Volume 220 — Pennsylvania State Reports

<p>Appeal, No. 199, Oot. T., 1907, by-plaintiff, from judgment of O. P. Ho. 3, Allegheny Co., May Term, 1905, Ho. 827, for defendant non obstante veredicto in case of Tibby Brothers Glass Company v. Farmers & Mechanics Bank of Sharpsburg, Pa.</p> <p>Assumpsit to recover for moneys had and received for plaintiff’s use.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict for plaintiff for $5,618.51. On motion judgment was entered for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 206, Oct. T., 1907, l>y defendant, from decree of O. P. No. 3, Allegheny Co., May T., 1907, No. 583, on bill in equity in case of William G. Hawkins, Jr., v. City of Pittsburg.</p> <p>Bill in equity to declare a city ordinance invalid.</p> <p>Error assigned was the decree in favor of the plaintiff.</p>

<p>Deed — Consideration—Natural love and affection — Gift—Blood of the ancestor — Intestate law.</p> <p>A deed conveying valuable real estate from a mother to a daughter for the consideration of “one dollar (as well as in consideration of natural love and affection) ” is to be construed as a gift, and not as a bargain and sale; and if the daughter dies intestate the property will go to the next of kin on her mother's side to the exclusion of her father's relatives.</p>

<p>Appeal, No. 107, Oct. T., 1907, by 'plaintiff, from judgment of O. P. Cambria Co., June T., 1905, No. 438, for defendant non obstante veredicto in case of A. L. Wisner, trading as A. L. Wisner & Co., v. The First National Bank of Gallitzin.</p> <p>Assumpsit for loss alleged to have been caused by failure to return checks.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 99, Oct. T., 1907, by defendant, from order of C. P. No. 3, Alleghenj’' Co., Feb. T., 1907, No. 541, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Federal National Bank v. The Cross Creek & Pittsburg Coal Company.</p> <p>Assumpsit on promissory notes.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error, assigned ivas in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 101, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1905, No. 366, for defendant non obstante veredicto in case of the United States Tube and Iron Company v. Maryland Casualty Company. Assumpsit on a policy of indemnity.

<p>Negligence — "Stop, look and listen” — Street raihoays.</p> <p>In an action against a street railway company to recover damages for personal injuries by being struck by a car at a crossing, the case is for the jury where there is testimony that the street was dark, that the curtains of the car- were down, that there was no headlight, that the car could not be seen at the point where it was the plaintiff’s duty to look, and that it could not be heard because of the noise of trains and mills in the immediate vicinity; and-this is the case, although the weight of the testimony was that the plaintiff stepped in front of a moving car which he saw or could have seen by the exercise of reasonable care.</p>

<p>Appeal, No. 108, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1906, No. 962, for plaintiff on case stated in suit of Pennsylvania Railroad Company v. Edgewood Borough.</p> <p>Case stated to determine liability for the repair of a culvert.</p> <p>The case stated was as follows :</p> <p>1. The Pennsylvania Railroad Company acquired certain land in what is now the borough of Edgewood from James Kelley, by virtue of his grant under date of May 20, 1847, of which grant a copy is hereto attached and made part hereof. Said company thereupon constructed its railroad on said land, with necessary slopes, the slope on the west side extending out from said sixty-six foot width, a distance of eighty-four feet.</p> <p>2. The railroad company, at the time of constructing said railroad, constructed underneath said railroad and slopes a culvert for the waters of a natural water course.</p> <p>3. The borough of Edgewood recently, under its power of eminent domain, lawfully appropriated, so far as necessary for use as a forty foot public street, the said land of the railroad company west of said sixty-six foot width, the said street being located on the slope on the west side of said sixty-six foot width, parallel thereto and immediately abutting thereon. The said street has been graded, as appears on a blue print plan hereto attached and made part hereof, and otherwise im proved for public use.</p> <p>4. It is admitted, for the purposes of-this suit, that the culvert so constructed by the railroad company as set forth in second paragraph has become inadequate and must be enlarged in accordance with the plans agreed upon by the parties hereto, and that the cost of enlarging that portion of said culvert between the said sixty-six foot width and a point eighty-four feet westwardly therefrom will be $3,360.</p> <p>5. For the purposes of this suit, the parties hereto concede that it is the duty of one or the other of them to bear the expense of enlarging said portion of said culvert. The railroad company is enlarging that portion of the culvert underneath the said sixty7six foot width and underneath the eastern slope, and also underneath the said western slope, the part in controversy. The borough of Edgewood, however, has promised and agreed to pay to the said the Pennsylvania Railroad Company the said sum of $8,360 for enlarging said eighty-four feet of said culvert, if, in point of law, the Pennsylvania Railroad Company is not under duty to enlarge the same, or to bear the expense thereof.</p> <p>If the court be of the opinion that the Pennsylvania Railroad Company is not under duty to enlarge said culvert at said point, or to bear the expense thereof, then judgment to be entered for the said the Pennsylvania Railroad Company and against the said the borough of Edgewood for the sum of $3,360; but, if not, then judgment,to be rendered for the defendant; the costs to follow judgment, and either party to have the right of appeal to the Supreme Court.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Equity — Equity practice — Interlocutory decree — Demurrer—Appeals.</p> <p>A decreo in equity “ demurrer sustained,” is an interlocutory and not a final one, and no appeal lies from it.</p>

<p>Appeal, No. 118, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1905, No. 1,185, on verdict for plaintiff in case of Margaret A. M. Hollis v. United States Glass Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $4,500. Defendant appealed.</p> <p>Errors assigned were (1) in refusing binding instructions for defendant, and (2) in refusing to withdraw a juror and continue the case because of the remarks of plaintiff’s counsel quoted in the opinion of the Supreme Court.</p>

<p>Will — Legacy—Interest on legacy — Life estate — Act of February 24, 1834, P. L. 70.</p> <p>Section. 51 of the' Act of February 24, 1834, P. L. 70, relating to interest upon legacies, has application only to legacies paid by an executor; it has no bearing upon legacies directed to be paid by a devisee who has elected to take a devise of land.</p> <p>Where a testator gives the rents, issues and profits of his entire estate to his wife for life, and “subject to said life estate” devises a lot of ground to a son, provided the latter pays to testator's other children an amount stated, and it appears that the difference between the amount stated, and the valuation placed upon the lot by the testator was an amount which would equalize the devisee's share with the shares of the other children, interest will not be allowed on the legacies to the other children until after the termination of the life estate of the wife.</p> <p>All the surrounding circumstances of the testator — his family, the amount and character of his property — may and ought to be taken into consideration in giving a construction to the provisions of his will.</p>

<p>Equity — Findings of fact — Evidence—Appeal.</p> <p>The findings of fact by the court below in a complicated equity proceeding to the effect that certain bonds were the property of the defendant, will not be set aside in the absence of manifest error, where it appears that the principal parties were dead, that the transactions between them were conducted in a loose and unbusinesslike manner, making it difficult for others than the parties to unravel them, and that the evidence, although meager, was sufficient to sustain the findings.</p>

<p>Malicious prosecution — Probable cause — Belief of prosecutor — Evidence — Province of court and jury.</p> <p>To support an action for malicious prosecution the plaintiff must show want of probable cause. While it is exclusively the province of the jury to pass upon the testimony and ascertain the facts, it is the duty of the court to say, as a matter of law, whether the facts established do or do not amount to probable cause. What is probable cause and whether it exists under an admitted or clearly established state of facts is a question of law for the court.</p> <p>In an action for malicious prosecution the question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the belief of the prosecutor in the existence of probable cause, based on reasonable grounds. The question does not depend upon the actual state of facts in the case, but upon the honest and reasonable belief of the prosecutor. It is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused party is guilty of the offense.</p>

Appeal, No. 176, Oct. T., 1907, by defendants, from decree of C. P. Somerset Oo., Equity Docket, 1906, No. 4, on bill in equity in case of Henry Berkey v. The Berwind-White Coal Mining Company and The Wilmore Coal Company. Bill in equity for an injunction. Error assigned was in granting a permanent injunction.

<p>Will — Conversion—Equitable conversion — Intention of testator — Necessity — Failure of purpose.</p> <p>The crucial test in the application of the doctrine of equitable conversion always is whether it is absolutely necessary to carry out the purpose and object of the testator or settlor. If its interposition is a necessity, then it may be invoked with all its legal consequences. Before the rule can operate, however, in the case of a will, the purpose of a testator must be ascertained. Until this is done there is no room for the application of the doctrine. The intent of the testator being ascertained, then so far, and only so far, as there is a necessity to carry that into effect will there be conversion, though an actual sale of the land has taken place. The doctrine is not an inexorable rule of law to control the inheritance of estates, or to defeat the intestate laws of the state which direct the disposition of the estates of the dead. It is not an inheritance law, nor is it a rule, enforcible at law or in equity, by which a court can divert the transmission of real property from the inheritable channel provided by the laws of the commonwealth. It is simply a fiction, a creation of equity, to carry into effect the purpose in the disposition of his real estate which a testator has expressed in his will and which, without its application, would be defeated.</p> <p>The sole purpose of the doctrine of conversion in the case of a will, being to effectuate the intention of the testator, it cannot be invoked when his intention fails, or is incapable of accomplishment. The reason of the rule then ceases, and the rule itself no longer obtains.</p> <p>A direction to sell, for a particular object, or with a view of a contingent event, will not work a conversion, if the object cannot be accomplished, or the contingency does not happen, unless the testator plainly intended that the sale should be an end, and not merely a means.</p> <p>Testator by his will gave a farm to his wife, “she to have the use and occupancy so long as she lives and remains my-widow, then and in either case the farm aforesaid .... be sold, and the money arising from said sales of land, together with all the rest, residue and remainder of my estate of whatsoever kind, or nature the same may be, I give and bequeath to my two daughters to be equally divided between them share and share alike. The said sales of land to be made as my daughters, aforesaid, shall see proper.” He appointed his wife and one of the daughters executrices of his will. The daughter who was executrix died after her father, intestate, unmarried and without issue, leaving to survive her her mother and sister. The other daughter married and thereafter died intestate and without issue, leaving to survive her her husband and her mother. The latter subsequently died. Held, that the will did not convert the real estate into personalty so as to vest it as such in the husband of the deceased daughter, and the next of kin of the widow of the testator, but that the land descended as real estate, under the intestate laws, to the heirs of the testator.</p> <p>Brown, Potter and Stewart, JJ., dissent.</p>

<p>Appeal, No. 116, Oct. T., 1906, by Thomas Painter et ah, from decree of O. O. Butler Co., ordering sale of real estate in Estate of George W. Painter, deceased.</p> <p>Petition to sell real estate. For the facts see Painter v. Painter, ante, p. 82.</p>

Appeal No. 346, Jan. T., 1907, by defendant, from decree of C. P. No. 4, Phila. Co., March T., 1907, No. 5,312, on bill in equity in case of The Pennsylvania Railroad Company v. Philadelphia County. Bill in equity for an injunction to restrain the county of Philadelphia from the collection of any penalty imposed by the act .of April 5, 1907, for failure to comply with its provisions. Error assigned was decree entered in accordance with the terms of the opinion.

<p>Appeal, No. 309, Jan. T., 1907, by defendant, from judgment of O. & T. Fayette Co., June T., 1907, No. 27, on verdict of guilty of murder in the first degree in case of Commonwealth v. William 1. Cate.</p> <p>Indictment for murder.</p> <p>At the trial the court charged in part as follows:</p> <p>Evidence of good character is positive evidence and is entitled to the same consideration as other evidence submitted in the defendant’s behalf, an$ may give rise to the existence of a reasonable doubt where such doubt would not otherwise arise in making it improbable that a man of such character would commit the crime charged. [Where the jury is satisfied beyond a reasonable doubt of the defendant’s guilt under all the evidence, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.] [5]</p> <p>Yerdict of guilty of murder of the first degree, on which judgment of sentence was passed.</p> <p>Error assigned was (5) above instruction, quoting it.</p>

<p>Contract — Written instrument — Evidence—Modification of contract.</p> <p>A presumption which is almost conclusive is, that when work is commenced under a written contract providing for its compensation, it is prosecuted to the end for such compensation, and this presumption is not to be overcome by less proof than is required to vary, modify or contradict a written agreement on the ground of the omission from it, by fraud, accident or mistake, of a contemporaneous parol agreement; but this rule does not apply where the variation is not from the compensation, but from the work to be performed.</p> <p>It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted. And this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alteration.</p>

<p>Appeals, Nos. 65, 66 and 67, Oct. T., 1907, by defendant, from orders of C. P. Clarion Co., Aug/T., 1907, No. 126, 127 and 128, making absolute rule for judgments for want of a sufficient affidavit of defense in case of Commonwealth to use of the county of Clarion, at the suggestion and for the use of the Clarion County Poor District v. The United States Fidelity & Guaranty Company.</p> <p>Assumpsit on the official bond of county commissioners.</p> <p>Buie for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals, Nos. 134, 135 and 136, Oct. T., 1907, from order of O. P. Clarion Co., Feb. T., 1906, No. 148, discharging rule-to set aside auditors’ report and strike off judgment against county commissioners in case of Clarion County Poor District v. J. A. Summerville, G. W. Texter and J. S. Saxton.</p>

<p>Negligence — Pleading—Statement of claim, — Evidence—Explosion— Fire.</p> <p>In an action of trespass to recover damages for the burning and loss of a stock of goods where it appears that the plaintiffs and defendants occupied adjoining parts of a building, and the plaintiffs’ statement of claim charges that the loss resulted from an explosion due to the defendants’ negligence in maintaining a fire in their furnace under a boiler in close proximity to certain inflammable and explosive materials, the defendants are not called upon to prove anything, if it appears from the plaintiffs’ own case that the fire had not resulted from the explosion, but that the explosion had followed the fire by at least half an hour.</p> <p>In such a case, even if the plaintiffs .had amended their statement, they could not recover, if the evidence shows that the fire originated in a part of the cellar remote from the inflammable goods, and there is nothing in the evidence to show the origin of the fire.</p>

<p>Deed — Boundaries—Street as boundary line — Easement.</p> <p>Where a deed describes the property conveyed as extending “to the middle line of Howard Street (50 feet wide); thence along the middle line of said Howard Street,” and it appears that Howard street at the date of the deed was not an open street, nor plotted on the city plan, the grantee takes a fee to one-half of the street, with an easement over the ground of the other half of the street which entitles him to prevent any obstruction of, or the erection of any buildings upon, such street.</p> <p>Appeals — Assignments of error — Equity—Final decree.</p> <p>On an appeal from a decree in equity, the specifications of error are defective if the final decree of the court below is not assigned for error.</p>

<p>Appeal, No. 154, Jaü. T., 1907, by Sarah A.Furbush, from decree of O. O. Phila. Co., Oct. T., 1905; No. 82, dismissing exceptions to adjudication in Estate of Charles A. Furbush, deceased.</p> <p>Exceptions to adjudication of Ashman, P. ,J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court in an opinion by Peneose, J., dismissed the exceptions.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Will — Nuncupative will — Evidence—Charge of court.</p> <p>The provisions of the statute relating to wills are mandatory that a will must be in writing and signed by the testator, unless he is prevented from so doing by the immediate apprehension of death and there is neither time nor opportunity to make a written testament. There must be an urgent necessity or an emergency to justify a nuncupation.</p> <p>In a contest to determine the validity of a nuncupative will, where it appears that the testatrix survived thirty-four hours after making of the will, a physician may be permitted to testify as to the physical condition of the decedent during the interval between the making of the will and the decedent’s death.</p> <p>On the trial of an issue to determine the validity of a nuncupative will, where the only question for the determination of the jury is whether the will was made when the testatrix was in extremis, it is reversible error for the court in its charge to dwell on the general proposition that the law does not favor, but merely tolerates, a nuncupative will. Such an instruction tends to lead the jury from the consideration of the one question submitted for their determination.</p> <p>On the trial of an issue to determine the validity of a nuncupative will, it is proper for the court to call the attention of the jury to the interest of the witnesses in the result; and if the court does so in reference to the witnesses for the will it should do the same in reference to the witnesses against the will.</p>

<p>Appeal, No. 169, Jan. T., 1907, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1906, No. 1,999, discharging rule for judgment for want of a sufficient affidavit of defense in case of John Y. Holtby v. H. Marion Zane and the Empire State Surety Company.</p> <p>Assumpsit on a bond of suretyship.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>T-he court discharged a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of court.</p>

<p>Appeal, No. 172, Jan. T., 1907, by appellant, from judgment of O. P. No. 5, Phila. Co., Sept. T., 1903, No. 1,455, on verdict for defendant in case of William Miller et al. v. James Smith Woolen Machinery Company.</p> <p>Assumpsit to recover the price of a machine.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>When Thomas Miller was on the stand the following offer was made:</p> <p>Mr. Johnson: I offer to prove by this witness that (the dryer was changed) after it had been erected and constructed in accordance with the contract, ivithout the knowledge or consent and without notice being given to the plaintiff, and that these changes in construction would necessarily make a different machine. Objected to. Objection sustained. [11]</p> <p>The plaintiff presented this point:</p> <p>1. If the jury find from the evidence that the dryer was constructed, delivered and erected at Cohoes, according to the specifications set out in the proposal, their verdict must be for the plaintiffs. Answer Refused. [1]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1) above instruction, quoting it; and (11) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 189, Jan. T., 1907, by Louis Alexander, ancillary administrator c. t. a. of the estate of Harry D. Lentz, deceased, from decree of O. 0., Phila. Co., Jan. T., 1905, Ho. 56Q, dismissing exceptions to adjudication in estate of Edward J. McMichan, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 184, Jan. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., JuneT., 1905, No. 3,035, on verdict for plaintiff in case of William A. Holmes v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s minor son.</p> <p>At the trial the court permitted the record to be amended by adding the name of Edith Elizabeth Holmes, the decedent’s mother, as a party plaintiff. [1]</p> <p>When the plaintiff was on the stand he was asked the following question:</p> <p>“ Q. What were the whole sales made by you in both trips for the Medlar & Holmes Company, in the territory your son was to cover during the season of 1904 ? ”</p> <p>Objected to.</p> <p>The Court: I am not sure that it would not be admissible to show sales made by the company in this territory.</p> <p>Mr. Brown : If he did as well as or better than his father had done in the spring, it would be fair to assume I think that he would have done as well or better in the fall.</p> <p>Mr. Archibald : “ Q. Can you give us the sales made by the Medlar & Holmes Company in the territory assigned to your son during the year 1904 ? A. Yes, sir. Q. Please give us those figures ? ”</p> <p>Objected to.</p> <p>The Court: Here is a boy who gets his commission on the business done by the company whether he has anything to do with securing the business or not. Is it fair, therefore, to take the average business of the company for years before and since his death ?</p> <p>Mr. Barnes : The business of the company in this section is obtained by the agent who goes through the section. Now, therefore, while it is said that the boy had an opportunity to take commissions on all sales in the section, the sales for the preceding year were made by this man with his experience and knowledge of the places and the following that he had. It seems to me that it comes back to the same question that we had before, and that you cannot bind the defendant in this way. We have heard that there were two.trips in a year and that he had completed one trip.</p> <p>The Court: “ Q. I understood that he had not completed the trip. A. He was only commencing his season. Q. What is the average extent of the trip ? A. This southern trip was preliminary. I would always make it in about two weeks and then start into my northern territory. Q. Iiow long would it all take ? A. His season started in the first of April — April, May and June — about the middle of March is when his real work started in Ohio. Q. And lasted through April, May and June % A. Yes, and in July it dwindled out, and then his vacation would come, but his real season’s work commenced about the 15th of March. He had only done the preliminary work.”</p> <p>The Court: Have you figured out those commissions ?</p> <p>Mr. Barnes: $1,018.25.</p> <p>The Court: You may offer to show the total sales made for one or two years each way.</p> <p>Objected to. Objection overruled. Exception for defendant.</p> <p>Mr. Barnes: I object generally because it is incompetent and irrelevant and especially because the testimony already shows that the sales were made in the preceding year in the territory in question by the plaintiff as the sales agent.</p> <p>Mr. Archibald: “ Q. Gives us the sales made by the Medlar & Holmes Company in the territory assigned to your son during the year 1901.”</p> <p>Objected to as irrelevant and incompetent and especially because the testimony already shows that the sales were made in the preceding year in the territory in question by the plaintiff as the sales agent. Objection overruled. Exception for defendant. [J]</p> <p>Yerdict and judgment for plaintiff for $10,500. Defendant appealed.</p> <p>Errors assigned were (1, T) above rulings.</p>

<p>Negligence — Cellar door — Contributory negligence — Evidence—Province of court and jury — Nonsuit.</p> <p>In an action to recover damages for personal injuries, it appeared that the plaintiff was employed by the defendant to paint a sign on a store window pane. During this work he was compelled to stand on a folding cellar door under the window. Before starting the work he warned the employees of the defendant not to open the folding parts of the door without notice to him. As he stood upon one fold of the door with his eyes and hands directed upwards, a clerk of the defendant, without being observed by plaintiff, opened another fold of the door, and the plaintiff subsequently stepped an inch or two to the right of where he had been standing, and fell into the opening and was injured. Held, that the case was for. the jury, and that it was error to enter a non-suit.</p> <p>A plaintiff in an accident case is not to be nonsuited because one of his own witnesses testifies to acts of the plaintiff showing contributory negligence, where the plaintiff himself denies the commission of such acts.</p>

<p>Appeal, No. 234, Jan. T., 1907, by plaintiff, from order of C. P. Ho. 4, Phila. Co., Sept. T., 1905, Ho. 4,263, making absolute rule to open judgment in case of American Trust Company to use of Federal Trust Company v. Daniel Louderback.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 244, Jan. T., 1907, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1902, No. 4,508, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Charles Beckingham v. James E. Magee and Robert J. Barr.</p> <p>Assumpsit on a bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appears by the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Trusts and trustees — Parol trust — Wills—Legacy—Evidence.</p> <p>A trust as to personalty may be established by parol.</p> <p>If a bequest in a will is in terms absolute, but with an understanding had with the legatee that the estate so bequeathed shall be applied to some purpose designated by the testator, a trust arises which a court of equity will enforce, unless unlawful in itself. The acceptance of the trust may be shown either by the express promise of the legatee, or his assent may be implied from silence. The evidence to sustain such parol promise must be clear, precise and unequivocal.</p> <p>Where a legatee to whom a legacy was left without conditions contained in the will, stated in a letter in her lifetime that she held the legacy as a trust for herself and two nieces, and such written statement is supported by declarations of the legatee made to three disinterested witnesses, to the effect that such an understanding existed between the testatrix and the legatee who subsequently acknowledged the trust relation as to the bequest, the trust will be supported as to the principal in favor of the nieces after the death of the legatee, although there is some doubt under the testimony as to what disposition was to be made of the interest.</p>

<p>Municipalities — Contract—Awarding contracts — Specifications—Patented articles.</p> <p>The director of public works of a city is not required, when publishing specifications for a municipal contract, to decide finally on every item, but he may ask for alternative bids on two articles to be furnished, if he has set up a common standard as to them in the specifications and drawings, and has prescribed a method of bidding which gives an equal opportunity to each bidder.</p> <p>Where the thing to be furnished can be manufactured by anyone in precise conformity to certain and specific requirements or purchased in an open market at a standard price, there is no valid reason for asking for alternative bids; but where the thing is protected by a patent or cannot be bought in an open market and any one of a number of particular kinds fully complies with the established standard, the interest of a municipality will be best served by asking for bids for any or all.</p> <p>Mestrezat, J., dissents.</p>

<p>Appeal, No. 320, Jan. T., 1907, by John Lloyd, assignee of Eose C. Henszey, from decree of O. C. Pliila. Co., dismissing exceptions to adjudication in Estate of Margaret A. Henszey, deceased.</p> <p>Exceptions to adjudication.</p> <p>By her will testatrix devised her estate in trust (1) to pay out and expend the sum of $800 for the support and maintenance of her daughter ; (2) to lay out and expend for the support and maintenance of her granddaughter, upon the death of the daughter, a sum not exceeding $600 ; (3) to provide for the burial of her granddaughter in case of her death ; (4) to set aside the sum of $200 to meet any sudden demands; (5) upon the death of her daughter, “ I direct my said trustees to divide the principal of my estate into four equal parts, and to grant, convey and pay one of said fourth parts unto my son, George C. Henszey, his heirs, executors, administrators and assigns,” and the same as to the other three children ; and (6) should the income of the estate not be sufficient to support and maintain her daughter during her life, and her granddaughter, while single and unmarried during the daughter’s lifetime, or pay her the annuity of $200, or pay for the expenses of their burial, then she authorized, empowered and directed her said trustees to use as much of the principal of her estate as shall be necessary for the purpose aforesaid.</p> <p>Testatrix then gave a power of sale, as follows:</p> <p>“ Item. I authorize, empower and direct my said executors and trustees to sell all or any part of my real estate at such time and times as they shall think proper, either at public or private sale or sales for the best price or prices that can be obtained for the same and upon receipt of the purchase money to sign, seal and execute and deliver to the purchaser or purchasers thereof, good and sufficient deeds or conveyances for the same in fee simple or reserving ground rents free, clear, and discharged of and from all debts and trusts and limitations and without any liability on the part of said purchaser or purchasers to see to the application of the purchase money.”</p> <p>The testatrix died July 5,, 1894.</p> <p>George C. Henszey, the son, about whose estate the contest has arisen, died May 18, 1901, leaving surviving his widow, Eose C. Henszey, and six children.</p> <p>Ellen D. C. Henszey, the daughter, died December 3, 1903.</p> <p>The auditing judge, Ashman, P. J., held that the share of George O. Henszey was not converted prior to the actuaL sale after the death of the life tenant, and that it passed from George O. Henszey as real estate.</p> <p>Exceptions to the adjudication were overruled in an opinion by Anderson, J.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 349, Jan. T., 1907, by plaintiff, from judgment of C. P. Ho. 3, Pbila. Co., Dec. T., 1903, Ho. 720, on verdict for defendant in case of William P. Sack v. Robert Ralston.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 250, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 2, Phila. Co., l)ec. T., 1905, No. 670, on verdict for defendant in case of John L. Stevenson v. E. E. Smith Contracting Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 350, Jan. T., 1907, by plaintiffs, from order of C. P. No. 5, Pbila. Co., Dec. T., 1903, No. 2,978, refusing to take off nonsuit in case of John Hemscher and Ethel Hemscher by her father and next friend, John Hemscher, v. John Dobson and James Dobson, trading as Mount Vernon Mills.</p> <p>Trespass by a girl fourteen years old against her employer to recover damages for personal injuries.</p> <p>The facts are stated in the opinio^ of the Supreme Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Appeal, No. 219, Jan. T., 1907, by defendants, from order of O. P. No. 1, Phila. Co., Dec. T., 1906, No. 5,188, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bank of Morehead v. Peter Hernig and Ely K. Richard.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Negligence — Master and servant — Infant—Contributory negligence— Conflicting testimony — Province of court and fury.</p> <p>In an action by a boy fifteen years old against his employer to recover damages for personal injuries sustained by a fall of a part of a dangerous machine, at which he was working, the case is for the jury where the plaintiff’s own testimony, although uncorroborated, and contradicted by the defendant’s witnesses, tends to show that the part which fell had fallen in the same way two days before, that he then told the foreman about it, and some repairs were made in consequence, that it had fallen three times before his accident, and that he had made complaint each time to the foreman, who replied that the machine was all right, and that he should get to work.</p>

<p>Appeal, No. 168, Jan. T., 1907, by James A. Brennan, from decree of O. C. Phila. Co., Oct. T., 1904, No. 629, dismissing exceptions to adjudication in Estate of James A. Brennan, deceased.</p> <p>Exceptions to the adjudication of Penrose, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Exceptions to the adjudication were dismissed in an opinion by Ashman, J.</p> <p>Error assigned was decree dismissing the exceptions.</p>

<p>Trust and trustees — Banks and banking — Bank deposit in trust for another named — Intention—Evidence.</p> <p>Where a real estate dealer makes a deposit in a bank in his own name as a trustee for another person named, and he does this for his own convenience or advantage, intending to retain title to and power of disposing of the funds, and he carries out this intention by depositing in the account large sums of money belonging to himself and his customers, and withdrawing the same, and he continues to do this until after the person named as cestui que trust dies and until his own death, the representatives of such person have no title to the fund.</p>

<p>Beneficial associations — Corporations—Right to appoint beneficiary— Constitution — By-laws—Act of April 6, 1893, P. L. 7.</p> <p>A beneficial association whose membership is limited to employees of one of three departments of the municipal government of a city, is within the exemption contained in sec. 4 of the Act of April 6, 1893, P. L. 7, and a member of such an association may name as the beneficiary a person other than a member of his family, his heir, blood relative, affianced husband or affianced wife, or a person dependent upon him.</p> <p>Where the charter of a beneficial association provides that upon the death of a member, the death benefits shall be payable “to his widow or orphans, and such or either of them, or such other person or persons as the member may have designated,” the member may designate as beneficiary a friend, although the by-laws of the association provide that “when a member has no living relative, a friend may be named.” In such a case the by-law is not prohibitive but permissive; but even if it should be construed to be prohibitive, it is void as contravening the charter.</p> <p>All the by-laws of a corporation to be of legal validity must be made in conformity with the charter, inasmuch as they are the working machinery of the charter.</p>

<p>Appeal, No. 267, Jan. T., 1907, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 2,782, on verdict for plaintiff in case.of Warren-Ehret Company v. John Byrd.</p> <p>Assumpsit to recover under a contract for roofing.</p> <p>The court charged in part as follows ;</p> <p>It appears that an athletic association connected with the University of Pennsylvania entered into a contract with Wells Brothers Company (whom I will hereafter call Wells for brevity whenever I allude to this firm) for the performance of some work at Franklin Field, which embraced the erection of a grand stand, and it further appears that Wells entered into a contract with the defendant, Byrd, for a part of the work which included at least the placing of what has been called a slag roof upon or in connection with this grand stand. Wells was the direct contractor with the athletic association, and the defendant, Byrd, was a subcontractor of Wells. It further appears that the subcontractor, Byrd, entered into a contract with the plaintiff, the Warren-Ehret Company, for the erection of this slag roof, the contract consisting of two letters, which are as follows:</p> <p>“ Philadelphia, 3/20, 1903.</p> <p>“ Warren-Ehret Co.,</p> <p>“ Land Title Building.</p> <p>“ Gentlemen:—</p> <p>“ Please furnish and put on ... . the Four-ply Slag Grit Roofing on Grand Stand at Franklin Field, in accordance with plans and specifications.</p> <p>“ All the above work to be done at four (4) cents per square foot, less one-half cent (|) per square foot and same to be applied promptly and without delay when ready.</p> <p>“ Yours truly,</p> <p>“ John Byrd.”</p> <p>“March 23, 1903.</p> <p>“ Mr. John Btrd,</p> <p>“ 1426 Catherine St.,</p> <p>“ Philadelphia, Pa.</p> <p>“ Dear Sir :—</p> <p>“Ye have booked your order for covering the roof of the Grand Stand, Franklin Field, for the University of Pennsylvania, as per your order of March 20, 1903, with a Four-ply Slag Grit roof, guaranteed against natural wear and tear for ten years, as per plans and specifications at the rate of four cents (.04) per square foot, less a rebate of one-half cent (.00^) per square foot. The work to be done promptly and without delay. You will kindly notify us about three or four days before the roof is ready for us.</p> <p>“ Thanking you for the order, we remain,</p> <p>“ Yours very truly, -</p> <p>“Warren-Ehret Company,</p> <p>“Alonzo Gibbons, Secretary.”</p> <p>By this contract the defendant, Byrd, ordered a four-ply slag grit roofing to be put on the grand stand at Franklin Field in accordance with plans and specifications. The plans and specifications you will have out with you. The price for the work is stipulated, and the work is ordered to be done promptly and without delay. The plaintiff company accepts this order, accepts the price stipulated, agrees to do the work promptly and without delay, guarantees the roof against natural wear and tear for ten years as per plans and specifications.</p> <p>This is the contract between the parties to the case which you are now trying. You have heard a great deal of discussion about the terms of the contract between the defendant Byrd, and the direct contractor, Wells, and while I instruct you at this point that the covenants of that contract are not binding upon the plaintiff in this case, I desire to say but a word upon the subject so as to rid your mind of any ambiguity or uncertainty that may have arisen concerning the matter. [Before the Warren-Ehret Company could be held to be bound by the contract between Wells and Byrd, it would have to be shown that the Warren-Ehret Company had agreed, in its contract with Byrd, to accept as applying to itself the terms and covenants of Byrd’s contract with Wells.] [14] While some of the letters written by Mr. Byrd to the plaintiff which are in evidence (and you will have them out with you), state that the plaintiff would be held to the performance of its work under Byrd’s contract with Wells, because the plaintiff had agreed to the terms of that contract, Byrd’s testimony upon the stand, when he was relating a discussion which took place between him, Mr. Duross, of the plaintiff company, and Mr. Gilbert, of Wells, was (although this is entirely for you to recall) that Mr. Duross of the plaintiff company refused to accept the terms of that contract and thereby release him from their operation as against him. This is Byrd’s sworn testimony, and if it is true, notwithstanding that he says that Duross prior to that interview had agreed to accept the terms of his (Byrd’s) contract with Wells, that acceptance never became an accomplished fact, nor is there any where in the evidence anything shown of a legal consideration passing between Byrd and the plaintiff for the alleged superseding contract. I say superseding, because [according to the contract between Byrd and the plaintiff, as constituted by the letters of March 20 and 23, the plaintiff did not either directly or by implication agree therein to be bound by the terms of any contract except that of the two letters, and therefore, if the plaintiff at any time assumed Byrd’s contract with Wells, it must have been subsequently to March 23, 1903, and, therefore, a superseding contract.] [15]</p> <p>[And even if, as contended by the defendant, the acceptance of the contract by the plaintiff in the letter of March 23, to do the work according to the plans and specifications, which plans and specifications were contained in the contract between Byrd and Wells, brought to the notice and knowledge of the plaintiff the covenants contained in that contract, the plaintiff could not be bound by those covenants, at least in so far as doing the work to the entire satisfaction of the architects was concerned, and in so far as making the final acceptance of the work and payment therefor dependent upon the acceptanee by the architects of the work to their entire satisfaction, and in so far as making the architects the final arbiters of any and all disputes or differences of opinion that might arise between any contractors or subcontractors, because in defining what is meant by contractors and subcontractors this contract between Wells and Byrd says that “ whenever the word contractor is used in this specification it refers to those having a direct contract with the owner” — Wells, “and to subcontractors to such direct contractors” — Byrd to Wells, “and to no other persons whatsoever.” As the plaintiff is a subcontractor of a subcontractor, he comes under the phrase “ no other persons whatsoever,” and, therefore, the plaintiff is expressly excluded in respect at least of the matters to which I have just referred in which the architects’ powers, control and supervision over the work are defined.] [16]</p> <p>You therefore have the issue very plainly marked out, although you will probably be met with some difficulty in solving the questions because of the conflict of the evidence that has been presented before you.</p> <p>[Now, the issue plainly stated is : The plaintiff having entered into a contract to do this work according to certain plans and specifications, has it done the work in a workmanlike manner in substantial compliance with the terms of the contract as constituted by the two letters referred to ? [17] Well, the plaintiff says yes; the defendant says no. You must ascertain the fact.</p> <p>I do not propose to go into the details of the testimony with you, but will leave all of the evidence, where it properly belongs, with you.</p> <p>[According to the plaintiff’s evidence the exact requirements of the specifications were not complied with. They tell you in substance and effect that very shortly, I think within a day or two, after they began work, a question arose as to whether they were putting down four-ply felt and pitch in the manner as required by the specifications. They say that they then laid a sample portion of the roof in the presence of the architects, and T think a representative of Wells (if I am in error you will correct me), and that it was satisfactory to them, and that they were directed to proceed in that way, and they tell you that they did so proceed with the work. My instruction to you upon this branch of compliance with the specifications is that if you believe that, although the specifications directed a certain method, all the parties in interest agreed that another method should be substituted, then so far as the substituted method was carried out, if you believe that it was carried out, there was substantial compliance in respect of that part of the specification.] [18] If you do not believe such to have been the case, then there was a direct violation of the contract, and so far as that violation would, in your judgment, affect in dollars and cents the claim of the plaintiff here, the amount of the verdict, if you should reach the question of amount, would be affected.</p> <p>I think that it is safe to say that it is a conceded fact that this roof leaked. The plaintiff contends that the leaks were caused, not by improper material or defective workmanship, but by the fact, as it alleges, that certain lag screws were falsely placed, as the architect described it, through this roof. It appears that upon the roof there were a large number of iron benches screwed fast with 22,000 lag screws, and the plaintiff contends that a great number of them, instead of going through the roof and into the rafters underneath, as they should have done, missed the rafters in a very great many places (you will remember all this evidence), and thus afforded a means by which water could percolate through the roof. The plaintiff further contends that the water did percolate through these falsely placed lag screw holes, and that to these falsely placed screws alone is attributable the fact of the leaking of the water through the roof. On the other hand, the defendant contends, and has produced a number of witnesses to prove, that there were comparatively few falsely placed lag screws, and that this leakage was not at all attributable to the lag screws that had failed to penetrate the rafters, as you have heard described ; but that it was due to defective workmanship by the plaintiff, in that the places upon which the sleepers were to rest were not properly covered with pitch in accordance with the plans and specifications, and that there were spaces between the stringers of from one-eighth to one-quarter of an inch, left by the plaintiff’s workmen, through which the water found an outlet.</p> <p>The defendant resists the claim of the plaintiff upon the further ground, as he alleges, that the felting was not four-ply over the whole roof, as required by the specifications, but was a three-ply solid roof with a dry sheet underneath it. Some of the witnesses have testified to this effect, although I think, and you will correct me' if I am wrong, that the defendant on the stand said that the under sheet of felt was not improperly laid without pitch under it, because if pitch had been put under the lower sheet of felt, the shrinkage of the boards would have had a tendency to have torn the felt which would have adhered to the boards because of the pitch if so applied. That is the way I understood the defendant to have testified upon this subject. As I have said, you will substitute your own recollection for mine, if I am in error. The plaintiff contends that it is a four-ply felt covering.</p> <p>The defendant also sets up as a defense a further violation by the plaintiff of the specifications in that the pitch was not properly applied for the carpenters in placing the stringers or other woodwork, you will remember what it was, in adjusting the seats upon this roof; and also that the slag or slag grit was not of the sizes specified, and that because of this there was a great deal of washing of sand into the gutters, damaging the gutters and necessitating the hauling away of this sand at some considerable expense. The plaintiff meets this by telling you that the slag grit placed upon this roof was the commercial article which fully met the specifications, and that the quantity of it that he saw in the gutters was no more than must reasonably be expected in the case of a new roof of this kind. The architect told you that there was too much of this slag grit used, which would affect the question of performance in a workmanlike manner ónly, because the specifications, as I have read them, do not state the amount or quantity of slag grit to be put on. The defendant further tells you that at an expense of something over $750 he had had the leakage of the roof stopped, and that the bill for hauling away the loose sand was $150, but as to these amounts it is proper to say that there has been no itemization given you in the evidence.</p> <p>I think that I have thus substantially stated to you the contentions of the plaintiff and the defendant. You will remember everything in the case, and give to all of it very careful consideration. If I have misstated anything, you will correct me by your recollection, and the same applies to any omissions that I may have made. In other words, the whole case is in your hands.</p> <p>If you find, after a very careful consideration of the whole matter, that the plaintiff committed such breach or breaches of the contract as not to have performed his work in substantial compliance therewith and in a workmanlike manner, then 3ou will have to find a verdict for the defendant. [If, howevér, you should finally determine that the plaintiff has performed the work embraced in the contract in substantial compliance with it, and in a workmanlike manner, then you may find a verdict for the plaintiff.] [19]</p> <p>[As to guarantee of this work, the contract "between the plaintiff and the defendant provided that the plaintiff’s guarantee was to be against natural wear and tear for ten 3ears, as per plans and specifications, and I instruct you that there is nothing in the evidence upon which you could base a finding that the plaintiff’s guarantee should take a wider scope. It is not a valid defense that the plaintiff has not given a separate and formal guarantee, because the guarantee contained in his letter of acceptance of the order to do the work is just as binding upon him as a separate written guarantee would be. [20]</p> <p>[So far as concerns leaks caused by work done or material furnished by anybody other than the plaintiff, if you find that leaks were so caused, the plaintiff is not responsible for them.] [21] So far as leaking of this roof due to defective workmanship or material, either or both, on the part of the plaintiff, is concerned, if you find that the leakage came about in this way, as alleged by the defendant, the plaintiff is responsible, and, if you find that such was the case, you will take it into consideration along the lines of my previous instructions to you upon the law.</p> <p>[The plaintiff claims for the entire work at the contract price for something over 76,000 square feet of roofing, which it alleges amounts to $2,682.68, upon which it asks for and is entitled to, if you find for the plaintiff, interest from September 21,1903, at which time it alleges, and it is not denied, that it tendered to the defendant a written guarantee in addition to and following the terms of the guarantee contained in its letter of acceptance of the order to do this work.] [22] The plaintiff claims that the work was at this date fully completed, and that it was done, and the materials furnished, in substantial compliance with the terms of the contract.</p> <p>Yerdict and judgment for plaintiff for $3,233.61. Defendant appealed.</p> <p>Errors assigned among others were (14-22) above instructions, quoting them.</p>

<p>Escheats — Decedents’ estates — Constitutional law — Statute of limitations —Act of May 2,1889, P. L. 66.</p> <p>The Act of May 2, 1889, P. L. 66, entitled “An Act defining and regulating escheats in cases where property is without a lawful owner, and providing for more convenient proceedings relative to the same,” establishes a complete system of escheats, and it was the first and only act which gave to the orphans’ court jurisdiction over escheats. If a proceeding in escheat has been conducted fully and specifically in accordance with the terms of the act, and a final decree in escheat has been entered after notice has been published in the form as provided by the act, relatives of the decedent who had no actual notice of the proceedings cannot after the expiration of seven years from the date of the decree have the decree opened and secure restitution of the money from the treasury of the commonwealth.</p> <p>The Act of May 2 1889, P. L. 66, does not contravene the constitution of Pennsylvania because it requires the orphans’ court to certify an issue to the common pleas; nor does it contravene the constitution because it fixes a period of three years within which any interested party can traverse the final adjudication of escheat.</p> <p>Where the orphans’ court enters a final decree of adjudication and distribution, and in a different proceeding in the same estate enters a final decree of escheat, the court cannot subsequently at the instance of relatives of the decedent, open the decree of distribution and order restitution of the money by the state, without having previously vacated the final decree of escheat.</p>

<p>Appeal, No. 246, Jan. T., 1907, by plaintiff, from judgment of O. P. No. 3, Pliila. Co., March T., 1905, No. 1,493, on verdict for defendant in case of Henrietta Kennedy v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Road law — Vacation of street — Appeals—Opening decree — Laches.</p> <p>Where the court of common pleas has entered an order quashing a petition for the appointment of viewers to assess damages for the vacation of a street, and the petitioners have not appealed from the order within the statutory period, they caiinot after the expiration of eleven years from the date of the order move the court to set it aside because the Supreme Court in another proceeding between different parties had declared the law in an exactly contrary sense to that upon which the order dismissing the petition was based.</p>

<p>Practice, C. P. — Trial—Charge—Erroneous answer to points.</p> <p>An erroneous answer to a point will be assumed to be harmful although the trial judge may have correctly stated the law in his general charge.</p> <p>Negligence — Master and servant — Dangerous machine — Laundry— Contributory negligence.</p> <p>An experienced operator in a laundry cannot recover damages from her employer for injuries sustained by having her hand caught under a hot roller of an ironing machine, where it appears that the accident was caused by too much packing having been placed on the surface of the iróning-board; that it was a part of the operator’s work to cover the board with packing of felt and muslin, but on the day of the accident this had been done by the superintendent; that owing to the thickness of the packing over which the operator had entire control, the clasp of the machine would not catch a narrow neck-band; that the operator when she came to a shirt with a narrow band placed her hand on it three or four inches from the roller; and that while doing this her hand was caught under the roller.</p> <p>In such a case the employer cannot be held liable for the neglect of the superintendent in covering the board, since in so doing, if a vice-principal, he was engaged in the work of an ordinary employee and was a fellow servant; nor in such a case can an employer be held liable because of , the removal from the machine prior to the accident of a small appliance, which was not a safety appliance, and the presence of which would not have avoided the accident, although its use would have enabled the operator to release her hand with less injury.</p>

<p>Appeal, No. 356, Jan. T., 1907, by defendant, from judgment of Superior Court, Oct. T., 1906, No. 116, affirming order of C. P. No. 5,. Phila. Co., Dec. T., 1905, No. 1,261, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. Frank Weckerly.</p> <p>Assumpsit on promissory notes.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 355, Jan. T., 1907, by defendant, from judgment- of Superior Court, Oct. T., 1906, No. 33, affirming order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 860, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. William W. Pinkerton.</p>

<p>Appeal, No. 163, Jan. T., 1907, by-plaintiffs, from decree of C. P. No. 5, Phila. Co., 'Dec. T., 1904, No. 4,233, dismissing bill in equity in case of George R. Bower et al., Administrators of Henry Bower, deceased, v. Anne M. Walker, surviving partner of the firm of Powers & Weightman, and executrix of the will of William Weightman, deceased.</p> <p>Bill in equity to compel redelivery of shares of stock.</p> <p>Errors assigned were as follows:</p> <p>(1) The trial judge erred in sustaining the defendants’ objection to and refusing to admit in evidence the settlement of October 4, 1889. (20) Decree dismissing the bill.</p>

<p>Road law — Change of grade — Damages—Action of trespass — Appointment of viewers — Borough—Ordinance.</p> <p>An action of trespass will not lie against a borough to recover damages for injuries to an abutting property owner caused by changing the grade of a public street where there is no actual taking of property. In such a ease the statutory remedy of an assessment of damages by a jury of view must be pursued.</p> <p>Under an ordinance of a borough providing.for the paving and curbing of a street, there is an implied authority to do everything necessary and usual in curbing and paving, including such changes in the grade as are necessary or essential to the paving.</p> <p>The act of the officers or agents of a borough in changing the grade of a street without an ordinance authorizing it in the first instance, may be ratified by the borough subsequently.</p>

<p>Appeal, No. 251, Jan. T., 1901, by plaintiffs, from decree of C. P. Mo. 4, Phila. Co., Dec. T., 1904, Mo. 2,030, dismissing bill in equity in case of Elizabeth S. Chandler and Edmund O. Gause to use of Elizabeth S. Chandler v. Swithin Chandler.</p> <p>Bill in equity for specific performance.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Negligence — Hatchway in sidewalk — Evidence—Contributory negligence.</p> <p>In an action against the proprietors of a department store to recover damages for personal injuries, it appeared that in the public pavement alongside of the store there was a hatchway. The hatchway was surrounded by a booth with doors which gave access to and from the street into the booth. There was evidence that the door of the booth through which plaintiff entered, supposing that it was an entrance to the store, was so constructed that it swung in, and not out, and that on the outside of it there was a catch.or hook that was fastened when plaintiff approached the door. There was nothing to show that plaintiff either observed it, or that it was so placed and of such a character, that an ordinarily prudent person would have observed it; nor was there any evidence showing that plaintiff met with any resistance in opening the door. The witness who testified as to the existence of the catch stated that the plaintiff simply pushed open the door and entered. After passing the door the plaintiff fell down the hatchway and was injured. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Negligence — Railroads—Pullman car conductor — Passenger—Fellow servants — '-Acts of April 4, 1868, P. L. 58, and June 10, 1907, P. L. 522 —Statutes—Repealing statutes — Retroactive act.</p> <p>A person not in the employment of a railroad company, but using its facilities under a contract between the railroad company and his employer which simply permits his carriage for and in connection with a business of his employer conducted upon the railroad, is not a passenger, but under the Act of April 4, 1868, P. L. 58, is a fellow servant of the trainmen, and if such a person is killed by the negligence of a trainman prior to the passage of the Act of June 10, 1907, P. L. 522, which repealed the Act of April 4, 1868, P. L. 58, the widow of such person cannot recover damages for his death from the railroad company.</p> <p>The act of April 4, 1868, exempting railroad companies from liability for personal injuries and death in a particular class of cases vested in railroad companies a legal right to exemption in such cases, which the legislature may not interfere with by a repeal of the act.</p> <p>The Act of June 10, 1907, P. L. 522, which repeals the Act of April 4, 1868, P. L. 58, does not affect the legal exemption of railroad companies from liability in cases in which the cause of action had accrued prior to the passage of the repealing act, and which were within the terms of the act of April 4,1868.</p> <p>In an action by the wife of a Pullman car conductor against a railroad company to recover damages for the death of her husband, killed in an accident in which the train on which the deceased was riding ran into freight cars which had buckled on the next track, the happening of the accident raises no presumption of negligence against the defendant, and the plaintiff is bound affirmatively to prove negligence; and if according to plaintiff’s own facts it appears that the accident was caused by the negligence of a trainman on the freight train no recovery can be had against the defendant, because the accident was caused by the.negligence of a fellow servant of the deceased.</p> <p>Practice, G. P. — Judgment non obstante veredicto — New matter — Exceptions■ — Appeals.</p> <p>Where the court enters judgment for defendant non obstante veredicto, and twenty days thereafter counsel for plaintiff ask leave to file an additional exception containing new matter, and this is disallowed without any exception being taken to the order of disallowance, the appellate court has nothing on the record before it which calls for consideration of the new matter contained in the exception which was disallowed.</p>

<p>Appeal, No. 265, Jan. T., 1901, by plaintiff, from decree of O. P. No. 5, Phila. Oo., J une T., 1902, No. 3,458, dismissing bill in equity in case of Mercantile Library Company of Philadelphia v. Trustees of the University of Pennsylvania.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 329, Jan. T., 1907, by-plaintiff, from judgment of O. P. No. 4, Phila. Co., Sept. T., 1901, No. 386, on verdict for defendants in case of Frederick Stable, in his own right and as father and next friend of William Stahle, his minor son, v. Frederick J. Poth.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p>Wills — Gift to wife — Life estate — Personal estate — Intention.</p> <p>Where a husband gives, devises and bequeaths all his real and personal estate to his wife “to take and use same, and the net income thereof during all the term of her natural life, without giving security as life tenant thereof,” without limitation over, or intervention of trustee, the wife takes a life estate only in the personalty. If an absolute estate had been intended, the words “without giving security as life tenant thereof,” would be meaningless.</p>

<p>Appeal, No. 74, Jan. T., 1907, by defendant, from order of C. P. Montgomery Co., Oct. T., 1906, Ho. 47, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Richard T. S. Hallowell v. Mary C. Hoey.</p> <p>Assumpsit on a building contract.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 275, Jan. T., 1907, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1905, No. 112, for defendant non obstante veredicto in case of Benjamin F. Yaughn, Administrator of Elbridge E. Vaughn, deceased, v. Longmead Iron Works.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Yerdict for plaintiff for $4,186, upon which judgment was subsequently entered for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 337, Jan. T., 1907, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1906, No. 104, on case tried by the court without a jury in suit of Ií. T. Duke to use of the Norristown Trust Company v. North Penn Gas Company.</p> <p>Assumpsit on a written contract.</p> <p>The case was tried by the court without a jury under the act of April 22, 1874.</p> <p>The court in an opinion by Swartz, P. J., found in favor of the plaintiff and against the defendant for $1,789.49.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and conclusions of law.</p>

<p>Appeal, No. 341, Jan. T., 1907, by defendant, from judgment of O. P. Montgomery Co., Deo. T., 1906, No. 85, on verdict for plaintiff in case of Julia Frances Vincent v. Lehigh Valley Transit Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $6,650. Defendant appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

Appeal, No. 365, Jan. T., 1907, by-Peter A. Shuler, from decree of O. C. Lehigh Co., Sept. T., 1906, No. 13, refusing an issue devisavit vel non in estate of Mary A. Moyer, deceased. Appeal from register of wills. The opinion of the Supreme Court states the case. Error assigned was decree refusing issue devisavit vel non.

<p>Appeal, No. 9, Jan. T., 1908, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1907, No. 65, on verdict for plaintiff in case of William B. Clark v. II riah Kurtz.</p> <p>Assumpsit to recover for money had and received.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff for $1,590. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 198, Jan. T., 1907, by defendant, from judgment of O. P. Chester Co., Jan. T., 1907, No. 32, on verdict for plaintiff in case of The National Bank of Chester County v. Elizabeth O. Thomas and Francis G. Thomas, Executors of I. Preston Thomas, deceased.</p> <p>Assumpsit on a guaranty.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict and judgment for plaintiff for $18,176.46. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Wills — Estate in fee — Life estate — Devise.</p> <p>A devise of a fee simple absolute in the first instance will not be reduced to an estate for life unless the intention to do so is clear.</p> <p>Where there is a plain devise of a fee simple to take effect immediately in possession, a devise over in case of the death of the first taker does not mean death generally, whenever it may happen, but death in the lifetime of the testator.</p> <p>Testatrix devised her real estate to her three daughters with the proviso that none should alien without the written consent of the others. In the final clause of her will she provided that “in the event of any of my said daughters dying without issue to survive her or them, then and in that case, I give and devise the share or shares” of the one so'dying to the others or their heirs in equal shares as tenants in common, subject to the same proviso as to alienation. Held, that the daughters took an estate in fee simple.</p>

Appeal, No. 351, Jan. T., 1907, by defendants, from decree of C. P. Schuylkill Co., May T., 1907, No. 1, on bill in equity in case of Samuel Strause v. Elias Berger, William II. Berger and Mahlon II. Boyer. Bill in equity for specific performance. The facts are stated in the opinion of the Supreme Court. Error assigned was decree awarding specific performance.

<p>Criminal law — Murder—Manslaughter—Provocation—Attach on friend —Province of court and jury.</p> <p>To reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting, if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder. Where the facts are undisputed or clearly established, the sufficiency of the provocation is for the court.</p> <p>On the trial of an indictment for murder the trial judge was right in refusing to affirm a point as follows: “If the jury believe that the deceased had just made an attack and committed a violent assault and battery upon A, who was much the inferior of the deceased in size and weight, and that this was done in the presence of the defendant, who was the friend and companion of A, and they also find that this attack so excited the passion of the defendant as to destroy all self-control, and that in this condition of ungovernable rage and without sufficient cooling time he shot and killed the person so attacking, the grade of the homicide is clearly but manslaughter.”</p> <p>In general, serious injury immediately inflicted or. threatened to wife or husband, child or servant, will on account of the relationship of the parties reduce the killing to manslaughter, as if the injury had been to self; but this does not apply to a case of a friend or companion.</p> <p>On the trial of an indictment for murder it is correct to charge: Voluntary manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences or cruelty. Being sometimes a willful act, as the term “voluntary” denotes, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty.</p>

<p>Appeal, No. 190, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 5, Phila. Co., J une T., 1902, No. 3,140, for defendant non obstante veredicto in case of Thomas Finan v. Daniel K. Sutch.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,000.</p> <p>The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Constitutional law — Special legislation — Mechanic’s lien — Attachment against owner — Act of June 4,1901, P. L. 431, sec. 28.</p> <p>Section 28 of the mechanic’s lien Act of June 4,1901, P. L. 431, which gives to a subcontractor or material man a right to issue an attachment execution against the owner, or other party indebted to the contractor for labor or materials furnished, is special legislation in favor of a special class of creditors, and offends against article III, sec. 7 of the constitution which forbids the general assembly from passing any local or special law “providing or changing methods for the collection of debts, or the enforcing of judgments.”</p>

<p>Corporations — Water companies — Eminent domain — Acts of April 29, 1874, P. L. 73, and May 16,1889, P. L. 226 — Public use.</p> <p>A water company chartered under the Act of May 16, 1889, P. L. 226, which amended clause 9 of sec. 2, of the general corporation act of April 29, 1874, has the right of eminent domain, inasmuch as the legislature in the act of 1889 clearly intended to confer upon companies incorporated for the supply, storage or transportation of water and water power for commercial and manufacturing purposes, the same rights, privileges and powers as those possessed by companies chartered for the supply of water to the public under clause 9 of the act of 1874.</p> <p>A legislative declaration that the purpose for which a corporation is incorporated is a public use, is not conclusive and final. The question whether the use is or is not public, must be determined by the courts.</p> <p>It is not essential that the whole community or any considerable portion thereof, should directly enjoy or participate in an improvement, to make the use public. If the proposed improvement tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the community, the use is public.</p> <p>A water company incorporated under the Act of May 16, 1889, P. L. 226, for the supplying, storage or transportation of water and water power for commercial and manufacturing purposes, is incorporated for a public use, and is invested with the right of eminent domain. The fact that the principal consumer of the water of the company will be a railroad company, and that owing to the nature of the country very few, if any, citizens are engaged in commercial or manufacturing enterprises, is immaterial as to the question of public use.</p> <p>Mestrezat and Stewart, JJ., dissent.</p>

<p>Wills — Trusts and trustees — Gift of income — Husbands and wives of deceased children — Codicil.</p> <p>The testator devised the residue of his estate to his executors in trust to pay the income to his wife for life and at her death in trust to pay the income to his five children, share and share alike, and to the issue of any deceased child. He added this provision, “provided, however, that upon the decease of either of my said children, without leaving lawful issue and leaving a husband or wife surviving, then my said trustees shall pay one-half of such deceased child’s share of the rents, issues and profits of my said residuary estate unto the surviving husband or wife for and during all the term of his or her natural life. And the remaining one-half part of such deceased child’s share shall go to and be divided equally among my said remaining children and the issue of my deceased child or children in manner aforesaid.” There was no devise of the corpus of the estate. The gift of income to the husbands and wives of deceased children was revoked by a codicil in these words: “ This clause I desire to revoke and the whole share shall go to and be divided between my surviving children share and share alike, and in no way whatever shall the husband or wife of any of my deceased children receive any portion of my estate.” Held, that the trust created by the will should be upheld as long as any of the testator’s children survived, to give effect to his intention that the husband or wife of a deceased child should be excluded from any participation in his estate.</p>

<p>Appeal, No. 30, Jan. T., 1908, by L. M. Taussig, from decree of C. P. Ho. 4, Phila. Co., March Term, 1891, Ho. 931, dismissing exceptions to auditor’s report in Trust Estate of George B. W. Ball and wife.</p> <p>Exceptions to report óf B. Gordon Bromley, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Extradition — Constitutional law — Sufficiency of warrant — Character of the offense.</p> <p>Under the act of congress of February 12, 1793, Rev. Stat. 1022, passed in furtherance of sec. 2, art. IV, of the constitution of the United States, relating to extraditions, it is requisite that a demand for the fugitive from justice be made by the executive authority of the state or territory from which he fled; that this be accompanied by an indictment found, or an affidavit made before a magistrate charging the fugitive with having committed a crime against the law of the state or territory; and that the copy of the indictment or affidavit be certified as authentic by the chief executive of the state or territory from which such person fled. The court must also find that the accused is in fact a fugitive from justice.</p> <p>If the jurisdictional facts authorizing the extradition of the accused appear from the papers, the court on a hearing in habeas corpus proceedings will not go into the merits of the case, nor determine the guilt or innocence of the accused; nor will the court consider evidence to the effect that the criminal proceedings were instituted in the demanding state with bad motives.</p> <p>It is the province of the courts of the state where the crime was committed to declare what its laws are and to determine whether particular acts on the part of an alleged offender constitute a crime under such laws.</p> <p>Appeals — Records—Evidence—Extradition proceedings — Bill of Exceptions.</p> <p>An appeal from an order in extradition proceedings takes up only the record, and not the evidence. The fact that the judge of the quarter sessions granted a bill of exceptions, is immaterial, since it is based on no statutory authority.</p>

<p>Contract — Sale—Conditional sale — Bailment—Personal property — Alternative remedies.</p> <p>In an action upon promissory notes where it appears that defendant received from plaintiff a machine under an instrument in writing called a lease, by which the defendant was to “ pay for the use and hire ” of the machine a certain sum of money each month for a term of months, arid thereafter upon the payment of SI.00 to receive a bill of sale for the' machine, and it also appears that the plaintiff had the right upon default by the defendant to enter upon defendant’s premises and take possession of the- machine- without trespass, the plaintiff cannot, after having taken possession of the machine at the end of the term, and before any money had been paid, maintain an action against the defendant on the notes. In such a case the remedy of the plaintiff is in the alternative. He may either affirm the contract and sue on the notes, or take posses-' sion of the machine. Having elected one remedy he cannot have the benefit of the other.</p>

<p>Appeal, No. 353, Jan. T., 1907, by defendant, from decree of C. P. Lebanon Co., Equity Docket, 1906, Ho. 9, on bill in equity in case of Ray T. Sherman v. Rudolph F. Herr.</p> <p>Bill in equity for specific performance.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree enforcing specific performance.</p>

<p>Will — Devise—Life estate.</p> <p>Testator by his will directed as follows: “I give and bequeath to my son — Frank, on his reaching the age of twenty-one years, a lot of land being number twenty on Lackawanna avenue in the Eighth ward said City of Scranton together with all improvements thereon, also a lot of land on Jefferson avenue said city being number nineteen (19) Block, 73 in the ninth ward, with all improvements thereon, to have and to hold the same for and during his natural life, and at his death I give and bequeath the same to his next nearest blood relations, share and share alike.” All parts of the will were badly punctuated; and in another clause apt words were used to give an estate in fee. Held, that the son took only a life estate in the Lackawanna avenue lot.</p>

<p>Appeal, No. 264, Jan. T., 1907, by-</p> <p>defendant, from order of O. P. Wayne Co., March T., 1907, Eo. 99, awarding mandamus in case of John Kuhback v. Irving Cut Glass Company.</p> <p>Petition for mandamus.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in awarding writ of mandamus.</p>

<p>Taxation — Assessment—Appeal from assessment — Excessive valuation —Legality of assessment — Equity.</p> <p>The remedy of a citizen aggrieved by an excessive valuation of his property is by an appeal to the county commissioners and to the court of common pleas. He has no standing to raise such an inquiry by a suit in equity.</p> <p>A bill in equity attacking the legality of a tax assessment on the ground that the valuations had not been fixed by the assessors acting together as a board, is properly dismissed where the court finds as a fact that although the assessors each made a separate estimate they had subsequently met as a body, and made a final assessment.</p>

Appeal, No. 361, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 3,644, on verdict for defendant in case of Ann Flood v. Most Rev. P. J. Ryan, Archbishop of Philadelphia. Ejectment for land in the city of Philadelphia. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for defendant. Yerdict and judgment for defendant. Plaintiff appealed.

<p>Appeal, No. 405, Jan. T., 1907, by defendant, from judgment of O. P. Chester Co., Aug. T., 1907, No. 75, on verdict for plaintiff in case of John W. Zeigler, Administrator c. t. a. of Sarah Ann Cobourn, deceased, v. Robert Storey.</p> <p>Scire facias sur mortgage.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeals — Paper-books—Statement of question involved — History of the case — Rules of court — Practice, Supreme Court — Murder.</p> <p>A paper-book even in a murder ease may be suppressed and the appeal quashed, if the. statement of the question involved and the history of the case are of unduly great length and filled with irrelevant and argumentative matters.</p> <p>Criminal law — Murder—Degree of crime — Charge—Points.</p> <p>Where the only issue in a murder trial is whether the crime was murder of the first or of the second degree, a trial judge cannot be charged with insufficiently charging the jury, if he fully and accurately defines murder with its essential elements, and presents the statutory distinction as to degrees, the circumstances affecting the distinction such as the premeditation, the time required to be shown to sustain a finding as to it, and the failure of presumption from the killing to rise above murder of the second degree.</p> <p>Where in a murder trial points are presented involving circumstantial reference to the particular case, the court commits no error in affirming the points with qualifications in reference to matters improperly excluded, or to matters not specified, but which should have been included.</p>

<p>Statute of frauds — Guaranty—Contract not within the statute — Fund in hands of guarantor.</p> <p>If a special promise is made by the surety of a public contractor to a subcontractor, to see the latter paid for the performance of work which would be in relief of the obligation of the surety upon its prior bond, and if this payment is to be made from a fund assigned to, and hold by the surety for the payment of subcontractors, the promise does not fall within the statute of frauds.</p> <p>In such a case if the surety saw fit to disburse the amount for other purposes, in disregard of its promise to the subcontractor, that is its own affair, and it is not thereby relieved from liability to the subcontractor.</p>

<p>Waters — Boroughs—Appropriation of water — Damages—Viewers.</p> <p>Damages occasioned by the taking of water to supply a municipality are to be estimated as of the time of the taking, and are to include the amount of water, the right to divert which is taken, irrespective of the amount actually diverted.</p> <p>Where a borough council adopts a resolution appropriating an entire stream, but by a supplemental resolution limits the amount of water to be taken per day not to exceed a stated number of gallons, and five years thereafter a lower riparian owner whose property had been injured by the diversion of water, files a petition for the appointment of viewers, the jury in determining the damages must limit their consideration of the question to how much the property was reduced in value by reason of the appropriation and withdrawal from the stream of the number of gallons specified in the supplemental resolution.</p> <p>Damages — Unreasonable demand.</p> <p>In such a case if the petitioning landowner made an exorbitant and unreasonable demand, so that reasonable settlement with him was impossible, the court may properly instruct the jury that the damages should not be increased because of delay in the settlement.</p> <p>Where a borough makes two successive appropriations of water from the same stream, a lower riparian owner who acquired title after the first appropriation, will be entitled to no damages therefor, but will be restricted to the damages resulting from the second appropriation.</p>

<p>Appeal, No. 333, Jan. T., 1906, by defendant, from order of C. P. Lebanon Co., March T., 1906, Nos. 11 and 12, making absolute rule for judgment for petitioner in case of Lancaster Trust Co. v. Margaret J. Long and Frank B. Long, her husband.</p> <p>Rule for judgment for petitioner on the whole record.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for petitioner on the whole record. .</p>

<p>Ejectment — Defenses—Record of prior suit — Res adjudicata — Act of May 8,1901, P. L. 142.</p> <p>Under the Act of May 8,1901, P. L. 142, relating to defenses in actions of ejectment, the record of a prior suit in equity claimed to be res adjudicata of the matter in dispute, should not be admitted in evidence, where there is no reference to such a defense set up in the answer; but the appellate court will not reverse because of the admission of such record, where it appears that the only result would be an amendment of the pleadings in the court below so as to admit the record, and an entry of judgment for defendant on the ground of res adjudicata.</p> <p>In an action of ejectment, where the plaintiff claims that the defendant had taken title with full knowledge that his grantor held the land as a trustee ex maleficio for the plaintiff, the defendant may set up as a defense the record of a former suit in equity between the plaintiff and the defendant's grantor in which the whole question as to the trusteeship ex maleficio has been tried on its merits and decided against the plaintiff.</p>

<p>Appeal, No. 211, Jan. T., 1907, by defendant, from judgment of O. P. Monroe Co., Feb. T., 1906, No. 20 on verdict for plaintiff in case of George Besecker v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned amongst others was in submitting the case to the jury.</p>

<p>Appeal, No. 88, Jan. T., 1908, by plaintiff, from order off O. P. .Bradford Co., Feb. T., 1906, Mo. 10, refusing to take off nonsuit in case of Mahala Bailey v. The Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband.</p> <p>The facts relating to the accident are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Wills — Trusts and trustees — Perpetuities.</p> <p>Testator devised and bequeathed all of his property to his executor, in trust for the purposes named in his will, and then over. He further directed as follows:</p> <p>“ (h) The residue of the rents, issues and profits of my said estate, after paying all charges thereon, shall be equally divided, semi-annually, between my son Ira A., and daughter, Susan, or should either die, between the survivor and the heirs and the next of kin of the deceased, said heirs and kin taking what the deceased, if living, would have taken; or, if this trust should continue after the death of both my said son and daughter, the said residue of the rents, issues and jDrofits of my estate shall be divided, one-half to the heirs and next of kin of said deceased son, and one-half to the heirs and next of kin of said deceased daughter.</p> <p>“ (k) The trust hereby created shall cease immediately upon the sale by the trustees of my shares of the capital stock of the J. E. Dayton Company, Williamsport, Pa., or upon the said trustees dividing the said capital stock between my said two (2) children or upon the death of the survivor of my son or daughter, should he or she die before the other, and the said trustee shall immediately, upon this its termination in any one of the ways aforesaid, convey all the estate then in their hands to my son and daughter in equal shares; or, if my son or daughter or both be then dead, the half which otherwise would be conveyed to him or her, shall be conveyed to the heirs of said son or daughter, or, if the property be personalty, to such persons as, under the intestate laws, would be thereto entitled had such son or daughter died owner of it.</p> <p>“(1) Notwithstanding the provision in the preceding paragraph as to the termination of the trust hereby created, if in the unanimous judgment of my said trustees, it would be unwise for any reason at the time and under the conditions mentioned therein to so divide my estate, this trust shall continue during the life of the survivor of my grandchildren, who may be living at the time of my death, or until such time, although one or more of said grandchildren be living, as the said trustee shall unanimously agree that it will be wise and safe to terminate said 'trust, and I hereby give the said trustees full power to carry out the provisions of this paragraph. If, as provided in this paragraph, the trust be continued after the death of the survivor of my son and daughter, the said trustees shall immediately upon its termination convey all the estates then in their hands to the heirs of my son and daughter in manner following: ” Held, that the will did not offend the rule against perpetuities or the statute that prevents accumulations beyond the life or lives in being and twenty-one years thereafter.</p>

<p>Appeal, No. 206, Jan. T., 1907, by defendant, from judgment of O. P. No. 1, Phila. Co., Sept. Term, 1905, No. 4,171, on verdict for plaintiff in case of J. Joseph Bowman v. P. W. Woolworth & Co., a corporation.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $8,500. Defendant appealed.</p> <p>Error assigned among others was in submitting the case to the jury.</p>

<p>Wills — Probate— Undue influence — Presumption—Evidence—Issue devisavit vel non.</p> <p>Where, on an application for an issue devisavit vel non, the evidence shows that the testatrix, although possessed of testamentary capacity, was aged, infirm bodily, and with mental faculties impaired, a presumption of undue influence is raised against a stranger to the blood of the testator who was instrumental in having executed a will under which he was to have an executorship, also a trusteeship of an estate of about $75,000 for a period of years, and a possible residuary interest in the whole estate.</p> <p>In such a case, if the contestant offers sufficient evidence of undue influence to support a finding of the jury to that effect, the court cannot refuse an issue devisavit vel non because of evidence offered by the proponent tending to raise the presumption against him, and to shift the onus. Such evidence is for a jury.</p>

<p>Trusts and trustees — Contract of trustee — Wrongful use of trust money— Illegal contract — Mortgage—Unrecorded defeasance — Deed.</p> <p>A trustee not specially authorized cannot go beyond the line of duty prescribed by law, and work changes of property from money into land, or from land into money. One who does so, not only takes upon himself the hazard of loss, but to this extent he commits a breach of the trust. Neither a trustee nor any one in privity with him can acquire any right by a breach of the trust.</p> <p>Where a testatrix devises and bequeaths her estate to a trustee to convert the same into cash and to pay the income therefrom to her brother for life, and after his death the principal to his children, and the trustee uses a portion of the trust money to pay off incumbrances on the personal real estate of the brother, takes from him a straight deed of the real estate, and in an unrecorded writing agrees to reconvey it on payment of all advances with interest, such an agreement cannot be enforced, because it is an unauthorized act of the trustee.</p> <p>In such a case the trustee acquired no beneficial interest under the deed, and as a result could convey none. He took the title as trustee, that is to say, for the benefit of those he represented; and not only was it beyond his power to subject to disadvantage by his own act the parties he represented, but the actual ownership of the property having once vested in the estate, it was beyond his power to dispose of it. A purchaser under a voluntary deed from the trustee would be charged with notice of the trust and equity would fasten the original trust upon the property in his hands for the security of the real owners.</p>

<p>Appeal, No. 218, Jan. T., 1907, by defendant, from judgment of O. P. Delaware Co., June T., 1905, Ho. 94, on verdict for plaintiff in case of Guiseppe Bilotta v. Media, Middleton, Aston & Chester Electric Railway Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $1,548.25. Defendant appealed.</p> <p>Error assigned among others was answer to defendant’s tenth point, both point and answer being quoted in the opinion of the Supreme Court.</p>

<p>Appeal, No. 344, Jan. T., 1908, by plaintiff, from order of O. F. Delaware Co., June T., 1906, No. 195, refusing to take off nonsuit in case of Joseph Schneider v. Philadelphia Quartz Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</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>

Appeal, No. 13, Jan. T., 1908, by plaintiff, from order of C. P. Chester Co., Aug. T., 1906, No. 9, refusing to take off nonsuit in case of James N. Ginn v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. At the trial it appeared that on December 1, 1905, plaintiff was a passenger on one of the defendant’s trains from Philadelphia to Coatesville.

<p>Promissory notes — Renewal note — Novation—Evidence.</p> <p>In an action by a bank against one of two makers of a promissory note, the makers of the note testified in substance that they took to the bank a renewal note of the note in suit, handed it to the teller, saying, in substance, there is a renewal, and immediately left without having ascertained whether it was satisfactory to the bank, and without demanding the old note. The teller testified that when the note was handed to him he informed the makers that he would present it to the proper officer of the bank, who was then absent, and see whether it was satisfactory to have the loan renewed. He did so and was informed by the proper officer of the bank that it was not satisfactory to renew the loan and that the new note was not accepted by the bank, and the old note was never marked satisfied nor surrendered, but had always been held by the bank as security for the loan. Held, that the evidence was not sufficient to establish a contract of renewal.</p> <p>Promissory notes — Accommodation of maker — Consideration—Parol evidence.</p> <p>In an action by a bank against one of two brothers who were joint makers of a promissory note, the defendant cannot be relieved from liability on the note by parol evidence to the effect that he signed the note as an accommodation to his brother with the understanding that the signing of his name was a mere matter of form to comply with the provisions of the national banking laws and that he would not subject himself to any liability by signing it, and that the' cashier of the bank had made these representations to the brother at the time the loan was made and afterwards said the same thing to defendant.</p>

<p>Appeal, No. 197, Jan. T., 1907, by defendant, from judgment of O. P. Berks Co., Aug. T., 1906, No. 21, on verdict for plaintiff in case of Simon Tatarewicz and Julia Tatarewicz, by her next friend and father, Simon Tatarewicz, v. The United Traction Company.</p> <p>Trespass to recover damages for injuries to a child about nine years old.</p> <p>At the trial it appeared that Julia Tatarewicz, a, child nine and half years of age, was injured on November 18, 1905, by being run down by one of the defendant’s cars. The evidence tended to show that the motorman saw-the child running towards the track when the car was within forty to sixty feet from the point of the accident. There was also evidence that if the car had been running at an ordinary rate of speed it could have been stopped from within twenty to twenty-five feet.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for Simon Tatarewicz for $200 and Julia Tatarewicz for $1,800. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant, and in refusing to render judgment for defendant non obstante veredicto.</p>

<p>Negligence — Master and servant — Safe machinery and appliances — Instructions to employee — Risk of employment.</p> <p>In an action by a young man about eighteen years of age against his employer, a company engaged in the manufacture of paints, and operating a cooperage department in connection with its business, it appeared that the plaintiff was injured by the explosion of a barrel which he was swelling in the cooperage department. At the time of the accident the barrel had been filled with water, and it was the duty of the plaintiff to introduce steam into it through an iron pipe one inch in diameter inserted in the bung. Plaintiff could control the flow of the steam by means of a valve, and the accident was caused by his allowing too much steam to flow into the barrel. Plaintiff had been employed in this work for about a year, but there was evidence that until two or three weeks before the accident steam had been introduced through the open end of the barrel, and not through the bunghole. Held, (1) that the defendant could not be charged, under the circumstances, with a failure to provide the plaintiff with reasonably safe machinery and appliances with which to work; (2) that the defendant was not required to point out to the plaintiff the danger that might result by turning on too much steam into the barrel filled with water, and (3) that the plaintiff had enough experience in the work and a sufficient' knowledge of the use of the appliances with which he worked to charge him with the assumption of the risks and dangers incident thereto.</p> <p>A master is not answerable as a rule for an injury to adults with experience, nor for an injury to young persons who have had experience from which a knowledge of danger may reasonably be presumed, and to have that discretion which prompts one to take care of himself.</p>

<p>School law — School board — Building committee — Approval of action of committee — Contract—Architect—Submission of plans — Equity—Injunction — Inadequate remedy at law.</p> <p>A school board having decided to erect a school building, appointed a committee to take charge of the work, authorizing it among other things to select, subject to the approval of the board, a competent person as architect. The committee subsequently reported to the board that it had determined to select an architect by competition, and for this purpose, to employ a competent professional adviser to prepare instructions to the competing architects as to the rules governing competition and the terms upon which the successful competitor, if approved by the board, was to be engaged. This report was approved by the board. The committee thereupon with the aid of its professional adviser prepared instructions to the competitors, who were limited to a specific number. These instructions were never formally approved by the board. The instructions stated that a fair examination of each plan would be made and a choice made by the committee; that if the first choice by the committee should fail of the board’s approval, that the others would be reported in the order of their merit and according to the judgment of committee, until a selection should be reached with the board's approval. The several architects invited submitted their plans, and the committee made a selection of one of the plans, and reported to the board. The report was not approved by the board. Subsequently without any further action having been taken, the board having reorganized appointed a new building committee with authority to procure plans in open competition from all competent architects. Under this scheme an architect was duly elected. Thereupon three of the competitors under the old scheme filed a bill in equity to compel the board to proceed under the old plan, and make a selection in accordance therewith. Held, (1) that it was not necessary for the board to have approved of the instructions formulated by the committee; (2) that a contract existed between the board and the competing architects; and (3) that equity had jurisdiction, inasmuch as there was no adequate remedy at law.</p> <p>In such a case the jurisdiction of equity is not affected by the fact that the unsuccessful competitors were each to receive a specific sum as full compensation; inasmuch as the parties complaining in the bill were not in the position of unsuccessful competitors.</p>

<p>Negligence — Railroads—“Stop, look and listen” — Grade crossing— Right angle collision — Guest and driver — Nonsuit.</p> <p>Where one of two men borrows a wagon and the other a horse, and with the horse and wagon they set out on a joint expedition, the one who borrowed the wagon driving, the other is not the guest or passenger of the driver, and it is the duty of both men to stop the team, and look and listen before crossing a railroad.</p> <p>Where two men driving a wagon are killed by a train at a grade crossing, the presumption that they stopped, looked and listened is rebutted by the testimony of the only witness who saw the accident, to the effect that he saw the team approaching the crossing at a dog trot, and that when it was about sixteen feet from where it was struck, traveling at the pace stated, he turned from where he was standing on his porch, and had stepped into the hallway about twelve feet, when he heard the crash of the collision.</p>

<p>Mortgage — Deed—Consideration—Delivery—Presumption — Recording —Retention of possession by grantor.</p> <p>Want of consideration is not a valid defense to an action upon a sealed instrument.</p> <p>If a deed or mortgage be duly delivered in the first instance, it will operate though the grantee suffer it to remain in the custody of the grantor.</p> <p>The presumption in favor of the delivery of a deed in case of voluntary settlement is stronger than in ordinary bargain and sale, and the fact that such deed has been recorded is prima facie evidence of its delivery, although possession of it is retained by the grantor.</p> <p>Where a husband executes to his attorney a mortgage on his real estate, and the attorney immediately assigns the mortgage to the mortgagor’s wife, and the mortgage after being recorded is returned to the mortgagor, and is found together with the bond and assignment, after his death, in his safe deposit box to which his wife has access, the executors of the husband on a scire facias by the wife cannot set up; either that the marriage was invalid, or that there had been no delivery, or the presumption that the mortgage had been paid.</p> <p>In such a case the fact that the mortgage was found in a place to which both husband and wife had access showed at best that it was a common possession of both husband and wife; but even if it had not been shown that the wife had access to the box when the family relation existed, the fact of the wife’s mortgage being in the husband’s safe, would not raise -any presumption that the mortgage had been paid; nor would the mere fact of possession unaided go to the support of that proposition.</p> <p>In general it may be admitted that the production by the mortgagor, v or those claiming under him, of a note secured by mortgage, will raise a presumption, in the absence of all other proof, that it has been paid. But this is a presumption of fact, not of law, and will be rebutted by any other evidence. If the possession and production of the note can be satisfactorily accounted for upon any other hypothesis than that of the payment of it to the holder, it will rebut such presumption.</p>

<p>Appeal, No. 348, Jan. T., 1907, by defendant, from decree of C. P. Delaware Co., Dec. T., 1900, No. 190, dismissing bill in equity in case of Clifton Heights Borough v. Thomas Kent Manufacturing Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court, and in a previous report of the case in 212 Pa. 117.</p> <p>The court in an opinion by Johnson, P. J., dismissed the bill.</p> <p>Error assigned was decree dismissing the bill..</p>

Appeal, No. 185, Jan. T., 1907, by plaintiff, from judgment of O. P. Lycoming Co., Sept. T., 1907, No. 58, on verdict for defendant in case of Annie A. Edsall v. The Borough of Jersey Shore. Appeal from award of viewers.

<p>Appeal, No. 58, Jan. T., 1908, by plaintiff, from order of C. P. Bradford Co., Dec. T., 1902, Eo. 437, refusing to take off nonsuit in case of Ella M. Lane v. Sayre Water Company.</p> <p>Trespass for malicious seizure of goods by unlawful process.</p> <p>Error assigned was the refusal of the court to take off compulsory nonsuit.</p>

<p>Appeal, No. 19, Jan. T., 1908, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 376, M. L. D., making absolute rule for judgment for want of a sufficient affidavit of defense in case of Vulcanite Paving Co. v. The Philadelphia Rapid Transit Company.</p> <p>Scire facias sur mechanic’s lien, filed by a subcontractor under the Act of June 4, 1901, P. L. 431.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The affidavit of defense denied the right of the plaintiff to file the lien involved in the suit.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Contract — Illegal contract — Wagering contract — Stock gambling — Affidavit of defense.</p> <p>One who undertakes to make a bet or wager for another and advances the money staked has no right of action against his principal in the event of loss.</p> <p>Where two persons agree between themselves to speculate in stocks on a margin, without any intention to buy and pay for the stocks and accept the delivery thereof, but simply to deal in the rise and fall of the market and share in the loss or gains of such dealings, one of the two persons, who has advanced the money for such purpose, cannot recover from the other the latter’s share of the loss.</p>

<p>Street railways — Boroughs—Borough consent — Location of tracks— Sidewalk — Right of abutting owner — Equity.</p> <p>An owner of property abutting on a street has a standing to maintain a bill in equity to restrain a street railway company from laying its tracks on a sidewalk in front of his premises where the borough ordinance merely gave to the railway company the right to use the street, together “with the right to construct such switches, curves, crossovers and turnouts as are necessary for the operation of its railway,” without any grant of a right to use the sidewalk and when there is an invasion of the property of an abutting owner by malting a cut of two or three feet in length below established grade and extending into complainants' property used as a sidewalk over eight feet.</p>

<p>Negligence — Master and servant — Employment of minors under fourteen — Evidence—Act of May 2, 1905, P. L. 352 — Constitutional law— Police power.</p> <p>It is within the power of the legislature to fix an age limit below which children shall not be employed in dangerous kinds of work, and an employer who violates the law by engaging a child under the statutory age does so at his own risk, and in an action of trespass for personal injuries sustained in such employment, the master cannot set up as a defense either the assumption of risk or the contributory negligence of the child servant.</p> <p>The fact that the act of May 2, 1905 is penal in chare cter, and that violations of its provision are punishable by fine or imprisonment, does not render such remedies exclusive, and does not supersede the right of action for damages in a civil proceeding.</p> <p>The employment of a boy under fourteen years of age to do any kind of work in an establishment prohibited by sec. 2 of the Act of May 2, 1905, P. L. 352, and his employment to clean or oil machinery while in motion, prohibited by sec. 4, are both questions of fact to be submitted to the jury as evidence of negligence, and if the injury results by reason of the employment prohibited by law, there can and should be a recovery in the case; and this is so although the master may have given the boy proper instructions as to his work.</p>

<p>Appeal, No. 31, Jan. T., 1908, by plaintiff, from judgment of C. P. Ho. 1, Phila. Co., Deo. T., 1900, Ho. 130, on verdict for defendants in case of Charles M. Ballantine v. George K. Cummings et al.</p> <p>Trespass for conspiracy.</p> <p>At the trial when plaintiff was on the stand he was asked this question:</p> <p>Mr. Bracken : “ Q. Had you any knowledge, prior to your purchase in March, 1899, of the listing of the common stock of the company upon the Philadelphia Stock Exchange ? ”</p> <p>Mr. Graham: The only stock involved here is preferred stock. I object'to any' evidence of the listing of the common stock. It is not in issue, and the preferred stock was not a listed stock at the time of the purchase of this stock, nor for six months afterwards.</p> <p>The Court: I will sustain the objection at this stage of the case. Exception. [1]</p> <p>J. Bell Austin was examined as follows : ,</p> <p>“ Q. What is your business ? A. Secretary and treasurer of the Philadelphia Stock Exchange. Q. Did you hold that position in January, 1899? A. Yes, sir. Q. What is the Philadelphia Stock Exchange ? A. A place where stocks and bonds are bought and sold. Q. I mean in respect to its membership. It is an organization, isn’t it, of brokers for the sale and purchase of stocks and bonds? A. Yes, sir. Q. Have you with you any papers that were filed with the Philadelphia Stock Exchange by the Daylight Prism Company ? A. I think so, yes. Q. Will you please produce them. (Witness produces papers.) Q. One of the papers you produced is entitled at the head, Philadelphia Stock Exchange, stock application for the listing of stock dated August 1,1899 ? A. Yes, sir. Q. Have you an application of an earlier date ? A. That is preferred stock, isn’t it ? ”</p> <p>Mr. Graham: Yes.</p> <p>“A. Yes, that is for the common stock. Q. You also produce an application dated January 13, 1899, for the listing of the common stock ? A. The common stock ? Q. On the Philadelphia Stock Exchange. Was that delivered to you on or about that date ? ”</p> <p>Mr. Graham : I object to all inquiries relating to the listing and sale of common stock.</p> <p>The Court: I cannot view this offer of the listing of this common stock as material to this issue. I sustain Mr. Graham’s objection. Exception. [2]</p> <p>Mr. Bracken : I offer to prove from the record made by the witness of the daily sales in the Stock Exchange of common stock made during the period from the listing, January, 1899, down to the date of purchase of the plaintiff’s stock, to be followed by evidence that those sales correspond with sales made by brokers for G. K. and J. E. Cummings, the defendants, one to the other.</p> <p>Objected to as irrelevant and immaterial, and not pertinent to the issue.</p> <p>Objection sustained. Exception. [3]</p> <p>Patrick Henry was examined as follows :</p> <p>Mr. Bracken : “ Q. Are the books you have produced here kept under your supervision? A. Yes, sir. Q. And have you several bookkeepers who make the entries from time to time ? A. Yes, sir. Q. Have you an account in one of these books with either J. E. or G. 3L Cummings ? ”</p> <p>Objected to.</p> <p>The Court: As to the entries in these books which the witness produces, he is not competent to testify, but the real question I suppose is that which will follow, namely, were there transactions between DeHaven and Townsend as brokers, and G. K. Cummings and J. E. Cummings in common stock of this company during a certain period ; is that right ?</p> <p>Mr. Bracken : That is undoubtedly what I propose to do, to prove just what the dealings were in common stock during the period in question on the part of one or the other of the defendants through DeHaven and Townsend as their broker or as his broker.</p> <p>The Court: Then any technical question to the books themselves is not pressed at this time.</p> <p>Mr. Graham: I feel that it is impossible for this witness to prove anything of that nature. In the first place your honor would not admit evidence of dealings coming from books of other people as against us, against the defendants in this case, and if he wants to prove transactions he would have to go and prove the identity of the man and the transaction, too, before it would be admissible in evidence here, but I will not press the technical objection, which I am sure is one that could not be surmounted, but meet the evidence on its merits, the question of whether this is admissible testimony, even if he had established proof of these sales.</p> <p>Mr. Bracken: I don’t know any better proof under the law than entries made in books of brokers, made in the due course of business, where you prove the entries. Probably you must call the people who made the entries, but having done that the books are competent evidence in any controversy of this sort. They are not evidence in favor of the person who made the entries as against the defendant, but in a controversy as between third persons, books made up in due course of business and properly proved and authenticated have always been held to be good evidence of the facts that they show.</p> <p>The Court: The objection to the offer of the sales of common stock during this period with which the defendants had to do is sustained. Exception. [4]</p> <p>Hugo H. Ditman was examined as follows :</p> <p>Mr. Bracken : I offer to prove by this witness, who was the bookkeeper and connected with Gillmán and Finninger, brokers on the Stock Exchange in 1899, that between the dates of the listing of the common stock of the Daylight Prism Company and the date of the purchase of the preferred stock by the plaintiff, Gillman and Finninger both bought and sold large amounts of common stock on behalf of Mr. George K. Cummings and Mr. J. E. Cummings, and that sales were made on certain dates by one to the other.</p> <p>Objected to on the ground formerly stated.</p> <p>Objection sustained. Exception. [5]</p> <p>J. E. Cummings, called for cross-examination, was asked this question:</p> <p>Mr. Bracken : “ Q. Will you state whether or not, prior to March 19, 1899, after the date of the organization of the company, you made any sales or purchases of the common stock of the Daylight Prism Company of America ? ”</p> <p>Objected to.</p> <p>Objection sustained. Exception. [6]</p> <p>Joseph H. Straub was examined as follows :</p> <p>Mr. Bracken: I offer to prove by the witness that, as a stock broker, his firm represented G. K. and J. E. Cummings, during the period from the listing of the stock and prior' to April 20, 1899, and that during that period he purchased and sold common stock of the Daylight Prism Company on behalf of both of the defendants, and that the sales thus made were duly advertised in the sales made from day to day on the Philadelphia Stock Exchange, and that it will be followed by proof that these advertisements came to the notice of the-plaintiff.</p> <p>Mr. Graham : “ Q. Had G. IL Cummings any account with your firm ? A. I don’t know that he had ; I never traded for him ; the only account I had was with Mr. J. E. Cummings. I did not keep the books ; I only executed the orders on the Exchange, and I only knew Mr. Cummings there (indicating); I did not know the other brother in a business way; I never got an order from him, I don’t know that we did. I did not know him in any business transaction.”</p> <p>Mr. Graham : The offer is objected to.</p> <p>Objection sustained for the reasons stated in answer to former objections to the same offer as to other witnesses. Exception. [7]</p> <p>C. E. Schmidt, a witness called on behalf of the plaintiff, was asked this question :</p> <p>“ Q. "Will you state whether or not, in January of 1899, you had any conversation with either G. K. or J. E. Cummings with reference to the purchase or sale of common stock on the Philadelphia Stock Exchange ? ”</p> <p>Mr. Graham : You may answer, yes or no. “ A. Yes.”</p> <p>Mr. Bracken : “ Q. With which one had you any conversation ? A. G. K. Cummings. Q. State what the conversation was.”</p> <p>Objected to.</p> <p>The Court: “ Q. This is with 'relation to common stock ? A. Common stock.”</p> <p>Objection sustained. Exception to plaintiff. [8]</p> <p>The court charged in part as follows :</p> <p>The allegation of the plaintiff is that the defendants, while officers, directors and stockholders of the Daylight Prism Company of Pennsylvania, a corporation under the laws of West Virginia, fraudulently and maliciously conspired together to cheat and defraud the public, by inducing members thereof to purchase stock of the company:</p> <p>1. By making and publishing false statements that dividends had been declared out of earnings of the corporation, when, in fact, no dividends had been earned, and by paying out of the capital stock, sums of money purporting to be dividends declared out of profits.</p> <p>2. By making, through various brokers, fictitious sales and purchases to and from one another of the stock of the corporation, for the purpose of creating a fictitious market value for the stock, so as to deceive the public into the belief that the stock had a value which, in fact, it did not possess.</p> <p>3. By falsely and fraudulently representing to the public that the preferred stock had been so issued, that upon dissolution of the corporation, the preferred stock would participate in the distribution of assets in priority, to the common stock,— that is to say, that the preferred stock was entitled to preference in payment of principal as well as dividend out of the assets of the corporation, before the common stock would be entitled to participate at all in the assets.</p> <p>The plaintiff avers that these alleged false statements were brought to his knowledge and that he believed them to be true. And that in this belief, he purchased on March 23, 1899, 100 shares of preferred stock of the company at $65.00 per share, and on April 20,1899, 200 shares of preferred stock of the company at $70.00 per share, for which he paid in all $20,500, all of which stock he alleges to have been worthless, both at the time of the purchase and at the present time, or, rather, at the time of bringing this suit, whereby he sustained a loss of the full sum paid by him for the stock.</p> <p>Counsel for the plaintiff, in his, behalf, at the trial has disclaimed any right to recover from the four defendants, Carr, Binggold, Schmidt and Holden, all of whom he absolves from any part in the alleged conspiracy. These four men were directors of the company at the time of the declaration of the alleged unlawful dividends, and appear to have voted in favor thereof. The four directors named being eliminated from the case, the question to be determined is, — did the three remaining defendants, George K. Cummings, Henry M. Cummings and John E. Cummings, or any two of them, commit the offense complained of, and, if so, was the plaintiff deceived and misled by their combined act to his loss and damage ? Of the three defendants last named, Henry M. Cummings only was an officer and director of the company. John E. Cummings was the general manager, and George K. Cummings was a stockholder only.</p> <p>The charge or allegation, then, is that they, the three Cummings, were guilty of a conspiracy to cheat and defraud in the manner before referred to, and that the plaintiff was thereby deceived to his injury and loss.</p> <p>With relation to the second and third points, there is no evidence of a substantial character. With relation to the first point, there is evidence in the testimony of Mr. Butler, an expert accountant, that at the time the dividends of January 7, 1899, and April 19, 1899, were declared, certain items in the books were improperly considered and carried as assets; and certain other items should have been considered as liabilities which were not so considered; and that by making these necessary additions to the one side and deductions from the other side of the accounts, it is shown that at the time of the declaration of the dividends, the corporation did not properly have net earnings or profits on its business, out of which it could lawfully pay dividends without depleting its capital.</p> <p>On the other hand, and as against this testimony of the expert accountant, the plaintiff has offered in evidence the financial report of the condition of the company, made by expert accountants, Francis & Sterrett, just prior to the meeting of directors of January, 1899, in which it is shown that the net profits of the company were something over $16,000; which, if true, placed the company in a financial condition, entitling its directors to declare the dividend which was declared. And this report of the experts appears to have been procured for the guidance of the directors, or, at least, was used and relied upon by them apparently for that purpose, namely, for the declaration of the dividends.</p> <p>In addition to this fact, the plaintiff has called Messrs. Holden, Schmidt, Einggold and Carr, four of the defendants, constituting four of the five directors of the company, in office at the time of the declaration of the alleged fraudulent dividends, all of whom have testified that they acted solely upon their own judgment and responsibility in the declaration of the dividends and because they believed it to be proper to do so; and no one of them has been shown to have been materially influenced in his action or in his judgment by any of the three Oummings, the other defendants. It is difficult, therefore, and indeed impossible to find from the evidence that the declaration of dividends referred to, even though they may have been improperly declared and paid, was the result of any preconcerted action or conspiracy on the part of the three Cummings or any two of them.</p> <p>In addition to these facts, it is the alleged wrong done the plaintiff and not the conspiracy, if there was one, which is the substance of this case. That is to say, even though there were a conspiracy among the defendants for the purpose of deceiving the public, yet that fact in itself would not entitle the plaintiff to recover in this cause. For, in addition to proving a conspiracy on the part of the defendants as alleged, he must also prove that he, the plaintiff, was thereby deceived and misled and that he purchased the stock as a result of what the defendants did in pursuance of their preconcerted intention to practice a fraud upon either the public in general or upon the plaintiff, and that the purchase of the stock under such circumstances resulted in a loss to him. Of the fact of such deception or that any act or misstatements of the defendants by preconcerted action with intent to defraud was the inducing cause of the plaintiff purchasing the stock in question, there is not sufficient evidence to entitle him to recover.</p> <p>In cases of this nature, the substance of the plaintiff’s allegations must be proved by evidence of a satisfactory character; and if there is no such evidence, it becomes the duty of the court to so instruct the jury.</p> <p>After a careful consideration of the evidence in this case, I am of the opinion that it is not of such a character as to entitle the plaintiff to a verdict.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-8) rulings on evidence, quoting the bill of exceptions; (21) in giving binding instructions for defendants.</p>

<p>Appeal, No. 358, Jan. T., 1908, by-defendant, from judgment of O. P. Delaware Co., March T., 1905, No. 70, on verdict for plaintiff in case of Excelsior Saving Fund v. I. Engle Cochran, Jr., Mortgagor, and Lydia Gibbons, use owner.</p> <p>Scire facias sur mortgage.</p> <p>At the trial Lydia Gibbons made various offers of evidence to prove title in herself superior to that of the mortgagor. These offers were objected to and the objections were sustained, and exceptions allowed. [3-14]</p> <p>The court gave binding instructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff for $8,335.19. Defendant appealed.</p> <p>Errors assigned were (1, 2) in giving binding, instructions for plaintiff; (3-14) rulings on evidence, quoting the bill of exceptions.</p>

<p>Negligence — Railroads—Passenger—Station.</p> <p>The relation of carrier and passenger begins as soon as one intending in good faith to become a passenger enters in a lawful manner upon the carrier’s premises to engage passage, and that relation continues to exist until the passenger has been made aware of his arrival at the place of destination and has had a reasonable time to alight from the car and to leave the premises of the carrier.</p> <p>Where a passenger after alighting from a train crosses the tracks from a station on one side of the line to a station on the other- side where she intends to meet a friend waiting for her, and in so doing she is compelled to go over a crossing of a highway, she does not cease to be a passenger merely because she has passed over such highway.</p> <p>Where a passenger after alighting from a train enters the station for the purpose of waiting for a friend who was to meet her, and not for the purpose of using the station as a waiting room for a street railway company, she is entitled to use the station as a passenger for a reasonable time, and what is a reasonable time is a question of fact to be determined by the jury; and if after leaving the station she is compelled to walk along an insufficiently lighted path, torn up and obstructed, and very close to the tracks, and she is injured by a passing express train, she may recover for the injuries which she sustained if she used reasonable care to avoid danger. In such a case the company’s negligence, and the plaintiff’s contributory negligence are questions for the jury.</p>

<p>Appeal, No. 393, Jan. T., 1907, by Harry S. Riley, C. B. .Mould and S. E. E. Kay, taxpayers of the city of Chester, from decree of C. P. Delaware Co., March T., 1905, Ho. 48, dismissing petition to set aside decree on bill in equity in case of City of Chester and the Board of Health thereof v. Eugene F. White and Robert S. Maison, M. D., trading as hospital for contagious diseases in Delaware Co., Pa.</p> <p>Petition to revoke decree.</p> <p>Errors assigned were (1) in entering the decree of March. 26, 1907, quoting the decree; and (2) in not revoking the decree of March 26, 1907.</p>