Volume 28 — Pennsylvania Superior Court Reports

<p>Negligence — Railroads—Grade crossing — “Stop, look and listen” — Signals —Province of court and jury — Speed.</p> <p>In. a grade crossing case where the evidence is contradictory as to whether the approaching train gave a signal, the case should be submitted to the jury with proper explanations as to the relative value of the testimony of those who swore positively that they had heard the signal and the negative testimony of those who simply testified that they had not heard it.</p> <p>While it may not be negligence for a railroad company to run a train in the open country at the rate of sixty miles an hour, still if'it does so, it should give some warning or signal at crossings, and a court cannot be convicted of error in referring to such a rate of speed in connection with proper instructions as to signals at crossings.</p> <p>Negligence — Railroads—Grade crossings — “ Stop, look and listen ” — Driving cattle over tracks.</p> <p>Those who are about to drive a herd of cattle across a railroad track over which express trains are run at a high rate of speed, must first take the necessary precautions to ascertain whether trains are approaching. After the herd is once started across the track it may be impossible to turn them back or divide them until all have passed. When a herd is very large it may be incumbent upon those having them in charge to divide them, so as not to occupy the crossing for a length of time which would involve danger.</p> <p>The fact that a person who was leading a herd of cattle has stopped, looked and listened, does not relieve all intelligent persons following after from exercising the care demanded from the circumstances, nor from the operation of the rule of law that they must stop, look and listen for approaching trains.</p> <p>Where a person leading a cow by a rope followed by twelve other head of cattle, stops, looks and listens three feet from the track where an approaching train would be visible for a mile and nine-tenths, and after he has gone seventy-five or eighty feet, a train going at the rate of sixty miles an hour, strikes and kills some of the cattle, and these facts are contradicted, the case is for the jury.</p>

<p>Negligence — Mining company — Master and servant — Guard rail — Act of June 2, 1891, P. L. 176.</p> <p>A mining corporation which neglects to provide a guard rail for a dangerous platform, as provided by the Act of June 2, 1891, P. L. 176, is liable in damages for the death of an employee who is killed while on the platform in pursuance of orders from the mine foreman, and while engaged in the performance of his work.</p> <p>Negligence — Death—Damages—Parent and child — ‘Act of June 2, 1891.</p> <p>Under the Act of June 2, 1891, a woman is entitled to damages for the negligent killing of her minor son, although she may at the time of the accident have been married a second time, and the son may have been living with his mother and stepfather.</p> <p>The wages of a minor boy, killed by the negligent conduct of another, may be considered in ascertaining the value of his life to his parents. Such evidence is strong but not conclusive evidence of the boy’s earning capacity.</p>

<p>School law — Directors—Recording of vote — Employment of teachers — Act of April 11, 1862, P. L. 471.</p> <p>Where the minutes of a school board show that “all members answered the roll call,” and that a contract for the employment of a teacher was authorized, “all members voting in the affirmative,” the validity of the contract cannot be attacked on the ground that the names of the members voting were not recorded in the minutes. In such a case the minutes substantially comply with the spirit of the Act of April 11, 1862, P. L. 471.</p> <p>School law — Employment of teachers — Act of June 25, 1885, P. L. 175. '</p> <p>Under the Act of June 25, 1885, P. L. 175, a local school board of a township may elect a properly qualified teacher for an ordinary common school for three successive school terms. In the expression in the act “public high and state normal schools,” the court will not construe the word “public” as simply qualifying the word “high,” inasmuch as there was no authority in townships to establish high schools until the passage of the Act of June 28, 1895, P. L. 413.</p>

<p>Appeal, No. 51, Jan. T., 1905, by Mary Burke, from judgment of C. P. Luzerne Co., Dec. T., 1901, No. 186, on verdict for plaintiff in case of Mary Burke v. The School District of the Township of Wilkes-Barre.</p>

<p>Mandamus — School law — Director—Quo warranto.</p> <p>Mandamus will not lie in favor of a person claiming the office of school director, where another person is actually in the office, and is recognized as a director by the other members of the board. In such a case the remedy is by quo warranto in which the rights of the incumbent may be determined.</p>

Appeal, No. 3, Jan. T., 1905, by-plaintiff, from order of C. P. Lackawanna Co., May T., 1899, No. 575, sustaining exceptions to auditor’s report in case of B. M. Winton and Walter W. Winton, Executors of Catherine Winton, Deceased, v. John Benore & Son, Claimants upon the fund derived from the sale of the real estate of B. E. Leonard. Exceptions to report of R. L. Levy, Esq., auditor. Errors assigned were in sustaining exceptions to the auditor’s reports.

<p>Appeal, No. 5, Jan. T., 1905, by defendant, from order of C. P. Lackawanna Co., Nov. T., 1902, No. 302, sustaining exceptions to report of referee in case of Sidney Lenz and Harry Lenz trading as The Lenz & Lenz Company v. Susan Spencer.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Exceptions to report of L. P. Wedeman Esq., referee.</p> <p>The facts appear by the opinion of the court below.</p> <p>Errors assigned were in sustaining exceptions to report, of referee.</p>

<p>Appeal, No. 41, Jan. T., 1905, by defendant, from order of C. P. Lackawanna Co., Nov. T., 1903, No. 513, sustaining appeal from report of borough auditors in case of Dunmore Borough School District v. August Wahlers.</p> <p>Motion to quash appeal.</p> <p>The opinion of the Superior Court states the case.</p>

<p>Appeals — Township and borough auditors — School district treasurer — Act of May 11, 1901, P. L. 185 — Exceptions.</p> <p>Where the court of common pleas allows an appeal nunc pro tunc from a report of borough auditors on the accounts of a school district treasurer, and an exception is filed to the allowance of the appeal nunc pro tunc, the appellate court under the Act of May 11, 1901, P. L. 185, may review the question raised by the exception.</p> <p>Appeals — Borough auditors — Appeal nunc pro tunc — Act of April 15,1834, P. L. 537.</p> <p>The court of common pleas has no power to allow an appeal nunc pro tunc from a settlement of a school district treasurer’s accounts by borough auditors four months after the auditors’ settlement has become absolute, in the absence of any allegation or proof that the settlement had been procured by fraud.</p>

Appeal, No. 68, Jan. T., 1905, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 65, on verdict for plaintiff in case of John McGahren v. The Royal Union Mutual Life Insurance Company. Assumpsit for moneys paid out and for services.

<p>Appeals — Taxation of costs — Record.</p> <p>An appellate court will not review a taxation of costs by the common pleas where the adjudication complained of relates to the number and materiality of the witnesses in attendance, the length of time they were in attendance, the number of miles traveled by them, or by the officer, or other person serving the subpoena, and similar matters of fact. These matters cannot be considered because the evidence upon which they are based is not brought up with the record. Errors of law, however, apparent on the face of the record will be reviewed.</p> <p>Costs — Taxation of costs — Affidavit—Burden of proof.</p> <p>Where the affidavit to a bill of costs, taxed without notice to the opposite party, is not made by the party filing it or his attorney, or by some person having such relation to the case that it may be presumed that he had knowledge of the essential facts, it ought to show affirmatively the source of the knowledge of the affiant in order to cast on the exceptant the burden of proving its inaccuracy.</p> <p>Practice, C. P. — Buies of court — Construction.</p> <p>Every court is the best judge of its own rules and the practice under them, and its decision as to its meaning, although made by a judge specially presiding, will not be reversed except for manifest error.</p>

<p>Municipal liens — Paving assessments — Registration—Assumpsit—Act of May 23, 1889, P. L. 277.</p> <p>An action of assumpsit cannot be maintained by a city to recover a paving assessment for which no specification of claim has been previously filed and entered as provided in section 21, article 15, of the Act of May 23, 1889, P. L. 277.</p>

<p>Liquor laws — Place, of sale — Agent.</p> <p>Under a license to sell liquors a dealer may,ship liquor by a carrier or by his own conveyance directly to customers beyond the county in which he is licensed, on orders received in the regular course of business; or on orders obtained outside the county through a solicitor. In such cases the sale is regarded as made at the dealer’s place of business, and not in the county of the customer’s residence, and this even though the price is to be collected by the carrier on delivery. But when a dealer’s agent takes orders in another county, and fills them by delivering liquor furnished him by his employer in the county in which the latter is licensed; it is a violation of law. In such a case the sale is regarded as made when the order is taken and the liquor delivered, and it is immaterial that the packages were labeled by the dealer with the names of the purchasers.</p>

<p>Appeal, No. 18, Oct. T., 1905, by defendant, from judgment of O. & T. Blair Co., June T., 1904, No. 6, on verdict of guilty in case of Commonwealth v. Harry Berney and Jacob Black.</p> <p>Indictment for larceny. Before Bell, P. J.</p> <p>The court charged in part as follows:</p> <p>[The commonwealth claim that somebody out of those two cars, Cumberland valley No. 705 and St. Louis line 10,557, stole the sixty-eight pigs of tin, and the commonwealth allege that these blocks of tin were stolen after the cars arrived in Altoona; that the testimony of the sealers at Jersey City shows that the cars were sealed there and that the railroad company have a number of inspectors, 120 in number, I believe, whose business it is to inspect all cars that come into the Altoona yard and report whether any seals were broken. The commonwealth produce the record of the railroad company which they keep of reports of seals broken, and this record fails to show any report of the seals broken on the Cumberland, valley car or the St. Louis line car; when these cars arrived at Twelfth street the seals were broken. Right here .the commonwealth claim that, therefore, the seals must have been broken after they arrived in the Altoona yard, because they call the two clerks whose business it was to inspect the cars after they got down to Twelfth street, and they say when these two cars arrived at Twelfth street the seals were broken. Right here the defense claim that the commonwealth have not shown that any pigs of tin were stolen in Blair county; that they may have been stolen any place between Jersey City and Altoona, and the attorneys for the defense criticise the testimony offered by the commonwealth as to the seals not being broken when the cars entered the Altoona yard.</p> <p>On the other hand, the commonwealth reply that they have offered the best evidence on this point which is obtainable. That there are 120 inspectors there and it would have been beyond all reason to call these inspectors to prove that no one of them saw this seal broken when it came into the Altoona; that •that is asking something beyond reason, and beyond the necessities of a court trial, considering the vast amount of business that is done by the railroad company, and the modern ways of doing business; that all the commonwealth could do would be to prove that no report of the broken seal was made to them.] [7]</p> <p>[If you conclude that the tin which Mr. Berney shipped to Philadelphia was stolen, then the next question for your determination is as to whether Mr. Black and Mr. Berney received this stolen tin. knowing it to be stolen. On that point the commonwealth in the first place call Mr. Porta, who says that he lives in Millville, and lives next door neighbor to Mr. Black, and he says one morning in September of 1903 — -you will recollect that the Cumberland valley car No. 705 arrived in Altoona in July of that year — that one morning in September of 1903 he was awakened out of his sleep by hearing some noise down at his stable as he supposed, his stable adjoining that of Mr. Black. I think Mr. Porta said he thought one of his horses might have the colic and fallen down, and he says he got up and went down at four o’clock in the morning and looked through a crack in his stable into the adjoining stable of Mr. Black and saw Mr. Black and some other man to him unknown throwing from a wagon — the horses had been taken out of the wagon — in the stable they were throwing off the wagon pigs of metal, which he says looked like, the pigs offered in evidence. Then he says he got up and started to the mountain for a load of coal, and about the time he was starting Mr. Black made a fire in Mr. Black’s yard near his stable and began to melt some metal in a tin kettle, and he says that when he came back the melting was still going on, and going on still in the evening, and he says that he looked over the fence and saw Mr. Black with some ladle or something in the nature of a ladle, lifting the melted metal out of a large iron pot and running it into what Mr. Porta said at one time was a crock and at another time was a tub, and which, I believe, he finally said was an iron pot. Then the commonwealth called Mr. Hewitt. He Says that on December 29, of that year he was called on by Mr. Black to haul a load of material to Hollidaysburg, and that he went to the stable of Mr. Black the next morning, December 30, and did haul four barrels which were very heavy —you will recollect how he described them as falling -on his foot — to Hollidaysburg, and that they were shipped by Mr. Berney to Philadelphia to the Ajax Metal Company. The vice president and secretary of the Ajax Metal Company is called and he testifies that in the fall of 1908 — -I believe the shipments were all made in December, 1908 — between seven and eight thousand pounds — I am not sure of the exact amount — of block tin were shipped by Mr. Berney to his company, and he says that the tin was all in the form of the circular blocks which have been produced in evidence, and, while Mr.Berney shipped it, the first two shipments were made in the name of Lang, and the letters of Mr. Berney have been produced which show that while he was shipping it himself he was shipping two shipments at least in the name of Lang. Now as Mr. Hicks has argued to you, it is not necessary for the commonwealth to show by direct evidence knowledge on the part of defendants that the goods were stolen. A jury would be warranted in finding such guilty knowledge from circumstances, because we have no method of unfolding the secrets of any man’s mind; we cannot look into his heart and see his mind at all and see just how his mind operates, and what his knowledge was, but guilty knowledge can be inferred from circumstances. But the circumstances must be such as to bring the jury to a conclusion beyond a reasonable doubt that there was guilty knowledge. The commonwealth allege that there was Mr. Black in the fall of 1908 reducing pigs of tin into scrap tin; that in the form of pigs of tin the tin would be worth some twenty-seven cents, whereas in form to which he reduced it by the use of the pot as testified to by Mr. Porta it was only worth some twenty-two cents, and the commonwealth ask, Why did Mr. Black go to the trouble of hauling that tin to Hollidaysburg to ship it ? Why did n’t he take it down to the Altoona freight office in the form of pigs, its highest commercial value form, and ship it to Philadelphia, and why did Mr. Berney ship it in the name of Lang, and why did he ship it as lead and why did Mr. Black say it was lead when Mr. Hewitt asked him what the barrels contained ?] [10]</p> <p>Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1) admission in evidence of car inspectors’ record ; (7, 10) above instructions, quoting them.</p>

<p>- Liquor laws — Names of sureties — Petition—Amendment.</p> <p>The omission to fill in the names of proposed sureties in a blank space left for that purpose in a petition for a liquor license, is not a fatal defect and may be cured by amendment where it appears that on the same sheet with the petition, the affidavit of the applicant and the certificate of the freeholders was a bond duly executed by the applicant and his sureties, and it is also made to appear to the court that the omission of the names was by mistake, that the affidavit to the truth of the matters set forth in the petition was made after the sureties’ names had been inserted in the bond, and that at the time the applicant made it, he supposed that they had actually been inserted in the petition.</p>

<p>Appeal, No. 4, March T., 1905, by the Anti-Saloon League of Lycoming Co., from order of Q. S. Lycoming Co., March T., 1904, No.' 112, granting a liquor license In re Petition of John E. Fourney.</p> <p>Petition for liquor license. Before Hart, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>jError assigned was the order of the court.</p>

<p>Appeals — Paper-books—Failure to print evidence.</p> <p>A paper-book will be suppressed and the judgment affirmed where the appellant fails to print the evidence given on the trial. The recital of facts in the opinion filed by the trial judge will not take the place of the duly certified evidence, in the absence of an agreement that it contained all the facts concerning which evidence was given.</p>

<p>Appeal, No. 142, Oct. T., 1904, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1903, No. 319, on verdict for plaintiff in case of Jacob Fetterman and Catherine Fetterman, his wife, v. Rush Township:</p> <p>Trespass to recover damages for personal injuries. Before Auten, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Jacob Fetter man for $95.00, and for Catherine Fetterman for $500. Defendant appealed.</p> <p>JError assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 10, March T., 1905, by defendant, from judgment of C. P. Cumberland Co., Nov. T., 1908, No. 33, on verdict for plaintiff in case of The First Evangelical Lutheran Church of the Borough of Carlisle v. John H. Gardner.</p> <p>Assumpsit to recover the amount of a subscription to a church building fund. Before E. W. Biddle, P. J.</p> <p>When the defendant was on the stand the following offer was made:</p> <p>We propose to prove by the witness on the stand that prior to the adoption of the resolution which has been offered in evidence of December 14, 1898, Mr. Wile called at the place of business of the defendant, and stated to him that he desired to erect a new Lutheran church in Carlisle, and said that if he could secure sufficient encouragement from among his friends he would call a congregational meeting of the church for the purpose of deciding upon the advisability of erecting this church; that after some discussion Mr. Gardner promised to give $1,000 toward that end, the subscription to be conditioned on the action which should be taken by the congregational meeting which Mr. Wile at that time said he would call, and this was the only subscription Mr. Gardner ever made and the only time he ever made such subscription; the purpose being to show the conditions of the contract as the defendant contends the contract was made.</p> <p>Mr. Beltzhoover: The offer is objected to, first, because the corporate action of the plaintiff was fixed and settled and decided upon by the resolution of December 14, 1898, and the offer is to show that his subscription was to be predicated upon the congregational action of that date; therefore, it would be incompetent to in any way contradict, or vary, or alter that action.</p> <p>Second. The resolution of December 14, 1898, being the corporate action of the church, cannot be explained or contradicted or altered or varied in any way by parol testimony; and what any one of the incorporators or members of the church may have understood from anything said before or after the introduction of said action would be irrelevant and incompetent.</p> <p>Third. The proposed evidence is irrelevant, incompetent and inadmissible.</p> <p>The Court: The objections are sustained, and an exception noted for defendant. [11]</p> <p>When John W. Plank was on the stand the following offer was made:</p> <p>Mr. Hambleton: We propose to prove by the witness that prior to the adoption of this resolution of December 14, 1898, Mr. Wile, the pastor of the church, was requested to state the meaning and intent of the resolution, and he then and there stated that the cost of the church would not exceed the sum of $45,000, and that would include the cost of erecting the church and parsonage, and that by reason of these statements on the part of Mr. Wile, the congregation was induced to pass the resolution ; this for the purpose of showing the contract as stated by the plaintiff is not in accordance with the action taken by the church or congregation.</p> <p>Mr. Beltzhoover: This offer is objected to for the reason that under the law the contract and action of the congregation being in writing cannot be contradicted or altered or varied in any way by parol.</p> <p>Second. The evidence is incompetent and irrelevant generally. The resolution itself of that date having been adopted after Mr. Wile’s remarks, therefore not only in law but in fact is presumed to include the action of the congregation after having heard Mr. Wile, and the terms of the resolution enacted must be taken as embodying everything that occurred.</p> <p>Mr. Yale: A further objection is, that this defendant in several affidavits has admitted that the subscription was given prior to the passage of said resolution and conditioned on the action to be taken, and this is objected to because it is an attempt to alter or change the terms of that resolution which cannot be done in the absence of accident, fraud or mistake in the passage of same.</p> <p>The Court: The contract in this case is tri-lateral; the First Lutheran Church being one party, the defendant a second party, and each of the other subscribers parties of the third part. It does not appear that all of these subscribers were present at that congregational meeting, and the proposed testimony is therefore inadmissible to affect the rights of other parties, peculiarly as the action of the congregation appears by a written resolution which has been put in evidence, and which was the basis of subsequent resolutions by the. church council which have also been put in evidence. The objections are therefore sustained and an exception noted for defendant. [12]</p> <p>Defendant presented these points:</p> <p>T. It appears from the uncontradicted evidence of the plaintiff in this case that three fourths of the cost of the completed church buildings erected by the plaintiff corporation under the resolution of December 14, 1898, was' not subscribed conditioned to be paid within three years before the erection of said buildings were commenced, and therefore the verdict should be for the defendant. . Answer : Refused. [3]</p> <p>2. It’appears from the uncontradicted evidence of the plaintiff that three fourths of the cost on the completed church buildings erected by the plaintiff corporation under the resolution of December 14, 1898, was not subscribed conditioned to be paid within the three years ending April 1, 1902, at the time of the completion and dedication of said buildings, and therefore the verdict should be for the defendant. Answer : Refused. [4]</p> <p>3. The three years allowed for the payment of the sums subscribed under the resolution of December 14, 1898, including the defendant’s subscription, expired on April 1, 1802. Answer : This is true as to the subscriptions made prior to September 14, 1899. It is not true as to later subscriptions, a number of which were made for the purpose of paying for the church building. All of the foregoing, whether made prior to or after September 14, 1899, were to parry out the intent of the resolution of December 14, 1898. [5]</p> <p>4. In ascertaining the cost of the completed church buildings erected by the plaintiff under the resolution of December 14, 1898, there must be added to the sum paid to James Porter, the contractor, the sums expended by the plaintiff for terra cotta, heating apparatus, electric lighting apparatus, windows, architect’s commissions, plumbing, interest on mo.ney borrowed and cost of furnishing basement. Answer: This point is immaterial under the evidence in the case. [6]</p> <p>■ 5. The sums subscribed on November 10, 1901, conditioned to be paid within three years from that date, cannot be added to the amount subscribed under the resolution of December 14, 1898, to make the necessary amount of subscriptions required under the resolution of December 14,1898. Answer: The subscriptions which were announced at the dedication of the church on November 10, 1901, are to be considered in connection with other prior subscriptions made to the church for the erection of a new building. [7]</p> <p>6. Under the terms of the resolution of December 14, 1898, the cost of the church buildings to be erected by the plaintiff corporation was limited to a sum which was to be fixed by dividing by three the sum subscribed for that purpose before their erection was commenced, and then multiplying the result by four, and if the jury find that the said buildings when completed, cost more than tbe sum so to be ascertained, and that the defendant did not consent to said increased cost, their verdict should be for the defendant. Answer: Refused. [8]</p> <p>7. Under all the evidence the verdict should be for the defendant. Answer: Refused. [9]</p> <p>Verdict and judgment for plaintiff for $748.65. Defendant appealed.</p> <p>Errors assigned were (3-9) above instruction, quoting them; and (11,12) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 16, March T., 1905, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1908, No. 175, on verdict for plaintiff in case of Emerson S. Mayo, trading as Glen Bros. v. J. H. Koller.</p> <p>Assumpsit for breach of contract. Before E. W. Biddle, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant filed the following points :</p> <p>1. No consideration having passed to the defendant from the plaintiff at the time the order was given, she was at liberty to withdraw or revoke same on January 5, 1903. Answer: This point is refused. An examination of the papers of December 30, 1902, in connection with the other evidence, indicates that they were contracts, not mere orders. They were manifestly so intended and understood by the parties. [1]</p> <p>2. If the defendant revoked the order of December 30, 1902, on January 5, 1903, before she was notified of its acceptance by the plaintiff, is not entitled to recover. Answer: This point is refused. [2]</p> <p>4. A written order given to an agent of a firm to ship goods does not become binding until accepted. Answer : This proposition is correct, but in the present instance it has no application, for the papers dated December 30, 1902, were contracts, as we have ruled in answer to point 1 of defendant. [3]</p> <p>5. The assent of the parties must be communicated to each other to render an order binding. Answer: We have ruled in response to points 1 and 4 of defendant that the papers dated December 30, 1902 were contracts. [4]</p> <p>Verdict and judgment for plaintiff, for $142.75. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 15, March T., 1905, by defendant, from judgment of C. P. York Co., Jan. T., 1904, No. 79, for plaintiff on case stated in suit of Fred. W. Kottcamp v. York County.</p> <p>Case stated to determine fees due a constable. Before Stewart, J. ■</p> <p>The opinion of the Superior Court states the case.</p> <p>JUrror assigned was in entering judgment for plaintiff on the case stated. .</p>

<p>Appeal, No. 19, March T., 1905, by plaintiff, from judgment of C. P. York Co., Jan. T., 1904, No. 79, for defendant on case stated in suit of Fred. W. Kottcamp v. York County.</p> <p>Case stated to determine liability of county for constable’s fee. Before Stewart, J.</p> <p>The court entered judgment for plaintiff in a sum much less than the amount claimed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 41, Oct. T., 1904, by defendant, from judgment of C. P. Del. Co., March T., 1902. No. 44, on verdict for plaintiff in case of Fredericka Weller v. Aberfoyle Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, J.</p> <p>From the record it appeared that plaintiff was injured on December 28, 1900, while working as a cloth inspector under a scutching machine suspended from the ceiling. The accident was due to the fact that a screw pin which was an important part of the machine had worked out of its place. The absence of the pin caused a roller which a boy was operating to fall from the boy’s hands and strike the plaintiff.</p> <p>The court refused binding iñstructions for defendant.</p> <p>Verdict and judgment for plaintiff for $778.22. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Sale — Fraud—Evidence—Question for jury.</p> <p>In an action of trespass where it appeared that the plaintiffs had purchased a stock of goods from a firm which had subsequently become insolvent, and whose partners absconded, and that the defendants were a constable and creditors who had seized the goods in the possession of the plaintiffs, a verdict for plaintiffs will not be reversed where the court fairly submitted the question of plaintiff’s previous knowledge and intended fraud in such a manner that if found against the plaintiffs, there could not have been a recovery.</p> <p>In such a case where the evidence shows that the defendants acted in concert and in furtherance of a common purpose, they are liable jointly, if liable at all.</p>

<p>Appeals — Review—Findings of fact — Orphans’ court.</p> <p>The appellate court will not reverse a decree of the orphans’ court based upon a finding of fact of the auditing judge confirmed by the court in banc, where there is sufficient testimony to sustain the finding, and the record shows no manifest error.</p>

<p>Appeal, No. 230, Oct. T., 1904, by plaintiff, from judgment of C. P., No. 3, Phila. Co., Dec. T., 1902, No. 2519, on verdict for plaintiff in case of The Philadelphia & Reading Railway Company v. Charles F. Kast.</p> <p>Assumpsit for loss of baggage. Before Finletter, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict-and judgment for plaintiff for $176.40. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Criminal law — Larceny—Indictment—Obtaining money by false pretenses.</p> <p>A person cannot be convicted on an indictment charging him with the larceny of “twenty-five dollars current money of the United States . . . . of the goods and chattels moneys and property of” the prosecutor, on evidence to the effect that the prosecutor included in a check which he was drawing in favor of the prisoner, a sum of money due by himself to a third person, on the false representation by the prisoner that he had authority to receive such sum, and that the prisoner promised to pay it over, but that he drew the money from the bank and failed to make the payment.</p>

<p>Road law — Change of grade — Turnpike road — Act of May 24, 1878, P. L. 129.</p> <p>Where a turnpike road company acquired the right by its charter to lay out a fifty-feet wide road upon and along an older highway sixty feet wide, and the company in the exercise of its power lays out and grades a road forty feet wide, leaving on each side of the graded portion ten feet of the old road at the natural grade, a property owner of a borough through which the road passes, is entitled to damages for injuries caused by the borough in cutting down the ungraded portion of the road to the grade of the turnpike. Such a case is within the Act of May 24, 1878, P. L. 129.</p> <p>Road law — Change of grade — Notice—Municipality—Boroughs—Turnpike companies.</p> <p>The municipalities of the commonwealth are by statute vested with authority to regulate or establish proper grades, of which those who deal with the highways are bound to take notice, but this power is not delegated to turnpike companies or corporations, to the record of which the public have not access. Property owners are not bound to take notice of the changes of grade which a turnpike company may propose to make at some time in the future, until such time as the company proceeds to carry its purpose into execution.</p>

<p>Criminal law — False pretenses — Settlement—Satisfaction.</p> <p>The crime of defrauding by false pretenses belongs to the class of misdemeanors which, by section 9 of the act of penal procedure of March 31, 1860, P. L. 427, may be settled between the complainant and the offender, at the discretion of the examining magistrate or of the court. It is essential to such a settlement, however, that the complainant shall “acknowledge to have received satisfaction for such injury and damages." Until this is done, there is no settlement; and neither partial restitution by the defendant, nor an agreement falling short of an acknowledgment of satisfaction in the manner provided by the act, bars a prosecution for the criminal offense.</p>

<p>Judgment — Opening judgment — Setting aside — Res adjudicata.</p> <p>The reversal of an order of court striking off a judgment is not res adjudicata as to a subsequent proceeding in the lower court to open the judgment and let the defendant into a defense on the merits.</p>

Appeal, No. 134, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1903, No. 3223, for plaintiff in case of David L. Macdonald v. Jay N. Schroeder. Trespass for malicious prosecution. Before Bregy, J. At the trial it appeared that plaintiff borrowed 1500 from the defendant on representations which the defendant claimed were false.

<p>Appeal, No. 57, Jan. T., 1905, by M. W. Brittain, purchaser, and W. C. Brittain, executor, from decree of O. C. Luzerne Co., No. 195, of 1903, setting aside executor’s sale of real estate in estate of Nathan T. Brittain.</p> <p>Petition to set aside executor’s sale of real estate. Before Freas, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 51, March T., 1905, by Cumberland County, from order of Q. S. Cumberland Co., Sept. T., 1904, No. 52, discharging rule to revoke an order adjudging a reward. Rule to set aside an order adjudging a reward to H. J. Bently, constable, for the arrest of a horse thief. The court discharged the rule. Error assigned was the order of the court.

<p>Appeals — Evidence—Assignments of error.</p> <p>An assignment of error to the rejection of a paper offered in evidence fails to comply with the rules, if the paper is not printed in connection with the assignment.</p> <p>Promissory notes — Protest—Waiver—Evidence.</p> <p>The fact that an endorser of a promissory note, who was not notified of the dishonor of the note, has endorsed another note on the same day that the first note became due, and for an amount equal to the unpaid balance due on the first note, is not evidence to show a waiver of protest, in the absence of any proof that the endorser knew for what purpose the second note was intended.</p>

<p>Contract — Sale—Affidavit of defense.</p> <p>In an action for goods sold and delivered an affidavit of defense is insufficient which simply avers that the goods were not first class and up to date as represented by the vendor, that the plaintiff had to replace them because they were of poor material, and not up to date, and that many customers were thereby caused to leave him, without any averment as in what respect the materials were defective, or what was the difference between the market value of the goods contracted for and the goods delivered, or that the defendant did not have full opportunity to inspect them and determine their quality before accepting them, or that he ever notified the plaintiff that he had any objection to them on that score, ot that he ever returned or offered to return any of them.</p>

<p>Landlord and tenant — Justice of the peace — Judgment—Act of December 14, 1863, P. L. (1864) 1125 — Bents—Damages.</p> <p>. The record of a judgment of a justice of the peace under the landlord and tenant act of December 14, 1863, must show that the “lessor was quietly and peaceably possessed of the lands or tenements required to be surrendered up, and that he demised the same to the tenant in possession or to some other person under whom such tenant claims, and that the term for which the same were demised is fully ended, and that three months previous notice had been given of his desire to repossess the same.” Such facts must be found by the justice and placed in his record, or if the complaint sets forth these facts, the justice must find that the complaint is in all respects true, and must so state of record.</p> <p>Under the Act of December 14, 1863, P. L. (1864) 1125, a justice of the peace has no power to enter judgment for rent in arrears. He has power only to enter judgment for the damages proved to have been sustained by the landlord by the unjust detention of the premises by the tenant.</p>

<p>Appeal, No. 182, April T., 1905, by defendant, from order of C. P. No. 2, Allegheny Co., July T., 1901, No. 635, discharging rule for set-off in case of Margaret A. Bowles, Administratrix of John H. Bowles, deceased, v. Louisa Wright.</p> <p>Rule to set off one judgment against another.</p> <p>The opinion of the Superior Court states the ease.</p> <p>Error assigned was the order of the court discharging the rule.</p>

<p>Executors and trustees — Surcharge-—Negligence—Collection of judgment — • Advice of counsel.</p> <p>A trust company which is an executor of an estate will be surcharged the amount of a judgment for gross negligence in failing to collect it, where it appears that at the time of the death of the decedent the judgment was collectable, that after receiving a naked statement of its own attorney that the attorney for the defendant in the judgment had said there was nothing due upon it, the accountant rested supinely without making the slightest effort to ascertain the truth of the report of its attorney, and without attempting to collect the judgment, and the judgment was consequently lost. In such a case the statement made by the attorney was not advice of counsel, and could not be relied upon as such.</p> <p>An executor or administrator who is guilty of gross negligence in the collection of the debts due to the estate, is personally liable for them, if lost through his delay in enforcing payment.</p>

<p>Negligence — Townships—Defective road — Province of court and jury.</p> <p>In an action against a township to recover damages for personal injuries where the plaintiff testifies to the defective condition of the road at the place of the accident, and it does not appear from her own evidence that the accident was physically impossible, the court cannot take the case from the jury because witnesses for the defendant testify as to the condition which made the accident physically impossible in the manner described by plaintiff. In such a case the credibility of the witnesses is for the jury.</p>

<p>Appeal, No. 147, April T., 1905, by defendant, from judgment of Q. S. Washington Co., Nov. T., 1903, No. 35, on verdict for plaintiff in case of Commonwealth v. Chartiers Railway Company.</p> <p>Indictment for maintaining a nuisance at a grade crossing. Before McIlvaine, P. J.</p> <p>Errors assigned were as follows:</p> <p>1. The court erred in that portion of its charge is as follows:</p> <p>“ Your verdict should be ‘not guilty,’ and as it is a misdemeanor, you should determine how the costs should be paid. You can put them on the defendant or on the county.”</p> <p>2. The court erred in entering the following decree:</p> <p>“And now, August 22, 1904, the jury in the above case having returned a verdict that the defendant is not guilty and that the defendant, the Chartiers Railway Company, pay the costs, it is now, after notice to the defendant’s counsel, and on motion of the district attorney, ordered, adjudged and decreed that the said Chartiers Railway Company pay the costs of prosecution of said indictment or give security to sheriff to pay the same in ten days.”</p>

<p>Evidence — Carriers—Charge—Complicating testimony.</p> <p>The appellate court will not reverse a judgment where the crucial question in dispute, in the court below was whether or not a notice had been given to a carrier not to deliver goods, and this question with the conflicting testimony relating thereto was fully and fairly submitted to the jury.</p>

<p>Appeal, No. 111, April T., 1905, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 866, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles S. Schofield, Receiver of the Ætna Mutual Live Stock Insurance Company, v. Alfred Turner.</p> <p>Assumpsit to recover an assessment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment.</p>

<p>Appeal, No. 74, Oct. T., 1904, by defendant, from judgment of G. P. No. 4, Pliila. Co., Dec. T., 1902, No. 2929, on verdict, for plaintiff in case of Jacob-Metzler v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Willson, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>When plaintiff was on the stand he was asked this question:</p> <p>Q. The surveyor was asked if there were gates at Levering street. Were there any gates at all at Levering street prior to this accident?</p> <p>Objected to.</p> <p>The Court: The surveyor did state that there were gates there. It is proper that this witness should be questioned about the same matter.</p> <p>Mr. Hart: You cannot prove that there were gates put there after the accident.</p> <p>The Court: Not at all. Not for the purpose of proving negligence. I will admit the answer, not, however, for the purpose of showing any negligence on the part of the railroad company in failing to have gates there at the time.</p> <p>Mr. Hepburn : For the purpose of showing what the surveyor had said about there being gates, that they were not there at the particular time of this accident.</p> <p>The witness: No, sir.</p> <p>Exception for defendant. [1]</p> <p>Q'. Do you know at what times of the day the greatest amount of travel at this particular street is — Gay street?</p> <p>Objected to. Objection overruled. Exception for defendant. [2]</p> <p>A. In the mornings, when the people are going to work, and from that up until half-past nine in the morning, when the people aré taking the train, that they go up and down this crossing, and then at noon and in the evening.</p> <p>The court charged in part as follows :</p> <p>[It is said that there had been for a long period of time a recognized course or thoroughfare, or way over the premises occupied in part by the railway company; that people had been in the habit of going that way backwards and forwards to their homes and places of occupation and places of business; that this boy was doing what multitudes of people did there day by day. If that is so, if you believe that the evidence justifies you in concluding that the railroad company had done that, had made provision for it, that they allowed it without objection, that they acquiesced in that use of a general thoroughfare from one side to the other, then you ought to conclude that, as a consequence, the boy had a right to do that which the railway company acquiesced in people’s doing; that one person, as a part of the public, had a right to do what the general public did.] [3]</p> <p>[Besides that, it seems to me that there would be another question, and that is, whether there could be said to be a trespass on the part of a boy of nine or ten years of age in any event, who went upon the platform of a railroad company which was built either partly on the highway itself or alongside of it. To put the case in the strongest aspect in the interest of the railroad company, it would be a question for you to determine whether such a boy should be regarded as being guilty of trespass upon the property of the defendant company if he went upon such a portion of their platform, even though it were not a recognized thoroughfare, and was attempting to cross to the other side of the street. I should consider it, I confess, a very serious question whether it ought to be concluded, in a question of that kind, that a boy using the premises in such a manner would be regarded as guilty of trespass, and, therefore, as precluding his father from recovering under such a state of circumstances as exists in this case.] [4]</p> <p>[All these questions I have just referred to I will leave to you to decide one way or the other. If the railway company was not responsible, if it was not bound to exercise care for the protection of this boy, if there was no recognized thoroughfare there, such as has been testified to by witnesses, or if the boy was a pure trespasser upon property where he had no right to be, where there was no encouragement for him to be, which was not situated in such a way as to hold out an invitation apparently to the public, in that case there was no duty on the part of the railway company, and the railway company could not be regarded as guilty of any negligence, in view of any testimony which has come into the case.] [5]</p> <p>[But if the boy was properly where he was, if you must regard him as being in a position in which the railway company did owe him a duty, that they were bound to do, towards a boy of his age, inexperienced and immature, and placed in the circumstances that he was, what was reasonably proper in the way of giving notice of the approach of a train, so that he would be able to take care of himself, to be safe from danger, in that case the question will come up : Was there proper notice given in any way, either by some watchman or some caretaker, giving him personal and direct notice, as to which there is no evidence or by a proper signal being given from the approaching train ?] [6]</p> <p>[This pay train that was standing alongside of the station, apparently, from the evidence, cut off the sight of the approaching train from any person that was right alongside of it or in the rear of it. This boy seems to have been in the rear of it. He may not have been able to see the approaching train. It was with reference to such a condition of affairs that the railroad company was bound to give notice. Did it give notice ? Was a whistle blown at the distance just stated? Other witnesses who have been called say that no whistle was blown, so far as they heard, until just the moment when the boy was struck, when he came out from behind the car. That probably, you would say, was hardly sufficient notice, if that was all the notice that was given.] [7]</p> <p>Defendant presented this point:</p> <p>Under all the evidence the verdict must be for the defendant. [8]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions (3-8) above instructions, quoting them.</p>

Appeal, No. 48, Oct. T., 1904, by Right Reverend Bishop W. B. Derricks et al, from decree of C. P. No. 3, Phila. Co., March T., 1903, No. 2966, amending charter of the African Methodist Episcopal Union Church of Philadelphia. Petition to amend charter of the church. The facts are stated in the opinion of the Superior Court. Error assigned was in not overruling exceptions to report of master, Victor S. Thomas Esq.

<p>Appeal, No. 79, Oct. T., 1904, by defendant, from judgment of C. P. Bedford Co., April T., 1902, No. 234, on verdict for plaintiff in case of J. F. Trexler, and John L. Trexler, trading as Trexler Brothers & Co., v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for the death of a horse. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[The learned court erred in its instruction to the jury in that part of the general charge which is embraced in the following’ language: “You must bear in mind, gentlemen, that while the court has permitted the plaintiff, John E. Hess, to give in evidence the remark he heard as to the inspectors setting fire to the straw, it is only to be considered by you as some evidenced lead you in determining as to whether the defendant company, by these inspectors, acted in a careless manner and set fire to the straw. You must not conclude that because the plaintiff testified that this remark was made, that the fire did occur in this way. You must be satisfied in your own minds from the evidence that the party who made this remark knew and believed that it did occur in this manner.] [3]</p> <p>Defendant presented these points :</p> <p>That as the testimony of plaintiffs shows that one of the doors of the car was opened a space of several inches by Reynolds and Hess, their employees, at the time the horse was placed in it for shipment, that they then spread straw all over the floor, thus rendering it liable to be ignited from the outside, the door being, as they testify, secured against being closed, this was such contributory negligence on their part as must prevent a recovery, even if negligence should be found in the defendant’s employees. Answer: If the jury believe that John E. Hess, the plaintiff in the one case, and agent for plaintiff in the other case, who was in charge of the horse, acted in a careless manner and permitted the hay and straw to be scattered all over the car, and thereby made it more liable to be set on fire, he would be guilty of contributory negligence and he could not recover. [4]</p> <p>That under all the evidence the verdict must be for the defendant. Answer: The jury must consider all the evidence and render their verdict from that and that alone. [5]</p> <p>Verdict and judgment for plaintiff for $443.60. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, without setting forth the evidence admitted; (3) refusing motion to exclude evidence admitted under the first and second assignments ; (4-6) above instructions, quoting them.</p>

<p>Appeal, No. 63, Oct. T., 1904, by-plaintiffs, from judgment of C. P. Bedford Co., April T., 1902, No. 234, on verdict for plaintiff in case of J. F. Trexler and John L. Trexler, trading as Trexler Brothers & Co., v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for the loss of a horse. Before Woods, P. J.</p> <p>The facts appear by the opinion of the Superior Court and by the report of Trexler v. Baltimore & Ohio Railroad Company, No. 1, supra.</p> <p>The court charged in part as follows:</p> <p>[If you find from the evidence that the accident was caused by the carelessness of the defendant company alone, then Trexler Brothers would be entitled to recover. When this horse was shipped they entered into what has been termed a live stock contract, wherein they placed a value of $400 on this horse. After having considered the law as laid down by the Supreme Court of Pennsylvania, and the court of appeals of West Virginia, we have reached the conclusion that it is our duty to instruct you that they are limited to the value placed upon this horse by Mr. Reynolds, acting for them, when the, horse was shipped, and we, therefore, say to you that if you find the defendant company guilty of negligence and said negligence was not contributed to, in any way, by John E. Hess, they cannot recover any greater sum than the $400, the value placed on him when shipped, with interest from February 5, 1902.] [1]</p> <p>2. Cars containing live stock and man require a greater degree of care than ordinary freight, and it was the duty of the railroad company to inform its employees, whose duty it was to inspect its cars, that a man and horse were in car No. 81,525, on the fifth section of No. 97, and if the company failed to inform the car inspectors in advance of the arrival of the car containing the horse and man, and the car was set on fire by the torch in the hands of one of the inspectors of the said defendant company during the inspection of the car, which could have been avoided by the inspector if he had possessed this information, it was negligence on the part of the company, and the verdict should be for the plaintiff. Answer: This point is refused with the following comment: As stated in the general charge, when John E. Hess undertook to accompany this horse, he took upon himself the dangers incident to this mode or way of travel, and by so doing no greater care was placed upon, defendant company than they were already bound to exercise. [2]</p> <p>8. The defendant company is a common carrier and is liable for all losses that it could have prevented by skill and foresight, and the burden is on it to show that the injury to the plaintiffs’ horse was such that it could not have been- prevented, and if the jury believe the straw in the car was set on fire by the negligence of the agents of the defendant company, and that the accident could have been prevented if the defendant company-had informed its car inspectors-that a man and horse were in car No. 81,525, their verdict must be for the plaintiff. Answer : This point is refused with the following comment: As stated in the general charge, when John F. Hess undertook to accompany this horse, he took upon himself the dangers incident to this mode or way of travel, and bj*- so doing no greater care was placed upon defendant company than they were already bound to exercise. [3]</p> <p>4. The defendant company must show that the accident was not caused by the negligence of its servants or employees, and if they fail to satisfy the jury of this fact by the preponderance of the evidence, the jury should return a verdict for the plaintiff for such damages as it deems just under the evidence. Answer: Refused. It is incumbent upon the plaintiff to satisfy the jury by a preponderance of testimony that the accident occurred by the employees of defendant company. [4]</p> <p>7. Under the evidence in the case, if the jury believe that at the time H. P. Reynolds delivered the horse to the agent of the Huntingdon & Broad Top Railroad Company for shipment to Pennsboro, West Virginia, he instructed the agent to ship the horse first class, and that the rules of the company prohibited said agent from fixing a valuation upon the hoise in excess of |400, without special permission from the general manager of the railroad company,' of which fact the said agent did not notify the said H. P. Reynolds, and that the said H. P. Reynolds, acting for the said plaintiff, did not discuss the rate of freight that was tobe paid, or enter into any agreement whatever with Mr. Crum, the agent of the Huntingdon and Broad Top Railroad, with regard to the amount of freight that was to be paid, or the value of the horse, and that the amount of freight was to be paid at Pennsboro, West Virginia, where the horse was to be delivered, and the jury should further believe that the accident in the yards at Grafton, West Virginia, was occasioned by the negligence of the agents of the defendant company, then its verdict should be in favor of the plaintiff for the full value of the horse, as found by them from the evidence in the cause, regardless of the shipper’s order, signed by H. P. Reynolds for Trexler Brothers & Company. Answer: This point is refused. [5]</p> <p>8. That while the note attached to the shipper’s order, signed by H. P. Reynolds, may have given him an option to ship the horse at a higher valuation, yet the evidence in the case does not disclose that any such election was made, or that he was. requested to make any such election by the agent of the railroad company but it appearing from the evidence that the only discussion on the freight to be paid was that the horse was to be shipped first class, and with the understanding that the amount of freight was to be paid at Pennsboro, West Virginia, and to be determined there by the defendant company, it left in the hands of the defendant company the power to charge such rate of freight as, under its rules, were commensurate with the shipment of a horse of this character at first-class rate. Answer: Refused, and for further answer see general charge. [6]</p> <p>9. That there is not sufficient evidence in this case to show a special contract between Trexler Brothers and the defendant company to warrant a limitation in the liability of the company for loss sustained by its negligence, under the law of West Virginia, and if the jury believe that this horse was injured in the yards of the defendant company at Grafton, West Virginia, through the gross negligence of the company, or its employees, their verdict should be for the plaintiff for the full value of the horse. Answer: This point is refused. [7]</p> <p>10. If the jury believe that the car, containing the horse and John E. Hess, was set on fire by torches in the hands of inspectors in the yards of the defendant company at Grafton, West Virginia, which resulted in the injury of the horse, it was such negligence as would entitle the plaintiff to recover the full value of the horse under the laws of the state of West Virginia, and the terms of the contract. Answer: This point is refused. [8]</p> <p>5. Under the contract for the shipment of the horse as shown by the evidence of this case, which must be construed according to the law of West Virginia, the state in which the injury complained of happened, if the plaintiff should be given a verdict it must in any event be limited to the amount designated in said contract with interest. Answer: This point is affirmed, as stated in the general charge. [9]</p> <p>Verdict and judgment for plaintiff for $443.60. Plaintiff appealed.</p> <p>JErrors assigned were (1-9), above instructions, quoting them.</p>

<p>Appeal, No. 78, Oct. T. 1904, by defendant, from judgment of C. P. Bedford Co., April T., 1902, No. 288, on verdict for plaintiff in case of John E. Hess v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Woods, P. J.</p> <p>The facts appear by the opinion of the Superior Court, and by the reports of Trexler v. Baltimore & Ohio Railroad (No. 1) and Trexler v. Baltimore & Ohio R. R. (No. 2).</p> <p>Defendant presented these points :</p> <p>2. That as he (Hess) alleges and testifies that on one of the doors of the car in which he and the horse were carried was opened a space of several inches and that he and the persons assisting him in loading the horse spread straw all over the car floor, thus rendering it liable to be ignited from the outside, this act on his part was contributory negligence and he cannot recover. Answer: If the jury believe that John E. Hess, the plaintiff in the one case, and agent for plaintiff in the other case, who was in charge of the horse, acted in a careless manner and permitted the hay and straw to be scattered all over the car, and thereby made it more liable to be set on fire, he would be guilty of contributory negligence and he could not recover. [4].</p> <p>6. That under all the evidence the verdict must be for the defendant. Answer: The jury must consider all the evidence and render their verdict from that and that alone. [5]</p> <p>Verdict and judgment for plaintiff for $810. Defendant appealed.</p> <p>Errors assigned were (1-8) rulings on evidence referred to in Trexler v. B. & O. R. R. No. 1; (4, 5) above instructions, quoting them.</p>

<p>Appeal, No. 173, Oct. T. 1904, by defendant, from judgment of C. P. Lancaster Co., Oct. T., 1902, No. 22, on verdict for plaintiff in case of Amos W. Beach v. The Pennsylvania Railroad Company.</p>

<p>Appeal, No. 191, Oct. T., 1904, by defendant, from judgment of C. P. Delaware Co., March T., 1903, No. 77, on verdict for plaintiff in case of Alexander Hanlon v. Philadelphia & West Chester Traction Company.</p> <p>Trespass to recover damages for killing a cow. Before Johnson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $70.19. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Municipal lien — Payment into court — Discharge of lien — Nullity of scire facias.</p> <p>The defendant in a municipal lien who avails himself of the right to discharge the lien by payment of money into court under the Act of February 21, 1862, P. L. 44, cancels the lien so far as the real estate is concerned, and places his money as a substitute for the lien in custodia legis, after which the only question is, who is entitled to the money? In such a case the defendant may raise as a defense any question as to the failure of the plaintiff to obtain judgment or issue a scire facias within five years.</p> <p>If the service of an original scire facias is so fatally defective as not to support a judgment and therefore a nullity for that purpose, it must be treated as a nullity for all purposes.</p>

<p>Landlord, and tenant — Sale of stranger’s goods — Notice—Description of goods.</p> <p>Where in an action of trespass against a landlord for an alleged wrongful conversion and sale of a stranger’s goods taken by distress on the premises of a tenant, the evidence as to the description and identity of the property in controversy is confusing and uncertain, the case should be submitted to the jury under proper instructions.</p>

Appeal, No. 199 Oct. T., 1904, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 988, making absolute rule to open judgment in case of Emil Guenther v. Gilchrist Improved Jar Company, Incorporated, and G. O. Angelí. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was the order of the court.

<p>Affidavit of defense — Practice, C. P. — Affidavit of attorney — Sufficiency of averments.</p> <p>Where an affidavit of defense discloses a defense made in good faith, although not by a party on record or in interest, it is sufficient, as for example where the party is sick or absent and his clerk, or any other person who has knowledge of the transaction, swears to the'facts, which according to the court, furnishes a good defense.</p> <p>An affidavit of defense filed by an attorney is insufficient which does not aver that it is filed by the authority of or on behalf of the defendant, which does not give the source of information, and which fails to aver that the deponent believes the facts averred to be true, or that they are founded upon his personal knowledge, or upon information derived from a proper source to enable the court to pass upon the sufficiency of the proof.</p>

<p>Appeal, No. 54, Jan. T., 1905, by-plaintiff, from order of C. P. Monroe Co., May T., 1904, No. 18, dismissing appeal from tax assessment in case of Delaware, Lackawanna & Western Railroad Company v. Milton Metzgar, George Van Why and Elmer Fellencer, Commissioners of Monroe County.</p> <p>Appeal from tax assessment.</p> <p>Staples, P. J., filed the following opinion:</p> <p>The contention of the appellant company upon which it based its right to have its assessment reduced, was that it was necessary for it to have facilities for the icing of freight cars carrying perishable freight, and that the ice houses at Haw-key’s Pond and Gouldsboro, along the line of its road, were necessary for this purpose and therefore it should be exempt from taxation. There seems to be no question but that a railroad company such as the appellant in order to compete with other lines and to stand upon an equal footing in the effort to obtain freight, is obliged to ice cars, carrying certain kinds of freight, while the same is in transit, and that it is a great convenience for it, the Delaware, Lackawanna and Western Railroad Company, to have two such ice houses as those mentioned in the findings of fact.</p> <p>The court, however, is unable to agree with the contention of the appellant company, that because it is obliged to ice cars as mentioned and such ice houses are a great convenience in the icing of cars, that, therefore, the same should be exempt from taxation; the theory for this exemption resting upon the contention that the same, as constituted are necessary in the proper and successful operation and management of the railroad. While it may be necessary for the appellant company to have erected along the line of its road houses containing ice to be used in icing of cars carrying perishable freight, yet, the court is not of the opinion that this would permit the appellant company to engage in the business of harvesting and storing ice and have its ice plants exempt from taxation on that ground.</p> <p>[It might be an open question, if the appellant company had two large storage ice houses erected upon the line of railroad, whether they would not be exempt from taxation upon the ground that the ice stored in the same was required in the successful management of its road, but the court is clearly of the opinion that the appellant company having secured for itself two ice ponds and erected at the same time two large ice houses with all the necessary machinery for harvesting and storing ice and it, the appellant company, in the winter time, engaging in the business of harvesting and storing ice, ought not to be exempt from the taxation to the extent of the value as agreed upon of the said ice houses.] [1]</p> <p>There is nothing in the charter of the Delaware, Lackawanna and Western Railroad Company which permits it to engage in the ice business and it is entirely fair to assume that it would not go to the trouble and expense of buying real estate with the necessary water upon it, to make ice ponds and erect ice houses at the said two points, with all the necessary machinery for harvesting and storing ice, and engage in the business of harvesting and storing ice, unless it was done to secure its ice at a less price than it would be compelled to buy it for in the market, or to save itself trouble and inconvenience in securing ice from other sources. [The appellant company having seen fit to erect its ice houses and the machinery aforesaid and use the same in connection with the ponds and for the purposes as indicated, it has no just complaint against the assessment and taxation of the properties nor any reason why the same should be free from taxation any more than that of private persons or private corporations owning ice ponds and using ice houses and machinery in connection therewith, for the purpose of harvesting and storing ice. It is a difficult matter to separate the houses and machinery from the ice ponds and thus reach a valuation of the property. The mere fact that the appellant can thereby more conveniently procure its ice, is no good reason for exempting the ice houses from assessment.] [2] It might invade other trades for the same reason. It is engaged in the business of harvesting and storing ice and uses the ice houses with the necessary machinery for that purpose. What use it makes of the ice is immaterial. [In accordance with the foregoing facts and reasons, the court concludes, that the ice houses included in the assessment as stated in paragraph II are subject to assessment and taxation and not entitled to exemption therefrom, and the appeal is therefore dismissed at the costs of the appellant company.] [8]</p> <p>Errors assigned were (1-3) portions of opinion quoted above.</p>

Appeal, No. 39, Jan. T., 1905, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 119, on verdict for plaintiff in case of John F. Cañóle v. Jennie A. Allen, J. E. Rosengrant and Otto Devens. Ejectment for land in Lake township. Before Lynch, P. J, The facts are stated in the opinion of the Superior Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff. Defendant appealed.

<p>Appeal, No. 64, Jan. T., 1905, by defendant, from judgment of C. P. Luzerne Co., May T., 1899, No. 390, on verdict for plaintiff in case of John I. Laubaugh, Trustee, v. Pennsylvania Railroad Company. '</p> <p>Trespass to recover damages for destruction of plaintiff’s goods. Before Wheaton, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented these points :</p> <p>4. It is admitted on the part of the plaintiff that she kept no account of the proceeds derived from the sale of the goods alleged to have been injured by the water, or the prices charged for the same, so as to approximately fix and determine the extent of the depreciation in value of said goods, and the plaintiff’s husband, who had charge of the business, further admits in his testimony that his estimate of the amount of the plaintiff’s loss is based in part upon the. assumption or supposition that the clerks in her employ sold said goods at the prices which he specified in his testimony, affords no reliable data to enable the jury to ascertain and determine the amount alleged to have been suffered by the plaintiff, and should be disregarded by the jury. Answer: I decline to charge as requested on that point. [4]</p> <p>6. The burden of proof is upon the plaintiff to show affirmatively that she suffered damages from the defendant’s negligence or tortious act, but she has not offered any evidence of such a definite and certain character as to enable the jury to ascertain the amount of actual damages which she alleges she sustained by reason of the flooding of her premises, and the jurors are not at liberty to guess at it or estimate it by any process of conjecture or surmise, when the nature of the issue, as shown by the facts and circumstances of this case, is susceptible of clear and definite proof. Answer: I decline to charge as requested on that point in its whole length and breadth. There are certain parts of it, if separated from the rest,.I would affirm — that is to say, jurors are not to guess, of course — but taking the point as a whole I decline to affirm it- [5]</p> <p>7. [The measure of damages in a case such as this would be the difference between the market value of the stock in its alleged state and what would have been its market value if sound, and there is no legal, definite and certain evidence in the case to establish this question, although the case is susceptible of such proof.] Answer : I decline to affirm that point as presented, although the statement of the law as to the measure of damages is entirely correct. [6]</p> <p>5. It is admitted by the plaintiff that the proceeds of the sale of the alleged damaged goods were mingled with those derived from the sale of goods unaffected by the water in such a way as to preclude any opportunity or means to determine how much was realized from the one as distinguished from the other. Answer: I leave it to you to say whether that is so or not. There is not any principle of law involved in it and I am not asked to charge upon any question of law. It is a statement of fact and the facts are all for your determination. £7]</p> <p>8. If the jury believe that the manager, Thoma, told the truth on the former trial of this case two years ago, namely, that he did not know to whom the damaged goods were sold, nor in what quantities, nor for what prices, and had no way of giving said data, then this of itself is sufficient to discredit his testimony on the present trial relating to the same matters and justify the jury in rejecting his evidence altogether as unworthy of credence or belief. Answer: I decline to affirm that point. It is proper, however, to say to you in this connection that in so far as it appears in this trial that Mr. Thoma had been inconsistent as to his testimony here with what he testified to at the former trial that would be a matter for you to take into account as testing his credibility and ascertaining whether he has told the truth or whether he has not. But it is for you also to say by comparison of the testimony as offered whether it has been inconsistent or the contrary. The facts are for you. My recollection is that lie testified on the former trial as upon this trial that he did not know the individuals to whom the damaged goods were sold, nor did he know specifically in what quantities. They were sold generally, he testified, in such quantities as people who came in wanted. He kept no account or book of sales that is conceded. It was conceded at the former trial and is at this trial the only book he had was an invoice book which he says has gone now into the hands of a receiver or somebody else. A bank book but no sales books. Nothing but a cash book. He explains to you the reason why he had no such books was because they did a cash business and therefore there was no necessity for other books than a cash book. It is for you to say now whether that is an explanation. It is for you also to say whether his testimony in this trial as to the amount, the prices for which he sold these things is inconsistent with his former statement that the goods were depreciated in the cellar fifty per cent of their cost price. There is no evidence in this case that you are trying what the cost price of the goods was. The evidence in this case has been the market price and the selling price. The evidence in the other case was fifty per cent of the cost price. £8]</p> <p>The court charged in part as follows :</p> <p>[The damage in this case, if you shall find that damage was sustained, is the value of the goods which were destroyed and the depreciation in value of the goods which were ■ not destroyed, as occasioned by the injury. The true basis is compensation for the loss sustained and nothing more. As I have already said to you, if it be true and you find that the defendant is liable to respond in damages, the difference in the value of the goods, taking into account those that Avere actually destroyed, first, and afterwards the difference in the value of the goods which were not actually destroyed Avas, as Mr. Thoma testifies, then the amount which he testifies to in this case Avould be the amount of damages which the plaintiff has sustained ; $1,739.75, according to my recollection, being the total amount based upon the testimony of Mr. Thoma. As I have said to you, you are not absolutely bound by that testimony, Mr. Thoma’s credibility is for you. You are to test it in the light of such interest as he has in the case or in the outcome of the case.] [9]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>- Errors assigned were (1, 2) ruling on evidence referred to in the opinion of. the Superior Court; (4-9) above instructions, quoting them.</p>

Appeal, No. 49, Jan. T., 1905, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1903, No. 154, on verdict for plaintiff in case of P. J. Swift v. The Teutonia Insurance Company. Assumpsit on a policy of fire insurance. Before New-comb, J. The facts appear by the opinion of the Superior Court.

<p>Principal and surety — Release of surety — Husband and wife — Nonsupport— Bond.</p> <p>The sureties on a bond given on May 7, 1901, for the term of one year for the support of the principal’s wife and children, are liable on such bond for the portion of the year after July 1, 1901, although the court indorses on the bond a decree directing that a new bond be given before July 1, 1901, to comply with the order of the court which directed that payments should be made by the husband to his wife “until the further order of the court.’’</p>

<p>Municipalities — Ordinance—Police regulations — Merry-go-round.</p> <p>In determining the reasonableness of a municipal ordinance, the court will have to regard all the circumstances of the particular city or corporation, the object sought to be obtained, and the necessity which exists for the ordinance. Implied power springs from necessity. That which may be necessary for a large city, may not be necessary for a small city or borough; that which is not necessary cannot be implied.</p> <p>Where the municipal legislature has authority to act, it must be governed not by the discretion of the court, but by its own discretion, and the court will not be hasty in convicting it of being unreasonable in the exercise of such authority.</p> <p>An ordinance forbidding the operation of a merry-go-round within 1,000 feet of any public park in the city, is a reasonable and constitutional exercise of municipal authority.</p>

<p>Appeal, 119, April T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 128, on verdict for plaintiff in case of Braddock Borough v. Monongahela Street Railway Company.</p> <p>Assumpsit to recover tax on street cars. Before McClung-, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $847.75. Defendant appealed.</p> <p>Errors assigned were (2-4) answers to points quoted in the opinion of the Superior Court.</p>

Appeal, No. 10, April T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1901, No. 358, on verdict for defendant in case of Kountz Brothers Company v. Consolidated Ice Company, owner, and Petter W. Herrington et al. Scire facias sur mechanic’s lien. Before- Rodgers, J. The opinion of the Superior Court states the facts of the case. Verdict and judgment for defendant. Plaintiff appealed.

<p>Principal and agent — Sale—Fraud—Concealment—Serving two masters.</p> <p>An agent to sell cannot be an agent to buy. It matters not that there was no fraud meditated, it is against the policy of the law that such artifice should be successful. The ground on which the disqualification rests is no other than that principle which dictates that a man cannot be both judge and party. A man cannot serve two masters.</p> <p>Where an agent for the sale of land is to receive as his compensation all above a minimum sum per acre and a fixed sum in addition, and the agent sells the land for an amount above the minimum, but conceals that fact and reports to the principal that he had sold it at the minimum, he will not be entitled to recover the additional fixed sum agreed upon.</p>

Appeal, No. 193, April T., 1905, by defendant, from judgment of C. P. Washington Co., Aug. T., 1903, No. 89, on verdict for plaintiff in case of J. O. Prigg v. John Preston and A. B. Taylor. Ejectment for land in Canton Township. Before Taylor, J. The facts appear by the opinion of the Superior Court.

Appeal, No. 217, April T., 1905, by defendants, from judgment of C. P. Washington Co., Feb. Term, 1904, No. 1, for plaintiff on ease tried… Held: therefore, that any such state of affairs as this was in contemplation of the parties when the grant of the mining rights, referred to in this deed, was given and, as we have said, if such grant could be held to be broad enough to give them the right to lay one road from this shaft at the convenience of the coal company they could…

<p>Appeal, No. 222, April T., 1905, by defendant, from order of C. P. Washington Co., Nov. T., 1903, No. 250, discharging rule to open judgment in case of Italo French Produce Co. v J. W. Thomas and Katie Thomas.</p> <p>Rule to open judgment.</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. 13, Jan. T., 1906, by defendant, from judgment of Q. S. Monroe Co., May T., 1904, No. 13, on verdict of guilty in case of Commonwealth v. Linda Brown.</p> <p>Indictment for forgery.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in giving binding instructions in favor of the commonwealth.</p>

<p>Appeal, No. 243, Oct. T., 1904, by defendant, from judgment of Q. S. Phila. Co., Sept. T., 1904, No. 848, on verdict of guilty in case of Commonwealth v. Charles W. Spencer.</p> <p>Indictment for violation of pure food law.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were (1) refusing to quash the indictment; (2) refusal to give binding instructions for defendant and (3) refusal to arrest the judgment.</p>

<p>Appeal, No. 145, April T., 1904, by defendants, from order of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 418, discharging rule to strike off judgment in case of Singer, Nimiek & Company v. C. F. Sheriff and J. C. Sheriff, trading as The Sheriff Machinery Company.</p> <p>Rule to strike off judgment.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was the order of the court.</p>

<p>Landlord and tenant — Covenant for quiet enjoyment — Lease.</p> <p>The implied covenant in a lease for quiet and peaceable enjoyment, extends only to the lessor himself, or those claiming title paramount. If the lessee desires to protect himself against evictions or other disturbances by all persons having lawful title he should obtain from his lessor an unqualified covenant for quiet enjoyment, without any interruption or disturbance by the lessor, or by any other person or persons whomsoever.</p> <p>An oral covenant for quiet enjoyment against strangers must be established by evidence that is clear, precise and indubitable, and it must be shown that it was left out of the lease by fraud, accident or mistake, or that the lessee was induced to sign the lease by reliance upon it.</p> <p>Landlord and tenant — Surrender of hey — Vacation of premises.</p> <p>A tenant for years cannot relieve himself from his liability under his covenant to pay rent by vacating the demised premises during the term, and sending the key to his landlord.</p>

<p>Appeal, No. 226, April T., 1905, by plaintiff, from order of C. P. No. 1, Allegheny Co., Dec. Term, 1902, No. 1,028, refusing to take off nonsuit in case of William A. Golden v. Pittsburg Railways Company.</p> <p>Trespass for a wrongful ejectment from a street car. Before MacFarlane, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 249, April T., 1905, by H. C. Frick, from order of C. P. No. 1, Allegheny Co., March T., 1904, No. 67, sustaining exceptions to auditor’s report in case of Henry S. Mould v. Henry S. Mould Company. Exceptions to auditor’s report discharging wages claims. The auditor, G. W. Williams, Esq., reported, inter alia, as follows: It has been found as a fact, that no notice was given to the receiver of these wage claims.

<p>Appeal, No. 252, April T., 1905, by A. M. Murdoch, from decree of C. P. No. 1, Allegheny Co., March T., 1904, No. 67, sustaining exceptions to auditor’s report in case of Henry S. Mould v. Henry. S. Mould Company.</p>

<p>IAguor laws — Appeals—Wrongful exercise of discretion.</p> <p>Where the record of an application for a liquor license plainly shows that the court of quarter sessions has not proceeded according to law, but has refused a license for a reason which the law does not recognize as valid, its action stands on no legal basis and it is the duty of the appellate court to correct it.</p> <p>IAguor law — License—Hotel accommodations — Statutes—Repeal.</p> <p>The general liquor law of May 13, 1887, P. L. 108, repeals section 9 of the Act of March 31, 1856, P. L. 200, which requires that a hotel be licensed, shall have for the “exclusive use of travelers at least four bedrooms and eight beds.” Even if the ninth section of the act of 1856, were still in force, the omission to aver in the petition that the applicant has the accommodations therein referred to would not be a fatal defect.</p> <p>A subsequent affirmative statute is a repeal by implication of a former one made concerning the same matter if it introduces a new rule upon the subject, and be evidently intended as a substitute for the’ former law, although it contains no expressed words repealing it.</p>

Appeal, No. 111, April T., 1904, by plaintiff, from decree of C. P. Westmoreland Co., Aug. T., 1902, No. 40, refusing divorce in case of William L. Daugherty v. Mary Daugherty. Subpoena in. divorce. Before McConnell, J. The opinion of the Superior Court states the case. Error assigned was the decree of the court.

<p>Criminal law — Charge—Review.</p> <p>A trial judge in a criminal case cannot be convicted of error because he called the attention of the jury to the character of the evidence necessary to convict the defendant under the indictment, but leaves it to the jury to determine whether or not the testimony of the witness is of the character indicated.</p> <p>A judgment in a criminal case will not be reversed because during the course of the trial, and in the presence of the jury, the trial judge called to the bar of the court a witness and bound him over to answer the charge of perjury.</p> <p>Criminal law — Locus in quo — Judicial notice.</p> <p>Where it is proven that a crime was committed in a city, the court will take judicial notice of the fact that the city was within the county named in the indictment.</p>

<p>Appeal, No. 116, April T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1903, No. 523, on verdict for plaintiff in case of Charles A. Wessel and Mary Wessel v. Jones & Laughlin Steel Company.</p> <p>Trespass for death of plaintiff’s minor son. Before Mc-Clixng, J.</p> <p>Verdict and judgment for plaintiff for $1,200. Defendant appealed.</p> <p>■Error assigned was in refusing binding instructions for defendant.</p>

<p>Partition — Deed—Sheriff—Discretion.</p> <p>Where a sale in partition has been confirmed by the court and an order made directing the sheriff to execute a deed to the purchaser, but the sheriff in office at the time neglects to do so, the purchaser is entitled to an order of court requiring a successor of the sheriff to execute the deed.</p> <p>It is an abuse of the discretion of the court to refuse such an order because of objections interposed which should have been raised in the partition proceedings, and to postpone the making of the order until title should be determined in a pending ejectment.</p> <p>A court is not vested with discretion to refuse obedience to its own final judgments and decrees, so long as they stand unopened, unreversed and unimpeached.</p>

<p>Appeal, No. 178, April T., 1905, by defendant, from order of C. P. Cambria Co., Sept. T., 1904, No. 467, making absolute rule for judgment for want of a sufficient affidavit of defense in case of the Ebensburg B. & L. Association v. Westchester Fire Insurance Company, of New York.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Evidence — Affidavit of defense — Parol evidence — Written instrument — Set-off.</p> <p>Where an affidavit of defense sets up an oral agreement to vary the terms of a written agreement it must contain an averment that the defendant was induced to sign the writing by reason of the oral agreement.</p> <p>In an action upon a promissory note an affidavit of defense is insufficient which sets up that the note was'to be paid only out of profits of a business in which the plaintiff and defendant were to engage, without any averment of fraud or mistake.</p> <p>The averments of a set-off in an affidavit of defense must be set forth with the same clearness and particularity that are required of a plaintiff in his statement.</p> <p>A debt or the damages which can be set off as an independent counterclaim must be such as a jury can find and liquidate in the ordinary way just as if the defendant were a plaintiff suing in debt, assumpsit or covenant. But where the right of the defendant is only to call the plaintiff to an account, and this demand is such as must be settled in an action of account rendered, or by bill in equity for an account, it is not a proper set-off.</p> <p>In an action upon a promissory note by one partner against another, the defendant cannot set up in his affidavit of defense an unascertained balance alleged to be due upon the unsettled partnership account.</p>

<p>Appeal, No. 180, Oct. T. 1904, by defendants, from decree of C. P. No. 1, Phila. Co., June T., 1908, No. 2650, on bill in equity in case of William G. Carroll v. T. Henry Asbury and Charles W. Asbury.</p> <p>Bill in equity for an injunction. Before Brégy, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Appeal, No. 12, March T., 1905, by George R. Barnett, from order of C. P. Perry Co., Jan. T., 1903, No. 223, setting aside report of viewers in case of George R. Barnett.</p> <p>Petition for appointment of viewers. Before Jacobs, J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 114, April T., 1905, by defendant, from judgment of C. P. No. 1. Allegheny Co., Sept. T., 1902, No. 761, on verdict for plaintiff in case of George B.' Fritzius and William W. Noland, trading as Fritzius & Noland, v. P. J. Brennan.</p> <p>Assessment on a contract of surety. Before MacFarLANE, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in entering judgment for plaintiff on the verdict.</p>

<p>Execution — Sheriff’s interpleader — Bond—Appeal.</p> <p>A bond in an appeal by a claimant from an order refusing an issue in a sheriff’s interpleader proceeding, and conditioned to prosecute the appeal and pay costs and damages does not give the claimant the right to take possession of the goods. If, therefore, the sheriff sells the goods and the first execution creditor agrees that distribution of the proceeds of the sale shall be made to junior execution creditors, he cannot after the affirmance of the judgment on the appeal, proceed on the bond given by the claimant.</p>

<p>Negligence — Street railways — Collision between wagon and car — Duty to stop at crossings.</p> <p>The duty to look lor an approaching electric street car at a crossing is an absolute duty, and failure to do so is negligence per se. The duty is not performed by looking when first entering on the street, but continues until the track is reached.</p> <p>The fact that a man is driving more than two horses does not relieve him from the duty of taking reasonable precautions to ascertain whether a car is approaching before he permits his leading horses to start to cross the tracks over which the public are, in the cars, transported.</p> <p>In an action against a street railway company to recover damages for the destruction of horses and a wagon, a nonsuit is properly entered where the evidence shows that the team consisted of three horses, one leading, that the leading horse was two or three feet from the track when the driver reached the building line, and that if the driver had then looked, he would have seen the car, and could have stopped in time to prevent the accident.</p>

<p>Criminal law — Obtaining money by menaces and threats — Act of March 31, 1860, sec. 102, P. L. 382 — Mafia Society.</p> <p>Whether a threat of the displeasure of a society in case of the failure of a person to contribute money amounts to a menace within the meaning of the act, depends altogether upon what the. parties mutually understand as to the nature of the society and the manner in which its punishments are inflicted.</p> <p>On the trial of an indictment for felonious assault and obtaining money by menaces and force, the prosecutor testified that the prisoner met the prosecutor on the street and said that he had been sent by the Mafia Society, and that he wanted a sum stated. The prosecutor testified that he paid the money because he was afraid of bodily harm from the Mafia Society. The commonwealth offered to show that before the commission of the offense charged, the prisoner had invited others to join the Mafia Society, that he had declared that he himself was a member of it, that members got money out of the society, that the way the society got money was from the people of the community, and that upon failure to comply with its demand physical injury was inflicted upon its victim. Held, that the offer of evidence was properly admitted.</p>

<p>Iñguor laws — Petition—Omission of names of sureties — Bond.</p> <p>Where a bond in proper form is attached to and filed with a petition for a liquor license, which is regular in all respects except that the space left for the names of the proposed sureties is not filled, the defect is one of form and curable by amendment.</p>

<p>Negligence — Evidence—Inference from facts — Degree of care.</p> <p>Where the facts are disputed, where there is any reasonable doubt as to the inference to be drawn from them, or when the measure of duty is ordinary and reasonable care and the degree varies according to the' circumstances, the question cannot in the nature of the case be considered by the court; it must be submitted to the jury.</p> <p>It is only where the facts and inferences therefrom are. undisputed and where the precise measure of duty is determinate that the question is for the court.</p> <p>Negligence — Master and servant — Assumption of risk — Instruments and - appliances.</p> <p>An employee will be deemed to have assumed the risk naturally and rea-' sonably incident to his employment, and will be presumed to have notice of the risks which are or should be obvious to one of his understanding and experience, but the employer must maintain instruments and appliances reasonably suitable to the prosecution of his business and which enable his employees to perform their duties with relative safety without exposure to risks which are not naturally or reasonably incident to the employment.</p> <p>The employee has the right to assume that the employer has provided reasonably safe machinery and appliances for his use, and he does not assume the risk growing out of their defective character unless he has been fully advised that they are defective. ■</p> <p>In an action against a mining company to recover damages for the death of a boy kicked by a mule, the case is for the jury and a verdict and judgment for plaintiff will be sustained where the evidence is conflicting as to whether the boy at the time of the accident was performing an act outside of the scope of his employment at the request of a fellow servant, whose negligence was alleged to have caused the accident, and as to whether the vicious character of the mule was known to the deceased and notwithstanding such knowledge he remained in the employ of the defendant.</p>

Appeal, No. , Oct. T., 1904, by plaintiff, from judgment of C. P. Northumberland Co., Feb. Term, 1903, No. 201, on verdict for plaintiff in case of John J. Esher and Margaret E. Esher v. Mineral Railroad & Mining Company. Trespass to recover damages for death of plaintiff’s minor son. Before Auten, J. At the trial defendant presented, inter alia, these points: 14. Life has a value for the loss of which the survivors have a right to be compensated in view of the circumstances.

<p>Mortgage — Delivery—Recording—Mortgage to heirs of living persons.</p> <p>A mortgage under seal executed and recorded and made payable to the “heirs” of a husband and wife five years after their death is a valid instrument, and recovery may be had on the mortgage by the children of the husband and wife after the death of the latter.</p>

<p>Criminal law — Security for good behavior — Sunday law — Prior convictions.</p> <p>The court of quarter sessions has no power to require a person to give security to be of good behavior, who has several times been convicted of doing business on Sunday in violation of the act of 1794, in the absence of any allegation or evidence that such business was done in such a manner as to disturb the peace or constitute a public nuisance.</p>

<p>Board, of health — Quarantine—Supply of food to quarantined houses— Principal and agent — Evidence—Ratification.</p> <p>• The-action of borough authorities may be established.by evidence other than.their records, but in order to sustain a finding that a subordinate employee of a board of health has authority to bind the borough by a contract for supplies to a quarantined house," the delegation of authority must be shown by some competent evidence. It must be shown that the board of health as a body has acted on the proposition, and evidence as to indefinite remarks made by individual members of the board at different times to the alleged agent is insufficient to warrant the submission to the jury of the question of the delegation of authority by the organized body.</p> <p>Where a house in a borough is quarantined, the board of health is bound to afford such means of communication with the outer world as will enable the persons quarantined to obtain necessary supplies, and to furnish such supplies in case such persons cannot with reasonable offort obtain the same. The discretion to determine what supplies are reasonably necessary is vested in the board of health. -</p> <p>The court cannot undertake to declare as matter of law that a borough is bound to furnish and pay for the'supplies for all persons, no matter how wealthy they may be, who chance to be inmates of a house in which a ease of smallpox has developed, and about which the health authorities have stationed guards to prevent an epidemic. This would take from the board of health the discretion to determine, in the first instance, whether the financial circumstances of those quarantined were such as to require that their food should be paid for out of. the public treasury, and after that question has been determined in favor of the maintenance of the individuals at the public expense, it would transfer from the board-of health to a jury the discretion to determine what articles were necessary for the proper support of the individuals under the circumstances.</p> <p>Where a merchant furnishes supplies to several quarantined houses keeping a separate account for the supplies furnished to each house and it appears that the supplies were furnished, without any antecedent authority, he cannot recover from the borough unless he shows not only that the board of health acting as a body ratified the sales, but also that it ratified and adopted as its own the purchase of each particular item' of the goods in controversy.</p>

<p>Banks and banking — National banks — Guaranty—Illegal contract — Bill of exchange.</p> <p>A national bank has no power or authority to become a mere accommodation indorser or guarantor of the payment of a debt of another, without benefit to the bank.</p> <p>No action will lie on the promise of the cashier of a national bank to pay the draft of a third person on one of its customers, to be drawn at a future day.</p>

<p>Ground rent — Agreement to reduce rents — Counterclaim—Contract.</p> <p>Tin agreement by the owner of a ground rent to reduce the rent “hereafter” from six to five per cent, is without consideration, and will only avail as to executed payments; but a purchaser of the land who has had knowledge of the acceptance of the lesser rate, is entitled to notice of an intention of the owner of the ground rent to demand in future the rate fixed in the deed. Until such notice is given the larger rate cannot be collected.</p>

<p>Appeal, No. 245, Oct. T., 1908, by plaintiff, from order of O. P. No. 1, Phila. Co., Sept. T., 1898, No. 368, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia v. Pennsylvania Institution for the Instruction of the Blind.</p> <p>Scire facias sur tax claim.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court discharging rule for judgment.</p>

<p>Insurance — Fire insurance — Sole ownership — Change of title — Forfeiture ■ — Estoppel—Agent.</p> <p>Where a policy of fire insurance provides that the ownership of the insured shall be sole and unconditional, and that any change of ownership, except the death of the insured, shall void the policy, a conveyance by the insured of the property to his wife through a third person without the knowledge or consent of the insurance company or its duly authorized agent renders the policy void.</p> <p>In an action upon a policy of fire insurance it appeared that the insured knowing that a change of title should be noted upon the policy, went to the office of a local agent of the company, and there talked with two clerks employed by the local agent who told him that the policy was in the possession of a third person. The insured went to this person for the purpose of getting the policy, but the latter declined to let him have it. He went back and reported this fact to the two clerks, “and then they said they were going to fix it all right, it will be all right.” The clerks did nothing, however, and the property was subsequently destroyed by fire. There was no evidence that the clerks had any authority from the company, or from their immediate employer to waive the condition, of the policy. There was also no evidence that either the company or the agent had had any knowledge whatever of the change of title. Held, that the evidence was insufficient to establish a waiver of the forfeiture.</p>

<p>Appeal, No. 29, Jan. T., 1905, by plaintiff,_ from order of C. P. Lackawanna Co., May T., 1903, No. 733, quashing writ of scire facias in case of City of Scranton v. P. W. Stokes.</p> <p>Scire facias sur municipal claim for paving. Before Kelly, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court quashing the writ.</p>

Appeal, No. 58, Jan. T., 1905, by defendant, from order of C. P. Lackawanna Co., May T., 1903, discharging rule to quash writ of scire facias in case of City of Scranton v. P. W. Stokes. Rule to quash alias writ of scire facias for paving. The facts appear by the opinion of Edwards, P. J., which was as follows: The lien for pavement in front of defendant’s property was filed May 10, 1898.

<p>Pleading — Practice, C. P. — Contract—Allegata and probata — Variance.</p> <p>Where in an action of assumpsit the plaintiff declares on a verbal contract, but at the trial proves a contract materially different from that declared on, and the evidence as to the terms and extent of such contract is entirely oral, and the amount of the alleged loss is by no means clear, the plaintiff cannot recover without an amendment to the pleadings, and even if such amendment is made, the case must be submitted to the jury.</p>

<p>Appeal, No. 224, Oct. T., 1904, by defendants, from judgment of C. P. No. 1, Sept. T., 1898, No. 1488, M. L. D., on verdict for plaintiff in case of Henry H. Fleck and George O. J. Fleck, trading as Fleck Brothers, v. Dennis Collins et al. and George W. Kline, trading as Kline & Company.</p> <p>Scire facias sur municipal lien.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 7, March T., 1905, by plaintiff, from order of C. P. Sullivan Oo., May T., 1901, No. 44, dismissing appeal from tax settlement in ease of Emery Lumber Company v. Sullivan County.</p> <p>Appeal from tax settlement. Before Sullivan, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order dismissing appeal.</p>

Appeal, No. 14, March T., 1904, by Fidelity and Deposit Company, from decree of O. C. Cumberland Co., refusing to remove a trustee in estate of-John Strickler, deceased. Petition for removal of trustee. The facts appear by the opinion of the Superior Court. ¡Error assigned was decree dismissing the petition.

<p>Appeal, No. 14, March T., 1905, by plaintiff, from judgment of C. P. Cumberland Co., Sept. .T., 1898, No. 290, on verdict for defendant in case of Brady McCullough v. Jacob Seitz.</p> <p>Trespass to recover damages for injury alleged to have been caused by discharge of water on land. Before E. W. Beddle, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Plaintiff presented these points :</p> <p>1. That if the jury find that the waters falling upon the land of Seitz or flowing from the spring rising thereon, or that the waters falling on adjacent and adjoining lands which gathered on the lands of the defendant, would have flown if permitted to run naturally over his (Seitz) land but not upon that of McCullough, and that they were conducted to the latter by means of a ditch dug on the land of Seitz and under the fence dividing the farms of plaintiff and defendant and injury has been caused in' consequence to the lands and crops of McCullough, he is entitled to a verdict for the amount of the damage which the evidence shows has been suffered by him. Answer : This point is affirmed unless you also find that the water from the Seitz farm has passed through such a ditch on to the McCullough farm for the period of twenty-one years prior to the bringing of this suit, viz.: Since August 19, 1877. If the water has so passed during the said period, then the plaintiff has now no right to have its course changed or to recover any damages in this action.</p> <p>2. That under the provision in the deed of Samuel McCullough to' Brady, the plaintiff in this action and his brothers and sisters did not have right of entry upon or title to the land on which it is claimed the defendant has committed the trespass complained of until the date of the death of John McCullough which occurred on February 3, 1884. Answer : Possession by the trustee under the deed of May 8, 1847, was possession by and on behalf of the cestuis que trust specified in said deed. This point is therefore refused. [3]</p> <p>3. That the right of entry of the plaintiff, and of those who were his grantors to the land on which the trespass complained of was alleged to have been committed did not accrue until February 3, 1884, and as the action in this case was begun August 19, 1898, the defendant cannot excuse himself under the statute of limitations. Answer: This point is refused. See Smilie v. Biifie, 2 Pa. 52; Warn v. Brown, 102 Pa. 347. [4]</p> <p>6. If the jury find that the defendant has by means of a ditch or drain turned waters from his lands on to those of McCullough, the plaintiff, and the latter has suffered damage in consequence thereof, he is entitled to recover the amount of such damage. Answer: This point is affirmed, unless as previously said in answer to the first point, you find that said waters from the Seitz farm have passed through such a ditch or drain on to the McCullough farm for a period of twenty-one years prior to the bringing of this suit, viz.: since August 19,1877. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (3 to 8) above instructions quoting them.</p>

<p>Wills — Legacies—Distribution per stirpes.</p> <p>Testator directed as follows:</p> <p>“The remaining part of the estate shall be equally divided among the following named:</p> <p>“To Cornelius Fleck son of Louis Fleck.</p> <p>“ “ Alfred Fleck son of William Fleck.</p> <p>“ “ Henry Fleck son of Charles Fleck.</p> <p>“ “ The ten children of August Fleck, namely, Carl, Elizabeth, Lillie, August, Albert, Louis, Frank, Ernest, Fred and Rose; should any of these ten children be dead before me their share shall be divided among the remaining children of August Fleck.” All of the legatees were children of testator’s brothers. August was the only brother who survived testator. Held, that the estate should be divided into four parts and distributed per stirpes.</p>

<p>Appeal, No. 209, April T., 1905, by defendant, from judgment of C. P. Cambria Co., March T., 1904, No. 840, for plaintiff on case stated in suit of Ebensburg Borough v. P. J. Little.</p> <p>Case stated to determine liability for the cost of paving street. Before Kooser, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Srror assigned was the order of the court.</p>

Appeal, No. 133, April T., 1905, by plaintiff, from decree- of O. C. Clarion Co., Nov. T., 1903, No. 18, overruling exceptions to auditor’s report in case of Elizabeth A. Murray v. R. H. Murray, executor of W. Parks Murray, deceased. Exceptions to report of S. K. Clarke, Esq., auditor. The opinion of the Superior Court states the case. Error assigned was the decree of the court.

<p>Appeal, No. 144, April T., 1905, by plaintiff, from judgment of C. P Clarion Co., Aug. T., 1900, No. 165, on verdict for plaintiff in case of Commonwealth to use of the School District of Farmington Township v. S. E. Carson and the United States Fidelity & Guaranty Co., of Baltimore.</p> <p>Assumpsit on bond of tax collector. Before Galbreath, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $ 116.89. Plaintiff appealed.</p> <p>Error assigned among others was in excluding the offer of evidence quoted in the opinion of the Superior Court.</p>

Appeal, No. 151, April T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1903, No. 539, on verdict for plaintiff in case of American Bridge Company v. Duquesne Steel Foundry Company. Assumpsit for goods sold and delivered. Before'Etans, J. The facts are stated in the opinion of the Superior Court.

<p>Appeals — Review—Charge—Evidence.</p> <p>The appellate court will not review a case which was submitted without argument upon the charge of the court, which involved no question of law, and which was fairly submitted to the jury.</p>

<p>Decedents’ estates — Profits—Will—Executors and administrators.</p> <p>Where a blacksmith is supposed to have died intestate, and his administrator, pending distribution of the estate, runs for a time the decedent’s shop at a profit, employing the foreman, and then sells the shop to the foreman, and thereafter a will is discovered by which the shop is given to the foreman absolutely, the foreman will be entitled to receive back the purchase money which he paid for the shop, but he will not be entitled to any of the profits earned while the administrator was running the shop.</p>

Appeal, No. 235, April T., 1905, by defendants, from judgment of C. P. No. 2, Allegheny Co., Oct T., 1905, No. 814, on verdict for plaintiff in case of John E. Hartón v. William E. Hartón, Contractor, and William E. Hildebrand, owner, with notice to Frank P. Howley. Motion to quash appeal. The opinion of the Superior Court states the case. Errors assigned were answers to plaintiff’s points.

<p>Appeal, No. 236, April T., 1905, by defendants, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1902, No. 815, on verdict for plaintiff in case of S. J. Campbell v. William E. Harton, Contractor, and William E. Hildebrand, owner, with notice to Frank P. Howley.</p>

<p>Deed — Contract—Timber contract — Reversion—Condition—Limitation.</p> <p>Where an owner of standing timber by articles of agreement, grants, bargains and sells the same to another, and it is stipulated that the grantee “shall cut and remove said timber” on or before a day mentioned, all timber remaining uncut on the day mentioned will revert to the grantor whether there are words of reversion or not in the articles of agreement.</p>

<p>Appeal, No. 194, April T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. Term, 1903, No. 545, on verdict for plaintiff in case of Charles S. Meyers v. Moorhead Brothers & Co., Incorporated.</p> <p>Trespass to recover damages for personal injuries. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $849. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (2 — 7) various rulings on evidence referred to in the opinion of the Superior Court.</p>

<p>Principal and agent — Beal estate — Commissions—Fraud.</p> <p>Where an agent for the sale of real estate before the details of the sale are fully arranged between himself and his principal, and before the amount of his own commissions are determined, makes a sale of the land in question, and prepares a written agreement which he procures the purchaser to sign, and when his principal refuses to sign it, and repudiates the whole arrangement, signs it himself as agent and places it on record, thus annoying his principal and placing a cloud on his title, the agent is guilty of such unfaithful conduct as to deprive him of all right to compensation.</p>

<p>Contract — Breach of contract — Parties to action.</p> <p>No person can be sued for breach of contract who has not contracted, either in person or by an agent; or in other words who was not a party to the contract; and conversely, no person who has not contracted, either in person or by an agent, may be sued for a breach. For breach of a civil contract, the person to be sued is the person who has promised, or who has allowed credit to be given to him.</p> <p>Principal and agent — Liability of agent — Want of authority of agent.</p> <p>Whenever a party undertakes to act as agent for another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally liable to the person with whom he is dealing, for or on account of his principal.</p> <p>In an action by an attorney at law against two defendants, the plaintiff in his statement averred that the first defendant as agent for the second defendant employed the plaintiff to prepare and conduct a suit at law. On a trial before arbitrators it was adjudged that the agent was never, in any way authorized to make such a contract, and a judgment was entered against the agent alone. The agent thereupon appealed. At the trial in common pleas the evidence was undisputed that the agent had no authority to bind his principal by the contract alleged in the statement. The court refused to charge that the agent was personally liable if he employed the plaintiff without authority so to do from his principal. Held, that the refusal so to charge was error.</p>

<p>Appeal, No. 263, April T., 1905, by plaintiff, from judgment of C. P. Armstrong Co., Dec. T., 1904, No. 176, on verdict for defendant in case of Abraham and Isaac Rheinstrom, trading as Rheinstrom Brothers, v. Elk Brewing Company.</p> <p>Assumpsit for goods sold and delivered. Before Patton, P. J.</p> <p>At the trial the following offer was made :</p> <p>Defendant’s counsel propose to prove by the witness on the stand that he is the president of the defendant corporation; that he knew only one party, to wit: Daniel Loeb, in the purchase of the beer filter; that in so doing he expressed and stated to Daniel Loeb that he was utterly ignorant in regard to beer filters, and would rely entirely upon Mr. Loeb for the kind of filter to meet their requirements; that Mr. Loeb visited the locus in quo, to wit: the Elk Brewing Company’s plant, and examined the conditions existing there, and guaranteed that such a filter as he would furnish from his company, to wit: the plaintiff, would do the work required; that, relying upon the strength of Mr. Loeb’s proposition, but not agreeing as to the value or price asked by him for the filter, he, Loeb, referring Mr. Reese, the president of the Elk Brewing Company, to his principal, to wit: Rheinstrom Brothers, for a better price; that the bargain was finally concluded on the strength of Mr. Loeb’s representation and guarantee that the filter would do the work necessary under the conditions existing in the Elk Brewing Company’s plant. This for the purpose of showing that the plaintiff did not comply with the representations made and guaranteed as an incentive to closing the contract. And further, propose to show that the filter upon a fair trial proved to be unsatisfactory, and further, to be followed by proof that the plaintiff from time to time sent their representatives here to endeavor to make the filter do the work guaranteed, and that it failed; and, further, that the filter is now at the disposal of the plaintiff and subject to their order.</p> <p>Plaintiff’s counsel object to the offer as incompetent and irrelevant, it not being proposed to show that the representative of Rheinstrom Brothers, the plaintiff, had any authority to make the guarantee proposed to be proved, and further object to the offer in that it is not proposed to show that Daniel Loeb was the agent of Rheinstrom Brothers, or that he had authority to make such representations or guarantee as would bind the plaintiff as set forth in the offer.</p> <p>The Court: It seems to me that where the plaintiff company accepts the benefit of the acts of an -agent, they must take it cum onere, they are bound by his declarations. For the present the objection is overruled, the offer admitted and a bill of exceptions is sealed to the plaintiff. [1]</p> <p>The following letter was offered in evidence and admitted.</p> <p>“ Kittanning, Pa., May 21, 1904.</p> <p>“ Rheinstrom Bros.,</p> <p>“ Mr. Dan. Lobe, Representative,</p> <p>“ Cincinnati, Ohio.</p> <p>“ Gentlemen.</p> <p>Since my visit to Pgh. with your Mr. Loeb, we have been made a very favorable offer from one of the other Filter Cos. The writer would prefer to. place our order with you but' your price is too high. I now find your No. 1 Filter is too small for our requirements, and it will be necessary for us to use one as large as your number two. If you will accept $1,200.00 and our old Filter in exchange for your number two complete, kindly wire us upon receipt of this letter and we will send you our order by return mail. Awaiting your reply we are</p> <p>“Yours very truly,</p> <p>(Signed) Elk Brewing Co.</p> <p>“ Geo. W. Reese, Pres’t.”</p> <p>The court charged in part as follows :</p> <p>[There is some contention here and some evidence as to whether or not Mr. Loeb had the power and authority to represent the plaintiff. Ordinarily and the general rule is that the declaration of an agent, as to his powers and authority, are not binding upon his principal. But there is an exception to that rule, that is, where a party sends out an agent, and he makes a contract and the principal fills that contract, where he gets the profits of that contract, where he receives the benefit of what the agent does, then he cannot repudiate the agent’s authority. So in this case Mr. Loeb testifies that he had no authority to guarantee this filter. But if he came here, being the agent of the-plaintiff and representing them, and by reason of the contract he made with Mr. Reese, the plaintiff got the benefit of it and realized the fruits of it, they cannot now repudiate his authority.] [3]</p> <p>[The testimony shows that the defendant corporation used this filter up until February, 1905, after this suit was brought and after the case was on the trial list. Ordinarily, when they did that they would have to pay for the filter, but in this case we submit that question to you. That is, was the defendant misled by the letters and the conduct of the plaintiff into believing that the plaintiff would not insist upon a prompt rescission of the contract. Ordinarily, when the filter was found defective it was the duty of the defendant to immediately rescind the contract and take the filter out of use and refuse to use it. But in this case there has been read in your hearing some letters wherein, when the defendant corporation was complaining about this filter not being right, the plaintiff asked it to suspend judgment and not to throw it out too quick, and that they would send a man. The testimony shows that they did send three different men, and that they sent one man three different times, and that the last time he was here was on October 26, 1904. Now, gentlemen, did this conduct on the part of the plaintiff lull the defendant to sleep ? Did it make the defendant believe that the plaintiff would not insist upon a strict compliance with this contract ? Unless you believe that this defendant was misled and lulled to sleep by this conduct of the plaintiff, because the defendant had no right to use the filter after it repudiated the contract, unless they were misled and lulled to sleep by reason of the conduct and letters of the plaintiff.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) ruling On evidence, quoting the bill of exceptions ; (3, 4) portion of charge as above, quoting them; and (5) answer to plaintiff’s point quoted in the opinion of the Superior Court.</p>

<p>Sale — C ontract — Rescission.</p> <p>When a party discovers facts which warrant a rescission of his contract, it is his duty to act promptly and, in case he elects to rescind, notify the other party without delay.</p> <p>Sale — Contract—Quality—Tender.</p> <p>In an action to recover damages for breach of contract to purchase eggs, where it appears that the plaintiffs contracted to sell eggs of a specified quality determined by the time of their storage, plaintiffs cannot recover unless they show that they tendered eggs of the description called for by the contract.</p> <p>Appeals — Assignments of error — Evidence.</p> <p>The appellate court will not consider an assignment of error to the admission of testimony which fails to include the testimony admitted under the exceptions.</p>

<p>Insurance — Health insurance — Forfeiture—Waiver.</p> <p>Refusal of an insurance company to pay a loss on a specified ground, estops it from asserting other grounds relieving it from liability of which it had full knowledge, where the insured had incurred expense and brought suit in the belief that the only objection was that stated.</p> <p>Waiver is essentially a matter of intention, and to establish it there must be some declaration or act, from which the insured might reasonably infer that the insurer did not mean to insist upon a right which because of a change of position induced thereby would be inequitable to enforce. Waiver may be inferred from acts of the insured which show either recognition or denial of liability exclusively on other grounds.</p> <p>Where a premium upon a policy of insurance is not paid until fourteen days after it becomes due, but the insurance company subsequently accepts payment of premiums for four successive months, the company cannot in an action on the policy maintain that the policy was forfeited by the delay in payment for fourteen days.</p>

<p>Negligence — Nuisance—Electric shock — Street—Master and servant.</p> <p>Where a national bank facing on a public street extends a brass rail in front of its window four or five feet above the sidewalk, for the purpose of protecting the window and the front of the building from persons congregating on the sidewalk, and connects the rail with an electric battery controlled and operated inside the bank building, the bank will be liable in damages for personal injuries sustained by a person receiving a shock from contact with the rail, and this is the case where the injury is received at night, and at a time when only the janitor of the bank was in the building. Such a recovery may be sustained either on the ground that the bank was negligent in leaving a dangerous appliance in a condition to be operated by a servant or stranger, or on the ground that it was maintaining a nuisance in a public street.</p> <p>In such a case if the evidence is conflicting as to whether or not the battery was capable of inflicting the injury complained of, the case is for the jury.</p> <p>If the injury was caused by the janitor operating the battery, it is no defense that he had positive orders not to use or meddle with the apparatus.</p> <p>Negligence committed by a servant in the course of his employment, although he act without the knowledge or contrary to the wishes of the master, renders the master liable.</p> <p>A man cannot so manage a nuisance created by himself, as to escape damages because he was careful in operating it.</p> <p>Appeals — Assignments of error — Evidence.</p> <p>The appellate court will not consider an assignment of error to the admission of evidence or to a refusal to withdraw evidence, where the evidence in question is not quoted in connection with the assignment.</p>

Appeal, No. 129, April T., 1905, by defendant, from order of C. P. Lawrence Co., Dec. T., 1902, No. 106, discharging rule to open judgment in case of Roberts Machine Company to use of State National Bank of Cleveland. Rule to open judgment entered on a judgment note for the price of a boiler. Before Wallace, P. J'. The opinion of the Superior Court states the case. Error assigned was the order of the court.

<p>Appeal, No. 205, April T., 1905, by John D. Watson, from decree of O. C. Lawrence Co., Sept. T., 1904, No. 41, dismissing exceptions to auditor’s report in estate of Patrick Henry, deceased.</p> <p>Exceptions to report of E. F. G. Harper, Esq.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in discharging exceptions to the auditor’s report.</p>

<p>Negligence — Borough—Defective road — Guard rail — Proximate and remote cause.</p> <p>In an action against a borough to recover damages for injuries to a child two years old, by falling with a horse and buggy over an embankment of a road at a point where there was no guard rail, the child is not entitled to recover if the jury, find from sufficient evidence, that prior to the accident the mother of the child descended from the buggy and attempted to drive the horse to the edge of the embankment, so as to hitch him to a telephone pole which was a few feet below the edge, that the .earth gave way under the horse’s weight, and the horse, buggy and child rolled down the embankment and the child was injured. In such a case the absence of a guard rail was not the proximate and efficient cause of the accident. The borough authorities were not bound to anticipate and guard against the consequences of the unusual conduct of the mother.</p>

<p>Appeal, No. 206, April T., 1905, by Charles Henry, from decree of O. C. Lawrence Co., Sept. T., 1904, No. 41, dismissing exceptions to auditor’s report in estate of Patrick Henry, deceased.</p>

<p>Appeal, No. 203, April T., 1905, by plaintiff, from judgment of C. P. Erie Co., Feb. T., 1902, No. 82, on verdict for defendant in case of Samuel Buckby to use of the directors of the poor of Erie Count}'-, now for use of A. E. Sisson v. J. C. Sturtevant, administrator of F. Y. B. Thomas, deceased, with notice to J. C. Sturtevant et al.</p> <p>Scire facias spr mortgage. Before Walling, P. J.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Married women — Contracts—Act of June 3, 1887, P. L. 352.</p> <p>A married woman without separate estate who in 1892 bought a farm, took title to it, enjoyed its fruits for seven years, and then sold it and received the purchase money, cannot escape liability upon her written promise to pay for the land and the personal property which was upon it, upon the ground that the obligation was not binding upon her, and that without any offer to return either the property or the proceeds of the sale.</p> <p>Bond — Evidence—Case for jury.</p> <p>In an action on the bond given for the support and maintenance of another in consideration of a conveyance óf real estate, the case is for the jury where the evidence is conflicting as to whether the obligee was sufficiently fed and clothed.</p>

<p>Statutes — Penal statutes — Construction—Oil wells — Plugging—Act of June 10, 1881, P. L. 110.</p> <p>Penal statutes are to be reasonably construed. Where such an act contains such an ambiguity as to leave a reasonable doubt as to its meaning, it is the duty of the court not to inflict the penalty; and a proviso in a penal statute which is favorable to the defendant, is to be liberally interpreted in his favor.</p> <p>The Act of June 10, 1881, P. L. 110, requiring the plugging of abandoned oil wells is a penal statute, and as such to be reasonably construed. A fail-construction of the act is not to require the defendant to plug the well unless there is a third sand or oil bearing rock. If there is a question as to the existence of such sand or rock, the case must be submitted to the jury.</p> <p>Under the Act of June 10, 1881, P. L. 110, the defendant is not to be punished by the imposition of the penalty named in the statute if it is a physical impossibility under all reasonable and known means to pull the casing and place the two seasoned plugs as directed’ by the act.</p> <p>Where the duty or charge is imposed upon a party by the law, and not by his own contract, he will be excused from liability if performance of the duty becomes impossible without any default on his part.</p>

<p>Appeal, No. 215, April T., 1905, by plaintiff, from decree of C. P. Forest Co., May T., 1902, No. 2, on bill in equity in case of Seth C. McArthur, Trustee of Abner Hammond, deceased, v. Tionesta Gas Company.</p> <p>Bill in equity for an account.</p> <p>Lindsey, P. J., filed the following opinion.</p> <p>This bill was filed March 29, 1902, by Seth C. McArthur, trustee of the estate of Abner Hammond, deceased, against A. S. Allshouse and the Tionesta Gas Company. Service was obtained on the Tionesta Gas Company only.</p> <p>At the first hearing in the case no evidence was taken. The plaintiff claimed that on the facts set forth in the bill, and admitted in the answer, he was entitled to a decree for an accounting. The defendant claimed that on the face of the bill, a court in equity had no jurisdiction and asked to have the bill dismissed. We could not see our way to do either, giving our reasons in a brief opinion then filed.</p> <p>When the case came on again to be heard, evidence was taken from which with the undisputed allegations in the bill and answer, together with the surrounding circumstances, we find the following facts :•</p> <p>1. On October 21, 1885, Charles W. Macy, trustee of the estate of Abner Hammond, deceased, late of Columbia county, New York, executed and delivered a lease for oil, gas and mineral purposes (except coal) on the south half of tract No. 2,825 in Forest county, Pennsylvania, containing 500 acres, more or less, to A. S. Allshouse, his heirs and assigns. Said Allshouse sold and assigned said lease to the Tionesta Gas Company on May 6, 1886.</p> <p>2. The said lease contained the following stipulation, which is a part of the printed form of said lease and is all printed except the words and figures “ one-eighth (1-8) ” and the words “ in the pipe-line.” “ The party of the first part is to receive the one-eighth (1-8) part of all the oil, gas, or other minerals obtained therefrom, to be delivered to the party of the first part in the pipe-line on the premises.” Said lease also contained the following stipulation, written with pen and ink further along in said lease than the above quoted printed stipulation: “ Should gas be found in well or wells sunk on said demised premises, and should gas be taken off said premises, and sold for compensation by said lessee the said lessee shall pay to the said lessor $50.00 per annum for a gas pressure of 125 lbs. to the square inch, and for each 125 lbs. additional pressure an additional sum of $50.00 per annum.”</p> <p>3. In the month of February, 1887, the Tionesta Gas Company drilled a well on said premises for oil, but found no oil; instead thereof gas was obtained, which has been taken off the premises and sold, the first sale having been made May 31, 1887. The gas pressure in that well was 452 pounds to the square inch, at first and diminished as stated in the answer.</p> <p>4. No other wells were drilled until October 15, 1896, when four wells were drilled, from which gas was produced. No oil was ever produced on the premises.</p> <p>5. Payments have been made by the defendant to Charles W. Macy, trustee, the predecessor of the plaintiff, for gas removed and sold from the premises, on the basis of $50.00 per annum for a gas pressure of 125 pounds per square inch, and an additional sum of $50.00 for each additional 125 pounds pressure per square inch, for the years from 1887 to 1895 both inclusive. The dates and amounts of each payment are given in the answer and in the evidence; also the gas pressure for each year.</p> <p>6. These payments were made by the defendant to be in full payment of the amount due by it and were received by Mr. Macy without objection by him or without his claiming anything more. No demand was ever made for anything more. Colonel Butler testified that he was sent to Tionesta in 1896 by Mr. Macy, and that he met the president of the Tionesta Gas Company, and Mr. Kelly, and he thought Mr. Robinson, both of whom were connected with the company, and that he told them that “We will require you to pay for one-eighth of all gas ” in addition to some other things which he said he demanded at that time. But these gentlemen all denied the statement and we are unable to find as a fact that any demand was ever made for one-eighth of the gas.</p> <p>7. It has been the general custom in the oil regions to divide the oil between the lessor and lessee by the lessee running the oil from the receiving tank at the wells into a pipe-line to the credit of the lessor and lessee according to their ownership as stated in the lease. This was the custom at the time the lease in question was made and it has continued to the present time. But no such custom prevailed in reference to gas either at that time or since. And there were no gas companies for the transportation of gas at the time the lease was made and there have been none since.</p> <p>8. According to the evidence.there was no market for gas in the vicinity of this property at the time the lease was made. One or two of the witnesses gave it as their opinion that the compensation stated in the written paragraph in the lease is a fair compensation as between the lessor and lessee.</p> <p>9. The lessor never called for any division of the gas on the property prior to the filing of his bill. Never furnished any pipe-line or other receptacle to receive it. And never asked to take or have the gas pressure taken.</p> <p>DISCUSSION OK THE QUESTION AT ISSUE.</p> <p>The first question for us to determine is whether the plaintiff is entitled to one-eighth of the gas, and $50.00 per annum for every 125 pounds of gas pressure, or whether he is entitled to the latter only. And the solution of this question may aid us'in determining the question as to the plaintiff’s right to. relief in a court of equity.</p> <p>That we must resort to construction in order to determine the actual contract between the parties is evident upon the. face of the lease, for it states in the printed part that, “ The party of the first part is to receive the one-eighth (1-8) part of all the oil, gas or other minerals obtained therefrom, to be delivered to the party of the first part in the pipe-line upon the. premises.” And then further on in a blank space is written with pen and ink, “ And should gas be found in a well or wells. sunk on said demised premises, and should gas be taken off said premises and sold for compensation by said lessee, the said lessee shall pay to the said lessor $50.00 per annum for a gas pressure of 125 lbs. to the square inch, and for each 125 lbs. additional pressure an additional sum of $50.00 per annum.”</p> <p>These two paragraphs are inconsistent with each other. We must therefore endeavor to find out, if we can, the actual intention of the parties. To do this we must consider the subject-matter of the contract, the circumstances surrounding the parties at the time of its making and the customs relating to the business to which the contract related that would be likely to be known to the parties at the time of the making of the contract.</p> <p>What, then, was the intention of the parties to this contract in relation to the gas ? The printed clause contains the words “ oil, gas or other minerals.” Taking into consideration the evidence and the surrounding circumstances, there was no market value for gas at that time in the vicinity of the property. Oil was the principal mineral in that region and the only mineral sought for.</p> <p>There were pipe-line companies or a pipe-line company for the transportation of oil, which received the oil at the wells on the premises, but there were no such gas companies which received gas on the premises. There was no difficulty, therefore, in providing that one-eighth of the oil should be delivered to the lessor in the pipe-line on the premises ; but as. to the gas it was different. There might be only enough gas found for use on the premises for fuel in drilling and pumping the oil wells. Or there might be a surplus, and therefore it would be natural’ for the parties to make some other provision in relation to the gas, and they did make the following: “ And should gas be found in well or wells sunk on said premises, and should gas be taken off said premises and sold for compensation,” etc. This clause being in writing it is entitled to greater weight than the printed clause by rulés of construction. The parties might have made the matter plain by the addition of a few words to the paragraph, but they did not do so, and we are obliged to find out their meaning by the application of those rales and principles which experience has led courts to adopt as the most rational and equitable in discovering the intention of the parties.</p> <p>In Grandin v. Insurance Company, 107 Pa. 26, Mr. Justice Paxson says : “ The settled rule is that where the written and printed portions are repugnant to each other, the printed form must yield to the deliberate written expression: Harper v. Insurance Company, 22 N. Y. 441. So far, therefore, as this printed condition is applicable at all and conflicts with the written portion of the contract, it must give away to the latter.”</p> <p>In Duffield v. Hue, 129 Pa. 94, Mr. Justice Clark said: “ The lease consists partly in a printed formula, prepared for oil leases on the tract 498, and partly in written words inserted therein; and the printed number, 498, it is conceded, should have been changed to 497. It is undoubtedly true that in such case the written words are entitled to have greater effect in the interpretation than those which are printed, for written words are the terms selected by the parties themselves to express their meaning in this particular case, whereas the words of the printed form are of a more general character, originally chosen for application to similar subjects only, and frequently, as in this case, are by necessary alterations and changes made to express, as near as may be, the intention of the parties : Grandin v. Insurance Co., 107 Pa. 26; Haws v. Fire Association, 114 Pa. 431. Whilst, by the printed form, the leased premises are described as ‘ a certain lot or piece of land situate,’ etc., it is plain from the written clauses that the premises were to be operated at certain designated points or ‘ sites ’ only.”</p> <p>The rale of construction which attached more relative importance to the written than to the printed part of a contract is often a very useful one, and is recognized in many of our cases Lane v. Nelson, 167 Pa. 602.</p> <p>In Grandin v. Insurance Co., Judge Pans on said: “We have a right to assume that the parties contracted with reference to the peculiar nature and situation of its subject-matter insured.”</p> <p>In Lacy v. Green, 84 Pa. 514, Mr. Justice Woodward delivering the opinion said : “ Where the meaning of an agreement is doubtful its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the' conveniences they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract. The established usages of the trade or business to which the subject-matter of the agreement belongs, and the general customs of the community in the conduct of that trade or business, are also to be kept in view.”.</p> <p>In Wright v. Natural Gas Company, 2 Pa. Superior Ct. 219, Mr. Justice Obladr in delivering the opinion said : “ So long as parties call upon courts of justice to administer their contracts, they must accept them to be administered as nearly as may be according to the very intention and understanding that were present in the minds of the parties when the contract was signed, and to this end courts take the language employed and apply it to the surrounding circumstances exactly as they believed the parties applied it.”</p> <p>The defendant claims that the parties themselves have construed the lease, as now contended by it, ever since gas was obtained and taken and sold off the lease. It is a fact that the plaintiff’s predecessor received the. amount due under the written clause in the lease, from 1887 to 1895, both inclusive, and never raised any objection as to the amount or intimated in any way that it was not all that was due under the lease.</p> <p>Mr. Brennan, who collected the money for the trustee, testified : “ Q. All I am asking you is whether tliat was upon the basis of $50.00 for each 125 lbs. rock pressure, whether that was the basis of it ? A. I believe it was,, and that it was in full compensation for the lease,”</p> <p>The evidence that the trustee received the money understanding it to be in full of the annual claim of the lessor growing out of the lease, is not entirely satisfactory, but his complete silence as to any other claim for so long a period of time, with the testimony of Mr. Brennan, indicates very strongly that he did. That the lessee paid it, understanding it to be in complete fulfillment of the requirements of the lease, there can be no doubt. If this was the construction put upon the lease by both parties, continued for so long a time, it is a very potent indication that such was the intention of the parties at the time the contract was made.</p> <p>If there were any doubts or ambiguity arising upon a word implied in the clause of the contract under consideration, they would be effectually removed by its practical construction continuously put upon it by the conduct of the parties for so long a period : Topliff v. Topliff, 122 U. S. 121 ( 7 Sup. Ct. Repr. 1057).</p> <p>Contemporary construction of a contract of the parties is entitled to very great weight, but it ought to appear with reasonable certainty that they were acts of both parties done with knowledge, and in view of a purpose at least consistent with that to which they are subsequently sought to be applied: Kane v. Fire Ins. Co., 199 Pa. 205.</p> <p>The parties to a contract, where there may be some ambiguity, always have a right and can put their own construction upon their own lease, and it is a proper question to submit to the jury whether both parties agree to such a mutual construction, and the jury so finding should adopt such a construction as its own: Wright v. Natural Gas Co., 2 Pa. Superior Ct. 219.</p> <p>After a careful consideration of all the facts and surrounding circumstances and applying the principles of construction as set forth in the authorities cited above, we are of the opinion that the intention of the parties as to compensation to the lessor, as set forth in the written paragraph in the lease, was to be in lieu of one-eighth of the gas provided for in the printed portion of the lease. That the lessor should receive both could not have been contemplated by the-parties; for if the one-eighth of the gas was delivered to the lessor in the pipe-line upon their premises, as provided in the printed clause, the gas could not be taken off said premises and sold for a compensation by said.lessee as provided in the written clause. Sucha thing would be practically impossible. The one-eighth could not be run into the pipe-line without running the whole amount into it. It could not have been in the contemplation of the parties, for there was no pipeline company purchasing gas on the premises, or receiving gas on the premises and transporting it, hence the written clause in the contract, by which the parties provided that should gas be found and should it be taken off the premises and sold it should be paid for according to the pressure per cubic inch.</p> <p>Our conclusion is that the true intention of the parties was that in ease gas was found, and in case it was sold off the premises, the compensation provided in the written paragraph was to be in full compensation to the lessor for the lease. A delivery of one-eiglith of the gas in the pipe-line, as stated in the printed clause, was impracticable, if not wholly impossible, at the time of the making of the contract, and is still. The lessee was therefore compelled to sell the gas off the premises, paying the lessor the compensation provided in such case and cannot be compelled to deliver the one-eighth in the pipe-line or pay for its value in addition to the compensation stated in the written paragraph of the lease.</p> <p>Having reached the above conclusion the question of equitable jurisdiction must next be considered.</p> <p>Whether a court of equity has jurisdiction or not must be determined not by what may have been shown by the answer or testimony adduced in support thereof, but by what appears on the face of the bill: Adams’s Appeal, 113 Pa. 449.</p> <p>Tt was not clear from the face of the bill that the plaintiff had an adequate remedy at law, nor is it clear now after an answer and the evidence taken. The gas pressure of one well only appears from the evidence as we understand it, and there were four wells drilled, according to the evidence, commencing with October, 1896. Whether all the gas from these wells was sold off the premises or not, and if not how much, does not appear. If the gas pressure from all the wells should necessarily enter into the accounting, as seems to be claimed by the plaintiff from his request submitted, and if gas from all or only a part of them was sold off the premises, or only a part of the gas from all the wells was sold, the accounting would become a complicated question, and the remedy in equity would be not only the most convenient but the most adequate.</p> <p>Jurisdiction in equity depends not so much on the want of common-law remedy as upon its inadequacy: Bierbower’s Appeal, 107 Pa. 14.</p> <p>Where the remedy of law would be cumbersome, inconvenient and inadequate, equity will entertain jurisdiction: Boyd v. American Carbon Black Co., 182 Pa. 206.</p> <p>In Bradly v. Jennings, 201 Pa. 473, it was stated in the opinion of the court below, quoting from 5 Pepper & Lewis’s Dig. of Dec. 8774: “ Wherever relief can be more easily administered in equity as in a case wherein the facts from which the account must be made up rest almost exclusively in the knowledge of the respondent, a court of equity has jurisdiction to decree an account.” And again, quoting from the same authority and from Tully v. Felton, 177 Pa. 344: 4‘So also where the accounts are complicated, or there is a community of interest in a common enterprise, with all the funds in the hands of one of the parties.” This case was affirmed by the Supreme Court on the opinion of the court below.</p> <p>The facts from which the account in this case must be made up rest almost exclusively with the defendant. The defendant only knows the pressure of the several wells drilled on the premises for the different years ,• and whether or not the gas from all has been sold off the premises; and if not .from how many; and whether or not it has all been sold off the premises. And the money received therefor since 1895 is all in the hands of the defendant.</p> <p>It was said by Mr. Justice Green, in Tully v. Felton, 177 Pa. 344: “Whether on the ground of discoveiy, which was absolutely necessary, or mistake, or complicated accounts, or community of interest in a common enterprise where all the accounts were in the hands of one of the parties, and the situation was one which involved a trust and confidence, it is perfectly clear that the only suitable and complete remedy was by a bill in equity.” Some of these principles stated by Mr. Justice Gbeen are applicable here. We do not think the law side of the court could afford a complete, adequate or convenient remedjn</p> <p>We think also that discovery is necessary in order that the plaintiff may obtain the gas pressure of the several wells for the different years since 1895.</p> <p>The evidence shows that the plaintiff has been paid in full up to 1896, as provided in the written paragraph of the lease, and neither the discovery nor the accounting need go back of that date.</p> <p>On exceptions the following decree was entered:</p> <p>And now, to wit: September 16, 1904, on hearing the counsel for the respective parties on the exceptions to the findings and decree made September 2, 1904, the exceptions filed by plaintiff are overruled and dismissed, and the exceptions filed by defendant are all overruled and dismissed, except the first, which is sustained in part as follows : The four additional gas wells were not completed and producing gas until October 15, 1896, as shown by the contract. Therefore, the plaintiff would only be entitled to receive pay for the four wells for two and one-half months for 1896. The first paragraph of our statement of the account should be corrected so as to read as follows :</p> <p>January 1, 1897, due plaintiff for gas sold during 1896 for one well. ..... $100.00</p> <p>For four wells for 2 1-2 months . . . 83.33</p> <p>Interest thereon to Sept. 1,1904 . 73.33</p> <p>Total $256.66</p> <p>So correcting the first paragraph the total amount due from defendant to plaintiff is $1,158.36.</p> <p>The decree is, therefore, corrected to read $1,158.36, instead of $1,634.20, and being so corrected, the prothonotary is directed to enter it as the final decree.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 164, April T., 1904, by Catharine Doyle, from decree of O. C. Armstrong Co., June T., 1903, No. 14, sustaining exceptions to auditor’s report in Estate of Michael Callahan, deceased.</p> <p>Exceptions to report of J. W. King, Esq., auditor.</p> <p>From the record it appeared that on February 24, 1899, Michael Callahan executed his last will and testament as follows: “ I, Michael Callahan in the name of God, Amen. Being frail of body but strong of mind and not knowing the time God may call me hence, I make this my last will and testament, revoking all former wills. I direct that I be buried in family lot in St. John’s burial grounds at Coylesville and that my funeral expenses and all just debts be paid. To my beloved daughter Catharine, nee Green, I bequeath the sum of five dollars. To my beloved daughter Mary, nee Hannegan, I bequeath the sum of five hundred dollars. To my beloved son Michael, I bequeath the sum of five hundred dollars. To my beloved son John, I have already deeded a piece or parcel of land. To my son William and his heirs I bequeath the one-half of the old homestead, exception below. To my beloved daughter Biddy, nee Cusick, I bequeath the other one-half interest in the old homestead, exceptions noted below. Exception to my grandsons Dan and Patrick, sons of John Callahan, I bequeath five acres off the old homestead, line to run parallel with lands of John Callahan; my son John Callahan to have control of said lands until the hoys become of age. I direct my administrator to sell all my personal property also any real estate of which I may die seized at the time of my death, to hold the funds derived therefrom together with the money of which I am possessed for the keeping and maintenance of my dearly beloved wife, Grace D. Callahan ; at her death should she survive me, I direct that she be buried by my side; that her funeral expenses and doctor bills be paid. Then I direct that the balance of funds in the hands of my administrator be paid to my children share and share alike. Should any of my children die before me I direct that their share go to their heirs.</p> <p>“ I appoint my son Michael Callahan my lawful administrator. This my last will and testament written on one sheet of paper.”</p> <p>The auditor held that the bequests in the will to Catharine Green, Mary Hannegan, Michael Callahan, and the devisees to William Callahan, Biddy Cusick, Daniel Callahan, Patrick Callahan and John Callahan fell because inconsistent with and repugnant to the latter clause in the will which directed his executor to sell any real estate of which he died seized and to hold the money he possessed for the keeping and maintenance of his widow. He awarded the whole fund left after the payment of debts, for the support of the widow. To this Mary Hannegan, one of the devisees, excepted.</p> <p>The court sustained exceptions to the auditor’s report and directed payment of the legacies.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 265, April T., 1905, by plaintiff, from order of C. P. Butler Co., March T., 1905, No. 8, making absolute rule to open judgment in case of J. A. McFadden y. Millerstown Deposit Bank, Garnishee of D. C. McLean.</p> <p>Rule to open judgment.</p> <p>Galbreath, P. J., filed the following opinion:</p> <p>The execution attachment in this case was issued on December 8, 1904. The writ is in the issued form, with a clause in the nature of a scire facias against the garnishee, to appear on the second Monday of January, 1905, to show cause why judgment should not be levied of the effects of the defendant in the hands of the garnishee. The Act of assembly of June 16, 1836, P. L. 755, sec. 35, provides that the writ and scire facias may issue, and the defendant and garnishee be required to appear “ at the next term of the court or at such other time as the court from which such process may issue, shall appoint, and show cause,” etc. In the present case the writ was made returnable to the second Monday of January, 1905, being the ninth day of said month. A rule to answer interrogatories was also taken out on December 8, and made returnable to the second Monday of January, 1905, and interrogatories filed. The writ of attachment, with its clause of scire facias, and the rule to answer interrogatories together with a copy of the interrogatories were served on G. E. Myers, assistant cashier of the Millerstown Deposit Bank, as the sheriff’s return indicates, on December 8, 1904. The return does not, however, show any attachment of any money, deposits, goods or effects of any kind belonging to defendant in the hands of the garnishee.</p> <p>On January 10, 1905, judgment was entered against the garnishee, in default of an appearance, in the sum of $158.11 and costs. This judgment, we think, was irregularly entered, for the following reasons, to wit:</p> <p>1. The return of the sheriff does not show that anything whatever was attached in the hands of the garnishee.</p> <p>2. Assuming, however, that the service of the writ of attachment was sufficient to hold any goods or moneys of the defendant in the hands of the garnishee at the time of the service of the writ if such there were, yet the judgment was not taken in the manner provided by rule of court. Rule VI, section 20, provides as follows: “ At any time after the return of the scire facias against the garnishee, the plaintiff in a foreign attachment or an attachment to levy on stock, debts and deposits of money due defendant, having filed a copy of the following interrogatories of record in the case — may enter a rule of cause for the garnishee to answer under oath within fifteen days from the time of service of the rule and a copy of the interrogatories upon him and when failure of the garnishee to apswer within the time specified, judgment may be taken against him by default upon praecipe therefore filed in the prothonotary’s office.”</p> <p>This rule of court does not seem to have been observed in the present case. Under its provisions a rule to answer interrogatories could not issue until after return of the scire facias and when issued the garnishee would have fifteen days from the time of service thereof in which to answer before judgment can be taken in default of an appearance.</p> <p>In the present case the proof is that the defendant did not have any money on deposit in the bank of the garnishee, and the cashier, who was absent when the attachment was served, seems to have misunderstood the time mentioned in the writ for his appearance. It would be a hard rule which would hold a garnishee for the payment of the debt of another where he has no money or effects of the defendant in his hands. For this reason courts have been somewhat lenient in the opening of judgments entered against them where their delay or default, if any, is excused and there is a good defense. For that reason alone the judgment might be opened, but when to this is added the fact that no goods or moneys seem to have been attached, so far as the record discloses, and the entry of the judgment was not in accord with the foregoing rule of court, it seems quite clearly the duty of the court to open the judgment as to the garnishee, and let it into a defense, which is accordingly done this day, April 10, 1905.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals — Landlord and tenant — Waiver of right to appeal — Quashing appeal.</p> <p>An appeal from an order refusing to open a judgment entered on an ejectment clause in a lease, will be quashed where it appears that the lease contained a waiver of a right to appeal, and the contention of the defendant that the lease had expired and a different contract existed between the parties, is not established by anything appearing in the record. If in such a case the defendant relied upon what was contained in depositions to overcome the waiver, it was his duty, having ample time, to suggest a diminution of the record, and have the depositions brought up.</p>

<p>Appeal, No. 261, Oct. T., 1908, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1900, No; 316, on verdict for plaintiff incase of Gussie Rosenblit by his next friend and father, Samuel Rosenblit and Samuel Rosenblit in his own right v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Beiíg-y, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict for Samuel Rosenblit for $50.00 and for Gussie Rosenblit for $300, subject to question of law reserved.</p> <p>The court subsequently entered judgment on the verdict.</p> <p>Error assigned was in overruling motion for judgment for defendant non obstante veredicto.</p>

<p>Insurance — Pire insurance — Sole ownership — Agent—Waiver.</p> <p>Where a policy of fire insurance provides that the contract of insurance shall be void “if the subject of insurance be a building upon ground not owned by the insured in fee simple,” the policy is void if it appears that the building was on land leased by the insured. If such policy also' contains a provision that no agent shall have power to waive any provision of the policy except in writing indorsed on the policy, the condition as to ownership of the land cannot be waived except in the manner stated.</p>

<p>Practice, C. P. — Use plaintiff — Equitable plaintiff — Defense.</p> <p>In an action by one person to the use of another the defendant cannot allege that the equitable plaintiff has no right to recover the sum in controversy. Recovery depends on proof of the legal plaintiff’s claim, and the right to its fruits is a matter resting between the legal and equitable plaintiffs to be determined, if necessary, by the court; and this in no way concerns the defendant.</p>

<p>Negligence — Telephone companies — Break of wire — Contact with electric light wire — Presumption—Evidence.</p> <p>As between a telephone company and one with whom it has no contract relation, no prima facie presumption of the company’s negligence is raised by proof that its wire broke under the strain of a sleet storm of great and unusual severity, and fell upon an electric light wire stretched on the same pole.</p> <p>In an action against a telephone company to recover damages for the death of a horse, it should not be submitted to the jury to determine that defendant was negligent in failing to maintain guard wires to prevent the telephone wires, in case of their falling, from coming in contact with electric light wires on the same pole, where there is no evidence that it was customary, or if not customary, that it was practicable for telephone companies to maintain guard wires under the circumstances of the case.</p> <p>Where a telephone wire breaks during a great and unusual sleet storm, and falls upon an electric light wire, strung on the same pole, the telephone company cannot be charged with negligence because it did not learn of and repair the break within an hour or an hour and a half after it occurred. In such a case notice to the electric light company is not notice to the telephone company.</p> <p>In an action against a telephone company to recover damages for killing a horse, it appeared that a telephone wire was strung on the poles which carried an electric light wire and that during a great and unusual sleet storm the telephone wire broke and fell upon the electric light wire, the end lodging in a pool of water in a gutter. The water became charged with electricity. Plaintiff’s employee led the horse through the pool without observing the wire lying in the water. Having rubber boots on, the man was not hurt, but the horse was killed. Held, that the court could not say as a matter of law that the employee was guilty of contributory negligence.</p>

Appeal No. 2, March T., 1905, by Michael Crawley, from judgment of Q. S. Clinton Co., on verdict of guilty in case of Commonwealth v. Michael Crowley. From the record it appeared that after the appeal was taken the appellant died.

<p>Appeal, No. 167, Oct. T., 1904, by defendant, from judgment of C. P. Berks Co., May T., 1903, No. 66, on verdict for plaintiff in case of Colonial Trust Company of Reading v. H. K. Getz.</p> <p>Assumpsit upon a promissory note. Before Endlich, J</p> <p>At the trial the following offer was made :</p> <p>Mr. Jones: Plaintiff offers in evidence note of Walter G. Roland, payable to the order of II. K. Getz, for $665, dated January 29, 1903, payable March 20, 1903, at the Colonial Trust Company, indorsed by H. K. Getz crediting the drawer.</p> <p>(Note marked “ Exhibit A, H. L. C., 10-20-03.”)</p> <p>Mr. Derr: This note is objected to for the following reasons: There are plain evidences of alteration of the note in the following respects:</p> <p>In the date of January 29, it is evident that the original first figure was a one and has been changed to a two, converting nineteen to twenty-nine. There is, also, evidence of erasure where the abbreviation for the month of March, “ Mch.,” in the due date is written; there is evidence of some other month or some other word having existed on the paper antecedently to the abbreviation for the month of March having been erased and the month of March substituted therefor.</p> <p>Also, in the lower left-hand corner is the folio wing: “ renewal less $15.00 ; ” this being a reference to a note for the renewal of which this note was given. The note referred to should be offered in connection with this note, or the plaintiff’s inability to offer it accounted for, if there is such inability.</p> <p>The Court: Admitted ; bill sealed for the defendant. [1]</p> <p>Walter G. Roland being examined as witness for plaintiff was asked this , question.</p> <p>“ Q. This note appears in the form of an accommodation note. Will you state whether Mr. Getz had any interest in it? A. Yes, sir. Q. State what interest he had in it and how he came to indorse these notes ? ”</p> <p>Mr. Derr: How is that relevant ? How is it admissible in ■ rebuttal ?</p> <p>Mr. Jones : Mr. Derr stated in his opening that this was an accommodation note and that Mr. Getz was the accommodation indorser and that, therefore, he had no interest in this matter whatever.</p> <p>The Court: Admitted; bill sealed for defendant. [2]</p> <p>Mr. Jones: “ Q. It has appeared that there were several notes, beginning in 1901 and the renewals continuing up to the note in suit. Now tell the jury how it came about. A. About April, 1901, Mr. Halberstadt had been involved to Mr. Getz and myself very materially; I applied to Mr. Getz for aid and, on this particular occasion, we required $700. I explained to him that we had to pay the insurance of $12j000 for two years in advance to the New York Life Insurance Company. I approached Mr. Getz and he veiy reluctantly complied, with the understanding that I was to place this note in no national bank, so I applied to the Colonial Trust Company. They said they would take it on one condition, and that was, if I secured the additional indorsement of Mr. O. S. Geiger, which I did. I returned after twelve days of hustling to get Mr. Geiger to aid me. I took the $700 and paid the New York Life Insurance Company for two full years’ premiums of $300 apiece, making a total of $600, and to-day, at this very moment, Mr. Getz is enjoying that payment. It was renewed from time to time. Q. The point is that the proceeds of this transaction procured a life insurance which protects Mr. Getz and Mr. Roland ? A. Yes, sir. Q. Is that correct? A. Yes, sir. Q. The life insurance on Halberstadt’s life? A. Yes, sir. Q. Protects both Mr. Getz and you ? A. Yes, sir.”</p> <p>The court charged in part as follows :</p> <p>The defendant alleges that he is not liable on this note at all because of material alterations which he says were made in this note after the time when he put his name upon it and before the time when it was negotiated, that is to say, when it was passed into the bank and taken by the bank. Those alterations he says consist in two particulars. Now it will be a question for the jury to say whether there was any such alteration after the execution of the note and before its negotiation or not. [There is no possible inference in this case that there was an alteration of the note after it came into bank; the testimony here, excludes any supposition of that kind, and it is not alleged that there was anything of the kind. The question is whether there was any alteration in the particulars claimed by the defendant before the negotiation of the note and after it had been indorsed by the defendant..] [5]</p> <p>[Now, gentlemen, the law is perfectly clear that if there was no such alteration, that is to say, if the note was not changed in either of the particulars alleged by the defendant after he had put his name to it and before it was negotiated, then the plaintiff is entitled to a verdict for the full amount of its claim.] [6]</p> <p>Now, was there such an alteration as the defendant contends for or was there not ? That question, gentlemen, you will decide under the evidénce of this case and in accordance with the weight of the evidence. That is to say, on which side does the 'testimony incline ? — on which side does the evidence preponderate ? — that is the question for the jury to pass upon; and the jury will decide every question that arises upon the weight and preponderance of the evidence, and of course not in deference to any theories or suppositions of the parties, however ingenious they may be, unless the- jury finds them to be supported by the evidence and the facts of the case. And to be sure, the mere fact that such alterations as are alleged to have been made are possible of accomplishment, the mere fact that it is possible to make alterations in a note that has already been written — a proposition which, of course, cannot be disputed — is not a decisive element in the case. The question for the jury is not the possibility of such a thing, but the question is whether that possibility is converted by the fair preponderance of the evidence into a probability, into the probable truth of the case.</p> <p>Let us look at those two particulars in which the defendant says this note was changed a little more closely. The defendant says that the date of the note originally was not January 29, but January 19. The defendant himself, if I remember rightly, testifies virtually to that effect. He gives you no reason for so saying, no reason resting .either in positive recollection on his part, or supplied by circumstances connected with the transaction itself which he says he remembers, but he bases his testimony, as I recall- it, .upon the appearance of the figure “ 2 ” in the “ 29.” That figure, it is alleged, indicates that it was changed into a two from a one. That is the testimony of the defendant himself, I think, and of two witnesses who were called upon the stand to testify as experts on behalf of the defendant. They tell you what, in their opinion, the appearance of that figure “ 2,” as it now stands upon the note, indicates, and they say that it indicates that it was originally a one, and that the upper loop and the tail below were added to. it so as to give it the appearance of the figure 2. On the other hand, Walter Roland testifies that the figure never was anything else than what it is now ; and one witness called by the plaintiff, a bookkeeper in one of the banks, I don’t remember which, tells you that its appearance indicates no tampering with it. What does its appearance on the note itself indicate to you ? It is for you to decide what these opinions' that have been given to you, and this testimony of indications that has been submitted to you, are worth. It is for you to look at the note and to see what this thing really does mean. What is the evidence which the note itself bears upon its face ? And under all the circumstances of the case shown by the evidence, taken in connection with the note, what is the probable truth indicated by the weight of the testimony? There is, of course, this to be considered by the jury in connection with this matter: It seems to be admitted that this note, whatever it originally was, was intended to renew another note in the Colonial Trust Company for $680, to be reduced by a cash payment of $15.00, which would bring it down to $665. That other note became due on February 2. Now, it is for the jury to consider and it is for the jury to say, and I am not indicating any opinion on the subject one way or the other, whether or not it is likely that the defendant on January 19 signed a note for the renewal of one coming due on February 2, which was two weeks later, or whether or not it is more likely that the defendant signed a note which was to renew one coming due on February 2 on January 29, which was a Thursday, February 2 being the Monday following. The jury ought to take into consideration all the facts of the case which are clear, and try to see what the reasonable inference from those facts is, and how that inference bears upon the probability of one statement or another statement being borne out. If the testimony of the defendant in this case were positive as a matter of actual recollection on his part that this note as originally drawn bore the date of January 19, and not January 29, the case might probably stand a little different. But I don’t understand that to be his contention. The question is whether, from the appearance of this note and from the testimony as to what that appearance indicates, the jury is or is not to say that as a matter of fact this note was dated on January 19, and not January 29 ; and when you come to pass upon that question it is proper and right for you to consider all the probabilities of the case, and apply your common sense as to what it was likely that people in business would do that is consistent with the one theory or with the other. And of course, gentlemen, you will understand that even if the 2 was made up of three strokes, as contended for by the defendant, if there was a 1 there first and that loop and tail were put to it afterwards, changing it from a 1 into a 2, if that was done before the defendant put his name on the note, then the note is all right so far as that matter is concerned. In other words, no change made in the note before the defendant put his name to it can possibly affect his liability.</p> <p>Now we come to the other proposition. The defendant also says that theMate at which the note was to mature when he put his name to it was not March 20, but some earlier date. To induce you to believe that, he relies upon what he argues to you from the appearance of the note itself. He says that it shows an erasure under the letters “ Mch.,” the abbreviation for March which is used in that note, and I believe, the traces of other marks, writing, as he contends, as having been originally there before that erasure which he claims was made obliterated it. Two of his witnesses —the two, I think, that I referred to before — have explained to you their views on this subject, and it is for you to say whether your inspection of the note, such careful and deliberate examination as you will give to it when you come to your jury room, commends what the defendant contends for in this particular to your conscientious judgment. I ought to add here that of course, in this connection, you will not forget the testimony of one of the plaintiff’s witnesses whom I have already referred to,, who says that so far as that matter of “ Mch. 20 ” is concerned, the note bears no evidences of having been tampered with. But all that is for you. You are not bound by the testimony of any one or more witnesses in the case. You are to look at the whole evidence, all the facts and all the testimony in the case, in order to come to a just and true conclusion. But in addition to the appearance of the note, the defendant also swears that the date of maturity of the note when he indorsed it was not March 20, but some other date between February 16 and March 9. Walter Roland, the other party to the note, swears that the date as now appearing is exactly what it was when the defendant put his name to it. What is the truth on that point ? There has been considerable discussion to you by counsel concerning the fact that the defendant does not tell you what date was on it. It is true that the defendant does not undertake to say on what date the note as he claims it was written was made payable. You are asked to believe that it was on February 20, but there is uo witness who can say that that was the date originally written in this note ; and I don’t recall — I may be mistaken about that, but I don’t now recall that there was any evidence showing that there was any note coming due on or about February 20 which the defendant was asked to renew. You will recall that this note was given for the renewal of another earlier note that came due on February 2, and that it was used for that purpose — it was used to take up that note which came due on February 2. The fact that it is n’t possible to give with precision the date which is alleged to have been upon a paper originally, and which is alleged to have been altered, may not be decisive in the minds of the jury against the acceptance of such an alteration, if it is borne out, substantiated by the weight of the testimony in other particulars. But it is for the jury to consider, in the absence of any testimony attempting to give the date which is alleged to have existed originally, whether or not it is more likely that the defendant, in testifying as he does concerning this note, is confusing it with some other one which he may have been indorsing for Roland, the evidence being that he was- indorsing three or four more.</p> <p>I don’t pretend to review the whole of the testimony to the jury; and of course I have no intention of expressing any opinion as to any of these matters of fact which it is the province of the jury and the jury alone to pass upon. [The jury will remember all the' evidence that there has been bearing on these subjects, and in the light of the whole of it decide whether there has been an alteration of this note after its execution and before its negotiation in either or in both of the particulars contended for by the defendant.] [3] If, according to the fair preponderance of the evidence as the jury views it, there was no such alteration, then it will be your duty to find for the plaintiff for $690.37, that being the amount of the note with interest and costs of protest. On the other hand, if, according to the fair preponderance of the evidence as the jury views it, there was an alteration, then that alteration must have been either in the date of the note or in the date of maturity stated in the note or in both. As I have already intimated, in the event of your finding that there was an alteration, I shall ask you to render a verdict specially declaring what you find on that subject, and I have prepared that verdict in such a way that by taking it as it is written, or by striking out one of two clauses, it will present your finding in legal form. You will find that paper marked as “Special Verdict.” If you find an alteration in the date of the note only, that is, in this matter of January 19, or January 29, a change from January 19 to January 29, but no change as to the words “ Mch. 20,” then draw your pen through that second clause in brackets, containing the words “ its original date of maturity from some earlier date to Mch. 20.” If you find an alteration as to the .date of maturity, that is, as to those words “ Mch. 20,” and not as to the date of the note itself, the “ January 29th,” then draw your pen through the first clause in the brackets, containing the words “ its original date of execution from January 19, 1903, to January 29,1903.” If you find an alteration in both of those particulars, then you can take this paper as it stands without making any changes in it; and in either of those events, you will sign your names to it. But let me impress this upon you, that by adding this paper and having it sent out with you, the court is not intimating any opinion that you ought so to find. The question is submitted to you, and this paper is added simply for the purpose of enabling you to render such a verdict as will put the court in a position to pronounce the proper judgment upon the facts as you may find them. If you find that there was no alteration, then you will simply find the amount that I have stated for the plaintiff and disregard this paper altogether.</p> <p>. Verdict and judgment for plaintiff for $690.37. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings in evidence, quoting the bill of exceptions; (3, 5, 6) portions of charge as above, quoting them; (4) that the court erred in not instructing the jury that if they found the note in suit to have been altered they-must, in determining whether the alteration was made before or after the indorsement of the note by the defendant, start with the presumption that the note was altered before the appellant put his name to it.</p>

<p>Appeal, No. 15, Oct. T., 1904, by plaintiff, from decree of C. P. Delaware Co., Dec. T., 1902, No. 242, dismissing the bill in case of The Keystone State Tele-, phone and Telegraph Company v. Ridley Park Borough, George C. Hetzel et al.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior C. >urt.</p> <p>Error assigned among others was in dismissing the bill.</p>