Volume 27 — Pennsylvania Superior Court Reports

<p>Appeal, No. 100, Oct. T., 1904, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1903, No. 93, dismissing certiorari in case of Radnor Township v. Samuel Bell, Jr.</p> <p>Certiorari to judgment of a justice of the peace.</p> <p>From the record it appeared that the defendant was convicted of violating the following ordinance:</p> <p>“ An Ordinance to fix the Speed at which Automobiles and Bicycles are to be Propelled upon the Public Highways.</p> <p>“ Section I. The Board of Commissioners of Radnor Township, Delaware County, Pennsylvania, do ordain, That, on and after May fifth, Nineteen Hundred and Two (1902), all Automobiles and Bicycles shall be propelled upon the public highways of said Radnor Township, at a speed not exceeding ten miles an hour.</p> <p>“ Section II. That if any such Automobile or Bicycle should cause any horse or other animal which is ridden or driven upon said highway to frighten, the driver of such automobile or bicycle shall immediate^ come to a full stop, and remain so until such horse or other animal has safely passed said automobile or bicycle.</p> <p>“ Section III. That every driver of Automobiles or Bicycles violating this Ordinance shall be punished by a fine of Ten Dollars ($10.00) upon conviction for the first violation thereof; by a fine of Twenty-five Dollars ($25.00) upon conviction for the second violation thereof; and by a fine of Fifty Dollars ($50.00) upon conviction for the third violation thereof; and by a fine of Fifty Dollars ($50.00) upon conviction for each subsequent violation thereof; to be collected according to law, before any Justice of the Peace.</p> <p>“ Section IV. That all Ordinances or parts of Ordinances inconsistent with the provisions of this Ordinance, be, and the same are, hereby repealed.</p> <p>‘^Approved this Monday, April Twenty-eighth, Nineteen Hundred and Two (1902).</p> <p>“ (Signed) John P. Wood,</p> <p>“ Attest “ Vice-President.</p> <p>“ F. A. Cañizares,</p> <p>“ Secretary.”</p> <p>The court, in an opinion by Johnson, J., dismissed the certiorari and affirmed the judgment of the justice of the peace.</p> <p>Error assigned was the judgment of the court.</p> <p>Ellis Am,es Ballard, with him Rufus E. Shapley, for appellant.' — No power is granted under the act of 1899, and its supplements, to commissioners of townships of the first class to regulate the rate of speed of travel upon highways.</p> <p>Even if the subject is one which the township might regulate in default of state legislation, the fact that the state has legislated on the subject takes away any implied power which might otherwise vest in the township, and, therefore, supersedes and suspends the township’s enactment.</p> <p>Even if the power to legislate on this subject has been vested in the township and remains in it co-ordinately with the general government, the present ordinance is illegal and void (a) because it is in form and wording insensible and impossible of enforcement and (5) because in effect it is unreasonable.</p>

<p>Appeal, No. 71, May T., 1904, by defendant, from judgment of Q. S. Lawrence Co., March T., 1903, No. 10, on verdict of guilty, in case of Commonwealth v. Edward Cooper.</p> <p>Indictment for a conspiracy to commit abortion. Before Wallace, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Error assigned was portion of charge quoted in the opinion of the Superior Court.</p>

<p>Appeals — Premature appeal — Motion to quash — Judgment—Verdict.</p> <p>Where an appeal has been taken without judgment having been entered upon the verdict in the court below, and the appellee insists that the appeal shall be quashed for that reason, the motion to quash must prevail.</p>

<p>Appeal, No. 143, Oct. T., 1904, by W. C. Bishop, administrator d. b. n. c. t. a. of the estate of Jacob Coover, deceased, from decree of O. C. Phila. Co., refusing order to pay over money in estate of Jacob Coover, deceased.</p> <p>Petition to pay over money.</p> <p>The material portion of Jacob Coover’s will is as follows:</p> <p>“ Second. All the residue of my estate, real, personal and mixed, of which I die possessed (excepting my burial lot in Cedar Grove Cemetery), I will and devise to my beloved wife, Sarah A. Coover, to be hers during her life, with the right in-her, however, to use, sell and dispose of any and all of said estate, for the use and support of herself and Mrs. Elizabeth W. Henninger. Should my wife die before Mrs. Elizabeth W. Henninger my will is that such portion of my estate as shall then remain shall be for the use and support of Elizabeth W. Henninger, with the right in her to sell and dispose of the same for her maintenance and support. And upon the death of both my wife, Sarah, and Mrs. Elizabeth W. Henninger, and after the payment of their funeral expenses, what portion of my estate shall then remain shall vest in and become the absolute property of my sister, Eliza Bishop, and her heirs.”</p> <p>Mrs. Henninger survived Mrs. Coover and sold the real estate.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>The court refused to make the order prayed for in the petition.</p> <p>Error assigned was the decree of the court.</p>

<p>Practice, C. P. — New trial — Failure to pay jury fee — Entry of judgment.</p> <p>Where the court discharges a rule for a new trial and thereafter the defendant pays all the costs except the jury fee, in consequence of which omission no judgment is entered, the court may after the expiration of eight months, and in the exercise of its sound discretion, reinstate the rule for a new trial and make it absolute.</p> <p>Until judgment the verdict is under the control of the court by virtue of its common-law powers, as the judge is the essential constituent of the tribunal for jury trial, and may refuse judgment and set aside the verdict for any reason which appeals to his judicial discretion. It is not necessary that his reason should appear of record, though it is better practice that it should.</p>

<p>Appeal, No. 4, Oct. T., 1904, by Edward H. Jamison et al. from order of Q. S. Bucks Co., Nov. T., 1903, incorporating a borough in case of Ivyland Borough.</p> <p>Exceptions to the incorporation of a borough.</p> <p>The opinion of the Superior Court states the case.</p> <p>JSrror assigned was the order of the court.</p>

<p>Appeal, No. 31, April T., 1904, by defendant, from judgment of C. P. Venango Co., Nov. T., 1901, No. 43, on verdict for plaintiff in case of W. J. Bleakley v. George V. Adelman.</p> <p>Assumpsit upon a bond of suretyship by surety against .principal. Before Lindsley, P. J., specially presiding.</p> <p>At the trial the. court admitted in evidence the testimony summarized in the opinion of the Superior Court. [1-3]</p> <p>The court charged in part as follows :</p> <p>[But if you find it (the payment) was made by Mr. Bleakley for the purpose he states, and for the purpose of saving the bondsmen from further liability, and made in good faith and under the circumstances which we have detailed, then it would not be a voluntary payment, but would be involuntary, for the purpose of protecting himself, and also would be in the interest of the defendant, and there may be a recovery.] [4]</p> <p>Defendant presented this point:</p> <p>If the jury find from the evidence that at the time the alleged compromise was made by the plaintiff there had been a hearing upon the exceptions filed to the auditor’s report; that the court had not filed an opinion in said case sustaining said exceptions; that the account had not been surcharged, and that while the exceptions were still pending and undetermined the plaintiff, as bondsman, voluntarily and without the knowledge or consent of the assignee, defendant herein, compromised the claims of the said excepting creditors, such action on his part constitutes a voluntary payment, and the plaintiff cannot recover in this action. Answer: We answer this point in the negative, and refer the facts to you under the instructions which we have given you in our general charge. [4]</p> <p>That under the law and the evidence in this case the verdict should be for the defendant.</p> <p>This point is answered in the negative. [5]</p> <p>Verdict and judgment for plaintiff for $304.89. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-6) above instructions, quoting them.</p>

<p>Appeal, No. 131, April T., 1904, by defendant, from decree of C. P. Warren Co., Sept. T., 1903, No. 34, enjoining the collection of a tax, in case of D. C. Phillips v. Frank Barnhart, Collector of Taxes, and the School District of Warren borough.</p> <p>Bill in equity for an injunction.</p> <p>Lindsey, P. J., found the facts to be as follows :</p> <p>1. The plaintiff, D. C. Phillips, is a resident of the sixth ward in the borough of Warren, Warren county, Pennsylvania, and has been assessed with the occupation of “ laborer ” with a valuation of $50.00.</p> <p>2. The board of school directors of the school district of Warren borough, on June 22, 1903, levied a tax for general school purposes of eight and one-half mills, a sinking fund tax of two mills, a building fund tax of one mill, a tax for the Warren public library of one-half mill, and provided that the whole tax levied for the ensuing year be twelve mills.</p> <p>3. On the same date, June 22, 1903, the said school board levied a per capita tax of $1.00 for school purposes upon each and every male inhabitant of the borough of Warren, of twenty-one years of age, and upwards.</p> <p>4. The school board of said district has placed its duplicate in the hands of Frank Barnhart, collector of taxes, for collection, together with the warrant authorizing and requiring him to collect the said taxes, for the borough of Warren, and on the said duplicate the plaintiff, D. C. Phillips, stands charged with the sum of fl.60.</p> <p>5. The said sum of $1.60 assessed against the plaintiff is composed of a per capita tax of $1.00, and of a tax of twelve mills upon the valuation of the plaintiff’s occupation of $50.00, making a tax of sixty cents upon the value of his occupation.</p> <p>The court entered the following decree :</p> <p>And now, October 19, 1903, this cause came on and after having been fully heard it is ordered, adjudged and decreed that the defendants, Frank Barnhart, collector of taxes, and the school district of Warren borough, their, agents, servants and employees, be restrained and perpetually enjoined by injunction from demanding or collecting the occupation tax for school purposes levied, assessed and apportioned against the said D. C. Phillips as sixty cents, and that the costs be paid by said defendants.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 70, May T., 1904, by defendant, from judgment of Q. S. Lawrence Co., March T., 1903, No. 10, on verdict of guilty in case of Commonwealth v. James R. Haun.</p> <p>Indictment for conspiracy to commit abortion. Before Wallace, P. J.</p> <p>The fifth count of the indictment was as follows :</p> <p>“ And 4he inquest aforesaid, upon their oaths and solemn affirmation aforesaid do further present that the said Albert Itell, the said James R. Haun, the said Edward Cooper, the said Della Talbitzer, afterwards, to wit: On the day and year aforesaid, in .the county of Lawrence, aforesaid, and within the jurisdiction of this court, with force and arms, etc., being persons of evil minds and dispositions, unlawfully and wickedly did conspire, combine, confederate and agree together in and upon the body of her, the said Mabel Williams in the peace of God and of the said commonwealth then and there being, an assault to make with a wicked intent, to wit: to cause and procure the said Mabel Williams, a woman pregnant or quick with child, then and there to miscarry, abort and bring forth the child with which she was pregnant, dead, to the great damage of her, the said Mabel Williams, to the evil example of all good citizens of the said commonwealth, etc., contrary to the form of the act of the general assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”</p> <p>The court charged in part as follows:</p> <p>[Character is that which a man builds for himself by his own acts or sayings. While these witnesses are termed character witnesses they are not, they are witnesses upon reputation. Reputation is that which other people — your neighbors and your associates make for you — it is what they say about you — it is hearsay. They make your reputation — -you make your character. Good reputation may, as I say, work a doubt. To illustrate: This may be far fetched and it is an extreme case. You men might be called here as jurors and we would have William Patterson, president of the National Bank of Lawrence county, charged with being in the lower end of our city and robbing some person of a dime, and they would call witnesses to show his reputation for peacé and good order, you would hesitate tó say he would do such a thing, and hesitation is a natural doubt and would operate in favor of an acquittal of Mr. Patterson. This is an extreme case and I cite it as an extreme case in order to illustrate the effect that evidence of reputation should have. You men have heard it; you have their means of knowledge of knowing what this man’s reputation was, and you have heard them say what it is, and it is for you to say what weight you shall give it in considering.] [14]</p> <p>Yerdict of guilty; upon which the court sentenced the prisoner to imprisonment for two years in the Western Penitentiary.</p> <p>Errors assigned among others were (1-4) in refusing to arrest the judgment; (5-14) portions of charge, quoting them; (22) the sentence of the court.</p>

<p>Appeal, No. 130, Oct. T., 1904, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1904, No. 3341, making absolute rule for judgment for want of a sufficient affidavit of defense in case of E. L. Spellman and J. J. Oesterlein, trading as- E. L. Spellman & Company v. Joseph Kelly.</p> <p>Assumpsit for liquors sold and delivered.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 51, Oct. T., 1904, by defendant, from judgment of Q. S. Schuylkill Co., March T., 1908, No. 204, on verdict of guilty in case of Commonwealth v. Michael Mellet.</p> <p>Indictment for selling colored oleomargarine. Before Marr, J.</p> <p>The indictment charged “ that M. V. Mellet on the 15th day of December, in the year of our Lord one thousand nine hundred and two, at the county aforesaid and within the jurisdiction of this court, with force and arms, etc., did unlawfully sell unto one Robert M. Simmers one (1) pound of oleomargarine at the rate or price of twenty cents per pound, which said oleomargarine had not been made and kept free from all ingredients which caused it to look like yellow butter, and which said oleomargarine was then and there not made from pure, unadulterated milk or cream from the same without the addition of any fat foreign to the said milk or cream, and was then and there made from fats, oils and other oleaginous compounds foreign to the said milk or cream, and then and there contained ingredients which caused it to resemble and look like yellow butter, and to be then and there an imitation of yellow butter, contrary to the form of the act of the general assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”</p> <p>Verdict of guilty upon which the court passed judgment of sentence that the defendant pay a fine qf $300 to the commonwealth. Defendant appealed.</p> <p>Errors assigned appear from the opinion of the Superior Court.</p>

<p>Appeal No. 148, Oct. T., 1903, by plaintiff, from judgment of O. P. Blair Co., Oct. T., 1899, No. 75, on verdict for plaintiff in case of James P. Glasgow v. City of Altoona.</p> <p>Trespass to recover damages for injuries resulting from the pollution of a stream. Before Craweord, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[What is the character of the injury inflicted on him by such pollution as may be directly attributable to the city ? In the light of all the facts before you is there any practicable or feasible means at the disposal of the city by which it may abolish the injurious results it has brought to the plaintiff? If so, the law requires that it make use of those means ; for in the exercise of its rights it must do the least possible injury to the rights of others. If in its natural location or present situation the city can without unreasonable cost and trouble secure another outlet for the sewage emptied into the river at the old gas works, and thereby cut off the pollution at the point where it enters the stream, or if with the pollution of the sewage in the water it is possible either to deodorise or render it harmless, or if by any practical and reasonable method it can he transported over and beyond the plaintiff’s land where, by the natural facilities of the stream or any artificial means adopted it can be carried away, or divested of its injurious qualities, the city is bound to see that this is done. If in any of the ways mentioned the problem of the sewage disposal can be solved by the city without creating and continuing the conditions complained of by the plaintiff, then a remedy is at hand, and the city must make use of it. In such case, the injury of the plaintiff would not be permanent and he could only recover such actual damages as he may have sustained within six years to the bringing of suit. These would include such incidents of loss or expense as may have actually resulted to him within that time, such as destruction or damage to crops, any necessary outlay of money directly occasioned by such pollution. Whatever may be his loss in that line can be ascertained and for that he should be reasonably and justly compensated.] [1]</p> <p>Plaintiff presented these points:</p> <p>6. The mere fact that it is possible by some known method to purify the sewage of the city of Altoona, as it flows into the Little Juniata river and pollutes the water of the same, is no answer to the plaintiff’s claim for injury to his property, caused by the permanent and continuous character of such pollution, as the defendant has failed to show that it has adopted, or is about to adopt, any such method or methods, with a view to correcting the wrongs complained of by the plaintiff. Answer : This point is affirmed, unless the jury find that it is possible and practicable, under existing conditions, to abolish the injurious conditions complained of; in that case they must do so.] [2]</p> <p>7. The city of Altoona, defendant, having shown its knowledge of methods in existence for more than twenty-five years for the disposal of sewage, so as to prevent injury or damage to riparian owners on streams into which its sewage flows, and having failed to dispose of its sewage from its first, second and third sewer districts, which discharge into the Little Juniata river eastward, by the adoption and erection of such known methods, is guilty of negligence and is answerable to the plaintiff, as a riparian owner on said stream, for any damages which he may have sustained by reason thereof. Answer: The city would be answerable to the plaintiff, as we have already stated, if it has failed to prevent actual loss to him that it could have reasonably prevented, and should compensate him for permanent injury, if they have done the best they could do under the circumstances, with this sewage. [3]</p> <p>8. The failure of the city of Altoona, defendant, to adopt well-known methods for the disposal of its- sewage in the first, second and third sewer districts, which discharge into the Little Juniata river, but permitting the same to increasingly flow therein, to the injury of riparian owners along said stream, inter alia, the plaintiff, the jury may conclude that the said city does not intend to adopt any such known methods for the disposal of its sewage, and that it intends to continue the use of the Little Juniata river for sewage disposal in the future as it has done in the past. [4] Answer: The city must abate nuisances like that complained of if means are at its hand to do so. It is not a matter of what the city intends to do, but what they reasonably can and ought to do.</p> <p>Defendant presented these points:</p> <p>1. The plaintiff is only entitled to recover such actual damages as the evidence shows that he sustained through the pollution of this stream for six years prior to August 19,1899, the date of the bringing of this suit. Answer: This point is affirmed as far as actual damages are concerned.</p> <p>12. If the pollution of the stream can be stopped the jury must assume that it will be stopped. Therefore the plaintiff cannot recover damages for any permanent, indefinite depreciation in the value of the plaintiff’s farm, because such pollution will not be permitted to continue; it must be stopped. Answer : Affirmed. [6]</p>

<p>Landlord and tenant — Covenant by landlord to erect a building — Measure of damages — Damages.</p> <p>Where a landlord has covenanted in the lease to erect a building on the demised premises for a particular purpose in accordance with particular plans, and he has failed to erect a proper building in accordance with the covenant, the measure of damages to the tenant is the difference between the rental value of the premises in the condition in which they remained, and that which they would have been in, had the landlord’s covenant been performed.</p> <p>In such a case if the tenant relies entirely upon the landlord making good his covenant, and pays his rent regularly in order to avoid a distress or other process for collecting it, he may thereafter maintain an action of assumpsit against the landlord to recover the excess of rent paid. If in the action thus brought the landlord testifies that the tenant had agreed that the work was satisfactory, and that a retained balance might be paid the contractor, and this is denied by the tenant, the case is for the jury.</p>

<p>Appeal, No. 72, Jan. T., 1905, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1901, No. 688, on verdict for defendant in case of Patrick Lavelle v. E. J. Melley.</p> <p>Assumpsit to recover money in possession of defendant.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Drrors assigned were (1) in giving binding instructions for defendant; (3) in excluding the plaintiff as a witness.</p>

<p>Master and servant — Suit for .wages — Day’s. worlc — Evidence—Question, for jury.</p> <p>In. an action to recover for a certain number of day’s work, the defendant alleged that the plaintiff was notified to quit work but chose to go on, also that he employed an incompetent assistant, and further that there had been a settlement in full. All of this was denied. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 139, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Pbila. Co., Dec. T., 1901, No. 3185, dismissing exceptions to report of referee in case of Estelle Reel v. Adams Express Company.</p> <p>Exceptions to report of referee.</p> <p>Frank P. Prichard, Esq., the referee, reported the facts to be as follows:</p> <p>Plaintiff being the owner of fur garments of the value of $350, which were in storage with a furrier in Philadelphia, directed the furrier to ship the same by Adams Express Company to the plaintiff, at Washington. The furrier had been accustomed to shipping goods by Adams Express Company, and had been furnished by the Adams Express Company with a sign to hang on the front of his place of business, to attract the attention of the express company’s drivers, and with a book of blank receipts to be filled up and signed by the company’s drivers when they called for the goods. On November 7, 1901, the furrier hung out the sign of the Adams Express Company, about nine o’clock in the morning, and about eleven o’clock the same morning a man came into the furrier’s place, bearing in his hand the Adams Express Company’s sign which had been hung out. He was in a uniform apparently similar to that worn by the employees of the Adams Express Company and had a cap with the name “ Adams Express Company ” upon it; and he drove up in a wagon which in appearance resembled the wagons used by the Adams Express, and bore upon, it the name of Adams Express Company. He was given the package containing the fur garments, addressed to the plaintiff at Washington, and he signed a receipt for the same which had been filled out in the book of receipts furnished by the express company to the furrier. He put the package in the wagon and went off. At the same time that he received this package, he received another package of goods for a person at Atlantic City sent under similar circumstances, and he also signed a separate receipt for this second package. The signatures to the two receipts are not alike and are not very legible. The man did not take the goods to the depot or office of the Adams Express Company, nor were the same entered on the records of the Adams Express Company. In fact, the said goods were not received in any way by the Adams Express Company, unless the receipt of the man who took them is to be considered a receipt by the company. The other package of goods similarly disappeared.</p> <p>There was no employee in the employ of the Adams Express Company whose signatures resembled the signatures to the two receipts, nor was there any driver of the Adams Express Company whose name corresponded to either signature. The goods were collected in the morning. The usual time for collecting goods was the afternoon, and the usual driver who collected on that route was a man well known to the furrier, and was not the man to whom the goods in question were delivered. Goods had, however, occasionally been called for in the morning, and by other drivers than the one who usually collected on that route, and while it was not the custom of the express company, there were standing instructions to its drivers to collect whenever they saw a sign out, irrespective of whether or not it was in a place on their respective routes.</p> <p>Unless the man who received and receipted for the package was an employee of the express company defendant, there can, in the opinion of the referee, be no recovery by the plaintiff. The mere adoption by the express company of a system, by which its uniformed employees called in response to a sign, would not, in the opinion of the referee, amount to an agreement that the express company would be responsible for the act of anyone who by copying the uniform might deceive the customer.</p> <p>The real question, therefore, is whether the evidence in this case shows as a matter of fact that the goods were delivered to an employee of the express company.</p> <p>The plaintiff’s evidence was entirely circumstantial, and was confined to the appearance and name on the wagon and the uniform and badge of the driver.</p> <p>The referee found in favor of plaintiff in the sum of $893.22.</p> <p>Exceptions to the referee’s report were dismissed.</p> <p>Errors assigned were in dismissing exceptions to referee’s report.</p>

<p>Mortgage — Production of tax receipts — Covenant■—Installment mortgage.</p> <p>Where an installment mortgage contained a covenant for the production of tax receipts for each year on or before a day named under penalty of the whole debt becoming due, and it appears that the installments were properly paid, but in a particular year there was a default in the payment of taxes and the production of tax receipts, and judgment thereupon was entered on the bond, but before execution issued the taxes were paid, the court will stay an execution issued thereafter, although the plaintiff had no notice of the payment of the taxes.</p>

<p>Appeal, No. 125, Oct. T., 1904, by plaintiff, from order of O. P. No. 5, Phila. Co., March T., 1901, No. 709, refusing to take off nonsuit in case of Thomas Barnes v. Philadelphia, Newtown & New York Railroad Company.</p> <p>Ejectment for land in the thirty-third ward of the city of Philadelphia.</p> <p>Before Ralston, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 8, Oct. T., 1904, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 4145, making absolute rule to stay execution in case of Samuel Shoemaker, Assignee of August G. Fischer, v. Charles B. Harding.</p>

Appeal, No. 11, Oct. T., 1904, by plaintiff, from order of C. P. No. 1, Phila Go., March T., 1903, No. 1196, refusing to take off nonsuit in case of Mary T. Walsh, William Gorman and Edward H. Brennan, Trustees of the Estate of Philip J. Walsh, deceased, trading as Phil J. Walsh Estate v. Philadelphia Rapid Transit Company. Trespass to recover damages for injuries to a horse and wagon.

<p>Appeal, No. 34, Oct. T., 1904, by Charles Ferch, from order of Q. S. Lebanon Co., Jan. T., 1904, No. 106, refusing a liquor license in re application of Charles Ferch for wholesale liquor license.</p> <p>Petition for a wholesale liquor license.</p> <p>From the record it appeared that the place for which the application was filed had been licensed for a number of years for the purpose of carrying on the business of a bottler. It was stated in the opinion of the court below that it was the intention of the applicant, if the license was granted, to carry on the business of a wholesale dealer, and also of a bottler under the same license.</p> <p>The court refused the license.</p> <p>JError assigned was the order of the court.</p>

<p>Appeal, No. 184, Oct. T., 1904, by defendant, from order of C. P. Potter Co., June T., 1903, No. 284, refusing m.otion in arrest of judgment in case of Mike McNulty and Thomas Moran for use of Mike McNulty and John Mawn for use of Mike McNulty v. Thomas O’Donnell.</p> <p>Appeal from justice of the peace.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in refusing motion in arrest of judgment.</p>

Appeal, No. 187, Oct. T., 1904, by-plaintiffs, from decree of O. P. Northumberland Co., Equity Docket No. 241, dismissing bill in equity in case of the Union Coal Company and Shamokin Valley and Pottsville Railroad Company, Appellants, v. A. H. Cooner, W. H. Rohrbach and G. W. Raudenbush, commissioners of Northumberland county; John P. Forbes, collector of county, school and building taxes for the township of Coal for the year 1901; Jacob Fleming, John Strausser, Peter…

Appeal, No. 25, April T., 1905, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1903, No. 796, on verdict of guilty in case of Commonwealth v. N. Penrose. Indictment for abortion. Before Collieb, P. J. The court charged in part as follows: [This is an important case. It is a high grade of felony, and if a person commits it, there is not any ordinary punishment too great for him. [3] But for that very reason, the evidence ought to be examined with great care.

<p>Railroads — Safety gates — Boroughs—Implied powers — Police powers — Act of April 3, 1851, P. L. 320.</p> <p>A borough organized under the General Borough Act of April 3, 1851, P. L. 320, has the power to require a railroad company at the latter’s expense to erect, maintain and operate safety gates at street crossings in the borough. It has this authority not only through the implied power inherent in the municipality from the very nature of its organization, but also from the "general welfare” clause of the borough act.</p>

<p>Negligence — Animals—Bite of a horse — Burden of proof — Declarations— Evidence.</p> <p>In an action to recover damages for injuries resulting from the bite of a horse, the burden is upon the plaintiff to show that the horse was an animal of vicious habits, and that his vicious propensities were known to the defendant. In such a case declarations of a person purporting to be the driver to the effect that the horse had bitten other people, arc insufficient in themselves to submit to the jury on the question of the viciousness of the horse, and the knowledge of the defendant, where it does not appear that the person making the declaration was present when the biting occurred, and that he made the statement after the plaintiff had gone to a hospital to have his wound dressed, and had returned therefrom.</p>

<p>Appeal, No. 263, Oct. T., 1903, by defendant, from order of C. P. No-. 1, Phila. Co., Sept. T., 1903, No. 498, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Stanley Dwight v. William E. Singer.</p> <p>Assumpsit on promissory note.</p> <p>From the record it appeared that there was pledged with the note as collateral security 362 shares of the stock of the American Electric Cold Supply Company of Maine, and that this stock had been sold for $10.00. The defendant filed an affidavit and a supplemental affidavit of defense. In the latter was the following averment:</p> <p>The said 362 shares of the stock of the corporation known as the American Electric Cold Supply Company of Maine and as the American Refrigerating Company was worth at the time of the execution and delivery of the note now in suit much more than the face of the said note, and that the stock was always of sufficient market value to produce a sum of at least $362 if the said stock was sold at a bona fide sale, and the said plaintiff, Stanley Dwight, had knowledge of the value of the said stock, and that it could be sold at a bona fide sale for a much larger sum than $10.00, and he also had knowledge of person or persons who stood ready and willing during the period elapsing between the giving of the note in suit and March, 1901, to purchase said stock at the market price, which was never less than $362 during that period, and that if the said Stanley Dwight as he alleges sold the stock either at public sale or private sale for the price or sum of $10.00 then this defendant says that the said sale was not a bona fide sale, but for a price so grossly inadequate that there can be no reasonable doubt that the alleged sale, if made at all, was made for the purpose of defrauding the said defendant of the real value of said stock.</p> <p>The said defendant was never notified of said alleged sale and has no knowledge thereof sufficient to form a belief and, therefore, requires the said plaintiff to prove said alleged sale and all the particulars thereof, and that the said alleged sale was made bona fide and at the market price.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 247, Oct. T., 1904, by plaintiff, from decree of O. P. Center Co., Nov. T., 1904, No. 2, dismissing bill in equity in case of R. B. Taylor v. James A. Mc-Cafferty, interpleaded with the supervisors of Spring Township. Bill in equity for an injunction.

Appeal, No. 162, Oct. T., 1904, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. T.,1903, No. 28, refusing divorce in case of Peter Olson v. Mary A. Olson. Libel for divorce. The facts are stated in the opinion of the Superior Court. JError assigned was the decree refusing the divorce.

Appeal, No. 66, Oct. T., 1904, by defendant, from order of G. P. No. 3, Pbila. Co., Sept. T., 1901, No. 2729, making absolute rule -for judgment for want of a sufficient affidavit of defense in case of James G. Ramsdell v. Harry W. Seybert. Replevin for a piano.

Appeal, No. 90, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Phila. Co., Dee. T., 1901, No. 2635, on verdict for plaintiff in case of Mary O’Hey v. Commonwealth Title Insurance and Trust Company. Trespass to recover damages for personal injuries. Before Finletter, P. J. The facts appear by the opinion of the Superior Court. The court charged, inter alia, as follows: “Was the defendant the owner of the property in front of which the accident occurred ?

<p>Steam railways — Passengers—Carriers—Attack by conductor on passenger —Damages.</p> <p>The duty of a carrier through its servants to prevent injury to passengers from the acts of third persons which it is practicable for the servants in charge to prevent, includes protection against, the active participation of the servant himself in an unprovoked and wanton assault upon a passenger, committed while he was being transported, and while the servant is engaged in executing the contract of carriage.</p> <p>In an action by a passenger against a street railway company to recover damages for personal injuries, the case is for the jury where there is testimony from which the jury can find that the conductor, being angered by the plaintiff ringing the signal bell, or by mistake pulling the cord which registered fares, made a wanton and malicious assault upon him, which was neither instigated nor authorized by his employer, but was in violation of the standing rules of the company requiring the conductors to treat passengers civilly. . -</p> <p>Exemplary damages may be recovered by a passenger from a street railway company for injuries caused by a wanton and wilful attack on the passenger by a conductor while the passenger is in the car and the conductor is engaged in the performance of his duty.</p> <p>The fact that a passenger in a street car, who was unable to get the attention of the conductor, negligently pulls the cord which registers fares, instead of the cord which rings the signal bell, is not a defense in an action by the passenger against the company for injuries sustained from a wanton and wilful assault by the conductor. The assault in such a case is not such a natural and probable consequence of the negligence that it might and ought to have been forseen as likely to follow the act, and it cannot therefore be said to have contributed proximately to the injury.</p> <p>In an action by a passenger against a street railway company to recover damages for personal injuries sustained by an unjustified and wanton assault by a conductor, evidence as to the plaintiff's pain, physical condition and attendance by a physician after suit brought, is admissible to show the severity of the assault, although the statement does not claim damages for permanent injuries.</p>

<p>Appeal, No. 18, April T., 1904, by Nathan Stahl et al., from order of Q. S. Somerset Co., Sept. T., 1897, No. 6, confirming report of alias reviewers in the matter of Petition for Road in Quemahoning and Shade Townships.</p> <p>Petition for the opening of a road.</p> <p>The opinion of the Superior'Court states the facts.</p> <p>The court dismissed exceptions to report of alias reviewers.</p> <p>Errors assigned were as follows:</p> <p>1. The petition for road does not sufficiently designate the termini of the proposed road.</p> <p>2. The petition for proposed road designates two intermediate points in the following language: “ Said road to have two turns where it intersects the public road near the school house in said county.”</p> <p>8. The petition does not designate the township nor the county in which the proposed road is to be located nor does it give the residences of the petitioners.</p> <p>4. The petitioners for review did not “ state in the body of the petition the names of all such persons as had been upon the preceding view or reviews, and the names of all petitioners for or against the report as required by section 16 of rule of court 39.</p> <p>5. The order for alias review did not follow the petition in that it stated the residences of the petitioners and the termini are stated differently from those named in the petition.</p> <p>6. The viewers did not “ endeavor to procure from the persons over whose land such location may b.e made releases from all claims for damages that might arise from the opening of such road ” as required by the first section of the Act of May 14, 1874, P. L. 164.</p> <p>7. The report of the alias reviewers shows that the road is laid out over an existing public road.</p> <p>8. The report of the alias reviewers does not sufficiently designate the termini of the proposed road.</p> <p>9. The report of the alias reviewers does not note the improvements along the line of said proposed road.</p> <p>10. No notice was served on the county commissioners of the time when the court would be asked to confirm the report absolutely as required by section 18 of rule of court 39.</p> <p>11. The order of court confirming the reports of alias reviewers nisi does not fix the width of the proposed road.</p> <p>12. The court erred in permitting the supplemental report by the alias reviewers to be filed on November 11, 1902, their original report having been filed on February 25, 1901, and no affidavit accompanies the supplemental report.</p> <p>13. -The .court erred in confirming the report of alias reviewers and directing road to be opened.</p> <p>14. The court erred in not dismissing said proceeding for the reason that there was no public necessity for said road.</p> <p>15. The court erred in confirming the report of the alias reviewers because undisputed facts show that the road at places is laid out at an elevation exceeding five degrees and no reason appears on record for not having avoided such elevation.</p>

<p>Appeal, No. 116, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 110, on verdict for garnishee non obstante veredicto in case of Margaret C. Algeo v. Colin A. Fries and Ella A. Fries, defendants, and Great Senate of Sparta, Apollo Senate No. 6, Order of Sparta.</p> <p>Attachment execution against death benefits.</p> <p>At the trial it appeared that Colin A. Fries in his lifetime was a member of the Great Senate of Sparta, being attached to Apollo Senate No. 6, one of the subordinate bodies of said order. At the time of his death, was admitted to be in good and regular standing. The certificate issued to him was dated May 26, 1882. The beneficiary named in the certificate issued to Colin A. Fries was his wife, Ella A. Fries, and not a creditor.</p> <p>On October 1,1887, Fries and his wife executed a bond and warrant of attorney to Margaret C. Algeo, the appellant in this case, in the sum of $800, conditioned for the payment of $400, with interest and costs, expressly covenanting therein that appellant should be paid from the proceeds of the policy of insurance on life of said Colin A. Fries. Judgment was entered on this bond September 27,1897, and damages assessed thereon at $640. Colin A. Fries died on June 9, 1903. On June 13, 1903, a suggestion of his death was filed by appellant and an attachment sur judgment issued against the beneficial association. After answers were filed and a rule for judgment discharged, a rule to plead was filed by appellant and a plea and notice of special matter put in by the garnishees. The notice of special matter followed the answei’s, admitting the appellees had in hand $2,500 due to Ella A. Fries, beneficiary and judgment debtor, upon her executing a receipt and the surrender of the beneficial certificate, and further, that the money was not subject to attachment. The court directed a verdict for plaintiff for $800, subject to the point of law reserved, “ Whether there is any evidence upon which the plaintiff can recover against the garnishees.” Judgment was entered in favor of the garnishees non obstante veredicto.</p> <p>Error assigned was the judgment of the court.</p>

<p>Sewers — Assessments—Municipalities:</p> <p>Where a work of public utility — a highway, a water main, a sewer, etc.— has once been constructed, either by the public or at the expense of abutting owners, the latter cannot be charged with the cost of any subsequent reconstruction or change, even if this is a further benefit.</p> <p>Where a city constructs a sewer on one side of a public highway, and assesses the cost thereof on the properties abutting on that side, it cannot, years afterwards, construct a sewer on the other side of the highway and assess the cost of it in the properties abutting on such side.</p>

<p>Negligence — Street railways — Alighting from car — Improper construction of car — Question for fury.</p> <p>Where a woman in alighting from a summer car, catches the heel of her ■ shoe in an oiling box or hole in the tread of the running board, and is thrown -and injured, it is for the jury to say whether it was an improper construction o‘f the car to have an unguarded oiling box so located as to be the occasion' of such an accident.</p>

Appeal, No. 43, Oct. T., 1904, by defendant, from order of C. P. No. 1, Sept. T., 1903, No. 2742, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of Bill- Posting Sign Company v. John Gr. Jermon. Assumpsit for work done and materials furnished. The averménts of the statement of claifn and affidavit of defense appear by the opinion of the Superior Court.

<p>Appeal, No. 75, Oct. T., 1904, by plaintiff, from order of C. P. No. 4, Sept. T., 1903, No. 2739, dismissing rule for judgment for want of a sufficient affidavit of defense in case of American Bill Posting Company, Limited, v. John G. Jermon.</p>

<p>Appeal, No. 69, Oct. T., 1904, by defendant, from order of Q. S. Phila. Co., delinquent certificate, No. 645, committing, defendant to house of refuge in case of Commonwealth v. Frank Fisher.</p> <p>Indictment for larceny.</p> <p>From the record it appeared that the defendant, a boy of fourteen years old, was indicted for larceny and pleaded not guilty. After the indictment, upon certificate by the district attorney certifying that a prosecution was not required, the court of quarter sessions, sitting as a juvenile court, by Davis, J., committed the defendant to the house of refuge.'</p> <p>The case turned exclusively upon the constitutionality of the Act of April 28, 1903, P. L. 274.</p> <p>Error assigned was the order, of the court,</p>

Appeal, No. 161, Oct. T., 1904, by defendant, from judgment of C. P. Huntingdon Co., Dec. T., 1901, No. 12, on verdict for plaintiffs in case of T. H. Adams et al. v. R. A. DeFrehn. Assumpsit to enforce contribution. Before Bailey, P. J. At the trial the defendant presented these points: 1.

Appeal, No. 155, Oct. T., 1904, by defendant, from judgment of C. P. Schuylkill Co., May T., 1902, No. 254, on verdict for plaintiff in case of Miles Brennan v. Schuylkill Traction Company. Trespass to recover damages for personal injuries. Before Marr, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 178, Oct. T., 1904, by-defendant, from order of C. P. Schuylkill Co., Jan. T., 1902, No. 47, making absolute rule for subrogation in case of Wash. Held: that a surety who pays his principal’s debt is entitled to be subrogated to all the rights and remedies of the creditor against his cosurety, in the same manner as against the principal.

<p>Appeal, No. 228, Oct. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1904, No. 1176, making absolute rule to strike off judgment in case of Bradshaw Electro Sanitary Odor Company to use of George H. Buchertv. Charles T. Bradshaw.</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 making absolute rule to strike off judgment.</p>

<p>Guaranty — Written agreement — Parol evidence — Evidence—Affidavit of defense.</p> <p>In an action on a written guaranty absolute on its face, an affidavit of defense is insufficient which avers that the defendant was only to pay the debt guaranteed out of moneys to be paid to him from certain sources designated, without any averment that anyone had obligated himself or promised to pay such moneys. Such an averment is in effect that defendant would not be liable if the moneys were not paid to him, and is in direct contradiction of the terms of the absolute guaranty.</p>

<p>Appeal, No. 16, Oct. T., 1904, by Mary J. Brower, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Susan C. Piersol, deceased.</p> <p>Exceptions to report of auditor.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing exceptions to report of auditor.</p>

<p>Practice, C. P. — Parties—Amendments—Judgment—Railroads.</p> <p>In summary proceedings against a railroad company before a justice of the peace to recover a penalty, judgment was entered against the defendant. After an appeal had been taken to the common pleas, the plaintiff moved to amend the record by adding the name of a second railroad company as a party defendant. Notice of this was served upon the attorney for the appealing company, who was alleged to be also attorney for the second company. The amendment was allowed and subsequently a rule to plead was entered and served upon the same attorney, who, however, had never entered his appearance for the company whose name had been added to the record. Judgment was subsequently entered against the company whose name had been added to the record for want of a plea. Held, that the amendment had been improperly allowed and should be stricken off, and that the judgment should be reversed.</p>

<p>Principal and surety — Condition of bond — Ejectment.</p> <p>Where a surety in a bond obligates himself to become liable for rents, mesne profits and costs, in the event that a sheriff’s grantee establishes a title superior to the title of the principal in the bond, the surety is not liable, where the sheriff’s grantee by an ejectment recovers possession from the actual occupant of the land, but in a second ejectment against the principal in the bond suffers a voluntary nonsuit. By suffering such a nonsuit he acknowledges that his title is not superior to that of the principal, and there is consequently no failure of the condition of the bond.</p>

<p>Execution — Exemption—Waiver—Landlord and tenant.</p> <p>An agreement in a lease that all personal property in the premises shall be liable to distress and may be distrained, and that the tenant waives all right “to the benefit of any laws now made, or hereafter to be made, exempting personal property from levy and sale for arrears and rent,” applies only to proceedings for the recovering of rent by distress, and does not apply generally to all debts for rent without regard to the process used in collecting the same.</p> <p>An indorsement on a fi. fa. made by the prothonotary at the instance of the plaintiff calling the sheriff’s attention to a waiver of exemption, will not relieve the sheriff if he seizes property to which the waiver does not apply; nor does a reference to a waiver in the judgment entered by a justice of the peace relieve the sheriff in such a case.</p>

<p>Appeal, No. 53, Oct. T., 1904, by Whitemarsh Township, from order of C. P. Montgomery Co., Oct. T., 1903, No. 145, dismissing exceptions to sheriff’s distribution of proceeds of sale of real estate in case of Harrison K. Caner v. Charles William Bergner et al.</p> <p>Exceptions to sheriff’s distribution.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 117, Oct. T., 1904, by plaintiff, from judgment of O. P. No. 1, Phila. Co., Sept. T., 1899, No. 141, on verdict for defendant in case of Edward McCartney v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Beetles, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p>

<p>Mechanic’s lien — Notice to architect — Act of May 18, 1887, P. L. 118.</p> <p>The notice required by the Act of May 18, 1887, P. L. 118, to be given to the owner where work is done on or materials are furnished for an addition to and alterations of an existing structure, is not complied with by a notice to an architect employed by the owner merely to supervise the manner of construction.</p>

Appeal, No. 34, Jan. T. 1905, by defendant, from judgment of Q. S. Monroe Co., May T., 1904, No. 12, on verdict of guilty in case of Commonwealth v. Charles Frederick. Indictment for killing a dog. Before Staples, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Error assigned among others was portion of charge quoted in the opinion of the Superior Court.

<p>Execution — Delay by sheriff — Loss of lien.</p> <p>A delay by the sheriff in executing a writ caused by a well-founded belief on his part that the defendant was endeavoring to pay the judgment, and that no one was being injured by the delay, cannot be taken advantage of by a junior execution creditor to defeat the lien of the first execution.</p> <p>Execution — Landlord and tenant — Rent—Priority of rent — Evidence.</p> <p>A landlord’s priority for rent in the distribution of a fund raised by a sheriff’s sale of the tenant’s goods, is not defeated by the fact that no notice of the claim for rent was given at or before the sale.</p> <p>Where a levy is made on personal property under a number of executions and the proceeds of the sale are not sufficient to satisfy all, the landlord’s claim on the proceeds for rent due is to be reckoned up to the date of the levy made on that execution which was the last to participate in the fund.</p> <p>Where a landlord claims rent out of the proceeds of a sale of the tenant’s personal property under an execution, the tenant is a competent witness to testify as to the amount of rent.</p>

<p>Contract — Parol evidence — Explanation of subject-matter.</p> <p>Where a written agreement for the sale of a laundry dryer contains the words, “Terms: Dryer, net sixty days,” and the parties differ as to their meaning, parol evidence is admissible to explain them. In such a case the parol evidence does not vary or contradict the -written instrument.</p> <p>Contract — Sale—Machine.</p> <p>In an action to recover the price of a machine where the evidence shows that the machine, known and understood by a previous inspection of one of like character, was purchased upon trial and developed in that trial such structural defects as could not be remedied, and that the machine was thereby rendered worthless for the purposes for which it was sold and bought, the case is for the jury and a verdict and judgment for plaintiff should be sustained.</p> <p>Practice, C. P. — Affidavit of defense — Trial.</p> <p>No use can be made of an affidavit of defense at the' trial, unless the affidavit has been offered in evidence.</p>

<p>Appeal, No. 185, Oct. T., 1904, by plaintiff, from order of C. P. Del. Co., March T., 103, No. 68, distributing fund in case of Howard L. Martin v. Samuel Greenwood.</p> <p>Scire facias sur mortgage. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order distributing the whole fund amounting to $157.85 to the city pf Chester on a municipal lien of March Term, 1902, No. 339, instead of to H. L. Martin whose mortgage was executed on May 1, 1893, and duly recorded.</p>

<p>Negligence — Railroads—Grade crossing — Evidence.</p> <p>In an a'ction against a railroad company to recover damages for the destruction of a team and wagon at a grade crossing, it is proper to permit two men who had driven over the crossing immediately before the accident, and were only 150 feet away when the collision occurred, to testify that no whistle was blown nor bell sounded by the approaching train.</p> <p>The witnesses were in a position where they could have heard, and would be likely ordinarily to have heard, the whistle if sounded, and their capacity to hear, their opportunity to hear, and the truthfulness of their narrative were all for the consideration of the jury in determining the question of the defendant’s negligence. It was the province of the jury to weigh this evidence and determine its value.</p> <p>Where a person drives over a grade crossing on a dark night, and his team and wagon are struck by a passing train, and the driver killed, without any person having seen the accident, the presumption is, that the driver performed his duty in exercising due care before he attempted to cross the track.</p> <p>Evidence — Inferences from fact — Province of jury.</p> <p>When alleged facts are the subject of inference from other facts and circumstances shown by the evidence, it is the exclusive province of the jury to consider the testimony and ascertain the facts under proper instructions from the court.</p> <p>Evidence — Cross-examination—Defense—N onsuit — N egligence — Railroads.</p> <p>On the trial of a grade crossing accident case, where the plaintiff calls a locomotive engineer for the sole purpose of proving the speed of the train, the defendant will not be permitted upon cross-examination of the engineer to prove that the bell was rung and the whistle sounded at a proper distance from the crossing. Such evidence is matter of defense, and cannot be used against the plaintiff as a basis for a nonsuit.</p>

<p>Appeal, No. 205, Oct. T., 1904, by plaintiff, from judgment of G. P. Northampton Co., June T., 1908, No. 39, on verdict for defendant in case of C. F. Welden v. Lehigh Valley Traction Co., Robert E. Wright, C. M. Bates and George W. Norris, Receivers.</p> <p>Assumpsit for professional services. Before Schuyler, P. J.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p>

<p>Landlord and tenant — Rent—Covenant—Surety—Principal and surety.</p> <p>A lessee is not relieved of his covenant to pay rent because a corporation of which he was manager went into possession of the demised premises, where there is no evidence to show that the lessor released the lessee from his covenant, or accepted the corporation as a tenant in his place and stead.</p> <p>Where a lease provides for a renewal at the end of the term upon three months’ notice by the lessee, and the lessee serves such notice, the surety of the lessee cannot thereafter relieve himself from liability for the rent on the renewed term by notice to the lessor that he would not be liable for such rent.</p>

<p>Appeal, No. 193, Oct. T., 1904, by plaintiff, from order of O. P. No. 2, Phila. Co., June T., 1904, No. 449, discharging rule for judgment for want of a sufficient affidavit of defense in case of Bernard Kamber, trading as B. Kamber & Company, to use of tbe State Bank of New York v. J. Becker.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Rule for judgment for want of sufficient affidavit of defense.</p> <p>Plaintiff claims to recover from defendant the sum of 1284.75, with legal interest thereon, being the amount of merchandise sold and delivered to the defendant by Bernard Kamber, trading as B. Kamber & Company, as per copy of his book of original entries hereunto annexed and made part of this statement of demand.</p> <p>That on March 9,1904, the said B. Kamber & Company, for value received, assigned the amount of said claim against the defendant herein to the plaintiff herein, and notice thereof was immediately given to the defendant, a .copy of said notice being as follows:</p> <p>“ March 9, 1904.</p> <p>“For value received, we have assigned the above account (J. Becker) to the State Bank of New York, to whom you will please pay the amount when due. Please note this on your books and confirm same with the. Bank.</p> <p>(Signed) “B. Kamber & Co.”</p> <p>That no part of the amount claimed herein has been paid and that the whole amount thereof is justly due, owing and unpaid.</p> <p>Defendant filed the following affidavit of defense :</p> <p>Defendant avers on information and belief that the State Bank of New York is not the proper plaintiff in this action.</p> <p>That although deponent received notice from the State Bank of New York that his account had been assigned to it, yet said notice did not say whether the assignment was for collection as collateral or complete assignment for value, nor was notice of such assignment received by him directly from B. Kamber & Company, nor was there. produced or exhibited to him the original assignment, if any such there is, and in case of payment of this account to the present plaintiff, the State Bank of New York, there would be nothing to protect deponent in case of suit by B. Kamber & Company.</p> <p>The deponent has had numerous dealings and transactions with said B. Kamber & Company and has frequently received notice from assignees such as above, but always received subsequent demand from B. Kamber & Company and then paid his indebtedness directly to B. Kamber & Company.</p> <p>That as to this last transaction, the account upon which this suit is brought, after the alleged assignment by B. Kamber & Company to the State Bank of New York, the said B. Kamber & Company entered into an agreement for compromise settlement of the said claim with deponent, a copy of which is hereto annexed and marked exhibit “ A ” and made a part hereof, and which agreement has already been completed and payment made with all parties except the said B. Kamber & Company as to this account.</p> <p>Deponent is advised and believes that the said State Bank of New York has not the authority or right to sue for this account and hereby alleges all of the facts herein stated to be true upon knowledge, or information and belief, and expects to prove same upon the trial of this cause.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 177, Oct. T., 1904, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1902, ■ No. 2646, on verdict for plaintiff -in case of McAvoy</p> <p>& McMichael, Limited, v. Commonwealth Title Insurance & Trust Company.</p> <p>Assumpsit for money had and received.</p> <p>At the trial it appeared that the action was based upon the following paper:</p> <p>“June 27, 1902.</p> <p>“ Messrs. McAvoy & McMichael,</p> <p>“ 27th & Dickinson Sts.,</p> <p>“ Dear Sirs: — The Commonwealth T. I. & T. Co. has set aside the sum of $1,590, out of the fund deposited with it in application No. 60015 to 24, to be payable to your order from time to time as bricks are delivered to premises 58th & Ashland Ave., Angora Station, upon certificate from our inspector that the same has been delivered as per agreement under date of June 25th, between John M. Whelan, builder, and McAvoy & McMichael, brick manufacturers.</p> <p>“ A charge of 1 % will be made for guaranteeing this fund.</p> <p>“ Yours truly,</p> <p>“ A. J. Maloney,</p> <p>“Attest, V. Prest.</p> <p>“F. F. Faber.”</p> <p>The court, after reading the above paper, charged as follows: It is only the first paragraph, as you will find when you read it yourselves, which is relevant, because there was afterwards no guarantee, which is entirely a different kind of contract made for this fund as between the commonwealth company and the plaintiff. The right of the plaintiff to recover against this defendant is because the defendant is a stakeholder or a depositary, which ever it may be called, and by the reason of the fact that the commonwealth company received this money for the use or benefit of the plaintiff upon a certain contingency, namely, the production of a certificate from the commonwealth company inspector that the bricks had been delivered as per agreement. There is no doubt but that the bricks set out in plaintiff’s statement were delivered by the plaintiff. That has been proven. It is not denied. They did not produce a certificate from the commonwealth company, because, as the story of both parties is — and, therefore, that may be taken as proven before you — that the commonwealth company refused to give them a certificate, not denying or not stating that the bricks were not there in fact, but that Whelan had come to them and said “Don’t.issue a certificate on this contract to McAvoy, because he has broken his agreement with us, and we have been obliged to go into the market and buy other bricks, and we are at a loss.” That is the reason why the certificate has not been produced. Therefore, the question is for you to decide what was the “agreement between them. If the agreement was, as the plaintiff states, that he was to deliver the bricks in such quantities and at such times as he thought best, or that he could or would deliver, then of course it does not make any difference whether he has the certificate from the commonwealth company or not and he would be entitled to a verdict against the company. On the other hand, if you believe that such was not the agreement, but that the agreement was as Whelan states it was, namely, that he was to get 6,000 bricks a day, beginning, from June 25, if you believe that was the agreement between them, and if you believ.e that the plaintiff failed to fulfill the terms of his agreement, then of course your verdict should be for the defendant.] [2]</p> <p>Verdict and judgment for plaintiff for $353.54. Defendant appealed.</p> <p>Hrrors assigned (1-8) sufficiently appear by the opinion of the Superior Court.</p>

<p>Appeal, No. 95, Oct. T., 1904, by defendant, from judgment of Q. S. Blair Co., June T., 1903, No. 4, on verdict of guilty in case of Commonwealth v. Phillip E. Caulfield.</p> <p>Indictment for illegal sale of oleomargarine. Before Bell, P. J.</p> <p>At the trial the court admitted under objection and exception two witnesses to testify as to the color of the oleomargarine sold by defendant, and its resemblance to yellow butter. [1, 2]</p> <p>The court also admitted in evidence a sample of white oleomargarine offered in rebuttal by the defendant. [3]</p> <p>Counsel for the commonwealth, in addressing the jury, used the following language: ' ■</p> <p>[But there is one thing I want to call your attention to.</p> <p>They say the absence of this sample is unaccounted for, that we have not accounted for the absence of this sample. I say that they could have asked the witness just as well as we where that sample was. They want to know now where it is. Why did n’t they ask, if they had that curiosity ? There was the witness on the stand; he was sworn. They had the same right that we bad to ask him where it was, and if they were so anxious about this sample, they ought to have asked him where it was, then possibly they would have got exactly from the witness who knew the situation with reference to this sample.] [4]</p> <p>The court charged in part as follows :</p> <p>[But you will observe that in this act the legislature goes on to say that nobody shall sell any oleaginous fat or substance unless he takes out a license; provided, however, that even when he has a license, he must see to it that the oleaginous substance shall be kept free from all coloration or ingredients causing it to look like yellow butter. Now that is a strong expression of legislative intent that it shall be made and kept free from coloration, and in view of the language in this act of 1901, we instruct you as a matter of law that the fact that no artificial coloration was introduced in this oleomargarine is no defense. We say the legislative intent was the manufacturer of oleomargarine must make it so that it does not look like butter, and must keep it free from looking like yellow butter.] [5]</p> <p>Defendant offered these points:</p> <p>3. The act of May 29, 1901, is unconstitutional. Answer: Refused. [6]</p> <p>4. The act of May 29,1901, under which this indictment is framed is unconstitutional for the reason that the body of the act contains two or more subjects, and even these subjects are not clearly expressed in the title. It contains a method of procedure in a civil suit for the collection of a penalty and a method of procedure to obtain an injunction, and also provides for punishment by contempt; it imposes the duties upon every constable as well as the dairy and food commissioner; it makes provision for the duty of the judge for the issuance of summary process; it provides for the accumulation of a special fund that may be drawn out upon a warrant signed by the secretary of agriculture and approved by the auditor general; it provides for inspection of carriages, cars, vessels and cans used in the transportation and sale of any daily products; it provides for the issuance of a semiannual bulletin by the dairy and food commissioner; none of these provisions are expressed in the title. Answer: Refused. [7]</p> <p>Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1-3) ruling on evidence, quoting the bill of exceptions; (4) in permitting counsel to use the language quoted above ; (5-7) above instructions, quoting them.</p>

<p>Appeal, No. 149, Oct. T., 1904, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1904, No. 350, striking off appeal from justice of the peace in case of Jacob M. Peters v. Thomas Dalton.</p> <p>Appeal from justice of the peace.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order striking off appeal.</p>

<p>Appeal, No. 149, Oct. T., 1904, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1904, No. 3587, striking off appeal from justice of the peace in case of Jacob M. Peters v. Thomas Dalton.</p>

<p>Appeal, No. 220, Oct. T., 1904, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1904, No. 4298, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John Wanamaker, Thomas B. Wanamakei’, Robert C. Ogden and L. Rodman Wanamaker v. Bernard J. Quinn.</p> <p>Assumpsit for goods sold and delivered.-</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 223, Oct. T., 1904, by Louis F. Purcell, Guardian, from decree of O. 0. Pbila. Co., Oct. T., 1894, No 263, dismissing exceptions to adjudication in Estate of William H. Savage.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 24, April T., 1905, by defendant, from judgment of Q. S. Armstrong Co., Dec. T., 1903, No. 29, on verdict of guilty in case of Commonwealth v. Charles Tomasy.</p>

<p>Contract — Custom—Variance between contract and custom — Evidence.</p> <p>Where the rights of parties are fixed by a written contract, and the question at issue is in reference to a compliance with its terms, it is manifest error to permit the jury to be led away from the real questions at issue by evidence of a custom, said to prevail in a certain locality, but not referred to in the contract.</p> <p>Contract — Building contract — Satisfaction of owner.</p> <p>Where a contractor undertakes to perform the work of constructing a building to the entire satisfaction of the owner, the burden rests upon him to do this, and an honest, reasonable objection by the owner, if sustained by the evidence, is a sufficient defense to the action.</p> <p>Contract — Rescission—Election.</p> <p>Where a party injured by the stoppage of a contract elects to rescind it, he cannot recover any damages for a breach of contract either for outlay, or loss of profit; he recovers the value of his services actually performed as upon a quantum meruit.</p>

<p>Appeals — Assignments of error — Portions of charge — Trial.</p> <p>Part of a charge, which, taken by itself could be considered objectionable, may not be so considered when taken in connection with other portions of the charge. The trial court will be reviewed on the general effect of the charge and not upon sentences or paragraphs disconnected from the context which qualifies and explains them.</p> <p>Criminal law — Evidence—Conduct at time of arrest.</p> <p>Evidence of the conduct of one accused of a crime at the time of his arrest is competent to show consciousness of guilt. Resistance to arrest is evidence of fear of punishment, and if the resistance be violent, may be evidence of malice. The presumption is that one who is wrongfully accused will rely on his consciousness of innocence, while a guilty man will resort to violence in order that he may escape dreaded punishment. Such evidence is not sufficient of itself to warrant a conviction, but may have weight in connection with the other evidence in the case.</p> <p>An instruction that if the jurors believed the defendant resisted arrest after he was informed that the officers had a warrant for him and attempted to shoot the officers, and after his arrest expressed regret that he had not succeeded in so doing, they would be justified in finding him of a bold and lawless disposition, does not amount to a charge that they might convict the defendant because of this resistance, nor that it was evidence that he had a tendency to commit crimes of the character of that for which he was indicted.</p> <p>Criminal law — Evidence—Rebuttal—Accomplice—Robbery.</p> <p>Where on the trial of an indictment for robbery the prisoner denies that he had ever been in the company of an accomplice in the robbery until four days after the robbery, it may be shown in rebuttal that the prisoner and the accomplice were on intimate terms, and that they were together a short time before the crime was committed.</p> <p>Appeals — Assignments of error — New trial — Refusal of new trial.</p> <p>Except in clear cases of abuse of discretion refusal of the court to grant a new trial is not assignable for error.</p>

<p>Parents and children — Custody. of children — Husband and wife — Discretion of court — Act of June 26, 1895, P. L. 316 — Habeas corpus — Appeals.</p> <p>Both under the common law of Pennsylvania and the Act of June 26, 1895, P. L. 316, the courts may in the exercise of a sound discretion award the custody of a child to either the father or mother, consideration being given to the fitness of the parent and the best interest and permanent welfare of the child.</p> <p>In making an order awarding the custody of a child to one or other of the parents, a condition may be imposed permitting the child to visit or be visited by the other parent at stated times, and under restrictions suited to the circumstances of the particular case. The act of 1895 does not purport to deal with this subject, and does not narrow the discretionary power of the courts previously exercised in that regard.</p> <p>The court may also direct that security shall be entered by a mother, where the custody of the children is given to the father, to insure their return to the father at the expiration of the several periods during which they are permitted to visit and be with their mother.</p> <p>On an appeal from an order awarding the custody of children to a parent, the appellate court is confined to an examination of the record proper, of which the evidence forms no part.</p>

Appeal, No. 107, Oct. T., 1904, by defendants, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1902, No. 859, on verdict for plaintiffs in case of Mange-Wiener Company, Limited v. Patten Worsham Drug Company. Assumpsit for goods sold and delivered. At the trial it appeared that plaintiffs through one Max Herz, a salesman, sold to defendants a quantity of cigars.

<p>Appeals, Nos. 81 and 82, Oct. T., 1904, by Sophia Lee and Etta Jones, legatees, from decree of O. C. Piula. Co., Jan. T., 1904, No. 139, dismissing exceptions to adjudication in estate of Josiah Lewallen, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 269, Oct. T., 1904, by defendant, from order of C. P. No. 1, Phila. Co., making absolute rule for judgment, for want of a sufficient affidavit of defense, in case of Union Surety'and Guaranty Company v. Thomas F. Stevenson and Felix Lafferty, trading as The American Surety Company of New York.</p> <p>Assumpsit on a bond of suretyship.</p> <p>The affidavit of defense was as follows :</p> <p>Deponent admits that a contract was entered into between the firm of Andrews & Johnson and the defendants, Thomas F. Stevenson and Felix Lafferty, trading .as Stevenson & Lafferty, as set forth in the plaintiff’s statement of claim, a copy of which contract is annexed thereto.</p> <p>Deponent further admits that the said American Surety Company, defendant, as surety for said Stevenson & Lafferty, executed to the said Andrews & Johnson a bond as security for the fulfillment of the said contract, a copy of which bond is annexed to said plaintiff’s statement, which bond was assigned as averred in said plaintiff’s statement to the said plaintiff, the Union Surety and Guaranty Company.</p> <p>Deponent denies that the said Andrews & Johnson and the plaintiff, the Union Surety and Guaranty Company, had, prior to March 27, 1902, or since that date, performed all the conditions required by the above-named bond to be performed, in order to hold the defendant company liable thereupon.</p> <p>Deponent avers that the said bond contains the following clause:</p> <p>“ First. — That in the event of any default on the part of said principal in the performance of any of the terms, covenants or conditions of said contract, written notice thereof, with a verified statement of the particular facts showing such default, and the date thereof, shall, within twenty days after such default, ,be delivered to the surety at its office in the city of Philadelphia.”</p> <p>Deponent admits that Stevenson & Lafferty defaulted on said contract, but denies that said default was on or about March 18, 1902, but was much earlier, and avers that, plaintiff or Andrews & Johnson did not give defendant due notice of said default within twenty days thereafter, as provided in said bond, wherefore deponent is advised that said defendant is relieved of its liability as surety.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient- affidavit of defense.</p>

<p>Appeal, No. 10, Oct. T., 1904, by defendant, from decree of C. P. No'. 1, Pbila. Co., granting a divorce in case of Joseph Z. Fay v. Mary E. Fay.</p> <p>Libel for divorce.</p> <p>Statement of Facts — Opinion of the Court. [27 Pa. Superior Ct.</p> <p>Tlie facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.’</p>

<p>Deed — Mortgage—Defeasance—Act of June 8, 1881, P. L. 84.</p> <p>A woman desiring to purchase a lot, and not having the money with which to pay for it, applied to a corporation authorized to deal in real estate and stated her desire. The company thereupon bought the lot in question, and paid the purchase money therefor. On the following day the woman subscribed for certain shares of the company for the purpose of purchasing the lot in compliance with the by-laws, and entered into an agreement in writing with the company in the form of a lease, by the terms of which she agreed to pay a certain amount per month for a designated number of months, at the termination of which period the company was to execute a conveyance of the property to her. At the end of a period shorter than the terms designated in the agreement, she refused to make further monthly payments, contended that the transaction between her and the company was a loan; that the contract was usurious, and that she was entitled to a conveyance of the property upon the payment of the price at which the company bought it with interest. Held, that even if the contention of the member' were correct that the title was held by the company as security for a loan, the transaction amounted to a mortgage, and the Act of June 8, 1881, P. L. 84, protected the company in the absence of a written defeasance.</p>

<p>Appeal, No. 89, Oct. T., 1904, by City of Philadelphia, from order of Q. S. Phila. Go., dismissing exceptions to report of jury of view in case of Yacation of Penrose Ferry Avenue from Curtin Street to Porter Street.</p> <p>Exceptions to report of jury of view. Before Martin, P. J.</p> <p>From the record it appeared that pursuant to the directions of ordinances of councils of the city of Philadelphia, approved April 4,1894, and December 28,1895, the department of public works revised plans Nos. 202 and 203, by means of which revision Penrose Ferry avenue, from Porter street to Curtin street, was omitted and struck from the city plan. The revised plans were finally confirmed July 1,1901. Upon September 21,1901, a petition was filed b}r an abutting property owner, praying for the appointment of a jury of view to assess damages by reason of the vacation of Penrose Ferry avenue. A jury was appointed and, after viewing the premises and hearing testimony, filed a report, assessing damages in favor of various owners of property, amounting in the aggregate to $10,975 against the city of Philadelphia. The jury reported that they were unable to find that any property in the vicinity was specially benefited, and, therefore, assessed no benefits.</p> <p>Exceptions were filed on behalf of the city alleging that the awards were excessive and claiming that the jury should have assessed benefits; and that there is no liability on the city, in the absence of provision for payment of damages having first been made by councils. •</p> <p>The court dismissed the exceptions.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Common carriers — Carrier—Railroads—Negligence—Damages—Bills of lading.</p> <p>A clause of a bill of lading limiting the amount of the recovery to the value of the goods at the point of shipment is invalid as against a loss arising from the negligence of the carrier. In such a case the owner is entitled to recover, if anything, the value of the goods at the place of delivery.</p> <p>In an action to recover the value of a car of potatoes it appeared that the suit was brought against the first of a series of connecting carriers. The bill of lading issued by the defendant company acknowledged the receipt of the goods “in apparent good order.” The evidence showed that upon arrival at the end of the line of the defendant the end sill of the car in which the potatoes had been transported was found to be so broken that the connecting carrier declined to receive it. The potatoes were then loaded by the defendant into another car and were very much bruised, skinned and cut when delivered to the connecting carrier. There was evidence that the manner in which the potatoes were transferred from the broken car and the implements used in the work were not proper, and were likely to produce the very condition in which the property was found to be when it arrived at its final destination. The contract did not in express terms confine liability to injuries arising from negligence. It provided, however, that no carrier “shall be hable for any loss thereof, or damage thereto by causes beyond its control.” Held (1), that the evidence offered by the plaintiff as to the damaged condition of the potatoes at the end of defendant’s line, imposed the burden on the defendant to prove that it was not guilty of negligence, or to show that the injuries were caused by some cause beyond its control; (2) that the case was for the jury, and that a judgment and verdict for the plaintiff should be sustained.</p> <p>When inanimate property, of a character which is not by natural laws marked for early decay, is properly prepared for shipment when delivered to the carrier, and upon reaching its destination is found to be badly damaged, a reasonable inference arises that it was not transported with ordinary care. The injury in such a case is evidence of negligence, but it is only evidence and the inferences are to be drawn by the jury.</p>

<p>Insurance — Life insurance — Public policy — Execution for murder.</p> <p>An ordinary policy of life insurance containing no applicable provision is not a binding contract to insure against a legal execution for' crime. This rule is enforced upon the ground of public policy alone, and not out of consideration for the insurance company, to whom the advantage is incidental.</p> <p>A provision in a life-insurance policy that “after two years this policy shall be noncontestable except for the nonpayment of premiums as stipulated, or for fraud,” does not prevent the insurance company from .corn testing payment of the policy, where it appears that the insured was executed after proper conviction of murder in the first degree.</p>

<p>Will — Die without issue — Defeasible estate.</p> <p>Testator gave the residue of his estate to his daughter “for her benefit forever.” By a subsequent clause he directed that if the daughter “shall die before or after attaining the age of twenty-one years without issue,” then over. He also in his will desired and requested his daughter to select and have appointed as her guardian a particular person named. The will was made when the daughter was about sixteen years of age and subsequent to the Act of July 9, 1897, P. L. 213. At the time the will was made the testator was interested in the erection of certain buildings on his lands, and these he directed his executor to complete. Held, that the daughter took an estate defeasible upon her death at any period of her life without issue.</p> <p>In such a case the provisions of the will disclose a manifest intent of the testator not to limit the meaning of the words “die without issue” to death of the daughter in his own lifetime.</p>

<p>Appeal, No. 77, Oct. T., 1904, by defendant, from judgment of O. P. No. 1, Pliila. Co., Dec. T., 1903, No. 3948, for plaintiff on demurrer to statement in case of Morris D. Theobald v. Frederick Sylvester.</p> <p>Assumpsit to recover taxes and water rent paid by plaintiff.</p> <p>The court entered judgment for plaintiff on demurrer.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 87, Oct. T., 1904, by-plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1901, No. 3655, on verdict for defendant in case of T. C. Swing and William H. Bateman, Jr., copartners, trading as Swing & Bateman v. Jacob H. Walker and Henry Linde, copartners, trading as Walker & Linde.</p> <p>Assumpsit for breach of contract. Before Wiltbank, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[There can be no sort of question of the honesty of purpose and intention on the part of the plaintiffs in prosecuting this case, but it is almost equally clear that if their action here is an indication of their business methods, they are not liable to make much in the commercial market. You cannot bind people by writing letters which they do not answer and which are inconsistent with their previously expressed conditions.] [3]</p> <p>[At that interview they had before them the specifications which had been drawn, and those specifications contained what Mr. Bateman described generally (I cannot use his language, I leave that to you to remember) as formal parts, which, he said you always disregarded, or he used language to that.effect, and then they contained the specific parts, the items of materials and machinery to be furnished and items of charge to be made, and a statement of the periods of time in which payments were to be made if the plant was furnished and found unsatisfactory.] [6]</p> <p>[But Mr. Bateman stated, “ I did not regard the early part of those specifications at all. It is true that the early part required that we should give bond to do this work, but I did not regard that,” and there were other requirements which he did not regard. You cannot make contracts that way. If a man hands you a paper and says, “ Here are the terms,” and you go over it with him, and he and you scratch out certain parts and interline certain parts and make changes, and then the paper stays as settled upon (as indicating what one is to do and the other is to pay) one man cannot take that away and disregard a certain part of that paper, and say, “ Oh, well, I did not think anything of that. It is true it was not canceled, but it is merely formal, so I did not put it in.” And therefore you find as counsel has said (and we of course impute nothing to the gentlemen who are on the side of the plaintiff but the utmost-fairness of dealing) their minds did not meet. It would seem to be so — that their minds did not meet. One gentleman took away the paper, saying to himself that the provision about the bond did not amount to anything, and the other man turned over in his mind that .the provisions as to the bond was a material provision; he wanted security. However that may be, even when that interview closed no contract was made. There was no contract settled at that time. Why ? Because Mr. Bate-man said, “ I will take this away with me and write you a letter confirming it.” That is not disputed. That is what he says, and the defendant said, “ Take the schedule of specifications with you and write it out in clean, clear form.” It is true Mr. Bateman says he took away the schedule, but I do not understand him to have said that he agreed to rewrite the schedule of specifications, but even if he took it away with a view to confirming the contract or confirming the order as he called' it, there was no contract then settled.] [7]</p> <p>Now, viewing it in the light most favorable to the plaintiff, assuming that we have to take away the specifications as modified and to write a letter confirming the arrangement as he understood it to have been made that evening, did he do'it? If you find that he did, you must find a verdict for the plaintiff. If you find that he did not, you must find a verdict for the defendant and I will leave to you the question whether he did or did not after I shall have instructed you as to the facts. He wrote a letter which you will have out with you, and that letter refers to the specifications which were agreed upon, and he says his firm will do the work according to those specifications as agreed upon. Did not the specifications as agreed upon require that the bond should be furnished ? Is it not the case that the testimony makes it perfectly clear that, the plaintiff did not furnish the bond, did not propose to furnish the bond, and did not confirm the order to furnish the bond ? Mr. Bate-man said that was an immaterial point. If it was agreed by all these parties that that was an immaterial point then he is right in that view, but can you so conclude as matter of fact ? The letter says, “We will agree to install the system of heating,” and so forth, and that is language of futurity which I do not propose to dwell on ; it is too small a point.] [8]</p> <p>[Having sent this letter, they claim that they have got the contract. It has been testified on the part of the defendant that this letter did not comprise the contract. It did not show the terms as indicated by the specifications, in this, that it failed entirely as to their agreement as to the bond. And moreover the matter could not be settled until everything should have been duly written out. And'he says further that he deemed it wise to stop the preparation of the contract and .the negotiations, and that he telephoned the plaintiff on the following Tuesday that the thing’must not go on until Mr. Linde should have determined whether or not it should, and that Mr. Linde was absent at the time; that they must await his return before anything was determined. If under this evidence (and I leave the question to you simply because of a few expressions which dropped from the plaintiff Bateman, one of the witnesses), you find there was a contract, you must find a verdict for plaintiff because the contract evidently was broken. The defendant took somebody else, and the plaintiff lost the job. If you find that it was not broken then you will find a verdict for the defendant.] [9]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned among others were (1, 2) rulings on evidence referred to in the opinion of the Superior Court; (8, 6-9) above instructions, quoting them.</p>

<p>Appeal, No. 121, Oct. T., 1904, by defendants, from order of C. P. No. 1, Phila. Co., March T., 1904, No. 2147, discharging rule to open judgment in case of Fidelity Trust Company v. Herman Kohn and Simon H. Casper, trading as Kohn & Company.</p> <p>Rule to open judgment.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order discharging the rule.</p>

<p>Appeal, No. 140, Oct. T., 1904, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1904, No. 1951, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Caven-Williamson Ammonia Co., Incorporated, v. Ice Manufacturing Company of Germantown.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The affidavit of defense was as follows:</p> <p>It is true that the plaintiff company sold and delivered to the defendant the goods set forth in plaintiff’s statement of claim and more particularly in exhibit “ A,” attached thereto. Defendant, however, avers that they have an offset to the said sum of $806.77 claimed to be due to the plaintiff, by reason of the assignment to defendant company on December 18, 1903, by Arthur Freeston, of a certain note for $150 made by the Lansdale Ice Manufacturing Company, on July 11, 1903, to the order of said Arthur Freeston, a copy of the said assignment by the said Arthur Freeston to the defendant company is hereto attached as part hereof and marked exhibit “ B.” And also by reason of the assignment on September 30, 1903, by the said Arthur Freeston, to wit: a claim of $184 against the said plaintiff company, a copy of the said assignment of the said Arthur Freeston to the defendant company is hereto attached as part hereof, and marked exhibit “ C.”</p> <p>Defendant avers that the above mentioned note, drawn to the order of Arthur Freeston, was indorsed and delivered to the said Caven-Williamson Ammonia Company hy the said Arthur Freeston and by the said Caven-Williamson Company was- indorsed and delivered to the said Arthur Freeston, who indorsed and delivered the said note under the terms of the above-mentioned assignment, to the said defendant, Ice Manufacturing Company of Germantown. - That the said note was not paid at the maturity thereof by the maker, although due and legal notice of protest was made (given) upon the maturity of the said note, of which protest and nonpayment the said Caven-Williamson Ammonia Company had due and legal notice. That by reason of having indorsed and delivered the said note, the said Caven-Williamson Ammonia Company is liable to the subsequent holders thereof as an indorser, which liability to plaintiff is hereby asserted as against the claim set forth in plaintiff’s statement of claim.</p> <p>Defendant further avers that the sum of $184 assigned to defendant, was due and owing to Arthur Freeston at the time of the said assignment, and is still due and payable to defendant as assignee of the said Arthur Freeston. A copy of the above mentioned note with indorsements thereon is attached hereto and marked exhibit “ A.”</p> <p>“ Exhibit * A.’</p> <p>“$150.00. Lansdale, Pa., July 11th, 1908.</p> <p>“Four months after'date we promise to pay to the order of Arthur Freeston, One hundred and fifty dollars without defalcation. Value received at First National Bank, Lansdale.</p> <p>“No. .. .Due....</p> <p>“ Lansdale Ice Maneg. Co.,</p> <p>“ T. Roberts Bright, Treas.</p> <p>“ O. W. Stager,</p> <p>“ Chairman Exec. Com.</p> <p>“ Endorsements.</p> <p>“ Arthur Freeston,</p> <p>“Caven-Williamson Ammonia Co.,</p> <p>“ Arthur Freeston, Pres.</p> <p>“ Arthur Freeston, per Wi. E. Freeston, Atty.”</p> <p>“Exhibit‘C.’</p> <p>“ Know all men by these presents, that I, Arthur Freeston, of Germantown, in the city of Philadelphia, for and in consideration of the sum of One hundred and eighty-four dollars ($184), do hereby assign, transfer, and set over unto the Ice Manufacturing Company of Germantown, a corporation of the State of Pennsylvania, its successors and assigns, all my right, title, interest and claim in the sum of One hundred and eighty-four dollars ($184) due me by the Caven-Williamson Ammonia Company, Incorporated, on the 30th day of September, A. D. 1903.</p> <p>“ In witness whereof, I have hereunto set my hand and seal this 30th day of September, 1903.</p> <p>“ Arthur. Freeston. [Seal.]</p> <p>“Witnesses present: — ■</p> <p>“Wm. E. Freeston,</p> <p>“ Frank Vaughan.”</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 108, Oct. T., 1904, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1903, No. 33, on verdict for defendants in case of J. F. Trexler and John L. Trexler v. J. M. Africa and John Edelblute.</p> <p>Trespass for removing sand from land alleged to be owned by plaintiff. Before Woods, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were in- giving binding instructions, and various rulings on evidence referred to in the opinion of the Superior Court.</p>

<p>Insurance — Life insurance — Fraud—Payment—Receipt —• Misrepresentations of agent — Tender of money.</p> <p>Where a woman who is the beneficiary in a policy of life insurance on the life of her deceased husband, is induced by misrepresentations of the company’s agent to accept the agent’s statement of the terms of the policy which she does not have at hand, and to accept and receipt for the amount claimed by the agent to be due thereunder, the beneficiary may, after the discovery of the fraud, maintain an action against the company for the balance alleged to be due her; and in such action she is not bound to return or tender the money previously paid to her.</p> <p>In such a case the acceptance of the money and the receipt therefor were not a compromise of a doubtful right binding upon the beneficiary.</p> <p>Insurance — Life insurance — Policy—Manual unattached to policy — Act of May 11, 1881, P. L. 20.</p> <p>A “manual” of an insurance society which contains by-laws or regulations bearing on the contract of insurance, is not admissible in evidence in an action on the policy, if it has not been attached to the policy as required by the Act of May 11, 1881, P. L. 20.</p>

<p>Appeal, No. 163, April T., 1905, by defendant, from judgment of C. P., No. 2, Allegheny Co., Oct. T., 1904, No. 1060, awarding peremptory writ of mandamus in case of Commonwealth ex rel. Morris Knowles v. John B. Larkin, Controller of the city of Pittsburg.</p> <p>Petition for mandamus.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 71, Oct. T., 1904, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T. 1903, No. 55, for defendant on case stated in suit of Clayton L. Nissley v. Lancaster County.</p> <p>Case stated to determine whether the directors of the poor and of the house of employment of Lancaster county were entitled to a compensation of $2.00 per day and juror’s mileage as fixed by the Act of April 14, 1864, P. L. 422, or whether they were entitled to a salary of $1,500 per year as fixed by the Act of July 2, 1895, P. L. 424, for county directors of the poor in counties containing more than 150 inhabitants. Before Landis, P. J.</p> <p>The court held that the Act of July 2, 1895, P. L. 424 was defective in title and unconstitutional and entered judgment for defendant.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 253, Oct. T., 1903, by Martin D. Irwin, from decree of O. 0. Lancaster Co., Aug. T., 1903, No. 14, dismissing exceptions to adjudication in estate of Lorenz Nolde, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Superior Court,</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 44, Oct. T., 1904, by defendant, from judgment of O. P. Lancaster Co., April T., 1901, No. 17, on verdict for plaintiff in case of Ada E. Stephens v. Christian Gunzenhauser.</p> <p>Ejectment for land in the city of Lancaster. Before Landis, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>.Errors assigned were in entering judgment on the verdict and in refusing to grant a new trial.</p>

<p>Appeal, No. 118, Oct. T., 1904, by G. Harry Fager and Edward F. Fager, Assignees, from order of O. P. Lancaster Co., sustaining exceptions to auditor’s report in re Assigned Estate of P. A. Krodel and wife.</p> <p>Exceptions to report of William P. Harnish, Esq., auditor.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

Appeal, No. 118, Oct. T., 1904, by Emma E. Krodel, from order of C. P. Lancaster Co., sustaining exceptions to auditor’s report in re Assigned Estate of P. A. Krodel and wife. Exceptions to report of William P. Harnish, Esq., auditor. The facts appear by the opinion of the Superior Court. Errors assigned were in sustaining exceptions to auditor’s report.

<p>Habeas corpus — Summary conviction — Fish laws — Justice of the peace — ■ Bes adjudicata.</p> <p>A writ of habeas corpus cannot be made a substitute for a writ of error, and where a party is in custody by virtue of a final decree or judgment, or process thereon, of a court of competent jurisdiction, no inquiry into the process which led to the decree is to be had, and no relief administered on habeas corpus.</p> <p>Where a person is summarily convicted before an alderman of using a fish basket without taking out its bottom at sunrise and keeping it out until sunset, and of using an eel basket without taking out a license, and he takes both an appeal and certiorari, and is defeated in both proceedings, he is not thereafter entitled to have the judgment reversed in habeas corpus proceedings.</p>

<p>Will — Decree—Fee simple — Defeasible estate — Death without an heir.</p> <p>A fee presumed by the Act of April 8, 1833, P. L. 249, as well as a fee expressly given by will, can only be defeated by a subsequent provision which shows clearly that the testator intended not to give a fee, though he used language which standing alone would have been effective for that purpose.</p> <p>Where the gift is immediate and there is nothing to indicate an adverse intent, additional limitations over dependent on no other contingency than is implied from the language “if he (the first taker) die without an heir,” “or without issue,” or “without children,” or the like, must be construed as referring to that event occurring in the lifetime of the testator; and if the first taker survives the testator the estate which vests in him or her is indefeasible.</p> <p>Where a testatrix gives an interest in land to her daughter, and “in case of the death” of the daughter, “without an heir,” then over, the daughter surviving her mother takes an absolute estate in fee simple.</p>

<p>Contract — Sale—Satisfaction to purchaser.</p> <p>In an action for the price of machinery, which, by the terms of sale, is to “prove satisfactory” to the purchaser, it is not enough to show that he ought to be satisfied, or that others are satisfied with it; the contract requires satisfaction on his part. On the other hand, the operation of the machinery to the satisfaction of the purchaser must be understood as meaning a satisfactory result in the production of a marketable commodity, when it is properly operated; and this implies an adequate test, made in good faith, under suitable conditions, by a competent operator, to determine whether such a result will be obtained. The purchaser cannot omit this, and from indifference, prejudice, caprice or change of purpose, arbitrarily declare the machinery unsatisfactory. And if, by the contract, the manufacturer is to provide instruction in operating, such instruction must be accepted in good faith, and the necessary means and facilities provided for making it effective.</p>

Appeal, No. 181, Oct. T., 1904, by defendant, from decree of O. P. Equity Docket 1903, No. 840, on bill in equity in case of William Bieber v. Kutztown Borough. Bill in equity for an injunction. Endlich, J., filed the following opinion: 1. The borough of Kutztown is a borough duly incorporated and subject to the provisions of the general borough law of April 3, 1851, P. L. 320, and its supplements. 2.

<p>Insurance — Fire insurance — Additional insurance — Notice.</p> <p>Where the by-laws of an insurance company require additional insurance to be noted on the policy, and a member after taking out additional insurance, informs the secretary of this fact in a chance conversation on a street car, and the secretary tells him to bring his policy to the office of the company to have the additional insurance noted, and the member neglects to do .this, he cannnot thereafter recover from the company for a loss of property covered by the policy although he may have paid assessments after his conversation with the secretary.</p>

<p>Municipalities — Sewers—Surface water — Damages.</p> <p>The construction of sewers, in municipalities, for the drainage of surface water, is á matter resting in the discretion of the municipal authorities, and their power in the premises is to be exercised with reference to the existing conditions and the means at their command. The municipality is not liable for damages resulting from an error of judgment with respect to the location or direction of the sewer, or its sufficiency for the purpose designed. Its liability is confined to injuries due to interference with the natural flow of water, faulty construction, and failure to maintain the sewer in proper condition, and free from obstructions that materially affect its use; and the rule is the same whether a natural water course is adopted for drainage purposes, or an artificial channel is built.</p> <p>Pleading — Practice—Trespass—Plea of not guilty — Evidence.</p> <p>Where in an action of trespass the defendant files an answer categorically denying the numbered paragraphs of the statement of claim, the answer is equivalent to a plea of not guilty.</p> <p>The plea of not guilty is sustained by proof that the damage complained of was due to some other cause than the defendant’s act or omission, or that the plaintiff’s negligence contributed to it; and these need not be specified, or even alluded to in the plea.</p> <p>In an action of trespass against a borough to recover damages for injuries to land alleged to have been due to the bad condition of sewer inlets, evidence may be admitted under the plea of not guilty, or its equivalent, that the injury was caused by an extraordinary flood, although no reference is made to such flood in the plea.</p> <p>Municipalities — Sewers—Damages—Evidence—Notice.</p> <p>In an action to recover damages for injuries alleged to have been sustained by reason of the defective condition of sewer inlets, the question of the condition of the inlets is properly withdrawn from the jury, where the uncontradicted evidence showed that the inlets had been cleaned out by the municipality five days prior to the day on which the injuries were sustained, and that they had remained clear during this intervening time.</p> <p>Waters — Flood—Extraordinary flood — Concurring negligence — Negligence.</p> <p>To give a stream or body of water the character, of an extraordinary flood, it is not necessary that it should be the greatest flood within memory; its character in this respect is to be tested by the comparison with the usual volume of floods ordinarily occurring. And even if, with an extraordinary flood, there is concurring negligence, the party chargeable with it will be relieved from liability if the flood is so overwhelming in character that it would of itself have produced the injury complained of independently of such negligence.</p>

<p>Attorney at law — Duties and liabilities — Professional skill.</p> <p>An attorney at law is not liable to his client for a failure to succeed, resulting in loss to the client, unless this is due to his mismanagement of the business intrusted to him through bad faith, inattention, or want of professional skill. An attorney must, at least, be familiar with the well-settled principles of law and rules of practice which are of frequent application in the ordinary business of the profession; must observe the utmost good- faith toward his client, and must give such attention to his duties, and to the interests of his client, as ordinary prudence demands, or members of the profession usually bestow. For loss to his client, resulting from the lack of this measure of professional duty and attainments, he must be held liable; and such loss forms an equitable defense to his demand for compensation.</p> <p>An attorney must be held to know the return day of process issued by his direction, must keep himself informed of the steps taken by the sheriff in its execution, and must give all instructions necessary to secure his client’s interests. It is usual for the attorney, on execution process, to give directions respecting the property which he desires should be sold, especially when this is real estate; and, if he omits this, he should, at least, ascertain what has been done in the premises by the sheriff, and act as the interests of his client requires. He must be held to know that when the return day of a fi. fa. has passed without a levy, the writ is functus officio; that a vend. ex. is issued only for a sale by virtue of a levy made on an antecedent writ; and he must at all times inform himself of the state of the record; and of the sheriff’s proceedings, before taking or directing any further step based thereon.</p> <p>An attorney is not responsible for a mistake of the sheriff to which he in no way contributes. But when he acquiesces in such a mistake, and directs further proceedings, founded on it, he makes the error his own, and is answerable for the loss to his client arising from such proceedings.</p> <p>Where the sheriff makes a levy after the return day of the writ, and the attorney directs further proceedings based on the void levy, the attorney will be liable to his client for the loss sustained.</p> <p>Statute of' limitations — Contract—Performance—Negligence—Pleading.</p> <p>When an action is based on the defendant’s negligence the statute of limitations operates on it as on any other. And when a demand, arising from the plaintiff’s negligence in an independent transaction, is set up by the defendant as a counterclaim, under our defalcation act, this is, in like manner, subject to the bar of the statute. But negligence on the part of the plaintiff, inherent in the cause of action, and operating to defeat it, stands on different ground. In an action on a contract, the right of recovery is based on performance; hence, whether due to negligence or to other causes, nonperformance is a full defense, and ill performance a defense pro tanto. Such defense is not merely a set-off, balancing or reducing the plaintiff’s demand, but strikes at his right of action by impeaching the consideration on .which it rests, and showing that, ex aiquo et bono, his claim has no foundation, or is limited in measure. It requires no special plea, but may be shown under the general issue, and is so involved in the cause of action that it cannot be separated, and subjected independently to the operation of the statute of limitations. As long as an action'on the contract is not barred by the statute, failure of performance from any cause, as a defense in whole or in part, remains unaffected by it.</p>

<p>Contract — Written contract — Abandonment—Parol evidence — Evidence.</p> <p>It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted; and this may be shown by parol, by showing either an express agreement or actions necessarily involving the alterations.</p> <p>In an action on a parol contract for wiring a theater, the defendants set up a written contract under which the work was to be done for a price much less than that claimed by plaintiff. The plaintiff introduced evidence to the effect that the original plan was wholly inadequate and was radically changed, that the fair cost of the execution of the changed plan was more than three times the contract price; that the defendants knew just what was contemplated by the original contract; that every detail of the changes and alterations was approved by them before the work was done, and that the alterations were so interwoven with the execution of the original plan as to make it difficult, if not impossible, to separate the items of work and materials that went into each. It also appeared that the contract price, plus the additional cost for the changes and alterations, amounted to about the sum which the plaintiff claimed. Held, that the case was for the jury and that a verdict and judgment for the whole of plaintiff’s claim should be sustained.</p>

<p>Appeal, No. 55 Oct. T., 1904, by Ella Y. Walter and W. Frank Walter, from decree of O. C. Del. Co., dismissing exceptions to adjudication in Estate of George Broomall, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by tbe opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 131, Oct. T., 1904, by defendant, from judgment of C. P. Delaware Co.,. Dec. T., 1903, No. 223, on verdict for plaintiff in case of Joseph Robinson v. Norwood Borough.</p> <p>Trespass for injuries to land. Before Savedg-e, P. J., specially presiding.</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 among others was in not entering judgment for defendant on question of law reserved, non obstante veredicto.</p>

<p>Appeal, No. 30, Oct. T., 1904, by defendant, from decree of C. P. Lehigh Co., April T., 1904, No. 2, awarding perpetual injunction in case of City of Allentown and C. J. Otto, President of the Board of Health, v. Robert A. Wagner et. al., Directors of the School District of Salisbury Township, Lehigh County, and the Board of Health of said Township.</p> <p>Bill in equity for an injunction. Before Trexler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding the perpetual injunction.</p>

<p>Appeal, No. 96, Oct. T. 1904, by Martha H. Simmons, from decree of O. C. Schuylkill Co., dismissing petition to declare a trust in Estate of Richard Smith, deceased.</p> <p>Petition to declare a trust.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the petition.</p>

<p>Will — Widow’s election — Agreement as to estate — Family settlement — Attachment execution.</p> <p>Where a widow has refused to take under a will, the executors, all the legatees, and the widow may enter into a valid agreement under which the will is to be probated, the widow is to enjoy the use of the real estate during her life, and the personalty is to remain in the hands of the executors to be invested by them, and the widow is to receive the income, and such part of the principal as her needs may from time to time require. Such an agreement is valid against any subsequent creditor of the legatee.</p> <p>Where an auditor has found that under the terms of the above agreement the executors were to pay the taxes on the widow’s house while she lived, and decently bury and mark her grave after she was dead, and such finding has been approved by the court below, the appellate court will not reverse the finding at the instance of a judgment creditor of a legatee whose judgment was expressly subject to such agreement, and especially where such creditor has failed to print the testimony upon which the auditor based his findings.</p> <p>Attachment execution — Parties—Res adjúdicata — Legacy—Assignment of legacy — Jurisdiction—Orphans’ court — Common pleas.</p> <p>A verdict and judgment against, or in favor of a garnishee in an execution attachment, is not conclusive against a person claiming adversely to the original defendant, who was not a party to and took no part in the attachment proceeding.</p> <p>Where a legacy is attached by a judgment creditor of the legatee, and the executors in attachment execution proceedings answer that the legacy had been assigned to a third person, and the attaching creditor proceeds without bringing in the assignee, and secures a judgment which was made subject to a family settlement in which the legatee had participated prior to the creation of the debt, and is limited as to execution until the estate shall have been passed upon by the orphans’ court, the attaching creditor cannot in subsequent proceedings in the orphans’ court allege that the rights of the assignee of the legacy had been adjudicated.</p>

<p>Justice of the peace — Trespass—Appeals—Acts of March 20, 1810, 5 Sm. L. 161, and March 22, 1814, 6 Sm. L. 182.</p> <p>An appeal does not lie from the judgment of the court of common pleas reversing the judgment of a justice of the peace in an action of trespass. •</p>

<p>Appeal, No. 234, Oct. T., 1903, by defendant, from order of C. P. No. 1, Pliila. Go., June T., 1900, No. 619, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth, by Clayton McMiehael, Treasurer of the City of Philadelphia v. Crum Lynne Iron & Steel Company.</p> <p>Appeal from tax assessment.</p> <p>Plaintiff filed a statement claiming §53.50, being the amount assessed against the defendant _ for mercantile license tax, as vendor of and dealer in goods, wares and merchandise in the city and county of Philadelphia during the year 1900.</p> <p>Defendant filed an affidavit .of- defense setting forth, that it was a manufacturer of 'charcoal boiler tubes, skelp and other articlés of iron and steel, in the township of Ridley, county of Delaware, state of Pennsylvania; that its storehouse and warehouse.were at its said manufacturing works ; that all the manufacturing was done at that place, and all merchandise manufactured by it was sold and delivered from said works and storehouse, and that the defendant had no other storehouse or warehouse separate and afart from its manufactory,- and no other place from which it sold its merchandise or products; and that the defendant did not deal in or vend any other goods, merchandise or articles, except those of its own manufacture.</p> <p>The plaintiff took a rule for judgment for want of a sufficient affidavit of defense.</p> <p>When the rule was argued, the plaintiff asked for judgment, on the ground that the defendant’s appeal was entered on July 9, 1900, which was more than ten days after the board of mercantile appraisers, upon an appeal by the defendant to the board, had ratified the assessment.</p> <p>The court made the rule for judgment absolute.</p> <p>Frror assigned was the order of the court.</p>

<p>Common carriers — Carriers—Railroads—Demurrage for cars — Reasonable rules.</p> <p>A carrier by rail may establish a rule fixing a reasonable rate for the detention of cars after a sufficient period for unloading, without specific notice to the shippers or consignees.</p> <p>It is the duty of a person dealing with a railroad company, unless relieved therefrom by agreement, to provide himself with the necessary facilities for the prompt unloading and return of the company’s cars. If the number of cars consigned to him is so large as to make this impracticable, he should limit his shipments to his capacity for dealing with them, or pay charges for delay.</p> <p>From the usual methods of business, the defendant must be presumed to have controlled the quantity of freight shipped on its own order.</p>

<p>Appeal, No. 35, Oct. T.; 1904, by plaintiff, from decree of G. P. No. 2, Phila. Go;, March T.; 1903, No. 2270, dismissing bill in equity in cáse of Charles -A; Browne v. Winfield S. Scull.</p> <p>Bill-in equity for ah injunction." Before Wiltbank J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>. Negligence — Master and servant — Fellow servant — Vice principal — Caustic soda on lid of closet.</p> <p>Where a master or superior places the entire charge of his business or a branch of it, in the hands of an agent or subordinate, exercising no discretion of oversight of his own, the master is liable for the negligence of such agent or owner. The agent in such case is a vice principal.</p> <p>Where a manager in the exclusive control of a store for the owner, directs an unskilled workman to place caustic soda in a water closet, and the workman negligently sprinkles some of the soda on the lid of the closet, and the manager without examining to see whether the work was properly done directs to the closet a newly employed workman and the latter in using the closet is seriously burned by the chemical, the owner of the store is liable in damages for the injuries sustained.</p>

<p>Mechanic’s lien — Statutory requirements — Notice of subcontractor — Contract — Act of June 4, 1901, P. L. 431.</p> <p>While a mechanic’s lien is a purely statutory proceeding and compliance with the requirements of the statute is necessary in order to give it validity, this rule only applies to essential requirements. In determining what are such requirements it should be borne in mind that a substantial compliance with the statutory requisites is all that is called for. This rule applies to the notice required of subcontractors by the act of June 4, 1901, P. L. 431.</p> <p>The exhibits and affidavit attached to a subcontractor’s notice to the owner, are a part thereof, and the sufficiency of the notice is to be determined by an examination of the notice, and the exhibits and affidavits attached.</p> <p>Where it appears from the notice and the exhibits and affidavits attached that the materials for which the lien was filed were sold and delivered under numerous verbal orders received by the claimant, and it also appears that the notice as a whole showed full details of the deliveries, including dates, prices, amounts and kind and description of material furnished, together with receipts from the contractors, the notice cannot be charged as an insufficient compliance with the act, because it did not set forth the contract under which the subcontractor claimed.</p>

<p>Appeal, No. 209, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1899, No. 605, on verdict for defendant in case of Edward Whitehill v. Joseph Schwartz.</p> <p>Replevin for household goods, delivered under an agreement of bailment. Before Barratt, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for defendant for $195.48. Plaintiff appealed.</p> <p>Error assigned among others was portion of the charge of the court quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 222, Oct. T., 1904, by defendants from order of C. P. No. 3, Phila. Co., March T., 1904, No. 2228, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Solomon Smucker v. Hannah Grinberg et al., trading as Manhattan Storage Co., and D. Grinberg and A. Morris.</p> <p>Assumpsit for rent, from January 1, 1904 to March 29, 1904.</p> <p>The affidavit of defense averred that the defendants did enter into a lease as set forth in exhibit “ A ” of plaintiff’s statement of demand and continued in possession of said premises until November 24, 1903, and paid the rent due under the terms of said lease until December 31, 1903. And deponent further says that they vacated the premises at the request of the plaintiff in accordance with a written notice received from the plaintiff under date of August 10, 1903.</p> <p>Upon receipt of the notice the defendants, at a great expense to themselves, secured another property at 631 Market street, and vacated 605 Market street on November 24, 1903, as aforesaid.</p> <p>This deponent sent the keys for premises 605 Market street to the plaintiff on January 1,1904, at his residence in Logan square, in the city of Philadelphia, where they were handed to a member of plaintiff’s family, which keys the plaintiff retained and kept complete control of the property.</p> <p>The plaintiff made no effort to rent the premises for defendants’ account, but to the contrary asked a larger rent of applicants desirous of renting the premises, and subsequently, to wit: on February 11, 1904, the said plaintiff entered into an agreement to sell said premises and to make settlement for the sale of said premises within sixty days of said date, and give possession of the premises at the date of said settlement.</p> <p>Deponent is advised, believes and, therefore, avers that the said plaintiff did sell said premises in accordance with the agreement referred to and gave possession of said premises without regard to an}'- lease, which according to his statement of claim he now avers is in existence.</p> <p>Deponent denies that the defendants are in any wise indebted to the said plaintiff for any rent, having paid all rent due to and including December 31, 1903, and that they vacated the premises in accordance with a notice received from the plaintiff, as aforesaid.</p> <p>The defendants further deny that they are indebted in any wise for any carpenter work or glazing claimed by the plaintiff, as set forth in exhibit “ B ” of the plaintiff’s statement of demand. At the time of the delivery of the keys to the said plaintiff there was only one broken window and the building was delivered in the same good order and repair as the premises were at the date of said lease, except such change as may have been occasioned by the reasonable wear and tear for the purpose for which the said building was rented. The deponent requested the plaintiff to send the keys for said premises so that the sash and the glass of said sash could be replaced. The plaintiff, however, proceeded to have this work done and the defendants believing that the cost for the said sash of one dollar ($1.00) and the light of glass for the same costing two dollars and seventy-five cents ($2.75), is not an unreasonable charge and is now and always has been ready to pay the said three dollars and seventy-five cents ($3.75), the cost thereof. No demand has been made for the said amount at any time before suit brought.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Liquor laws — Liquor license — Transfer—Bights of owner.</p> <p>The granting of a liquor license to the occupant of premises owned by another, does not entitle the owner to demand as a pure legal right that the license be transferred to him upon the removal whether voluntary or by compulsion of the licensee from the premises. The application for transfer in such a case is addressed to the sound legal discretion of the court of quarter sessions; and if the latter court refuses the transfer on the ground that there was no longer any necessity for a retail liquor store at the place and there is nothing to show that the discretion of the court in reaching this conclusion had been abused, the appellate court will not reverse the order.</p>

<p>Appeal, No.- 210, Oct. T., 1904, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1904, No. 5471, discharging rule to open judgment in case of William H. Hood, Agent, v. Alexander B. Drysdale.</p> <p>Rule to open judgment.</p> <p>Davis, J., filed the following opinion :</p> <p>Davis, J. The plaintiff commenced an amicable action in ejectment under and by virtue of a certain agreement of lease, entered judgment, and issued a habere facias for the recovery of the possession of the premises described therein.</p> <p>By said agreement plaintiff leased to defendant the premises, No. 100 Sterner street, for the term of one month from September 27, 1894, at the monthly rental of $25.00, payable punctually on the twenty-seventh day of each month in advance. It was also provided that at the expiration of the said term of one month, if the rent be not punctually paid within five days after the same shall have become due, or upon breach of any other condition of this lease, the lessee shall be a mere tenant at sufferance, and the lessor, or his assigns, may re-enter upon and take possession of the said premises ; or, at his option, as attorney for the lessee, sign an agreement for entering in airy competent court of record an amicable action and judgment in ejectment for the recovery by the lessor or his assigns of the possession of the premises and for the issuance of a writ of habere facias without further proceedings.</p> <p>This rule was based upon the assumption that the term of the lease being for one month only, the tenant, upon holding over, became a tenant at will, and therefore tenant from year to year, entitled to a three months’ notice before he could be called upon to deliver up possession of the premises; and that the notice admittedly given on June 9, 1904, to quit the premises on July 27, 1904, was therefore illegal and void.</p> <p>It is true for some purposes, that the lessee for any certain time less than a year, is recognized as a tenant for years. When, however, we are dealing with the question of an implied renewal of tenancy, all the terms of the former lease must be considered. The purpose is not to make a new lease essentially different, but to continue the former so far as its terms may be applicable. In its very nature the implied renewal of a lease assumes the continuation of its characteristic features. Hence, if a landlord elected to treat one holding over as a tenant, he thereby confirms the form of tenancy in which the tenant previously held. If that was a tenancy by the month, it would presumptively so continue. The landlord cannot impose a longer term nor one radically different from the former.</p> <p>In case a tenant by the month holds over, it will not be claimed that he is entitled to three months’ notice to quit. If the tenancy be by the month, a month’s notice to quit is sufficient : Hollis v. Burns, 100 Pa. 206.</p> <p>The rule to open judgment is therefore discharged.</p> <p>Error assigned was the order of the court.</p>

<p>Vendor and vendee — Sale—Forfeit money — Forfeiture—Affidavit of defense.</p> <p>Where an agreement for the sale of land provided for a deposit of a portion of the purchase money on the execution of the agreement and the payment of the balance on the day of settlement, and further provided that if the purchaser should “fail to comply with his part of the agreement within the time specified for settlement, which is thirty days, the money is to be forfeited,” the vendor cannot refuse to return the money because tender of the balance was not made until five days after the time of settlement, without showing that within the time specified he had tendered a deed with clear title to the purchaser.</p>

<p>Appeal, No. 231, Oct. T., 1904 by defendant, from order of C. P. No. 4, Philadelphia Co., June T., 1904, No. 2752, discharging rule to stay execution in case of William E. Hanscom and Matthew Hanscom, trading as Hans-com Brothers, v. George W. Chapin.</p> <p>Rule to stay execution.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Road law — Viewers—Signature to report.</p> <p>The Act of May 8, 1889, P. L. 129, fixing the number of road viewers at three, did not repeal section 3 of the Act of February 24, 1845, P. L. 52, which was extended to Columbia county by the Act of April 10, 1846, P. L. 286, and which, so far as signing the report is concerned, requires only that-it be “signed by a majority of their number.” Where two of the viewers have signed the report, the fact that the third viewer does not sign it until the return day, does not vitiate the report.</p> <p>Road law — Viewers—Report—Time and place of meeting.</p> <p>The report of road viewers need not affirmatively state that the viewers met at the time and place designated. In the absence of evidence to the contrary, or of an inference to be drawn to the contrary from something on the face of the report, it will be presumed that the jury did their duty.</p> <p>Road law — Confirmation of report — Exceptions.</p> <p>After the report of re-reviewers had been presented for confirmation, exceptions were filed to it, and at the same time a petition was presented for a re-re-review. The court directed this petition to be filed to await the disposition of the exceptions. Held, that it was not error to confirm the report of the re-reviewers absolutely without formally disposing of the petition for a re-review.</p>

<p>Municipal claims — Service—Registered owner — City of Philadelphia— Acts of March 29, 1867, P. L. 600, June 10, 1881, P. L. 91, May 16, 1891, P. L. 69, and July 26, 1897, P. L. 420.</p> <p>Where a scire facias sur municipal lien is issued in Philadelphia within five years from the time when the claim was filed, and is returned nihil habet without the filing of an affidavit averring that the registered owner is a nonresident or cannot be found, and an alias scire facias is issued more than five years after the claim was filed but within five years from the exit of the first writ, the alias writ is valid and cannot be stricken from the record. In such a case issuance of the original writ and the return of the nihil habet is sufficient to continue the lien for five years from the date of the filing the claim.</p>

Appeal, No. 55, Jan. T., 1905, by defendant, from order of C. P. Monroe Co., May T., 1904, No. 13, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Alfred H. Kidney, receiver of the New York and Pennsylvania Brick, Tile and Terra Cotta Company and the Chestnut Ridge Railroad of Pennsylvania v. James G. Beemer, trustee, and James G. Beemer. Assumpsit upon a promissory note.

<p>Appeal, No. 63, Jan. T., 1905, :by defendant, from judgment of C. P. Monroe Co., Feb. T., 1904, No. 1, on verdict for plaintiff in case of William B. Crane and Frank S. Crane, trading as Crane Brothers, v. Thomas M. Lynch.</p> <p>Trespass quare classum fregit. Before Staples, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $10.00. Defendant appealed.</p> <p>Errors assigned were (1-8) various instructions, quoting them ; (9) in entering a nolle prosequi for James Lynch.</p>

<p>Appeal, No. 11, Jan. T., 1905, by Nicholson Borough, from order of C.'P. Wyoming Co., June T., 1902, No. 75, dismissing exceptions to report of viewers In re Change of Grade of Main Street in Nicholson Borough.</p> <p>Exceptions to report of viewers. Before Dunham, P.'J.</p> <p>The opinion of the Superior -Court states the case.</p> <p>Errors assigned were in dismissing' exceptions to report of viewers.</p>

Appeal, No. 18, Jan. T., 1905, by plaintiff, from order of C. P. Luzerne Co., June T., 1898, No. 805, refusing to take off nonsuit in ease of W. L. Pace, Administrator of John McLaughlin, deceased, v. Michael J. Hoban. Trespass for mesne profits. Before Wheaton, J. The facts appear by the opinion of the Superior Court. Error assigned was in refusing to take off nonsuit.

<p>Waters — Diversion of waters — Railroads—Boroughs.</p> <p>In an action against a railroad company to recover damages for injuries to land caused by water, the case is for the jury where the evidence for the plaintiff, although disputed, tends to show that the defendant collected large bodies of rain water on a hillside above its tracks by means of chutes, that the water was discharged into a ditch alongside the railroad, from which it flowed into an iron pipe under the railroad, out upon a public highway, and thence spread over and injured plaintiff’s property.</p> <p>In such a case if the court charges specifically that the defendant cannot he held liable unless it cast upon plaintiff’s land more water than would have naturally flowed there, it cannot be convicted of error in not referring to a contention that the loss was caused by an extraordinary flood, the record not showing that any request had been made for instructions on that subject.</p> <p>Where a railroad company and a borough have each contributed to an injury to land from the flow of water thereon, the tort of the one is no defense to an action against the other.</p> <p>The fact that the owner of land upon which water is directly thrown consents thereto, does not constitute a defense, if the water necessarily finds its way to the property of another and causes injury thereto.</p>

<p>Executions — Refusal of exemption — Attachment—Constable.</p> <p>No action can be maintained against a constable for refusing the benefits of the exemption act in a suit commenced by an attachment in which no execution was ever issued.</p>

<p>Appeal, No. 9, Jan. T., 1905, from order of Q. S. Lackawanna Co., Feb. T., 1901, No. 356, making absolute rule for mandamus execution in reapportionment of the Indebtedness of Old Forge School District.</p> <p>Rule for mandamus execution.</p> <p>Edwards, P. J., filed the following opinion:</p> <p>In order to understand the present status of this case it is necessary to refer to some facts of a preliminary nature.</p> <p>1. In May, 1899, by a decree of the court of quarter sessions of Lackawanna county, the borough of Old Forge was created out of the greater portion of Old Forge township. This resulted, by operation of law, in the formation of the new school district of Old Forge borough, leaving the balance of the township a school district by itself: In re Abington School District, 4 W. N. C. 247 ; Old Forge School District’s Indebtedness, 22 Pa. Superior Ct. 239.</p> <p>2. A petition was filed in January, 1901, under the Act of April 11, 1862, P. L. 471, praying for an adjustment and apportionment of the property and indebtedness of the old school district among the two school districts — the borough and township school districts.</p> <p>A commissioner was appointed to report the facts. His report was filed and excepted to. On August 11, 1902, the exceptions were dismissed and the report of the commissioner confirmed. In our opinion dismissing the exceptions we directed counsel to prepare a final decree, in accordance with the provisions of the act of 1862, and submit the same to the court. The case was then appealed to the Superior Court. Counsel, having overlooked the preparation of the final decree, asked leave of court to file the same. This decree was entered of record on January 5,1903, nunc pro tunc as of August 11,1902.</p> <p>The amount decreed to be paid by the Old Forge school district to the Old Forge township school district was $3,026.64. For further facts and law we refer to the case of Old Forge School District’s Indebtedness, supra, where will be found the opinion of the court below, the opinion of the Superior Court and the supplementary opinion of Judge Smith.</p> <p>3. The Old Forge borough school district, having- been defeated in its contention in the court below and in -the Superior Court, recourse was had to the legislature of 1903, the result being the act of February 5, 1903, “ relating to school districts in townships and boroughs erected therefrom.” We quote this act in full in this place :</p> <p>“ Section 1. Be it enacted, etc., That whenever a borough has been or shall be erected out of a portion of a township, leaving the remaining portion of the township without a schoolhouse, and with less than ten resident freeholders, and less than twenty-five resident children between the ages of six and sixteen years; then, and in such case, the creation of such borough shall not cause a division of the school district of the township out of which such borough was formed; but the school district, as it existed in such township before the creation of such borough shall be and remain as heretofore: Provided, however, that whenever it shall be made to appear to the court of common pleas of the proper county, by petition of at least twenty freeholders of such undivided school district, and proper hearing, that the portion of such school district outside the borough has at least ten resident freeholders and twenty-five children as aforesaid ; Then the said court, in its discretion, may decree that said school district shall be divided into two districts, one consisting of the territory within such borough, and the other to consist of the part of the original township territory not included within such borough lines.</p> <p>“ Section 2. All laws or parts of laws, whether general or special, in conflict with this act are hereby repealed.”</p> <p>The record will not permit us to state that this act of assembly was enacted at the instance of the borough school district, because there is no direct evidence on this question ; nevertheless, it seems to us that if the counsel for the school district had been requested to prepare a retroactive act specially applicable to the case at bar, and calculated to affect the school districts of Old Forge borough and township, out of all the school districts in the state, counsel could not have accomplished the purpose more successfully than has been done by the act in question, subject, of course, to the possibilities- that such an act of assembly might be special or local legislation'and therefore unconstitutional.</p> <p>It is claimed by one side to the present controversy that the act wipes out the township school district and annuls the final decree of January 5, 1903. On the other side it is claimed that the act is unconstitutional because, (1) its title is defective ; (2) it impairs the obligation of contract; (3) it is special or local legislation.</p> <p>The act may be unconstitutional for any or all of these reasons, but we do not consider that we are called upon to decide this question in the present case. The final decree was entered January 5, 1903, and whether or no the order entering the decree nunc pro tunc as of August 11, 1902, is efficacious is immaterial, because the act was not passed until February 5, 1903. And it is well settled law that acts of assembly must be construed to act prospectively when they would affect vested rights by a retroactive construction. So far as the present case is concerned the act in question must be construed to act prospectively. It cannot affect vested rights as they existed in August, 1902, or in January, 1903. The final decree of the court is in the nature of a contract and cannot be impaired by subsequent legislation. The foregoing discussion brings us to the subject-matter of the rule now before us. The rule as granted is to show cause why judgment should not be entered upon the decree and an execution awarded. Probably the more correct form of the rule would be “ to show cause why execution should not issue.” The decree of January 5, 1903, was in the nature of a judgment. It was adjudged and decreed that one school district pay to the other a certain sum of money. That was the judgment of the court. It was so entered of record. The eleventh section of the Act of 1862, P. L. 471, provides as follows : “ And any sum thus decreed to be due by any district, to any district or individual, shall be entered in the nature of a judgment, against the same, and shall be subject to execution in the manner prescribed by the twenty-first section of the general common school law of May 8, 1854.” It cannot be questioned that the decree of January 5, 1903, had the force and effect of a judgment. But it is not necessary to waste argument over the exact form of the relief prayed for. We make the rule absolute in the form it is before us, and we further order and decree that wait of execution issue as prayed for against the Old Forge borough school district, commanding the directors and treasurer of said school district to cause the amount of the said judgment as stated in the decree of January 5, 1903, to wit: the sum of $3,026.64, with interest and costs, to be paid to the plaintiff out of any moneys unappropriated of such district, or if there be no such money, then out of the first moneys that shall be received for the use of such district, as provided by law.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 15, Jan. T., 1905, by-Joseph Wolf, from order of C. P. Lackawanna Co., March T., 1903, No. 474, sustaining exceptions to auditor’s report in case of the Security Building & Savings Union v. Jesse G. Colvin.</p> <p>Exceptions to report of H. D. Carey, Esq., auditor.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were in sustaining exceptions -to report- of the auditor.</p>

<p>Contract- — Legality—-Agreement to induce a purchase — Evidence.</p> <p>An agreement to use one’s influence to induce a person negotiating for the purchase of real estate, to complete the purchase, is a legal one, and the money consideration agreed to be paid on the completion of the purchase may be collected in an action at law.</p> <p>In such a case the question whether it was probable that the defendant would have entered into such an agreement, and whether it was reasonable or not, were proper subjects for the consideration of the jury, but they cannot be considered by the appellate court.</p>

<p>Negligence — Street ■ railway — Alighting from car — Province of court and jury — Evidence.</p> <p>In an action against a street railway company to recover damages for injuries to a passenger while alighting from a car, the case is for the jury where the plaintiff testifies that the car had stopped and that he was thrown, and injured by its sudden starting before he had completely alighted, although this testimony is uncorroborated and contradicted by several witnesses for the defendant.</p> <p>Where the plaintiff’s testimony in chief is such as to make a case for the jury, though without corroboration, and contradicted by the defendant’s witnesses, and even by his own, it must, unless on cross-examination facts are submitted fatal to his claim, be submitted to the jury, since they may believe his testimony rather than that of his witnesses who contradicted him; and if portions of the testimony of any witness appear inconsistent, confusing or contradictory,' it is for the jury to settle the doubt arising from its character in this respect.</p>

<p>Appeal, No. 12, Jan. T., 1905, by plaintiff, from judgment of C. P. Luzerne Co., June T., 1901. No. 60, on verdict for defendant in case of James L. Bunnell v. Julius A'. Kintner.</p> <p>■Rule to open judgment;</p> <p>Issue to determine the validity of a judgment. Before Lynch, P. J:</p> <p>At the trial the court admitted in evidence the judgment note in controversy notwithstanding the ■ objection of the defendant that the note' showed material alterations on its face. Plaintiff then rested. The defendant offered'testimony to establish the alterations. George A. Transue was then called in rebuttal by defendant, and the following offer was made:</p> <p>Plaintiff offered to prove by George A Transue that he has had long experience as teacher in commercial colleges, and in other ways, in handwriting, that he is an expert in that line; It is proposed to hand him the note in suit and show by him that in his opinion the word “ push v has not been changed from the word “ on ” or any other word and that nothing has been added to the paper since it was signed. This for the purpose of rebutting the testimony offered by the defendant, tending to show that there had been a change from the word “ on ” to the word “ push ” and that certain additions were made in the note after the signing thereof, authorizing a confession of judgment.</p> <p>Defendant’s counsel object to the proposed evidence on the ground that under the pleadings in this case the burden was upon the plaintiff to make out his whole case in chief, and that when he rested his case upon offering the note simply, and showing its execution, by the subscribing witness, he thereby precluded himself from offering testimony in rebuttal which would explain the note, and which was properly a part of his case in chief. Also in accordance with the rules of court the defendant having denied that this note was executed by him in its present form, by affidavit and on deposition, it put the plaintiff upon notice and imposed upon him the necessity of proving as a part of his case in chief that the note was in its present form at the time it was signed. Therefore the testimony is objected to as not properly in rebuttal. Objection sustained, exoeption noted and bill sealed for plaintiff. [3]</p> <p>James L. Bunnell, plaintiff, recalled in rebuttal in his own behalf.</p> <p>Plaintiff proposes to show by the witness on the- stand the conversation that took place in his office when this note was signed, the statements made to him by Kintner with reference-to the validity of the claim and the other things that were said, and done there ; who the New York witnesses were as to the accident, the' validity of the accident claim and what he said he had been offered by the company to settle, and what he had been offered by some other lawyer to give the other lawyer the case, and everything that was said and done at the time of the execution of the various papers offered in.evidence.</p> <p>Defendant’s counsel object to any conversation'as. to the validity of the claim or any description of it or its legal effect, by Mr. Kintner to Mr. Bunnell, for the reason that such evidence is irrelevant, immaterial and incompetent. All of this offer is objected to by defendant’s counsel for the reason-that it was the duty of the plaintiff, under the pleadings in this case, and the state of the record showing the opening of the. judgment, and the depositions and the issue which the court has framed, to establish his case in chief; and' having rested his case without having done so, he cannot now be permitted to do so in rebuttal; and that this evidence is in no sense rebuttal because it was plainly part of the plaintiff’s case in chief.</p> <p>Plaintiff desires to prove, farther, by the' witness- on- the stand that the defendant, in stating to him. the case he had against the New York company or the railway company in New York, gave to the plaintiff the names of the two witnesses who, as he alleged, witnessed the accident, and who would inform Mr. Bunnell as to the facts in the case ; and that in pursuance of the representations made by the defendant-, Mr. Bunnell went to New York to interview those witnesses, that he saw one and failed to see the other; that he afterwards wrote to the other witness to whom he was referred, and received an answer to his letter; that both of these people made entirely different statements to Mr. Bunnell, from those the defendant alleged they would make. This is for the purpose of contradicting the defendant.</p> <p>Defendant objects to this offer because the issue in this case is to determine whether, or not the defendant executed the paper in question in the form in which it now appears, and that upon that question the evidence offered in the concluding offer just made has no relevancy; does' not throw any light upon the question whether this note was altered or not, and as before objected, if it is relevant it was a part of plaintiff’s case in chief.</p> <p>Objection sustained, exception noted and bill sealed for plaintiff. [4]</p> <p>John Bunnell recalled in rebuttal for plaintiff.</p> <p>Plaintiff proposes to prove -by the witness on the stand who was the subscribing witness to the note in controversy, that the note when signed by Kintnerwas in the same condition as it is now, and that no addition or alteration has been made to the said note.</p> <p>Defendant objects that the witness was called by the plaintiff in chief to prove the execution of the note in question, and that if plaintiff desired witness’s testimony on this point he should have interrogated him in reference thereto at that time. That this evidence, under the pleadings, is not rebuttal, but is part of plaintiff’s case in chief.</p> <p>Objection sustained, exception noted and bill sealed for plaintiff. [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) in opening the judgment; (3,4,7) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 60, Oct. T., 1904, by defendant, from order of O. P. Franklin Co., Dec. T., 1908, No. 179, making absolute rule for judgment for want of a sufficient affidavit of defense in case of L. D. 0. Houser v. National Bank of Chambersburg.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Biddle, P. J., specially presiding.</p> <p>The material facts alleged in the affidavit of defense are stated in the opinion of the Superior Court.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 198, Oct. T., 1904, by plaintiff, from judgment of C. P. Berks Co., Sept. T., 1903, No. 41, for defendant, non obstante veredicto in case of Empire Steel & Iron Company v. John L. Lawrence. Trespass for injuries to land. Before Endlich, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $650 subject to question of law reserved. The court entered judgment for defendant non obstante veredicto.

<p>Appeal, No. 206, Oct. T., 1904, by plaintiff, from judgment of C. P. Del. Co., March T., 1903, No. 166, for defendant non obstante veredicto in case of Edward C. Burton v. T. Woodward Trainer.</p> <p>Assumpsit to recover a share of the proceeds of a sale of real and personal property. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $876.67, subject to question of law reserved.</p> <p>The court subsequently entered judgment for defendant non obstante veredicto on the ground that assumpsit was not the proper remedy.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Deed — Condition subsequent — Forfeiture—Abandonment—School law — Act of April 11, 1862, P. L. 471.</p> <p>Where land has been conveyed to a school district upon condition that it shall be used for school purposes only with a right of re-entry for condition broken to the grantor, “his heirs or legal representatives if they be so minded and deem the same expedient,” a purchaser at sheriff’s sale of the rights of the grantor who had entered into possession of the property, cannot enforce a forfeiture against the school district where it appears that prior to .the plaintiff’s entry the school board had voted that the school should be moved “temporarily,” to another school house, but that this vote had not been taken.in the manner provided by the Act of April 11, 1862, P. L. 471, and that the removal had not been approved by a portion of the citizens of the district.</p> <p>In an action of ejectment brought in such a case to enforce the rights of a school district to the land, the defendant cannot be permitted to set up as a ground of forfeiture the failure of the district to institute proceedings at an earlier date to eject him. One in possession claiming adversely has no standing to allege that he should have been promptly ejected in order to avoid a breach of the condition of the deed.</p>

Appeal, No. 119, Oct. T., 1904, by defendant, from decree of O. P. Lehigh Co. April T., 1908, No. 3, dismissing petition for attachment for contempt in case of Le-high Portland Cement Company et al v. Mauch Chunk, Leigh-ton and Slatington Street Railway Company, Hugh E. Crilly, Receiver. Petition for attachment for contempt of court. Before Trexler, P. J. The facts appear by the opinion of the Superior Court. JError assigned among others was the decree of the court.

<p>Appeal, No. 183, Oct. T., 1904, by plaintiff, from decree of C. P., No. 4, Phila. Co., Dec. T., 1903, No. 3090, dismissing bill in equity in case of Bank of Commerce of Louisville, Ky. v. Philip P. Peace and Rowland Evans.</p> <p>Bill in equity for an account.</p> <p>Audenried, J., found the facts to be as follows:</p> <p>On January 15, 1902, Evans lent Peace $2,000 and took from Mm an assignment of a certain ground rent, upon the parol agreement that he would sell the ground rent and, having deducted from the proceeds of its sale the amount of his advances, pay over the balance thereof to Peace. On March 20, 1902, Evans advanced Peace the further sum of $500, against the price that the ground rent would bring when sold. On April 23, 1902, the Bank of Commerce, of Louisville, obtained a judgment against Peace for $10,193.30 in an action of assumpsit begun in this county January 4, 1902, but of whose pendency neither Peace nor.Evans was aware when the ground rent was conveyed from the former to the latter. When that conveyance was made, Evans had no knowledge of the bank’s claim against Peace.</p> <p>On February 13, 1903, the ground rent was sold by Evans for the price of $3,000. Out of this money he repaid to himself the $2,500, which he had advanced to Peace and the $30 which he had expended in connection with the conveyance, and then turned over to Peace the remaining $470.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree of the court dismissing the bill.</p>

<p>Appeal, No. 40, Jan. T., 1905, by plaintiff!, from order of Q.' S. Wyoming Co., Oct. T., 1903, No. 11, refusing motion in arrest of judgment in case of Commonwealth v. W. H. Rothermel.</p> <p>Indictment for fishing on Sunday.</p> <p>Motion in arrest of judgment. Before Dunham, P. J.</p> <p>Error assigned was in overruling motion in arrest of judgment.</p>

<p>Affidavit of defense — Practice, C. P. — Contract.</p> <p>In an action of assumpsit to recover money received by the defendant, the plaintiff is not entitled to summary judgment where the affidavit of defense contains averments which tend to show that the plaintiff had no direct dealings or contract with the defendant, that there was no subsisting relation requiring good faith on the part of one toward the other, that if the plaintiff parted with his money he did not do so on the faith of anything done or promised to be done by the defendant, and that he. had in no way been overreached by any design or conniving of the defendant.</p>