Volume 24 — Pennsylvania Superior Court Reports

<p>Appeal, No. 163, Oct. T., 1903, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1899, No. 288, dismissing exceptions to report of referee, in case of James It. Taylor & Walter R. Taylor, trading as Taylor & Son, v. Leon H. Folz.</p> <p>Exceptions to report of Charles Biddle, Esq., referee.</p> <p>The facts are set forth in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Negligence — Street railways — Speed of car.</p> <p>It is the duty of a passenger railway company to run its cars, by day and by night, with or without headlights, in such manner, as to speed and attention, as not to imperil the safety of others who may be lawfully and with due care using the roadway. The degree of care required for this purpose necessarily varies with the circumstances, under some conditions arising from the character of the region traversed,'the grade of the track, and the various surroundings, a rate of speed permitting the stoppage of the car at a point within the range of its headlight, or even at a shorter distance, may be necessary, while under different conditions this rate may safely be exceeded.</p> <p>It is reversible error to affirm without qualification a point as follows: “ A railway is negligent if it runs its car at a rate of speed that will not permit its stopping within the distance covered by its own headlight.”</p> <p>Appeals — Assignments of error — Points—Trial.</p> <p>The practice of presenting, as a point, an excerpt from an opinion of an appellate court, is not to be unreservedly commended, since a detached passage may give a misleading view of the essential point decided ; and when such a passage is thus used, its presentation in a garbled form is to be unqualifiedly condemned.</p>

Appeal, No. 31, Oct. T., 1903, by defendant, from judgment of C. P. McKean County, Oct. T., 1901, No. 127, on verdict for plaintiff, in case of Sarah Olin v. Bradford City. Trespass to recover damages for personal injuries. Before Morrison, P. J. At the trial it appeared that on April 10, 1901, plaintiff while walking with a companion tripped and fell over a loose plank in the sidewalk. The • plank flew up as plaintiff’s companion stepped upon it.

<p>Appeal, No. 175, Oct. T., 1903, by defendant, from order of C. P. No. 5, Phila. Co., June Term, 1903, No. 1267, discharging rule to open judgment in case of Herman & Cohen to use of Louis Herman v. Harry Potamkin.</p> <p>Rule to open judgment.</p> <p>The facts ^are stated in the opinion of the Superior Court.</p> <p>Error assigned was in discharging rule to open judgment.</p>

Appeal, No. 209, Oct. T., 1903, by plaintiff, from judgment of C. P. Northumberland Co., Sept. T., 1903, No. 178, for defendant on case stated in suit of Samuel Deitrick v. Northumberland County. Case stated to determine liability of county for fees to sheriff. From the case stated it appeared that plaintiff claimed fees for serving subpoenas in a large number of criminal cases.

Appeal, No. 210, Oct. T., 1903, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1903, No. 202, for plaintiff on case stated in suit of Michael O’Leary v. Northumberland County. Case stated to determine the liability of the county for fees for serving subpoenas. Before Savidge, P. J. From the case stated it appeared that the plaintiff had served the subpoenas at the instance of the district attorney. The court entered judgment for plaintiff for $67.80.

<p>Appeal, No. 197, Oct. T., 1903, by Daniel J. Trotter, from order of Q. S. Phila. Co., March T., 1903, No. 1566, refusing a retail liquor license in In re Application of'Daniel J. Trotter.</p>

<p>Husband and wife — Damages for injury to wife — Negligence.</p> <p>Where a husband has been deprived by the negligent act of another, of the aid, society, comfort and assistance of his wife, he is entitled to compensation without proving the value of such aid, society, comfort and assistance, in dollar's and cents. , '■■■■•</p> <p>In an action by a husband to recover damages for the negligent injury of his wife it is error for the court to charge as follows: “In this particular ease the matter of the loss of earning power or the loss of wages or the interference with her domestic duties is not a matter that you can consider even in connection with the husband’s claim, because there is no evidence here of the value of her services.' There is nothing here by which you could measure their value. You have not heard what she could earn. You have not been informed of what' the husband has been obliged to pay some on<}, if he has paid anything, to take her place in the performance of domestic duties which she generally performed about his house. Juries must try cases according to evidence. They are not allowed to run into conjecture or to indulge in guesswork.”</p>

<p>Appeal, No. 238, Oct. T., 1902, by Rowland A. Miller, from decree of O. C. Franklin Co., dismissing exceptions to report of auditor, in the matter of the estate of Rowland A. Miller, a minor.</p> <p>Exceptions to report of Walter B. Gilmore, Esq., auditor.</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>Appeal, No. 147, Oct. T., 1903, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1902, No. 933, on verdict for plaintiff.in case of Jennie C. Dunlap v. James Reardon.</p> <p>Ejectment for land in the twenty-eighth- ward of the city of Philadelphia. Before Audenried, J.</p> <p>At the trial it appeared that prior to May 7, 1883, Joseph Allison was the owner of a lot of ground on Indian Queen lane, the width of which was fifty feet. On this land there were built two adjoining houses. On May 7, 1883, Allison conveyed to James Reardon one half of the lot with the house erected thereon, and on the same day conveyed to John Quinn the other half of the lot with the house erected on it. The two lots back of the houses were not separated by a fence until 1884. In that year Quinn erected a fence on a line which was the projection of the line of the wall to the rear of the lots. Reardon measured his lot and found that he had only a width of twenty-four feet one inch. In the deeds to Reardon and Quinn the lots conveyed to them were described respectively as being twenty-five feet wide. The wall of the house was therefore nine inches away from the center line designated by the deeds. A dispute about the fence arose between the parties, and a surveyor was called in, and a survey made according to the deeds. Subsequently Quinn moved his fence back to the line designated by the surveyor. By various mesne conveyances Quinn’s lot became vested in the plaintiff. When plaintiff took title the fence was on the line where Quinn last erected it. The court gave binding instructions for plaintiff.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 166, Oct. T., 1903, by plaintiff, from order of C. P. Blair Co., Oct. T., 1899, No. 25, dismissing petition for a citation to account, In re Assigned Estate of Juniata Building and Loan Association.</p> <p>Petition for citation to account. Before Bell, P. J.</p> <p>Errors assigned (1-3) are quoted in opinion of Superior Court..</p>

<p>Deed — Husband and wife — Estoppel—Evidence.</p> <p>Where a husband takes title to real estate in his own name and gives his judgment note for the purchase money, and his wife has full knowledge of the deed, and permits her husband to mortgage the property twice with her full knowledge, she cannot after the expiration of sixteen years, and after the property has been sold in foreclosure proceedings under the second mortgage claim that she had paid for the property out of her own money, and that the deed had been made to her husband by mistake.</p> <p>In such a case where the deed to the husband shows on its face that the grantor who was a justice of the peace took his own acknowledgment, it is not error for the court after it had admitted the record of the deed in evidence, to permit the plaintiff in rebuttal to produce in evidence the deed itself, there being proof of the execution and delivery of the deed.</p>

Appeal, No. 165, Oct. T., 1903, by-defendant, from judgment of O. P. Berks Co., Dec. T., 1899, No. 31, on verdict for plaintiff, in case of Henry Sholl v. Henry Stump. Trespass quare clausum fregit.

Appeal, No. 172, Oct. T., 1902, by plaintiff, from order of C. P. Lancaster Co., April T., 1902, No. 75, refusing to take off nonsuit in case of Mary Louisa Gable v. George Crane, Agent. Assumpsit for money had and received. Before Landis, J. At the trial the court entered a compulsory nonsuit.

Appeal, No. 14, Oct. T., 1903, by defendants, from judgment of C. P. Chester Co., Oct. T., 1901, No. 36, on verdict for plaintiff in case of Joseph T. Wharton v. Susan Harlan and Henry P. Shimer. Trespass quare clausum fregit. Before Butler, J. The facts appear by the opinion of the Superior Court. The defendants presented these points: 1.

Appeal, No. 30, Oct. T., 1903, by plaintiff, from judgment of C. P. Delaware Co., March T., 1901, No. 275, for defendant non obstante veredicto in case of Alexander Munis v. Edmund Oliver. Assumpsit for wages as watchman. Verdict for plaintiff for $53.50 subject to question of law reserved. Error assigned was in entering judgment for defendant non obstante veredicto.

Appeal, No. 150, Oct. T., 1903, by plaintiff, from judgment of C. P. Delaware Co., June T., 1902, No. 253, on verdict for defendant in case of Charles Wilson, Jr., v. Mitchell Barrett. Appeal from judgment of justice of the peace. Before' Hemphill, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in refusing binding instructions for plaintiff, and in submitting the case to the jury.

Appeal, No. 204, Oct. T., 1903, by defendants, from judgment of C. P. Chester Co., Jan. T., 1902, No. 31, on verdict for plaintiff in case of Benjamin Irwin v. W. S. Harris, Thomas Hudson, M. J. Laughlin and Cooley A. Giffing. Assumpsit on a bond. Before Hemphill, P. J. The facts are stated in the opinion of the Superior Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $1,000. Defendant appealed.

Appeal, No. 221, Oct. T., 1903, by H. May Dutton, from verdict of a jury in C. P. Delaware Co., March T., 1902, No. 79, in case of the Delaware County Trust, Safe Deposit & Title Insurance Company, Receiver, v. William Lee. Replevin for machinery. The court directed the conditional verdict quoted in the opinion of the Superior Court. Error assigned was the conditional verdict as quoted.

Appeal, No. 59, Oct. T., 1903, by Lawrence T. Warden, from order of Q. S. Bucks Co., refusing application for soldier’s license in the matter of the appeal of Lawrence T. Warden. Petition for soldier’s license under the Act of June 9, 1891,-P. L. 250. The court dismissed the petition. Error assigned was the order of the court.

<p>Municipalities — Police powers — Street railways — License tax on cars.</p> <p>A municipality has authority under its general police power to impose an annual license tax of $25.00 upon each street car run or operated upon any street or road in the city, and it is immaterial that the ordinance directs that such license tax shall be paid into the city treasury for the use of the city. In ascertaining the number of cars subject to such tax, the number of car trucks alone should be considered. It is immaterial that the car body on the truck may be changed from a winter body to a summer body. Such bodies when not in use and in the shops or car barns are merely auxiliary parts of the ears in actual use, and are not subject to the license tax.</p>

<p>Appeal, No. 101, Oct. T., 1903, by plaintiff, from order of O. P. No. 2, Phila. Co., Dec. T., 1899, •No. 134, dismissing exceptions to referee’s report in case of Asbestos Manufacturing Company v. David R. Burns.</p> <p>Exceptions to report of John W. Patton, Esq., referee.</p> <p>From the record it appeared that on August 10,1898, the plaintiff entered into an agreement with the defendant to furnish in accordance with plans and specifications the coverings for pipes in connection with the steam heating and ventilating system at the Philadelphia county prison, for the erection of which the defendant was the contractor with the prison authorities. The plaintiff entered on the performance of its contract and continued working at the same until about October 1, 1898, when Mr. Motherwell, the superintendent of the county prison, took from plaintiff’s workmen their tickets of admission to the prison, and on October 12,1898, the defendant notified the plaintiff in writing that having the power under the specifications he would finish the work up immediately and deduct the cost from plaintiff’s contract. The defendant accordingly employed one R. Willis Lyle to finish plaintiff’s contract and paid Mr. Lyle $799.36 for so doing. The plaintiff was to have received from the defendant for the entire work, $1,300. This action is brought to recover the difference, namely, $500.64, with interest, from December 1,1898, the date when the entire work was completed.</p> <p>The referee held that the plaintiff’s contract was an entire one, and that it could not recover without showing entire performance or that it was prevented from performing by the defendant, and that the evidence did not show that the plaintiff had been so prevented. The plaintiff, on the other hand, contended that under the specifications and the defendant’s letter to plaintiff, of October 12,1898, the completion of the contract by Mr. Lyle was to be construed as performance by the plaintiff, and upon plaintiff giving credit to the defendant for the amount paid by him to Mr. Lyle to complete the contract, it was entitled to recover the difference.</p> <p>Exceptions to the referee’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to referee’s report.</p>

Appeal, No. 12, April T., 1904, by Patrick J. Walsh, from order of Q. S. Allegheny Co., March T., 1903, No. 463, granting liquor license in In re Petition of Patrick J. Walsh. Petition for retail liquor license.

Appeal, No. 15, April T., 1904, by William Wallace, from order of Q. S. Allegheny Co., March T., 1903, No. Ill, granting liquor license in In re Petition of William Wallace Walker. Petition for liquor license. The opinion of the Superior Court states the facts. Error assigned was the order of the court.

<p>Appeal, No. 284, Oct. T., 1902, by plaintiff, from judgment of C. P. Fulton Co., Jan. T., 1899, No. 52, on verdict for defendant in casé of F. C. Austin Manufacturing Company to use of Florence Hanks v. Ayr Township.</p> <p>Assumpsit on township orders.</p> <p>At the trial it appeared that on September 23, 1892, George W. Glenn and David I. Rinedollar addressed a communication in writing to the plaintiff directing that two road machines of the kind manufactured by plaintiff should be sent to Ayr township for trial and inspection. The paper contained an agreement that if the machines did the work as warranted, the supervisors would purchase them at a price stated. This paper was signed separately by the supervisors and without previous consultation. The machines were delivered by the plaintiff in the township, and the two supervisors by appointment attended the trial and inspection, and after deliberation purchased the machines and gave the orders on which suit was brought. The court gave binding instructions for defendant, charging in part as follows:</p> <p>The transaction out of which this controversy arises may be briefly stated. In September, 1892, an agent of the legal plaintiff in the action called upon each of these two supervisors, saw them separately, and commended the machine manufactured by the company he represented. His purpose was to make a sale. Failing in this effort, he called to see each supervisor some time during the following month on the same business. He saw Mr. Rinedollar first, at the latter’s home, and submitted to him a contract, in which the price of the machine was set out, and a description, with a guarantee that the machine would upon a test accomplish certain results. This contract contained further an obligation to accept the machine on condition that it met the stipulations of the guarantee, and to pay for it by two notes. In short, upon its terms, if legally entered into, it would amount to a conditional sale, and the contract would impose a liability that could be legally enforced, if the conditions were met, whether notes were given or not, Mr. Rinedollar, one of the supervisors, signed this contract, with the understanding with the agent that it was to bind only in case his associate supervisor, Mr. Glenn, signed his name thereto. Having secured Rinedollar’s signature to the contract, the agent then proceeded to Mr. Glenn’s who added his name to the contract. Subsequently, during the following-month — November'—-the machine having arrived, the test was made, and, in the judgment of both supervisors, it met the requirements of the guarantee, and they thereupon gave the notes now in suit in payment.</p> <p>The important inquiry in the case relates to the execution of the original contract. It is competent for township supervisors to contract for road, machines, and they may pledge the credit of the township for the payment of the debt so incurred; but contracting in this way is not a ministerial, but a deliberative act, requiring the exercise of judgment and discretion. Supervisors can bind the township by such a contract only where they act together, not where they act individually and separately. What is required in such case is that the contract should be the result of conference, comparison of views, and interchange of ideas.</p> <p>Referring to the particular contract, the evidence fails to show that prior to the time it was entered into by these supervisors there had ever been any conference on' the subject of the purchase, or that there had been any joint consideration or action. If either knew the views of the other, his knowledge in this regard must have been derived from the agent of the plaintiff company, or some third party.</p> <p>In the absence of all evidence of joint consideration and action, in which the township would have the benefit of a final conclusion reached after deliberation and conference, such a contract would impose no liability on the township, and none could be enforced.</p> <p>I have said the material inquiry relates to the contract, for this was a sale, depending upon a condition that was after-wards met. Whatever life there is in the notes that were subsequently given, must be derived from the earlier contract. If that contract was invalid, the notes based thereon must be equally so. The notes at most were simply evidence that the condition of the sale had been met; that the machine corresponded with the guarantee. The power of the supervisors to bind the township by notes depended on the validity of the original contract in pursuance of which the notes were given.</p> <p>I instruct you that the contract was not entered 'into in such way as to impose liability on the township, and direct that your verdict be for the defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 21, March T., 1903, by defendant, from decree of C. P. Dauphin Co., Equity Docket Np. 298, continuing preliminary injunction in case of Pennsylvania Telephone Company v. Charles Hoover.</p> <p>Bill in equity for an injunction to restrain defendant from interfering with the working and use of telephone lines constructed upon his lands. Before Weiss, P. J.</p> <p>Motion to continue preliminary injunction.</p> <p>The only question involved was the right of the plaintiff to exercise the power of eminent domain.</p> <p>Error assigned was decree continuing preliminary injunction.</p>

<p>Telephone companies — Eminent domain — Act of April 29, 1874, P. L. 73.</p> <p>Under the Act of April 29,1874, sec. 33, P. L. 73, a telephone company has not the right of eminent domain over the private lands of individual owners.</p> <p>AVhere a telephone company has filed a bond general in its terms so as to cover damages resulting from the erection of its poles both on the private lands of an individual owner and on roads abutting on such lands, and the court has awarded a preliminary injunction against the company at the instance of the owner, the court in continuing the injunction will omit all reference to the roads, although the supervisors have not consented to the use of the roads.</p> <p>Not decided whether municipal consent is necessary to the use of roads by a telephone company.</p>

<p>Appeal, No. 120, April T., 1903, by defendants, from judgment of C. P. Erie Co., Sept. T., 1901, No. 149, on verdict for plaintiff in case of Erie v. Ellen Grant et al.</p> <p>Scire facias for municipal claim. Before Walling, P. J.</p> <p>Defendant presented these points :</p> <p>1. That the contract under which this work was done is absolutely null and void, and that therefore the plaintiff is not entitled to recover, and the verdict of the jury must be for the defendant. Answer : Refused. [2]</p> <p>2. That the evidence showing that the property owners were not given sixty days in which to agree upon the kind of pavement to be laid as provided by article 5, section 3 of clause 10 of the act of assembly of May 23, 1889, and that the petition upon which the ordinance for the improvement in question was enacted was signed by less than a majority of the property owners whose property fronted upon said improvement, and who owned less than a majority of the frontage abutting said improvement, and that therefore the said ordinance is void, and the verdict must be for the defendant. Answer : Refused. [3]</p> <p>3. That the ordinance in question is void because it was enacted in the select council by the affirmative vote of William S. Gintz, a member of said council from the first ward, who had signed the petition for said pavement, and who was therefore disqualified from voting thereupon. Answer: Refused. [4]</p> <p>4. That under all the evidence in this case the verdict must be for the defendants. Answer : Refused. [5]</p> <p>Verdict and judgment for plaintiff for $162.06. Defendant appealed.</p> <p>Errors assigned were (2-5) above instructions, quoting them.</p>

<p>Road law — Report of jury of view — Review—Court of quarter session —Evidence.</p> <p>The court of quarter sessions has authority to review the findings of a road jury upon questions of fact, and therefore may receive testimony in support of exceptions filed to the report of the jury.-</p>

<p>Appeal, No. 89, Oct. T., 1903, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1902, No. 1042, making absolute rule for judgment, and discharging rule to open judgment.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule to open judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were (1) in making absolute rule for judgment; (2) discharging rule to open judgment.</p>

<p>Appeal, No. 41, Oct. T., 1903, by plaintiff, from order of C. P. No. 3, Philadepbia Co., Dec. T., 1897, No. 806, M. L. D., sustaining exceptions to referee’s report in case of Horn & Brannen Manufacturing Company v. Walter E. Steelman.</p> <p>Exceptions to report of E. Spencer Miller, Esq., referee.</p> <p>The opinion of the Superior Court states the case.</p> <p>JError assigned was (2) in sustaining exceptions to referee’s report and entering judgment contrary to his recommendation without assigning any reason therefor.</p>

<p>Appeal, No. 107, Oct. T., 1903, by defendant, from judgment of C. P. Franklin Co., Sept. T., 1902, No. 104, on verdict for plaintiff, in case of Wolf Company v. Western Union Telegraph Company.</p> <p>Trespass for negligence in the transmission of a telegram. Before John Stewart, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $935.05. Defendant appealed.</p> <p>Errors assigned were (1) “ That the learned judge who tried the cause erred in overruling the objection of the defendant and admitting the testimony of the witness, George W. Klee, in answer to the question: Would you not consider it negligence on the part of any telegraph operator to undertake to substitute words for figures in a message ? ” (2, 3) instructions quoted at length in the opinion of the Superior Court; (4) portion of charge as follows : “Now, if you find that the defendant did not correctly transmit the Osborn telegram to the Wolf Company, but negligently committed a mistake, whereby the words ‘ Seventeen hundred dollars ’ were communicated to the plaintiff as ‘seven hundred dollars,’ then you will proceed to inquire whether the plaintiff was, by reason of such negligence, misled to his prejudice and damage. The evidence on this branch of the case rests mainly on the testimony of Mr. Pollard, who was the business manager of the plaintiff, , and who conducted this particular negotiation. He says that, relying on the integrity and genuineness of this Osborn telegram of August 9, he agreed for the plaintiff to supply the Schaff Electric Company, the plant described in his letter to the Erie City Iron Company, and referred to in his telegram, at a much lower price than he was able to procure it for; that for what he had estimated in his bid at $735, covering this particular machinery, plaintiff was obliged to pay $1,610. This testimony is not contradicted, nor is it impeached, and you will be likely to accept it as correct and true.”</p>

<p>Evidence — Expert witnesses — Opinion of expert — Municipal lien — Urban property.</p> <p>Where mere descriptive language is inadequate to convey to the jury the precise facts of their bearing on the issue, the description of the witness must of necessity be allowed to be supplemented by his opinion, in order to put the jury in position to make the final decision of the fact. But where the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinion of witnesses, expert or other, are not admissible.</p> <p>Where on the trial of a municipal claim for the costs of a sewer, a question is raised as to whether the property is rural or urban, and it appears that the circumstances relating to the land are susceptible of being fully and adequately described to the jury, and are suoh that the jury can estimate their bearing on the issue, and draw conclusion therefrom, the opinions of real estate experts as to whether the property is rural or urban are not admissible.</p> <p>Evidence — Cross-examination—Scire facias sur municipal lien — Credibility of witness.</p> <p>On the trial of a sch-e facias sur municipal lien, whei’e a witness has given testimony in chief, tending to show that the property in question is rural, it is competent on cross-examination to interrogate him as to acts on his part in the management of the same property which were inconsistent therewith and this for the purpose of affecting his credibility as a witness.</p>

Appeal, No. 254, Oct. T., 1902, by Clara Myers, widow of John E. Myers, deceased, from decree O. C. Blair Co., No. 174, 1902, disallowing widow’s exemption in estate of John E. Myers, deceased. Petition for widow’s exemption. The facts are stated in the opinion of the Superior Court.

<p>Appeals, Nos. 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141 and 142, Oct. T., 1903, by defendant, from judgment of C. P. No. 4, Pliila. Co., Dec. T., 1896, Nos. 1534, 1535, 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1548, 1544, 1545 and 1560, M. L. D., on verdict for plaintiff in case of Philadelphia to use of John McCann to use of Joseph N. Ruch v. Estate of Richard J. Dobbins, Deceased, et al.</p>

Appeal, No. 39, Oct. T., 1903, by defendant, from judgment of C. P. Huntingdon Co., May T., 1901, No. 23, on verdict for plaintiff in case of D. R. Fry v. Pennsylvania Railroad Company. Trespass for injuries to a team, sled and harness. Before Bailey, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $317. Defendant appealed. ¡Errors assigned were (1-3) answers to points quoted in the opinion of the Superior Court.

Appeal, No. 48 Oct. T., 1903, by MiltonEby, from decree of O. C. Lancaster Co., Feb. T., 1902, No. 82, dismissing exceptions to auditor’s report in estate of Robert A. Evans, deceased. Exceptions to report of M. G. Schaeffer, Esq. From the record it appear’d that Milton Eby, executor of Robert A. Evans, was defendant in an action of ejectment which resulted in saving property to the estate of his testator.

Appeal, No. 61, Oct. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., 1898, No. 92, on verdict for defendant in case of Martin Seibel v. Firemen’s Insurance Company. Assumpsit on a policy of lire insurance. Before Livingston, P. J. The facts are stated- in the opinion of the Superior Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

<p>Appeal, No. 88, Oct. T., 1902, by plaintiff, from judgment of G. P. Delaware Co., March T., 1898, No. 145, on verdict for defendant in case of Chester City v. William I. Schaffer, Administrator of Nathan Pennell, Deceased.</p> <p>Trespass for negligence.</p> <p>From the record it appeared that in a suit by Jacob Cass and Barbara Cass against the city of Chester instituted in Delaware county at No. 75, December term, 1895, plaintiff, recovered a judgment for $1,150 which was subsequently settled by the city paying $1,100. The claim in the suit was for damages for personal injuries to Mrs. Cass caused by falling on a defective sidewalk in front of the premises of Nathan Pennell. The present action was brought to recover from the administrator of Nathan Pennell the amount of the city’s loss.</p> <p>J. H. Hinkson, who had been attorney for Mr. and Mrs. Cass, in suit against city, was asked this question:</p> <p>“ Q. Did you ever see Mr. Pennell relative to the suit of Cass against him ? A. I have no recollection of seeing him. Q. Did you ever see his attorney, W. I. Schaffer, relative to that suit? A. Yes, sir. Q. When was that? A. I can’t fix the date, but it was before the trial of the Cass case in court, and after summons issued. Q. The two suits, I think, you say were brought in* October of 1895; do you remember when the Cass case against the city was tried ? A. About a year afterwards. Q. I understand you to say that you saw Mr. Schaffer concerning this Cass against Pennell suit between the beginning of the action in October of 1895 and the trial of the suit of Cass against the city in October of 1896? A. Yes, sir. Q. Did you have any conversation with Mr. Schaffer concerning these two suits, I mean the suits of Cass against the city and Cass against Pennell for this accident.”</p> <p>Objected to by Mr. Schaffer.</p> <p>“ A. Yes, sir.”</p> <p>Objection overruled.</p> <p>To which ruling counsel for the defendant objects and prays the court to seal a bill of exceptions thereto, which is accordingly done.</p> <p>Mr. Cochran: “ Q. At that time did you tell Mr. Schaffer, who was the attorney for Nathan Pennell, and who had entered an appearance in the case of Cass against Nathan Pennell for an accident sustained by Mrs. Cass in front of 415 Front street, the property of Nathan Pennell, that you had, for the same accident at the same time brought suit on behalf of Mrs. Cass and her husband against the city of Chester ? ”</p> <p>Objected to by Mr. Schaffer.</p> <p>Witness, Joseph H. Hinkson, recalled, for plaintiff.</p> <p>The Court: Do I understand your offer to be now to have Mr. Hinkson state that he informed Mr. Schaffer of the pending suit and not to follow it up by showing it was communicated to Mr. Pennell?</p> <p>Mr. Cochran: That is- my offer.</p> <p>The-Court: I shall exclude it upon this ground: the employment of Mr. Schaffer was in the case of Cass against Pennell, and that notice to him at all would be in a matter arising out of that employment, and I do not think that notice to Mr. Schaffer or anybody else that the city of Chester had also been sued, was necessarily notice to Mr. Pennell. As there is no offer to show that- it was communicated to Mr. Pennell, not being a notice in and about the employment that he had with Mr. Pennell, I exclude it.</p> <p>To which ruling counsel for the plaintiff objects and prays the court to seal a bill of exceptions thereto, which is accordingly done. '</p> <p>Mr. .Cochran: I offer in evidence the record of the case of Jacob Cass and Barbara Cass, his wife, against the city of Chester, in trespass to No. 75, December term, 1895; that is, the complete record showing ail the pleadings, the verdict, the judgment and the testimony. The record has been offered before and accepted to show two or three things. Now, I desire to offer the complete record on the grounds that in conjunction with the offer that I made to prove by Mr. Hinkson knowledge in Mr; Pennell and by the proof just adduced that Mr. Pennell’s son knew of the accident, and aided the city in the defense, that that is sufficient to take notice home to Mr. Pennell, and therefore this record should be admissible.</p> <p>Objected to by Mr. Schaffer.</p> <p>'Objection sustained.</p> <p>To which ruling counsel for the plaintiff objects and prays the court to seal a bill of exceptions thereto, which is accordingly done. [4]</p> <p>Testimony was offered as to the negligence of Pennell and of the contributory negligence of Mrs. Cass.</p> <p>The court submitted the whole case to the jury, refusing binding instructions for plaintiff. [10]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 4) rulings on. evidence, quoting the bill of exceptions ; (10) above instructions.</p>

<p>Appeal, No. 199, Oct. T., 1902, by plaintiff, from judgment of C. P. Delaware Co., for defendant on trial by court without a jury in case of Frank H. Fleer v. James Reagan.</p> <p>Trespass for slander. Before Johnson, P. J., without a jury.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were findings of fact and conclusions of law of the court without any intermediate exceptions.</p>

<p>Appeal, No. 37, Oct. T., 1903, by plaintiff, from judgment of O. P. Bradford Co., May T., 1901, No. 258, for defendant non obstante veredicto in case of Levi Wells v. J. J. Becker and C. W. Newman.</p> <p>Assumpsit for'rent. Before Fanning, P. J.</p> <p>At the trial defendant presented the following point:</p> <p>That under all the evidence in the case the plaintiff cannot recover: Answer; We decline to so charge you, but reserve a question of law, in form as follows : It is conceded that from November 1, 1898, to November 1, 1899, Levi Wells, the plaintiff, was the owner of an undivided one-half interest in a creamery plant, under a lease marked “ Exhibit 1,” and offered in evidence, dated October 29, 1891, for a piece of land on which was erected a creamery building, for the term of nine years from date, at a rental of one dollar per annum, and J; J. Becker and C. W Newman the other half. The latter being in possession and using said premises as a creamery but without any agreement as to the payment of rent, suit is brought by plaintiff to recover the rental of said plaintiff’s interest in said property. The parties being joint owners, the question of law is reserved, whether the plaintiff can maintain a suit against the. defendants in this form of action, with leave to the court to enter judgment for the defendants non obstante veredicto in case of a verdict for the plaintiff, if upon further consideration the court is of the opinion that this action cannot be maintained.</p> <p>Verdict for plaintiff for §18.88. The court in an opinion by Fanning, P. J., entered judgment for defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned was the judgment of the- court.</p>

<p>Appeal, No. 10, March T., 1904, by Commonwealth, from order of Q. S. York Co., Aug. T., 1902, No. 37, quashing indictment in case of Commonwealth v. Walter B. White.</p> <p>Motion to quash indictment for obtaining money by false pretenses. Before Bittenger, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order quashing the indictment.</p>

Appeal, No. 32, Oct. T.,1903, bydefendant, from judgment of C. P. Schuylkill Co., May T., 1901, No. 45, on verdict for defendants in case of Absalom Kershner v. Magdalena Kemmerling et al. Scire facias to revive a judgment. Before Shay, J. At the trial the plaintiff called by the defendants was asked this question as to the note on which judgment had been entered : Q. State when this note was made and who made it. Mr. Koch : Objected to. What is the purpose of the question?

<p>Affidavit of defense — Practice, ü. P. — Supplemental affidavits of defense.</p> <p>If the court deems adefense tobe probably good, but defectively stated, a supplemental and even a third affidavit may be allowed. The extent of the indulgence is largely in the discretion of the court.</p> <p>Contract — Acceptance—Fixtures—Affidavit of defense.</p> <p>It will not be presumed as a matter of law that fixtures purchased for a store have been accepted by the purchaser if it appears from an affidavit of defense that the fixtures delivered differed not only in quality and value but in kind from those contracted for, and that there was a contemporaneous refusal to accept them, followed by express notice repeated from time to time to reconstruct them so as to make them conform to the contract, or remove them.</p> <p>In an action to recover the price of store fixtures a supplemental affidavit of defense averred that the plaintiff agreed that the fixtures should be of a certain' kind as to materials, construction and finish and be satisfactory in every way to the defendant; that the fixtures furnished differed in these particulars, the difference being specifically pointed out in the affidavit from the kind of fixtures contracted for, and were of less value and fitness for the use for which they were intended, and were not satisfactory to the defendant; that while they were being placed in his store, and immediately after they were put in, the defendant refused to accept them, and at the same time notified the plaintiff to correct the imperfections described in the affidavit, which the plaintiff has neglected and refused to do; that many times afterwards he notified the plaintiff to remove the fixtures; that they are of no value to the defendant; and that he is informed, believes and expects to be able to prove that the cost of reconstructing the fixtures so as to make them comform to the terms of the contract as to materials, construction and finish, would be greater than the balance of the plaintiff’s claim that remains after deducting the payments of the items of the claim not connected with this contract. Held, that the affidavit was sufficient to prevent judgment.</p>

<p>Corporations — Suit for money loaned — Assessment—Statute of limitations.</p> <p>In an action against a corporation to recover money alleged to be loaned to the company, it appeared that the plaintiff was an officer of the corporation, and that he paid to the company $2.00 per share on his stock, which stock was full paid and nonassessable. The payment was made under a resolution of the directors providing for such assessment' per share, but resolving “ that the foregoing assessment shall be treated as an assessment loan, and that the several assessments so paid by the respective stockholders shall be so considered and held in good faith until all the stockholders shall have met and paid their respective assessments, made as hereinbefore mentioned, and shall then become absolute under this resolution.” Some of the stockholders did not pay the assessment. Plaintiff subsequently sold and assigned his stock, and some years afterward brought suit to recover the amount of the loan or assessment which he had paid. The evidence showed that the company interpreted its resolution so as to require it to refund the money to the actual owner of the stock at the time when the company would be legally called upon to refund. There was also evidence that the plaintiff had sold his stock by representations which indicated that he treated the loan as running with the stock. The company in fact paid the loan to plaintiff’s assignee. The evidence varied as to the date at which it could be fairly determined that the loan should be repaid, if the condition of subscription failed. The court charged that the company had a reasonable time to collect the assessment from all the stockholders ; that no action accrued to plaintiff until such reasonable time expired. Held, that the case was for the jury, and that a verdict and judgment should be sustained.</p>

<p>Appeal, No. 226, Oct. T., 1903, by plaintiff, from judgment of C. P. Montgomery Co., June T., 1903, No. 172, for defendant on ease stated in suit of John Larzelere v. George Harrison Fisher.</p> <p>Case stated to determine the right of sheriff to poundage. Before We and, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was judgment for defendant on the case stated.</p>

<p>Appeal, No. 228, Oct. T., 1903, by plaintiff, from order of C. P. No. 3, Phila Co., Dec. T., 1902, No. 1551, discharging rule for judgment for want of a sufficient affidavit of defense in case of Seward Wheatley v. Samuel A. Niedich.</p> <p>Assumpsit for balance of purchase money of chattels.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 205, Oct. T., 1903, by John Black, from order of C. P. No. 2, Phila. Co., March T., 1903, No. 2713, discharging rule to compel the sheriff to amend his return in cáse of Philadelphia Saving Fund Society v. Peter Purcell et al.</p> <p>Rule on sheriff to show cause why his return of sale should not be amended.</p> <p>The facts are set forth in the opinion of .the Superior Court.</p> <p>The court discharged the rule.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 249, Oct. T., 1903, by plaintiff, from judgment of O. P. No. 2, Phila. Co., Dec. T., 1900, No. 286, on verdict for defendant in case of Lucius S. Landreth v. Emma A. Howell.</p> <p>Assumpsit to recover for deficiency of acreage of land conveyed under a master’s deed in partition. Before Wilt-bank, J.</p> <p>At the trial it appeared that a master in partition sold plaintiff a tract of land containing six acres three roods and eight perches more or less at $2,500 per acre. About a year after the purchase a survey was made, and the land was found to contain two thirds of an acre less. The deficiency in money was about $1,650. This action was brought against one of the parties to whom the fund had been distributed by the master to recover from her the amount of the excess which it was claimed she was not entitled to receive.</p> <p>The trial judge entered'a nonsuit saying:</p> <p>The plaintiff bought a tract of land which is described in the deed delivered by the master to the plaintiff according to courses and distances, and its contents are stated at six acres, three roods, and eight perches, more or less. This deed followed the auctioneer’s handbill, and the description of the property in the auctioneer’s sales book, which description was assented to by the plaintiff in affixing his signature to that part of the book as indicating the amount of money he was willing to pay for the tract of land there described. The description, it turns out according to the proofs offered by the plaintiff, was one which could not be plotted; that is to say in the language of an expert, the district surveyor, you could not make the courses and distances indicated by the deed and produce a plan of the tract on paper. There was a variation which made it impossible to so do. The contents, it turns out, were less than as stated. The survey showed (the survey having been made by Mr. Gillingham according to his plot, and we will assume correctly, as he is a skillful man in these matters and the official surveyor) a difference in the contents between the original statement, that is to say, six acres and eighty hundredths, and six acres and fourteen or sixteen hundredths. There was a difference, therefore, between the actual tract purchased by the plaintiff and the description by which he purchased, of either sixty-four or sixty-six hundredths of an acre, and it is as to that difference that the plaintiff now makes his complaint.</p> <p>It will be observed that it cannot be said that the plaintiff did not get the tract advertised. It certainly cannot be left to the jury to say that he did not get the tract advertised in view of his own affirmative proof that the description, according to courses and distances is insensible and may not be plotted. It would seem, therefore, that on the main point of the case I should sustain the motion of the defendant for a nonsuit.</p> <p>This is perhaps the more obligatory upon me in view of other considerations. That is to say, were we to assume that the plaintiff’s contention shows a right to recover upon his proofs, we would have to consider whether or not the defendant is answerable to him for the amount of his damage. Under the law there is no liability in the defendant that I am able to appreciate. The defendant is not liable’to the plaintiff for money had and received to the use of the plaintiff. She has not knowingly taken his money, directly or indirectly, so as to become liable to him on that account. The basic fact of the plaintiff’s contention is that by reason of a mistake in description, of which the defendant must be presumed to be wholly innocent, money of the plaintiff has been distributed by a court of competent jurisdiction, that is to say, court of common pleas of this county, No. 4, to the defendant. In other words, the master has, in entire innocence, collected more money from the plaintiff than he should have collected according to the plaintiff’s contention now made, but what the plaintiff thought at the time was the correct amount to pay to him, and the court has ordered the master to pay a part of that fund to the defendant. The defendant has obviously been innocent of fraud, and has taken the money under the order of court which she sets up, and has a right to set up here for her protection. Moreover, I am of the opinion that, independently of the order of distribution, the defendant may claim the protection of the order confirming the master’s sale, which indicated a sale to the plaintiff of the tract of land described for a given sum of money, and which, must be regarded as having been made with the cognizance of the plaintiff, and although legally he was not a party to it, inasmuch as he was not one of the parties to the litigation, yet he was a party to it in the sense that the receipt of his title to the land depended upon the confirmation of the sale by the court, and he must be presumed to have sought that confirmation, inasmuch as he availed himself of the confirmation in taking his deed.</p> <p>It is not claimed here that this defendant had any knowledge that there was any mistake in the premises. She had no more knowledge than had the plaintiff, and the plaintiff only acquired his knowledge in the month of 'April succeeding the month of the sale nearly a year before. Therefore, we must hold that under the law the defendant took her distributive share of the fund free from any lien of anybody now appearing before us, either in law .or equity. She took it absolutely as her money under that decree of the court. The cases which the learned counsel has cited with great industry are interesting, but they are all cases of legal claim, the claim of creditors say, as against an established subject, either property, or the equivalent of property, to wit: money, and they are cases which go by virtue of a right paramount to the right of a distributee. Such is not the case here.</p> <p>As to the item of 178.69 which the defendant appears to have collected from one William Howell, William Howell being also entitled to a distributive share, and this much of his share going to the defendant because he owed her money, I charge that there could be no claim in this case. As to the item of $284.68 remaining, I charge that the plaintiff has not made out a claim so as to justify my leaving it to you to say whether or not the defendant should pay it. It would be against public policy to permit the proceedings of a court of competent jurisdiction having control of the whole subject-matter, as was the case here in the matter in partition pending and settled in the court of common pleas No. 4, to be opened and the distribution of that court to be recast here upon a finding of fact by a jury and the judgment as to the law thereupon by the court. I therefore enter a nonsuit.</p>

<p>Appeal, No. 19, Oct. T., 1903, by plaintiff, from order of C. P. No. 3, Philadelphia County, Sept. T., 1900, No. 822, discharging rule for judgment for want of a sufficient affidavit of defense in case of Wencel Hartman to use of Helen M. Allen, Administratrix d. b. n. c. t. a. of John B. Johann, Deceased, v. Clifford Pemberton, Jr.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>From the record it appeared that the suit was brought to recover the sum of $850 being the difference beween the bid of the defendant at the sheriff’s sale and a smaller bid at a subsequent sale. The affidavit of defense set up that the defendant, observing an advertisement of a property for sale by the sheriff and noticing that no prior incumbrances were advertised and being under the honest impression that it was customary for the sheriff to advertise prior mortgages, fell into the assured conviction that there existed upon the premises no lien of a prior mortgage. He therefore instructed his agent to attend the sale and to bid the property-up to a given figure ($8,000), and then left his office for the day. This agent, however, not being instructed as' to liens, and better informed on such subjects than his principal, was apprehensive on the subject, and accordingly attempted to find the plaintiff’s attorney before the sale, but in this he was unsuccessful. The property was cried at the sale ; the bidding became lively between defendant’s agent and a party unknown to him, and was knocked down to the latter by the sheriff at $13,000. Presently the sheriff, for reasons unknown to the defendant’s agent, offered the property over again, and had it cried a second time; this time the defendant’s agent recognized the attorney on the writ as the opposing bidder. The high price at which the property was first bid in by the party unknown to the defendant’s agent and the appearance on the second bidding of the attorney on the writ confused the defendant’s agent and tended to confirm his belief that there were several persons bidding for the property, and that there existed no prior lien in the nature of a mortgage. This time, however, the property was knocked down to the defendant.</p> <p>Immediately thereafter, before the sale was adjourned, the defendant’s agent approached the attorney on the writ, Mr. Miller, which was the first opportunity he had for this purpose, and asked him if there were any existing incumbrance on the property prior to that under which the property was sold, and being advised of the existence of a $10,000 mortgage, instantly told Mr. Miller, in behalf of his principal, the defendant, that the defendant would not complete the sale, and declined to take the property. The property might have been again cried by the sheriff on that day and at that very sale had he been so asked to do, which he was not. The next day, or very presently, the defendant himself informed both the attorney for the plaintiff in the present suit and the attorney in the suit in which the property was sold, that he would not comply with the terms of the sale, stating the misapprehension under which he had made the bid. Notwithstanding this fact the property was not put up at the August sale, as it might and should have been, and was only reoffered for sale in September, a notice being sent to the defendant three or four days before that sale that in the event the price Bid Being less than that of the defendant’s bid he would be held for the difference. The property was sold for a less amount, and this present suit was brought to recover the difference in price between the two bids.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Gifts — Gift of land — Parol gift — Parent and child — Evidence.</p> <p>Parol gifts of land when fully executed by delivery of possession followed by valuable improvements are valid in this state, notwithstanding the statute of frauds and perjuries, and this is so in the case of a gift from parent to child as well as between strangers. Such gifts must be established by such proof, as is credible, and of such weight and directness as to make out the facts alleged beyond doubt, and, in the case of a gift from a parent to a child, the parties must be brought face to face at the making or rehearsal of the gift.</p> <p>Where the property is clearly designated, exclusive possession is taken and continued, and improvements made of such a character as to render compensation impossible or difficult, the contract is not subject- to the operation of the statute. This is particularly so where the possession has been undisturbed for many years, and where the value of the property has been greatly increased by improvements made with the knowledge of the legal holder of the title.</p> <p>In an action of ejectment by the heirs of a decedent against a son of the decedent who claimed the land under a parol gift, the evidence tended to show that fifteen years before the institution of the action -decedent bought the land, stating that he was buying it for his son, but took title in his own name, permitting the son to take possession. The latter remained in continuous and open possession during his father’s life and thereafter. The son placed improvements upon the land in excess of the amount paid for it. With his father’s knowledge he cut timber upon the land, and the father directed that the land should be assessed in his son’s name, and the son paid the taxes. At one time the lather directed the preparation of a deed to his son for the nominal consideration of one dollar, but his wife refused to sign it, and no conveyance was ever-made. A large number of witnesses testified to declarations by the father to the effect that he had given the land to his son, and that it belonged to the latter. Held, (1) that the declarations of the father were pi-operly admitted in evidence; (2) that a verdict and judgment for defendant should be sustained.</p>

<p>Contract — Duress—Threats—Landlord and tenant — Rent.</p> <p>The constraint which takes away the agency and destroys the power of withholding assent to a contract must be one which is imminent and without immediate means of prevention, and be such as would operate on the mind of a person of a reasonable firmness of purpose. A threat to withhold payment of a debt, or to refuse performance of a contract, or to do an injury which may at once be redressed by legal proceeding, will not amount to duress per minas. Mere threats of injury to property, without a power over it which would enable the person so threatening to carry out his threats, do not in themselves constitute such duress.</p> <p>In an action to recover rent it appeared from the uncontradicted testimony that the defendant had paid rent from year to year for eighteen or nineteen years. The defendant testified that prior to paying rent for the first time an agent of plaintiff had said to him, “16 you don’t come down and pay the rent, I’ll bring a force of hands and tumble the building right upside down.” Neither the defendant nor his witnesses could say when such threat was made. Defendant said that he could not say whether it was made five years or one year before. There was no evidence that any subsequent threat was made to defendant, and he continued to pay rent without objection thereafter. It also appeared that he endeavored at different times to buy the property'from plaintiff. Held, (1) that the evidence was not sufficient to show that at the time of the first payment of'rent defendant was acting under any legal duress; (2) that the defendant after recognizing the plaintiff as his landlord by the payment o£ rent for many years, was not in a position to deny plaintiff’s title in an action for rent.</p> <p>Landlord and tenant — Action for rent — Amendment.</p> <p>In an action for rent where the evidence at the trial shows that all of the dealings of the defendant were with the plaintiff, an amendment may be allowed after the evidence is closed, striking from the record words following the name of the plaintiff, a railroad company, indicating that it was the lessee of another corporation.</p>

<p>Appeal, No. 93, Oct. T., 1902, by defendant, from judgment of C. P.No. 2, Phila. Co., March T., 1901, No. 196, on verdict for plaintiff in case of John J. Connor v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before WlLTBANK, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $900, Defendant appealed.</p> <p>Errors assigned were (1) portion of charge quoted in the opinion of the Superior Court; (2) refusal of binding instructions for defendant.</p>

<p>Will — Vested and contingent interest — Trust and trustees — Curtesy.</p> <p>Testator devised real estate to trustees to pay income in equal shares to each of four'children, and if any die “without issue” the-share of such one equally to the survivors; but if any die “leaving issue, then the share . . . . to his or her children;” and at the .death of all said four children, all the real estate to be conveyed by the trustee “to the children of my deceased children, to wit: All my grandchildren, their heirs and assigns in fee simple,” to each set the share of its parent, that is, if all “leave issue,” one fourth to the child or children of each-; but if only three or two “leave issue, then the same rule to prevail.” A granddaughter died after the death of her father, leaving to survive her a husband. Held, that the granddaughter took a fee simple estate which continued equitable in form until the death of the last surviving child of the testator, and that her husband was entitled to curtesy in such estate. ..</p>

<p>Water companies — Corporations—-Breaking down of plank — Jurisdiction of equity — -Remedy at law — Act of June 2, 1887, P. L. 310.</p> <p>A court of equity has no jurisdiction under the Act of June 2, 1887, P. L. 310, to assess damages against a water company for loss sustained by a customer of the company caused by lack of water, during a breakdown of the water company’s pump, where it appears that the company had provided a proper and sufficient plant, that the breakdown was accidental, that everything was done that could be reasonably expected to repair the bréaleage to get the plant-into working order again, and that the bill was not filed until a week after the damage had been repaired, and when'the company was supplying water in full quantity. In such a case a decree for damages cannot be assessed against the water company, because of the company’s failure during the breakdown to connect its-lines with those of a neighboring city. ,, -</p> <p>-The equity jurisdiction conferred upon the court of common pleas by the Act of June 2, 1887, sec.'3, P.L. 310, was for the protection of the public’s interests, and to insure the performance óf a public duty. It was not intended to abrogate the jurisdiction of the law courts to adjudicate questions of damage growing out’ of contracts between the water companies and private individuals. ... , ■</p>

Appeal, No. 95, April T., 1903, by defendant, from judgment of C. P.No. 1, Allegheny Co., June Term, 1901, No. 413, for defendant on case tried by the court without a jury in suit of tbe Land Title & Trust Company of Philadelphia, Trustee of the Loan Fund of the Mutual Guarantee Building & Loan Association of New Jersey, now for use of Mutual Guarantee, Building & Loan Association v. Elmer E. Fulmer. Scire facias sur mortgage.

<p>Building and loan association — Payment of dues — Appropriation of payments.</p> <p>Payment of dues upon stock, by a borrowing stockholder of a building and loan association, is not ipso facto an application of the money so paid to the reduction of his mortgage debt; in order to so effectuate the application of payments on the stock to the debt, there must be an act of appropriation by one or other of the parties.</p> <p>Appeals — Assignments of error — Findings of the court below.</p> <p>An assignment of error based upon an alleged erroneous finding of the court below will not be considered where the record does not disclose any such finding. ,</p>

Appeal, No. 286, Oct. T., 1901, by Catherine Ramschasel, from decree of O. C. Phila. Co., Oct. Term, 1900, No. 62, dismissing exceptions to adjudication in estate of John Ramschasel, deceased. Exceptions to adjudication. The facts appear by the opinion of the Superior Court. Error assigned was “ in holding that the claimants were entitled to recover under the agreement made with them by the decedent.”

<p>Contract — Sale—Bailment.</p> <p>"Where the correspondence and accountings between a foreign shipper of goods and his consignees in this country show that there was no intent upon the part of the parties to pass the title to the goods to the consignee, but that the goods were to be sold and the net proceeds paid over to the foreign shipper, the fact that in the invoices, customs house entries, and shipping declarations, the transaction is referred to as a sale, is immaterial as affecting the title in the foreign shipper, the goods not being dutiable, and there being no intent to deceive any one.</p>

<p>Taxation — Collateral inheritance tax — Decedent’s estates — Nonresident decedent.</p> <p>Where a person domiciled in another state executes a revocable deed of trust by which she gives stocks and stock trust certificates to a trust company in Pennsylvania, to pay the income therefrom to herself for life, and after her death the principal thereof to persons named, not lineal descendants, and the trustee is given power “ to sell the same and reinvest the proceeds in good securities,” the state of Pennsylvania is entitled to a collateral inheritance tax on the trust estate after the death of the decedent, where it appears that the securities were held in Pennsylvania by the trust company, that no ancillary letters were granted in Pennsylvania, that the fund was not claimed by decedent’s executors for the payment of debts, and that the proceeds of the securities were paid over to the persons named in the deed of trust less the amount of the collateral tax.</p>

<p>Insurance — Life insurance — Proofs of death — Evidence—Estoppel.</p> <p>Preliminary proofs of death required by a life insurance company are, when furnished, only evidence that the insured has complied with 'the requisitions of the policy, and are inadmissible as evidence for the plaintiff to prove the issue on the trial; and although the statements in them will be taken against the insured as statements against interest, he may show that the statements themselves are without foundation, and were inadvertently made. Such inadvertent mistakes are without effect to estop insured from showing the truth.</p> <p>Where a claimant’s affidavit to the proofs of death is to the best of his knowledge and belief, he is not precluded at the trial of an action upon the policy, from testifying that his answer to the question as to prior illness of the insured, and as to the attendance therefor of a physician were based exclusively on information coming from what he had a right to suppose was a reliable source.</p> <p>Where the required preliminary proofs of death contain a statement by a physician that he had attended the insured prior to the date of the policy for a disease of which the insured died, the claimant may contradict the statement of the physician by proof of the latter’s subsequent unsworn declarations and admissions inconsistent therewith.</p> <p>. Where an application states that the applicant never had disease of the heart, and it appears that the insured died of angina pectoris, and in' the proofs of death there is a statement by a physician that he had attended the insured prior to the date of the policy for angina pectoris, the claimant may produce evidence to contradict the statement of the physician made in the proofs of death, but the insurance company is entitled to have the jury plainly instructed that the statements of the insured contained in the application relative to his having had a disease of the heart, and to the attendance of a physician for prior illness, are material to the risk, and that if either is found to be false or untrue, this will avoid the policy.</p> <p>Where a physician has made a statement as part of proofs of death,- a supplemental statement of the same physician furnished in compliance with the insurance company’s demand for a more complete statement, is a part of the proofs of death.</p>

<p>Appeal, No. 87, Oct. T., 1903, by-defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 742, on verdict for plaintiff in case of Ferdinand Rondinella, Guardian of Joseph.Rizzo, Cornelius Rizzo, Annita Rizzo and Stella Rizzo, Minors, v. Metropolitan Life Insurance Company.</p> <p>Assumpsit on a policy of life insurance. Before BarRATT, J.</p> <p>See Baldi v. Metropolitan Life Insurance Company-, ante, p. 275.</p> <p>At the trial the court permitted witnesses for the plaintiff to testify that the deceased prior to his death and at the date of the policy, appeared to be a man in sound health. [6-12]</p> <p>The court charged in part as follows :</p> <p>[What witness has the defendant called who testified to either of these facts ? Not one. Neither side has produced Dr. Leone, nor has the defendant (and it is an important part of his case) taken his testimony, as might have been done, either by disposition or by commission. The only evidence upon the subject was that of the plaintiff, Rondinella, who testified that Leone was not within the jurisdiction of the court — not in the state of Pennsylvania, and I think that ivas about what his evidence amounted to on that point; not any more than that.] [13]</p> <p>[After Rizzo’s death, Rondinella submitted formal proofs of death to the insurance company, of which the following is a part:</p> <p>“ 9 — A. What sickness previous to the last one did deceased have, and when ?</p> <p>“ About four years ago a mild attack of angina pectoris which was cured at that time.</p> <p>“B. Give names and addresses of physicians who attended the deceased or prescribed for any sickness or ailment previous to last sickness.</p> <p>u Dr. L. V. Leone.</p> <p>“ Dr. Deakyne, Ninth and Pine, .1.892 ; essential fever.”</p> <p>This was the only evidence in the case on the subject, and it is upon this evidence that the defendant rests his case.] [14]</p> <p>[The defendant claims that it was a statement .made, by .Rondinella, the plaintiff, and, being a declaration against his interest, it is not only evidence against him, but it is made so by tbe express condition of tbe policy, which- condition, that it is a condition of the policy, is not denied 'by-plain tiff.- .But the Superior Court has decided that statements in the proofs of death that the insured,: prior to the date of the application and three or four years before his death by angina pectoris, had a mild attack of angina pectoris, which was cured at that timé, cannot be construed as-conclusive-admission that-the insured had an incurable disease prior to the date of the policy.-] [15]</p> <p>[That is the testimony of the three witnesses called by the plaintiff — Mr. Baldi, Mr. Bielo, and Mr. Bruñetti, who testify concerning this conversation in the corridor of the court. In the proofs of death submitted to the defendant, in his certificate Dr.- Leone said -that he attended Dr. Rizzo four years before for angina pectoris. If you believe this witness, whose testimony I have just read to you, you will be justified in concluding that he made an entirely contrary statement to them. ' If their tes,timony is believed by you, Dr. Leone admitted to them that he did not attend Dr. Rizzo at this time, but that Dr. Deakyne attended him, and that Dr. Leone saw- Dr. Rizzo on the following day in a friendly way. If you believe their testimony as to this interview, it is evidence which goes to the credibility of the Dr. Leone. It is for you to say upon which occasion, whether in the certificate submitted to the defendant or-in the interview which he had in the corridor here, as related by the witnesses, he was telling, the truth. .. Both statements'.cannot be true. One may be, and if it is, then the other is not..,. It is for you to say, under this evidence, which you believe to be the fact when you come to make up your verdict,] [16]- .. .. . J</p> <p>-[ .-. .If the testimony of Dr.-Walker-, Dr. Sinkler, and Dr. Tyson is correct, Dr. Leone’s statement, .that..Rizzo, had a mild.attack of-angina pectoris and was cured, cannot be true ; and that may lead you to doubt the correctness of his statements in the proofs of death. . ,</p> <p>If Rizzo was cured, did he have angina pectoris ? . If he had a mild attack he -was not cured of the thing itself, if you believe the testimony of the experts. So that when you some to consider the testimony and the .questions,"raised by it you may conclude that Leone was correct when he said that. Rizzo was cured and mistaken when he told Rondinélla that Rizzo had a mild attack of angina pectoris.]. [17]</p> <p>Defendant presented these points :</p> <p>1. Under all the evidence your verdict must be for the defendant. Answer: Refused. [18]</p> <p>7. Since no evidence has been offered as to the symptoms of the first attack of angina pectoris mentioned in the proofs of death, you will not allow the difficulty that may exist in diagnosing some cases of angina pectoris to lead you to doubt that this attack of angina pectoris actually occurred. Answer : Refused. [19]</p> <p>8. The testimony of Mr. Baldi and other witnesses as to a conversation with Dr. Leone in the corridor of the court room in January, 1900, does not disprove the facts stated in the proofs of death submitted by this claimant to the defendant. Answer: Refused. [20]</p> <p>Verdict and judgment for plaintiff for §1,320.50. Defendant appealed.</p> <p>Errors assigned among others were (1-12) various rulings on evidence, quoting the bill of exceptions ; (13-20) above instructions, quoting them; (21) that answers to certain points of defendant were inconsistent with the charge.</p>

<p>Divorce — Evidence—Loss of evidence — Loss of report of master — Reversal of decree.</p> <p>Where, after a master’s report in divorce had been hastily examined by the court, and referred back to the master to take additional testimony, much of the testimony and the first report are lost, the court cannot properly) from its impression of the first report, and its consideration of the testimony not lost and the final report of the master, enter a decree of divorce. If it does so, such decree will be reversed by the appellate court.</p> <p>The law requires full proof of a sufficient cause for divorce, and a careful examination by the courts of all the testimony. This duty is as imperative on the courts of last resort as it is on the common pleas.</p>

<p>Appeal, No. 94, Oct. T., 1901, by defendants, from judgment of C. P. Centre Co., Nov. T., 1897, No. 239£, on verdict for plaintiff in case of Mary S. Thomas v. Burdine Butler and Thomas Butler.</p> <p>Feigned issue to determine title to personal property sold as the property of a husband, but claimed b3r his wife under a bill of sale from her husband, to herself. Before Love, P. J.</p> <p>At the trial defendant made the following offer:</p> <p>Counsel for defendants offer to prove b3r Burdine Butler, Dr. Thomas Tobin and other witnesses the declarations of D. R. Thomas, the husband of the plaintiff and the maker of the alleged bill of sale upon which plaintiff relies for title, as follows, to wit: That the said D. R. Thomas subsequent to the date of the alleged bill of sale, and before the levy in this case, stated to Burdine Butler, in Patton township, at Howard, and in other places, that the personal property on the farm belonged to him, D. R. Thomas.</p> <p>Also that on the day of the execution of the Butler note at Howard, D. R. Thomas stated to Robert Cook, junior, that he, in order to borrow money from said Cook, was the owner of the farm stock and other personal property on the farm of the value off $3,000 and upwards.</p> <p>Also that said D. R. Thomas in the spring of 1896 stated to John Hoffman and others that he had made a bill of sale to his wife, to keep creditors from selling him out, and that he was loose footed now, and that Mr. Stein, his father-in-law, had never given them anything nor his father either, and that neither he nor his wife had ever received anything from home; also that D. R. Thomas stated, since the bill of sale was executed, to disinterested witnesses, that he had by arrangement put his own money in the clock for Jonas. Stein, his father-in-law, to get it to give to the plaintiff, and that there was more than one way to choke a cat without butter.</p> <p>Also that said D. R. Thomas stated to Dr. Tobin and other witnesses, since the date of said alleged bill of sale, that he, D. R. Thomas, and not his wife, was the owner of the farm stock and other personal property.</p> <p>Also that he, D. R. Thomas, at the same time, offered to execute to Dr. Tobin a bill of sale of said personal property to secure him for money loaned at said time by said Tobin.</p> <p>To which offer on the part of the defendants counsel for plaintiff object for the following reasons, to wit:</p> <p>1. That the declarations of D. R. Thomas made to third persons in the absence of his wife, who is the party to the issue, are incompetent to affect her title and are inadmissible, especially in view of the fact that it had not been shown that Thomas Butler or Burdine Butler were creditors of said D. R.. Thomas at the time said bill of sale was made, or at the time alleged declarations to Burdine Butler were made, nor is it alleged or contended by defendants that the bill of sale was made for the purpose of defrauding them, or either of them, out of their claim, which originated on February 18,1897.</p> <p>2. Because it has not been shown, nor is it proposed to be shown, that D. R. Thomas ever borrowed money from Robert Cook, or that Cook was a creditor of said D. R. Thomas at any time.</p> <p>3. Because there is no evidence to show that at the time of the alleged declarations to John Hoffman, the said John Hoffman was a creditor of the said D. R. Thomas, or that he was indebted to anyone at that time.</p> <p>4. Because any declarations of D. R. Thomas — if any were made — as to putting money in a clock, etc., are irrelevant and inadmissible to contradict the plaintiff in her testimony as to the consideration for the bill of sale.</p> <p>5. Because the alleged declarations to Dr. Tobin by D. R. Thomas in the absence of his wife, the plaintiff, are inadmissible and irrelevant to affect her title.</p> <p>6. Because the offer as a whole is incompetent, irrelevant and inadmissible.</p> <p>By the Court: The offer proposes to prove sundry declarations of D. R. Thomas, the husband of the plaintiff in the issue, made to strangers in her absence, in public places, and covering uncertain periods of time, which are against or adverse to the plaintiff’s claim of title to the property in question. D. R. Thomas has not been called as a witness in the trial by the plaintiff. The evidence offered cannot tend to contradict him.</p> <p>When the cause was tried before, D. R. Thomas was called and testified on behalf of his wife’s claim. We then excluded an offer then made of a similar character. The Superior Court held it to be error, as it was proper for the purpose of contradicting D. R. Thomas. The Superior Court based its ruling on the case of Miller v. Baker, 160 Pa. 172. That case was very different from the present one. There the husband had bought real estate with money alleged to belong to his wife, and took the title in his oavii name. When he wanted to borrow money he represented the property was his. The lender of the money had • the title examined and the record of title shoAved it was his. The money was loaned to the husband, and not paid, judgment Avas obtained against him and the real estate sold as his. At the sale notice was given by the wife that she owned the property.</p> <p>The purchaser at sheriff’s sale brought an action of ejectment against the husband alone. The’ Avife was no party: to the suit. The husband sought to defend bis possession by setting up his wife’s claim or resulting trust in her favor. Then the Superior Court say on page 179, “We think that the learned court below erred in rejecting the' appellant’s offer to prove acts and declarations of the appellée inconsistent with his testimony. He was the sole defendant and an important witness in the cause.” The principal reason for the ruling was that he was the sole defendant and the principal witness in the cause.</p> <p>In this case the wife is the sole plaintiff and the defendant knew of the plaintiff’s claim to the property in question a year and a half before the loan was made. If he did it on the strength of the property, was it not rather his duty to inquire of the plaintiff, before loaning the money to the husband, as to the character of her claim or title ? In the case of Miller v. Baker, supra, the record evidence of title was in the husband, and the claim of the wife afterward set up in the nature of a secret trust. We do not therefore think the case of Miller v. Baker disturbs the provisions of the act of May 30, 1887, sec. 4, nor the principle- so clearly laid down thereunder, as stated by the Supreme Court in the cases of Burrell Twp. v. Uncapher, 117 Pa. 353, Martin v. Rutt, 127 Pa. 380, Bell v. Throop, 140 Pa. 641, Evans v. Evans, 155 Pa. 572, and Leedom v. Leedom, 160 Pa. 273.</p> <p>Under the- foregoing authorities we deem it our duty to sustain the objections and exclude the offer.</p> <p>To which ruling of the court the defendants except and at their request an exception is noted and bill sealed. [1]</p> <p>Defendants propose to prove by J. W. Baisor that he was engaged in the mercantile business, in the vicinity of where Mr. and Mrs. Thomas lived, during the years 1894,1895, 1896 and 1897, and that they were customers at his stores; that there was no change in the. account during all those years, but the account was kept in the name of D. R. Thomas; that purchases were made by Mr. and Mrs. Thomas and their family, and that after August, 1895, there was no change in the account; that Mrs. Thomas did not pay for the purchases made for the family and for the use of the farm from August, 1895, to 1897, but the account was settled for by Mr. Thomas.</p> <p>This for the purpose of showing how they conducted their business, and also for the purpose of contradicting Mrs. Thomas, who stated that she did all the business after August, 1895, and would not permit her husband to do any business at all after that date.</p> <p>Objected to by counsel for plaintiff for the following reasons:</p> <p>1. Because the testimony would not, if true, in any sense affect the validity of the title of the plaintiff to the personal property in dispute.</p> <p>2. Because the account, if such an account was kept, and the books of original entry would be the best and the primary evidence.</p> <p>3. Because the testimony is irrelevant, incompetent and inadmissible, and would not, if admitted, contradict Mrs. Thomas in any particular.</p> <p>The objections are sustained and the evidence excluded, to which the defendants except and at their request an exception is noted and bill sealed. [2]</p> <p>Defendants offer to prove by Dr. Thomas Tobin, a witness to be called in their behalf, that D. R. Thomas, in August, 1895, or about that time, borrowed money from said Tobin, and stated that he wanted to use the money to pay some judgments in favor of the Behrers, which were then in the sheriff’s hands ; that he did not want to be sold out, and that the said Tobin loaned said Thomas $150 for that purpose.</p> <p>Counsel for plaintiff object to defendants’ offer for the following reasons :</p> <p>1. Because the declarations of D. R. Thomas in the absence of his wife,- the plaintiff in this suit, are incompetent and inadmissible to affect her title.</p> <p>2. Because the offer does not propose to show that if D. R. Thomas did make the declarations alleged, he used the money to pay the Behrer judgments, or any other part thereof, and it is therefore irrelevant.</p> <p>3. Because the offer is generally incompetent and inadmissible.</p> <p>The Court: For the reasons stated by the court in rejecting the former offer to prove the declarations of D. R. Thomas, by this and other witnesses, the objections are sustained and the offer excluded, to which the defendants except and at their request an exception is noted and bill sealed. [8]</p> <p>The court charged in part as follows :</p> <p>[In the case of Paul v. Kunz, 188 Pa. 504, the Supreme Court, in speaking on the question of estoppel of a married woman, says : “ There is but one specification of error in this case, and it raises the question as to whether a married woman is estopped by her silence when in her presence her husband makes a general declaration that he owed nobody, she claiming that at that time he was indebted to her. It must be borne in mind that the declaration was not made to one from whom the husband was about to buy goods, and it was the fact, as appears from the counter statement, that the debt of the plaintiff was not contracted until more than a year irfter the declaration. In such circumstances much doubt would arise as to the application of the doctrine of estoppel, even as to persons sui juris.”</p> <p>That is, that the declarations in that case were made about a year before any credit was given to the husband, and that the wife was not estopped because she kept silent when declarations were made in her presence adverse to her interest.] [4]</p> <p>[Now, gentlemen of the jury, you will take all this testimony into consideration. You have the testimony of Burdine Butler on the one side in relation to declarations made by Mr. Thomas in the presence of his wife and by Mrs. Thomas herself. On the other hand, you have the testimony of Mrs. Thomas denying that any such declarations were ever made by her or in her presence.</p> <p>You have also the testimony in relation to certain declarations alleged to have been made in the presence of the wife when Peter Moyer was there once in 1896. You are to determine from all this evidence whether the declarations alleged to have been made by Mary S. Thomas, the wife of D. R. Thomas and plaintiff in this case, were really made or not. If you find from the weight of the evidence that such declarations were made to Burdine Butler, or in his presence, and that a year and a half afterwards he loaned money or went security on the strength of such declarations, that would, perhaps, under the language of the Superior Court in this case, act as an estoppel to her setting up the claim that the title to this personal property was in her.</p> <p>I have read you from a decision of the Supreme Court that even declarations made in the presence of the wife, a year before credit was extended to the husband, would hardly estop a person who was sui juris and would not estop the wife who simply remained silent.</p> <p>Now, what declarations did she make ? Were they of such a character that Burdine Butler acted, upon them to his injury a year and a half afterwards ?] [5]</p> <p>Defendants presented these points :</p> <p>2. That if the jury find that such representations were made to third parties by plaintiff and her husband jointly, to the effect that the bill of sale was of no account, and thereby obtained credit for the husband from said third parties, that in such case the bill of sale would be void as to such third parties. Answer : As an abstract proposition of law this 'may be pretty nearly correct, but it has no application to this case. [6]</p> <p>3. That if the jury find that the plaintiff acquiesced in statements made by her husband in her presence, or at least failed to deny them, which statements would lead third parties, and more particularly the defendants, to extend credit to the husband as the owner of personal property that then she, the plaintiff, would be estopped from setting up title to the personal property, concerning which the statements were made, as against defendants who were induced to become creditors of the husband on the strength of such statements. Answer : This point is refused as stated. [7]</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions ; (4-7) above instructions, quoting them.</p>

<p>Judgment — Judgment note — Opening judgment — Laches—Contradictory evidence.</p> <p>Where a judgment note is not entered up until five years after its date, and no rule is taken to open it until four years after its entry, and the testimony taken on the rule to open is contradictory in'character, the court acting as a chancellor and controlled by equitable principles is justified in refusing to open the judgment.</p>

<p>Appeal, No. 179, Oct. T., 1903, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1902, No. 240, on verdict for plaintiff in case of J. L. Brassington v. Borough of Mt. Carmel.</p> <p>Trespass to recover damages for personal injuries. Before Attten, J.</p> <p>At the trial it appeared that on the night of January 9,1903, plaintiff was injured by falling in a hole in a bridge on one of the streets of the borough of Mt. Carmel.</p> <p>The circumstances of the accident are detailed in the opinion of the Superior Court. ‘</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $1,225. Defendant appealed.</p> <p>Errors assigned were (1-9) various instructions, and refusal to give binding instructions for defendant.</p>

<p>Husband and wife — Judgment—Justice of the peace — Transcript.</p> <p>Where a judgment has been recovered before a justice of the peace against defendant and wife, without naming the wife, and the plaintiff thereafter files a transcript of the record of the justice in the common pleas, and no attempt is made before the justice of the peace to amend the record so as to make the wife a party by name, the court of common pleas is without jurisdiction, to amend the record so as to add the name of the wife as a party. In such a case the judgment on the transcript as filed is a judgment against the husband alone.</p>

<p>Appeal, No. 211, Oct. T., 1903, by plaintiff, from decree of C. P. Berks Co., Nov. T., 1902, No. 11, discharging rule to show cause why the order to stay execution should not be vacated and set aside.</p> <p>Rule to set aside order to stay execution.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order discharging the rule.</p>

Appeal, No. 2, Oct. T., 1903, by defendants, from order of C. P. No. 1, Phila. Co., June T., 1902, No. 4508, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Charles J. Beckingham v. James E. Magee and Robert J. Barr. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 17, Oot. T., 1903, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 4326, on verdict for plaintiff in case of John T. Farr v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Beitler, J. The facts are stated in the opinion of the Superior Court. The court refused binding instructions for defendant. Verdict and judgment for plaintiff for $1,000. Defendant appealed.

<p>Contract — Sale—Sample—Warranty—Duty of inspection — Rescission.</p> <p>Where goods are bought by sample, it is the duty of the purchaser to inspect them within a reasonable time after receiving them, and when the defect is ascertained he is bound either to elect to rescind the contract, so far as possible, or to treat it as a subsisting one, and sue on the warranty. In such a case, the right of rescission must be exercised not only promptly, but unequivocally; mere complaints as to the quality of the goods while exercising dominion over them inconsistent with ownership in the seller are not sufficient.</p> <p>What is a reasonable time, or undue delay, when the facts are not disputed, is a question of law to be determined by the court. If the goods are Madras shirtings, and there is an undisputed delay of five months, the court may say as a matter of law that the rescission cannot be allowed.</p>

<p>Municipalities — Municipal contracts — Bond of contractors.</p> <p>A bond given by a contractor under the Philadelphia ordinance of March 30,1896, conditioned to pay “any and all persons, any and all sums of money which may be due for labor and materials furnished and supplied or performed in and about the said work,” embraces in the class of persons entitled to sue thereon a materialman who furnishes material to a sub-contractor. In such a case a surety cannot be relieved from liability because the condition of the bond is more comprehensive than is required by the ordinance.</p>

<p>Auditor — Auditor’s findings of fact — Mechanics’ liens — Single building.</p> <p>An auditor’s findings of fact that a building against which mechanics’ liens were filed is a single building, and not one in two complete sections, will not be disturbed by the appellate court,' where such finding has been confirmed by the court below, and there is nothing in the case to show fraud, clear error, or manifest lack of due consideration.</p>

<p>Ejectment — Service of writ — Nonresident defendant — Publication of rule to appear and plead — Possession—Practice, C. P. — Acts of April 13, 1807— April 14, 1851, P. L. 612, and April 13, 1858, P. L. 256.</p> <p>Where a sheriff's return to a writ of ejectment for unseated land shows that the land was unoccupied, that the defendant did not reside in the county, and had no agent in charge of the land in the county, and that notice of the suit was given personally to the defendant in another county, and the record further shows an appearance for the defendant, but fails to show a rule on defendant to appear and plead with publication thereof as provided by the Acts of April 14, 1851, P. L. 612, and April 13, 1858, P. L. 256, the return and the record raises no presumption that the defendant was in possession of the land described in the writ.</p> <p>Land law — Abandonment of title — Payment of taxes.</p> <p>The doctrine of abandonment is only applicable where the title affected is inchoate or imperfect. Where a title has passed by patent from the commonwealth it is never reinvested by abandonment.</p> <p>Constructive possession of unoccupied land follows the legal title. Every owner is presumed to be in possession until ousted by an actual occupant, and the omission of the owner to take physical possession of his land for a long period does not effect a forfeiture of his title unless such nonoccupancy by the owner is accompanied by an actual adverse, continuous, notorious and exclusive possession by an intruder for such a length of time as would give title under the statute of limitations. Nor will the failure of the owner to pay taxes produce a forfeiture. ... •</p>

<p>Contract — Water company — Borough—Rescission.</p> <p>Where a water company has entered into a contract with a borough to supply the latter with water, the contract cannot be deemed to have been rescinded by the company from the bare fact that it offered to enter into a new contract upon the same terms as the old except as to the price, which offer was not accepted.</p> <p>In, an action by a water company against a borough to recover the contract price for water furnished for a fire; plug service during a particular period, evidence as to the condition of the company’s reservoir and the sufficiency of its water supply at any time subsequent to such period, is immaterial. »</p> <p>Water companies — Borough—Evidence—Expert.</p> <p>In an action between a water company and a borough where a question' is raised as to the sufficiency of the supply of water an expert witness may be permitted to' testify as to what was a sufficient supply per day for a town containing the population of defendant, if objection is not made at the time that only a portion of the population used the water.</p>

<p>Appeal, No. 25, Oct. T., 1903, by plaintiff, from judgment of C. P. Delaware Co., June T., 1902, No. 29, for defendant on municipal lien in case of City of Chester to use of James Robinson v. Fannie S. Lane.</p> <p>Scire facias sur municipal lien.</p> <p>The lien was substantially as follows :</p> <p>Filed by the city of Chester to the use of James Robinson v. Fannie S. Lane by virtue of a contract for the doing of grading, curbing and paving, between the said city and James Robinson, dated April 22, 1901, for the sum of $746.36 for the cost of work done and materials furnished, together with a five per cent penalty for grading, curbing, paving, etc., of sidewalks of Ninth street in front of a certain tract of land belonging to the said defendant, in the said city. Bill of particulars being as follows:</p> <p>Curbing 378.75 feet, at 68c., .... $257.55</p> <p>Recurbing 23 feet, at 8c., .... 1.84</p> <p>Paving 476.3 sq. yds.,at 67c., .... 319.12</p> <p>Grading 619 cu. yds., at 20c., .... 123.80</p> <p>Surveyor’s charges,......8.50</p> <p>Penalty, . ......35.55</p> <p>Total, .......$746.36</p> <p>—with interest at six per cent per annum.</p> <p>Notice to the owner was given in the publication of the ordinance providing for the work on January 9, 10 and 11, 1901, and ten days’ personal notice to the agent of the defendant on June 25, 1901. The work was completed on December 23, 1901, and written notice of his intention to file a lien was given by the said Janies Robinson on March 22,1902, to defendant’s agent, she’ not being in the county of Delaware.</p> <p>The affidavit of defense averred :</p> <p>That the item of $123.80 for grading set out in said lien was for cutting down an embankment in front of defendant’s property “ about the full width of said sidewalk and averaging about five feet in height,” which grading was necessary in order to bring the sidewalk to the grade of Ninth street; that the said grading was done at or about the same time as the curbing and paving of the sidewalk by the said James Robinson, acting under instructions from the said city, and as its contractor, and one of the provisions of the contract between the city of Chester and the said James Robinson was as follows :</p> <p>“No allowance made for grading beyond ten inches in depth,” which means that the defendant need not do more grading than ten inches, and to be done as a necessary part of the work for preparing foundations for the curb and pavement, and there is no act of assembly, law or ordinance authorizing the city of Chester to impose on the defendant the duty to grade down an embankment in a street in order to bring it to grade so a pavement may be laid, or for the city to do such grading and file a lien for the cost. That by ordinance of January 8, 1901, providing for the curbing and paving of the sidewalks of Ninth street, it was directed that notice shall be given to the property owners before the city shall do the work. That she is not liable for the cost of the curbing and paving until after notice from the city so to do and on opportunity given to do the work herself. That she had repeatedly notified the said plaintiff that she would curb and pave the sidewalks upon the city doing the grading. That no notice was given to the defendant to do the curbing and paving after the grading had been done, nor was there any opportunity given to her to do same. Further defense was made that the curb was not bedded with large stone at each end and middle as provided for in the contract between the said city and the said James Robinson, and that a large number of bricks were not whole as the said contract called for, and that the sidewalk was laid below the level of the roadway and the banks along the line of the sidewalk were left in such condition that during the winter of 1901 and 1902 they were almost entirely covered with muddy water, which has caused the sidewalk to settle and become unlevel. That the defendant is not legally bound to pay the surveyor’s charges.</p> <p>The replication was substantially as follows:</p> <p>The plaintiff admits the grading or cutting down of embankment in front of defendant’s property of the “ height and character as in said affidavit of defense fully set forth; ” that the work was done after notice to the owner, the said defendant. That the said grading was done under and by authority of the following laws and ordinances : Act of April 2, 1867, section 1, P. L. 677 ; Act of May 28,1889, article V, section 3, paragraph 11, P. L. 277, and article XY, section 22, and Act of May 16, 1901, P. L. 224, amending said section 22, and various other acts of assembly; Ordinance approved May 1, 1867; Ordinance approved October 29, 1894; Ordinance approved January 8, 1901, and various other ordinances.</p> <p>That the cost of grading up ten inches in depth was included in the charges of curbing and paving set out in the bill of particulars in the lien, and the 619 cubic yards of grading amount to $123.80, set out in said bill of particulars, is for grading in excess of ten inches in depth.</p> <p>A general denial that the curb was not bedded with large stone at each end and middle, and that the sidewalk in front of defendant’s property was laid below the level of the roadway, and that if it is true that the banks along the sidewalk were left higher than the level of the pavement, it is the duty of the defendant to protect the pavement against the washings from the bank and not that of the plaintiff. That the defendant is bound to pay the surveyor’s charges in accordance Avith the ordinance of June 1, 1888.</p> <p>The defendant moved for judgment on the whole record as provided by sec. 19 of the Act of June 4, 1901, P. L. 364.</p> <p>The court in an opinion by Johnson, P. J., entered judgment for defendant on the whole record.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 26, Oct. T., 1903, by plaintiff, from judgment of C. P. Delaware Co., JuneT., 1902, No. 30, for defendant on municipal lien in case of City of Chester to use of James Robinson v. Fannie S. Lane.</p>

<p>Appeal, No. 27, Oct. T., 1903, by plaintiff, from judgment of C. P. Delaware Co., JuneT., 1902, No. 31, for defendant on municipal lien in case of City of Chester to use of James Robinson et al. v. Fannie S. Lane.</p>

<p>Appeal, No. 53, Oct. T., 1903, by Samuel T. Carr, from decree of O. C. Delaware Co., dismissing exceptions to auditor’s report in estate of Charlotte Louisa Carr, deceased.</p> <p>Exceptions to report of J. M. Shanafelt, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 54, Oct. T., 1903, by E. Celeste Schnerring et ah, dismissing exceptions to auditor’s report in estate of Charlotte Louisa Carr, deceased.</p>

<p>Appeal, No. 51, Oct. T., 1903, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1901, No. 221, on verdict for plaintiff in case of Lucina Brown v. Towanda Borough.</p> <p>Trespass to recover damages for personal injuries. Before Fanning, P. J.</p> <p>The circumstances of the accident are detailed in the opinion of the Superior Court,</p> <p>At the trial after the plaintiff had testified to the tilting of the plank which caused her injuries she was asked these questions :</p> <p>Q. Was there anything put in its place ?</p> <p>Objected to as irrelevant, immaterial and inadmissible.</p> <p>Q. What was put there in the place of the board or plank?</p> <p>Mr. Mercur: We object that it is irrelevant, immaterial and inadmissible.</p> <p>Mr. DeWitt: We offer to prove that the board was taken away and a stone put there and that the stone is there yet.</p> <p>Mr. Mercur: We object to the offer as irrelevant, immaterial and inadmissible.</p> <p>The Court: I think it is questionable whether it is evidence at all, that a change was made subsequent to the time of the accident.</p> <p>Mr. DeWitt: This was the very day of the accident and we propose to show that a stone has been placed there where the plank was then.</p> <p>Objection overruled.</p> <p>Defendant excepts.</p> <p>Bill sealed for defendant. [1]</p> <p>Mr. DeWitt: “ Q. What was put there in the place of the board or the plank? A. A stone was put there. Q. State whether the same stone that is there now. A. Well, it looks like the same stone, but I could not say it is the same stone, but it looks like the same one. Q. Have you noticed that the stone that is placed there now rests upon something that is put there to support it and keep it in place ? A. Yes, sir, on iron bars.”</p> <p>The Court: I think we must limit this question to the date of the accident. That was our ruling. I don’t think it is material what may be there now, a period of two years after the date of the accident.</p> <p>Mr. DeWitt: We offer to prove that the stone that is there now is the same stone that was placed there on the day of this accident or injury, and that when placed there, it was placed the same as now, upon irons to support it; and that those irons there at the time this injury was received, with this plank lying loose and upon them. This is for the purpose of showing that the borough allowed its sidewalk to be there with loose plank in it.</p> <p>Mr. Mercur: We object to the question as irrelevant, immaterial and inadmissible to prove at this remote day the present condition of that crossing.</p> <p>The Court: We will permit the plaintiff to show the condition of this step on the day of the accident prior and subsequent thereto.</p> <p>Verdict and judgment for plaintiff for $575. Defendant appealed.</p> <p>_Errors assigned were various instructions; (9) rulings on evidence, quoting the bill of exceptious.</p>

<p>Negligence — Point—Charge of wantonness — Trial.</p> <p>Where in a negligence case a point is presented charging wantonness, but there is no evidence whatever of wantonness in the case, the point should be promptly negatived.</p> <p>Negligence — Contributory negligence — Evidence—Chain across driveway.</p> <p>In an action to recover damages for injuries to a horse, it appeared that the defendant occupied a house upon an enclosed lot to and from which ingress and egress were had by.two openings. These openings were closed by means of chains, which were usually hung in the evening, but were down during the day. The chains were easily visible from the road, and the plaintiff had knowledge of their existence. On the evening of the accident, plaintiff, a milkman, drove through one of the openings, the chain being down, and in leaving started his horse at a trot, intending to pass out through the other opening. The chain, however, had been hung, and the horse was brought up suddenly and injured. There was no evidence that there was anything unusual about the chain either as to its make, or as to the manner in which it was hung. Held, that plaintiff was not entitled to recover, and that it was error to submit the case to the jury.</p>

<p>Appeal, No. 123, Oct. T., 1902, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1901, No. 5, on verdict for plaintiff in case of John J. Hickey v. Thomas W. Conley,</p> <p>Trespass for an alleged unlawful eviction. Before Weand, J.</p> <p>At the trial it appeared that in May, 1901, plaintiff was evicted from premises belonging to defendant by a constable acting under a warrant issued by a justice of the peace. The transcript of the record of the justice of the peace upon which the defendant relied was as follows:</p> <p>Now, May 9, 1901, Thomas W, Conley appears and under oath makes complaint that he is the owner in fee of premises situated on west side of Franklin avenue, Rosemont, Montgomery county, P ennsyl vania, which are at present occupied by John J. Hickey; that he leased by verbal lease the said premises to said Hickey on October 16, 1900, for- no definite period, but reserved a certain rent payable on the sixteenth day of each and every month, thereby constituting under the laws of this state a monthly lease.</p> <p>Deponent further states that on numerous occasions he has notified said Hickey to quit said premises at the termination of the term of said lease, and this the said Hickey has persistently refused to do.</p> <p>On April 16, 1901, deponent had served upon said Hickey a notice tq quit, which notice said Hickey has failed to obey.</p> <p>Deponent further says that on April 19, 1901, said Hickey still being in possession of said premises, although his lease had terminated on the sixteenth day of said month, the deponent caused to be served upon said Hickey a notice, which notice stated the rental charge would be §30.00 per month for said premises, payable on the twenty-second day of each month in advance; the notice further gave said Hickey a reasonable time to remove from said premises had he not wished to accept the terms of new lease. Deponent further says that on April 23, 1901, said rent charge-of §30.00 being due and unpaid, deponent caused to be served on defendant a notice, said notice be-. ing a demand for rent due in accordance with act of assembly, 1880. Deponent further says that to the best of his knowledge and belief the property of said Hickey at the present time in the aforesaid premises does not exceed in value the amount of property now exempted by law from distress, and therefore the said Hickey, not having paid the said rent now justly due after demand made by deponent, the said deponent prays that a writ of possession issue in accordance with the aforesaid act of assembly, and further the deponent saith not. Now, summons issued May 9, 1901, returnable May 14, at 9 A. M. Paul J. Kugler, constable, returned upon oath served upon defendant by leaving a copy of the original at his dwelling house with his wife. Now, May 14, plaintiff appears with his attorney, Algernon B. Roberts, Esq. Defendant does not appear, given a hearing, Howard Still wagon sworn. Jesse K. Lewis sworn after hearing judgment by default for 180.00, for rent and possession of plaintiff’s property and costs of suit.</p> <p>Now, May 15, writ of possession issued.'</p> <p>Now, May' 25, Paul J. Kugler, constable, makes return of said writ, stating that he served the writ on defendant and put his goods out on the road on May 25, 1901. So answers Paul J. Kugler, constable.</p> <p>The complaint was as follows :</p> <p>Thomas W. Conley, being sworn, according to law, doth depose and say that he is the owner in fee of the premises situate on the west side of Franklin avenue, near Pennsylvania railroad, which are at present occupied by John J. Hickey; tha.t he leased by verbal lease the said premises to said Hickey on October 16, 1900, for no definite period, but reserved a certain rent payable on the sixteenth day of each and every month, thereby constituting under the laws of this state a monthly lease.</p> <p>Deponent further says that on numerous occasions he has notified said Hickey to quit said premises at the termination of the term of said lease, and this the said Hickey has persistently refused to' do.</p> <p>The deponent appends to this affidavit a copy of a notice to quit on April 16, 1901 (marked “ Exhibit A ”), which was duly served according to' law upon Said Hickey, which notice said Hickey -failed to obey."</p> <p>Deponent further says that on April 19, 1901, said Hickey still being in possession of said premises, although his lease has terminated on the sixteenth day of said month, the deponent caused to be duly served upon said Hickey a notice, of which a copy is hereto appended and marked “ Exhibit B,” which notice stated the rental charge would be $30.00 per month for said premises payable on the twenty-second day of each month in advance. The notice further gave said Hickey a reasonable time to remove from said premises had he not wished to accept the terms of the new lease.</p> <p>Deponent further says that on April 23, 1901, said rent charge of $30.00 being due and unpaid, deponent caused to be served upon said Hickey a notice, a copy of which is hereto appended marked “ Exhibit C,” said notice being in a demand for rent due in accordance with the Act of Assembly of April 3,1830, P. L. 187.</p> <p>Deponent further says that to the best of his knowledge and belief the property of said Hickey at present in the aforesaid premises does not exceed in value the amount of property now exempted by law from distress, and therefore the said Hickey, having not paid' said rent now justly due after demand made by deponent, the said deponent prays that a writ of possession issue in accordance with the aforesaid act of assembly, and further the deponent saith not.</p> <p>The court charged in part as follows :</p> <p>[Now there are two questions arising in this case: One, á question of law for the court to decide, and of course you will take the law from the court; and the other, a question of fact, and that is entirely for you.</p> <p>The question of law is as to whether this was a legal dispossession, and the court instructs you that it was not and that these proceedings were erroneous. In order that the matter may go upon the record so that the defendants may have the benefit of the court’s thought, I will briefly state to you upon what ground I base that opinion.</p> <p>In the first place the act of assembly requires that if the justice find the allegation to be true he should enter judgment against such lessee that the premises shall be delivered up to the lessor. Now that must be his judgment. I find that this judgment was faulty, that it is not in the language bf the act of assembly, but merely that the plaintiff have possession, and it does not render any judgment that the lessee is to deliver them up*’ Again, the justice gave judgment by default for |30.00 for rent. This he had no right to do. All the law required him to do was to give the judgment that the lessee should deliver up the premises, and then he was to ascertain what the amount of the rent was, but he had no right to give a judgment for the rent. The law requires that having ascertained the amount of the rent, he was to indorse that on the back of the warrant, together with his costs. On examining this warrant of dispossession I find that that was not done. The object of that is so that the tenant, when this writ is brought to him, may know how much is claimed from him, and then if he pays it the proceedings go for nothing.</p> <p>Again, the justice is required to find that the facts alleged by the landlord are true. There is nothing stated here at all in reference to that. He just says, “ after hearing, judgment by default.” He does not find that the facts are true, nor does ' he find that there were no goods on the premises sufficient to satisfy the landlord’s claim, and that he must find before he can issue the writ of dispossession.</p> <p>Then the law requires that no writ of dispossession shall be issued by the said alderman or justice of the peace for five days after the rendition of the judgment. The object of that is to give the tenant a chance to appeal by giving security and have his rights determined. Now this writ of possession was issued on the next day after the judgment was given, and that was four days too soon. These are a few of the reasons why the court decides that this was an illegal act.</p> <p>Having decided that, the question for you to decide is, what damages shall be allowed Mr. Hickey for this unlawful act.]</p> <p>Verdict and judgment for plaintiff for $231.92. Defendant appealed.</p> <p>Error assigned among others was above instruction, quoting it.</p>

<p>Principal and agent — Scope of authority of agent — Implied powers.</p> <p>As to third parties, the liability of the principal for the acts of his agent is measured not merely by the authority actually given, but by the authority essential to the business of the' agency, and the authority held out by the principal as possessed by the agent, or the apparent authority which he permits the agent to assume. No express terms are required to define the agent’s powers. The relation of principal and agent implies a grant of the powers necessarily incident to the purposes of the agency, or which, by established usage, may properly be employed in carrying out those purposes.</p> <p>A person dealing with an agent is bound to ascertain the- extent .of the agent’s authority, and this is particularly the case in dealing with him for the first time ; in subsequent dealing he may assume that the original authority continues, unless informed to the-contrary. The mere designation of general agent is not sufficiently specific. A general agency in a particular branch of the principal’s business implies no power in connection with any other branch.</p> <p>It is always competent for the principal to show the scope and extent of the agent’s authority ; and it is always competent for a person dealing with an agent to show that the acts of the agent, in excess of his express authority, are nevertheless within the scope of the authority which the principal has permitted him to assume, or which, by a course of dealing or otherwise, he has been held out by the principal, either to the public in general or to the person dealing with him, as possessing.</p> <p>The declarations of an agent are not competent evidence of the extent of his powers until after some evidence tending to show that he has the authority which he assumes to exercise. Evidence of an authority substantially different is insufficient.</p> <p>The general collector of a brewing company, whose power is limited to settling the accounts of the selling agents and establishing new agencies with the company’s approval, has no power to make a 'contract with a so-called agent who is really a purchaser of beer, by which the latter is to receive a compensation for services, and is to be relieved from liability for accounts not collected. Declarations of the general collector, who was dead at the time of the trial, are not admissible to show that he had authority to make such a contract on behalf of his employer.</p>

<p>Appeal, No. 208, Oct. T., 1903, by defendant, from order of O. P. Lebigh Co., June T., 1903, No. 45, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lehigh. County to use of City of Allentown v. John R. Gossler, Treasurer of Lehigh County.</p> <p>Assumpsit on a county treasurer’s bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>From the record it appeared that plaintiff claimed #542 unpaid balances for its proportion of retail liquor licenses for the years 1894, 1895 and 1896. The bond upon which suit was brought was as follows :</p> <p>“ Know all men by these presents that we, John R. Gossler, John F. Gossler, R. Peter Steckel, Geo. O. Albright, John E. Lentz, Alex. Singmaster, Thomas Johnson, Jacob H. Saeger, F. G. Sieger, Christian Swartz, Thomas Steckel, Walter L. Williams, all of the. County of Lehigh, and State of Pennsylvania, are held and firmly bound unto Pliaon Diehl, James F. .Jordan and Milton Kurtz, Commissioners of the County of Lehigh, in the sum of One Hundred and Twenty-five Thousand Dollars lawful money of the United States of America, to be paid to the said county or its certain attorney, successors or assigns, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, and each and every of them firmly by these presents. Sealed with our seals at Allentown, Lehigh County, in the Commonwealth aforesaid, this 5th day of December, 1893.</p> <p>“ Whereas, at an election held at the several polling places in said county on the first Tuesday after the first Monday, to wit: the 7th day of November, A. D. 1893, the said John R. Gossler was duly elected Treasurer of the County of Lehigh for the term of three years, to be computed from the first Monday of January, A. D. 1893.</p> <p>“ Now, the condition of this obligation is such that if the above named John R. Gossler faithfully performs the duties of his office, keeps a just account of all moneys that may come into his hands on behalf of the county, delivers to his successor in office all books, papers and accounts and other things held in right of his office, and pay over to his successor in •office any balance of money belonging to the county, remaining in Ms hands, then this obligation to be null and void,” etc.</p> <p>The matters of defense set up in the. affidavit of defense are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Bond — Collateral security — Volunteers—Notice.</p> <p>With respect to a bond and a collateral security, it is settled that the bond is the principal debt in law, and must govern the rights of the parties between themselves. It must also govern as to the claims of volunteers, and they are affected by it without notice.</p> <p>A grantor in a deed charged a portion of the purchase money on the land, the interest of which was to be paid to the grantor and his wife and the survivor of them during their lives. Upon the death of the survivor the fund so charged was to be paid “ to the legal heirs of the grantor, or to those legally entitled to the same.” As a part of the transaction the grantee executed a bond to the grantor, conditioned for the payment of the fund after the death of the grantor and his wife “ to the parties entitled to receive the same by his will.” The deed was recorded, but the bond was not. Held, (1) that the bond was the principal debt and governed the rights not only of the parties, but also the grantor’s heirs, who were volunteers ; (2) that it was immaterial that the heirs had no notice of the bond; (3) that the gift was but a provisional gift to the heirs subject to an implied power in the grantor to vest the title in others by will; (4) that the beneficiaries under the grantor’s will, and not his heirs, were entitled to the fund.</p> <p>Appeals — Assignments of error — Exceptions to adjudication — Practice.</p> <p>Where a large number of exceptions have been filed to an adjudication and all have been dismissed, it is improper to assign error as follows: “ The court erred in making the decree that the exceptions should be dismissed and adjudication confirmed.”</p>

<p>Criminal law — Evidence—Comment upon defendant not presenting herself as witness — District attorney — Act of May 23, 1887, sec. 10, P. L. 158.</p> <p>Indictments were found against a woman for selling liquor without a license, selling liquor on Sunday, and for keeping a disorderly house. The three cases were tried together before a single jury. The defendant did not offer herself as a witness. The district attorney in his closing argument said : “You have this woman here without denial — ” when he was promptly interrupted by counsel for the defendant, and an exception taken to the statement. The court said : “ The above remark having been made by the district attorney while discussing the charge in the indictment against the defendant for keeping a disorderly house, the exception is noted for that charge, and bill sealed for the defendant.” The trial proceeded and the court directed a verdict of not guilty in the ease of keeping a disorderly house, but submitted the other cases to the jury, who returned a verdict of guilty upon which judgment of sentence was passed. Held, that the district attorney’s remark was in violation of the Act of May 23, 1887, P. L. 158, and that if it was objectionable as to one indictment it was equally so as to the others, inasmuch as all three were tried together, and the defendant did not offer herself as a witness in any.</p>

<p>Case stated — -Pending action — Amicable action — Practice, C. P.</p> <p>Where no action is pending, and the parties desire the opinion of the court on a case stated, the case stated should be filed in connection with an amicable action, so as to show upon the record an actual, pending action.</p> <p>Appeals — Assignments of error — Practice, S. C. — Extracts from lower court’s opinion.</p> <p>It is irregular practice to assign as error extracts from the opinion of the court below without there being anything in the assignments to indicate that they are such extracts.</p> <p>Municipalities — -Municipal lien — Taxation—Act of May 23, 1889, P. L. 277 — Interest—Penalty.</p> <p>Under the Act of May 23, 1889, art. 15, P. L. 277, regulating the incorporation and government of cities of the third class, a city may, after a lien for taxes has been filed, add the penalty of. one per cent per month on the amount of the lien until judgment is entered on the scire facias, but thereafter it is only entitled to interest at six per cent on the amount of the judgment.</p>

<p>Appeal, No. 253, Oct. T., 1902, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1902, No. 1406, making absolute rule for judgment for want* of a sufficient affidavit of defense in case of William H. Henderson v. Schuylkill Valley Clay Manufacturing Company.</p> <p>Assumpsit for rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Equity — Equity practice — Decree pro confesso — Vacation of decree.</p> <p>Where no answer is filed to a bill in equity for an account, and a decree pro confesso is entered, the decree will not subsequently be .vacated, where it is made clear to the court that the defendants are under a duty to account.</p>

<p>Appeal, No. 222, Oct. T., 1903, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 110, discharging rule to open judgment in case of Margaret C. Algeo v. Colin A. Fries and Ella A. Fries.</p> <p>Rule to open judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Lunacy — Costs—Appeal.</p> <p>The appellate court will not reverse an order in lunacy proceedings imposing the costs on the lunatic’s estate, where there was no testimony taken and no method of showing that the amount was excessive.</p> <p>Lunacy — Notice to lunatic — Notice to next of kin or friends.</p> <p>The Act of June 13, 1836, P. L. 589, relating to lunacy proceedings is mandatory so far as to require notice either to the alleged lunatic, or to some other persons named, but it is clearly discretionary with the court whether more is necessary than a notice to the alleged lunatic. It is wise, however, for the court in all cases where practicable to require notice to some of the next of kin or friends of the alleged lunatic who are not concerned in the application.</p> <p>Lunacy — Jurisdiction—County—State hospital.</p> <p>Where an alleged lunatic is confined in a state hospital for the insane, proceedings may be brought in the county in which the hospital is situated, or in the county of the residence of the lunatic.</p>

<p>Appeal, No. 160, Oct. T., 1903, by defendant, from judgment of O. P. No. 4, Phila. Co., Dec. T., 1901, No. 4492, on verdict for plaintiff in case of Gustav A. Schwab v. Margaret H. Woods.</p> <p>Feigned issue in an interpleader to determine the ownership of certain goods, chattels, tools and fixtures. Before Will-son, P. J.</p> <p>At the trial it appeared that Louis J. Meslin and Frank P. Sparmaker, trading as the Acme Brass & Nickle Mfg. Company, on February 19, 1902, made a bill of sale of certain machinery, tools, patterns, office furniture, materials, stock, good will and business to Gustav A. Schwab. It was the intention of the parties to form a corporation under the laws of the state of Delaware. The evidence was conflicting as to whether the Delaware corporation or Schwab took possession of the property. Schwab paid for the goods $683.29. A large portion of this was paid prior to the levy of defendant Margaret H. Woods.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p>

Appeal, No. 239, Oct. T., 1903, by plaintiff, from decree of C. P. No. 2, Phila. Co., Dec. T., 1901, No. 154, dismissing libel in divorce in case of Minerva Kauffman v. Henry H. Kauffman. Libel for divorce. The case was referred to Howard W. Page, Esq., as master, who found that the respondent had been convicted of an infamous crime, and had heen sentenced to imprisonment for more than two years. He accordingly recommended a decree in favor of the libellant.

<p>Appeal, No. 38, Jan. ,T., 1904, by-defendant, from order of C. P. Monroe Co., Feb. T., 1902, No. 18, making absolute rule for judgment for want-of a sufficient affidavit of defense in case of Stroudsburg Borough v. J. Milton Shick.</p> <p>Assumpsit to recover moneys paid to defendant as liquor license fees.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Execution — Wrongful levy — Sale—Trespass—Evidence—Record.</p> <p>In an action of trespass to recover damages for an alleged wrongful seizure and sale of plaintiff’s property, the plaintiff will not be permitted to show by the evidence of the constable, and without offering to produce the record, what goods were comprised in the levy and sold] and this is the case, although the plaintiff had previously given similar testimony, without objection on the part of the defendant.</p> <p>Execution — Wrongful sale — Husband and wife — Damages.</p> <p>Where a constable without manual seizure wrongfully sells the goods of a wife as the property of her husband, and the purchaser pays the amount of his bid, takes from the constable a bill of sale and leaves the goods upon the premises, and there is no agreement between the purchaser and either the husband or the wife, as to the purchase of the goods, or the use of them after the sale, the wife is entitled to recover the value of the goods at the time of the sale.</p>

<p>Liquor laws — Selling without a license — Club steward.</p> <p>Where a foreman of a gang of laborers engaged in a.public improvement, erects a temporary building and stocks it with provisions and bottled beer, and without a license sells the beer to the laborers taking payment either in cash, or deducting the amount from the wages under an arrangement with the contractor, and it appears that no one of the laborers has any title to or interest in the beer until it is reduced to his possession, the foreman may be convicted of selling liquor without a license. In such a case the foreman cannot be considered a club steward.</p>

<p>Appeal, No. 53, Jan. T., 1904, by-defendant, from order of C. P. Carbon Co., Jan. T., 1899, No. 179, discharging rule to open judgment on case of First National Bank of Hazleton v. Matilda Kintz.</p> <p>Rule to open judgment. Heydt, P. J., found tbe facts to be as follows :</p> <p>1. On October 28, 1893, John A. Kintz executed to tbe First National Bank of Hazleton a note for $500 payable one year after date, containing a confession of judgment. On this note judgment was entered November 11,1893, to No. 61, October term, 1893, in tbe court of common pleas of Carbon county.</p> <p>2. At tbe time of tbe entry of said judgment, No. 61, October term, 1893, tbe title to certain real estate (lots Nos. 11 and 12 on Croll’s plot) in the borough of Weatherly was in the said John A. Kintz.</p> <p>3. The said John A. Kintz, by deed dated September 3, 1894, and recorded September 4,1894, at Mauch Chunk in the office for the recording of deeds in and for Carbon county, in deed book, vol. 41, page 7, etc., conveyed said two lots, Nos. 11 and 12 on Croll’s plot, in the borough of Weatherly to Matilda Kintz, his mother.</p> <p>4. The consideration contained in said deed is $100, and the habendum contained the following clause: “ subject to the payment of a certain bond and mortgage for $1,400' to the Anthracite Building and Loan Association of Weatherly and also to the payment of a certain judgment of $500 to the First National Bank of Hazleton, Luzerne county, Pennsylvania.”</p> <p>5. Said judgment No. 61, October term, 1893 (First Nat. Bk. of Hazleton v. John A. Kintz), was not revived and has never been paid.</p> <p>6. On March 29, 1899, Matilda Kintz and Anthony Kintz, her husband, executed and delivered a note for $566.22, dated March 29, 1899, payable one day after date, with warrant to confess judgment, to the First National Bank of Hazleton. On this note judgment was entered April 5, 1899, to No. 179, January term, 1899, and it is this judgment that the court is asked to open.</p> <p>7. In drawing said note a printed blank was used, and it has printed thereon at the lower right-hand corner the letters L. S. in a scroll twice and opposite on the left of these letters the signatures are written.</p> <p>8. At the time of the entry of judgment on said note there were on said note three internal revenue stamps : one twenty-five cent stamp, one ten cent stamp, and one two cent stamp. These stamps were not canceled.</p> <p>9. On January 3, 1903, the plaintiff caused these stamps to be canceled by “ J. M. II. Dep. Col.”</p> <p>10. On May 11,1903, the plaintiff paid a penalty of $10.00 and had the note restamped.</p> <p>11. The said Matilda Kintz, at the time of the signing of said note, was a married woman, being the wife of Anthony Kintz.</p> <p>12. The consideration for said note was judgment No. 61, October Term, 1893 (The First National Bank of Hazleton v. John A. Kintz), subject to the payment of which John A. Kintz had conveyed said lots Nos. 11 and 12 to Matilda Kintz.</p> <p>The court discharged the rule to open judgment.</p> <p>Error assigned was the order of the court.</p>

<p>Judgment — Mortgage—Attorney’s commissions — Discretion of court.</p> <p>While stipulations for the payment of attorney's commissions in mortgages and other securities are valid, they are, nevertheless, subject to the equitable control of the court and will be enforced only to the extent of compensating the plaintiff for reasonable and necessary expenses of collection and where a debtor has been misled by his creditor or thrown off his guard, it is not an unreasonable exercise of the equitable power of the court to refuse any allowance for attorney’s commissions; but to justify such action the defendant should attest his sincerity and good faith by promptly paying or tendering the amount of debt and interest, exclusive of commissions. In general the appellate court will not review the exercise of a sound discretion by the lower court upon such a question, and the presumption will always be in favor of its discretion unless it is plainly excessive.</p>

<p>Appeal, No. 5, Jan. T., 1904, by defendant, from order of C. P. Wyoming Co., Oct. T., 1901, No. 43, discharging rule to open judgment in case of Asa S. Keeler, Assignee, v. W. W. DeWitt.</p> <p>Rule to open judgment.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to open judgment.</p>

Appeal, No. 23, April T., 1904, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1902, No. 456, on verdict of guilty in case of Commonwealth v. Harry B. Wenzel. Indictment for selling liquor without a license. Before Frazer, P. J., and Shafer, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed. Errors assigned (1, 2) are quoted in the opinion of the Superior Court.

Appeal, No. 28, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1902, No. 213, affirming judgment of justice of the peace in case of John Cunningham v. F. M. Everett. Appeal from judgment of justice of the peace. The facts are stated in the opinion of the Superior Court. Error assigned was in affirming the judgment.

Appeal, No. 31, Jan. T., 1904, by-plaintiff, from order of ' C. P. Luzerne Co., Feb. T., 1902, No. 275, making absolute rule for judgment but restricting lien thereof, in case of Jonathan O. Stokes, Assignee of Alexander Crow, Jr., High Sheriff of the County of Philadelphia, v. Thomas B. Dewees and Walter W. Lance. 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.

<p>Appeal, No. 34, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., March T., 1900, No. 260, on verdict for plaintiff in case of J. T. Toban v. Lehigh & Wilkes-Barre Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Wheaton, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>The court refused to give binding instructions for defendant.</p> <p>Yerdict and judgment for plaintiff for $301. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Public officers — Supervisors—•Townships—Deliberate action of supervisors.</p> <p>While a single supervisor may bind the township' in a matter merely ministerial, he cannot do so where the business requires deliberation, consultation and judgment. In such a case the supervisors'should -consult and deliberate together, and though they-do not unite-in opinion, a majority may act when there are more-than two. Neither-the degree of consultation, nor the extent of deliberation can be defined,, as they depend upon the circumstances of each case; and in townships haViiig but two supervisors, more cannot be expected than that they shall honestly confer with each other, and fairly deliberate in the interest of the taxpayers before they attempt to bind the township by their action.1</p> <p>One supervisor cannot commit his experience and business judgment to his colleague and delegate to him the power to think and act in his stead.</p> <p>The question whether the township shall buy a new road scraper, or exchange the old one for a new one, or repair the old one, is a matter, not merely ministerial, but is one involving consultation and deliberation, and cannot be decided by one supervisor without consultation on his part with the other supervisor, there being only two for the township.</p>

<p>Appeal, No. 50, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1901, No. 204, on verdict for plaintiff in case of Anne Levinson v. Lawrence Myers.</p> <p>Trespass to recover damages for injury to a stock of millinery. Before Wheaton, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $700. Defendant appealed. ;</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 80, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Dee. T., 1897, No. 696, on verdict for plaintiff in case of Mulhern and Judge v. Ann Roach.</p> <p>Issue to determine the validity of a judgment. Before Little, P. J.</p> <p>The opinion of' the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $485. Defendant appealed.</p> <p>Errors assigned were (1) refusal to permit a plea of non est factum to be filed; (2) admission in evidence of the continuance docket.</p>

<p>Boroughs — Order to pay money — Defense.</p> <p>An order to pay money out of the general funds of a'borough, signed by the president and clerk of the borough council and directed' to the borough treasurer, is not a paper upon which suit may be.brought, being neither a bill, note, check nor contract; and it is not a satisfaction of the original indebtedness. ' Against such an order the borough'may set up the defense of-ultra vires or fraud, or want or failure of consideration. ..</p>

<p>School law — Order for payment of debt — Treasurer—Public officers — Mandamus.</p> <p>In mandamus proceedings to compel the treasurer of a school district to pay an order, it appeared that the order was given for school supplies, was issued by the school board, and signed by the president and attested by the secretary. The school district was indebted in other amounts, and all the debts were to be paid out of the proceeds of an issue of bonds. In the preliminary statement of the indebtedness which was issued to validate the bonds, the claim in question was included as a subsisting debt. The proceeds of the bonds was in the hands of the treasurer two days prior to the presentation of the orders. The treasurer refused payment. In his answer to the petition for mandamus it appeared that he was a member of the school board which gave the order.. He did not deny the contract for supplies, nor that the supplies were received, simply stating that he had no knowledge of any contract or resolution authorizing the purchase. He did not deny that he received the money from the proceeds of the bonds to pay the scheduled debts. Held, that it was not error to issue the mandamus.</p>

<p>Contract — Sale—Payment—Course of business — Rescission.</p> <p>Where, under a contract for the sale of a large quantity of ice, to be shipped as ordered, payments to be made weekly, payments are not made weekly, and this has continued for a year or more with the assent of the seller, the latter cannot, in view of the previous course of dealing, make a sudden, unconditional and absolute rescission, the purchaser being solvent, and not having wilfully refused to pay bills overdue. In such a case notice of the seller’s intention to insist on a strict and literal compliance with the terms of the contract as to future bills should precede rescission</p>

<p>Landlord and tenant — Lease—Principal and agent — Distress—Replevin.</p> <p>In an action of replevin for goods seized in distress proceedings by defendant, it appeared that plaintiff was in possession of premises under a lease signed by a person who in the premises of the lease was described as an agent. Plaintiff paid rent to this person, and if such payment was ptoper, was not in default at the time of the distress. The defendant filed an affidavit of defense in which he averred that prior to the date of the lease, ,the leasehold had been assigned by the owner of the premises to a building association as collateral security for a loan; that defendant as secretary of the association had deputed the person who signed the lease as hgent to execute the lease and to collect the rent ; that prior to the day on which the first payment of rent was to be made, which was also the date of the lease, defendant notified plaintiff that the agency was revoked, and that the plaintiff should pay the rent to him, the defendant. A copy of the assignment of the leasehold was not attached to the affidavit of defense. Held, that the affidavit of defense was insufficient to prevent judgment.</p>

Appeal, No. 120, Oct. T., 1903, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1901, No. 210, dismissing exceptions to report of referee in ease of Jacob F. Potter to use of Charlotte F. Potter v. Solomon Greenberg. .Exceptions to report of John C. Bell, Esq., referee. The facts are stated in the opinion of thq Superior Court. Errors assigned were in dismissing exceptions to report of referee.

Appeal, No. 121, Oct. T., 1902, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1901, No. 4352, sustaining exceptions to referee’s report in case of Jacob F. Potter to use of Charlotte F. Potter v. Solomon Greenberg. Exceptions to report of John C. Bell, Esq., referee. The facts are stated in the opinion of the Superior Court. Error assigned was in sustaining exceptions to referee’s report.

<p>Appeal, No. 123, Oct. T., 1903, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1902, No. 2260, dismissing exceptions to referee’s report in case of Merchants’ Trust Company, Assignee of Solomon Greenberg, v. Jacob F. Potter and the Equitable Trust Company.</p> <p>Exceptions to report of John C. Bell, Esq., referee.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>JError assigned was in dismissing exceptions to report of referee.</p>

Appeal, No. 11, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1894, .No. 814, on verdict for plaintiff in case of John J. Curry v. Luzerne Borough. Trespass for personal injuries. Before Halsey, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $2,441.65, upon which judgment was entered for $1,500. Defendant appealed. Errors assigned were various rulings on evidence and instructions.

Appeal, No. 20, Jan. T., 1904, by plaintiff, from order of C. P. Susquehanna Co., Nov. T., 1901, No. 221, awarding mandamus in case of S.T. Marcy v. Spring-ville Township. Petition for mandamus. The facts are stated in the opinion of the Superior Court. Error assigned was the order awarding mandamus.

<p>Corporations — Foreign corporations — Registration—Doing business — Act of April 22, 1874.</p> <p>A foreign corporation which owns personal property in Pennsylvania may maintain an action in the courts of Pennsylvania to recover such property, although it may not have complied with the registration act of April 22, 1874. The person retaining the property and having no contract relations with the corporation, has no standing to object that the corporation is doing business in this state without having complied with the act.</p> <p>Practice, C. P. — Money paid into court — Issue to determine ownership of fund — Feigned issue.</p> <p>On the trial of a feigned issue to determine the ownership of a fund paid into court, it is error to permit a verdict and judgment to be entered against the defendant for a stated sum. The verdict and judgment should be for the plaintiff generally.</p> <p>Attachment execution — Costs—Attorney’s fees — Justice of the peace.</p> <p>The Acts of April 22, 1863, P. L. 527, June 11, 1885, P. L. 107, and April 29, 1891, P. L. 35, allowing costs to garnishees in attachment executions “ issued out of any court of record in this state,” do not apply to writs of attachment issued by justices of the peace, aldermen and magistrates.</p> <p>Where a garnishee appeals from a judgment of a justice of the peace, and the court permits the garnishee to pay the fund into court less certain fees and costs taxed by the court at an amount stated, the plaintiff may after verdict and judgment in his favor object to the taxation of the costs.</p>

Appeal, No. 82, Oct. T., 1903, by JohnE. Evans, from decree of O. C. Montgomery Co., in not sustaining claim of appellant, in estate.of Charles Tyson, Exceptions to adjudication. From the record it appeared that John E. Evans claimed $496, being the principal of a judgment recovered, by him against the estate of Mary Tyson, the widow of Charles Tyson.

<p>Mortgage — Affidavit of defense — Deed—Delivery.</p> <p>On a scire facias sur mortgage, the heirs of a decedent filed an affidavit of defense in which they alleged that after the death of the decedent who was seized of the land, there was found among his effects a deed for the same naming the -mortgagor as grantee, but which had never been delivered to him, or any one for him, that the mortgagor without the authority or consent of the heirs took and recorded the deed, and on the same day also without their knowledge or consent, executed the mortgage in suit, and that the mortgagor never acquired any title from the decedent, nor from any of his heirs or assigns to or in the land described in the writ, and had no right to mortgage or incumber the same; that in a prior equity suit between deponents and the mortgagor and mortgagee, the court below in a decree affirmed by the Supreme Court had decreed the invalidity of the mortgage in question. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

<p>Appeal, No. 228, Oct. T., 1903, by-plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1900, No. 235, on verdict for defendant in case of the Folsom Building & Loan Association v. John J. Gogel.</p> <p>Assumpsit for money due a building and loan association. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Under the instruction of the court the jury returned a verdict for the defendant for $77.77. Plaintiff appealed.</p> <p>Errors assigned were (1-20) various rulings on evidence, quoting the bill of exceptions; (21) the instructions of the court as above.</p>

<p>Appeal, No. 73, Oct. T., 1903, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 575, dismissing exceptions to report of referee in case of Joseph B. Jackson v. Isaac S. Smyth et al., trading as Young, Smyth, Field & Company.</p> <p>Exceptions to report of Alexander Simpson, Jr., Esq., referee.</p> <p>Errors assigned were in dismissing exceptions to report of referee.</p>

<p>Evidence — Competency of witness — Party dead — Joint contract — ■Act of May 23, 1887, P. L. 158, sec. 5, clause e — Decedent’s estates.</p> <p>Where four sons in their mother’s lifetime execute to her a life lease of real estate, and it is claimed that there was a parol contemporaneous joint contract by which the mother was to execute a will by which she was to give to the sons each a one-fourth interest in the estate of which she should die seized, and after the mother’s death a suit was brought by one of the sons against the mother’s executor for breach of the alleged oral agreement, the other three sons who had also brought separate suits against the executor for the same breach, are not competent witnesses to establish the alleged oral agreement.</p> <p>In the above case testimony by an attorney at law that the parol agreement at the time the life lease was executed was that the property would descend to and become vested in the heirs of the decedent’s deceased husband, and that some papers which the witness thought a will, was made contemporaneously with the lease, is not sufficient to sustain a statement in the charge, that the attorney had testified that the decedent had agreed to make a will in favor of her four sons, there being another son in addition to the four named.</p>

<p>Criminal law — Forgery—Indictment—Evidence.</p> <p>Where a defendant is charged with the unlawful, false and fraudulent uttering and publishing of a written instrument, with the intent, etc., the failure to charge a scienter deprives him of no legal right. Of course he cannot be convicted of uttering and publishing without proving his guilty knowledge.</p> <p>Where an indictment for forgery charges the making of a note on a certain day, and a true bill is found within less than one year from the date charged, and a copy of the note appearing in the indictment gives the date as of a day more than five years prior to the date of the indictment, the court cannot give binding instructions that the prosecution is barred by the statute of limitations. In such a case it is proper to submit the indictment to the jury, and to charge that defendant cannot be convicted unless the jury are satisfied beyond a reasonable doubt that he made or caused the note to be made within five years of the finding of the bill.</p> <p>On the trial of an indictment for forgery there is sufficient evidence to warrant the jury in finding that there was a forged note in the possession of the defendant, where it appears that the defendant had brought a civil action and filed a copy of the note therein which was similar to the one set out in the indictment, and a large number of witnesses testify to seeing the note, and to declarations of the defendant that he had such a note.</p>

Appeal, No. 64, Oct. T., 1903, by-defendant, from judgment of C. P. No. 2, Pbila. Co., Dec. T., 1900, No. 24, on verdict for plaintiff in case of John B. Rhine v. Philadelphia. Trespass to recover damages for personal injuries. Before Sulzberger, P. J. The circumstances of the accident are detailed in the opinion of the Superior Court. Verdict and judgment for plaintiff for $300. Defendant appealed.

<p>Promissory notes — -Accommodation note — Maher—Consideration—Act of May 16, 1901, P. L. 194.</p> <p>In an action by the payee of a promissory note against the two makers of the note, one of the makers cannot allege as a defense that he signed the note at the request of the payee and for the accommodation of the payee, and that no ■ consideration whatever was paid to him by the payee for such signing. Delaware County Trust,' etc., Co. v. Haser, 199 Pa. 17, followed. • * ......</p>

Appeal, No. 169, Oct. T., 1903, by defendant, from order of Q. S. Phila. Co., March T., 1903, No. 724, restraining defendant from further violating the oleomargarine act in case of Commonwealth v. W. N. Andrews. Exceptions to restraining order. Before Bregy, J. From the record it appeared that W. N. Andrews, the defendant, was arrested on a warrant charging him with the sale of oleomargarine without a license, in violation of the Act of May 29, 1901, P. L. 327.

<p>Appeal, No. 61, Jan. T., 1904, by Levi Horn et al., from judgment of Q. S. Carbon Co., June T., 1900, No. 41, in matter of County Bridge on Mahoning Creek.</p> <p>Rule to show cause why report of county bridge inspectors should not be approved. Before Heydt, P. J.</p> <p>From the record it appeared that the county of Carbon entered into a written contract with the appellants for the erection of a stone arch bridge for the sum of $4,600. Upon the completion of the bridge three viewers were appointed under the act of May 8, 1889, to inspect the bridge, who reported that the work had been completed in accordance with the plans and specifications, except at one point in the foundation and recommended a deduction of $92.00 from the contract price. This report was set aside and six inspectors were appointed under the act of June 13, 1836, who reported that they did not approve of the bridge, and recommended a deduction of $1,000 from the contract price by reason of the bridge not being built according to specifications, whereupon the court granted a rule upon the contractors “ to show cause why said report should not be approved.” Upon petition a number of taxpayers were permitted to become parties to the proceedings and defend the county. After hearing a large amount of testimony the court disregarding the report decided that the poptrpctors, under the law, were not entitled to recover, by reason of having failed to build the bridge according to the terms of the contract, and entered judgment in favor of the county.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 19, Jan. T., 1904, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1900, No. 299, on verdict for plaintiff in case of George Farver v. American Car and Foundry Company. Trespass for nuisance.

Appeal, No. 13, Jan. T., 1904, by plaintiff, from judgment of C. P. Luzerne Go., on case stated for defendant in suit of Charles D. Foster v. Fidelity Fire Insurance Company of Baltimore City. Case stated to determine liability on a policy of fire insurance.

<p>Equity — Mistake—Mutual mistake — Reformation of written instrument— Insurance — Fire insurance — Policy.</p> <p>It is a settled rule in equity that where the court is asked to reform the written evidence of a contract, the mistake must be mutual. ,</p> <p>A court of equity has not power to reform an agreement. It can only correct the written evidence of the agreement to make it correspond to the understanding of the parties.</p> <p>A bill in equity to reform a fire insurance policy which alleges that the agent of the company was given an order to insure a certain building, but that by mistake he wrote a policy on another building of the same owner, cannot be sustained where the uncontradicted evidence is that the property actually insured, and which the agent examined and intended to insure, was the property covered by the policy, and that there was no understanding or intention of the company to insure the other building.</p>

<p>Appeal, No. 85, Jan. T., 1904, by-plaintiff, from order of C. P. Luzerne Co., Oct. T., 1903, No. 1113, discharging rule for judgment for want of a sufficient affidavit of defense in case of Penn Shovel Company v. Francis A. Phelps, Cyrus Straw and G. W. Lewis, copartners as Phelps, Straw & Company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 122, April T., 1908, by Oil City, from order' of C. P. Venango Co., Nov. T., 1901, No. 2, sustaining exceptions to report of jury of view in the matter of change of grade of Harriott Auenue. Exceptions to report of jury of view. The facts are stated in the opinion of the Superior Court. Errors assigned were in sustaining exceptions to report of jury of view.

<p>Appeal, No. 14, Jan. T., 1904, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1898, No. 665, on verdict for defendant in case of Sarah M. Myers v. Elizabeth Myers.</p> <p>Ejectment for land in the city of Wilkes-Barre. Before Wheaton, J.</p> <p>At the trial it appeared that the land in controversy was at one time the property of William C. Meyers, plaintiff’s husband. The evidence showed that Meyers had confessed judgment to his sister, and that the sister, who was the defendant, bought in the property at a sale under a judgment. Subsequently plaintiff recovered the judgment against her husband, issued execution thereon, and bought in her husband’s interest in the property.</p> <p>The court charged in part as follows:</p> <p>[The language of the books on that subject is that the burden is upon a person who seeks to overthrow a written instrument like this sealed note, which on its face imports a consideration — the burden is upon such a person to prove not by a mere preponderance of evidence, not by what is known in the law as a mere weight of the evidence, that the transaction is such as would require or impel a chancellor to wipe that paper out of existence, — but they are bound to establish facts to the satisfaction of a chancellor, by proof that is known as clear, precise, explicit, unequivocal and indubitable — or at least of a character to which some of these terms apply. These terms the Supreme Court says are used by the courts in defining the requisite proof of a particular fact to be made out by verbal testimony, and they mean that a conviction shall be fastened in the minds of jurors as strong as verbal testimony is able to convey. They mean that witnesses shall be found to be credible, that the facts to which they testify are distinctly remembered, that the details are narrated exactly and in due order and that their statements are true. It is a high order of proof and, indeed, the highest order of proof which is required in a civil proceeding.</p> <p>If, in a case of this kind, the court sitting as a chancellor, would not hold the proof offered to be up to the standard as I have defined it to you, then it is his duty to so declare to the jury arid to take away from the determination of the jury the question whether the paper attacked shall be overcome or entirely wiped out; and after a careful consideration of the testimony in this ease, I am not satisfied that there is in it such clear, precise and indubitable proof of fraud, as would warrant me as a chancellor, in declaring that that judgment note of October 11, 1890, ought to be entirely overthrown and disregarded ; and because I believe that the proof is not up to that standard, and because my duty under the law requires me to do so, if I so- believe, I have determined to take the question' away from you and to say to you that by reason of the fact that the proof on the part of the plaintiff in this respect fails, there can be no verdict for the plaintiff in this case, but the verdict must' be for the defendant.] [2]</p> <p>Plaintiff presented these points :</p> <p>If under all the evidence in the casé, the jury believe that at the time William C. Meyers gave the note of $600 to his sister, the defendant, that the said note was without any consideration, and that the said William C. Meyers was then indebted to his wife, the plaintiff, for money loaned by her to him out of her separate estate, and that said indebtedness existed at the time of the sheriff’s sale of the land described in writ, to the defendant, and that this note was given by said William C. Meyers and accepted by the defendant for the purpose of hindering, delaying and defrauding the plaintiff as a creditor of her husband, and that said sheriff’s sale was resorted to for the purpose of carrying this scheme into effect, then the verdict should be for the plaintiff for the land described in the writ. Answer : I decline to affirm that point, because I am of opinion that there is no such clear, precise and indubitable proof in the case as would warrant the court as a chancellor; of the jury as a jury, in holding that the transaction involved in the giving and receiving of the $600 note was a fraudulent one. • If there had been such testimony of the quantity arid quality required by law, and upon a submission of that fact to thé jury, the jury had found the transaction to be a fraudulent one, then the point as stated would have been entirely correct and would havé'been affirmed. [3]</p> <p>2. If the jury believe under all the evidence that the note of $600 given by William C. Meyers to the defendant was without consideration arid was executed for the purpose of hindering, delajdng and defrauding the plaintiff out of her claim as a creditor of her husband, and that the sheriff’s sale on the execution issued on this judgment, was simply the means adopted to transfer the title of the property to the defendant and carry out said fraudulent scheme, then the plaintiff was at liberty to put her claim in judgment and attack the validity and legality of the transaction by means of a sheriff’s sale of the property, and an action of ejectment to recover the possession thereof within six years after the sheriff’s sale of the property to the defendant. Answer: If I had decided to submit this question to you, if I had thought there was sufficient proof of the kind required by law to submit to your determination the question of fraud or lack of fraud in the giving of the $600 note then this point would have been stated, I think, entirely correctly, and I should have affirmed it. But as I have decided to take it away from you for the reasons stated, I decline to charge as therein requested. [4]</p> <p>Defendant presented this point:</p> <p>That there is not sufficient evidence that the judgment of William C. Meyers to Elizabeth Meyers was fraudulent, to submit to a jury, and therefore the verdict must be for the defendant. Answer : I affirm that point, for the reasons which I have stated in my general charge. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (2-5) above instructions, quoting them.</p>

<p>Negligence — Railroads—Passenger—Presumption of negligence — Rebuttal of presumption — Cows on tracks.</p> <p>In an action by a passenger against a railroad company to recover damages for personal injuries resulting from the derailment of a train, the court cannot say as a matter of law that the presumption of negligence against the company has been rebutted by proof of the fact that the derailment was caused by a stray cow on the track, where there is evidence that there were farms within a quarter of a mile of the place of the accident, and that on previous occasions trains had been stopped because of cows on the track. Under such circumstances it is for a jury to say whether the company has performed its full duty as to the protection of its passengers.</p> <p>. Negligence — Railroads—Settlement of claim — Release—Evidence.</p> <p>In an action against a railroad company to recover damages for personal injuries where the defendant sets up a release purporting to have been signed by the plaintiff by her mark, and also a check to her order purporting to have been indorsed by her mark, and also by the signature of her son-in-law, and the plaintiff makes a positive and unequivocal denial of the alleged settlement, and of the execution and delivery of the papers, and' of any knowledge on her part concerning them, or concerning the payment of the money, the case must be submitted, to the jury. The equitable rule of evidence as to the contradiction of a written instrument does not, in such a case, apply.</p> <p>Negligence — Railroads—Settlement of claim — Principal and agent.</p> <p>.Where in a railroad accident case the defendant sets up a settlement with plaintiff, and payment of money to her son-in-law as her agent, and the plaintiff denies all knowledge of the settlement or payment of money, testimony to the effect that plaintiff’s son-in-law after the accident attended to her real estate in the way of collecting rents and payment of bills, is insufficient to warrant the court in charging the jury that the settlement of plaintiff's claim was within the actual or apparent scope of her son-in-law’s 'authority, and that she could not maintain the action without first returning,' or offering to return the money that was paid to him, even though it was paid without her knowledge.</p>

Appeal, No. 62, Jan. T., 1903, by defendant, from judgment of C. P. Columbia Co., May T., 1900, No. 69, on verdict for plaintiff in case of William E. Summers v. Bloomsburg and Sullivan Railroad Company. Trespass to recover damages for personal injuries and for the death of a mule. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Practice, C. P. — Verdict—Judgment—Trespass.</p> <p>In an action of trespass against a township an entry of judgment “in favor of the defendant” by the prothonotary who signs his own name, is not fatally defective although the verdict of the jury returned some days before was “We find the said defendant township not guilty.”</p> <p>Evidence — Record—Certificate—Completeness of record.</p> <p>The fact that the certificate of the record of a “road proceeding” in another county states “in the court of quarter sessions in and for said county, it is, inter alia, thus contained,” does not of itself imply that the record is not complete. The words “inter alia” referred to other records and not to other parts of the same record.</p> <p>Road law — Width of road — Commissioners—Act of February 27, 1882, P. L. 35 — Evidence.</p> <p>Viewers appointed under the act of February 17, 1822, P. L. 35, have no power to fix the width of a road, and the record of their report is not legal evidence to establish the width.</p> <p>Negligence — Township—Unguarded embankment — Fright of horse — Bicycle.</p> <p>In an action against a township to recover damages for injuries sustained by reason of a horse taking fright at a bicycle at a point on a public road where there was an unguarded embankment, it is error for the court to assume that the frightening of a horse by reason of an approaching bicycle, is such an extraordinary occurrence that the township could not reasonably be expected to have provided against it.</p> <p>Trial — Charge—Answers to points.</p> <p>Affirmance of points based upon facts which have no existence in the case, although abstractly correct, tends to confuse the jury, and is ground for reversal.</p>

<p>Appeal, No. 79, Jan, T., 3904, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1902, No. 1376, on verdict for defendant in case of Abington Dairy Company v. T. H. Reynolds.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>When the defendant, Thomas H. Reynolds, was on the stand, the following offer was made :</p> <p>The counsel for the defendant offer in evidence letter from G. M. Carpenter, marked Defendant’s Exhibit No. 10.</p> <p>The Court: Is it conceded by the plaintiff that Mr. Carpenter was a director of the dairy company in the year 1901 ?</p> <p>Mr. Yosburg: Yes, sir.</p> <p>The Court: Is it conceded that this is the same Carpenter and the same man who signed one of the receipts in evidence in this case ?</p> <p>Mr. Dawson: Yes, sir.</p> <p>The Court: Conceded that he received that money and receipted for it on behalf of the company ?</p> <p>Mr. Yosburg : Yes, sir.</p> <p>The Court: It is also conceded that this paper is what it purports to be, namely, a letter sent by Carpenter to Reynolds, the defendant.</p> <p>Mr. Dawson: We don’t know, as to that.</p> <p>The Court: Is it conceded that that is Mr. Carpenter’s writing ?</p> <p>Mr. Vosburg : Yes, sir.</p> <p>Mr. Chase: Q. Where did you receive this paper, where did you get that paper ? A. I got it by mail at Factoryville. Q. Are you acquainted with the writing of Mr. Carpenter ? A. Yes, sir.</p> <p>The Court: For what purpose is the letter offered ?</p> <p>Mr. Chase: It is offered in evidence for the purpose of showing that this indebtedness in question in this case was the indebtedness of W. G. Reynolds and not the indebtedness of Thomas IL, and Thomas H. Reynolds was not liable for it as tending to show those facts.</p> <p>Mr. Vosburg : The counsel for the plaintiff object to the offer as incompetent, immaterial and irrelevant.</p> <p>The Court :• The objection is overruled and the letter admitted in evidence as a circumstance bearing upon the question as to whom the credit in this case was given, and also bearing upon the nature of the defendant’s undertaking, if any. Exception noted for the plaintiff at whose request a bill is sealed. [1]</p> <p>Letter is as follows :</p> <p>“ Scranton, Pa., Nov. 18,1901.</p> <p>“ Thomas Reynolds Esq.:'</p> <p>“ Dear Sir: — I wish you would drop in and see Fred about your brother’s bill. Can’t we get him to pay so much each month on this bill ? Come in at any rate and let’s see what can be done.</p> <p>“ Yours. truly,</p> <p>“Güó. M. Carpenter.”</p> <p>The court charged in part as follows :</p> <p>[Your attention is further called to the. nature ,,of a letter which the defendant received from one of the-directors of this company in the month of November, 1901, after the deliveries of milk had ceased. While that letter is by no means conclusive' and perhaps is not entitled to any great deal of weight, yet I think it is fair matter for the jury to consider in a case of this kind and thinking so I have admitted it in evidence. It has been stated in your hearing and the record shows that while this concern was at the time what is ■ called a. limited partnership — at the time that this transaction began — it was sometime afterwards converted into a corporation, and a man by the name of G. M. Carpenter was connected with and -interested in both concerns, and I think he has been spoken of as a director, a director at-the time this letter was written; and without undertaking to repeat the contents of the letter, in substance it calls the defendant’s attention to the fact that his brother’s account is behind, or something of the kind ; .ealls attention not to his account,-but to his brother’s account, and asks him if he can’t get him to do something, make a part payment, pay so much a month, or something of the kind. You have right to consider that for what it is worth in view of the fact that Mr. Carpenter is confessedly, or was, a director. The answer to that is, that there is nothing here to show that Mr. Carpenter was conversant with the real history of this matter. It is for you to say how much weight that answer is entitled' to. Of course concerns of this kind can only act by their boards of directors. Oftentimes the management of their business is so far committed to a manager or superintendent that with regard to much of it a director perhaps would speak with very little intelligence; but the letter I think is legitimate for you to consider for what it is worth.] [2]</p> <p>[I think the allegation is made here that the books bear evidence of the account having been first charged to W. G., and that upon the face of the books themselves there is evidence that the name of T. H., that is the defendant, was added after-wards. My impression is that the bookkeeper testified that in the first instance she did so start the account, and that she added T. H.’s name later on when her mistake, as she called it, was discovered by the manager. You have a right to examine the books, to look at them, such of them as have been put in evidence, and to judge whether there is anything in that argument and if so how far it is sustained, and what effect shall be given to it.] [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors 'assigned were (1) ruling on. evidence, quoting the bill of exceptions; (2, 3) above instructions, quoting them.</p>

Appeal, No. 188, Oct. T., 1903, by James McGoimell, from order of Q. S. Potter Co., granting a liquor license in In Re Petition of James McGonnell. Petition for a liquor license. From the record it appeared that on April 21, 1903, James MqGonnell filed a petition for a retail liquor license, for the Hotel McGonnell in the borough of Coudersporl, accompanied by certificate of qualified electors in support of the petition, and the ¡jame day filed the bond required by law.