Volume 25 — Pennsylvania Superior Court Reports

Appeal, No. 127, Oct. T., 1903, by Anna Bischoff, from order of C. P. No. 4, Phila. Co., June T., 1900, No. 385, dismissing exceptions to auditor’s report, in case of J. Clarke Moore to use of Leon H. Folz v. Carl Bischoff et al. Exceptions to auditor’s report. The opinion of the Superior Court states the case. Error assigned was quoted in the opinion of the Superior Court.

<p>Corporations — Heat and power companies — Contract—Case for jury.</p> <p>In an action to recover a balance alleged to be due for heat furnished, it appeared that plaintiff agreed to furnish heat to defendants for $180 per year. Afterwards defendants were notified that the price would be increased to $225. There was evidence that defendants notified plaintiff that they would not pay the increase, and that the heat might be cut off. The heat was not cut off, and for several years plaintiff accepted for each year $180 although demanding $225, defendants insisting that they had a contract for the lesser sum. Held, that the case was for the jury to determine the terms upon which the service was continued.</p>

<p>Appeal, No. 64, Jan. T., 1904, from order of Q. S. Wyoming Co., Road Docket, 2, p. 348, refusing to appoint new reviewers in matter of road in Over-field township.</p> <p>Motion to appoint new reviewers on original petition for reviewers.</p> <p>The ground for the application was that one of the reviewers had failed to view the road.</p> <p>Dunham, P. J., filed the following opinion:</p> <p>In this case there have been practically three views upon the same route, all reporting in favor of a road.</p> <p>Viewers reported in favor of this road and their report was never excepted to by anyone. At the sessions of the court when this report would have been confirmed finally, had no exceptions been filed thereto, or no petition for a review presented there was presented a petition for a review, upon which the court appointed reviewers, who also reported in favor of the road.</p> <p>This report of viewers was excepted to by the persons who procured the review, at the second session of court, when it came up for final confirmation, and after depositions were taken on both sides, the report of reviewers was set aside, for the reason that one of the viewers did not go over the whole of the route, although he was familiar with the same. He went part way and being about tired out he allowed the other two viewers to go over the balance of the route and concurred with them in their report. This left the report of viewers, having been before the court for nearly or quite a year and with no exceptions whatever filed to the same. Under these circumstances there was but one thing the court could do, and that was to confirm this report.</p> <p>Now some time after this report is confirmed we are asked to strike off this confirmation of the report, and grant another view upon the petition for a review, inasmuch as we set aside the report of reviewers, because they had not properly performed their duties, and in support of this we are referred to Road in Leet Township, 159 Pa. 72. We do not think the cases are analogous. In the Leet Township Road case the report of viewers was excepted to, and the court had failed to appoint proper viewers. And it is because the court had failed to give those asking for a review^. an opportunity to have a legal review that the Supreme Court found as it did. In this case, the fault is not the court’s. And again in this case no exception has ever been filed to the report of viewers. Should we hold that parties were entitled to reviews until the reviewers performed their duties legally we might never get through with reviews as the persons asking for the review are opposed to the road, and they will certainly not take extra pains to see that viewers who may report adversely to them perform their duties very minutely.</p> <p>Now, September 17,1903, motion for rule to show cause why the confirmation of report of viewers be not stricken off and reviewers appointed upon former petition for a review, refused.</p> <p>Error assigned was the order of the court.</p>

<p>Mandamus — Legal right — When the writ is granted — Municipal corporations — Payment of liabilities — Controller.</p> <p>The remedy by mandamus is a strictly legal one, and the decisions require that the appellant must establish a specific legal right, as well as a want of a specific legal remedy, and also that the writ will be granted only in extraordinary eases.</p> <p>It is a general rule that whenever a statute gives power to or imposes an obligation on a particular person to do some particular act or duty, and provides no specific legal remedy for nonperformance, the court will, in order to prevent a failure of justice, grant the writ to command the doing of such act or .duty..</p> <p>Whether the duty to provide for the payment of the liabilities of a municipal corporation be specifically enjoined, or whether it results from the general powers and nature of the corporation, it may, in all proper cases, be equally enforced by mandamus.</p> <p>Where the duty to be performed by a public officer is judicial or involves the exercise of discretion, mandamus will lie to compel the official to act in the premises and exercise his judgment and discretion, but will not direct how the duty shall be performed or the discretion exercised. If, however, such judgment or discretion is abused or there is a mistaken view of the law taken as applied to the admitted facts of the case, the writ will issue to compel action according to law.</p> <p>Under section 8 of the Act of June 27, 1895, P. L. 403, a county controller cannot refuse to approve and certify a bill, claim or demand, until after he has investigated the matter as indicated by the statute.</p> <p>Since the Act of June 8, 1893, P. L. 345, the return to a writ of mandamus must be positive, explicit and responsive in its recital of facts, and stated in a specific and substantial, but not argumentative manner, which upon a fair and reasonable construction may be called certain without recurring to possible facts that do not appear, or that are left to inference.</p> <p>- On a petition by a constable for mandamus against a controller to compel the latter to approve the former’s bills, a return is insufficient in which the controller avers that he had scrutinized and audited the bills, but “ that the only evidence of the justice of the claims presented to him in his official capacity were the bills themselves and the files in the various cases ; that he is not satisfied that the claims are honest or just, that his refusal is not a capricious one but based upon information and knowledge which he does not deem advisable to set forth in his answer.”</p>

<p>Appeal, No. 13, Oct. T., 1903, by defendant, from judgment of C. P. Blair Co., Jan. T., 1902, No. 109, on verdict for plaintiff in case of Bridget Hads v. Thomas J. Tiernan.</p> <p>Ejectment for lot of land in Altoona. Before Bell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 59, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1900, No. 489, on verdict for plaintiff in case of J. N. Thomas v. John B. Law.</p> <p>Assumpsit on promissory notes. Before Little, P. J., specially presiding.</p> <p>At the trial the defendant sought to establish by his own testimony alone a set-off for services alleged to have been rendered to plaintiff under an agreement that the compensation for such services should be applied upon the debt represented by the notes in suit. Defendant denied the agreement. Plaintiff presented two points, both of which were affirmed. These points and the answers thereto are quoted in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,080.38. Defendant appealed.</p> <p>Errors assigned were (1, 2) the answers to the two points of plaintiff, quoting points and answers.</p>

<p>Appeal, No. 56, Jan. T., 1904, from judgment of C. P. Lackawanna Co., May T., 1901, No. 127, on verdict for plaintiff in case of S. Barnett & Son v. Becker Brothers.</p> <p>Assumpsit for goods sold and delivered. Before Newcomb, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiffs for the full amount of their claim.</p> <p>Verdict and judgment for plaintiffs for 1561.12. Defendants appealed.</p> <p>Error assigned was the instructions for plaintiff.</p>

Appeal, No. 81, Jan. T., 1904, by Jacob Compton, from decree of O. C. Lackawanna Co., Series “C,” No. 622, distributing fund in estate of Cornelius Compton, deceased. Exceptions to adjudication. Before Sando, P. J. The opinion of the Superior Court states the case. Error assigned was decree awarding fund to guardian of Lorin C. Compton.

Appeal, No. 2, Feb. T., 1904, by plaintiff, from judgment of C. P. Clinton Co., Jan. T., 1898, No. 187, on verdict for defendant in case of William A. Reed v. O. F. Felmlee. Replevin for a buggy. Before Mayer, P. J. The opinion of the Superior Court states the case. Plaintiffs presented the following points : 1.

Appeal, No. 3, Feb. T., 1904, by-defendant, from order of Q. S. Lycoming Co., Dec. T., 1899, No. 1, confirming order of removal incase of Franklin County Poor District v. Danville and Mahoning Poor District. Appeal from order of removal of poor person. ’ The opinion of the Superior Court states the case. Error assigned was the order of the court confirming order of removal.

Appeal, No. 8, Feb. T., 1904, by defendant, from judgment of C. P. Clinton Co., May T., 1899, No. 208, on verdict for plaintiff in case of Beckey Carskaddon v. Phcebe Miller, Deceased. Assumpsit on promissory note. Before Mayer, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,182.72. Defendant appealed.

Appeal, No. 11, Feb. T., 1904, by-plaintiff, from order of C. P. Lycoming Co., March T., 1903, No. 49, making absolute rule to open judgment and set aside fi. fa. in case of Richard Van Cott & Company v. Mrs. J. M. Webb-Miller and Norman Miller, her Husband, trading as Mrs. J. M. Miller. Assumpsit for goods sold and delivered. Rule to open judgment.

<p>Appeal, No. 70, Jan. T., 1904, t>y plaintiffs, from judgment of C. P. Luzerne Co., Dec. T., 1898, No. 389, on verdict for defendant in case of Isidor Levison and Louis Hirseh v. Charles A. Blumenthal.</p> <p>Assumpsit on a foreign judgment. Before Wheaton, J.</p> <p>At the trial it appeared that the plaintiffs brought a suit in 1888 against the defendant to recover for goods sold and delivered. By agreement this suit was referred to James L. Lenahan, Esq., as referee. Neither plaintiffs nor their counsel appeared before the referee, and there was no trial upon the merits. The referee entered judgment for defendant for costs. In 1895 the plaintiffs brought an action in the city court of the city of New York on the same cause of action. The defendant was summoned and appeared and defended. He introduced in evidence the record of the suit previously brought in Pennsylvania. In 1898 the New York court entered judgment for plaintiffs for f204.14. The present action was brought upon this judgment.</p> <p>The court charged in part as follows :</p> <p>Mr. Blumenthal, as appears in the testimony offered by the plaintiffs themselves in this case, set up as a defense down in New York city in the court there trying this cause of action, if you shall believe it to be the same cause of action, the defense that he had been sued up here for this same thing by the same people, and that the judgment of a court of competent jurisdiction had been rendered in his favor up here. [But the judge of the city court before whom the case was heard there paid no attention to that, and directed that a judgment be entered there, which was done, as the transcript or exemplification of the record shows.] [5] [Two judges of this court have already held that that action on the part of the court in New York city was in plain violation of article IV, section' 1, of the constitution of the United States, and of the act of congress of May 26, 1790.] [6] Two judges of this court have already said that the judge in New York city, who directed the entry of the judgment upon which the suit heard before you is being tried after it had been made to appear before him that [the' same matter had been tried out here and a judgment rendered in favor of Mr. Blumenthal, the defendant,] [7] no longer had any jurisdiction of the subject-matter, and therefore that the entry of judgment there upon which this suit is founded was absolutely null and void, and of no effect. I hold as the two judges before me in this county have held (Judge Woodward and Judge Ferris), that that is correct, and that [the judgment which is before you here and upon which suit has been brought in this court now, is void for want of jurisdiction in the New York city court, and that therefore your verdict should be for the defendant in this case.] [8] The plaintiffs have asked me to charge you upon a written point, as follows, to wit:</p> <p>1. This suit being on a judgment duly entered in the city court of the city of New York, a duly authenticated copy of which has been presented in evidence in this case, and there being no evidence whatever of either want of jurisdiction ip said court, or of satisfaction of said judgment, the verdict of the jury should be for the plaintiffs for the amount of said judgment, with interest, to wit: $267.93. I decline to affirm that point, and say to you that under the evidence in this case I hold as matter of law that’the city court of the city of New York had no jurisdiction to enter this judgment upon which suit is brought. [9]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed. '</p> <p>Errors assigned among others were (5-9) above instructions, quoting them.</p>

<p>Trial — Charge of court — Review.</p> <p>A'trial judge cannot be convicted of inadequacy or partiality in his charge, when he gives a general review of the evidence on the one side and the other which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing. Slight inaccuracies in the recital of testimony are no grounds for reversal, especially where the judge’s attention is not called to them at the time they were made, or at the conclusion of the charge.</p> <p>Appeals — Quashing appeal — One appeal from several cases.</p> <p>Where three separate and distinct cases are tried in the common pleas at ' one time and before the same jury, but with no consolidation of the action, the records in the three cases cannot be brought up for review by a single appeal and writ. . If this is attempted the appeal will be quashed.</p>

<p>Contract — False representation — Fraud.</p> <p>The false representation which will invalidate a contract must be of a material fact, known to be untrue by the party making it, or recklessly made without any sufficient ground for believing it to be true, or made by or on behalf of a party charged with the knowledge of the truth and intended to be acted upon by the person deceived, and actually misleading him to his injury.</p> <p>Contract — Subletting mail contract — Loss of profits.</p> <p>In an action by a government mail contractor against a person to whom the contractor had sublet the contract, where the plaintiff claims to recover for loss of profits resulting from the failure of the defendant to do his work, and also an additional sum alleged to have been expended by plaintiff in securing the cancelation of the contract, the plaintiff is not entitled to summary judgment for the latter sum where the affidavit of defense explicitly and unequivocally denies that any such sum or any part thereof was so expended.</p> <p>Appeals — Paper-book—Statement of question involved.</p> <p>An appellant’s statement of the question involved as “ Sufficiency of the affidavit of defense,” does not adequately carry out the plain intent of the rule upon the subject.</p>

<p>Appeal, No. 4, Jan.» T., 1905, by defendant, from order of C. P. Lackawanna Co., Jan. T., 1904, No. T,’discharging rule to open judgment in case of Mary A. Sweeney, Executrix to use of J. J. Williams, v. Edward McDonnell.</p> <p>Rule to open judgment in ejectment entered under warrant of attorney in a lease.</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. 22, Feb. T., 1904, by plaintiff, from judgment of C. P. Sullivan Co., May T., 1901, No. 40, on verdict for defendant in case of Rider-Ericsson Engine Co. v. John T. Fredericks et al., Executors of Henry Brown, Owner, and W. McConnell, Contractor. Scire facias snr mechanic’s lien. Before Dunham, P. J. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 21, Feb. T., 1904, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1901, No. 865, allowing supplemental affidavit of defense to be filed in case of Leonard Kyler v. J. W. Christman. Motion for leave to file supplemental affidavit of defense.

<p>Appeals — Assignments of error — Evidence.</p> <p>An assignment of error to the admission of evidence, which does not include the evidence admitted, will not be considered.</p> <p>Appeals — Record—Testimony—Correction of stenographer’s report.</p> <p>A trial judge has authority to correct the stenographer’s report of his charge, and the appellate court cannot go outside of the charge as corrected and certified by him.</p> <p>Husband and wife — Execution—Claim of wife — Evidence—Bank account.</p> <p>Where a wife claims goods levied upon as the goods of her husband, and from her proof it appears that the husband was insolvent and conducted a business of hacking and trading in horses, as her agent and used her money, it is competent for the defendant to show as a circumstance against her claim, and as against the husband’s testimony in support of it, that the husband kept a bank account in his own name through which he conducted the business.</p>

<p>Landlord and tenant — -Waste—Estrepement—Act of March 29, 1822, 7 Sm. L. 520.</p> <p>A writ of estrepement, like a writ of injunction, may be issued by a court of common pleas or any judge thereof, and may be dissolved or continued as the case may seem to require, and the exercise of judicial discretion involved is subject to review by the appellate court.</p> <p>A tenant is bound not only to commit no waste but to make fair and tenantable repairs, necessary to prevent waste and decay of the premises; and there is an implied duty to use the premises in an ordinary and proper manner; but while a tenant is not bound to make substantial and lasting repairs he must treat the demised premises in such a manner that no injury will be done to the inheritance.</p> <p>On a motion to dissolve a writ of estrepement, it appeared that the lease was silent on the question of alterations to the demised premises, but it was express in holding the tenant to “ keep the premises in good repair at all times during the term.” The evidence showed an intention of the tenant to make changes which would result in the impairment and weakening of a foundation cellar wall, necessary as a main support of the building and the Temoval of permanent partitions which would lessen the support of the ceiling above, and alter the room in size and form. Held, that there was no error in refusing to dissolve the writ.</p>

<p>Negligence — Electricity—Evidence—Measure of proof.</p> <p>While it is the duty of those furnishing electricity for light, heat or power to make the wires safe by proper insulation and to keep them so by constant oversight and repair, yet in order to hold the owner of this agency liable in damages for injuries it is necessary for a plaintiff to establish his case by the same degree of proof as in cases where the cause of injury is more certain and easily explained.</p> <p>Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. No presumption can be drawn from a presumption.</p> <p>Where none of the essential facts are in dispute, and the inferences to be drawn from them are not in doubt, a defendant has the right to call on the court to declare .the law in relation thereto, and direct the jury as to what verdict they should render.</p> <p>One who is injured while lawfully on the premises of another cannot recover damages for an injury if he fails to show the direct cause, or that it occurred through the negligence of the defendant.</p> <p>In an action against a borough to recover damages for the death of plaintiff’s son, a boy fifteen years old, it appeared that at the time of the accident the boy, with other persons, was in the cellar of a store. The cellar was lighted by a single incandescent electric light attached to an insulated wire cord which was wrapped around a nail in a beam high enough to permit a man of average height to walk under it. The boy stood at the light and was the only person near to it. Suddenly the light went out, and at the same instant the boy fell to the floor “his feet straight down from the lamp.” Another of the persons present took the lamp in his hand to steady it, turned the switch with his right hand, and restored the light without receiving any shock. No signs of a burn or discoloration were found on the body of the deceased. 'Within a few minutes after the boy’s death a clerk in the store, who was also the chief burgess of the borough, in the presence of a number of witnesses, examined the electric lamp and socket, by passing his hand around them without experiencing any ill effects, but when he passed his hand eight or ten inches up along the wire cord above the lamp his finger touched a place where the insulation was worn and the wire exposed; then he received a severe shock which knocked him down, and burned his hand. This exposed spot was so indistinct that it required a careful inspection of the wire to discover the defect. The electric plant was owned by the borough, but the wiring and fixtures in the store were the property of the owner of the building. There was no evidence that the borough had any control over the wiring in the cellar, or that its officers knew or should have known of the dangerous condition of the current in the store on that evening. The evidence in the ease was uncontradicted. Held, that the evidence of the defendant’s negligence was insufficient to submit to the jury, and that binding instructions should have been given for defendant.</p>

<p>Liquor law — Brewing companies — Sale in other counties — Attachment under act of 1869.</p> <p>It does not follow that because a brewing company has no license in a particular county, it cannot sell its product in that county. It has the right to accept orders from the residents of that county, and deliver to the persons ordering. If it is prevented from filling the order by an illegal attachment of its beer it may recover damages for the injuries sustained from the person issuing the attachment.</p> <p>Attachment under the act of 1869 — Dissolution—Liability on bond.</p> <p>Where two attachments under the act of 1869 are issued at practically the same time, and both are subsequently dissolved, the fact that the defendant settled with the second attaching creditor for damages growing out of the attachment, will not relieve the first attachment creditor for injuries occasioned by his attachment.</p>

Appeal, No. 37, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1902, No. 292, on verdict for plaintiff in case of George Romik v. Mary Sech. Ejectment for land in the borough of Nanticoke. Before Wheaton, J. At the trial defendant presented this point: 4.

<p>Appeal, No. 67, Oct. T., 1903, by defendant, from judgment of C. P. No. 2, Pbila. Co., Dec. T., 1902, No. 581, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Estelle Wentworth v. Fred C. Whitney.</p> <p>Assumpsit for breach of contract.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Malicious prosecution — Malice—Probable cause — Province of court and fury.</p> <p>Prosecutions are presumed to have been properly instituted and hence in order to sustain an action for malicious prosecution, malice and want of probable cause must both concur and be proved by the plaintiff. What facts and circumstances amount to probable cause is a question of law. Whether they exist in any particular case is a question of fact. Where the facts are in controversy, the question must be submitted to the jury, in which event it is the duty of the court to instruct them as to what facts will constitute probable cause and to submit to them only the question of such facts.</p> <p>If all the evidence is insufficient to establish probable cause the court shall so instruct the jury, for they are not at liberty to find a fact without evidence; and, if the admitted facts amount to probable cause, the court should direct a verdict for the defendant even if his malice were clearly proved.</p> <p>The inquiry as to the probable cause goes back to the commencement of the prosecution and relates to the facts then known, and as they then appeared. It is not confined to the truth of matters that lead to the prosecution, but extends to their appearance as indicating the guilt or innocence of the accused. While mere floating rumors are not an adequate foundation for it, representations of others may be, and especially representations made by those who have had opportunities for knowledge, or who have made an investigation.</p> <p>In an action for malicious prosecution it appeared that defendant acting as agent for the Society for the Prevention of Cruelty to Animals, was notified by an alderman that the plaintiff had been guilty of cruelty to animals and was given the source of information with the request that he investigate it. The investigation was made promptly, and acting on the evidence thus secured defendant made an information against the plaintiff to whom he was a stranger. There was nothing in the case to indicate that the proceeding was improperly instituted, or recklessly proceeded in. Held, that the court should have held as a matter of law that there was probable cause for the action.</p>

<p>Appeals, Nos. 213 and 214, .Oct. T., 1902, by H. A. Fulmer and B. F. Fink, from decree of C. P. Huntingdon Co., Sept. T., 1901, No. 96, on bill and cross bill in equity in suit of. C. Herbert Miller v. H. A. Fulmer and B. F. Fink.</p> <p>Bill in equity for the cancelation of a contract for the conveyance of land.</p> <p>Cross bill for specific performance of a contract of the sale of land.</p> <p>The case was heard on bill and answer, cross bill and answer, and proofs.</p> <p>The facts appear by the opinion of Gordon, P. J., specially presiding, which was as follows :</p> <p>FINDINGS OF FACT.</p> <p>1. During and prior to the year 1901, C. Herbert Miller, the complainant, and B. F. Fink, one of the respondents, were engaged in the hardware business in the borough of Hunting-don, Pa., and were competitors therein.</p> <p>2. That by deed, dated March 8, 1901, said Miller purchased from Mrs. Kate Blair, a lot in said borough, described in paragraph three of the bill, upon which he subsequently- erected a store building, removed his store thereto, and thereafter conducted therein his hardware business, she, the said Mrs. Blair, owning additional land from which said lot was purchased. That prior to March 1, 1901, said Miller arranged with the Pennsylvania Railroad Company for the purchase of a lot adjoining said first mentioned lot on the south, and subsequently received deed for the same dated April 2, 1901, for the purpose of using the same in connection with his said'business.</p> <p>3. By agreement, in the form of a receipt, dated March 29, 1901, said Miller agreed to sell to said H. A. Fulmer, the other respondent, the rear portion of the lot purchased by him from the railroad company, for the sum of $575, on account of which $10.00 were paid and therein acknowledged, and the balance of the purchase money ivas afterwards tendered to Miller and refused by him. Said lot was purchased by Fulmerfor Fink, and the agreement, on the day of its execution, was assigned and transferred to him. Said agreement is the one sought to be rescinded and canceled by this biU.</p> <p>4. That on the same day — March 28, 1901- — said Fulmer, by deed, purchased from said Mrs. Blair, for said Fink, the balance of said lot owned by her and assigned and transferred the same to him, he having furnished the consideration money for both purchases.</p> <p>5. That subsequently said Fink commenced the erection and construction of a building upon said lots, to be used by him in the conduct of the hardware business in which he was engaged, the pending injunction having been issued when he extended said building upon Miller lot. That he has expended a considerable sum of money in the erection of said building on the lot purchased from Mrs. Blair, and if he fails to secure the title to the Miller lot agreed to be sold as aforesaid, he will suffer great and irreparable injury.</p> <p>6. That the making and execution by Miller of said agreement of March 29, 1901, were induced by fraud and deception practiced upon him by the respondents, in pursuance of, a conspiracy entered into between them at the instance of said Fink. Prior to the purchases by said Fulmer as aforesaid, said Fink endeavored to purchase the said balance of the Mrs. Blair lot from her, and through Messrs. Africa and Thompson, her agents, and she refused to sell to him because he was a competitor of said Miller in the hardware business. She was interested in the welfare of said Miller because he had purchased the lot from her and was her relative — a nephew, and on that account, and to avoid the establishment of a competing business in the neighborhood, she refused to entertain any proposition from Fink to sell to him, and her agents so informed him. Thereupon said Fink resolved to secure the purchase of said lot by resort to a trick or artifice. To that end he secured the services of said Fulmer, through Charles L. Brown & Company, of Philadelphia, his employers. Fulmer came to Huntingdon in pursuance of his employment. He represented to both Miller and the agents of Mrs. Blair, that he was purchasing the lots for the purpose of engaging in the wood and willow-ware business exclusively, and said to the latter that he was not purchasing for Fink and did not know him. Complainant and Mrs. Blair, relying upon the truthfulness of these representations, were induced to agree to sell the lots. The representations were false. Instead of the purchases being for Fulmer, and made for the purpose of enabling him to embark in the wood and willow-ware business, they were made for Fink and to enable him to secure a location for a building for his hardware business adjoining and in competition with the business of said Miller. Fink paid Fulmer for his services and expenses in purchasing the lots, and furnished the funds with which the purchase money was paid. Procuring the title to the lots thus by deception from Miller and Mrs. Blair evidenced a conspiracy between Fulmer and Fink, and was a fraud as before stated.</p> <p>FINDINGS OF LAW.</p> <p>1. Fraud vitiates and makes null and void everything into which it enters.</p> <p>2. While one person in dealing with another, may, with impunity, by fair and straightforward dealing, by his skill or superior knowledge and ability, overreach and secure an advantage from another, he may not do so by a trick or artifice. He is not always required to speak, but when lie does so he is expected to confine himself to the truth, and those dealing with him may rely upon his' doing so.</p> <p>3. A contract for the purchase of real estate secured by misrepresentations and fraud is voidable on the part of the innocent party to it.</p> <p>CONCLUSIONS FKOM FINDINGS.</p> <p>1. From the foregoing findings of fact and law the conclusion follows, that the agreement of March 29, 1901, is voidable as to the complainant, and he having, ivitli due promptness, elected to avoid it, his prayer for its rescission and cancelation must be granted.</p> <p>2. For the same reasons respondent’s prayer in cross bill for specific performance of said contract must be refused. The injury which will be sustained by said Fink by reason of the decrees which will be made herein being the result of his own wrongful acts must be borne by him.</p> <p>3. Decree will be made and herewith filed in accordance with the foregoing conclusions.</p> <p>Error assigned was the decree entered in accordance with the opinion of the court.</p>

Appeal, No. 193, Oct. T., 1902, by plaintiff, from decree of O. P. Montgomery Co., March T., 1903, No. 7, dismissing bill in equity in case of Pennsylvania Railroad Company v. Inland Traction Company and the Philadelphia & Lehigh Valley Traction Company. Bill in equity for an injunction.

Appeal, No. 17, Oct. T., 1904, by defendant, from judgment of Q. S. Phila. Co., affirming summary conviction before a magistrate in case of Commonwealth v. Albert J. Hoover. Appeal from summary conviction. The facts appear by the opinion of Martin, P. J., which was as follows: Albert J. Hoover, the defendant, was arrested upon a warrant charging him with a violation of the act of 1794, relating to worldly employment on Sunday.

Appeal, No. 17, Feb. T., 1904, by defendant, from judgment of Q. S. Lycoming Co., Dec. T., 1903, No. 54, on verdict of guilty in case of Commonwealth v. Wolfe Cramer. Indictment for larceny. Before Hart, P. J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed. .Errors assigned were various instructions.

Appeal, No. 9, Feb. T., 1904, by plaintiff, from judgment of C. P. Clinton Co., May T., 1901, No. 213, on verdict for defendants in case of Fidelity Trust Co., Executor of Ida M. Morgan, Deceased, v. Elizabeth M. Cook, C. S. McCormick and James S. Paul, Constable. Replevin for goods taken in distress for rent. The opinion of the Superior Court states the case. Plaintiff presented this point: 4.

<p>Guardian and ward — Principal and surety — General guardianship bond— Sale of real estate.</p> <p>Where a bond given by a guardian and his surety is on its face a general guardianship bond and it appears that the surety had no knowledge that the bond was intended for any other purpose than that which appeared upon its face, the surety cannot be held liable for the misappropriation by the guardian of the proceeds of the sale of real estate sold by the guardian under an order of court.</p>

Appeal, No. 117, Oct. T., 1903, by defendant, from judgment of C. P. No. 5, Pliila. Co., Dec. T., 1902, No. 1178, on verdict for plaintiff in case of Edwin Hershinger, by his next friend, Ida Hershinger, his Mother, v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 10, Feb. T., 1904, by</p> <p>defendant, from judgment of C. P. Lycoming Co., June T., 1902, No. 226, on verdict for plaintiff in case of Good Roads Machinery Company tó use of O. W. Good v. Old Lycoming Township.</p> <p>Issue to determine validity of judgment. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged, inter alia, as follows :</p> <p>[If, however, you believe from the evidence that it was agreed between O. W. Good and the supervisor of the township, that the $225 was to be used for the purpose of lifting the order given by the Good Roads Machinery Company, and that , said order was transferred to him, then we say to you that O. W. Good would stand in the same relation to the township, defendant, as the Good Roads Machinery Company did when said order was given to it, and the plaintiff would be entitled to recover in this issue.] [2]</p> <p>Verdict and judgment for plaintiff for $229.26. Defendant appealed.</p> <p>Errors assigned were (1) in allowing the amendment referred to in the opinion of the Superior Court; (2) portion of charge as above, quoting it; (3) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 116, Oct. T., 1903, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1902, No. 2416, on verdict for plaintiff in case of Albert Mo-gill v. Central Railroad of New Jersey.</p> <p>Trespass to recover damages for loss of baggage. Before Biddle, P. J.</p> <p>The facts are similar to those in Jacobs v. Central Railroad of New Jersey, 19 Pa. Superior Ct. 13.</p> <p>Error assigned was in directing a verdict for plaintiff for $150.</p>

<p>Affidavit of defense — Practice, C. P. — Contract—Sale.</p> <p>In an action upon a promissory note defendant filed affidavits of defense in which, he averred that the note was given in settlement for peach trees which plaintiffs expressly agreed would be “ true to name as represented,” that they were not “true to name as represented,” but were a comparatively worthless variety, by reason of which deceit defendant suffered damage in a larger amount than plaintiffs demand, which was claimed as a set-off. The affidavits further stated that the distinctive variety of the trees would be .exclusively known to the seller, that there was prompt notice of the defect, that plaintiffs requested defendant to leave the trees standing for another season to see if they would not do better, and that after that season defendant cut them down as worthless. Held, that the affidavit of defense was sufficient to prevent judgment, that defendant was entitled to a trial, and that the question of the measure of damages could only be determined at the trial.</p>

<p>Appeal, No. 24, Feb. T., 1904, by-plaintiff, from judgment of C. P. Lycoming Co., Sept. T., 1903, No. 145, on verdict for defendants in case of United Fruit Company v. Pa'squale Bisese and Salvatore Bisese, copartners trading as P. Bisese & Company.</p> <p>Assumpsit for goods sold and delivered. Before Hart, P. J.</p> <p>The facts, are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows :</p> <p>[It appears that on December 12, the defendants wrote a letter to the plaintiff, in which they say that the bananas arrived. He says the bananas arrived in Williamsport Thursday afternoon, and by reference to the calendar, Thursday would be the 10th of December, which would be two days after the shipment. He says: “ and they would not place them where I could unload until six o’clock in the evening and when,I opened the car and examined the fruit, and the fruit was entirely frozen, while looking around the bananas I found a thermometer and that was down to 37 degrees, so I told'the railroad company I refused the bananas. They told me the bananas left Philadelphia Wednesday and I told them it could not be, for I had the bill for the bananas here on Wednesday, so I wish you would look after and make the railroad company pay for them, for I won’t accept them at all. Yours truly, P. Bisese & Co.”</p> <p>Now it is claimed on .the part of the plaintiff that this letter was a waiver on the part of the defendants of the fact of their not complying with the order. We cannot say this to you as a matter of law. We say to you that it was the duty on the part of the plaintiff in this case to ship to this defendant the amount of bananas which he ordered and they were not obliged to receive a larger amount of bananas than they ordered shipped; but they could by subsequent’arrangement waive that condition in their order and this is-a matter for the jury to determine under all the evidence in this case.] [1]</p> <p>[In the first place it is for you to determine the condition of these bananas. That is a matter which may explain to some extent the letter which they have written and then the time when they were received, and the conditions under which they were received. All these matters enter into this question of whether there was a waiver here whether these persons had sufficient opportunity to examine this fruit — -to count them so as to know whether there were 200, and whether they were fully informed of the situation at the time. You must be satisfied that when the defendant wrote this letter that they were fully informed of the exact situation. I do not recall that there is anything in this letter that would indicate the number of bananas that were there. Of course they refused to receive any of them; they found the condition in which they were and it might possibly be that they never did count them. That is a matter I will leave to the jury to gather from this evidence.</p> <p>Of course if these people knew at the time the bananas were received and wrote this letter with full information of the situation, then this letter could be construed, in connection with all the evidence, as a waiver of their right to refuse to receive more than the 150 bunches of bananas which they ordered. Of course, if the jury believe under all the evidence in this case that these parties waived this right which they had to demand shipment of only 150 bunches and no more, then the plaintiff would be entitled to recover in this case, but if they did not waive that, then the plaintiff would not be entitled to recover.] [2]</p> <p>Defendant presented these points :</p> <p>1. The undisputed evidence in this case being that defendants ordered from plaintiff company 150 bunches (seconds) bananas, delivered on car at Philadelphia, Pennsylvania, the delivery on car at Philadelphia, Pennsylvania, of 200 bunches of bananas of the kind and quality ordered, the 150 bunches ordered not being separated from the 200 bunches placed in the car, was not such a compliance with the terms of the order, as to enable plaintiff company to maintain an action against defendants, either for the 150 bunches ordered or the 200 bunches which plaintiffs admit was put in the car consigned to defendants. Answer: If the jury believes from the evidence the facts here stated, and believes from the evidence that the defendant did not waive this noncompliance with their order, then we affirm this point. [3]</p> <p>5. Under all the evidence in this case, the verdict should be for defendants. Answer: This point we refuse, but we reserve the legal question of whether there is any evidence under which the plaintiff is entitled to recover. [4]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Practice, C. P. — Pleading—Security for costs — Rule to plead.</p> <p>A direction included in a rule on a nonresident plaintiff to give security for costs “that pending the giving of such security, all proceedings in the case be stayed, and that the defendant be not required to plead,” merely suspends the operation of the rule to plead until the rule for security is disposed of. When the rule for security is satisfied, the stay of proceedings during its pendency expires, and the effect of the rule to plead is restored as fully as if it had not been suspended. The residue of the time stipulated in the rule begins to run when satisfaction of the rule for security is entered of record, irrespective of endorsements relative to filing; and at its expiration the defendant is required to plead or suffer a default. Neither a new rule nor a reinstatement of the pending rule is necessary, nor is the defendant entitled to fresh notice. In such a case the plaintiff’s right to judgment upon defendant’s default is not affected by an alleged oral agree-' ment or understanding between counsel where such oral agreement is questioned.</p> <p>Practice, C. P. — Pleading—Statement of claim — Acts of March 21, 1806, sec. 5, P. L. 558, and May 25, 1887, sec. 3, P. L. 271.</p> <p>In an action of assumpsit a statement of claim is sufficient which sets forth a sale and delivery by the plaintiff to the defendant at a given date of a certain quantity of merchandise, at a specified price, payable at a fixed time, the performance of a certain service upon the defendant’s agreement to pay the expense thereof, with the date of performance, and the expense incurred, and the whole amount the plaintiff believes is justly due him from the defendant.</p> <p>It is not necessary to state whether a contract declared on is oral or ■ written, even though the law requires it to be in writing; and a statement of its terms is sufficient to show whether the defendant’s promise was express or implied.</p> <p>Practice, C. P. — Pleading—Venue—Default.</p> <p>Where a judgment has been entered by default for want of a plea, the defendant cannot on a rule to strike off the judgment allege that the statement of claim was insufficient because it did not lay a venue. In such a case the omission is cured by the default.</p> <p>In a transitory action such as for goods sold and delivered, or for services rendered, it is not necessary to lay a venue in the statement of claim.</p> <p>Practice, C. P. — .Statement of claim — Title of equitable plaintiff.</p> <p>Where a suit is brought by oneperson.to the use of another, it is unnecessary to show in the statement of claim the title of the equitable plaintiff, or to indicate his interest otherwise than by marking the suit to his use. The right to recover is founded on the claim of the legal plaintiff, and whether this right remain? in him or has passed to an assignee is immaterial. The cause is to be tried without relation to an equitable plaintiff, unless an issue is raised between such plaintiff and the defendant; as when a defense is set up which, while good against the legal plaintiff, cannot be made against the equitable plaintiff, or the defendant alleges a defense or a counterclaim against the latter which would not avail against the former.</p>

<p>Appeal, No. 80, Oct. T., 1904, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1903, No. 80, setting aside master’s report in divorce, in case of Henry C. Shoemaker v. Idabel Shoemaker.</p> <p>Libel for divorce.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The master recommended a decree in divorce.</p> <p>The court of its own motion set aside the master’s report and dismissed the libel.</p> <p>Error assigned was the decree of the decree.</p>

<p>Vendor and vendee — Contract—Time as essence of contract — Waiver— Payment — Costs—Specific performance — Equity,</p> <p>Where an owner sells land under articles in which time is made the essence of the contract as to deferred installments, and thereafter, at a time when there was a default, conveys the land to another person, and the grantee notifies the purchaser to pay the installments to him, and accepts seven installments, he cannot subsequently declare a forfeiture for the prior default. In such a case if a bill in equity is filed by the purchaser against the grantee for specific performance and it appears that the conveyance would have been made if there had not been a dispute as to the balance due, and the court decides in favor of the defendant’s contention as to the amount due, all of the costs should be imposed upon the plaintiff.</p>

Appeal, No. 167, Oet. T., 1902, by plaintiff, from decree of C. P. Chester Co., No. 392, in equity, dismissing bill in equity in case of Henry Wickham v. John P. Twaddell. Bill in equity for an injunction. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing the bill.

<p>Contract — Sale—Measure of damages — Breach.</p> <p>The measure of damages for a breach of a contract of sale of goods is the difference between the contract price and the market value of the goods at the time and place agreed upon for delivery.</p> <p>Contract — Sale—Weights—Evidence—Presumption.</p> <p>Where goods are sold for delivery f. o. b., it will be presumed, in the absence of evidence to the contrary that the weights are to be determined at the point of delivery.</p> <p>Contract — Sale—Damages—Province of court and fury.</p> <p>In an action for a breach of a contract of sale, where the evidence as to the market value of the goods at the time of the breach is all oral, and is conflicting, it is error for the court to withdraw from the jury the question of the amount of damages.</p> <p>Contract — Sale—Offer—Acceptance.</p> <p>When two persons meeting face to face bargain about the sale of an article of merchandise, and one expresses a willingness to accept certain terms, that willingness is supposed to continue, unless it is revoked, to the close of their interview and negotiations upon the subject; and if during this time, the other party says he will take the article on the terms proposed, the bargain is thereby closed.</p> <p>When a letter containing an offer requires an answer by return mail, the acceptance must be sent by the next post. If the offer does not specify the time, the acceptance must be within a reasonable time, or the offer will lapse.</p> <p>When the parties are dealing with regard to a mercantile commodity the price of which in the market changes from day to day, and the party who receives the offer does not post his acceptance during the same business day, he cannot take advantage of a rise in the market price, and accept upon some future business day. What in any case is a reasonable time must be dependent upon the situation of the parties, and the subject-matter of the negotiations.</p> <p>What is a reasonable time for acceptance is a question of law for the court in such commercial transactions as happen in the same way, day after day, and present the question upon the same data in continually recurring instances; and where the time taken is so clearly reasonable or unreasonable that there can be no question of doubt as to the proper answer to the question. When the answer to the question is one dependent on many different circumstances, which do not continually recur in other cases of like character, and with respect to which no certain rule of law could be laid down, the question is one of fact for the jury.</p> <p>Where an offer by mail was accepted three days thereafter, but there is no evidence as to the time when the offer was received, nor as to the frequency and time occupied in transmission of mail between the points, the court cannot say as a matter of law that the offer had lapsed by reason of the delay.</p>

<p>Bankruptcy — Insolvency—Constitutional law — Act of June 4, 1901, P. L. 404.</p> <p>The Pennsylvania act of June 4, 1901, relating to insolvency is suspended by reason of the existence of the federal bankrupt act of July 1, 1898, and does not become operative as to the persons and subjects to which the federal act applies.</p> <p>Where the constitution of the United States leaves in the states and in congress concurrent power over a particular subject, and congress has exercised its power over such subject, the control of the states over that subject is prohibited.</p>

<p>Criminal law — Defect in information — Trial on the merits.</p> <p>Where an indictment is regularly found by the grand jury, and the defendant pleads thereto and goes to trial on the merits, all defects and irregularities in the information, warrant, and proceedings before the magistrate must be held as cured.</p> <p>Criminal law — Indictments—Form of indictment — Appeals.</p> <p>Where the defendant in a criminal case has raised no question as to the form of the indictment in the court below, he cannot raise it for the first time on appeal.</p> <p>Criminal law — Indictments—Several charges.</p> <p>While a defendant cannot be indicted in one bill for several distinct and unrelated felonies, yet it is well settled that a bill of indictment may contain several counts, charging several offenses if they all arise out of the same transaction; and any number of misdemeanors may be charged in one bill of indictment.</p> <p>Criminal law — Indictments—Several charges — Disorderly house — Bawdy-house.</p> <p>A woman may be convicted on an indictment containing two counts charging her with maintaining a disorderly house and maintaining a bawdy house. She may also be convicted on an indictment containing three counts charging her with maintaining a bawdy house, maintaining a disorderly house, and being a frequenter of a bawdy house.</p> <p>A woman may be indicted at common law for frequenting a bawdy house. -</p>

<p>Appeal, No. 2, April T., 1904, by-defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1901, No. 617, on verdict for plaintiff in case of Charles Allum v. Charles Nolle.</p> <p>Assumpsit for goods sold and delivered. Before Kennedy, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Defendant presented these points :</p> <p>2. That the written agreement together with the contemporaneous oral agreement constitute one entire contract, and no part of it can be taken as complete, until the whole is done. Answer : This point is affirmed but you understand that the contention of the plaintiff here is that the first contract was varied as to the terms of payment, and upon the determination of that question depends this case. [1]</p> <p>3. That under all the evidence the verdict should be for the defendant. Answer: The third point is refused. [2]</p> <p>Verdict and judgment for plaintiff for $450.51. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them; (3) refusal of new trial.</p>

<p>Divorce — Desertion—Evidence—Nonsupport—Record of conviction.</p> <p>A divorce will not be granted to a wife on the ground of desertion by her husband, where the only evidence as to the desertion, is the record of the court of quarter sessions showing that libellant had made an information against her husband charging him “with- nonsupport of deponent and • her two children,” and that the court has made an order on the husband.</p> <p>Under the Act of April 13, 1867, P. L. 78, there necessarily arise two classes of cases, one in which the husband separates himself from his wife, deserting her, and taking up his own abode elsewhere, and second, the other, where the husband neglects to maintain his wife although he may still continue to reside under the same roof with her.</p>

<p>Beneficial association — Beneficiary—Antenuptial agreement — Mother— Wife — Evidence—Party dead — Witness.</p> <p>The rules of a beneficial association permitted the members to substitute one beneficiary for another. A member who was a married man designated his mother as beneficiary, but subsequently entered into an agreement with a woman who was ignorant of his prior marriage, that if she would marry him he would substitute her as a beneficiary. A marriage license was procured, and a wedding ceremony was performed. The member died without having made the substitution. Both the mother and the woman claimed the fund. The money was paid into court, and an issue was framed in which the woman was made the plaintiff and the mother, the defendant. Held, (1) that the plaintiff was a competent witness to prove the antenuptial agreement; (2) that the plaintiff was a competent witness to prove that she was married by a minister of the gospel and that she had been given by him a marriage certificate which she offered in evidence; (3) that the antenuptial agreement was not invalidated- by the prior marriage if the plaintiff was ignorant of such marriage; (4) that if plaintiff was ignorant of such marriage and defendant had no superior equity based on a prior agreement with her son, plaintiff was entitled to the fund; (5) that a verdict and judgment for plaintiff should be sustained.</p> <p>Evidence — Witness—Competency—Party dead — Beneficial association.</p> <p>Where a member of a beneficial association whose rules permit a substitution of beneficiaries, designates a person as beneficiary and subsequently enters into a valid agreement to substitute another, but dies before actually doing so, the designated beneficiary does not represent any right or interest of the decedent in the death fund, but takes if he takes at all in his own right. Consequently the other c'aimant to the fund is a competent witness to prove his contract with decedent.</p> <p>It is not enough that one of the parties to the litigation has derived his right from a dead person, if the opposite party has derived from him no right to the thing derived, and no right to dispute the derivation.</p> <p>Evidence — Marriage certificate — Proof.</p> <p>A marriage certificate does not prove itself. Proof of the' signature of the person by whom it purports to have been signed, and of his authority to perform the marriage ceremony, is necessary.</p> <p>Evidence — Signature—Letters.</p> <p>Signatures to letters are sufficiently proved by a witness who testifies that she saw the party write once, and that she is positive as to their genuineness.</p> <p>Marriage — Antenuptial contract — Extinguishment.</p> <p>Marriage is sufficient consideration to support an antenuptial contract. The common-law rule that an executory contract is extinguished by a subsequent intermarriage of the parties is not applicable in equity in the case of antenuptial contracts made in consideration of marriage, since it would be inequitable that the intermarriage of the parties, upon which alone the contract is to become effective, should itself work a destruction of the contract.</p> <p>An antenuptial agreement is not invalid by reason of the existence of a prior marriage of the husband, where the woman was ignorant of such marriage and the existence of a living wife.</p>

<p>Appeal, No. 182, Oct. Tq 1903, by defendant, from judgment of C. P. Blair Co., Oct. T., 1903, No. 180, on verdict for plaintiff in case of Belle Broadrick v. John Broadrick and Louisa Broadrick.</p>

<p>Appeal, No. 1, March T., 1904, by Mary H. Hostetter et al., from decree of O. C. Juniata Co., directing payment of a fund in court in the matter of the estate of John R. Van Ormer and Susan Hamilton.</p> <p>Petition for an order to pay a fund in court to F. M. M. Pennel, administrator of John R. Van Ormer.</p> <p>Shull, P. J., stated the facts to be as follows:</p> <p>Thé petition and answer in this case discloses the following facts: Samuel Hamilton died, seized in fee of a tract of land situate in Walker township, Juniata county, Pennsylvania, containing 120 acres, leaving to survive him a widow and five children, viz: Frances, Susan, Margaret, John and Mary. Proceedings in partition were had under which said land on February 1,1869, was awarded by the orphans’ court to Susan Hamilton, who on same day entered into recognizance with David Smith as surety in the sum of $22,000, conditioned to pay the owelty and “ pay to Sarah Hamilton, widow of said decedent the interest or $3,690.66 ” and at her death shall pay the principal thereof to the heirs of said deceased.</p> <p>Susan Hamilton died, leaving no husband or issue seized in fee of said land, and on April 28,1869, letters of administration on her estate were granted by the register to Hon. Jeremiah Lyons to whom an order of sale to sell said real estate was by the court awarded to pay the debts of said decedent, in which decree is contained. “ The sum of $3,690.66 to remain in the property as dower, the interest whereof to be paid Susan Hamilton,” and at her death the. principal to be paid to the -heirs of Samuel Hamilton, deceased.</p> <p>David Smith, the aforenamed surety, became the purchaser of said land, sale thereof being confirmed to him on September 11,1869, at the price of $9,200, under terms of the order.</p> <p>The estate of Susan Hamilton was insolvent and David Smith, the surety upon the recognizance, was compelled to pay on the owelty deficiency the sum of $1,100, the date of which payment does not appear, but presumably about 1870 or 1871.</p> <p>On May 6,1870, David Smith sold and conveyed the same premises to John R. Van Ormer by deed duly recorded, which said deed contains, inter alia, “subject, however, to a recognizance for the sum of $3,690.66, in favor of Sarah Hamilton dated February 1,1869, and entered in orphans’ court docket E, 586, in register’s office of Mifflintown.”</p> <p>John R. Van Ormer died March 20,1890, intestate, seized of said land, partition was had thereon, there being no acceptance by heirs the said real estate was sold under order of the orphans’ court to Isaac Witmer “ subject to a dower principal and interest in favor of Sarah Hamilton, widow and parties legally entitled thereto, as set forth in recognizance in orphans’ court, etc., said principal being $3,690.66,” which sale was confirmed. The purchaser entered recognizance which provided that “the said Isaac Witmer shall pay the amount of said dower recognizance (recorded in orphans’ court docket E, 586), to wit: the sum of $3,690.66 to the parties found to be legally entitled hereto at and immediately after the death of Sarah Hamilton, now Sarah Wetzler. Said widow Sarah Wetzler died March 19, 1902, when shortly thereafter Isaac Witmer paid out the four fifths of said sum of $3,690.66 to the four surviving heirs of Samuel Hamilton, deceased, and under permission the remaining one fifth, to wit: the sum of $738.13, was paid into court pending the determination of the right to said sum by the parties claiming it.</p> <p>David Smith, surety on the recognizance of Susan Hamilton, and purchaser of the real estate, died testate, and in his will it is contained inter alia: “I will and bequeath to John R. Van Ormer my interest which I hold against Susan Hamilton, that is to say, her interest in the dower. And Mary, his wife, to be charged with that amount.”</p> <p>The heirs of John R. Van Ormer, who was legatee of David Smith, now claims this fund or sum of $738.13, because David Smith as surety on the recognizance of Susan Hamilton was required to pay on said recognizance to the other heirs of Samuel Hamilton, deceased, more than the amount of this fund and that such payment was an extinguishment of any right that the heirs of Susan Hamilton could hold through her and that there was nothing due her at the death of her mother, because David Smith, by payments as surety, was by operation of law substituted to any rights which Susan Hamilton or her heirs would have therein.</p> <p>The heirs of Susan Hamilton, to wit: her brother John and sisters, Frances, Margaret and Mary, contend that they are the sole heirs of Susan Hamilton, that when the decree in partition placing title to land in Susan Hamilton was made, her interest or share in the dower fund merged in the title, and that when the property was sold by her administrator subject to the sum of $3,696.66, “the principal at which at death of Samuel Hamilton’s widow was to be paid to the heirs of Samuel Hamilton, deceased,” there were only the four heirs last above named, who are now claiming this fund and that therefore these parties are thereto entitled.</p> <p>The court directed the fund to be paid in accordance with the prayer of the petition.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 10, Jan. T., 1905, by defendant, from order of Q. S. Lackawanna Co., Oct. T., 1903, No. 286, overruling peremptory challenge to juror in case of Commonwealth v. David B. Evans. Indictment for bribery. The opinion of the Superior Court states the case. Error assigned amongst others was order overruling defendant’s peremptory challenge to the juror, John M. Rose.

<p>Appeal, No. 20, March T., 1904, by Henry L. Hepfer, from decree of O. C. Cumberland Co., admitting to probate nuncupative will of Sarah Megary, deceased.</p> <p>Appeal from register of wills.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Practice, C. P. — Amendment—Demurrer.</p> <p>Where upon motion to strike off, or other proceeding having that object in view, the opposite party has been heard as to the propriety of the amendment, the fact that he did not have notice of the original application to amend will not, of itself, entitle him to a reversal of the judgment. The action of the court, in such case, in declining to strike off the amendment will be treated, on appeal, as equivalent to an allowance of the amendment, and will be judged of accordingly.</p> <p>At the trial of an action of assumpsit there was evidence that the defendant had received the personal property of his son, and in consideration thereof had agreed to pay a debt of his son to the plaintiff. The jury found for the plaintiffs. A motion for a new trial was made, and an examination of the statement showed that it did not contain an averment of liability on this ground. A new trial was granted, and plaintiffs then amended their statement so as to set forth the liability proved at the trial. The defendant demurred to the amended statement alleging that it set forth no cause of action, and was insufficient in law to maintain the action. The court overruled the demurrer, and entered judgment for plaintiffs without giving the defendant an opportunity to plead over. Held, that the court committed no error.</p>

Appeal, No. 75, April T., 1904, by Justus Mulert, trustee in bankruptcy of A. H. Woolslare, from order of C. P. No. 2, Allegheny Co., July T., 1901, No. 696, distributing fund in court in case of J. P. Sharp, executor of George Sharp, deceased, v. A. H. Woolslare. The facts are stated in the opinion of the Superior Court. Error assigned was the order of the court.

<p>Appeal, No. 119, April T., 1904, by Oliver Conger, from decree of O. C. Greene Co., May T., 1908, No. 8, directing executor to make return of order of sale in estate of John Walker, deceased.</p> <p>Petition for citation.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Will — Devise—Heirs—Fee simple estate — Issue.</p> <p>Where a testator devises land to his wife for life and at her death to his daughter “and her heirs, but should she, my said daughter, die without issue then” over, and the daughter survives the testator and the life tenant, and has issue which also survives them the daughter takes an estate in fee simple.</p>

<p>Parent and child — Adoption—Revocation of adoption — Temporary resident —Act of May 4, 1855, P. L. 430.</p> <p>While the statutes authorizing adoption are in derogation of the common law, and for this reason are, in some respects, to be strictly construed, yet their construction should not be narrowed so closely as to defeat the legislative intent which may be made obvious by their terms, and by the mischief to be remedied by their enactment.</p> <p>The word “resident” as used in the Act of May 4, 1855, P. L. 430, includes both permanent and temporary residence in the commonwealth.</p> <p>Where a man adopts a child and subsequently marries, and thereafter dies, his widow in the capacity of guardian of a child born nineteen years after the decree, has no standing, twenty-one years after the decree and a year and one half after the death of the husband, to maintain a petition to revoke the decree of adoption, on^the ground that the record of the adoption proceedings described the decedent as “of Brooklyn, New York,” without showing that he was at the time a temporary resident of Pennsylvania.</p>

Appeal, No. 62, April T., 1904, by plaintiff, from judgment of C. P. Armstrong Co., Dec. T., 1900, No. 158, on verdict for defendant in case of Findley P. Wolff v. John A. Wilson. Appeal from justice of the peace. The opinion of the Superior Court states the case. Errors assigned were various instructions.

Appeal, No. 90, April T., 1904, by W. A. Slaugenhaupt, from decree of O. C. Butler Co , May T., 1903, No. 20, dismissing exceptions to auditor’s report in estate of Francis Mays, deceased. Exceptions to auditor’s report. The opinion of the Superior Court states the case. Error assigned was in dismissing exceptions to auditor’s report.

Appeal, No. 114, April T., 1904, by defendant, from order of C. P. Westmoreland Co., Nov. T., 1903, No. 634, awarding writ of preliminary mandamus in case of Win. C. Miller & Sons v. John H. Brown, Controller of Westmoreland County. Petition for mandamus.

Appeal, No. 16, March T., 1904, by Mary Rhinesmith, from order of C. P. Cumberland Co., Nov. T., 1902, No. 45, sustaining exceptions to auditor’s report in the matter of Mary Rhinesmith. Exceptions to report of J. M. Rhey, Esq., auditor. The facts appear by the opinion of.the Superior Court. Errors assigned were in sustaining exceptions to auditor’s report.

Appeal, No. 22, March T., 1904, by plaintiff, from order of C. P. York Co., making absolute rule to strike off mechanic’s lien in case of Charles A. Getz and Walter H. Getz, trading as John Getz’s Sons, v. Henry Brubaker. Rule to strike off mechanic’s lien entered by a subcontractor without notice to owner.

Appeal, No. 247, Oct. T., 1902, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1902, No. 3114, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lower Merion Township v. Postal Telegraph Cable Company. Assumpsit to recover a license tax on telegraph poles. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 60, Oct. T., 1903, by defendant, from judgment of O. P. No. 4, Phila. Co., March T., 1901, No. 856, on verdict for plaintiff in case of Rosa C. Jones v. Benjamin Greenfield. Trespass to recover damages for an alleged injury to real estate. Before Audenreid, J. The opinion of the Superior Court states the case. The defendant presented the following points, all of which were declined without being read to the jury: 1.

Appeal, No. 63, Oct. T., 1903, by plaintiff, from order of G. P. No. 1, Phila. Co., March T., 1903, No. 503, discharging rule for judgment for want of a sufficient affidavit of defense in case of Owen L. Whiteman v. Merion Title & Trust Company. Assumpsit upon a policy of title insurance. The facts appear by the opinion of the Superior Court. Error assigned was the order of the court.

<p>Appeal, No. 103, Oct. T., 1903, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1902, No. 3885, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia to use of Thomas Cunningham v. Clifford Pemberton, Jr., Owner, and Lancaster J. Jenkins, Reg. Owner.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Corporations — Building associations — Officers—By-laws—Notice.</p> <p>The by-laws of a corporation upon their adoption become written into the charter, and all persons whether strangers or members who deal with the corporation are bound to take notice of the powers and duties as defined in the by-laws, of those officers of the corporation with whom they deal. This rule is particularly applicable where a party dealing with the corporation is a member, and has in his actual possession á copy of the by-laws.</p> <p>A building association is not chargeable with payments of dues made to the secretary at places other than stated meetings of the association, where it appears that the secretary had no authority either express or implied to collect dues, and it also appears that the by-laws provided that dues should be paid at stated meetings of the association and designated the persons who were to'receive them. In such a case the association is not estopped because during a period of years and in another series and with the knowledge of the directors, the member had paid his dues to the secretary without attending the meetings, which under the by-laws he was not required to attend ; nor is the association estopped because of the failure of several auditing committees to discover the falsifications which the secretary had made in the roll book to cover up his fraud.</p> <p>A member of a building association is bound to know whether he is in arrears, and has no standing to complain that the directors did not forfeit his stock at the expiration of the period fixed by the by-laws for which he was in arrears, or notify him of that which it was his duty to know.</p> <p>The first payment made by a person joining a building association fixes his status in the series then being issued, and that status is not affected by the act of the secretary in transferring the stock to another series for his own fraudulent purposes.</p> <p>Where one of two parties, who are equally innocent of actual fraud, must lose, it is the suggestion of 'common sense, as well as equity, that the one whose misplaced confidence in an agent or attorney has been the cause of the loss, shall not throw it on the other.</p>

Appeal, No. 50, Oct. T., 1903, by plaintiff, from order of C. P. No. 1, Pbila. Co., Dec. T., 1900, No. 345, sustaining exceptions to report of referee in case of Harry F. Louchheim v. Somerset Building & Loan Association. Exceptions to report of E. Hunn Hanson, Esq., referee. • The facts appear by the opinion of the Superior Court. Errors assigned were in sustaining exceptions to report of referee.

Appeal, No. 159,. Oct. T., 1908, by defendant, from order C. P. No. 1, Phila. Co., March T., 1903, No. 4178, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Amasa Spring v. John H. Lorimer. Assumpsit for rent. 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>Taxation — Exemption—Public property — Meadow companies.</p> <p>The Greenwich Island Meadow Company, a quasi municipal corporation having its existence under the Act of April 12, 1760,1 Sm. L. 227, and January 30, 1804, 4 Sm. L. 109, for the purpose of maintaining embankments to protect certain marsh lands along the Delaware river, has no power to impose a tax upon lands acquired by the city of Philadelphia and laid out as a park.</p>

<p>Appeal, No. 184, Oct. T., 1903, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1875, No. 5, M. L. D., on verdict for defendant non obstante veredicto in case of Philadelphia v. Frank C. Nell.</p> <p>Issue to determine the validity of a judgment of revival.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 187, Oct. T., 1903, by plaintiff, from judgment of C. P. No. 4, Pbila. Co., Dee. T., 1883, No. 59, on verdict for defendant non obstante veredicto in case of Philadelphia v. William Peyton. Issue to determine the validity of a judgment. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for defendant non obstante veredicto.

<p>Appeal, No. 185, Oct. T., 1903, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1875, No. 10, on verdict for defendant non obstante veredicto in case of Philadelphia v. John Wallace.</p>

<p>Appeal, No. 144, Oct. T., 1903, by Charles F. Myers, from order of Q. S. Phila. Co., Dec. T., 1902, Docket 50, p. 236, quashing petition in the matter of the vacation of Tabor Street, east of Tenth Street.</p> <p>Petition for the appointment of viewers to assess damages for the vacation of a street.</p> <p>Error assigned was order quashing petition.</p>

<p>Road law- — Vacation of streets — -Statute of limitations — Philadelphia county —-Act of April 21, 1858, P. L. 385.</p> <p>Under the Act of April 21, 1858, P. L. 385, viewers may be appointed to assess damages for the vacation oí a street in the city of Philadelphia, but if the petition for viewers is not presented until more than six years after the confirmation of the plan vacating the street, the proceeding is barred by the statute of limitations of March 27, 1713, 1 Sm. L. 76.</p> <p>Under the Act of June 6, 1871, P. L. 1353, the legal vacation of a street is complete, when, in pursuance of an ordinance of councils properly authorizing the same, a new plan from which the street is omitted is duly confirmed.</p>

<p>Practice, C. P. — Pleading—Plea in abatement — Trespass—Act of May 25, 1887, P. L. 271.</p> <p>There is nothing in the Act of May 25, 1887, P. L. 271, which prevents the filing in an action of trespass of a plea in abatement setting forth the pendency of a former suit in the same jurisdiction between the same parties, and for the same cause of action.</p> <p>Street railways — Trespass—Nuisance—Actions.</p> <p>Where a street railway wilfully and maliciously lays its tracks upon a highway against the warning and protest of an abutting landowner, in such a way as to injure the owner’s land and buildings, the street railway company is not in a position to demand that damages for the injurious acts shall be assessed upon the same basis as if they were done in the lawful exercise of the right of eminent domain.</p> <p>In such a case the owner, after having brought an action of trespass to recover damages for the injuries resulting from the construction and operation of the road to a certain date, may subsequently bring another action for the continuance from the date of the former action of the unlawful acts, and for the additional injury of interference with his drainage since the date of the prior suit.</p>

<p>Appeal, No. 76, Oct. T., 1903, by plaintiff, from judgment of C. P. Clearfield Co., Feb. T., 1900, No. 256, for defendant non obstante veredicto in case of B. D. Schoonover, Administrator of Joseph Potter, v. Alexander Ralston.</p> <p>Ejectment for land in Cooper township.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Partition — Dower—Charge on land — Decedent’s estates.</p> <p>An intestate died owning land and leaving to survive him a widow and Jive children. Four of the children conveyed the farm subject to an annual charge for the benefit of the widow during her life, and at her death the sum charged was to be paid to the heirs of the deceased. The sum charged was exactly one third of the purchase price mentioned in the deed. The deed also contained this clause: “The above described tracts are a part of the estate of deceased, and descended to his heirs, the parties of the first part of this indenture.” Subsequently in proceedings in partition in the common pleas in which the successor in title to the grantee in the foregoing deed was plaintiff, and the fifth child who did not join in the deed was defendant, the farm was appraised, and, the parties having refused to accept at the appraisement, was sold by the sheriff pursuant to an order of the court, the plaintiff in the partition proceedings becoming the purchaser. It did not appear that either in the order of sale, or in the sheriff’s deed was there any condition, reservation or stipulation relative to the foregoing charge. Many years afterwards the widow died, and the five children brought an action to recover the principal sum charged on the land. In a case stated in this action the parties designated the principal sum as “ dower money.” Held, that the fifth child who had not participated in the deed, and was the defendant in the petition proceedings, was not entitled to participate in the fund.</p>

<p>Appeal, No. 18, Oct T., 1903, by defendant, from judgment of O. P. Lancaster Co., April T., 1901, No. 2, on verdict for plaintiff in case of George E. Rumsey v. P. B. Shaw.</p> <p>Assumpsit to recover the balance of purchase money of an option. Before Landis, J.</p> <p>[If, however, from his own inspection of the plant prior to November 13, or from the information conveyed to him by Mr. Kinter, he had full knowledge concerning the plant including its income, he could not make this defense to this action, for then at the time he obtained the option from Rumsey he would not have given the note on the faith of what Rumsey said, or what the paper said, but upon the strength of his own knowledge.]</p> <p>[You however can render no verdict for any amount in favor of the defendant. In this case the plea put in by them is set-off. They claim by reason of having paid $1,000 instead of the plaintiff being entitled to a verdict they are entitled to recover back that $1,000, and that the certificate should be returned in their favor for that amount. We say to you that you cannot do that in this case.] [4]</p> <p>Plaintiff presented this point :</p> <p>1. The defendant was bound immediately, upon learning of the alleged fraud, to elect whether he would rescind the contract or waive the fraud and his delay until after the commencement of this suit to make such election is fatal to his defense, by reasons of laches. Ansiver : We say that this is a correct statement of the law governing the rescission of contract, where one person sells to another any property, whether real or personal, buthere according to the testimony Rumsey released his option and had it canceled, and then Shaw secured a new option. The question of rescission does not therefore seem to me to enter into the case except as to the set-off, and so far as that is concerned we have already fully determined that question in the general charge by saying to you there can be no set-off in this case. The question, therefore, is only whether Shaw got what Rumsey represented he had to sell, and if he did he must pay the $500 which he promised to pay, and if he did not, but was deceived by something which was presented to him which was not true, and he bought it entirely upon that information, then he is not bound to pay for what he did not get. [5]</p> <p>Verdict and judgment for plaintiff for $581.25. Defendant appealed.</p> <p>Errors assigned among others were (3-5) above instructions, quoting them.</p>

<p>Boroughs — Road law — Resolutions—Ordinance.</p> <p>A mere resolution of a borough council adopting a plan of a borough upon which the streets are represented, will not have the effect of widening or narrowing a street where the existing lines do not conform to those laid down on the plot. The accomplishment of that object requires legislative action, and, although it may be in form of a resolution the essentials to the validity of an ordinance must be observed. Such a resolution without more will not cast on one, whose dwelling has stood in the same place for years before the resolution was adopted, and probably before the borough was created, the burden of proving that when it was built it did not encroach upon the existing highway.</p> <p>Road law — Dedication—Adverse user.</p> <p>When a dedication to public use, and the opening of a street for public, travel by the owner are followed by its actual use by the public as a highway, the right in the public may become complete and absolute within a much shorter period than twenty-one years ; but when the right is dependent upon adverse user alone, it does not become complete until the expiration of that period. The use which will establish such a right must be defined, uniform, adverse, and under claim of right, and must have continued for twenty-one years.</p> <p>Where the right to a public highway is acquired by adverse user, an important element in determining the width thereof is the recognition of the limits of the way by the owners whose lands front thereon, as indicated by the monuments and fences which they themselves place upon the ground, and the lines which they fix for the same in making conveyance of their property.</p> <p>Where a house has stood from fifty to one hundred years on a lot abutting on a street in a borough, the borough authorities cannot compel the owner in rebuilding the front to recede to aline claimed by the borough to be the proper line of the street, where there is no evidence whatever to show that the public by adverse, continuous and exclusive use had acquired title in the street to the line designated by the borough.</p>

Appeal, No. 152, Oct. T., 1903, by the Peoples Trust, Saving & Deposit Company, from decree of O. C. Lancaster Co., dismissing exceptions to report of auditor in estate of Frank Mathew Stahl, deceased. Exceptions to report of M. G. Schaeffer, Esq., auditor.

<p>Appeal, No. 24, Oct. T., 1903, by defendant, from order of C. P. Delaware Co., June T., 1902, No. 14, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Norwood Borough v. Western Union Telegraph Company.</p> <p>Assumpsit for a license tax on telegraph poles and wires.</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>Sewers — Permits—Inspector—-Borough—Equity.</p> <p>Where the authorities of a.borough have placed blank sewer permits in the hands of the sewer inspector, to be signed and issued by him as they are applied for, the borough cannot object that the permit was not issued by the secretary as required by ordinance, where it appears that it has received a property owner’s money for the permit, and the latter in good faith, has made the connection at the very place designated by the inspector, has completed his drain, and the sewer inspector has inspected and approved the work.</p> <p>Where a person owns an L shape lot made up of two lots fronting on different streets, but with only one house on the entire premises and with no physical division separating one part of the property from the other, a sewer permit which describes the premises as located on the eastern side of one of the streets, sufficiently describes the premises, although the house fronted on the other street where there was no public sewer. In such a case the facts that the point of connection designated by the inspector was not immediately opposite the lot, and that the owner conducted his drain across the lot of another person, are immaterial.</p> <p>Where a property owner has paid a borough for a sewer permit and has made a proper connection with the sewer at a point designated by the sewer inspector, he has a right to maintain a bill in equity against the borough to prevent it from cutting off his connection, as a means of compelling him to pay a foot front assessment for which the owner is either not liable, or which was enforceable in a mode prescribed by ordinance.</p>

<p>Appeal, No. 52, Jan. T., 1904, by defendant, from decree of C. P. Carbon Co., Oct. T., 1902, No. 1, on bill in equity in case of Richard Green v. Prince Metallic Paint Company.</p> <p>Motion to quash appeal.</p> <p>The opinion of the Superior Court states the case.</p>

<p>Appeal, No. 49, Jan. T., 1904, by defendant, from decree of C. P. Carbon Co., Oct. T., 1902, No. 1, on bill in equity in case of Richard Green v. Prince Metallic Paint Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of the Superior Court and by Green v. Prince Metallic Paint Co. (No. 1), ante, p. 415.</p> <p>Error assigned was the decree of the court.</p>

<p>Sale — Contract—Rescission—False representations.</p> <p>On an issue to determine the right of a seller of goods to rescind the sale, a judgment and verdict for the seller -will be sustained where the evidence, although conflicting, tends to show that the purchaser knowingly and falsely stated to the seller that he owed $800 when in fact he owed $13,000, that the seller made the sale in reliance on the representation, and that he promptly rescinded it, as soon as he discovered the fraud.</p>

<p>Road law — Dedication of street — Acceptance—Boroughs.</p> <p>The mere dedication of a street to public use by the owner will not make it a public highway unless it is accepted by the public and actually opened upon the ground.</p> <p>A dedicated street becomes a public highway only to the extent to which it is actually opened and used.</p> <p>The Act of May 9,' 1889, P. L. 173, relieves land upon which streets have been laid out by the owner, but not opened or used for twenty-one years, from the servitude imposed. If the municipality proceeds to open the street after that time, the owner is entitled to damages.</p> <p>The finding by a referee that a street had not been opened until more than twenty-one years after it had been laid out, has all the force of a verdict of a jury, and will not be set aside except for clear error.</p> <p>In a proceeding by a landowner against a borough to recover damages for the opening of a street which had been laid out more than twenty-one years before it was opened, it is not necessary for the landowner to produce in evidence an ordinance of the borough widening the street and changing the grade, inasmuch as the work may have been the unauthorized act of the officers of the borough subsequently ratified by the borough.</p> <p>The acts of the borough may be proved otherwise than by its records or other written documents.</p>

<p>Public officers — County treasurer — Compensation—State tax.</p> <p>A county treasurer is not entitled to commissions on any part of the taxes on personal property collected by him, as agent for the county and transmitted to the state treasury.</p>

<p>Hoad law — Change of grade — Damages—Jury—Trespass.</p> <p>An owner of land who has recovered damages in proceedings before a jury of view for injuries to his land resulting from the execution of a plan for grading a street, has no standing subsequently to maintain an action of trespass against the city for injuries caused by an additional flow of water on the land, where it appears that the injury alleged was the direct, immediate and unavoidable result of the ex cution of the plan under which the city completed the grading of the street.</p> <p>In such a case the burden is upon the plaintiff to show that there had been negligence in the performance of the work called for by the plan, or a failure upon the part of the city to maintain the work after it was done.</p>

<p>Appeal, No. 83, Jan. T., 1904, by plaintiffs, from decree of C. P. Lackawanna Co., March T., 1903, No. 3, dismissing bill in equity in case of Sarah Dinner et al. v. W. F. Van Dyke, Admr.</p> <p>Bill in equity to compel satisfaction and to restrain pro-1* ceedings thereon.</p> <p>The facts are stated' in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Corporations — Foreign corporations — Liability of stockholders.</p> <p>In an action by a judgment creditor of a Kansas mortgage, loan and trust company against a Pennsylvania stockholder of the company to' enforce the additional liability provided by the constitution of Kansas, where it appears that the judgment of the plaintiff was based upon an accommodation indorsement by the corporation, the defendant cannot relieve Ijimself from liability, unless he can show by the charter of the corporation that the debt was not “ essential to the transaction of its ordinary affairs,” and within “ the legitimate objects of its creation.”</p>

<p>Negligence — Street railways — Speed—Collision between car and wagon— Evidence — Province of court and jury.</p> <p>In an action, against a street railway company to recover damages for personal injuries and for injuries to a horse, wagon and harness it appeared that plaintiff was driving a heavily loaded wagon at an up grade on defendant’s tracks on a highway in the country. In thé wagon was a lighted lantern, and in the curtain at the back there was a glass through which the light shown. About fifteen feet behind the plaintiffs’ vehicle was another wagon similarly lighted and with a window in the rear curtain. This wagon was also heavily loaded. The night was very dark and foggy. A car struck the wagons from the rear. The first wagon struck was carried a distance variously estimated from thirty to fifty feet, the second from sixty to eighty feet. The evidence as to whether a bell was rung to give the plaintiffs warning was conflicting. Some of the witnesses testified that it was the darkest night they ever saw. Counsel for the railway company conceded that the car was running at the rate of twelve miles per hour. The motorman testified that he had only time after seeing the first wagon to throw on the brake and bow his head to avoid flying glass when the collision came. Held, (1) that the question as to whether the speed of the car was under the circumstances excessive, was for the jury; (2) that the plaintiff had a right to use the part of the road used by the railway track, and the question whether in using it under the circumstances, he was guilty of contributory negligence was for the jury ; (3) that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 195, Oct. T., 1903, by defendant, from judgment of C. P. Del. Co., Dee. T., 1901, No. 118, on verdict for plaintiff in case of John W. Hawkins v. Media, Middletown, Aston and Chester Electric Railway Company.</p>

<p>Appeal, No. 104, Oct. T., 1903, by plaintiff, from judgment of C. P. Northampton Co., June T., 1903, No. 20, for defendant on case stated in suit of Lucinda R. Martin v. Joseph H. Heckman.</p> <p>Case stated to determine the marketable title to real estate. Before Schuyler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 202, Oct. T., 1903, by defendant, from judgment of C. P. Montgomery Co., March T., 1902, No. 7, on case tried by the court without a jury in suit of J. B. Matlack v. Mary A. Callahan.</p> <p>Trespass to recover damages for flooding of land.</p> <p>The case was tried by Weand, J., without a jury by agreement of the parties under the Act of April 22,1874, P. L. 109.</p> <p>The court below reported the facts to be as follows:</p> <p>Prior to 1894, “the Bingham estate” was the owner of a large tract of land in Lower Merion township, through part of which there was an ancient water course draining an area of from fifteen to twenty acres of territory.</p> <p>This water course was originally across the lot now owned by defendant, and to relieve this ground an iron pipe eighteen inches in diameter was placed by the said estate in the bed of the watercourse through now defendant’s ground onto other ground of the estate laid out as a street and now a public road of the township, known as Thomas avenue. The entire length or front of defendant’s property abuts on this avenue.</p> <p>Defendant acquired title subsequent to the laying of said pipe, and has since erected a dwelling house on the premises.</p> <p>Other owners of land adjoining the water course afterwards built a covered sewer to take the place of the original water course and connected it with the iron pipe at the corner of what is now defendant’s lot; and where her lot adjoins that of Timothy Quinlan, he built a manhole, but on defendant’s ground. The natural flow of the water is through the sewer and into the pipe.</p> <p>The water course is crossed by Warner avenue, Prospect avenue and Merion avenue before reaching defendant’s ground and the water from those streets empty into it through inlets.</p> <p>The iron pipe after leaving defendant’s ground conducts the water into a manhole in Thomas avenue, and is then diverted into an angle or whatever the direction of the course might be beyond it, and this also occurs at an inlet or manhole where the pipe leaves Thomas avenue and enters an alley from which it enters the Roberts road where there is a similar inlet.</p> <p>These manholes from their faulty construction form obstructions to the free passage of the water, collects the debris by forming lodgments, and thus backs up the water through the pipe and sewer onto defendant’s land.</p> <p>Since the laying of the pipe and the building of the sewer a number of dwellings and buildings have been erected adjacent to the water course and on the ground previously drained into it; this, with the constructions of the avenues, causes an increased flow of water into the water course, and the sewer prevents the water, debris, sand, etc., from spreading onto the bank of the course as formerly, and is carried through the sewer.</p> <p>Defendant acquired title in 1897. For some time previous to the beginning of this suit the water from the pipe and sewer came out of the inlet at Prospect avenue and found its way into the cellar of plaintiff’s house causing damage thereto.</p> <p>The eighteen-inch pipe is of sufficient size to carry off the water except in extraordinary floods. The damage is caused by the inlets or manholes on Thomas avenue, the alley and Roberts road.</p> <p>Plaintiff. acquired paper title in 1898 (but owned it from 1893).</p> <p>We find as a matter of fact that the damage to plaintiff’s property is caused by the backing up of the water and consequent injury to plaintiff, (a) by reason of increased flow of water into one channel caused by the erection of buildings, macadamizing and constructions of streets and inlets therefrom, (5) by reason of the sewrer which confines the water, debris, etc., into a straight channel instead of allowing it to spread, and (o') principally by reason of the faulty construction of the inlets on Thomas avenue, the alley and on Roberts road. The drainage from causes (a) and (b) did not change the relations of defendant as the natural water course was subject to receive the water from streets and land over which it naturally flowed.</p> <p>The township has done nothing 'to show that they have adopted the pipe on Thomas avenue as part of their drainage system.</p> <p>The court entered judgment for plaintiff for $150. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 219, Oct. T., 1903, by Montgomery County, from order of Q. S. Montgomery Co., appointing a jury of v-iew in the matter of the condemnation of Perkiomen & Sumneytown Turnpike Road.</p> <p>Petition for appointment of viewers to condemn a turnpike road.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order appointing jury of view.</p>

<p>Appeal, No. 223, Oct. T., 1903, by William Buechley et al., from judgment of O. P. Schuylkill Co., Jan. T., 1903, No. 136, on verdict for plaintiff in case of Hummelstown Brownstone Company v. Harry Knerr, William Buechley, Frank Esterly and Daniel Esterly.</p> <p>Assumpsit on a bond. Before Shay, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $778.94, defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Divorce — Evidence—Loss of papers — Docket entries — Minute book.</p> <p>Where the papers in a divorce proceeding have been lost from the files, the docket entries and the minutes of the court are evidence of the contents of the record.</p> <p>Evfery intendment of fact is to be made in support of the regularity of the proceeding, and a judgment is not to be reversed at random, or for suspicion of error, where it may be erroneous or not, according to the existence of circumstances which do not appear.</p> <p>A final decree in divorce will not be set aside after the expiration of fifty-nine years upon the uncorroborated testimony of the respondent, the wife, that she was not served, and that she was not represented by counsel, and upon the claim unsupported by sufficient proof that the libelant at the time was not a citizen of Pennsylvania, where the docket entries and the minutes of the court show (the papers having been lost from the files), that respondent was served, that she was represented by counsel, that an examiner had been appointed, that a rule to show cause had been entered, and that a final decree had been made. In such a ease the fact that the docket entry does not show when the subpoena had been served is immaterial.</p> <p>Appeals — Petition to revoke decree in divorce — Discretion.</p> <p>The jurisdiction of the Superior Court to review a decree dismissing a petition to revoke a final decree in divorce is found in the Act of May 20, 1891, P. L. 101, allowing an appeal from a refusal to open, vacate, or strike off judgments. The proceeding is in the nature of an application to a chancellor, and upon appeal, the appellate court will only reverse when there hap been a clear abuse of discretion.</p>

Appeal, No. 99, April T., 1904, by-defendant, from judgment of Q. S. Crawford Co., Sept. T., 1903, No. 29, on verdict of guilty in case of Commonwealth v. Fred Billig. Indictment for defrauding a hotel keeper. Verdict of guilty upon which judgment of sentence was passed. Error assigned was the whole charge of the court.

<p>Appeal, No. 56, Oct. T., 1903, by defendant, from decree of C. P. Lancaster Co., Equity Docket No. 3, dismissing bill in equity, in case of Penn Iron Company, Limited, v. City of Lancaster et al.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 173, Oct. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., for defendant non obstante veredicto in case of A. G. Hamaker, Transferee of M. E. Bomberger and Jonas B. Erb, Transferees of Lincoln Bomberger, v. The Manheim Light, Heat& Power Company.</p> <p>Assumpsit for rental.</p> <p>The facts appear by the opinion of Landis, J., which was as follows:</p> <p>The question raised in this case is somewhat complicated, and, for a full understanding of it, it is necessary to recite, as briefly as possible, the facts out of which the controversy grows.</p> <p>On March 25, 1889, the assignees of Elias Bomberger conveyed, in fee simple, to Lincoln Bomberger, a mill property, containing about fourteen acres and fifty-seven perches, located in Penn and Rapho townships and Manheim borough. On July 27,1895, Lincoln Bomberger entered into an agreement with the Manheim Light, Heat & Power Company, wherein it was recited that: “ Whereas, the said party of the first part is seized in fee of and in certain tracts, pieces or parcels of land with the appurtenances, partly in the said Borough of Manheim, partly in the Township of Rapho, and partly in the Township of Penn, county and state aforesaid; and whereas, there is a dam and race or water course built, erected and made in and upon the Ohickies Creek, within the said land of the said party of the first part; . that the said party of the first part, for divers good causes, rents, covenants and considerations hereinafter specified, has agreed and does hereby agree that the said party of the second part shall have the absolute and exclusive use and control of the water of the said creek, in connection with the said dam and race, for and during the period of twenty (20) years .... saving and excepting that the said party of the first part, his heirs and assigns, tenants, employees and servants, may have the privilege of using said water as a water power for his mill, erected on the land as aforesaid, between sunrise and sunset of each and every day; it is expressly understood and agreed, however, that the said party of the first part shall, as far as can be arranged, use said water before midday. It is also further agreed that at such times between sunrise and sunset of each and every day as the said party of the first part, his tenants, and employees, are not using the said water, the said party of the second part may use the same, even though the time be between sunrise and sunset, and when there is more water power than is required to operate the mill of the party of the first part, the party of the second part may then also use the surplus power.” It was also agreed that the party of the second part should, at “ its own proper cost and expense, well and sufficiently erect, construct and build shafting, belting, clutches and a turbine wheel, which wheel, when supplied with a sufficient volume of water, will develop about sixty (60) horse power capacity,” and that it should, at its own expense, for and during the term of the agreement, keep the same in good repair and order. In addition, it was mutually understood and agreed that the expense and cost of keeping the dam and race in proper repair, after the said improvements were made, should be borne equally by the parties. At the expiration of the term of twenty years, the wheel and all improvements to the race, the line-shafting, belting and clutches, as might then be in the mill, were to become the property of the said Lincoln Bomberger. It was further stipulated that, if Bomberger should, within six months from the date of the agreement, pay to the Electric Light, Heat & Power Company the actual cost and expenses of the shafting, belting, clutches, turbine wheel and such other improvements as were contemplated to be done by the said company, the company should thereupon pay annually to the said Bomberger the sum of $275.</p> <p>On July 3,1896, Lincoln Bomberger assigned unto Jonas B. Erb, his heirs and assigns, the annual rent due, or which might thereafter become due, to him, during the said term, under the said agreement, the proceeds to be devoted to the following purposes : First, to pay a promissory note of $100, drawn by Lincoln Bomberger, indorsed by Jonas B. Erb and discounted by the Keystone National Bank of Manheim; secondly, to pay a judgment for 1500, and interest, which the said Jonas B. Erb held against Lincoln Bomberger, entered in the common pleas of Lancaster countj'- to April term, 1895, No. 686 ; and lastly, to the payment of any moneys which Jonas B. Erb might become liable to pay on a certain note of $3,000 in the Manheim National Bank, drawn by Jacob B. Hostetter, on which the said Jonas B. Erb was one of the indorsers. On October 31,1900, Jonas B. Erb assigned and transferred all his right, title and interest in the said lease and in the said annual sum reserved, unto A. G. Hamaker and M. E. Bomberger; and on June 12, 1901, Martha Bomberger, administratrix of M. E. Bomberger, deceased, assigned all the right, title and interest of M. E. Bomberger therein to the said A. G. Hamaker.</p> <p>Under and by virtue of the provisions of the said agreement, the said Manheim Light, Heat & Power Company expended for repairs the sum $2,928.33, and subsequently, within the stipulated period, and before he made a transfer of his interest in the assignment, Lincoln Bomberger repaid that amount to the company, and thus became entitled to receive the annual rent of $275 provided for therein. It became necessary, however, at.a later date, to do certain work for the purpose of keeping the dam and race in proper repair, and, during the year 1899, the light company expended for that purpose at least the sum of $956.67, the one half of which, or $478.33, with interest from January 27,1900, it claims Lincoln Bomberger and his transferees were bound to pay; and, in like manner, in the year 1900, at least the sum of $300, for the one half of which, or $150, it claims the plaintiff was also liable.</p> <p>It appears that Lincoln Bomberger, on August 28, 1896, made a deed of voluntary assignment for the benefit of his creditors to Jonas B. Erb and Israel G. Erb, and, by virtue of the same, the said assignees, on March 12,1897, conveyed to John B. Erb the fee simple title of the said gristmill and tracts of land belonging thereto, which are referred to in the aforesaid agreement. At the time of the bringing of this suit, there was due by the electric light company two annual payments of #275 each, or $550; but, having at that time paid the above-mentioned sums of #478.83 and #150 for the keeping of the dam and race in proper repair, the company claimed that it had a right to offset the rent against the outlay thus made, and that, therefore, nothing is due at this time to the plaintiff. On the other hand, the plaintiff claimed that the owner of the fee, and not the transferee of the rent, was bound to pay for these repairs, and that the company was liable to him for the full amount of these annual payments, and must look to the landowner for reimbursement.</p> <p>It will be observed that at the time of the making of the agreement, Lincoln Bomberger, being the owner of the fee, was entitled, as soon as he repaid to the company the amount of its original expenditures, to receive the annual rent of #275, and, had he retained his position as owner of the fee, as well as of the rent, it is certain that the company could have offset the disbursements made by it for the repairs to the dam and the race against the amount due to him for the rent. Does, then, the fact that he transferred the annual payments to one party, and his fee simple title became vested in another, prevent the company from insisting upon a right which it could have demanded had the relations of all the parties thus continued ? The repairs to the dam and the race are as much a part of this agreement as is the payment of the rent, for, without such repairs being made, it may become impossible to use the power for which the rent is to be paid; and,, if the company cannot offset these repairs against the rent, but must look to the owner of the fee for the payment, in case the property is incumbered to such an extent as to make it impossible for the company to collect the one half from the fee simple owner, it will occupy the curious position of being obliged to pay the rent, and, yet, perchance, have no responsible party to whom recourse can afterwards be bad to recover it. This would seem to be the anomalous situation in which it would be placed, entirely without its consent; for it is a stranger to the transfer, and is, by no means, bound by, or responsible for, the same: Provident Life & Trust Company v. Fiss, 147 Pa. 232.</p> <p>I am of the opinion that no subsequent act of Lincoln Bomberger could affect the rights of this company, and that those who took his transfer placed themselves merely in the position which he himself formerly occupied. It would seem to be unfair to compel the electric light company to work out the equities, if any there be, which exists between the transferee of the rent and the owner of the fee. They, it seems to me, should do this for themselves, and not involve the company in their controversy. It is of no importance to it who receives the rent. All that it has to do is to pay it when it becomes due.to the proper party, deducting therefrom whatever it had a right to set off against Lincoln Bomberger under the original lease. If this position is maintainable, then the plaintiff, under the facts presented, was not entitled to recover in this case, and the verdict should have been in favor of the defendant.</p> <p>It is, therefore, not important, at this time, to ascertain whether or not the provisions in the agreement relating to the dam and race are covenants running with the land. If they are, and the owner of the fees, as between himself and the transferee, should pay for these repairs, the transferee can reclaim from him what he is now bound to pay by reason of the set-off claimed in this suit by the defendant, but this question can be passed upon when it is properly before us, and I do not undertake to determine it now.</p> <p>For the reasons stated, I am of the opinion that the plaintiff showed no cause of action, and, because of this suit, judgment is entered for the defendant on the reserved point, and the rule to show cause why judgment should not be entered non obstante veredicto is made absolute.</p> <p>Rule made absolute.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Criminal law — Attempts—Misdemeanor—Felony.</p> <p>A person may be convicted of breaking with attempt to commit larceny, where it appeal's that he broke a transom window of a store in the nighttime with attempt to feloniously enter the store, but before he succeeded in making the entry was discovered and fled.</p> <p>To constitute an attempt there must be an intent to do a thing combined with an overt act which falls short of the thing intended.</p> <p>A misdemeanor at common law may be described to be such exclusive trespass against good morals, or public peace, as tends to injure the public, either directly or consequentially, but which does not amount to any higher degree of characterized crime. •</p> <p>If a specific punishment is not prescribed for a misdeameanor, it is uniformly and universally understood to be that annexed to common-law misdemeanor, viz: fine and imprisonment.</p> <p>Criminal law — Verdict—Practice, Q. S.</p> <p>Where a verdict irregularly formed is moulded into proper form by the trial judge and duly recorded by the clerk before the jury are finally discharged, the form prepared in the jury room or handed in the first instance to the clerk, has no significance whatever, and is no part of the record. '</p>

<p>Appeal, No. 6, Feb. T., 1904, by plaintiff, from order of C. P. Union Co., May T., 1903, No. 109, making absolute rule to open judgment in case of Milton National Bank v. Levi Beaver.</p> <p>Rule to open judgment entered on a judgment note.</p> <p>From the record it appeared that the ground alleged for opening the judgment was that the note which had been given by the defendant, to B. Cook, and upon which judgment had been entered had been raised from §9.00 to §89.00.</p> <p>McClure, P. J., filed the following opinion :</p> <p>The pivotal question is whether Beaver’s note is a negotiable or nonnegotiable instrument, for, if negotiable, it was so negligently drawn that it could be altered without creating the least suspicion of the fraud in the mind of a purchaser; and if it be nonnegotiable the evidence of the fraud perpetrated on the maker by the payee is so clear and convincing as to preclude a recovery of the money. It is conceded all round that the character of the instrument is fixed by the Act of 1901, P. L. 194, and whether it be negotiable or nonnegotiable must be determined by the interpretation of that statute.</p> <p>By this act the negotiable character of an instrument is not affected by a provision which “ authorizes a confession of judgment if the instrument be not paid at maturity ” and a sum payable is a sum certain although it is to be paid “ with costs of collection or an attorney’s fee, in case payment shall not be made at maturity.” The confession of judgment which does not destroy the negotiability is, by the express language of the act, confined to an authorization so to do at maturity. Likewise a sum payable is not to be deemed uncertain if the note provides for an attorney’s fee for collection if it be not paid at maturity. The argument is that as an attorney’s commission cannot be collected in any event until after maturity and demand made upon the maker, a stipulation in the note for the payment of a commission, without specifying the time when, is in legal effect an agreement to pay it at maturity, hence a note so drawn is negotiable by virtue of the statute. I am inclined to this view of the question and would hesitate before opening the judgment to permit this defense to be made.</p> <p>It is quite clear to me, however, that the authorization of the entry of judgment “ as of any term ” contained in the note destroyed its negotiability. The statute expressly limits the confession of judgment upon its nonpayment. at maturity. Here the judgment could have been entered the day the note was signed by Beaver and its commercial properties destroyed at once, although it was not payable until three months after its date. This was one ground upon which the decision in Overton v. Tyler, 8 Pa. 346, was based. Chief Justice Gibson says, at page 348, “ payment was to be made, not as is usual at so many days after date, but at a distant day certain; yet the negotiability of the note, if it had any, as well as its separate existence was instantly liable to be merged in a judgment, and its circulation arrested by the debt being attached, as an encumbrance, to the maker’s land ; and it was actually merged when it had nearly three months to run. Now it is hard to conceive how the commercial properties of a bill or note can be extinguished before it has come to maturity.” While the note in this case was not attached as an incumbrance to Beaver’s land before maturity, it could have been. The authority so to do was written upon its face, and I cannot conceive how the acts of persons into whose hands a paper falls can change its character so as to affect the maker. When it leaves his hands it either bears the stamp of negotiability or it does not.</p> <p>On principle then this note is not negotiable unless the statute has removed the obstructions to its course through the commercial world. But that statute as we have seen is expressly limited to confessions of judgment upon nonpayment at maturity. And as effect is to be given to every word of a statute in its interpretation, only upon a plain violation of this common rule of construction could a note with authority to enter judgment upon it at once be held to be negotiable. It would be against the express language of the act, and while it was undoubtedly the purpose of the legislature to enlarge the class of negotiable instruments, I know of no reason for calling a paper a negotiable instrument which could be made nonnegotiable by the act of any person into whose hands it might fall before maturity.</p> <p>And now, to wit: December 12,1902, rule absolute, the judgment is opened to let in the defense of fraudulent alteration of the instrument as set out in defendant’s petition, and a feigned issue is directed to be framed to try the question in dispute in which Levi Beaver shall be plaintiff and the Milton National Bank defendant. When at issue to be placed at the head of the list for trial.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Municipalities—Defective sidewalk.</p> <p>In an action against a city by a woman thirty-eight years old to recover damages for personal injuries sustained by a fall on a slippery sidewalk, a judgment for defendant is properly entered non obstante veredicto, where it appears that the accident happened on a principal street of the city, in broad daylight, during very cold and inclement weather, and the plaintiff fails to show what was the cause of her injury, or any notice to the municipality of a defect in the sidewalk.</p>

<p>Appeal, No. 15, Feb. T., 1904, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1902, No. 125, on verdict for plaintiff in case of C. B. Penn v. Artley Tallman.</p> <p>Sheriff’s interpleader to determine the ownership of a team of horses and set of harness. Before Hart, P. J.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was that the charge as a whole was inadequate.</p>

<p>Appeal, No. 235, Oct. T., 1902, by John H. DeHaven and Levi DeHaven from decree of O. C. Lancaster Co., May T., 1902, No. 10, dismissing exceptions to adjudication in estate of Azariah DeHaven, deceased.</p> <p>Exceptions to adjudication.</p> <p>Tbe opinion of the Superior Court states the case.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal, No. 21, March T., 1904, by H. N. Bowman, from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report in estate of John M. Burkhart.</p> <p>Exceptions to report of F. E. Beltzhoover, Esq., auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>."Errors assigned were (1) in appointing an auditor to make the apportionment; (2) in imposing the costs of the audit upon the commonwealth.</p>

Appeal, No. 7, March T., 1904, by plaintiff, from judgment of C. P. York Co., April T., 1903, No. 17, on case stated in suit of York Gazette Company, Limited, v. York County. Case stated to determine the liability of a county for publication of a general election. The facts appear by the opinion of the Superior Court. The court below in an opinion by Bittenger, P. J., entered judgment for defendant on the case stated. Error assigned was the judgment of the court.

Appeal, No. 23, March T., 1904, by plaintiff, from order of C. P. Perry Co., Aug. T., 1899, No. 107, making absolute rule to open judgment, in case of William Wertz v. S. E. Klinger and M. L. Horting. Rule to open judgment. . Before Schull, P. J. The facts appear by the opinion of the Superior Court. The court made absolute the rule to open the judgment. Error assigned was the order of the court.

Appeal, No.47, Oct. T., 1904, by defendant, from judgment of Q. S. Schuylkill Co., March T., 1908, No. 175, on verdict of guilty in case of Commonwealth v, John T. Shoener. Indictment for embezzlement. Before Marr, J. At the trial defendant’s counsel made the following motion: Mr. Reilly: I will make a motion.

<p>Appeal, No. 44, April T., 1904, by defendant, from order of C. P. No. 3, Allegheny Co., May T., 1903, No. 507, making absolute rule for judgment, for want of a sufficient affidavit of defense, in case of Braddock Borough v. Allegheny County Telephone Company.</p> <p>Assumpsit to recover license fees.</p> <p>From the record it appeared that on February 6, 1894, the councils of the borough passed an ordinance “ Regulating poles and suspended wires and requiring the same to be licensed.”</p> <p>The plaintiff claimed that under this ordinance, the defendant company is indebted to it in a large sum for the license fees therein required to be paid by said company. The defendant claimed exemption from the license fees required by said ordinance by virtue of the 4th section of the ordinance granting to it the use of the streets of the borough,-passed June 16, 1896.</p> <p>The terms of the fourth section are as follows:</p> <p>“ In consideration of this grant and in lieu of all taxation and special assessments in the nature of taxation upon said company, its successors and assigns, by the said borough, said company, its successors and assigns, obligates itself to do the following things.”</p> <p>The affidavit of defense alleged the performance of the things thus undertaken, and its consequent exemption from the claim of the plaintiff under the ordinance of 1894.</p> <p>The court made absolute the rule for judgment, for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals — Certiorari—Justice of the peace — Quashing appeal — Act of March 20, 1810, sec. 22, 5 Sm. L. 161, Act of July 7, 1879, P. L. 194.</p> <p>No appeal lies from the judgment of a court of common pleas on a certiorari to a justice of the peace, where the record shows that the justice had jurisdiction, and that the cause of action was within the act of 1810, as amended by the act of 1879.</p>

<p>Trial — Comment as to absence of witnesses — Charge. -</p> <p>In an action against an express company to recover damages f or a dog shown to have been suffocated in an express car, where the plaintiff has made out his case, and the defendant has failed to subpoena or produce a veterinary surgeon who had examined the dog, and two persons who had seen the dog on the arrival of the express car at its destination, the court cannot be convicted of error in stating to the jury that “there were witnesses who could have been produced by the defendant with a proper amount of diligence, who knew what the situation was when the dog was discovered to be dead.”</p>

<p>Attorney at law — Fee—Judgment.</p> <p>Where an attorney at law has assigned to him an interest in a judgment in payment for professional services in connection with the judgment, and has been discharged by his client, his interest in the judgment will not be forfeited because he in good faith opposed a settlement between the parties to the judgment, which he deemed prejudicial to his interest.</p>

<p>Appeal, No. 128, April T., 1904, by D. Leet Wilson, John Bole and Isabel H. Stewart, from order of Q. S. Allegheny Co., March T., 1903, No. 44, incorporating a borough, In re Edgeworth Borough.</p> <p>Petition for the incorporation of a borough. Before MaoFarlane, J.</p> <p>The court entered a decree of incorporation in accordance with the prayers of the petition.</p> <p>Errors assigned were as follows :</p> <p>1. The original petition failed to exhibit the courses and distances of the boundaries of the proposed borough in words at length, and’ the court was therefore without jurisdiction.</p> <p>2. The court erred in permitting the amendment of the original petition by setting out the courses and distances in words at length.</p> <p>3. The court erred in entering a decree that does not conform to its opinion. The opinion directs a decree to be drawn, “ the northeasterly or easterly line of Grand avenue to be the boundary of the borough,” and the decree takes in a large territory lying to the northeast of said avenue.</p> <p>4. The court erred in not sustaining the third exception filed by D. Leet Wilson, which exception is as follows: “ That this exceptant and other owners who have petitioned this court to exclude their property from the limits of said borough together own a large tract of unimproved or farming property situate at the edge of said proposed borough and which is not a part' of any village, and therefore not properly to be included within the borough lines.”</p> <p>5. The court erred in not sustaining the fifth exception filed by D. Leet Wilson, which exception is as follows : “ For the reason that the property of this exceptant is unimproved farming property, twenty-five acres in extent, lying adjacent and contiguous to other unimproved farming- property, cornprising several hundred acres in extent, and cannot be made, against this exceptant’s protest a part of said borough or incorporated town.”</p> <p>6. The court erred in not excluding appellants’ properties from the limits of the borough.</p> <p>7. The decree of the court.</p>

<p>Appeal, No. 133, April T., 1904, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1898, No. 91, refusing to take off nonsuit in case of W. A. Dunshee v. Travelers Insurance Company of Hartford.</p> <p>Assumpsit on a policy of accident insurance.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 134, April T., 1904, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1898, No. 226, refusing to take off nonsuit in suit of W. A. Dunshee v. lEtna Life Insurance Company.</p>

<p>Appeal, No. 129, April T., 1904, by plaintiff, from decree of C. P. Washington Co., No. 1359, in equity, dismissing bill in equity in case of James A* Jordan et al., Supervisors of Canton Township, v. Washington & Canonsburg Railway Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>$rror assigned was decree dismissing the bill.</p>

<p>Appeal, No. 37, April T., 1904, by defendant, from judgment of C. P. Cambria Co., June T., 1902, No. 99, on verdict for plaintiff in case of Henry L. Miller v. Hastings Borough.</p> <p>Appeal from justice of the peace. Before O’Conneb, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for 176.12. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Pleading — Trespass—Evidence of title — Plea of not guilty.</p> <p>In an action of trespass for-injuries to land the defendant in possession may offer evidence of title under the general plea of not guilty.</p> <p>Land law — Boundaries—Steam—Navigable river.</p> <p>Where a clause in a survey or grant calls for a creek or a small unnavigable river, the grant extends to the middle of the stream; but where the call is for a navigable river the grant extends to ordinary low water mark only.</p> <p>In an action involving title to real estate where the issue turns on whether a stream is or is not navigable, and the plaintiff offers oral testimony that the stream is navigable, and the defendant offers no testimony, the court cannot give binding instructions for the plaintiff; and it may, on a question reserved, if it deems the plaintiff’s evidence insufficient to submit to the jury, enter judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 104, April T., 1904, by plaintiff, from judgment of C. P. Cambria Co., Sept. T., 1903, No. 467, for defendant on case tried by the court without a jury in suit of E. L. Miller v. Cambria County.</p> <p>Agreement for amicable action styled by the parties on case stated.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered judgment for defendant. No exceptions were filed to the decision of the court. /</p> <p>No assignments of error were printed in appellant’s paper-book.</p>

<p>Appeal, No. 124, April T., 1902, by defendant, from order of Q. S. Indiana Co., June T., 1901, No. 4, affirming an order for the removal of a pauper in case of Brushvalley Township Poor District v. Allegheny County Poor Directors.</p> <p>Appeal for order of removal. Before White, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court affirming order for removal.</p>

<p>Poor law — Settlement—Payment of taxes.</p> <p>A person inhabiting a poor district who has paid his taxes for seven years . successively, has gained a settlement in such district and it is immaterial whether the taxes have been regularly assessed or not. The proof of the assessment of taxes is admissible as a step towards showing the payment of same, but it is of no value unless followed by proof of payment.</p> <p>Poor law — Settlement of father — Minot—Emancipation.</p> <p>A minor does not lose the derivative settlement which he has through his father, merely because the father premits the minor to reside in another county, where *it appears that the father’s home was always open to the child,- and there was no emancipation of the minor from the control of the father.</p>

<p>Appeal, No. 116, April T., 1904, by defendant, from order of C. P. Clarion Co., May T., 1903', No. 88, making absolute rule to open judgment in case of W. A. Neil to use of A. W. Corbett v. William A. Neil and J. H. Rifenberick.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Evidence—Witness—Prosecutor—Information.</p> <p>There is a marked distinction between competency as a prosecutor and competency as a witness on the trial of the cause in court. Where, as in many instances, there is a choice of accusation, that is, where the defendant may fairly be accused of one crime or another or of more crimes than one growing out of the transaction, it is plainly the duty of the magistrate taking the complaint to see that the accusation and the commitment thereon are broad enough to cover the whole; leaving to the grand jury or prosecuting officer to elect between the several methods of pursuing the defendant.</p> <p>It is not required that the person who makes the information to set the machinery of the law in motion should be the prosecutor marked on the indictment, or be a witness sworn for the commonwealth on the trial. It is not indispensable that the informer or prosecutor should have personal knowledge of the facts necessary to convict the defendant. If he is able to swear that he is informed of them and believes the facts stated in the information to be true is all that has ever been required to justify a magistrate in issuing a warrant for the arrest of the alleged criminal.</p> <p>Criminal law — Information—Prosecutor—Husband and wife — Adultery.</p> <p>A husband is competent to make an information charging his wife’s paramour with adultery.</p>

<p>Appeal, No. 135, April T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 231, ou verdict for plaintiff in ease of George Ruppert v. West Side Belt Railroad Company.</p> <p>Trespass to recover damages for land caused by tbe withdrawal of lateral support at a cut. Before Mace are ane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,200. Defendant appealed.</p> <p>Errors assigned among others were (1) in admitting in evidence the map of the property referred to in the opinion of the Superior Court; (8) refusal of point quoted in opinion of Superior Court.</p>

<p>Negligence — Street railways — Crossing.</p> <p>In an action against a street railway company to recover damages for personal injuries, it appeared that the accident occurred at a point where street cars ran in both directions, and where there were numerous teams and vehicles. ' The evidence for the plaintiff tended to show that he stopped at the corner, looked and saw a ear, and formed the opinion that he could cross the street. When nearly across he was forced back by a team and wagon, and hit by a car which was running at such a high rate of speed that it could not be stopped until eighty-eight feet from the point of the accident. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p> <p>Pleading — Variance between statement of claim and plaintiff’s evidence.</p> <p>The appellate court will not consider a variance between the statement of claim and the plaintiff’s evidence, where no exception to the evidence was taken at the trial, and no assignment of error specifically raises the question.</p> <p>Trial — Charge—Misstatement of evidence.</p> <p>Where the trial judge while endeavoring to present the case fairly for both sides, makes an inaccurate statement as to the testimony, it is the duty of counsel to call his attention to the mistake and give him an opportunity to rectify it.</p>

<p>Attachment execution — Trial of issue — Province of court and jury — Evidence.</p> <p>On the trial of an issue raised in an attachment execution, where the testimony of the garnishee leaves it doubtful whether he had or had not moneys of the defendant in his hands at the date of the service of the writ, the case must be submitted to the jury, and it is error for the court to enter a compulsory nonsuit.</p>

<p>Boroughs — Incorporation—Discretion of quarter sessions.</p> <p>Whether the territory proposed to be incorporated is one village or town, with its properly appurtenant land, is usually one of fact, the determination of which has been by the law delegated to the court of quarter sessions, and, in the absence of an abuse of discretion, the determination of that court is conclusive.</p> <p>Boroughs — Incorporation—Continuance of proceedings.</p> <p>Where a petition for the incorporation of a borough is filed at the June sessions, is before the court on exceptions at the September sessions, is called up for argument at the December sessions, and a decree is entered the following March, the proceedings are regular. The action of the court in calling up the case in each regular session after the filing of the petition is equivalent to the continuance contemplated by the act.</p> <p>If the hearings in proceedings to incorporate boroughs are, upon reasonable grounds, regularly adjourned from time to time by the court, the spirit of the act is complied with, the purpose of legislation being to give all persons interested an opportunity to be heard and to know when hearings are being held.</p>

<p>Appeal, No. 35, April T., 1904, by plaintiff, from order of C. P. Armstrong Co., March T., 1903, No. 80, striking off sheriff’s return in case of Ben Franklin Company, Limited, v. Pennsylvania Water Company.</p> <p>Motion to set aside sheriff’s return.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court below in an opinion by Patton, P. J., made an order striking off the return.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 73, April T., 1904, by defendant, from order of C. P. Armstrong Co., March T., 1903, No. 106, discharging rule to open judgment in case of J. Porter Wilson v. Ella S. J. Fitzgerald. Rule to open judgment. Before Galbreath, P. J., specially presiding. The opinion of the Superior Court states the case. Error assigned was the order of the court.

<p>Appeal, No. 65, April T., 1904, by defendants, from judgment of C. P. Beaver Co.,-June T., 1902, No. 167, on verdict for plaintiff in case of Thomas J. Cox v. Jefferson Wilson et al.</p> <p>Trespass vi et armis. Before Wilson, P. J.</p> <p>Verdict and judgment for plaintiff for $45.00. Defendant appealed.</p> <p>Errors assigned were in the following form :</p> <p>1. The court erred in refusing to grant defendant’s motion for a compulsory nonsuit.</p> <p>2. The court erred in charging the jury that he (Jefferson Wilson), after the purchase was made, “ went on the land and located the road where he wanted it placed, agreeing at the time to build a certain portion of it, if the plaintiff would build the other part, which was not agreed to.”</p> <p>• 3. The court erred in refusing the defendant’s second point, which is' as follows : Second. The plaintiff had no right to use the way over Jefferson Wilson’s land to haul lumber from Mr. Braun’s mill, situate beyond the plaintiff’s own land. Answer : This point is refused as written. If the plaintiff was taking lumber from his own land, and having it sawed into lumber at a mill on his land or some other man’s land, he would have a right to haul it over this road.</p> <p>4. The court erred in refusing defendant’s third point, which is as follows : Third. The plaintiff, Thomas J. Cox, had no right to use the way over this land, except to go to and return from his own land; he had no right to use it and return with a load from a point beyond and across his own farm, which he purchased from Mr. Holmes as shown by deed in evidence. Answer: That is refused for the same reason as given in second point, as it does not contain enough of particularity in the light of the evidence in this case.</p> <p>5. The agreement between Mr. Holmes, and Mr. Wilson being in writing the court erred in instructing the jury as follows: “ So that taking the testimony you must determine under all the testimony in the case whether there was such an agreement on the part of Mr. Holmes as gave the defendant, Jefferson Wilson, the right to locate this private right of way wherever he might see fit, and placed upon Mr. Cox the duty of making an entirely new private way across the land of the defendant — placed such duty upon Mr. Holmes and his successor in title.’’</p> <p>6. The court erred in its answer to plaintiff’s fifth point, which was as follows : Fifth. Oral evidence cannot be used to contradict a written agreement. Answer: The point is affirmed, with the exception that ’where an agreement needs explanation testimony can be introduced explanatory of it, and oral testimony can be introduced where there is an allegation of fraud, accident or mistake, but that is not this case.</p>

<p>Actions — Misjoinder—Parties—Different rights — Executors and administrators.</p> <p>Separate demands, though arising from an entire indivisible contract to different persons, or to the same persons, in different rights, cannot be joined in the same action, without the consent of the parties bound. .</p> <p>An executor cannot in a single proceeding, combine his individual claim for rent as a devisee with a claim in his representative character for rent which had accrued during the lifetime of his devisor.</p>

<p>Appeal, No. 78, April T., 1904, by plaintiff, from judgment of C. P. Mercer Co., Jan. T., 1900, No. 8, on verdict for plaintiff in case of Mary L. Knee v. A. McDowell, executor of I. D. Cole, Deceased.</p> <p>Assumpsit on a check alleged to have been given for services. Before Miller, P. J.</p> <p>The court charged in part as follows :</p> <p>[The defendant further requested that we instruct you as a matter of law that “ there is no sufficient evidence to warrant the jury in finding that the terms of the alleged contract were mutually agreed to by said parties,” This we refused, but' we say to you, gentlemen, that in our opinion you should not -find from the evidence that there was a binding contract entered into between the plaintiff and I. D. Cole at the time the said check was made, whereby I. D. Cole was to remain with the plaintiff during the rest of his life, and that said check was intended by him to cover future services to be rendered by .the plaintiff in boarding, nursing, maintaining and caring for him. This, however, is the opinion of the court, on the evidence, and is not binding instructions to you. If, in your view of all the evidence your opinion is different from that expressed by us, then let your opinion influence your .conclusions on this subject, and disregard the opinion of the court as expressed. That is, while the court may be of the opinion that certain facts are not proven, yet where there is evidence to submit to the jury of such facts, it is the duty of the court to submit it; and while w'e have the right, and in some cases it is our duty, to express an opinion on the evidence, it is at last your province to find the facts. You have the evidence of the witnesses as to when Mr. Cole commenced going to the plaintiff’s house. The deposition of Mrs. Cole, the wife of I. D. Cole, was offered by the plaintiff, and if you believe it, it tends to show that up to about the month of September, 1895, a little over two years before he died, he was not on speaking terms with the plaintiff; that soon after September, 1895, he commenced to visit the plaintiff, occasionally at first, the frequency of his visits increasing as time passed, until, according to the testimony of Mrs. Cole, he spent fully one half of his time at the plaintiff’s.] [21]</p> <p>[If from all the evidence in the case, you find that Mr. Cole and the plaintiff were dealing with each other on the basis of their relationship and of favors mutually exchanged, then we say to you that this would negative any inference of a contract express or implied, and in that event the services which plaintiff rendered in pursuance of such mutual relationship and understanding would not be any consideration to support the check in suit. We say to you further, that in view of the facts in this case, it is incumbent upon the plaintiff to show by fair, full and clear proof that I. D. Cole made the check in suit as his free and intelligent act, that it was fully explained to him, and that he executed it with a thorough understanding of the whole transaction and its' consequences.] [23]</p> <p>[Mr. Cole at the time this check was made, October 26,1897, was eighty-four or eighty-five years of age. The attending physician, who had attended him for twenty-three years, testified that at this time he was a very sick man, that his condition was very bad, that his chances of recovery were very poor. While he was in this condition, if you believe the testimony of Dr. Heilman, the plaintiff had this check made. The person who filled it up ready for the signature of Mr. Cole was not asked to be a witness to its signing. While the plaintiff and Mr. Cole were alone in his bedroom, with no one but they two present, it was signed. It is for you to determine from all the evidence whether or not the making of this check by I. D. Cole was his free and intelligent act; the time of the day that it was signed, the condition of Mr. Cole, the circumstances surrounding it, whether he executed it with a full understanding of the whole transaction. It is incumbent upon the plaintiff to satisfy you affirmatively of these facts. If she has failed to satisfy you by the evidence, she cannot and ought not to recover.] [24]</p> <p>[Our Supreme Court in Darlington’s Estate, 147 Pa. 630, uses this language: Where a paper has been drawn up by a person for his own benefit, or where he takes a considerable benefit under it, the presumption lies strongly against it, and it requires to be proved by satisfactory evidence dehors the instrument, that it was the free and voluntary act of a capable testator, and executed with a full knowledge of its contents and effect. It is almost unnecessary to add that this is a rule of general application to all kinds of instruments, the procurers of which are largely beneficiaries by virtue of their operation.] [25]</p> <p>[We leave it to you, therefore, to say under the instructions we have given you as to the law whether the check was given under the conditions claimed by the plaintiff, for a full consideration, or for a partial consideration, or whether it was given without any consideration whatever. If you find that there was a full consideration for the check, that it was the free, intelligent act of Mr. Cole, that he understood the nature of the transaction he was performing, then your verdict would be for the plaintiff for the full amount of the check and interest from October 26, 1897. If you find there was a failure of consideration for any portion of the check, whether large or small, you will deduct that amount, and for the balance you will find a verdict for the plaintiff with interest from October 26, 1897. If you find there was an entire failure of consideration for the check, that the plaintiff had been paid in full by Mr. Cole for all of the services rendered to him by her, outside of this check, then your verdict should be in favor of the defendant.] [26]</p> <p>[In the view we take of this case, we think it is our duty to express to you our opinion of the evidence. In our opinion, you ought not to find from the evidence that the plaintiff is entitled to a verdict for the full amount of this check, that she did not give full consideration for it; that at the time it was made, October 26, 1897, the decedent was not indebted to the plaintiff in the sum of $5,000. We have arrived at this .opinion for the reason that the total number of months the plaintiff boarded Mr. Cole could not have exceeded in the neighborhood of two years, — the defendant contends only one year; that the uncontradicted evidence is that the value of such services in the neighborhood where plaintiff lived did not exceed $4.00 per week; that Mr. Cole was sick and bedfast for seven weeks, and that services rendered by plaintiff to him during the said period were not worth, under the evidence, to exceed $25.00 per week, and which the plaintiff herself fixes in her first statement of claim at the value of $150, gross; that all the services the plaintiff rendered Mr. Cole, as shown by the evidence, in the opinion of the court, could not exceed the sum of $400 to $600; that Mr. Cole on October 14,1897, paid plaintiff $500.] [27]</p> <p>Verdict and judgment for plaintiff for $1,277.66. Plaintiff appealed.</p> <p>Errors assigned among others were (21, 27) portions of charge as above, quoting it.</p>

<p>Appeal, No. 32, April T., 1904, by plaintiff, from judgñient of C. P. Butler Co., Sept. T., 1902, No. 45, on verdict for defendant in case of Edward Snyder v. Thomas W. Phillips.</p> <p>Assumpsit for rentals under a gas lease. Before Gal-breath, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Hrrors assigned were answers to various points.</p>

Appeal, No. 105, April T., 1904, by defendant from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 67, on verdict for plaintiff in case of Charlotte N. Oliver, Administratrix of M. H. Oliver, Deceased, v. Frank Bredl. Assumpsit for breach of a covenant contained in a lease.