Volume 26 — Pennsylvania Superior Court Reports

<p>Appeal, No. 77, April T., 1904, by defendant, from judgment of O. P. Erie Co., Sept. T., 1901, No. 194, on verdict for plaintiff in case of William Savory v. North East Borough.</p> <p>Trespass by husband for loss of services of wife. Before Walling, P. J.</p> <p>The opinion of the Superior Court states the ease.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were various instructions.</p> <p>Where one with, full knowledge receives profits or benefits, he may be presumed, to have ratified and accepted the conditions by which they are effected: Mundorff v. Wickersham, 63 Pa. 87; Wright v. Burbank, 64 Pa. 247; Kramer v. Dinsmore, 152 Pa. 264; Donoghue v. Consolidated Traction Co., 201 Pa. 181.</p>

<p>Landlord and tenant — Wrongful distress — Hotel—Boarder—Trespass.</p> <p>Where a constable at the instance of the lessor of a hotel breaks into the room of a boarder, and seizes and sells for rent a piano belonging to the boarder, he will be liable in damages to the boarder in an action of trespass.</p> <p>Actions — Parties—Joint tort feasors — Amendment.</p> <p>Where an action is brought against a landlord and a constable for a wrongful distress, and the course of the trial and the evidence shows that the plaintiff was seeking to recover a verdict against the constable only, the appellate court may permit the statement to be amended by striking out the name of the landlord.</p>

<p>Appeal, No. 53, April T., 1904, by plaintiff, from judgment of C. P. Crawford Co., May T., 1900, No. 52, on verdict for defendant in case of W. A. Cutter et al., trading as George H. Cutter & Brother v. Eliza J. Pierson, Owner, and W. I. Adsit, Contractor.</p> <p>Scire facias sur mechanic’s lien. Before Thomas, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>After the jury had retired they returned and one of the jurymen asked the court this question:</p> <p>Juror: Has the contractor a right to order material before the contract is signed without her permission ?</p> <p>The Court: No, sir. If he did, he did it at his own risk, and the people who furnished it in pursuance of his unauthorized beginning on his own part would not thereby acquire the right of a lien unless she ratified it. The law provides that unless she authorized the contractor to begin before the signing of the' contract, that contract will be good, containing the stipulation against liens, unless she authorized him so to do. If she authorized him to begin, the stipulation against liens would not be binding; if he begun on his own responsibility it would not bind her.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were to various rulings on evidence, to various instructions, and to the answer to the juror’s question as above.</p> <p>A stipulation against liens which is filed within the period of ten days will not avail the owner when it appears the date of the execution of the stipulation is subsequent to the date of the original contract: Bushee v. Watres, 10 Kulp, 554.</p> <p>It is the duty of a plaintiff to see that his judgment is rightly entered: Wood v. Reynolds, 7 W. & S. 406.</p> <p>And likewise the duty of the owner to see that the contract is properly recorded: Gordon v. Fulmer, 21 Pa. O. C. R. 93.</p>

Appeal, No. 146, April T., 1904, by defendant, from judgment of C. P. Crawford Co., May T., 1902, No. 75, on verdict for plaintiff in case of Edward A. Scowden v. Erie Railroad Company. Trespass to recover damages for the killing of horses. Before Thomas, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for 1254.59. Defendant appealed. JError assigned was in not giving binding instructions for defendant.

<p>Appeal, No. , April T., 1904, by Rouseville Real Estate Company, from order of Q. S. Yenango Co., dismissing exceptions to report of viewers in the matter of Petition for Public Road in Cornplanter Township.</p> <p>Petition for public road in Cornplanter township.</p> <p>The following exceptions were hied to the report of the viewers.</p> <p>1. The terminus, in the Cherry Run road, of the road prayed for as set forth in the petition, is uncertain.</p> <p>2. The report does not show that the terminus in the Cherry-Run road, fixed by the viewers, is the same as that prayed for in the petition. .</p> <p>3. The road is unnecessary for the accommodation of the public.</p> <p>4. The expense of opening, constructing and maintaining said road would be a heavy and useless burden upon the taxpayers of the borough of Rouseville.</p> <p>5. No written notice was given by the parties making application for the road to the supervisors of the territory through which such road is designed to be laid out, of the time and place of the view, and no copy of such written notice, duly attested, has been filed among the records of this court.</p> <p>6. The road laid out by the viewers passes through the lands of this exceptant, appropriating a large part thereof, and greatly impairing the value of said lands; exceptant is therefore entitled to an award of substantial damages therefor; no damages were awarded to exceptant by said viewers, no release of said damages were asked for or obtained by said viewers, and said report does not show that any endeavor to obtain such release was made by said viewers.</p> <p>7. At the time fixed for the view the viewers were entertained at dinner by petitioners for said road.</p> <p>8. The viewers allowed petitioners for the road to present arguments in favor of the opening thereof in the absence of parties objecting thereto.</p> <p>9. That before the view one of the viewers stated that he was in favor of the opening of the road.</p> <p>On the seventh exception the court, by Ckiswell, P. J., filed the following opinion :</p> <p>The 19th day of August, 1902, was fixed as the time for the meeting of the viewers. On that date Beatty and Reed, two of the viewers, were present on the premises, but the third viewer, Kennerdell, the artist, was absent. The two viewers present then adjourned until August 21,1902, at 9 o’clock A. M. On this first date the two viewers present passed over the route of the proposed road, and had dinner at the home of Mr. Peter Bankson, one of the petitioners for the road. Whether the meal was furnished at the instance of the viewers or they were invited by Mr. Bankson to partake of it does not appear. Mr, Bankson says that he does not remember, but that it is likely that he invited them. At the meeting on the 21st of August those interested were heard at length at the Rouseville end of the proposed road and then the viewers and a number of interested citizens passed over the route. When about half the distance along the way, Mr. Kennerdell, the artist, observing that it was near noon, inquired of Mr. Berry as to where dinner could be secured, remarking that he did not want to walk all the way back to Rouseville. He was informed that he could probably get dinner at Mr. Bankson’s. When at Mr. Bankson’s barn the question as to dinner again arose, when Mr. Bankson informed all present, the viewers and those interested for and against the road, that they could have dinner at his house. A number, including the three viewers, took dinner, the viewers paying twenty-five cents each for theirs, Mr. Bankson charging them (at the previous suggestion of Mr. Breene, representing the petitioners) in order to avoid any charge of improper conduct. After the view had been completed and the parties returned to Rouseville, two of the viewers took a drink at the bar of the hotel with other persons present. By whom the drinks were paid for does not appear.</p> <p>We further find from the evidence that nothing was said by Mr. Bankson to the viewers or any of them in reference to the proposed road in connection with the furnishing of the entertainment referred to elsewhere except at Rouseville, where all parties interested were present, before starting over the route of the proposed road, and that any entertainment furnished by Mr. Bankson to the viewers was wholly in the line of neighborly hospitality without any significance or sinister motive or purposes to influence the viewers in their action in the premises and that it must necessarily have been so regarded by the viewers.</p> <p>In view of these facts and upon the authority of Plymouth Township Road, 5 Rawle, 150, and Drumore Township Road, 7 Atl. Repr. 198, the only two cases coming to our knowledge in which expi’ession has been given upon the question by our appellate courts, we conclude that the seventh exception is without merit and should be dismissed.</p> <p>And now, March 31, 1904, after argument and due consideration it is ordered that the exceptions filed to the report of the viewers by the Rouseville Real Estate Company and by the borough of Rouseville be, and the same are hereby dismissed and the said report is confirmed absolutely.</p> <p>Errors assigned were in dismissing exceptions to report of viewers.</p> <p>The indefiniteness of the termini in the petition cannot be helped by the report of viewers: Crescent Twp. Road, 18 Pa. Superior Ct. 160 ; Montgomery Twp. Road, 15 Pa. C. C. Rep. 384.</p> <p>If there is an illegality in the opening of a public road and it is brought to the notice of the appellate court, even by one who has no equity, the error will be corrected: Appleby Manor Road, 1 Grant, 443.</p> <p>The notice should 'be served on all the supervisors of the territory: Road in Rush Twp., 10 Pa. Dist. Rep. 650 ; Char-tiers Twp. Road, 47 P. L. J. 268; Frankford Twp. Road, 11 Pa. Dist. Rep. 78; Curtin, etc., Twp. Road, 23 Pa. C. C. Rep. 328:</p> <p>The facts found by the learned judge fully affirm the truth of our seventh exception: Ross Twp. Road, 4 Kulp, 67; Bloomsburg Twp. Road, 11 Pa. Dist. Rep. 93; Road in Butler Twp., 6 Kulp, 443; Road in Sugar Loaf Twp., 6 Kulp, 469; Fairmount Park Case, 6 Phila. 285; Eldred Twp. Road, 24 Pa. C. C. Rep. 321 ; Lylcens Twp. Road, 19 Pa. C. C. Rep. •145.</p> <p>• A report of viewers will be set aside where they have made no attempt to procure releases of damages: North Union Twp. Road, 150 Pa. 512; York Twp. Road, 11 Pa. Dist. Rep. 706; East Hempfield Twp. Road, 20 Lane. L. Rev. 134; Union Twp. Road, 17 Pa. C. C. Rep. 39; Plum Twp. Road, 8 P. L. J. 41.</p> <p>The termini were sufficiently designated: McConnell’s Mill Road, 32 Pa. 285; Springfield Road, 73 Pa. 127; In re Road in South Abington Twp., 109 Pa. 118 ; Melon St., 182 Pa. 397.</p> <p>The time and manner of service may be waived by appearance : Road from App’s Tavern, 17 S. & R. 388; Rodgers v. Freemansburg Boro., 2 Pa. O. C. Rep. 518; Clinton Twp. Road, 3 Pa. C. C. Rep. 170; Road in Upper St. Clair Twp., 20 W. N. C. 369 ; Road in North Hopewell Twp., 5 Del. 85 ; Road in Dover Twp., 5 York Legal Record, 4 ; 1 Dillon on Munc. Corps. (4th ed.) p. 539; Phila. v. Hays, 93 Pa. 72; In re Amberson Ave., 179 Pa. 634; East Franklin Twp. Road, 8 Pa. C. C. Rep. 590; Road in Plymouth Twp., 5 Rawle, 150.</p> <p>The entertainment of the viewers by the petitioners or other parties interested in procuring the result reported before the conclusion of the viewers has been reached will not be cause for setting aside their report unless the quarter sessions find that the entertainment was under circumstances evincing no sinister purpose unduly to influence the viewers. If that court so find, and has no rule prohibiting such entertainment, the Supreme Court will sustain its refusal to set aside the report: Trickett’s Pa. Road Law, p. 63 ; In re Road in Drumore Twp., 3 Lancaster, 222.</p> <p>A statement in the viewer’s report that “We were unable to procure releases from the persons over whose premises the proposed road is to pass,” will be interpreted to imply that they endeavored to procure releases: Trickett on Pa. Road Law, p. 202.</p>

Appeal, No. 154, April T., 1904, by Rouseville Borough, from order of Q. S. Venango Co., dismissing exceptions to report of viewers in the matter of Public Road in Cornplanter Township. Petition for public road in Cornplanter township. Among the exceptions filed to the report were the following: 6. That no notice of an intention to present the petition or of the time and place of the view was served on the borough of Rouseville. 7.

<p>Appeals, Nos. 88 and 89, April T., 1904, by defendant, from judgment of C. P. Warren Co., June T., 1903, No. 40, on verdict for plaintiff in case of A. Clark Fellers and Mena Fellers, by her father and next friend, A. Clark Fellers, v. Warren Street Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Lindsey, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for A. Clark Fellers for $275, and for Mena Fellers for $600. Defendant appealed.</p> <p>W. E. Rice, with him W. D. Hinckley and J. H. Alexander, for appellant, cited : Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Philadelphia Traction Co., 150 Pa. 187; Omslaer v. Traction Co., 168 Pa. 519; Burke v. Traction Co., 198 Pa. 497; McCracken v. Traction Co., 201 Pa. 878; Pieper v. Traction Co., 202 Pa. 100 ; Keenan v. Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481; Trout v. Electric Ry. Co., 13 Pa. Superior Ct. 17 ; McPhillips v. Traction Co., 19 Pa. Superior Ct. 223 ; Potter v. Scranton Ry. Co., 19 Pa. Superior Ct. 444.</p>

Appeal, No. 3, April T., 1904, by Thomas Shearer, from order of Q. S. Allegheny Co., March T., 1904, No. 836, refusing a liquor license, In re Application of Thomas Shearer. Application for a retail liquor license. From the record it appeared that a remonstrance was filed against the application, and that many of the names signed to the remonstrance were duplicated. The court refused the license. Error assigned was the order of the court.

<p>Appeal, No. 54, April T., 1904, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1902, No. 383, refusing to take off nonsuit in case of Barnes Brothers Company v. Pittsburg Railway Company.</p> <p>Trespass to recover damages for the loss of a horse and wagon. Before Collier, J.</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>cited: Ehrisman v. Ry. Co., 150 Pa. 180; Penna. R. R. Co. v. Werner, 89 Pa. 59; ■ Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Kestner v. Traction Co., 158 Pa. 422; Jensen v. St. Ry. Co., 24 Pa. Superior Ct. 4.</p> <p>cited : Gilmore v. Ry. Co., 153 Pa. 31.</p>

<p>Appeal, No. 93, April T., 1904, by plaintiff, from judgment of O. P. Fayette Co., June T., 1903, No. 28, on verdict for plaintiff in case of Pennsylvania Mining Company v. Naomi Coal Company.</p> <p>Appeal from jury of view. Before Umbel, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court refused binding instructions against the necessity of the road.</p> <p>Yerdict and judgment for plaintiff for $1,440.16. Defendant appealed.</p> <p>Error assigned was in refusing instructions for plaintiff against the necessity of the road.</p>

<p>Taxation — Real estate — Personal property.</p> <p>A stationary sawmill, in which boilers are set in masonry, erected upon lands belonging to another, held by the owners of the mill under a lease and as to which the owners of the mill had “ the right to remove at any time prior to April 1, 1906, any buildings erected by you (them) on said mill site and lumber yard,” is liable to taxation as real estate for county and township purposes.</p>

<p>Appeal, No. 32, Jan. T., 1904, by defendant, from decree of C. P, Luzerne Co., Dec. T., 1901, No. 4, dismissing exceptions to master’s report in case of Mary A. Monroe v. Robert C. Monroe.</p> <p>Bill in equity for partition.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to master’s report.</p> <p>—The proceedings in partition should have been stayed, pending the outcome of the bill in equity, and the suit on the bond : Cowan’s Est., 184 Pa. 839; Dresher v. Water Co., 52 Pa. 225.</p> <p>Where a decedent’s realty is sold in partition and the sale is confirmed within two years from the decedent’s death, the land is sold subject to the lien of the decedent’s debts : Brick-er’s Estate, 22 Pa. Superior Ct. 12.</p> <p>The master should have ordered a complete search for liens and advertised the distribution of the fund : Newell v. Clark, 15 W. N. C. 157; Reess v. Pye, 15 Pkila. 16; Beynon’s Est., 31 Pitts. L. J. (N. S.) 381; Dresher v. Water Co., 52 Pa. 225.</p> <p>The securit}'- for the payment of the purchase money or owelty should have been required : Honnett v. Thompson, 20 P. L. J. (N. S.) 108; Palethorp v. Palethorp, 198 Pa. 395'; Christy’s App., 110 Pa. 538; Davis v. Norris, 8 Pa. 122; Com. v. Royer, 161 Pa. 351; Seaton v. Barry, 4 W. & S. 183 ; Com. v. Haffey, 6 Pa. 348; Stewart v. Miller, 4 W. N. C. 552; Klohs v. Reifsnyder, 61 Pa. 240-242; Klinger v. Seiwell, 6 Kulp, 329-332.</p> <p>cited : Gregg’s App., 20 Pa. 148; Church’s App., 13 Atl. Repr. 756.</p>

<p>Appeal, No. 33, Jan. T., 1904, by plaintiff, from decree of C. P. Luzerne Co., May T., 1902, No. 10, dismissing bill in equity in ease of H. H. Monroe v. Mary A. Monroe.</p> <p>Bill in equity for an injunction to restrain partition proceedings. .</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree of the court.</p>

Appeal, No. 109, April T., 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., J an. T., 1902, No. 289, on verdict for plaintiff in case of James Reid v. United Traction Company. Trespass to recover damages for personal injuries. Before Frazer, P. J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed.

<p>Appeals — Appeals for delay — Failure to prosecute — Act of May 19,1897.</p> <p>Where an appeal is non prossed and it is made to appear to the court that no action was taken by the appellant after the appeal was taken out, and that no paper-book was served upon the appellee, the court will impose the penalty provided by the Act of May 19, 1897, P. L. 67.</p>

<p>Appeal, No. 203, Oct. T., 1908, by plaintiff, from order of C. P. Bradford Co., May T., 1901, No. 430, dismissing exceptions to auditor’s report in case of Mary L. Sleeper to use of Nancy E. Leonard v. Elizabeth Hickey and James Hickey.</p> <p>Exceptions to report of William Maxwell, Esq.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p> <p>It is not within the power of one heir alone to relieve a creditor from the commencement and prosecution of an action to continue a lien against the ancestor’s estate, by simply consenting to the' revival of an alleged judgment, which was a nullity, when she has become the owner of the entire estate: Kerper v. Hoch, 1 Watts, 9 ; Duncan v. Clark, 7 Watts, 217 ; Penn v. Hamilton, 2 Watts, 53 ; Hemphill v. Carpenter, 6 Watts, 22: Greenough v. Patton, 7 Watts, 336; Seitzinger v. Fisher, 1 W. & S. 293; Bailey v. Bowman, 6 W. & S. 118 ; Maus v. Hummel, 11 Pa. 228 ; Smith v. Wildman, 178 Pa. 245; Pry’s Appeal, 8 Watts, 253; Bredin v. Agnew, 8 Pa. 233; Keenan v. Gibson, 9 Pa. 249; Schwartz’ Estate, 14 Pa. 42; Corrigan’s Estate, 82 Pa. 495; Hope v. Marshall, 96 Pa. 395; Colwell v. Rockwell, 100 Pa. 133; Phillips v. Allegheny Valley Railroad Co., 107 Pa. 472.</p> <p>A judgment cannot properly be entered after the death of the debtor, and if entered will be stricken off upon the fact of death being made to appear: Leiper v. Levis, 15 S. & R. 108; Lanning v. Pawson, 38 Pa. 480; Tobias v. Dorsey, 2 W. N. C. 15; 'Gordon v. Bartley, 4 W. N. C. 37; Moore v. Palmer, 1 Delaware County Rep. 57; Com. v. Joyce, 18 Pa. C. C. R. 193; Stevenson v. Yirtue, 21 Pa. C. C. R. 229, affirmed on appeal in 13 Pa. Superior Ct. 103.</p> <p>-Elizabeth Hicke}', who owned the entire title to this farm at the time of these amicable revivals, should have a right to amicably revive a valid lien against her property, without being compelled to suffer the expense of an adverse proceeding to accomplish the same purpose; especially so when it was not to the prejudice, but to the benefit of the mortgagee in this case : Speer v. Sample, 4 Watts, 367; Lyon v. Cleveland, 170 Pa. 611; Drexel’s App., 6 Pa. 272; Buehler v. Buffington, 43 Pa. 278; Hazelett v. Ford, 10 Watts, 101; Warder v. Tainter, 4 Watts, 270 ; Stevenson v. Yirtue, 13 Pa. Superior Ct. 103 ; Yaple v. Titus, 41 Pa. 195; Carr v. Townsend, 63 Pa. 202; Lowber & Wilmer’s Appeal, 8 W. & S. 387 ; Woods v. Irwin, 141 Pa. 278 ; Sherrard’s Exrs. v. Johnston, 193 Pa. 166.</p> <p>A judgment cannot be inquired into collaterally in a question of distribution, but if a party will attack it he must have the proceedings suspended until he can test its validity : Williams’s Appeal; Moore’s Est., 47 Pa. 307 ; Levan et al. v. Millholland, 114 Pa. 49; Baird v. Ford, 152 Pa. 641; Meason’s Estate, 4 Watts, 341; Kostenbader v. Kuebler, 199 Pa. 246.</p>

<p>Appeal, No. 110, April T., 1904, by plaintiff, from order of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 113, affirming judgment of justice of the peace in case of John Beltz v. City of Pittsburg.</p> <p>Appeal from justice of the peace.</p> <p>The material portions of the justice’s transcript were as follows :</p> <p>“ A.nd now September 16, 1903, at 3 o’clock P. M. parties appear. Issac Carver, chief plumbing inspector, sworn and claims that defendant violated an act of assembly approved June 7, 1901, while erecting four new houses, No. 7010 Kedron street, city of Pittsburg, by failing to put in proper material, etc., as required by said act of assembly, also failing to obtain the proper permit from the department of public safety of said city. James H. Deer, plumbing inspector, sworn for the plaintiff and proof made of the defendant being notified to comply with the said act of assembly. Whereupon after hearing the evidence the defendant was adjudged guilty, and was fined ten dollars and cost of suit. And now September 16,</p> <p>1904, certiorari, and now September 16, 1903, fine and costs paid.”</p> <p>The court affirmed the judgment of tire justice of the peace.</p> <p>Error assigned was in affirming the judgment of the justice of the peace.</p> <p>The underlying principle of all the cases is that classification with the view of legislating for either class separately is essentially unconstitutional, unless a necessity therefor exists; a necessity springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class separately that would be useless and detrimental to the others: Ayars’s Appeal, 122 Pa. 266 ; Com. v. Gilligan, 195-Pa. 504; Weinman v. Pass. Ry. Co., 118 Pa. 192.,</p> <p>Conceding that legislation for the preservation of the public health nray be necessary, and that legislation may be wholly inapplicable to the country while entirely suited to the needs of cities, it surely cannot be contended that as between cities of the first and second classes it is necessary to define how and of what material buildings shall be erected, or what degree of technical knowledge and skill mechanics must possess, and that cities of the third class can adopt a go-as-you-please system.</p> <p>The act now before the court undoubtedly relates to persons and things of a class and not to particular persons and things as a class and so falls under constitutional condemnation. It relates, not to plumbers as a class, but to those only who may wish to engage in the business or work of plumbing in cities of the second class. It relates, not to plumbing and house draining generally, nor to the general construction of houses, but is confined to cities of the second class, thereby perpetually excluding from its operation cities of the first class, and is restricted to a particular occupation, a single class of mechanics.</p> <p>The act óf 1901 is constitutional: Wheeler v. Philedelpliia, 77 Pa. 338 ; Slienk v. Pittsfield Club, 11 Pa. Superior Ct. 84; Weinman v. Pass. Ry. Co., 118 Pa. 192.</p>

<p>Evidence — Competency of witness — Party dead — Interest of witness — Discharge in bankruptcy.</p> <p>In an action by the executors of the payee of a judgment promissory note against the maker, the guarantor of the note is not a competent witness to prove payment of the note in the lifetime of the holder ; and this is the case although the guarantor may have been discharged in bankruptcy after he made the guaranty.</p>

<p>Burial of the dead — Public burying ground — Suicide.</p> <p>Where the general public has acquired the right to use land as a burying ground, individuals cannot by staking off portions of the land into lots acquire any exclusive title therein ; nor can a neighboring church acquire any title to or control over the land, merely because numerous members of the church took part in improving the grounds from time to time. As long as any portion of the ground is unoccupied by graves, the community at large has the same interest in the land as those claiming to be owners of lots.</p> <p>There is nothing in the law of Pennsylvania which prevents the body of a murderer and suicide from being buried in a public burial ground.</p> <p>A decent burial is the right of every one. It is a right springing from the necessity of the case and is recognized in all well ordered communities. Considerations of propriety and public health require that the dead be decently disposed of. This does not imply the right to Christian burial with the services of a religious organization but to an orderly interment in some suitable place. Per Henderson, J.</p> <p>Burial of the dead — Right to control burial — Next of kin — Sister.</p> <p>Where a deceased person did not in his lifetime live with his wife, and no executor or administrator has been appointed over his estate, a sister of the deceased has the right to direct and control the burial of his dead body.</p>

Appeal, No. 19, Feb. T., 1904, by-defendant, from judgment of C. P. Tioga Co., April T., 1902, No. 98, on verdict for plaintiff in case of M. S. Field v. George J. Schuster. Assumpsit for goods sold and delivered.

Appeal, No. 102, April T., 1901, by plaintiff, from order of Q. S. Allegheny Co., Jan. T., 1904, quashing indictment in case of Commonwealth v. Frank Schulte. Indictment for violating the mining laws as to the employment of minors. Before Sharer, J. The case turned on the constitutionality of the Act of May 13, 1903, P. L. 359. The court held the act unconstitutional, and quashed the indictment. Error assigned was in quashing the indictment.

Appeal, No. 132, April T., 1904, by plaintiff, from order of C. P. No.'2, Allegheny Co., April T., 1901, No. 462, refusing to take off nonsuit in case of W. J. Gilmore and Joseph C. Heckman, trading as the Pittsburg Iron Paint Company v. The United Traction Company. Trespass for injuries to a team of horses and a wagon and harness. The facts relating to the accident are stated in the opinion of the Superior Court.

<p>Corporations — •Extension of corporate privileges — Strict construction.</p> <p>Acts extending corporate privileges are to be construed most strongly against the company setting them up, and whatever is not unequivocally granted must be taken to be withheld. The power must be given in plain words, or by necessary implication. All powers not given in this direct and unmistakable manner are withheld.</p> <p>Eminent domain — Corporations—State Normal School — School law.</p> <p>The Act of July 10, 1901, P. L. 632, gives no authority to a state normal school to condemn a public street opened on its own land, and over which the public have had passage for over twenty-one years.</p> <p>A public street is a public franchise, and is not such property as a corporation may take for its own use under the general power of eminent domain. It is a franchise which cannot be violated, except by express legislative authority.</p>

Appeal, No. 81, April T., 1904, by defendant, from order of C. P-. Washington Co., May T., 1902, D. S. B., No. Ill, discharging rule to open judgment in ease of W. A. Work to use of Crouch Brothers v. Lyda M. Prall and H. L. Prall. Rule to open judgment. The facts appear by the opinion of the Superior Court. Error assigned was the order of the court. This is certainly not the kind of a note that was intended to be made negotiable under provision 2, sec. 5 of the act of 1901.

<p>Appeal, No. 82, April T., 1904, by defendants, from order of C. P. Washington Co., May T., 1902, No. 112, discharging rule to open judgment in case of J. L. Richardson to use of Crouch Brothers v. Lyda M. Prall and H. L. Prall.</p>

<p>Appeal, No. 36, April T.,- 1904, by defendant, from order of C. P. Cambria Co., Dec. T., 1902, No. 54, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Cambria County v. Joseph A. Gray. Before Rice, P. J.,</p> <p>Scire facias sur recognizance.</p> <p>An affidavit of defense was filed which averred that the recognizance was invalid because it was taken by one purporting to -be a deputy clerk of the court of quarter sessions in the Ebensburg jail, and not in open court or in the presence of the clerk thereof, in vacation, and without legal authority on the part of the deputy to take the same.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned ivas the order of the court.'</p> <p>The power to admit to bail and take recognizance being entirely a statutory regulation and a judicial act, our contention is that no other person than the officer or persons enumerated in the act can discharge the duty and perform an act valid and binding in law.</p> <p>Parol testimony cannot be given to vary or contradict a record: Brooks v. Mayor, etc., 32 N. Y. St. Repr. 559 (10 N. Y. Supp. 773) ; Hard v. Shipman, 6 Barb. (N. Y.) 621; Mitchell v. Insley, 33 Kansas, 654 (7 Pac. Repr. 201) ; Adams v. Betz, 1 Watts, 425.</p>

Appeal, No. 140, April T., 1904, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1902, No. 317, on verdict for plaintiff in case of Elder Township School District v. Pennsylvania Railroad Company. Trespass to recover damages for destruction of a schoolhouse by a fire alleged to have been started by sparks of a locomotive. The facts are stated in the opinion of the Superior Court. The court refused binding instructions for defendant.

Appeal, No. 39, April T., 1904, by defendant, from decree of C. P. June T., 1902, No. 6, on bill in equity in case of Thompson C. Obney v. Santford Obney et al. Bill in equity for the cancellation of an assignment of an interest in a mortgage. Wilson, P. J., found the facts to be as follows: FINDINGS OF FACT. 1.

Appeal, No. 38, April T., 1904, by defendants, from decree of C. P. Beaver,Co., June T., 1902, No. 5, on bill in equity in case of William Obney v. Santford Obney et al. Bill in equity to cancel the assignment of an interest in a mortgage. The facts appear by the report of Obney v. Obney (No. 1), ante, p. 116, and by the opinion of the Superior Court. Error assigned was the decree of the court ordering cancelation of the assignment.

<p>Evidence — Discharge of soldier — Physical characteristics.</p> <p>A certificate of a discharge of a soldier from the United States Army containing a description of his physical characteristics is inadmissible in evidence to show the height of the soldier. The introduction of such a document in a murder trial is injurious to the prisoner,where the effect of it is to rebut evidence offered by the prisoner that the deceased, his adversary, was of greater height and strength than himself.</p> <p>Criminal law — Murder—Arrest—Self-defense—Policeman.</p> <p>It is not the duty of an officer when not exceeding his authority to fly when assaulted. He may defend himself and use such force as may be necessary for that purpose. He is not justified in taking life except when the assault is so violent as apparently to put him in danger of death, or great bodily harm ; but the law does not require him to flee to the wall.</p> <p>On the trial of a borough policeman for murder, it appeared that the defendant finding the deceased and a companion after midnight in the streets sitting on doorsteps other than their own, told them to go home. The deceased became violently abusive, and defendant then threatened to arrest him. An arrest under the circumstances would have apparently been unauthorized. The prisoner testified that he did not attempt to arrest the deceased, but. turned away to secure assistance and thereupon the deceased knocked him down three times, and stood over him saying he was going to kill him if it was the last act of his life, and that then the defendant fired the shot. Held, that it was error for the court to charge the jury in such a way as to leave the impression on their minds that the defendant had arrested, or was attempting to arrest the deceased, and that the latter’s attitude was one of resistance to an unlawful arrest.</p>

Appeal, No. 91, April T., 1904, by defezidant, from judgment of C. P. Erie Co., Nov. T., 1900, No. 148, on verdict for plaintiff in case of W. E. Farrell v. A. D. Young. Assumpsit to recover profits on sale of eighteen road machines. Before Thomas, P. J. At the trial it appeared that plaintiff and defendant had been partners.

<p>Appeal, No. 71, Jan. T., 1904, by plaintiff, from decree of C. P. Luzerne Co., March T., 1901, No. 1, on interpleader bill, in case of Louise E. Dorr et al. v. H. C. Reynolds et al.</p> <p>Interpleader bill to determine the ownership of royalties under a coal lease.</p> <p>From the record it appeared that Erastus Smith died on July 27,1877, leaving to survive him a widow, Arminda Smith, who subsequently married C. M. Neeld. He also left children. Mrs. Neeld died in 1902, leaving a will appointing the defendants executors. At the time of his death, Erastus Smith was the lessor in a coal lease made on January 1, 1868. By agreement of the parties the First National Bank of Wilkes-Barre collected the royalties. Under the will of Erastus Smith the widow was entitled to such part of his “ estate” as she would have been entitled to under the intestate laws of Pennsylvania. After the death of the widow, her executors demanded one third of the royalties from the First National Bank. The same funds were also claimed by the heirs and devisees of Erastus Smith. The court held that the royalties were personalty, and as such one third of them went to the widow absolutely. The terms of the lease are summarized in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p> <p>cited: Genet v. D. & H. Canal Co., 136 N. Y. 593 (32 N. E. Repr. 1078) ; Coleman v. Chadwick, 80 Pa. 81; Carlin v. Chappel, 101 Pa. 348 ; McClintock’s App., 71 Pa. 365; Drenkle’s Est., 3 Pa. 377; Auer v. Penn., 99 Pa. 370; Denniston v. Haddock, 200 Pa. 426; Foster & Co. v. Runk, 109 Pa. 291.</p> <p>cited: Hosack v. Crill, 18 Pa. Superior Ct. 90; Sanderson v. Scranton, 105 Pa. 469; Denniston v. Haddock, 200 Pa. 426; R. R. Co. v. Sanderson, 109 Pa. 583; Scranton v. Phillips, 94 Pa. 15; Myers v. Kingston Coal Co., 126 Pa. 582; Lazarus’s Estate, 145 Pa. 1; Fairchild v. Fairchild, 7 Cent. Repr. 873; Caldwell v. Fulton, 31 Pa. 475; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613 ; Lillibridge v. Lack. Coal Co., 143 Pa. 293.</p>

<p>Principal and agent — Broker—Insurance broker.</p> <p>Where an insurance broker is employed by a person who had no dealings with him before, to secure a policy of insurance on a particular property, the broker is the special agent of his employer, and cannot bind the latter by departing from the strict instructions given. Thus where an insurance broker is given authority to procure a policy for a certain stipulated amount at a stipulated rate, the party so employing him is not liable to the insurance company for a policy taken out for an entirely different amount, and at a cost several times as great as that which the broker was authorized to incur.</p>

<p>Appeal, No. 102, Oct. T., 1902, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1901, No. 2891, overruling demurrer to statement in case of Commonwealth v. Real Estate Trust Company.</p> <p>Assumpsit to recover a license tax.</p> <p>Plaintiff brought suit in assumpsit against defendant to recover $73.70 for a license tax assessed by the appraisers of mercantile taxes against defendant as a real estate broker in the city and county of Philadelphia during the year 1901, averring in the statement of claim that defendant’s sales amounted to $2,300 for the year 1901 upon which the tax was three per cent, or $69.00, the fee to the city $1.25 and the penalty $3.45. In response to defendant’s rule for a more specific statement of claim, plaintiff further averred that defendant was liable to the payment of such tax by virtue of the acts of Pennsylvania of May 27, 1841, as subsequently amended by the acts of April 10, 1849, May 15,1850, and the act of May 2, 1899.</p> <p>Defendant demurred to plaintiff’s statement, assigning as reasons for demurrer : (1) That the acts of assembly of May 27, 1841, April 10, 1849, May 15,1850, and May 2, 1899, did not authorize the assessment of such tax against defendant; (2) that there was no act of assembly or other authority authorizing the assessment of such tax ; (3) that the defendant was not a real estate broker within the meaning of said acts of assembly.</p> <p>The court overruled defendant’s demurrer and entered judgment for plaintiff, under which damages were assessed at $77.15.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Practice, C. P. — Statement—Amendment—Appeal from justice of the peace.</p> <p>Where on an appeal from a judgment of a justice of the peace it appears that although the action was in trespass, the statement was ambiguous as to whether the action was on a contract or in tort, and the defendant pleaded non assumpsit and proceeded to trial on the merits, the appellate court will permit the statement to be amended, or if there is a reversal on other grounds, will permit an amended statement to be filed in the court below.</p> <p>Principal and agent — Scope of authority — Evidence.</p> <p>"Where on the trial of an action it appears that the authority of an agent to act for the plaintiff is a question material to the issue, and the court permits the jury to pass upon the question of the existence of such authority, it is error for the court to refuse to permit the defendant to examine the agent as to the instructions which he had received from the plaintiff.</p>

<p>Appeal, No. 10, Oct. T., 1903, by defendant, from decree of C. P. Chester Co., No. 396, in equity, awarding injunction in case of Pennsylvania Railroad Company v. Parkesburg & Coatesville Street Railway Company. Before Rice, P. J.,</p> <p>Bill in equity for an injunction. Before Butler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree awarding an injunction.</p> <p>The application for redress by injunction must establish a clear case of irreparable injury, likely to ensue from the continuance of the acts: Sparhawk v. Union Pass. Ry. Co., 54 Pa. 401; Cumberland Valley R. R. Co.’s App., 62 Pa. 218.</p> <p>In respect to a mere crossing, a railroad company is not an abutting landowner to a passenger railway: Penna. R. R. Co. v. Greensburg, etc., Street Railway Co., 176 Pa. 559.</p> <p>The Act of June 19, 1871, P. L. 1360, cannot be invoked by a railroad company in a proceeding by it to enjoin the construction of a street railway company along a public road which crosses its tracks and upon which land owned by it abuts, as none of the rights or franchises of the railroad company are injured or invaded: North Penna. R. R. Co. v. Inland Traction Co., 205 Pa. 579.</p> <p>A corporation authorized to build a street railway has no right to enter upon the construction of its railway, or any part of it, until it has duly obtained the necessary local consent of all the municipalities through which its railway is to pass, as well as the consent of all the owners of land abutting on the public road where its railway is proposed to be located: Penna. It. R. Co. v. Montgomery Co. Pass. Ry. Co., 167 Pa. 62 ; Rahn Twp. v. Tamaqua, etc., Street Ry. Co., 167 Pa. 84; Penna. R. R. Co. v. Electric Ry. Co., 179 Pa. 584; Hannum v. Electric Ry. Co., 200 Pa. 44.</p> <p>The Parkesburg & Coatesville Street Railway Company, respondent, having attempted to build its railway without any legal authority to do so, is a trespasser, and the Pennsylvania Railroad Company, complainant, has such a standing in equity as to entitle it to an injunction to restrain an unauthorized and unlawful occupation by the respondent of a bridge erected and maintained by it: Thomas v. Inter-County St. Ry. Co., 167 Pa. 120; Penna. R. R. Co. v. Turtle Creek Valley Electric Ry. Co., 179 Pa. '584; Wheeler v. Penna. R. R. Co., 194 Pa. 589; Northern Central Ry. Co. v. Electric Ry. Co., 177 Pa. 142 ; Larimer, etc., St. Ry. Co. v. Ry. Co., 137 Pa. 533; Penna. Schuylkill Val. R. R. Co. v. Reading Paper Mills, 149 Pa. 18.</p> <p>The Parkesburg & Coatesville Street Railway Company, respondent, in this case, without any show of authority, sought to invade the legal rights of the Pennsylvania Railroad Company, complainant, and, under such state of facts, it is not necessary to prove that irreparable injury has been sustained to entitle the complainant to redress by injunction: Com. v. Pitts-burg, etc., R. R. Co., 24 Pa. 159; Penna. R. R. Co.’s App., 115 Pa. 514; Groff’s App., 128 Pa. 621.</p>

<p>Road law — Dedication—Recording of deeds — Notice.</p> <p>Where an owner of land sells lots on instalments reserving title to himself until the last instalment is paid, and after such instalments are paid, but before deeds are executed to the purchasers, he executes an absolute deed of dedication to the public of a street on which the lots abut, and indemnifies the city against all damages caused by the grading of the street, and the deed of dedication is accepted by the city and duly recorded, the deed and the release are binding upon the purchasers from the owner whose deeds are executed and recorded after the recording of the deed of dedication.</p> <p>Whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding.</p>

<p>Appeal, No. 235, Oct. T., 1903, by A. Howard Ritter, from order of C. P. No. 1, Pbila. Co., Sept. T., 1901, No. 4165, sustaining exceptions to report of jury of view in the matter of the Change of Grade of Tabor Street from Fifth Street to Sixth Street.</p> <p>Exceptions to report of jury of view.</p> <p>In addition to the facts stated in Tabor Street (No. 1), ante, p. 167, and the opinion of the Superior Court, it appeared that on November 6, 1896, Henry Schmitt purchased the lot in question from A. Howard Ritter, and that Ritter bought it back from Schmitt by deed dated April 18, 1899. The jury awarded to Ritter the sum of 1984.31.</p> <p>Exceptions to the report of the jury were sustained by the court.</p> <p>Errors assigned were in sustaining exceptions to report of the jury of view.</p>

<p>Appeal, No. 84, Jan. T., 1904, by defendant, from judgment of C. P. Monroe Co., Feb. T., 1908, No. 18, on verdict for plaintiff in case of American Radiator Company v. L. S. Hoffman.</p> <p>Assumpsit upon a contract of suretyship.</p> <p>The contract was in the following form:</p> <p>“ East Stroudsburg, May 24, 1902.</p> <p>“ For and in consideration of one dollar to the undersigned in hand paid by the American Radiator Company, the receipt whereof is hereby acknowledged and the acceptance by said company of the order hereinafter referred to, the undersigned hereby guarantees the payment by H. L. Trumbore to said American Radiator Company of the sum of four hundred dollars, being for boilers, radiators, specialties, etc., as specified in the order this day given to said company by said H. L. Trombore ; said payment to be made within sixty days from date of shipment of said material; and in case said H. L. Trumbore fails to make payment aforesaid when due, the undersigned agrees to make payment of said sum at the time aforesaid as though primarily liable, and hereby waives all right to notice of any kind of account of default in payment by said H. L. Trumbore.</p> <p>“ Witness the hand and seal of the undersigned the day and year above written.</p> <p>“ L. S. Hoffman. [Seal] ”</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Defendant presented, inter alia, the following points : ■</p> <p>1. In order to charge the defendant, L. S. Hoffman, with the debt of H. L. Trumbore under the alleged guaranties, it must be established by clear and satisfactory evidence that the American Radiator Company, the plaintiff, gave to L. S. Hoffman, the defendant, notice of the acceptance of his offer to guarantee said orders, which notice must have been sent within a reasonable time. Answer: Denied. [5]</p> <p>2. What is a reasonable time in which to give notice depends upon the nature of the contract and the circumstances under which it was given. But an elapse of forty-seven days from the time of the offering to guarantee and the acceptance of the same, in this case, is not a reasonable time. Answer: Denied. [6]</p> <p>3. There is no evidence of notice to the defendant, L. S. Hoffman, from the American Radiator Company, the plaintiff, of the acceptance of the offer of the defendant to guarantee the Butler contract of Í400. Answer: Denied. [7]</p> <p>4. There is no evidence of notice to the defendant, L. S. Hoffman, from the American Radiator Company, the plaintiff, of the exceptance of the offer of the defendant to guarantee the Henryville contract of $264.34. Answer : Denied. [8]</p> <p>9. That the paper signed by the defendant May. 24, 1902, and the one signed September 17,1902, being exhibits “ A” and “ B ” respectively, were offers of guaranties and not surety-ships. Answer: Denied. [12]</p> <p>10. The plaintiff having set up in his declaration that these exhibits “ A ” and “ B ” constitute guaranties and the defendant having pleaded to meet these allegations he cannot recover if the evidence shows that said papers are not guaranties. Answer: Denied. [13]</p> <p>Verdict and judgment for plaintiff for $597.75. Defendant appealed.</p> <p>Errors assigned among others were above instructions, quoting them.</p> <p>A close inspection of the papers signed by the defendant conclusively shows that they bear the marks of a guaranty and lack those of suretyship: Stearns’ Law of Suretyship, 5.</p> <p>Though the defendant in the papers has waived to the plaintiff some of his rights as guarantor, these papers still remain guaranties and the defendant was entitled to notice of acceptance : Gardner v. Lloyd, 110 Pa. 278; Emerson v. Graff, 29 Pa. 358 ; Evans v. McCormick, 167 Pa. 247 ; Acme Mfg. Co. v. Reed, 197 Pa. 359.</p> <p>It is incumbent upon the plaintiff to prove notice of acceptance ; mere conjecture or inference will not suffice: Patterson v. Reed, 7 W. & S. 144; Carmichael v. Newall, 2 Phila. 289.</p> <p>When a guaranty is general, that is without having any of its terms fixed in the writing, the law adds the usual conditions that there shall be due and unsuccessful diligence used by the creditor to collect the claim from the principal, unless it appears that all diligence would be hopeless. But the law adds or implies no such conditions where the parties themselves fix the terms of the contract: Campbell v. Baker, 46 Pa. 243; Ritchie v. Walter, 166 Pa. 604.</p> <p>The rule regarding notice of the acceptance of a guaranty and of an intention to act under it applies only in those cases where, in legal effect, the instrument is merely an offer or proposal, acceptance of which by the guarantee is necessary to that mutual assent, without which there can be no contract: Davis v. Wells, Fargo Co., 104 U. S. 159.</p> <p>Notice of acceptance will be presumed from circumstances which show that the guarantor had actual knowledge of the fact that the creditor has acted upon the guaranty: Bank v. Carpenter, 41 Iowa, 518 ; Adams v. Jones, 37 U. S. 207.</p>

Appeal, No. 29, Jan. T., 1904, by defendánt, from judgment of C. P. Luzerne Co., Jan. T., 1900, No. 148, on verdict for plaintiff in case of Kate Farrell v. Plymouth Borough. Trespass to recover damages for personal injuries. Before Wheaton, J. The facts are stated in the opinion of the Superior Court,' Verdict and judgment for plaintiff for SI,200. Defendant appealed.

<p>Appeal, No. 66, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1902, No. 18, on verdict for plaintiff in case of Patrick Ruane v. Maria Murray.</p> <p>Assumpsit to recover wages. Before Wheaton, 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>[Now, that being the case, if you shall find this young man to have been innocent, and I recall no testimony which in my judgment would warrant you in finding that he had any knowledge of the fact that there had been any such agreement as the defendant testifies to in this case as between herself and her son and Fleming in March, 1900, then I say to you that as to tins plaintiff this man John Fleming at the time he hired the plaintiff was in that place as the manager or agent of the defendant, Mrs. Murray, and not as her tenant. To hold otherwise, to hold that he was there as a tenant, would be to give effect to an unlawful bargain to the detriment of an innocent third party, and as I have already said to you, the law will not do that, nor will it allow such a contract to be carried out to the extent of having such effect. So that you will come down then to this proposition, he was there in the place of Mrs. Murray as her manager, or as her agent. If from the time that bargain was made between her and Fleming she did not receive the profits of that business, it was because of this unlawful bargain.]</p> <p>Next, did John Fleming have the right to hire him (the plaintiff) ? If he did not have the right to hire him in the first place, did Mrs. Murray see him there frequently enough and often enough to know that he was there acting in that business as a bartender, and to know what he was receiving as a bartender, and did she ratify by permitting him to remain there for a period of a year and seven months the bargain which John Fleming made with him ? In addition to that, was he there as an innocent party? Did he have knowledge during the time for which he claims wages that the business was being run in an unlawful way by John Fleming, that it was not the business of Mrs. Murray, but was John Fleming’s business and was being run under her license by John Fleming; in other words was he an active participant knowingly in an illegal attempt to evade the liquor law ? As I say to you, I recall no testimony in the case which would warrant a finding that he was anything but an innocent party there.] [2]</p> <p>Verdict and judgment for plaintiff, for $393.17. Defendant appealed.</p> <p>Errors assigned among others were (1, 2) above instructions, quoting them.</p> <p>cited: Fowler v. Bank, 72 Pa. 456; Badgley v. Beale, 3 Watts, 263; Hoffman v. McMullen, 83 Fed. Repr. 372; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173.</p> <p>cited; Maybin v. Coulon, 4 Yeates, 24; Mitchell v. Smith, 1 Binney, 110; Holt v. Green, 73 Pa. 198; Martachowski v. Orawitz, 14 Pa. Superior Ct. 175 ; Youghiogheny Iron & Coal Co. v. Smith, 66 Pa. 340 ; Hall v. White, 123 Pa. 95; Hubbard v. Tenbrook, 124 Pa. 291.</p>

<p>Habeas corpus — Witnesses to petition — Defective petition — Amendment— Act of February 18, 1785, 2 Sm. L. 275.</p> <p>A defect in a petition for habeas corpus in that it was not attested and subscribed by two witnesses who were present at the delivery of the same, as provided by section 1 of the Act of February 18, 1785, 2 Sm. L. 275, may be cured by amendment.</p> <p>Habeas corpus — Jurisdiction of Superior Court — Delay of trial.</p> <p>The legislature in conferring power and authority upon the Superior Court “when and as often as there may be occasion to issue writs of habeas corpus returnable to the same court,” did not contemplate the exercise of the jurisdiction in such manner as to hinder or delay the trial of pending indictments.</p>

<p>Ejectment — Defenses—Purchase of outstanding claims.</p> <p>Ail owner of land may fortify his possession by purchasing outstanding claims and procuring as many conveyances as he deems sufficient, and when it is attempted to eject him he may defend under any or all of the titles which he has thus acquired.</p> <p>Evidence — Parol evidence — Written article of agreement — Lost paper.</p> <p>Where a written article of agreement has been lost, it is competent to prove its contents by parol.</p> <p>Ejectment — Evidence—Conflicting testimony — Question for jury.</p> <p>In an action of ejectment testimony as to the location of the line between the properties of the litigants, according to the various conveyances under which the parties claimed, was conflicting. There were no ancient monuments upon the ground. The surveyors who testified in the interests of the parties, respectively, had attempted to locate the line by measuring from monuments located some distance from the property, and the results were not the same when different monuments were selected. Held, that the case was for the jury.</p>

<p>Mechanics’ liens — Contract—Covenant against liens — Waiver of covenant.</p> <p>A building contract containing a covenant against liens was filed in the office of the prothonotary. After this was done the contractors ordered of the plaintiff certain material, and one load was delivered, when the plaintiff discovered that the contract containing- the covenant against liens had been filed, and thereupon refused to furnish further material. The plaintiff also notified the owner that the material would not be furnished to the contractors. Plaintiff offered testimony which tended to show that the defendant entered into an agreement with the plaintiff that the latter should furnish the material as ordered by the contractors, and charge it to the defendant “on the credit of the building.” The plaintiff furnished the material, which was used in the building. It was charged to the defendant, and a lien was filed for the balance unpaid. Held, that the testimony offered by plaintiff, if true, established a new independent contract in the nature of an original undertaking, and that it was for the jury to determine upon the conflicting evidence whether such a new contract had been made.</p> <p>The power of an owner to make contracts is not exhausted when he has with one party entered into an agreement which contains a covenant against liens; he. may make new contracts with other parties and if he does, so he may be called upon to perform.</p>

<p>Appeal, No. 16, Feb. T., 1904, by defendant, from judgment of C. P. Sullivan Co., Sept. T., 1901, No. 51, on verdict for plaintiff in case of W. W. Jackson and Blanch W. Sturdevant, Trustees, for the Devisees of George D. Jackson, Administrator d. b. n. c. t. a. of George D. Jackson, Deceased, v. Walter B. Gunton.</p> <p>Trespass to recover damages for the unlawful mining of coal on the plaintiff’s land.</p> <p>Verdict and judgment for plaintiff for $1,404. Defendant appealed.</p> <p>Errors assigned sufficiently appear by the opinion of the Superior Court.</p> <p>The amendment was improperly allowed: Bank v. Israel, 6 S. & R. 298; Newlin v. Palmer, 11 S. & R. 98 ; Diehl v. McGlue, 2 Rawle, 387 ; Rootv. O’Neil, 24 Pa. 326; Wood v. Anderson, 25 Pa. 407; McNair v. Compton, 35 Pa. 23; Gardner v. Post, 43 Pa. 19; Smith v. Smith, 45 Pa. 403 ; Trego v. Lewis, 58 Pa. 463; Wilhelm’s App., 79 Pa. 120; Royse v. May, 93 Pa. 454; Tyrrill v. Lamb, 96 Pa. 464; Duffey v. Houtz, 105 Pa. 96; Fairchild v. Dunbar Furnace Co., 128 Pa. 485 ; Grier v. Northern Assurance Co., 183 Pa. 334; Wright v. Eureka Tempered Copper Co., 206 Pa. 274; Todd v. Ins. Co., 9 Pa. Superior Ct. 381;' Phila. v. Pass. Ry. Co., 11 Pa. Dist. Rep. 33.</p> <p>A deed cannot be given in evidence until some interest is shown to have existed in the grantor: Schrack v. Zubler, 34 Pa. 38; Bonaffon v. Peters, 134 Pa. 180.</p> <p>A recital in a deed is not evidence, except against a party claiming under it: Morris v. Vanderen, 1 Dallas, 64; Galbraith v. Green, 13 S. & R. 85; Dean v. Connelly, 6 Pa. 239 ; Lloyd v. Lynch, 28 Pa. 419; Jack v. Woods, 29 Pa. 375.</p> <p>It is true that where the whole beneficial interest in the land or money directed to be converted belongs to the person for whose use it is given, equity will permit him to elect to take in land -or money, as the subject happens to be at the moment. But the right of election must be actually and unequivocally exercised, and the onus of showing the act of election lies on the party alleging it. So where there are several interested in the subject-matter, all must agree to elect: Miller v. Meetch, 8 Pa. 417; Beatty v. Byers, 18 Pa. 105 ; Styer’s Appeal, 2 Grant, 453 ; Evans’s Appeal, 63 Pa. 183 ; Gumaer v. Barber, 182 Pa. 31; Howell v. Mellon, 189 Pa. 169 ; Rauch’s Estate, 21 Pa. Superior Ct. 60.</p> <p>The acknowledgment of a sheriff’s deed is a judicial act, and concludes all mere irregularities, however gross, in the process and sale.' After the acknowledgment the validity of the title acquired by the purchaser cannot be questioned in any collateral action involving the title, except for absence of authority or the presence of fraud in the sale: Shields v. Miltenberger, 14 Pa. 76 ; McFee v. Harris, 25 Pa. 102 ; Simons v. Kern, 92 Pa. 455 ; Cock v. Thornton, 108 Pa. 637 ; Levan v. Millholland, 114 Pa. 49; -Media Title & Trust Go. v. Kelly, 185 Pa. 131; Mencke v. Rosenberg, 202 Pa. 131; Milleisen v. Senseman, 4 Pa. Superior Ct. 455; Critchlow v. Critchlow, 35 Pitts. Leg. Jour. 306.</p> <p>The nonreturn of the execution, upon which the sheriff makes a sale, will not effect the validity of his conveyance. His deed may be considered a return, and a misrecital in the deed of the vend. ex. is open to correction: Hinds v. Scott, 11 Pa. 19 ; Gibson v. Winslow, 38 Pa. 49 ; Kelly v. Creen, 53 Pa. 302.</p> <p>The tract being unseated and sold as seated to George D. Jackson was void for want of jurisdiction, and conveyed no title under all our authorities like Hathaway v.' Elsbree, 54 Pa. 498, Preswick v. McGrew, 107 Pa. 43, and Holloway v. Jones, 143 Pa. 564.</p> <p>A wrongdoer, without title, who endeavors to protect his trespass by the outstanding title of a stranger has no equity, and is not entitled to any particular favor: Halsey v. Blood, 29 Pa. 319.</p> <p>Defective declarations may be amended at any time: Root v. O’Neil, 24 Pa. 326; Com. v. Yeisley, 6 Pa. Superior Ct. 237; Erie City Iron Works v. Barber, 118 Pa. 6; Knapp v. Hartung, 73 Pa. 290; Schnable v. Koehler, 28 Pa. 181; Good Intent Co. v. Hartzell, 22 Pa. 277 ; Schoneman v. Fegley, 7 Pa. 433; Thompson v. Chambers, 13 Pa. Superior Ct. 213; Ins. Co. v. Spang, 5 Pa. 113 ; Fredericks v. Penna. Canal Co., 148 Pa. 317.</p> <p>Samuel M. Fox, trustee, having died intestate, the trust estate vested in him descended to the heir at common law, to wit: the oldest son: Jenks v. Backhouse, 1 Binney, 91; Carlisle & Means’s App., 9 Watts, 331.</p> <p>So that no other person could have made the deed complained of except Joseph M. Fox, the grantor, and the fact that Joseph M. Fox was the oldest son is proven after the lapse of time since 1816 by the instrument itself: Zeigler v. Houtz, 1W. & S. 533 ; Fulkerson v. Holmes, 117 U. S. 389 (6 Sup. Ct. Repr. 780) ; Reynolds v. Longengerger, 57 Pa. 13 ; Bowser v. Cravener, 56 Pa. 132; Zeigler v. Hautz, 8 Watts,' 380.</p> <p>That the sheriff’s return is conclusive we cite the following cases : Benwood Iron Works v. Hutchinson, 101 Pa. 359; Le-van v. Millholland, 114 Pa. 49; Bennethum v. Bowers, 133 Pa. 332 ; MacGeorge v.*Mfg. Co., 141 Pa. 575 ; Deacle v. Deacle, 160 Pa. 206 ; Weyand v. Tipton, 5 S. & R. 332; Garner’s App., 1 Walk. 438 ; Brechtel v. Cortright, 13 Pa. Superior Ct. 384 ; Gibson v. Winslow, 38 Pa. 49 ; Stewart v. Freeman, 22 Pa. 120 ; Slater’s App., 28 Pa. 169 ; Small v. Hodgen, 1 Litt. (Ky.) 16.</p> <p>An error which does the appellant no harm is not ground for reversal: Malone & Son v. Railroad Co., 157 Pa. 430 ; Jaffray & Co. v. Frothingham, 148 Pa. 213 ; Trego v. Pierce, 119 Pa. 139 ; Commercial National Bank v. Henninger, 105 Pa. 496.</p>

<p>Appeal, No. 13, Feb. T., 1904, by Montoursville Passenger Railway Company, from order of Q. S. Lycoming Co., June T., 1903, No. 3, overruling exceptions to report of road jury.</p> <p>Exceptions to report of road jury.</p> <p>The report of the jury after setting forth the names of property owners to whom damages have been awarded and the amount of the damages, concluded as follows :</p> <p>All owners of property along the line of said road, whose names do not appear in the above list have been allowed no damages, it being our opinion that the damages, if any, suffered in their cases, will be offset by the benefits or advantages accruing out of the widening of said road.</p> <p>We are of the opinion that the city of Williamsport and the borough of Montoursville are not as such city and borough benefited by the altering and widening of said road, other or apart from the general benefit to the public at large, and we, therefore, assess no part of the cost thereof to said city or borough.</p> <p>The Montoursville Passenger Railway Company, the Western Union Telegraph. Company, the Pennsylvania Telephone Company, and the United Telephone and Telegraph Company appeared before the viewers and protested against the widening and altering of said road, and claimed that damages should be awarded to them sufficient to reimburse them for any removal or change in their respective properties on the line of said road that may be required by reason of widening or altering of said road. We are of the opinion that all of said corporations will be benefited by the widening and altering of said road, and that the use and occupancy of said road by said corporations does contribute to the necessity of widening and altering said road; but we are further of the opinion that independently of the use of said road by said corporations, it is necessary for the accommodation of the public that the road should be widened to fifty feet, and in view of the expenses that said corporations will incur in conforming their properties to the widened and altered road, we do not think it just to assess any damages against said corporations, and we, therefore, make no such assessment, upon the condition, however, that said corporations will so change the location of their respective properties, viz: railway and poles, as to conform to the said road as widened. We further find no damages due them by reason of altering and widening said road.</p> <p>In accordance with the provisions of the act of April 3,1903, which provides that the “ damages taking into account benefits conferred shall be awarded and paid according to the provisions of the act of June 13, 1836, and its supplements,” we hereby award and assess the payment of said damages upon or against the county of Lycoming.</p> <p>If, however, it is the opinion of the court that the county of Lycoming is not legally liable for the payment of said damages, we, in that event, assess the same to or against the township of Loyalsoek.</p> <p>On exceptions to the report of the jury, the court made the following order:</p> <p>And now, October 13, 1903, the report of the viewers is so far modified as to eliminate therefrom that part of their report wherein the viewers say: “We hereby award and assess the said damages upon or against the county of Lycoming.” The exceptions to the report of the viewers are dismissed. The court approves the opening of the road to the width of fifty feet, and orders that the same be opened to the width of fifty feet; and we confirm the report of the viewers absolutely, and direct that the damages awarded by the viewers to the adjoining landowners be paid by the township of Loyal-sock.</p> <p>Errors assigned were in dismissing exceptions to report of viewers in making order as above.</p> <p>But none of the acts authorize the change, vacation and widening of a road in one and the same proceeding. Such method is wholly irregular : Powelton Ave., 11 Phila. 447; Church Street, 8 Pa. Dist. Rep. 457 ; Chestnut Street, 8 Pa. C. C. Rep. 55; East Ave., 7 Lancaster Law Rev. 164.</p> <p>Such a report cannot be sustained. Neither the viewers nor the court had any authority to impose conditions upon any person or corporation affected by the proposed altering or widening of the road. The only conditions allowed are those prescribed by the legislature itself: In re Road in Lathrop Township, 84 Pa. 126; In re Road in O’Hara Township, 87 Pa. 356.</p> <p>cited: Krause et al. v. Penna. Railroad Co., 20 W. N. C. Ill; In re Chestnut St., 8 Pa. C. C. Rep. 55; In re Church St., 8 Pa. Dist. Rep. 457; In re Powelton Ave., 11 Phila. 447.</p>

<p>Appeal, No. 12, Feb. T., 1904, by Loyalsock Township, from order of Q. S. Lycoming Co., June Term, 1908, No. 3, dismissing exceptions to report of jury of view In re Petition for Altering and Widening Public Road in Loyalsock Township.</p>

<p>Principal and agent — Assumed name — Undisclosed principal.</p> <p>When a corporation or an individual elects to carry on a branch of its or his business in an assumed name, it or he is liable for the acts of agents, acting within the scope of their authority, who contract in the assumed name with relation to such branch of the business, in all cases where the contract would have been binding if made in the actual name of the corporation or individual.</p> <p>An undisclosed principal is bound by the contracts of his agents acting within the scope of his authority, although the party with whom the contract was made may have known the principal under some other name.</p> <p>A corporation of the name of International Text Book Company conducted a branch of its business under the name of “ International Correspondence Schools.” It appointed a superintendent of this branch giving him large powers to solicit business, and establishing him in an office from which he conducted a large correspondence. In the agreement with the superintendent the latter was forbidden to contract debts for the corporation. In a suit against the corporation for a typewriting machine rented to the superintendent, it appeared that the plaintiff did not know of the restrictions on the powers of the superintendent, and that he did not know the real name of the corporation. He knew the name International Correspondence Schools, and to it he charged the machine on his books. Held, that if the jury believed the evidence it was sufficient to sustain a verdict in favor of the plaintiff against the corporation on the contract of hiring the machine.</p> <p>Bailment — Hiring chattel — Care of property — Hire.</p> <p>In every contract of hiring there is, in the absence of an express provision otherwise, an implied covenant that the bailee will take reasonable and proper care of the property which is the subject' of the bailment. In case the property is negligently injured an action will lie for the breach of the implied covenant, and whether that action be in assumpsit or trespass it is still founded in contract.</p>

<p>Appeal, No. 5, Feb. T., 1904, by defendant, from judgment of C. P. Tioga Co., Jan. T., 1901, No. 2, on verdict for plaintiff in case of Alexander Smith v. Jackson Township.</p> <p>Trespass to recover damages for personal injuries. Before Niles, P. J.</p> <p>The facts appear from the opinion of the Superior Court. See also 20 Pa. Superior Ct. 387.</p> <p>The defendant presented, inter alia, these points:</p> <p>9. The court instructs you (the jury), that all of the evidence regarding the board being over the hole in the bridge-prior to the time of the alleged injury is withdrawn from your consideration, and you are instructed that you must not regard or consider the same for any purpose whatever in reaching or making your verdict. Answer: We decline to affirm that point as stated. But we do say to you in the language of the Superior Court, when the case was first before it, “ It follows that the fact that the plaintiff had noticed when crossing the bridge in the morning that a board had been nailed over the hole, did not relieve him from the duty to look where he was driving, and it was error to permit the jury to find that it relieved him from that duty.” We add to this that the fact he saw the board over the hole in the morning did not relieve him from his duty in looking ahead and passing over the bridge with the usual care and caution. [4]</p> <p>10. Under all the evidence in this case the verdict of the jury must be for the defendant. Answer: We refuse that point. [6] ■</p> <p>Plaintiff presented this point:</p> <p>Counsel for the plaintiff respectfully ask the court to charge the jury that if they find for the plaintiff, they should in estimating damages, allow for the direct expenses incurred, for the pecuniary damages the plaintiff has sustained and is likely to sustain during the remainder of his life, and making allowance for the pain and inconvenience, bodily and mental, necessarily resulting from the injury, and likely to result from it, considering as to future earnings of the plaintiff only their present worth. Answer: That point we affirm. And what we mean by “ present worth ” is this : This man according to the Carlisle tables, if you were to rely upon them, might live eighteen years; he swears his services were worth from $200 to $800 a year. You would not multiply that by eighteen, but would give him such a sum as you found the present worth of his earnings to be. [1]</p> <p>The court charged in part as follows :</p> <p>[We may state as a general rule in a case such as this that the damages recoverable include not only the bodily and mental pain and suffering but reimbursement for actual expenditures and for liability incurred for medical treatment, and nursing and compensation'for loss of earnings and for loss of earnings in the future. The damages in a case such as this should only be compensatory damages, that is, proper compensation for the injuries sustained.] [2]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1, 2, 4, 6) above instructions, quoting them.</p> <p>There is no evidence that the services of Dr. Hauser were paid for or that their value was agreed upon, or that they were of any value whatever; hence appellant contends that the court erred in instructing the jury that they could consider the expenses incurred by the plaintiff for medical attendance: Brown v. White, 202 Pa. 297; McKenna v. Gas Co., 198 Pa. 31.</p> <p>When plaintiff drove upon the bridge he occupied a perilous seat on his wagon; he was about to encounter a known danger; his care and vigilance should have been commensurate with the risk, and failure to exercise such vigilance was gross negligence : Smith v. Jackson Twp., 20 Pa. Superior Ct. 337; Lynch v. Erie, 151 Pa. 380; Shallcross v. Philadelphia, 187 Pa. 143; Graham v. Philadelphia, 19 Pa. Superior Ct. 292; Heiss v. Lancaster, 203 Pa. 260 ; Decker v. East Washington Borough, 21 Pa. Superior Ct. 211; Sellers v. Union Traction Co., 21 Pa. Superior Ct. 5; Bland v. By. Co., 13 Pa. Superior Ct. 93.</p> <p>The question of defendant’s negligence was for the court, for the reason that it is not disputed in the evidence, and his own testimony establishes it: Hill v. Township of Tionesta, 146 Pa. 11; Rotsell v. Borough of Warren, 10 Pa. Superior Ct. 283; Hentz v. The Borough of Somerset, 2 Pa. Superior Ct. 225 ; Haven v. Pittsburg & Allegheny Bridge Company, 151 Pa. 620; The Delaware, Lackawanna & Western Railroad Co. v. Cadow, 120 Pa. 559; Barnes v. R. Sowden, 119 Pa. 53; Bailey v. Brown Township, 190 Pa. 530; Brendlinger v. New Hanover Township, 148 Pa. 93; Robb v. Con'nellsville Borough, 137 Pa. 42.</p> <p>The testimony in relation- to the board was beyond any question admissible for the purpose of showing the exact condition of the highway the last time the plaintiff saw it before the accident. It was immaterial to him by whom the repair was made. He saw the bridge as it actually was, and his actions and his consequent legal responsibility were precisely the same as if the supervisors nailed the board: Chilton v. Carbondale, 160 Pa. 463; Kingston v. Gibbons, 5 Cent. Repr. 222.</p> <p>The general rule that the case- is for the jury where either the facts or the reasonable inferences to be- drawn from them are in doubt, is established by so many decisions that a reference to many of them would be an affectation of industry and an imposition on the court: Graham v. Philadelphia, 19 Pa. Superior Ct. 292; Isemenger v. York Haven Water & Power Co., 206 Pa. 591; Strader v. Monroe County, 202 Pa. 626.</p>

<p>Feb. T., 1904, by defendant,' from judgment of C. P. Lycoming Co., Sept. T., 1902, No. 421, for plaintiff on case stated in suit of Sun & Banner Publishing Company v. C. E. Bennett.</p> <p>Cáse stated to determine liability for cost of advertising liquor license applications. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment for plaintiff for $63.00 on case stated.</p> <p>Error assigned was in entering judgment for plaintiff on case stated. •</p> <p>There is no peculiar sacredness about a special.act of assembly; and when the legislature by a general law has declared that all acts, general or special, inconsistent therewith are repealed, the same rules of interpretation apply between a general and a special law as between two general laws. If the provisions of the two law's are so repugnant or inconsistent that both laws cannot be executed, the later act repeals the earlier one: Brown v. County Commissioners, 21 Pa. 87 ; Rounds v. Way-mart Borough, 81 Pa. 895-397 ; Sifred v. Commonwealth, 104 Pa. 179; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231 ; Commonwealth v. Macferron, 152 Pa. 244 ; Jadwin v. Hurley, 10 Pa. Superior Ct. 104; Commonwealth v. Yetterlein, 21 Pa. Superior Ct. 587.</p> <p>If there is an intent to repeal, the prior local law will be repealed: Nusser v. Com., 25 Pa. 126; Johnston’s Est., 33 Pa. 511; Best v. Baumgardner, 122 Pa. 17; Keller v. Com., 71 Pa. 413.</p> <p>Statutes of a general nature do not repeal by implication charters and special acts passed for the. benefit of particular municipalities: Weaver v. Schuylkill Co., 17 Pa. Superior Ct. 327; Commonwealth v. Summerville-, 204 Pa. 300.</p> <p>It is against reason to suppose that the legislature, in framing a general system for the state, intended to repeal a special or local act which the local circumstances made necessary. The legislature, not the courts, judge of the necessity: Malloy v. Com., 115 Pa. 25 ; Murdock’s Petition, 149 Pa. 341; Denis-ton’s App., 9 Pa. Superior Ct. 212; McHenry’s Petition, 6 Pa. Superior Ct. 464 ; Com. v. DeCamp, 177 Pa. 112 ; Brown v. Commissioners, 21 Pa. 37; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231; Com.- v. Yetterlein, 21 Pa. Superior Ct. 587.</p>

<p>Appeal, No. 25, Feb. T., 1904, by defendant, from judgment of C. P. Lycoming County, June T., 1903, No. 523, on verdict for plaintiff in case of A. C. Trumbower v. Jarred Woodley.</p> <p>Assumpsit to recover on a-contract for sawing logs. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. .</p> <p>Verdict and judgment for plaintiff for $256.01. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p> <p>The doctrine of substantial performance is intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars so that their right to compensation may not be forfeited by reason of mere technicality, inadvertent or unimportant omissions or defects : Gillespie Tool Co. v. Wilson, 123 Pa. 19; Pallman v. Smith, 135 Pa. 188 ; Shires v. O’Connor, 4 Pa. Superior Ct. 465.'</p> <p>When a contract is entire, before any recovery can be had of the consideration money, the plaintiff must prove that he has performed or is ready to perform his part of the contract, or that the performance was prevented by the defendant: Hall v. Rupley, 10 Pa. 231; Martin v. Schoenberger, 8 W. & S. 367; Shaw v. Turnpike Co., 2 P. & W. 454.</p>

<p>Taxation — Exemption—School—Public chanty.</p> <p>A school in the management of trustees who serve without compensation, which is entirely supported by tuition from pupils and receives besides a small rental of $150 per year paid to it by its principal for a house in which he lives, is not a purely public charity and exempt from taxation, although forty years before it received aid from the state, and contributions from private persons. Philadelphia v. Women’s Christian Association, 125 Pa. 572; Episcopal Academy v. Philadelphia, 150 Pa. 565, and Philadelphia v. Pennsylvania Hospital for Insane, 154 Pa. 9, distinguished.</p>

<p>Contract — Parol evidence — Statute of frauds — Payment of debt of another — Consideration—Evidence—Documentary evidence.</p> <p>In an action of assumpsit on a parol contract, it appeared that while plaintiff was in the occupation of defendant’s land as a tenant, the United States government took possession of the land for temporary camping purposes, destroyed the fences, made excavations, and injured the land in various ways detrimental to both the tenancy and the reversion. Plaintiff and defendant entered into an agreement that the defendant should alone present a claim to the government, and that out of whatever the government paid as rent the plaintiff should be paid half and out of whatever was paid as damages he should receive $400. Defendant presented the claim and received $308.75 as rent and $1,195.58 for damages to the farm. He refused to account to plaintiff on the ground (1) that the agreement was a parol promise to pay the debt of another, and (2) that there was no consideration for it. Held, that neither ground was tenable and that plaintiff was entited to recover.</p> <p>In the above case, a paper styled “the itemized claim presented ” (by the defendant) “to the United States government,” without any explanation as. to how the paper came into court as an original paper, and without being authenticated as a copy, was properly rejected.</p>

<p>Insurance — Fire insurance — Policy—Written and printed parts.</p> <p>A special manuscript addition to the general printed form of a policy of insurance will be presumed to have been separately considered by the parties, and to express their exact agreement upon the subject to which it relates, and must govern in so far as there is a repugnancy between it and the general covenants of the printed form.</p> <p>Insurance — Fire insurance — Mutual insurance — Limitation of liability of insured.</p> <p>A mutual insurance company may in a proper manner, which involves nothing tending to deceive present or future policy holders, enter into a contract of insurance which involves a limitation of the liability of the insured to assessment beyond an amount stated.</p> <p>Insurance — Fire insurance — Mutual companies — Assessments—Evidence.</p> <p>Where a person takes out a policy of insurance in a mutual fire insurance company, pays no cash at the time, but acknowledges his “ liability to payment of premium calls,” and the policy contains no limitation as to the amount of the assessments, and the- insured thereafter pays one assessment, he cannot subsequently deny his liability for any assessments, or escape assessments by showing that he had been induced to accept the policy and enter into the contract by misrepresentations of the soliciting agent of the company.</p> <p>The entries upon the books of a mutual fire insurance company made in connection with a particular policy constitutes no part of the contract between the parties; they simply give the basis rate and schedule premium of the risk, and form a basis of assessment.</p>

<p>Appeal, No. 50, April T., 1904, by defendant, from order of C. P. .No. 2, Allegheny Co., Jan. T., 1902, No. 399, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Tarentum Borough v. Emma Moorhead.</p> <p>Scire facias sur municipal lien for paving.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The defendant filed the following affidavit of defense : ■</p> <p>On September 22, 1898, the burgess and the councils of the borough of Tarentum, Pennsylvania, plaintiff herein, ordained and enacted an ordinance, a copy of which is hereto attached marked “ Exhibit A ” and made a part hereof, authorizing the grading, curbing and paving of South Canal street from the east line of Wood street to the east line of Ferry street, in the said borough of Tarentum. That in pursuance of said ordinance, the said borough of Tarentum entered into a written agreement with Messrs. Smith & Wood, contractors, on November 16, 1898, by authority of a resolution passed October 17, 1898, for the grading, curbing and paving of that portion of said South Canal street, set forth in said ordinance, which provided, inter alia, as follows :</p> <p>That said contractors shall commence work on said street on such a day and at such a point or points as • the borough engineer may designate, and fully complete the same in accordance with said agreement, on or before the expiration of thirty days next thereafter, except the time may be extended by council, with a penalty of $10.00 to be deducted for each and every day the work is not completed. The whole contract sum or price to be paid at the expiration of nine months, if the work was in good order to the satisfaction of the borough engineer and street committee, in accordance with the prices set forth in their bid for said work, accepted by council and made a part of said agreement.</p> <p>■ That said contractors should not be entitled • to demand or receive full payment for tire work or materials done and used on said street until the same shall have been ffilly completed in the manner set forth in said agreement, and such completion duly certified to the street committee by the borough engineer, and that each and every of the stipulations in said agreement have been complied with, and until said street committee shall be satisfied therewith.</p> <p>That the estimate of the borough engineer shall be final and conclusive of the amount of work performed without exception or appeal. That said contractors.shall be paid as they complete each square to the satisfaction of the borough engineer and paving committee, one third of the contract price of each square, and the balance, except seven per cent, in four months, or sooner if collected.</p> <p>The said work to be commenced November 21 and finished December 21, 1898.</p> <p>That in pursuance of said contract, the' said contractors entered upon said street and graded, curbed and paved that portion thereof from the east line of Wood street to the east line of Boyd street, one square, except a strip thereof from three to four feet wide, between the north curb thereof and the line of the right of way of the West Penn Railroad in front of and past this defendant’s property, as described in the lien upon which scire facias was issued on this case, and completed the same oh or about June 19, 1899, to the satisfaction of the borough engineer and street committee, at which time the borough engineer furnished the said borough councils with an estimate of the work so completed, upon which the cost of said work was fully paid to said contractors, the final payment thereon of seven per cent being made September 24, 1900.</p> <p>That said contract was not extended after the completion of the work as herein set forth, and no further work was ever done or performed or materials furnished under said contract, on that portion of said street in front of defendant’s said propr erty, or on any part or portion of said South Canal street.</p> <p>That the work which was completed on July 8, 1901, as alleged in the lien filed, upon which this scire facias was issued, was work begun on or about May —, 1901, under and by virtue of another contract in writing between said borough, or the street committee of said council of said borough and Messrs. Smith & Wood, contractors, for the grading, curbing and paving of said South Canal street, from the east line of Boyd street to the east line of Ferry street, at an increased price for the material used therein, over and above the price for material used in the work done according to the first contract herein referred to, on that portion of said street, in front and past defendant’s said property, which said contract was entered into without an ordinance or resolution of the council of said borough, and without offering or attempting in any way to get bids thereon for the work to be performed thereunder.</p> <p>That it was upon the completion of the work under this contract that the lien upon which this scire facias was issued, was based and filed against defendant’s said property, two years, or more, after the work in front thereof had been completed, under another and different contract, which said contract and the contract of November 16, 1898, hereinbefore referred to are in the possession and control of the officers and agents of the said borough, and therefore, defendant calls for the production of the same upon the trial of this cause.</p> <p>Defendant therefore avers, believes and expects to be able to prove upon the trial of this cause, that the work and material for which the lien was filed in this case, against her said property, was for work done and materials furnished under the first contract herein recited, at a different price for the material used therein, which said work was completed more than two years before the work was finished under the second contract as herein recited, and about two years before the same was begun, and for work and materials furnished under said second contract as aforesaid. That the lien upon which this suit is based was therefore filed for a pro rata share of the sum total of the. .cost of the work done ipnder both of said contracts, more than two years after the contract was completed in front of defendant’s property, as aforesaid under said first contract, contrary to the act of assembly and ordinance under which said work was performed, or any act or acts of assembly authorizing such a lien.</p> <p>The court on November 8, 1902, entered an order discharging a rule for judgment, but subsequently revoked this order and made absolute the rule for judgment.</p> <p>Error assigned was the order of the court making absolute the rule for judgment.</p> <p>cited: Philadelphia v. Hey, 20 Pa. Superior Ct. 480 ; Pittsburg v. Knowlson, 92 Pa. 116.</p>

<p>Public officers — Accounts—Appeal from county auditors.</p> <p>The taking of an appeal from the report of county auditors implies an assertion that the amount reported to be due to or from the officer is greater or less than the amount actually due, and although the appellant expressly asserts, when taking it, that this erroneous result was reached by the improper allowance of certain items of the account, this will not preclude the other party from bringing other items under investigation, if that be necessary in order to determine what the true balance is.</p> <p>Under the Act of June 12, 1878, P. L. 208, ten or more taxpayers may intervene in behalf of the county in an appeal by county commissioners from the report of county auditors finding them to be indebted to the county. In such a case the right to “defend the county’’ includes the right to object to the allowance of credit items claimed in the account upon the ground of their illegality ; and it is not within the power of the commissioners, by a specification of errors filed at the time of taking their appeal, or later, to confine the investigation to such items of their account as they claim were erroneously disallowed by the auditor.</p>

<p>Appeal, No. 92, April T., 1904, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1902, No. 565, refusing to take off nonsuit in case of C. P. Caughey and J. A. Bergman, trading as Caughey & Bergman, v. H. J. Parker.</p> <p>Assumpsit on a contract for drilling an oil well.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off, Brown, J., filing the following opinion:</p> <p>This matter arises upon a motion to strike off the compulsory nonsuit in an action by Caughey & Bergman against H. J. Parker, to recover the contract price for drilling a test well for oil and gas. The well was drilled to the fourth sand, the depth required by the contract, at which point the tools became lodged, and the plaintiffs, unable to dislodge them, left them in the well. This was not a substantial performance of the contract and bars a recovery : Gillespie Tool Company v. Wilson, 123 Pa. 19. Conceding this to be the rule, the plaintiffs allege that Jack Foster, defendant’s agent, accepted an abandonment of the well with the tools lodged in it. This allegation is irrelevant, because there is not a shadow of testimony that the defendant ever agreed to the abandonment, or authorized his agent to agree to it. True, the defendant, through his agent, contracted with the plaintiffs for the drilling, but that was the scope of the agent’s authority. Without his principal’s assent, he was powerless to waive substantial performance of the contract.</p> <p>Error assigned was the order of the court.</p>

<p>Ejectment — Rule to bring second ejectment — Possession.</p> <p>Where a plaintiff in ejectment has recovered a verdict and judgment, and thereafter takes no steps to place herself in legal possession of the land, but enters into a contract by which she agrees to sell and convey to another whatever interest might be judicially' determined thereafter to be in her, and it does not appear that her grantee either covenanted to' go into possession under her, or actually did go into possession under her, the plaintiff is in no position to rule the defendant in the first ejectment to bring a second ejectment.</p>

<p>Boroughs — Extension of borough — Statute—Repeal.</p> <p>The Act of April 22, 1903, P. L. 247, completely changes the mod? of annexing adjacent territory to a borough and repeals the Acts of April 3, 1851, P. L. 320,' sec. 30, June 2, 1871, P. L. 283, sec. 4, July 15,1897, P. L. 296 and April 6, 1899, P. L. 33.</p> <p>Statutes — Boroughs—Proceedings to annex — Termination of proceedings.</p> <p>Where proceedings to annex territory to a borough were pending and undetermined at the time of the passage of the act of April 22, 1903, P. L. 247, the court of quarter sessions had no further jurisdiction, and the proceedings therein terminated.</p> <p>Where a law takes away a subject of jurisdiction, a proceeding founded upon it must fall, but when it merely changes the remedy it may be otherwise and must be, unless the law plainly declares it otherwise.</p>

<p>by John W. Yolk et al., from order of Q. S. Washington Co., May T., 1903, No. 183, quashing appeal from borough ordinance in the matter of the Extension of the Limits of the Borough of Donora.</p> <p>Appeal from ordinance annexing a part of Carroll Township to the Borough of Donora.</p> <p>Motion to quash the appeal.</p> <p>McIlvaine, P. J., filed the following opinion:</p> <p>The Act of April 22, 1903, P. L. 247, is entitled “An act enabling the burgess and council of any borough or incorporated town, by ordinance, to annex to the borough or incorporated town adjacent territory, upon petition of a majority of the freehold owners thereof.” It is notan act amending a former act nor is it an act supplementing previous legislation. It is complete within itself. It provides for five things : first, there shall be a petition to the council of the borough signed by a majority of the freeholder owners of lots of the territory to be annexed, asking for annexation; second, there shall be an ordinance annexing the adjacent territory; third, there shall be filed in the court of quarter sessions a plan or plot showing the boundary, both of the original borough or town and of the section admitted, together with a certified copy of the ordinance and a description of the boundaries both of the original borough or town and of the borough or town -as extended, giving the courses and distances in words at length; fourth, that, after the filing of the matter aforesaid, the section of adjacent territory shall be deemed part of said borough or town and subject to its jurisdiction and government; fifth, that all acts and parts of acts inconsistent herewith are repealed.</p> <p>Any previous act giving this court authority to review the question of the expediency of annexing this territory to Don-1 ora borough would certainly be inconsistent with the provi- J sions of the act of 1908, which points out the different steps j to be taken and then provides that “ after the filing of the matter aforesaid the section shall be deemed part of said borough,” etc.</p> <p>It is entirely different from the Act of April 1,1884, P. L. 163, which provided for the recording of the plot after approval by the grand jury and court, and then provided (we quote) that “ from thenceforth the said town shall be deemed an incorporated borough, etc. But if the court shall deem further investigation necessary they may take such order thereon as to right and justice shall appexitain. The same proceeding shall be had on an application to change the limits of any borough,” etc.</p> <p>The Act of April 3, 1851, P. L. 320, in the 30th section, provided for annexation by ordinance, and under its provisions there was no right given the court by appeal to pass on the question of the expediency of annexation, and in it is found the same language as in the act of 1903 : “ the said section (of adjacent territory) shall. thereafter be deemed and taken and allowed to be a part of said borough,” etc. Thus the law remained until the Act of June 2, 1871, P. L. 283, was passed, which provided that any citizen of the old borough or of the annexed territory might within thirty days appeal from said ordinance to the court of quarter sessions, and the ordinance did not under this act of 1871 become effective when the plot was filed, as under the act of 1908, but publication was first to be made, and if an appeal was taken it was to be disposed of under the provisions of the act of 1884. The Act of April 6, 1899, P. L. 33, simply allows another class of persons to take an appeal, to wit: the citizens of the township from which the adjacent territory is taken.</p> <p>As we view the law it is this : The 30th section of the act of 1851, supra, “ directed and required ” the borough council to annex adjacent territory upon the presentation of a petition, and there was no appeal unless it be under the provisions contained in the 27th section of that act, paragraph II. iThe council had no discretion and could not consider the question of the expediency of annexing the territory. The minority had no tribunal at which they could be heard on this question. The act of 1871 allowed them an appeal so that they could be heard before the grand jury and court. The purpose of the act of 1903, as we view it, was to take away this right of appeal and opportunity to be heard before the grand jury and court, and in lieu thereof give the borough council power to pass an ordinance of annexation or to defeat it, so as to afford those interested against annexation a tribunal where they could be heard. In other words, the borI) ough council was made the sole tribunal at which the ques-4 tion of the expediency of annexation could be heard.</p> <p>ÍOf course this does not in any way affect the power of the court to review the action of the council, if for any reason the validity of the ordinance should be questioned. In the case before us no complaint of that character is made.</p> <p>And now, October 24, 1903, appeal quashed at cost of appellants.</p> <p>Error assigned was the order of the court.</p> <p>Whenever two laws can be made to stand together, it is the duty of the judge to give both of them full effect: Brown v. Commissioners, 21 Pa. 37; Erie v. Bootz, 72 Pa. 196; Wright v. Vickers, 81 Pa. 122; Com. v. Fry, 188 Pa. 32; Barber’s Election Case, 86 Pa. 392.</p> <p>A subsequent statute revising the whole subject-matter of a former one and evidently intended as a substitute for it, although it contains no express words to that effect, must in the principles of law, as well as in reason and common sense, operate to repeal the former: Johnston’s Estate, 33 Pa. 511; Rhoads v. Bldg. & Savings Assn., 82 Pa. 180 ; B. & L. Assn. v. B. & L. Assn., 159 Pa. 308 ; Com. v. Summerville, 204 Pa. 300; Com. ex rel. v. Grier, 152 Pa. 176 ; Bennett v.- Norton, 171 Pa. 221.</p>

<p>Practice, Superior Court — Appeals—Assignments of error.</p> <p>An assignment of error to the effect that the court' erred in dismissing the exceptions to the report of viewers,” without setting forth any of the exceptions, violates Rule XIV of the Superior Court.</p> <p>Road law — Paving and grading — Ordinances—Contracts—Different portions of same street.</p> <p>A city may elect by separate ordinances and separate contracts to pave and grade different portions of the same street. If it does so, property abutting on one portion cannot be assessed for the improvement on the other portion.</p> <p>Councils of a city have the sole right to designate what streets shall be paved and the character of the paving.</p> <p>A contract between a city and those who do work for it is not made invalid, although it may become improvident, because of a covenant that the city shall have power to add to or diminish the work called for by the specifications.</p> <p>After a city has accepted a paved street from a contractor, a property owner cannot escape payment of his assessment for the paving because of irregularities in the details of the manner of advertising and bidding, if there has been no bad faith in awarding the contracts.</p>

<p>Appeal, No. 49, April T., 1904, by defendant, from judgment of C. P. Beaver Co., June T., 1900, No. 204, in verdict for plaintiff in case of The Citizens Natural Gas Company v. William M. Calvert.</p> <p>Replevin for oil pipe laid under defendant’s land.</p> <p>Wilson, P. J., stated the facts to be as follows:</p> <p>This action in replevin was brought by the Citizens Natural Gas Company of Beaver County against William M. Calvert, to recover 3,100 feet of three-incli pipe and 261 feet of two-inch pipe.</p> <p>The- position of the plaintiff company is that in 1894 it laid a pipe line through the lands of William M. Calvert, consisting of 3,100 feet of three-inch pipe and 261 feet of two-inch pipe; that this was part of a continuous pipe line connecting the gas field on and beyond the lands of William M. Calvert with the Beaver Valley; that it was used for the purpose pf transporting gas through this farm from the time it was laid until in August or September, 1898, when it ceased to transport'gas to its consumers by this route, and the following spring or early summer the line .was lifted, except that which was laid on the lands above mentioned; that Calvert refuses to permit the line over and through his land to be taken up, as it was connected with some wells from which he was obtaining gas to supply his store and house ; that during a period, of some eight or nine months subsequent to this refusal negotiations were in progress looking to- the amicable adjustment of the differences between the parties and the endeavor on the part of the plaintiff to get possession of the property; that the defendant, William M. Calvert, refusing to permit the plaintiff to take up said pipe- this action was brought.</p> <p>To the action of replevin the defendant plead non cepit and also property in James Y. McMasters.</p> <p>At the trial the court reserved the question quoted in the opinion of the Superior Court.</p> <p>Error assigned among others was in entering judgment for plaintiff on the verdict.</p> <p>The rule of law is well settled that in reserving a question of law the court was bound to set forth on the record the facts of which the question is reserved: Ferguson v. Wright, 61 Pa. 258; Central Bank of Pittsburg v. Earley, 115 Pa. 359..</p>

<p>Judgment — Opening judgment — Default—Laches.</p> <p>Where a defendant has entered an appearance and permitted a judgment to be entered against him for want of an affidavit of defense, he cannot, after a delay of five years, have the judgment opened on the mere statement by himself that “ for some unaccountable oversight no affidavit of defense was filed.”</p>

<p>Appeal, No. 153, April T., 1904, by plaintiff, from order of C. P. Crawford Co., making absolute rule to strike off judgment in case of R. G. Eddy v. M. M. Smiley.</p> <p>Rule to strike off judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Trespass — Trespass vi et armis — Possession.</p> <p>To sustain an action of trespass vi et armis possession in the plaintiff is indispensable, and this is all that is necessary. As against one in actual possession, the right of a claimant of title out of possession must be asserted by an action of ejectment. The possession set up, however, must be more than a mere intrusion on either the actual or the constructive possession of another.</p> <p>Landlord, and tenant — Possession by tenant.</p> <p>As possession by a tenant is in law possession by the landlord, it is always competent to show such possession when the question of possession by the. landlord is involved.</p> <p>Appeals — Assignments of error — Practice.</p> <p>Each specification of error must be self sustaining and embody everything necessary to its determination in the appellate court; a mere reference to a page elsewhere, on which some of the essential matters relating to the specification appear, is not sufficient.</p> <p>Practice, C. P. — Trial—Evidence—Appeals.</p> <p>Where pertinent testimony is properly admitted, no subsequent complaint touching its informal admission will prevail.</p> <p>A party cannot complain of an error which does him no harm.</p>

<p>Negligence — Oil well — Torpedo explosion — Damages—Evidence.</p> <p>Where a torpedo company undertakes to discharge a torpedo in oil sand some distance below the bottom of an oil well it is bound to bring to the performance of the work the exercise of the ordinary skill and care of the business and avail itself of the usual appliances to guard against injury to the property with which it deals. If the agent of the company fails to use the proper appliances and does not observe ordinary skill, and the torpedo is exploded in the well itself far above the point where the explosion was intended to occur, the company will be liable for the destruction of the well.</p> <p>In such a case the court commits no error in charging on the measure of damages as follows: “ If the damage could be repaired, then the measure of damages would be the cost of that repair. But if the cost of the repair would be more than the value of the property, or if a new well could be drilled more cheaply than this one could be repaired or cleaned out, then of course the party should not estimate his damages by the more expensive method; he should take that which is cheapest. If it is cheaper to drill a new well he should do that. If it is cheaper to abandon the well altogether then he should abandon it, and then would be entitled to charge the party only with the market price, what it was worth in the market. If it was utterly destroyed, or destroyed so that a repair would cost more than the digging of a new well and the digging of a new well would cost more than it would be worth, then neither of these things should be done, and it would come back to the question of the value of the well.”</p> <p>In such a case the jury may properly take into consideration, in estimating the damages, that the well in question was run as one of a system of small wells, and also that the usual and ordinary result of shooting wells in that particular field, which had never been shot before, was to increase the production, and that this quality increased the market value of such wells.</p>

<p>Boroughs — Incorporation—Grand jury — Quarter sessions — Act of May 29, 1889, P. L. 393 — Statutes—Repeal. . ...</p> <p>The Act of June 26, 1895, P. L. 389 repeals so much of the Act of May 29, 1889, P. L. 393 relating to “ the division of boroughs and the erection of new boroughs as provides for the concurrence of the grand jury of the county before any decree of incorporation can be legally made.</p> <p>Boroughs — Incorporation—Filing petition — Correction of mistake.</p> <p>Where, in a county in which the same person is clerk of the court of quarter sessions, and the prothonotary of the court of common pleas, the court inadvertently directs a petition for the incorporation of a borough to be filed in the office of the prothonotary instead of in office of the clerk of the quarter sessions, the mistake may be subsequently corrected by the court, if it appears that no one has been mislead or injured by it.</p> <p>Boroughs — Division of borough — Name—County seat.</p> <p>Where á borough in which the county seat is situated is divided into two boroughs, the new borough in which the county buildings are situated may receive another and different name from the original borough.</p> <p>Boroughs — Discretion of court — Review.</p> <p>The appellate court will not reverse an order of the court of quarter sessions incorporating a borough unless there is a manifest abuse of legal discretion by that court.</p> <p>Boroughs — Incorporation—Signatures—Act of June 2, 1871.</p> <p>The signing of an application for the incorporation of a borough within the three months immediately preceeding its presentation to the court, as provided by the Act of June 2, 1871, P. L. 283, is a jurisdictional fact which must be affirmatively stated in the petition, or made manifest in some way in the proceedings.</p>

<p>Appeals, Nos. 147, 148, 149 and 150, April T., 1904, by defendants, from judgment of C. P. No. 3, Allegheny Co., May T., 1903, Nos. 357 and 358, on verdicts for plaintiffs in cases of Francis Morrison, R. B. Morrison and Margaret Morrison v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before McClung, J.</p> <p>At the trial it appeared that Margaret Morrison and her sod, Francis Morrison, were injured by the explosion of a naphtha tank car at Sheridan, Pa., on May 12, 1902. The evidence for. the defendant tended to show that the plaintiffs knew for some time that cars containing naphtha were burning, and that they went into a field out of mere curiosity to see the conflagration, and while there received the injuries for which suit was brought. The evidence for the plaintiffs tended to show that the boy had gone out to look after a cow which was tethered in or near the field, and that the mother, becoming anxious over the boy’s long absence, had gone out to “ see what was keeping him.”</p> <p>Defendant presented these points:</p> <p>Under the pleadings and evidence in this case the verdict should be in favor of the defendant. Answer : Refused. [1]</p> <p>The evidence in this case discloses that the plaintiffs had knowledge of the fact that the fire in the defendant company’s yard was caused by burning tank cars containing petroleum; they were aware of the fact that some of the cars had exploded, and they knew immediately prior to the explosion which caused Mrs. Morrison’s injury that the fire was still raging with increased force, and that the escape of burning gas from the cars was making a loud and threatening noise; Mrs. Morrison voluntarily, with this knowledge, and without any necessity, was approaching the conflagration at the time the explosion happened, and her injuries were caused by her getting too close to the burning cars. Under these circumstances she voluntarily took the risk of injury, and the verdict should be in favor of the defendant. Answer : Refused. [2]</p> <p>As it appears from the testimony in this case that the petroleum cars caught fire about two hours before the explosion which caused Margaret Mbrrison’s injuries, and that she was not in a place of danger when the fire broke out, and subsequently went to a point near the fire, and where she had a full view of the conflagration, and thus had full personal knowledge of the extent and character of the conflagration, she cannot recover, even though the jury should find that she was standing in the public road talking to a neighbor at the time of the explosion, and even if the jury should find that the cars were ignited by the negligence of the defendant company. Under such circumstances the negligence of the railway company would be too remote; the primary cause of the plaintiff’s injuries was her voluntarily placing herself in a position which turned out to be dangerous, and with full knowledge of the surrounding circumstances. Answer : Refused. [3]</p> <p>The evidence in this case .discloses that the plaintiffs had knowledge of the fact that the fire in the defendant company’s yard was caused by burning tank cars containing petroleum; they were aware of the fact that some of the cars had exploded, and they knew immediately prior to the explosion which caused the boy’s injury that the fire was still raging with increased force and that the escape of burning gas from the cars was making a loud and threatening noise; that the boy voluntarily, with this knowledge and without any necessity, was, according to his own evidence, approaching the conflagration at the time the explosion happened, and his injuries were caused by his getting too close to the burning cars. Under these circumstances he voluntarily took the risk of injury and the verdict should be in favor of the defendant. Answer: Refused. [4]</p> <p>Verdict and judgments for R. B. Robinson, $125; and Francis Morrison, $125 ; and for Margaret Morrison, $600; and R. B. Morrison, $150.</p> <p>Errors assigned were above instructions, quoting them.</p> <p>Where one is in a place of safety at the time an act of negligence is committed which carries with it danger of personal injury, he cannot be heard to complain of the act of negligence if he subsequently, voluntarily and without any necessity, leaves his place of safety and suffers personal injury as a result thereof: E. & T. H. R. R. Co. v. Griffin, 100 Ind. 221; Conroy v. C., St. P. M. & O. R. R. Co., 96 Wis. 243 (70 N. W. Repr. 486) ; C. C. C. & St. L. Ry. Co. v. Ballentine, 84 Fed. Repr. 935; Goodlander Mill Co. v. Standard Oil Co., 24 U. S. App. 7 (63 Fed. Repr. 400) ; Scanlon v. Wedger, 156 Mass. 462 (31 N. E. Repr. 642) ; R. R. Co. v. Jones, 95 U. S. 439; Schofield v. C., M. & St. P. Ry. Co., 114 U. S. 615 (5 Sup. Ct. Repr. 1125); Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306 ; Fox v. Borkey, 126 Pa. 164; Winner v. Oakland Twp., 158 Pa. 405.</p> <p>When there is a reasonable doubt as to the facts or the inferences to be drawn from them, the question of contributory negligence is for the jury: Vannatta v. C. It. It. of N. J., 154 Pa. 262.</p> <p>The question of contributory negligence is always for the jury when the measure of duty is ordinary and reasonable care and when the degree of care varies according to circumstances: Gates v. Penna. It. It. Go., 154 Pa. 566; Christman v. P. & It. It. It. Co., 141 Pa. 604; Gray v. Scott, 66 Pa. 345 ; Langan v. St. L., etc., Ry. Co., 72 Mo. 392; Mellér v. Bridgeport, 191 Pa. 562; Stokes v. Ralpho Twp., 187 Pa. 333.</p>

<p>Telegraph companies — License tax — Boroughs—Taxation.</p> <p>The'elements which enter into a license tax by a borough on telegraph poles and wires, are the necessary or probable expense incident to the issuing of the license, and the probable expense of such inspection, regulation and police surveillance as the municipal authorities may lawfully give to the erection and maintenance of the poles and wires.</p> <p>In an action to determine the validity of a borough license tax on telegraph poles and wires, it is not error to reject as immaterial and irrelevant offers of the telegraph company to prove the actual cost or value of its property in the borough; the space occupied by each of its poles, “this to show that this property is unreasonably taxed; ” the value of abutting properties and the rate at which they were taxed; the cost of reconstructing the line through the borough; the ordinary depreciation of such a line, and the present value of the line; the license fees imposed by other cities and boroughs; the capital stock, bonded indebtedness, net earning and the number of poles and miles of wire in the entire system of the company.</p> <p>In such a case, however, it is proper to permit the company to prove that its line was constructed of the best materials and in the best manner, and was'carefully maintained in the best physical condition; that it was located in a sparsely settled community and in such a manner as not to endanger or impede public travel; that it was frequently inspected, at least once a month, by its expert employees, and immediately repaired, if any deterioration was found therein; the cost of such inspection, not as a conclusive test of the reasonableness of the charge imposed by the borough, but as evidence bearing upon that question; and that the borough made no inspection of the poles and wires, and neither paid out any money nor incurred any expense for that purpose.</p>

<p>Appeal, No. 29, April T., 1904, by defendant, from judgment of’.C. P. Armstrong Co., June T., 1902, No. 14, on verdict for plaintiff in case of Kittanning Borough v. Western Union Telegraph’ Company.</p> <p>' Assumpsit to recover a license tax on telegraph poles and wires. Before Patton, P. J.</p> <p>At the trial the following offer was made:</p> <p>Mr. McCullough: We offer in evidence the ordinance relating to poles and wires in the ordinance book at page 156, passed December 2, 1895, approved December 4, 1895. We also offer the ordinance re-enacting the same subject-matter, found on page 206 of the ordinance book, which was enacted and approved March 3, 1899.</p> <p>Mr. Leason: Under which ordinance do you bring this suit?</p> <p>Mr. McCullough: We bring this suit under both ordinances.</p> <p>Mr. Leason: We ask the court to compel the plaintiff to elect under which ordinance they will try.</p> <p>Mr. McCullough : The ordinances are exactly the same, word for word.</p> <p>Defendant’s counsel object to the ordinance on page 156 of the ordinance book, approved December 4,1895, for the reason that it was repealed by the ordinance on page 206, same book approved March 3, 1899, and for the further reason that each produces a separate cause of action and the plaintiff must elect in this case under which ordinance it chooses to try. Both the ordinances are therefore objected to as incompetent and irrelevant.</p> <p>The Court: The objection is overruled, the evidence received and a bill of exceptions is sealed to the defendant. [1]</p> <p>The court charged in part as follows :</p> <p>[As to the question of-the reasonableness of this ordinance, we think that that is no longer an open question. Two cases similar to this were decided by our Supreme Court, reported in what is known as The Advance Reports of September 12, 1902, wherein they decided that an ordinance similar to the one in suit was reasonable and that the defendant company was liable for a dollar for each pole and two and one-half for each mile of wire. As we view the case, .that is no longer an open question.] [2]</p> <p>[Under the law the court could not review the decision of the town council of the borough of Kittanning unless there was a clear abuse of discretion. They are elected by the people as public servants and it is presumed that they do their duty. Without it being made to appear to the court that the town council overstepped the bounds of duty or abused their discretion, the court could not interfere. It is only in a clear case that the court could interfere with that discretion. In our opinion in this case the town council of Kittanning borough did not abuse their discretion, and therefore we feel constrained under the decisions of the higher court and from our own opinion, to instruct the jury that this ordinance is valid and is a reasonable exercise of the police powers of the borough.] [3]</p> <p>[That is the question of fact and the only question of fact for the jury to determine, how many poles were erected on the streets and alleys of Kittanning borough from January 1,1896, up to January 1, 1902. And also how many miles of wire were strung over the streets and alleys of Kittanning borough, during that period.] [4]</p> <p>Defendant presented these points :</p> <p>1. The ordinance offered in evidence by plaintiff in ordinance book, page 156, approved on December 4, 1895, having been superseded by ordinance ordained March 3, 1899, all rights and liabilities under the former ordinance, in the absence of a saving clause, were lost and no recovery can be had for any license or penalty provided for therein, by suit instituted after its repeal or being superseded. Answer : Refused. [5]</p> <p>2. The ordinance ordained March 3, 1899, offered in evidence by plaintiff on ordinance book, page 206, as well as the ordinance referred to in point number one, are void for want of authority to ordain the same, it nowhere appearing that the poles and wires of the defendant company ordained to be subject to tax provided in said ordinance before being liable to such tax were situated upon the streets or public thoroughfares of said borough. The ordinance is therefore void for uncertainty and the judgment of the court and verdict of the jury must be in favor of the defendant. Answer: We answer that point by saying, the jury will not allow Kittanning borough, the plaintiff, anything for any poles erected upon private property, but for all poles erected upon the streets and alleys of the borough, the plaintiff is entitled to recover $1.00 per pole. [6]</p> <p>3. The court is requested to find that from Jacob street to the borough line the poles of the defendant company and its wires are not upon Grant avenue, but either upon private property or upon the right of way of the Allegheny Valley Railway Company, and not subject to the leVy of a tax. Answer : We answer that point by saying, we leave it to the jury to say what poles, if any, are upon private property, and that whatever poles the jury find are upon private property, they will not allow the tax to the plaintiff borough. [7]</p> <p>4. The evidence being that the cost of the erection of a pole is ninety-seven cents per pole, that the tax sought to be imposed is an amount equal to the tax imposed in the city of Philadelphia, that the population of Kittanning borough according to the last census was 3,903, the tax is exorbitant and the ordinance unreasonable in view of the small amount of business transacted in so small a community. Answer: That point is refused. [8]</p> <p>Verdict and judgment for plaintiff for $303.25. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-8) above instruction, quoting them.</p> <p>The reasonableness of the tax should have been submitted to the jury: Postal Tel., etc., Co. v. Taylor Boro., 192 U. S. 64 (24 Sup. Ct. Repr. 208) ; Philadelphia v. Western Union Tel. Co., 40 Fed. Repr. 615; Western Union Tel. Co. v. New Hope Boro., 187 U. S. 419 (23 Sup. Ct. Repr. 204); Philadelphia v. Western Union Tel. Co., 81 Fed. Repr. 948; Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160 (23 Sup. Ct. Repr. 817).</p> <p>If this license tax was intended to be imposed upon poles and wires located upon public property, within the limits of' the borough, the ordinance should so designate. The court should hold a municipality to a reasonable regulation: Commissioners v. Gas Co., 12 Pa. 318; Millerstown Borough v.. Bell, 123 Pa. 151; Atlantic & Pacific Tel. Co. v. Phila., 190 U. S. 160 (23 Sup. Ct. Repr. 817).</p> <p>The ordinance in question is a reasonable.exercise of the police power of the borough: New Hope Borough v. Postal Tel. Cable Co., 202 Pa. 532.</p>

<p>Taxation — Gas companies — License tax — Municipalities — Boroughs— Police power.</p> <p>The power of a borough governed bythe general borough law, to provide by ordinance for police supervision and inspection by its officers and servants of pipes laid and maintained under its streets by incorporated gas companies, and, as part of and incidental to such provision, to ordain the payment by such companies of a reasonable annual license fee or tax, is derived from the same source, and is sustained and governed by the same general principles, as its power to enact similar ordinances relative to the police supervision and inspection of poles and wires of telegraph, telephone and electric light companies. The fact that the latter are maintained upon the surface of the streets and the former are laid underneath the surface does not prevent the application of these principles.</p> <p>The right of the public in a city or borough street is by no means confined to the surface of the way, and this all those who set apart land for a street are conclusively presumed to know.</p> <p>In an action by a borough to recover a license tax imposed in the exercise of the police power for the inspection aud supervision of the pipes of a gas company beneath the surface of the streets, the borough is not bound in the first place to prove that the amount of the tax is reasonable. The burden is on the gas company to prove that it is unreasonable.</p> <p>In such a case unless the court is able to say from the facts of which it may take judicial cognizance, or from the undisputed or admitted facts, or if there be a conflict of evidence, then from the duly ascertained facts, that the ordinance is a revenue measure under ‘the guise' of a police regulation, or that the license fee is grossly in excess of what was necessary to cover the reasonably to be anticipated expenses of proper police supervision, it is not justified in interfering.</p> <p>Even where there is a conflict of evidence and the controverted facts are to be determined by a jury, still the burden of proof being on the defendant, the court cannot be convicted of error in giving binding instructions in favor of the borough where the defendant has not furnished evidence from which the jury could find facts which would justify the court in declaring the ordinance unreasonable.</p> <p>A borough ordinance imposing a license tax on the pipes of a gas company is not wholly void if it does not expressly confine the tax to pipes beneath the surface of the public streets. The enforcement of the ordinance will be restricted to the pipes concerning which the borough council had power to legislate.</p> <p>Practice, C. P. — Evidence—Affidavit of defense.</p> <p>In the absence of a rule of court providing otherwise, an affidavit of defense when deemed sufficient, serves its purpose in preventing judgment by default, and cannot be offered by defendant on the trial as evidence of the facts therein alleged, and, a fortiori, cannot be considered on appeal.</p>

<p>Appeal, No. 46, April T., 1904, by defendant from judgment of C. P. Washington Co., Feb. T., 1908, No. 67, on verdict for plaintiff in case of Robert W. Davis v. Wheeling, Pittsburg & Baltimore Railroad Company.</p> <p>Trespass to recover damages for an alleged encroachment upon a private right of way. Before Taylor, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for f 1,100. Defendant appealed.</p> <p>Error assigned among others was (12) in refusing binding instructions for defendant.</p> <p>A railroad being a public highway, no rights can be acquired against it either by the public or by individuals by adverse user, no ma'tter how long such use continues or under what circumstances it is claimed: Penna. R. R. Co. v. Freeport Borough, 138 Pa. 91; Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267 (23 Sup. Ct. Repr. 671); Sapp v. Northern Central Ry. Co., 51 Md. 115; East Tenn., etc., R. R. Co. v. West, 10 L. R. A. 855; Heyl v.' P. W. & B. R. R. Co., 51 Pa. 469 ; D. L. & W. R. R. Co. v. Newton Coal Mining Co., 6 Kulp, 21; Stevenson’s App., 17 W. N. C. 429.</p> <p>When the company obtained title to the eight acre strip of ground for right of way purposes it was entitled to the exclusive possession of the same. It could -build its tracks over the whole or only over a part. It could raise and maintain any appropriate superstructure upon it and deal with it without limit for railroad uses, as its directors might determine: Pitts-burg, Fort Wayne & Chicago Railway Co. v. Peet, 152 Pa. 488; Penn. Schuykill Valley Railroad Co. v. Reading Paper Mills, 30 W. N. C. 148.</p> <p>When a railroad company condemns land it has a right to regard and make provision for its future as well as its present needs, and non-user of a portion of the land for certain purposes cannot be held to be an abandonment: Pittsburg, Fort Wayne & Chicago Railway Co. v. Peet, 152 Pa. 488; Pittsburg Junction R. R. Company’s Appeal, 122 Pa. 511.</p> <p>A grant of the right of way for a railroad includes all that the company may lawfully and adversely take for use as a way; therefore an agreement by a landowner to sell “ the right of way ” over his premises for a fixed sum covers all damages of whatsover nature suffered by the landowner, unless the right to recover extra compensation is expressly reserved: N. & W. Branch Ry. Co. v. Swank, 105 Pa. 555; Hoffeditz v. South Penn. Ry. Co., 129 Pa. 264; Updegrove v. Penna. Schuylkill Valley R. R. Co., 132 Pa. 540; Pitts., Ft. Wayne & Chicago Ry. Co. v. Peet, 152 Pa. 488; Penna. Schuylkill Valley R. R. Co. v. Reading Paper Mills, 30 W. N. C. 148 ; Kemp v. Penna. R. R. Co.-, 156 Pa. 430,</p> <p>cited : Seely v. Alden, 61 Pa. 302; Neff v. Penna. R. R. Co., 202 Pa. 371; McMinn. v. Pittsburg, etc., R. R, Co., 147 Pa. 5.</p>

<p>Practice, C. P. — •Rules of court — Admissions—Affidavit of defense.</p> <p>Courts have power to enact rules that items of account and averments in statements of claim not denied by an affidavit of defense, shall betaken as admitted.</p> <p>Where the affidavit of defense denies certain items of the statement, it is error to permit such items of the statement to be read to the jury together with the other items not denied.</p> <p>Sale — Contract—Evidence—Quality of goods.</p> <p>' In an action to recover the price of decalcomanias, the defendant claimed that the goods were defective and that the defect could not be discovered until after the decalcomania had been applied to the china and actually burnt in the kilns. The defendant introduced testimony as to the manner in which the application had been made, and the china subsequently burnt, and undertook to show that this had been skillfully done at defendant’s factory. Held, that it was competent for the plaintiff to show in rebuttal that the very same goods when skillfully handled at another factory, produced satisfactory results, inasmuch as such evidence directly tended to establish that the fault was not in the goods, but in the manner in which the defendant treated them.</p> <p>Sale — Contract—Refusal to receive goods — Measure of damages.</p> <p>The measure of damages for a refusal to receive goods, which a defendant had contracted for, is the difference between the price agreed upon and the market value at the time appointed for delivery. If the goods were made specially for the defendant, and had no value whatever in the general market, the plaintiffs can prove those facts. Those are facts which the plaintiffs must prove. When there is a conflict of testimony as to the controlling facts which must determine whether goods are made for a particular person and to answer only a specific contract, or are merely general merchandise in the market, the disputed facts,.if they are to have any bearing upon the measure of damages, must be submitted to the jury for their determination.</p> <p>Sale — Contract—Inspection—Right to reject goods.</p> <p>Where a purchaser has a full opportunity to inspect goods bought and he finds that they are not such as he had contracted for,- he must reject them with reasonable promptness and unequivocally. If he delays for months, the burden is on him to show why the defect in the goods had not been sooner discovered, and the goods promptly returned.</p>

<p>Appeal, No. 152, April T., 1904, by plaintiffs, from order of C. P. Crawford Co., quashing alias writ in foreign attachment in case of W. H. Glenny, Bryant B. Glenny and George B. Watkins, trading as W. H. Glenny & Co. v. S. M. Boyd.</p> <p>Rule to quash alias writ of foreign attachment and proceedings thereunder. Before Thomas, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned, were (1) in quashing the second or alias writ in foreign attachment and setting aside proceedings thereunder ; and (2) in allowing the defendant to appear de bene esse and move to quash, etc.</p> <p>An alias capias may be issued in the same suit, but must be tested at the same term with the original, but the capias must be made returnable to the next ensuing term: United States v. Parker et al., 2 Dali. 373 ; Stewart v. Abrams, 7 Watts, 448 ; Lynn v. McMillen, 3 P. & W. 170-; McClurg v. -Fryer & Anderson, 15 Pa. 293.</p> <p>A proceeding in attachment is not a proceeding in rem: Breading v. Siegworth, 29 Pa. 396.</p> <p>cited : Dennison v. Blumenthal, 37 111. App. Ct. Rep. 385.</p>

<p>Appeal, No. 171, Oct. T., 1903, by defendants from judgment of Q. S. Northumberland Cq., affirming judgment of justice of the peace in case of Commonwealth v. N. L. Rearick.</p> <p>Appeal from judgment of justice of the peace.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order affirming judgment of the justice of the peace.</p> <p>The delivery of the goods to a buyer at his residence in one state, that have been sent, in pursuance of contract, by a seller in another state, is interstate commerce and subject to no state or local burdens, the right to solicit orders implies the obligation and the right to deliver the goods in the manner called for by the contracts, and the means by which the delivery is made cannot be controlled by the states: Bowman v. Chicago, etc., Ry. Co., 125 U. S. 465 (8 Sup. Ct. Repr, 689) ; State Freight Tax, 82 Ü. S. 232; Rhodes v. Iowa, 170 U. S. 412 (18 Sup. Ct. Repr. 664).</p> <p>The right to solicit orders implies the obligation and the right to deliver the goods, and the manner in which the delivery is made cannot be controlled by the states: Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (5 Sup. Ct. Repr. 826) ; Caldwell v. North Carolina, 187 U. S. 622 (23 Sup. Ct. Repr. 229); New Castle v. Cutler, 16 Pa. Superior Ct. 612; In re Spain, 47 Fed. Repr. 208; In re Nichols, 48 Fed. Repr. 164; In re Tyerman, 48 Fed. Repr. 167; Huntington v. Mahan, 142 Ind. 695 (42 N. E. Repr. 463); Tax Collector v. Pettigrew, 44 La. 356 (10 So. Repr. 853) ; State v. Willingham, 9 Wyoming, 290 (62 Pac. Repr. 797).</p> <p>The ordinance in question is unconstitutional and void for the reasons that it abridges the right, freedom and liberty of contract; it discriminates between persons and denies the equal protection of the laws; it gives rights, privileges and immunities to some which it denies to others ; it violates section one of the fourteenth amendment of the constitution of the United States, which provides: “No state shall make or en-force any law which shall abridge the privileges or immunities of citizens, of the United States; nor shall any state deprive any person, of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws: ” Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (22 Sup. Ct. Repr. 431; Missouri v. Lewis, 101 U. S. 22; Duncan v. Missouri, 152 U. S. 377 (14 Sup. Ct. Repr. 570).</p> <p>The Sunbury ordinance does not violate the federal constitution in that it discriminates in favor of producers: New Castle v. Cutler, 15 Pa. Superior Ct. 612.</p> <p>The ordinance is a proper police regulation or as applied to the facts of this case, an attempt to regulate interstate commerce : Leisy v. Hardin, 135 U. S. 100 (10 Sup. Ct. Repr. 681) ; R. R. Co. v. Husen, 95 U. S. 465 ; Plumley v. Mass., 155 U. S. 478.</p> <p>The defendant at the time of delivering the brooms, etc., was not engaged in inter or intra state commerce: Com. v. Hess, 148 Pa. 98; Com. v. Holstine, 132 Pa. 357; Garbracht v. Com., 96 Pa. 449; Com. v. Fleming, 130 Pa. 138; Austin v. Tenn., 179 U. S. 343 (21 Sup. Ct. Repr. 132).</p>

<p>Appeal, No. 48, Jan. T., 1904, by defendant, from order of C. P. Luzerne Co., Jan. T., 1903, No. 332, overruling exceptions to report of referee in case of Siegel Brothers v. Samuel Hirsch.</p> <p>Exceptions to report of referee.</p> <p>Plaintiff’s statement was ás follows :</p> <p>“ The above-stated action is founded on a promissory note, dated August 11th, 1902, drawn by Louis S. Lachman for the sum of forty-eight and eighty-eight one hundredth dollars, and made payable to the said Seigel Bros., or order, at 107 Greene street, New Yorlc city, sixty days after date aforesaid, which the said Samuel Hirsch, by his indorsement on said note transferred to the said plaintiff and thereby became surety for the amount thereof, and the plaintiff avers that the whole amount of said note, together with the interest thereon, is due the plaintiff.”-</p> <p>A copy of said note is hereto attached and made a part hereof.</p> <p>“ $48.88. New York, August 11, 1902.</p> <p>“ Sixty days after date I promise to pay to the order of Siegel Bros, forty-eight and eighty-eight one hundredth dollars at 107 Green Street, N. Y. City, value received.</p> <p>“ Loins S. Lachman.</p> <p>“ No.........Due........</p> <p>“ Endorsed, as follows:</p> <p>“ Louis Silverman.</p> <p>“ S. Hirsch.</p> <p>“Siegel Bros.”</p> <p>The referee, Lawrence B. Jones, Esq., reported, inter alia, as follows:</p> <p>Defendant was the only witness on his own behalf.</p> <p>His testimony, offered by way of defense, tended to establish the following faets:</p> <p>1. That the maker of the note was a bankrupt at the time he procured the signature of the defendant, which fact he subsequently made known to the defendant, stating to him that the payee of the note had full knowledge of the business standing of the maker of the note at the time the defendant’s signature .was procured to the note as an indorser.</p> <p>2. That defendant received no consideration for his indorsement.</p> <p>3. That defendant never received notice of the protest of the note.</p> <p>4. That defendant’s place of business is at Nos. 22 and 23 E. Market St., Wilkes-Barre, Pa.</p> <p>5. That there is another S. Hirsch residing and doing business in Wilkes-Barre, Pa., to whom defendant’s letters are frequently delivered by mistake.</p> <p>All of this testimony was objected-to by the plaintiff as being immaterial and irrelevant, and, so far as matters contained in (1) are concerned, incompetent. • . ^</p> <p>The referee is of opinion that the testimony embraced in (1) is immaterial, irrelevant and incompetent.</p> <p>The referee is also of opinion that the testimony embraced in (2), (3), (4) and (5) is immaterial and irrelevant, the law of negotiable instruments (which is identical in the states of New York and Pennsylvania, and which is found in the Pennsylvania act of assembly, approved May 16, 1901, P. L. 194) providing, inter alia:</p> <p>“ Section 29. An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstandingsuch holder at the time of taking the instrument knew him to be only an accommodation party.”</p> <p>“ Section 105. Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.”</p> <p>“Section 108. Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address then the notice of dishonor must be sent as follows:</p> <p>“ 1. Either to the post office nearest to his place of residence or to the post office where he is accustomed to receive his letters,” etc.</p> <p>The referee, therefore, sustains the objections raised by the plaintiffs, and.excludes the said testimony.</p> <p>The plaintiffs' having made out a prima facie case, and all testimony offered by the defendant by way of defense having been excluded, the plaintiffs are entitled to judgment.</p> <p>The referee accordingly finds as fact :</p> <p>1. The plaintiffs are holders for value, before maturity, of the note upon which this suit was brought, and upon which the defendant is an accommodation indorser.</p> <p>2. On October 10, 1902, the day of maturity of said note, Edmund F. Swanburg, a notary public for the state of New York, at the request of the plaintiffs, presented said note to the maker, at 107 Greene St., New York'city, and demanded payment thereof, which was refused; whereupon the said notary, on the same day, protested said note, and deposited in the post office in the city of New York, postage prepaid, notice of said protest, addressed to S. Hirsch, 24 E. Market St., Wilkes-Barre, Pa.</p> <p>3. That the amount due plaintiffs on said note is $50.23, with interest on face of note from October 10, 1902.</p> <p>The referee finds as law :</p> <p>1. That due notice of the dishonor of the note in suit was given to the defendant.</p> <p>2. That judgment should be entered in favor of the plaintiffs, and against the defendant, for $50.23, with interest on $48.88 thereof from October 10, 1902.</p> <p>Counsel for the parties each submitted certain points, which they requested the referee to affirm, and which are attached to this report.</p> <p>The referee affirms the points submitted by the plaintiffs, and refuses to affirm the points submitted by the defendant.</p> <p>The referee therefore directs that judgment be entered in favor of the plaintiffs, and against the defendant,‘for $50.23, with interest on $48.88 thereof from October 10, 1902.</p> <p>Errors assigned'were in dismissing exceptions to report of, referee.</p> <p>The statement is grossly insufficient and defective in material matters of substance and fails to set forth a cause of action : Bank v. Ellis, 161 Pa. 241; McKinney v. Crawford, 8 S. & R. 351; Bank v. Kopitzsch Soap Co., 161 Pa. 134.</p> <p>While the case of Bank v. Marshall, 9 Pa. Superior Ct. 621, decides that while it is well settled that depositing in the post office a properly addressed letter raises a natural presumption that it reached its destination, by due course of mail, and is prima facie evidence that it was received by the person to whom it was addressed, this prima facie proof may be rebutted by evidence showing it was not received and the question is one of fact for the jury under all the evidence: Jensen v. Mc-Corkell, 154 Pa. 323 ; Folsom v. Cook, 115 Pa. 539.</p>

<p>Mechanics’ liens — Building contract — Stipulation against liens — Subcontractor — Notice.</p> <p>After a building has been commenced under a contract between the owners and the contractor, containing no stipulation against liens, a material man from whom no material had been ordered, and who had furnished none prior to the cancelation of the contract by the parties thereto, is bound by the provisions of a second contract relating to the same building, containing a stipulation against liens of which he has actual notice, and which was filed in the prothonotary’s office in accordance with the terms of the Act of June 26, 1895, P. L. 369, before any materials were ordered from or furnished by him.</p>

<p>Appeal, No. 63, Jan. T., 1904, by defendants, from judgment of C. P. Luzerne Co., March T., 1898, No. 231|, on verdict for plaintiff in case of George F. Lee and Frank J. Scouton trading as Lee & Scouton v. David Williams et al., owners or reputed owners, and J. W. Zimmerman et ah, contractors or builders.</p>

<p>Appeal, No. 11, March T., 1904, by defendants, from judgment of C. P. Dauphin Co., Sept. T., 1902, No. 274, for plaintiff on trial by court without a j.ury in case of Wilmer Crow v. Capital City Council No. 327, Jr. O. U. A. M., Irvin C. Keel Councilor et al.</p> <p>Mandamus to reinstate a member of a beneficial association</p> <p>The case was tried by agreement before Weiss, P. J., without a jury.</p> <p>Weiss, P. J., filed the following opinion :</p> <p>Wilmer Crow, the plaintiff, is a member of the defendant council, a fraternal and beneficial association, which was incorporated by a decree of this court, pursuant to the provisions of the Act of 1874, P. L. 73, and its supplements, May 27, 1901, and continued to be a member until September 11,1901.</p> <p>On that day he was expelled from membership in said council by virtue of an order issued by a body styled the national judiciary, which directed the defendant council to execute the same under penalty, by the adoption of a resolution formally expelling him from membership in the order, which was obeyed.</p> <p>The plaintiff was charged, among other things, with “ the publication and spreading of various newspapers, periodicals and circulars among the members of the order in the attempt to bring discredit upon the order, and to bring the national council thereof into disrepute,” which charge was preferred by Wobensmith, state councilor, and others against him, along with others and laid before the national judiciary.</p> <p>Among the laws adopted by the national council, and which the plaintiff was charged with having violated was one known as section 3, Chapter 1, Division YI. which provides that:</p> <p>“ Any member of the order .... who shall publicly attack or scandalize the national council, the national judiciary, a state council, or a state judiciary, or any council, or the members of any of these bodies shall be guilty of an offense against the order, and upon a trial and conviction may be reprimanded, suspended definitely, or be expelled from the order.”</p> <p>Notice was given the plaintiff that a hearing of the complaint, a copy of which accompanied it, would be given December 17, 1900, Odd Fellows Temple Building in the city of Philadelphia, commencing at 10 o’clock A. M.; and the matter was so proceeded with by the national judiciary, before which the plaintiff appeared and was represented by counsel, that a finding against the plaintiff of “guilty as charged” was made and a decree of expulsion promulgated.</p> <p>The junior order of the United American Mechanics consists of a national council, state councils and councils.</p> <p>The national judiciary is appointed by the national board of officers, the members of which constitute the executive department and the members of the former are along with others component parts of the national council. The national judiciary asserts jurisdiction over the matters in complaint by virtue of the provision in the constitution of the order viz: “ Of all controversies whatsoever, the character of which is such that there is no inferior tribunal having complete jurisdiction.”</p> <p>The order is composed of white male persons who have qualified, were duly initiated.</p> <p>Among the provisions of .the constitution is Article IX, Sec. 11, which reads:</p> <p>“ The national judiciary shall have original and appellate but not exclusive jurisdiction in all matters wherein is involved non-conformity to, violation or construction of, the supreme law of the order.”</p> <p>Among the laws is Sec. 10, Chapter 1, Division VI, which provides:</p> <p>“ For all offences against the order whereof the penalty upon conviction, is either suspension or expulsion, the power thereto shall be lodged with the council of which the offender is a member. And it shall be incumbent upon every council, upon notice to execute the judgment of suspension or expulsion with respect to any of its members, rightfully issuing from a higher body, or else subject itself to the penalty prescribed in Section 7, hereof.”</p> <p>The plaintiff was manager of the Pennsylvania edition of a periodical called “ The New Jersey Junior American Mechanic ” in the columns of which appeared matter, responsibility for which is placed by the national judiciary in its findings upon the plaintiff, “ Crow, manager of the paper.”</p> <p>The following is an article published October 7, 1899 :</p> <p>“ And when this fact dawned upon the national administration they immediately set out to stifle and choke to death the will of the -assembled representatives and hatched up the conspiracy that ended in the farcical presentation of charges of insubordination.”</p> <p>In another issue of date March 15, 1900, ,the following occurs :</p> <p>“ The state council of Virginia has not been idle ; by her action she secures to Virginia Juniors release from the humiliation and the thralldom of the national council, etc.”</p> <p>In the issue, in an editorial entitled “ Test of Loyalty,” the following appears:</p> <p>“ Such advice as the above might have been expected to be given to a council by a national secretary, and would be in keeping with the rule or ruin policy of the national council,” etc.</p> <p>In that of October 8,1900, is the following unsigned article:</p> <p>“ Probably our view of this method of determining disputed questions .... or alleged violation of law is somewhat jaundiced ; but if so, it is no doubt due to an exhibition given by the national judiciary in Philadelphia when they affected to try the state council of Pennsylvania on charges preferred by the national council.</p> <p>“We pray there may never be such another exhibition in our order as occurred there, and we don’t desire to be mean or sarcastic either, when we assert that for an all ’round exhibition of cant, hypocrisy, dignified jugglery and farcical results this alleged court takes the prize.”</p> <p>In an issue of date November 29, 1899, the plaintiff as generally, is held responsible for, and adjudged by, what appears in the columns of the paper of which he is manager, and it is this that is complained of though signed by another:</p> <p>“ This activity on the part of our councils and members is a most hopeful sign for the ‘324’ who are contending for justice and fair treatment, against the arrogant, despotic, high-handed work of the national council.</p> <p>“ The proceedings at Minneapolis (the national council) were simply the end of the long train of ábuses and usurpations, having for their object the reduction of the eastern states under absolute despotism, and the foisting of an office-holding oligarchy upon our order.</p> <p>“ It makes little difference whether the national council restores or revokes its paper charter; we can live without that body and save money. . . . Let us stand resolutely opposéd to the tyrannies, infamies, and outrages of the national council.”</p> <p>In the same edition appears the following over the initials of another, which relates to the judiciary in session;</p> <p>“ A gigantic farce. A burlesque of justice. A comedy on legal proceedings.</p> <p>“ The national judiciary goes through the form of hearing the said of National Councilor v. the State Council of Pennsylvania.”</p> <p>The Pennsylvania edition of the “ New Jersey Junior American ” was published monthly, and on the department staff was “Manager Wilmer Crow, Harrisburg, Pa.,” and underneath, “ Subscriptions will be received by Wilmer Crow, Harrisburg, Pa.”</p> <p>His duties as manager, or among them, were “to receive subscriptions and forward the mailing list to New Brunswick, N. J., as the issues of the paper appeared.</p> <p>He did not supervise the articles, had never seen any of the four articles and none were presented to him or passed through his hands before publication. He saw them after their publication, and continued as manager after he had seen them.</p> <p>There was no witness called in support of the complaint, no testimony produced respecting the nature of the duties of manager, no evidence that the plaintiff circulated the papers, no admission made, and all that was done at the time of the trial was the offer in evidence of four or six copies of the paper by the professional representative of the complainants.</p> <p>The plaintiff’s case was reached about two o’clock in the morning, December 1, 1900. He was absent in person and his counsel who was present stated that he, the plaintiff, had ceased connection with the papez-, and after the disposition of the case no application was zuade for a rehearing as might be done, aizd as the body sitting was the final tribunal, zzo appeal was or could be taken.</p> <p>The plaintiff seeks reinstatement by proceedings in mandamus into fellowship with the defendant council and to the enjoyment of the rights and privileges afforded thereby, and claims that the order made by the national judiciary directing the defendant to expel him from membership was illegal, and that the resolution of expulsion made by the subordinate council was nugatory.</p> <p>Whether it was or not depends upon the observance of rules in the course of procedure, which obtained in the trial of causes before a tribunal organized for the administration of justice according to the law of the land.</p> <p>Beyond the offer of some half dozen newspapers containing the objectionable articles, there was no evidence had or received. These newspapers informed the judges that the plaintiff was “ Manager ” and that “ subscriptions will be received by him ” and gave his address “ Harrisburg, Pennsylvania.”</p> <p>To warrant a conviction of the offense charged, it was incumbent upon the trial court to ascertain from the testimony in the case that the plaintiff was so related to the “New Jersey Junior American Mechanic ” that he controlled or aided in controlling and directing the policy of the periodical.</p> <p>If he acted in a clerical or canvassing capacity merely, or was so connected with it that he was charged with its business management only he could not be held guilty of an “ attempt to bring discredit upon the order ” or “ the national council thereof into disrepute.”</p> <p>What is generally understood by the term manager of a newspaper is that its financial interests are intrusted to him, and that this employment is usually disassociated from that which shapes its editorial and public policy.</p> <p>The fact that he received subscriptions emphasizes this view, and entailed upon the tribunal trying him the duty of further inquiry before entering a judgment, execution upon which deprived him of a valued right.</p> <p>It was imperative to have it appear that he “ by the publication and spreading of various newspapers, periodicals and circulars among the members of the order ” brought discredit upon the order or disrepute upon the national council, before the trial body could convict or as a consequence reprimand, suspend or expel.</p> <p>The position of manager of a newspaper and of a receiver of subscriptions therefor is more suggestive of an absence of control over its columns, than persuasive of a right of control or the fact that he exercised such control; and while he submitted himself by becoming a member to the laws of the order, he did not thereby submit himself to the deprivation of a right secured by that membership, unless he had a trial in the mode prescribed by the law of the land, subject to, and by virtue of, which the law-, of the order and course of its procedure as well as. the order itself have existence.</p> <p>The complaint against the plaintiff was made to the national judiciary by members of the state council of Pennsylvania and as officers of the order, none of whom were assailed in the published articles, and by certain other persons on their own behalf and others, members of the state council, who were not reflected upon individually or officially. It was the national council and the national judiciary which were the objects of censorious comment. And because the trial tribunal was animadverted upon, should proofs have been .elicited to show the plaintiff’s relation to the publication, and dissemination of the periodicals, in order that the verdict would carry the stamp of impartiality and be devoid of untoward reflection. If the judges had been put in possession of the testimony of witnesses as this court was in the case now being considered, a different verdict might have been rendered and it is the absence of material evidence before that tribunal that begets the conclusion that no trial was had, the result of which would justify the deprivation of the plaintiff’s membership in the defendant council.</p> <p>He neither wrote nor was privy to the writing, nor saw or had knowledge of the articles published .until thereafter, and did not circulate or cause to be circulated any copies containing the inflammatory articles. To show that he was in some Avay responsible for the publication or circulation was necessary to support the conviction. It was a trial by inspection of the periodicals which do not evidence facts from which a reasonable and well-grounded inference could be draAvn that the plaintiff Avas guilty of the publication or dissemination of the articles, nor that his position and duties were such as to justify the conclusion that by reason thereof he' was guilty of the .offense charged.</p> <p>There was no “ examination of the matter of fact in issue,” without which there can be no determination of the issue according to the law of the land, and the execution,had upon the verdict and judgment must be declared invalid and, therefore, inoperative. '</p> <p>The national judiciary has original jurisdiction over matters involving a violation of the laws of the order. It had concurrent jurisdiction “ with the council of which the offender may be a member ” in matters involving suspension or expulsion, but it has not exclusive jurisdiction in matters of which the “ inferior tribunal ” or subordinate council has “ complete jurisdiction.” Sec. 11, and sub-division 7, Sec. 10, Article IX, of the Constitution and the first clause of Sec. 10, Chapter I, Division VI, National Laws, and it acquired jurisdiction of the plaintiff person.</p> <p>But that was only one step towards the object to be attained. In view of the elaborate code adopted by the order, it must be assumed that the methods of procedure and the rules of evidence which obtained in courts of justice are part of its system. The error lies in the nonobservance of these rules and methods of procedure which the law, as well, it is believed, of the order, as that of the country has ordained for the ascertainment and establishment of the truth.</p> <p>It is not necessary to decide whether the national judiciary could direct the defendant council to execute the order of expulsion in a proceeding to and in which the council was not a party.</p> <p>It is sufficient to decide that there was no trial of the plaintiff and accordingly no conviction and judgment upon which an eviction from the order or from the defendant council could lawfully be founded.</p> <p>There is another view point which the case presents. The judges say that “ the manager of this edition, unless he makes disclaimer, must be held accountable for, and be adjudged by, whatever appeared in its columns.” It is not clear whether a disclaimer was intended by the statement of the plaintiff’s counsel at the time of the hearing before the national judiciary that “ his,” the plaintiff’s, “ connection with the paper, whatever it had been, had ceased,” and it is probable that this was a matter for the trial tribunal to determine.</p> <p>But the proposition as stated, in the absence of proof relating to his duties as manager of the periodical, whose published province was the solicitation of subscriptions, does not commend itself as sound, especially as the disfranchisement of membership was of that which the courts have called a “ franchise ” and “ property rights.” The facts are not unlike those found in Weiss v. Musical Mutual Protective Union, 189 Pa. 446-450 : “No testimony was taken, nor was there any effort made to show that the manifesto was circulated by plaintiffs, or that it tended to disrupt or destroy the union, or cause the withdrawal of members, nor indeed was there anything to sustain the charges against plaintiffs, and they after protesting as before, withdrew from the' meeting: ” Evans v. Philadelphia Club, 50 Pa. 107.</p> <p>In that case the defendant was incorporated under the laws of Pennsylvania, the charter of which “ contains no power of expulsion.” In this case, the national council of the order became a body corporate under the act of 1874, and its supplements, and at a convention held thereafter adopted a constitution, which, among other things, provides for, and vests supreme judicial powers in, the national júdiciary and the judges thereof and enacted laws défining, among other things, offenses against the order, which constitution and laws are “for the government of the Junior Order of United American Mechanics.”</p> <p>The corporation is founded “ for beneficial or protective purposes to its members from funds collected therein ” and neither the charters nor the law under which it came into being gives the power of expulsion. The constitution and laws adopted by the corporate body, however orderly and complete the system of legislative, executive and judicial powers are, in contemplation of law — by-laws—which in the 5th section of the Act of April 29, 1874, P. L. 73, are required to “prescribe the time and place of meeting of the corporation, the powers and duties of its officials, and such other matters as may be pertinent and necessary for the business to be transacted and may contain penalties for the breach thereof, not exceeding twenty dollars.”</p> <p>Unless the constitution and laws have higher potency than the law creating the corporation there may be force in the plaintiff’s contention that it is restricted to the penalty prescribed by the creating act. Conceding, however, every endeavor and all reasonable latitude on the part of the tribunal sitting, to rightly interpret the laws, to justly discipline offenders and perpetuate the order of government to which the plaintiff voluntarily subjected himself, it does not seem fitting to say, in the absence of evidence other than the articles, that he attempted to bring discredit upon the order or disrepute upon the national council by the publication and circulation of the periodicals, and thereby publicly attack or scandalize the national council or the national judiciary, or the members of any of these bodies. The verdict and judgment are not conclusive upon a judicial tribunal because there was ño trial had and conducted by the judges sitting as the national judiciary according to the law of the land, and not according to the law of the order itself, which sanction reprimand, suspension or expulsion only “ upon trial and conviction,” and that must mean trial and conviction according to the law of the place, territory or jurisdiction wherein it had its origin and has existence.</p> <p>This case was submitted under the provisions of the Act of April 22, 1874, P. L. 109, for decision by agreement in writing by the parties to the suit, in which trial by jury was waived and it is ordered that judgment be entered for the plaintiff and that a peremptory writ of mandamus issue and the costs of the proceeding be paid by the defendant, if exceptions be not filed as-provided by law within thirty days after service of notice that such decision has been made.</p> <p>Error assigned was the judgment of the court.</p> <p>The national council has the inherent power of explusion of a member for an offense against his duties as a corporator: Weiss v. Musical Mut. Protective Union, 189 Pa. 446.</p> <p>A sufficient trial was accorded appellee before the order’s tribunal, and the same was conclusive upon the lower court: Com. v. Union League, 185 Pa. 301; Com. ex rel. Bryan v. Pike Beneficial Society, 8 W. & S. 247; Com. v. German Society, 15 Pa. 251; Toram v. The Howard Beneficial Association, 4 Pa. 519.; Black & White Smith’s Society v. Vandyke, 2 Wh. 309; Society for Visitation of Sick v. Commonwealth ex rel. Meyer, 52 Pa. 125 ; Appeal of Aaron Sperry et al., 116 Pa. 391.</p> <p>The court below was justified in inquiring into the circumstances of the appellee’s trial: Com. v. German Society, 15 Pa. 251.</p> <p>The appellee did not have a fair and impartial trial: Schwereger v. Society, 13 Phila. 113; Marion Beneficial Society v. Com., 31 Pa. 82; Society v. Com. ex rel., 52 Pa. 125.</p> <p>The national council has no power to provide for the expulsion of members from the order for violation of its laws, except for the common-law causes, viz.: the commission of an infamous crime, or of some act destructive of or injurious to the order: Mulroy v. Knights of Honor, 28 Mo. App. 463; People v. Fire Department of Detroit, 31 Michigan, 458.</p> <p>In Pennsylvania the rule relative to expulsion from corporations without capital stock and from unincorporated associations is as follows:</p> <p>1. If there be neither by-law nor charter provision for expulsion, the same may be made only for conviction of an infamous crime, or for an act injurious to or destructive of the corporation or association: Com. v. St. Patrick’s Ben. Soe., 2 Binn. 441; Evans v. Phila. Club, 50 Pa. 107; Weiss et al. v. Musical Mut. Protective Union, 189 Pa. 446.</p> <p>2. If there be no charter provision, the courts will sustain reasonable additional causes for expulsion, provided for by bylaws, but not indefinite or trivial ones: Evans v. Phila. Club, 50 Pa. 107; Leech v. Harris, 2 Brews. 571.</p>

<p>Negligence — County bridge — Defect in bridge — Fright of horse — Sudden danger — Proximate cause — Contributory negligence.</p> <p>Where a person without fault on his part finds himself suddenly in a position of danger, he is not held to the use of the best judgment, but only to good faith and reasonable prudence.</p> <p>In determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence, such a consequence as, under the circumstances of the case, might or ought to have been foreseen by the wrongdoer as likely to flow from his act.</p> <p>The action of an ordinarily safe and tractable horse suddenly becoming frightened at the very place where a highway is negligently left in a dangerous condition and backing over the unguarded precipice, is not always to be regarded as one of those extraordinary occurrences which the public authorities cannot reasonably be expected to foresee and provide against.</p> <p>The duty of a municipality, whether township, borough, city or county, having control of the highways is to keep them reasonably safe for ordinary travel by the ordinary horse. It is under no obligation to provide for everything that “may” happen upon them, but only for such things as ordinarily exist, or such as may be reasonably expected to occur.</p> <p>An elderly woman driving a single horse and buggy ascended the approach of a county bridge oh the left-hand side of the road, that being the commonly traveled and best part of the road. When she reached a point part way up the approach, and where there was no guard wall on the side, she stopped the horse to permit a team which suddenly came into view to pass. As the team came opposite them the horse became frightened and backed the buggy over the -wing wall, resulting in serious injuries-to its occupants. The plaintiff testified that “from the time we stopped our buggy and saw the wagon and until we actually fell over the wall we had no time to do anything; we might of jumped out and saved ourselves but we had no time to do it, it happened so quick; there were no guard rails at the side to keep people from going over the side.” Held, that the case was for the jury, and that a verdict and judgment for plaintiff against the county should be sustained.</p> <p>While under the local laws, Westmoreland county may not be liable for an accident due to a defect in a bridge caused by lack of repairs, of which defect it bad no notice, it is liable where the accident is due to defects in the original structure.</p>

<p>Appeal, No. 137, April T., 1904, by plaintiff, from order of C. P. Cambria Co., June T., 1903, No. 363, discharging rule for judgment for want of an affidavit of defense in case of Standard Underground Cable Company v. Johnstown Telephone Company.</p> <p>Rule for judgment for want of an affidavit of defense.</p> <p>From the record it appeared that on May 12,1903, suit was begun and plaintiff’s statement filed. On June 27, 1903, written notice was given to defendant’s counsel that the statement had been filed on May 12. No copy of the statement was served on defendant or his counsel. On July 14, 1902, a rule was taken for judgment for want of an affidavit of defense.</p> <p>The following rule of court was adopted in 1895:</p> <p>“ 82.' In an action of assumpsit, in all cases requiring an affidavit of defense by these rules, the plaintiff shall be entitled to take judgment after the return day of the writ for want of an affidavit of defense, if the defendant has been served with a copy of the statement at least fifteen days before the return day; or, if a copy of the statement has mot been so served, then judgment may be taken in absence of -the affidavit, after fifteen days’ notice to the defendant or his attorney of record that the statement is filed; which notice shall consist of a copy of the statement, with certificate of the attorney for plaintiff that it is a true copy, and shall give the date of the filing thereof.</p> <p>“ Judgment under this rule shall be taken after' the return day of the writ, on’ motion entered in the rule book, or on precipe to the prothonotary at any time after the defendant is in default in filing an affidavit of defense.”</p> <p>The court discharged the rule for judgment.</p> <p>Error assigned was the order of the court.</p> <p>Where a rule of court is inconsistent with an act of assembly the rule must fall. It is an absolute nullity: Palethorp v. Palethorp, 184 Pa. 585 ; Traction Co. v. R. R. Co., 180 Pa. 432. The rule must not controverse the law of the land : DuBois v. Turner, 4 Yeates, 361; Barry v. Randolph, 3 Binn. 277; Yanatta v. Anderson, 3 Binn. 417; Boas v. Nagle, 3 S. & R. 250 ; Snyder v. Bauchman, 8 S. & R. 336.</p> <p>“ A court cannot pass a rule which takes away from a party to an action a right positively secured by law : ” Main v. Lynch, 54 Md. 658.</p> <p>“ The court cannot, by a rule of practice, alter the laws : ” Hinchly v. Machine, 15 N. J. Law 476.</p> <p>“ A rule of court is void so far as it operates to deprive a party of a statutory right: ” People v. McCellan, 31 Cal. 101.</p> <p>“ Where a statute gives a positive rule of practice, courts cannot exercise any discretion in the matter: ” Stevens v. Ross, 1 Cal. 894.</p> <p>“ A court cannot adopt any rule of practice the effect of which is to render nugatory a rule of law, the benefit of which either party has a right to claim: ” Kennedy v. Cunningham, 59 Ky. 538.</p> <p>In Marlin v. Waters, 127 Pa. 177, Mr. Justice Mitchell says : “If, however, he chooses to wait till the defendant is in court, as required to be on the return day, then the plaintiff need only file his statement and give notice.”</p> <p>The Practice Act of May 25, 1887, P. L. 271, was intended to promote uniformity in practice throughout the state, and the rules of court in conflict with its provisions are abrogated and rendered null and void by it: Blake v. Penna. R. R. Co., 12 Pa. Dist. Rep. 661.</p> <p>cited: Coon v. Catten, 3 Kulp, 37 ; Russell v. Archer, 76 Pa. 473; Flisher v. Allen, 141 Pa. 525 ; Barry v. Randolph, 3 Binney, 277.</p>

<p>Appeal, No. 127, April T., 1904, by Joseph Schmader et al., from judgment of C. P. Clarion Co., Nov. T., 1901, No. 209, on verdict for plaintiff in case of Commonwealth to use of Farmington Township et al. v. S. E. Carson et al.</p> <p>Assumpsit on the bond of a tax collector. Before Galbraith, P. J.</p> <p>At the trial plaintiff offered auditors’ report of Farmington township for the year 1898, made in May, 1899, and filed in the court of quarter sessions of Clarion county, at No. 41, of May sessions, 1899, on July 17, 1899, — offering specially that part of the auditors’ report which shows the accounts of S. E. Carson, collector of road taxes, and of S. E. Carson, collector of poor taxes, and which shows a balance due Farmington township of $751.44, on account of the road taxes, and of $1,318.98, on account of the poor fund. This offer in connection with the statement of claim and affidavit of defense on file.</p> <p>********</p> <p>As to the poor fund the offer is objected to as incompetent, irrelevant and immaterial, and, further, for the reason that included in the account of the poor fund, as shown by the report, there are $502.52 carried from a former settlement, April 9, “ balance at Auditors’ settlement,” and this includes an item for which the bondsmen are not liable. Objected to further for the reason that the balance shown by the report is different from the amount alleged in the statement of claim filed by the plaintiff in this case, the claim in that being for only $816.46.</p> <p>The Court: I think we will have to hold that the auditors’ report is conclusive -of the items that are included in it, so far as this license money is concerned, although to my mind it should not have been originally included. We will overrule the objection and admit the testimony. [1]</p> <p>The court charged in part as follows :</p> <p>[Now, gentlemen, turning to the poor fund for that year, the auditors’ report shows a balance due of $1,318.98, but in auditing the accounts of this year the auditors have brought up and charged the collector with a balance of $502.52 on the preceding year. That amount of $502.52 has already been adjudicated in a prior suit in this court against Mr. Carson and his bondsmen for the year 1897, and the record was offered in evidence in this case by the plaintiffs themselves in the nature of an admission that to that extent they were not entitled to recover here the balance as shown by the auditors’ report. So that they are entitled, I would say to you, to a credit, in the first place, of $502.52, brought up from the prior year, because the bondsmen for that year were not the same as the bondsmen for the present year, 1898. This leaves a balance of $816.46.</p> <p>The defendants claim they are entitled to a further credit on this account of $200, paid by the collector after his term of office expired, to Mr. Shotts, a receipt for which was offered in evidence ; and I say to you that they are entitled to that credit, which would reduce the balance due to $616.46.</p> <p>It further appears that in the year 1899, Mr. Carson overpaid the amount of the duplicate of that year something more than $700. In the trial of the former case that overpayment was first applied to the liquidation of the balance of the poor fund due for the year 1897. After so applying it, it left abalance still unapplied of $287.90. The defendants ask to now have the balance applied on the reduction of the amount for the year 1898, and I say to you that they are entitled to have it so applied. This, gentlemen, further reduces this balance to $328.56. It appears further that the defendant Carson paid on an order to Mr. Kemp, I believe, $3.50, on account of the poor fund, which would be a further credit, reducing the balance to $325.06.</p> <p>On that balance so ascertained the plaintiffs claim the right to receive interest from the time of the filing of the. auditors’ report, and the interest computed from that date to the present by counsel, is 187.76. This, gentlemen, will make • the total balance due at this time, including interest, #412.76, and Isay to you that if these computations are correct and you so find, it would be your duty on account of the poor fund to render a verdict here of #412.76. As to.the form of the verdict, it seems that this bond was in the sum of #8,000, and I might say to you that under the act of assembly it would be your duty to find for the commonwealth of Pennsylvania, to which this bond is given, in the sum of the bond and find further the exact amount that is due each of the plaintiffs who have intervened in this case. So that your verdict would be in favor of the commonwealth for the amount of the bond, #8,000, and for the township of Farmington on account of the road taxes for 1898 yet in the hands of the collector, #724.85, and in favor of the poor district of Farmington township on account of the balance of poor taxes for 1898 yet in the hands of the collector, #412.76, together with costs of the case. This, gentlemen, I deem would be the duty of the jury under the evidence in this case and under the law as applicable to that evidence.] [2]</p> <p>Defendant offered these points :</p> <p>2. The plaintiffs cannot recover interest, there being no act of assembly giving them the same. Answer: Refused. [3]</p> <p>4. The plaintiffs cannot recover for the items in the duplicate of unseated land, #35.26, included in the auditors’ settlement, as offered by the plaintiffs, with S. E. Carson, collector of road funds for 1898. Answer: Refused. [4]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-4) above instructions, quoting them.</p> <p>cited: Speck v. Com., 3 W. & S. 324; McKee v. Com., 2 Grant, 23; Glover v. Wilson, 6 Pa. 290.</p> <p>cited: Com. v. Sweigart, 9 Pa. Superior Ct. 455; Speck v. Com., 3 W. & S. 324; Blackmore v. Allegheny County, 51 Pa. 160.</p>

<p>Will — Latent ambiguity — Parol evidence — Evidence.</p> <p>Parol evidence is admissible to explain a latent ambiguityin a will, or to apply its provisions to the subject or person intended when the description is defective, uncertain or too general to be understood.</p> <p>Where the meaning of a devise is uncertain the law will adhere as closely as possible to the general rules of inheritance, and whosoever claims against the law of descent must show a satisfactory written title.</p> <p>Parol testimony is admissible to show whom the testator meant by the words contained in his will “ William Wilson’s children,” where it appears that he had no relatives answering such description, and the will itself is silent as to the identity of the William Wilson therein named. In such a case it may be shown that testator had a sister married to one Seth Wilson, who had a brother named William Wilson, that testator frequently confused William with Seth, and that testator stated to the scrivener who wrote his will that he meant by William Wilson’s children, the children of his sister. The court in such a case will award the fund to Seth Wilson’s children, but will not limit the class merely to Seth Wilson’s children by his first wife, testator’s sister.</p>

<p>Will — Distribution—Per stirpes — Per capita.</p> <p>■ Testator directed as follows: “ To my brother Christian Miller’s children, William Wilson’s children, my sister Mrs. Staub, my sister-in-law Mrs. Andrew Miller’s children to be equal beneficiaries in balance of mj>- property or money after the conditions of this have been complied with.” The court found from parol evidence that testator intended by the words “William Wilson’s children ” to designate the children of Seth Wilson who had children by his first wife, testator’s sister, and also a child by a second wife. Held, that the fund should be divided into four parts, and distributed per stirpes and not per capita, and that it was immaterial that one of the children of Seth Wilson sharing in the distribution, was not of the blood of the testator.</p>

<p>Municipal lien — Assessments for benefits — Notice—Sewers—Act of May 16, 1901, P. L. 224, sec. 35.</p> <p>The provision of section 35 of the Act of May 16, 1901, P. L. 224, that whenever the cost of local improvements of any kind in cities of the third class is to be assessed upon the abutting properties, at least five days’ notice shall be given of the time and place of making the assessment, is directory and not mandatory, and if the notice is not given for the statutory time the assessment is not wholly invalid, but is merely not conclusive. The landowner may show errors and mistakes, and have them corrected on the trial of a scire facias upon the claim.</p> <p>Municipal lien — Assessments for benefits — Locality index — Sewers—Act of May Í6, 1901, P. L. 224, secs. 26 and, 27.</p> <p>The neglect of the prothonotary to enter a municipal lien for assessments in the mechanic’s lien docket, and to keep a locality index, as required by sections 26 and 27 of the Act of May 16, 1901, P. L. 224, does not invalidate a municipal lien for assessments for benefits to property as between the parties, nor absolutely bar recovery upon the scire facias issued upon the lien.</p> <p>Municipal lien — Sewers—Sufficiency of claim.</p> <p>A municipal claim for a sewer is sufficient which sets out the size of the sewer, its material, its length in front of defendant’s property, the price per foot, the length and price per foot of the house connections together with the title and date of approval of the ordinance under which the work was done.</p> <p>Municipal liens — Sewers—House connections — Notice—Act of May 16, 1901, P. L. 224, sec. 29.</p> <p>Under the Act of May 16, 1901, P. L. 224, see. 29, a property owner cannot be charged with costs of house connections with a sewer in the absence of notice to the owner, and default in compliance with the notice.</p>

<p>Railroads — Common carriers — Negligence—Degree of care — Presumption— Dive Stock.</p> <p>A common carrier is bound to employ safe and sufficient means of carriage, trustworthy and competent servants and, by himself or his agent, to exercise an intelligent supervision over the system of carriage which he employs. He is therefore to all intents and purposes an insurer against such perils of transportation as it is his duty to provide against; and these include all the perils of the journey except such as arise from the act of God or the public enemies.</p> <p>If for any reason an injurious accident happen to or by reason of that which the carrier provides for the transportation, the law which imposes the exercise of the utmost care upon him, presumes the accident to be due to the want' of that care and puts upon him the duty of successfully relieving himself from that presumption.</p> <p>If a railroad company employed in the transportation of live stock permits straw or other combustible material to be used on the cai’s and a fire originates therefrom by which the animals are injured, a presumption of negligence arises against the company, which it must rebut in order to relieve itself of liability for the loss. In such a case the company cannot by contract limit the liability to a sum less than the value of the animals as against its own negligence.</p>

<p>Deceit — Vendor and vendee — Misrepresentations—Fraud—Evidence.</p> <p>Where the purchase of real estate is fully closed by conveyance and payment or security of the purchase money, the law is well settled that a vendee who does not offer to rescind and reconvey the property to his vendor can only recover where his evidence makes a clear, strong case. Where he holds fast to the property purchased and seeks to recover back a portion of the purchase money or damages, there is a strong presumption that his deed conveyed what he purchased and the burden rests heavily upon him to overcome this by sufficient testimony. The law will not permit him to recover in such case on weak, and unsatisfactory evidence.</p> <p>In an action in deceit to recover damages alleged to have been sustained through misrepresentations in connection with the sale and conveyance of a lot of land, it appeared that plaintiff occupied the land in question prior to the agreement of sale. In the contract of sale, one of the lines was mentioned as being 189 feet. The contract contained these words “accurate description to be furnished by Chester E. Albright, C. E.” Subsequently Mr. Albright prepared an accurate description, and his description was incorporated in the deed delivered to the plaintiff by the defendants. In the deed the line which appeared in the contract as 189 feet appeared as 160 feet. The latter distance was correct, and in view of the other lines and their courses it was a mathematical impossibility to have this line longer than as stated in the deed. After the deed had been recorded and returned to plaintiff he complained of the shortage of the line. It also appeared that plaintiff executed a mortgage and received a title policy when the deed was signed, and that in these papers the line was stated as being 160 feet. There was no evidence that plaintiff ever made the slightest effort to ascertain the result of Mr. Albright’s survey and description. Plaintiff claimed that it was represented to him that the land described in the deed was the same as that in the contract. This was denied. Held, that the evidence was insufficient to submit to the jury on the question of fraud.</p>

<p>Decedent’s estates — Claim, for nursing — Nephew—Consideration—Promise.</p> <p>When one person is rendering service to another, which he is under no legal obligation to perform, and the party receiving the benefit makes an express promise that the service shall be paid for, and upon the faith of that promise the services are continued, there is sufficient consideration to support the promise to pay for all the services, past as well as future.</p> <p>A nephew made a claim against the estate of his uncle for services in nursing him during his last illness. The nephew was married, had a family and lived in his own house, which was some distance from the residence of his uncle. He testified that his uncle promised that he should be paid and told him “to still look after him.” The court below disallowed the claim on the ground that as no demand had been made until after the uncle’s death the presumption was that the services had been rendered without expectation of pay, and that the promise was without consideration as to past services. Held, that the court was bound to consider the evidence as to the promise, and that the promise if made was based upon sufficient consideration.</p>

<p>Corporations — Foreign corporations — Registration—Parties—Act of April 22, 1874, P. L. 108.</p> <p>The directors and stockholders of a foreign corporation doing business in Pennsylvania without having registered in the manner provided by the act of April 22, 1874, are not by reason of the failure to register, liable as copartners for debts contracted in the corporate name within the state of Pennsylvania.</p>

<p>Appeals — Findings of fact by court below — Review.</p> <p>The findings of fact and conclusions of judges, masters, etc., having jurisdiction of the subject-matter and the parties, are entitled to much weight and will only be reversed for clear error. The burden in such case rests on the appellant to satisfy the appellate court of such error in fact, or law, or both, as calls for a reversal to prevent injustice, and failing in that the decree will be affirmed.</p> <p>Where the orphans’ court after a surcharge has permitted on a rehearing a guardian’s account to be restated, a decree striking off the surcharge will not be reversed by the appellate court, where it appears-that the decree was the result of an examination by the auditing judge of the restated account and the original evidence, without any new evidence, and that the finding of the auditing judge was confirmed by the court in banc.</p>

<p>Appeal, No. 64, Oct. T., 1904, by Harriet L. Balmforth, from decree of O. C. Phila. Co., Oct. T., 1903, No. 57, granting petition for widow’s exemption in Estate of George Balmforth.</p> <p>Petition for widow’s exemption.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in granting the petition.</p> <p>The purpose of the act was to make an immediate provision for the wants of the family, and it has never been extended, actually or constructively, to widows beyond the seas. We legislate for citizens of this country and not for subjects of a foreign country : Spier’s App., 26 Pa. 238 ; Platt’s App., 80 Pa. 501; King’s App., 84 Pa. 345 ; Coates’s Estate, 6 W. N. C. 367; Walter’s Estate, 12 Pa. Dist. Rep. 767; Groves’s Estate, 5 Pa. C. C. Rep. 498; Monk’s Estate, 9 Montg. 113; Lároeco’s Est., 10 Pa. Dist. Rep. 568.</p>

<p>Appeal, No. 268, Oct. T., 1903, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1902, No. 703, on verdict for plaintiff in case of Jacob J. Plucker v. Joseph S. Miller.</p> <p>Assumpsit to recover commissions for procuring a contract. Before Davis, 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>The plaintiff claims from the defendant the sum of $350, with interest, as -commission which he has earned, as he alleges, for a contract which he brought to the defendant for furnishing tiling and other material for- the building operation which you have heard referred, to. If you are convinced from that testimony that that contract was brought to the defendant by the plaintiff, Mr. Plucker, then your verdict must be for the plaintiff. If, from the testimony, you find that the contract for the work came to the defendant through Mr. Hawkins, or through anybody other than the plaintiff, then the plaintiff cannot recover, and your verdict must be for the defendant. The issue, therefore, is a very narrow one — did Mr. Plucker secure this contract for the defendant ? If he did, he is entitled to his commission. If he did not, he is not so entitled.</p> <p>[The execution of these contracts does not enter into this case in any way whatsoever, only in so far as they may explain to your satisfaction, if they do so explain, the delay, if there was any delay, upon the part of Mr. Plucker in demanding from the defendant the commission which he now claims to be due. If the defendant incurred any liability to the plaintiff it was not at the time of the execution of the contracts, but at the time the work was brought to the defendant. In other words, if Plucker had brought work as he alleges he did, in March, and the contracts were not ’signed until months after the date of the execution of the contract, that would have nothing to' do with his right to recover.] [1]</p> <p>Now, it is conceded that Plucker had been in the employment of Hall, and that, whilst in the employment of Hall, he had striven to get this identical contract for Hall. He severed his connection with Hall, he says, on the 9th of March. The contention of the defendant is that he severed that connection upon the 16th of March. Then again, Mr. Hoffman tells you that, being interested in Mr. Plucker, he did what he could to bring the contract to Mr. Plucker’s new employer, the defendant in this suit. Mr. Plucker testifies that he alone secured this contract for the defendant, and that before he did so Mr. Hall had given up, as I remember it, all hope of receiving the contract, and that was true to a large extent also of the defendant, who had been trying to get the contract when Mr. Plucker entered defendant’s employ. It is admitted that this contract was secured very near the time of the severance of plaintiff’s employment with Matthew Hall, which immediately preceded, or after a short interval, his employment by the defendant. Plaintiff claims that he left Hall on the 9th and immediately entered the employment of the defendant. The defendant claims that he left Hall on the 16th.. Mr. Hawkins, the manager of the defendant, testifies that he met Mr. Plucker on Monday, March 18, and that Plucker told him he had just left Hall’s employ and that is corroborated by Mr. Holt, who was with Mr. Hawkins at the time he met Mr. Plucker. Then there is another piece of evidence which you may consider important, if you see fit to do so, and that is, that Mr. Plucker, when handed a certain check dated March 16, in response to a question by Mr. Warwick, answered “ Yes, I guess that is the check where Hall, instead of paying me a commission, raised my salary from $25'to $30.” He subsequently explained that by telling you that while he received the check and kept the money, he did not receive it as salary, but on account of commission; that he saw Mr. Hall and demanded $200 for commissions which had been promised to him, but that he did not receive the $200 and kept the $30.00 on account of those commissions. [The jury has a right to take into consideration not only the oral testimony of the witnesses, and the written evidence, but, as well, the corroborating circumstances, and the jury may consider whether, at this time, Mr. Plucker may have had a well-defined reason for leaving the employ of a gentleman who, he says, owed him $200 and refused to pay it. Immediately, thereon, you have another piece of testimony which dovetails, it would seem, with the foregoing, but which is for your consideration alone, and that is the testimony of the bookkeeper. The bookkeeper testifies that Mr. Plucker settled his business with Matthew Hall on March 16. March 18, is the date fixed by Mr. Hawkins and Mr. Holt for the meeting with Mr. Plucker; that was Monday, two days afterwards. This check, dated the 16th, is presented to him, and he testified in reference to that check that it was paid to him on Saturday" afternoon for a week’s wages ending March 16 ; that is the testimony of Lowry, the bookkeeper.' Tliis witness also says that at that time Mr. Piucker’s wages were $30.00, having previously been $25.00 a week, and that the check was handed to him with an envelope containing $3.00 for the expenses for the week; he says that he, individually, handed plaintiff this check and this envelope. In cross-examination, lie reiterates that he paid the money. He says “I handed him this,” indicating the check, and he also says in response to another question in cross-examination, “ He didn’t leave two weeks before that time.”] [2] Now these are questions for you to take into consideration.</p> <p>Verdict and judgment for plaintiff $375.38. Defendant appealed.</p> <p>Errors assigned, among others, were (1,2) portions of charge as above, quoting them; and (5) that the charge as a whole was insufficient and misleading, quoting the whole charge.</p> <p>—The date of the execution of the contract between Hause and defendant, Miller, was of the very essence of this case, because if executed at the time alleged by defendant, plaintiff was, at that time, working for a rival of defendant ahd admittedly could not have secured this contract to defendant. The court instructed the jury that the execution of this contract was not material.</p> <p>The charge as a whole was an inadequate presentation of the evidence and the questions involved: Herstine v. JR. JR. Co., 151 Pa. 244; Fineberg v. Pass. Ry. Co., 182 Pa. 97; Lerch v. Bard, 177 Pa. 197; Pennsylvania Caual Co. v. Harris, 101 Pa. 80 ; Tietz v. Traction Co., 169 Pa. 516 ; Urias v. Penna. R. R. Co., 152 Pa. 326; Hess v. Williamsport, etc., R. R. Co., 181 Pa. 492; Richards v. Willard, 176 Pa. 181.</p> <p>cited as to the sufficiency of the charge : Com. v. Kaiser, 184 Pa: 493; McCosh v. Myers, 25 Pa. Superior Ct. 61; Kehoe v. Traction Co., 187 Pa. 474; Com. v. Zappe, 153 Pa. 498; Krepps v. Carlisle, 157 Pa. 358 ; Com. v. Kay, 14 Pa.. Superior Ct. 376; Taylor v. Burrell, 7 Pa. Superior Ct., 461; Trust Co. v. Philadelphia, 202 Pa. 78 ; Kuntz v. Railroad Co., 206 Pa. 162 ; Crawford v. Wittish, 4 Pa. Superior Ct. 585; Brown v. Montgomery, 21 Pa. Superior Ct. 262, 268 ; Peirson v. Duncan, 162 Pa. 187.</p>

<p>Appeal No. 26, Oct. T., 1904, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T. 1903, No. 3727, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of John R. McFetridge & Sous v. Louis N. Megargee trading as Seen and Heard Publishing Company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was the order of the court.</p> <p>cited: Deacon v. Smaltz, 10 Pa. Superior Ct. 151; Muir v. Accident Ins. Co., 203 Pa. 338; Publishing Co. v. Hartranft, 3 Pa. Superior Ct. 59; McPherson v. Bank, 96 Pa. 135 ; Peale v. Addieks, 174 Pa. 543.</p> <p>cited: Com. v. Snyder, 1 Pa. Superior Ct. 286; Vanderslice’s Case, 16 W. N. C. 93; Clendenning v. Cable, 26 Pa. C. C. Rep. 115; Sweigard v. Ice Co., 15 Pa. Superior Ct. 285; Fleisher v. Blackburn, 15 Pa. Superior Ct. 289; Anderson v. Williams, 10 Pa. Superior Ct. 329; Loeser v. Erie City Rag Warehouse, 10 Pa. Superior Ct. 540 ; Stern v. Probst, 26 Pitts. L. J. 48.</p>

<p>Practice, C. P. — Trial by court — Finding of facts — Warranty—Sale.</p> <p>In an action for goods sold and delivered, tried by the court 'without a jury, a finding by the court on sufficient evidence that the sale was made without any warranty of quality, will not be disturbed by the appellate court, in the absence of manifest error.</p> <p>In such a case where the trial judge states the material facts that appeared in evidence, and adds that there was no warranty made, the finding is a sufficient compliance with the Act of April 22, 1874, P. L. 109.</p> <p>The fact that no notice was given of the findings of fact, as required by the act, cannot be taken advantage of, where it appears that exceptions to the findings were filed by the party aggrieved.</p> <p>Sale — Warranty—Quality—Grade.</p> <p>Where the price of goods is fixed by contract and the quantity and quality are furnished and accepted without complaint, the buyer must pay the price even though the quality be inferior.</p> <p>The naked averment of a fact is neither a warranty of itself nor evidence of it.</p>

<p>Appeal, No. 123, Oct. T., 1904, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1904, No. 990, making absolute rule for judgment for want of a sufficient affidavit of defense in cáse of Edward Creery v. A. Walter Thompson.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the affidavit are stated in the opinion of the Superior Court.</p> <p>JError assigned was the order of the court. -</p> <p>It is competent to contract for the payment of an obligation out of a particular fund and in a particular manner : Chambers v. Jaynes, 4 Pa. 39; Sartwell v. Wilcox, 20 Pa. 117; Snell v. Cheney, 88 111. 258; Wharton on Contracts, 598 ; Krum'v. Mersher, 116 Pa. 17 ; Printing and Numerical Registering Co. v. Sampson, L. R. 19 Eq. 462; Magilton v. Stevenson, 173 Pa. 560.</p> <p>Plaintiff was not entitled to judgment before the advancement had been received by the defendant from the company.</p> <p>The defendant admits that he borrowed the money personally but undertakes to set off an unsettled partnership account and an unsettled corporation account against the payment of his personal indebtedness to the plaintiff: Lee v. Longbottom, 173 Pa. 408; Wharton v. Douglass, 76 Pa. 273; Sennett v. Johnson, 9 Pa. 335; Russell v. Miller, 54 Pa. 154.</p>

Appeal, No. 4, March T., 1904, by-defendant, from order of C. P. No. 4, Phila. Co., March T., 1904, No. 1172, making absolute rule. .for judgment for want of a sufficient affidavit of défense in case of Charles Schwerdfeger v. Columbia Gesang Yerein. 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>Negligence — Municipalities—Defect in sidewalk — Contributory negligence.</p> <p>Where a woman in broad daylight undertakes to cross a street diagonally at a place not provided as a crossing for pedestrians, and when near the edge of the sidewalk steps into a hole made by the displacement of two and one-half bricks by the roots of a tree standing nine inches away on the extreme edge of the sidewalk, and it appears that she must have seen the hole if she had looked, she is guilty of contributory negligence and cannot recover from the city for the injuries sustained.</p>

<p>Appeal No. 39, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1903, No. 366, for defendant on case stated in suit of Martha Sydnor v. Metropolitan Life Insurance Company.</p> <p>Assumpsit on a policy of life insurance.</p> <p>Case stated.</p> <p>The material facts as agreed upon in the case stated are set forth 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>This contract was not consummated, until the first premium was paid: Marland v. Royal Ins. Co., 71 Pa. 393 ; Mfg. Co. v. Fire Ins. Co., 16 Pa. Superior Ct. 91; Equitable Life Assurance Society v. Clements, 140 U. S. 226 (11 Sup. Ct. Rep. 822). In the case at bar, the first premium was paid and policy was delivered on April 26. There being no contract before that time, only terms and negotiations in contemplation of a contract, the payment of the money and delivery of policy on that day were not a reviver ; the contract could not even relate back to any prior date, except where it is shown, that a consideration has been paid or valid agreement made to have policy go into effect before delivery. Wainer v. Fire Ins. Co., 153 Mass. 335 (26 N. E. Repr. 877) ; Markey v. Mut. Ben. Life Ins. Co., 118 Mass. 178; Tooker v. Security Trust Co., 26 N. Y., App. Div. 372 (49 N. Y. Supp. 814) ; Whitaker v. Ins. Co., 29 Barbour 312. The company was estopped from setting up forfeiture after loss where insured had been led to believe that strict payment would not be insisted upon. Helme v. Philadelphia Life Ins. Co., 61 Pa. 107 ; Highlands v. Fire Ins. Co., 177 Pa. 566; Lantz v. Vermont Life Ins. Co., 139 Pa. 546.</p> <p>cited: Lantz v. Vermont Life Ins. Co., 139 Pa. 546.</p>

<p>Appeal, No. 59, Oct. T., 1904, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1901, No. 252, on verdict for plaintiff in case of William P. Hood, Executor of Harry L. Hood, deceased, v. Prudential Insurance Company of America.</p> <p>Assumpsit on a policy of life insurance. Before Martin, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment on the verdict.</p> <p>No principle of law will" enable a party who guarantees a fact upon which a contract of insurance is based, which fact is afterward found not to exist, to enforce the contract. The purpose of requiring a warranty is to dispense with inquiry, and cast entirely upon the assured the obligation that the facts shall be as represented: State Mut. Fire Ins. Co. v. Arthur, 30 Pa. 315; Smith v. North Western Mut. Life Ins. Co., 196 Pa. 314; Com. Mut. Fire Ins. Co. v. Huntzinger, 98 Pa. 41; Meyer-Burns v. Life Ins. Co., 189 Pa. 579; Robertson v. Life Ins. Co.,-88 N. Y. 541; Skinner v. Norman, 16 App. Div. 609 (46 N. Y. Supp. 65); Studwell v. Mut. Ben. Life Ass’n, 139 N. Y. 615 (35 N. E. Repr. 204) ; Aetna Ins. Co. v. Plolcomb, 89 Texas, 404 (34 S. W. Repr. 915).</p> <p>A presumption of waiver cannot be based upon a presumption of knowledge of the breach of a condition in a contract. A waiver is an intentional relinquishment of a known right, and there must be both knowledge of the existence of the right, and an intention to relinquish it: Ward v. Metropolitan Life Ins. Co., 66 Conn. 228 (33 Atl. Repr. 902). An inference cannot properly he based upon another inference: Keefer v. Life Ins. Co., 201 Pa. 448.</p> <p>Where the waiver relied upon is based on a so-called presumption of the company’s knowledge of the act of an agent, it must be shown that the agent had both authority from the company to make the waiver and actual knowledge of the facts: Northern Assur. Co. v. Grand View Bldg. Assn., 183 U. S. 308 (23 Sup. Ct. Repr. 133); Sitler v. Fire Ins. Co. (No. 1), 18 Pa. Superior Ct. 139; Wilson v. Fire Ins. Co., 174 Pa. 554.</p> <p>In the absence of any duty to investigate, a company is not presumed to know what might have been ascertained from its records or public sources: Hood v. Prudential Ins. Co., 22 Pa. Superior Ct. 244; Home Friendly Soc. v. Berry, 94 Ga. 606 (21 S. E. Repr. 583); Hackett v. Ben. Legion, 60 N. Y. Supp. 806; Brown v. Life Ins. Co., 65 Mich. 306 (32 N. W. Repr. 610); Rhode v. Life Ins. Co., 129 Mich. 112 (88 N. W. Repr. 400) ; Jerrett v. Life Ins. Co., 18 R. I. 754 (30 Atl. Repr. 793) ; White v. Ins. Co., 6 Pa. Dist. Repr. 655; Merchants’ Ins. Co. v. Paige, 60 111. 448; Pratt v. Ins. Co., 6 N. Y. Supp. 78; Sitler y. Fire Ins, Co. (No, 1), 18 Pa. Superior Ct. 139.</p> <p>When the breach exists at the moment when, if ever, the contract comes into existence it must be waived at that moment, if ever, and at that very instant the writing purports to establish and insist upon the condition: Batchelder v. Queen Ins. Co., 135 Mass. 449.</p> <p>The company is charged with-knowledge of its own records: Lanigan v. Prudential Ins. Co., 63 Hun, 408 (18 N. Y. Supp. 287); Morrison v. Wisconsin Odd Fellows Mut. Life Ins. Co., 59 Wis. 162 (18 N. W. Repr. 13); Barnes v. Union Ins. Co., 45 N. H. 21; Rowley v. Empire Ins. Co., 36 N. Y. 550; 2 May on Insurance, sec. 370.</p>

<p>Appeal, No. 16, Oct. T., 1903, by defendant, from judgment of C. P. Phila. Co., Dec. T., 1901, No. 232, on verdict for plaintiff, in case of Adeline Bendon v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Me Michael, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>This case was ruled by Jennings v. Union Traction Co., 206 Pa. 31. And there was really nothing new in the Jennings decision: Blue v. Penna. R. R. Co., 1 Mona. 757; Foran v. Traction Co., 22 Pa. Superior Ct. 10; Continental Pass. Ry. Co. v. Swain, 13 W. N. C. 41; Jackson v. Phila. Traction'Co., 182 Pa. 104.</p> <p>cited on the question of contributory negligence : Sweeney v. Union Traction Co., 199 Pa. 293; Kohler v. Penna. R. R. Co., 135 Pa. 346; Becker v. Penna. R. R. Co., 10 Pa. Superior, Ct. 19; Mitchell v. Electric Traction Co., 12 Pa. Superior Ct. 472 ; Moran v. Versailles Traction Co., 188 Pa. 557..</p>

<p>Appeal, No. 112, Oct. T., 1904, by plaintiff, from judgment of C. P. Northumberland Co., Dec. T., 1902, No. 257, on verdict for defendant, in case of William B. Crist v. Charles Boust.</p> <p>Assumpsit for land in Northumberland borough. Before Auten, J.</p> <p>The court directed a verdict for defendant.</p> <p>Verdict and judgment for defendant.</p> <p>Errors assigned were (1, 2) in overruling the offers of evidence quoted hr the opinion of the Superior Court; and (3) in directing a verdict for defendant.</p> <p>cited: Williams v. Hillegas, 5 Pa. 492; Bowser v. Cravener, 56 Pa. 132 ; Thompson v. Philadelphia & Reading Coal, etc., Co., 133 Pa. 46; Williams v. Beam, 196 Pa. 341; Ament v. Wolf, 33 Pa. 331; Thompson v. Milford, 7 Watts, 442 ; Lawrence v. Hunter, 9 Watts, 64; Hottenstein v. Lerch, 104 Pa. 454.</p> <p>cited: Murphy v. Loyd, 3 Wharton, 538; Muhlenberg v. Druckenmiller, 103 Pa. 631; Peters v. Condron, 2 S. & R. 80; Kennedy v. Skeer, 3 Watts, 95; Schrack v. Zubler, 34 Pa. 38; Olewine v. Messmore, 128 Pa. 470; Hole v. Rittenhouse, 37 Pa. 116; Ament v. Wolf, 33 Pa. 331.</p>

Appeal, No. 138, April T., 1905, by defendant, from order of Q. S. Allegheny Co., June T., 1904, No. 643, for support, in case of Commonwealth v. E. L. Mills. Proceedings under the Act of April 13, 1867, P. L. 78, for support. At the hearing the defendant denied the marriage, but the court on evidence of cohabitation and reputation found that a marriage existed, and made an order on the defendant to pay Ms wife, Alma Mills, the sum of $30.00 per month.

<p>Married women — Debts—Evidence—Burden of proof — Necessaries.</p> <p>In an action upon the promissory note of a married woman dated June 1, 1893, it is not incumbent upon the plaintiff to show that the money was devoted to a purpose for which a married woman could contract under the act of 1887, even as that act was construed in Real Estate Investment Co. v. Roop, 132 Pa. 496. On the contrary the burden is on the defendant to prove that the contract was one of the kinds prohibited by the act of 1887. Proof that the proceeds of the note were used for the purpose of sending a sick son to a warmer climate does not rebut the presumption in favor of the .validity of the note. Such an application might be considered, under some circumstances, as a necessary.</p>

Appeal, No. 166, Oct. T., 1904, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1904, No. 3,946, discharging rule for judgment for want of a sufficient affidavit of defense in case of Abraham Rheinstrom and Tsaac Rheinstrom, trading as Rheinstrom Brothers v. Martin L. Wolf. Assumpsit for liquors sold and delivered. The material averments of the affidavit of defense are quoted in the opinion of the Superior Court.

<p>Appeal, No. 182, Oct. T., 1904, by defendant, from judgment of C. P. Huntingdon Co., Dec. T., 1902, No. 19, on verdict for plaintiff, in case of Alex. Wike v. Wm. H. Woolverton.</p> <p>Assumpsit for work and labor. Before Woods, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $1,260.58. Defendant appealed.</p> <p>Errors assigned were various rulings in evidence and instructions.</p>

<p>Executors and administrators — Loan to estate — Receipt evidence — Question for jury.</p> <p>An executor who borrows money-for the estate of the decedent may bind himself personally for the repayment of the money if it is not used as agreed at the time of the loan.</p> <p>Where a check is indorsed over to an executor as such and four days thereafter the executor receipts for it as a loan to the estate of the decedent, parol evidence may be admitted to show that the money was to be returned if it was not used for a particular purpose, and if the executor denies this, and alleges another purpose than that stated by the lender, the case is for the jury.</p>

<p>Appeal, No. 126, Oct. T., 1904, by defendant, from judgment of Q. S. Berks Co., Sept. T., 1903, No. 96, on verdict of guilty in case of Commonwealth v. Wolf Fetterman.</p> <p>Indictment for obtaining money by false pretenses.</p> <p>The jury returned a verdict of guilty upon which the court passed the following sentence :</p> <p>And now to wit: December 14, the defendant is sentenced to pay a fine of $15.00 to the commonwealth for the use of the county of Berks, that he restore the property obtained to its owner, or pay the like value thereof, if not already done so, that he undergo an imprisonment in the Eastern State Penitentiary, at separate and solitary confinement at labor for a period of one year and six months to be computed from this day, that he pay the costs of this prosecution and stands committed until this sentence is complied with.</p> <p>Error assigned was the sentence of the court.</p> <p>The sentence is illegal. Under some decisions in this state the prisoner would be entitled to a discharge: Daniels v. Com., 7 Pa. 371; Clellans v. Com., 8 Pa. 223 ; Kroemer v. Com., 3 Binney, 577; Beale v. Com., 25 Pa. 11.</p>

<p>Road law — Report of viewers — Failure to report at next term,.</p> <p>The third section of the Act of June 13, 1836, P. L, 551, which directs that road viewers shall report at the next term after their appointment, is mandatory, and if they fail to do so all their subsequent proceedings are void.</p> <p>Where a view cannot be made in time for a return to the next term of court, a continuance of the order shall be obtained from the court and a record thereof made so that parties interested may have notice that the proceeding is still pending. If no report is made to the next term, those opposing the road have a right to consider that it is abandoned.</p> <p>. Where the record of a road case shows that a report of viewers was not made until after the expiration of the next term following their appointment, and an exception averred that the proceedings were irregular and defective, the appellate court may set aside the irregular proceedings.</p>

<p>Bailment — Definition—Classification—Lien—Carriers—Warehousemen.</p> <p>A bailment is a delivery of personal property in trust. The character of the trust may be as broad as its duties require ; yet, speaking generally, all deliveries of personal property to another in trust for a lawful purpose are bailments. Classifications have sprung from the nature of the trusts rather than from any inherent principle of distinction. The duties of the bailee have served as designations, by which they are most commonly known. Thus we have warehousemen, common carriers, innkeepers, mechanics, tradesmen, etc.; but the underlying principle of a bailment is the delivery of personal property in trust for a certain purpose.</p> <p>A common carrier is one whose business it is to carry chattels for all per'sons who may choose to employ and remunerate him; and this applies to carriers by land and water, without regard to distance or motive power. The duties and responsibilities of a common carrier are to faithfully perform the undertaking, without regard to his qualifications, and he may limit his common-law liability by contract except for his torts or gross negligence. In the absence of a stipulation, therefore, he is entitled to be paid what the particular services are worth and as security for this the law gives him alien on the property bailed, while in his possession.</p> <p>Generally speaking one who receives the property of another, to do something to it or about it, or transport it, or care for it, has a lien upon it for the particular service rendered in relation to it, while the property is in his possession.</p> <p>Where an owner of barges holds himself out as ready to carry anything his barges are suited for, for all persons, at a profit,-he is a common carrier, and if the barges are detained by low water, and their cargoes have to be cared for, the owner of the' barges is in the position of a warehouseman ; but whether as carrier or warehouseman, he has a lien for his charges.</p>

<p>Slandei — Privileged communication — Burden of proof — Malice.</p> <p>A statement made in good faith relating to a subject in which the person making the communication is interested or in regard to which he has a social or moral duty, when made to one having a like interest or duty, is privileged, and in such case the burden of proof rests on the party claiming to have been slandered to show that the communication was malicious. This includes communications bona fide made by the author in the prosecution of his own rights or interests. As to such communication the law does not imply malice from the communication itself. The plaintiff must satisfy the jury of the existence of actual malice before he is entitled to a recovery.</p> <p>Whether a communication is privileged or not is a question of law to be determined by the court. Whether the defendant was actuated by malicious motives in speaking the defamatory words is a question of fact for the jury.</p> <p>In an action of trespass for scandal it appeared that when the borough in which defendant lived was about to open a street, the defendant appeared at a meeting of the council and stated that'the .borough authorities had entered upon his land without right and were causing damage to his property. A deed was then exhibited by the clerk of the council which it was alleged had been executed by the defendant and under which the borough claimed the right to occupy the defendant’s land included within the lines of the street. The deed purported to have been acknowledged before the plaintiff, a justice of the peace. The defendant denied that he ever executed it in the presence of the plaintiff. Thereupon the plaintiff brought the action for the defamation implied in the defendant’s denial. Held, that the defendant’s denial was privileged, and'that the burden was on the plaintiff to show that the words used were not true, and that the defendant uttered them maliciously.</p>

<p>Constitutional law — Title of statute — Adulteration of food — Drink.</p> <p>The Act of June 26, 1895, P. L. 317, entitled “An Act to provide against the adulteration of food, and providing for the enforcement thereof,” which states in section 2 of said act that “the term food, as used herein, shall include all articles used as food or drink by man, whether simple, mixed or compound,” is constitutional as applied to adulterated blackberry wine, and does not violate the provision of sec. 3, art. Ill of the constitution of Pennsylvania, relating to the title of statutes.</p>

<p>Appeal, No. 52, Oct. T., 1904, by plaintiff, from order of C. P., No. 4, Phila. Co., Sept. T., 1897, No. 195, discharging rule to strike off judgment in case of •Henry C. C. Astwood v. John Wanamaker, Thomas B. Wanamaker and Robert C. Ogden, trading as John Wanamaker.</p> <p>Rule to strike off judgment entered upon the award of Frank P. Prichard, Esq., referee.</p> <p>From the record it appeared that the agreement of reference was as follows:</p> <p>“ Whereas, it is desired to settle and forever dispose of all questions and controversies arising and existing between H.' C. C. Astwood and John Wanamaker, Thomas Wanamaker and Robert C. Ogden, trading as John Wanamaker.</p> <p>“Now, to wit, April 15, 1899, it is hereby agreed by and between the parties hereto that all matters and questions in controversy between them shall be referred and submitted to Frank P. Prichard, Esq., whose report and conclusion upon the matter submitted to him shall be binding and final and conclusive upon us without the right of either party to appeal or take.out a writ of error, and we hereby pledge ourselves to abide by and to carry out his decision. And it is hereby agreed that said Frank P. Prichard, Esq., shall have the power and authority to issue subpoenas tQ witnesses to appear before him and to administer oaths or affirmations to them, and to require the production of all books, papers and documents as he or the party hereto shall deem necessary to the controversy.</p> <p>“And it is further agreed that a judgment may be entered in any court of common pleas of Philadelphia county, Pennsylvania, in favor of the party in whose favor said Frank P. Prichard, Esq., shall find and against the other party for the amount of his finding or award, if any, together with the costs of said reference, which sum is hereby confessed. And we further agree and hereby authorize and empower any attorney of any court of record in Pennsylvania to appear for and to enter a judgment against us as aforesaid, without any liability on the part of said attorney for which this shall be a sufficient warrant. And in the entry of said judgment it shall only be necessary for said attorney to file at the time of entering said judgment a copy of this agreement verified by affidavit, together with a copy of the decree or award of said Frank P. Prichard, Esq., any law or rule of court to the contrary notwithstanding.</p> <p>“ Witness our hands and seals the day and year aforesaid.</p> <p>“ Signed, sealed and delivered in the presence of us,</p> <p>“ William L. Nevin.</p> <p>“ As to Robert C. Ogden.</p> <p>“ D. E. Byrne.</p> <p>“ As to H. C. C. Astwood.</p> <p>“ Francis C. Adler.</p> <p>“ John Wanamaker. [Seal]</p> <p>“ Thomas B. Wanamaker. [Seal]</p> <p>“ Robert O. Ogden. [Seal]</p> <p>“ Trading as John Wanamaker.</p> <p>“H. O. C. Astwood. [Seal]”</p> <p>The referee found as a fact that the defendants were not at the time he made his report indebted to the plaintiff.</p> <p>He also reported that when certain payments were made to defendants, plaintiff would be entitled to an assignment of a certain contract and the return of any collateral remaining in defendants’ hands belonging to plaintiff.</p> <p>Judgment was entered upon the award. The court discharged the rule to strike off the judgment.</p> <p>Error assigned was the order of the court.</p> <p>There is no authority in law for entering the judgment in question, even if a valid judgment upon the record of this suit: Fox v. Ealer, 2 Miles, 169 ; Otis y. Northrop, 2 Miles, 350 ; Okison v. Flickinger, 1 W. & S. 257; Ford v. Keen, 13 Pa. 179 ; Buckman v. Davis, 28 Pa. 211; Painter v. Kistler, 59 Pa. 331; Quay v. Westcott, 60 Pa. 163; Reading Industrial Manufacturing Co. v. Graeff, 64 Pa. 395.</p> <p>But even assuming that the defendants had any right to confess a judgment we submit that no such judgment could be entered and sustained by the court unless it was based upon an award which could be enforced by suit or set up as a defense under the-prevailing rules laid down in numerous decisions with regard to awards of the same kind. The judgment is not in pursuance of the arbitration, and is neither definite nor final : Hamilton v. Hart, 23 W. N. C. 480; Samuel v. Cooper, 2 Ad. & El. 752; Bowes v. Fernie, 4 M. & Cr. 150; Morse on Arbitration, 345; Russell on Arbitration (4th ed.), 249; Spalding v. Irish, 4 S. & R. 322; Gratz v. Gratz, 4 Rawle, 411; Bellas v. Dewart,' 17 Pa. 85; Etnier v. Shope, 43 Pa. 110; Stanley v. Southwood, 45 Pa. 189; McCune v. Lytle, 197 Pa. 404; Connay v. Halstead, 73 Pa. 354; White v. Shriver, 2 Watts, 471.</p> <p>-An agreement in a contract that any dispute shall be decided by any person named therein, whose decision shall be final and without appeal, ousts the jurisdiction of the court and substitutes therefore the decision of the person so chosen: Reynolds v. Caldwell, 51 Pa. 298 ; O’Reilly v. Kerns, 52 Pa. 214; Howard v. Allegheny Valley R. R. Co., 69 Pa. 489; Quigley v. DeHaas, 82 Pa. 267 ; Hartupee v. Pittsburg, 97 Pa. 107; Brown v. Decker, 142 Pa. 640, and the decision of such arbitrator is final and conclusive, and without appeal to the court: McCune v. Lytle, 197 Pa. 404; Hostetter v. Pitts-burg, 107 Pa. 419; McCauley v. Keller, 130 Pa. 53 ; Kennedy v. Poor, 151 Pa. 472; English v. School Disk, 165 Pa. 21; Gowen v. Pierson, 166 Pa. 258; Barclay v. Deckerhoof, 171 Pa. 378; Huekestein v. Kaufman, 173 Pa. 199.</p>

<p>Easement — Alley—Adverse use — Prescription—Remedy at law.</p> <p>An uninterrupted use of an alley for a period of twenty-one years unexplained is sufficient to create a right by prescription and to authorize a presumption of a grant.</p> <p>Where the use of an easement is apparent and continuous, the burden is on the owner of the land to show that the easement was enjoyed under some permission or contract not consistent with the right claimed by the other party.</p> <p>Where one uses an easement whenever he sees fit, without asking leave and without objection, the user is adverse.</p> <p>Where a person claims title to an easement in an alley by adverse user for more than twenty-one years, and the owner of the land denies the title and alleges that the user was permissive only, equity has no jurisdiction. The remedy is at law.</p>

<p>Appeal No. 69, Oct. T., 1903, by plaintiff, from order of C. P. Pliila. Co., June T., 1899, No. 92, restraining execution against real estate in case of Reading Trust Company to use of John Henry Clreetbam v. Pennsylvania Trust Company, Executor of Caroline Rastaetter.</p> <p>Scire facias to continue lien of judgment.</p> <p>Endlich, J., stated the facts to be.as follows :</p> <p>Caroline Rastaetter died in November, 1897, owing a certain debt to a party now represented by the Reading Trust Company. By her will she constituted the Pennsylvania Trust Company her executor, bequeathed her personalty to various legatees, and devised her real estate to one of them, Louisa Rastaetter. Within six months after the testatrix’s decease her executor filed its account showing a balance of personalty in its hands, which, upon audit by the orphans’ court, was ordered to be distributed to the legatees, there having been no notice or claim for payment of the debt referred to. The money was at once paid out by the executor to the legatees without exacting refunding bonds ; after which, but within a year from the death of the testatrix, demand for payment of said debt was made upon the executor and upon refusal thereof suit was brought against the same, resulting in the entry of a judgment against it to No. 50, May T., 1899, J. D. An application to the orphans’ court to open the adjudication previously made and distribute to the Reading Trust Company the amount of its judgment with interest was refused by that court, but upon appeal to the Superior Court allowed: Rastaetter’s Est., 15 Pa. Superior Ct. 549. Thereupon, instead of enforcing the decree in its favor against the executor, the Reading Trust Company issued this sci. fa. against the executor, and Louisa Rastaetter, devisee of Caroline Rastaetter, in order to continue the lien of the judgment No. 50, May T., 1899, J. D., and to collect the same out of the land devised; and shortly afterwards marked the suit to the use of J. H. Cheetham. At the trial a verdict was directed in favor of plaintiff, subject to a point reserved.</p> <p>The court made the following order:</p> <p>And now, April 6, 1903, the within matter having come on to be heard and having been heard, upon petition and answer, on due consideration thereof and it appearing that the money can be collected from the Pennsylvania Trust Company, the rule to show cause is made absolute and it is decreed that the plaintiff be restrained from executing the said judgment, by levying upon and selling the real estate devised to the petitioner by her mother Caroline Rastaetter.</p> <p>Error assigned was the order of the court, quoting it.</p> <p>A creditor’s right under the laws of Pennsylvania is to be paid out of the estate of his deceased debtor; and in furtherance of this right, he may pursue either the real'estate in the hands of the heir or devisee, or the personal estate in the hands of the executor or administrator, or both. And if he lose his right of payment out of the personal fund by mere nonpresentation of his claim within the time limited he may yet resort to the real estate, and his omission to pursue the personalty does not disentitle him to enforce payment out of the real estate under the lien which the statutes give to him: Sergeant v. Ewing, 36 Pa. 156 ; Smith v. Seaton, 117 Pa. 382.</p> <p>If, as a general proposition, it were true that a devisee may, in relief of the land devised, oblige a creditor to enforce payment of his claim by compelling the executor to restore a fund erroneously distributed by him, such rule could not be applied where, as in the case under consideration, the devisee herself was a party consenting to the erroneous distribution and receiving part of the moneys distributed: Sergeant v. Ewing, 36 Pa. 156.</p> <p>An administrator, who has paid money within the year to a creditor of the intestate on account of a just debt, cannot recover it back on the ground that, by reason of deficiency in the assets, it afterwards appears to have been an over-payment by mistake : Carson v. McFarland, 2 Rawle, 118; Montgomery’s App., 92 Pa. 202; 'Robin’s Est., 180 Pa. 630.</p>

Appeal, No. 85, April T., 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1901, No. 310, on verdict for plaintiff in case of J. Frank Kelton and James W. Kelton, his minor son, v. Kasimer Fifer and John Campbell. Trespass to recover damages for personal injuries. Before Rodgers, J. The circumstances of the accident are stated in the opinion of the Superior Court. The court refused binding instructions for defendant.

<p>Appeals — Superior Court — Jurisdiction—Mandamus.</p> <p>No appeal lies to the Superior Court from a judgment in mandamus proceedings commanding the defendants to permit the plaintiffs to inspect the books of a corporation. In such a case the subject of controversy is not the ownership or possession of real or personal property, or any right, the value of which is admitted or asserted to be less than |1,500.</p> <p>Where an appeal is erroneously taken to the Superior instead of to the Supreme Court, the writ will not be quashed, but the case will be certified to’the Supreme Court for hearing and decision.</p> <p>Objection that an appeal will not lie to the Superior Court in any mandamus case whatever, is not sustained.</p>

Appeal, No. 13, March T., 1904, by plaintiff, from judgment of C. P. Cumberland Co., for plaintiff on case stated in suit of W. H. Dougherty v. Cumberland County. Case stated to determine whether the sheriff was entitled to a fee of fifty cents from the county for each vagrant committed, and also a fee of fifty cents from the county for the discharge of prisoners, other than the vagrants, from his custody.

Appeal, No. 13, April T., 1904, by-defendant, from judgment of Q. S. Venango Co., Jan. T., 1904, No. 2, on verdict of guilty in case of Commonwealth v. J. H. Dingman. Indictment for larceny. Before CRISSWELL, P. J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed. JSrrors assigned appear by the opinion of the Superior Court.

Appeal, No. 170, Oct. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1901, No. 4198, awarding writ of restitution without directing payment of money into court, in case of Michael A. Lengert v. William J. Chaninel, Mortgagor, and Edward D. Chaninel, Real Owner. Petition for writ of restitution. The facts appear by the opinion of the Superior Court and by Lengert v. Chaninel, 208 Pa. 229.

Appeal, No. 101, Oct. T., 1904, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1902, No. 3309, on verdict for plaintiff in case of Serena Anderson v. Alta Friendly Society. Assumpsit on a certificate of membership in an insurance society.

<p>Appeal, No. 160, Oct. T., 1904, by the Philadelphia & Reading Railway Company, Garnishee, from orders of C. P. No. 5, Phila. Co., June T., 1904, No. 1756, discharging rule's to dissolve and quash a foreign attachment in case of Dempsey, Son & Co. v. Petersburg Savings and Insurance Company, defendant and the Philadelphia and Reading Railway Company, Garnishee.</p> <p>Rules to dissolve and quash writs of foreign attachment.</p> <p>The opinion of the Superior- Court states the case.</p> <p>Errors assigned were the orders of the court.</p> <p>Upon proof of facts not disclosed by the record and showing the absence of jurisdiction the' court • has power to quash a foreign attachment under a rule to quash: Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187; Steele v. Goodwin, 113 Pa. 288; Bank v. Crosby, 179 Pa. 63; Turner v. Larkin, 4 Pa. Superior Ct. 284.</p> <p>What the garnishee offers, on behalf of the defendant, to prove, by the depositions to be taken under the rule to quash, is not that the plaintiffs have no cause of action, but, the fundamental and jurisdictional fact that there is a lack of privity or contractual relations between the defendant and these plaintiffs and, if this be proven, the jurisdiction in foreign attachment fails and the attachment must be quashed : Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187; Holland y. White, 120 Pa. 228 ; Miller v. Spreeher, 2 Yeates, 162.</p> <p>The discharge of the three rules in the case at bar constituted a final judgment and is the subject of an appeal.</p>

Appeal, No. 12, Oct. T., 1904, by defendants, from decree of C. P. Northumberland Co., equity docket, 1902, No. 250, on bill in equity in case of Annie M. Barrell, Alice Sizer and Frederick Sizer v. Susan K. Adams and George G. Adams, administrators of George C. Adams, deceased. Bill in equity for an injunction. The opinion of the Superior Court states the case. Error assigned was the decree enjoining sale of the lands.

<p>Appeal, No. 214, Feb. T., 1903, by plaintiff, from judgment of C. P. Northumberland Co., Dec. T., 1903, No. 172, on verdict for defendants in case of Susan K. Adams and G. C. Adams, Administrators of George A. Adams, deceased v. Annie M. Barrel! and Alice Sizer.</p> <p>Ejectment for land in Shamokin Township. Before Sav-IDGrE, P. J.</p> <p>The facts appear by Barrell v. Adams, supra, and by the opinion of the Superior Court.</p> <p>The court directed a verdict for defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 153, Oct. T., 1904, by Elias T. Winter, from decree of O. O. Lancaster Co., Feb. T., 1902, No. 29, making allowance for widow in Estate of Elias Winter, deceased.</p> <p>Petition for allowance.</p> <p>Smith, P. J., filed the following opinion:</p> <p>The prayer of the petitioner is that the trustee be ordered to pay to her “ $250 clear of all deductions, and as much more as the court finds necessary.” The petitioner is Amanda Winter, the widow of the decedent, whose will is as follows :</p> <p>“ Item: I give and bequeath to my beloved wife, Amanda, One thousand dollars in cash, and two hundred and fifty dollars yearly, or as much more as she may need for her comfortable support and maintenance, for and during her natural lifetime, also the use, occupancy and control of my real estate, on which I now reside, for and during her natural life, or as long as she may wish to occupy the same, if at any time she may elect to remove from said place, then I hereby authorize my said hereinafter named executor, with her consent to sell the same, and give, execute and deliver valid Deed or Deeds, for the conveyance of said real estate, in as legal a manner as I could if living.”</p> <p>The $1,000 has been paid to her. Just as explicit as that is the bequest of “ two hundred and fifty dollars yearly, or as much more as she may need for her comfortable support and maintenance.” The whole estate may be necessary for her comfortable support and maintenance, and, if so, unless- she has done that which bars her enjoyment of it, for that must it be used. There have been disclosures connected with the disposition, and may be dissipation, of certain funds of this estate which cannot fail to excite a sympathy for the petitioner. It appears as if she, a feeble woman, eighty years old, had fallen an easy prey to the avarice and cunning of those who owed her protection and filial affection. Notwithstanding the testator provided amply for her support, the testimony shows that she received but $147 in the last three years.</p> <p>In addition to the bequests referred to, the testator also gave to her the “ use, occupancy and control of my real estate, on which I now reside, for and during her natural life, or as long as she may wish to occupy the same, if at any time she may elect to remove from said place, then I hereby authorize my said hereinafter named executor, with her consent to sell the same.” This real estate was sold April 1,1895. It is claimed that it was worth $150 a year to her. It sold for $2,500. We will assume that the net income therefrom annually amounts to 1100.</p> <p>We do not understand that the present trustee is opposed to paying what is necessary for the support of the petitioner, but with a proper precaution asks that his authority be defined. His answer and the testimony show that on December 31, 1901, the executor, as testamentary trustee, lent $1,650 to Francis Winter, who will be entitled to the income of a fund after the death of his mother, the petitioner, and took his note therefor; that Amanda Winter, Emma Stoneroad and A. J. Whiter, the widow and two of the remaindermen, became the sureties for the payment of this note ; that on April 1, 1902, he lent Aldus J. Winter $100, for which he took his note; that under his signature appears “ I hereby guarantee the payment of the interest on the above note,” signed “ Amanda Winter; ” that on the same day he lent the same Aldus J. Winter $1,382.88, and took his note ; that on the same day Aldus J. Winter acknowledged to have received from Amanda Winter $291.26, “the interest on the within note to April 1, 1902, leaving a balance due April 1,1902, on said note of $1,091.62; ” that on the same day Amanda Winter gave a receipt to George W. Eaby, the then trustee, for a like sum of $291.28, with the following appearing therein, “interest on the above note in full to date and I hereby become security for the payment of the interest $291.26 on the above note;” that on the same day he lent to Emma Stoneroad $100 on her note; that on the same piece of paper over the signature of Amanda Winter appears, “ I hereby guarantee the payment of the interest on the above note; ” that on April 10, 1902, he lent Emma Stoneroad on her note $650; that on the same day Emma Stoneroad acknowledged to have received of Amanda Winter $32.50, the interest on the noté; and that on the same day Amanda Winter gave a receipt to the trustee for the same amount, and we find embodied in this receipt, “ I hereby become security for the payment of the interest on the above note.” Thus we find the life tenant, with two of the remainder-men for $1,650, and guarantor for the payment of interest at five per cent on other notes of remainderman, amounting to $1,941.62.</p> <p>Such investments by a trustee cannot be too severely condemned, and that they were acceptable to a succeeding trustee is a surprise. Having accepted them, it was his duty to collect the interest, from the makers of the notes. If this was not possible and the petitioner was obliged to pay it, there was yet left for her annually $170.42, independent of the reserve. “ As much more as she may need for her comfortable support and maintenance ” is designated the reserve. We have estimated on the “ two hundred and fifty dollars yearly ” and the income of the proceeds of the real estate. While the testator did not specifically give, in the event of the sale of the real estate, the income of the proceeds thereof to his widow, such, nevertheless, is a fair interpretation of his intention. But it is not a material question, as the whole estate is subject to her needs.</p> <p>There was owing the petitioner for three years ending April 1, 1904, $1,050. Deducting from this the cash paid her, $147, interest claimed to April 1, 1904, $179.58, amounts receipted for April 1, 1902, and April 10, 1902, $291.26 and $35.50 respectively, will leave $396.66. From this we will deduct $96.66, to cover commissions and costs, fixing as the net balance owing her at that time $300. While it manifestly was the intention-of the testator to provide sufficiently for the comfort and maintenance of his widow, his rvords cannot be interpreted to mean a license to fritter away his estate, even though instigated by remaindermen ; neither can they be understood as permitting his widow to suffer for the necessaries of life by reason of an improvident act.</p> <p>It is now ordered and decreed that the trustee pay to Amanda Winter $300 as of April 1, 1904.</p> <p>Error assigned was the decree of the court.</p> <p>If a cestui que trust concurs in a breach of trust, he is forever estopped from proceeding against the trustee by the consequences of the act: Lewin on Trust, vol. 3, page 918 ; Cooper’s Est., 30 W. N. C. 285 ; Abbott v. Reeves, 49 Pa. 494.</p> <p>The general rule is that a trustee has no power to make any contract with his cestui que trust, which is not fair and advantageous to her, and in which a full and adequate value is not received by her: St. Paul Trust Co. v. Strong, 85 Minn. 1 (88 N. W. Repr. 256); Smith v. Howlett, 29 N. Y. App. Div. 182 (51 N. Y. Supp. 910); Nichols’s App., 157 Mass. 20 (81 N. E. Repr. 688).</p> <p>A trustee will not be allowed to satisfy a private claim which he holds against his cestui que trust out of her interest in the fund, whether incurred before or after his appointment.</p> <p>A trustee will not be permitted to deprive himself of a power conferred upon him for the benefit of the trusty or so to fetter its exercise by himself, or his successor, as to defeat the purpose of the trust: Hickok v. Still, 168 Pa. 155.</p> <p>The court will see to it that no act of the trustee shall thwart or annul the will of the donor: "Williams’s App., 73 Pa. 249; Bacon v. Bacon, 55 Yt. 243.-</p> <p>The trust established for Amanda Winters has the effect of a spendthrift’s trust, as regards all the parties beneficially interested in the will, and neither the trustee nor the remainder-men can jeopardize the cestui que trust’s interests or make the same liable, by any obligation they induce her to sign; while if she contracted liability to a stranger she might jeopardize her interests, by reason of this trust in the latter instance, not fully measuring up to a spendthrift’s trust against strangers: Smith v. Savidge, 4 Penny. 320.</p>

Appeal, No. 225, Oct. T., 1903, by plaintiff, from judgment of C. P. Berks Co., May T., 1903, No. 34, on certiorari in case of Henry J. Seidel v. William H. Sperry. Certiorari to two justices of the peace. Endlich, J., filed the following opinion: This is a landlord and tenant proceeding under the act of 1772.