Volume 23 — Pennsylvania Superior Court Reports

Appeal, No. 14, Feb. T., 1903, by plaintiff, from order of C. P. Lycoming Co., June T., 1902, No. 465, discharging rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Cora A. Owens v. Harvey G. Milnor, Sheriff, and the American Bonding and Trust Company of Baltimore. Assumpsit on the official bond of a sheriff. Before Hart, P. J. The opinion of the Superior Court states the case.

<p>Appeal, No. 31, March T., 1903, by plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1902, No. 226, on verdict for defendant in case of Elmer W. Moore, Receiver of the Iron City Mutual Fire Insurance Company, v. George S. Bestline.</p> <p>Assumpsit by receiver of fire insurance company to recover assessments. Before E. W. Biddle, P. J.</p> <p>At the trial the plaintiff made the following offer:</p> <p>Mr. Hambleton: We offer the policy sued upon, No. 4151, as identified by the witness as being the original policy issued for the purpose of showing the liability of the defendant, to be followed by other evidence showing the assessment levied under the decree of the court of Dauphin county.</p> <p>Mr. Beltzhoover: Objected to.</p> <p>1. That the policy cannot be offered to show liability of the defendant in this case, because no copy of the contract, to wit: the application, which the defendant made with the company, is attached to it, and the policy refers to that contract, and the policy therefore is incomplete as showing the contract without the copy of application, made at the time, attached thereto.</p> <p>2. The policy itself unaccompanied by the application does not, in any way, show any agreement of the defendant to pay assessments or anything else.</p> <p>3. The policy itself contains on its face a statement of the entire liability under the policy, and the plaintiff’s statement shows that the defendant has already paid more than the policy fixes his liability at, and therefore the policy or the plaintiff’s statement would not show any liability.</p> <p>4. The policy, as offered, refers to other contracts between the parties, which are specifically made a part of the contract of insurance, to wit: in the line where the policy speaks of acknowledged liability to assessments, no acknowledgment on the part of the insured appearing in the policy, and the manner of levy of said assessments and the basis on which they are levied not appearing in the policy; and further, to that part of the policy which reads as follows : “ Reference being had to application of assured, which is made a part hereof,” the application of the assured not being in any manner embodied in the policy. The offer on its face is partial and incomplete.</p> <p>The Court: The policy offered contains this clause : “ Reference being had to application of assured, which is made a part hereof and a warranty on part of the assured.” The application referred to does not accompany the policy, therefore the paper offered is not the whole of the contract between the parties, but only a portion thereof. Under the rules of evidence it consequently cannot be received. The fourth objection is sustained and an exception noted for the plaintiff. [1]</p> <p>Mr. Hambleton : Plaintiff now offers policy No. 4151, issued to George S. Bestline, the defendant, to be followed by evidence showing that a search has been made for the application signed by defendant and upon which this policy was issued, and that the application cannot be found in the offices of the company, and the offer is to further prove the contents of said application by the witness on the stand and the books of the company showing entries made on said application on said books and a copy of the printed form of the application which was in use by the company at the time, and upon which form the application of the defendant was made ; this for the purpose of showing the entire contract entered into by the defendant with the company.</p> <p>Mr. Biddle: We renew the objections to the former offer and add that the application not having been attached to the policy it cannot, under the act of 1881, be offered in evidence, and not being itself admissible in evidence, its contents cannot be proven in the way proposed, nor in any way. Further, the offer does not propose to show that the form which they had in use at that time referred to was in fact used by the defendant, George S. Bestline.</p> <p>The Court: On the face of the policy under the caption “ conditions and limitations of this company,” paragraph 13, is as follows : “ the assured by acceptance of this policy hereby waives the benefit of an act passed May 11, 1881, requiring copy of application to be attached to policy.” After due consideration of the provisions and purposes of said act, we are of opinion that this waiver is invalid, and that the act should be applied in the trial of cases as one founded upon public policy whose provisions cannot be waived by the insured. The first additional objection is sustained and an exception noted for the plaintiff. [2]</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.</p> <p>If the policy, excluding the application and the by-laws when the same have been reduced to writing and a copy of the same not attached to the policy, contains sufficient terms within itself to fix the liability of the insured, the insurer may prove the same, and recover judgment in the absence of a good defense: Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460 ; Norristown Title, etc., Co. v. John Hancock Mut. Life Ins. Co., 132 Pa. 385; Plebb v. Kittanning Insurance Co., 138 Pa. 174; Mahon v. Pacific Ins. Co., 144 Pa. 409; Frederici v. Pa. Mut. Fire Ins. Co., 1 Mona. 493; People’s Fire Ins. Co. v. Hartshorne, 90 Pa. 465.</p> <p>This practice of the company not being regulated by any bylaw, and the basis rate nob having been written in the appliea-tion, the proof of the same was not governed by the provisions of the act of 1881: Lenox v. Ins. Co., 165 Pa. 575.</p> <p>The authorities in support of the rulings of the court below are clear and conclusive : Connell v. Metropolitan Life Ins. Co., 16 Pa. Superior Ct. 520 ; Imperial Fire Ins. Co. v. Dun-ham, 117 Pa. 460; New Era Life Assn. v. Musser, 120 Pa. 384 ; Norristown Title, etc., Co. v. Ins. Co., 132 Pa. 385; Hebb v. Ins. Co., 138 Pa. 174; Mahon v. Ins. Co., 144 Pa. 409; Lenox v. Ins. Co., 165 Pa. 575 ; Morris v. State Mut. Life Assurance Co., 183 Pa. 563; Ins. Co. v. Oberholtzer, 172 Pa. 223.</p>

Appeal, No. 33, March T., 1903, by plaintiff, from judgment of C. P. Adams Co., Nov. T., 1901, No. 37, on verdict for defendant in case of John D. Keith, Trustee of Harry S. Cashman, Bankrupt, v. Gettysburg National Bank. Assumpsit by a trustee in bankruptcy to recover money alleged to have been paid as a preference. Before Swope, P. J. The facts are stated in the opinion of the Superior Court. The court gave binding instructions for defendant.

Appeal, No. 1, March T., 1903, by defendant, from judgment of C. P. Dauphin Co., March T., 1900, No. 352, on case stated in suit of Commonwealth Building and Loan Association v. C. H. Steele and. Gebhard Laufle. Assumpsit on a contract of suretyship. Before SlMONton, P. J. The case was tried by the court without a jury by agreement of the parties under the act of April 22, 1874. The court entered judgment for plaintiff for $1,000. Defendant appealed.

Affidavit of defense — Practice, C. P. — Set-off. In an action to recover the price of paper sold to the publisher of a newspaper, an affidavit of defense is insufficient which states a set-off of an amount named as an item of damage, and avers that the loss was due to the failure of the plaintiff to ship paper according to contract, whereby the defendant was unable to get his newspaper out in time to supply his subscribers, and was forced to borrow paper and-make new…

<p>Appeal, No. 11, March T., 1903, by Philadelphia Clay Manufacturing Company, froth order of Q. S., Cumberland County, dismissing exceptions to report of viewers in case of Dickinson Township Road.</p> <p>Petition for appointment of viewers.</p> <p>From the record it appeared that the petition when filed was not accompanied with a certificate of counsel as to its regularity and legality, as provided by the rules of court. The court subsequently permitted che certificate to he filed nunc pro tunc. The viewers reported in favor of the road. Exceptions were dismissed in an opinion by E. W. Biddle, P. J., in which he held that the Act of April 4, 1901, P. L. 65, was constitutional.</p> <p>Errors assigned were in dismissing exceptions to the report of viewers, and in permitting the amendment of the record.</p> <p>The certificate was necessary to confer jurisdiction on the court and it was therefore powerless to permit an amendment of the pleadings : Dinsmore & Auburn, 26 N. H. 356; Cherry Tree Twp. Road, 10 Pa. C. C. Rep. 389.</p> <p>An insufficient affidavit in foreign attachment cannot be amended: Shumway v. Webster, 24 W. N. C. 336; Jacobs v. Tiehenor, 27 W. N. C. 35.</p> <p>Nor can the bond in such proceedings be amended: Columbia Fire Ins. Co. v. Bolton, 2 Pear. 222; Spettigue v. Hutton, 9 Pa. C. C. Rep. 156; State Line, etc., R. R. Co.’s App., 77 Pa. 429; Pottstown Boro., 117 Pa. 538; Com. v. Samuels, 163 Pa. 283; Beckert v. Allegheny, 85 Pa. 191; Easton v. Potter Co., 7 Pa. Dist. Rep. 189.</p> <p>The act of 1901 involves the taking of private property for private purposes: Edgewood R. R. Co.’s App., 79 Pa. 257.</p> <p>The exercise of the liberal discretion accorded to'every court in construing and enforcing its own rules is not controllable except for clear abuse: Peck’s Appeal, 11W. N. C. 31; Lance v. Bonnell, 105 Pa. 46.</p> <p>All that is required of a title to an act is, that it fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into its body: Allegheny’s County Home’s Appeal, 77 Pa. 77.</p> <p>It is certainly settled that the act of June 13,1836, so far as it relates to private roads, is constitutional; Pocopson Road, 16 Pa. 15; Palairet’s Appeal, 67 Pa. 479.</p>

Appeal, No. 32, March T., 1903, by Charles E. Moore, assignee for benefit of creditors of George Brindle, from order of C. P. Cumberland Co., May T\, 1902, Nos. 17 and 18, discharging rule to set aside execution in case of Joseph E. Musser v. George Brindle. Rule to set aside execution. The opinion of the Superior Court states the case. Error assigned was the order of the court.

Appeal, No. 73, Jan. T., 1903, by plaintiff, from order of C. P. Luzerne Co., Jan. T., 1903, No. 128, refusing alternative writ of mandamus in case of Richard T. Edwards v. George R. McLean. Demurrer to petition for mandamus. Before Halsey, J. The opinion of the Superior Court states the case. Error assigned was order sustaining demurrer to petition.

<p>Evidence — Parol evidence — Affidavit of defense — Contract.</p> <p>In an action to recover the price of a boiler sold and delivered, the plaintiff set up a written agreement by which the boiler was to be delivered f. o. b. cars at place of plainliff’s business within thirty days of receipt of acceptance of order. The contract also provided that “ there are no understandings or agreements outside of this written contract and the acceptance of the machinery when delivered is understood to constitute a waiver of all claims or damages by reason of any delay.” The defendant’s affidavit of defense admitted the delivery of the boiler and acceptance thereof, but averred that there was a contemporaneous oral agreement that it was to be delivered at the defendant’s place of business within thirty days after the acceptance of the offer, that time should be of the essence of the contract, that the boiler was not delivered within the time specified and defendant sustained damages exceeding the price of the boiler. There was no averment that the oral agreement had been omitted from the written one by fraud, accident or mistake. Held, that the affidavit of defense was insufficient to prevent judgment.</p>

<p>Appeal, No. 20, April T., 1903,</p> <p>by judgment of C. P. No. 1, Allegheny Co., Dec. T., 1901, No. 667, on verdict for plaintiff in case of Barbara Carson v. Henry Mackin.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial it appeared that on the evening of October 4, 1901, plaintiff fell through a defective cellar door in the sidewalk in front of defendant’s premises on Lacock street, Alle- . gheny. The condition of the door is described in the opinion of the Superior Court. The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $11,000.</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 100,- April T., 1903, by defendant, from judgment of Q. S., Westmoreland County, August T., 1902, No. 99, on verdict of guilty in case of Commonwealth v. Samuel Mock et al. Indictment for maintaining a nuisance.

<p>Legal holidays — Holidays—Justice of the peace — Appeals.</p> <p>The fact that Labor Day is one of the clays designated in the Act of June 23, 1897, P. L. 188, as a holiday for certain purposes, is not sufficient to exclude it from the count in determining when the time for an appeal from a judgment of a justice of the peace expires.</p> <p>Justice of the peace — Appeals—Nunepro tune — Lack of diligence.</p> <p>IE without fault of his, a party desiring to appeal from a judgment of a justice of the peace is prevented from doing so by the act of the latter, an appeal may be allowed nunc pro tunc, if asked for in a reasonable time, but if the court finds on sufficient evidence that the failure to enter the appeal in time was due to the party's lack of diligence, the appellate court will not interfere.</p>

Appeal, No. 121, April T., 1903, by plaintiff,'from order of C. P.-No. 1, Allegheny Co., June T., 1903, discharging rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Pressley N. Cavett and now for use of Joseph Crown v. William L. Cavett and George E. Painter. Assumpsit on a bond. The court discharged a rule for judgment for want of a sufficient affidavit of defense. Error assigned was the order of the court.

Appeal, No. 34, April T., 1903, by defendant, from judgment of C. P., Fayette County, Sept. T., 1898, No. 365, on verdict for plaintiff in case of Byron Porter v. A. C. Duncan. Appeal from justice of the peace. Before Bell, P. J., specially presiding.

Appeal, No. 125, April T., 1903, by defendant, from order of C. P. Lawrence Co., March T., 1903, No. 137, discharging rule to strike off judgment in case of National Bank of Lawrence County to use of H. Gf. Kimmich v. William H. Gray. Rule to strike off judgment. The opinion of the Superior Court states the case. Error assigned was order discharging the rule.

Appeal, No. 126, April T., 1903, by defendant, from judgment of G. P. Lawrence Co., Dec. T., 1898, No. 1, on verdict for plaintiff in case of Henrietta D. Leonard v. Nicholas Y. Leslie and James A. Slack. Issue to determine the title to real estate. Before Rayburn, P. J., specially presiding. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff. Defendant appealed. Error assigned was in giving binding instructions for plaintiff.

<p>Appeal, No. 8, Oct. T., 1903,</p> <p>by Charles Shuman, from judgment of Q. S. Northampton Co., Sept. T., 1902, No. 51, imposing costs on prosecutor, in case of Commonwealth v. Thomas A. Kocher.</p> <p>Indictment for keeping a disorderly house. Before Scott, J.</p> <p>At the trial the jury returned a verdict of not guilty, and imposed one tenth of the costs on the defendant, and nine tenths of the costs on Charles Shuman as prosecutor. On a rule to show cause why Shuman should not be relieved from payment of the costs, Scott, J., filed an opinion in which he said :</p> <p>I instructed the jury that if the defendant was acquitted, costs should not be put upon the prosecutor unless they found he was inspired by personal reasons. I did not withdraw it from consideration and was not asked to do so because there was evidence to support such a contention. The prosecutor avowed himself when called as a witness, but not before. He paid $50.00 for the services of a detective who made the complaint and whose name was indorsed upon the indictment in his stead. He did not live in the country neighborhood where the defendant was charged with keeping a disorderly house but in a town four miles away and therefore had no grievance of his own against it. His wife held a mortgage of $4,000 on a rival hotel, one fourth of a mile distant. That mortgage is now recently due and unpaid, and there is some interest in arrear. Conviction of the defendant required forfeiture of the license, and his retirement from a business which, under the methods by which it was conducted, threatened the value of the neighboring house, by alluring through forbidden temptations of public favor. Persons had communicated to the prosecutor the commission of unlawful acts, but he had no personal knowledge of the facts, and if they had it no detective would have been wanted. They did not request him to have complaints made. The jury were therefore required to say that he was actuated solely by his regard for the morals and good order of the general public in the community where he did not live, nor own property, for whom he was willing to spend 150.00 to secure evidence, and employ counsel besides, when those who might actually be disturbed if disorder existed did not stir into activity. Credat Judseus Apella. Non ego.</p> <p>The court discharged the rule.</p> <p>Error assigned was the order of the court.</p> <p>-Where the prosecution is not “trifling,” but one of grave character; where it is not “ unfounded,” but founded upon probable cause existing at the time it was commenced, but afterwards fails by the death of material witnesses, and where there is no evidence of malice in the prosecution, it is the duty of the court to set aside the verdict against the prosecutor for costs: Guffy v. Commonwealth, 2 Grant, 66; Commonwealth v. Bain, 2 Lane. L. Rev. 376; 1 Pa. C. C. Rep. 25; Commonwealth v. Mundis, 2 Chest. Co. R. 381; Commonwealth v. Farrell, 2 Chest. Co. R. 381; Connolly v. Lackawanna Co., 1 Pa. C. C. Rep. 26; Commonwealth v. Weaver, 2 Pa. C. C. Rep. 455; Com. v. Doyle, 16 Pa. Superior Ct. 171.</p> <p>The reports are full of cases where, in a plain case of abuse of discretion, such abuse is assignable for error, and that the court will reverse in case of absence of discretion: DeGrote v. DeGrote, 175 Pa. 50; McNeile v. Cridland, 6 Pa. Superior Ct. 428; Com. v. Craig, 19 Pa. Superior Ct. 81; Ulysses Elgin Butter Co. v. Haxtford Fire Ins. Co., 20 Pa. Superior Ct. 384.</p>

<p>Constitutional law — Statutes—Title of statute — Executions.</p> <p>The Act of May 24, 1878, P. L. 134, entitled “A further supplement to an act entitled ‘ An act relating to executions,’ approved June 16,1836, providing that the justice of the peace, alderman or magistrate shall act where two are now required,” is defective in title and unconstitutional as to the second section, inasmuch as none of the provisions of section 2 amending sec. 107 of the act of June 16, 1836, are indicated in the title of the amending act.</p> <p>Execution — Proceedings to obtain possession after sheriff's sale.</p> <p>The absence in a petition in proceedings under the act of June 16,1836, to secure possession of real estate after sheriff’s sale of an averment that the respondent was in possession by title derived from the defendant in the execution subsequently to the judgment on which the land was sold, is no ground for exception. The petition is sufficient if it sets forth that the person in possession “isW., who came into possession thereof under J., the defendant in the execution under which the land was sold.”</p>

<p>Practice, C. P. — Trespass—Sending statement out with jury — Assignment of error.</p> <p>It is not good practice in an action of tort to send a statement of any kind with the jury, particularly in a case where the evidence is conflicting, and where the claim for damages is simple and easily kept in mind by the jury.</p> <p>Where in an action of trespass a statement is sent out to the jury, but no exception is taken at the time, and no request is made at the time that the statement be placed upon the stenographer’s notes, and although such a request and exception were made afterwards and allowed, the statement in fact is not placed upon the notes, and never became part of the record, no assignment of error can be based upon the action of the court in permitting the statement to be sent out with the jury.</p> <p>Trespass — Damages to land — Evidence.</p> <p>In an action of trespass to recover damages for injuries to land, the measure of damages is the cost of remedying the injury, unless such cost exceeds the value of the property injured in which case the value of the property becomes the measure of damages. It is not therefore improper to admit evidence as to the value of the land so that the jury may not return a verdict in excess thereof.</p> <p>Trespass — Injury to land — Ganal—Duty to landowner.</p> <p>Where land is being injured by a break in a canal, it is the duty of the landowner to use all reasonable care, skill and diligence adapted to the occasion to remedy and arrest the injury, but it is not his duty to construct a ditch which will cost more than the value of the land, inasmuch as the landowner can recover no more than the value of the land in any event, and is not bound to expend more in preventing the injury than he could recover from the canal company,</p> <p>Practice, C. P. — Trial—Points.</p> <p>Points which misconceive the evidence, ignore the testimony and assume as facts matters which are contradicted, are properly refused.</p> <p>Canal companies — Duty as to construction and maintenance of banks.</p> <p>In the erection, construction and maintenance of its banks, a canal company is not an insurer against percolations and seepage of water through the ground through which and on which it is erected, and such percolations must be shown to be the result of gross negligence of defendant company and not due to the ordinary and natural seepage of the land through which and out of which the canal is built.</p>

<p>Insurance — Fire insurance — Service of process — Jurisdiction—Action.</p> <p>An owner of a policy of fire insurance may bring his action for the recovery of a loss against the insurance company in any county in the commonwealth in which he can secure such a service as will bring the defendant legally into court, irrespective of the location of the property destroyed.</p> <p>Practice, G. P. — Appearance—Affidavit of defense — Service of process.</p> <p>Where a person describing himself as the attorney of a fire insurance company which is a party defendant, makes a full and elaborate affidavit of defense invoking every form of legal defense, except irregularity of service of summons, the company cannot afterwards allege that an appearance filed by such person was an appearance de bene esse for the purpose of having the servicéof the summons set aside.</p> <p>Pleading — Inconsistent pleas — Plea in abatement — Plea in bar.</p> <p>A plea in abatement cannot be pleaded at the same time with a plea in bar. When they are filed together the plea in abatement will be stricken off.</p> <p>Insurance — Fire insurance — Proofs of loss — Waiver.</p> <p>Where a person alleged to be the general ágent of a fire insurance company is served with a paper purporting tobe a proof of total loss, and the paper is transmitted to the company, and thereafter an adjuster from the company proceeds to adjust the loss, but stops the adjustment on the ground that'lie had discovered a transfer of title by the insured, the question whether the company has waived more complete proofs of loss, is for the jury.</p> <p>Insurance — Fire insurance — Mortgage—Notice of change of title.</p> <p>A mortgagee holding fire insurance policies on the mortgaged premises is not affected by a failure of the mortgagor, the insured, to give'notice to the insurance company thathas transferred the premises to his wife. The mortgagee can only be called upon to give such notice after acquiring knowledge of the fact of change. Such notice may be given by the mortgagee in the proof of loss.</p> <p>Evidence — Production of books in custody of court.</p> <p>Where depositions are taken in a distant city, and witnesses are permitted to refresh their memory from books in the custody of the United States circuit court, and the party on the other side does not avail himself of the opportunity of being present and cross-examining the witnesses from the books, he has no standing to complain of the nonproduction of the books at the trial.</p>

<p>Appeal, No. 24, Jan. T., 1903, by defendant, from decree of C. P. Monroe Co., May T., 1901, No. 15, on bill in equity in case of F. W. Coolbaugb et al., trading as the Delaware Valley Construction Company, v. Jesse Ransberry.</p> <p>Bill in equity for specific performance.</p> <p>Craig, P. J., found the facts to be as follows :</p> <p>1. Catharine M. Mcllheney, late of the borough of Stroudsburg, Monroe county, Pennsylvania, died on March 22, 1899, testate, and, in her last will and testament, nominated and appointed two of her daughters, Mary Ellen and S. Augusta Mcllheney, executrixes of her will.</p> <p>2. The said Catharine M. Mcllheney, at and before the time of her decease, was seized of and in a certain farm, situate in the township of Smithfield, county of Monr.oe, and state of Pennsylvania, and bounded by the lands of George B. Brotzman, Weller & Fine, Jacob Kaul and John Marsh. This farm is known as the “ Comstock farm,” and contains 160 acres and 143 perches.</p> <p>3. On August 13, 1900, the executrixes, above named, representing and claiming to bind all the heirs of said Catharine M. Mcllheney, deceased, entered into a written agreement with the complainants, through their agent, T. A. Allen, agreeing to grant and convey to the said company, in fee simple and free from all incumbrances, a strip of land through the said farm, extending from the line of land of George B. Brotzman to the line of land of Charles Kaul, twenty feet on each side of the center line of the railroad, as now located, after the payment to them of the sum of 150.00, within four and one half months from the date of the said agreement.' This agreement was not recorded.</p> <p>4. Afterwards Mrs. Ellen Mudgett and S. Augusta Mcllheney, claiming to be the attorneys in fact for the heirs of Catharine M. Mcllheney, deceased, sold the said farm to Jesse Ransberry, of.the borough of east Stroudsburg, county of Monroe, and state of Pennsylvania, the defendant, and executed a deed in fee simple therefor to him, dated September 15, 1900, which deed is recorded in the office for recording of deeds, at Stroudsburg, in and for the county of Monroe, in deed book, vol. 53, p. 320, etc. This deed had a stipulation or reservation in it that the defendant was not to have possession of the land conveyed until April 1, 1901.</p> <p>The deed above referred to although dated September 15, 1900, was not executed and delivered to the defendant, nor the consideration therefor paid, until on or about September 25, 1900, — ten days or two weeks after its date. This last named deed was the fulfilment or consummation of the agreement in writing between Mrs. Ellen Mudgett and S. Augusta Mcllheney, attorneys in fact for the heirs of Catharine M. Mcllheney, and the defendant, dated September 15, 1900, providing for the sale and conveyance of the same land and premises described in the deed. This agreement was not recorded. It provides that on the payment by the defendant of $3,300, a full and satisfactory deed will be delivered, on or before September 25, 1900, and possession thereof given, on or before April 1, 1901.</p> <p>5. From the preponderance of the evidence, we find that the defendant had notice of the original contract for the sale of the land and premises mentioned and described in the bill, between the executrixes of Catharine M. Mcllheney, deceased, and the Delaware Valley Construction Company, dated August 13, 1900, both at the time of the making of the agreement between himself and Mrs. Ellen Mudgett and S. Augusta Mcllheney, attorneys in fact for the heirs of Catharine M. Mcllheney, on September 15, 1900, and on or about September 25, 1900, when he received the delivery of the deed in pursuance of the last mentioned agreement, and when the full consideration thereof was paid.</p> <p>That the notice above referred to was given to the defendant before the delivery of the deed and the payment of the consideration therefor, appears plainly and convincingly from testimony of Harvey Huffman and W. B. Eilenberger, whose firm, as attorneys, represented the Mcllheney heirs, and John Springer, their stenographer - and typewriter. And, as we read the testimony of the defendant himself, he was aware of the option or agreement of August 13, 1900, between the executrixes of Catharine M. Mcllheney and the plaintiffs. This appears, according to our judgment, on pages 40, 41, 42, 43, 45, 46, 47, 49, 50, 51 and 52 of his testimony. On page 43, this question is put to the defendant: “ Did Mr. Huffman call your attention to any option at the time of the execution of this written agreement ? ” and he answered: That was the first time it was brought up. That was the time I told him. I asked him about it.” Again, on page 52 of the defendant’s testimony, the following occurs: “ Q. You knew that I understood there was an agreement? A. Yes, sir. Q. When did I tell you that ? A. I think you told me that the same day we signed the agreement.”</p> <p>Referring now to the answer of the defendant, at pages 4 and 5, we find that he had full knowledge of the survey location of the route of the plaintiff’s railroad at the time he was negotiating for the Mcllheney or Comstock farm. This is his statement: “ That pending the negotiations leading up to my purchase of said farm, I call the attention of the above-named Harvey Huffman, Esq., representing the owners of said farm, to the survey location across the premises of a railroad route by the Delaware Railroad Company, stating it as my determination not to deal for the property at the risk of having to meet the annoyances of the construction and operation of a railway upon it. . . . Afterwards, to wit: on September 15 last, I met the above-named representatives of the owners of the premises, for the purpose of perfecting title to me, at which time the subject of the projected railroad route over the property was again discussed between the said Harvey Huffman and myself, in its relation to my objection to dealing for the property at all on the chances of having the said railway company occupy its surveyed line of r<^K” etc.</p> <p>This knowledge the defendant; Hpeated in his testimony, at page 41. He says : “ Q. What ^pversation, if any, between Mr. Huffman and yourself about 'the railroad survey, or any option ? A. I called his attention to it and asked him what about that survey. I understood that they had options on a good many places, and I told him that I would not want to buy a farm and have a railroad go through it, and be annoyed with it all the time, and he led me to believe, or told me, that I need not worry about that as he was on the inside and knew that there would be no railroad built there now, unless they got some other people in it.” At page 51 of the testimony of the defendant he says : “ Q. Didn’t I tell you there was an agreement on the land? A. You understood there was an agree* ment, yes, sir.” And on page 52 he says: “ Q. When did I tell you that? A. I think you told me that the same day we signed the agreement.” Also at page 19 he testified as follows : “Q. You had been on the farm? A. Yes, sir, lots of times. Q. You had seen the width of the embankment made there ? A. Yes, sir. Q. You had to cross it to get to the farm proper? A. Yes, sir. Q. Many times? A. Not so many. Q. You had been up and down the embankment? A. Yes, sir. Q. The grading was done ? A. The top of the survey is only about eight or ten feet wide.”</p> <p>At the argument it was stated by defendant’s counsel that the embankment had been made a long time before by another party, bht whether this is so we cannot tell, as the evidence does not bring this out. If the embankment had been built, in pursuance of a survey and proper location by the plaintiffs, it would be a very material circumstance. However, the survey location, to which the defendant testified, was made by the plaintiffs, and therefore we make our finding irrespective of the embankment referred to, and only take into consideration the survey location made by the plaintiffs. This survey location, the defendant admits, on page 4 of his answer, was known to him at the time of the negotiations. And the agreement of August 13,1900, gives the plaintiffs the right of possession to survey, lay out and prepare their railroad for construction purposes.</p> <p>Hence, we are brought to the finding that, at the time of the negotiations for the Mcllheney or Comstock farm, the defendant had full notice of the existence of an agreement or option, between the Mcllheney heirs and the plaintiffs for the right of way described in the bill.</p> <p>6. That Harvey Huffman, Esq., of the firm of Eilenberger & Huffman, in behalf of the complainants, either on December 27 or 28,1900, tendered to the defendant the sum of 150.00 in legal tender of the United States of America, and demanded of the defendant a deed to the complainants, and that the defendant refused to accept the said $50.00 and refused to execute the deed as demanded, and still declines to accept the said sum, and refuses to execute a deed as provided in the said agreement. The $50.00 tendered has been paid in court, and the prothonotary holds that amount for the use of the defendant.</p> <p>7. The defendant is still owner of the farm referred to in the bill.</p> <p>8. According to the facts as we have found them, the complainants are without an adequate remedy at law.</p> <p>The court entered a decree for specific performance.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 20, Feb. T., 1903, by defendant, from judgment of Q. S. Tioga Co., Sept. T., 1902, No. 4, on verdict of guilty in case of Commonwealth v. John M. Hall. Indictment for forgery. Before Niles P. J. The opinion of the Superior Court states the ease. Verdict of guilty upon which judgment of sentence was passed. Errors assigned among others were (1) in refusing to quash the indictment; (13-17) portions of charge, quoted in the opinion of the Superior Court.

<p>Appeal, No. 24, April T., 1903, by defendant, from order of G. P. No. 2, Allegheny Co., April T., 1899, No. 156. Making absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel Hazlett to use of L. McCarrelland S. Hazlett Jr., Assignees for Creditors of Samuel Hazlett, v. W. C. Stillwagen.</p> <p>Assumpsit on a promissory note.</p> <p>From the record it appeared that the action was brought on a promissory note for $252.83, dated April 22,1890. Suit was begun in 1899. On October 25, 1895, the attorneys for S. Hazlett wrote to defendant asking him for payment of the note. On November 7, 1895, defendant wrote to the attorneys the following letter:</p> <p>“ Boyd & E. E. Crumrine :</p> <p>“ Dear Sirs: I delayed answering yours of October 25th, in the hope that I might be able to send you a substantial payment upon thé S. Hazlett account, but find it impossible at this time to do so. There are some unfinished matters from which I hope to realize considerable money within the next ninety days, but this of course will not meet your present demands. In the event of your client being willing to wait until that time, however, I feel justified in saying that I will be able to at least reduce the claim. More than this, I cannot promise from anything now in sight.”</p> <p>Defendant filed an affidavit of defense setting up that the debt was barred by the statute of limitations.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p> <p>the acknowledgment or admission must be a clear and unambiguous recognition of an existing debt, and so distinct and expressive as to preclude hesitation as to the debtor’s meaning, and as to the particular debt to which it applies, and must be consistent with a promise to pay: Miller v. Baschore, 83 Pa. 356; Lawson v. McCartney, 104 Pa. 356 ; Kensington Bank v. Patton, 14 Pa. 479; Keener v. Zartman, 144 Pa. 179; Lowrey v. Robinson, 141 Pa. 189.</p> <p>The new promise, whether express or to be implied from an acknowledgment, must plainly identify the particular debt: Ulrich v. Getz, 9 Pa. Superior Ct. 289; Hancock v. Melloy, 189 Pa. 569.</p> <p>So there must be, in the new promise, whether expressed or implied, a specification of the amount clue, or a reference to something by which such amount may be definitely and certainly ascertained, and so precise and distinct in its extent and form as to preclude hesitation: Hazlebacker v. Reeves, 9 Pa. 258; Davis v. Steiner, 14 Pa. 279.</p> <p>It has been repeatedly held that from a clear, distinct and unequivocal acknowledgment, a promise may be inferred, if that acknowledgment is consistent with a promise: Bolton v. King, 105 Pa. 78; Palmer v. Gillespie, 95 Pa. 340; Wesnerv. Stein, 97 Pa. 322; Lawson v. McCartney, 104 Pa. 356.</p> <p>The effect of the statute of limitations is waived by a clear and distinct acknowledgment of the existence of the debt as a subsisting obligation, unaccompanied by any conditions or qualifications inconsistent with an absolute promise to pay it, not at any specified time in the future, but generally or on demand. A promise may be inferred, if that acknowledgment is consistent with a promise: Burr v. Burr, 26 Pa. 284; Souder’s Estate, 169 Pa. 239; Wright v. Jordan, 181 Pa. 100; Nissley v. Brubaker, 192 Pa. 388.</p>

<p>Appeal, No. 27, March T., 1903, by defendants, from judgment, of C. P. Dauphin Co., Jan. T., 1902, No. 421, on case tried by the court without a jury in suit of Harmon L. Nissley v. Edward Moeslein and John Vallerchamp.</p> <p>Ejectment for land in Susquehanna township.</p> <p>The case was tried by Weiss, J., by agreement of the parties without a jury.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>JSrror assigned was in entering judgment for plaintiff on case tried by court without a jury.</p> <p>The release is to be most strongly construed against the releasor : Am. Surety Co. v. Pauly, 170 U. S. 133 (18 Sup. Ct. Rep. 552) ; Wallace v. Ins. Co., 51 Fed. Repr. 742, 744; Wilson v. Cooper, 95 Fed. Repr. 625, 628; Western Ins. Co. v. Cropper, 82 Pa. 851, 355 ; Buckley v. Garrett, 47 Pa. 204, 209 ; Smith v. Ins. Co., 103 Pa. 177 ; Noonan v. Bradley, 9 Wall. 394.</p> <p>It is well settled that, of all elements of description, quantity is the least reliable; after quantity, courses and distances, and between courses and distances the latter are less reliable than the former: Ayers v. Watson, 113 U. S. 594, 608 (5 Sup. Ct. Rep. 641) ; Green v. Schrack, 16 Pa. Superior Ct. 26 ; Blasdell v. Bissell, 6 Pa. 258 ; Cox v. Couch, 8 Pa. 147; Petts v. Gaw, 15 Pa. 218; Lodge v. Barnett, 46 Pa. 477 ; Caldwell v. Holler, 40 Pa. 160 ; Quinn v. Heart, 43 Pa. 337; Ake v. Mason, 101 Pa. 17; Medara v. DuBois, 187 Pa. 431: Airey v. ICunle, 7 Pa. Superior Ct. 112: Salmon Creek Lumber, etc., Co. v. Dusenbury, 110 Pa. 446.</p> <p>It is admissible, in locating a line, where a difficulty exists in identiiiying monuments, natural or artificial, to run the line in a reverse way, if thereby doubts may be the better solved. “ The footsteps of the original surveyor may be traced backwards as well as forward: ” Ayers v. Watson, 137 U. S. 584, 500 (11 Sup. Ct. Rep. 201) ; Coal Co. v. Doran, 142 U. S. 417 (12 Sup. Ct. Rep. 230.)</p> <p>So any ascertained monument may be adopted as a starting point, where difficulty exists in ascertaining the lines of a survey as actually run: Ayers v. Watson, 137 U. S. 584 (11 Sup. Ct. Rep. 201); Belding v. Hebard, 103 Fed. Repr. 532.</p> <p>The well-known rule that monuments or calls in the description in a deed will usually control courses and distances is not a cast-iroai or inflexible rule of construction; and when the deed bears internal evidence that the recognitioai of the ordinarily inferior element of description will best carry out the intention of the parties, the first-named rule will give way; and the courses and distances will govern or control the monuments: Davis v. Rainsford, 17 Mass. 207; Higinbotham v. Stoddard, 72 N. Y. 94; Newhall v. Ireson, 62 Mass. 595; Brolaskey v. McClain, 61 Pa. 146; McClintock v. Rogers, 11 111. 279.</p> <p>A reference to a plan will control metes and bounds which are at variance with the courses and distances of the plan : Ide v. Pearce, 75 Mass. 350; Lincoln v. Wilder, 29 Maine, 169; Whitehead v. Ragan, 106 Mo. 231 (17 S. W. Repr. 307); Jamison v. Fopiano, 48 Mo. 194; Zeibold v. Foster, 118 Mo. 349; Hubbard v. Dusy, 80 Cal. 281 (22 Pac. Repr. 214).</p> <p>Every survey must be commenced at the beginning corner, unless to do so would destroy the grant: Owings v. Freeman, 48 Minn. 483 (51 N. W. Repr. 476).</p> <p>The argument that a reverse measurement from the hickory tree, around the boundary of the farm, should have been resorted to, in order to fix the proper location of Queen street, is fallacious. A measurement in that direction could not stop at the northern line of Queen street, as located upon the plan; and if the line were to be carried on across the farm, the result would, of course, be that the hicjkory tree, made the starting point of the description of the release, would not be found where the division line would then end; and the entire property of the appellee would be widened about 115 feet, along its entire eastern boundary, thus curtailing the quantity of land held by appellants in the eastern end of the farm.</p>

Appeal, No. 46, April T., 1903, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1901, No, 624, on bill in equity in case of M. H. Pickering v, G. G. O’Brien. Bill in equity for an injunction. The court below found the facts to be as follows: FINDINGS OF FACT. 1.

<p>Wills — Gift to widow — Remainder.</p> <p>Testator gave to his widow all the remainder of his estate “ both real and personal, after payment of debts, expenses and specific legacies, to use, occupy and possess as I have done, and am now doing, during her natural life.” He further directed as follows: “ I direct that at the death of my widow, all of my estate real and personal which I have bequeathed to my wife for her use, benefit and profits during her natural life, except what is necessary for her burial and tombstone, be equally divided share and share alike between the following six persons.” Held- that testator did not intend to give his widow a right to consume the principal, and that the remainder-man had a right to demand that the widow should file an account of the estate.</p> <p>Even where there is expressly coupled with a gift to a widow power to consume, sell and dispose of, the general rule that an absolute and unrestricted title is conferred, is not a rule of law, but a'rule of construction in aid of reaching the intent of the testator, and where a different intention is clear, the rule cannot be applied to defeat it.</p>

<p>Judgment — Defective name of plaintiff — Setting aside judgment — Opening judgment — Practice, O. P.</p> <p>Where a judgment was entered by confession on a judgment note made payable to “Treasurer of Division No. 168, A. A. of S. R. E. of A.,” the defendant may take advantage of the insufficiency of the name of the party plaintiff by a motion to set aside the judgment in the nature of a demurrer to the record. If, however, he choses to appeal to the conscience of the chancellor by rule to open the judgment, thereby inviting inquiry into the defense upon the merits, he will be held to have waived the mere irregularity of the procedure.</p> <p>Beneficial associations — Judgment note — Opening judgment.</p> <p>A judgment entered on a judgment note payable to the treasurer of a beneficial association will not be opened on an allegation by the defendant that he applied for benefits to the secretary of the executive committee of the association, and was informed by that officer that he could secure relief by applying to the vice president; that before receiving such benefits it would be necessary for him to sign a paper in the nature of a receipt, but that no demand would be made for the repayment of money so received, and that upon the faith of this representation he signed the note upon which the judgment was rendered.</p>

<p>Corporations — President—Employment of an attorney at law.</p> <p>The president of a corporation has power to employ counsel to defend an action against the corporation, and bind the corporation for reasonable compensation to the attorney.</p> <p>Practice, C. P. — Verdict—Judgment—Remittitur.</p> <p>After a judgment and verdict for plaintiff, the court made the following order: “ And now, May 23, 1902, new trial granted unless the plaintiff within ten days file a stipulation to accept $600 and costs in full satisfaction of his claim in this case, provided it is paid within ten days after notice to defendant or its counsel of the filing of said stipulation. If said stipulation is filed and defendant does not pay the amount of said stipulation and costs within ten days, then judgment to be entered on the verdict as rendered upon payment of the verdict fee.” On June 28, and still within the same term, the court made a second order extending the time for ten days in which to file acceptance of reduction of verdict. Within ten days from the last order plaintiff filed a stipulation releasing all of the verdict in excess of $600, and the defendant declined to pay that sum, and thereupon judgment was entered on the verdict for $800. Held, that the judgment should be sustained.</p>

<p>Contract — Evidence—Necessaries.</p> <p>A judgment and verdict for plaintiff for goods sold and delivered will be sustained, where the evidence, although conflicting, tends to show that the goods sold by the plaintiff and delivered to the wife and minor children of the defendant were sold and delivered on the credit of the defendant, that they were delivered at the home of defendant, and his wife and children, and there used, that the articles were such as were necessary and proper for a family like that of the defendant, and that defendant must have known of the plaintiff’s account for the goods in question.</p>

<p>Appeal, No. 22, April T., 1903, by Priscilla Rumbaugh, from decree of O. C. Westmoreland Co., Aug. T., 1901, No. 35, overruling exceptions to auditor’s report, in estate of Samuel Allsliouse, deceased.</p> <p>Exceptions to report of auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed exceptions to auditor’s report.</p> <p>Error assigned was decree of the court.</p> <p>By the reservation of the coal “ with the usual mining privileges,” the testator in the case must have meant something more than the mining rights incident to a reservation of the coal alone; he must have meant the additional fundamental and essential right required and granted practically without exception, in like cases, i. e., the ordinary and usual mining right to mine and remove all the coal without liability for damages: Scranton v. Phillips, 94 Pa. 15.</p> <p>This intention shall govern in the construction of a will, except, in the special cases, where overruled by the law, the present case not being within any of the exceptions: Findlay v. Riddle, 8 Binney, 189.</p> <p>It is settled by abundant authority that the circumstances surrounding a testator at the time he makes his will may be considered in construing it: MacConnell v. Wright, 150 Pa. 275; Hays v. Leonard, 155 Pa. 474; Postlethwaite’s App., 68 Pa. 477; Follweiler’s App., 102 Pa. 581; Barnhart v. Riddle, 29 Pa. 92.</p> <p>The word “ usual ” is defined “ according to general practice ; conforming to common usage:” Anderson’s Dictionary of Law; Carter v. Phila. Coal Co., 77 Pa. 286.</p> <p>Support is part and parcel of an estate in the surface of lands; it is of common right and hence must pass, if at all, by express grant and is not to be defeated by mere implication arising from language that does not import such an effect: Jones v. Wagner, 66 Pa. 429; Coleman v. Chadwick, 80 Pa. 81; Carlin v. Chappel, 101 Pa. 348; Williams v. Hay, 120 Pa. 485.</p> <p>While it is true that effect iij to be given to the intent of the testator expressed in his will, provided that such intent is consistent with the rules of law, yet it has been uniformly held that in expounding a will the question is not what the testator meant.but what is the meaning of his words: Weidman’s Appeal, 42 Legal Int. 338; Sponsler's Appeal, 107 Pa. 95; Hancock’s Appeal, 112 Pa. 532; Bruckman’s Estate, 195 Pa. 363; Wusthoff v. Dracourt, 3 Watts, 240; Thompson v. Kaufman, 9 Pa. Superior Ct. 305.</p>

<p>Appeal, No. 123, April T., 1903, by plaintiff, from judgment of C. P. Butler Co., May T., 1903, No. 85, for defendant on case stated in suit of George C. Jolmston, Receiver of Odd Follows Association of Pennsylvania, v. C. E. Anderson.</p> <p>Case stated to determine liability for assessments.</p> <p>Galbreth, P. J., filed the following opinion:</p> <p>The plaintiff in this case is the receiver, duly appointed, of the Odd Fellows Endowment Association of Pennsylvania, an unincorporated association organized of members of various lodges of the Independent Order of Odd Fellows in the state of Pennsylvania, for the purpose of paying benefits on the death of the members of said association to their beneficiaries, and not for profit. The defendant was, for many years, a member of this association. Section 1 of article 1 of the laws and regulations of said association set forth that “ its object shall be the creation and perpetuation of a fund for the relief of the widows and orphans of its members in such a manner as may be prescribed by its laws.”</p> <p>The nature of the mutual obligations and relations existing between the association and its members grows out of the application for membership and the rules and regulations of the association. When the defendant entered the association he signed an application, in which the following clause appears as part of the contract between himself and the association, viz:</p> <p>“ And it is hereby expressly stipulated and agreed that the above application and this declaration shall form the basis of the contract between the above named applicant and the said Odd Fellows Endowment Association of Pennsylvania: . . . . That if any violation of the conditions of the certificate of membership issued upon his application shall occur, or if there shall be any omission or neglect to pay any of the assessments, on or before the days on which said assessments shall fall due, then the certificate of membership which may have been issued upon this application shall become null and void, and all moneys which shall have been paid shall be forfeited to said Odd Fellows Endowment Association, for its sole use and benefit, except when said membership shall be revived, under the provisions of its laws and regulations.”</p> <p>“ It is understood and agreed that I am required to pay the sum of $2.00 into the treasury of the association for each assessment that may be ordered by the board of managers. Upon my failure to pay the above assessment within twenty days after the date of issue, my certificate shall be null and void and all liabilities of the said association to me and my liability to it shall cease.”</p> <p>In section 2, article 8 of the by-laws of the association, it is provided, inter alia, “ if said assessment shall not be paid within twenty days from the date of the notice, by any member, such member shall be deemed in arrears and not beneficial, and his beneficiary shall not be entitled to benefits,” and in section 3 of the same article it is provided, inter alia, as follows: “ Any member of the association who shall fail to pay his assessments within the above prescribed twenty days from date of notice, forfeits his membership, and all moneys he may previously have paid to the association and all rights to funeral benefits in this association, and his name shall be stricken from the roll of members.”</p> <p>The notice of assessment is as follows : “ In consequence of the death of the following named brother, you are required to pay $ into the treasury of this association within twenty days of the date hereof, failing to do so you forfeit all claims for benefits in this association.”</p> <p>In article 6, section 4, it is provided that “ the board of managers shall have power to make assessments upon the members of this association whenever the funds in the treasury shall require the same, which assessment must be paid by the members within twenty days from the date of the notice. Provided, no assessment be made when the funds in the treasury exceed the sum of $5,000.”</p> <p>The defendant in this case had been a member and paid his dues regularly for a period of about twenty-three years.</p> <p>On September 14,1900, and at various other times up to and including January 18,1901, the board of managers made assessments aggregating forty-three in all. On January 2, 1901, notices of ten of these assessments were sent out to the members, one of which notices was received by the defendant, but neither these nor any of the said forty-three assessments was paid by him. On January 15, 1901, the said association, at its annual meeting, resolved to dissolve, and cease doing business, “ and to take all necessary legal steps that may be required to liquidate, in so far as possible, all liabilities of the association and its members, arising from its voluntary organization as an unincorporating beneficial society.” And on January 23,1901, a decree of dissolution of the association was duly made by the common pleas court No. 2, of Allegheny county, sitting in equity, and on June 4, 1901, the receiver was duly appointed. Under the rules and regulations of said association.the defendant was a member thereof up to January 22,1901, being twenty days after the notice of January 2, and one day prior to the decree of dissolution.</p> <p>On part of plaintiff it is contended that, although the defendant forfeited his membership by his failure to pay the assessments, of which he had notice, yet that fact did not relieve him from liability for those assessments necessary to pay benefits on account of deaths occurring during his membership, that the same rule of law obtains in this case as in cases of mutual fire insurance or mutual live-stock insurance companies, which has been applied in many cases and is stated in the case of the People’s Fire Insurance Company v. Hartshorne, in 90 Pa. page 465, as follows: “ The essential principle on which mutual insurance companies are organized, is that each member will pay his proportionate share of expenses incurred, and losses which happen during the period of his membership.”</p> <p>On the part of the defendant it is contended that this principle does not apply in this and similar cases, that the contract, arising out of defendant’s application and the rules and regulations of the association, is a unilateral contract, imposing a liability on part of the association to pay benefits to the beneficiary at the death of the member, provided the member so dying had maintained his membership by paying his» assessments, but imposing no liability on the member for assessments beyond that point where he chose to forfeit his membership by nonpayment of his assessments ; that his connection with the association is wholly voluntary, and can be severed at Avill without containing liability for assessments past or future, for the reason, as alleged, that neither his application, nor certificate of membership, nor the rules and regulations of association, contain anything which can be construed to be an express agreement or undertaking on his part to pay the assessments but that his doing so is wholly voluntary.</p> <p>I have not been referred to any case in this state where the precise question at issue has been passed upon. If the defendant’s application for membership contained an express and absolute agreement on his part to pay assessments, or had any premium note accompanied the application, in either event the case would then possibly come under the operation of the rule above referred to, governing cases of mutual fire insurance, and the defendant be held for the payment of assessments for all death losses occurring during his membership. The language contained in defendant’s application can scarcely be said to come up to the standard of an express promise to pay, such as would create the relation of debtor and creditor between him and the association. It reads as follows : “ It is understood and agreed that I am required to pay the sum of •12.00 into the treasury of the association for each assessment that may be ordered by the board of managers.” Then follows the provision that on failure to pay within twenty days forfeiture shall follow and all liability on each side shall cease.</p> <p>In the absence of the language quoted it would scarcely be contended that the defendant would be liable on an implied undertaking to pay the assessments, growing out of the fact of his membership, and the rules of the association requiring each member to pay assessments as made. The language of the application is simply a written recognition, on the part of the applicant, of the requirements of the association which would rest on him during the period of his membership. The same requirements would have existed and the same obligations would have rested on him in relation thereto, had no mention been made of them in his written application. He was presumed to know the requirements of the rules and regulations of the association before becoming a member thereof, and his written recognition of that which he was presumed to know, neither increases nor diminishes his liability nor does it create or impose any liability which would not otherwise have existed. If the defendant’s contract with the association, growing out of his application and its rules and requirements, be viewed in the light of a policy of life insurance, then its language, wherein doubtful, should be most strongly construed against the insurer and in favor of the insured: Darlington v. Fire Ins. Co., 194 Pa. 650. I am therefore constrained to hold that the language of the defendant’s application is not an absolute and express promise to pay.</p> <p>The object of the association, as we learn from its laws and regulations, is “ the creation and perpetuation of a fund for the relief of the widows and orphans of its members.” Tire association, by its contract with each member, said to him, in effect: We will give you an interest in this fund so long as you continue to pay assessments made on you for its maintenance; henceforth you are entitled to its benefits unless you fail to pay, within twenty days thereafter, any assessment made on you by the board of managers, in which event your contract is void and you forfeit to the association your interest in this fund. Thus the payment of each recurring assessment was a condition precedent to the further continuance of the benefits. Every payment of an assessment was an advance payment, in that it continued the membership of the member, so paying up until twenty days after the next assessment should be made, and the payment of each assessment became a condition precedent to continued membership and continued liability. The penalty for failure to meet and perform this condition is provided for in the contract itself and is the forfeiture to the association of the member’s interest in the benefit fund. The defendant’s undertaking being thus a condition precedent and not an absolute agreement to pay, the principle that no man can take advantage of his own wrong, or pay his debt by his own default, which finds a wide application in our courts, cannot .be involved. If the defendant’s contract be viewed as a contract of life insurance, then the payment of each assessment was a condition precedent to the continued life of the policy. I know of no case where, in a life insurance policy, any other liability was sought to be enforced or other penalty exacted for nonpayment of assessments or annual premiums, than forfeiture of the policy. And this is the only penalty provided in the contract of the defendant. The unilateral character of such policies seems to be generally recognized.</p> <p>Although, as already said, the precise question involved in this case has not been passed upon, within my knowledge, by the courts of our own state, yet the line of reasoning followed in this opinion is supported, and the same question passed upon, in the case Lehman v. Clark, decided by the supreme court of Illinois, reported in 43 L. R. A. 648, and the case of Gibson v. Megrew, decided by the supreme court of Indiana, and reported in 48 L. R. A. 362. See also May on Insurance, secs. 341a, 342.</p> <p>It should be kept in mind that the plaintiff association is an unincorporated society, composed of individuals who have voluntarily associated themselves together for purposes beneficial and benevolent. It was doubtless foreign to the ideas of its organizers and those who subsequently entered into it that its requirements should bear down more heavily on any member than he felt could be borne by him, or that they should continue beyond a period when he chose to be freed from them. The door of forfeiture was left open to him and when once he passed through it he was freed from all liability to the association and it was freed from all liability to him, and all mutual obligations were canceled by the fact of his withdrawal. The payment of assessments looked to the future and not to the past, and by their payment or refusal to pay the member exercised his option of continued membership or withdrawal, and when he withdrew no liability followed him.</p> <p>And now, April 18, 1903, for the reasons herein set forth, judgment is directed to be entered in favor of the defendant for costs.</p> <p>Mrror assigned was in entering judgment for defendant on case stated.</p> <p>Where a policy has been surrendered by a member of a mutual company and the surrender accepted by the company, the member is not released from the payment of assessments for losses that occurred while the policy was in force : Schofield v. Leach, 15 Pa. Superior Ct. 354; Matten v. Litchenwalner, 6 Pa. Superior Ct. 575; Susquehanna Ins. Co. v. Mardorf, 152 Pa. 22.</p> <p>The defendant cannot take advantage of his own wrong, or set up bis own default alone to work a forfeiture of his contract unless his terms are clearly to that effect: Susquehanna Ins. Co. v. Leavy, 136 Pa. 499 ; Columbia Ins. Co. v. Buckley, 83 Pa. 293.</p> <p>A member of a mutual benefit society cannot be compelled to pay an assessment where his contract does not provide that he shall pay assessments or make any provision as to nonpayment, except that his certificate shall be forfeited therefor: Gibson v. Megrew, 48 L. R. A. 362.</p> <p>In all the cases that have come before the courts for the recovery of benefits from unincorporated beneficial societies since the passage of the Act of April 28, 1876, P. L. 53, it has been held that the said act relieved the members from individual liability: Paul v. Keystone Lodge, 3 W. N. C. 408; Luders v. Volp, 8 W. N. C. 417; Kurz v. Eggert, 9 W. N. C. 126 ; McDowell v. Smith, 21 W. N. C. 558.</p>

Appeal, No. 105, April T., 1903, by defendant, from judgment of C. P., No. 1, Allegheny Co., June T., 1902, No. 751, on verdict for plaintiff in case of William P. Mack v. John E. F. Logue. Assumpsit for wages. Before MacFablane, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $16.77. Defendant appealed. Error assigned was in submitting the case to the jury.

Appeal, No. 101, April T., 1903, by defendants, from order of C. P. Fayatte Co., Dec. T., 1902, No. 4, refusing an issue to determine the validity of an assignment in case of Briggs & Flint to use v. Samuel Brown and Frederick S. Brown. Petition for an issue to try the validity of an assignment. The facts are stated in the opinion of the Superior Court. Error assigned was order refusing issue.

<p>Justice of the peace — Judgment—Transfer of judgment — Executions — Certificate of return of “no goods" — Acts of March 20, 1810, 5 8m. L. 161; April 16, 1840, P. L. 410; June 24, 1885, P. P. 160, and May 9, 1899, P. L. 176.</p> <p>Where a judgment exceeding $100 is obtained before a justice of the peace in one county, and a transcript is filed in the prothonotary’s office of that county, and then transferred to another county by an exemplification, it is not necessary as a prerequisite to execution to file a certificate with the transferred judgment, showing a return of “ no goods” by a constable in the county where the justice’s transcript was originally filed.</p>

<p>Road law — Quashing proceedings — Certiorari.</p> <p>The court ol quarter sessions lias the power to quash all the proceedings in a road case down to and including an order to open, and an appeal from an order overruling that motion is in the nature of a certiorari, and brings up the record for the consideration of the Superior Court.</p> <p>Road law — Termini—Petition—Report of viewers — Draft.</p> <p>A motion to quash road proceedings on the ground that the petition does not show whether the terminus ad quid is east or west from the terminus a quo, will not be sustained where the terminus ad quid is rendered absolutely certain by the report of the viewers and the draft attached thereto.</p> <p>Road law — Vacation of road — Finding of viewers — Opinion of viewers— Act of June 13, 1836, sec. 18.</p> <p>Under the act of June 13, 1836, see. 18, the court cannot vacate a road unless it has become useless, inconvenient or burdensome, and can take no action upon a mere statement by viewers in their report, that they “ are of the opinion that the same is becoming useless and inconvenient on account of the construction of a coal tipple and railroad siding.”</p> <p>Road law — Notice to supervisors — Act of May 2, 1899, P. L. 177.</p> <p>Proceedings to vacate and supply a portion of the public road will not be quashed merely because it does not appear from the record that the notice required by the Act of May 2, 1899, P. L. 176', when there is no denial of the fact that the notice was given, and the report of the viewers expressly states that “ due notice of the view” was served on the supervisors.</p>

Appeal, No. 49, April T., 1902, by defendant, from judgment of C. P. Greene Co., April T., 1898, No. 64, on verdict for plaintiffs in case of William Tustin and Mary Jane Tustin v. Rossell Sammons. Trespass quare clausum fregit. Before Crawford, P. J. The court refused binding instructions for defendant. Verdict and judgment for plaintiffs.

<p>Husband and wife — Antenuptial settlement — Concealment—Fraud on wife.</p> <p>Contracts of an antenuptial character are not looked upon with disfavor by the law, but the parties to them stand in a confidential relation and the utmost good faith is required. Confidence is reposed by each in the other, and if that confidence is abused, equity will grant relief against the contract. The parties to an antenuptial contract are not like buyer and seller dealing at arm’s length, and while it may not be necessary to show affirmatively that there was a full disclosure of the property and circumstances of each, yet if the provision secured for the wife is unreasonably disproportionate to the means of the intended husband, it raises the presumption of designed concealment and throws upon the representatives of the husband the burden of disproof.</p>

<p>Appeal, No. 289, Oct. T., 1901, by defendant, from judgment of C. P., Franklin County, Dec. T., 1900, No. 132, on verdict for plaintiff in case of Effie O. Gilbert v. Hiram M. White.</p> <p>Trespass to recover damages for injuries to real estate. Before John Stewart, P. J.</p> <p>At the trial it appeared that on November 1, 1850, Peter A. Fry became the owner of a lot of ground situated on North Main or Front street, in the borough of Chambersburg. Fry died in 1868 and in 1872 the executors of his will, by order of the orphans’ court, sold the northern portion of said lot to one B. A. Cormany. This property passed to different owners and on March 29, 1899, became vested in Effie O. Gilbert, the plaintiff. The southern portion of the lot remained the property of Peter A. Fry or his heirs, until after the death of the widow of Peter A. Fry. On April 1, 1898, it vested by a judicial sale in Iiiram M. White. During Fry’s ownership and prior to the sale to Cormany, a three-story brick building was erected on the northern portion now owned by the plaintiff, and a two-story brick building was erected on the southern portion, now owned by the defendant. The deed to Cormany, under whom the plaintiff now holds, was in part as follows:</p> <p>“ All that piece or parcel of land situated on the east side of Front street, in the borough of Chambersburg, aforesaid, between Market and King streets, being the northern part of the lot of ground on which the said P. A. Fry lived in his lifetime and at the time of his death, and bounded and described as follows, viz : Commencing at the northwestern corner of the new house recently erected by the said Susan E. Fry, on the southern part of the said lot; thence with the wall of said house eastward 256 feet to the alley in the rear of said lot; thence northward about twenty-nine feet to the line of the lot of Abraham S. Hull; thence by said lot westward to the line of Front street aforesaid, and thence by the line of said Front street southward to the point of commencement, having a three-story brick dwelling house and other improvements thereon erected. The said parties of the first part reserving to the said Susan E. Fry and to the heirs of the said Peter A. Fry and their assigns, or the occupant of the dwelling house now on the southern part of the said lot, the right to use the alley between the house now occupied by Mrs. Fry, and the one hereby conveyed to the said Cormany for passing in and out, and also to keep, have and maintain at all times the new house occupied by the said Susan E. Fry over and above the said alley as the same now is.”</p> <p>The trespass complained of was the construction of a third story on the two-story building.</p> <p>When the defendant was on the stand the following offer was made:</p> <p>We propose to prove by this witness and others, that when he purchased the property which he now owns, and adjoining the property of the plaintiff, it was a two story brick structure with a comb roof; that in the month of October, 1900, he took off the garret floor of the comb roof and raised his building to the height of three stories. In doing that he placed studding against the bargeboard of the plaintiff, but did not build over on top of her wall; that the only portion of the defendant’s building which extends over on the plaintiff’s building is a portion of the tin ; that prior to his making that improvement the plaintiff in this case granted him the permission to make the improvement just as he did make it, in consideration of his agreeing to keep the second and third story of his back building which he erected at or about the same time, at least nine feet from her line, in order that her building might not be darkened; that in pursuance of that agreement and understanding he made the improvements to the front building as they now exist, and that he kept the second and third story of his back building nine feet or a little over it, from the plaintiff’s line; that the plaintiff was present during the progress of these improvements; - that she never objected to or in any manner whatever dissented from his right to make them until after the third story was all completed except the putting on of the tin upon the roof, the other portions of the roof having been placed in position.</p> <p>This for the purpose of creating an estoppel of the plaintiff to now object to the work as done by the defendant.</p> <p>Mr. Sharpe : This evidence is objected to for the following reasons:</p> <p>1. Because if the defendant had the right in law to erect his building as set forth in the offer, the offer is irrelevant and immaterial, because he did not receive the required consent of the plaintiff.</p> <p>2. The evidence is objected to, so far as it may be an encroachment upon the plaintiff’s close or premises or the wall of her dwelling house, because the right claimed is in the nature of an easement servitude, or interest in real estate, and as such within the statute of frauds, parol testimony is inadmissible to prove or establish the same, especially since the plaintiff in this case is a married woman and can only convey her real estate, or an interest in the same, by deed in which her husband joins and which is acknowledged in proper form.</p> <p>The Court: In so far as it is proposed by the offer to establish a right to maintain an erection of any kind upon the premises of the plaintiff, whether resulting from parol agreement with the plaintiff, who was a married woman, or by reason of estoppel, it is incompetent.</p> <p>The objection is sustained, evidence excluded, bill sealed for the defendant. [9]</p> <p>Defendant presented among others the following point:</p> <p>4. The defendant had a right under his grant to build the third story to his house over the said arch or alleyway. Answer : I refuse this point. [5]</p> <p>Verdict for plaintiff for $500 upon which judgment was entered for $225, all in excess having been remitted.</p> <p>Errors assigned among others were (5) above instruction, quoting it; (9) ruling on evidence, quoting'the bill of exception.</p> <p>Plaintiff was estopped by her parol license: Clark v. (Hidden, 60 Vt. 702 (15 Atl. Repr. 358); Metcalf v. Hart, 3 Wyoming, 513 (27 Pac. Repr. 900) ; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248; Sampson v. Burnside, 13 N. H. 264; Le Fevre v. Le Fevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267 ; McKillip v. Mcllhenny, 2 Watts, 466 ; Swartz v. Swartz, 4 Pa. 353 ; Campbell v. McCoy, 31 Pa. 263 ; Ebner v. Stichter, 19 Pa. 19; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. 23; Meigs’s App., 62 Pa. 28 ; Thompson v. McElarney, 82 Pa. 174; Pierce v. Cleland, 133 Pa. 189; Baldwin v. Taylor, 166 Pa. 507; Redmond v. Excelsior Savings Fund, 194 Pa. 643; Couch v. Sutton, 1 Grant’s Cases, 114; Fulton v. Moore, 25 Pa. 468 ; Shillingford v. Good, 95 Pa. 25; Bigham’s App., 123 Pa. 262.</p> <p>The appellee being a married woman could not be estopped by any such agreement as the appellant proposed to show by his offers of testimony. No positive acts of encouragement on her part would estop her ; nor would money expended by the other party upon the faith of such contract suffice for that purpose : Glidden v. Strupler, 52 Pa. 400; Quinn’s Appeal, 86 Pa. 447 ; Buchanan y. Hazzard, 95 Pa. 240 ; Innis v. Templeton, 95 Pa. 262; Davison’s Appeal, 95 Pa. 394 ; Stivers v. Tucker, 126 Pa. 74; Logan v. Gardner, 136 Pa. 588 ; JBingler v. Bowman, 194 Pa. 210.</p>

<p>Appeal, No. 135, Oct. T., 1902, by defendant, from judgment of Q. S. June T., 1901, No. 237, on verdict of guilty in case of Commonwealth v. Nathaniel S. Wertheimer et al.</p> <p>Indictment for conspiracy.</p> <p>Verdict of guilty.</p> <p>Error assigned was as follows: (1) The learned judge erred in the charge to the jury in that the charge was argumentative in its character, and called undue attention to certain testimony produced hy the commonwealth, and failed to state the testimony produced by the defendants, said charge being as follows, quoting the charge in full.</p>

Appeal, No. 111, Oct. T., 1902, by •defendant, from judgment of C. P. Delaware Co., Sept. T., 1900, No. 175, on verdict for plaintiff, in case of John Worthington et al. v. Philadelphia & Reading Railway Company. Trespass to recover the value of horses tilled at a grade, crossing. Before Johnson, P. J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for 1432.15. Defendant appealed.

<p>Appeal, No. 285, Oct. T., 1901, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1901, No. 798, dismissing bill in equity in case of Samuel Wakeling v. Edwin F. Cocker and George Gray.</p> <p>Bill in equity for an injunction.</p> <p>Bregy, J., found the facts to be as follows:</p> <p>1. The plaintiff, Samuel Wakeling, Esq., is the owner of the property No. 4528 Frankford avenue, which is a double three-story brick residence with a cornice projecting about two feet along the front and sides of the building.</p> <p>2. The defendant, Edwin F. Cocker, is the owner of the property No. 4527 Frankford Avenue, which immediately adjoins the property of the plaintiff.</p> <p>3. The cornice already alluded to, projecting about two feet from the building at the third story, was constructed in the year 1865, and has been so maintained ever since.</p> <p>4. The wall between the properties of the plaintiff and defendant is a party wall, and the cornice projects over the land of the defendant, Cocker, along the northeasterly side of a width of two feet.</p> <p>5. The existence of the cornice was open and notorious.</p> <p>6. The defendant, Cocker, was aware of the existence of this cornice before he purchased the adjoining property.</p> <p>7. The defendant, Cocker, being about to rebuild on his property, has made a contract with the other defendant, George Gray, for the erection of a new building, and said construction includes the removal of so much of the cornice as overhangs the property of the defendant, Cocker.</p> <p>8. The building line as now established is eight and three quarter inches back from the line of plaintiff’s front wall.</p> <p>9. The plaintiff is willing that all that part of the cornice that projects over the property of the defendant, Cocker, may be removed for the erection of the new building, except that part of said cornice which extends northwestward from the legally established building line.</p> <p>The trial judge found in favor of the complainant and awarded an injunction.</p> <p>Among the exceptions to the adjudication was the following:</p> <p>7. That the learned trial judge erred in finding that portion of the cornice to which the preliminary injunction applied, and which extends northwestward from the legally established building line of said avenue, and hangs over said highway, is such an easement as will be protected by injunction.</p> <p>The court in banc sustained the seventh exception and dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Beceiver — Corporation—Custody of property.</p> <p>The effect of the appointment of a receiver is to remove the parties to the suit from the possession of the property, but at the same time the right to the property is in no way affected by such appointment and the receiver merely holds the property as a custodian for the benefit of him who may be ultimately entitled to it.</p> <p>A corporation is not extinguished by the appointment of a receiver and it may after such appointment hold meetings and elect officers, without leave of the court.</p>

<p>Gift— Gift inter vivos — Delivery.</p> <p>To make a valid gift there must be not only an intention to make it, but to do so at the time, and not in the future, and it must be accompanied by an actual or constructive delivery to the donee by which the donor releases all dominion over the property and invests the-donee with full title to and control over the same.</p> <p>Where a boarder who has only been acquainted with his boarding house keeper for eighteen days, after paying her in full for his board, gives to her a promissory note saying that if he does not come back it is hers, and shortly thereafter dies intestate and unmarried, the boarding house keeper cannot retain the note as against the administrator of the deceased.</p> <p>Practice, 0. P. — Case stated — Pending action.</p> <p>There must be a pending action upon which to base a case stated.</p>

<p>Boroughs — Railroads — Ordinance — Watchman at crossing — Police powers.</p> <p>It is a reasonable exercise of the police power of a borough to pass an ordinance requiring a railroad company to keep a watchman at its own expense at a dangerous crossing within the borough limits; but where a crossing is practically in the open country, and there is no evidence to show to what extent it is frequented, such an ordinance cannot be sustained.</p>

<p>Appeal, No. 18, March T., 1903, plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1901, No. 125, for defendant non obstante veredicto in case of Commonwealth ex rel. Borough of Mt. Holly Springs v. Gettysburg & Harrisburg Railroad Companjr.</p>

<p>Physicians — Malpractice—Wrong diagnosis — Glaucoma—Conjunctivitis.</p> <p>In an action against a physician for malpractice no presumption of negligence can arise from the fact that the defendant failed to effect a cure. The burden of proof in such a case is on the plaintiff to show that the defendant did not exercise reasonable care, skill and diligence in his treatment of the case.</p> <p>The standard by which the degree of care, skill and diligence required by physicians is to be determined, is not the highest order of qualification obtainable, but is the care, skill and diligence which are ordinarily possessed by the average of the members of the profession in good standing. The acquisition of professional learning and skill being required by law, it is the duty of a physician and surgeon to acquire the same, and he is liable for injuries caused by the failure of duty to exercise such learning and skill. The plaintiff must show, not only that the physician was negligent or unskilful, but also that the injury resulted from such negligence or unskilfulness.</p> <p>A physician who is merely a general practitioner cannot be held liable in damages to a patient for diagnosing and treating a disease of the eye as conjunctivitis when it was in fact glaucoma, where the evidence shows that glaucoma is a very rare disease, that it is incurable in character, that its certain diagnosis could be made only by the skilled expert of special training, skill and experience, that it should be treated with remedies and appliances which are never expected to be within the reach of the general practitioner of medicine, that its prominent symptoms were so nearly identical with those of conjunctivitis that the diagnosis made by the defendant was one reasonably to be expected from a general practitioner, and that the treatment given was not found faulty by any general practitioner or expert who testified in the cáse^l</p>

Appeal, No. 82, April T., 1903, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1900, No. 293, granting divorce a mensa et thoro in case of Lottie E. Edgar, by her next friend Christian S. Knaur, v. George S. Edgar. Libel for divorce a mensa et thoro: The case was referred to W. A. Blakeley, Esq., master. The master in a lengthy report found in favor of the libellant and reported that defendant had property worth about $90,000.

<p>Decedent's estates — Interest on note due decedent — Payment—Evidence.</p> <p>One of two administrators owed the decedent, his father, on a promissory note, dated nine years before decedent’s death. The note bore indorsements showing last payment of interest was made more than six years prior to decedent’s death. The administrator admitted liability for the principal of the note, but refused to admit liability for interest. The administrators charged themselves with the principal of the note. At the audit the maker of the note offered book entries to show payments of interest. There was offered in evidence a memorandum of a calculation of interest which the decedent had caused to be made one year prior to his death, showing the maker’s liability for interest for that time. This memorandum was found among decedent’s papers. The maker produced no acknowledgments or receipts by the decedent of payments of interest. Held, that the maker was properly charged with interest.</p>

Appeal, No. 88, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1902, No. 98, on verdict for plaintiff in case of Hugh Herron v. Jones & Laughlin Company, Limited. Trespass to recover damages to real estate. Before Brown, J. At the trial it appeared that the property of plaintiff was about 200 feet from defendant’s furnace, and that it had been injured by the blasting of ore during the winter months. Defendant presented these points : 1.

<p>Appeal, No. 89, April T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny County, March T., 1902, No. 496, on verdict for plaintiff in case of Hugh Herron v. Jones & Laughlin Company, Limited.</p>

<p>Railroads — Corporate powers — Charter rights — Acts of March 22, 1867, P. L. 542, April 10, 1867, P. L. 1122, February 20, 1869, P. L. 230, April 30, 1869, P. L. (1870) 1439, and May 3, 1869, P.P. (1870) 1440.</p> <p>Where by charter granted by the legislature in 1869 a company was authorized to take and hold lands and mineral rights, to manufacture and prepare for market lumber and other articles produced therefrom, to mine and prepare for market coal, iron ore, limestone, fire clay and other minerals, to transport all or any of said articles to market, and was authorized and empowered to construct and operate a railroad with branches from any part of its lands to connect with any other railroad, and in the construction and operation thereof was given all the powers and privileges specified in the general railroad act of 1849 and its supplements, and “ all the rights, powers and privileges of a general transportation company,” such company, after complying with the provisions of its charter as to the termini of its railroad, was not restricted to the carriage of the products of its own lands to market, nor did its right to maintain and operate such railroad cease when it ceased to have such products to carry. Franklin R. R. Co. v. Clarion Land Co. 54 Pa. 28, distinguished.</p> <p>Railroads — Forfeiture of charter — Collateral attack — Nonuser—Indictment for nuisance.</p> <p>On an indictment of a railroad company for'a nuisance for maintaining an alleged illegal crossing over a highway, the question of the forfeiture of the company’s charter for nonuser of a portion of its line or for delay in connecting its railroad with one of the termini mentioned in its charter cannot be raised; nor in such proceeding can the validity of the company’s charter be attacked upon the ground that the title of the act incorporating the company did not conform to constitutional requirements contained in the constitutional amendment of 1864, where it is alleged in the indictment that the defendant is “ an existing corporation duly chartered by the Commonwealth of Pennsylvania,” and where it appears that the commonwealth, with knowledge of the facts, encouraged the expenditure of large sums of money by the company, and the giving of credit thereto by third persons upon the faith of its grant, and neglected and abstained from asserting its supposed right to repudiate the act of its legislature, and positively and affirmatively recognized the right asserted by the railroad company during a long period of years.</p> <p>Railroads — Crossing—Nuisance—Province of court and jury.</p> <p>Where a railroad company is indicted for maintaining an alleged illegal crossing over a country road, and it appears that the laying of a second track at the point in question somewhat narrowed the part of the road which could be traveled, but it was not absolutely free from doubt whether to such an extent as to impede travel, the question as to whether travel was impeded is for the jury and a verdict and judgment for defendant will be sustained.</p> <p>Appeals — Reversal—Harmless error.</p> <p>An error which does the appellant no harm is not ground for reversal.</p> <p>■ Railroads — Illegal crossing — Nuisance—Evidence.</p> <p>On the trial of an indictment against a railroad for maintaining an alleged illegal grade crossing over a highway, itisnot an improper exercise of the discretion of the court to refuse to permit a map of the locality to be sent out with the jury, where such map was not an exact representation of the height of an embankment at the crossing as compared with its length ; and this is especially so where a witness was permitted to use the map and to exhibit it to the jury in explanation of his testimony, and the jury were sent to view the crossing.</p>

<p>Landlord and tenant — Bond—Set-off—Res adjudícala — Act of April 3, 1830, F. L. 187.</p> <p>In an action upon a bond given by a tenant to a landlord on an appeal from a judgment of a justice of the peace secured by the landlord under the Act of April 3, 1830, P. L. 187, by which he is awarded possession of the leased premises, the tenant may setoff counterclaims against the rent demanded, inasmuch as no such set-off could have been claimed in the proceedings before the magistrate, which were merely for the possession of the property. In such a case the judgment of the common pleas affirming the judgment of the justice is not res adjudicata as to the matters of set-off.</p>

<p>Appeal, No. 140, Oct. T., 1902, by plaintiff, from- judgment of G. P. No. 1, Pbila. Co., June T., 1900, No. 1, on verdict for defendant in case of Phebe B. Gordon v. Charles M. Gordon.</p> <p>Libel for divorce for desertion by a wife against husband. Before Biddle, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>The case was for the jury: McClurg’s Appeal, 66 Pa. 366; Kinsey v. Kinsey, 1 Yeates, 78; Hollister v. Hollister, 6 Pa. 449; Fishli v. Fishli, 2 Lit-tell’s Rep. 337; Breinig v. Breinig, 26 Pa. 161; May v. May, 62 Pa. 206; French-Brewster v. French-Brewster, 62 Law Times, 609.</p> <p>In the cases to which the appellant refers, there were complications of cruel and barbarous treatment and evidence of declarations by the husband justifying a finding of fact adverse to the bona fides of his efforts. In the present case there was an absolute lack of any such testimony. Nothing was before the court saving the letters and testimony which the appellant presented. This evidenced, without qualification, conduct of the husband which negatived any idea of continued malicious desertion.</p>

<p>Appeal, No. 41, Jan. T., 1903, by</p> <p>plaintiff, from judgment of C. P. Monroe Co., Sept. T., 1900, No. 14, on appeal from tax settlement in case of Commonwealth v. Pocono Mountain Ice Company.</p> <p>Appeal from tax settlement.</p> <p>The parties agreed upon the facts as follows: It is hereby agreed by and between the parties to the above stated appeal that the said defendant company is a corporation existing under the laws of the state of Pennsylvania, incorporated for the purpose of harvesting ice and storing and selling the same, and for this purpose has improved the body of water from which said ice is harvested, and has erected large ice houses with the necessary machinery required in the ■ harvesting of the said ice.</p> <p>That the operations of the said company are as follows : It is the owner of a large body of water covering many acres, near to which is erected a large ice house with planes running therefrom to said body of water. When the ice upon said body of water is of sufficient thickness to harvest it, it is cut- and drawn into the said ice house by machinery run by steam. It is kept stored therein until warm weather, when it is shipped to persons ordering the same, in carload lots. There is no store or other house for the purpose of vending or disposing of the said ice so harvested as aforesaid, nor does the said company buy ice of any other person for the purpose of vending or selling the same. It simply disposes of its own product so harvested and stored as aforesaid.</p> <p>It is further agreed that the said defendant company pays to the commonwealth of Pennsylvania a capital stock tax and that it also pays county and township taxes on an assessed valuation of its property which includes the body of water, ice houses and machinery.</p> <p>A considerable portion of the ice harvested from said lakes and ponds is sold and shipped directly from the water without being stored in the said ice houses.</p> <p>The court in an opinion by Craig, P. J., entered judgment for defendant.</p> <p>cited: Barton v. Morris, 1 W. N. C. 543. -</p> <p>cited: Com. v. Thackara Mfg. Co., 156 Pa. 510 ; Com. v. Campbell, 33 Pa. 380; Norris v. Com., 27 Pa. 494; Barton v. Norris, 1 W. N. C.543; Lamon v. Paxon, 2 Luz. L. Reg. 259; Com. v. Brinton, 3 Pa. Dist. Rep. 783; Com. v. Gormly, 173 Pa. 586.</p>

<p>Sale — Orphans' court sale — Decedent's estates — Setting aside sale.</p> <p>An executor will not be compelled by a decree of the orphans’ court to execute a deed for real estate of the testator sold by him, where it appears that some of the devisees agreed with the other devisees that the property should not be struck off below a certain price, and that the crier disregarded this understanding and sold the property at a lower price to some of the parties to the agreement.</p>

<p>Road law — Special injury — Deprivation of access — Damages.</p> <p>The owner of property which has been depreciated in value by reason of the destruction of the means of access thereto in the making of a public improvement, sustains an injury in his property rights, which is peculiar to himself, and which is different in kind from the injury sustained by those who use the street for travel only ; for the impairment of the special right of ingress and egress, he is entitled to compensation.</p> <p>Where the construction of a retaining wall at the intersection of two streets results in leaving the property on one of the streets in a cul de sac, so far as vehicle traffic is concerned, the owners of property on such street are entitled to damages, and their remedy is by proceedings before a jury of view.</p>

Appeal, No. 57, Jan. T., 1903, by defendant, from judgment of C. P. Lackawanna Co., March T., 1897, No. 948, on verdict for plaintiff in case of Mary Haggerty, Administratrix of Patrick Haggerty, Deceased, v. City of Scranton. Appeal from award of jury of view. The facts are similar to those in the case of Walsh v. Scranton, supra. Defendant presented amongst others the following point: 6.

Appeal, No. 2, March T., 1903, by defendants, from judgment of C. P. York Co., Oct. T., 1901. No. 315, on verdict for plaintiff in case of Ellen J. Moul v. J. Q. Pfeiffer and E. A. Keasey. Assumpsit on a promissory note. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $76.04. Defendant appealed. Error assigned was the refusal to admit the evidence referred to in the opinion of the Superior Court.

<p>Appeal, No. 76, April T., 1903, by</p> <p>Mary Mclnerney, from decree of O. C. Allegheny Co., Feb. T., 1901, No. 41, dismissing exceptions to adjudication in estate of Peter McCoy.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p> <p>It matters not what may be the nominal duration of an estate given by will to a trustee; it continues no longer than the thing sought to be secured by the trust demands : Koenig’s Appeal, 57 Pa. 352; Kinsel v. Ramey, 87 Pa. 248 ; Kay v. Scates, 37 Pa. 31; Dodson v. Ball, 60 Pa. 492; Rowan’s App., 35 Legal Int. 70.</p> <p>When an active trust is created to give effect to a well defined lawful purpose of a testator in relation to his family, the trust must be sustained, whether the cestui que trust be sui juris or not: Barnett’s Appeal, 46 Pa. 392 ; Williams’s Appeals, 83 Pa. 377 ; Wells v. McCall, 64 Pa. 207.</p> <p>The question of the termination of the trust could not properly be raised in this proceeding, the fund in court for distribution being only a part of the trust estate.</p>

<p>Appeal, No. 99, April T., 1903, by</p> <p>Robert JET. Clever, from order of Q. S. Allegheny Co., Dec. T., 1900, No. 11, dividing a township in ease of Division of Stowe Township.</p> <p>Petition for division of Stowe township.</p> <p>From the record it appeared that on January 11, 1901, certain of the inhabitants of Stowe township, a township of the first class, petitioned for its division. Commissioners were appointed who reported in favor of the division.</p> <p>Exceptions to the report of the commissioners were dismissed by the court. Robert F. Clever took an appeal, filing assignments of error as follows :</p> <p>1. The court was without jurisdiction and the order and proceedings invalid, as the commissioners were not all present as a body when they met upon the ground to view the proposed lines of division in their performance of their duty, but only two of the commissioners, Charles Davis and Samuel A. Foster, were present, and the other commissioner, O. R. Cooke, was not present and did not meet the other commissioners upon the ground to view the proposed lines of division of said township.</p> <p>2. The court was without jurisdiction and the orders and proceedings invalid, as it does not appear affirmatively on the face of the proceedings that due notice of the view was given to the inhabitants when the view of the ground was made by the commissioners.</p> <p>3. The court was without jurisdiction and the order of the proceedings invalid, because that part of the said township lying between McKee’s Rocks borough and Sheraden borough, separated and cut off from the remainder of the township was not known by petitioners to belong to the township proposed to be divided, and was not included in the description in the petition for the division of the same.</p> <p>4. The court was without jurisdiction and the proceedings invalid, as the commissioners did not report upon the propriety of granting the prayer of the petitioners, but reported a different line, including the part of the township lying between McKee’s Rocks borough and Sheraden borough, separated and cut off from the remainder of Stowe township, and not included in the description in the petition for division of same.</p> <p>5. The court was without jurisdiction and the proceedings invalid, as the interlineation in the description of the petition of Thomas McCoy, extending the division line along the McKee’s Rocks borough line, to Chartiers creek, was unauthorized by court or law.</p> <p>6. The division of Stowe township, a first-class township under the act of April 28,1899, is repugnant to said act and illegal.</p> <p>cited : In re Road in Butler Twp., 6 Kulp, 448; Windsor Twp., 9 Watts, 248; Sewickley Twp., 38 Pa. 297; Bethel Twp., 1 Pa. 97 ; Norwegian Twp., 20 Pa. 324; Green Twp., 9 W. & S. 22; In re Division of Plum Twp., 83 Pa. 73.</p>

<p>Appeal, No. 38, April T., 1903, by</p> <p>defendants, from decree of C. P. Greene Co., No. 38, on bill in equity in case of W. T. Hughes and J. B. Orndoff v. Harvey Antill and Elizabeth Antill.</p> <p>Bill in equity for specific performance.</p> <p>From the record it appeared that on August 31, 1899, Harvey Antill and his wife executed in duplicate an option to sell coal to J. S. White, his “heirs and assigns.” Mrs. Antill did not acknowledge the option. In one of the copies the agreement was to sell “ all coal and coal rights of Pittsburg or River vein.” In the other copy the language was “ all coal and coal rights of whatever kind.” The former language expressed the true agreement of the parties, and the variance was due to a mistake of the scrivener.</p> <p>The court, Crawford, P. J., found other facts to be as follows :</p> <p>3. Fisher, in securing this option, acted under the instruction of Lot L. Thomas, in whose employ he was at the time. J. S. White, the party to whom the option was given, was connected with Thomas in various oil, gas and coal transactions in this county and in West Virginia, sometimes as an active and sometimes a silent partner. In options taken in this section, this and other options were taken in the name of J. S. White.</p> <p>4. On February 7, 1900, J. S. White executed a power of attorney to R. E. Kent of Waynesburg, Pa., under the authority of which Kent, as attorney in fact for J. S. White, assigned and transferred this option to J. B. Orndoff and W. T. Hughes, this power of attorney being duly recorded.</p> <p>5. On August 30, 1900, W. T. Hughes, one of the purchasers of this option and one of the plaintiffs in this case, went to Mr. Antill’s residence, taking with him $606 in legal tender money. With this he made a tender to Mr. An-till, who refused to take or count the money, saying that he would not make a deed for the coal. The plaintiffs, on discovering that the paper in Antill’s possession provided for the conveyance of the Pittsburg or River vein, offered to take a deed for this alone. Mr. Antill refused to make any conveyance, and when the plaintiff went to make the tender aforesaid, a son of Mr. Antill forbade them entering the yard. The conduct of Mr. Antill shows conclusively that he did not at any time intend to comply with the option.</p> <p>6. On July 19, 1900, the plaintiffs gave written notice to Harvey Antill that they elected to accept the purchase of his coal on the terms of the option, and left copy of said notice with him.</p> <p>7. The defendants have never prepared or submitted any abstract of title or offered to execute any deed. They have refused to comply with the option or accept the money tendered them by the plaintiffs. The plaintiffs on the other hand have shown themselves ready and willing to accept a proper title for the Pittsburg or River vein of coal on their part, and have been ready and willing to pay for the same according to the terms of the option.</p> <p>8. Mrs. Antill while signing the option in question never formally acknowledged the same as her act and deed.</p> <p>The court entered a decree of specific performance.</p> <p>Error assigned among others was the decree of the court.</p> <p>The notice indorsed on the bill does not conform to the rule. The question was raised at the proper time in the answer, and ought to have resulted in the dismissal of the bill: Gibbons’s Appeal, 104 Pa. 587; Cassidy v. Knapp, 167 Pa. 305; Philadelphia v. McManes, 17 Phila. 50; Etting v. Levy, 10 Phila. 139 ; Cooke v. C. D. & P. Tel. Co., 21 Pa. Superior Ct. 43; Forward School District’s App., 56 Pa. 318.</p> <p>Fisher’s agency not being in writing he could make no contract which would bind his principal: Twitchell v. Phila., 33 Pa. 212; Patton v. Develin, 2 Phila. 103 ; Bodine v. Glading, 21 Pa. 50.</p> <p>Plaintiffs’ allegata and probata were at variance: Harris v. Kniekerbacker, 5 Wend. 638; Phillips v. Thompson, 1 Johns. Chan. 131; Hammer v. McEldowney, 46 Pa. 334 ; Mellon v. Davison, 123 Pa. 298; Soles v. Hickman, 20 Pa. 180 ; McCoy v. Brunot, 183 Pa. 105.</p> <p>The stamp act was violated: McMasters v. Penna. R. R. Co., 3 Pitts. 1; Yoight & Co. v. McKain, 2 Pitts. 522; Schuylkill Plush, etc., Co. v. Shappell, 11 Pa. Dist. Rep. 554.</p> <p>Tender was not kept up and, if performance is decreed, defendants are entitled to interest: Sheredine v. Gaul, 2 Dali. 190; Randall v. Mulley, 1 Lacka. Jur. 211; Minsker v. Morrison, 2 Yeates, 344; Gore v. Kinney, 10 Watts, 139; Bell v. Clark, 111 Pa. 92; Orne v. Kittanning Coal Co., 114 Pa. 172.</p>

Appeal, No. 9, Feb. T., 1903, by defendant, from judgment of C. P. Tioga County, Jan. T., 1902, No. 74, on verdict for plaintiff in case of Vera Rathbone v. Job Rathbone. Appeal from justice of the peace. Assumpsit for work and labor done.

<p>Appeal, No. 16, Feb. T., 1903, by</p> <p>defendant, from judgment of C. P. Tioga Co., Nov. T., 1901, No. 78, on verdict for plaintiff in case of Richard F. Robinson v. Luther W. Hart.</p> <p>Trespass to recover damages for illegal levy and sale of goods. Before Niles, P. J.</p> <p>At the trial the following offer was made.</p> <p>Mr. Merrick: Counsel for the defendant offer in evidence, Appearance Docket Y-4, common pleas of Tioga county, No. 821, September term, 1901, page 412, George Bubb and Sons v. T. J. Birmingham.</p> <p>This is offered for the purpose of showing that a writ was in the hands of the sheriff from July 18, 1901, unsatisfied, until after this levy by the constable. Counsel for the defendant offer this record to show a judgment against this defendant Birmingham existing when he says he made this sale ; and for the further purpose of showing that a writ was issued and received by the sheriff on July 18,1901, pursuant to this record. We offer to show by the testimony of the attorney for the plaintiff in the execution in this case who received a portion of the money paid upon the execution in the hands of the sheriff; that it was not paid to him till the evening by the evening mail of July 25, 1901. For the purpose of showing that this property sued for here by Dr. Robinson on his alleged purchase of it, was then in the custody of the law under a writ in the sheriff’s hands unsatisfied when these later writs upon which the defendant in this case, Mr. Hart the constable, sold this property.</p> <p>Mr. Cameron: Counsel for the plaintiff objects to tbe evidence as incompetent, immaterial and irrelevant. All that the plaintiff in that execution could possibly ask for was his money, and he got it; the money furnished by Dr. Robinson paid the plaintiffs in this case.</p> <p>There is nothing on the record to show when the writ was satisfied, but it does show it was issued on July 18, and returned satisfied. Further objection is made that the evidence proposed does not relate to any execution by any of the parties whose executions came into the hands of the constable on July 25, 1901, and on which the sale was made.</p> <p>The Court: Tins is a new question that has been submitted by the defendant in this case and about which the respective counsel differ very radically. The plaintiff, Dr. Robinson, has introduced evidence by which he desires to satisfy the jury that on July 22, 1901, he purchased a certain stock of goods then owned by T. J. Birmingham situated in Morris township. The defendant by way of reply shows that he was the constable of Morris township, and. acting under sundry-writs placed in his hands as we remember it on July 25, 1901, three days afterwards. These writs, the writs in the hands of the constable, and the defendant in this case, came to him from judgments that were rendered by justice of the peace Thomas J. Williams, a magistrate then living, and now living in the borough of Blossburg. He states that he made the levy on the morning of July 25, between the hours of 9'and 10 o’clock. Now the defendant offers a record, Appearance Docket Y-4, containing a judgment in favor of George Bubb and Sons v. T.</p> <p>J. Birmingham, the person from whom the plaintiff in this action alleges he purchased these goods; and offers to show that on July 18, 1901, an execution issued upon that day, which was several days prior to the date of this alleged purchase. The record shows that judgment was satisfied; but it is alleged in the offer that it was not satisfied until after the date of this alleged purchase by Dr. Robinson. Now it occurs to. us that this man Birmingham had a right to dispose of these goods excepting as to the execution that was then issued upon and was a lien upon the goods at the time he made the transfer. As a matter of course, as between George Bubb and Sons the then execution creditor and the plaintiffs in that case could have no defense as this execution of the Bubbs was a lien against those goods at the time of the transfer. But we are of the opinion that if Mr. Bubb is satisfied, that the defendant who represented other execution creditors is not in a position to take advantage of the fact that Mr. Bubb at one time had an execution against Mr. Birmingham; and we shall be compelled so to hold; and if we are wrong of course we can be reviewed.</p> <p>As between Bubb and Robinson as a matter of course that prior writ would prevail. We will sustain the objection and exclude the evidence. Bill sealed.</p> <p>Verdict and judgment for plaintiff for $600. Defendant appealed.</p> <p>Hrror assigned was in overruling offer as above.</p> <p>It is a familiar rule of law that personal property under the lien of a writ is in the custody of the law, and the law.protects this custody with a jealous hand. Interference with the law’s possession is forbidden by criminal enactment: Reinheimer v. Hemingway, 35 Pa. 432.</p>

<p>Appeal, No. 18, April T., 1903, by</p> <p>defendant, from judgment of C. P. Cambria Co., March T., 1901, No. 361, overruling demurrer in case of David E. James, Agent of Enoch James and David E. James, Executors of Ebenezer James, Deceased, v. Margaret Kurtz, Administrator of George Kurtz, Deceased, and Adam Kurtz.</p> <p>Appeal from justice of the peace.</p> <p>The material averments of the statement of claim are set forth in the opinion of the Superior Court.</p> <p>Error assigned was in overruling demurrer to statement.</p> <p>Adam Kurtz, the one defendant, not being a party to the contract, is not liable thereunder: Jackson & Gross on Landlord and Tenant (2d ed.), sec. 29, p. 23.</p> <p>If the estate of George Kurtz, deceased, is jointly liable with Adam Kurtz for the rent in controversy, then the administratrix of George Kurtz, deceased, is improperly joined with Adam Kurtz in his individual capacity in the same suit: Hoskinson v. Eliot, 62 Pa. -393 ; Githers et al. v. Clarke et al., 158 Pa. 616.</p>

<p>Promissory note — •Judgment—Consideration—Satisfaction.</p> <p>The satisfaction of a judgment and the acceptance of an ordinary promissory note in place of the judgment is a sufficient consideration to support the note.</p> <p>Promissory note — Affidavit of defense — Evasive affidavit.</p> <p>In an action upon a promissory note accepted by plaintiff as a substitute for a judgment bond for the same amount, it appeared that the bond was given at the time of the execution of a deed to defendant of certain land. The deed acknowledged the receipt of the consideration in full, mentioning the amount of the purchase money. The defendant filed an affidavit of defense, averring that the bond was given to secure annual payment of a dower interest in the land conveyed, and that the widow was dead at the time suit was brought. The affidavit, however, did not state that the bond was not a part of the consideration mentioned in the deed. Held, that the affidavit of defense was insufficient to prevent judgment.</p>

Appeal, No. 33, April T., 1903, by-defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1901, No. 521, on verdict for plaintiff in case of S. P. Whitehead v. Manor Borough. Appeal from award of jury of view. Before McConnell, J. At the trial it appeared that the proceeding was under the Act of May 24, 1878, P. L. 129, to assess damages for injuries claimed by the change of grade of Oak street in the borough of Manor.

<p>Landlord and tenant — Injuries to cattle — Oil lease — Proximate and remote cause — Negligence.</p> <p>An owner oí a farm leased it to another agreeing to keep the fences in good repair, and reserving the privilege “ of leasing for oil, gas or coal, allowing the tenant damages for the same.” The owner subsequently leased the land for oil and gas, and oil development was begun in one of the fields. The tenant kept his cattle in a field fenced off from the one in which the operations for oil were being carried on. In this field he provided an independent water supply for his cattle. While plaintiff and his family were absent from the farm a number ot' cattle escaped from their field through bars and entered the field in which the oil well was being drilled. There was no evidence as to whether the bars were let down by an employee of the oil operator, or by a trespasser, or loosened from their place by the cattle. No person saw the cattle drink at the stream in the oil field, but some cattle tracks were observed at the stream. Some of the cattle which escaped from their field became sick and subsequently died. Held, that the landlord was not liable for the loss.</p>

<p>Evidence — Declarations—Decedent's estates.</p> <p>The effect of declarations against interest is not to be impaired by independent declarations in aid of interest unless the latter be made in presence of the adverse party.</p> <p>Where a testatrix specifically bequeaths a clock, declarations that she had sold the clock to another person than the legatee are admissible as evidence for such person; but declarations not made in the presence of such person to the effect that she had not sold it are inadmissible.</p> <p>Will — Acceptance of benefits — Estoppel.</p> <p>A beneficiary of a will who accepts a provision for his benefit is estopped from disputing the validity of one to his prejudice.</p> <p>In determining the question whether a legatee has l'efused to accept an article bequeathed to him, both the language and the conduct of the legatee are to be considered. While the bequest vests the title in him, his refusal to accept will leave it part of the testator’s residuary estate. But the refusal must be absolute and unqualified, not merely in words but in deeds. However positive the terms of refusal, they may be made ineffective by conduct inconsistent with a refusal such as acts of dominion over the property. A gift of it to another is unquestionably such an act, since it is only by virtue of the bequest that it can be thus disposed of. The true interpretation of the legatee’s language and conduct is for the jury.</p>

<p>Evidence — Burden of proof — Forgery—Promissory note — Buie of court —Affidavit of defense — Admission.</p> <p>When a statute or rule of court provides that the execution of a promissory note in suit shall be taken as admitted unless it is denied by affidavit, the effect of filing such affidavit is simply to cast the burden of proof on the plaintiff; it does not raise a prima facie presumption of forgery which he must overcome, nor does it require him to furnish more evidence or a higher grade of evidence than he would be required to furnish if the defendant had simply pleaded the general issue and there were no statute or rule of court upon the subject. If he furnishes evidence which would warrant a jury in finding that the note was signed by the defendant or by some one authorized by him, or that it purports to be signed by the defendant and was delivered by him, as and for his note, to the payee'named therein, the plaintiff is entitled to have the note admitted in evidence.</p> <p>If the law does not prescribe more formal proof, the plaintiff in an action upon a promissory note may make out a case which he is entitled to have submitted to the jury by proof of the extra judicial admission of the defendant to the effect that the note was given by him. If the admission was noncontractual, that is if it was not made under circumstances to create an estoppel, it maybe rebutted by proof that the note was not given by the defendant, but is a forgery. But even though such evidence be adduced by the defendant still the question is for the jury; it is for them to determine whether the fact be as stated in his admission, or as stated in his testimony.</p> <p>In an action on a promissory note, where the defendant denies the execution of the note, and the plaintiff offers proof that at the time he discounted the note, the paper was read to defendant and that defendant not only stated that he had given such a note, but also, referring to the paper read to him, said that it was “ all right,” the admission made under such circumstances of the genuineness of the note is sufficient to warrant the court in receiving the note in evidence, and in submitting the question of execution to the jury, even though the note was not actually exhibited to, and inspected by, the defendant at the time he made the admission.</p>

<p>Boad law — Petition by property owners — Damages—Estoppel—Act of May 16, 1891.</p> <p>Under the Act of May 16, 1891, P. L. 71, a bprough has the general power to grade, curb and pave a street, or it may ordain that a fund shall be raised by assessment upon the abutting properties of the costs, damages and expenses according to benefits.</p> <p>Where property owners petition a borough to grade, curb and pave a street “ charging the costs, damages and expenses thereof ” to their several properties, and the borough passes an ordinance in accordance with the petition, and the ordinance provides that the costs and expenses (no mention being made of the damages) shall be paid by the property owners, and subsequently the borough procures the appointment of viewers “to ascertain the damages and assess the costs, expenses and benefits arising from said improvements,” the borough cannot claim that all the damages to properties on the street should be charged against the petitioners, or that the petitioners had released their right to damages.</p> <p>In such a case it was optional with the borough either to accept the offer of petitioners, or, disregarding the portion of the petition relating to costs and damages, to provide for the ascertainment, assessment and collection of the costs, damages and benefits in the statutory mode.</p> <p>A lot owner who joins in a request to borough authorities to grade a street is not estopped thereby from claiming compensation for an injury to his property by the grading. The consent which relieves a borough from its constitutional obligation to the owner for an injury to his property, means something more than nonresistance. It should be given to the municipality by the party interested, and it should embrace in express terms, or by necessary implication, a release of the right to damages. The burden of proving not only the release or facts from which a release is necessarily to be implied, but also that the damages to which the lot owner would otherwise be entitled, are within it, rests upon the borough.</p> <p>Where property owners petition a borough to grade, curb and pave a street “ charging the costs, damages and expenses thereof ” to their several properties, and the borough passes an ordinance in accordance with the petition, and the ordinance provides that the improvem'ents should be made according to certain plans and specifications mentioned, the borough cannot claim to charge a petitioner with damages, unless it affirmatively shows at the trial that a change of grade of considerable extent was in accordance with the plans and specifications mentioned in the ordinance.</p>

Appeal, No. 103, April T., 1903, by defendant, from order of C. P. Beaver Co., Sept. T., 1900, No. 7, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Y. Boal v. Citizens’ Natural Gas Company of Beaver County. Assumpsit for breach of a covenant in a lease. .

<p>Evidence — Parol evidence — Written agreement.</p> <p>Where a writing purporting to be an agreement shows on its face the signatures in a space between two portions of the writing, it may be shown by parol evidence that the writing as a whole constituted the agreement, that all of the writing was on the paper at the time of signing, and that the signatures had been placed above part of the agreement because the place for the signatures had been arranged before such part had been added. Such evidence is not intended to contradict in any way a written agreement by parol.</p> <p>Replevin — Evidence—Question for jury.</p> <p>In an action of replevin for a portable sawmill it appeared that the mill had been leased under a contract of bailment by the plaintiffs to the defendants. In this lease it was provided that if the defendants paid to plaintiffs a certain sum named, the mill should become the property of defendants. The defendants alleged that a part of the agreement was that the plaintiffs should furnish sufficient timber to keep the mill in constant operation, and that plaintiffs had violated this agreement. They also alleged that after this default plaintiffs admitted that they had violated the terms of their agreement, and told defendants to take the mill and do the best they could with it. This was denied by plaintiffs. A letter was offered in evidence written by plaintiffs to defendants in which they spoke of the mill as “ your mill.” Held (1) that the letter offered in evidence was properly admitted; (2) that the ease was for the jury as to whether the original agreement of bailment had been canceled, and the mill delivered to defendants in pursuance of that cancelation; (3) that a verdict and judgment for defendants should be sustained.</p> <p>Replevin — Measure of damages — Modification of judgment — Appeals.</p> <p>In an action of replevin where the defendants retains the property the measure of damages is ordinarily the value of the property and damages for the detention which is usually the interest on the value from the time of taking; but when the taking or detention, or both are attended with circumstances of aggravation, the party is entitled to his full measure of redress in the action of replevin.</p> <p>Where the defendant in replevin succeeds and has judgment in his favor, for a return, the general rule is that he is also entitled to damages ; and the decrease in value of the goods since the time of the replevin, with interest on their entire value, forms proper measure of damages. So the defendant is entitled to damages for deterioration in the value of the goods from the time of the replevin, although it be not pretended that the decrease in value is attributable in any degree to the act or default of the plaintiff.</p> <p>On an appeal from a verdict for defendants in replevin where the jury has improperly allowed exemplary damages instead of merely compensatory damages, and the difference is susceptible of mathematical calculation, the appellate court will, in accordance with the desire of the appellee, reduce the judgment to the amount for which the verdict should have been given, and with such modification affirm it.</p>

Appeal No. 59, April T., 1903, by J. W. Stritmater, from order of C. P. Lawrence Co., Dec. T., 1901, No. 18, discharging rule to set aside road proceedings in In re Opening of Winter Avenue. Rule to set aside proceedings in road case. Before Wallace, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was order discharging rule.

<p>Judgment — Res adjudicada — Evidence—Nuisance.</p> <p>A judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record — as, for example if it appear that several distinct matters may have been litigated, and upon which the judgment was rendered- — the whole subject-matter of action will be at large, and open to anew contention unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.</p> <p>In such a case, that is where the record leaves the matter in doubt and explanatory evidence has been given, the question of the conclusiveness in his favor of a former verdict and judgment for the plaintiff as to a matter directly involved in the second suit is to be determined, not by a mere inspection of the declaration filed in the former suit, but by the extrinsic evidence as to the claim submitted to and determined by the jury, lithe declaration in the first suit shows two claims, one of which is identical with the claim declared on in the second suit, it is competent to show that the other claim was eliminated from the case by judicial ruling or otherwise, and hence that the verdict and judgment were based on the claim identical with that declared on in the second suit.</p> <p>If the record of the former trial shows that the verdict and judgment in the plaintiff’s favor could not have been rendered without the existence and proof or admission of certain facts alleged in the declaration, there is a necessary implication, or, to say the least a prima facie presumption that such facts were admitted, or were proved to the satisfaction of, and found by the jury. In such a case no extrinsic evidence as to the point decided need be offered in aid or in explanation of the judgment; the pleadings show the issue and the verdict and judgment show how it was decided.</p> <p>In an action for a continuing nuisance founded upon a former judgment and averring a continuance of the nuisance, where it appears that the structure complained of in the former action is the same as that involved in the second action, the record of the former suit is admissible in evidence.</p> <p>Nuisance — Presumption of ownership of properly — Evidence.</p> <p>In an action to l'ecover damages for the continuance of a structure alleged to be a nuisance, and so found in a prior action, ownership of the property by the defendant is presumed to continue until some change or alienation is shown. If the record of the former action is put in evidence it is not necessary for the plaintiff to show that the defendant continued to occupy the structure.</p> <p>Nuisance — Continuing nuisance — Corporation—Eminent domain.</p> <p>The fact that a defendant is a quasi-public corporation, invested with the right of eminent domain, is not of itself conclusive against the right of an adjacent landowner, to maintain a second or third action for what, if maintained by a private person, would be a continuing nuisance.</p> <p>Nuisance — Continuing nuisance — Estoppel—Former action.</p> <p>Former recoveries against a corporation, endowed with the rights of eminent domain, for constructing an incline plane so as to be a continuing-nuisance do not estop an adjacent landowner from recovering damages which have accrued since such former actions.</p> <p>Nuisance — Inclined planes — Life tenant — Damages.</p> <p>In an action by a life tenant to recover damages for a continuing nuisance maintained by a corporation having the right of eminent domain, the plaintiff cannot be compelled to submit to an adjudication of her damages •based on the jury’s speculation as to her probable duration of life, where the injury of which she complains resulted, not from a cause that was permanent, in the sense that it was an inseparable incident to the construction and operation of the defendant’s inclined plane, or even to the maintenance of the structure, but from negligence in the construction and maintenance thereof.</p>

<p>Appeals — Assignments of error — Evidence — Rule 16 of the Superior Court.</p> <p>Assignments of error as to the rulings on evidence will not be considered by the appellate court, where the assignments do not set forth questions or offers, the ruling of the court thereon and the testimony or evidence admitted, if any, together with a reference to the page of the paper-book where the matter may be found.</p> <p>Criminal law — Bill of particulars — Discretion of court.</p> <p>In a criminal case an application for a bill of particulars is addressed to the sound discretion of the court, and an assignment of error relating to a refusal to allow a bill of particulars will only be regarded when there is a manifest disregard of the defendant’s rights. Such an assignment of error is irregular which does not set forth the application and the ruling of the court thereon.</p> <p>Criminal law — Indictment—Evidence—Variation as to time.</p> <p>In a criminal case a variation in proof as to time is immaterial where time is notan essential ingredient of the offense. It is not necessary, however, except where time enters into the nature of the offense to prove the exact time alleged. Any other time may be shown on the trial, if it is prior to the finding of the indictment and within the period prescribed by the statute of limitations.</p>

<p>Damages — Coke ovens — Injury to real estate.</p> <p>Where a person erects coke ovens in a village, and the smoke, vapor and acid fumes from the ovens injure a dwelling house erected in the village prior to the construction of the ovens, the owner of the dwelling house is entitled to damages from the owner of the coke ovens for the injuries received.</p> <p>The manufacture of coke by a corporation on its own land from coal produced by it on land in the vicinity is not the natural and necessary use of its own property for the development of its own resources within the rule laid down in Pennsylvania Coal Company v. Sanderson, 1X3 Pa. 126.</p>

Appeal, No. 7, April T., 1903, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1901, No. 254, for plaintiff on case stated in suit of City of Johns-town v. Central District and Printing Telegraph Company, Case stated to determine validity of municipal ordinance. The case stated was as follows: 1.

<p>Appeal, No. 117, April T., 1903, by Mercantile Trust Company, guardian of Ditty Hartman, from. decree of O. C. Clarion Co., May T., 1901, No. 14, overruling exceptions to auditor’s report in estate of Elizabeth Priester, deceased.</p> <p>Exceptions to report of David Lawson, Esq., auditor.</p> <p>From the record it appeared that the testatrix left to survive her eight children and three grandchildren who were the children of a deceased daughter, Caroline Hartman. The material portion of the will of testatrix is quoted in the opinion of the Superior Court.</p> <p>The auditor construed the will as meaning that the grandchildren, who were children of Caroline Hartman, should take per stirpes and not per capita. Exceptions to the auditor’s report were dismissed in an opinion by Wilson, P. J.</p> <p>Error assigned was the decree of the court.</p> <p>Elizabeth Priester was not learned in the law nor was the scrivener employed by her to draw the will. Nevertheless, the language of the will, under the authorities, to say nothing of its natural interpretation, imports an equal division among all the beneficiaries named therein — a distribution per capita: Gest v. Way, 2 Wharton, 445; Butler v. Stratton, 3 Bro. C. C. 367; Bladder v. Webb, 2 P. Wms. 383; Davenport v. Hanbury, 3 Ves. Jr. 257; Woelpper’s App., 126 Pa. 562; McNeilledge v. Galbraith, 8 S. & B. 43; Bender’s App., 3 Grant, 210; Dible’s Est., 81* Pa. 279; Harris’s Est., 74 Pa. 452; Hicks’s Est., 134 Pa. 507; Warrington v. Warrington, 2 Hare, 54; Ashton’s Est., 134 Pa. 390.</p> <p>To effectuate the clear intention of testators, we habitually construe the words heir, issue, children, interchangeably: Braden v. Cannon, 1 Grant, 60; Hoff’s App., 28 Pa. 51.</p> <p>The intestate laws must control questions of distribution arising upon the settlement of estates of testators as well as intestates, unless the testator has clearly provided a different mode in his will: Hoch’s Estate, 154 Pa. 417; Ashburner’s Est., 159 Pa. 545.</p> <p>The word heirs, ex vi termini, implies representation : Ash-burner’s Estate, 159 Pa. 546.</p> <p>The English decisions as to the distribution, cited in appellant’s argument, are not followed in Pennsylvania: Scott’s Est., 163 Pa. 165.</p>

<p>Appeal, No. 119, April T., 1908, by Mercantile Trust Company, guardian of Charley Hartman, from decree of O. C. Clarion Co., May T., 1901, No. 14, overruling exceptions to auditor’s report in estate of Elizabeth Priester, deceased.</p>

<p>Appeal, No. 118, April T., 1903, by Mercantile Trust Company, guardian of Lottie Hartman, from decree of O. C. Clarion Co., May T., 1901, No. 14, overruling exceptions to auditor’s report in estate of Elizabeth Priester, deceased.</p>

<p>Negligence — Street railways — Use of streets — Due care — Joint use with public.</p> <p>It is the duty of railway companies to be watchful and attentive, and to use all reasonable precautions to give notice of their approach to crossings and places of danger. Their failure to exercise the care which the rate of speed and condition of the street demand is negligence.</p> <p>A street car company has not the exclusive right to the use of a street on which it operates its road, nor has it such right to its own tracks. The streets of the municipalities of the state are for the use of the traveling public, and the right of the street railway company to use them is in common with the public. The street railway company and the public are alike liable for the negligent use of the street; each must exercise its rights thereon with care and a due regard for the rights of the other.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained in a collision between a wagon and an electric car, it appeared that at the point of the accident the street was verynar-row, and that the two tracks of the defendant occupied the entire cartway. There was also a curve near the place. Plaintiff was driving a one-horse wagon on the right-hand track, when he was warned by a car from behind on the same track to get off the track. He turned on to the other track and proceeded at a slow trot for about two squares when he was struck by a car coming in the opposite direction along the track into which he had turned. The car running on the right-hand track stopped twice between the place where the plaintiff left that track, and the place where the accident occurred, a distance of six or seven hundred feet, and, at the time of the accident, had overtaken plaintiff. The plaintiff alleged that the bell was not rung on the car approaching, and that the car was only visible for about twenty-five feet on account of a bank, the curve and intervening electric poles. Held, (1) that the immediate locality was a place of danger calling for the exercise of such care as would probably prevent collisions; (2) that the question of defendant’s negligence was for the jury; (3) that the question of plaintiff’s contributory negligence was for the jury; (4) that a verdict and judgment for plaintiff should be sustained.</p>

Appeal, No. 114, April T., 1903, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1903, No. 90, for defendant non obstante veredicto in case of C. A. Scott v. Edward W. Dewey. Trespass for malicious prosecution. Before Patton, P. J. The facts are stated in the opinion of the Supérior Court. At the trial the court reserved two questions of law as follows: “ In this case we reserve two questions of law for our determination hereafter.

<p>Appeal, No. 4, April T., 1903, by-defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1901, No, 361, on verdict for plaintiff in case of M. Hellriegel and G. Monnig, trading as Allegheny Upholstering Company, v. Southern Traction Company.</p> <p>Trespass to recover damages for injuries to a horse, wagon and harness.</p>

<p>Boroughs — Council—Election to fill vacancy — Public officers — Parliamentary law.</p> <p>It is a rule of the common law, and generally of all parliamentary bodies that when a quorum is present, the act of a majority of the quorum is the act of the body.</p> <p>Those who are present and help to make up a quorum are expected to vote on every question, and their presence alone is enough to make the vote decisive and binding whether they actually vote or not.</p> <p>Where there is a vacancy in a borough council of twelve members, and at an adjourned meeting of the council where ten members are present, a motion to proceed to fill the vacancy is carried by six members, and thereafter at the same meeting an election is had at which five votes are cast for one person, and two votes for another, the person who receives the five votes is legally elected to fill the vacancy.</p> <p>Boroughs — Borough councils — Meetings—Adjourned regular meeting.</p> <p>A regular meeting of the borough council may adjourn to a definite future day, and at such adjourned meeting the body may transact any business which might have been transacted at the meeting from which the adjournment was had. An adjourned meeting is the continuation of the stated meeting. Members are not entitled to notice of the time of an adjourned meeting. They are presumed to have notice.</p> <p>Where a regular meeting of a borough council is adjourned to a date fixed “ for the purpose of closing up the old business of the council,” an election may be held at the adjourned meeting to fill a vacancy.</p> <p>Boroughs — Council—Election to Jill vacancy — Certijicate of election.</p> <p>Where a person has been lawfully elected to fill a vacancy in a borough council, the fact that he did receive a certificate of election from the clerk of the council is immaterial in mandamus proceedings to procure his instalment in the office.</p> <p>Mandamus — Practice, C. P. — Alternative writ — Buie to show cause.</p> <p>Since the Act of June 8, 1893, P. L. 345, it is irregular to grant a rule to show cause why a writ of mandamus should not issue, but where the material facts are not in dispute and the evidence shows a clear right, the irregularity will not be considered as material error on appeal, and this is especially so where it appears from the opinion of the court below that at the hearing therein the irregularity was waived.</p> <p>Boroughs — Borough council — Title to office — Mandamus.</p> <p>Where a person has been lawfully elected to a vacancy in a borough council, has qualified as a member of the council, and entered upon the duties of his office, and a majority of the council after reorganization has refused to permit him to take part in the proceedings, and no other person is claiming the office, mandamus is his appropriate remedy.</p>

<p>Contract — Privity of estate — Oil lease — Confusion of goods.</p> <p>The term privity denotes mutual or successive relationship to the same rights of property. Privity of estate is not created by the receipt of a part of the product of the estate. An interest in the estate itself is necessary to create such privity. •</p> <p>Where a lessee under a gas lease mingles the gas from the demised premises with the gas of other persons so as to constitute a confusion of goods, and he is compelled to pay and account to such other persons for the value of the whole mass of gas, the lessor is in no such privity with such other persons as will enable him to collect from them the royalty on the gas which was mingled with theirs.</p>

Appeal, No. 108, April T., 1903, by defendant, from judgment of C. F. No. 2, Allegheny Co., Sept. T., 1900, No. 104, on verdict for plaintiff in case of William M. Humphreys v. James J. Mead and A. A. Speer, trading as Mead & Speer. Trespass to recover damages for malicious prosecution. Before Rodgers, J. At the trial it appeared that William M. Humphreys owned timber land in Westmoreland county.

<p>Appeal, No. 109, April T., 1903, by defendants, from judgment of C. P. No. 2,'Allegheny Co., Sept. T., 1900, No. 105, on verdict for plaintiff in case of William G. Humphreys v. James J. Mead and A. A. Speer, trading as Mead & Speer.</p>

Appeal, No. 71, April T., 1903, by defendants, from order of C. P. Warren Co., June T., 1902, No. 28, discharging rule to strike off judgment, in case of Charles E. Spetz v. D. M. Howard, Guardian of James D. Harris. Appeal from justice of the peace. The plaintiff’s statement showed that the defendants owned timber land and that the plaintiff had agreed to cut the timber into railroad ties and load the same on cars to be furnished by defendant.

<p>Appeal, No. 72, April T., 1903, by defendants, from order of C. P. Warren Co., June T., 1902, No. 43, discharging rule to strike off judgment, in case of Charles E. Spets v. James D. Harris.</p>

<p>Appeal, No. 116, April T., 1903, by defendant, from judgment of C. P. Crawford Co., May T., 1902, No. 138, on verdict for plaintiff in case of Joseph E. Sorrell v. Titusville Electric Traction Company.</p> <p>Trespass to recover damages for the loss of two horses. Before Thomas, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in submitting the case to the jury.</p> <p>cited no cases.</p> <p>cited: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Dillon v. Allegheny County Light Co., 179 Pa. 482 ; Devlin v. Beacon Light Co., 192 Pa. 188; Mitchell v. Charleston Light & Power Co., 31 L. R. A. 577; Boyd v. Portland General Electric Co., 37 Ore. 567 (62 Pac. Repr. 378) ; Newark Electric Light & Power Co. v. McGilvery, 41 Atl. Repr. 955; Kankakee Electric Ry. Co. v. Whittemore, 45 111. App. 484; Hovey v. Michigan Tel. Co., 124 Mich. 607 (83 N. W. Repr. 600) ; McNeal v. Pittsburg, etc., Ry. Co., 131 Pa. 184; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233 ; Davidson v. Lake Shore, etc., Ry. Co., 171 Pa. 522; Graham v. Philadelphia, 19 Pa. Superior Ct. 292.</p>

Appeal, No. 56, April T., 1903, by defendant, from judgment of C. P. Erie Co., Nov. T., 1898, No. 128, on verdict for plaintiff in case of Eva A. French and Joseph W. French v. Francis G. Spencer. Assumpsit for services rendered in nursing defendant’s mother. Before Walling, P. J.. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for 1141.68. Defendant appealed. Error assigned was in submitting the case to the jury.

Appeal, No. 102, April T., 1903, by defendants, from judgment of C. P. Erie Co., May T., 1900, No. 10, on verdict for plaintiff in case of Della Miles v. G. W. Waggoner and Henry Wright. Ejectment for house and lot in the city of Corry. Before Wallace, P. J., specially presiding.

<p>Telegraph and telephone companies — TJse of public roads — Road commissioners — Regulations.</p> <p>In the discharge of the duty imposed by law upon road commissioners, to keep public roads and highways clear of all impediments to easy and convenient passing and traveling, those officers are vested with a discretion to make reasonable regulations, to which those who have rights in the highway must conform. The act of congress of July 24, 1866, empowering telegraph companies to construct their lines along any post road, has not the effect of putting such companies beyond municipal control with respect to the use of the highways.</p> <p>When upon the opening of a road, or the original construction of a telegraph line in an existing highway, the road commissioners have adopted such regulations as they may at that time deem expedient, their power of regulation is not thereby exhausted; they may adopt and enforce such new regulations as increased traffic and changed conditions may require. When the road commissioners have adopted such regulations, the court will not interfere in the absence of evidence establishing an abuse of discretion.</p> <p>The road commissioners of a township have a right to adopt a regulation requiring all telegraph lines to be erected along the property line; and the courts will construe such a regulation as meaning that the poles shall be placed on that part of the highway next to the property line, in such a way that all the necessary parts of the poles shall be within the highway.</p>

Appeal, No. 127, Oct. T., 1902, by plaintiff, from decree of C. P. Blair Co., Equity Docket “ B, ” No. 300, dismissing bill in equity in case of Ella Donitben v. Independent Order of Foresters and Lloyd Donithen. Interpleader bill to determine ownership of money paid to the court. Before Bell, J. P. The opinion of the Superior Court states the case. Error assigned was decree dismissing the bill.

Appeal, No. 44, April T., 1903, by defendant, from judgment of C. P. Venango Co., Aug. T., 1901, No. 84, on verdict for plaintiff, in case of W. H. Corrin v. Clara E. Elliott. Ejectment for one fourth of a tract of land in Franklin. Before Crissweld, J. The facts appear by the opinion of the Superior Court. Verdict for plaintiff subject to question of law reserved. The court entered judgment on the verdict.

<p>Appeal, No. 51, April T., 1903, by defendant, from judgment of C. P. Venango Co., Nov. T. 1901, No. 87, on verdict for plaintiff in case of C. H. Jack v. L. C. Hixon.</p> <p>Assumpsit on a promissory note. Before Criswell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. -</p> <p>Verdict and judgment for plaintiff for $1,124.18. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, and (15) affirmance of point quoted in the opinion of the Superior Court.</p>

<p>Assignment for creditors — Set-off—Act of June 4, 1901, P. L. 404 — Insolvency.</p> <p>Where at the time of an assignment for creditors, a contract by the assignor to drill an oil well is unfinished, and the assignee completes the work and brings suit for the contract price, the defendant in the action may set off a claim growing out of mutual dealings between him and the assignor before the date of assignment.</p>

<p>Appeal, No. 13, April T., 1904, by Margaret Sauers, from decree of Q. S. Allegheny Co., March T., 1903, No. 766, granting a liquor license in case of License of Margaret Sauers and John Sauers,</p> <p>Petition for a retail liquor license. Before Evans, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order granting a license.</p> <p>A liquor license is a special privilege, and “ the statutes regulating the sale of liquors, and the process for procuring a license are to be strictly pursued: ” Hoyniak’s License, 9 Kulp, 368.</p> <p>In all proceedings purely statutory, the jurisdictional facts must appear of record, and the terms of the act must be strictly followed, or no jurisdiction attaches: Cambria Street, 75 Pa. 357 ; Snyder’s App., 36 Pa. 166 ; Bennett v. Hayden, 145 Pa. 586; Torrance v. Torrance, 53 Pa. 505.</p> <p>Even if the certificate should be considered as not being technically correct, the averment in relation to temperate habits and good moral character is not statutory and is in the form prescribed by court. The court, having inserted the provision for its own convenience, could also waive it, and derive the information from other sources.</p> <p>The personal knowledge of the court may be taken into consideration in granting or refusing a license; Gross’s License, 1 Pa. Superior Ct. 640; Kelminski’s License, 164 Pa. 231.</p> <p>The legal presumption is that the matter was considered and decided within the statutory provisions : Branch’s License, 164 Pa. 427; Brewing Co.’s License, 14 Pa. Superior Ct. 188 ; Consumer’s Brewing Co.’s License, 7 Pa. Dist. Rep. 193.</p>

<p>Practice, G. P — Affidavit of defense — Goods sold and delivered.</p> <p>In an action of assumpsit where the plaintiff’s statement avers that the goods for which suit was brought were sold to defendant doing business as Wilmerding Grocery Company, at the special instance and request of the defendant, but fails to aver a' delivery of the goods, an affidavit of defense is sufficient which avers that the defendant was never in business as the Wilmerding Grocery Company, and that he never purchased or ordered said goods or any part thereof. In such a case as plaintiff does not aver delivery, it is not necessary for the defendant to deny that he received the goods.</p>

<p>Criminal lato — Parlies—Description of parlies — Indictment—School law.</p> <p>As the city of Philadelphia is coterminus with the county, and constitutes a single school district, and as each ward of the city constitutes what is called a “ school section ” for which there is a board of directors, an indictment against three directors is not defective because the defendants are described as “ directors of the public schools of the twenty-eighth ward of the city of Philadelphia. ”</p> <p>Criminal law — Conspiracy—Evidence.</p> <p>In order to render the offense of conspiracy complete there is no occasion that any act should be done, or that any one should be aggrieved or defrauded in pursuance or in consequence of the unlawful agreement.</p> <p>Criminal law — Conspiracy—Indictment—Extortion.</p> <p>An indictment charged in apt language a corrupt conspiracy to extort, receive and take money, by color of their offices, from certain persons, naming them, and others whose names were unknown, “ as and for fees and rewards, emoluments and pay for obtaining and procuring the election of them .... to the position of school-teacher's ” in the public schools of said ward. Held that the indictment was not bad because it did not state that the payment was not made voluntarily, or because it did not allege that the money taken was claimed to be as a fee for official services.</p> <p>An indictment against school directors for conspiracy to commit extortion by taking fees and rewards for procuring the election of persons to the position of school-teacher, the indictment is not bad because it does not contain the words “ extort ” or ‘ ‘ extorsively ” as descriptive of the offense, nor is it bad because it does not allege that any money was taken from the persons appointed school-teachers, as afee for official services.</p> <p>Criminal law — Extortion—Common-law offense — School law.</p> <p>Extortion is the corrupt demanding or receiving by a person in office of a fee for services which should be rendered gratuitously; or when compensation is permissible of a larger fee than the law justifies or a fee not yet due.</p> <p>Where an indictment charges a conspiracy to commit a crime, a description of the crime which conforms substantially to the act of assembly prohibiting it, if any such there be, or if a crime at common law* so plainly that the nature of the offense may be easily understood by the jury, it is sufficient.</p> <p>Even if it be conceded that a school director is not such an officer of the commonwealth as comes within the provisions of the act of March 81, 1860, section 12, it does not follow that he is not indictable for common-law extortion, much less that when two or more school 'directors confederate to exact pay from school-teachers in return for their appointment they cannot be convicted of conspiracy.</p> <p>Criminal law — Bribery—School directors.</p> <p>Assuming that the act of a school director in corruptly accepting money as pay for his vote or influence in the appointment of teachers, is not technically speaking bribery, still for such an act he may be indicted at common law. The modern definitions of bribery clearly include as subjects of it, all persons whose official conduct is in any way connected with the administration of the government. It is not confined merely to judges, or other persons concerned in the administration of justice.</p> <p>Criminal law — Conspiracy at common law.</p> <p>A conspiracy at common law is a much broader offense than that defined in section 128 of the Penal Code of 1860, and that section does not, nor was it intended to interfere with the indictment and punishment of a common-law conspiracy.</p> <p>Where the act is lawful for the individual, it can be the subject of conspiracy when done in concert, only where there is a direct intention that injury shall result from it, or whore the object is to benefit the conspirators to the prejudice of the public or the oppression of individuals, and where such prejudice or oppression is the natural and necessary consequence.</p> <p>For a school director to exact from an applicant for appointment as teacher pecuniary reward for the performance of his official duty in that regard, or to accept money or thing of value in corrupt payment for giving his vote or influence for the appointment of such applicant, is an immoral, illegal and corrupt act, obviously harmful to the public interests, and, if the money is extorted by color of his office, prejudicial to the person from whom it is exacted and received. Even if such an act is not in itself indictable at common law or under the statute, still a combination and confederation amongst school directors to commit such an act is indictable.</p> <p>Criminal law — Indictment— Presentation by district attorney — Control of court.</p> <p>The district attorney may prefer a bill of indictment without a previous binding over or commitment of the accused, but the exercise of this extraordinary power is always subject to the supervisory control of the court.</p> <p>Where the court sanctions and approves it, and a motion to quash is refused, the appellate court will not reverse unless there be an abuse of discretion both manifest and flagrant.</p> <p>The objectibn that the record does not show a motion in open court and' leave granted prior to the presentation of the bill is not necessarily falal on appeal.</p> <p>Criminal law — Indictment—Motion to quash — Presentation by district attorney.</p> <p>Where an indictment is sent up by the district attorney without first obtaining the leave of the court, the discretion of the court may be invoked, and is exercisable on motion to quash. If the court refuses to quash this, ordinarily it is equivalent to giving its sanction. If the court sustains the motion to quash, this is tantamount to refusing its approval of the action of the district attorney.</p> <p>Criminal law — Signing bill — District attorney.</p> <p>The court commits no error in refusing to quash an indictment because the signature of the district attorney was not written with his own hand, where it appears that the signature was affixed by the express direction of the district attorney, who in person laid the bill thus signed before the grand jury, and by other unequivocal acts avowed his individual and official responsibility therefor.</p> <p>“ At the same time we are not to be understood as commending the practice, much less as holding that the duty of signing bills of indictment, imposed upon district attorney by the Act of May 3, 1850, P. L. 654, may be effectually performed by a clerk, or even a deputy, under a general authorization by the district attorney to sign his name.” Per Rice, P. J.</p> <p>Jury — Challenge—Peremptory challenge — Practice, Q. 8.</p> <p>The right of peremptory challenge is not of itself a right to select, but a right to reject.</p> <p>When a juror has been called and sworn upon his voir dire, and after being examined .and cross-examined has been found not to be subject to challenge for cause, the peremptory challenge should be made, if it is to be made at all, before another juror is called and examined as to his qualifications. The practice is regulated by the Act of March 16, 1901, P. L. 16, as amended by the Act of July 9, 1901, P. L. 629.</p> <p>In the absence of a statute on the subject the order in which peremptory challenges shall be exercised is in the discretion of the court. It is not improper for the court to direct that the commonwealth and the defendant should alternate, but that a failure to challenge by either party should not be considered a waiver of one of the number of challenges allowed by law.</p> <p>Evidence— Character— General reputation— Witness.</p> <p>It is not competent to rebut the evidence introduced by a prisoner to show his good character by evidence of specific criminal acts, as for example that he was the instigator of an unlawful attempt to influence a juror called in the case.</p> <p>Evidence which of itself, or taken in connection with other evidence in the case or offered to be introduced, would warrant a jury in finding that a party has corruptly influenced or attempted to corrupt and influence a juror who has been or might have been impanelled in his case is competent as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause. The rule applies with equal force in criminal as well as in civil cases.</p> <p>Evidence — Relevancy—Proof in another proceeding.</p> <p>Where the relevancy of an offer of evidence depends upon other facts notin evidence it should be accompanied by an offer to prove those facts. It is not sufficient if they have been proved in another proceeding, and are known to the judge and the opposite party.</p> <p>Evidence— Witness — Declarations.</p> <p>Where in the trial of a criminal cause, the prisoner not only denies the statement of a witness for the commonwealth, but endeavors to show that the witness had a motive or was under an outside influence in giving his testimony which tended to discredit him, the commonwealth may show previous statements of the witness consonant with the testimony given by him at the trial, which statements were made at a time when the imputed motive did not exist, or when motives of interest would have endueed him to make a different statement of facts.</p> <p>Criminal law — Conspiracy—Charge.</p> <p>On the trial of an indictment for conspiracy it is not error to charge that the jury cannot acquit three defendants and convict one, where there is no evidence that any other person than those named in the indictment was in the conspiracy.</p>

<p>Appeal, No. 12, April T., 1903, by D. R. McNaught, from order of C. P. No. 2, Allegheny Co., April T., 1902, No. 62, discharging rule for interpleader in case of Bruce Horsuch v. J. H. Fry.</p> <p>Rule for sheriff’s interpleader.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p> <p>cited: James v. Young, 1 Dallas, 248.</p>

<p>Criminal law — Voluntary manslaughter — Murder — Arrest — Misdemeanor.</p> <p>When an officer in attempting to make a lawful arrest for a misdemeanor is met with forcible resistance, he is not obliged to retreat but may use such force as may be reasonably necessary to accomplish the arrest; yet he is not justified in taking life even if the arrest cannot be otherwise effected, except when the resistance is so violent as to put the officer in danger of death or greatly bodily harm.</p> <p>A deputy sheriff armed with a warrant to arrest a person charged with assault and battery is guilty of voluntary manslaughter if he shoots and kills the accused while the latter is fleeing from arrest, making no attempt at resistance, and not in any way imperiling the officer’s life. In such a case it is no justification that the officer had been told that the deceased was a desperate character.</p> <p>Criminal law — Trial—Evidence—•Witnesses—Discretion of the court.</p> <p>While it is the duty of the district attorney in a homicide case to present all the testimony of the material facts, whether adverse to the defendant or favorable to him, the court in its discretion may limit the witnesses to be called. Thus, where all the facts connected with the killing have been disclosed by witnesses for the commonwealth, the court may properly hold that the testimony of another witness may be reserved for the defense.</p> <p>Criminal law — Homicide—Dying declaration — Evidence.</p> <p>On the trial of a homicide case ground is sufficiently laid for introducing a sworn written statement of the deceased to the effect that he was shot by the prisoner, where it appears that when the deceased fell at the time of the shooting he exclaimed to bystanders that the prisoner had shot him, that he must die, that he would die like a man, and that thereafter, and before the paper was sworn to, he was informed by two surgeons that he could not live.</p>

<p>Appeal, No. 110, April T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 439, on verdict for plaintiff in case of Phcenix Brewing Company v. C. Theodore Weiss.</p> <p>Assumpsit on a promissory note against indorser. Before MacFarlane, J.</p> <p>At the trial it appeared that the notice of protest was mailed to defendant at a street mail box in front of the notary’s office. The court admitted under objection and exception the notice in question. [6]</p> <p>Defendant presented these points:</p> <p>1. In order to hold defendant liable as indorser the evidence must show that demand for payment of note sued on was made upon the date of its maturity, at the place of payment, and that payment was refused, and that notice of its dishonor was given to defendant, on the day of said dishonor, by the notary, either personally, or by notice deposited by said notary personally in the post office at Pittsburg, or delivered by said notary personally to a duly authorized carrier connected with said post office, with proper and full postage affixed and prepaid, and addressed to defendant, in his own proper name, to his place of residence. Answer: Refused. [8]</p> <p>2. That under all the evidence in this case, the verdict must be for the defendant. Answer: Refused. [9]</p> <p>Defendant’s counsel excepted, to remarks made by counsel for plaintiff in his argument to the jury, as follows : The father and son got together. The son transferred all of his property to the father, and the father took it all, and thus defeated his son’s creditors. You gentlemen see how it was done. I leave it to you. [11]</p> <p>Verdict and judgment for plaintiff for $1,277.88. Defendant appealed.</p> <p>Errors assigned were (6) rulings on evidence, quoting the bill of exceptions ; (8, 9) instructions as above, quoting them ; (11) ■ remarks of counsel as above, quoting them.</p> <p>All the authorities are that mailing of the notice is only prima facie, and can be rebutted by parol testimony or otherwise : Farmers’ Nat. Bank v. Marshall, 9 Pa. Superior Ct. 621; London Assurance Corp. v. Russell, 1 Pa. Superior Ct. 320 ; Shoemaker v. Bank, 59 Pa. 79; Oxnard v. Vamum, 111 Pa. 193 ; Linderman v. Pomeroy, 142 Pa. 168 ; Whitmore v. Insurance Co., 148 Pa. 405.</p> <p>The authorities are numerous that remarks, such as made in this case, are grounds for reversal, but we will refer to Henry v. Huff, 143 Pa. 548, and Bullard v. Boston, etc., R. R. Co., 5 Atl. Repr. 838.</p> <p>cited: Jensen v. McCorkell, 154 Pa. 323 ; Pearce v. Langfit, 101 Pa. 507 ; Smyth v. Hawthorn, 3 Rawle, 355.</p>

<p>Appeal, No. 111, April T., 1903, by defendants, from judgment of Q. S. Armstrong Co., Dec. T., 1901, No. 20, on appeal from order of removal in case of Overseers of the Poor of East Eranklin Township v. Overseers of the Poor of Rayburn Township.</p> <p>Appeal from order of removal. Before Thomas, P. J., specially presiding.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were to various findings of fact and conclusions of law.</p>

<p>Appeal, No. 243, Oct. T., 1903, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1902, No. 3364, striking off and opening judgments in case of Bernard Gottlieb v. Louis Middleberg and Annie Middleberg.</p> <p>Rule to strike off judgment against Annie Middleberg.</p> <p>Rule to open judgment against Louis Middleberg.</p> <p>The opinion of the Superior Court states the case.</p> <p>Mrrors assigned were the orders of the court, striking off and opening the judgments.</p> <p>Where the preponderance of evidence is against the defendant the judgment will not be opened: Essick’s Appeal, 1 Mona. 588; Blauvelt v. Kemon, 196 Pa. 128; Read’s Appeal, 126 Pa. 415; Shannon v. Castner, 21 Pa. Superior Ct. 294; Rishel v. Crouse, 162 Pa. 8; Lomison v. Faust, 145 Pa. 8; Oberly v. Oberly, 190 Pa. 341.</p> <p>While the court may not as a general rule strike off a judgment regular upon its face, yet it may do so where a judgment has been entered wholly without authority. The judgment so entered is no judgment at all so far as it affects the rights of the defendant: Bryn Mawr National Bank v. James, 152 Pa. 364.</p> <p>It is a mistake to suppose that the court that granted the rule to open the judgment cannot judge of the weight of the evidence and the credibility of the witnesses : Kaier Co. v. O’Brien, 202 Pa.153 ; Blauvelt v. Kemon, 196 Pa. 128 ; Jenkintown National Bank’s Appeal, 124 Pa. 337.</p>

<p>Practice, 0. P. — Affidavit of defense — Promissory notes — Payment.</p> <p>In an action on promissory notes an affidavit of defense is sufficient which avers that defendant had made various payments to plaintiff before the giving of the notes, and the defendant had not credited plaintiff in the running account for such payments, and that plaintiff had also charged defendant with various items of discount on former notes, which notes had not been discounted, and that the aggregate of such payments and charges exceeded the amount of the notes in suit. In such a case it is not necessary for the affidavit to aver in express terms, fraud, accident or mistake.</p>

Appeal, No. 249, Oct. T., 1902, by W. W. Abel et al., from decree of O. C. Phila. Co., Oct. T., 1900, No. 528, dismissing, exceptions to adjudication in estate of William W. Abel, deceased. Exceptions to adjudication. Penrose, J., filed the following opinion: The decedent died, as represented to the court, December 9, 1893, leaving a will with codicil proved January 14, 1896.

<p>Appeal, No. 38, Oct. T., 1903, by defendant, from judgment of O. P. No. 1, Pbila. Co., June T.,. 1902, No. 2911, on verdict for plaintiff in case of Enrico Pizzi v. Joseph Nardello.</p> <p>Assumpsit on a parol contract. Before Bregy, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for 1749.29. Defendant appealed.</p> <p>jErrors assigned were in the following form :</p> <p>1. The court below erred in overruling and not sustaining the objection of defendant to the admission of the following testimony of plaintiff:</p> <p>“ Q. How many perches of stone was laid altogether by you under this contract for Ruhland there, both under the original Frank arrangement and the Nardello arrangement?”</p> <p>Mr. Gorman: I object to any testimony which goes to show the amount of stone that was laid by Frank and Pizzi as partners and laid for Ruhland in order to charge Mr. Nardello who was security here, and who was to take up this work subsequently and finish it.</p> <p>Objection overruled. Exception to defendant.</p> <p>2. The court below erred in overruling and not sustaining the objection of defendant to the admission of the following testimony of plaintiff:</p> <p>“ Q. Will you just state the amount that was paid to you in the first place ; how much did you get from Frank ? I don’t mean perches, but altogether ? ”</p> <p>Objected to. Objection overruled. Exception to defendant.</p> <p>8. The court below erred in sustaining the objection of plaintiff to the following question :</p> <p>“ Q. Wasn’t it Mr. Nardello who got Mr. Ruhland to raise the price from forty-two to forty-five cents for you ? A. In getting the contract everyone put in a good word. Q. Answer my question. I don’t care about other people putting in good words.”</p> <p>Objected to. Objection sustained. Exception to defendant.</p> <p>4. The court below erred in refusing and overruling defendant’s motion to strike out the entire testimony of Hugh Lynch, one of the witnesses.</p> <p>5. The court below erred in overruling the objection of defendant to the admission of the following testimony of witness John Lynch:</p> <p>“ Q. Was anything said about how much the contract price was, and what he was paying Pizzi? ”</p> <p>Objected to, as the contract is in writing. Objection overruled. Exception to defendant.</p> <p>6. The court below erred in refusing to charge the jury as requested by defendant in his first point for charge as follows :</p> <p>The promise, if made by Nardello, to pay the debt of Ruhland, contractor, to Frank and Pizzi is without consideration, is void under the statute, not being in writing, and' plaintiff cannot recover from Nardello for work done by Frank & Pizzi.</p> <p>7. The court below erred in refusing to charge the jury as requested by defendant in his second point for charge as follows:</p> <p>Under all the evidence in this case the verdict should be for the defendant.</p> <p>The promise was within the statute of frauds : Loomis v. Newall, 32 Mass. 159; Maulé v. Bucknell, 50 Pa. 39 ; Dougherty v. Bash, 167 Pa. 429; Stewart v. Jerome, 71 Mich. 201; Duncan v. Shaw, 17 Pa. Superior Ct. 225 ; May v. Walker, 20 Pa. Superior Ct. 581; Crawford v. Pyle, 190 Pa. 263.</p> <p>The parol promise was sufficient : Beard v. Heck, 13 Pa. Superior Ct. 390; Duncan v. Shaw, 17 Pa. Superior Ct. 225; Malone v. Keener, 44 Pa. 107 ; Bailey v. Marshall, 174 Pa. 602; Van Leuven v. Holmes, 13 Pa. Superior Ct. 77; Baxter v. Hurlburt, 15 Pa. Superior Ct. 541; May v. Walker, 20 Pa. Superior Ct. 581.</p>

<p>Municipalities — Hoad law — Streets—Sidewalks—Setting Curb — Notice</p> <p>Act of May 16, 1891, P. L. 75.</p> <p>An action of assumpsit may he maintained by a city against a landowner to recover the cost of laying a sidewalk and setting a curb in front of the owner’s premises; but no recovery can be had in such an action if it appears that the owner had no previous notice to lay the sidewalk and set the curb. Philadelphia v. Edwards, 78 Pa. 62, followed; Philadelphia v. Meighan, 159 Pa. 495, distinguished and explained.</p> <p>An ordinance requiring lot owners to lay sidewalks is a police regulation. A duty is imposed, the neglect of which creates a liability — if it be so ordained — to the municipality for the cost it has been put to in doing that which they ought to have done. It is not a tax or local assessment in the nature of a tax based on special benefits accruing or supposed to accrue to the landowner.</p> <p>In the absence of waiver or ground of estoppel, notice is as essential to the imposition of the duty to make the improvement as the enactment of the ordinance; and where there is no duty there can be no default, and therefore no consequent liability to reimburse the municipality for the amount it voluntarily expended. In the absence of notice the owner is neither liable for the whole cost nor any part of it.</p>

<p>Appeal, No. 5, Feb. T., 1903, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 19,10 No. 365, discharging rule for judgment for want of a sufficient affidavit of defense in case of Leonard Kyler v. J. W. Christ-man.</p> <p>Assumpsit for price of lumber and for services in driving logs. The affidavit of defense was as follows :</p> <p>1. The defendant admits that he entered into a contract with the plaintiff in the fall of 1899, which contract was in writing and is not declared upon in this case, nor is any copy of the same filed by the plaintiff as required by law. And further, defendant owes nothing whatsoever, upon said contract, even if it had been declared upon and a copy filed; but defendant does not waive the duty to file a copy of said contract by said plaintiff.</p> <p>2. That the item of $112 claimed by plaintiff for the driving of logs, does not set forth the quantity in feet, nor when said logs should be driven. And defendant avers that the amount of logs driven by plaintiff for defendant was 24,695 feet. That the charge made for driving the same iñ the plaintiff’s statement is about $5.00 per thousand feet, whereas the proper price would be less than sixty cents per thousand feet.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 168, Oct. T., 1903, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1903, No. 4112, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Martha B. Chambers v. Calvin B. McLean, Administrator of Samuel Daggy, Deceased, and I. W. Huckins. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case. Error assigned was the order of the court.

Appeal, No. 16, April T., 1903, by Bernard White, from decree of O. C. Crawford Co., May T., 1900, No. 34, dismissing exceptions to auditor’s report, in estate of Daniel White, deceased. Exceptions to report of C. V. Johnson, Esq., auditor. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing exceptions to auditor’s report.

<p>Appeal, No. 241, Oct. T., 1902, by plaintiff, from order of C. P. No. 1, Philadelphia Co., June T., 1900, No. 849, dismissing exceptions to report of referee in case of Commonwealth Title Insurance and Trust Company v. Leon H. Folz.</p> <p>Exceptions to report of C. Berkeley Taylor, Esq., referee.</p> <p>The referee reported as follows:</p> <p>Plaintiff’s action was brought to recover a sum of money intrusted to defendant for the purpose of paying off and having satisfied a mortgage of $1,000 upon premises 2065 Birch street, Philadelphia, which defendant failed to do.</p> <p>The defense was twofold : first, that defendant acted in the matter as attorney for C. C. and J. C. Moore, and was not responsible, having paid the money to his principals, and, second, that the action was barred by the statute of limitations.</p> <p>FINDINGS OF FACT.</p> <p>In March, 1892, application was made by Wallace S. L. Rhoads to plaintiff for title insurance upon four properties, 2065, 2067, 2069, and 2071 Birch street. The applications for title, insurance were numbered 17,042 and 17,043. When the title was examined three mortgages appeared, one for $2,500 upon, inter alia, 2071 Birch street; one for $2,000 upon 2067 and 2069 Birch street, and one for $1,000, dated February 2, 1892, and payable three years thereafter, upon 2065 Birch street. In order that a conveyance might be made, the mortgages not being due, defendant, an attorney at law, representing C. C. and J. C. Moore, the vendors, arranged with plaintiff to deposit with it $5,500, and that being done, plaintiff insured the title to the properties clear of the mortgages. At the time of the payment to plaintiff of the sum of $5,500, defendant delivered to it the following paper:</p> <p>“ Philadelphia; Apr. 14,1892.</p> <p>“I agree to secure the satisfaction or release of the mortgages mentioned in the settlement certificates Nos. 17,042 and 17,048, and upon that being done, which it is understood will be within one month, the money, $5,500, deposited with this Company to be returned to me as Attorney for C. C. and J. C. Moore.</p> <p>“Leon H. Folz.”</p> <p>This paper and the transactions following it give rise to the present controversy.</p> <p>Shortly after the date of the above paper a release was obtained for the $2,500 mortgage, and as much of the money deposited as was not used to obtain this release was returned to the defendant by the plaintiff. William Brooke Rawle, who was the holder of the other three mortgages, was out of the city during the summer of 1892, so nothing was done toward the release or satisfaction of those mortgages until the fall. Upon November 9, 1892, plaintiff paid to Leon H. Folz, attorney, $2,980, in the presence of his client, C. C. Moore, being the balance of $3,000 in its hands, less its charges, for the purpose of paying and having satisfied the mortgages of $2,000 and $1,000 remaining on the properties 2065, 2067, and 2069 Birch street.</p> <p>It is found as a fact that this money was paid to and accepted by defendant for the purpose of paying and having satisfied the mortgage of $2,000 upon premises 2067 and 2069 Birch street, and the mortgage of $1,000 upon 2065 Birch street, and that in doing this defendant was the agent of plaintiff, intrusted with the money for that purpose.</p> <p>The fact that defendant had been acting as attorney for the vendors in the transaction and that the check for $2,980 was drawn to his order as “ attorney ” does not militate against this conclusion. His client was present, to whom the check could have been drawn had it been intended to intrust him with the money. The payment was in line with defendant’s agreement of April 14, 1892, and was the only practical way of accomplishing that agreement.</p> <p>The $2,000 mortgage upon 2067 and 2069 Birch street was satisfied December 2, 1892, and the satisfied mortgage produced to plaintiff on December 3, 1892.</p> <p>It is found as a fact that defendant accounted to C. C. and J. C. Moore for the whole amount of $2,980 paid to him by plaintiff on November 9, 1892, prior to the year 1899.</p> <p>It is further found as a fact that C. C. Moore continued to pay the interest on the $1,000 mortgage upon 2065 Birch street to William Brooke Bawle until his, Moore’s, death, the last payment being made September 13, 1898. That subsequently the interest having fallen in arrear the principal was demanded, and on October 24, 1899, the plaintiff, in order to make good its insurance of the title of the premises free of incumbrances, paid to William Brooke Bawle, attorney for the estate of Sally Pepper Norris, the principal and accrued interest, namely, $1,063, and the same was duly satisfied of record.</p> <p>On May 27, 1899, plaintiff notified defendant that the above mortgage had not been satisfied, and demanded that he should procure its satisfaction. Defendant at interviews with the officers of plaintiff at dates later than May 27, 1899, claimed that he had paid over all moneys received by him in this and other transactions to C. O. and J. O. Moore, and refused to either pay the money back or have the mortgage satisfied.</p> <p>It appeared that the plaintiff was engaged in the business of insuring titles to land in the city of Philadelphia and had a title plant which showed all deeds and mortgages upon land in said city and the dates of the satisfaction of mortgages, and that at any time any officer of the company could have discovered by an examination of the plant that the $1,000 mortgage upon 2065 Birch street had not been satisfied.</p> <p>It also appeared that about November 3, 1893, plaintiff commenced to keep a book in which was noted all mortgages or incumbrances that were not satisfied at the time of settlement and as to which satisfaction was to be entered.</p> <p>It further appeared that none of the officers of the plaintiff connected with the title department actually knew that this mortgage was still unsatisfied until the demand for payment thereof was made by William Brooke Bawle early in 1899.</p> <p>CONCLUSIONS ON LAW.</p> <p>In view of the finding of fact that defendant received the sum of $2,980 as agent of the plaintiff clothed with the duty of using it for the purpose of procuring the satisfaction of the two mortgages of $2,000 upon 2067 and 2069 Birch street, and the mortgage of $1,000 upon 2065 Birch street, and that he did not procure the satisfaction of the $1,000 mortgage, the first ground of defense, namely, that defendant acted throughout as agent for C. C. and J. C. Moore, cannot prevail.</p> <p>The second ground of defense was that the action was barred by the statute of limitations.</p> <p>It appeared that more than six years elapsed between the payment of the money to defendant on November 9,1892, and the demand for its application on May 2,1899, in accordance with the agreement entered into upon its receipt.</p> <p>It further appeared that plaintiff had no actual notice of the failure of defendant to carry out the duty imposed upon him during that time.</p> <p>No evidence was offered to show any act of concealment on the part of defendant unless the payment of interest to the holder of the mortgage by C. C. Moore during his lifetime can be^onstrued as such, and the referee is entirely unable to see how the default of C. C. Moore can be used to hold defendant liable without some evidence of defendant’s knowledge of the facts or participation in the fraud which does not appear.</p> <p>The fact that the $1,000 mortgage upon 2065 Birch street was not due until February 2, 1895, and therefore payment could not be compelled until a time within the statute, does not prevent the running of the statute from the date of the payment of the money to defendant. This results from the agreement under which the money was received, namely, that defendant was to procure the satisfaction or release of the mortgages. That was a present act to be performed within a reasonable time, fixed by the earlier agreement at thirty days.</p> <p>The main reply of the plaintiff to the statute was that it did not apply to a trust; that statement, however, would seem to be too broad. The earlier Pennsylvania cases following Chancellor Kent, 7 Johns. Chan. Rep. 90, say: “ That the cases of trusts not to be reached or affected in equity by the statute of limitations are those technical and continuing trusts which are not cognizable at law but fall within the proper, peculiar, and exclusive jurisdiction of chancery: ” Lyon v. Marclay, 1 Watts, 271, 275 ; Finney v. Cochran, 1 W. & S. 112,119 ; Barton v. Dickens, 48 Pa. 518, 522, but the later decisions seem to indi. cate that the cases in which the statute cannot be pleaded are where some relation of trust and confidence exists imposing a duty to give information. Judge Green, in Sankey v. Mc-Elevey, 104 Pa. 265, says: “ But even in courts of equity we apprehend that there must be some relation of trust and confidence between the parties imposing a duty to give information or some affirmative act of fraud something more than mere silence, which will suffice to defeat the operation of the statute, where the basis of the reply to the statute is concealment of the cause of action.” This clause of the opinion is quoted with approval by Mr. Justice Mitchell in the very late case of Smith v. Blachley, 198 Pa. 173. See also Fox v. Gash, 11 Pa. 207.</p> <p>The difficulty of applying Chancellor’s Kent’s rule in Pennsylvania arises out of our mixed system, where equity was originally administered under common-law forms.</p> <p>The present case, although a trust, is not one in which a confidence exists imposing a duty to give information. In Lyon v. Marclay, supra, where money was paid over to defendant’s testator for the use of his grandchild, and the evidence was that he declared he held it for her, the statute was pleaded and prevailed, Ross, J., saying: “ But a person who received money to be paid to another or to be applied to a particular purpose, and does not pay it to the person or apply it to the purpose intended, is a trustee, and suable either in law or equity. Yet such cases are not without the operation of the statute of limitations under the notion of a trust, although they are cases of express and direct trusts.” See also Finney v. Cochran, 1 W. & S. 112.</p> <p>In Hostetter v. Hollinger, 117 Pa. 606, where certain moneys were paid by two of the sons of John Hostetter to a third son, Henry Hostetter, for the use of Maria Bear, it was held that the statute of limitations was a bar to an action to recover the amount", although no denial was made of the trust relation. Judge Clarke said : “It maybe conceded that the obligation of Henry Hostetter to Maria Bear was in the nature of a trust, but the remedy for recovery of the money was at law, and the trusts which are not affected by the statute of limitations are only those technical and continuing trusts over which chancery has exclusive jurisdiction, A person who receives money to be paid to another or to be applied to a particular purpose, and does not pay it to the person or apply it to the purpose intended, is within the operation of the statute of limitations.” Such a technical and continuing trust as Judge Clarke refers to may be found in Bear’s Estate, 9 Pa. Superior Ct. 492.</p> <p>The statute of limitations does not apply in cases where it would be impossible for the party injured to know that his rights were being invaded, as in Lewey v. Coke Co., 166 Pa. 536, where the defendant trespassed upon plaintiff’s land by working his way through coal seams underlying adjoining lands. See also Bank v. Forster, 8 Watts, 12; but hi Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 167 Pa. 136, where the evidence showed that the plaintiff under a water contract had a right to go upon defendant’s property at any time and inspect the use made of the water, Judge Williams said: “ The question in any given case is not what did the plaintiff know of the injury done him, but what might he have known by the use of the means of information within his reach with the vigilance the law requires of him.”</p> <p>In the present case the evidence disclosed that at any time and at all times after the payment of the money to the defendant, the officers of the plaintiff company might have discovered by an examination of the plaintiff’s title plant that the $1,000 mortgage upon 2065 Birch street had not been satisfied; under these circumstances they did not use the means of information within their reach, and the mere silence of the defendant without any overt act to deceive the plaintiff will not toll the statute.</p> <p>Judgment must therefore be entered in the cause for the defendant.</p> <p>The court overruled exceptions to report of referee.</p> <p>jErrors assigned were in dismissing exceptions to report of referee.</p> <p>The right of action by the plaintiff against the defendant cannot be held to have accrued earlier than February 2, 1895, the date at which the mortgage in question matured, and the earliest date on which the defendant could have compelled the holder of the mortgage to accept payment thereof.</p> <p>The plaintiff had six years within which to bring suit, after demand on and refusal by the defendant to apply the money with which he was intrusted to the satisfaction of the mortgage in question : Baily v. Shroyer, 1 Atl. Repr. 717.</p> <p>The statute of limitations did not begin to run until the plaintiff’s discovery of the misappropriation by the defendant of the money with which he had been intrusted to procure the satisfaction of the mortgage in question: Smith v. Blachley, 198 Pa. 173 ; Johnston v. Humphreys, 14 S. & R. 394; Fox v. Cash, 11 Pa. 207 ; Bank v. Forster, 8 Watts, 12 ; Lewey v. Coke Co., 166 Pa. 536 ; Ferris v. Henderson, 12 Pa. 49; Mars-den’s Appeal, 102 Pa. 199; Bricker v. Lightner’s Exr., 40 Pa. 199.</p> <p>The relation between the appellant and appellee was found by the referee as a fact to be that of principal and agent, and not that of indemnitor and indemnitee. Consequently the authorities cited in parts 1 and 2 of appellant’s argument are inapplicable, and the appellant’s first and second propositions cannot be sustained: Evans v. See, 23 Pa. 88.</p> <p>The running of the statute of limitations prior to the time of discovery by the plaintiff of the defendant’s failure to appropriate the money to the satisfaction of the mortgage, was not tolled by any fraud, concealment or express trust: Sankey v. McElevey, 104 Pa. 265; Kane v. Bloodgood, 7 Johns. (N. Y.) Chan. 90; App v. Dreisbach, 2 Rawle, 287; York’s Appeal, 110 Pa. 69 ; Hostetter v. Hollinger, 117 Pa. 606; Key v. Gordon, 12 Mod. Rep. 521; Lyon v. Marclay, 1 Watts, 271; Zacharias v. Zacharias, 23 Pa. 452.</p> <p>Nor was there any fraudulent concealment of the cause of action by the defendant to prevent the operation of the statute of limitations : Guarantee Trust, etc., Co. v. Farmers’, etc., Nat. Bank, 202 Pa. 94 ; Smith v. Blachley, 198 Pa. 173 ; Taylor v. Hammell, 201 Pa. 546; State Hospital v. Phila. Co., 205 Pa. 336 ; Franklin v. Franklin, 22 Pa. Superior Ct. 463 ; Noonan v. Pardee, 200 Pa. 474.</p>

Appeal, No. 68, Oct. T., 1903, by plaintiff, from judgment of G. P. No. 3, Phila. Co., June T., 1899, No. 890, on verdict for defendant in case of David Blumberg v. Jacob Pecarsky. Issue to determine the validity of a judgment.

<p>Appeal, No. 42, by Lydia Hanbest et al. from decree of O. C. Philadelphia Co., Jan. T., 1902, No. 501, dismissing exceptions to adjudication in estate of Catharine Hayes, deceased.</p> <p>Exceptions to adjudication.</p> <p>Ferguson, J., filed the following adjudication:</p> <p>The testatrix by her will recited as follows:</p> <p>“Whereas my husband, John Hayes, having wilfully and. maliciously deserted me for the past twelve years; and failed and refused to contribute to my support, I order and direct that the said John Hayes shall not share in the distribution of my estate, nor receive or enjoy any part or portion thereof.”</p> <p>John Hayes, Jr., the husband of the testatrix, filed his election with the register of wills to take against this will the share of this estate to which he would be entitled under the intestate laws. It was claimed that under the provisions of the will above recited he took nothing, and that he had, under the act of May 4,1855, forfeited all right to participate in the distribution of this estate, because he had for more than one year wilfully neglected or refused to provide for his wife, and for that period had wilfully and maliciously deserted her.</p> <p>The question to be decided turns upon a question of fact, because the law seems to be well settled that if the husband was justified in leaving his wife, this act of assembly cannot be invoked to prevent his taking the share of the estate to which he would be entitled as tenant by the courtesy, or under the intestate laws. The burden is upon him to show that he had reasonable cause for such desertion, and this proof must be something that would, under the law, have been sufficient to entitle him to a decree of divorce from her : Hahn v. Bealor, 132 Pa. 242.</p> <p>The testimony in this case was very conflicting, and there is no doubt that perjury has been committed upon one side or the other, as it is impossible to reconcile the evidence upon any other theory. There is no doubt that Mr. and Mrs. Hayes separated in 1891, and since that time he has not contributed in any way for her maintenance or support. This is evident in the testimony of the testatrix’s mother and her two sisters, and is an admitted fact in the case.</p> <p>As to the cause of the separation, these witnesses alleged that Mrs. Hayes never told them, and they never knew anything about it, further than there had been trouble, and that Hayes shot a Mr. McFarland, who boarded with him, and that Mrs. Hayes then left him and went to her mother’s house.</p> <p>The husband was called as a witness, and was objected to on the ground that as a claimant against this estate he was incompetent. The auditing judge does not so regard him. While he is a claimant in a certain sense, he ■ is not claiming as a creditor. This is a controversy between two sets of claimants — one under the will and one under the intestate laws. Those claiming under the will were examined. Why should not the one that claims against the will under the law be examined also? The acts of assembly with reference to the competency of witnesses expressly except issues devisavit vel non between parties claiming such right by devolution upon the death of such owner. In Hunt’s Appeal, 100 Pa. 590, which was a controversy between the widow claiming her exemption and the devisee under the will, the Supreme Court saidWere widow and children claiming as creditors, they would all be alike incompetent to testify to matters occurring in the intestate’s lifetime .... claiming as they do by devolution on the death of the former owner, they are all within the exception of the proviso.” See also Groves’s Estate, 5 Pa. O. C. Rep. 498.</p> <p>The husband was admitted as a witness, and the case as presented by him is that he and the testator were married February 6, 1886, and keeping house on Dorrance street in this city; that there lived with them as a boarder a certain friend of his named McFarland, and a servant girl named Laura Priest; that the husband was employed on the railroad; that on Saturday before Easter, 1891, he told his wife that he had to go out on a train, the fireman of which had been taken sick, and that he would not be back all night. It so happened that when this train reached Wilmington, Delaware, he was ordered on another train which was to be taken back to Philadelphia, and consequently arrived home unexpectedly after midnight. Upon going to his room he found that the bed was undisturbed and his wife not there. He went to the servant’s room to inquire about her, and found her so sound asleep that he could not get any satisfaction. The door of the room occupied by McFarland being ajar, he looked in, and there found his wife and McFarland in bed together sound asleep. There happened to be a double barrelled shot gun standing in a corner of the room, and he seized it and shot at McFarland, and wounded him so severely in the arm that it afterwards had to be amputated. His wife ran from the house in her night clothes to an oyster saloon in the neighborhood, where she borrowed a wrapper and slippers, and went to her mother’s house, where she arrived about two o’clock in the morning. The husband surrendered himself to the police. He was subsequently tried in the quarter sessions court, and pleaded guilty to the assault upon McFarland. The judge who tried the case, after hearing the statements of McFarland and the defendant, suspended sentence, and discharged the defendant from custody.</p> <p>The husband testified that at this trial the judge asked McFarland the question whether he was in Mrs. Hayes’s room, or whether she was in his at the time of the shooting, and that he said, “ She was in mine.” McFarland, who was called as a witness, denied making this admission, but John S. Hemphill, another witness who was present at the trial, said that the only question that he heard asked of McFarland was, “ Was you in Mrs. Hayes’s bed when you were shot, or was Mrs. Hayes in your bed ? ” and that McFarland made the reply, “ She was in my bed.” Laura Jamison, formerly Priest, who was also present at this trial, testified that she did not hear McFarland say this. John Hayes, senior, the father of the husband, testified that after his son was discharged from custody, he went with him to the Dorrance street house, and that he there met Mrs. Hayes. “ I said to her, ‘ Kate, this is bad business; are you guilty of this crime ? ’ and she said, ‘Yes, I am, but this is my first offense; ’ exactly the words she made use of. She said if I would get Jack to overlook it, and I said, ‘No, Jack can do as he pleases, but I will not overlook it.’ ”</p> <p>With regard to what took place the night of the shooting of McFarland, Laura Jamison, the servant girl, who was in the house, testified that she and Mrs. Hayes were in bed together asleep, and that McFarland was also in bed in his room asleep, and the first thing she heard was that McFarland was shot, and the bed clothes on fire and the room was all in a blaze. “ I do not know where Mrs. Hayes got to; she had disappeared. He followed her downstairs with a gun in his hand.” Thus she, by her testimony, corroborates what was testified to by Hayes about his wife running out of the house without any clothing. Why should she have done this if she was innocent ? Flight is always evidence of guilt. But how much stronger a ease is presented when a women runs into the public streets undressed.</p> <p>Now, what was the motive for Hayes shooting McFarland? A man never does an act of this kind without a motive, unless he is either drunk or crazy. There is no evidence of either in this case. McFarland was Hayes’s friend, he had taken him into his house, and they had lived together several years. Why should he go to his room when he was sound asleep, and shoot him ? The auditing judge has no hesitation in saying from the testimony and from all the facts and circumstances in this case that he does not believe the testimony of Laura Jamison. Mr. Hayes commenced proceedings for a divorce from his wife on the ground of adultery, but because of the expense and other reasons given by him he did not prosecute those proceedings to a decree. The auditing judge is of the opinion that under the evidence submitted in this case he would have been entitled to such a decree if the case had been prosecuted. Under those circumstances he find that Mr. Hayes was justified in separating himself from his wife, and that the act of assembly of May 4,1855, has no application to a case of this kind. ’</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Landlord and tenant — Statute of fraud — Principal and agent — Memorandum in writing.</p> <p>Where in the body of a lease it is stated that the lease is made by the owner through her' agent, and the lease is executed under seal by both lessee and agent, and is subsequently assigned in writing by the owner herself under seal, the lease cannot be subsequently attacked by the lessee, who went into possession under it, as invalid because there was no written authority from the owner to her agent to execute the lease.</p>

<p>Practice, C. P. — Affidavit of defense — Master and, servant — Salary—Corporation.</p> <p>In an action against an individual to recover a salary an affidavit of defense is insufficient which merely alleges that the plaintiff was engaged by the defendant as an officer of a corporation named, and that his claim, if he had any, was against the corporation and not against the defendant. In such a ease the affidavit is defective in not alleging that the defendant made known his agency at the time that the contract was made, or that the plaintiff had knowledge of the fact from some other source.</p>

<p>Appeal, No. 105, Oct. T., 1903, by defendant, from order of C. P. No. 3, Pliila. Co., March T., 1903, No. 2081, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Davidov and Henry Sander, trading as Davidov Sander, v. Bernard H. Bail.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Plaintiff’s statement was as follows :</p> <p>The plaintiffs are tailors and makers of ladies’ clothes and they sold and delivered to the wife of the said defendant at her special request various goods and articles of wearing apparel each and all of which were necessary for her and in accordance with the requirements of her station in life.</p> <p>That the said wife of the said defendant resides with him and is part of his household and family. That said plaintiffs herein set forth a copy of their book of original entries showing the dates when said goods and articles of wearing apparel were supplied and the prices charged therefor and said plaintiffs aver that said prices are the usual and proper charges for said goods.</p> <p>COPY OF BOOK OF ' ORIGINAL ENTRIES.</p> <p>Oct. 30,1901, Skirt ) 35.00</p> <p>Oct. 30,1901, Coat . 35.00</p> <p>Nov. 7, 1901, Pink suit 135.00</p> <p>Nov. 24, 1901, Black suit 65.00</p> <p>Nov. 24, 1901, Coat 35.00</p> <p>1902</p> <p>Feb. 3, 1902, Tan coat..... 75.00</p> <p>Feb. 3, 1902, Moire coat .... 50.00</p> <p>Feb. 3, 1902, Moire coat, embroidered 10.00</p> <p>Feb. 21, 1902, Golf suit .... •60.00</p> <p>Feb. 21, 1902, 3 Vests..... 9.00</p> <p>Mar. 31, 1901, Remodeling suit for Mrs. Morrison 20.00</p> <p>Apr. 3, 1901, Repairing skirt 5.00</p> <p>Apr. 10, 1901, Coat...... 25.00</p> <p>That these charges amount in the aggregate to $559, upon which there is due interest amounting to $42.39, but that this total sum has been reduced by payments amounting to $469 and allowance of interest amounting to $25.87, leaving a balance of $106.52, for which suit is brought.</p> <p>The affidavit of defense was as follows :</p> <p>Bernard H. Bail, being duly sworn doth depose and say, that he has a just and true defense to the whole of the plaintiffs’ cause of action, but he is advised by his counsel that it is not necessary at this time to set the same forth because the said book account upon which suit is brought is not such a one as entitles the plaintiffs to judgment for want of an affidavit of defense.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 258, Jan. T., 1903, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., March T., 1900, N o. 410, on certificate for defendants in case of Alice B. Kinney, trading as R. D. Kinney & Company, v. Edwin Burn-horn and Abbott D. Granger, trading as Burnhorn & Granger.</p> <p>Assumpsit for breach of contract.</p> <p>Certificate for defendant. Plaintiff appealed.</p> <p>Errors assigned were certain irregularities in taking the verdict, portions of charge,' and various rulings on evidence.</p>

<p>Practice, O. P. — Affidavit of defense — Beneficial associations.</p> <p>In an action upon two certificates of a beneficial association to recover the whole amount of each certificate, an affidavit of defense is sufficient which avers that defendant had surrendered the first certificate, had received over $300 on account of it, and had accepted in lieu thereof a new certificate, and that upon her own request the second certificate was canceled, and the defendant agreed to return to her the amount to be paid in instalments upon said certificate, and that a portion of this amount had been paid.</p>

<p>Appeal, No. 20, Oct. T., 1903, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1901, No. on verdict for defendant in case of Henry C. Lea v. Mary H. Jones.</p> <p>Assumpsit for cost of moiety of a party wall.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant.</p> <p>On a motion for a new trial the court filed the following opinion:</p> <p>We shall assume that the wall in question between 1217 and 1219 Market street is a party wall. Lea, the plaintiff, owned 1219 and 1221 Market street. Mrs. Jones, one of the defendants, owned 1217 Market street. In 1901 Mrs. Jones tore down her building and erected a larger one, using the party wall which Lea had built. Lea brought suit against her and her husband on October 4, 1901. On October 31, 1901, Lea contracted to. sell his property to Felix Isman, reserving his claim for damages in the suit brought against Jones. This contract was not recorded. On November 30, 1901, Lea conveyed to Isman without any reservation expressed in the deed. On January 6, 1902, Isman conveyed the premises to Joshua R. Jones without reservation or notice of the reservation in the contract of sale of October 31, 1901. The question to be decided is whether the right to recover compensation for the use of the wall passed to Jones or whether it remains in Lea.</p> <p>The Act of April 10, 1849, sec. 4, provides that “in all conveyances of houses and buildings the right to and compensation for the party wall built therewith shall be taken to have passed to the purchaser unless otherwise expressed, and the owner of the house for the time being shall have all the remedies in respect to such party wall as he might have in relation to the house to which it is attached.”</p> <p>This statute makes the party wall an interest in the realty; which passes to a grantee of the land. The fact that suit had been brought against Jones’s wife, in which he was made a party, and therefore knew of Lea’s claim, does not alter his rights ; he bought all of Lea’s interest in 1219 Market street, without any reservation, and he thereby became the owner of the party wall and the right to compensation for its use.</p> <p>Rule absolute.</p> <p>Error assigned was in giving binding' instructions for defendant.</p> <p>In other words the act of 1849 specifically provides that the owner for the time being is the party entitled to use. And the “ time being ” refers to the time at which the wall was used. When a wall is used, and when an action is brought therefor, there is no further right to compensation connected with the wall for the injury sued for which would pass by any deed. In the present case the wall was used in July, 1901, and the action brought on October 4, 1901. The damages were complete at the date of the action brought. No subsequent purchaser of the property could recover anything, because he was not the party damaged and bought with notice of the condition of the wall. The act of 1849 by its language and intention simply invests the purchaser with the right to the cost of the wall if after the conveyance any future use is made of it during his ownership.</p>

<p>Landlord and tenant — Amicable action — Ejectment—Judgment—Second Judgment.</p> <p>Where a judgment has been entered under an ejectment clause in a lease, no second judgment can be entered under the same clause; and this is the case although the first judgment may have been prematurely entered, or may have been voidable from matters outside the record. In such a case it is immaterial that the lease contained a release of errors in connection with the warrant of attorney to enter judgment. Such release does not reach the defect of a lack of authority to proceed, but operates only on errors or irregularities in the proceedings apparent on the record.</p>

<p>Appeal, No. 8, April T., 1904, by Charles H. Cramer, from order of Q. S. Allegheny Co., March T., 1903, No. 425, refusing a liquor license in case of application for license by, Charles H. Cramer.</p> <p>Application for liquor license.</p> <p>The application described the premises as follows:</p> <p>That the place for which a license is desired is that certain house containing thirty rooms, occupied the last year as a new building by , situate in cor. Collins avenue</p> <p>and Broad street, nineteenth ward, city of Pittsburg, in said county, being three story with basement, stone and brick building, size thirty-two one half by eighty-four feet.</p> <p>The court made the following order:</p> <p>And now, April 24, 1903, the application of Charles H. Cramer, for hotel license for nineteenth ward, Pittsburg, came on for hearing, and after consideration of applicant’s petition, bond and testimony of witnesses as to the necessity for the granting of said license, the court is of the opinion that the place for which applicant applies for said license is insufficiently described in said petition, and said license is refused for that reason ; and it is ordered that the photograph of applicant’s hotel filed with the court, may be made part of the record in this case, and that the stenographer’s notes of -the testimony of applicant’s witnesses offered at the hearing of this case may also be made part of the record herein.</p> <p>Error assigned was in refusing to grant the license.</p> <p>There does not appear to be any authority directly on the subject, except a per curiam opinion of the quarter sessions' of Montgomery county, in Oakley’s License, 4 Mont. Co. Rep. 89, which sustains appellant’s contention.</p> <p>In similiar questions regarding descriptions in cases of mechanics’ liens the courts have uniformly required only a reasonable amount of certainty in the description, that is, “ certainty to a common intentEwing v. Barras, 4 W. & S. 467; Knabb’s App., 10 Pa. 186 ; Harker v. Conrad, 12 S. & R. 301.</p> <p>Although there it no authority from the appellate courts allowing amendments in license petitions, it seems to be the uniform practice in the courts below to favor amendments: Consumers’ Brewing Company’s License, 7 Pa. Dist. Rep. 193.</p> <p>The decree of April 13, disposing of the retail applications, is almost identical with that reported in Hollander & Schlessinger’s App., 11 Pa. Superior Ct. 23. It was there ruled that if the proceedings were regular and the reasons lawful, the order must be affirmed. That case rules this.</p> <p>The general trend of opinion seems to be that the petition must be complete when filed, and that no amendment in any material respect can be made 'afterwards : Bailey’s License, 5 Pa. Dist. Rep. 172; Porter’s License, 4 Kulp, 356 ; Hoyniak’s License, 9 Kulp, 368 ; Sherry’s License, 12 Pa. C. C. Rep. 129; Donmoyer’s License, 9 Pa. C. C. Rep. 303 ; Miller’s License, 13 Pa. Superior Ct. 272.</p>

<p>Liquor law — Incense—Certificate of twelve electors — Amendment.</p> <p>The certificate “ signed by at least twelve reputable qualified electors of the county,” required by the Act of June 9, 1891, sec. 5, P. L. 257, to be annexed to the petition for a liquor license is fatally defective where five of the signatures are those of partnerships or trading companies, and this defect cannot be cured by amendment.</p> <p>In such a case the Act of March 21, 1806, applies, which provides that where a remedy is provided, a duty enjoined, or a thing directed to be done, by an act of assembly, the directions of the act shall be strictly construed.</p>

<p>Contract — Payments—Parol agreement — Earlier payments.</p> <p>Where a person sells several invoices of goods which are to be paid for on certain dates mentioned, and subsequently enters into a verbal agreement with the purchaser to change the' terms of payment by accepting a certain sum generally on account of the whole claim, and agrees that the balance shall be paid in installments at such times as to mature the payments on the invoices not yet due tó a time earlier than originally agreed upon, the seller may, after the latest date for payment mentioned in the original agreement, bring suit upon a part of the original invoices based upon his book account, and is not bound to sue upon the verbal agreement. In such a case the effect of the verbal agreement was simply to modify and change the terms of sale as to the time of payment, but not to extinguish the debt.</p>

<p>Appeal, No. 6, Oct. T., 1903, by plaintiffs, from order of C. P. No. 3, Phila. Co., Sept. T., 1903, No. 1207, making absolute rule to strike off judgment in case of C. W. Sperry and J. Bushnell Sperry, trading as Sperry Manufacturing Company, v. Samuel Styer, trading as Styer & Company.</p> <p>Rule to strike off judgment.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Mror assigned was the order of the court making absolute rule to strike off judgment.</p> <p>The defendant having been lawfully served with the writ of attachment in this case, the dissolution of said attachment did not terminate and end the proceedings, but left the appellee exposed to the consequences of such further steps therein as the appellants might choose to take : Bayersdorfer v. Hart, 7 W. N. C. 487; Megee v. Beirne, 39 Pa. 50; Albany City Ins. Co. v. Whitney, 70 Pa. 248; Fernau v. Butcher, 113 Pa. 292; Walls v. Campbell, 125 Pa. 346.</p> <p>The attachment in this case having been issued on August 30, 1893, the commencement of the second term thereafter was the first Monday of December, 1893. The attachment was not dissolved until March 5, 1894, three months too late to prevent the entry of judgment for default of appearance, unless an appearance were entered before the appellants moved for judgment: Artman v. Adams, 11 W. N. C. 339.</p> <p>The appellee by his gross laches has forfeited his right to object to the judgment in question: Jaques v. Weeks, 7 Watts, 261; Maul v. Rider, 59 Pa. 167 ; Meigs v. Bunting, 141 Pa. 233; Summy v. Hiestand, 65 Pa. 300 ; Keenan v. Quigg, 6 Pa. Superior Ct. 58; Howe Sewing Machine Co. v. Larimer, 5 Pa. C. C. Rep. 660.</p>

<p>Appeal, No. 55, Oct. T., 1903, by Adam Jobet ah, from decree of O. C. Phila. Go., Jan. T., 1902, No. 119, dismissing exceptions to decree directing register of wills to grant letters of administration c. t. a. to Babetta Hahn in estate of Peter Job.</p> <p>Appeal from register of wills.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p> <p>A party litigant is not a proper appointee: Failor’s Est., 10 Pa. Superior Ct. 253; Bieber’s App., 11 Pa. 157; Shorno’s App., 57 Pa. 356.</p> <p>Among the numerous decisions that the register of wills and the orphans’ court are bound to respect the nomination of the next of kin or the persons entitled to administration, are Ellmaker’s Estate, 4 Watts, 34-37, Neidig’s Estate, 183 Pa. 492, Coover’s Appeal, 52 Pa. 427, Jones’s Appeal, 10 W. N. C. 249, Cook’s Est., 1 Phila. 342, and Schaufuss’s Est., 5 Kulp, 275.</p>

<p>Appeal, No. 65, Oct. T., 1903, by defendant, from judgment of C. P. No. 3, Pliila. Co., Sept. T., 1900, No. 361, for plaintiff on ease tried by the court without a jury in suit of Girard Trust Company v. David C. Harrington.</p> <p>Assumpsit for money had and received.</p> <p>The case was tried without a jury by McMichael, J., under the act of April 22,1874.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff for $184.79.</p> <p>As attorney defendant had the right to collect the $250. It was part of the identical award he had secured for his client: Whiteside’s Est., 8 Pa. Dist. Rep. 274; Weist v. Lee, 3 Yeates, 47; Bracken v. Pitts-burg, 27 P. L. J. 202; Lynch v. Wolverton, 16 S. & R. 368; Reamer’s Appeal, 18 Pa. 510; Kissick v. Hunter, 184 Pa. 174; Gouldey’s Est., 27 Pa. C. C. Rep. 240. A mistake of law is not an equitable ground for relief; Hunt v. Rousmanier’s Admr., 8 Wheaton, 174; McAninch v. Laughlin, 13 Pa. 371; Rankin v. Mortimere, 7 Watts, 372; Rogers v. Ingham, L. R. 3 Ch. Div. 351; Peters v. Florence, 38 Pa. 194.</p> <p>Money paid under a mistake of fact may be recovered: Marriot v. Hampton, 7 Term Rep. 269; 2 Smith’s Leading Cases, part 1 (8th ed.), 421; Meredith v. Haines, 14 W. N. C. 364 ; Thomas v. Brady, 10 Pa. 164; Haven v. Foster, 26 Mass. 112.</p> <p>It is not contended in this case that the payment was made under a mutual mistake of fact, but if it were so contended and for the purpose of argument and all possible conjectures, it may be asserted as law that where the circumstances of the case surrounding a payment are unknown to the defendant himself, and the payment is made under a mutual mistake of fact, the money may be recovered back: Reed v. Horn, 143 Pa. 323 ; McKibben v. Doyle, 173 Pa. 579.</p> <p>Even where the payment of the money is made without a misapprehension of the facts, yet it may be recovered if the party receiving it is not entitled to retain it. “ Money paid with knowledge of the fact is not recoverable if there be nothing unconscientious in the retaining: ” Marriot v. Hampton, supra; Smith’s Leading Cases, part 1 (8th ed.), 421 ; Cannell v. Smith, 142 Pa. 25; McDonald v. Todd, 1 Grant, 17.</p> <p>A person wrongfully receiving money cannot defend under the title of another person superior to the title of the person paying the money: Chamberlain v. Lilley, 1 Pa. Superior Ct. 293.</p>

<p>Appeal, No. 106, Oct. T., 1903, by Thomas F. Fanning, from order of Q. S. Phila. Co., June Term, 1903, No. 106, refusing a liquor license in In re Application of Thomas F. Fanning.</p> <p>Application for a retail liquor license. Before Beitler and Barratt, JJ.</p> <p>The facts are stated in.the opinion of the Superior Court.</p> <p>Error assigned was the order of the court refusing the license.</p> <p>The refusal of a license to sell liquor at retail for the reason that in the title deed to the premises for which the license is applied there is a restriction against the use of such premises as a saloon, is not a matter within the discretion of the license court, and there is no authority given to that court to refuse a license for such reason: Howell’s Application, 10 Pa. Dist. Rep 604; Act of May 13, 1887, P. L. 108; Doylestown Distilling Co., 6 Pa. Superior Ct. 87; Doberneek’s App., 1 Pa. Superior Ct. 99; Gemas’s App., 169 Pa. 43; Babb’s License, 2 Pa. Superior Ct. 38, Franklin County Liquor Licenses, 12 Pa. Dist. Rep. 212; Whitting’s Petition, 18 Phila. 670.</p> <p>A license court may, in its discretion, refuse to grant a license to sell liquor at retail if the title deed to the premises for which the license is applied contains a restriction against the use of such premises as a saloon: Reed’s Appeal, 114 Pa. 452; Raudenbusch’s Petition, 120 Pa. 328; Sparrow’s Petition, 138 Pa. 116; Teller’s License, 3 Pa. C. C. Rep. 235; Burn’s License, 3 Pa. Dist. Rep. 429; Russell’s License, 1 Pa. Dist. Rep. 267; Heilig’s License, 2 Pa. Dist. Rep. 342; Hanlen’s License, 3 Pa, C, C. Rep. 474 ; Navigation Co. v. Gluck, 5 Pa. C. C. Rep. 662; Snyder’s License, 2 Pa. Dist. Rep. 785 ; Donovan’s License, 9 Pa. Superior Ct. 647.</p> <p>There can be no doubt but that this covenant can be specifically enforced in equity: Clarlc v. Martin, 49 Pa. 289 ; St. Andrew’s Lutheran Church’s Appeal, 67 Pa. 512; Blood v. Crew-Levick Co., 177 Pa. 606 ; Ogontz Land & Improvement Co. v. Johnson, 168 Pa. 178; Landell v. Hamilton, 175 Pa. 327; Landell v. Hamilton, 177 Pa. 23; Allen v. Hamilton, 177 Pa. 26; Meigs v. Milligan, 177 Pa. 66.</p> <p>Or that the grantor may maintain an action at law for damages for a breach thereof: Keating v. Springer, 146 111. 481 (34 N. E. Repr. 805) ; Orne v. Fridenberg, 143 Pa. 487.</p>

<p>Appeal, No. 75, Oct. T., 1903, by plaintiff, from order of O. P. No. 3, Phila. Co., March T., 1903, No. 554, discharging rule for judgment in case of Alexander J. Brian v. William J. Merrill.</p> <p>Assumpsit on a promissory note.</p> <p>The note in suit was as follows :</p> <p>“ 1500.00. Philadelphia, Pa., Oct. 14,1902.</p> <p>“Four months after date I promise to pay to the order of William J. Merrill Five Hundred Dollars at 901 Arcade Building, Phila.</p> <p>“Without defalcation for value received.</p> <p>“No. — Due Feb. 16.</p> <p>(Signed) “ Geo. O. Shakespeare. ”</p> <p>Indorsed: “ Wm. J. Merrill, Geo. H. Dixon, Alex. J. Brian.” Protested.</p> <p>Defendant filed the following affidavit of defense:</p> <p>I am the above-named defendant, and have a just and true defense to the whole of the plaintiff’s claim in the above-recited case, the nature and character of which is as follows:</p> <p>On or about October 20,1902, I purchased from John W. Dixon, referred to in plaintiff’s statement of claim, 5,000 shares of stock of Monitor Rock Mining, Milling and Power Company, a corporation, and as part of the purchase price therefor indorsed and delivered to John W. Dixon a certain promissory note of the form described in plaintiff’s statement of claim. John W. Dixon thereupon delivered to me 5,000 shares of said stock.</p> <p>Shortly thereafter I discovered that said stock had been issued by said company to the said Dixon without consideration, and have notice from said company that my title to said stock will be contested; of all of which the said John W. Dixon has had notice. There was no consideration for my delivering said note to said Dixon, who fraudulently induced me to deliver said noté to him.</p> <p>I am informed and believe, and expect to be able to prove on the trial of this cause, that neither George H. Dixon, referred to in plaintiff’s statement of claim, nor plaintiff became a holder of this note in due course, or for value; that said George H. Dixon is the son of said John W. Dixon and had knowledge of the circumstances under which said note was gained by the said John W. Dixon from me; that the plaintiff is an attorney at law, practicing in the county of Philadelphia, and defendant believes that this suit is brought for the use and benefit of John W. Dixon, who is the real owner of said note, and not for the benefit of the plaintiff, who is merely a nominal holder; all of which I expect to be able to prove upon the trial of the above cause, if any such there shall be.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Criminal law — Election law — Ballots—Primary election — Numbering ballots.</p> <p>An officer at a primary election indicted for fraudulently counting and returning ballots, cannot set up as a defense his own neglect to cause the ballots to be numbered as required by the rules of the party, where it appears that every person who had any interest to object accepted the ballots as voted at the time, and that the ballots were taken into account by the proper authorities of the party in determining who were nominated for the various offices voted for at the primary election.</p>

<p>Auditors — Fees—Exceptions to report — Bes adjudicata.</p> <p>Where the auditor of the account of a receiver fixes his own fee in his report and no exception is filed to his fee within ten days after notice as required by the rule of court, and thereafter the court refuses an application to file exceptions nunc pro tunc, the matter of the fee is res adiudieata, and cannot be raised in a subsequent equity suit against the auditor and the receiver, to prevent the former from receiving and the latter from paying an amount in excess of the statutory fee per day for the number of days occupied by the auditor.</p>

<p>Appeal, No. 122, Oct. T., 1903, by defendants, from decree of C. P. No. 5, Pbila. Co., March T., 1903, No. 1337, on bill in equity in case of W. Creighton Owens v. Bernard X. Naughton and Julia V. Naughton, his Wife.</p> <p>Bill in equity for partition.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in overruling demurrer and entering a decree in favor of plaintiff.</p> <p>Where land is devised to a trustee to sell and divide the proceeds, the cestui que trust takes no such estate as will be subject to a partition: Hutchison's App., 82 Pa. 509.</p> <p>The trust under the will is not such a dry or passive one as would be executed by the statute of uses, and therefore vests the legal title in the cestui que trust: Kuhn v. Newman, 26 Pa. 227 ; Dodson v. Ball, 60 Pa. 492.</p> <p>Clearly the trust here is a dry or passive trust and consequently falls, the legal title vesting in the cestui que trustent without more: Kay v. Scates, 37 Pa. 31; Tucker’s App., 75 Pa. 354; Rea v. Girard Life Ins., etc., Co., 16 W. N. C. 48; Megaree v. Naglee, 64 Pa. 216 ; Rodrigue’s App., 22 W. N. C. 358; Yarnall’s App., 70 Pa. 335; Williams’s App., 83 Pa. 377; Carson v. Fuhs et al., 131 Pa. 256; Eshbach’s Est., 197 Pa. 153; Boyd’s Est., 199 Pa. 487.</p>

<p>Set-off — Affidavit of defense — Specific averments.</p> <p>Allegations of set-off in an affidavit of defense in general terms are not to be regarded. The averments must be as specific as those used in a statement of claim. The defendant in respect to a claim of set-off is the actor. He may defalk an amount less than, equal to, or in excess of the claim of the plaintiff, and, should the case go to a jury, demand a certificate in his favor; he has the affirmation of the issue.</p> <p>In an action for goods sold and delivered the defendant in an affidavit of defense did not deny the plaintiff’s claim, but averred that he had suffered a loss in an amount stated, because plaintiff had failed to deliver a number of articles referred to in an exhibit attached to plaintiff’s statement. How many of each kind of the articles the plaintiff failed to deliver, with the price of the same was not averred, nor was there any specific information as to contracts made by the defendant which he was unable to fill, nor whether the defendant was unable to obtain the goods of a similar kind and quality at the same price. Held, that the affidavit of defense was insufficient.</p>

<p>Appeal, No. 146, Oct. T., 1903, by John A. Casely, from decree of O. C. Phila. Co., Oct. T., 1892, No. 585, dismissing exceptions to adjudication in estate of Alexander Casely, deceased.</p> <p>Exceptions to adjudication.</p> <p>At the audit before Ferguson, J., objections were made to the following items in the account:</p> <p>Commissions to accountant .... $274 87</p> <p>Commissions to A. C. Wheller, real estate agent 274 87</p> <p>Fee to D. J. Callaghan, Esq. .... 150 00</p> <p>The adjudication was in part as follows :</p> <p>The auditing judge does not see any reason why the accountant should not have his commission. The amount charged is very reasonable for ten years’ services, and there is no allegation of any dereliction of duty on his part, or want of honesty or fidelity in the management of the estate.</p> <p>The auditing judge supposes, however, that the objection to this item is made in connection with the objection to the next item above referred to, which is for commissions paid to a rea] estate agent who had charge of the property. It was claimed that the trustee had no right to pay an agent a commission for collecting rents, and charge, in addition thereto, a commission himself. This position is not tenable, as it has been held in numerous cases in this court that a trustee has the right to employ an agent to take charge of real estate and collect the rents thereof, and that he is entitled to his commission upon the money which goes through bis hands and which he has the labor and responsibility of distributing, as well as having the agent paid for his services the usual compensation.</p> <p>But it was alleged in this case that the agent in question did not perform the service of collecting the rents, but that the same were collected by the trustee himself. This raised a question of fact, and considerable testimony was taken. It appeared that the trust estate consisted, as before stated, of undivided interests in a number of pieces of real estate, some of the interests being small as one twenty-fourth. Therefore it became very necessary that one person should have charge of all of it and make the distribution of the rents among the various persons entitled thereto as the same were received. Mr. Wheller, a real estate agent, was selected for this purpose. He had the charge of that real estate; he made the leases when new leases were necessary; he looked after the repairs and he collected the rents. It was proved, however, by the tenants that in a number of cases they paid the rent to the trustee directly. But this happened because he was interested in other property in the neighborhood, and, as a matter of accommodation and convenience to Mr. Wheller, he carried the rent to him, to whom it had to go in order to make distribution among the parties interested. The trustee was not entitled to the whole rent received by him, but was only entitled to the fractional part which belonged to the cestui que trust, and therefore he carried it to Mr. Wheller for the purposes aforesaid. Besides, the evidence upon this point, while showing that the trustee did sometimes collect the rent, was so vague, indefinite and uncertain as to the amounts which •were collected by him that no surcharge could possibly be (founded thereon. In fact, counsel admitted at the audit that they did. not know what amount they claimed. Under these circumstances it is impossible for the court to find out.</p> <p>These items of credit are allowed.</p> <p>The objection made to Mr. Callaghan’s fee of $150 was also overruled. The account, as before stated, covers ten years, and it required twenty-four closely typewritten pages to state it. The auditing judge thinks that in view of these services the fee is not unreasonable, and this credit is also allowed.</p> <p>Exceptions to the adjudication were dismissed by the court in banc, Penrose, J., filing the following opinion :</p> <p>The questions represented by the exceptions have been very fully considered by the auditing judge, and as they relate to matters of fact, his findings in the absence of clearly shown error are conclusive. We think, however, that his conclusions are entirely correct. The account is very voluminous and covers a period of ten years, yet every payment for which credit is claimed has been so completely established that not one is the subject of exception. The fact that the trust estate is held jointly with other owners explains very satisfactorily the reason for allowance of commission to the agent having charge of the collections of the rent of the joint property, whose rights in this respect are not affected by reasons of collections, having, in the first instance, often been made for him by the accountant. The latter was only entitled to receive from him the proportion belonging to the trust estate, and having so received it became, in turn, entitled to the commissions usually allowed to a trustee.</p> <p>So far as Ave can see, there is no ground, whatever, for disalloAving these commissions. There is no duty on the part of the ordinary trustee to file “ triennial accounts,” though such an idea seems to exist. The error may have had its origin in the act of assembly requiring triennial accounts to be filed (in the clerk’s office, and not for adjudication) by a guardian; or perhaps the Act of April 11, 1879, P. L. 21, providing for the appointment of trustees to take charge of the property of those who have been absent for a specified period, and for the filing of triennial accounts by such trustees, may, from the arrange, ment of the act in the digests, have been incautiously read as applying to every species of trustees. The act, of course, has nothing to do with the trust which is the subject of the present account, though it was in the power of the cestui que trust, at all times, to compel the filing of an account by citation from this court.</p> <p>We think also that the allowance to counsel for preparation of an account so voluminous, and for protracted services before the auditing judge was not unreasonable.</p> <p>The exceptions are overruled, and the adjudication confirmed absolutely.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p> <p>The accountant acted falsely, unfaithfully and dishonestly toward the estate in attempting to charge it for services which Mr. Wheller had never rendered and has thus forfeited his trustee's commissions in asking for a false credit: Swartswalter’s Account, 4 Watts, 77; Clauser’s Estate, 84 Pa. 51; Trust Estate of Sarah Nagle, 12 Philadelphia, 25 ; Steger’s Estate, 3 W. N. C. 368.</p> <p>The attorney’s fees are excessive as allowed to the accountant : Kidder’s Est., 3 Kulp, 443; Hays’s Est., 153 Pa. 328; Willits’s App., 20 W. N. C. 22; Schuck’s Est., 30 P. L. J. 431; Nicklin’s Est., 2 W. N. C. 495; Sterrett’s App., 2 P. & W. 419; Dougherty’s App., 20 W. N. C. 29.</p>

<p>Appeals — Statement of question involved — Paper-books—Nos pros.</p> <p>Ail appeal will be non prossed where the appellant’s paper-book fails to contain a statement of the question involved as required by Rule 17.</p>