Repr. 171); Bicknell v. Comstock, 113 U. S. 149 (5 Sup. Ct. Repr. 399); Dickerson v. Colgrove, 100 U. S. 578; Campbell v. Holt, 115 U. S. 620 (6 Sup. Ct. Repr. 209); Sharon v. Tucker, 144 U. S. 533 (12 Sup. Ct. Repr. 720); Wahl v. Pitts. & West. Ry. Co., 158 Pa. 257.</p> <p>A .railroad company may acquire title to land by adverse possession for the full period prescribed by the statue of limitations in the same manner as an individual. But such possession must be continuous and under claim of right, and of. such a character as to give notice to the landowner of the company’s claim of title to the land: Lehigh Valley R. R. Co. v. McFarlan, 43 N. J. L. 605; Penna. R. R. Co. v. Thompson, 45 N. J. Eq. 870 (19 Atl. Repr. 622); Baldwin v. Calkins, 10 Wendell, 166.</p> <p>Corporations endowed with the power of eminent domain may acquire a prescriptive title, notwithstanding the obligation to make just compensation for property taken: Am. Bank Note Co. v. N. Y. Elevated R. R. Co., 129 N. Y. 252 (29 N. E. Repr. 302); Zahn v. Pitts., etc., Ry. Co., 184 Pa. 66; Wayzata v. Great Northern Ry. Co., 50 Minn. 438 (52 N. W. Repr. 913); City of St. Paul v. Chicago, etc., Ry. Co., 63 Minn. 330 (63 N. W. Repr. 267); Marchand v. Maple Grove, 48 Minn. 271 (51 N. W. Repr. 606); R. R. Co. v. Hambleton, 40 Ohio, 496; Indiana, Bloomington & Western Ry. v. Allen, 113 Ind. 581 (15 N. E. Repr. 446); Florida Southern Ry. Co. v. Loring, 2 U. S. App. 310 (51 Fed. Repr. 932).</p> <p>The right of the turnpike company began at the time of the original entry. The statute of limitations began at that time, and after twenty-one years its title and right of possession became perfect: Lawrence’s App., 78 Pa. 365; Wheeling, P. & B. R. R. Co. v. Warrell, 122 Pa. 613; Phila., etc., R. R. Co. v. Cooper, 105 Pa. 239.</p> <p>The case at bar is within the principle laid down in Wahl v. Pittsburg & Western Ry. Co., 158 Pa. 257; Garrett v. Jackson, 20 Pa. 331; Hudson v. Watson, 11 Pa. Superior Ct. 266.</p> <p>If a company vested with the power of eminent domain enters upon land, without complying with the act of assembly, it cannot acquire title by the statute of limitations or by prescription: Wheeling, Pittsburg & Baltimore Ry. Co. v. Cleland, 37 Leg. Int. 466; Scranton v. D. & H. Canal Co., 1 Lack. Jurist, 149; Hannum v. Borough of West Chester, 63 Pa. 475; Western Penna. R. R. Co. v. Johnston, 59 Pa. 295; Borough of Harrisburg v. Crangle, 3 W. & S. 460.</p> <p>Ejectment will lie where compensation has not been made for land taken under the right of eminent domain: Wheeling, P. & B. R. R. Co. v. Warrell, 122 Pa. 613; Graham v. Pittsburg R. R. Co., 145 Pa. 504.</p>

<p>Appeal, No. 44, Oct. T., 1902, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1899, No. 166, on verdict for plaintiff in case of Alice Molloy v. United States Express Company.</p> <p>Trespass to recover damages for personal injuries. Before PeNHYPACKER, P. J.</p> <p>From the record it appeared that there had been a former trial of the cause resulting in a nonsuit. The nonsuit was subsequently taken off. At the second trial Mr. Simkins, attorney for plaintiff, made the following offer:</p> <p>I have the doctor’s certificate here, showing that Mrs. Molloy is in the hospital. Here is a letter from the physician (sainé produced). She is the plaintiff in this case. I ask your hon- or’s permission to read in evidence her testimony taken before Judge Sulzberger when the case was up for trial before in February, 1900.</p> <p>Mr. Campbell: It is admitted that the facts stated iii the doctor’s certificate are true.</p> <p>Physician’s certificate read in evidence as follows:</p> <p>“ Bureau of Charities. Hospital Department, 34th and Pine Streets.</p> <p>“ January 16, 1902.</p> <p>“ To whom it may concern: Alice Molloy, aged T3, by reason of physical infirmities and an acute attack of illness, which con: fines her to bed, is unable at this time to leave the hospital.</p> <p>(Signed) “ D. E. Hughes.</p> <p>“ Chief Resident Physician.”</p> <p>Mr. Simkins: I propose to read the testimony of Alice Molloy taken before his honor, Judge Sulzberger, on February- 8, 1900, in a former trial, in this same cause.</p> <p>Mr. Campbell: I object.</p> <p>Mr. Simkins: I will ask Mr. Detweiler, the stenographer who took the testimony at the former trial, to take the stand.</p> <p>Oscar L. Detweiler, sworn.</p> <p>Mr. Simkins : “ Q. You were the official stenographer at the former trial of the case between Alice Molloy and the United States Express Company of February 8, 1900? A. I took the notes in the matter you have in your hand. Q. In this case ? A. If that is the name of the case. Q. Are those the notes ? ” (Testimony shown witness.)</p> <p>Mr. Campbell: I hardly think he takes them in that manner.</p> <p>The witness: These are a transcription of the shorthand notes.</p> <p>“ Q. Is that a correct copy of the notes taken by you at the former trial of this case ? A. To the best of my ability.”</p> <p>The Court: Is that testimony not filed ?</p> <p>The witness: No, sir; it is a carbon copy of the testimony that is filed.</p> <p>The Court: Get the testimony that is filed, that is on record; that which is filed is better.</p> <p>Mr. Simkins : If your honor pleases, we made diligent search for the original copy of these notes. It should have been filed in the record room, but there is no note there that anyone has taken it out. Some of the officers seem to be of the opinion that when they were brought in the court room for the new trial they were never sent back. I would like to show this copy to Mr. Detweiler.</p> <p>The Court: Show it to him.</p> <p>Oscar J. Detweiler resumed.</p> <p>Mr. Simkins: “ Q. Will you identify this as a copy of the transcription made by you of your shorthand notes taken In the trial of this case when it was here before ? ” (Same shown witness.) “A. Yes; it is a carbon copy. It was made at the same time that the copy which was filed was made. The same words appear in it, as far as I can recollect. The only difference would be if there had been words added to it after it had been typewritten by me. That is the only way there could have been any difference. Q. Have you read these notes? A. I have; that is, of the plaintiff’s evidence. Q. Is there any such difference as that ? Is there anything written in there beside in the carbon copy of the notes of the plaintiff’s testimony taken ? In making corrections in the original would you also make corrections in the carbon copy ? A. Oh, yes. Q. You say you have examined those notes. Are there any such corrections ? A. I think, to the best of my knowledge, that this is an absolutely correct copy as it is in the copy that was filed. Q. That is, the original copy filed is merely a transcript of your notes ? A. Yes.”</p> <p>The Court: “ Q. Is that an accurate report of the testimony taken at the time? A. To the best of my ability.”</p> <p>Mr Simkins: I ask permission to read the plaintiff’s testimony as it appears on this copy identified by the witness as a true copy of the transcription made by him at the time of-the former trial.</p> <p>Mr. Campbell: I object for the simple reason that the witness cannot positively identify that copy. It is impossible to remember the words of question after question propounded to the witness. He does not know whether that is a carbon copy taken at the same time the original was made. I do not think it is secondary evidence or admissible.</p> <p>The Court: The objection is overruled.</p> <p>CROSS-EXAMINATION.</p> <p>Mr. Campbell: “ Q. Have you examined word for word the plaintiff’s testimony in that copy you have before you ? A. The plaintiff herself? I read it while sitting here this morning. Q. Are you prepared to say that it is an absolute copy of the original which was filed by you in this court? A. No; my memory would not carry me back even at the time. Q. You are not willing to say that it is a carbon copy taken at the time the original was transcribed by you; you cannot tell that that is the original carbon copy ? A. Yes; there are earmarks about it which show it to be from our office. That is the copy that was made by myself; there is no doubt about that, I don’t think.”</p> <p>Mr. Simkins : I now offer to read in evidence the testimony given at a former trial by Mrs. Alice Malloy, from the copy identified by Mr. Detweiler.</p> <p>Mr. Campbell: I object to Mr. Simkins reading that copy to the jury.</p> <p>The Court: I think that that has already been ruled on.</p> <p>The objection at all events is now overruled.</p> <p>Exception noted for defendant. [1]</p> <p>Mr. Simkins then read the testimony to the jury.</p> <p>The court submitted the case to the jury.</p> <p>• Verdict and judgment for plaintiff for $750. Defendant appealed.</p> <p>Error assigned among others was the admission of plaintiff’s testimony given at the former trial.</p> <p>It will thus be seen that the cases where testimony taken at a former trial can be given in a subsequent one are: First, when the notes are properly proven. Second, when witness afterwards dies. Third, be out of the jurisdiction so that he cannot effectively be served with a subpoena. Fourth, when he cannot be found; and, fifth, when he becomes incompetent to testify for any legally sufficient reason.</p> <p>It is manifest that a carbon copy of testimony taken at a previous trial more than two years before, and not seen by the stenographer since then, could not possibly be identified by him. It could, therefore, not come under the head of “ properly proven notes of testimony: ” Smith v. Hine, 179 Pa. 203; Brennan v. Jacobs, 22 W. N. C. 453; Huidekoper v. Cotton, 3 Watts, 56; Richardson v. Stewart, 2 S. & R. 84; Stayner v. Joyce, 120 Ind. 99 (22 N. E. Repr. 89); Robbins v. Barton, 9 Kansas App. 558 (58 Pac. Repr. 279); Ill. Cent. R. R. Co. v. People, 59 Ill. App. 256; Herrick v. Swomley, 56 Maryland, 439; Lipscomb v. Lyon, 19 Neb. 511 (27 N. W. Repr. 731); Reid v. Reid, 73 Cal. 206 (14 Pac. Repr. 781); People v. Carty, 77 Cal. 213 (19 Pac. Repr. 490).</p> <p>The testimony of a witness, though alive and within the jurisdiction of the court, taken at a former trial is admissible, where on account of sickness and old age, he or she is unable to attend: Thornton v. Britton, 144 Pa. 126.</p> <p>After diligent search made if a document cannot be found, a carbon copy by the person who made the original is admissible : Gorgas v. Hartz, 150 Pa. 538; Blackstone v. White, 41 Pa. 330.</p>

<p>Appeal, No. 108, Oct. T., 1902, by-defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 3962, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harry M. Van Zandt and W. Cordes Snyder v. Harry O. Winters, Zachariah K. Loucks, William F. Ramsay and John C. Mosser.</p> <p>Assumpsit for services.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The claim was based partly on a written contract and partly for services and expenses in addition to those specified in the writing.</p> <p>The written agreement was as follows:</p> <p>“This agreement entered into this 2d day of November, A. D. 1902, between H. O. Winters, Z. K. Loucks, Wm. F. Ramsay and John C. Mosser, hereinafter known as party of the first part, and Harry M. Van Zandt and W. Cordes Snyder, hereinafter known as party of the second part.</p> <p>“Witnesseth: That in consideration of the sum of two hundred and fifty dollars ($250) in hand paid, payment of which is hereby acknowledged, the party of the second part agree to go to the Island of Cuba, leaving the City of New York by steamship on the 6th day of November, 1901, and remain on said island not to exceed thirty days—-health and other unforeseen accidents not interfering—and while there to perform such work or duties as II. O. Winters, representing party of the first part, may request and direct in line of proper examination, surveying, and work of like character in connection with such properties as said H. O. Winters may designate.</p> <p>“ And it is further agreed, that the party of the first part will assure and pay every and all legitimate expense incurred by party of the second part, such as living expenses, transportation to and from New York City and Havana, Cuba, etc., and in addition the sum of twenty dollars per day for their services while absent from the United States, and upon party of the second part delivering to party of the first part a written report covering their services and findings in the investigation of the certain several propositions hereinbefore cited, the party of the first part will pay the party of the second part the additional sum of two hundred and fifty dollars (§250), it being understood that the earnest of two hundred and fifty dollars first herein mentioned shall be an offset as against the items of twenty dollars per day for services and two hundred and fifty dollars for the expert report of party of the second part. The expenses of party of the second part to be paid for and taken care of by party of the first part as incurred; balance that may be due party of second part for services to be paid in full within ten (10) daj^s after their return to the United States.”</p> <p>The additional foundation of the case was the averment by plaintiffs that this contract and agreement was verbally extended and continued by appellants as to the length of time it was to run, and that, under the original agreement and its continuance, Van Zandt, one of the plaintiffs, after being in Cuba nine days (not including four days of passage going and four coming) was returned to the United States by appellants, and retained here hr their employ until December 28, 1901, a total period of fifty-three days, while Snyder, the second plaintiff, was retained this whole period of time, fifty-three days, in Cuba (including periods of passage) in their employ.</p> <p>Z. K. Loucks filed the following affidavit of defense :</p> <p>Deponent says that the said plaintiffs left New York city for Cuba, November 6, 1901, and that the said plaintiff, Harry M. Van Zandt, returned from Cuba, arriving in New York November 23,1901, having been absent from the United States in all seventeen days, nine of which were spent in Cuba and eight of which were spent upon the water between New York and Cuba. The plaintiff, Van Zandt, at the rate stated in the contract sued on would therefore be entitled to seventeen days’ pay, $10.00 per day, or $170 up to the time of his return. After the return of said Van Zandt to this country, November 23,1901, he performed no. services of any nature or kind for this defendant. He did not at the instance of this deponent incur any traveling expenses or other expenses in this country chargeable to this deponent, nor is he entitled, under and in pursuance of the terms of this agreement in suit, to charge deponent with the expenses as set forth in the amended statement, except the item of $5.00, which is a charge for expenses incurred between Havana and New York. This the deponent is willing to allow, but the other items set forth in said statement, amounting to $103.15, being expenses for meals, hotel bills, cab hire, railroad fare, etc., in this country, deponent is unwilling to pay, and says that the plaintiff, Van Zandt, under the terms of his contract, is not- entitled to make any such charges, nor did this defendant ever agree to pay any such charges. The said plaintiff, Van Zandt, never submitted any written expert report to the defendants in regard to the property which he was employed to investigate. He did join in a written statement with plaintiff Snyder, but he did not make any scientific, technical or expert report such as he was employed to make. ' That this deponent is not indebted to the said Van Zandt in any sum whatever for said report, the same being entirely worthless.</p> <p>Deponent further says that the said plaintiffs were paid in cash by defendants the sum of $290. Deponent says that, as to the claim of the plaintiff, Snyder, he would be entitled, at the rates charged in the contract of $10.00 per day payment, at the most for only thirty-eight days. The contract provides that he is entitled to receive $10.00 a day for services while absent from the United States, and that he was to remain on the island of Cuba not to exceed thirty days; that he was going and coming from Havana to Cuba eight days, so that his services would amount to $380 for thirty-eiglit days’ wort; that if plaintiff was absent from the United States longer, it was not in pursuance of the contract sued on, nor in pursuance of any directions given by this deponent or any defendant having authority to give such instructions.</p> <p>The plaintiff, Snyder, has charged $15.00 for expenses connected with the trip between Havana and New York. This expense deponent is willing to pay.</p> <p>Deponent further says that the plaintiff, Snyder, is not entitled to recover any sum whatever for a report as claimed in statement filed; that he was employed as an expert and for no other purpose; that in agreeing to pay $250 for final report, defendant expected and was entitled to receive a scientific report, such as a civil and mining engineer would make upon the subjects investigated; that no such report was ever made. The said Snyder did join with his coplaintiff, Yan Zandt, in making a written statement, which was, however, absolutely worthless.</p> <p>Wm. F. Ramsay also filed an affidavit for defense.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 9, March T., 1902, by defendant, from judgment of C. P. Juniata Co., Sept. T., 1900, No. 102, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of county of Juniata v. Overseers of the Poor of the Borough of Mifflintown. Assumpsit to recover for the maintenance of an insane pauper.

Appeal, No. 83, April T., 1902, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1900, No. 258, on verdict for plaintiff in case of George Mihalyik v. Jacob Klein. Trespass for malicious prosecution.

<p> Bankruptcy—Schedule—Discharge. </p> <p>A discharge in bankruptcy cannot be set up against a judgment entered on a bond accompanying a mortgage given by the bankrupt and his wife, where the schedule filed in the bankruptcy proceedings describes the mortgage and bond as having been given by the wife alone, and it also appears that the judgment creditor had no actual notice or personal knowledge of the bankruptcy proceedings.</p>

Appeal, No. 148, April T., 1902, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1901, No. 429, or verdict for plaintiff in case of Jacob Kaufmann v. John W. Kirker. Assumpsit to recover damages for breach of a contract. Before Collier, P. J. At the trial it appeared that prior to the bringing of the present action plaintiff and defendant had entered into a written agreement for the exchange of land.

Appeal, No. 61, April T., 1902, by plaintiff, from judgment of C. P. Somerset Co., May T., 1899, No. 223, for defendant not obstante veredicto in case of Lincoln Barnhart’s use v. Adam Barnhart’s… Held: our case is certainly in no better condition. We think the evidence should have been held, as matter of law, too vague, indefinite and uncertain to submit the case to the jury.

Appeal, No. 40, Oct. T., 1902, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1901, No. 4077, for want of a sufficient affidavit of defense in case of Ketterer Manufacturing Company v. Baltic Brewing Company, Limited. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. The material averments of the affidavit of defense are set forth in the opinion of the Superior Court.

Appeal, No. 180, Oct. T., 1902, by John Bowman, from order of C. P. No. 5, Phila. Co., June T., 1901, No. 840, striking off air award of a jury of view in In re Change of Grade of Fifth Street from Tabor Road to Olney. Exceptions to award of jury of view. The facts are stated in the opinion of the Superior Court. Error assigned was order striking off award in favor of John Bowman.

Appeal, No. 101, Oct. T., 1902, by defendant, from judgment of C. P. No. 8, Pbila. Co., June T., 1900, No. 488, on verdict for plaintiff in case of Jessie May Dennison v. North Penn Iron Company. Trespass to recover damages for personal injuries. Before McCarthy, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $786. Defendant appealed. Error assigned was in submitting the case to the jury.

Appeal, No. 96, Oct. • T., 1902, by J. Clark Mansfield, from order of Juvenile Court, Phila. Co., committing Fred Mansfield to the House of Refuge. Petition to commit a minor to the House of Refuge.

<p> Criminal law—Forfeiture of recognizance—Discretion of court—Appeals. </p> <p>The mere forfeiture of a recognizance by the court of quarter sessions is not such a judgment as passes from the control of the court at the close of the term. The final disposition of a recognizance is left to the discretion of the court.</p> <p>The court does not abuse its discretion in remitting the forfeiture of a recognizance given by a mother to secure the release of her son charged with .a misdemeanor, where it appears that after the son became a fugitive from justice, the mother died, that her executor ascertained that the son was in jail on another charge, and lodged a detainer for him, and that the prisoner was subsequently acquitted of the charge, as to which the recognizance was given.</p> <p>A prosecutor in a criminal charge has no standing to appeal from an order of the court of quarter sessions, remitting the forfeiture of bail entered to secure the appearance of the prisoner to answer the criminal charge.</p>

<p>Appeal, No. 58, Jan. T., 1903, by the Old Forge Borough School, from order of Q. S. Lackawanna County, Feb. T., 1901, No. 356, overruling exceptions to report of commissioner apportioning property of school districts. ' Tn re Apportionment of the Indebtedness of Old Forge School District.</p> <p>Exceptions to report of D. W. Thayer, Esq., commissioner.</p> <p>Edwards, P. J., filed the following opinion :</p> <p>In May, 1899, by decree of the court of quarter sessions of Lackawanna county, the borough of Old Forge was created out of the greater portion of Old Forge township and school district of the same name. This resulted, by operation of law, in the formation of the new school district of Old Forge borough, leaving the balance of the Old Forge township a school-district by itself. “ By the incorporation of the borough, what had before been one became two separate and distinct school districts, one retaining the old name and the other assuming the name of the new boroughIn re Abington School District, 4 W. N. C. 247.</p> <p>A petition was filed in January, 1901, under the Act of 1862, P. L. 471, praying for an adjustment and apportionment of the property and indebtedness of the old school district among the two school districts—the borough and the township school districts. A commissioner was appointed to report the facts to the court. His report and the exceptions thereto is now before us. The commissioner, after finding the value of the school properties, the amount of the indebtedness and the location of the school properties, all being in the new or borough school district, strikes a balance and finds that the Old Forge borough school district owes the Old Forge township school district the sum of $5,821.</p> <p>What is the nature of the exceptions ? ' They do not question the regularity of the proceedings, nor the valuation placed by the commissioner upon the school properties, nor the total amount of the indebtedness reported by him, or any item thereof, nor the apportionment of the assets, nor the amount of the balance found by the commissioner to be due from one school district to the other. One would think that these matters not being excepted to would remove all difficulties in the way of a final decree by the court. But there are exceptions on file and we must say that they are as anomalous as the condition of the Old Forge school district itself. The main exception is—the second one being merely formal—“ that under all the evidence, the part of the territory .... now alleged to be a township has not the necessary population to constitute a township within the meaning of the law, and that the alleged school district, is not a legal school district and is not entitled to maintain the present proceedings.” At the request of counsel for the exceptant the commissioner has found some interesting facts:</p> <p>1. The territory constituting the school district contains 450 acres and is owned by the Delaware, Lackawanna & Western Railroad' Company. The electors living in the district are tenants of the railroad company. The number of children of school age is six.</p> <p>2. There is neither a church, nor a schoolhouse, nor a hotel within- the township. No public school had been maintained up to tbe time of tbe commissioner’s report; no justice of the peace nor a constable elected, in the township, and no township rates levied for the year 1900 and 1901.</p> <p>3. While a school board has been elected and organized and a school tax of two mills levied in 1900, and one mill in 1901, the electors were so few that one and the same person was elected assessor and school director, another, tax collector and school director, another, inspector of election and supervisor, another, assessor and township treasurer, and so on through the list of offices. Political honors seem to be thrust upon all the electors in this little township, some of them occupying more than one office regardless of the incompatibility of the offices.</p> <p>Because of the peculiar conditions stated, we are asked to suspend the operation of the law and to declare that there is no Old Forge township school district, when the act of assembly says there is. If there were only six children of school age in 1901, there may be twenty next year, and a schoolhouse may be built. It is not impossible that the railroad company’s land may soon be in the market for building purposes and that a thriving population will inhabit this small township, attracted possibly by the fact that there is a township in' Pennsylvania that has no tax levy,—a modern Utopia. Of course we do not know that all this will happen; but it may. In the meantime acts, of assembly will continue to be enforced. The law is made for the future as well as for the present and will remain operative until changed by competent authority. Exceptional conditions sometimes come into existence when new municipalities and school districts are created by means of territorial divisions or additions; but these conditions in course of time adjust themselves to the demands of the prevailing scheme or system of government, and seeming anomalies, which are but temporary, soon disappear.</p> <p>The exceptions are dismissed and the report of the commissioner is confirmed. Let counsel prepare final decree in accordance with the provisions of the act of 1862, and submit the same to the court.</p> <p>Errors assigned were in dismissing exceptions to commissioner’s report.</p>

<p>Appeal, No. 118, Oct. T., 1902, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1901, No. 252, on verdict for plaintiff in case of William P, Hood, Executor of Harry L. Hood, Deceased, v. Prudential Insurance Companjr of America.</p> <p>Assumpsit on four policies of life insurance. Before Ralston, J.</p> <p>At the trial it appeared that the policy contained, inter alia, these provisions :</p> <p>“ First.—Preliminary Condition : No claim will be paid on this policy in case of the death of the insured before the date hereof, nor unless on said date the insured is alive and in sound health.</p> <p>“ Fourth.—Policy when Void: This policy shall be void if there is in force upon the life of the insured an industrial policy previously issued by this company, unless the policy first issued contains an indorsement, signed by the president or secretary, authorizing this policy to be in force at the same time.”</p> <p>Defendant made the following offer :</p> <p>Mr. Shoyer stated that he proposed to prove by the witness (Elizabeth S. Hood), who is the widow of Harry L. Hood, that Mr. Hood had consumption for more than two years prior to the issuance of the policies in this case.</p> <p>Objected to. Objected sustained. Exception for defendant. [1]</p> <p>Dr. Alonzo H. Stewart, witness called by the defendant, was asked this question:</p> <p>“ Q. Will you state whether or not there was anything said to you, or anything said to Hood about prior insurance upon his life ? ”</p> <p>Mr. Shoyer: “ Q. I show you four applications, which are the applications upon which the policies in suit were issued . . . . Did you have those applications with you at the time you saw Mr. Hood in August, 1899? (Paper shown witness.) A. I did, sir. Q. Will you state whether or not there was anything said to you, or anything said to Hood about.prior insurance upon his life ? ”</p> <p>Objected to. Objection sustained. Exception for defendant. [2] •</p> <p>“ Q. As a good result of your examination, did you pass this man as a good risk ? ”</p> <p>Objected to. Objection sustained. Exception for defendant. [3]</p> <p>“ Q. Did you have a conversation with the insured, Harry L. Hood, when you called upon him with these applications at the time concerning which you have testified? A. I did. Q. Will you state what that conversation was ? ”</p> <p>Objected to. Objection sustained. Exception for defendant. [4]</p> <p>Defendant offered in evidence application No. 77,776 dated October 17, 1894, as the application of Harry L. Hood for $500 additional insurance on that date. Objected to. Objection sustained. Exception for defendant. [5]</p> <p>Defendant offered to prove that the first policy No. 5,170,086, dated October 3, 1892, in the sum of $130 on the life of Harry L. Hood was paid by the company. Objected to. Objection sustained. Exception for defendant. [6]</p> <p>The court charged as follows :</p> <p>. [The policy contains a clause providing that it shall be void if there is in force upon the life of the insured an industrial policy previously issued by this company, unless the policy first issued contains an indorsement signed by the president or secretary of the company authorizing this policy to be in force at the same time.</p> <p>It has been shown by the testimony and bj' the production of the. policy dated October 3, 1892, that there was another policy issued by this company at the time these policies were taken out, but the court has stated to counsel that an insurance company which issues a new policy cannot say that because they have not an indorsement on a policy previously issued by them, they can avoid the new policy and escape liability on it.</p> <p>That is the only defense that has been made, and if you believe the testimony for the plaintiff, you may find a verdict for him.] [7]</p> <p>Verdict and judgment for plaintiff for $212. Defendant appealed.</p> <p>Errors assigned were (1-6) rulings on evidence; (7) charge of the court.</p>

<p>Appeal, No. 124, Oct. T., 1902, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1902, No. 759, on verdict for plaintiff in case of Court Vesper No. 69, Foresters of America, v. Reuben G. Missimir and Irwin A. Fries.</p> <p>Assumpsit upon a bond of suretyship. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial defendant presented the following points, none of which were read to the jury, and all of which were refused.</p> <p>1. Under the conditions of the bond given by the defendant to the plaintiff, he is liable to the plaintiff for moneys actually received by Missimir, the treasurer," after the execution and delivery of the bond only, and not for moneys already in his hands at and before that time. [1]</p> <p>2. If the jury believe that Missimir, the treasurer, paid to the plaintiff, or upon its order, between October 11, 1900, and December 10, 1900, a sum in excess of what came into his hands as treasurer of the court between the same dates, then the defendant is not liable, the plaintiff cannot recover, and the verdict must be for the defendant. [2]</p> <p>3. If the jury believe that the chief ranger and trustees of the plaintiff, or either of them, knew that Missimir, the treasurer, had the funds of the plaintiff invested in his business at the time this bond was executed by the defendant, and this knowledge was not communicated to the defendant at that time, the plaintiff cannot recover, and the verdict must be for the defendant. [3]</p> <p>4. If the jury believe that Missimir, the treasurer, had the plaintiff’s funds invested in his business at the time of the execution of the bond, and that the plaintiff or its proper officers knew that fact, there is no consideration for this bond, the plaintiff cannot recover, and the verdict must be for the defendant. [4]</p> <p>5. Under all the evidence the verdict must be . for the defendant. [5]</p> <p>Plaintiff presented this point:</p> <p>■ 3.-' Even though the jury believe that Missimir, the treasurer, was insolvent at the date of the execution of the bond, or that hé had made use of the funds in his business, nevertheless the verdict must be for the plaintiff, unless the plaintiff knew of such insolvency or embezzlement and concealed the knowledge from the defendant. Answer: Affirmed. [6]</p> <p>The court charged, inter alia, as follows :</p> <p>[Whether Missimir owed $803.40, it seems to me depends entirely upon your answer to the question, How much cash did he "have actually on hand or in his control, or if not cash then how much was the value of the property or investments representing that. cash which Missimir controlled on the day *• the bond was executed?] [7]</p> <p>[Mr. Missimir, however, testified yesterday that he had actually put the money of the association which he held into a stock of tobacco that he'carried in his store, and that he carried that tobacco investment of the society’s money just as he would cany money in bank or invest it in bonds or something of that kind.. ... If this story of Mr. Missimir is true, that is to say, if .this money was invested in a stock of tobacco, he was just as much bound to account to the society for that tobacco or its value- as he would be if he had the money in his hands in dollars or half dollar pieces.] [8]</p> <p>Verdict and judgment for plaintiff for $869.44. Defendant appealed. - '</p> <p>Errors assigned were (1-8) above instructions, quoting them.</p> <p>There was no consideration, for the bond in question.</p> <p>The surety is not liable for a default of the treasurer prior to the excution of the-bond: Beyerle v. Hain, 61 Pa. 226; Second Ave. R. R. Co. v. Coleman, 24 Barb. (N. Y.) 300; Com. v. West, 1 Rawle, 29; Bank of Washington v. Barrington, 2 P. & W. 27, 45; County of Pine v. Willard, 39 Minn. 125 (39 N. W. Repr. 71); Van Sickle v. Buffalo Co., 13 Neb. 103 (13 N. W. Repr. 19); City of Detroit v. Weber, 29 Mich. 24; Rochester v. Randall, 105 Mass. 295; Kellum v. Clark, 97 N. Y. 390; State v. Jones, 89 Mo. 470 (1 S. W. Repr. 355).</p> <p>The surety was not liable for the stock of tobacco into which his principal had, without authority, converted the assets of the society before the assumption of the suretyship.</p> <p>cited: De Hart v. McGuire, 10 Phila. 359; Beyerle v. Hain, 61 Pa. 226; Wayne v. Commercial National Bank, 52 Pa. 343; Farmers’, etc., National Bank v. Braden, 145 Pa. 473.</p>

<p>Appeal, No. 126, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1901, No. 1851, on verdict for plaintiff, in case of Patrick J. McCartney and Sarah C. McCartney, his wife, v. City of Philadelphia.</p> <p>Trespass to recover damages for injuries to real estate caused by an overflow of water from a defective highway. Before Bbegy, J.</p> <p>From the record it appeared that plaintiffs in tlieir statement of claim averred that by reason of the flow of the water their premises were damaged in the sum of $500, and that by reason of sickness caused by the flow of water each of the plaintiffs were damaged in the sum of $2,000.</p> <p>When Wilson Steady was on the stand, he was asked this question:</p> <p>“ Q. Are you familiar with the valuation of real estate in Frankford ? ”</p> <p>Objection. Objection sustained. Exception. ■ [1]</p> <p>“ Q. What is the market value of that house? ”</p> <p>Objection. Objection sustained. Exception. [2]</p> <p>“ Q. What money damage, if any, has been done to the premises by the action of the water flowing in from Torresdale avenue into the cellar and elsewhere there as you have described ? ”</p> <p>Objection. Objection sustained. Exception. [3]</p> <p>“ Q. Are you able from your knowledge of real estate in that locality and the premises of plaintiffs to state what the rental value of the plaintiffs’ house has been and is during the last six years ? ”</p> <p>Objection. Objection sustained. Exception. [5]</p> <p>Mr. Eyre : I offer to show by Peter Hasson that he is ail expert upon real estate values in the city of Philadelphia, including Frankford, and the locality where the plaintiffs’ premises are situated, and I offer to show by this witness the depreciation in value to the plaintiffs’ premises at and up to the time of the bringing of this suit on October 12, 1901, and the loss of rental value of said premises during, the six years in which this nuisance has existed.</p> <p>Objection. Objection sustained. Exception. [7]</p> <p>The court charged in part as follows:</p> <p>[I might not give you any reason for excluding any portion of the testimony, but probably it would be better that I should briefly explain to you that I will eliminate everything from your consideration excepting the sickness, because there is nothing else that the plaintiff has suffered. If they had drained their property, if they bad cemented the walls and papered the house, it would have been a proper element of damage, but they did not do that; and if they still do it, they can sue the city, and claim for that, because continuous suits can be brought. They did not move away; they did not do anything that involved expenditure of any money. If they .had proved that, they would be eutitled to recover, if the city is liable. What they do claim is that they got sick, and therefore sickness is the only thing they are entitled to recover for if they suffered.] [8]</p> <p>Yerdict and judgment for plaintiff for $450, Plaintiff appealed.</p> <p>Errors assigned were (1-3, 5, 7) rulings on evidence, quoting the bill of exceptions; (8) above instruction, quoting it.</p> <p>The learned trial judge was wholly wrong in the view he took of the rights of the plaintiffs as to the damages to the real estate: Hoffman v. Mill Creek Coal Co., 16 Pa. Superior Ct. 631; Seely v. Alden, 61 Pa. 302; Gift v. City of Reading, 3 Pa. Superior Ct. 359; Lentz v. Carnegie Bros. & Co., 145 Pa. 612; Eshelman v. Martic Twp., 152 Pa. 68; Herbert v. Rainey, 162 Pa. 525.</p>

<p> Taxation—Collateral inheritance tax—Decedent's estates—Buies of property—Judicial decision. </p> <p>In April, 1848, testatrix devised her realty in equal shares to her four children, naming them, “their heirs and assigns.” She further directed as follows : “ I also request my children in making their will to give the property they receive by this will, unless the strongest reasons should urge them to the contrary, to the direct heirs of my husband and myself.” Testatrix died in the same year. In Coates’s App., 2 Pa. 129 (1845), it was decided that an absolute estate given by will was reduced to a life estate with remainder in trust by succeeding word of desire, expectation, or confidence, both as to realty and to personalty. Pennock’s Appeal, 20 Pa. 268, decided in 1853, overruled Coates’s Appeal. As three of the children died in succession, each devised his or her portion to the survivors. When the last survivor died she devised the whole of the real estate to her niece and nephews. Reid (1), that the last survivor held three fourths of the estate under devises of the other donees, absolutely, and only one fourth under the limitations of the original will ; (2) that the commonwealth was entitled to the collateral tax on the three fourths interest.</p>

<p> Criminal law—Alibi^Evidence. </p> <p>When an accused resorts to the defense of alibi, the evidence must cover the time when the offense is shown to have been committed, so as to preclude the possibility of the prisoner’s presence at the time and place of the crime. The defendant mates no admission of guilt by setting up an alibi, yet the value of the defense consists in its showing that he was absent from the place where the deed was done, at the very time of its commission, for if it be possible that he could have been at both places, the proof of the alibi is valueless. The facts established by the evidence in support of this defense, must make it impossible that the defendant could have been present at the commission of the crime. When the evidence, if believed, does not establish such facts, the accused derives no benefit from it upon that particular branch of his defense, but it still remains in the case for all other purposes.</p> <p>The prisoner’s failure to prove an alibi when set up by him does not relieve the commonwealth from proving beyond a reasonable doubt that he committed the crime. When considered as a distinct element of the defense, the burden is upon the accused who asserts the fact upon which the defense is based to establish it by fairly preponderating evidence. This defense does not, however, raise any collateral issue which is to be distinctly and separately determined. It is as much a traverse of the crime as any other defense, and proof establishing it, though not clear, may, nevertheless, with other facts in the ease, raise that reasonable doubt which must result in an acquittal.</p> <p>It is error for the court in speaking of the defense of alibi in its charge, to say : “ Because it is usually made out by members of the family of the accused, the law says it must be made out very clearly and satisfactorily, that is, that the proof must be pretty positive ; that it must be such proof as will carry conviction to your minds and which should preponderate and fix pretty thoroughly the place that the defendants allege them-, selves to be ; that the evidence must establish pretty thoroughly that they were at the identical place that they allege they were on the night that the crime was committed.”</p>

Appeal, No. 36, Jan. T., 1903, by plaintiff, from order of Q. S. Luzerne Co., discharging rule to compel payment of money for the support of an insane pauper in case of Central Poor District of Luzerne County v. Directors ■of the Poor of Jenkins Township, Pittston Borough and Pitts-ton Township.

<p> Judgment—Confessed judgment—Place of performance—Contract. </p> <p>A judgment entered in Pennsylvania on an ordinary judgment note containing a power to confess judgment in Pennsylvania will not be stricken off because the face of the note shows that the woi’ds, “Wayne County, Pa.,” were stricken out and “Hancock, N. Y.” inserted.</p> <p>As between the place of making and the place of performance, where a place of performance is specified, the law of the place of performance governs as to the obligation, interpretation, etc.</p>

<p>Appeal, No. 72, Jan. T., 1903, by plaintiff, from order of C. P. Susquehanna Co., Jan. T., 1902, No. 141, striking off municipal lien in case of Oakland Borough v. Annie Boyden et al.</p> <p>Motion to quash appeal.'</p>

<p> Street railways—Repair of streets—Contract with borough. </p> <p>Where a street railway company contracts with a borough to pave a certain portion of the street with mountain stone, or other suitable material, subject to the approval of the town council, and also upon five days’ notice from the borough to repair and repave the street, and further to save the borough harmless from loss arising in consequence of the construction or operation of the railway, the borough in an action against the railway company to recover the amount of a judgment which it had been compelled to pay for personal injuries, cannot, after having averred in its statement that the injuries were caused by the failure of the company to keep the street in repair, offer proof that the injury was caused by a defect in the original construction five years before ; nor can it recover unless it shows that it gave five days’ notice to the railroad company to repair the defect which caused the accident.</p>

Appeal, No. 94, Oct.- T., 1902, by defendant, from judgment of C. P. Lancaster Co., Jan. T., 1900, No. 35, on .verdict for plaintiff in case of E. Frank Coe Company v. S. U. Eichenberg. Assumpsit on book account for goods sold and delivered. At the trial the court admitted under exception and objection, the following papers: Exhibit D. Millway, Lanc. Co., Pa., J or (Y), 28, 1897.

<p>Sewers—Damages—Viewers—Act of May 16, 1891, P. L. 75.</p> <p>In a proceeding before viewers under the Act of May 16, 1891, P. L. 75, to recover damages for injuries to propertyresuiting from the construction of a sewer, the damages which may be recovered are for such injuries as are the direct, immediate and necessary or unavoidable consequences of the act of eminent domain itself, irrespective of care or negligence.</p> <p>Municipal authorities when adopting plans for or locating streets, sewers or other improvements, are vested with a discretion which the courts are without power to review, and upon passing upon questions of benefits or damages arising from the execution of the plan, evidence tending to show that some other plan might have been more beneficial or less injurious is not admissible.</p> <p>- Sewers—Damages—Lateral support.</p> <p>The rule which limits a private owner’s liability for damages for depriving his neighbor’s land of support, to the injury to the land without regard to the buildings, does not apply to a municipality which in the construction of a sewer deprives land of support and injures a building erected thereon.</p> <p>When an improvement is the direct and proximate cause.of an injury, and the loss is the necessary and unavoidable consequence of a careful execution of the work, the land and every right of property thereto appurtenant is within the protection of article 16, section 8, of the constitution of Pennsylvania, and the Act of May 16, 1891, P. L. 75, affords an appropriate remedy.</p>

<p>Appeal, No. 69, Oct. T.', 1902, by Provident Life & Trust Company of Philadelphia and Thomas Learning, executors and trustees, from order of C. P. No. 2, Phila. Co., March T., 1874, No. 658, discharging rule to open judgment in case of Philadelphia v. Charles Lukens.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p> <p>cited: Simons v. Kern, 92 Pa. 455; Wolf v. Philadelphia, 105 Pa. 25.</p>

<p>Appeal, No. 72, Oct. T., 1902, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1895, No. 568, on verdict for plaintiff in case of John Mitchell and William J. S. Mitchell, trading as John Mitchell & Son, v. Sarah J. Jodon.</p> <p>Assumpsit upon a contract for goods sold and delivered. Before McMichael, J.</p> <p>At the trial it appeared that John Mitchell had a written contract with defendant to build a house.- During the progress of the building, defendant’s husband ordered certain independent and additional work to be done. Defendant made no objection to this, and subsequently promised to pay for the additional work.</p> <p>Verdict and judgment for plaintiff for $187.52. Defendant appealed.</p> <p>Errors assigned were as follows :</p> <p>1. The learned court erred in instructing the jury in substance that while if the verbal contract was made with John Mitchell he cannot recover but is bound by his written contract, but if the verbal contract was made with John Mitchell & Son they can recover.</p> <p>2. The learned court erred in not holding that if John Mitchell & Son did the work of repairing and rebuilding the house of the defendant, at No. 1024 Vine street, under the written contract with John Mitchell, they were bound by the terms of the written contract as to alterations and additions to and deductions from the contract price the same as if the written contract had been made with John Mitchell & Son.</p> <p>3. The learned court erred in submitting to the jury the question as to whether the verbal contract was with John Mitchell or John Mitchell & Son; and</p> <p>4. The learned court erred in submitting to the jury the question of Mrs. Jodon’s ratification of the contract.</p>

<p>Appeal, No. 151, Oct. T., 1902, by plaintiff, from judgment of C. P. Franklin Co., Feb. T., 1901, No. 83, for defendant non obstante veredicto in case of Mary Hawn v. Samuel M. Stoler, Executor of A. B. Stoler, Deceased.</p> <p>Assumpsit to establish a donatio mortis causa. Before John Stewart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $326 subject to question "of law reserved.</p> <p>The court in an opinion by John Stewart, P. J., entered a verdict for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p> <p>There was sufficient delivery under the circumstances: Devol v. Die, 123 Ind. 321 (24 N. E. Repr. 246); Shakleford v. Brown, 89 Mo. 546; Michener v. Dale, 23 Pa. 59; Sessions v. Moseley, 58 Mass. 87; Brown v. Niethammer, 141 Pa. 114; Williams v. Fitch, 18 N. Y. 546; Crawford’s App., 61 Pa. 52; Champney v. Blanchard, 39 N. Y. 111.</p> <p>No particular form of words is necessary to give effect to a gift causa mortis. And all questions relating to the fact .of delivery, as well as of the capacity in which the person who receives the thing holds it, are usually to be left to a jury: Jacques v. Fourthman, 137 Pa. 428.</p> <p>A gift cannot be made by words in futuro or by words in prsesenti unaccompanied by delivery: Campbell’s Estate, 7 Pa. 100; Trough’s Estate, 75 Pa. 115; Kidder v. Kidder, 33 Pa. 268; Hemphill’s Estate, 180 Pa. 87; Walsh’s Appeal, 122 Pa. 177; Wells v. Tucker, 3 Binn. 366; Nicholas v. Adams, 2 Wh. 17.</p> <p>Something remained to be done by the donor, through her agent or bailee, before the gift was complete, and she. might have declined further performance and resumed her own: Kern’s Estate, 171 Pa. 55; Taylor’s Estate, 154 Pa. 183; Appeal of Waynesburg College, 111 Pa. 130.</p> <p>The title must pass out of the donor absolutely at the time of making the alleged gift, and at that time must vest in the donee. It must be such a title as the donee could assert against all the world including the donor herself, and it must be irrevocable: Campbell’s Estate, 7 Pa. 100; Walsh’s Appeal, 122 Pa. 177; 3 Pomeroy’s Equity, sec. 1146; Thornton on Gifts, sec. 135.</p> <p>We insist that there was no delivery in this case to the donee, or to anyone for her: Thornton on Gifts, sec. 216; Clapper v. Frederick, 199 Pa. 609; Zimmerman v. Streeper, 75 Pa. 147.</p> <p>There were no facts whatever in dispute, either as to the donor’s intention to give, or as to the character of the delivery, nor was the transmission of the possession from the donor to the donee ambiguous.</p> <p>The burden is on the donee to show every fact necessary to constitute a valid gift, and no inferences can be permitted except such as are fairly deducible from the facts proven : Clapper v. Frederick, 199 Pa. 609; Walsh’s App., 122 Pa. 177.</p>

Appeal, No. 138, Oct. T., 1902, by defendants, from order of C. P. No. 4, Phila. Co., Dec. T., 1893, M. L. D. 407, dismissing exceptions to report of.referee in case of George D. Miller v. Ellen S. Heath, Owner or Reputed Owner, and George B. Heath, Contractor. Scire facias sur mechanic’s lien. The case was referred to William Grew, Esq., who decided in favor of the plaintiff. Exceptions to referee’s report were dismissed by the court.

Appeal, No. 100, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T.; 1900, No. 433, on verdict for defendant in case of William A. O’Donnell, Administrator, v. Margaret Gaffney. Trespass in the nature of trover and conversion.

<p>Appeal, No. 179, Oct. T., 1902, by Mabel A. Glazier, from judgment of C. P. No. 4, Phila. Co., March T., 1898, No. 192, M. L. D., on verdict for plaintiff in case of Philadelphia to use of the Mack Paving Company v. Michael J. Kehoe, Owner or Registered Owner, and E. Spencer Miller, Registered Owner.</p> <p>Scire facias sur municipal lien for paving. Before Will-son, J.</p> <p>The introductory paragraph of the claim as filed was as follows :</p> <p>The city of Philadelphia to use of the Mack Paving Company, hereby files this its claim against Michael J. Kehoe, owner or reputed owner, and registered owner, or whoever may be owner of all that certain lot or piece of ground and messuage or tenement thereon erected, situated in the twenty-second ward of the city of Philadelphia, on the northwest side of Berkley street (fifty feet wide), beginning at a point, etc.</p> <p>At the trial the court permitted the judgment to be amended by adding the names of Henry A. McCaffrey and Mabel A. Glazier, owners, as defendants.</p> <p>The parties entered into the following agreement:</p> <p>It is agreed that the strip of ground was owned by Henry S. McCaffrey when the work was done and lien filed. .That the same property was registered in the name of Thomas J. Greene at that time, and it is agreed that verdict shall go for the plaintiff, and that the point shall be reserved whether under the lien and record pursuant thereto plaintiff can maintain his claim.</p> <p>Verdict for plaintiff for $330.60, subject to the point reserved. The court subsequently entered judgment for plaintiff on the verdict.</p> <p>Errors assigned were (1) in permitting the amendment; (2, 3) in entering judgment for plaintiff.</p> <p>It cannot be controverted that a municipal lien must be filed in the name of the registered owner, otherwise it will be void. This was flatly decided by a reversal of the court below in Gans v. Philadelphia, 102 Pa. 97.</p> <p>Nor can it be denied that proceedings subsequent to the lien must be in the name of any later registered owner, and that the writ of scire facias must be served on any such persons : Act of March 14, 1865, sec. 5, P. L. 320; Act of March 29, 1867, sec. 1, P. L. 600; Simons v. Kern, 92 Pa. 455.</p> <p>If the lien as filed was materially defective, or the proceedings by scire facias, then an amendment, after six months from the doing of the work, would not make the defect good: Wolf v. Philadelphia, 105 Pa. 25; Grier v. Northern Assurance Co., 183 Pa. 334; Dearie v. Martin, 78 Pa. 55; McFarland v. Schultz, 168 Pa. 634.</p> <p>Even if the amendment had not been objected and excepted to, it would not make the claim good after the six months, if before it was radically bad: Kaul v. Lawrence, 73 Pa. 410; Seipel v. Baltimore, etc., Railroad Co., 129 Pa. 425.</p> <p>• But even if tlie amendment was properly allowed, it did not correct the failure in the former proceedings to vest the court with jurisdiction, by giving the notice prescribed by statute.</p>

<p>Appeal, No. 216, Oct. T., 1901, by plaintiff, from judgment of C. P. McKean Co., Feb. T., 1900, No. 118, refusing to strike off nonsuit in case of Libbie Briggs and Eli Briggs, her Husband, in right of Libbie Briggs, v. S. H. Elder, G. O. Oviatt and Michael Herzog.</p> <p>Assumpsit on an oil lease. Before Morrison, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 160, Oct. T., 1902, by defendant, from judgment of O. P. Centre Co., Jan. T., 1901, No. 105, on verdict for plaintiff, in case of Elmer W. Moore, Receiver of Iron City Mutual Fire Insurance Company, v. J. H. Reifsnyder.</p> <p>Assumpsit to recover assessments on a policy of fire insurance. Before Love, P. J.</p> <p>The facts are stated in the opinion of the Superior Court., At the trial defendant offered in evidence the following circular :</p> <p>EIRE INSURANCE AT ACTUAL COST.</p> <p>THE IRON CITY MUTUAL EIRE INSURANCE CO., OE PITTS-BURG, PA.</p> <p>' Charter Perpetual, Statement—1st January, 1892. All policies cover loss and damage by lightning. Assets:</p> <p>Cash on hand and in banlc ).............. $ 7,384.06 Cash in hands of agents j</p> <p>Cash premiums and assessments (in course of collection).......................... 7,769.80</p> <p>Bilis receivable (judgment notes taken for premiums) office furniture, etc......... 709.89</p> <p>$15,863.75</p> <p>Assessable insurance, liable for losses and</p> <p>expenses............................ $1,301,061.58</p> <p>.$1,316,925.33</p> <p>Liabilities........„.................... 5,740.57</p> <p>DIRECTORS.</p> <p>Timothy O’Leary, Jr., president, of O’Leary Bros. & Co., 301 Wood St., Pittsburg, Pa.</p> <p>William M. Brinker, vice president, wholesale grocer, Wilkinsburg, Pa.</p> <p>D. O. Ihmsen, secretary.</p> <p>A. J. Montgomery, Red Lion Sale Stables, Pittsburg, Pa.</p> <p>S. J. Fleming, real estate and loans, Pittsburg, Pa.</p> <p>■J. J. O’Leary, of Monongahela Window Glass Works, Pitts-burg and Monongahela City, Pa.</p> <p>To this offer counsel for plaintiff object for the reason that the circular now offered.contains a statement bearing date January 1, 1892, almost a year after any claim against this defendant is made by the receiver, and the circular offered is therefore incompetent, irrelevant and inadmissible.</p> <p>The Court: The statement offered is not a sworn statement and is not competent evidence. The objection is therefore sustained and the offer excluded, to which the defendant excepts and at his request an exception is noted and bill sealed.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $500.85. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2) in giving binding instructions for plaintiff.</p>

Appeal, No. 194, Oct. T., 1902, by Gideon Rupp et al., from order of C. P. Lebanon Co., Dec. T., 1901, No. 115, quashing appeal from award of viewers in the matter of the petition and report of viewers to assess damages for the taking of county property by South Lebanon Township School District. Rule to quash appeal.

Appeal, No. 196, Oct. T., 1902, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1900, on verdict for plaintiff in case of Joseph Wolfe and Sarah Wolfe v. Pennsylvania Railroad Company. Trespass to recover damages for death- of plaintiff’s son. Before Walter, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $864. Defendant appealed.

<p>Appeal, No. 119, Oct. T., 1902, by defendant, from judgment of C. P. Clearfield Co., May T., 1901, No. 220, on verdict for plaintiff in case of Jerome R. Dixon v. George B. Breon.</p> <p>Assumpsit for lumber sold to defendant.</p> <p>At tbe trial it appeared that plaintiff claimed to recover not only for lumber actually delivered but also for lumber which had been cut, but was destroyed by fire before delivery, and also for work and labor done. The court refused to allow for the lumber not delivered.</p> <p>Defendant made the following offer:</p> <p>' It is proposed to prove by defendant himself that he is the party of the first part named in a contract of February 19,1900, and that at the time when he bought the lumber mentioned in said contract that he had made contracts for sale of lumber which he expected to supply thereupon and that he made other contracts for the sale of the same lumber that he purchased from the plaintiff and which he agreed to deliver the witness (the defendant) on the cars at Penfield and Winterburn ; that said contracts were entered into by him on the strength of this purchase and that subsequently he was compelled to go into the market and purchase lumber to fill the contracts he had made in order to avoid liability for failure to perform his contracts. That he did so purchase lumber at the lowest prices that he could and thus filled the contracts he had made for the sale of the lumber covered by the contract of February 19, 1900. •</p> <p>That it is proposed to show that there was no place at Pen-field where other lumber could be obtained to supply the lumber bought from the plaintiff, and to show where and from whom he bought the lumber and the price he was compelled to pay for the same classes and kinds of lumber he had bought under the contract sued on.</p> <p>2. To show by the witness that no lumber was ever delivered on the cars at Penfield from the Mountain Run part of the contract.</p> <p>3. This evidence is offered to show the loss and damage sustained by the defendant because of the nondelivery of the lumber purchased from the plaintiff and to set off said damage in this case against plaintiff’s claim.</p> <p>Objected to by plaintiff:</p> <p>1. As incompetent and irrelevant.</p> <p>2. Because it appears by the uncontradicted testimony that the Mountain Bun and Winterburn logs in question were burned by a forest fire caused by a terrible strong wind spreading fire from some place unknown to the witnesses, and thereby it was rendered impossible to comply with the terms of the contract in that regard.</p> <p>It is admitted by counsel for plaintiff and defendant, that the plaintiff and defendant were contracting with reference to a certain lot of logs located on certain particular lands which were to be cut from the tree, sawed and the lumber delivered on the cars at Penfield, the lands being situated on what is known as Mountain Run ; that while the plaintiff was proceeding with the performance of his contract these 265,000 feet of logs were destroyed by a forest fire over which the plaintiff and defendant had no control and without fault on the part of either, and that no other lumber manufactured from the logs on Mountain Run Branch was delivered to the defendant and that all the logs covered by this contract from Mountain Run were destroyed.</p> <p>The Court: It appearing that the subject-matter of this contract was a certain lot of logs on a particular tract of land and that they were subsequently destroyed by fire without fault on the part of the plaintiff and in a manner over which he had no control, it seems to us that it would be impossible for him to perform the contract within the contemplation of the parties at the time it was made, and that he is therefore relieved from the payment of damages by the reason of its nonperformance, and the objections are sustained, testimony excluded and exception noted to the defendant. [1]</p> <p>Verdict and judgment for plaintiff for $1,424.11. Defendant appealed.</p> <p>Error assigned was ruling on evidence, quoting the bill of exception.</p> <p>When the law creates a duty or charge and the party is disabled to perform it without any default in him, and hath no remedy over, then the law will excuse him; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract: Paradine v. Jayne, Aleyn, 26; Dermott v. Jones, 2 Wall. 1; Hand v. Baynes, 4 Wharton, 204; Hadley v. Clarke, 8 T. R. 259; Company of Proprietors of the Bricknock Canal Navigation v. Pritchard, 6 T. R. 750; Hoy v. Holt, 91 Pa. 88; Adams v. Nichols, 36 Mass. 275; School Trustees v. Bennett, 27 N. J. L. 513; Cutcliff v. McAnally, 88 Alabama, 507 (7 So. Repr. 331); School District v. Dauchy, 25 Conn. 530; Tompkins v. Dudley, 25 N. Y. 272; Ward v. Hudson River Bldg. Co., 125 N. Y. 230 (26 N. E. Repr. 256); Jones v. Anderson, 82 Alabama, 302 (2 So. Repr. 911); Kinports v. Breon, 193 Pa. 309; Moyer & Morgan v. Kirby, 2 Pearson, 64; Magaw v. Lambert, 3 Pa. 444; Fisher v. Milliken, 8 Pa. 112; Dyer v. Wightman, 66 Pa. 425; Bussman v. Ganster, 72 Pa. 285; Bradley v. McHale, 19 Pa. Superior Ct. 300.</p> <p>The contractor (Dixon) was bound to provide against liability for nonperformance or inability to perform because of the destruction of his logs by fire: Switzer v. Pinconning Mfg. Co., 59 Mich. 488 (26 N. W. Repr. 762).</p> <p>A wood’s fire such as is covered by the admission of the parties in this case does not constitute an act of God.</p> <p>When it inherently appears from the contract to have been known to the parties to the contract and contemplated by them when it was made that its fulfillment would be dependent upon the continuance or existence, at the time for performance, of certain things or conditions essential to its execution, then in the event they cease, before default to exist or continue and thereby performance becomes impossible without his fault, the contractor is, by force of the implied condition to which his contract is subject, relieved from liability for the consequences of his failure to perform: Stewart v. Stone, 127 N. Y. 500 (28 N. E. Repr. 595); Walker v. Tucker, 70 Ill. 527; Wells v. Calnan, 107 Mass. 514; Penna. R. R. Co. v. Fries, 87 Pa. 234; Howell v. Coupland, L. R., 1 Q. B. Div. 258; Anderson v. May, 50 Minn. 280 (52 N. W. Repr. 530).</p>

Appeal, No. 61, April T., 1903, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1901, No. 1285, on verdict of guilty in case of Commonwealth v. Charles E. Schmunk. Indictment-for obtaining goods under false pretense. Before Erazer, J. At tbe trial it appeared that the defendant in October, 1899, sent to the Western Electric Company a statement of the financial condition of the Miller Electrical Maintenance ¿¡ompany of Pittsburg, of which he was treasurer.

Appeal, No. 183, Oct. T., 1902, by defendant, from judgment of C. P. Lancaster Co., May T,, 1902, No. 59, on case stated in suit on Congregation Shaarai Shomayim v. S. R. Moss. Case stated to determine title to land. The case stated was as follows: And now, May 7, 1902, it is hereby agreed by and between the parties, plaintiff and defendant above mentioned, that the following case be stated for the opinion of the court in the nature of a special verdict: 1.

Appeal, No. 24, Oct. T., 1902, by the- State Asylum for the Chronic Insane of Pennsylvania, from judgment of C. P. Berks Co., March T., 1900, No. 32, on verdict for plaintiff, in case of Kate S. Filbert v. Henry M. Dechert, Trustees, and the State Asylum for the Chronic Insane of Pennsylvania. Trespass by. lower riparian owner against upper riparian owners to recover damages for alleged unlawful diversion of water.

Appeal, No. 120, Oct. T., 1902, by trustees of Lancaster cemetery from decree of O. C. Lancaster County, dismissing exceptions to report of auditors in the Estate of Catharine H. Long, Deceased. Exceptions to report of Jobn E. Malone and John Nauman, auditors. From the record it appeared that the question involved was whether the collateral inheritance tax could be levied upon a legacy of $4,000, as to which testatrix directed as follows: “Item.

Appeal, No. 208, Oct. T., 1902, by defendants, from decree of C. P. Berks Co., Equity Docket, 1902, No. 809, on bill in equity in case of Reading v. Berks County, Lower Alsace Township and John R. Folk, Tax Collector. Bill in equity for an injunction to restrain the collection of a tax.

Appeal, No. 209, Oct. T., 1902, by defendant, from judgment of Q. S. Blair Co., on verdict of guilty in case of Commonwealth v. Lemuel Stambaugh.

<p>Appeal, No. 131, Oct. T., 1902, by Virginia C. Welsh, from order of Q. S. Delaware Co., Dec. T., 1899, dismissing an appeal from a borough ordinance in Appeal of Virginia C. Welsh.</p> <p>Appeal from an ordinance of the borough of Yeadon.</p> <p>Johnson, P. J., filed the following opinion:</p> <p>This is an appeal from an ordinance of the borough of Yeadon granting permission to Joseph L. Carpenter to use a tract of land in the borough of Yeadon for cemetery purposes. Quite a number of interesting questions affecting the validity of this ordinance have been suggested and argued. After a careful consideration of the case I am convinced that they cannot be disposed of in this proceeding.</p> <p>The act of assembly under which this appeal is taken is that only “ persons aggrieved ” may appeal. It is contended that the appellants are not persons “aggrieved,” within the meaning of the statute, and that the appeal should be dismissed. I am of the opinion that this objection is well founded.</p> <p>A person aggrieved must be one whose private property is specially affected as distinguished from the public generally.</p> <p>From the testimony taken I am of the opinion that the appellants are not specially affected as distinguished from the general public, and are therefore not aggrieved within the meaning of the statute under which the appeal is taken and therefore do not have the right to appeal. Appeal dismissed.</p> <p>Error assigned was order dismissing the appeal.</p>

<p> Deed—Delivery—Recording—Presumption. </p> <p>The presumption from the recording of a deed and its possession by a grantee is that it has been duly delivered, but if it was not delivered by the grantor during his lifetime, but found after his death by the grantee and then taken possession of and recorded, it is not a sufficient delivery, and the deed will not be operative to pass title in the grantee.</p> <p> Deed—Surrender—Recording—Fraud—Equity—Married women. </p> <p>Where a married woman takes a deed of land, pays part of the purchase money, enters upon possession with her husband, but subsequently surrenders possession to the grantor, gives back the deed and receives what she had paid on account of the purchase money, she cannot, after the death of the grantor many years afterwards, by surreptitiously taking the deed from amongst the grantor’s papers and recording it, secure any title to the land. In such a case the real owner of the land has a standing in a court of equity to compel a surrender and cancelation of the deed.</p> <p>As a general rule courts of equity have jurisdiction to relieve against every species of fraud. The jurisdiction is expressly given by the Act of June 13, 1810, sec. 39, P. L. 666. Where the remedy at law is not full or adequate, the jurisdiction of equity is undoubted.</p> <p> Married women—Estoppel—Fraud. </p> <p>A married woman should be held to the observance of that good faith in her dealings with the world to which others are bound ; her protection is for the prevention of fraud; she should not thereby be enabled with impunity to defraud others.</p>

<p> Public officers—County treasurer—Compensation—Liquor license. </p> <p>Moneys collected by a county treasurer for the use of a city which represent liquor license-fees, must be paid over by the treasurer to the city without any .deduction of fees for services rendered.</p> <p> Public officers—County treasurer—County auditors—Assumpsit—Jurisdiction. </p> <p>A municipality may maintain a common-law action against the county treasurer for moneys unlawfully retained by him out of liquor license fees as compensation, although the county auditors have settled the treasurer’s account and allowed him credit for the fees l’etained.</p>

Appeal, No. 115, Oct. T., 1902, by Edward J. Brophy, on judgment of C. P. No. 2, June T., 1901, No. 2179, for want of an affidavit of defense in case of Commonwealth to use of Dora Lazarow and Isaac Lazarow v. Peter Bangs, Edward J. Brophy and J. Burrwood Daly. Judgment entered for want of an affidavit of defense. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment prematurely.

<p> Cemeteries—Burial lots—Care of lots—Cemetery companies—By-laws. </p> <p>It is a reasonable regulation of a cemetery company that lot-owners who desire to have their lots and graves sodded, grass cut, and flowers and shrubbery planted, trimmed or removed, shall have the work done under the direction of the superintendent at moderate prices, and that no person shall be permitted to enter the cemetery to do such work at the instance of individual lot owners. A gardener in the employ of individual lot owners, but without contractual relation with the cemetery company, has no standing to allege that the regulation is invalid because it is in restraint of trade and so against public policy-.</p>

<p> Justice of the peace—Certiorari—Summary conviction—Sunday law. </p> <p>A special allowance from the'court of common pleas must be had for a writ of certiorari to a justice of the peace or alderman in a summary conviction for a violation of the Sunday law.</p>

<p>Appeal, No. 203, Oct. T., 1902, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1902, No. 1809, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert A. Patton v. Frederick;S. BAx.</p> <p>Rule for judgment for want of sufficient affidavit of defense.</p> <p>Error assigned was order making absolute rule for judgment for want of sufficient affidavit of defense.</p>

Appeal, No. 218, Oct. T., 1902, by defendant, from order of C. P. No. 3, Phila. Co., June T., 1895, No. 516, dismissing exceptions to referee’s report in case of William Jenks Fell, Trustee, v. John F. Betz & Son, Limited. Exceptions to report of Richard C. Dale, Esq., referee. The opinion of the Superior Court states the case. Errors assigned were in dismissing exceptions to report of referee.

<p>Appeal, No. 216, Oct. T., 1902, by John DeHaven Hanbest et al., from decree of O. C. Pbila. County, July T., 1878, No. 127, sustaining exceptions to adjudication in estate of Thomas Passmore Hanbest, deceased.</p> <p>Exceptions to adjudication of Penrose, J.</p> <p>Hanna, P. J., filed'the following opinion:</p> <p>The trustee was appointed July 19, 1890, and from all the facts before us would seem entitled to the moderate sum requested by him as compensation out of the principal estate liberated from the trust and about to be distributed.</p> <p>The objection, however, interposed by the distributees to this allowance to the trustee “ was mainly, if not altogether, based upon the action of the accountant with regard to the ground rent of $3,000 per annum already referred to.” The facts with regard to the ground rent are that, in accordance with the directions contained in the will of the testator, a lot of ground owned by him was sold and conveyed by the executors, reserving thereout an annual ground rent of $3,000, or six per cent per annum upon $50,000. In 1885, the death of one of the annuitants having occurred, an application was made to the court by the distributees for distribution of a portion of the estate, for the reason that the remaining assets of the trust were sufficient to secure payment of the annuities to the surviving annuitants, and, consequently, the property sought to be distributed could with safety be exonerated from the lien of the annuitants. But the application was resisted by the then surviving trustee, the present trustee being his counsel; and the master and examiner, to whom the petition for exoneration was referred, reported adversely to the application, for the reason chiefly that in his opinion the ground rent referred to was insufficiently secured, and if retained as one of the investments held to protect the annuities from the risk of its depreciation in value, the principal of the trust estate might be reduced, and the income correspondingly lessened.</p> <p>The trustee haying subsequently died, his son, the present accountant, was selected by the parties interested, and appointed trustee in his place and stead, as before stated, in July, 1890. The ground rent of $3,000 per annum was accordingly received by the new trustee as one of the investments of the estate. The annual interest or rent continued to be paid by the owners of the land until in March, 1892, not quite two years subsequent to the appointment of the trustee, the accountant, when they declared to him that unless he agreed to reduce the rate of interest upon the ground rent from six to five per cent per annum, they would pay to him the principal sum of $50,000, and thus extinguish the ground rent.</p> <p>The trustee, upon consideration of the proposal, finally agreed to reduce the rate of interest to five per cent, and accept any portion of the principal at any time. Why the trustee complied with the demand of the owners of the land appears from his testimony, wherein he states he considered it for the best interests of the estate to make the reduction; and as “ there was no state tax to pay on the ground rent,” he “ considered a five per cent ground rent was as good as a mortgage of five and four tenths, which was then the prevailing rate.”</p> <p>No reason appears to doubt the entire good faith of the trustee. It does not appear that the owners of the land ever tendered to him the entire principal of the ground rent or any part thereof. But it is now urged that, because he did not refuse to reduce the annual ground rent and insist upon payment of the- principal thereof, and that seven years previously, while acting as counsel for the then trustee, he had objected to the exoneration of the portion of the trust estate sought to be distributed, and maintained that the remaining assets of the estate, including the ground rent, were insufficient to secure the payment of the remaining annuities, for the reason that the ground rent was of doubtful value and security, it is such evidence of gross negligence and mismanagement that he should be deprived of commissions upon the corpus of the estate now to be paid to the residuary legatees, and to which it is conceded he would otherwise be entitled.</p> <p>We must, however, differ from this view. In agreeing to the reduction of the ground rent and accepting the principal in installments, it was within the discretion of the trustee, and he was acting within the line of his personal responsibility. Whatever he may have done in the past in his representative capacity was wholly outside of his duty and discretionary power as an individual fiduciary. In one capacity he was merely the mouthpiece of another; while in the other he was the principal, to be guided by his own judgment and discretion. And even if it be conceded, as remarked by the auditing judge, “ it would however, in view of the character of the security, have been wiser to have accepted the principal, even at the risk of realizing not more than five per cent or less from interest on rein-vestments, since in that case the principal would have been actually realized, and thus secured beyond all possibility of depreciation, while as it is, payment of the principal of this ground rent cannot be demanded from the owner of the lot, and if the rent itself is offered for sale it is fair to assume that the loss will be considerable,” and, as further remarked by him, the parties interested were not consulted by the trustee, “ and they complain that not only were they injured by the reduction of income, but that, as a further consequence, they were prevented from obtaining at that time a distribution of principal which the improved condition of the estate as compared with what it was at the time ” of the adverse report of the master and examiner “would have entitled them to,” still, at most, the action of the trustee cannot be considered a flagrant breach of trust to be followed either by surcharge with the amount of interest or ground rent he abated to the owner of the ground, or the forfeiture of compensation for faithful conduct and meritorious services in the care and management of the trust. At the most, it was an error or mistake of judgment, and for this he should not be deprived of the usual commissions allowed a faithful trustee: Dugan’s Estate; 18 W. N. C. 39; Page’s Estate, 18 W. N. C. 456.</p> <p>Only faithless trustees are to be visited with a loss of .coin-missions ; where they are honest, and their default is the result of ignorance or mistake alone, they are not to be punished: McMenamin’s Appeal, 41 Legal Int. 226. Nor, except in ease of gross negligence or fraud: Sourin’s Estate, 11 Phila. 14.</p> <p>And where an executor had mingled the trust account with his own, but no loss occurred, and it was merely an error of bookkeeping, he was allowed commissions: Williamson’s Estate, 7 W. N. C. 82.</p> <p>In Ahl’s Estate, 129 Pa. 26, a trustee having performed valuable services was not deprived of his commissions, though he mingled the trust funds with his own, and was reluctant to give the master the benefit of his aid in adjusting the trust estate. See also Patrick’s Estate, 162 Pa. 175, where it was held that although, through a misconstruction of the will by a trustee, he had put claimants to litigation to establish their rights, he having acted in good faith, would not necessarily be thereby deprived of his commissions. And, again, in the late case of Waddell’s Estate, 196 Pa. 294, the well settled rule that an executor will not be surcharged for loss that occurs through a mere error of judgment is reiterated.</p> <p>The result of all the cases is that the courts are lenient and generous towards trustees who perform their duties honestly and faithfully, and are never disposed to deal harshly with what is clearly a mistake or error of judgment.</p> <p>In the present case, the trustee has managed the trust according to his best judgment and professional skill; his many accounts have been audited and confirmed without objection; he has rendered services and labor connected with the care and management of the trust estate irrespective of the perfunctory duties of an accountant, and the objections now made to the allowance of the compensation claimed by him out of the corpus of the estate we think do not afford a sufficient reason to deprive him of his compensation, and, a fortiori, where it appears that the ground rent has never befen paid off, but was after-wards distributed to the parties interested at its full value, who thereupon claimed and have since been paid the ground rent at six per cent per annum.</p> <p>For these reasons we think the exceptions should be sustained.</p> <p>A final decree of distribution will be prepared by counsel in accordance herewith.</p> <p>Penrose, J., filed a dissenting opinion as follows :</p> <p>A principle recognized as fundamental since the earliest history of the commonwealth, viz: that a fiduciary is not liable for loss arising from an honest error of judgment, scarcely requires to be supported in the present day by elaborate argument or copious citation of authorities perspicua vera non sunt probanda; and if the auditing judge could have committed the egregious blunder of overlooking it, the mere statement would have been enough to sustain exceptions to his ruling. But as he understands the facts, the mistake complained of by the distributees was not of this character.</p> <p>The charity created by the will having failed by reason of the death of the testator within a calendar month of its execution, the residuary estate passed under the intestate laws to his next of kin and heirs. The persons thus entitled, who were very numerous, appear to have been in humble circumstances, and, not unnaturally, were desirous of having the estate, which was of considerable size, distributed; but the will gave various annuities, which were a charge on both personalty and realty, so that distribution could only be had by a proceeding under the act of 1853, for exoneration.</p> <p>Such a proceeding was instituted in 1885. It was resisted by the then trustees, for whom the present accountant was counsel, on the ground that one of the principal assets—a ground rent, the principal of which was $50,000—was insufficiently secured, and that it could not be relied upon to protect the interests of the annuitants. This objection was sustained by the master to whom the application was referred, who, after an. extensive discussion of the subject, -stating in detail the reasons for condemning the ground rent, reported with much reluctance against the distribution asked for.</p> <p>A few years later, when counsel so opposing exoneration has himself become trustee, the market company owning the land bound by the ground rent demanded a reduction of the rent from six per cent to five per cent, declaring that if this was not acceded to, the principal would be paid in cash; and the accountant, having, of course, full knowledge of all that had taken place under the application for exoneration, deliberately refused to accept $50,000, which would have permitted the earnestly sought-for distribution, and agreed to retain at a reduced rate of interest, which had been, and still was, the only obstacle in the path of exoneration, and all of this was done without any communication with the owners of the estate or their counsel, whose first knowledge of it was. several jmars later, when some of the annuitants having died, there was another proceeding for exoneration, and the ground rent itself was liberated though the opportunity of realizing the principal has probably gone forever. By reason of this the estate remained in the control of the trustee, subject to commissions and charges, and the owners received, through his hands, only the net income, instead, as he knew they otherwise would have, done of a distribution of principal, freed from all trust, with the deductions incident.</p> <p>The auditing judge, though he refrained from characterizing in appropriate terms what was thus done, was, and still is, unable to regard it as “ a mere error of judgment,” and for that reason declined to allow compensation for retention of principal.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 217, Oct. T., 1902, by defendant, from judgment of C. P. No. 4, Philadelphia County, March T, 1899, No. 49, on verdict for plaintiff in case of Grasselli Chemical Company v. Biddle Purchasing Company. Assumpsit for goods sold and delivered. Before Attdenrted, J. . At the trial it appeared that the goods were ordered bj M. W. Boley, who had been agent for the defendant. The defendant claimed that the goods were ordered after Boley’s agency had been revoked.

Appeal, No. 14, Jan. T., 1903, by Lafayette Creasy, Sarah H. Orange and S. C. Jayne, from decree of O. C. Columbia Co., Dec. T., 1901, No. 25, sustaining exceptions to auditor’s report in estate of Nathaniel L. Campbell, deceased. Exceptions to report of William Chrisman, Esq., auditor. The opinion of the Superior Court states the case.

Appeal, No. 15, Jan. T., 1903, by J. B. Robinson, from decree of O. C. Columbia Co., Sept. T., 1901, No. 14, sustaining exceptions to auditor’s report in estate of N. L. Campbell, deceased. Exceptions to report of William Cbrisman, Esq., auditor. The facts are stated in the opinion of the Superior Court. Errors assigned were in sustaining exceptions to auditor’s report.

Appeal, No. 38, Jan. T., 1903, by Rose Divvers and George Lazarus, executors of Hannah J. Larraway, deceased, from decree of O. C. Luzerne County, sustaining exceptions to adjudication in estate of James JDivvers, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. .

<p> .Promissory notes—Accommodation notes—Want of consideration—Notice. </p> <p>The making of an accommodation note is a loan of the maker’s credit, ■with no restriction on its use. Hence, in an action on such note by an indorsee for value before maturity, want of consideration, even though known to the indorsee on receiving the note, is no defense.</p> <p>' In an action upon a promissory note, where the affidavits of defense leave it uncertain whether the note in suit was discounted for the maker or for the indorser, it is immaterial whether the plaintiff who had discounted the note for value had notice or not of the fact that it was an accommodation note. In such a case the maker is liable to the plaintiff for his own debt if the note was discounted for him, and as an accommodation maker, if it was discounted for the indorser.</p> <p> Promissory notes—Parol agreement—Evidence. </p> <p>In an action by a bank against the maker of a promissory note which the bank had discounted, parol evidence is inadmissible of an alleged • agreement that the bank would not look to the defendant for the note, but would collect it from the indorser,</p> <p> .Promissory notes—Payment at bank—Evidence. </p> <p>In an action upon a promissory note, it is immaterial as a defense that when the note matured the maker had on deposit in the bank at which it was payable an amount sufficient to meet it, unless this was lost through failure to present the note for payment.</p>

<p>Land law—Boundaries—Calls—Lake as a boundary—Survey— Warrants —Evidence.</p> <p>In an action of ejectment where the defendant’s case depends on his establishing the existence of vacant land between the west line of a survey and a lake, and the survey and warrant offered in evidence by the defendant himself shows a beginning of the survey at its southwest point on the lake itself, and a final call for a stake on the edge of the lake at the northwest corner, and the defendant offers no evidence whatever of any marks or monuments on the ground to establish a west line other than the bank of the lake, a verdict and judgment for the plaintiff will be sustained.</p> <p>Where the appellant in a judgment in ejectment fails to print the warrant or return of survey which he offered in evidence, the appellate court will assume that what the court below said in regard to the warrant and survey was true.</p> <p> Ejectment—Return of writ—Evidence. </p> <p>Where the defendant in an ejectment testifies himself that he was in possession of the premises in dispute at the institution of the suit and the service of the writ, it is harmless error, if error at all, for the court to permit the return of the writ of ejectment sworn to by the deputy sheriff to be read in evidence.</p>

Appeal, No. 52, Jan. T., 1903, by plaintiff, from order of C. P. Luzerne Co., Eeb. T., 1897, No. 114, making absolute rule on plaintiff to pay counsel fees, in case of Daniel F. Seybert v. Salem Township. Rule on plaintiff to show cause why $500 should not be paid out of money in the hands of his present attorneys, John T. Lenahan and. James L. Lenahan to T. it. Martin, his former attorney, for his services as attorney. The facts appear by the opinion of the Superior Court.

<p> Statute of limitations—Fraud—Discovery of fraud—Evidence. </p> <p>In an action of assumpsit begun in 1898 it was not clear whether the cause of action originated in 1852 or 1857. The evidence tended to show that plaintiffs and defendant, who were brothers, met in 1857 after the death of their mother, and made an amicable partition of their father’s and mother’s estate. Defendant took his share. In 1898, plaintiffs discovered a deed from defendant to his mother for his interest in the land. The deed could have been easily discovered amongst the mother’s effects, if any search had been made immediately after her death. Defendant remained silent as to the transaction of 1852, and apart.from this did nothing to secrete the transaction. In 1898, two of the plaintiffs produced the deed to defendant, and testified that he promised to pay back the money, but it was uncertain whether the defendant referred to the money received by him in 1852, or the money received in 1857. Held, that the trial judge properly instructed the jury that both the evidence and the alleged fraud were insufficient to overcome the plea of the statute of limitations.</p>

<p> Executors and administrators—Appeals—Parly aggrieved. </p> <p>Where an executor is merely the custodian of the fund, with no interest in its distribution, and there is no question as to the amount to be accounted for, he cannot be affected by any decree of distribution, and he lias therefore no ground for appeal; but where there is a contention respecting the amount which the executor should pay to the parties entitled, and if the decree requires a payment beyond his legal liability, he is aggrieved thereby and has a right to appeal.</p> <p> Executors and administrators—Tender—Payment—Interest. </p> <p>Where an executor having in his hands the requisite amount, makes an offer of payment, which offer is refused, but does not subsequently keep the tender good by retaining in his hands an amount sufficient to make the payment, but uses the money for other purposes, he will be liable for interest when he finally makes payment.</p>

<p>Appeal, No. 5, Jan. T., 1903, by defendants, from order of C. P. Lackawanna Co., Nov. T., 1899, No 218, discharging rule to set off judgment against judgment in case of John J. Fahey, Sheriff to use of Scranton Knitting Company, v. John J. Howley and Anthony J. Howley.</p> <p>Assumpsit on a replevin bond.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p> <p>Judgments are set off against each other by the inherent powers of the court immemorially exercised: Hazlehurst v. Bayard, 3 Yeates, 152; Jacoby v. Guier, 6 S. & R. 448; Ramsey’s Appeal, 2 Watts, 228; Burns v. Thornburgh, 3 Watts, 78; Besa v. Lawson, 1 Miles, 11; Horton & Heil v. Miller, 44 Pa. 246; Skinner v. Chase, 6 Pa. Superior Ct. 279; Aber’s Petition, 18 Pa. Superior Ct. 110.</p> <p>The right of set-off can only be waived by express contract: Henniss v. Page, 3 Wharton, 275; Reed v. Penrose, 36 Pa. 214; Lloyd’s App., 95 Pa. 518.</p>

<p>Appeals—Paper-books—Bill of exceptions—Certificate of judge—Evidence—Orphans' court—Rule 6 of Superior Court,</p> <p>Where on an appeal from the orphans’ court, the paper-book of appellant discloses the want of any bill of exceptions to bring up the evidence, and also the want of a certificate by the judge as to the correctness of the evidence taken before him, the appeal will be quashed. In such a case a mere certificate by the court stenographer of the correctness of the proceedings is not sufficient.</p>

<p> Sales—Executed and executory sales—Warranty—Gaveat emptor. </p> <p>There is no implied warranty iu executed sales except that of title; nor is there in any case where the sale is made upon inspection by the buyer. In executory sales the seller warrants that the article shall be of the kind ordered and merchantable in quality.</p> <p>When the contract is executory, as it always is when a particular article is ordered without being seen, from one who undertakes it shall be of a given quality or description, and the thing sent as such is never completely accepted, the buyer is not to keep it, or pay for the article on any terms, although no fraud was intended by the vendor.</p> <p>Where a person orders a wagon from a trade catalogue described by a particular number with a capacity for a certain number of passengers, and the purchaser, in a suit for the price of the wagon, avers in his affidavit of defense that the wagon was not of the style which he had ordered by number in the catalogue, but an entirely different wagon, that the wagon did not stand the strain of the number of passengers specified in the catalogue, and that he immediately gave notice of these facts to the plaintiff, and offered to return the wagon, the defendant sets forth the elements of good defense, and is entitled to a jury trial.</p>

<p>Appeal, No. 15, Feb. T., 1903, by defendant, from order of C. P. Sullivan Co., May T., 1902, No. 88, overhauling demurrer to statement in case of Colley Township Overseers of the Poor v. Sullivan County.</p> <p>Demurrer to statement.</p>

<p> Master and servant—Contract—Beneficial fund. </p> <p>Where an employer enforces a rule that each of his employees shall be charged with fifty cents per month out of his wages for a beneficial fund, and one of the employees during the first month of his employment protests against the charge, but subsequently continues in his employment for forty-five months, receipts each month for his wages in full, and accepts allowances from the beneficial fund, the employee cannot recover in an action at law any part of the fund from his employer.</p>

<p>Appeal, No. 18, Feb. T., 1903, by plaintiffs, from order of C. P. Lycoming Co., March T., 1902, No. 33, making absolute a rule to open a judgment in case of Emil Batzle, Trustee, and Minnie M. Trumbower, cestui que trust, v. Allen C. Trumbower.</p> <p>Rule to open judgment.</p> <p>Tlie facts appear by the opinion of the court.</p> <p>Error assigned was the order of the Superior Court.</p>

<p>Appeal, No. 1, Oct. T., 1902, by plaintiff, from judgment of O. P. Franklin Co., Feb. T., 1901, No. 98, on verdict for defendant in case of Samuel Needy v. "Western Maryland Railroad Company.</p> <p>Appeal from judgment of justice of the peace. Before John Stewart, P. J.</p> <p>Tlie facts are stated in tlie opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p> <p>It has long been settled, that in Pennsylvania a common carrier may not limit its liability for negligence. In so far as the special contract entered into by Need}'- with the defendant attempts to provide for limitation of liability in case a loss occurs through the defendant’s negligence, it is void: Farnham v. Camden, etc., R. R. Co., 55 Pa. 53; American Express Co. v. Sands, 55 Pa. 140; Davenport v. Penna. R. R. Co., 10 Pa. Superior Ct. 47.</p> <p>That a presumption of negligence arises against a carrier under special contract from the loss of goods during the course of transportation is held in these cases': Phœnix Pot Works v. Pittsburg, etc., R. R. Co. 139 Pa. 284; Buck v. Penna. R. R. Co., 150 Pa. 170; N. Y. Cent., etc., R. R. Co. v. Eby, 22 W. N. C. 92.</p> <p>Since it is proper to prove a custom which relieves the carrier of its common-law liability, we think the plaintiff should have been permitted to prove in the court below, a custom which would have relieved him of some of the duties imposed upon him by his contract with the carrier: McMasters v. Penna. R. R. Co., 69 Pa. 374.</p> <p>We submit that the case at bar is ruled by the case of Penna. R. R. Co. v. Raiordon, 119 Pa. 577.</p>

<p> Corporations—Mortgage—Scrip certificates—Estoppel- </p> <p>Where scrip certificates are not secured by a corporation mortgage, but the holders thereof are entitled to have them converted into bonds, which will be secured by the mortgage, and such holders, who are also holders of bonds, intervene in' foreclosure proceedings and permit a decree to be entered and a sale to be made, without demanding a bond in exchange for their scrip, or asserting in any way their right to the security of the mortgage, except in respect of the bonds held by them, they will not be permitted to participate in the fund for distribution as if their scrip had been converted into bonds under the equitable rule that equity regards that as done which ought to have been done. In such a case the nonaction of the scrip holders may have influenced the other bondholders in their bidding or not bidding at the sale.</p>

<p>Insurance—After insurance—Proofs of death— Waiver.</p> <p>Where a policy of life insurance requires that proofs of death shall be made upon blanks to be furnished by the company, and it appears that demand was made upon the company on the day after the insured’s death, and this demand was refused on the sole ground that the policy had lapsed because of nonpayment of premiums, and it also appears that the company had neither furnished nor offered to furnish the blanks, the company cannot demand binding instructions in favor of itself upon the ground that proofs of death were not furnished.</p> <p> Insurance Revival of policy—Waiver of conditions as to health. ■ </p> <p>Where a policy of life insurance contains a provision that if the policy should become void in consequence of nonpayment of premium it might be revived “ upon payment of all arrears, and the presentation of evidence satisfactory to the company of the sound health of the insured,” and it appears that after a policy had become void, an amount was paid to the company sufficient not only to cover premiums in arrears, but also future premiums to a date beyond the death of the insured, and the company retained this money for five weeks until the death of the insured, without requesting any proof as to the soundness of his health, it is not error for the court to submit to the jury the question whether the company had reasonable time within which to determine what its action would be, and whether the retention of the money did not indicate a determination to revive the policy. In such a case the beneficiary of the policy when the money was paid was under no obligation to surrender the policy so that the revival might be indorsed upon it.</p>

<p> Telegraph companies—Eminent domain—Damages—Trespass—Petition for viewers. </p> <p>Where a telegraph company tortiously enters upon land without payment of damages to the owner, or securing the same, and without any agreement with the owner, erects its poles on the land, and after the expiration of several years files a petition for the appointment of viewers to assess the damages sustained by reason of the location and construction of its line, the damages are to be assessed not as of the date of the original entry, or as belonging to the owner at that time, but as of the date of the filing of the petition, and as belonging to the person who is owner of the land at the time the petition is filed. In such a case the damages are to be assessed from the time when the greatest injury is imposed upon the lands, and that is when the company first indicates by lawful proceedings its intention to impose a permanent servitude. Por the trespass up to the time of filing the petition, the owner has his remedy at law. Por the injury caused by the imposition of the permanent servitude, he has his remedy in the proceedings before the viewers.</p> <p>In the proceedings before the viewers in such a case, the evidence is limited to the condition of the lands at the time of the filing of the petition.</p> <p>In a proceeding before viewers to assess damages to land by reason of the erection of a telegraph line on a highway, if there is evidence that the value of the land as affected by the telegraph line was less than its value as unaffected by the line, such evidence must be submitted to the jury, and it would be error for the court to limit the recovery to nominal damages.</p> <p> Eminent domain—Damages—Interest. </p> <p>In condemnation proceedings it is error for the court to instruct the jury that they may add interest, although the instruction is qualified as follows: “ not as damages, but by way of compensation.” In such a ease the jury should be instructed that they may add such sum to the damages as in their judgment will compensate for the delay in paying it, not to exceed legal interest, and that it may be as much less as they see fit to make it.</p>

<p>Appeal, No. 27, Jan. T., 1903, by defendant, from judgment of C. P. Wayne Co., May T., 1901, No. 68, on verdict for plaintiff, in case of Moraldus Calkins v. Postal Telegraph Company.</p>

Appeal, No. 29, Jan. T., 1903, by defendant, from judgment of C. P. Wayne Co., May T., 1901, No. 69, on verdict for plaintiff in case of C. N. Decker and Martha Decker, life tenants, and Floyd Decker, Mortimer Decker and Elizabeth Decker Toms, remainder-men in fee, v. Postal Telegraph Company.

<p>Appeal, No. 28, Jan. T., 1903, by defendant, from judgment of C. P. Wayne Co., May T., 1901, No. 70, on verdict for plaintiff, in case of William J. Huber v. Postal Telegraph Company.</p>

<p>Appeal, No. 31, Jan. T.,' 1903, by defendant, from judgment of C. P. Wayne Co., May T., 1901, No. 72, on verdict for plaintiff, in case of William D. Guinnip, v. Postal Telegraph Company.</p>

<p>Appeal, No. 30, Jan. T., 1903, by defendant, from judgment of C. P. Wayne Co., May T., 1901, No. 71, on verdict for plaintiff in case of George Roberts v. Postal Telegraph Company.</p>

<p>Landlord and tenant—Distress—Bailment— Goods sold on commission.</p> <p>Where the owner of a stock of merchandise places the same in the hands of an agent or trustee, who is also a dealer, in trust to sell at not less than certain fixed pricés, and to account to the owner for the proceeds, the owner reserving the right to terminate the arrangement and take back the unsold goods at any time, if the agent or trustee does not perform his duties satisfactorily to the owner, the compensation of the dealer to be measured by the excess for which he sells the goods over the prices fixed in the agreement, such goods are not subject to distress for rent of the premises on which the agent or trustee conducts the business of selling them; and this is the case although the trustee or agent sells goods of his own, and does not sell goods on commission for any other person.</p>

<p> Road law—Opening streets—•Statute of limitations—Notice. </p> <p>In 1890 councils of the city of Philadelphia passed an ordinance authorizing the opening of a street on the city plan, upon three months’ notice to the property owners. An affidavit of the service of the notice filed of record contained the following: “ And upon each of the following named persons by leaving a copy of said notice at the place of residence with an adult member of the family; Baptist Orphanage with a nurse or servant on premises, Angora.” Subsequently in the same year the city entered its bond. Twelve years afterwards the Baptist Orphanage presented a petition for the appointment of a jury of view to assess damages. The court quashed the petition. On certiorari the record did not disclose that any evidence had been taken as to the fact or the date of the notice. Held, (1) that there was no adjudication by the court below based upon evidence that notice was given more than six years before the petition was filed; (2) that the question of notice was not res adjudicata because (a) the notice required by the ordinance was not essential to the jurisdiction of the court to approve the bond, and (&) the court had no jurisdiction of the orphanage, a corporation, by reason of a copy of the notice having been served on a servant or a nurse; (3) that although the orphanage was estopped by filing its petition to deny that the notice contemplated by the Act of April 21, 1855, P. L. 264, was given, it did not thereby admit that it was given at any particular time, and hence there was no conclusive presumption that it was given six years before the presentation of the petition.</p> <p>The limitation required by the Act of May 23, 1891, P. L. 109, begins to run from the date of the notice contemplated by the Act of April 21, 1855, P. L. 264, and not from the date of the ordinance, nor from the date of the approval of the bond.</p>

<p> Evidence—Receipt—Payment—■Mutual accounts. </p> <p>A receipt for money is prima facie evidence of payment, but is not conclusive and is subject to explanation. When a receipt in full represents the balance found to be due upon an account stated between the parties involving mutual dealings covering a long period of time, it should only be set aside for weighty reasons. Fraud, accident or mistake would be sufficient to avoid such an instrument, but in such a case the cause of avoidance should clearly appear.</p> <p>Where two parties having mutual dealings and accounts covering a long period meet, and after going over the accounts, and making mutual con. cessions, one of the parties gives to the other a receipt in full, and there is no evidence that anything was omitted from, or included in, the receipt through a mistake, or that there had been any error in the calculation, or that any fraud had been committed, the receipt must prevail.</p> <p> Husband and wife—Execution—Husband's death—Trusts and trustees. </p> <p>A trustee who nominally holds property for the use of a wife cannot be held responsible for the loss of it when it is taken in execution for a debt of her husband for which it is legally liable.</p>

<p>Appeal, No. 20, Oct. T., 1902, by-plaintiff, from judgment of C. P. Northampton Co., April T., 1902, No. 40, on verdict for plaintiff in case of Eastern Power Company of Pennsylvania v. Sterlingworth Railway Company.</p> <p>Assumpsit for electric power sold and delivered. Before Schuyler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court admitted in evidence various declarations and statements of the parties made prior to the execution of the contract. This testimony was admitted on the theory that the contract was partly in writing and partly in parol. [1-7] As to this evidence the court at the conclusion of the trial, and apparently after the jury had retired, made the following explanation :</p> <p>[At the outset of the trial objection was made to the competency of some testimony offered for the purpose of proving that this contract was partly in writing and partly in parol. I overruled this objection and admitted evidence to be given of a parol contract contemporaneous with the contract in writing, without giving any reasons why I did so. The objection made to the introduction of the testimony was that there was no allegation that the written contract was made by fraud, accident or mistake, and that, therefore, it was not competent to introduce any evidence to alter or vary the contract in the absence of proof of that kind. I stated at the time, although it was not put on the record, that whilst I recognized the force of the rule invoked by counsel for the defendant, that I did not think that it had an application in the present case, for the reason that after a careful examination of the pleadings I had reached the conclusion that it was admitted by the pleadings that this contract was partly in writing and partly in parol, and that being partly in writing and partly in parol that the rule invoked had no application.] [12]</p> <p>[I wish to put myself upon record as giving the reasons why I consider that the pleadings admit the fact that the contract was partly in writing and partly in parol, and I find it is necessary and proper for me to do that, for this reason, that the allegation in the statement that the contract was partly in writing and partly in parol is denied in the answer, but with a qualification; and, therefore, without giving some reasons it would leave the impression that the question as to whether the contract was in writing or in parol was an open question. Let me read the first paragraph in the statement: “ First, on December 28, 1898, a contract between the plaintiff and defendant was entered into for the furnishing electric current by the former to the latter.” The answer to that allegation is denied. If that denial stood alone it probably would meet with the requirements of our court rules on the subject'; but you follow that same language that is introduced by the formula in this answer, which I deem an exceedingly bad one : li On the contrary two independent contracts were made December 28,1898, one in parol for electric lighting and one in writing for electric power.” Now, you deny that there was a contract for electric power. In the same paragraph in which you deny it you admit it. You admit there were two contracts, one for electric power and one for electric lighting by parol. That is in the same paragraph you deny that there was any contract for electric power or a separate contract for electric power, and admit there was a contract for electric power. I infer from that that you attach some unexplained meaning to the word deny—that when you say deny you don’t mean deny, because here is an inconsistency.] [13]</p> <p>The court charged in part as follows:</p> <p>[It is alleged in the plaintiff’s statement that that contract was partly in writing and partly in parol, that is, that it was partly written and it was partly entered into by word of mouth. Under our rule of court, unless that allegation is specifically denied in the answer to the statement, it is to be taken as admitted, and I now say to you, after examining the answer in its entirety, that that allegation is not specifically denied by the defendant, and, therefore, it is to be treated as admitted, and I instruct you that this contract with reference to furnishing electric power was partly in writing and partly in parol. So far as the written part of the contract is concerned it provides that the power to be furnished should be furnished as required ; and, by implication, it would follow that it would be paid for in the quantity that was required by the defendant. But the allegation of the plaintiff is that that part of the contract was changed by word of mouth, as follows : the allegation in the statement is that that part of the contract was changed by parol, as follows : It was agreed that the plaintiff should supply two motors, and that after the motors were installed the plaintiff would furnish and the defendant would receive and pay for a current of seventy horse power.] [17]</p> <p>[If you find that the contract was not changed by parol you will very easily reach the conclusion that these credits would overbalance the claim of the plaintiff, and the defendant contends that that being so he is entitled to a certificate in his favor for the difference. I say to you as a matter of law that the defendant will not be entitled to any certificate under the circumstances in this case. If you find that the plaintiff has been paid in full, or if you find that the plaintiff has been very much overpaid, in either event your verdict will be a verdict in favor of the defendant generally, not in favor of the defendant for any sum whatever.] [18]</p> <p>Verdict and judgment for plaintiff for $622.59. Defendant appealed.</p> <p>Errors assigned among’ others were (1-7) rulings on evidence, quoting the bill of exceptions; (12, 13) above explanations, quoting them; (17, 18) above instructions, quoting them.</p> <p>The court below was not justified upon any theory whatever in permitting the plaintiff to offer parol evidence to contradict the terms of the written contract: Coughenour v. Suhre, 71 Pa. 462; Weisenberger v. Harmony Fire, etc., Ins. Co., 56 Pa. 442; Dixon-Woods Co. v. Phillips Glass Co., 169 Pa. 167; Dickson v. Hartman Mfg. Co., 179 Pa. 343; Martin v. Berens, 67 Pa. 459.</p> <p>The Northampton county court rules treat the defendant’s “ answer ” as a fornial pleading that will conclude the defendant at the trial, and will operate as a special plea restricting the scope of the general issue contrary to the regulation of the procedure act: Boomer v. Henry, 2 Pa. Dist. Rep. 357; Murdock v. Martin, 132 Pa. 86; Winkleblake v. Van Dyke, 161 Pa. 5; Taylor v. Beatty, 202 Pa. 120; Flegal v. Hoover, 156 Pa. 276; Easton Power Co. v. Sterlingworth Ry. Supply Co., 7 North. 366.</p> <p>The defendant had a right, under the terms of the written contract, to rely upon the good faith of the plaintiff that it Avould accurately measure the current and charge only for the amount of horse power actually supplied. And as soon, then, as the defendant discovered that it had been OAmrcharged, the defendant had a right to recover by Avay of rebate or recoupment the excess paid: Guffey v. Clever, 146 Pa. 548; Heastings v. McGee, 66 Pa. 384; Worley v. Moore, 97 Ind. 15; Hanson v. Jones, 20 Mo. App. 595.</p> <p>When matters of facts, depending on oral testimony, are connected with and necessary to a proper understanding of the written evidence, the court is not bound to construe the latter as though it stood alone. An admixture of oral and oral and written evidence draws the whole to the jury: Wetherill Bros. v. Erwin & Wagener Co., 12 Pa. Superior Ct. 259; Rearich v. Swinehart, 11 Pa. 233.</p> <p>Where there is a dispute as to a conversation which took place prior to the written contract, and the evidence of the plaintiff contradicts that qf the defendant, the question as to what was the real contract is for the jury: Anderson v. National Surety Co., 196 Pa. 288; Selig v. Rehfuss, 195 Pa. 200; Steel v. Loeb, 5 Pa. Superior Ct. 238; Ferguson v. Rafferty, 128 Pa. 337; Sutch’s Estate, 201 Pa. 305; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165; McCormick Harvesting, etc., Co. v. Nicholson, 17 Pa. Superior Ct. 188; Russell v. Pittsburg, etc., Railway Co., 17 Pa. Superior Ct. 195.</p> <p>When a man demands money of another, as a matter of right, and he pays it with the full knowledge of the fact on which payment is founded, he can never recover back the sum he has so voluntarily paid: Union Ins. Co. v. Allegheny, 101 Pa. 250; De La Cuesta v. Ins. Co. of N. A., 136 Pa. 62; Peebles v. Pittsburg, 101 Pa. 304.</p>

<p> Bill of exchange—Acceptance—Contract—Sale. </p> <p>A manufacturer agreed in writing to furnish defendant an engine and boiler at the latter’s factory. By a second agreement the manufacturer agreed to furnish among other things a drip tank. The manufacturer subsequently drew a draft upon the defendant payable to the order of plaintiff, upon which defendant indorsed an acceptance. On the following day the defendant wrote to the plaintiff that he accepted the draft when work at Darby is finished in a satisfactory manner as per agreement with the seller, mentioning t.he seller’s name. The agreements did not provide that the seller should do anything on the ground, but all that was necessary was to be done by the defendant. The defendant claimed that the drip tank was shorter by a foot than the length mentioned in the agreement. It appeared, however, that he had accepted the tank, taken it from the station, used it two years, and never made any offer to return it. No evidence was offered as to the difference in value between the tank delivered, and the tank of the dimensions specified in the contract. The evidence as to whether the engine and boiler were complete or not was conflicting, and was submitted to the jury in an action upon the draft. Held, (1) that the condition attempted to be attached to the acceptance in the letter to the plaintiff was based upon a misconception of the contract; (2) and that a verdict and judgment for plaintiff should be sustained.</p> <p> Practice—O. P.—Trial—Evidence—Surrebuttal. </p> <p>Where plaintiff’s witnesses have been discharged, and no notice of an offer in surrebuttal has been given plaintiff, the court is justified in refusing to receive testimony in surrebuttal.</p>

<p>Appeal, No. 221, Oct. T., 1902, by defendant, from judgment of C. P. No. 4, Pbila. Co., March T., 1899, No. 490, on verdict for plaintiff in case" of Erie Forge Company, Limited, v. Pennsylvania Iron Works Company,</p> <p>Assumpsit for goods sold and delivered. Before Will-son, J.</p> <p>At the trial it appeared that the suit was brought to recover a balance alleged to be'due on a crank shaft furnished by the plaintiff to the defendant in 1893. The defendant claimed that it had been subjected to substantial loss by reason of an unusual delay in the delivery of the shaft. Defendant also alleged that the plaintiff had agreed to mark off this claim if the defendant would resume business relations.</p> <p>The court charged in part as follows:</p> <p>[Did the two parties come together, and did the plaintiff, the creditor, take something of substance by way of consideration for the obliteration or extinction of its claim? As to that point, you have heard the testimony of Mr. Grist and of Mr. Coit. It is said that the representative of the plaintiff, Mr. Harrington, the vice president of the plaintiff company, being dissatisfied with the existing status of affairs, seeing that by reason of the controversy which had arisen out of the claim of the plaintiff for the balance which was due, his concern was not getting any business from the defendant, came to Philadelphia, and that then it was arranged that, in consideration of the defendant company resuming business relations, sending blue prints, and accepting propositions from the plaintiff company, the claim of the plaintiff should be waived, should be wiped out, should cease to exist. Was there any consideration in that? Did the plaintiff get something of value? Was it or was it not a consideration which might be said to have a money value, that business relations should be re-established ? It is for you to say. It is for you to say whether or not, in any proper and fair sense, it could be said that the plaintiff was getting what had a real, substantial, actual value, in being able to resume business relations with the defendant company, whereby it could have the opportunity to make whatever profits might acrue in the performance or such a contract or contracts as it might obtain in pursuance of bids which the defendant might offer. If there was no advantage in that, if there was nothing in substance, nothing of value which they got, in pursuance of an arrangement such as the defendant alleges was made, then there would not be any such substantial consideration which the law would consider, upon which accord and satisfaction could be made. But if there was such consideration as I have referred to, then it would be for you to say whether or not the evidence showed that there was a settlement upon such a real and valuable consideration, whereby the plaintiff waived or extinguished the claim which it had against the defendant.]</p> <p>Verdict and judgment for plaintiff for $813.22. Defendant appealed.</p> <p>Error assigned was the portion of charge as above, quotingpt.</p> <p>The legal effect of an oral contract is a question of law: Short v. Woodward, 79 Mass. 86; Rice v. Dwight Mfg. Co., 56 Mass. 80; Bald Eagle Valley R. R. Co. v. Nittany Valley R. R. Co., 171 Pa. 284; Northern Cent. Ry. Co. v. Walworth, 193 Pa. 215; Wetherill Bros. v. Erwin Wagener Co., 12 Pa. Superior Ct. 259; Harlan v. Harlan, 20 Pa. 303.</p> <p>Binding instructions should have been given for plaintiff: Hearn v. Kiehl, 38 Pa. 149; Hosler v. Hursh, 151 Pa. 422; White v. Gray, 68 Maine, 579.</p> <p>There was no accord because there was no agreement to do any particular thing. The agreement by a debtor to resume business relations with his creditor is not an agreement to do anything; it is merely an agreement to listen and look pleasant : Bald Eagle Valley R. R. Co. v. Nittany Valley R. R. Co., 171 Pa. 284.</p> <p>If the defendant had agreed to give its business to the plaintiff exclusively for a definite period, the consideration would have been appropriate, and the contract would have been valid in law, not because of the business given to the plaintiff, but because of the restriction upon the defendant, prohibiting it from doing business with anyone else: Bald Eagle Valley R. R. Co. v. Nittany Valley R. R. Co., 171 Pa. 284; Cumberland Valley R. R. Co. v. Gettysburg & Harrisburg Ry. Co., 177 Pa. 519; Northern Central Ry. Co. v. Walworth, 193 Pa. 215.</p> <p>The opportunity to make a profit or gain of any kind, is not a consideration moving from the promisee. It has been expressly decided not to be a consideration for the promise: Frauenthal v. Derr, 13 W. N. C. 485; Kelso v. Reid, 145 Pa. 606.</p> <p>Adequacy of consideration is necessarily a question of fact. The court will not determine it in any case: Hitchcock v. Coker, 6 Ad. & Ellis, 438.</p>

<p> Husband and toife—Execution—Interpleader rule—Abuse of discretion. </p> <p>Where goods levied upon as the property of a husband are claimed by the wife, and on an interpleader rule the wife testifies that she earned money before her marriage and had borrowed other money after her marriage, on her own credit, and that the goods and chattels levied upon and claimed by her, were all purchased and paid for by these funds, and this testimony is undisputed, it is an abuse of the discretion of the court to refuse an issue.</p>

<p>Appeal, No. 65, Jan. T., 1903, by defendant, from judgment of C. P. Wyoming Co., April T., 1902, No. 151, on verdict for plaintiff in case of D. H. Carey v. Lameroux & Johnson.</p> <p>Appeal from justice of the peace. Before Dunham, P. J.</p> <p>From the record it appeared that before the justice plaintiff claimed for wages of manual labor in manufacturing lumber performed by himself.</p> <p>At the trial plaintiff proposed to prove by his own testimony that he manufactured or made 4,310 mine ties at two cents apiece and cut and skidded 35,151 feet of mine props at one half cent per foot for the plaintiff in this case, and which now forms the basis of plaintiff’s claim. Also propose to show that the work was performed by the plaintiff personally or that it was done by himself and others. This for the purpose of establishing the amount due from the defendants to the plaintiff in this case.</p> <p>Counsel for the defendants objects to the testimony proposed to be given under this offer because the transcript in this case, which, under the rule of court, stands as the plaintiff’s declaration, is for wages for manual labor performed by the plaintiff for the defendants, and not for manufacturing ties or props, and any evidence of work done by any other person is not admissible in this issue as it now stands.</p> <p>The Court: Prior to the decision of the Superior Court in Millheim’s Appeal, 1 Pa. Superior Ct. 367, we were under the impression that these manual labor claims were held quite strictly; but in that case the court went so far as even to take in contract work and time work, under the head of labor claims. In view of that decision we will overrule the objection and admit this evidence; to which the defendants except, and at their request an exception is noted and bill sealed.</p> <p>Verdict and judgment for plaintiff for $137. Defendant appealed.</p> <p>Error assigned was ruling on evidence, quoting the bill of exceptions.</p> <p>cited: Jones v. Susquehanna Coal Co., 1 Pa. Superior Ct. 331; Smith v Brooke, 49 Pa. 147; Wentroth’s Appeal, 82 Pa. 469; Pa. Coal Co. v. Costello, 33 Pa. 241; Pa. & Del. R. R. Co. v. Leuffer, 84 Pa. 168; Frutchey v. Lutz, 167 Pa. 337.</p> <p>cited: Hoffa’s App., 1 Pa. Superior Ct. 357; Millheim’s App., 1 Pa. Superior Ct. 367; Seider’s App., 46 Pa. 57; Jones v. Susquehanna Coal Co., 1 Pa. Superior Ct. 331.</p>

<p>Appeal, No. 70, Jan. T., 1903, by-plaintiff, from judgment of C. P. Luzerne Oo., March T., 1898, No. 231, on verdict for defendants in case of George P. Lee and Frank J. Scouton, trading as Lee & Scouton, v. David Williams et al.</p> <p>Scire facias sur mechanic’s lien. Before Lynch, P. J.</p> <p>The court charged as follows:</p> <p>The defendants, Mr. Williams and Mrs. Owens, in 1897, were the owners of a lot of land on Green street in the borough of Nantieoke, Luzerne county. They deemed it advisable to erect thereon two houses, called a block; and with this in view, on August 11, of that year, entered into a contract with Mr. Zimmerman to erect this building. Mr. Zimmerman, in pursuance of this contract, proceeded so far as to have the cellar excavated and the wall erected, and perhaps, a sill laid upon the wall, by September 8. [Then for the purpose of borrowing money, upon the part of Owens and Williams, it was deemed advisable by them'to cancel this contract and enter in a new one.] [17] It is claimed by the defendants all the material furnished up to that time was by Mr. Barrall and others, and not by Messrs. Lee and Scouton. [On September 9, a new contract was entered in writing between Zimmerman and the defendants. The first contract had no provision or stipulation against the filing of liens. The one of September 9 had this provision against the filing of liens: “ 7. No lien shall be filed against the building by the contractor or subcontractor nor by any of the material men or workmen.” Owens and Williams and Zimmenhan had a right to cancel the old contract and enter into a new one.] [18] If there is any evidence in the case—and there is not—that they entered into a second contract for the purpose of defrauding Lee & Scouton, the contract would not be binding upon Lee & Scouton. [Even though they had progressed in the erection of the building, they would, as between themselves, have the right to cancel the old and enter into a new agreement. It was their own affair. And if, up to that time, the plaintiffs had not furnished material upon the credit of the building, the second contract with the stipulation against liens would bind the plaintiffs.] [19]</p> <p>It is not questioned that Lee & Scouton furnished the material for this building. Their prices are not disputed; the quantity furnished is not doubted; it is simply a question of when they commenced to furnish it. [If they began to furnish material after the contract of September 9,1897, was executed, the stipulation binds them, and they are not entitled to recover. Because the law provides where a stipulation of this kind is entered into and filed in the prothonotary’s office—as this was, the next day—a material man or subcontractor who furnishes material afterwards, has no right to file a lien against the building,] [20] although he has a right to sue for and recover the value of his material from the person who ordered it.</p> <p>On September 9, the day on which the second contract was entered into between the defendant and Mr. Zimmerman, the books of original entry of Lee & Scouton, as testified to by Mr. Palmear, who, although not the regular bookkeeper, said he did bookkeeping at that time, show when it is claimed the lumber was ordered and delivered. He testified to the usual course of business and believed this lumber was delivered then, although he was not the drayman or teamster and had no charge of that branch of the business; he simply made the entries in the books for the plaintiffs. Mr. Cease testifies negotiations on September 9, were entered into for lumber, and the loading slip made by him is on September 11.</p> <p>I instruct you there is no evidence that the contract of September 9 was fraudulent and collusive, for the purpose of cheating any one. When it is claimed an agreement between parties is fraudulent and collusive, there must be evidence to substantiate the averment. It will not do to simply say it is so. On the other side, the testimony of Mr. Williams, one of the defendants, is that plaintiffs first furnished material on or about September 18; of Mr. Zimmerman, he first gave an order to Lee & Scouton on September 15, but states they continued to work right along from the 8th. They had a right to continue to work. [The parties had a right so long as they did not defraud or enter into a scheme to defraud a third person, to make such contract concerning the erection of this building, as they saw fit.] [2] Mr. Owens stated the first load of lumber by Lee & Scouton was about September 18, and. Mr. Fargo says, as near as he can tell, it was on the 15th to the 18th of September; he did not pay particular attention and was not there. He said he was there as late as the 10th to the 15th.</p> <p>And John W. Zimmerman said he worked on the old building with the old material, on the 8th, 9th and 10th and' on the 11th was notified to go on, all was right under the new contract.</p> <p>[The real contention is whether Lee & Scouton began furnishing material for this building before September 9, the day on which the second contract containing the stipulation against liens was entered into. If they did, they ought to recover; if not, they should not recover, the verdicts should be in favor of the defendants. Decide this upon the weight of the credible evidence in the case and render verdicts accordingly.] [22]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (17-22) portions of charge as above, quoting them.</p> <p>Mechanics’ liens attach from the time the first labor is done on the ground for the foundation of the building, and this is not affected by a temporary suspension of the work or a change in the ownership or plan of the building, so long as the original design of the structure is retained: Hein v. Hopkins, 13 S. & R. 269; Holden v. Winslow, 18 Pa. 160; American Fire Insurance Co. v. Pringle, 2 S. & R. 138; Hess v. Coleman, 2 W. N. C. 224.</p> <p>The driving of stakes in pursuance of the erection of the building and upon which the building is erected, is a commencement: Pennock v. Hoover, 5 Rawle, 291, 307; Moroney’s Appeal, 24 Pa. 372; Denkel’s Estate, 1 Pearson, 213; Lombaert v. Morris, 2 Del. Co. Rep. 457; Rush v. Able, 90 Pa. 153; Prutzman v. Bushong, 83 Pa. 526; Williamson v. Tunis, 19 Pa. Superior Ct. 207.</p> <p>cited: Phelps v. Burns, 16 Pa. Superior Ct. 391; Snyder v. Zane, 15 Pa. Superior Ct. 403.</p>

<p>Appeal, No. 71, Jan. T., 1903, by plaintiff, from judgment of C. P. Luzerne Co., March T., 1898, No. 231t, on verdict for defendants in case of George F. Lee and Frank J. Scouton, trading as Lee & Scouton, v. David Williams et al.</p>

<p>Appeal, No. 54, Jan. T., 1903, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1901, No. 65, sustaining decree awarding divorce in case of Della E. Krug v. Willis C. Krug.</p> <p>Libel for divorce. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>jError assigned was the decree of the court.</p>

<p>Appeal, No. 30, March T., 1903, by defendant, from judgment of C. P. Mifflin Co., Aug. T., 1900, No. 117, on verdict for plaintiff in case of Daniel J. Arnold v. Metropolitan Life Insurance Company of New York.</p> <p>Assumpsit upon a life insurance. Before Bailey, P. J.</p> <p>At the trial defendant presented these points :</p> <p>5. George Arnold, the insured, in his application for the policy of insurance in this case in paragraph four, having answered and stated “ The following is the name of the physician who last attended me, the date of the attendance and the name of the complaint for which he attended me, Dr. Reber Painter-ville, Pa., January, 1899, three ribs broken,” and the insured having warranted this answer to be strictly correct and wholly true, said answer being material to the risk and the testimony of Dr. Reber in this case being that he prescribed for and treated the insured for enlarged liver and stomach trouble in the spring of 1899, about a week after his ribs were fractured, and the plaintiffs having failed to produce any evidence to contradict this testimony, the verdict of the jury should be for the defendant. Answer : The credibility of Dr. Reber’s testimony is for the jury and not for the court. [1]</p> <p>6. The insured having answered in paragraph five of his , application for the policy of insurance in this case, “ I have not been under the care of any physician within two years unless as stated in previous line, except,” which was Dr. Reber, Painterville, Pa., January, 1899, three ribs broken, and it being the uncontradicted testimony of Drs. Reber and Baker, that they treated him within two years, the verdict in this case should be for the defendant. Answer: The credibility of the testimony of Dr. Reber and Dr. Baker is for the jury and not for the court.</p> <p>7. If the jury belive that George Arnold, the insured, went to the office of Dr. Baker between the 17th and 20th of April and was prescribed for and treated by him as testified to by Dr. Baker, the verdict in this case must be for the defendant. Answer: Affirmed. [2]</p> <p>Verdict and judgment'for plaintiff for 1578.20. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p> <p>As the testimony of the physicians was uncontradicted, the case should not have been submitted to the jury: Lutz v. Metropolitan Life Ins. Co., 186 Pa. 527; O’Hara v. U. B. Mut. Ald Society, 134 Pa. 417; Wall v. Royal Society of Good Fellows, 179 Pa. 355; Richards v. Willard, 176 Pa. 181; Hermany et al. v. Fidelity Mutual Life Assn., 151 Pa. 17; Mengel v. Northwestern Mutual Life Insurance Company, 176 Pa. 280; March v. Metropolitan Life Insurance Co., 186 Pa. 629; Smith v. Northwestern Mutual Life Insurance Company, 196 Pa. 314.</p>

<p>Appeal, No. 212, Oct. T., 1902, by plaintiff, from judgment of O. P. Schuylkill Co., Nov. T., 1900, No. 362, on verdict for defendant in case of Julius Kessler & Company v. John Perrong.</p> <p>Assumpsit for goods sold and delivered. Before Bechtel, P. J.</p> <p>At the trial it appeared that on April 18, 1900, defendant purchased from Sidney Hirsh, a salesman of the plaintiff, five barrels of whisky, on the following contract:</p> <p>“Sale slip. Girardville, April 19,1900. Julius Kessler & Co., Inc., World Building, New York. Gentlemen: I have this day bought of you through your Mr. Hirsh five barrel whisky in bond, and have received warehouse receipt covering said five barrel as follows: Warehouse receipt No. 217. Brand S. C. H. 99. Serial number 23410. Proof gallon 23470. Price per gallon .57^. . Total $134.95. Settlement: Cash $14.95 and notes for $120, as follows : $24 due May 19; $24 due June 19; $24 due July 19; $24 due September 19; $24 due October 19. Subject to the approval of your home office. John Perrong, signature of the purchaser. Hirsh, salesman. H. C. B. Sales Book A233.” ■</p> <p>Defendant testified that after he had taken one of the barrels out of bond, he found that it was Bourbon sour mash, and not rye whisky, as Hirsh had represented it to be. He made this discovery shortly after the sale, but up to the time of the trial in 1902, he neither surrendered nor offered to surrender the warehouse receipts.</p> <p>The court charged in part as follows:</p> <p>[If, upon the other hand, you find that he did not buy five barrels of liquor of the kind that these parties sought to deliver to him, if you find that he contracted to buy five barrels of liquor that was to be rye whisky, exclusively rye whisky, and that the plaintiff contracted to sell him that kind of liquor, but that they did not deliver that kind of liquor to him when they delivered this barrel, and he therefore refused and notified them of his refusal to take the balance of it, we believe he would have a right to do that under the law as we understand it, because of their failure to deliver to him what they contracted to sell to him, if you so find.] [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1) in discharging rule for judgment for want of a sufficient affidavit of defense, (2) portions of charge as above, quoting it.</p> <p>An owner of whisky, other than the distiller, may keep it in a distillery bonded warehouse and may sell and transfer it without taking actual possession thereof, or making actual delivery thereof, a transfer by means of a distillery warehouse receipt and bill of sale being sufficient to pass a valid title to the goods : Kiel & Son v. Harris, 1 Pa. C. C. Rep. 171; Keil & Son v. Harris, 5 Cent. Repr. 865.</p>

<p> Replevin—Set-off—Pleading. </p> <p>In an action of replevin to recover personal property set-off cannot be pleaded or allowed.</p> <p>In an action of replevin where it appears that the defendant in accepting the surrender of leased premises from a tenant accepts from the tenant a cash register, the possession of which was in the tenant under a contract of bailment with the plaintiff, and it appears that the tenant when he received the cash register delivered to the plaintiff an old cash register which was in the demised premises and belonged to the defendant, the latter cannot offer evidence as to the title and value of the old cash register, and have such value set off against the plaintiff’s demand.</p>

<p> Ejectment—Mesne profits—Improvements. </p> <p>A bona fide occupant under claim of title who makes permanent and valuable improvements is entitled to have them taken into account in ascertaining whether or not the real owner has sustained any damage and may show that they are full compensation for the value of the property.</p> <p>Where persons who have entered in good faith into possession of land, and have received the rents thereof, they are entitled in an assessment of mesne profits in an action of ejectment to have deducted from the rents actually collected, taxes, insurance, improvements, necessary repairs and agent’s commissions.</p> <p> Practice, C. P.—Trial—Points. </p> <p>When points are declined it is not necessary to read them to the jury; it is better practice not to read them.</p>

<p> Appeals—Case stated—Pending suit—Quashing appeal. </p> <p>An appeal from a judgment on a case stated will be quashed where there is nothing to show the existence of a pending suit.</p>

<p>Appeal, No. 9, March T., 1903, by plaintiff, from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report in estate of Christian D. Hertzler, deceased.</p> <p>Exceptions to report of R. M. Henderson, Esq., auditor.</p> <p>The facts appear by the opinion o“f the Superior Court.</p> <p>Error assigned was in dismissing exception to auditor’s report.</p> <p>It is necessary that a wife should prove her right as a creditor of her husband with clearness. On this point there should be no doubt: Hause v. Gilger, 52 Pa. 412; Hamill’s App., 88 Pa. 363; Young’s Estate, 65 Pa. 101; Martin’s Estate, 181 Pa. 378; McKown’s Est., 198 Pa. 102.</p> <p>A delivery was essential to pass title to Mrs. Hertzler: Trough’s Estate, 75 Pa. 115; Zimmerman v. Streeper, 75 Pa. 147; Nicholls’s Appeal, 190 Pa. 308; McKown’s Estate, 198 Pa. 102.</p> <p>The evidence adduced by the appellee was sufficient to sustain her contention that she had a separate estate, that she loaned a portion of the same to her husband, and that the assignment of the stock certificate was in payment of notes given to her by her husband for the borrowed money: Gilmor's Estate, 158 Pa. 186; Dice’s Estate, 180 Pa. 647; Young’s Estate, 65 Pa. 101.</p>

Appeal, No. 9, Jan. T., 1904, by Dora C. Rowe, administratrix, from decree of O. C. Luzerne Co., No. 118, of 1899, dismissing exceptions to adjudication tin estate of John Rowe, deceased. Exceptions to adjudication. From the record it appeared that the fund for distribution arose from the sale of decedent’s real estate by the administratrix under an order of court. The real estate was covered by a mortgage to George B. Kulp for $3,800.

<p> Affidavit of defense—Practice, C. P.—Pleading—Defective statement. </p> <p>No affidavit of defense is necessary where the statement of claim discloses two causes of action, one arising under a contract, and the other under a tort.</p> <p>A statement of claim is fatally defective which shows on its face certain modifications of the arrangement between the parties, as to which the minds of the parties had not met.</p> <p> Affidavit of defense—Corporations—Officers. </p> <p>In an action against a corporation the fact that the summons was served upon one officer of the company and the affidavit of defense was made by another is immaterial.</p> <p> Affidavit of defense—Practice, C. P. </p> <p>In an action upon a contract alleged to be contained in certain letters set out in plaintiff’s statement, an affidavit of defense is sufficient which alleges that material parts of the correspondence, set forth in the plaintiff’s statement, were suppressed therein and that no contract was ever entered into between the parties, for the reason that “ the plaintiff failed to furnish security as required by the defendant, before it would enter into any contract.”</p>

<p>Appeal, No. 157, Oct. T., 1902, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1902, No. 504, discharging rule for judgment for want of a sufficient affidavit of defense in case of E. J. Painter and L. K. Ewing, trading as Painter & Ewing, v. William A. Snyder and Edwin A. Anderson.</p> <p>Replevin for a piano.</p> <p>From the record it appeared that the piano was leased to defendant under the following agreement in writing:</p> <p>“Philadelphia, Pa., January 28,1899.</p> <p>“ This is to certify, that I have this day hired from Painter & Ewing, one piano bearing the name of Painter & Ewing, Style B, No. 6850, for the term of seven months from date hereof, and for the use of said piano for the said term, I agree to pay Painter & Ewing two hundred and fifty dollars, as follows: ■Twenty-five dollars now in hand, ten dollars on the 28th day of February, March, April, May, June, July, 1899, and the residue one hundred sixty-five dollars on the 28th day of August, 1899. I further agree to deliver said piano to Painter & Ewing, or their authorized agent, in as good condition as when received (ordinary wear excepted) whenever they shall require or demand the same, provided the money paid in advance for time not yet expired, if any, be refunded, and also that said piano shall not be removed for any use or purpose whatever (except from danger of fire) from the premises I now occupy at 73 East Penn Street, Germantown, Philadelphia, Pa., without the written consent of Painter & Ewing. I also further agree that if the said piano by fire or otherwise, be wholly or partially destroyed, to pay the amount of damages sustained thereby to Painter & Ewing.”</p> <p>The defendant, Snyder, received the following paper when the piano was delivered to him</p> <p>“ This instrument is hired with the understanding that when the payments of rent have been made promptly, and have amounted to the value of the instrument, it becomes the property of the person so hiring- it. All payments made are for rent and use of instrument and do not in any way apply to purchase.”</p> <p>“ Philadelphia, January 28, 1899.</p> <p>“ Received of W. A. Snyder</p> <p>“Twenty-five & 00/100 dollars</p> <p>Style.....No......Value . . . . . “ $25.00 Painter & Ewing.”</p> <p>The defendant filed an affidavit of defense denying title in the plaintiff.</p> <p>A supplemental affidavit was as follows:</p> <p>Edwin Anderson, one of the defendants in the above case, being duly sworn deposes and says, that as an additional supplement to the defense hitherto filed in this case, deponent saith that at the time, said piano was purchased by said Snyder, said Snyder did give a promissory note, which was accepted by said plaintiffs in full settlement for the purchase of said piano. Deponent further saith that said Snyder did subsequently make payments upon said note, which note was renewed. Deponent further saith that the said Snyder at the time said piano was purchased made a distinct agreement with the said plaintiffs that the said purchase was absolute. Deponent further saith that said Snyder made payments upon said note as late as the early part of the year 1901, which payments were accepted by the said plaintiffs on account of the indebtedness of said Snyder for the purchase of the said piano as aforesaid.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>After judgment was entered plaintiffs filed assessment of damages for $200.</p> <p>Error assigned was order making rule for judgment absolute.</p> <p>It has been held that if in the lease of bailment there was not a positive covenant on the part of the bailee to return the goods hired, the transaction is not a bailment: Farquhar v. McAlevy, 142 Pa. 243.</p> <p>It has been held that a sale with an agreement that the title should remain in the owners until all the payments should be made will enable the creditors to sell the goods for the vendee’s debts : Patterson v. Stevenson, 2 Pearson, 205.</p> <p>In the case at bar plaintiff has taken judgment in cash for the amount of the bond entered without proving his damages. This was error: Lewis v. Bonnert, 12 Pa. C. C. Rep. 366.</p> <p>The contract in this case was clearly a bailment, and no title passed to Snyder: Potter v. Stetson, 11 Pa. Superior Ct. 627; Lippincott v. Scott, 198 Pa. 283; Stiles v. Seaton, 200 Pa. 114; Jones v. Wands, 1 Pa. Superior Ct. 269; Farquhar v. McAlevy, 142 Pa. 233; Enlow v. Klein, 79 Pa. 488.</p>

<p>Appeal, No. 188, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1898, No. 118, on verdict for plaintiff in case of Conrad F. Clothier, Jr., and Thomas F. Burrows, trading as Clothier & Burrows, v. City of Philadelphia.</p> <p>Trespass to recover damages for loss sustained by reason of the revocation of a permit to build a reviewing stand. Before Sulzberger, J.</p> <p>At the trial it appeared that on October 17, 1898, plaintiffs secured a permit from the engineer of the bureau of building inspection to build a reviewing stand on the North side of Mt. Vernon street east of Broad street in the city of Philadelphia. They paid $2.00 for the permit. They expended $164 in the erection of the stand. On October 22,1898, they received the following letter from the director of public safety:</p> <p>“ October 21, 1898.</p> <p>“ Clothier & Burroughs,</p> <p>“S. E. Broad and Mt. Vernon.</p> <p>“ Dear Sirs : By an inadvertence a permit was granted to you to erect a stand under the ordinance approved the 15th of this month to erect a stand on the North side of Mt. Vernon Street east of Broad Street. This permit is withdrawn and revoked and you will not be permitted to proceed with your stand. I understand you were informed of this almost immediately after you started to erect the stand.</p> <p>“ I remain,</p> <p>“ Yours truly,</p> <p>(Sgd) “ F. M. Biter,</p> <p>“ Director.”</p> <p>The ordinance of October 17, 1898, which grants to the director of public safety authority to issue permits for the erection of reviewing stands is quoted in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>It appears that on the occasion of this demonstration to celebrate the close of the Spanish war, the department of public safety resolved that the city should sacrifice for a few days, in the interest of a great display, the space required on the sidewalks of Broad street so that the same might be occupied by reviewing stands ; and it reserved at the same time the very reasonable provision that side streets should not be obstructed, because naturally you would expect an enormous crowd to be gathered on Broad street, and prudence requires that the means of the discharge of that crowd from an overcrowded highway should be unobstructed. The policy of the department, therefore, was declared to be, to its subordinates, that no permit was to be issued for the erection of a reviewing stand on a side street.</p> <p>[ For the purposes of this case I shall hold that that was the utmost limit of authority of any subordinate in that department, that no subordinate had authority to issue a license other than by the authority or direction conferred by the chief of the department; and as no power was conferred to grant a license on a side street I shall have to say that the issuance of this license on Mount Vernon street, east of Broad, was without any authority and did not bind the city of Philadelphia.] [6]</p> <p>The court further directed the jury to return a verdict in favor of plaintiff in the sum of $2.00. Plaintiffs appealed.</p> <p>.Errors assigned were (5, 6) above instructions, quoting them.</p> <p>city had authority to pass the ordinance: Philadelphia v. Sheppard, 33 W. N. C. 264.</p> <p>A municipal agent acting under a general authority conferred by statute or ordinance, binds the city by an act within the scope of this authority, though such act be contrary to some special directions or limitation upon such general authority, in the nature of private instructions, where the person dealing with such agent had no notice of sucli special directions or limitations : Adams Express Co. v. Schlessinger, 75 Pa. 246; Brooke v. N. Y., etc., R. R. Co., 108 Pa. 529; Baltimore & Phila. Steamboat Co. v. Brown, 54 Pa. 77; Ardesco Oil. Co. v. Gilson, 63 Pa. 146; Williams v. Getty, 31 Pa. 461; Loudon Savings Fund Society v. Hagerstown Savings Bank, 36 Pa. 498; Parker v. Citizens’ Ins. Co., 129 Pa. 583; American Co. v. Maurer, 10 Atl. Repr. 762; Allegheny City v. McClurkan, 14 Pa. 81; Philadelphia v. Gilmartin, 71 Pa. 140; Indianapolis v. Skeen, 17 Ind. 628; DeVoss v. Richmond, 18 Grattan, 338.</p> <p>The steady and certain trend of all our Pennsylvania cases has been to hold a municipal corporation, having the power to make a contract, liable in all cases in which an individual would be held similarly liable : Allegheny City v. McClurkan, 14 Pa. 81; Philadelphia v. Gilmartin, 71 Pa. 140; Philadelphia v. Anderson, 142 Pa. 357; Baily v. Phila., 184 Pa. 594.</p> <p>It has long been settled law that a license without consideration cannot be revoked without reimbursement for expenditures made upon the faith of it. Indeed it becomes an irrevocable contract: Rerick v. Kern, 14 S. & R. 267; Davis v. Souder, 10 Phila. 113; Gilmore v. Wilson, 53 Pa. 194; Campbell v. McCoy, 31 Pa. 263; McKellip v. McIlhenny, 4 Watts, 317; Swartz v. Swartz, 4 Pa. 353; Erie v. Griswold, 5 Pa. Superior Ct. 132; Phila. v. Anderson, 142 Pa. 357.</p> <p>The ordinance of October 15, 1898, is invalid: Costello v. State, 108 Ala. 45 (18 So. Repr. 820); Tell City v. Beilefeld, 20 Ind. App. 1 (49 N. E. Repr. 1090); Townsend v. Epstein, 49 Atl. Repr. 629; Lancaster v. Reisner, 14 Lanc. Law Rev. 193; Betham v. Philadelphia, 196 Pa. 302; Reimer’s App., 100 Pa. 182; Com. v. Harris, 10 W. N. C. 10.</p> <p>The city is not liable for any damage caused by the act of the engineer in issuing the permit: Penna. R. R. Co. v. Braddock Elec. Ry. Co., 152 Pa. 116; Com. v. Muir, 1 Pa. Superior Ct. 578; Elliott v. Phila., 75 Pa. 347.</p> <p>All the cases concerning the liability of municipal corporations for acts of their agents referred to by the appellants are to be distinguished on the ground that they relate to the exercise of corporate as distinguished from public functions.</p> <p>The privilege granted being a mere license to erect the stand, it was revocable at the pleasure of the city authorities: Branson v. Phila., 47 Pa. 329; Smith v. Phila., 81 Pa. 38.</p>

<p>Justice of the peace—Summary proceedings to recover possession—Mortgage—Act of June 16,1836. sea. 105—Jurisdiction.</p> <p>A petition in summary proceedings before a justice of the peace under the Act of June 16, 1836, sec. 105, to recover possession of premises sold under foreclosure proceedings of a mortgage is fatally defective, if it fails to aver that the person in possession at the time of the application is the defendant, as whose property such real estate was sold, or that he came in possession thereof under him. Such a petition confers no jurisdiction upon the justice of the peace, and the jurisdictional defect is not, and cannot, be waived by the defendant in appearing before the justice, and making defense.</p> <p>Mortgage—Foreclosure—Scire facias—Parlies—Act of July 9, 1901, sec. 10, P. L. 614—Posting copy of sci. fa.</p> <p>A person in possession of mortgaged premises who is not summoned or made party to a scire facias upon the mortgage as provided by section 10 of the Act of July 9, 1901, P. L. 614, is not bound by the judgment in the scire facias. The mere posting of a copy of the scire facias upon the premises does not make the party in possession a party to the suit.</p>

<p>Appeal, No. 269, Oct. T., 1901, by defendant, from judgment of C. P. Northampton Co., Jan. T., 1897, No. 8, on verdict for plaintiff in case of William L. Walter v. Aaron Transue.</p> <p>Assumpsit for an alleged wrongful eviction. Before Schuyler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented these points :</p> <p>1. The plaintiff having averred in Ms statement a verbal agreement under which the rent of the proposed term of five years was to be 150.00 for the first year, and thereafter a royalty of twenty-five cents per thousand for marketable bricks manufactured, and the plaintiff’s own testimony being that as to the years of the proposed leasing after the first year the royalty or rent was to be in money or bricks as the parties might thereafter agree, there was a fatal variance between the contract as declared on and the actual arrangement as testified to by the plaintiff himself. Answer: That point is refused. [1]</p> <p>2. It appearing from the plaintiff’s • own testimony that the terms of the alleged contract of leasing as to the royalty or rent for the occupancy of the premises to be leased after the first year of the five years for such lease to be made, were left undetermined at the time of the making of the alleged contract, and as to whether such rent or royalty should be money or bricks, the minds of the parties did not come together and agree, but the terms as to such royalty or rent were left to future negotiations ; there was no such contract to lease the brickyard in question for five years as would entitle the plaintiff to recover in the present action, and the verdict must be for the defendant. Answer: Refused. [2]</p> <p>3. The plaintiff’s own testimony being that a part of the terms of the alleged contract for a lease were left undetermined and subject to a future agreement between the parties, there was no such contract of leasing or agreement for a lease as would support the present action. Answer: Refused. [3]</p> <p>4. Even if the contract as testified to by the plaintiff was a complete contract, and all the terms thereof ascertained and agreed on, it was but a parol agreement to make a lease for five years, and plaintiff having entered upon the possession of the premises without having insisted upon or received a written lease for such term, he was in the premises but as a tenant at will, which tenancy could be terminated at the pleasure of the defendant, and having received a notice from the defendant to quit the premises on April 1, 1896, and being in possession with knowledge that such tenancy could at any time be terminated at the will of the defendant, he was required to leave at the time indicated, and would have no right to recover damages by reason of such termination' of the tenancy or any eviction therefrom on or after said last mentioned date. Answer: Refused. [4]</p> <p>5. Under the pleadings in the cause there can be no recovery in damages by the plaintiff for an eviction from a tenancy, or interference with the quiet enjoyment of the brickyard premises by the defendant, as a tenant thereof, on or after April 1, 1896. Answer: Refused. [5]</p> <p>6. According to the plaintiff’s own testimony there was a voluntary abandonment of the premises in question before April 1, 1896, and consequently any evidence as to the building of a fence, or any other act tending to exclude the plaintiff from the premises on or after the said April 1, is immaterial, and such act would not constitute an eviction or breach of any covenant for quiet enjoyment of the premises for which plaintiff would be entitled to recover in damages in the present action. Answer: Refused. [6]</p> <p>22. Under all the evidence the verdict must be for the defendant. Answer: Refused. [18]</p> <p>Verdict and judgment for plaintiff for $450. Defendant appealed.</p> <p>Errors assigned were (1-6, 18) above instructions, quoting them.</p>

<p>Appeal, No. 67, Jan. T. 1903, by plaintiff, from decree of C. P. Luzerne Co., Dec. T., 1897, No. 7, on bill in equity in case of William P. Hunter, Administrator of Charles Bilheimer, Deceased, v. Sarah Bilheimer, Administratrix of Edwin Bilheimer, Deceased.</p> <p>Bill in equity for interpleader.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 55, Jan. T., 1908, by defendant, from judgment of C. P. Lackawanna Co., May T., 1901, No. 419,. on case stated in suit of Wanamaker & Brown v. P. P. Carter. Case stated to determine whether goods in a tenant’s possession for sale on commission may be distrained.

Appeal, No. 1, Feb. T., 1903, by plaintiff, from order of O. P. Clinton Co., May T., 1901, No. 199, striking off judgment in case of Harris Claster & Company v. John J. Soble. Rule to strike off the judgment and fieri facias. Before Mayer P. J. From the record it appeared that on February 4, 1901, defendant presented his petition to the district court of the United States for the western district of Pennsylvania, and was duly adjudged a bankrupt.

Appeal, No. 174, Oct. T., 1902, by C. O. Melvin, administrator, from decree of O. O. McKean Co., sustaining exceptions to auditor’s report in estate of William R. Reed, deceased. Exceptions to auditor’s report. Morrison, P. J., filed the following opinion: This case exhibits a remarkable state of affairs. William R. Reed died in June, 1872, and on June 21,1872, letters of administration were granted and issued to C. C. Melvin, of Bradford, Pennsylvania.

Argued Feb. 10, 1903. Appeal, No. 12, Feb. T. 1903, by defendant, from judgment of C. P. Lycoming Co., March T., 1903, No. 9, on verdict for plaintiff in case of Joseph S. Rock v. Henry Greenewald. Ejectment of land in Loyalsock township. Before Mitchell, P. J. The opinion of the Superior Court states the case. The court charged in part as follows: •[The defendant seeks by this evidence to overcome the courses and distances described in the deeds between the parties.