Volume 221 — Pennsylvania State Reports

<p>Appeal, No. 242, Jan. T.,1907, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T.-, 1906, No. 118, on verdict for defendant in case of Patrick Merrigan v. Alban Evans.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Newcomb, J.</p> <p>At the trial it appeared that the defendant was a .certified mine foreman, in charge of a mine of the Scranton Coal Company. On August 5, 1905, James Merrigan, a minor son of the plaintiff, was killed in the mine while at work as a driver of a mine car.</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 among others was the charge of the court.</p>

Appeal, No. 321, Jan. T., 1907, by Sarah O. Lillibridge, from decree of O. C. Lackawanna Co., sustaining appeal from register of wills in Estate of George Jerome Lillibridge, deceased. Appeal from register of wills. Before Sando, P. J. The opinion of the Supreme Court states the case. Error assigned was in sustaining the appeal from the register of wills.

Appeal, No. 237, Jan. T., 1907, by defendant, from judgment of O. & T. Montour Co., Feb. T., 1906, No. 1, on verdict of guilty of murder of the second degree in case of Commonwealth v. Peter Deitrick. Indictment for .murder. Before Evans, P. J. See 218 Pa. 36. At the trial the defense was an accidental shooting of the deceased while the prisoner was handling a revolver.

<p>Appeal, No. 45, Jan. T., 1908, by plaintiff, from order of O. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,610, refusing to take off nonsuit in case of Frank J. Connolly v. The Union League of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Martin, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Negligence — Department store — Obstruction of aisle — Contributory negligence.</p> <p>Where the owner or occupier of premises, in the prosecution of his own purposes, invites another to come upon the premises, he cannot with impunity expose the visitor to an unreasonable risk of any sort.</p> <p>A person walking in the aisle of a large store, where goods are exposed on all sides for inspection and sale, is not required to exercise the same degree of caution to watch for obstructions on the floor, as he would be required to exercise as if he were walking upon a public highway.</p> <p>In an action by a woman against the proprietor of a department, store to recover damages for personal injuries, it appeared that the plaintiff entered the store for the purpose of making purchases. While walking along one of the principal aisles in the store she stumbled upon an obstruction or inequality in the passageway caused by an incline which passed from a floor at a higher level at the left side of the aisle to a point even with the passageway at or near the right side. The sides of the incline facing the direction from which those using the passageway approached were perpendicular, and varied in height from about eight inches at one side down to a point at the other. There was no guard rail or warning, and nothing to indicate to those passing, the presence of this obstruction upon the floor extending nearly across the aisle. Held, that the case was for the jury and that a verdict and judgment for the plaintiff should be sustained.</p>

<p>Negligence — Pleadings—Statement of claim — Demurrer.</p> <p>In an action against dealers in automobiles to recover damages for personal injuries, plaintiff in her statement of claim averred that an automobile which she had purchased from the defendants some months before had broken down on the road and could not be operated; that she requested defendants to furnish her a competent machinist and chauffeur to accompany her to the country to repair the broken automobile, and bring it to the city where she lived; that in pursuance of this request defendants furnished a man who went with her to the machine and proceeded to repair it so as to bring it back with her to the city; that the man in repairing the machine and bringing it back to the city had absolute and exclusive charge and control of it for and on behalf of the defendants; that defendants’ duty was to furnish plaintiff a careful and efficient man and one familiar with operating an automobile, but, while they sent her one of their servants, or employees, representing him to be a skilled and thoroughly competent machinist and chauffeur, he was unskilled and incompetent to repair the machine, and negligent, careless and reckless in operating it; that when plaintiff was informed by the said employee that the automobile was repaired, she entered it for the purpose of being taken in it by him tó the city, but he operated it in such an incompetent, negligent and careless manner as to cause it, in a very short time after they started, to be violently overturned and broken, and the plaintiff, who was riding therein, was violently thrown out upon the roadway and' under the machine and seriously and grievously injured. Held, (1) that the statement of claim was sufficient to show a good cause .of action, and was not demurrable; and (2) that it was not necessary for plaintiff to aver in her statement that she had promised to pay the defendants for the services of their employee.</p>

<p>Appeal, No. 56, Oct. T., 1908, by defendant, from judgment of O. & T. Mercer Co., Oct. T., 1906, No. 18, on verdict of guilty of murder of the first degree in case of Commonwealth v. Anebalo Lombardi.</p> <p>Indictment for murder.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were (1-15) in overruling various reasons for a new trial.</p>

<p>Appeal, No. 147, Jan. T., 1907, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1898, No. 147, refusing to take off nonsuit in case of 'Genevieve E. Potter v. John Ketterlinus, trading as Ketterlinus Printing House.</p> <p>Trespass for conversion. Before Brégy, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entertained a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Promissory notes — Delivery—Affidavit of defense.</p> <p>In. an action on a promissory note, an affidavit of defense is sufficient which avers that defendent had delivered the note in suit to the treasurer of the plaintiff corporation to be delivered by him to a third person, who was to hold the note in escrow, until the defendant could verify certain representations made to him as to the condition of the plaintiff company; that the treasurer did not deliver the note to the third person, but delivered it to the plaintiff; that the defendant investigated the condition of the company, and after finding that the representations made to him were false, notified the plaintiff that he withdrew the note.</p>

<p>Insurance — Insurance against result of uncertain litigation — Means of defense — Maintenance.</p> <p>A party sued has the right to avail himself of all proper means of defense, not only by the professional assistance of counsel, but also by expert and other testimony, and the experience of persons familiar with the business, and he also has the further right to protect himself by insurance from an adverse result of uncertain litigation.</p> <p>An insurance company which has for a consideration insured an owner of an automobile against liability in damages for accidents, cannot be restrained by an injunction from appearing by its own counsel and conducting the defense in an action against the owner of the automobile to recover damages for personal injuries.</p>

Appeal, No. 220 Jan. T., 1907, by defendants, from decree of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 4,416, on bill in equity in case of James Y. Watson v. Michael McManus, the City of Philadelphia and John M. Walton, Controller of the City of Philadelphia.' Bill in equity for an injunction.

<p>Landlord and tenant — Contract—Excessive use of electricity — Failure of plaintiff to prove quantity used — Nonsuit.</p> <p>In an action by a landlord, against his tenant to recover for an excessive use of electricity over a supply to the extent of five horse power to which the tenant was entitled under his lease, a nonsuit is properly entered where it appears that it was impossible for the jury to estimate what horse power had been used because the meter from which the readings had been taken was one which did not register horse power, but which registered something else. The burden of proof in such a-case is on the plaintiff to show the extent of the excess.</p>

<p>Negligence — Child—Wagon—Nonsuit.</p> <p>In an action to recover damages for personal injuries to a child eight and one-half years old, a nonsuit is properly entered where the evidence shows that the child started to cross a street not at a public crossing, and met a wagon, which drew up to let her pass, and immediately beyond she was struck by defendant’s wagon going in the same direction, and there is no evidence of defendant’s negligence, except the child’s expression that the horse flew past “.like a bird.”</p>

<p>Appeal, No. 230, Jan. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 4,898, on verdict for plaintiff in case of David B. Beynolds and Blanche S. Beynolds v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Balston, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Yerdict for David R. Reynolds for $500 and for Blanche F. Reynolds for $2,000. Defendant appealed.</p>

<p>Negligence — Animals—Unattended horse in city street — Contributory negligence — Question for fury.</p> <p>One who leaves a horse unhitched and unattended on a city street takes the risk of what the horse may do. Such an act raises a presumption of negligence and puts on the party doing it the burden of showing circumstances which justified or excused it. How strong the presumption will be must depend largely on the circumstances. If the horse is young, skittish, nervous or unused to the sights and sounds of a city street the presumption would be strong, while if he is old, staid and accustomed to city life, it might be very slight.</p> <p>Where an invalid in a rolling chair is left by her attendant in the cartway of a public street about twenty feet behind an unattended and unhitched horse and wagon, and the horse backs upon the chair and injures its occupant, the question of the occupant’s contributory negligence is for the jury.</p>

<p>Principal and surety — Judgment note — Assignment of interest in trust estate — Evidence—Decedents’ estates.</p> <p>Where a mother and son, the one having a life interest, and the other a remainder interest in an estate, jointly execute a judgment note, and assign their respective interests as security for the payment of the note, and it appears on the face of the papers that the mother was the principal and the son the surety in the transaction, it may be shown, nevertheless, after the death of the mother, as between the4mother’s estate and the son or his assignee, that the son was in fact the principal, and the mother only the surety.</p>

<p>Appeal, No. 76, Jan. T., 1907, by defendant, from judgment of C. P. Chester Co., April T., 1906, No. 69, on verdict for plaintiff in case of Isaiah G. March and Barbara March, his wife, v. The Burgess & Town Council of the Borough of PhcEnixville.</p> <p>Trespass to recover damages for personal injuries. Before Hemphill, P. J.</p> <p>At the trial it appeared that plaintiff on the night of October 31, 1905, about 10 p. m., was walking side by side with a companion on Hall street, PhcEnixville, Pa., when she fell into a hole in the pavement, variously estimated at from four to eight inches in depth, and was seriously injured. Mrs. March lived a short distance away on the same street. The plaintiff testified that she was not in the habit of walking along this pavement, had only been over it three times during the year, and knew nothing of its condition. The hole in the sidewalk had been allowed to continue for a long period of time.</p> <p>The defendant presented these points:</p> <p>2. The testimony of Barbara March, plaintiff, is th at the point where the accident to her is alleged to have happened, was on the direct route between her residence, where she had lived for over five years, and the business portion of the borough, defendant; that she had passed this point at least three times during the year immediately preceding the accident (the condition of the street was unchanged during that time) and that she and her companion walking abreast, arm in arm, had passed over this point on their way up that street the evening of the alleged accident. Therefore, if the defect in the sidewalk at the point in question was so notorious as to be evident to all passers, and, therefore, to constitute constructive notice to the borough thereof, the plaintiff, Barbara March, is presumed, under the evidence in this case, above stated, to have known that the pavement was unsafe; and, therefore, she was required to choose the safe route, which was open to her;' and, not having done so, she is guilty of contributory negligence and cannot recover in this case. Answer: That sounds somewhat argumentative, but still, we will pass on it and refuse that point. [1]</p> <p>3. That it is the duty of one who is walking the streets of a city, either in the daytime or at night, “ to look where he is going,” and .this is a look ahead, and the look ahead that discharges the duty is one which includes in the scope of vision the ground from the feet forward. Where it clearly appears that a look down, or a look which includes the ground in front of the pedestrian, would have disclosed the hole or irregularity, then the case is one of negligent observation, and the plaintiff cannot recover, and this it is the duty of the trial judge to rule as a matter of law : Strayline et al. v. Phila., 15 Pa. Dist. Rep. 395. Such being the law, the plaintiff, Barbara March, was guilty, in this case, of negligent observation, and she cannot recover. Answer: That, taken as a whole, some part of it is good law; but as a whole, it must be refused. [2]</p> <p>Under all the evidence the verdict must be for the defendant. Answer: That also is refused, as that is a question for the jury. The facts are somewhat conflicting, although not to any great extent, but sufficient to require us to submit them to you for your consideration. [3]</p> <p>Yerdict and judgment for Isaiah G. March for $500, and for Barbara March for $2,000. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeals, Nos. 193 and 194, Jan. T., 1907, by defendant, from judgment of C. P. Chester Co., April Term, 1906, Nos. 39 and 40, on verdict for plaintiffs in case of William Hess and Ada Hess, his wife, v. American Pipe Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Butler, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for William Hess for $400 andfor Ada Hess for $1,800. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Equity — Specific performance— Assumpsit— Ground rent— Incumbrances — Municipal liens.</p> <p>An action of assumpsit brought to recover the purchase money due on a written agreement by which the plaintiff sold to the defendant a yearly ground rent, will be treated as a bill for the specific performance of a contract for the sale of real estate, and the rights of the parties must be determined in accordance with equitable principles applicable in such cases.</p> <p>. A person who agreed in writing to- purchase a yearly ground rent “clear of all encumbrances which affect the principal of the ground rent,” is relieved from liability under his contract where it is ascertained that at the date of the agreement and when plaintiff tendered a deed there were certain municipal liens which were first liens against the real estate out of which the rent issued, amounting in the aggregate to a large sum of money.</p>

<p>Appeal, No. 11 Jan. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1904, No. 1,306, refusing to take off nonsuit in case of Edward G. Hollis v. Peter A. B. Widener.</p> <p>Trespass to recover damages for personal injuries. Before Martin, P. J.</p> <p>At the trial it appeared that plaintiff was injured on July 23, 1902, while serving as an oiler on defendant’s steam yacht at a time when the yacht was cruising in the English channel.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>When the plaintiff was on the stand he was asked this question :</p> <p>“ Q. What has been the appliances on platforms and fixtures you have seen around engines — how have they been arranged ? ”</p> <p>Objected to.</p> <p>“ Q. Did you ever see platforms for oilers? A. Tes, sir. Q. What is the usual arrangement of them ? ”</p> <p>Objected to. Objection sustained. Exception for plaintiff. [3]</p> <p>“ Q. Did you ever see in your experience any driving wheels or fly wheels of engines which were unprotected or unguarded outside of this one ? ”</p> <p>Objected to. Objection sustained. Exception for plaintiff. [4]</p> <p>“ Q. Did you ever see in your experience of eight or ten years any platforms three feet off the ground outside of this one on the Josephine without steps ? ”</p> <p>Objected to. Objection sustained. Exception for plaintiff. [5]</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were (1, 2) refusal to take off nonsuit; (3-5) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeals, Nos. 81 and 82, Jan. T., 1908, by Clara H. Adams and Martha A. Moran, from decree of O.-C. Phila. Co., Jan. T., 1894, No. 378, dismissing exceptions to adjudication in estate of Robert Adams, deceased.</p> <p>Exceptions to adjudication. The orphan’s court in an opinion by Ashman, P. J., dismissed the exceptions to the adjudication, Penrose, J., and Dallett, J., dissenting.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing the exceptions of Clara H. Adams and Martha A. Moran to the refusal of the court to surcharge BL. Carlton Adams, surviving trustee, with securities misappropriated by his cotrustee, Robert Adams, Jr.</p>

<p>Appeal, Nos. 216 and 217, Oct. T., 1907, by plaintiffs, from decrees of C. P. No. 1, Allegheny Co., June T., 1907, Nos. 201 and 202,, dismissing bills in equity in cases of Pennsylvania Railroad Company v. City of Pittsburg and John F. Steel, Treasurer of said city, and Allegheny Yalley Railway Company v. City of Pittsburg and John F. Steel, Treasurer of said city.</p> <p>Bills in equity for an injunction to restrain the city of Pitts-burg from collecting taxes on real estate included within the rights of ways of railroad companies.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered decrees dismissing the bills.</p> <p>Error assigned was decrees dismissing the bills.</p>

<p>Wills — Gift to charity — Attesting witness — Subscribing witness — Probate —Act of April 26,1855, P. L. 328.</p> <p>An attesting witness must be a subscribing witness within the meaning of the Act of April 26,1855, P. L. 328, which enacts that “No estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor.”</p> <p>The attesting witnesses to a will devising to a charity must be disinterested at the time of their attestation.</p>

<p>Taxation — Collateral inheritance tax — Decedents’ estates — Conversion of real estate — Domicile—Wrongful payment of tax — Legacy—Will.</p> <p>Where a testator domiciled in another state directs his executors to sell and convert into cash his real estate, the proceeds of the sale of real estate situated in Pennsylvania is not subject to the payment of a collateral tax to the state of Pennsylvania, inasmuch as the real estate was converted into personalty, and its situs was at the time of the testator’s death in the state of his domicile, and therefore not subject to the Pennsylvania tax.</p> <p>Where a testator domiciled in another state appointed an executor as to his estate within the state of his domicile, and also appointed executors in Pennsylvania, as to all his other estate, directing a sale of the real estate wherever situated, except lands specifically devised, and also directing the executors of his domicile, after paying legacies, to pay over any balance to the Pennsylvania executors, and it appears that the executors in Pennsylvania improperly, but without objections by the residuary legatees, paid to the state of Pennsylvania a collateral tax on real estate situated in Pennsylvania, and after several accounts had been filed and distribution made without deduction for collateral tax there remained only one legacy to be paid and the residuary estate to bé distributed, five per cent cannot be deducted from such legacy as such legacy’s proportion of the collateral tax paid to the state.</p>

<p>Appeal, No. 326, Jan. T., 190Y, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1906, No. 243, On verdict for defendant in case of Samuel H. Hendrickson and Leara Jane Hendrickson, his wife, v-. Chester City.</p> <p>Trespass to recover damages for personal injuries caused by a fall'bn a slippery pavement. Before Johnson, P. J. .</p> <p>The opinion of 'the Supreme Court-states the case.</p> <p>The court gave binding instructions for defendant. ■ ■ ■</p> <p>' Yerdict'and judgment for defendant. Plaintiff appealed.</p>

<p>Appeal, No. 343, Jan. T., 1907,,by William E. Robinson, administrator of the estate of Elizabeth B. Robinson, deceased, from .order of C. P. Delaware Co., March T., 1904, No. 74, dismissing exceptions to auditor’s report in case of Sarah E. Riley, Anna C. Riley, Mary E. Rush and William E. Robinson, administrator of the estate of Elizabeth B. Robinson (formerly Elizabeth B. Riley), deceased, and Theodora Riley v. Pym Remington and Clarice Y. Remington, his wife, mortgagors, and William H. Lush, terre-tenant.</p> <p>Exceptions to report of auditor, William C. Alexander, Esq.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 268, Jan. T., 1907, by defendants, from judgment of C. F. Bucks Co., Sept. T., 1906, No. 55, oh. verdict for plaintiff in case of Mary J; McCoy v. Samuel' O. Niblick and William M. McCormick.</p> <p>Ejectment for land in Falls township. Before Stout, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The trial judge gave binding instructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1) in permitting plaintiff to open h.er case after she had close'd and after the court had intimated that a nonsuit would be granted ; (2) in refusing binding instructions for defendant; (1) in charging that the contract of sale was void ; (5) in giving binding instructions for plaintiff; (7, 8) in refusing to instruct the jury to return a conditional verdict, and (9) in refusing to submit the case to the jury.</p>

<p>Appeal, No. 352, Jan; T., 1907, by-defendant, from judgment of C. P. Delaware Co., March T., 1906, No. 103, on verdict for plaintiff in case of William B. Rea and Henrietta K. Rea, his Wife, v. The Media, Middle-town, Aston & Chester Electric Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.'</p> <p>Verdict for William B. Rea for $1,000, and for Henrietta K. Rea for $3,000. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Decedents’ estates — Liens of debts not of record — Sale—Orphans’ court sale — Confirmation of sale — Jurisdiction of orphans’ court — Act of April 18,1853, P. L. 503.</p> <p>Where a petition for the sale of a decedent’s real estate avers that it is presented under the Act of April 18, 1853, P. L. 503, and also avers that the real estate is “subject to the lien of debts not of record,” and the petition is not accompanied by an inventory or schedule of debts as required by the Act of March 29, 1832, P. L. 190, the petition will be regarded as having been presented under the act of 1853 even without such an averment.</p> <p>A public sale of real estate of a decedent, made within two years of his death by a trustee in pursuance of an order awarded under the Act of April 18, 1853, P. L. 503, to relieve the land from the lien of the decedent’s debts not of record, cannot be confirmed after the expiration of two years from his death, and this is so because there is no sale under the act of 1853 until confirmation by the court, and if confirmation is delayed until more than two years have expired from decedent’s death, the debts will cease to be a lien, and the confirmation is inoperative. In such a case the consent of the heirs will not give the court the power to confirm the sale. The heirs may sell the lands themselves after two years from the death of their ancestor discharged of all his debts not of record, but the act of 1853 gives no authority to the court to do so for them.</p>

<p>Appeal, No. 385, Jan. T., 1908, by plaintiff, from decree of C. P. Schuylkill Co., May T., 1905, No. 2, in equity, dismissing bill in equity in case of Rahn Township School District v. Lehigh Coal & Navigation Company.</p> <p>Bill in equity for an accounting. Before Marr, J.</p> <p>From the record it appeared that the plaintiff claimed that the defendant had received certain sums of money arising from granting licenses, that these moneys belonged to the plaintiff, and hád not been paid over. The court found as a fact that the payments had been made to Fergus G. Farquhar, who, although local attorney for defendant, had no authority, either expressly or by implication, to receive the moneys, and that Farquhar had retained such moneys and appropriated them to his own use'. The court dismissed the bill.</p> <p>Error assigned was decree of the court dismissing the bill.</p>

<p>Execution — Identity of defendant in the execution — Sheriff’s sale — Stay of sale — Injunction—Equity—Jurisdiction—Adequate remedy at law.</p> <p>In Pennsylvania a creditor is allowed to sell any title alleged to be in the debtor, and to try the validity of it afterwards in an action of ejectment by the purchaser.</p> <p>A person named as defendant in an execution cannot maintain a bill in equity to restrain a sheriff's sale of his property on the ground that he is not in fact the defendant, but that another person of similar or identical name is the defendant. Such a question is one of fact for the decision of a jury. The court will permit the sale to go on, and let the question raised by the person named as defendant be decided by a jury in an action of ejectment brought by the purchaser at the sale against the defendant named.</p>

<p>Decedents’ estates — Claim of physician — Estoppel—Visiting list— Evidence.</p> <p>A physician rendered a bill in a lump sum of SI,250 to an executor for services to the decedent. Three years later at the audit he presented an itemized claim for SI,685.50. When he was on the stand he was asked whether he had made the regular charges for services rendered the decedent. He answered, “I have charged more, and I have charged less. I charge according to the ability of the man to pay me for my services.” The claimant offered in evidence a visiting list showing a record of all unpaid visits made to all his patients, including decedent. No objection was made by the executor to the admission of this list, and the claimant was examined in reference to it. Held, (1) that as the executor had not acted on the original bill, the essential element of estoppel as to the second bill was wanting; (2) that whatever objections might have been available against the visiting list as a book'of original entries, they were waived by the action of the executor; and (3) that the allowance of the larger claim of the physician by the aúditor and the court would not be reversed.</p>

<p>Railroads — Street railways — Grade crossings — Equity—Act of June 19, 1871, P. L. 1360.</p> <p>In determining whether a grade crossing of a railroad by a street railway shall be allowed, the question is not as to the comparative dangers of an overhead and a grade crossing, nor as to the extent of the danger of the latter, but whether it is reasonably practicable to avoid a crossing. The extent to which the risk may be reduced by the exercise of care, and the cost of constructing an overhead crossing, are not elements in determining the question.</p> <p>The Act of June 19, 1871, P. L. 1360, is in effect a mandate to the courts to prohibit grade crossings, unless it is impracticable to avoid them, and unless crossing is an imperative necessity.</p> <p>A decree allowing a grade crossing cannot be sustained on a finding that “the preponderance of the evidence establishes that an overhead crossing would be more dangerous to life and limb to operate than the present grade crossing,” and that “the crossing is not so dangerous as to warrant equitable interference by the court.”</p>

<p>Replevin — Evidence—Certificate of stock — Practice, C. P. — Verdict— Writ of retorno habendo — Judgment—Aci of April 19,1901, P. L. 88.</p> <p>■ In an action of replevin against an executor to recover certificates of stock, a verdict and judgment for plaintiff will be sustained where the evidence shows that the certificates were found in the decedent’s safe inclosed in a sealed envelope with a power of attorney transferring them to plaintiff, that indorsed on the envelope was a statement signed by decedent to the effect that the contents belonged to plaintiff, and were to be delivered to her at his death, and the plaintiff testifies that there had been a complete delivery of the shares to her by the decedent, and that she had placed them in his hands -for safe keeping.</p> <p>In an action of replevin, where the defendant has entered a claim property bond and retained possession of the property, a general verdict for plaintiff and judgment thereon entitles the plaintiff, since the Act of April, 19, 1901, P. L. 88, to a writ of retorno habendo, and this is the case although the jury failed to find the value of the property and damages for its detention.</p>

<p>Appeal, No. 212, Jan. T., 1907, by defendant, from judgment of C. P. Monroe Co., Sept. T., 1906, No. 21, on verdict for plaintiff in case of Jacob Bauer v. George W. Fabel.</p> <p>Assumpsit on a check. Before Staples, P. J.</p> <p>The court charged in part as follows :</p> <p>[But if you find that this transaction was not a legal transaction, but that under the facts, as you have heard them testified to, and as explained by the court, it was a gambling transaction, then the court instructs you, under all the testimony in this case, and that finding, that George W. Fabel was a simple stakeholder. If you find that he simply held this money, and he bought no stocks with it, and he sold no stocks, and that the plaintiff understood that that was just what he was going to do with it, or that he sent it to Sage & Company and no stocks were bought and no stocks were sold, and the money ■came back to George W. Fabel, then as far as the $2,000 was concerned, which it was testified to was margins, and included in this check of $3,260.50, it was nothing more than a stake which George W. Fabel, the defendant, held for Jacob Bauer, the plaintiff. As the court remembers the testimony it. was clearly shown, without contradiction, that this check was made up of $2,000 which was margin deposited by the plaintiff in this case on these transactions, whether legal or illegal, as you should find them, and that when George W. Fabel sent this check it was intended to pay that $2,000 back and $1,262.50 profits. As the court remembers it, there is no question about that. If it was denied in any way, I would like counsel to so state now.</p> <p>If this check was made up in such a way that the sums which it represented could not be distinguished or separated, ■you could not tell how much of it was profits on these transactions and how much was margin, we would instruct you that you could not guess at it, and therefore you could not find a verdict with regard to it.</p> <p>But the two kinds of transactions, or the two kinds of amounts that it represented being so easily ascertained, the $2,000 being money deposited on margin and the $1,260.50 being profits, there is no trouble in your minds and none in the mind of the court what should be done in the matter relative thereto.</p> <p>The Supreme Court of our state holds that where a man received money as a stakeholder, no matter whether it is received for a legal purpose or an illegal purpose, the man who pays that money to the stakeholder has the right to demand it back, and if he does not pay it back, sue and recover in a court of justice. Not even that the man should keep the identical money as a stake, and so hold it, until the matter upon which it was paid was decided, but only so it can be arrived at and distinguished, and our courts have gone further and held that gambling transactions in stocks are wagering transactions, and that the broker in that case is nothing more than a stakeholder, and he cannot resist the payment of the money to the man who deposited it there on margins, by stating that man paid it to him for an illegal purpose, and that he is not bound to pay it back. The Supreme Court, in the opinion of this court, says that a person who deposits. that money as a stake has the right to the return of it, and as the amount can be ascertained in this case, we say to you that in case you find the transactions between these parties as gambling transactions, then your verdict should be in the sum of $2,000 in favor of the plaintiff, with interest from August 24, 1906.</p> <p>You may wonder in your own minds, gentlemen of the jury, why this amount is larger than the other amount. It is larger than if you find that the transaction was a fair transaction, and the court explains to you that the reason of that is, that if you find the transactions were gambling transactions, the court must take the defendant at his own word, and as these moneys represented by the check of $2,000 were invested by him in gambling transactions, he has no right to recover from the plaintiff in this case. He must either stand by his propo-' sition in the whole or else drop it, and if he claims that the whole matter was a gambling transaction, through and through, all that he can defend against is the profits in this transaction, and those profits were $1,262.50. We think we have explained this matter now clearly to you.</p> <p>In other words, gentlemen of the jury, in order that there will be no confusion in your minds under the instruction as the court gives it to you, your verdict should be in favor of the plaintiff, either for $1,962.50, with interest from August 24, 1906, or for the sum of $2,000, with interest from August 24, 1906, as you shall decide that first proposition which was given to you by the court.] [4]</p> <p>Yerdict and judgment for plaintiff for $2,076.67. Defend! ant appealed.</p> <p>Error assigned amongst others, was above instruction, quoting it.</p>

<p>Appeal, No. 238, Jan. T., 1907, by defendant, from judgment of O. P. Northampton Co., Deo. T., 1905, Nó. 31, on verdict for plaintiff in case of the Ridgeway Dynamo & Engine Company v. Pennsylvania Cement Company.</p> <p>Assumpsit for breach, of contract. Before Scott, P. J.</p> <p>At the trial when Wm. M. Beach, a witness for defendant, was called, the following offer was made:</p> <p>Mr. Smith : We propose to show by this witness that at the time the contract was executed and simultaneous with the time that the contract was executed, there was an oral understanding between the parties, which oral understanding was the inducement for the making of the written contract, that construction of these engines was not to be started until notice be given by the Pennsylvania Cement Company, and until the Pennsylvania Cement Company had furnished drawings and, certain drafts showing the foundation plans and the plans for the templet of these two engines.</p> <p>Mr. Steele: Objected to for the same reasons and for the further reasons that it is attempted to reform or set aside a written agreement, and no allegation of fraud, accident or mistake is set forth in the answer that is filed.</p> <p>The Court: Ordinarily, in the case of the execution of written agreements, a parol contemporaneous agreement or verbal understanding, varying the terms of it upon the strength of which the written agreement is actually signed, is admissible if it be the inducement solely upon which the written contract is to be carried into effect. There is in this agreement, however, the written stipulation referred to in the objection which, by its written terms, excludes the admission of any other terms than those which are herein expressed. Whether or not that would be sufficient to exclude the present offer of proof, there is nothing in the pleadings that admits such testimony for the alteration, explanation or variation of the written agreement, and it is, therefore, inadmissible: Krueger v. Nicola, 205 Pa. 38.</p> <p>To which ruling defendant excepts, and bill sealed. [4]</p> <p>The court charged in part as follows :</p> <p>[If the plaintiff, then, has failed to satisfy you that these engines didn’t have such a market value, then your verdict would be for the plaintiff for nominal damages. But if he has satisfied you that they had no market value, that there was no particular market value for these engines, they had none fixed in the market, that they were manufactured from spec’ ial designs for a special purpose, then he is entitled to recover substantial damages, and not merely nominal damages, and then it is for you to say, if you pass this point and determine that the plaintiff has suffered a loss for which he ought to recover substantial damages, it is necessary for you to say how much ; and in that event, if he be entitled to recover substantial damages then he would be entitled to recover the difference between the contract price and the actual cost and expenses that would be necessary to be employed by him to manufacture these engines and deliver them at Bath at the time stipulated for in the contract.] [3]</p> <p>Yerdict and judgment for plaintiff for $1,555.22. Defendant appealed.</p> <p>Errors assigned among others were (3) above instruction, quoting it; and (4) rulings on evidence, quoting the bill of exceptions.</p>

<p>Evidence — Parol evidence — Written instrument — Measure of proof.</p> <p>Parol evidence to vary a written instrument must be so clear, precise and indubitable as to carry conviction to the jury that the witnesses are credible, the facts distinctly remembered and accurately stated, and to the court that, if the facts alleged are true, the matters in issue are definitely and distinctly established.</p> <p>On an issue between an executrix and nephews and nieces of the testator to determine the ownership of the proceeds of a life insurance policy on the life of the testator, a verdict and judgment in favor of the nephews and nieces will be sustained, where the evidence shows that the agent who procured the policy filled up the blanks in the application by the direction and at the dictation of the insured, making the nephews and nieces beneficiaries; that he forwarded the application to the company and received the policy; that without reading it he handed it to the insured, who without reading it, and without knowing that the policy was made out in favor of his estate, placed it in his safe; that subsequently on several occasions the insured had told the agent that he was pleáséd that he had made'the policy payable to his nephews and nieces; •that he had repeatedly told other disinterested witnesses that his nephews and nieces were the beneficiaries, such statements covering the time to within a few months of his death; and that the widow had in the presence of other witnesses reproached the insured for making the policy payable to his nephews and nieces.</p>

<p>Appeal, No. 64, Jan. T., 1908, by defendant, from judgment of C. P, Northampton Co., Dec. T., 1905, No. 69, on verdict for plaintiff in case of William Singley v. Easton Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Scott, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Yerdict for William Singley for $1,800 and for Herbert Singley for $2,700.</p> <p>Judgment was entered on the verdict for Herbert Singley for $2,700 and judgment for William Singley for $1,200, all above that amount having been remitted. Defendant appealed.</p>

<p>Appeal, No. 79, Jan. T., 1908, by defendant, from judgment of C. P. Bradford Co., May T., 1906, No. 448, on verdict for plaintiff in case of Clara Augusta Gilbert v. Elk Tanning Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Fanning, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $6,000. Defendant appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

<p>Negligence — Master and servant — Written statement — Ignorance of (he English language — Evidence.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, where the defendant offers in evidence a statement signed by the plaintiff shortly after the accident and alleges that plaintiff’s evidence on the stand is inconsistent with the statement, and it appears that plaintiff made'the statement in the German language, that it was translated into English by another person, and written out in defendant’s office, and also that the statement was inaccurate in some minor matters, it is for the jury to determine whether the writing produced embodied accurately the statement made by the plaintiff.</p> <p>Negligence — Master and servant — Risk of employment — Caustic soda.</p> <p>In an accident case by an employee against his employer for injuries to. plaintiff’s eye caused by caustic soda, the question of defendant’s negligence is for the jury where it appears that at the time of the accident the plaintiff was helping to roll up an iron barrel of caustic soda on an incline, that in one of the heads of the barrel there was a hole only six inches less than the diameter of the head itself, that in this hole was stuffed a piece of burlap without being fastened, that the pressure of the contents of the barrel easily forced the burlap out of place, and that the caustic soda flowing out fell on the plaintiff and injured him.</p> <p>In such a case where the defendant offers evidence to the effect that the accident was due to the negligence of other workmen in adjusting the rope around the barrel, and that the plaintiff knew of the danger and assumed the risk, and these allegations are contradicted by the plaintiff, a verdict and judgment for plaintiff will not be reversed.</p>

<p>Decedents’ estates — Claim for services — Rescission—Contract—Finding of fact.</p> <p>A finding of fact by the orphans’ court based on sufficient evidence that a claimant against the estate of a decedent under a contract of employment had treated the contract as rescinded, will not be reversed in the absence of manifest error.</p>

<p>Appeal, No. 67, Jan. T., 1908, by Maria L. Taggart, from decree of O. C. Phila. Co., Jan. Term, 1907, No. 551, dismissing exceptions to adjudication in Estate of Mary C. McCahan, deceased.</p> <p>' Exceptions to adjudication of Dallett, J.</p> <p>The material portions of the adjudication were as follows:</p> <p>The testatrix died November 12,1905, leaving a will whereby, after making certain pecuniary bequests as set out in the petition for distribution and giving Robert McCahan her ten shares of Francisco Sugar Company stock and her sister, Maria L. Taggart, her jewelry, household furniture, etc., and 100 shares of her stock in the W. J. McCahan Sugar Refining Company, she gave to her trustee seventy shares of the McCahan Sugar Company stock, in trust, to pay the income to her brother, David Taggart, for life, and upon his death to pay the principal to his children, etc., and gave thirty shares of said stock to her trustee, in trust, to pay the income to her niece, Anna G-. Taggart, for life, and upon her death to pay the principal to the issue of the said Anna G-. Taggart, etc.</p> <p>The residue of her estate she gave to her sister, Maria L. Taggart, and her brother, David Taggart, in equal shares.</p> <p>She appointed her sister, Maria L. Taggart, executrix and trustee, and provided that in the event of any of her legatees contesting, or attempting to contest, her will such legatees should take no part of her estate, but their legacies should fall into the residue.</p> <p>Messrs. Hallman, Bright and Brown presented a claim on behalf of Anna Gertrude Taggart for the value of 100 shares of the W. J. McCahan Sugar Refining Company stock, with interest from 1901, and testimony in reference to the claim was taken.</p> <p>It appears therefrom that in the fall of 1900, on returning from a trip to Europe, the claimant went to live with.her aunt, the testatrix, and continued to live with' her until the end of July, 1902. Having studied physical culture and dramatic art, she had matriculated in the Women’s Medical College, but she gave up these pursuits on her aunt’s promise that if. she would live with her until her death she would- give her 100 shares of McCahan sugar stock. On May 2, 1902, the' testatrix executed a will by which she gave to her niece, the claimant, “ in consideration of my love and affection for her, and of her faithful services to me,” 100 shares of the W. J.. McCahan Sugar Refining Company stock, and in addition, after certain pecuniary bequests and the gift of the income from 100 shares of said stock to her sister, Maria L. Taggart, for life, gave her said niece the residue of her estate, including therein the remainder interest in fifty shares of the stock, the income of which she had bequeathed to her sister for life.</p> <p>The testatrix, who had been afflicted with heart trouble, on July 9, 1902, suffered a stroke of apoplexjq and cried for her sister, the present accountant, who was sent for. The sister came in answer to the request, and assumed charge of the house and of the patient, and displaced the niece, who, being, refused access to her aunt’s room and, shorn of her power over the household, left the house. On November 12,1902, the testatrix executed another will, that admitted to probate, the provisions of which are hereinbefore set out. - -</p> <p>The contest over Mrs. McCahan’s money evidently began long before her death. From 1900 until 1902 the niece was-in favor, but in 1902 the sister superseded the niece in the testatrix’s affections, and continued to occupy the close relationship until her death.</p> <p>Disappointed at not receiving by the will probated the 100 shares of sugar refining company stock, the niece now claims the value of that stock under a contract with the testatrix.</p> <p>The first question,- therefore, is, was there a contract ?</p> <p>Mrs. Mogee, Sarah L. Gardiner, Elizabeth Hart and Frederick H. Stillwagen, the attorney who prepared the first will, and a competent and most important witness (Dowie’s Estate, 135 Pa. 210 ; Padelford’s Estate, 190 Pa. 35), have testified to the testatrix’s declarations that she had promised the 100 shares of stock.</p> <p>Mr. Stillwagen testified : “ She said that Miss Anna Taggart had come to her only for á little while, and had since wanted to go back and continue her studies and ultimately read medicine, but she said : ‘ I have-persuaded her not to do that. I told her if she would stay with me and live with me as long as I lived I would see her well taken care of.’ She said : ‘ I have promised her 100 shares of the sugar stock,’ and she said : ‘ Some day I want to draw a will, and I want that put in the will.’ ” Mr. Stillwagen subsequently prepared the will, dated May 2, 1902.</p> <p>Mrs. Mogee testified that when the testatrix came to her to ask for a loan she (the testatrix) declared : “You give me the $500 and you will be well secured, as I have promised to give my niece 100 shares of the William McCahan sugar stock as soon as the executors of my deceased husband’s estate turn it over to me.” And again : “ She told me that Anna had given up her medical pursuits and every source of income, and had gone to live with her, to remain with her as long as Mrs. .Mc-Cahan lived.” And again, that when Mrs. McCahan paid her the money she owed she said : “ I have settled up with everybody, and Miss Taggart, Miss Anna, said : ‘ Everybody, aunt, but me. You have not given me my 100 shares.’ She said : ‘ That is all right; I will fix that, Anna.’ ”</p> <p>Mrs. Gardiner, the seamstress employed by Mrs. McCahan, testified : “ She told me she had taken Anna away from her studies and she intended to do what was right by her ; that she intended to provide for her so she would not have to teach any more. She said she was not strong enough to teach, and not strong enough to study medicine and practice. She did not wish her to do it, and she was going to provide for her so she would not have to do anything after her death.” And again, that when she told her niece to draw two checks, one for herself and one for her sister Maria, the claimant, said to her : “ ‘ Aunt, never mind my check; draw Maria’s.’ She says, ‘ I have providéd for you,’ and Anna said, ‘ In what way ; do you mean the 100 shares?’ And she said, ‘Yes.’”</p> <p>And Miss Hart testified : “ She (Mrs. McCahan) went on to tell me that she had pursuaded Anna to give up her studies and to come there to live, that she would always provide for her, and spoke about Maria and Sarah being jealous, and how provoked they would be, and Anna told her, she said, ‘ Aunt, won’t they be mad when they find out you gave me the 100 shares ? ’ and Mrs. McCahan said, ‘ Yes, they would.’ ”</p> <p>This testimony, in the opinion of the auditing judge, coupled with proof of the fact that the claimant did live with and perform certain services for the testatrix until the end of July, 1902, clearly establishes a contract: Thompson v. Stevens, 71 Pa. 161; Harper’s Estate, 196 Pa. 137.</p> <p>The character of the services, in view of the contractual relation, is not of the greatest importance, but while Miss Hamilton (a friend of the testatrix who visited her not less frequently than once a month), testified with regard to the claimant : “ The only thing I saw was her having a good time in every way ; the only thing she did was to help Mrs. McCahan spend her money ; that is the only thing I saw her do.” Mrs. Mogee, who had been introduced to the testatrix by the claimant, and whose visits averaged one in ten days for a considerable period, testified that the complainant “ did everything from kitchen maid to trained nurse; ” Mr. Stillwagen, who saw her on several visits, that “ I should call her a nurse to her aunt,” and Miss Gardiner, that the claimant performed “ all the service that a nurse would do for her. She bathed her limbs (they were very much swollen and had to be bathed every morning), combed her hair, dressed her and did everything for her, besides having charge of the house.”</p> <p>The question to follow naturally is, has the claimant fulfilled her part of the contract ? And the answer necessarily is “ No.” But it is clear that she was not pérmitted to complete it.</p> <p>Dr. Kelley, called by the accountant, testified in answer to the question, “ Will you give us a reason why you objected to Miss Anna Taggart-coming into the room and did not object to Maria coming into the room ? ” “ Because during my visits when Miss Anna Taggart came into the room she had a deleterious influence.” And Miss Rambo'testified : “ Miss Taggart inquired if she might enter the room. She first asked the doctor to let her in, and he told her she could not go in. She asked Miss Maria Taggart.to let her go. in, and she told her she couldn’t let her go in, as her sister was too ill,” and in answer to Mr. Johnson’s question, “ Do you know any reason why there was a difference (why the testatrix was not too ill to see her sister and was too ill to see her niece) ? ” answered “ Yes, because Mrs. McCahan asked me if I would not keep her niece out of the room.” And Miss Gardiner testified that Miss Maria Taggart had made it so unpleasant for the claim-, ant by taking all power out of her hands,, and “instructing the servants -not to obey any orders of hers, ” that she could not stay.</p> <p>Having performed a portion of her contract, therefore, and further opportunity to complete performance being refused by her aunt, two courses were open to her: the one to insist upon an opportunity to do her part, and the other to accept the rescission of the contract and withdraw. That she chose the latter course appears without -doubt from' the letter of her then attorney, Mr. Pepper, who wrote on July 29, 1902: “ Miss Taggart reports the situation, of affairs at 1516 South Sixth street as being intolerable to her. She accordingly ex-, pects to withdraw from the house in two or three days. She will leave, whether or not she is -permitted to see her aunt, Mrs. McCahan, again. She prefers, however (since she took up her residence at the house at Mrs. McCahan’s .invitation), to terminate her residence at Mrs. McCahan’s personal request:” Moorhead v. Fry, 2é Pa. 37.</p> <p>To what compensation, under these circumstances, is she en-. titled? She apparently never saw her aunt after July, 1902, although she lived until November 12, 1905. Her compensation was not due under the contract until her aunt’s death. She perhaps expected, but it does not appear that she was notified, that she would receive it, but when the will is probated she finds that instead of 100 shares of the sugar company stock absolutely, worth in 1901, according to the testimony, $200 per share, she only receives thirty shares for life, with some remainder interest in seventy shares bequeathed to her father for life. Is this a sufficient compliance on the part of the testatrix ? Figuring roughly, her life estate is worth but one-third of $6,000, or $2,000, while figured on her contract, as subsequently determined by the years testatrix survived, she earned for about twenty-one months out of sixty months, for which she was to be paid $20,000, or $7,000, a sum perhaps more than might be recovered upon quantum meruit, based upon the usual salary earned by a companion, combined with what would be reasonable damages for giving up the claimant’s medical pursuits, but a sum figured at the rate determined upon by the parties themselves.</p> <p>Deducting, therefore, the value of the life estate as being part payment on the contract (Reynolds v. Robinson, 64 N. T. 589), the auditing judge allows the claim to the extent of $5,000, without interest.</p> <p>The filing of the caveat may not, in the opinion of the auditing judge, be construed as a contest of the testatrix’s will.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 65, Jan. T., 1908, by John P. Van Leer, from decree of C. P. No. 4, Phila. Co., June T., 1904, No. 3,388, dismissing exceptions to master’s report in case of Edward Shippen Van Leer v. George R. Van Leer, Bella Van Leer, Joseph W. Van Leer, Jr., May Van Leer, John P. Van Leer (appellant), and Elizabeth N. Van Leer, his "Wife, Helen Van Leer, Arabella Van Leer and George R. Van Leer, Surviving Executor and Trustee under the Will of Joseph W. Van Leer, deceased.</p> <p>Bill in equity for partition.</p> <p>From the record it appeared that the bill was filed by one of the seven children of the testator, praying for the partition of the real estate of the testator. The averment of the bill, so far as material to the present controversy, was that each of six of the testator’s children, including the complainant, was entitled to an undivided one-seventh share of two-thirds of the testator’s real estate, in fee; and that a like share of a remaining child of the testator, John P. Yan Leer, the appellant, was vested in George R. Yan Leer, surviving executor and .trustee under the will of the testator and codicil thereto, in trust for the said John P. Yan Leer, during his life.</p> <p>No answer was filed to the bill, and a deóree pro confesso was entered, directing partition to be made, and referring the proceedings, “ by agreement of the parties,” to a master.</p> <p>Subsequently, under order of the court, the master éxposéd the real estate to public sale, and realized therefrom the net sum of $38,980, one-third of which he awarded in' trust for testator’s widow during her life, and the remaining two-thirds he divided into seven parts, six of which he distributed among six of the testator’s children, reserving for further consideration and report, upon request of all the parties in interest, the contention of testator’s seventh child, John P. Yan Leer, that the trust created as to him by the testator’s codicil to his will was a special trust intended solely to bar his then wife, Maud D. V an Leer, from any participation in his share, and that he, being now divorced from Maud D. Yan Leer, was entitled to receive his distributive one-seventh share or $3,712.38, free and discharged of the trust.</p> <p>All the codistributees filed with the master a written declaration that they were satisfied that the testator’s purpose in creating the trust as to John P. Yan Leer had been accomplished by the divorce of the latter and his former wife, Maud D. Yan Leer, and setting forth their reasons in the nature of a case stated. George R. Yan Leer signed this instrument individually, but “ not as executor or trustee.”</p> <p>The master awarded the distributive share of John P. Yan Leer to George R. Yah Leer, surviving executor and trustee under the will and codicil of the testator, and dismissed exceptions filed to his report by John P. Yan Leer.</p> <p>On appeal, the lower court, without opinion filed, dismissed the exceptions and confirmed the master’s report.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 270, Jan. T., 1907, by Eli Kirk Price, Executor of Ellen Mitchell, deceased, and the Keene Home, residuary legatee under her will, from decree of O. C. Phila. Co., Jan. T., 1882, No. 304, dismissing exceptions to adjudication in Estate of Sarah Lukens Keene, deceased.</p> <p>Exception to adjudication.</p> <p>From the adjudication it appeared that the testatrix died May 11, 1866, leaving a will dated November 18, 1843, duly probated, whereby, after making certain specific bequests to her niece, Ellen Keene (afterwards the wife of Dr. S. B. Wylie Mitchell), she provided as follows: “ I also bequeath to this dear niece (the only surviving daughter of my brother, Jesse Lukens Keene, deceased), whom I have educated, the sum of thirty thousand dollars, to be invested in ground rents, or bonds and mortgages on real estate, the interest to be paid to her only, or her power of attorney, whether married or single, during her life, and after her death to her children, if any, absolutely ; but if she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investment of thirty thousand dollars in ground rents and bonds and mortgage, the interest only for their uses; but to their children, lawful issue, absolutely. But if she marries without my consent, or after my death, to any person whom I did not approve during my life, then this devise shall be null and void, and she shall only receive ten thousand dollars, subject to the same investment of ground rents or bond and mortgage, the interest only to be paid to her alone, or her power of attorney, and after her death to her children absolutely. I have made this clause, not from any fear of its probable necessity, but from prudence and precaution. If she dies without lawful issue, this sum to go to her brothers in the same manner as specified above in the larger sum.”</p> <p>The residuary clause of the will is as follows : “ The residue of my estate, real and personal, I give and bequeath to my dear and affectionate niece, Ellen Keene, subject to the same conditions as my legacy of thirty thousand dollars specified in a former part of this instrument, the principal to be invested in ground rents or in the bank stock considered safe, but preferable in bond and mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue, absolutely; if she dies unmarried, she has power to devise it, to whichever of her brothers she will consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely.”</p> <p>The testatrix was survived by her niece, the said Ellen Keene, who had married Dr. Mitchell in her aunt’s lifetime and with her approval, two nephews, Henry Edgar Keene and Lenox K. Keene, brothers of Mrs. Mitchell, and six children of another nephew, James Bryden Keene, a deceased brother of Mrs. Mitchell.</p> <p>The two surviving brothers died in the lifetime of Mrs. Mitchell, Henry without issue, Lenox leaving two children, both of whom also died in Mrs. Mitchell’s lifetime, one leaving issue who survived her.</p> <p>All the children of her brother James also died in her lifetime, but some left issue still living.</p> <p>Mrs. Mitchell survived her husband and died without issue February 12, 1905, and without being able to exercise her power of appointment of the residue of her aunt’s estate, which limited her selection to her brothers and their children, all of whom had died in her lifetime, but leaving a will, upon which letters testamentary were, granted to Eli Kirk Price, the executor therein named, and whereby, after making sundry specific bequests,'all of which have been paid, she left the residue of her estate to the Keene Home, a charity created by another'pro vision- of her aunt Sarah Lukens Keene’s will.</p> <p>Upon Mrs.' Mitchell’s death her executor filed an account of her administration of the residue of Sarah Lukens Keene’s estate,’ of'which she had “enjoyed” the “interest” “during her- life,” as provided in her aunt’s will, and at the audit claimed on behalf of the Keene Home, Mrs. Mitchell’s residuary legatee, the entire balance for distribution, or, if it should be held that an intestacy of the principal of the residue under Sarah Lukens Keene’s will had occurred,' a one-quarter interest in the balance as the legal representative of one of the four shares which would have passed to her next of kin at the death of the testatrix.</p> <p>The auditing judge rejected both claims and awarded the entire net balance for distribution to the issue of James 33ry-den Keene’s children or their legal representatives. Exceptions to the adjudication were dismissed and the adjudication was confirmed absolutely by the court in banc.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 368, Jan. T., 1907, by plaintiffs, from decree of C. P. Lackawanna Co., Jan. T., 1907, No. 2, dismissing bill in equity in case of Andrew Krauczunas et al. v. Michael J. Hoban.</p> <p>Bill in equity to compel a conveyance of real estate.</p> <p>Edwards, P. J., found the facts to be as follows :</p> <p>1. The plaintiffs, ten in number, bring suit for themselves and their associates, who constitute an unincorporated religious association, named the St. Joseph’s Lithuanian Catholic Congregation. The defendant is the Roman Catholic Bishop of the Scranton diocese.</p> <p>2. The said congregation is composed mainly of Lithuanians and was organized as- a church in the year 1892. It was organized as a Roman Catholic church, and is under the ecclesiastical jurisdiction of the defendant as bishop of the Scranton diocese. It has been since its organization a Roman Catholic church.</p> <p>3. In 1893 the said congregation purchased, under contract, a lot of land in the city of Scranton, for the purpose of erecting thereon a church building. The title to this land was taken in'the names of Yincent Blazys, W. Yususe, Mike Bernotas, George Mitchell and Joseph Tamalinnas. These persons were acting for the congregation, two of them being officers thereof. Afterwards, in 1896, the deed for the property was made to the same persons, naming them as “ trustees,” but not giving the name of the congregation for which they were trustees.</p> <p>4. Soon after the foregoing deed was obtained, an attempt was made to place the title to the property in the name of the then bishop of the Scranton diocese, Bishop O’Hara, the predecessor of the defendant in said office. On March 13, 1896, a deed was made to the “ Providence Lithuanian Catholic Congregation.” This deed was signed by the five men named in the foregoing finding. Although named as “ trustees ” in the deed they signed as individuals. In September, 1896, the “ Providence Lithuanian Catholic Congregation ” deeded the property to Bishop O’Hara, in trust for the congregation. This deed is signed by two persons, named as “ president ” and “ secretary,” without designation of the name of the congregation. It is apparent that the purpose of these conveyances was to take the title to the church property out of the individuals named -in the third finding, and to place it in the bishop of the diocese in trust for the congregation. This attempted transfer was a somewhat crude effort, judged by the technical rules governing conveyancing. The first deed, January 17, 1896, wás to the five persons named, as “ trustees ” merely ; the second deed, March 13, 1896, although purporting to be made by “ trustees,” is signed by the grantors as individuals and tbe name of the congregation is incorrectly, given ; the third deed, September 12, 1896, is improperly executed, and this latter deed does not show, a resolution of the congregation authorizing the transfer to the bishop.</p> <p>5. Between the years 1889 and 1901 the church building was erected. The congregation went into debt, and in 1901 it became necessary to secure a loan of $10,000. Application for the loan was made to an attorney, and, while investigating the title, he discovered the defects in the deed above referred to. The consequence was that a meeting of the congregation was called for February 13,1901. It is as to this meeting that we find the first substantial dispute in the testimony, the plaintiffs claiming that there was present only a small minority of the congregation, and that the action taken at the meeting was therefore void. As to the number present at this meeting, and as to what transpired therein, a large number of witnesses have testified on each side. Except as to the number present at the meeting the testimony of plaintiffs’ witnesses is vague and very unsatisfactory. The only clear and definite testimony comes from defendant’s witnesses. On one side it is claimed that the number present at the meeting was from 100 to 200 ; on the other side the number is given at from 400 to 100. We are of the opinion that the defendant’s witnesses are more nearly correct than the other witnesses, and we find as a fact that the congregation was represented at said meeting by a majority of the members. The matter discussed was the transfer of the title to the church property to Bishop Hoban, the successor of Bishop O’Hara. It was explained that this was the only way by which the loan could be secured. A resolution was adopted, with substantial unanimity, authorizing and directing the transfer of the title to the church property to Bishop Ho-ban, the defendant in this case, in trust for the St. Joseph’s Lithuanian Catholic Congregation.</p> <p>6. The action taken at said meeting contemplated the formal transfer of the title to Bishop Hoban from the old trustees, the five men named in our third finding of facts, thus ignoring the attempted transfer from them to the congregation and from the congregation to Bishop O’Hara, as shown by Ahe deeds already referred to. The attorney considered these deeds so imperfect as to cast a serious doubt on the validity of the transfers. lie therefore advised the action as taken by the meeting of the congregation. Subsequently, the old trustees refused to make the transfer, and then another meeting was called and held, the result of which was the authorization of legal proceedings to compel the five old trustees to convey the church property to Bishop Iioban, in accordance with the resolution adopted at the previous meeting.</p> <p>1. The next step was the filing of a bill in equity, in which George Smith and others for themselves and associates, constituting the St. Joseph’s Lithuanian Catholic Congregation, were plaintiffs, and Yincent Blazys et al., the five old trustees, were defendants. The purpose of the bill was to have a trust declared in the defendants as to the church property for the benefit of the said congregation, and to secure a conveyance of the property to Bishop Hoban. The bill was taken pro confesso and a final decree was entered (1) declaring a trust in the defendants as to the property aforesaid; (2) ordering the defendants to execute a declaration of trust within ten •days; and (3) directing the defendants to convey the church property to Bishop Hoban in trust for the said congregation. Whatever criticism might be made as to the regularity of these equity proceedings they finally resulted in a deed from the defendants — the old trustees, as trustees, to the Right Rev. Michael John Hoban, trustee for the St. Joseph Lithuanian Catholic Congregation. Therefore, in August, 1901, the title to the church property was securely vested in Bishop Hoban in trust for the congregation.</p> <p>8. In the year 1906 it appears from the evidence that considerable dissatisfaction existed among the members of St. Joseph’s congregation. They were not satisfied with their priest, and many of them claim that the congregation had no knowledge that the title to their property was in Bishop Hoban, as trustee. At first it seems the objections were more on account of the priest than because of the bishop’s connection with the property ; but whatever may have been the cause of the irritation, the outcome was that on July 20, 1906, a meeting of the congregation -was held to take action relative to the transfer of the church property from Bishop Hoban to other trustees selected by the congregation. This meeting was called by means of notices in newspapers and by printed' slips or bills handed to the members of the congregation. There is no evidence as to the manner in which meetings of the congregation to transact its business was usually called. The meeting of February 13, 1901, was called by the priest from the altar; but we were not referred to any rule, by-law or custom governing the calling of meetings. We, therefore, cannot say that the meeting of July 20, 1906, was irregularly called. There is some question as to the number present at this meeting; but we have no difficulty in finding as a fact, and we do so find, that the resolution adopted at said meeting was passed “ by a vote of more than a majority of the adult members of the congregation.” The resolution provided that Andrew Krauczunas and others, ten in number, “ the present trustees,” be chosen as trustees “ to hold the title to all the property belonging to this society.” These trustees are directed “ to take such action, in law, equity, or otherwise, as may be necessary to secure the conveyance to them as trustees for said society of the legal title to any and all property now held by any other person or persons as trustee or trustees for this society.” The resolution also provides for the incorporation of the society and the subsequent conveyance of the property to the incorporated societ}!-. Another meeting was held in October, 1906, in which the said trustees, the plaintiffs named in the present case, were instructed to bring legal proceedings to secure the conveyance of the church property from the defendant, he having refused to make the transfer when requested to do so.</p> <p>9. The canons of the Noman Catholic church provide and require that the title to the property of a Noman Catholic congregation, which is under the jurisdiction of the Noman Catholic bishop of the diocese in which the congregation has its place of worship, must be in the “ ordinary,” or, in the present case, in the bishop of the diocese.</p> <p>The above specific fin dings, cover all the material facts established by the evidence in this case. Briefly recapitulated the facts are:</p> <p>(a) The St. Joseph’s Congregation is a Noman Catholic church, and is under the jurisdiction of the defendant as bishop of Scranton.</p> <p>(b) By action of the congregation and by legal proceedings and deed, the title to the church property was transferred in 1901 to Bishop Hoban in trust for the congregation.</p> <p>(c) A large majority of the congregation in 1906 passed a resolution to secure the transfer of the title from Bishop Ho-ban to ten trustees, plaintiffs named in the present case.</p> <p>(d) The bishop refused to make the transfer, claiming the right, under the laws of the Roman Catholic church, to hold the title to said property in trust for the congregation.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned amongst others was decree dismissing the bih.</p>

<p>■ Executors and administrators —Accounting—Notice— Surcharge— Counsel fee — Exceptions—Parties—Amicus curia. ■</p> <p>A surcharge by the orphans’ court is an adjudication against the accountant which cannot be made without notice to him, and an opportunity to be heard before he is condemned.</p> <p>A surcharge of an executor for an overpayment of counsel fees is not one that can be made at all by the court without an exception by some interested party before it.</p> <p>Where the orphans’ court without notice or hearing has surcharged executors with money paid out as counsel fees; and it appears that the only parties interested are two charitable corporations who filed no exceptions to the account, did not employ counsel, and who in fact ask that the account be confirmed, it is error for the court to appoint an attorney as amicus curise to file exceptions, and on such exceptions to hear testimony, and confirm the first surcharge and make an additional surcharge.</p> <p>' It is not the office of an amicus curise to become prosecutor to put into shape objections dictated by the court, and which the court itself has no authority to make in the absence of objection of_some party in interest. .</p>

Trespass to recover damages for alienation of wife’s affections. Before Scott, J. The opinion of the Supreme Court states the case. Defendant presented these points : 1. There being no evidence in the cause that defendant made any false and malicious statements of and concerning the plaintiff to his wife, under the pleadings there can be no recovery by the plaintiff. Answer: Refused. [10] 2.

<p>Negligence — Railroads—Passenger—Ejection from train — Walking on track — Contributory negligence — Case for jury.</p> <p>In an action against a railroad company to recover damages for death of a passenger alleged to have been wrongfully ejected from a train at night, and subsequently killed on the tracks while walking to his destination, the case is for the jury where the evidence is conflicting as to the character of the locality where he was put off, and as to the existence of other and safer ways by which he might have walked to his destination. In such a case the important question is not so much the actual situation as it was, but what it appeared to the deceased to have been, what,means of information were reasonably open to him, and how far he availed himself of them. On all of these points the case is for the jury.</p>

<p>Appeal, No. 401, Jan. T., 1906, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1905, No. 2,212,'refusing to take off nonsuit in case of Richard' Gilpin Gardner v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries caused by a fall on an icy pavement. Before Beitler, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 380, Jau. T., 1907, by Andrew O. Kerr, Guardian of John W. Fitzpatrick, a minor, from order of C. P. No. 4, Phila. Co., June T., 1906, No: 3,469, discharging rule to open judgment in case of Manayunk Trust Company to the use of John W. Platt, Horace H. Platt and Frank M. Platt v. Ammon Platt, Mortgagor, Adolph C. Platt or Adolphus C. Platt, Trustee, Adolph C. Platt, Ella Cornman and Charles' H. White, Guardian ad litem of Florence Cornman, F. Willard Cornman and John W. Fitzpatrick, minors, real owners.</p> <p>Rule to open judgment.</p> <p>The only ground alleged for opening the judgment was that neither the minor nor his next of kin was served with notice of the application to appoint the guardian ad litem.</p> <p>The court discharged the rule.</p> <p>Error assigned was the order of the court discharging the rule.</p>

<p>Appeal, No. 12, Jan. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1904, No. 1,103, on verdict for plaintiff in case of Agnes T. Holbert v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $2,406. Defendant appealed.</p> <p>Error assigned was refusal to give binding instructions for defendant.</p>

<p>Appeal, No. 389, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 309, on verdict for-defendant in case of Susan Earnum Wheeler, Executrix of the last Will and Testament of Charles Wheeler, deceased, v. The Equitable Trust Company.</p> <p>Assumpsit on a policy of title insurance.</p> <p>The facts appear by the opinion of the Supreme Court, and by the previous report of the case in 206 Pa. 428.</p> <p>At the trial the plaintiff made the following offer :</p> <p>Mr. Johnson: I am willing that the case shall be tried upon the acceptance of fact that at the time the mortgage was sold by the holder of the judgment note there was not then due upon the judgment note, principal, interest and costs in a sum greater than the $53,000.</p> <p>The Court: Then you can make your offers and we can have the whole question settled by the court in banc.</p> <p>Mr. Johnson : So that your honor’s ruling will now be upon a state of facts appearing upon the record, which meets what was in your mind as to the only reason why you would permit proof.</p> <p>Upon this supposition of facts the plaintiff now offers to prove that the title of the mortgaged premises was defective in that the right to the bed of the street had not been acquired. And also prove that the houses had not been completed in accordance with the plans and specifications. That they were incomplete in very important particulars. That without the knowledge or assent of the mortgagee, the holder of the judgment note, the plan of construction had been altered so that the houses thus constructed were less valuable. That by reason of the noncompletion of the houses in accordance with the plans and specifications and title insurance policy, the houses themselves would require upwards of $13,000 to complete, and that such expenditure would be required in order to make the construction in accordance with the title insurance contract. That by reason of the incompleteness of the buildings, the mortgage was less valuable than it would have been by about $18,000. That is our offer.</p> <p>Objection. Objection sustained. Exception. [1]</p> <p>We also offer to prove that at the sale of the mortgage made by the owner of the judgment note there were but two bidders, Mr. Pharaoh, the debtor, who was at the time insolvent and the owner of the judgment note.</p> <p>The Court: I assume the insolvency was known to the plaintiff at the time.</p> <p>Mr. Johnson: Yes; the insolvency was known to the owner of the judgment note, and that can be shown.</p> <p>Objection. Objection sustained. Exception. [2]</p> <p>The court gave binding instructions for defendant.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1,2) ruling on evidence, quoting the bill of exceptions; (3) in giving binding instructions' for defendant.</p>

Appeal, No. 10, Jan. T., 1908, by plaintiff, from judgment of C. P. Erie Co., Nov. T., 1907, No. 125, for defendants on demurrer to answer in mandamus proceedings in case of Zachary T. Brindley v. Edwin Walker, Clarence L. Walker and Erie Specialty Company. Petition for mandamus. Demurrer to answer.

<p>Negligence — Municipalities—Streets—Defect in street — Duty of pedestrian — Contributory negligence — Nonsuit.</p> <p>When one abandons the use of his natural senses for the time being and chooses to walk over a pavement in a public street by faith exclusively, and is injured because of some defect in the pavement, he has only himself to blame.</p> <p>When an accident occurs in broad daylight in consequence of an open and exposed defect in a sidewalk, the burden rests upon the party complaining to show conditions outside of himself which prevents him seeing the defect or which would excuse his failure to observe it.</p> <p>One is not required in walking along a traveled highway, to keep his eyes fastened upon the ground continually to discover points of possible danger; nor is it necessary that he should in order to avoid exposed pitfalls lying directly in the path before him; but the law does require that he be observant of where and how he is going so as to avoid dangers which ordinary prudence would disclose.</p> <p>A woman, who in broad daylight, falls in a depression in a sidewalk caused by the displacement of some bricks, cannot recover from the city for her injuries, where there was nothing to prevent her from seeing the depression, except passing people, and where neither she nor her witnesses testify that the crowd was so great as to prevent her from seeing the defect.</p>

<p>Wills — Witness—Subscribing witness — Charitable bequest — Credible and disinterested witness — Act of April 26,1855, sec. 11, P. L. 328.</p> <p>Where a subscribing witness to a will containing a charitable bequest knows that he is signing a testamentary paper, and is asked by the testator, or by the other witness in testator’s presence to sign as a witness, it is not necessary that he should hear it read or know its contents; nor is it indispensable that the witness shall see the testator sign the will. The testator may after the will has been prepared, affix his name thereto, and subsequently acknowledge his signature in the presence of a subscribing witness. Such a witness is a credible witness within the meaning of see. 11 of the Act of April 26,1855, P. L. 328.</p> <p>A subscribing witness to a will containing charitable bequests went into the office where the testator was seated at a desk with the will already signed by him in his hand. The name of the testator was in plain view of the witness, who was requested to sign his name below that of the other subscribing witness, which he did, after having been told by the other witness outside of the office that the testator desired him to be a witness to his will. Held, that the subscribing witness was a credible witness within the meaning of the act.</p> <p>While charitable gifts may be said to be favorites of the law, yet the law discourages such gifts at or near the time of impending death, when the mental faculties are impaired, the will power broken, and the vital forces weakened, because, under such circumstances the importunities of designing persons, or the terrors of final dissolution may induce dispositions of property contrary to natural justice, and -without regard to the ties of kinship, which under normal conditions would be operative on the mind of the testator.</p> <p>An executor may be an attesting -witness to a -will making bequests to religious and charitable uses, provided he is in no way benefited by the will, except in the matter of his commissions.</p> <p>The words'"disinterested witnesses” used in the act of April 26,1855, must be read and understood in connection with the subject-matter of the statute, the evils to be avoided, the requirements intended to safeguard the rights and property of persons approaching death and the remedy to be provided in such cases. When so read and understood, the interest which disqualifies a witness under the act is such an interest as appears to exist at the time of the execution of the will, either by the terms of the will itself, or by reason of the attesting witness being then interested in the religious or charitable institutions for which provision is made by the testator, or both, or either, as the case may be.</p> <p>If the attesting witness be interested as legatee or devisee under the will, or is to derive a pecuniary benefit, or advantage, from any part of it, or if he is interested, at the time of attestation in a religious or charitable institution to be benefited thereby he is not disinterested within the meaning of the statute.</p> <p>One of the subscribing witnesses to a will containing charitable gifts was an executor and trustee under the will. He was also a trustee and officer in a church to which part of the income and ultimately a portion of the corpus of the trust estate was directed to go; and had an option to purchase certain shares of stock which were a part of the trust for religious and charitable uses, at a price to be agreed upon by three disinterested persons to be selected in a particular manner; he was one of two trustees to whom the stock of a corporation was given in trust to vote at corporate elections, and whose duties required that dividends received be paid by them to the charities named and in the proportions fixed in the will; he was also a stockholder and director in the corporation, as well as an officer and employee. Held, that the witness was not a disinterested witness within the meaning of the act of April 26,1855.</p>

<p>Appeal, No. 92, Jan. T., 1908, by Eliza B. Allen, from decree of O. O. Phila. Co., Oct. T., 1885, No. 184, dismissing exceptions to adjudication in Estate of Andrew R. McCown, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 102, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 5,063, M. L. D., for defendant, non obstante veredicto in case of Joseph Pagnacco v. Frederick F. Faber, owner and contractor, and J. William Smith, reputed owner.</p> <p>Scire facias sur mechanic’s lien. _ Before Kinsey, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the jury returned a verdict for plaintiff for $5,145.85. The court subsequently entered' judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 94, Jan. T., 1908, by Caleb Rubincam et al., from decree of O. C. Phila. Co., April T., 1907, No. 156, dismissing exceptions to adjudication in Estate of Annie E. Glentworth, deceased.</p> <p>Exceptions to adjudication of Ashman, P. J.</p> <p>Prom the adjudication it appeared that the decedent died on January 28, 1906, leaving to survive her Caleb Rubincam and William M. Thomas, cousins ex parte paterna, and Frances S. Buckingham and Andrew A. Butler, cousins ex parte materna. The portions of the will material to the questions involved are quoted in the opinion of the Supreme Court.</p> <p>The auditing judge, Ashman, P. J., held that the will worked a conversion of the real estate, and awarded a portion of the proceeds of the sale of the real estate to the cousins ex parte materna. The cousins ex parte paterna filed exceptions to the adjudication.</p> <p>The court in an opinion by Anderson, J., Penrose, J., dissenting, dismissed the exceptions.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 18, Jan. T., 1908, by-defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 4,709, awarding mandamus in case of Harry W. Truitt v. City of Philadelphia, John E. Rey burn, Mayor, and Henry Clay, Director of Public Safety.</p> <p>Petition for mandamus. Demurrer to answer;</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining the demurrer to the answer.</p>

<p>Appeal, No. 160, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Co., Eeb. T., 1905, No. 229, on verdict for defendant in case of Michael J. Kocher v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Wheaton, J.</p> <p>The facts relating to the accident are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>There are other elements in the case which it will not be necessary for me at this time to go into, but I feel bound to declare, after the examination of the law and the testimony which I have made on the plaintiff’s side of this case, that under the evidence the plaintiff is guilty of such manifest contributory negligence in remaining where he was in the face of the imminent danger which he knew was threatening him as to prevent him from recovering in this case. .</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

<p>Appeal, No. 204, Jam T., 1907, by plaintiffs, from decree of C. P. Luzerne Co., Dec. T., 1905, No. 3, on bill in equity in case of St. Vincent’s Roman Catholic Congregation v. The Kingston Coal Company.</p> <p>Bill in equity for an injunction.</p> <p>The court below found the facts to be as follows:</p> <p>The plaintiffs’ bill avers (1) their ownership of a certain piece of land in Plymouth township, in this county, containing four and six-tenth acres, and known as St. Vincent’s Roman Catholic Cemetery; and (2) that the defendant is operating a mine beneath it and has threatened to remove all the underlying coal, including pillars needed for the proper support of the surface.</p> <p>The defendant’s answer denies that the plaintiffs have any title to any of the coal under the land in question or any right to control or interfere with the mining and removal of the same or any part thereof, alleging (1) that prior to the inception at any title which the plaintiffs may have acquired, a complete and lawful severance of the surface from the subjacent coal had been effected, and (2) that the mineral estate is now vested in the defendant, together with the right to mine and remove all the coal, including pillars, without any obligation to support the surface.</p> <p>The prayers of the bill are (1) for an injunction to restrain the defendant from “ mining the coal, pillars or supports ” from beneath the cemetery, “ or in any way endangering or disturbing the surface of the same or any part thereof; ” and (2) for general relief.</p> <p>The material facts are found to be as follows:</p> <p>1. On and prior to January 9,1866, a large tract of land, embracing that afterwards used as a cemetery, was owned in fee by Henderson Gaylord, ~W. H. Cool, J. S. Mason, E. H. Frishmuth and W. D. Frishmuth as tenants in common. The evidence shows a recorded title in them deduced through mesne conveyance from the commonwealth; the deed from a former owner to Gaylord having been recorded in 1831, and deeds from him to Cool, Mason and the Frishmuths for their several undivided interests having been recorded in 1855.</p> <p>2. By a written instrument, dated January 9, 1866, and recorded March 30, 1869, the said owners and their wives leased to one James Dooley for a term of 999 years, at a yearly rental of five cents, the surface or soil of six acres of their said land, adjoining other land of Dooley, and embracing the larger portion of the cemetery lot — all of it, in fact, except a piece at the northwesterly end of the cemetery extending about six and one-half rods in depth and being about eighteen rods wide (the full width of the cemetery inclosure).</p> <p>This lease (to Dooley) contains the following reservation and agreement:</p> <p>“Excepting and reserving, however, out of the said lot, piece or parcel of ground, unto the said parties of the first part, their heirs and assigns all the coal and minerals under, in and upon the same, and also the right and. privilege of mining and removing all and every part and parcel of the coal and other minerals under and upon the said lot, piece or parcel of land, and every and any part thereof, and of making and driving tunnels, passages and ways, under the surface of said lot, piece or parcel of land, for the purpose of mining and removing any and all the coal and other minerals now owned or may hereafter be acquired or owned by the parties of the first part, their heirs or assigns, on said land or any adjoining or neighboring lands, as fully and entirely as if the said parties of the first part, their heirs or assigns, remained the exclusive owners in fee and still held the exclusive possession of the said surface, right of soil of said lot hereby leased, the said parties of the first part not to transport the said coal and other minerals hereby reserved upon the surface of said lot but in all respects to be at liberty to mine and remove the same and to make and drive tunnels, passages and ways under said surface of said lot and even to remove all pillars or supports and entirely to strip the mine or mines under the said lot, without objection or hindrance and not to be liable to the of the second part heirs or assigns for any injury that may occur to said surface or any building now erected or that may be erected thereafter tihereon by reason of mining and removing all said coal and other minerals or by reason of making or driving said tunnels, passages or ways or removing all coal, pillars or supports or entirely stripping said mine or mines ; and it is further understood that the said parties of the first part their heirs or assigns may drive air shafts through the surface of said lot at any time and in any manner said parties of the first part their heirs or assigns may deem necessary in carrying on their mining operations on said lot, or on adjoining lands. But for any damages done to the said surface by said air shafts the parties of the first part their heirs or assigns are to pay for the said damages, and if the said parties cannot agree the amount as to be paid therefor shall be left to the decision of three disinterested persons one to be selected by each party and if the two cannot agree they shall choose an umpire and the decision of the parties so chosen or of a majority of them, shall be final and conclusive upon the parties .... It is further understood and agreed by the parties of the first part their heirs or assigns that they will leave standing two pillars of coal when mining on or under demised premises, to be each 20 by 24 feet square wherever the party of the second part shall elect within two years of the date hereof, for the purpose of supports to the surface on which buildings may be erected, or the party of the second part may designate and desire to build thereon.”</p> <p>It does not appear that Dooley or anyone claiming under him, ever indicated where these two pillars should be located, neither has it been shown that he or they ever entered into possession of the demised premises.</p> <p>3. By an instrument in writing dated September 29, 1871, and recorded January 8, 1872, Gaylord, Cool, Mason and the Frishmuths “demised, leased and to mine let” to the Wilkes-Barre Goal and Iron Company, all the coal in, upon and under a tract of land containing 257 acres, including within its limits the whole of the lot here in question. This coal lease grants the right to mine and remove all the coal from all the strata except the upper or “ Orchard ” vein (which does not underlie the cemetery lot), and also excepts the coa,l under two small pieces of land marked on an appended draft— “ surface or right of way for railroad ” (not involved in this controversy) and also excepts from its provisions certain surface land laid off for building lots on two portions of the tract marked, respectively, on said draft — “the surface reserved for building lots” and “surface reserved and sold for building lots ” which latter includes the lot in question in this proceeding. This coal lease contains no provision relieving the mining company, its successors or assigns from the obligation to support the surface nor releasing it from damages for any injury thereto that might result from its mining operations.</p> <p>4. The cemetery lot is a part of lot No. 17, Mountain Tier, Third Division of certified lots in' Plymouth township, and is described as follows : Beginning at a corner of Barney street, thence north thirty-four degrees, thirty minutes west, 719 feet (along the line between certified lots Nos. 16 and 17) to a corner ; thence south forty-nine degrees, thirty-five minutes west, 297 feet to a corner; thence south thirty-four degrees, forty-nine minutes east, 695 feet to a corner; thence north forty-nine degrees, forty-five minutes east, 112 feet to a point; and thence north fifty-six degrees, fifteen minutes east, Í85 feet to the place of beginning; containing four and six-tenths acres of land.</p> <p>5. As so described the surface of this lot has been fenced and used as a cemetery continuously from the year 1874 until now, by the rector and congregation of St. Yincent’s Roman Catholic Church; and during that period their possession of the same has been actual, hostile, adverse, continuous, visible, open, notorious and exclusive.</p> <p>6. There is no evidence of title to this land in the plaintiffs or any of them other than by adverse possession under the statute of limitations, nor of any claim of title by them to the coal beneath the cemetery lot, nor of any entry upon, or exercise by them of any act of ownership with reference to such coal.</p> <p>7. Thé coal upon the Gaylord tract was opened into and mined therefrom by its owners as early as 1864, or two years before the date of the Dooley lease and about ten years before the beginning of the plaintiffs’ possession of the cemetery lot. Mining from the Gaylord tract (embracing the coal under the cemetery lot) has continued from time to time as the operations proceeded in the several veins, down to the date of filing of the plaintiffs’ bill. The earliest mining directly under the cemetéry lot, so far as the evidence shows, appears to have been done in the Bennett vein (the second from the surface at that point) “ several years ” before 1881. This was what is known as first mining.</p> <p>'A short time before this proceeding was commenced, a committee of St. Yincent’s congregation were notified by the defendant’s superintendent that his company contemplated proceeding with the work of removing the pillars and unmined coal left under the cemetery in the process of first mining.</p> <p>8. That such removal without the substitution of sufficient artificial support would endanger the surface is a fact so self-evident that its embodiment in a formal finding would seem to border on the absurd. Nevertheless, the fact is a material one and it is so found.</p> <p>The trial judge found as a conclusion of law that the plaintiffs were entitled to the relief which they sought.</p> <p>Exceptions to the adjudication were sustained by the court in banc, in an opinion by Eerris, J., which was as follows:</p> <p>The trial judge found from the evidence that a lease of surface land, including the greater part of the cemetery lot here in question, had been made in 1866 by the owners of the fee. to James Dooley for the term of 999 years and had been recorded in the proper office before the plaintiffs’ possession began. It was further held that, under the provisions of this lease, the lessee was not entitled to the right of surface support. It was not shown, however, that Dooley or anyone claiming under him had ever entered upon the demised premises. The judge thereupon found as matter of law, (a) that while an interesse termini passed to Dooley, it did not appear that an estate for years in the land had ever vested; (b) that the right of possession, therefore, remained in the owners of the fee; (c) that the plaintiffs’ subsequent entry and possession was adverse, not to Dooley (since he had not perfected his leasehold estate by entry), but to the owner of the freehold, and the title acquired under the statute was their title; and (d) that since a severance between the surface and the subjacent mineral strata had been effected by a prior sale of the underlying coal without parting with the right to adequate surface support, the title which the plaintiffs acquired by adverse possession was the fee in the surface with the right to have it supported.</p> <p>The exceptions are based on the claim that the judge erred in holding that Dooley took a mere interesse termini and never acquired (so far as the evidence shows) an estate for years.</p> <p>In support of this claim counsel for exceptant contends (1) that the common-law rule (that entry by the lessee is necessary to consummate an estate for years) has been modified by statute, and that the recording of a lease for a term exceeding twenty-one years-has been made the equivalent of an entry for the purpose of consummating the relation of landlord and tenant; (2) that, therefore, when Dooley’s lease was recorded he ceased to be the mere holder of an interesse termini, and became the tenant of an estate for years, entitled to possession even as against his landlord until his term should be ended by efflux of time or by surrender or forfeiture; (3) that entry by a stranger upon the demised premises with adverse possession for twenty-one years (no surrender or forfeiture of the lease being shown) could only effect the leasehold estate, and that the statute would not begin to run against the holders of the fee until right of entry accrued to the latter, which, under the evidence, has not yet occurred ; and, therefore (4) that the estate acquired under the statute by the plaintiffs in the portion of the cemetery lot covered by the Dooley lease was the leasehold interest which that instrument conveyed, which interest, as already stated, did not include the right of surface support.</p> <p>In opposition to this argument, it is claimed by the plaintiffs (1) that a lease for years is not within the statutory provision that the recording of a deed or conveyance shall be the equivalent of livery and seizin, since livery of seizin was never required to complete the conveyance of an estate less than freehold, and that, therefore, the trial judge was right in holding that, as no entry under the Dooley lease was shown, the plaintiffs’ entry and possession was adverse to the only estate in the land which was shown to exist, viz.: the fee in the surface with the right of support; and (2) that, even if the recording acts did apply to a leasehold so as to make recording a substitute for entry by the lessee, still, the plaintiffs’ possession being shown to be adverse generally, and not specifically a,s against the tenant for years only, must be held to be adverse to every interest in the land, and that after twenty-one years it ripened into a fee simple title ; and inasmuch. as the owner of the fee had not parted with the right to surface support, that right also, as incident to the fee, was acquired by the plaintiffs under the statute of limitations.</p> <p>The exceptions thus present for consideration the following questions:</p> <p>1. Did the execution of the Dooley lease in 1866 and the recording thereof in 1869 vest in the lessee an estate for years %</p> <p>2. If so, when the plaintiff congregation, in 1874, entered and took possession of so much of the cemetery lot as ivas embraced in the lease, did the statute of limitations, as to such land, begin to run against the owners of the fee or only as against the owners of the leasehold estate ?</p> <p>I.</p> <p>The fifth section of the Act of May 28, 1715, 1 Sm. L. 94, entitled “ An Act for acknowledging and recording of deeds,” provides as follows:</p> <p>“ Y. And be it further enacted, That all deeds and conveyances made or to be made, and proved or acknowledged, and recorded as aforesaid, which shall appear so to be, by indorsement made thereon, according to the true intent and meaning of this act, shall be of the same force and effect here, for the giving possession of seizin, and making good the title and assurance of the said lands, tenements and hereditaments, as deeds of feoffment, with livery and seizin, or deeds enrolled in any of the king’s courts of record at Westminster, are or shall be in the kingdom of Great Britain,” etc.</p> <p>Section 6 of the act relates to the effect to be given to the words “ grant, bargain, sell,” in “ deeds to be recorded in pursuance of this act, whereby any estate of inheritance in fee simple shall hereafter be limited to the grantee and his heirs,” and contains this proviso :</p> <p>“ Provided always, That this act shall not extend to leases at rack-rent, or to leases not exceeding one-and-twenty years, where the actual possession goes with the lease.”</p> <p>Section 8 provides : “ That no deed or mortgage, or defeasible deed, in the nature of mortgages, hereafter to be made shall be good or sufficient to convey or pass any freehold or inheritance, vor to grant any estate therein for life or years, unless such deed be acknowledged or proved and recorded within six months after the date thereof, where such lands lie, as hereinbefore directed for other deeds.”</p> <p>There would seem to be no room for doubt that in their use of the word “ deed ” in this act, the lawmakers of the province intended to include, as instruments to be recorded, not only “ conveyances of lands, tenements and hereditaments ” (sec. 2) in the strict technical senses of that phrase, but also leases exceeding one-and-twenty years, and any “deed’’intended “ to grant any estate .... for life or years,” even though the latter is but a chattel interest subject to sale by a constable on an execution issued by a justice of the peace: Bismark B. & L. Assn. v. Bolster, 92 Pa. 123.</p> <p>But whether such leases are within the purview of sec. 5 of the act is not so clear. In the case last cited Mr. Justice Trunket speaking, obiter, of a mortgage of a leasehold duly recorded, but not accompanied by possession, says (p. 131): “ Possibly such mortgage is valid (as against execution creditors) under the act of 1715, the record standing for possession.”</p> <p>In McKee’s Lessee v. Pfout, 3 Dali. 486, it was held, in construing sec. 5 of the act of 1715, that “ In allowing to deeds recorded the same force and effect as feoffments with livery, the intention is expressly restricted to £ giving possession and seizin, and making good the title and assurance of lands, tenements and hereditaments.’ ” See also Dunwoodie v. Reed, 3 S. & R. 435, *445-6, *454 ; Lyle v. Richards, 9 S. & R. 322, *334. In McKee’s Lessee v. Pfout it was attempted, by a narrow and technical construction of the language of sec. 5, to give to a recorded bargain and sale by a tenant for life the effect of a feoffment with livery of seizin, thus producing a forfeiture of the estate.. Chief Justice Shippen said: “ The legislature has at various periods, and on a variety of subjects, departed from feudal ceremonies and principles in relation to the transfer of property ; but in the present instance the act of assembly meant only to give to a grant of lands a greater effect upon the estate on recording the deed than could previously have been enjoyed without livery of seizin. It never contemplated that circumstance as an instrument to work a forfeiture, on the common-law doctrine of alienation by tenant for life or years.” In commenting upon and. following this case, Chief Justice Gibson, in Estate of Sarah Desilver, 5 Rawle, *111, held that the object and effect of the act was not to make recording the equivalent of a feoffment with livery in all respects, but to make it a substitute for the ancient ceremony for the purpose only of “ giving possession and seizin and making good the title and assurance of said lands,” etc., evidently meaning the title which the recorded instrument was intended to convey. For example, the recording of the Dooley lease should not be held to enlarge the estate for years, intended to be granted into a freehold on the ground that the act declares that a deed when recorded shall have the effect of a “ deed of feoffment with livery and seizin,” but rather that it should have the same effect to give possession and vest an estate for years in the lessee as it would have if accompanied by delivery of possession to the latter. In this connection it may be noted that the words used in the act are “ possession and seizin.” The word “ possession ” would be superfluous if the legislative intent was to confine this provision to estates of freehold, since “ seizin ” is possession of such an estate. But when, upon turning to secs. 6 and 8, it is seen that leaseholds exceeding one and twenty years, and also those for a shorter term when actual possession does not go with the lease, are included in the act, it may, perhaps, be fairly claimed that a reason appears for the use of both words. At common law there might be “ possession ” but could be no “ seizin ” of an estate for years. But it may possibly be argued that, as the proviso to sec. 6 puts leases exceeding twenty-one years on the same footing with those for a term of less duration where actual possession does not go with the lease (see also sec. 3 of the Act of March 18, 1775, 1 Stn. L. 422), neither could properly be held to be within sec. 5 of the act of 1715, for the legislature could not have meant that recording the instrument should have the effect of “ giving possession where possession did not go with the lease, and, moreover, that to so hold would be contrary to the decisions which hold that the act was not intended to enlarge the estate granted. In answer to this argument it is, perhaps, sufficient to say that recording a deed or lease could not possibly be the same thing as giving actual possession of the land, and that the legislative intent was merely to make the one a substitute for the other so far as possession had been necessary to “ make good the title ” to the estate intended to be granted. The main reason for the passage of the recording acts is, as stated in the preamble to the supplementary act of 1775, to prevent the evils arising from secret conveyances and incumbrances by providing for publicity in such transactions. That in this respect a short term lease with “ actual possession ” differs from one where actual possession does not “ go with the lease ” is obvious.</p> <p>We think, therefore, that as implied by sec. 8 of the act of 1715, the legislature intended that the recording of a lease for a term exceeding twenty-one years should make it “ good ” and “ sufficient ” to “ grant ” an “ estate ” for “ years; ” and that after such recording actual entry by the lessee should not be necessary “ to make good the title ” to such estate. It follows that the trial judge was in error in holding the contrary.</p> <p>II.</p> <p>It is earnestly contended by counsel for the plaintiffs that even though the record of the Dooley lease stood for possession so' as to vest in the tenant an estate for years, still, since the possession of the tenant is the possession of the landlord, an ouster of the former would be sufficient to start the statute running against the latter.</p> <p>We are unable to assent to this proposition. While forcertain purposes the possession of the tenant is said to be the possession of the landlord (Thompson v. Kauffelt, 110 Pa. 209, 216), this is so only in a qualified sense, not dissimilar to that in which it is said that the act of an agent within the scope of his agency is the act of the principal. The tenant stands for the landlord and holds the premises for him, and strictly in subordination to him, during the continuance of the lease. His possession is adverse to all the world except his landlord or those under whom the latter claims. It is the title of the landlord which gives to the tenant his right of possession. It is quite as true that the title of the landlord is the title of the tenant as that the possession of the tenant is the possession of the landlord. But in neither case would such a statement mean that their rights in relation to the land are identical. Each must respect the right of the other. The tenant may not deny his landlord’s title, nor the landlord his tenant’s right of exclusive possession. No general right of entry accrues to the landlord until the tenancy has been terminated, either by the expiration of the term of the lease or by surrender, or by such hostile action by the tenant as would justify a forfeiture. And until such general right of entry does so accrue the statute of limitations does not begin to run against the landlord and in favor either of a tenant claiming adversely or a stranger : Shepley v. Lytle, 6 Watts, 500, 506 ; Newman v. Rutter, 8 Watts, 51, 54; Marple v. Myers, 12 Pa. 122, 126; Willard v. Earley, 22 W. N. O. 122 ; Trickett, Law of Limitations, secs. 95, 105 ; Greber v. Kleckner, 2 Pa. 289 ; French v. Fuller, 40 Mass. 104. In Marple v. Myers, 12 Pa. 122, it was held to be settled law, “ both in England and Pennsylvania, that reversioners and remainder-men are not within the purview of these statutes (of limitation) until their right of entry accrues by the determination of the precedent estate, no matter how long that may endure. Thus, where there is a valid existing lease for years the right of entry is postponed until the expiration of the' term, and though it may be forfeited by condition broken, yet as the owner is not obliged to take advantage of the forfeiture the continued possession of the tenant for twenty years,' without any subsequent act acknowledging the tenancy, will not be counted adverse.”</p> <p>We are, therefore, of opinion that the plaintiff congregation acquired title by adverse possession under the statute.</p> <p>1. To an estate for years, that is, for the unexpired term of the Dooley lease, but without the right to require the owners of the subjacent strata to support the surface, in so much of the surface of the cemetery lot as that lease includes, the part so included being described as follows, viz.: “ Beginning at a point on Barney street (on‘Welsh Hill,’Plymouth township, Luzerne county, Pennsylvania) in line of what is known as the Farrell property; thence north thirty-four and one-half degrees west, 612 feet to a corner; thence south forty-nine degrees and thirty-five minutes west about 291 feet, along the northwesterly line of land leased to James Dooley by Flenderson Gaylord et al., by lease recorded in Luzerne county deed book, No. 132, page 3, to the southwesterly line of the cernetery lot, thence south thirty-four degrees forty-nine minutes east 588 feet to a point in the line of what is known as the Black property ; thence north forty-nine degrees forty-five minutes east 112 feet to a point in the line of said property; and thence from said point north fifty-six degrees fifteen minutes 185 feet to the place of beginning.”</p> <p>2. That the said congregation acquired title by adverse possession to an estate in fee simple in the surface of the remaining portion of the cemetery lot, together with the right to require the owners of the underlying mineral estate to furnish an adequate support to said surface, the portion of the cemetery last aforesaid being described as follows, viz.: “ Beginning at a corner where the said northwesterly line of the land leased to James Dooley as aforesaid intersects the northeasterly line of said cemetery lot as now inclosed; thence north thirty-four and one-half degrees west 107 feet to the northeasterly corner of the said cemetery lot as now inclosed ; thence south forty-nine degrees thirty-five minutes west 291 feet to a corner in line of what is known as the Dwyer property ; thence south thirty-four degrees forty-nine minutes east 107 feet to a corner of said land leased to James Dooley ; and thence along the northwesterly line of said land to the place of beginning.</p> <p>3. That the plaintiffs’ bill should be dismissed as to the portion of the cemetery lot first above described.</p> <p>4. That the injunction heretofore issued should be modified as stated in the decree nisi, and made permanent as to the second described portion of the cemetery lot.</p> <p>5. That each party should pay the fees of its own witnesses and the costs of subpoenaing them, and one-half of the other costs in the case.</p>

<p>Foreign attachment — Judgment for want of an appearance — Assessment of damages — Pleading—Nulla tona — Duty of garnishee.</p> <p>To support an assessment of damages in a foreign attachment after judgment against the defendant for want of an appearance, the record should show that a rule had been taken by the plaintiff, that in pursuance of the rule the damages had been assessed, and that evidence had been produced before the prothonotary upon which the assessment had been made. Mere figures and a calculation on the back of the praecipe directing the entry of judgment, are not sufficient to support the assessment, where there is nothing whatever upon the docket to show that damages had been assessed at all, or that judgment had been entered for any amount whatever. The proceeding is statutory, and the record should disclose that the damages had been assessed in compliance with the statute.</p> <p>A defective assessment of damages in the judgment on a foreign attachment against the defendant, may be taken advantage of by the garnishee under the plea of nulla bona on the trial of the cause.</p> <p>It is the duty of a garnishee in a foreign attachment to protect his creditor's interest by resisting the claim of the plaintiff, unless the latter has complied strictly with the statute in procuring the judgment against the defendant and assessing the damages thereon.</p> <p>If the defendant is in court as in the cases of Poor v. Colburn, 57 Pa. 415, and First Nat. Bank v. Trainer, 209 Pa. 387, the garnishee is under no obligation to object to irregularities, inasmuch as the defendant is in court to protect himself.</p>

<p>Appeal, No. 253, Jan. T., 1907, by Lute A. Line, from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report in Estate of Wm. R. Line, deceased.</p> <p>Exceptions to report of Wm. Trickett, Esq., auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>'Errors assigned were in dismissing exceptions to the auditor’s report.</p>

<p>Wills — Construction—Intention—Distribution.</p> <p>Testator by his will bequeathed one full share of the residue of his estate which was personalty to each of his four sisters, two brothers, and his niece. He then gave one-half of a full share to five of the eight children of a deceased brother, specifically naming the five children. He then declared that the estates given to two of his brothers, one of his sisters and his niece, should be for life only. He directed that after the death of the sister to whom a life estate was given, her share should “revert to her sisters and brothers here mentioned, or to their heirs.” Held, that such share after the death of the sister should be distributed to the sisters and brothers named in the will to the exclusion of the niece, and that all of the children of the deceased brother should share in one full share as representing their deceased father.</p> <p>In such a case the three children of the deceased brother are . his “surviving issue” within the meaning of the Act of May 6, 1844, P. L. 564, and there can be no discrimination against them in favor of the other five children.</p>

<p>Appeals — Jurisdiction—Supreme Court — Superior Court — Amount in controversy — Judgment for payment of money — Actions tried together— Act of May 5,1899, P. L. 248.</p> <p>Where an action is brought to recover back money, on ground of breach of warranty, and the defendant in such action brings a separate suit against the plaintiff in the action, on a promissory note, and by agreement the two actions are tried together, and result in a verdict for the defendant for an amount less than fifteen hundred dollars, an appeal' lies to the Superior and not to the Supreme Court, inasmuch as the judgment is a judgment for the payment of money.</p> <p>Under the Act of May 5, 1899, P. L. 248, the legislature intended to provide standards of proof for purposes of jurisdiction, in two classes of actions which should include every possible case; first, issues involving title or possession of specific property, real or personal, and, second, issues involving payment of money.</p>

<p>Appeal, No. 363, Jan. T., 1907, by plaintiff, from judgment of C. P. Monroe Co., Feb. T., 1907, No. 17, on verdict for defendant in case of the Delaware, Lackawanna and Western Railroad Company v. Monroe County Water Power and Supply Company, and Yan C. Peters and W.' S. Shafer.</p> <p>Assumpsit to recover money alleged to be due on a contract for filling in back of a retaining wall. Before Staples, J.</p> <p>The facts are stated in the opinion and the dissenting opinion of the Supreme Court.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p>

<p>Practice, O. C. — Findings of fact — Evidence—Act of June 16, 1836, P. L. 682.</p> <p>Under the Act of June 16,1836, P. L. 682, which requires the Supreme Court on an appeal from the orphans’ court “to hear, try and determine the merits” of the case and “decree according to the justice and equity thereof,” the Supreme Court will not disturb a finding of fact by an auditing judge, confirmed by the court, unless there be no evidence to support it, or it is clearly so erroneous, that to uphold it would be injustice.</p> <p>Executor and administrator — Advances by executor — Bond for protection —Evidence—Parol evidence — Contradiction of written instrument.</p> <p>Where an executor takes from the distributees of the estate successive bonds to secure himself for necessary advances made by him to protect the estate, and at the audit he presents all of the bonds as existing liabilities against the distributees, the latter may show that the executor in taking the last bond, which was much smaller in amount than the others, had done so upon the distinct representation that the sum represented by that bond was all that was due him, and that he would destroy all the other obligations that had been given to him. The offer of such evidence is not an attempt to set aside a written instrument on the ground of fraud, accident or mistake.</p>

<p>Appeal, No. 91, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1900, No. 1,139, on verdict for defendant in case of E. Hunn, Jr., Assignee for the benefit of creditors of J. Watts Mercur and Ulysses Mercur, late trading as J. W. Mercur & Company, v. The Pennsylvania Institution for the Instruction of the Blind.</p> <p>Assumpsit to recover money alleged to be due on a building contract. Before Brégy, P. J.</p> <p>At the trial it appeared that J. Watts Mercur and Ulysses Mercur, trading as J. W. Mercur & Co., were contractors for the erection of a building for the Pennsylvania Institution for the Instruction of the Blind.</p> <p>The contract contained, inter alia, the following provisions :</p> <p>“ Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on their part herein contained, such refusal, neglect or failure being certified by the architects, the owners shall be at liberty, after three days’ written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this contract, and if the architects shall certify that such refusal, neglect or failure is sufficient ground for such, action, the owners shall also be at liberty to determine the employment of the contractors for the said work, and to enter upon the premises and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor ; and in case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owners in finishing the work, such excess shall be paid by the owners to the contractors, but if such expense shall exceed such unpaid balance the contractors shall pay the difference to the owners. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose certificates thereof shall be conclusive upon the parties as respects the amount due by either of them.”</p> <p>At the trial the plaintiff made the following offer :</p> <p>We offer to prove by this witness the completion of the contract, admitting that the building was not turned over until 153 days after the time fixed by the contract. But also propose to prove by this witness that, although the contract was dated June 30, 1897, the contractors were unable to proceed without the plans for the work, which were with the architects and retained by them. That though they then requested the furnishing of these plans, the architects did not furnish them until about August 1, 1897; that by reason of the failure of the architects on demand to furnish the plans, they were delayed in the progress of their work to that extent, and that, therefore, to that extent of time the noncompletion of the building is one for which they are not responsible.</p> <p>We also offer to prove by the witness that the original estimates for the work contemplated by the defendant were too high for the means the defendant had at hand to pay for them ; that action was taken on the part of the defendant requiring the architects to cut down the estimates and to revise the plans, and that by reason of the delay which the architects made in arranging for the alterations in the plans the work was delayed to the extent of a considerable number of days, which will be detailed in the testimony.</p> <p>We also offer to show by the witness that the plans of the architects upon which the work was built, and the drawings, rested the beams on the center walls at an improper point over the cellar arches, that in consequence of this imperfection in the plan after the beams had been put in proper position under the plan, they broke the arches down. That by reason of this a very considerable delay was occasioned to the contractors in the completion of their work. The amount of this delay was upwards of about one month.</p> <p>We also propose to prove that the architects required, in accordance with the plans, certain alterations and work to be done in accordance with these alterations. That the witness demanded compensation for the extra work and an allowance of time, that the architects allowed the compensation for the work but did not pass upon or determine, the question of an allowance of time. That this required and consumed extra time to the extent of many weeks, the amount of which the witness will state.</p> <p>We will also show that certain roofing tiles 'were to be furnished in accordance with the plans. That those roofing tiles were submitted to the architect in accordance with the plans, but that he determined to change the sort of tiles but did not determine what new kinds of tiles he would supply for upwards of a month, and that in consequence of that delay the work was delayed and a delay in completion to the extent of a month or upwards thereby arose.</p> <p>We offer in connection with that to prove that the work was finally accepted and completed, but with this delay in completion, and has -ever since been in the occupancy of the owner.</p> <p>The alterations referred to were by written direction of the architects named in the contract.</p> <p>In connection with this offer Mr. Johnson admits that owing to the bankruptcy of the Mercurs before the final completion, the defendant took possession of the premises, finished the work and charged the plaintiffs with the amount which they allowed credit for, of the cost of such finishing. Therefore, Mr. Johnson says that while the statement of claim appears to be for about $61,000, the real claim is practically but $300 or $400 more than $15,300, the amount charged by the defendant against the plaintiff for delay; that there were other payments made out of the funds for completion with our consent and that those payments are allowed, reducing the claim that is nominally made of about $61,000 by virtue of these deductions to practically a claim only for substantially the amount that has been retained for delay in completion.</p> <p>There were quite a number of liens filed and they were all settled up and the building was finally accepted when completed in the way stated by the owners, and the outlays for such work will be credited against the amount claimed here.</p> <p>This is a claim, in the first place, that the alterations did not delay the other work, but that they required an amount of time to complete those alterations; it is a claim, not that other contractors delayed the work or that there was an abandonment by the employees or destruction by fire; it is a. claim that the architects did not furnish the plan; it is a claim that the architects altered the plan so that it required, in order to take up the work, the waiting until they determined upon it; they altered the designs with regard to the tiles so that until we got those alterations we could not go on. Those are the delays of the agent of the owner so made in the contract and not of an independent contractor.</p> <p>Objected to. Objection sustained. Exception. [1]</p> <p>The court charged as follows:</p> <p>I have sustained, as. you have heard, the objection made to certain testimony that was offered. Counsel for the plaintiff announces that he has no further testimony to offer. Therefore, the case goes to you without any testimony and you will have to find for the defendant. Of course, you could not find for the plaintiff as he has offered no testimony. You will render a verdict, therefore, for the defendant. [2]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill ■ of exceptions; and (2) the charge, quoting it.</p>

<p>Debtor and creditor — Payment—Presumption of payment — Evidence.</p> <p>The presumption of payment of a debt arises at the end of twenty years after the debt became due and demandable, and such presumption increases in strength each succeeding year afterwards. The burden of overcoming it is upon the creditor, and the sufficiency of the evidence offered is for the court.</p> <p>The presumption is equal to direct proof of payment, and it will prevail until overcome by direct proof of nonpayment, or the proof of facts and circumstances from which nonpayment may be clearly inferred.</p> <p>A scire facias sur mortgage was issued in 1903, to collect two installments of purchase money of $933.33 each, one due in 1876 and the other in 1877. The mortgage also secured the payment of $1,000 on the death of a widow who had a dower interest but who was living when the scire facias issued. The plaintiff offered testimony to rebut the presumption of payment, to the effect that in 1886 the mortgagor, after the death of the mortgagee intestate, leaving a husband and nine children surviving her, asked her son-in-law to aid in getting her heirs to sign off the back money due on the mortgage, and had offered to pay the heirs sums of money amounting to $600, and was told that they could not sign off because they were not of age. Held, that the testimony was insufficient to show that the installments of $933.33 each were not paid at the time the statement was made, since all that was said would apply as well, and even better, to the $1,000 which was then unpaid.</p>

Appeal, No. 304, Jan. T., 1907, by plaintiffs, from decree of C. P. Luzerne Co., Oct. T., 1904, No. 8, dismissing bill in equity in case of George Lazarus et al. v. The Lehigh & Wilkes-Barre Coal Company. Bill in equity for an injunction and for an account. Before Halsey, J. The opinion of the Supreme Court states the case. Error assigned was decree dismissing the bill.

<p>Arbitration — Incomplete award — Continuance of the agreement.</p> <p>When an arbitrator has made and delivered his award, the special power conferred upon him ends; but his award must be final, complete and coextensive with the terms of the submission. If the arbitrator through a mistake fails to consider and decide a part of the dispute submitted to him, the award is invalid because incomplete; but the agreement is still in force and it is competent for him to finish his work by making a full and complete award.</p> <p>Where an agreement to arbitrate is a part of a contract into which the parties have entered, neither party can revoke it without the consent of the other.</p>

<p>Appeal, No. 14, Jan. T., 1908, by plaintiff, from judgment of O. P. Luzerne Co., Feb. T., 1907, No. 29, for defendant on case stated in suit of Justus Fell-bush v. William F. Egen.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>From the record it appeared that the defendant objected to the title because of a recorded .paper, the material portions of which were as follows :</p> <p>“ This indenture made the day of December, 1901, in the year of Our Lord One thousand nine hundred and one between Justus Fellbush, of the City of Wilkes-Barre, Luzerne County, Penna., of the first part, and Frances Fellbush, his wife, of the same place, on the condition and stipulation below referred to, of the second part.</p> <p>“ Witnesseth, that the said party of the first part, for and in consideration of the sum of one dollar and other good and valuable considerations, said one dollar being lawful money of the United States of America, well and truly paid by the said parties of the second part to the said party of the first part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed by these presents, doth grant, bargain, sell, alien, enfeoff, release, convey and confirm, unto the said parties of the second part, the surface and right of soil-only of and to the following lot, piece or parcel of land, situate, lying and being-in the City of Wilkes-Barre, Luzerne County, Pa., bounded and described as follows: . . . .</p> <p>“ The full intent and meaning of this conveyance is that Frances Fellbush shall enjoy said property for and during the term of her natural life, said life estate to take effect upon the death of the said Fellbush — the grantor herein and the remainder to go to the children of the said Justus and Frances Fellbush.</p> <p>“Together with all and singular the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances to the same belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim, and and demand whatsoever, both in law and equity, of the said party of the first part, or, in and to, the said premises with the appurtenances, excepting and reserving, however, as aforesaid.</p> <p>“ To have and to hold the said described surface, hereditaments and premises hereby granted and released, or mentioned and intended so to be, with the appurtenances, as herein stipulated unto the said party of the second part, to the only proper use, benefit and behoof of the said party of the second part, excepting and reserving, however, as aforesaid.</p> <p>“ And the said Justus Fellbush and his heirs, executors, and administrators, doth by these presents, covenant, grant, and agree to and with the said party of the second part, that he, the said Justus Fellbush, and his heirs, all and singular, the hereditaments and premises hereinbefore described and granted, or mentioned, and intended so to be, with the appurtenances, unto the said party of the second part, against him the said Justus Fellbush and his heirs, and against all and every other person or persons, whomsoever, lawfully claiming or to claim the same or any part thereof, subject to the reservations herein before set forth shall and will warrant and forever defend.</p> <p>“ In witness whereof, the said .party of the first part to these presents .hereunto set my hand and seal. Dated the day and year first above written.</p> <p>“Justus Fellbush.” [seal.]</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

Appeal, No. 171, Jan. T., 1908, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1905, No. 144, for defendant on case tried by court without a jury in suit of Zach Marsh v. John Platt et al. Ejectment for land in Brady township. Before Smith, P. J. The case was tried by the court without a jury under the act of April 22, 1874. The plaintiff was a son of William W. Marsh, who was a son of William Marsh, who in turn was a son of Zacheus Marsh.

<p>Appeal, No. 208, Jan. T., 1907, by-defendant, from order of C. P. Blair Co., March T., 1907, No. 238, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Pence and Cary A. Swisher, trading and doing business as Pence & Swisher, v. Philip W. Poet.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Bell, P. J., filed the following opinion :</p> <p>Plaintiffs’ attorney, on his own motion, before argument of the first rule for judgment, had said rule marked discharged in order to place the case on the trial list. Defendant, in order evidently to keep the case off the trial list, entered a rule to refer. Under such circumstances it would seem but right and just to reinstate the first rule for judgment, or grant a. second rule, and I know of no law, rule of court, or precedent preventing such procedure. The fact that the case is ruled out for reference, does not prevent the court from entering judgment for want of an affidavit of defense: Act of May 14, 1874, P. L. 159.</p> <p>Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Judgment — Opening judgment — Defense—Consideration—Confession of judgment — Parent and child.</p> <p>No court or judge has jurisdiction or authority to open a regular judgment without some evidence of a valid defense.</p> <p>A judgment confessed by a father to a son without consideration is not void against the widow and heirs of the defendant in the judgment.</p> <p>Unless there is evidence of an attempt to defraud the widow of her dower, a judgment confessed to defraud creditors is valid and binding on the party confessing it, and on all claiming through him.</p>

<p>Negligence — Counties—Unsafe sidewalk leading to polling place.</p> <p>Counties acting as public agencies in the performance of governmental functions are not liable for the negligence of their officers. This rule applies to county commissioners who neglect to make safe a footwalk used by persons going to and from a polling place by providing a guard rail, or by lighting it at night.</p>

<p>Appeal, No. 383, Jan. T., 1907, by defendant, from judgment of C. P. Cumberland Co., Sept T., 1907, No. 115, on verdict for plaintiff in case of Alfred M. Clay v. The Western Maryland Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Sadler, P. J., charged in part as follows:</p> <p>The plaintiff in this case has brought his action to recover from the Western Maryland Railroad Company, the defendant, damages to compensate him for the injuries he received on February 21, 1906, from the alleged negligence of the employees of the said defendant.</p> <p>It appears that the plaintiff was the baggage master on train No. 97, which daily makes two trips from Gettysburg to Harrisburg and return, over the lines now controlled and operated by the Philadelphia and Reading Railroad Company. That the scheduled time for the return of this train to Gettysburg from its second trip was at or about five minutes after nine o’clock in the evening. That on February 21, 1906, it arrived there about 9:28 or 9 : 30, being almost a half hour late, and having unloaded its passengers and baggage, the train was pushed back on what is called a wye, in order that the engine might be turned, and made ready for the first trip to Harrisburg on the following morning; that th.e train consisted of a combination car in which the baggage was carried, of a passenger coach, and of a mail car; that as the train approached the station, the brakeman on the train dropped off, in order that he might open the switch to permit the train to enter the wye; that Garvin, the conductor of the train, and the plaintiff, the baggage agent, took their positions on the rear platform, the latter intending, as it seems was his duty, to be there in order to drop off and open the second switch on the wye ; that the engineer backed the train in the direction of and upon this wye; that the night was misty or foggy and very dark; that after entering the switch a short distance the train ran into a train of cars which had been placed on one of the legs of the wye, and as a result of the collision Garvin and Olay were thrown down — Olay, the plaintiff, falling on the tracks and seriously injured, both legs being broken. He was taken to a hospital in Harrisburg, was treated as has been testified to, and you have heard how long he was treated, when he left the same, and his further treatment in his home, and when he was again able to go to work, and you have seen and heard of his present condition.</p> <p>It appears that the Western Maryland Railroad had a short time previously brought in a train on this same leg of the wye, consisting of ten cars and a caboose — nine of the cars being loaded with coal; that it had cut the engine off from the front of the train and gone to another point to secure additional cars, which were to be added to the train; no light was put on the front of the train, or anyone left in charge, nor any signal of any sort, to warn others who came on the siding that cars were standing there, but the testimony is that there were lights on the caboose, which was on the rear of the same, and the plaintiff contends that the very fact that lights were put on one end is a recognition of a like duty to give like information that the train was on the wye, at its other or front ■ end.</p> <p>The plaintiff contends that the wye was entered at the usual rate of speed by the train on which he was; that the same was under control, and due care exercised in its movement, and on his part, and that while he and Garvin were looking in front of them the car of defendant’s train was not visible until they were almost upon it, and when observed, it was impossible to prevent the collision.</p> <p>The rules of the respective companies were offered in evidence, and witnesses were called who testified as to the manner in which trains were to run under them on the tracks when the accident occurred. For the purpose of showing, on the one hand, that they had not been violated by the plaintiff, or by those in charge of the train, the conductor and engineer; and on the other hand, that they had been violated on their part; and also, on the other hand, rules were offered to show that they had been so violated by the plaintiff, or his railroad, and to show that by the exercise of due care on part of the plaintiff that the accident would not have occurred. Both sides also claim a violation of the rules of the other — the defendant claims that the Reading violated its rules; the West-, ern Maryland claims that the Reading violated its rules. Both parties urge that they obeyed the rules or the practice under them; the testimony is contradictory, and you will have to find what the truth is. We leave for you to find what the rules are which governed the operation of trains at the place of accident, and on that night; from the printed ones offered in evidence, and the practice under them, as to the movement, conduct and control and care of trains of cars, as it has appeared to you to be from the testimony of the witnesses, on one side and the other.</p> <p>The defendant also insists that the plaintiff, conductor and engineer could or should have been made aware of the presence of the train by reason of the lights on the caboose, and electric lights on the streets of Gettysburg, which were located some distance from the tracks or from the train. On the other hand, testimony was adduced for the purpose of proving that owing to obstructions which intercepted the rays of the same, and also owing to the character of the night, the misty and foggy condition of the atmosphere and the intense darkness, this was impossible. Much testimony was also offered as to what was meant by the control of a train; one set of witnesses insisting that at the rate of speed at which the train admittedly ran it ivas not under control, and especially under the conditions of the night and of the atmosphere and the intense darkness, while this, as already stated, was testified to the contrary by the witnesses called on behalf of the plaintiff.</p> <p>Contradictory testimony was also given as to the duty and ' practice under the rules of the respective companies. These disputed questions of fact will be for your consideration and determination, keeping in mind that as the plaintiff has brought this action, the burden is on him to establish his right to do so by satisfactory evidence, and by the weight of the same.</p> <p>Yerdict and judgment for plaintiff for $15,000. Defendant appealed.</p> <p>Errors assigned among others, were (1) in refusing to permit jurors to be examined as to interest; (2) in not reading certain points to the jury; (3-44) various rulings and instructions.</p>

<p>Wills — Devise—Buie in Shelley’s case — Estate in fee simple.</p> <p>Testator devised to his grandchildren a farm at a valuation stated “ from which they will receive the income after the death of grandmother, and at their death it will descend to their issue.” The land thus devised was charged to its full rental value in favor of the grandmother for her life. Held, that the word “issue” meant “heirs of the body,” and that an estate tail was created which, by the act of 1855 was enlarged into a fee.</p>

<p>Arbitration — Referee—Findings of fact — Review.</p> <p>A referee's findings of fact based upon sufficient evidence and confirmed by the court below, will not be reversed in the absence of manifest error.</p>

<p>Appeal, No. 125, Jan. T., 1908, by defendant, from judgment of O. and T. York Co., on verdict of guilty of murder of the first degree in case of Commonwealth v. Richard McKwayne.</p> <p>Indictment for murder. Before Bittenger, P. J.</p> <p>The court charged in part as follows :</p> <p>[The commonwealth’s witnesses swear that accused demanded his time from Peterson at the cut, and threatened if he did not give the accused his time one of them would be in hell before night; that a man-by the name of Porter there on the ground handed Peterson a hatchet, during the controversy between him and the accused, which he immediately handed back to Porter.</p> <p>Further, that when the prisoner left the cut the last time he was there for the camp, he said he would see Peterson at dinner time. The defendant swears that Peterson called for a hatchet, and retained possession, of it in his hand when he left the cut for the camp. He also swears that Peterson said there to him, instead óf he saying to Peterson, when he refused to give him his time, that he would not give him his time that day, “ if both of them were in hell before night,” or words to that effect, and instead of him using that language to Peterson, Peterson used that language to him.</p> <p>Now, the testimony of the commonwealth is, as I said before, that he made threats against Peterson, and he said he would see Peterson at noon, and his own testimony is that Peterson said they might both be in hell before he would give him his time that day. Now, that is a matter that the 'jury will have to decide again. If you can reconcile the commonwealth’s testimony and the defendant’s own testimony, you should do so. But if both cannot be true — if both' statements cannot be true — it will be a question for the jury to determine whether they believe a man who is not accused of any crime, and is a disinterested witness for the commonwealth, or whether they will believe the testimony of the defendant who is swearing in his own behalf, with the interest of his life at stake. The jury have a right to remember, as the Supreme Court has said, when they consider the testimony of a defendant, it is their duty to consider the fact that at the same time he is swearing in his own behalf with the interest of swearing to escape punishment.] [1]</p> <p>Defendant presented these points :</p> <p>4. If the jury believe that the deceased threatened the life of the defendant, and that he approached the defendant in a manner which threatened defendant’s life, producing in his mind such great fear and terror that he was unable to think, reflect and weigh the nature of his act, he cannot be convicted of murder in the first degree. Answer: This point is affirmed, with the qualification that by the acts of the deceased, as stated in the point, the prisoner’s mind was in the condition stated in this point at the time of the shooting by the prisoner of the deceased. [3]</p> <p>8. If the jury find that the deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of great bodily harm, although mistaken, he cannot be convicted of murder in the first degree. Answer : This- point is affirmed, with the qualification that if the jury believe from the evidence that the prisoner believed further that he had no other means of escape. [4]</p> <p>9. If the jury find that deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of bodily harm, although mistaken, he cannot be convicted of murder in the first degree. Answer : This point is affirmed, if the jury believe that at the time of the shooting the prisoner so believed, and, further, that he believed he had no other means of escape. [5]</p> <p>Although the defendant was not in actual imminent peril of his life, or of great bodily harm at the time of the killing, he cannot be convicted of murder in the first degree, if in good faith he reasonably believed from the facts, as they appeared to him at the time, that he, the defendant, was in such imminent peril, even if it afterwards appears that he was mistaken. Answer: This point is affirmed, if the defendant believed he had no other means of escape. [6]</p> <p>Yerdict of guilty of murder of the first dógree upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1, 3-6) above instructions, quoting them, and (2, 1) rulings on evidence without setting forth the testimony of the ruling of the court.</p>

<p>■ Res adjudicatei — Scire facias sur mortgage — Judgment—Equity—Defenses not presented.</p> <p>On a bill in equity to restrain the issuing of an execution on a judgment obtained on a scire facias sur mortgage, the judgment on the scire facias is conclusive on the plaintiff, not only as to matters directly litigated and decided in the foreclosure proceedings, but also as to any grounds of recovery and defense that might have been presented and decided.</p>

<p>Appeals — Equity—Equity practice — Reinstating bill.</p> <p>Where the Supreme Court in reversing a decree dismissing a bill in equity directs that the bill be reinstated, and an injunction awarded, with leave to the defendant to move the court below to open the case for further testimony, the effect of the order of reversal is to restore the case to exactly the standing it had before the decree dismissing the bill had beenentered, and the court below may proceed to take additional testimony and may, without exceeding its authority, again dismiss the bill.</p> <p>Street railways — Branch of extension — Street already occupied.</p> <p>A property owner has no standing to complain of a street railway company using a street already occupied by an existing railway, where it appears that the company does not contemplate the construction of a branch of its own on the street, but purposes to use the existing track to link all the branches of the company with its main trunk line.</p> <p>A street railway authorized by its charter to build branches and extensions, may employ as a connecting link between its main line and the proposed extensions or branches, the tracks of another company for a short distance, under agreement with the latter company. In such case the statutory prohibition against the construction of a line of railway upon a street already occupied by a railway has no application.</p> <p>The charter of a railroad company may not authorize the company to construct, maintain and operate a railway on any street already occupied by the.tracks of a railway; but in case of branches and extensions the prohibition is limited merely to the construction in any street on which a track of another company has been laid. If the younger company secures from the older company the right to use a short portion of the latter’s lines, so as to make a necessary connection between branches and the chartered route, it in no way violates the law.</p> <p>The grant to the company of the right to make extensions carries with it by implication everything, except what was expressly withheld, necessary to make the grant effectual.</p> <p>A landowner cannot object by a bill in equity filed under the Act of June 19, 1871, P. L. 1360, to the abandonment of a part of the chartered route of a street railway company, and the substitution of another line, where it appears that the abandonment was made in pursuance of authority derived from the stockholders of the company; that the consent of the townships through which the chartered route led was duly granted; and that the action of the company and the consent of the several municipalities were duly certified to the secretary of the commonwealth.</p> <p>The deviation by a street railway from its chartered route will be presumed to have been due to considerations of public convenience, in the absence of anything appearing to the contrary.</p>

<p>Appeals, Nos. 120 and 121, Oot. T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 107, on verdict for plaintiffs in case of Dorothy E. Walsh, a minor, by her next friend and father T. E. Walsh, and T. E. Walsh v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Kennedy, P. J.</p> <p>The circumstances of the accident are set forth in the opinion. of the Supreme Court.</p> <p>Yerdict and judgment for Dorothy E. Walsh for $4,500 and for T. E. Walsh for $1,250.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 83, Jan. T., 1908, by defendant, from judgment of O. & T. Phila. Co., June T., 1907, No. 175, on verdict of murder of the first degree in case of Commonwealth v. Francis Marion Shults. Indictment for murder. The opinion of the Supreme Court states the case. Yerdict of guilty of murder of the first degree, upon which sentence was passed. Error assigned was portion of charge, quoted in the opinion of the Supreme Court.

Appeal, No. 391, Jan: T., 1907, by plaintiffs, from decree of O. P. No. 4, Phila. Co., Dec. T., 1905, No. 2,715, dismissing bill in equity in case of Bessie D. Iiood and DeWitt Clinton Derringer v. Pennsylvania Society to Protect Children from Cruelty. Bill in equity to remove cloud on title.

<p>Railroads — Street railways — Contract—Written agreement — Contradiction — Affidavit of defense — Negligence.</p> <p>In an action by a steam railway company against a street railway company to recover the amount of certain damages which the plaintiff had been compelled to pay by reason of a collision between a train and a wreckage car of the defendant on which the persons injured were riding,</p> <p>■ the statement of claim set forth a contract between the two companies regulating the crossing, and averred that the accident had happened by reason of the defendant violating the agreement in not stopping the ear before crossing and in running the ear in a direction opposite to that which was required by the contract. The defendant filed an affidavit of defense in which it averred that the car had been run in a proper manner, had stopped at the crossing, and that the provision of the contract relating to the direction of the running of cars did not apply to a wreckage car. Held, that the affidavit of defense was sufficient to pre-. vent judgment.</p>

<p>Negligence — Street railways — Riding on platform — Summer car— Passenger — Conductor—Contributory negligence.</p> <p>It is the duty of the conductor of an electric street car to control the operation of the car, to protect and regulate the seating of passengers and to enforce the rules and regulations of the company affecting the transportation of passengers. In such capacity he is the representative of the company and acts for it.</p> <p>It is the duty of the passenger to submit to the authority of the conductor and to observe such reasonable directions as he may give. A passenger would not be justified in obeying the instructions of a conductor to occupy a place on the car which was imminently, or manifestly dangerous, but he should take the place on the car assigned him by the conductor unless the danger is so imminent or apparent that a reasonably prudent man would not assume it.</p> <p>Where a passenger laden with numerous bundles attempts to enter the body of an open summer car, and is directed to occupy the platform by the conductor who accepts his fare, the court cannot declare as a matter of law that the passenger is guilty of negligence per se in occupying a place on the platform as directed by the conductor.</p>

Appeal, No. 229, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., June T,, 1905, No. 119, on verdict for plaintiff in case of John J, Hanlon, in his own right, and Mary Hanlon, in her own right, v. The Lehigh Valley Railroad Company, Trespass to recover damages for personal injuries. Before Lynch, P. J. The facts relating to the accident are set forth in the opinion of the Supreme Court.

<p>Negligence — Electric railway — Street railway — “Stop, look and listen” —Contributory negligence.</p> <p>A person who walks in front of a moving car which he saw or could have seen by the exercise of the reasonable care which the law requires, will be conclusively presumed to have been negligent.</p> <p>Where a passenger alights from an electric car at a point where there' are platforms along the tracks, and a passageway extending from one platform to the other, and goes behind the car from which he alights ■ and is struck by a ear on the next track, he cannot recover, if it appears either that he did not look for the car, or seeing it, took the chance of crossing in front of it. In such a case the fact that the passageway was provided by the railway company for the use of persons going from one platform to the other, is a fact, to be considered in determining the passenger’s negligence, but it does not relieve him from the exercise of' reasonable care. The care required in its use is not the ordinary care required of a passenger who must cross a track, between his train and the station, but the greater care of a person at a crossing over, which he knows trains constantly pass.</p>

<p>Corporations — Election of officers — Objection to voting of stock — Act of May 26,1893, P. L. 141 — Undisclosed trust.</p> <p>Under the Act of May 26, 1893, P. L. 141, relating to the election of directors of a corporation, it is not necessary that objection to the voting of stock should be simultaneous with the offer of the ballot. It was not the intention of the legislature that a delay of a few moments on the part of the objector should render the protest void.</p> <p>When a statute directs certain proceedings to be done in a certain way, or at a certain time, the law will be regarded as directory and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being the essence of the thing required to be done.</p> <p>Under the Act of May 26,1893, P.L. 141, election judges at a meeting of the shareholders of a corporation are bound to reject votes offered in the name of an undisclosed trust.</p> <p>The purpose of the act of 1893 was to prevent the voting of stock by one not the owner or who was an undisclosed trustee, and the essence of the requirement as to the objection is that it must be made at a time when it may be considered and passed upon by the election officers, and the disputed ballot rejected if unlawfully offered.</p> <p>The act of 1893 was passed to further define evidence of stock ownership and the right to vote thereon. Under its provisions if the person in whose name the stock stands and who is offering a vote thereon either in person or by proxy, is not the owner thereof either in his own right or as active trustee, with the character of his trusteeship disclosed on the face of the certificate or transfer books in connection with his name, he is not entitled to vote the stock.</p>

<p>Receiver — Removal of receiver — Corporations—Discretion of court— Review.</p> <p>A receiver, who is the officer of the court and whose actions are under its control, ought to be disinterested, unbiased and impartial as between the parties; and where any breach of propriety in any such respect occurs, it is the duty of the court to remove the receiver and substitute another. But in the exercise of this power the court must be guided by sound discretion under the circumstances of the particular case. No definite rule can be framed, but the power of removal is to be exercised under the broad discretionary jurisdiction of a court of equity. An appellate court will not review the exercise of such power, except in a case where there is a manifest abuse of discretion.</p> <p>The action of a court in refusing to remove a receiver of a corporation will not be reversed by the appellate court, where it appears that the refusal of the court below was based partly on the ground that an application was soon to be made for a termination of the receivership, and it also appears that the matters complained of could be remedied by a surcharge of the receiver on the filing of his account on the termination of the receivership.</p> <p>If a proper case for its exercise be made out, it is the right and duty of an appellate court to review the judgment of the court below as to the removal or discharge of a receiver, but this duty is one to be exercised only in cases showing a manifest abuse of discretion.</p>

<p>Decedents’ estates — Counsel fees to exceptants — Executors and administrators.</p> <p>It is only in very exceptional cases that an exceptant to the account of an executor, administrator or trustee in the orphans’ court will be allowed counsel fees out of the fund. The rule in such cases is that the exceptant must pay his own counsel fee.</p> <p>Where the fund is in the hands of the court and in no jeopardy, except from a possible mistake of the court in dealing with it, and an exceptant is merely protecting his own interest, he will not be allowed counsel fees, although through his efforts others may also be benefited.</p>

<p>Partnership — Dissolution—Accounting—Division of capital — Account stated.</p> <p>Where two partners dissolve their copartnership, and a statement of account prepared by one of them shows the amount of contribution to capital by each of them, and the agreement to dissolve shows that a liquidation of assets was contemplated, and that a possible shrinkage of assets was anticipated, one partner cannot assert as against the other that the statement of account was an account stated, and that the amount in his favor was fixed and could not be reduced by a subsequent shrinkage in the value of assets.</p> <p>Where a partnership is dissolved and its affairs are wound up, there must be a return of the firm capital to the partners contributing -it, in order that there may be a distribution of the profits. Each partner’s contribution is regarded as a firm debt to such partner, which must be repaid before there are any profits to be divided. Where one partner has advanced capital in excess of another, the amount advanced is a preferred claim upon the property of the firm. The distribution of capital upon dissolution is in the same proportion in which such capital was furnished.</p>

<p>Negligence — Street railways — Crossing tracks — Death—Contributory negligence — Nonsuit.</p> <p>In an action against a street railway company to recover damages for the death of plaintiff's husband, it appeared that at the time of the accident the deceased walked slowly from the sidewalk of a street on which were two street car tracks. He crossed the nearest track in front of an approaching south bound car which came to a standstill within a few feet of the place where he crossed. The motorman of this car testified that he saw an approaching north bound car, and warned the deceased as he was passing, and the latter responded, “Oh, all right.” He then stepped across the first rail of the next track but instead of drawing back, or proceeding rapidly straight ahead to clear the second track, he turned to the left and turned back into the space between the two tracks, and while standing there was caught between the two cars and killed. Held, that a nonsuit was properly entered.</p>

<p>Election law — Contested election — Practice, C. P. — Appeals—Remew— Certiorari.</p> <p>Proceedings by certiorari on a summary petition in an election contest occupy a middle ground between those in common-law actions, and equity suits; and the appellate court, in the exercise of supervisory powers in such cases, will not stop with a mere inspection of the formal proceedings, but will examine the opinion of the court below so far as it may be necessary to ascertain the basis of its action.</p> <p>Election law — Election contest — Judge of election de facto.</p> <p>In the absence of any evidence of fraudulent or wrongful voting, or of fraudulent or improper counting of votes, the entire poll of votes cast in a district will not be rejected, because a person was sworn and acted as the judge of election in place of the regularly elected judge, under the mistaken idea that he had a right to do so since he had acted as judge in the preceding election in the absence of the elected judge.</p> <p>In such a ease the officer is a judge de facto by color of authority, and the validity of his acts cannot be questioned so far as they affect third persons.</p> <p>Whole communities of electors are not to be disfranchised for the time being, and a minority candidate forced into an office, because one or more of the judges of election have not been duly sworn, or were not duly chosen, or do not possess all the qualifications requisite to the office.</p> <p>Public officers — De facto officers — Color of authority — Definition of de facto officer.</p> <p>A de facto officer is one who is in possession of an office and discharging its duties under color of authority, and by “color of authority” is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer.</p>

<p>Appeal, No. 81, Jan. T., 1908, by defendant, from judgment of C. P. Huntingdon Co., May T., 1905, No. 23, for plaintiff non obstante veredicto in case of American Car & Foundry Company, subcontractor, v. Alexandria Water Company, owner or reputed owner, and William M. Powell & Company, contractor.</p> <p>Scire facias sur mechanic’s lien. Before Woods, P. J.</p> <p>Before the trial, W. F. Lowery, who had been served with a subpoena duces tecum, petitioned the court to be relieved from producing certain documents. The court for reasons stated in the opinion of the Supreme Court granted the witness the relief which he sought. [1]</p> <p>At the trial when Mr. Lowery was on the stand the following request was made:</p> <p>Mr. Bailey: Counsel for defendant is not at present making any offer, he is asking the witness who has been subpoenaed with a duces tecum and who has in obedience to that duces tecum produced in court a list of the persons, firms and corporations with whom he has made contracts during the year 1903 ; counsel requests the witness, who has been subpoenaed by the defendant, to allow him to see the list of persons with whom he has contracted during the year 1903 so that the witness may be properly examined by counsel for defendant.</p> <p>Mr. Waite : Plaintiff’s counsel objects to the rights of the defendant to go into the private papers and contracts, if there be contracts, of the plaintiff company, with other persons, firms and corporations, and if the gentleman will specify any particular contract or contracts which he desires to have produced and will show how they can become material, then it is a matter for the court to decide whether or not they shall be produced and exhibited.</p> <p>The Court: Objection sustained. Evidence excluded. Bill of exceptions sealed for'defendant. [2]</p> <p>The facts of the case appear by the opinion of the Supreme Court.</p> <p>Yerdict for defendant. Subsequently the court entered judgment for plaintiff for $10,562.59 non obstante veredicto.</p> <p>Errors assigned were (1, 2) rulings as to the production of books and documents; (6) in refusing binding instructions for plaintiff; and (9) entering judgment for plaintiff non obstante veredicto.</p>

Appeal, No. 93, Jan. T., 1908, by defendant, from judgment of O. & T., Northumberland Co., Feb. T., 1907, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth of Pennsylvania v. Henry Fisher. Indictment for murder. Before Savidge, P. J. At the trial the district attorney offered two letters dictated by the prisoner when in jail to two other prisoners, addressed to his wife, and duly mailed to her. Mr. J. A. Welsh : This offer is objected to, 1.

<p>Negligence — Master and servant — Fellow servant — Vice principal— Foundry.</p> <p>Where two owners of a foundry have no practical knowledge of the business, and delegate to a workman the absolute control and management of the foundry and of the employees engaged in constructing molds and making castings, with power to employ and discharge the men, such employee becomes a vice principal, and if he is negligent in permitting a mold to be used in casting before it is sufficiently dry, and when it is in an unfit and dangerous condition, and a workman is in consequence injured, the owners of the foundry are liable to the workmen for the injuries sustained.</p>

<p>Negligence — Railroads—Fright of horse — Evidence—Nonsuit.</p> <p>No error in a close calculation of a chance can reheve from the charge of contributory negligence.</p> <p>Where a man, in a country district, in broad daylight, drives his horse very close to a track of a railroad before stopping, looking and listening, and as a train approaches the horse becomes so frightened as to become uncontrollable, and plunges across the track in front of a train, and the driver is killed, the latter is guilty of contributory negligence, and no damages can be recovered from the railroad company for his death.</p>

<p>Appeal, No. 155, Jan. T., 1908, by defendant, from judgment of O. & T. Pbila. Co., Jan. T., 1901, No. 562, on verdict of guilty of murder of the first degree in case of Commonwealth v. George Smith.</p> <p>Indictment for murder.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Yerdict of guilty of murder of the first degree.</p> <p>Error assigned amongst others was, “ in failing and refusing to give to the jury further and specific instruction's when they asked for them after they had deliberated for hours.”</p>

<p>Will — Construction—Power of appointment — Vested and contingent estates.</p> <p>■ Testatrix by her will gave to her nephew her own estate if he should be living at the time of her death, and also an interest in the estate of her mother over which she had power of appointment “if he should be living at the time of my decease.” By a subsequent clause she provided that "in case my nephew shall die prior to my own decease, or in case he shall die before my estate is fully settled up by my executor, and before the proceeds of my said estate shall have been paid over to my nephew as herein provided then and in that case I do direct that all of my estate together with all interest in and a right to devise will, 'or give the same arising in or to the will of my mother which shall then remain in the custody of my executor, and which has been herein bequeathed to my nephew, shall be given, devised and bequeathed, and by my executor paid over to my six first cousins,” naming them. The nephew die.d within a few months after his aunt’s death, without having received anything under the latter!s will. Held, that no estate vested in the nephew, and that the six cousin's were entitled both to the estate of the testatrix, and to the interest in her mother’s estate over which she had power of appointment..</p>

<p>Appeal, No. 60, Jan. T., 1908, by plaintiff, from order of O. P. McKean Co., June T., 1905, No. 2, dismissing exceptions to referee’s report in case of James H. McGraw v. Robert W. Hilton et al.</p> <p>Exceptions to report of F. P. Schoonmaker, Esq., referee.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to report of referee.</p>

<p>Banks and banking — Check—Forgery—Notice to bank of forgery.</p> <p>The duty of a depositor in a bank, upon discovering that it has paid and charged to his account either a check bearing his forged signature as drawer or his check on the forged indorsement of the payee, is to promptly notify it of the forgery.</p> <p>The relation between a bank and its depositor is a contractual one. Its undertaking with its depositor is to pay his checks if he has sufficient funds with it for that purpose, and it assumes all the risk as against him of a mispayment in paying and charging to his account a check which he has not signed or one he has signed bearing a forged indorsement of the payee. To his account it may not charge such a check. If it does, the depositor can recover from it the amount so charged. No payment by a bank on a forged signature of a depositor as drawer of a check or on a forged indorsement of his payee can affect him. His right is to get back from the bank whatever he has deposited with it, less what has been properly paid out on his orders. The responsibility of the bank to the depositor is absolute and it can retain no money deposited with it by him to reimburse it for any mispayment it has made out of such deposit; but it can recover from the forger responsible for the mispayment or from those who, by their indorsement of a check, have vouched for previous indorsements or the genuineness of the signature of the alleged drawer.</p> <p>Whenever a depositor knowingly withholds from the bank knowledge of a forgery without which the bank cannot proceed in an effort to protect itself, the depositor ought to be regarded when he comes to enforce alleged rights against the bank, as having withheld from it a substantial right without regard to what might or might not have resulted from a prompt exercise of that right. Delay on the part of the depositor leads not only to delay by the bank in proceeding against the forger, but also to possible loss of evidence, and to the possible loss of opportunity of recovering from persons interested in the forger, whose interest may abate by the delay.</p> <p>In a suit by a depositor against a bank to recover the amount which it may have improperly paid on a forgery, the issue is the forgery, and this issue ought not to be complicated with another and a speculative one, as to whether anything might have been recovered from the forger, if prompt notice had been given to the bank of the forgery.</p> <p>A delay of three months in giving notice to a bank of a forged check, after the discovery of the forgery, will deprive the depositor of his right to recover the amount of the check from the bank.</p>

<p>Banks and banking — Checks—Forgery—“Fictitious person” — Act of May 16,1901, P. L. 194.</p> <p>Where a business firm gives to a clerk a power of attorney to draw checks against its account, and there is nothing in the power of attorney to limit the purpose for which the checks may be drawn,1 or to prohibit the checks from being drawn to bearer, and the clerk draws a check to a person having no business relations whatever with the firm, and forges the name of such person as indorser, and the bank pays the checks, the depositing firm cannot recover the amount of the checks from the bank. The payee of the check is a fictitious person within the meaning of the Act of May 16,1901, P. L. 194. It is, therefore, a check made payable to bearer, and the forgery of the payee's name has no bearing in the transaction as affecting the bank's liability.</p> <p>In such a case the fact that the clerk delivered the checks to the proprietors of a “bucket shop” in connection with a gambling transaction, is immaterial; and it is also immaterial that a trust companv in which the checks had been deposited for collection guaranteed the signatures of their depositors, inasmuch as the checks when delivered to the brokers were in contemplation of law cheeks to bearer, and the guaranty was limited only to the indorsement of the brokers.</p> <p>The rule that a bank is liable to its depositor for paying a check on a forged indorsement, applies where a check has been lost or stolen and the payee’s name has afterwards been forged; but it does not protect a depositor who is in fault, as in intrusting a check to one who he has reason to suppose will make a fraudulent use of it, or in so carelessly filling up a check that it may readily be altered, or in issuing a check to a fictitious person. It is confined to cases in which the depositor has done nothing to increase the risk of the bank.</p>

<p>Negligence — Electric light company — Degree of care — Contributory negligence — Comparative negligence.</p> <p>While companies furnishing electricity are held to the very highest degree of care practicable to avoid injury to persons who may be lawfully in proximity to their wires, such persons are not relieved from the consequences of their own neglect, nor are the companies liable'for accidents that were not in reason to be foreseen and guarded against.</p> <p>In an action against an electric light company to recover damages for the death of plaintiff’s husband, no recovery can be had where the evidence shows that the deceased, a house painter, went upon a. roof to paint, that he was twice warned of danger from contact with the electric wires, but notwithstanding the warning he placed his hand-in such a position that it came in contact with a wire where the rubber covering was only off to the extent of an inch, and the wire itself was at this point securely fastened seven feet above any place from which it could be ordinarily reached. '</p> <p>The doctrine of comparative negligence has no recognition in Pennsylvania. Any negligence on the part of plaintiff that contributes to and is the proximate cause of his injury defeats his action. There can be no balancing or matching of degrees of'negligence.</p> <p>In an action against an electric light company to recover damages for death of plaintiff’s husband caused by contact with an exposed wire, where there is no evidence that the defendant maintained a common nuisance, or was guilty of'Wanton negligence, it is error for the trial judge in his charge to refer to the' negligence of the deceased as being “light” negligence, and that of the defendant as being “he.avy” negligence.</p>

<p>Sheriff — Action against — Assault by deputy — Personal injuries— Physician — Evidence—Conduct of plaintiff when not on stand — Charge.</p> <p>In an action against a sheriff to recover damages for an assault by a deputy in executing a writ, where the plaintiff and her sister testify to a continuous condition of injury, a physician may testify as to the physical condition of the plaintiff six months after the assault, and that he then treated her for the condition which she described on the trial'. In- such a case the jury should be cautioned that they must be satisfied from the evidence that the injured condition of plaintiff when she was treated by the physician was -connected with and resulted from the injury inflicted by the deputy.</p> <p>It is-reversible error for the court in such-a ease to refer to an hysterical outbreak of the plaintiff in the court room when she was not on the witness stand, as an exhibition which might aid the jury in determining whether the plaintiff's excitable temperament was not in a measure the cause of her trouble with the deputy sheriff; and this is particularly so in view of the fact that the plaintiff charged her excitability in part to the effect of the injury in question.</p> <p>Great latitude is properly given to the trial judge in commenting upon the evidence, but it is going too far to comment upon the conduct of a witness while not upon the stand.</p> <p>If the witness shows bias, feeling or partiality upon the stand it may very properly be commented upon as affecting credibility; but the demeanor or conduct of the witness while not upon the stand is no part of the evidence in the case.</p>

<p>Appeal, No. 16, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1905, No. 1,101, on verdict for plaintiff in case of Leon Schrager v. James Cool.</p> <p>Assumpsit to recover a balance alleged tó be .due from, an agent’s principal. Before Fuller, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[Now, summing it all up down to this point, gentlemen of the jury, if you believe the testimony of the plaintiff assisted by the corroborations which you believe it has received from other credible testimony in the case, you may find that substantially the contract averred in the declaration ,has been proven, namely, an agreement by the defendant to buy for the plaintiff these properties, borrow the necessary money, and take in compensation the sum of $150, with interest and expenses.] [1]</p> <p>[Now, on the question of law. There is what we call the statute of frauds, of which you have heard.. It is a statute which provides, in substance, so far as it bears upon this case, that contracts in relation to land must be in writing; that written title to lands, or written ownership of lands, cannot be affected or defeated, as a general legal proposition under this statute, by verbal testimony, by anything short of a writing. That statute has not been specifically mentioned in the argument here, but as we are requested to give you certain binding instructions upon the legal aspects of the case, it is proper for me to say that the statute of frauds, the statute to which I refer, is no bar to the plaintiff’s recovery in this action, if you find the contract as he has asserted it to be.] [2]</p> <p>[The suit is not for land, it does not involve land, but it is for the profits made by the sale of land, derived from the sale of land which the defendant undertook, if - you so find, to buy and to dispose of, and the defendant cannot avail himself of the statute of frauds, if you believe the plaintiff, for two reasons. In the first place, if you believe that the $4,800, paid to the association in New York for this property, was derived, $100 from money advanced by the plaintiff although subsequently the balance was returned, $81.00, and that $4,700 of it was advanced or put into the transaction by the de-fendant under the contract or arrangement asserted by the plaintiff, there would probably be in law what is denominated a resulting trust, that is, the assignment of this sheriff’s deed</p> <p>Charge of Court — Opinion of the Court. [221 Pa. to the defendant would not make him the real owner, but only make him the trustee of the legal title for the plaintiff, charged, however, as between the parties, with the amount of his advances. That is a well-recognized legal proposition to protect both parties, the defendant in his advances and the plaintiff in his real ownership of the property.] [3]</p> <p>[Again, independent of any resulting trust and independent of any technical relation between the parties of trustee and cestui que trust, and whether the transaction constituted the plaintiff the technical legal or equitable owner' or not, if you believe the advancing of the money by the defendant was part of an arrangement between the parties to do what was done for the benefit of the plaintiff, allowing the defendant compensation $150, and interest, and expenses, then the plaintiff, notwithstanding the statute of frauds, might be entitled to a verdict.] [4]</p> <p>Yerdict and judgment for plaintiff for $1,616.14. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Negligence — Evidence—Employers’ liability company — Insurance—Attorney at law — Credibility of witness — Cross-examination.</p> <p>The fact that the defendant' in an action for personal injuries is insured in an employers’ liability company, has not the slightest bearing on the issue. It is an irrelevant fact, prejudicial to the defendant, and its introduction by the plaintiff, whether by testimony offered by him, by statements of his counsel, by offers of proofs or by questions asked witnesses or jurors under the pretense of disclosing interest or bias is ground for reversal.</p> <p>Where a defendant in an accident case calls his own attorney to discredit one of plaintiff’s witnesses, and the attorney testifies in his examination in chief that he is the attorney for the defendant, he may be asked on cross-examination whether he is not also the attorney for an employers’ liability company which had insured the defendant against loss from accidents to its employees.</p> <p>It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial or that he has a relation to the party from which bias would naturally arise. Such an examination goes to the credibility of the witness. The right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party. This chance the party takes when he calls the witness.</p>

<p>Appeal, No. 124, Jan. T., 1908, by-defendant, from judgment of C. P. Blair Co., Oct. T., 1906, No. 161, on verdict for plaintiffs in case of David' Ott and George Ellenberger, trading as David Ott & Company, v. O. L. Seward.</p> <p>Assumpsit on. promissory notes.</p> <p>One of the notes was in the following form:</p> <p>“ $1,000. September 29, 1906.</p> <p>“ Two months after date, we .promise .... to pay to the order of J. T. Flourney ..... Four Thousand.......Dollars at Union National Bank........ without defalcation for value received.</p> <p>“ Island Park Association,</p> <p>“ Per J. O. Rauch, President.</p> <p>“ Attest:</p> <p>“ Jno.- T. Flourney,</p> <p>“ Secretary.</p> <p>(Indorsements.)</p> <p>“J. T. Flourney,</p> <p>“O. L. Seward,</p> <p>“ C. A. Hargraves,</p> <p>“.J. O. Rauch,</p> <p>“David Ott & Co.”</p> <p>The defense set up is stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiffs for $4,284. Defendant appealed.</p>

<p>Contract — Written contract — Vagueness of terms — Unenforceable memorandum.</p> <p>A memorandum in writing relating to a sale or exchange of bark or timber, is not enforceable as a contract, where it appears that no parties are mentioned in the writing on which it is to be binding, that no time is stated for the beginning or ending of the alleged contract, that there is no definite area of land described from which timber is to be taken, nor any fixed amount of bark to be delivered for purposes of exchange, that the paper does not show that the minds of the parties ever came together on any specific thing, and that evidence apart from the paper shows that the memorandum was intended merely as the basis upon which to make a formal contract.</p>

<p>Appeal, No. 210, Jan. T., 1907, by defendant, from judgment of C. P. Fayette Co., March T., 1904, No. 22, on verdict for plaintiff in case of La Belle Coke Company v. Jeremiah Smith.</p> <p>Ejectment for coal underlying land in Luzerne township.</p> <p>At the trial the jury returned a verdict for plaintiff subject to the question of law reserved.</p> <p>The court subsequently entered judgment on the verdict Umbel, J., filing the following opinion :</p> <p>In the early part of the nineteenth century John Crawford owned several 100 acres of land situate on the Monongahela river in Luzerne township, Fayette county, Pennsylvania, including the coal, title to which is now in dispute in this case, and on February 18, 1830, he executed a bond to his son, William W. Crawford, in the sum of $6,000 conditioned that he should within one year execute to him, his heirs and assigns, a good and sufficient deed in fee simple for 200 acres of the said land, more or less, bounded by the courses and distances as surveyed by Joseph Crawford, Jr., with certain unimportant reservations, which bond was recorded January 6, 1838, in deed book “ T,” page 377, and the coal in question was included within the boundaries of the land referred to in said bond.</p> <p>The conditions of the bond as to the making of the deed within one year and the conveyance of the identical land called for in the bond were not complied with, nor is there any evidence that the said William W. Crawford, the obligee in the bond, took any legal steps toward enforcing his rights under it, nor was deed made to him for any part of the 200 acres until 1840.</p> <p>Kecorded with the bond is an ex parte affidavit, dated' January 1, 1836, of Joseph Crawford, Jr., referred to in the bond as the engineer who made the survey, setting forth :</p> <p>1. The courses and distances of the survey, seemingly so far as material to the controversy between the parties, as follows: “ Beginning at a stone near the spring run 70 perches from a stone in the division line between William Crawford, brother of John Crawford, and John Crawford, S. 75° W. 51 perches to a stone; thence S. 18f° E. 94.5 perches to a sugar tree; thence S. 72° W. 35 perches to a W. O. on top of the river hill; thence same course to the river,” which includes the coal in question within the aforesaid 200 acres, more or less.</p> <p>2. That he believed the said survey is the one alluded to in the said bond of February, 1830.</p> <p>3. That John Crawford told deponent that the land contained within the above-mentioned lines was exclusively for his son William W. Crawford, making mention at the same time that there was one field more in the survey that he originally intended to give William but on reflection he thought William was entitled to in consideration of some debts he, William, had paid for John’s son-in-law.</p> <p>4. That John Crawford repeatedly told deponent that William W. Crawford was to have the land above mentioned one or two years after the land alluded to was executed.</p> <p>5. William W. Crawford called upon deponent to make the survey, which survey deponent made in the presence of John Crawford, the father, the plot of which survey deponent gave into the possession of his father, Joseph Crawford; at that time John Crawford told deponent he had agreed to give William W., his son, a deed according with the second survey, excepting a portion of the river hill.</p> <p>There is also recorded with the said bond another ex parte affidavit dated January 1, 1836, of John Bower, who says the bond was drawn up by him, that it was voluntarily executed by said John Crawford and that deponent’s recollection is that it was prior to the last marriage of said John Crawford.</p> <p>Which two affidavits, while of small material consequence in the adjustment of the matter in dispute, show conclusively that there was then and evidently for some time had been a controversy between John Crawford and his son William W. Crawford regarding what should be included in the conveyance, affecting particularly the lines as bearing on the part of the said 200 acres over and in the vicinity of the coal in question.</p> <p>By deed dated December 30, 1837 (two years after the date of the above affidavit), William W. Crawford et. ux., conveyed to Henry Turner the following described land': “ A certain lot of ground situate near the Monongahela river in the countv aforesaid bounded as follows : Beginning at a sugar tree near the coal bank belonging to Joseph Davis and running S. 17° W. 200 feet in front along the said river and extending back 300 feet between the parallel lines bearing N. 73° E. and also the coal under the ground between said parallel lines continuing in the same course as far back as the said William W. Crawford’s land extends,” which by legal conveyance, etc., in due time became vested in the defendant.</p> <p>By deed dated April 3, 1841, William W. Crawford , and wife conveyed to Gideon John a part of the said premises fronting 12.85 perches on the river and extending back 12.85 perches between parallel lines bearing north 73° east, forming a square containing 165 perches, “ also the coal lying under the surface of the ground embraced between the two parallel lines aforesaid continued in the same course, viz.: N. 73° E. as far back as said William W. Crawford’s land extends,” which-by due and legal conveyance became vested in the defendant.</p> <p>Other conveyances were made by said William W. Crawford of coal lots or tracts near and adjoining the Turner and Johns lots aforesaid bounded on the north and south by lines parallel to the longest lines of said Turner and John lots and in each deed there is included “ also the coal under the ground back of said lot embraced between the above described parr allel lines continued in the same course as far back as said William W. Crawford’s land extends.”</p> <p>The indefiniteness of the extent of the coal conveyed in each instance and the failure to locate the real line, conclusively establish that such line was uncertain and not fixed, and that it was doubtless the occasion of controversy between said John and William W. Crawford, further evidence of controversy between them is the action of ejectment instituted by John Crawford against William W. Crawford, Henry Turner et al., at No. 49, June Term, 1838, for the 200' acres referred to in the above-mentioned bond, which action was compromised and settled after December, 1839.</p> <p>In the limited time we have been able to devote to the consideration of this case, we have not discovered any authority holding or indicating that, on failure or refusal of John Crawford to carry out the condition of the said bond, the obligee, William W. Crawford, could enforce specific performance and compel conveyance to him of the said 200 acres. If the obligor failed or refused to convey, etc., the obligee’s remedy would be to sue on the bond, in view of which we seriously question whether such title vested in the obligee in the bond under the provisions thereof as would enable him to make conveyance of title to the Turner and other lots or any part of the said 200 acres without other and further action on the part of the obligor, except subject to the existing equities between John and his son, William W. Suppose the obligor for some reason had refused absolutely to convey all or any part of said 200 acres, as the action of ejectment at No. 49, June Term, 1838, indicates he contemplated, would not the obligee have been limited to recovery on the bond and the obligor could not have been held liable beyond the penalty thereof ? Suppose, further, that the obligor had elected not to convey and proceeded forthwith to the obligee and advised him accordingly and thereupon paid, or in good faith offered to pay, him the $6,000 penalty provided in the bond, would it be contended that such action on the part of the obligor did not free and clear him and operate to satisfy the said bond and at the same time wipe out every possible interest and claim that the obligee had or could have in the said 200 acres and every part thereof under the said bond? We strongly incline to the conviction that these considerations would have to be decided in favor of the obligor: Streeper v. Williams, 48 Pa. 450; Mathews v. Sharp, 99 Pa. 560 ; Clements v. R. R. Co., 132 Pa. 445.</p> <p>The purchaser (Turner et al.) of an equitable title or of a title inchoate or defective on its face, takes it subject to all the countervailing equities to which it was subject in the hands of the person (William W. Crawford) from whom he purchases; he cannot claim to be placed in a better position than such person; it is only the purchaser of,.a title perfect on its face, for a valuable consideration, who takes it discharged from every equity or claim of which he had no notice: Chew v. Barnet, 11 S & R. 389 ; Chew v. Parker, 3 Rawle, 283 ; Reed v Dickey, 2 Watts, 459; Kramer v. Arthurs, Y Pa. 165.</p> <p>The agreement between John Crawford and William W. Crawford, dated July 24,1840, by which their differences were adjusted, provides as follows, viz.: — “Whereas there had been some dispute between us in relation to the land for which John Crawford was bound to make a title to his son, William W. Crawford. And in order to settle all further dispute and controversy on the subject and to fix a proper line between us. It is hereby now agreed by John Crawford of Fayette county, Pa., of the one part and his son William W. Crawford of the other part, that the said John Crawford shall make a good and sufficient deed in fee simple for 190 acres of the tract of land on which they both now reside to be run off as follows so as to include the part on which said William now resides, viz.: — Beginning at the Monongahela River at the corner between William Crawford, and brother of said John Crawford, thence by the courses and distances of the patent up the river to the coal bank of Henry Turner so as to include, the same, thence up the river hill to the top, thence along down the river on the top of the hill to a point from which by running a straight line across to the line between said John Crawford and his brother William Crawford so as to include in the whole 190 acres, thence by the line between said John and his brother William to the corner on the river, the place of beginning. The said William W. Crawford to have the privilege of running back under the land of said John Crawford from the coal bank of Henry Turner, reserving also sales already made to Turner and others as to mining by the said William W. Crawford. Said John Crawford to make said deed and survey on or before the first day of October next with notice to the said William W. Crawford, said survey to be made by the county surveyor or John I. Dorsey.”</p> <p>The deed made in pursuance of the said agreement is dated September 22,1840, and contains a description of the said 190 acres by courses and distances and also the provisions quoted last above in the agreement of compromise regarding the privilege of William W. Crawford running back under the land of John Crawford, etc. It will be observed that the Turner deed was made before and the John deed after September 22, 1840, but one of the other deeds offered in evidence, dated previous to September 22, 1840, recites such matter as indicates that William W. Crawford sold to John before the last-named date.</p> <p>Kef erring to the courses and distances set forth in the affidavit of Joseph Crawford, Jr., recorded with the above-mentioned bond, and the courses and distances set forth in the deed of September 22, 1840, and comparing plots offered in evidence that were made in pursuance thereof, it clearly appeared that the coal in question ivas not included in t’he conveyance of September 22,1840, and that the said rear property line of William W. Crawford was the western end of the coal in dispute.</p> <p>If conveyances had been made by John Crawford to William W. Crawford, as provided in said bond of February 18, 1830, the said rear property line would have been about 120 perches from the front line of the river.</p> <p>The surface tracts conveyed by William W. Crawford to Henry Turner et al. extends back from the river only from about twelve to eighteen perches, and the coal intended to be conveyed would extend, according to the claim of the defendant, considerably beyond what was under the surface lots — it was, in addition to what was under the surface lots, a narrow strip, from 200 to 300 feet wide, extending back from the rear line of the surface lots to the rear or eastern property line of John Crawford, noted in the above-mentioned affidavit of Joseph Crawford, Jr., as seventy perches in length, between a stone near the spring run and a stone in the division line between John Crawford and his brother William, a distance of from 102 to 107 perches from the rear line of the surface lots.</p> <p>According to the agreement of compromise of July 24,1840, and the deed made in pursuance thereof, it was definitely ascertained, determined and established for the first time, so far as appears from the evidence, that the said property line of William W. Crawford at the point in question was only 37.7 perches from the river, instead of about 120 perches, which would extend defendant’s coal back beyond the rear line of the surface lots from nineteen to twenty-four perches instead of from 102 to 107.</p> <p>The established facts satisfy us beyond a doubt that the said rear line was a bone of contention between John Crawford and William W. Crawford for years, and was not definitely determined until, the execution of the agreement of compromise in July, 1840, and the deed made in pursuance thereof in September of the same year, and we believe and conclude such condition was the occasion of the indefinite description and uncertain extent of the said coal, being described as “ the coal under the ground between said parallel lines continued in the same course as far back as the said William W. Crawford’s land extends,” and William W. Crawford having at most only a defeasible equitable title, the sales were made and the deeds accepted by Henry Turner et al. with the understanding that the rear line of their coal was to be the line finally determined and agreed upon as the rear property line of William W. Crawford, else why would the deeds not have expressed clearly that they were to extend to a certain, fixed, definite line which could easily have been done if defendant’s contention be correct, but which could not be done in any other way, manner' or language than that used, if the rear line of William W. Crawford was undetermined and the extent of his land ■ uncertain, as it was at the time the Turner and Searight deeds and Gideon John’s contract were made ?</p> <p>We think this conclusion is warranted by the principle stated by our Supreme Court in Meigs v. Lewis, 164 Pa. 597, cited by defendant, which holds that “ In construing a deed it is proper and sometimes necessary to consider the circumstances under which it is made for the purpose of ascertaining the intention of the parties,” which is abundantly sustained by a long line of decisions.</p> <p>In the same case, quoting from Lacy v. Green, 84 Pa. 514, we find: “ When the meaning of an agreement is doubtful its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the property, regard to which they have negotiated are all elements in the interpretation of an ambiguous contract.”</p> <p>It is earnestly insisted on the part of the defendant that the provision in the agreement of compromise and the-deed from John Crawford to William W. Crawford in 1840, as follows,, viz.: “ The said William W. Crawford to have the privilege of running back under the land of the said John Crawford from the coal bank of Henry Turner, reserving also the sales also made to Turner and others as to the mining, by the said William W. Crawford,” amounts to a conveyance of the title from John Crawford to the vendees of William W. Crawford for the coal between the rear line of William W. Crawford as established by the deed of September 22, and the. eastern line of John Crawford, which is the coal in dispute, which contention we cannot approve as it is lacking in the requisite formalities necessary and incident to a legal conveyance.</p> <p>What is the meaning of the expression, “ the said William W. Crawford to have the privilege of running back under the land of the said John Crawford from the coal bank of Henry Turner ” ?</p> <p>Adopting the contention of the defendant, barring conveyance, that it was intended, to extend to William W. Crawford and his grantees the right to mine and remove the coal in question, as well as the coal in rear of other lots, it develops a condition at once unreasonable, if not absurd, in limiting the privilege to “ the coal bank of Henry Turner,” as there were several other lots conveyed by William W. Crawford adjoining and fronting on the river for a distance of about one-third of a mile, -and defendant’s exhibits show that there were .several other banks, yet, under the above, all the coal back of what was established to be the rear line of the land of William W. Crawford would have to be brought out the Turner bank. We cannot conclude otherwise than that it was intended to be a personal privilege extended to William W. Crawford “ of running back under the land of the said John Crawford from the coal bank of Henry Turner.” For what purpose is not expressed, but doubtless for the purpose of taking out coal conveniently located, if an arrangement should be effected, along the line between the said William W. Crawford and Henry Turner for the use of the latter’s bank, and, in our opinion, it has no connection or reference whatever to any previous conveyance made by William W. Crawford, which conclusion we think is warranted by the clause next following the above quoted, viz.: “ Reserving also the sales already made to Turner and others as to mining by the said William W. Crawford.”</p> <p>If the clause quoted first above had been intended to refer to the Turner et al. conveyances, it could easily have been so expressed in language clear and ambiguous, and the second clause last above quoted “ reserving also,” etc., referring to the Turner et al. lots, indicates to our mind that the first clause does not have any reference to the Turner et al. lots.</p> <p>It is undoubtedly true if John Crawford had made conveyance to William W. Crawford in such way as to have given title to William W. Crawford to the line claimed by defendant as the rear line of William W. Crawford’s land such conveyance would have enured to the benefit of the defendant and its predecessors in title, and he would now be entitled to the property. But such uncertain and indefinite statement as relied on by the defendant quoted above cannot, in our opinion, be the basis for claim to title to real estate under the circumstances of this case.</p> <p>The language quoted above in one way almost warrants the conclusion that John Crawford, instead of ratifying and confirming the sales to Henry Turner and others by William W. Crawford, meant to repudiate such action and reserve to himself the right of making such conveyances as above indicated in “ reserving also the sales already made to Turner and others as to mining by the said William W. Crawford,” which can hardly be taken to mean a ratification, but is rather in the nature of a reservation, which-in law is said to be “an express withholding of certain rights, the surrender of which would otherwise follow or might be inferred from one’s act.” Applying the principles set forth in Bock Island By. Co. v. Bio Grande B. B. Co., 143 H. S. 596, to the effect that the meaning of a reservation must be determined in every case by the particular facts of the case, such as the character of the conveyance, the nature and situation of the property conveyed and of the property reserved or excepted and the purpose thereof, to the facts here, inclined us to doubt that the intention of the conveyance in question was to ratify and confirm the titles from John Crawford to the grantees in “ the sales already made to Turner and others ” by William W. Crawford.</p> <p>But grant that it is confirmatory in character, what does it confirm ? “ The sales already made to Turner and others.”</p> <p>What were the “ sales already made to Turner and. others ” %</p> <p>Certain surface lots and coal under them and under the ground in rear of them extending “ as far back as the said William W. Crawford’s land extends.”</p> <p>'• We now come to the most important question, viz.: How far does William W. Crawford’s land extend, or how far did it extend at the time of the execution of such deeds ?</p> <p>That is not fixed or certain, but is in controversy, uncertain,' indefinite, and the uncertainty attending it was current rumor in the community at the time of £C the sales made to Turner and others,” and it cannot be determined until their differences are adjusted, which is done in July, 1840.</p> <p>True, in view of the deed of September 22, 1840, we question the necessity of any confirmation of the Turner et al. deeds, and, if confirmed, it was doubtless occasioned by the fact of the previous and existing controversy attending when these deeds or the sales were made and was done at the suggestion and request of William W. Crawford or Turner et al. so as to free the matter from other or further question, and such confirmation did not apply beyond the line 37.7 perches from the river.</p> <p>Inasmuch, then, as the land of William W. Crawford does not and never did by any title other than a defeasible one, extend back to the line 120 perches from the river, claimed by the defendant as the rear line of the said coal lots, no conveyance of his could give title beyond his rear line, as definitely determined to be 37.7 perches from the river, and taking all the records and giving to each its fullest force we cannot discover such facts and conditions as warrant us in holding that the title to the coal in dispute ever passed from John Crawford down the line of conveyances, etc., claimed by the defendant, but we do find and conclude that the due and legal title to the coal in dispute, did pass from John Crawford down the line' claimed by the plaintiff and is now fully and completely vested in the La Belle Coke Company.</p> <p>Error assigned■ was in entering judgment on the verdict for the plaintiff.</p>

<p>Appeals, Nos. 285, 301 and 302, Jan. T., 1907, by defendant, from judgments of C. P. Crawford Co., Feb. T., 1906, Nos. 90, 91 and 92, on verdicts for plaintiffs in cases of Henry Noel v. The Meadville & Cambridge Springs Street Railway Company, Mary Hickernell, a minor, by her father, Isaac Hickernell and Isaac Hickernell v. The Meadville and Cambridge Springs Street Railway Company and Somner Gray v. The Meadville and Cambridge Springs Street Railway compan}r.</p>