Volume 29 — Pennsylvania Superior Court Reports

<p>Appeal, No. 248, Oct. T., 1903, by plaintiff, -from decree of C. P. Schuylkill Go., May T., 1903, No. 2, oil bill in equity in case of Adam Andreas v. A. H. Steigerwalt.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree enjoining the defendant from interfering with the alley, or with the free and uninterrupted use thereof.</p>

Appeal, No. 46, Oct. T., 1904, by defendant, from order of C. P. Montgomery Co., Oct. T., 1903, No. 60, making absolute rule for judgment for want of a sufficient affidavit of defense in case of the Borough of West Conshohocken v. Conshohocken Electric Light & Power Company. Assumpsit to recover a license tax on an electric light pole.

Appeal, No. 148, Oct. T., 1904, by defendant, from judgment of C. P. Northampton Co., June T., 1904, No. 10, for plaintiff on case stated in suit of Carbon Spring Water Ice Company v. Byron J. S. Hawk and Henry F. Laros, Executors of Henry E. Hawk, deceased. Before Case stated on an agreement in writing. Before Schuyler, P. J. The case stated was as follows : 1.

Appeal, No. 152, Oct. T., 1904, by-defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1908, No. 4056, on verdict for plaintiff in case of Richard Brodhead v. The Pullman Automatic Ventilator Company. Assumpsit for commissions. Before Martin, P. J. The facts appear by the opinion of the Superior Court. At the trial Samuel H. Jacobson was asked this question : “ Q. What became of this order ? Did you take that order ?

Appeal, No. 138, Oct. T., 1904, by William D. Neilson, from decree of O. C. Phila. Co., Jan. T., 1883, No. 335, dismissing exceptions to adjudication in Estate of Daniel H. Rockhill, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. • Errors assigned were in dismissing exceptions to adjudication.

<p>Taxation — Appeal from, assessment — Review—Certiorari—Evidence.</p> <p>On an appeal by a county from the decision of the common pleas setting aside an assessment and valuation for tax purposes, the appellate court cannot limit itself to an inspection of the record as on certiorari, but must review the judicial action of the common pleas on the evidence disclosed by the record. While, by reason of the lower court's local knowledge of the subject of taxation, and the advantages it has in determining the credibility of witnesses, its findings of facts should have great weight with the appellate court, they are not conclusive.</p> <p>Taxation — Charities—Exemption—Constitutional law.</p> <p>Where an association or institution seeks exemption from taxation on the ground that it is a charity, it must show in fact that it is a purely public charity; it is not sufficient that the object of the association as set forth in its charter is to establish and maintain such institution. If it ceases to do that on- which it depends for exemption, the" property at once becomes subject to taxation, and this is true whether the doing of that which deprives it of the character of a purely public charity, is in excess of the charter powers or not.</p> <p>Where an association incorporated for a purely charitable purpose issues stock upon which no dividends can be declared, the mere fact that ownership of stock gives the shareholders the right-to vote for trustees does not deprive the association from exemption from taxation which otherwise it would be entitled to; nor does the fact that the executive board of the association may grant shareholders as a special concession a reduction of admission fees to its lectures, deprive it of such exemption; nor does the right to accumulate a surplus, if in fact no attempt has been made to create a surplus.</p> <p>Where an association chartered for a purely charitable purpose uses a portion of its property in business for a profit, it is liable to be taxed on such property although the profits thus made are devoted to the charitable work of the association.</p> <p>An association was chartered for “the advancement of literary and scientific attainment among the people; the study of the Bible, of the science and art of teaching; and the promotion of general culture in the interest of Christianity.” It issued stock, some of which it applied to the acquire-, ment of mountain land upon which various buildings were erected, including an inn, a recitation hall, an auditorium and cottages for lodging purposes. Students were accommodated at the inn and at cottages at less than regular charges. The public were accommodated at the inn at the rates usually charged by similar resorts in the locality. The cottages were rented to the public at reasonable rents. The profits made were applied to the general charitable work of the association. Held, that so much of the property of the association as was used for making a profit was liable to taxation.</p>

<p>Appeal, No. 6, March T., 1905, by defendant, from judgment of C. P. Lycoming Co., Sept. T.,' 1902, No. 423, on verdict for- plaintiff in case of Lawrence D. Stopper v. Lewis Kant-ner.</p> <p>Trespass for conversion of trade fixtures. Before Hart, P. J..</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>When the plaintiff was on the stand he was asked this question :</p> <p>Mr. Metzger: Q. Now, Mr. Stopper, state whether or not you had any arrangement made for the use of this property prior to April 1, 1902?</p> <p>Whereupon the counsel for the defendant objected to the witness answering said question, as follows :</p> <p>Mr. Hicks : Objected to because it is not rebuttal of any evidence offered on behalf of the defendant, .and second, because it would, in chief, appear irrelevant and immaterial.</p> <p>The matter was then proceeded in as follows :</p> <p>Mr. Metzger : Counsel for plaintiff proposes to prove by witness on the stand that prior to April 1, lie had made arrangements with one William Hartman under which he proposed to continue the business in which he was then engaged; that by reason of the refusal of defendant to deliver him the goods, he was unable to carry out the arrangement with Mr. Hartman, and that on April 16, 1902, when he received notice from Mr. Kantner to remove his property by reason of the fact before mentioned, Mr. Stopper could not take possession of this property without great loss to him — as to him the property had largely decreased in value; further, that there is a very limited market for such articles in this vicinity. All for the purpose of rebuttal, there being evidence in the case offered by Mr. Kantner, that he had offered and was still ready to return these goods, that evidence being offered presumably in mitigation of damages.</p> <p>Mr. flicks: Counsel for defendant object to the offer, first: Because the evidence of the written notice of April 16, to Mr. Stopper froni Mr. Kantner to come and take away his property was put in evidence in chief by the plaintiff himself and he cannot now rebut the effect of that evidence whatever it may be. Second, because the evidence is immaterial and irrelevant, the measure of damages being the market value of this property and not the special or peculiar value it may have had for a few days to Mr. Stopper.</p> <p>The Court: We will overrule the objections and admit the evidence. To which ruling counsel for defendant excepts, and at his request bill of exceptions sealed. [1]'</p> <p>The court charged, inter alia, as follows :</p> <p>[Of course, under the law, the relation of landlord and tenant, where the tenant is a manufacturer or is carrying on a trade which requires the use of machinery applicable to that trade, which is necessary to be placed in a building leased for the purpose of carrying on that trade, there is a rule which permits such person to attach that machinery to the freehold and to remove it any time during the term of his lease. If there was nothing else in this case which would extend the period of time beyond the expiration of this lease, there would be force in the contention of the defendant that the plaintiff would not have the right to claim this property after the expiration of the lease. But we say to you that this notice of March 28, 1902, extended to the plaintiff the privilege of removing whatever personal property upon the premises belonged to him up to and including April 3, 1902.</p> <p>The question in this case therefore is: Was this plaintiff interfered with in the exercise of that right ? Did this defendant prevent this plaintiff from removing his goods from the premises at a time prior to April 8, 1902 ?] £3]</p> <p>[Now it appears that on the morning of April 1, Mr. Stopper’s brother, accompanied by some other person, I think a Mr. Lynch, went there for the purpose of taking away the rest of his goods, and that they found the" door locked and a person inside who announced to them that they must not open the door, and after endeavoring to get in by persuasion (I don’t know whether there was any evidence of force being used) this person said if they attempted to get in they might get a ball through them, or words to that effect. This was reported to Mr. Stopper and he then went to Mr. Kantner, the defendant, and related to him the circumstances in the presence of his brother. Mr. Kantner admitted that he had given instructions to keep people out of there and said to him in substance that he would not let him have these goods until he removed them himself and would then set them out and inform him of the situation. That is Mr. Kantner’s own statement in reference to the matter as I recall it.</p> <p>Now, if you believe that testimony, that on the morning of April 1, Mr. Stopper’s employees went there for the purpose of removing these goods, that they were refused entrance to that building in the manner which has been described, and that such refusal on the part of Mr. Kantner’s employee was acquiesced in by Mr. Kantner, the defendant, we say to you that this would be such a demand on the part of the plaintiff in this case and refusal on the part of the defendant as would entitle the plaintiff to maintain this action.] [4]</p> <p>[If you believe Mr. Stopper was deprived of the privilege of taking those goods by this defendant at a time prior to April 3, he is entitled to recover whatever they were reasonably worth at that time; and it is your duty to take into consideration all the evidence bearing upon that question in determining the amount which you award to him if you find for the plaintiff.] [5]</p> <p>Defendant presented these points:</p> <p>Such of said trade fixtures as the plaintiff failed to remove from the demised premises within the term of his lease, became thereupon so affixed to the freehold that the plaintiff cannot maintain this action of trover and conversion for the same. Answer: This would be the law had the defendant not extended the time for removal by his notice of March 28, 1902, wherein he gave to the plaintiff until April 3, 1902, to remove his property from the leased premises. For this reason this request is refused.] [6]</p> <p>3. That such of said fixtures as the defendant in the written notice of March 28, 1902, notified the plaintiff not to remove from the demised premises, became, upon the expiration of the plaintiff’s lease, which expired with March 31, 1902, so affixed to the freehold, that the plaintiff cannot maintain this action for the same. Answer; This point is refused. [7]</p> <p>4. That such of said fixtures as by the written notice of March 28, 1902, the defendant gave to the plaintiff permission to remove from the demised premises on or before April 3, 1902, were by the terms of said permission to be so removed upon the express condition that such removal would be made without injury to the freehold. Answer; The notice is in these words: “You are further notified that any property or fixtures which you own or desire to remove from the premises must be removed from the premises on or before April 3,1902, and that it must be removed without in any manner damaging the freehold or any other personal property or fixtures to which it might be attached.” And to this is added, “ All of the property that belongs to you you may remove on or before April 3, 1902; provided such removal maybe made without injury to the freehold, the fixtures or other personal property belonging to me.” We cannot say. that this was such'an express condition alleged in this request and we therefore cannot affirm the' same. [8]</p> <p>5. If the jury believe from the evidence that in attempting, to remove the said fixtures or any of them the plaintiff, or anyone acting therein for him, was injuring the freehold, that is, doing injury to the building or other real estate of the defendant, then the defendant had the right, at the expiration of March 31, 1902, being then in possession of the freehold, to forbid and prevent the plaintiff from continuing such removal of said fixtures. Answer; This point is refused. [9]</p> <p>6. If the jury believe from the evidence that by reason of injury being done to the real estate of the defendant, he rightfully forbade and prevented the plaintiff from removing any of said fixtures from said demised premises after the expiration of March 31, 1902, then all of the said fixtures thereupon became so annexed to the freehold that the plaintiff cannot main- • tain this action, and the verdict of the jury should in that event be for the defendant. Answer: This point is refused. [10]</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (3-10) above instructions, quoting them.</p>

Appeal, No. 2, March T., 1905, by plaintiff, from decree of C. P. Cumberland Co., Oct. T., 1902, No. 1, on bill in equity in case of Charles L. Lehman v. David Lehman. Bill in equity for partition of real estate. The facts are stated in the opinion of the Superior Court. Error assigned was decree including in the distribution all of the children of David Lehman.

<p>Appeal, No. 183, April T., 1905, by defendant, from order of C. P. No. 3, Allegheny Co., May T., 1904, No. 487, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Farmers Deposit National Bank of Pittsburg v. Western Pennsylvania Fuel Company.</p> <p>Assumpsit for rent.</p> <p>Defendant set up in its affidavit of defense, that plaintiff is a national bank, chartered under the laws of Congress, for the purpose of carrying on a banking business in the city of Pitts-burg, Pennsylvania; that it purchased a large tract of land on the corner of Fifth avenue and Wood street, two of the main thoroughfares of said city, and had erected thereon a magnificent office building containing twenty-two stories; that only a small part of said building was used by the bank for the purpose of carrying on its business, to-wit: about one-fourth of the first floor of said building and about one eighty-eighth part of the floor space contained in it. Further, that the part of said building in which the offices rented to the said fuel company was located was not only not used by the bank, but was erected at a later time than the main building and is wholly unnecessary for its business, being simply erected for the purpose of adding additional rooms to the bank, and all of said addition is leased by the bank to other parties.</p> <p>The affidavit further denied that said building was erected for the bona fide purpose of providing a place of business for said bank, but alleged that it was used as an unlawful means for the bank to invest its surplus and to engage, in a private speculation in real estate.</p> <p>Error assigned was in making absolute rule for judgment.</p>

<p>Waters — Diversion of waters — Trespass.</p> <p>Where a husband constructs a ditch on land, the title to which is subsequently acquired by his wife, and diverts a stream in such a way that in times of freshet, water is cast in large quantities upon land which the stream did not previously touch, and the wife after acquiring title does nothing to remedy the trouble, both husband and wife can be held liable in an action-of trespass for the injuries sustained by the neighboring owner.</p>

<p>Insurance — Fire insurance — Renewal of policy — Nonoccupancy—Agent— Sole ownership.</p> <p>Where an insured under a fire insurance policy requests the agent of the insurance company to issue a new policy on the ground of a change of ownership, and the agent instead of issuing a new policy, indorses a new contract of insurance on the old policy, naming the new beneficiary individually, and not as trustee, as he had been informed and notified by the parties, the company cannot in an action upon the policy defend, either because of a nonoccupaney of the insured premises which had occurred prior to the new contract, or because the new beneficiary was not the sole owner but merely a trustee.</p> <p>When, at the time of issuing an insurance policy, the company knows that one of the conditions is inconsistent with the facts, and the insured had been guilty of no fraud, the company is estopped from setting up the breach of said condition. The same rule prevails when the insurance company ought to have known the facts constituting the alleged breach.</p> <p>Where the insured acts in good faith and fully and fairly discloses all information desired by the company, the contract shall be liberally construed in aid of the indemnity which was in contemplation of the parties who made it.</p>

<p>Landlord and tenant — Wrongful eviction — Trespass.</p> <p>Where an employee occupies a room belonging to his employer as part of the consideration for his services or wages, he has no right after his discharge from his employment to continue the occupancy of the room; but if he does so, and his employer wantonly stops up the chimney, and forces smoke and gases back into the room thereby injuring the occupant’s wife, the latter will be entitled to recover damages for the injuries sustained.</p> <p>In such a case, while the occupant is not strictly and legally speaking a tenant holding over, the court cannot be charged with error in saying to the jury, “we must assume that the plaintiff’s husband was under a tenancy which had terminated.”</p>

Appeal, No. 109, April T., 1905, by plaintiff, from judgment of C. P. No., 1, Allegheny Co., Sept. T., 1902, No. 775, on verdict for plaintiff in case of Kirk Q. Bigbam, executor and trustee of Maria L. Bigbam, deceased, v. The Pittsburg Construction Company and The West Side Belt Railroad Company. Trespass to recover damages for injuries to land. Before Brown, J. The facts appear by the opinion of the Superior Court, and by the charge of the court below.

Appeal, No. 122, April T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1902, No. 637, on verdict for plaintiff in case of Isabella L. Morgan v. The Borough of Duquesne. Trespass to recover damages to real estate. Before Frazer, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed. Errors assigned were as follows: 1.

<p>Appeal, No. 139, April T., 1905, by Matthew Kelley, a minor, by his guardian and next friend, Minnie F. Gleason, from decree of O. C. Allegheny Co., April T., 1904, No. 74, dismissing exceptions to adjudication in Estate of John J. Kelley, deceased.</p> <p>Exceptions to adjudication.</p> <p>Hawkins, P. J., found the facts to be as follows:</p> <p>The question in this case is, whether or not the disposition made in the first clause of decedent’s will is void, because :</p> <p>1. The names of the beneficiaries are not in writing; and</p> <p>2. So far as relates to charities as having been made within thirty days of testator’s death.</p> <p>The facts are these :</p> <p>Mr. Kelley executed a will in 1891, in which, among other provisions, is this :</p> <p>“ First. I desire to state that I am insured in the Catholic Mutual Benefit Association in the sum of two thousand ($2,000) dollars, made payable to Lew F. Holtzman, who shall distribute the same according to directions given to him by myself during my lifetime.”</p> <p>And this in the present will, which was executed two days before testator’s death :</p> <p>“ First. I desire to state that I am insured in the Catholic Mutual Benefit Association for the sum of two thousand ($2,000) dollars, made payable to L. F. Holtzman, who is authorized to distribute the same according to directions given him by me.”.</p> <p>Mr. Holtzman was made executor and took out letters. At the audit, when he was asked what his instructions were in respect of this fund, said that as.they were of a confidential character he must decline to answer, unless so ordered by the court, and when counsel stated he had reason to believe the beneficiaries were charities and within the statute, the witness was ordered to answer; whereupon he stated that the original instructions were that $1,000 were to be used for the education of his illegitimate son, $500 for masses and $500 for St. Francis Hospital, but that when the last will was made his sister Mary was substituted for his son as legatee, the other legacies to stand. The instructions to Mr. Holtzman were verbal. The premiums on the policy were paid by Mr. Kelley. Mr. Holtzman claims no interest in the fund.</p> <p>The court struck the fund from the account.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

Appeal, No. 2, April T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1901, No. 415, on verdict for plaintiff in case of Allegheny Valley Camp Meeting Association v. William J. Kountz, executor and trustee of Peninah W. Kountz, deceased. Assumpsit to recover assessments on lots in a camp meeting association. Before Rodgers, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 60, Jan. T., 1905, by plaintiff, from judgment of O. P. Lackawanna Co., March T., 1903, No. 559, on verdict for defendant in case of Olyphant Borough to use of the Alcatraz Paving Co. v. Julius Egreski (Sarah P. O’Donnell Intervening). Scire facias sur municipal lien. Before Edwards, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiffs appealed.

<p>Appeal, No. 2, March T., 1905, by defendant, from judgment of C. P. Sullivan Co., Dec. T., 1902, No. 2, on case stated in suit of R. W. Bennett v. Sullivan County.</p> <p>Case stated to determine the liability of counties for bounties under the Act of July 9, 1897, P. L. 233.</p> <p>From the record it appeared that the plaintiff killed a wild cat in the county, and claimed the sum of $2.00 as a bounty.</p> <p>The court in an opinion by Dunham^ P. J., entered judgment for the plaintiff.</p> <p>Error assigned was the judgment of the court.</p>

<p>Insolvency — State bankruptcy act — Debtor’s exemption — Act of June 4, 1901, P. L. 404.</p> <p>Under the Act of June 4, 1901, P. L. 404, insolvent debtors are entitled to the benefit of the exemption act, and this benefit they cannot waive. There is nothing in the thirty-third section of the act relating to creditors who do not choose to participate in the distribution of the assigned estate, which will permit such creditors to levy upon exempted property, if it appears that the waiver under which they claim is executed subsequently to the Act óf June 4,1901, P. L. 404.</p> <p>Bankrupt law — Insolvency—Farmers.</p> <p>Wage earners and persons engaged chiefly in farming or the tillage of the soil, cannot be. subjected to the provisions -of the federal bankrupt act of July 1, 1898, without their consent, and as to such persons the Pennsylvania Act of June 4, 1901, P. L. 404, is in force.</p>

<p>Justice of the peace — Appeals—Costs—Northumberland county.</p> <p>In Northumberland county a justice of the peace is entitled at least to the costs of appeal, and is not bound to give a transcript of appeal until such costs are paid. If demand is made for more than the appellant believes to be legally due, it is his duty to tender payment of as much as he admits to be chargeable, and in any event it is his duty to pay or tender payment of the costs of appeal.</p>

<p>Appeal, No. 186, April T., 1905, by defendant, from judgment of C. P. Washington Co., May T., 1903, No. 155, on verdict for plaintiff in case of Matthew B. Brown v. Pittsburg, Carnegie & Western Railroad Company.</p> <p>Assumpsit for breach, of an agreement to construct a farm crossing. Before McIlvaine, P. J.</p> <p>The court charged in part as follows :</p> <p>[“ And as we said in your hearing in our talk with counsel in discussing the law points, our impression is that the true measure of damages is the difference in value of that farm with a crossing constructed according as the covenant required it to be constructed and the way that it had been constructed. If this crossing that is now constructed is not safe and convenient, — how does it affect the value of the farm to have the kind of a crossing that they have there now and what is described in this deed here ‘ a safe and convenient farm crossing.”’] [1]</p> <p>Defendant presented this point:</p> <p>8. If the jury find from the evidence that there has been a breach of contract upon the part of the defendant in not constructing a safe and convenient farm crossing for the plaintiff, and if they further find that there is a public road leading through the plaintiff’s farm, crossing the railroad at or near the plaintiff’s farmhouse and barn, then the jury in estimating the damages which the plaintiff will sustain by reason of the failure 'of the defendant to construct a farm crossing should take into consideration the public crossing on the public road at or near the plaintiff’s buildings, and in considering what effect that public crossing will have upon the measure of damages which the plaintiff will sustain, they must assume that the railroad company will put the crossing of the public road in a reasonably safe and convenient condition as they are in law bound to do. Answer: The jury must assume that the railroad company in maintaining this crossing of the public road will keep it in that reasonably safe and convenient condition as they are in law bound to do, but in considering whether the public crossing affords the plaintiff a safe and convenient farm crossing and to what extent he is damaged if it is not safe and convenient it must be taken as it now exists and existed at the time this suit was brought. [3]</p> <p>Verdict and judgment for plaintiff for $650. Defendant appealed.</p> <p>Errors assigned were (1, 3) above instructions, quoting them.</p>

<p>Appeal, No. 124, April T.,’ 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 76, on verdict for plaintiff in ease of Margaret Greeney v. Pennsylvania Water Company.</p> <p>Trespass to recover damages for injuries to land. Before Evans, J.</p> <p>The facts are stated in tbe opinion of the Superior Court.</p> <p>The court charged in part as follows :</p> <p>[But in addition to the damages by way of compensation, if you find that this trespass was a deliberate and willful act upon the part of this defendant company, done with a wanton disregard of the rights of the plaintiff, continued in with full knowledge on their part as to what they were doing, then in addition to the damages by way of compensation, making her whole for the injury which she suffered, you can give punitive damages, damages for the purpose of punishing .the defendant for his willful and deliberate trespass on its part; and it is given for the purpose of deterring the defendant from committing this trespass, if you find that there is one there. That is the purpose; not for compensation, but to punish the defendant for its willful, deliberate act. If you find that this act has been such a wanton act on its part, willful and deliberate and continued for a long period of time, you would be justified in giving punitive damages in addition to the damages by way of compensation.] [1]</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned were (1) above instructions, quoting it; (2) i'n not holding upon the pleadings and facts in this case, that under the law, the extent of plaintiff’s recovery would be limited to compensation for the injuries sustained; (3) in not limiting or defining the amount of vindictive damages which might be assessed against the defendant.</p>

<p>Appeal, No. 238, April T., 1905, by-plaintiff, from judgment of C. P. Washington Co., May T., 1904, No. 184, on verdict for defendant in case of Money weight Scale Company v. S. L. Woodward.</p> <p>Assumpsit on a contract of bailment. Before Taylor, J.</p> <p>At the trial it appeared that the contract on which the suit was based was as follows :</p> <p>. “ Notice : — No Scales Shipped on Trial.</p> <p>“ Glass Platform L. M. P.</p> <p>“ To The Moneyweight Scale Co.</p> <p>“47 State Street, Chicago, III. P. O. Address Aug. 13, 1903.</p> <p>“ Please ship to me addressed as follows: S. L. Woodward, P. O. Lock No. 4, as soon as possible, F. O. B. Dayton, Ohio, one No. 63 Computing Scale, which I hereby agree to lease from you for the term of 2 months, and promise to pay therefor, as rent, the sum of 75.00 net in 60 days Dollars in monthly installments of cash Dollars each, in advance; the first installment of rent to be paid upon the execution of this agreement.</p> <p>“ It is understood that should I elect to pay the balance of such rent within thirty days from this date I shall be allowed a discount of ten per cent on such balance.</p> <p>“ I further agree to execute and deliver to you notes evidencing my indebtedness for the installments of rent hereafter to be paid.. I also agree that upon the expiration of said term I will surrender to you said scale in good condition, ordinary wear and tear excepted.</p> <p>“ It is the express condition of the above offer that I am to have the privilege, after the expiration of said term and the surrender of said scale to you, of purchasing said scale upon the payment to you of one dollar.</p> <p>“ It is hereby expressly understood and agreed that, in default of the payment of the rent for any month, or upon the issuing of any attachment, execution, distress for rent, or like process against me, or in the event of my becoming insolvent, the full amount of rent for the balance of said term shall become due and payable, and you may immediately take possession of said scale with or without process of law and retain as liquidated damages all payments made on this lease.</p> <p>“ This Lease Covers all Agreements Between the Parties Hereto.</p> <p>“ Accepted:</p> <p>“ Moneyweight Scale Co.</p> <p>“S. L. Woodward.</p> <p>“ By W. D. McBride</p> <p>“ Agent.</p> <p>“Will pay 75.00 for No. 63 with swivel base 60 days from arrival of scale.”</p> <p>The court ruled that the above contract was a bailment, and refused to admit evidence to alter or change the writing, but permitted the plaintiff to introduce evidence to show that the scales were not such accurate and correct scales as would make them a standard scales in the market. [1, 2]</p> <p>The evidence for the plaintiff showed that the defendant accepted the scales, and used them in his business, without making any complaint or seeking to rescind the contract.</p> <p>The court admitted under objection and exception various advertisement and circulars issued by the plaintiff. [3-6]</p> <p>The court refused binding-instructions for plaintiff. [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-6) rulings on evidence, quoting the bill of exceptions ; (7) above instruction, quoting it.</p>

<p>Appeal, No. 137, April T., 1905, by-defendant, from order of C. P. No. 1, Allegheny Co., March T., 1904, No. 991, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Molaka to use of Fredericka Klein v. American Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The averments of the statement and affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>The court made absolute rule for judgment for want a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 216, April T., 1905, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1904, No. 161, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Peoples Savings Bank v. The Monongahela River Consolidated Coal & Coke Company. Assumpsit on coupons of corporate bonds.

<p>Boroughs — Natural gas companies — Police power — Ordinance—Regulation of use of streets.</p> <p>A municipality has the right in the exercise of its police power, and it is its duty to supervise and control the introduction and maintenance, upon and under the surface of the streets, of the various appliances which sub-serve the several urban uses, such as telegraph and telephone lines, water and gas pipe, street railways and sewers, to which the highway of a city or borough may lawfully be subjected. In the exercise of this power it may ordain reasonable regulations, not inconsistent with the laws of the commonwealth, for the good order and government of the municipality, the welfare of citizens, the protection of property and the conflicting rights and interests of the various individuals or corporations enjoying franchises to use the public streets.</p> <p>The authorities of a borough, incorporated under the general laws, are by the Act of April 3, 1851, P. L. 320, as amended by the Acts of May 22, 1883, P. L. 39, and June 4, 1897, P. L. 121, vested with authority to make such regulations as they shall deem necessary for the good order and government of the borough, to lay out and ordain streets, to prohibit the erection or construction of any building or work, excavation or other obstruction to the convenient use thereof, to regulate roads, streets and common sewers, and to ordain penalties for the violation of such regulations and collect the same.</p> <p>A borough ordinance is not unreasonable which prohibits any person from making excavations in a highway until he has obtained a permit from the borough authorities, and imposes no unreasonable conditions as to the manner in which the excavations shall be made and the street repaired, and imposes no charge for such permit not grossly disproportionate to the expense of issuing it and the probable expense of proper inspection and police surveillance, as to warrant the court in declaring it unreasonable.</p> <p>The Act of May 29, 1885, P. L. 29, relating to the incorporation of natural gas companies does not exempt such companies from the reasonable police regulations of boroughs as to the use of borough streets. If such a company feels aggrieved at the action of a borough, its remedy is by petition to the court of common pleas under sec. 12 of the act of 1885, to secure a modification of the regulation.</p> <p>Corporations — Charters—Construction of charter.</p> <p>An ambiguity in a charter of a corporation must operate against the corporation and in favor of the public.</p> <p>The rule “expressio unius est exclusio alterius” is not applicable to the construction of charters.</p>

<p>Appeal, No. 230, April T., 1905, by plaintiff, from judgment of C. P. Cambria Co., Sept. T., 1903, No. 467, for .defendant on case stated in suit of E. L. Miller v. Cambria County.</p> <p>Case stated to determine liability for coroner’s fees. Before O’Connor, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered' judgment for defendant on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Contract — Building contract — Debtor and creditor.</p> <p>Where a person holds property which was turned over to him to be applied in discharge of another's debt, the thing which was the consideration of the promise passes to the beneficiary; and an action will lie in his favor against the promisor. In such a case the beneficiary is not a stranger to the consideration, and the promisor is in the attitude of a trustee as to him.</p> <p>Where an'owner of land enters into an agreement with a general contractor by which the latter is to erect on the land a number of houses, but is not to furnish the plumbing work, and the owner enters into a special contract with a plumber for the plumbing work, but subsequently conveys the property to a third person under an agreement by which the grantee assumes liability for all debts incurred by the owner in the operation, the plumber may maintain an action against the grantee for the debt incurred by the owner to the plumber.</p>

<p>Appeal, No. 204, April T., 1905, by defendant, from judgment of C. P. Armstrong Co., March T., 1899, No. 79, on verdict for plaintiff in case of Phoebe R. E. E. Linton et al. to use of Margaret A. Brown, Administratrix of Robert L. Brown, deceased, v. Armstrong Water Company.</p> <p>Trespass to recover injuries to land, caused by laying a water pipe. White, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdiet and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 198, April T., 1905,.by plaintiff, from order of C. P. Lawrence Co.,- March T., 1904, No. 42, striking off mechanic’s lien in case of James Orr v; Norman N. Rogers.</p> <p>Rule to strike off mechanic’s lien. Before Wallace, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order making absolute.rule to strike off mechanic’s lien.</p>

<p>Road law — Terminus—Departure from petition — Report of viewers — Setting aside report.</p> <p>Where the report of road viewers locates the terminus of a road 142 feet from the terminus designated in the petition, the report will be set aside.</p>

<p>Appeal, No. 227, April T., 1905, by plaintiff, from' judgment of C. P. Lawrence Co., Sept. T., 1902, No. 38, for defendant on case stated in suit of Wayne Township Poor Overseers v. Ellwood City Borough Poor Overseers.</p> <p>Case stated to determine the liability to support paupers.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p>Appeal, No. 224, April T., 1905, by defendant, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1901, No. 230, on verdict for plaintiff in case of Charles U. Splane v. Charlotte W. Splane. Before Rice, P.' J., Beaver, Orlady, Porter, Morrison and Henderson, JJ. Affirmed.</p> <p>Assumpsit on a foreign judgment. Before McClung, J.</p> <p>The facts appear, by the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $481.45. Defendant appealed.</p> <p>Errors assigned were (1) in sustaining a demurrer to a plea that the plaintiff and defendant were man and wife; and (2) in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 231, by plaintiff, from judgment of O. P. No. 2, Allegheny Co., April T., 1902, No. 612, on verdict for defendant non obstante veredicto in case of the Union Trust Company of Pittsburg, administrator of Johanna Montgomery, deceased, v. William H. Cain and Mary Eliza Cain, his wife, with notice to James D. Hailman and W. A. Dickey, terre-tenants.</p> <p>Scire facias sur mortgage.</p> <p>Rule for judgment for defendant non obstante veredicto.</p> <p>Rodgers, J., filed the following opinion:</p> <p>Johanna Montgomery was formerly the owner of the mortgaged premises described in the scire facias. On June 6,1892, she executed and delivered to John McCrickart a power of attorney which is recorded in the recorder’s office of Allegheny county in power of attorney book, vol. 26, page 506, wherein said McCrickart is authorized to sell her lands and mortgages and to collect interest on the same; that in pursuance of said power of attorney said McCrickart on November 28,1892, conveyed the mortgaged premises to Mary E. Cain, and received as part of the purchase money a bond and mortgage; that said Mary E. Cain, on March 1, 1893, conveyed said premises to the terre-tenants joined as defendants with Cain herein, and on March 3, 1894, said McCrickart as agent aforesaid sold and delivered said bond and mortgage to the trustees of Pittsburg Lodge, No. 336, I. O. O. F. McCrickart had in his possession the bond and mortgage above referred to from November 28, 1892, to March 3, 1894, during which period Mary E. Cain paid in cash to McCrickart as agent the interest on said mortgage, and said lodge had said bond and mortgage in its possession from March 3, 1894, to January 28, 1902, and until May 28, 1901, interest was paid upon said mortgage according to its terms and conditions.</p> <p>On September 18,1901, the terre-tenants joined as defendants herein received notice that the plaintiff was the owner of said bond and mortgage. Whereupon, James D. Hailman, one of the terre-tenants, paid in cash to plaintiff the interest mentioned in said mortgage from May 28,1901, to January 28,1902, and $700, being the full amount of the principal due thereon.</p> <p>As early as June, 1894, Johanna Montgomery knew that McCrickart, as her agent, had sold and delivered said bond and mortgage to said lodge. On July 23, 1894, she revoked the power of attorney above mentioned and at the same time prosecuted McCrickart for embezzling her funds, and on October 15, 1894, she instituted a suit in equity to compel said lodge to reconvey her said bond and mortgage and the interest paid to it thereon, yet neither said Johanna Montgomery nor her administrator ever notified these terre-tenants that she claimed to be entitled to the possession of said bond and mortgage or any interest therein, nor did either of- the terre-tenants ever receive any notice or intimation of any nature from any one of her said claim until the notice of September 18,1901. The defense was substantially one of ratification of the acts of her attorney in fact and estoppel, the question being as to whether the facts as above set forth constituted such laches as to prevent a recovery, and upon this question the court directed a verdict, reserving the question of law as to whether there was any evidence entitling the plaintiff to recover. It is contended by the defendants that the power of attorney given by Johanna Montgomery to J. E. McCrickart, dated June 26,1892, authorized the assignment of the mortgage sued upon at least so far as these defendants are concerned. The decision of the court in the equity suit against the lodge is clearly right, on the ground that the assignment of the mortgages to the trustee of the lodge was without consideration and fraudulent. The facts in that case establish beyond a doubt that the assignment was for no other purpose than to secure MeCrickart’s personal indebtedness to the lodge, of which he was a financial man and one of the trustees, and knowledge of fraud would be imputed to the others according to the well-settled doctrine that knowledge of an officer of a corporation in a particular transaction is knowledge of - the principal. The -trial judge held that the power of attorney only authorized the sale .of mortgages of which “ she was now seized or possessed.” If we assume, in interpreting the power of attorney, that its terms were insufficient to permit McCrickart to assign the mortgages, and that in the sales of her realty he could receive only cash, then admittedly plaintiff’s testator in July, 1894, knew of the assignment of this mortgage to the lodge, and she was called upon at that time under the law to make an election. 1. She could have rescinded the sale wherein this mortgage was given in part payment of the purchase money, on the ground that the agent had exceeded his authority in selling for anything but cash. 2. She could have made these defendants. parties to the record. 8. She could have given notice to them of her claim of ownership. 4. She could have looked solely to the lodge for payment received by them and a reassignment of the mortgages.</p> <p>The last mentioned course plaintiff elected to pursue, praying that the lodge be compelled to reassign the mortgages and pay the money received, and a decree filed directing the reassignment of this mortgage to bear interest from May 28,1900, and of the payment to her of moneys received by the lodge. Now, disregarding that election she seeks to recover this same interest paid the lodge and which the lodge was directed to pay her, and while the decree fixed interest to be paid from May 28, 1900, by the lodge, in this action plaintiff seeks to recover interest from November 28, 1892. It would seem to us that the plaintiff is clearly estopped from maintaining this action, as she undoubedly ratified the act of her agent after she acquired full knowledge of the matter in July, 1894. She prosecuted him for embezzlement, revoked the power of attorney of record, attempted to make a settlement with him as she testified in the equity proceedings hereinbefore referred to, the same being admitted in evidence in this case by filing said bill in equity, claiming money paid the lodge and not notifying the mortgagor of her claim- by her silence in standing by and permitting payments to be made according to the terms of the mortgage for a long period after she had knowledge thereof, and although she complained to Cain’s agent of the acts of her agent and stated that she would prosecute him for embezzlement she did not repudiate the acts of her agent to Cain’s agent who was at that time paying interest on this mortgage to the lodge. She received a number of mortgages from the sale of this particular tract of land, some of which were satisfied in 1893. These assignments were never repudiated and attorneys, investigating the titles subsequently, and observing upon the record that most of these mortgages were satisfied and one in particular assigned by her, it seems to us, were-justified in assuming'that she ratified her agent’s acts. On July 26, 1894, J. E. Mc-Crickart, plaintiff’s agent, wrote to J. D. Hailman, one of the defendants, who then owned the property covered by this mortgage and the three other several mortgages sued upon at Nos. 613, 614 and 616, April Term, 1902, which were tried with the case now being considered, and directed said Hail-man to pay interest on three mortgages to the lodge and on the fourth mortgage to Mrs. Montgomery. This Hailman did not until said mortgage was, after nearly ten years, assigned of record by Mrs. Montgomery. No notice was ever given to the terre-tenants or the mortgagor by Mrs. Montgomery repudiating the act of her agent in the taking of such mortgage or the disposition thereof.</p> <p>In addition to the above reasons her tardy action in pursuing redress, the bill in equity being filed October 6, 1894, and not being brought to trial until October 31, 1900, would tend to estop her, as well as the fact that she issued execution and attachment on the decree of court of equity proceedings above recited.</p> <p>Plaintiff, having appointed her agent, McCriekart, to sell real estate must ratify all his acts in this transaction or none. Having elected to ratify his authority to receive mortgages, interest or cash, she must ratify all that he did in the transaction. She cannot hold the fruits of this transaction and repudiate the fraud of her agent, as far as innocent third parties are concerned. As she had the right to disaffirm the acts of her agent she must do it promptly, and if it is not done within a reasonable time ratification will he presumed. Judgment is therefore entered in favor of defendants and against plaintiff, non obstante veredicto, the same order being made as to the cases tried herewith between the same parties as Nos. 613, 614 and 615 April Term, 1902.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 232, by plaintiff, from judgment of C. P. Nó. 2, Allegheny Co., April T., 1902, No. 618, on verdict for defendant non obstante veredicto in case of the Union Trust Company of Pittsburg, administrator of Johanna Montgomery, deceased, v. William H. Cain and Mary Eliza Cain, his wife, with notice to D. C. Kissel and C. T. Mahaffey, terre-tenants. Scire facias sur mortgage.

Appeal, No. 233, April T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1902, No. 614, on verdict for defendant non obstante veredicto in case of the Union Trust Company of Pittsburg, administrator of Johanna Montgomery, deceased, v. William H. Cain and Mary Eliza Cain, his wife, with notice to C. A. Tillman, terre-tenant.

<p>Appeal, No. 234, April T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1902, No. 615, on verdict for defendant non obstante veredicto in case of the Union Trust Company of Pittsburg, administrator of Johanna Montgomery, deceased, v. William H. Cain and Mary Eliza Cain, his wife, with notice to J. A. Miller, terre-tenant.</p>

<p>Appeal, No. 247, April T., 1905, by defendant, from order of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 1790, making absolute rule for judgment for want of a sufficient affidavit of defense in case of International Savings and Trust Company, Receiver of the Duquesne Mutual Casualty and Indemnity Company, v. H. Kleber & Bros., Limited.</p> <p>Assumpsit to recover assessments.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>' Appeals — Assignments of error — Road law — Exceptions.</p> <p>On an appeal in a road case an assignment of error that “the court erred in dismissing the exceptions and confirming the report of viewers,” violates rule 14 which requires that “each error relied on must be assigned particularly and by itself.” In such a case the appeal will be quashed.</p> <p>Road law — Continuance—Term to term.</p> <p>Where the court in a road case has the report of viewers and exceptions in its hands, it is not bound to decide at the next term of court, nor is it necessary while the case is under consideration to mark it continued at each term.</p>

<p>Attachment execution — Promissory notes — Assignment.</p> <p>In an action upon a judgment note, in the name of the payee, to the use of another, it appeared that the defendant bought a property, paying for it partly in cash, partly by a note to the vendor, and partly by the note in suit, payable to the legal plaintiff. Subsequently a firm, of which the use plaintiff was a member, secured a judgment against the Vendor, and issued an attachment execution against the defendant. In the attachment proceedings the firm undertook to show that the note given to the legal plaintiff was in fact the property of the vendor. The proceedings, however, were discontinued. Subsequently the legal plaintiff assigned the note to the use plaintiff, and suit was brought thereon against the defendant, the maker. Held, that the attachment proceedings were not a bar to the suit, and that the attempt of the attaching firm to show that the vendor was the owner of the note, did not affect the legal plaintiff’s title, or estop the use plaintiff from acquiring that title.</p>

<p>Appeal, No. 136, April T., 1905, by M. E. Brindle, from order of C. P. Erie Co., May T., 1901, No. 68, dismissing exceptions to auditor’s report in case of Benjamin Whitman v. Joseph P. O’Brien.</p> <p>Exceptions to report of L. E. Torry, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 161, April T., 1905, by defendant, from judgment of C. P. Venango Co., Nov. T., 1901, No. 1, on verdict for plaintiff in case of Rouseville Borough School District v. Cornplanter Township School District.</p> <p>Assumpsit on a written agreement between two school districts. Before Thomas, P. J., specially presiding.</p> <p>From the record it appeared that the contract was as follows :</p> <p>“ This agreement made and entered into this 19th day of June A. d. 1900, by and between the School Board of Corn-planter Township, Pa., and the School Board of the Borough of Rouseville, Pa.,</p> <p>“ Witnesseth, That for a consideration hereinafter mentioned the School Board of the Borough of Rouseville, have agreed and hereby do agree to the following settlement. The ■ School Board of the Borough of Rouseville are to have the school building and real estate upon which it stands, together with all its contents for which the Rouseville School Board are to pay the sum of <|300.00 Three Hundred dollars in cash to the Cornplanter Township School Board, and the School Board of Cornplanter Township is to have all the resources excepting the contents of the store-room.</p> <p>“We further agree that Cornplanter Township will divide the State Appropriation pro rata if the appropriation is for the year of June the first, nineteen hundred to June the first, nineteen hundred and one.</p> <p>“ Cornplanter Township School Board.</p> <p>“ Peter Berry, President.</p> <p>“ Louis Schwartzcop, Sect’y.</p> <p>“ Rouseville School Board.</p> <p>“ W. C. Tyler, President.</p> <p>“ Geo. A. Lyeord, Sect’y.”</p> <p>The court admitted oral evidence to explain the subject-matter of the contract.</p> <p>The court charged in part as follows:</p> <p>[This is an action brought by the school district of Rouse-ville against the school district of Cornplanter Township, this county, for the purpose of recovering what they allege is due to them upon a certain contract entered into between said districts in the year 1900, probably upon June 21st, of that year.] [9]</p> <p>Ordinarily a contract which has been reduced to writing is binding upon the parties and they cannot change its terms. It is not only good law, but it is good policy for the people not to talk away that which they have taken the pains to reduce to writing. This contract with reference to the state appropriation on its face shows that the township shall only become responsible to pay to the borough the proportion of the state appropriation in case they receive the appropriation for the year from June, 1900, to June, 1901, and there is no allegation that they did receive that appropriation. Therefore, on the face of the contract, the case is with the defendants, but it is proper in cases where the parties at the time of making the contract agreed as to what the particular terms of the contract should apply to; that is, what was the subject-matter of the contract, it is proper to offer testimony as to what that agreement was, and that is what has been done here. That is, the plaintiff alleges that the term “ all resources ” in this contract was to apply to and it was agreed that it should apply to the resources contained in the auditor’s report. The defendants deny this and say those resources had been considered iii arriving át a basis when they first started out at fixing a valuation. What are the facts ?' Did they agree that the resources which were included in this contract should refer to the resources mentioned in the auditor’s report? If they did and that was their agreement at the time, they are bound by • that agreement. If they did not the defendants are entitled to all the resources of the township, unless you find for reasons hereafter assigned that they should not do so.</p> <p>We have permitted them to offer testimony as to what the parties agreed this term “ state appropriation for one year 1900 to 1901 ” referred to. The plaintiffs allege it referred to the appropriation mentioned in the Woodring letter and that they were informed that that referred to that year and was for that year and no other year, and in pursuance of that they signed the contract. What are the facts ? Did the parties agree at the time ? Did their minds meet in an agreement that this last clause in the contract was the appropriation mentioned in the Woodring letter? The defendants deny this. The plaintiffs claim it was. The defendants say it provided for a contingency in case the next year’s appropriation should be paid to them. In determining whether the parties agreed upon what the term “ resources ” should apply to, and what the term “ state appropriation ” should apply to, the burden is on the plaintiffs to satisfy you that they agreed according as the plaintiffs contend they agreed. If they do not so satisfy you by the weight of the evidence, your verdict should be for the defendant in this case. [10]</p> <p>Defendant presented these points :</p> <p>1. That under the pleadings and evidence in the case the plaintiff is not entitled to recover and the verdict should be for the defendant. Answer; This point is refused. We say it is a question for you to determine and not for the court.] [1]</p> <p>2. The construction of the written agreement executed between the school district plaintiff and defendant is for the court. Answer : This point is refused; under the evidence in this case we will say it is for you. [2]</p> <p>3. The evidence on the part of the plaintiff, seeking not only to overcome the written agreement entered into by the two school districts, but to nullify the deliberate action of the plaintiff corporation, ratifying said agreement, is wholly insufficient to warrant the submission thereof to the jury. Answer ; This point is refused. [3]</p> <p>5. The unsupported evidence offered by the plaintiff in this case consisting of the testimony merely of the individual directors of the plaintiff school district, and opposed and contradicted by the individuals composing the school board of thu defendant district, as well as by the writing itself and the official action of the respective boards of directors in the adoption and ratification thereof, is not sufficient to justify the reformation of the written agreement or the submission of the evidence to the jury. Answer: This point is refused; we' say it is for you to determine, but that the burden is upon the plaintiff as we have indicated and to the extent we have indicated in our general charge. [4]</p> <p>5. That the testimony of the persons constituting the school board of the borough of Rouseville, as to what took place at the time of, and immediately preceding, the execution of the agreement between the two districts, in relation to the state appropriation, is in direct conflict with provisions of the agreement in relation thereto and is insufficient and incompetent to change, modify or abrogate the express provisions of the contract, in respect to the disposition of the resources or assets therein mentioned, including the state appropriation. An-• swer; This point is refused; it is for you. [5]</p> <p>6. To overcome the written agreement in question, adopted and approved by the respective boards of directors specially convened for the purpose of making an adjustment and division of all the property and assets of the old district, including the borough, by parole evidence, the burden of proof is upon the plaintiff, and such evidence must be clear, precise and indubitable. Answer : If for any reason you find there was any fraud or mistake in the execution or in procuring the execution of this instrument, we say the plaintiff is obliged to show this by evidence that is clear, precise and indubitable, subject to the explanation we have made as to what those terms mean. [6]</p> <p>7. The proportion of the state appropriation for the year ending June 1, 1900, which the plaintiff was entitled to receive, in a division and adjustment of the property and assets of the old school district, is prescribed by the act of assembly of July 15, 1897, and the plaintiff, having failed to give any evidence from which the plaintiff’s share of said appropriation could be determined, is not entitled to recover in this action, any part thereof. Answer: For the purpose of this case that point is refused ; there is some evidence as to the pro rata of each district. [7]</p>

<p>Fixtures — Trade fixtures — Ice plant — Evidence—Question for jury — Replevin.</p> <p>In an action of replevin to recover a steam engine, dynamo and pump, it appeared that the defendant in the replevin owned land on which was erected an ice plant, which he operated. Under a judgment against the defendant in the replevin the land and plant were sold, and a deed made to plaintiff therefor. Shortly after the execution of the deed, the defendant removed from the plant the property which was the subject of the replevin. Over two years prior to the sale, the defendant secured a charter for a corporation, and made a proposition to sell the ice plant to the corporation, which the latter accepted and took possession of the property, and continued the ice business. The transaction, however, was not consummated at the time of the execution of the deed, to plaintiff, and the charter of the corporation was not recorded until after the writ of replevin had been issued. There was evidence that the chattels in question had been purchased and installed by the corporation, while in possession of the premises. There was also evidence that they had been put into the plant to supply the place of similar-machinery owned by defendant, which had been worn out. It appeared that the articles in question were attached to the freehold connected with the other machinery, and were absolutely necessary to the operation of the plant. Held,, that it was for the jury to determine whether the chattels were the property of the corporation placed in the plant as trade fixtures, and that a verdict and judgment for the plaintiff should be sustained.</p>

<p>Sale — Delivery of possession — Interpleader.</p> <p>In an interpleader it appeared that the defendant at one time owned the property in dispute, which was the furniture of a hotel of which he was the licensee. He sold the hotel lease, the license and the furniture, agreeing to take from the purchaser part cash and part notes. The purchaser not being able to raise all the cash secured a part of it from another to whom he gave a bill of sale of the furniture. This person sold the furniture to the plaintiff in the interpleader. Through all these transactions the furniture remained in the hotel, and the defendant knew of them all. He approved in writing of the bill of sale to the person who advanced the money, and knew that the property was to be left in the hotel, and there was evidence that he declared that the furniture was no longer liable for the debt represented by the notes, and that he would look to the proceeds of the business for the payment of the notes. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Negligence — Proximate and remote cause — Presumption. ^</p> <p>The general -rule is that a man is answerable for the consequences of a fault which are natural and probable, and might therefore be foreseen by ordinary forecast, but an individual is not presumed to contemplate the coincidence of events having no probable or natural connection in the mind, and which cannot by ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which he is engaged.</p> <p>Where there has intervened between the defendant's act and the injury, an independent illegal act of a third person, or one induced by irresponsible agencies or trespassers, which produced the injury, and without which it would not have happened, and such act is held to be the approximate cause of the injury, the defendant is not liable.</p> <p>Where the effect of the evidence is merely to establish that there are two independent causes, either of which may have been the proximate cause of the injury, the burden is upon the plaintiff to show that the cause for which the defendant is responsible, was the one which produced the injury for which recovery is sought.</p> <p>The question of negligence is one of law for the court, only where the facts are such that all responsible minds must draw the same conclusions from them, but when the conclusion follows as a matter of law, that the plaintiff’s right to recover is not made out upon any view that can be properly taken of the facts the evidence tends to establish, it is the duty of the court to withdraw the case from the consideration of the jury and direct a verdict.</p> <p>Negligence — Fall of fence — Proximate and remote cause — Evidence—Question for court.</p> <p>In an action against the owner of a fence to recover damages for personal injuries caused by the fall of the fence, binding instructions for the defendant should be given to the jury where the uneontradicted evidence showed that the fall of the fence had been caused by a large crowd of trespassers climbing upon it, although warned to keep off, and that the fence although nine years old and with some of its parts rotten, did not give way under the pressure for over ten minutes. In such a case it is immaterial that on other occasions crowds had gathered on the fence, and that the owner had knowledge of this.</p>

<p>Appeal, No. 142, April T., 1905, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1902, No. 54, on verdict for defendants in case of R. M. Moore to use of Safe Deposit & Title Guaranty Company, Assignee, v. M. S. Adams et al., executors of M. S. Adams, deceased.</p> <p>Assumpsit to recover money alleged to be due on a promissory note. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned are quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 19, April T., 1905, by defendants, from decree of C. P. Beaver Co., June T., 1903, No. 7, on bill in equity in case of Eliza J. Winans and Isaac S. Winans v. Robert A. Whiteside.</p> <p>Bill in equity for specific performance. Before Wilson, J.</p> <p>From the record it appeared that the contract sought to be specifically performed was as follows :</p> <p>“ The said Isaac S. Winans, and E. J., his wife, for the consideration hereinafter mentioned, doth themselves, their heirs, executors and administrators, covenant, promise, grant and agree to and with the said Robert A. Whiteside, his heirs and assigns, by these presents, and they, the said parties of the first part, shall and will on or before September 16, 1902, at the proper costs and charges of the said first parties, their heirs and assigns, by deed of general warranty, will well and sufficiently grant, convey and assure unto the said Robert A. Whiteside, heirs and assigns, in fee simple, clear of all encumbrances, all those certain lots or pieces of lots or any and all lots belonging to the said first parties, lying within the following boundaries, to wit: on the north by land of the Atlantic Tube Company, on the east by the right of way of the P. Ft. W. & C. Railway, on the south by lands now or late of John Edwards, on the west by Third avenue, being lots number 757, 758, 759, 760, also all right, title, and interest in Railroad street from Forty-third street to land of Jno. Edwards and Forty-fourth street from- Third avenue to Railroad street; Forty-third street from Third avenue to Railroad street, together with all and singular the buildings, improvements and other premises hereby demised with the appurtenances. In consideration whereof the said Robert A. Whiteside, himself, his heirs, executors, and administrators, doth covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, by these presents, that they, the said Robert A. Whiteside, heirs, executors, and administrators, or some of them shall and will well and truly pay, or cause to be paid unto the said parties of the first part, their executors and assigns, the sum of $50.00 per lot.”</p> <p>The court found the facts to be as follows :</p> <p>1. The agreement entered into between the plaintiff and the defendants, August 16, 1902, represents in full the entire agreement between the parties, except the statement by the plaintiff’s agent at that time that a warranty deed would not be required; and the amended bill not asking for a specific performance of the contract, as it appears in the written agreement, but permits a modification of the same to either a special warranty or quitclaim deed.</p> <p>2. The Standard Scale and Supply Company has located upon these lots in connection with others purchased from the heirs of A. J. Boyle by the plaintiff, and at the time this contract was entered into all the heirs of A. J. Boyle residing in this community had executed similar contracts with the plaintiff for the sale of such lots and interests in the lots as was vested in them.</p> <p>3. That the plaintiff, Robert A. Whiteside, party of the second part to said contract, has complied with all the terms of his contract excepting the demanding of the deed of general warranty, which it appears from the testimony was not to be asked, although it appears in the contract; and that defendants refused to sign a deed of general warranty, or any other kind of a deed, or comply in any manner with the written contract entered into with the plaintiff by them.</p> <p>4. That the failure on the part of the defendants to comply with their contract will work irreparable loss and injury to the plaintiff, as the Standard Scale and Supply Company have located and erected their factory upon the land in question, relying upon the contract in evidence.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The plaintiff is entitled to a specific performance of the contract as modified by plaintiff’s amended bill.</p> <p>2. The plaintiff, having demanded a deed of general warranty, contrary to the agreement made by his agent with the defendants, should pay the costs in this ease.</p> <p>8. The defendants should execute and deliver to the plaintiff a deed of special warranty upon the payment of the consideration money therein named, with interest.</p> <p>Error assigned was the decree awarding specific performance and dismissing exceptions to adjudication.</p>

<p>Appeal, No. 127, April T., 1905, by the city of Oil City, from order of G. P. Venango Co., Aug. T., 1903, No. 60, distributing proceeds of sheriff’s sale in case of Oil City Building & Loan Assn. v. Elizabeth Shanfelter. Before Beater, Orlady, Porter, Morrison and Henderson, JJ. Affirmed.</p> <p>Rule to show cause why order should not be made by the sheriff to apply proceeds of sale to municipal liens. Before Criswell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>. Error assigned was the order of the court.</p>

<p>Appeals — Auditor’s report — Exceptions.</p> <p>Where one fails to file exceptions to the report of an auditor impeaching the correctness of his findings, or alleging the existence of facts which the evidence should have induced him to find, he cannot except to the report on these grounds on an appeal.</p> <p>Husband and wife — Murder of wife — Distribution of estate — Decedents’ estates.</p> <p>The fact that a husband has murdered his wife will not prevent him from inheriting her estate under the intestate laws.</p> <p>Auditors — Findings of fact — Survivorship of husband or wife.</p> <p>The fact that a husband survived the death of his wife, found by an auditor and approved by the court below, will not be disturbed except for manifest error.</p>

<p>Appeal, No. 1, March T., 1904, by Mary J. Gallagher* from decree of O. C. Lycoming Co., dismissing exceptions to auditor’s report in Estate of Ann E. Stewart, deceased.</p> <p>Exceptions to report of H. W. Whitehead, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 126, April T., 1905, by defendants, from judgment of C. P. Lawrence Co., March T., 1904, No. 93, on case stated in suit of J. N. Euwer’s Sons’ Sons v. Josiah Greer and John F. Greer, trading as J. Greer & Son.</p> <p>Case stated to determine liability on a contract.</p> <p>The case stated was as follows :</p> <p>And now, April 5, 1904, it is hereby agreed by and between the parties to the above suit that the following case be stated for the opinion of the court.</p> <p>If the court be of the opinion that the contract attached to and made a part of plaintiff’s affidavit of claim, and marked Exhibit 44 A ” be a contract of lease or bailment, then judgment to be entered for the plaintiffs generally for the goods and chattels described in the writ, but if the court be of the opinion that the above-mentioned contract is a contract of conditional sale, then judgment to be entered for the defendants for the •sum of $59.25. The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein.</p> <p>E. M. Underwood.</p> <p>Attorney for Plaintiffs.</p> <p>E. F. G. Harper,</p> <p>Attorney for Defendants.</p> <p>“ EXHIBIT 4 A ’ ATTACHED TO PLAINTIFFS’ STATEMENT.</p> <p>44 This agreement, made June 23,1903, between J. N. Euwer’s Sons’ Sons of New Castle, Pennsylvania, hereinafter called the bailors, of the first part, and J. P. Miles, Elm street, 7th ward, hereinafter called the bailee, of the second part.</p> <p>“ Witnesseth, that the said bailors in consideration of the agreements and stipulations hereinafter mentioned to be kept and performed by the bailee, has this day rented to the said bailee the articles mentioned and set out in the schedule upon the back of this agreement, and hereby made a part hereof, and valued at $250 more or less, for a period of six months from the date hereof for the sum of $250 payable as follows: $20.00, the receipt of which is hereby acknowledged, and the balance to be paid promptly at the office of the said bailor in New Castle, Pennsylvania, within' six months in suitable payments per month, but not less than $15.00 per month during the continuance of this agreement.</p> <p>“ The said bailee covenants and agrees to punctually pay the said rent as above specified to the said bailors on the several days and times as the same shall become due ; to take good care of the said property; that he will not attempt to sell or rent the property, or assign this agreement, or in any way part with the possession of the said property, or any part thereof from the said premises where the same is delivered to said bailee; that he will at any time, when so required, exhibit the said property to the said bailors or their agents; and will give immediate notice to said bailors of any distress, levy or execution issued upon or against said property.</p> <p>“ It is distinctly understood and agreed between the parties hereto that this is a contract of renting only, and not a sale, conditional or otherwise.</p> <p>“ And in case default be made in any of the payments as above agreed upon, or in casé of the breach of any of the covenants aforesaid, or in case a petition in bankruptcy be filed by or against the said bailee, the said bailee agrees to forthwith deliver said property to said bailors, or will permit the said bailors or their agents to enter into or upon any premises where any of said property may be, and without let or hindrance take away the same, using such force as may be necessary in the removal thereof, hereby releasing all errors and right of action which said bailee may have for such forcible taking. It is further agreed that all money paid or payable to the said bailors prior to said repossession shall be retained or recoverable by the said bailors as rent or hire for the use of said goods without abatement or reduction.</p> <p>‘ “ And the said bailee further agrees that upon default being made in any of the payments of rent as aforesaid for ten days after the same shall be due and payable, the whole of the said rent unpaid may at the option of the said bailors become due and payable forthwith, and the said bailee hereby empowers any attorney of any court of record within the United States to appear for him and confess judgment against him for the amount 'of the rent unpaid, waiving stay of execution, right of appeal, error, inquisition and all exemption laws, with ten per cent added as attorney fees for collection.</p> <p>“ It is further agreed by the said bailee that he will at the expiration of the time for which the goods are rented, return the same to the bailors, in good order and condition, and that upon the return of the goods as aforesaid, the payment of all the money due and payable under this agreement, and the performance of all the covenants herein contained, this agreement shall cease and determine.</p> <p>“ It is also agreed that if at any time during the term of this bailment, or at the end thereof, the said bailee desires to purchase the said goods upon the payment of such sum as would amount, with the previous payment of rent, to the sum of §260 shall have the right to dó so, and shall receive a bill of sale for the same.</p> <p>“ Witness our hands and seals the date first above written.</p> <p>“ Interest at six per cent will be added to this bill. If paid within ninety days, a discount will be given.</p> <p>“ J. P. Miles, [l. s.]</p> <p>“ Witness :</p> <p>“H. I. Watson.”</p> <p>The court, in an opinion by Walleb, P. J., entered judgment for defendant on case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Building and loan associations — Dues and premiums — Mortgage debt— Appropriation of payments.</p> <p>Where the by-laws of a building and loan association provide that payments upon account of dues and premiums shall be credited on the stock, and the pass book of a member shows credits of weekly payments and profits to stock, the. member cannot, after having permitted such payments to be so appropriated and credited, claim that he had elected to have such payments appropriated to his mortgage indebtedness, and that such election on his part had been assented to by the association.</p> <p>While possibly an appropriation of dues and premiums to a mortgage indebtedness might be sustained under some circumstances, those circumstances should be such as to leave no doubt whatever as to the assent of both the association and the member to the agreement.</p>

<p>Appeal, No. 243, April T., 1905, by defendant, from judgment of Q. S. Butler Co., June T., 1904, No. 29, on verdict of guilty in case of Commonwealth v. Lizzie Nailor.</p> <p>Indictment for abortión. Before Galbreath, P. J.</p> <p>The defendant filed a motion to quash alleging the following reasons:</p> <p>1. Because the bill of indictment is bad for duplicity, is vague and uncertain, in that it charges the defendant with the unlawful use of a certain instrument with intent to procure a miscarriage, also with unlawfully aiding and assisting and using the same on the body of said Annie Phillips.</p> <p>2. Because the bill of indictment is not charged in the language of the act of assembly, in that it does not charge in the first count that Annie Phillips was quick with the child.</p> <p>3. Because there is no information under oath upon which to base the second count in bill of indictment for attempting to procure a miscarriage.</p> <p>4. Because the first count charges two separate and distinct crimes, to-wit: That the defendant did unlawfully use a certain instrument on the body of Annie Phillips, she then and there being pregnant, with intent to procure a miscarriage resulting in death, and second, that defendant did unlawfully use a certain instrument on the body of one Annie Phillips with intent to procure a miscarriage resulting in death and she then and there being supposed and believed to be pregnant.</p> <p>5. Because the second count is uncertain and invalid, not being charged in the language of the act of assembly in that it charges that Annie Phillips was supposed and believed to be pregnant, and it does not charge that she was pregnant.</p> <p>The court overruled the motion to quash.</p> <p>At the trial the court refused binding instructions for defendant.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) refusing to quash the indictment; (4) in refusing binding instructions for defendant; (6) in overruling defendant’s motion to arrest the judgment.</p>

<p>Criminal law — Indictment—Distinct counts — Practice, Q. S.</p> <p>When an indictment contains more than one count each count forms a distinct indictment though the counts are signed collectively by the district attorney. If each count is in form a complete indictment, signed by the district attorney, the instrument is in law an indictment containing two counts.</p> <p>Where each of two counts is in form a complete indictment signed by the district attorney, and the two papers are fastened together with brass rivets under one cover, they may be considered as a single indictment containing two counts.</p> <p>When a written instrument is contained on two or more sheets, it may be necessary that these should be fastened together to show their relation. The manner in which this is done is not material; it is sufficient that they are so attached to each other as to show that they are parts of one instrument.</p> <p>Criminal law — Indictment—Dates—Perjury.</p> <p>The date in an indictment charging an offense must not be uncertain, and two dates must not be laid for an offense completed on a single day.</p> <p>Where an indictment for perjury charges that a coroner’s inquest was held on a day named at which the defendant was sworn and examined, and that an adjournment of the inquest was held on a later day mentioned when the defendant was further examined, and that the defendant “then and there” falsely swore and testified, the indictment is fatally defective.</p> <p>Criminal law — Indictment—Statutory offense — Practice, Q. S. — Perjury.</p> <p>When a statute describes, defines or creates an offense, and fixes a penalty, the indictment must charge the offense, substantially in the statutory language.</p> <p>An indictment for perjury which, after negativing the truth of the defendant’s testimony avers that she well knew that it was “false, perjured and corrupt, contrary to the form of the act of the general assembly,” but fails to aver that the defendant in the manner and form aforesaid, then and there willfully and corruptly did commit willful and corrupt perjury, is fatally defective, inasmuch as the charge is no offense, either at common law, or under the Act of May 31, 1860, sec. 14, P. L. 382.</p> <p>Criminal law — Indictment—Date—Perjury.</p> <p>An indictment for perjury charging the date of the offense as prioi to the finding of the indictment, subsequent to the statute describing the offense, and within the period of the statute of limitations, is well laid, although the date alleged is subsequent to the complaint and hearing on which the count is based.</p> <p>Criminal law — Perjury—Trial—A bortion.</p> <p>A defendant may be tried for perjury pending another indictment for abortion, where it appears that the false testimony was given at a coroner’s inquest, but that the proceedings for perjury were not commenced by the commitment of the defendant by the coroner, on a verdict charging her with having caused the death under investigation, but were commenced some days afterwards as a totally distinct proceeding.</p> <p> Issue on coroner’s inquest. </p> <p>On a coroner’s inquest the issue is whether the death was caused by unawful means.</p> <p>Criminal law — Perjury—Coroner’s inquest — Materiality of testimony.</p> <p>It is the duty of a coroner to hold an inquest super visum corporis when there is reasonable ground to believe that death was caused by unlawful violence or other undue means. Should the evidence before him fail to show such cause of death, his jurisdiction in the premises is not thereby ousted, yet, upon a charge of perjury on the part of a witness, the materiality of the testimony which is the subject of the charge remains to be considered. To sustain the charge of perjury, the testimony must be not only false," but material to the issue.</p> <p>When it is shown at a coroner’s inquest that death was not due to unlawful means, evidence relating to some act which in no way contributed to the death is not material to the inquiry, and testimony on such a point lacks the materiality which is an essential ingredient to perjury.</p>

<p>Criminal Taw-Sentence — County jail — Penitentiary—Obtaining property by false pretense.</p> <p>Upon a conviction for obtaining property by false pretense the statutory punishment is simple imprisonment, and therefore the legal place of confinement is the county jail.</p> <p>In such a case if the court of quarter sessions sentences the prisoner to confinement in the penitentiary, the judgment will be reversed on the appeal of the commonwealth and the record remitted with direction “to proceed to sentence defendant anew in due order and according to law.”</p>

<p>Appeals — Criminal law — Separate judgments.</p> <p>If one appeal is taken from two judgments of conviction on two indictments charging separate and distinct offenses, and no election is made to have the appeal confined to one of the cases, the appeal will be quashed.</p> <p>Appeals — Paper-books—Omission of docket entries.</p> <p>Omission to print docket entries in the paper-book of the appellant, is a serious disregard of the rule of court.</p>

<p>Appeal, No. 48, Oct. T., 1905, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 3723, refusing injunction in case of Joseph Wheeler Currey v. E. Y. McCurdy.</p> <p>Bill in equity for discovery and an injunction.</p> <p>Beitler, J., filed the following opinion:</p> <p>Injunction refused. It is true that the bill seeks discovery as to the terms of the lease and the ownership of the premises. The latter the records would have given the plaintiff; the former he might have secured by application to the lessor, or at least there is no allegation that he was refused the information. The mere fact that he makes discovery one of the prayers of this bill gives this court of equity no right to interfere with the levy for the rent. In that case, the tenant’s rights can all be protected by a replevin. If there is no rent due, that will be the issue in replevin. Unless there is no rent due, this court has no right to grant the injunction prayed for.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 91, Oct. T.,- 1905, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1904, No. 2283, discharging rule for judgment in case of William II. Battersby v. Schuylkill Tribe No. 202, Improved Order of Red Men, Abraham D. Kohler, Chief of Records.</p> <p>Assumpsit for funeral expenses.</p> <p>Plaintiff’s statement of claim was as follows:</p> <p>The plaintiff is engaged in the county of Philadelphia as an undertaker and as such buried one George Young who at the time of his death was a member in good standing in the defendant association, the said Schuylkill Tribe No. 202, Improved Order of Red Men of Pennsylvania, and as such, in accordance with the provision of article XIII, sec. 1, of the by-laws of said defendant association, which reads as follows: “ In the event of the great spirit calling from these hunting grounds to those of the hereafter, a member of this tribe who has been a member one great sun, and at the time of his death entitled to seven suns benefits, there shall be appropriated the sum of seventy-five fathoms ($75) to assist in defraying the funeral expenses, which said sum shall be paid by the Sachem to the wife or nearest relative, provided the brother has not designated some other person to receive it.” Seventy-five dollars was appropriated by the said defendant association to assist in defraying the funeral expenses of the said George Young, deceased.</p> <p>In order, however, to assure the use of the said money for such funeral expenses, the said association, defendant, provides as follows in section 6 of said by-laws, to wit: “ Funeral benefits shall only be appropriated for the purpose of defraying the expense of burial and if the elective Chiefs of the Tribe are satisfied that the wampum would be diverted from its legitimate purposes then they shall have full power to see that the expenses are paid, provided that the same does not exceed the sum allowed under the law, and if there should be a sum left, after the expenses are paid, then the balance shall be returned to the belt.”</p> <p>The plaintiff avers that he caused to be served a notice on the said defendant association not to pay the said $75.00 to the widow of the said decedent, she having declared that she would not use the same or any part thereof to defray the said funeral expenses. Nevertheless the said defendant did pay the said $75.00 to the said widow, and the said widow has refused, and does refuse, to devote the same or any part thereof towards defraying the said funeral expenses.</p> <p>The plaintiff therefore claims that the defendant association having disregarded its own rules and regulations, and in defiance of the said notice of the plaintiff, having refused to pay the money to the plaintiff, the said defendant is liable to pay the sum of $75.00 to the plaintiff, being the full amount of plaintiff’s bill, and therefore brings this suit to recover the sum of 175.00 with interest.</p> <p>Defendant filed an affidavit of defense averring that the plaintiff was a mere volunteer. The court discharged the rule for judgment.</p> <p>jError assigned was the order of the court.</p>

<p>Taxation — Mercantile taxes — Manufacturers—Stores and warehouses — Acts of April 22, 1846, P. L: 486, February 27,1868, P. L. 43 and May 2, 1899, P. L. 184.</p> <p>In a suit against a manufacturer of cigars and smoking tobacco it appeared that the defendant had a six-story building in Philadelphia, the cellar of which was used for preparing tobacco, the front of the first floor for the office, and the rear for stamping, shipping, and the second story for stock. The third and fourth were used by the cigar makers, the fifth by the strippers, and the sixth by the packers. He had no counters or show cases for the display of goods. The sales made directly to customers who came to the factory were comparatively few. The rest were made upon orders mailed to the Philadelphia office by his customers, or by his traveling salesmen. He also had a cigar factory at Souderton, Montgomery county, to which, he sent from his Philadelphia factory all the leaf tobacco that it used. He made no sales there except occasionally a box of cigars to a neighbor. The books of the entire business were kept at the Philadelphia factory, and all mail orders were received and the filling of them was directed from there. Some of the cigars manufactured at Souderton were sent from there direct to his customers upon the orders received by him at the Philadelphia place of business. The rest were brought to the Philadelphia factory, and were mingled and sold with the cigars made at that factory. The defendants sold no cigars or smoking tobacco, and carried on no business at either of these places, except as stated. Held, that the maintenance of a place in the Philadelphia factory for the purpose of selling the goods manufactured there as well as those of the same kind manufactured at the Souderton factory exclusively, and carrying on the business in the manner described, were such compliance with the provisions of the act of 1846 as exempted the defendant from liability under that act to a mercantile license tax upon the sales made at that place.</p>

<p>Appeal, No. 151, April T., 1905, by</p> <p>defendant, from judgment of C. P. Venango Co., Jan. T., 1902, No. 10, on verdict for plaintiff in case of Harry Baker v. David M. Moore.</p> <p>Trespass to recover damages for malicious prosecution. Before Criswell, P. J.</p> <p>From the record it appeared that on the night of August 23, 1901, defendant’s house was broken into by a burglar whom the defendant identified as the plaintiff. The plaintiff was arrested on a warrant sworn out by the chief of police on information prepared by the city solicitor of Franklin. The plaintiff was held for court. At the trial defendant testified that Baker was the burglar whom he had seen in his house. Ten or twelve witnesses called by Baker testified that the latter was participating in a coon hunt some twelve or thirteen miles from Franklin during the night when the burglary was committed. Baker was acquitted.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned (1-9) are set forth at length in the opinion of the Superior Court.</p>

<p>Appeal, No. 16, Jan. T., 1905, by defendant, from judgment of Q. S. Carbon Co., Oct. T., 1904, No. 33, on verdict for plaintiff in case of Commonwealth v. Louise Pearl.</p> <p>Indictment for fornication and bastardy. Before Heydt, P. J.</p> <p>At the trial the following offer was made :</p> <p>Dr. Lacier recalled (page 22).</p> <p>Defense proposes showing by the doctor that the defendant was delirious during his illness, indicating his serious condition.</p> <p>Objected to as immaterial and irrelevant.</p> <p>Objection sustained. Exception for defendant. [1]</p> <p>Defense offers in evidence an affidavit taken by Mary Horn-yak, the prosecutrix in this case, before a justice of the peace of Northampton county, for the purpose of fixing the time that she claims was the period of conception.</p> <p>Commonwealth objects as it is written in the English language, and is not competent, the defendant does not know anything about it, and it is absolutely immaterial, irrelevant and incompetent.</p> <p>Objection sustained. “ Exhibit A ” refused as evidence. [2]</p> <p>The court charged in part as follows :</p> <p>[Some contradictions of the defense’s witnesses have been commented on by counsel. It is a rule of law that where a witness is contradicted in a material part of the case, that then he is not to be believed as to the rest of his testimony and it may be thrown out.] [3]</p> <p>Verdict of guilty upon which judgment of sentence was ' passed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (3) portion of charge as above, quoting it.</p>

<p>Appeal, No. 167, Oct. T., 1905, by-defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1904, No. 388, on verdict for plaintiff in case of Michael Hennessey v. Baugh and Sons Company.</p> <p>Trespass for injuries to a wagon and horse. Before Carr, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $220.56. Defendant appealed.</p> <p>Errors assigned were (1) that the court erred in refusing binding instructions for defendant; (2) that the verdict was excessive.</p>

<p>Road law — Paving—Grading—Ordinance—Deviation from line of street.</p> <p>A city passed an ordinance locating the center line of a street. Subsequently an abutting owner with others filed a petition for the grading of the street. In laying out and grading the street there was, in. one portion of it, a deviation of from two to ten feet from the line designated in the ordinance authorizing the opening of the street. In proceedings for damages for the grading the petitioning owner filed exceptions, setting up the deviation. While these proceedings were pending a majority of the owners petitioned for the paving of the street and a paving ordinance was passed. The city officials, however, hesitated to proceed because of the mistake in the grading, and thereupon several of the property owners signed an agreement waiving any objection they had by reason of the mistake. Subsequently the owner who had filed exceptions in the grading proceedings withdrew these exceptions, and the city thereupon proceeded to pave the street according to its graded lines. It did not clearly appear that any portion of the pavement was outside the lines of the street as originally ordained. Subsequently proceedings were instituted to assess damages for the paving. Held, that the owner who had withdrawn her exceptions to the grading proceedings, if not estopped from objecting to assessments for the paving because of the deviation, was not entitled to binding instructions that she was not liable for any portion of the assessment.</p>

<p>Petition to impose penalty on appeal for delay.</p> <p>The petition averred that the appeal was taken June 1,1905, and non-prossed for want of service of paper-books on October 2, 1905.</p> <p>The petition continued as follows:</p> <p>1 ‘ The said appellee believes that the said appeal was taken solely for the purpose of delay. The said appeal was taken immediately after the exception of the accountant in the court below was dismissed. The single assignment of error simply says that the court below erred in allowing the claim and there is no indication of record as to the nature of any error committed by the court below in the premises. No paper-books have, apparently, been prepared and none have certainly been filed or served. In the long interval that has elapsed from the time of the taking of the appeal to the time of the entering of the non-pros, no notification of any kind has been given to the appellee or his counsel of any intention to abandon the appeal.”</p> <p>No answer was filed to the petition.</p>

<p>Petition to impose penalty on appeal for delay.</p> <p>The petition averred that the appeal was taken on March 14, 1905, and non-prossed on October 2, 1905 for want of service of paper-book. The petition further alleged that the appellee believes that the appeal was taken solely for delay. It also averred that no paper-books had been filed and served, and that no notification of any kind had been given to the appellee or his counsel of any intention to abandon the appeal. The petition also charged that the assignments of error were frivolous.</p> <p>An answer was filed denying that the appeal was taken solely for delay, or that the assignments of error were frivolous.</p> <p>The answer averred that the paper-books had been prepared, but not filed or served. Some other matters were stated in the answer as an excuse for abandoning the appeal, but their relevancy did not appear.</p>

<p>Trade-marks — Constitutional law — Acts of May 21, 1895, P. L. 95, May 2, 1901, P. L. 114, and April 3, 1903, P. L. 134. Union labels.</p> <p>The Act of May 21, 1895, P. L. 95, as amended by the Acts of May 2, 1901, P. L. 114, and April 3, 1903, P. L. 134, and entitled “An Act to provide for the adoption of trade-marks, labels, symbols, or private stamps by an incorporated or unincorporated association or union of workingmen, and to regulate the same,” and providing that a violation of the act shall be a misdemeanor, is not defective in title and unconstitutional.</p> <p>Criminal law — Jurisdiction—Locus in quo — Trade-marks—Cigar labels.</p> <p>Where a person places counterfeit cigar labels on cigars, and ships them to a purchaser in another county under an arrangement by which the title to the cigars was not to pass until they reached the place of consignment, the seller of the cigars may be convicted, in the county where the purchaser resides, of violating the Act of May 21, 1895, P, L, 95.</p> <p>Practice, Q. S. — Trial—Charge—Unfair charge.</p> <p>It is not error for a judge in his charge to a jury tó express his opinion upon the facts, if done fairly, provided he does not give a binding direction, or interfere with the province of the jury; but in every case which justifies a judge in expressing an opinion the jury should be directly informed that it is his opinion, and that they are not to be bound by it; and the expression of opinion should always be made with the utmost fairness and absence of partisanship.</p> <p>If the charge gives undue prominence to the testimony of a witness for one of the parties and impeaches the testimony of two witnesses for the other party, the judgment will be reversed.</p>

Appeal, No. 103, Oct. T., 1904, by defendant, from judgment of O. P. Lebanon Co., Sept. T., 1901, No. 133, on verdict for plaintiff in case of Aug. D. All-wein v. Jacob J. Brown. Trespass for fraud and deceit and for tbe use and occupation of land. Before Ehrgood, P. J. At the trial the jury returned a verdict of $83.43 on the question of law reserved.

<p>Appeal, No. 32, Oct. T., 1904, by plaintiff, from judgment of C. P. Lancaster Co., Dec. T., 1903, No. 73, on case stated in case of Maria Minnicliv. The Peoples Trust, Savings and Deposit Company, Committee of Harriet Longenecker, a lunatic.</p> <p>Case stated to determine right to income derived from the estate of Elizabeth Longenecker, deceased.</p> <p>The trust for the benefit of Harriet Longenecker, a lunatic daughter of Elizabeth Longenecker, as created by the will of the decedent is set forth in the opinion of the Superior Court. It appeared from the case stated that Harriet Longenecker had an individual estate derived from her father to the amount of $20,000. Maria Minnich claimed that the lunatic should be supported from the income derived from the individual estate, and that the income from the trust estate should be allowed to accumulate.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Courts — Discretion—Judicial discretion — Opening judgment.</p> <p>When courts are said to exercise a “discretion,” it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law.</p> <p>Judgment — Opening judgment — Discretion—Laches.</p> <p>While the measure of proof required by the judge to open a judgment and to clear the way to the jury, cannot be defined by rule, and a mere conflict of evidence is not, generally, sufficient, yet the defendant should be allowed a trial where he has shown by a preponderance of evidence sufficient to sustain a verdict in his favor, that he has a just defense. This is the most prudent course also when material and important questions Of fact are in serious dispute.</p> <p>Mere delay in making the application is not always sufficient ground for refusing to open judgments when third parties are not affected; nor is mere delay always the legal equivalent of laches to take effect as an estoppel. This effect depends on the facts.</p> <p>When fraud and forgery in procuring the judgment are averred, and it becomes apparent that either has been potential or controlling in a former proceeding affirmed by the Supreme Court, an inferior tribunal should give such affirmance the fullest legal effect, when the same facts are presented in any subsequent stage of that proceeding. When the fraud alleged is of such a character as to involve the crime of forgery it cannot be ratified; as a fraud effected by forgery does not admit of ratification.</p> <p>Even where forgeiy is charged there is no inflexible rule which compels the court to open a judgment.</p> <p>While a judgment should not be opened upon the defendant’s oath when contradicted by the oath of the plaintiff, yet where there are corroborative circumstances or circumstances from which inferences may be drawn corroborating the defendant, it is proper to open the judgment and refer the question to a jury. This course is also proper when the decision of the court below is a deduction from the facts and the result of reasoning from the same.</p>

<p>Mines and mining — Deed—Covenants—Mining privileges — Ventilation shaft.</p> <p>Where a deed for thirty-one acres of coal gives the right “to transport other coal” through the entriés in the thirty-one acre tract, and gives the further right “to exercise the usual and ordinary privileges of ventilation and drainage upon the thirty-one acre tract, and to transport other coal through underground entries made or to be made in the coal so granted,” the grantee has a right to sink a ventilation shaft through the surface of the thirty-one acre tract so as to ventilate not only the entries in the thirty-one acre tract, but also entries from other tracts opening into it.</p>

<p>■ Statutes — Construction—Legislative debates.</p> <p>In construing a statute, the courts will not consider the debates of the legislature which passed it.</p> <p>Sheriffs — Compensation—Statutes—Repeal—Acts of April 2, 1868, P. L. 3, and July 11, 1901, P. L. 663.</p> <p>■The Act of July 11, 1901, P. L. 663, entitled “An Act to regulate and establish the fees to be charged by sheriffs in this commonwealth, and to provide for the taxation and collection of the same,” supersedes and repeals the fee bill of April 2, 1868, P. L. 3.</p> <p>Under the Act of July 11, 1901, P. L. 663, the sheriff is entitled to a fee of ten cents per mile from the place where he receives convicts and lunatics, for the distance necessarily traveled to the places of their delivery, and for his return to his starting point, if his return to such point is a necessary portion of his official trip.</p> <p>Where the sheriff has several commitments placed in his hands for several persons, at the same time, he is entitled to mileage on each commitment.</p> <p>The six cents mileage for each prisoner is direct and not circular mileage.</p> <p>The additional sum allowed by the Act of July 11, 1901, to the sheriff for “necessary help and expenses,” is intended to cover reasonable help and expenses in transporting and delivering the convicts and lunatics to the penitentiary -and asylum. If there is any dispute as to whether the charges for help and expenses are reasonable, the question is for the jury and not for the court. • -</p> <p>Practice, C. P. — Trial—Reservation of question of law.</p> <p>In an action by a sheriff against a county to recover for charges and expenses, it is improper for the court to give binding instructions for the plaintiff for an amount stated, and say that if this rate of charges is wrong “under the law as we shall construe it we will correct the verdict.” This is not a proper reservation of law.</p>

<p>Appeal, No. 245, April T., 1905, by defendant, from judgment of Q. S. Butler Co., June T., 1904, No. 22, on verdict of guilty -in case of Commonwealth v. John .Shanor.</p> <p>Indictment for adultery. Before Galbreath, P. J.</p> <p>At the trial Mr. McKelvey, proprietor of the City Hotel of Punxsutawney, J elf erson county, Pa., was asked the question:</p> <p>“ Q. Do you know the defendant, John Shanor ? A. I cannot say that I do.”</p> <p>Objected to as immaterial.</p> <p>The Court: I think anything that would indicate the relation of these parties would be a circumstance to go to the jury.</p> <p>Mr. Henninger: We propose to show the fact that they were occupying the same room, not for the purpose of showing an independent crime, but for the purpose of showing their relations the latter part of August, the same month they are charged with here.</p> <p>The Court: I am inclined to think it'is competent.</p> <p>Objected to as irrelevant and incompetent.</p> <p>The Court: We will receive the testimony and seal a bill. [2]</p> <p>“ Q. Look at the defendant and tell us whether or not you ever saw him. A. T can’t see him in court now. I see the gentleman now, but couldn’t swear that that was the man.”</p> <p>3. The court erred in admitting the following testimony on the part of the commonwealth, which testimony, objection and ruling are as follows:</p> <p>“ Q. You may state whether or not you had any person stop at your house under the name of J. F. Brant? ”</p> <p>Objected to as incompetent.</p> <p>The Court: If you can follow that up with testimony that that was the defendant and Miss Phillips, I think it would be competent.</p> <p>Mr. Henninger: We propose to follow it up and show that the man that registered as J. F. Brant was Mr. Shanor. I propose to ask the witness on the stand whether or not a man and woman stopped at his hotel during the latter part of August, 1903, under the name of J. F. Brant and wife. This to be followed by showing that the same party that registered as J. F. Brant and wife was the defendant, John Shanor, and the deceased Annie Phillips.</p> <p>Mr. McQuistion: The witness having already testified that he cannot identify the defendant, the offer as made to prove that J. F. Brant and wife registered at his hotel is incompetent, the witness having already stated that he cannot identify the defendant, and his hotel is located without the jurisdiction of Butler county.</p> <p>The Court: The offer being made to show that parties under the name given registered at the hotel of the witness and also being accompanied by the further offer to show by other proof that the persons registered were the defendant and Annie Phillips, we think as a circumstance in the case it is properly admissible; for that reason we will overrule the objection, receive the testimony and seal a bill for defendant. [3]</p> <p>Mr. Henninger: Commonwealth offers in evidence the register from the City Hotel at Punxsutawney as identified by Mr. McKelvey.</p> <p>Mr. McQuistion: Objected to as incompetent in that the signature has not been identified, neither has there been any proof offered on the part of the commonwealth that the defendant wrote that name upon the register, nor that Annie Phillips was with him.</p> <p>The Court: The evidence as to the signature itself is not very explicit, the witness has said that he is not sure he was there when it was written, but he does say the defendant settled the bill.</p> <p>Mr. Henninger: We propose to offer with that the indictment in the present case showing his signature to the bill for the jury to judge of the similarity, and in addition I wish to offer the indictment.</p> <p>The Court: I think we will overrule the objection, receive the testimony and seal a bill for defendant. [4]</p> <p>Verdict of guilty upon which the prisoner was sentenced to $200 fine and undergo imprisonment in the penitentiary for one year.</p> <p>Errors assigned were (1) the sentence of the court; (2-4) rulings on evidence, quoting the bill of exceptions.</p>

<p>Trusts and trustees — Conditions—Compensation.</p> <p>The question of what is a reasonable compensation to trustees depends largely upon the circumstances of each particular ease, and cannot be determined by an inflexible rule; while in practice it is usually claimed and awarded as a commission, the rate is not determined by an established rule. It may be graduated according to the responsibility incurred, the amount of the estate, and the extent of the services necessarily performed.</p> <p>Where a trustee has received five per cent on $20,000 of income from real estate held in trust and valued at $80,000, and $75.00 counsel fee, he will not be entitled to receive an additional compensation of $800 commissions and $200 counsel fee for the mere act of executing deeds under a decree of the court to the persons entitled to the corpus of the estate. In such a case $200 commissions and $200 counsel fee are sufficient.</p>

Appeal, No. 242, April T., 1905, by plaintiff, from decree of C. P. Venango Co., Aug. T., 1903, No. 5, on bill in equity in case of William H. Mays v. B. Frank Melat. Bill in equity for a partnership accounting. Before Criswell, P. J. The opinion of the Superior Court states the case. Error assigned was the decree of the court.

<p>Appeal, No. 107, April T., 1905, by defendants, from judgment of C. P. Warren Co., Deo. T., 1902, No. 13, on verdict for plaintiff in case of Blanche S. King v. Myra Grannis, Lewis H. Grannis and H. J. Muse.</p> <p>Ejectment for land in Corydon Township. Before Lindsey, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1) refusing to quash the writ; (2-4) admission of various offers of evidence tending to sbow fraud; (5, 6) answers to points quoted in the opinion of the Superior Court.</p>

<p>Fish laws — Wall-eyed pike — Criminal law — Act of May 29, 1901, P. L. 302, and May 29, 1901, P. L. 335.</p> <p>A person cannot be convicted under the Act of May 29, 1901, sec. 3, P. L. 302, for having in his possession for sale wall-eyed pike, in the city of Allegheny, between Pebruaiy 15 and June 15, where it appears that the fish in question were lawfully caught ifx the waters of Lake Erie under the permission granted by the Act of May 29, 1901, P. L. 335. In a prosecution on such a charge the burden is upon the defendant to prove that the fish were lawfully caught and killed in Lake Erie.</p>

<p>Appeal, No. 24, Jan. T., 1906, by defendant, from judgment of Q. S. Luzerne Co., June T., 1905, No. 40, on verdict of guilty in case of Commonwealth v. Raphael D’Angelo and William Danes.</p> <p>Indictment'for assault and battery. Before Ferris, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were various excerpts from the charge, and that the court erred in failing to define the meaning of the term “ reasonable doubt.”</p>

<p>Appeal, No. 226, Oct. T., 1904, by defendant, from order of O. P. No. 1, Phila. Co., March T., 1897, No. 1178, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harp Building and Loan Association v. Joseph Sheehan and John Muldoon.</p> <p>Assumpsit on a bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 246, Oct. T., 1904, by defendant, from order of O. P. No. 5, Phila. Co., June T., 1905, No. 3160, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Andrew Cochran v. Joseph Slomkowski.</p> <p>Assumpsit for balance alleged to be due on a contract.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The averments of the affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Beneficial associations — Payment of dues — Forfeiture of membership.</p> <p>Where the by-laws of a beneficial-association provide that “each member shall pay the amount according to age, as per table, and any member failing to pay same on or before the last meeting night of each month shall stand suspended from the order and all benefits therefrom,” payment by cash mailed on the last day of the month but not received by the association until the following day, is not a payment within the meaning of the by-law, and failure to make the payment within the time prescribed works a suspension of the member without any action on the -part of the association.</p> <p>The words “shall stand suspended,” when used in respect to policies of insurance and death benefit certificates would seem to be equivalent in their legal effect, to “cease and determine” and “null and void.”</p> <p>Where the by-laws of a beneficial association provide that in case of a dispute about suspension or expulsion, no suit shall be brought against the association until “the remedies and means of redress” provided by the association shall be exhausted, a beneficiary cannot maintain a suit against the association where it appears that neither the member nor the beneficiary sought in any way to avail himself of the remedies and means of redress provided by the association. Such by-laws are binding upon the association and its members.</p>

<p>Insurance — Insurance against liability for damages — Employees.</p> <p>An insurance company agreed to indemnify the insured for the term of one year “against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any employee or employees of the insured.” The policy further provided that, “No action will lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from the date of such judgment and after trial of the issue. . . . This policy shall only cover losses sustained by and liability for any claims against the assured as a result of the risk specified in the contract or contracts hereto attached.” Held, that interest could be collected on the amount of the policy only from the time the insured actually paid a judgment recovered by an employee for personal injuries.</p>

<p>Contract — Evidence—Conflicting evidence — Question for the jury.</p> <p>In. an action on a contract the evidence showed that the defendants were dealers in pianos, and that they agreed with the plaintiff that if she should give them a “prospect,” that is, the name and address of a prospective purchaser of a piano, and the defendants should in pursuance of the “prospect” or information, within a reasonable time succeed in selling a piano to such prospective purchaser, the plaintiff would be entitled to receive ten per cent of the purchase price paid. Plaintiff claimed that through a “prospect” given by her, defendants had sold three pianos six or seven months subsequently. The defendants denied that the sale had been made through plaintiff’s “prospect.” Held, that the case was for the jury and that a judgment and verdict for the plaintiff should be sustained.</p> <p>Where there is any evidence which alone justifies an inference of a disputed fact, it must go to the jury, and this is generally true, whether the sufficiency of the evidence is raised upon a motion for a nonsuit, or at the conclusion of the trial in which the defendant has introduced countervailing evidence of a positive character. ' ■</p>

<p>Appeal, No. 143, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March' T., 1905, No. 3703, on verdict for plaintiff in case of Commonwealth v. Thomas Cover, Loring A- Cover and Henry E. Drayton, trading as Cover & Drayton.</p> <p>Case stated to determine liability for collateral tax.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment, for plaintiff for $161.50 only.</p>

<p>Appeal, No. 78, Oct. T., 1905, by Peter H. Corr, from decree of O. C. Phila. Co., Jan. T., 1904, No. 544, sustaining exceptions to adjudication in estate of Hugh A. O’Neill, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree sustaining the exceptions.</p>

<p>Corporations — Name—Conflicting names — Maternity hospital.</p> <p>The discretion of the court of common pleas in refusing to amend a charter by changing a name of a corporation from the Philadelphia Lying-In Charity to the Central Maternity and Hospital for Women, when such change is opposed by an older corporation of the name of The Maternity Hospital, will not be reviewed by the Superior Court, where the record discloses no abuse of discretion, and that the decree of the lower court was based upon a due consideration of local conditions and of all the pertinent facts and circumstances bearing upon the situation.</p>

<p>Practice, C. P. — Rule of court — Evidence—Copy of booh account.</p> <p>A rule of court which relieves a plaintiff from producing books of account where a copy of the account is attached to the sworn statement of claim, does not give th.e plaintiff the right to offer his statement of claim in evidence in addition to a copy of the book account. The offer must be limited to the book account.</p> <p>Practice, C. P. — Trial—Charge—Inadequate charge.</p> <p>In an action for work done and performed, the defendant alleged that the work was done under an express contract containing a guaranty, that the work was defectively performed, and that plaintiff had failed to make good his guaranty. Defendant further claimed a set-off by reason of damage resulting from the defective character of the work: The plaintiff denied that the work was done under the contract alleged by the defendant, or that any guaranty of the repair work was given, or that there had been a breach of the guaranty with reference to new work. The court in its charge made no reference to the evidence of an express contract, nor to that bearing upon the allegation of warranty, nor was any instruction given with reference to the claim of set-off. Held, that the charge was inadequate and' that the judgment should be reversed. .</p>

<p>Appeals — Summary conviction — Discretion—Petition.</p> <p>Where a petition for an appeal from a summaiy conviction is sufficient on its face to give the court jurisdiction, it will be presumed on appeal to the Superior Court, in the absence of anything to show the contrary, that the action of the court of quarter sessions, in allowing the appeal, was not arbitrary, but was the exercise of a sound legal- discretion in view of all the facts and circumstances properly within its cognizance.</p>

<p>Appeals — Summary conviction — Discretion of court — Failure to print petition.</p> <p>Neither section 14 of article V, of the constitution of Pennsylvania, nor the Act of April 17, 1876, P. L. 29, gives an appeal as a matter of right, in cases of summary conviction. This can only be had upon allowance by the court, which means upon cause shown; nor is the action of the court below whether granting or refusing the appeal reversible upon appeal to the appellate court, unless the record shows an abuse of discretion. This can only be determined by an inspection of the petition, and if the appellant has failed to print the petition in his paper-book, or bring it up and file it with the record, the appeal will be quashed.</p>

<p>Practice, C. P. — Pleading—Statement of claim — Demurrer—Affidavit of defense — Appeals—Assignments of error.</p> <p>Where on an appeal from a verdict and judgment for defendant, the error assigned is in overruling defendant’s informal demurrer contained in the affidavit of defense to the plaintiff’s statement of claim, the question before the appellate court is not whether the statement viewed in the light of the averments of the affidavit of defense was sufficient to entitle the plaintiff to summary judgment, but whether the statement on its face, set forth with sufficient clearness and conciseness the elements of a good cause of action. If the latter was the case,-the appeal will be affirmed.</p> <p>New trial — Refusal—Discretion of court — Appeals.</p> <p>The refusal of a new trial, where the application is based on the allegation that the absence of the defendant and his counsel at the trial was without fault on their part, is not ground for reversal unless there has been a clear abuse of discretion. If the defendant in his depositions in support of a motion for a new trial simply seeks to show a valid excuse for the default, and makes no attempt to show a meritorious defense, the appellate court will consider that the discretion of the lower court was wisely exercised. ,</p>

<p>Appeal, No. 81, Oct. T., 1905, by defendant, from order of O. P. No. 2, Phila. Co., Sept. T., 1894, M. L. D. No. 36, discharging rule to open judgment in case of City of Philadelphia v. William C. Merritt, owner, and T. Elwood Potts, trustee, etc., and registered owner, and William H. Maker.</p> <p>Rule to open a judgment.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court discharged the rule to open judgment.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 42, Oct. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1904, No. 1389, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Karl Straus and Adolph Loeb, trading as K. Straus & Company v. Frederick W. Welsh. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 28, Oct. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1908, Mechanic’s Lien Docket, No. 4057, making absolute rule to strike off mechanic’s lien.</p> <p>Rule to strike off mechanic’s lien.</p> <p>From the record it appeared that the notice attached to the lien was as follows :</p> <p>“ City of Philadelphia, state of Pennsylvania, ss.</p> <p>“ J ames J. Pallard, being duly sworn according to law, doth depose and say that he is manager for the Wolf Co., and that he has personal knowledge of the matters hereinafter referred to, and that the said the Wolf Co. have a just and legal claim against Seeley, Son & Co., contractors, and the Pennsylvania Railroad Co., owners or reputed owners, for the sum of $275.98, of the following nature and character, to wit:</p> <p>“ On or about May 18, 1903, the said Seeley, Son & Co. ordered from the said the Wolf Co. one double roller mill as follows :</p> <p>“ The Wolf Co.,</p> <p>“ 804 Penna. Bldg.,</p> <p>“ Philadelphia, Pa.</p> <p>“ Gentlemen:</p> <p>“ In confirmation of our verbal order, please ship to us at Germantown Junction, Phila., via Pennsylvania Railroad, 1 double roller mill (4 rolls) 9 in. x 30 in.; 6 corrugations with single bell-drive-pulley on mill 14 in. x in. An early shipment will oblige.</p> <p>“ Yours very truly,</p> <p>(Signed) “Seeley, Son & Co.</p> <p>“ Pursuant to this order the said the Wolf Co. delivered said mill to said Seeley, Son & Co., and the same was erected upon the premises of the Pennsylvania Railroad Co., in the city of Philadelphia. The charge therefor was $275.98, as per agreement, and the last materials therefor were delivered on or about July 30, 1903. It is the purpose of the said the Wolf Co. to file a mechanic’s lien against the said Seeley, Son & Co. and the Pennsylvania Railroad Co. for the price of said mill.</p> <p>“ Sworn to and subscribed, etc.</p> <p>(Signed) ' James J. Pallabd.”</p> <p>The bill of particulars attached to the lien is as follows:</p> <p>“ Seeley, Son & Co.,</p> <p>To The Wolf Co., Dr.</p> <p>1903. July 1. Frame portion of machine.</p> <p>• 1903. 21. Rolls for roller machine.</p> <p>30. One roll lever for 9 x 30 roll</p> <p>in. extra length in hub, . $275.98.”</p> <p>The court struck off the lien because of the insufficiency of the notice and sworn statement.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals — Paper-books—Failure to print evidence.</p> <p>On an appeal where the assignments of error relate to the rejection of evidence and it appears that the evidence is not printed in the paper-books, and there is nothing to identify as evidence certain exhibits printed in the affidavit of the appellant’s paper-book and relied upon by him, the judgment will be affirmed.</p>

Appeal, No. 31, Oct. T., 1905, by Eruma L. Borgner, distributee, from decree of O. C. Phila. Co., Oct. T. 1887, No'. 311, dismissing exceptions to adjudication in estate of George Gelbach, deceased. Exceptions to adjudication.

Appeal, No. 122, Oct. T., 1905, by Frances Ledwith, from order of C. P. No. 4, M. L. D., Phila. Co., Dec. T., 1891, No. 85, discharging rule to strike off judgment in case of City of Philadelphia v. Michael Smith. Rule to strike off judgment. The facts appear by the opinion of the Superior Court. Error assigned was order discharging rule to strike off judgment.

<p>Appeal, No. 70, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1899, No. 88, on verdict for plaintiff in case of Charles A. Daniel v. Charles D. Lance.</p> <p>Assumpsit on promissory notes. Before Wilt bank, J.</p> <p>At the trial the court under objection and exception by defendant admitted in evidence the notes in suit. [1]</p> <p>■The court refused to permit a witness for the defendant to testify that the notes were signed by Joseph P. Lance. Exception. [2]</p> <p>Defendant presented the following points :</p> <p>1. ,That before the plaintiff can recover the jury must find from the evidence that Charles D. Lance was a partner in a firm composed of himself, Joseph P. Lance and Walter W. Lance, trading as Lance Sons, and if they do not so find, the verdict must be for the defendant, Charles D. Lance. Answer: That point I refuse. [3]</p> <p>2. That if the jury find from the evidence that the plaintiff, Charles A. Daniel, has sworn falsely in this case, his testimony, where it is contradicted by other witnesses, should be disregarded, applying the rule that a witness false in one is false in all. Answer : For answer to that point I refer to my general charge. [4] That part of the charge is as follows:</p> <p>I am required, in view of a certain point that counsel for defendant has presented to me as a subject of part of my charge, to call your attention to statements in the statement of claim made by the plaintiff when he came into court, and demanded his money. It has been argued by counsel for defendant, that' as there have been disclosed several inaccuracies (we will call them untruths ; that is to say, several statements inconsistent with the actual fact) in the statement of claim, you must condemn the plaintiff as not telling you judicially the truth under oath as a witness, and as I am obliged to decline that point it is necessary, in justice to both sides, that I should give you some explanation of my view of that aspect of the case. The statement originally filed says that “ at the time of the happening of the matters herein complained of the defendants were copartners trading as aforesaid ” and it names William Lance, Jr., Deliaven Lance, Charles Lance and Joseph Lance, “ now or late,” and so forth. The affidavit attached to that statement avers that the plaintiff believes the statements are true to the best of his knowledge, information and belief. Now, you will observe, that when this knowledge, information and belief were enlightened further by the affidavit of the defendant, and he made his correction, he does not stand at all convicted of a deliberate untruth. A.man avers such and such is the fact, “ to the best of my knowledge, information and belief,” and he may come forward later and say, “ Since then, I have acquired fuller knowledge, or other knowledge, other information and other belief, and I beg leave accordingly to amend that statement,” and if he obtains the warrant of the court for the amendment, he is purged of all imputation of perjury. The court says, averring then, according to your information, and coming in now with fuller information, we allow you to correct your averment. So that you will observe that there is nothing serious in that aspect of the case as against the plaintiff when he comes in and asks of you a verdict against the defendant. With regard to the statement of amount, the averment in the original- statement is that “ the whole of the principal of said notes, with interest thereon from the dates of their maturity, still remains justly due and payable by said defendant to said plaintiff,” and the defendant came in and claimed that he had paid the sum of $265 in behalf of Lance Sons, and that averment having been put of record, the plaintiff has gone into the account and finds that credit is to be allowed, but not that amount, and he allows a credit of some $95.00. You will remember the amount and will have it out with you when you examine the claim. Therefore, as I say, the real point is as I have presented it to you. Did the defendant represent, when he was dealing with the plaintiff at the time these two notes were given, that he was of the concern of Lance Sons ?</p> <p>B. That if the jury find from the evidence that the plaintiff was told by Charles D. Lance and Thomas A. Gummey, in 1888, that he, Charles D. Lance, had sold out his interest in the old firm of Lance Sons to Walter W. Lance, and was no longer a member of the firm of Lance Sons, the verdict must be for the defendant. Answer : That point I refuse. [5]</p> <p>4. The recording of the letter of attorney of W. W. and J. P. Lance, in 1891, was notice to the plaintiff of the authority of Charles D. Lance to act in the premises. Answer: That point I refuse. [6]</p> <p>5. That if the jury find from the evidence that the indebtedness, for which the notes in suit were given, was for a debt contracted by Walter W. and J. P. Lance, trading as Lance Sons, the verdict must be for defendant. Answer : That point I affirm, providing you find that Charles D. Lance did not at that time represent himself as also of the firm. [7]</p> <p>6. That the verdict must be for the defendant. Answer: That point I refuse. [8]</p> <p>The court charged in part as follows:</p> <p>[It is hardly material who signed the notes. That is to say, it is not necessary that the defendant should sign the notes. Mr. Daniel was sure that he did. He says he had seen him often sign notes, there were long transactions between them, he saw him sign these and he delivered the obligations to him. Mr. Joseph P. Lance says that he signed those two notes on the two several occasions. It is hardly material, if you find that Charles D. Lance represented at the time that he was of the concern, who in point of fact did actually make the signatures “ Lance Sons.”] [9]</p> <p>The court refused to permit the defendant to send out with the jury the affidavit to the statement of claim, the affidavit to amend the record, and the affidavit of Charles D. Lance as to who were members of the firm. [10]</p> <p>The counsel for the defendant, in addressing the jury, exhibited the affidavits of defense of Charles D. Lance which were filed in the case and were offered in evidence, and the notes upon which suit was brought and called attention to the signatures that they were not in the same handwriting, as was apparent on the face.</p> <p>The judge stated that it was improper to submit them to the jury and ordered that it be stopped. To this the counsel for the defendant excepted and asked that it might be taken down by the stenographer and the exception noted. [11]</p> <p>And now, to wit: July 18,1904, it is ordered that the foregoing statement of counsel for defendant be filed as of May 17, 1904; and further, it appearing to the court that the papers referred to in the said statement, to wit: the affidavits of defense of Charles D. Lance and the notes upon which this suit was brought, were not competent for the use proposed in submitting them to the inspection of the jury, to wit: a comparison of the signatures, Lance Sons, in order to secure from the jury a finding of fact that the defendant, Charles D. Lance, did not sign the notes in suit, and that the use of the same for this purpose was unwarranted by leave of the court, it is ordered that the action of the court in the premises be affirmed and that an exception be allowed the defendant.</p> <p>Verdict and judgment for plaintiff for $1,132.26. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3-11) above instructions, quoting them.</p>

<p>Appeal, No. 130, Oct. T., 1905, by Bertha Mothes, from decree of O. C. Phila. Co., Jan. T., 1905, No. 465, dismissing exceptions to adjudication in Estate of Alfred H. Mothes, deceased.</p> <p>Exceptions to adjudication.</p> <p>Dallett, J., filed the following opinion:</p> <p>The accountant in this case, Emma Mothes, the widow and administratrix of the decedent, refused to account for #1,666.67 paid to her after her husband’s death on account of his interest in the Meehan-Mothes Company. This interest was represented by stock certificates of the face value of $5,000, worth at the dissolution of the company $1,666.67.</p> <p>The accountant claimed that the stock was a gift to her by her husband during his lifetime and that the money received therefor was her own. The exceptions filed on behalf of Bertha Mothes, decedent’s mother, are to the refusal of the auditing judge to surcharge the administratrix with the amount received for the stock.</p> <p>The decedent was the manager and vice president of the Meehan-Mothes Company up to the time of his death, on December 7, 1903.</p> <p>On the evening of February 7, 1903, he brought certificates for this stock to his home and in the presence of a niece, Emma Boyd, then fourteen years old, and a frequent visitor at the house, gave them to his wife, telling her that she should keep them and not leave them out of her hands, that they were hers. This occurred in the decedent’s bed-room, and the wife took the certificates and put them in a tin box in which the decedent kept small sums of money. They were never transferred to her because, according to her testimony, the decedent could not have remained as manager had he not held the stock in his name.</p> <p>In Hafer v. McKelvey, 23 Pa. Superior Ct. 202, Oblady, J., citing Com. v. Compton, 137 Pa. 138, says : “ It is now well settled that a valid gift of non-negotiable securities may be made by delivery of them to the donee without assignment or indorsement in writing. This principle has been applied to notes, bonds, stock and deposit certificates and life insurance policies.”</p> <p>And in Hani v. Ins. Co., 197 Pa. 276, McCollum, J., said: “ That while formerly the doctrine was that a gift of a chose in action requiring an assignment had to be actually executed it was then held with substantial unanimity that a written assignment was not necessary, and that a delivery of a chose of action under such circumstances as would constitute a gift of property in possession amounted to an equitable assignment of the property represented which the courts would recognize.”</p> <p>If, therefore, the testimony in this case is competent there is no doubt but that the gift of this stock by the delivery of the certificates to the wife was valid.</p> <p>There were two witnesses — the niece, a young girl who testified as to all the circumstances in relation to the delivery of the certificates, who was disinterested and certainly competent.</p> <p>And the accountant, the widow, who testified as to the decedent’s relations with the Meehan-Mothes Company, his gift of the stock and his reasons for continuing it in his name. Primarily incompetent this witness was made competent by the adverse party when called for cross-examination and asked as to decedent’s membership in the firm at the time of his death, the name in which the stock was held at that time, to whom it belonged, etc.: Watkins v. Hughes, 206 Pa. 526.</p> <p>The exceptions are dismissed and the adjudication confirmed absolutely.</p> <p>Error assigned was the decree of the court.</p>

<p>Contract — Sale—Repudiation—Damages—Freight.</p> <p>Where coke is sold at the ovens for a price stated, and is delivered to the carrier by the seller, who thereupon becomes liable for freight, and subsequently, when the coke arrives at the purchaser’s yard, it is wrongfully rejected by the latter, and the seller thereupon sells it to other parties, the seller is not obliged to sue for the entire purchase price of the coke, but he may claim and recover the difference between the price at which the coke was originally sold and that for which it was subsequently resold, deducting freight and charges.</p> <p>Where a contract of sale has been repudiated and the goods rejected by the vendee in toto, it is violated in every part, and the vendee becomes hable for whatever actual damages the vendor may suffer.</p>

Appeal, No. 170, Oct. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 1918, discharging rule to open judgment in case of St. James Building and Loan Association of West Philadelphia v. Robert Kelly. Rule to open judgment. The facts appear by the opinion of the Superior Court. Error assigned was the order of the court discharging rule to open judgment.

<p>Appeal, No. 133, Oct. T., 1905, by defendant, from judgment of C. P. No. 5 Phila. Có., Dec. T., 1904, No. 2781, on demurrer to statement in case of Philip Burnet, Jr., and George E. Saulsbury, trading as Burnet & Saulsbury, v. Carl E. Smith.</p> <p>Demurrer to statement.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered judgment for plaintiff on the demurrer.</p> <p>' Error assigned was the judgment of the court.</p>

<p>Sale — Contract—Warranty.</p> <p>To constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty itself, nor evidence of it. In con- ■ nection with other circumstances, it certainly may be taken into consideration; but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation.</p> <p>Sale — Contract—Warranty—Principal and agent — Evidence—Question for jury.</p> <p>In an action to recover the price paid for a horse which had failed to fulfill a warranty, the plaintiff offered evidence which tended to show that he had bought the horse at a sales stable belonging to defendants, that the price was fixed by a person in apparent authority, and its payment was made directly to the defendant firm, who gave their personal receipt on their prepared blank form for the price paid. While they were yet in the midst of the deal, the man in apparent authority to receive and receipt for the purchasS>price, stated, “the horse has got to be as represented, or you can return him.” The horse proved to be unsound and plaintiff subsequently complained to one of the defendants that the horse was unsound, and the' latter said “come out and he will give you another horse.” Defendants offered testimony tending to show that the.person who sold the horse did not represent them; that the transaction was with him as an individual; that the acceptance of the check and giving the receipt were merely formal in their way of doing business; and that the defendant firm did not receive any share of the price paid, or any commission or profit from the sale. Held, that the case was for the jury.</p>

<p>Waters — Damages—Evidence.</p> <p>In an action to recover damages for injuries to property caused by the damming up of a stream, where the plaintiff describes the condition of the property immediately after the injury, a witness for the plaintiff may be permitted to testify as to the costs of the repairs necessary to restore the property to its former condition, although the estimate was made two years after the flood. SucH testimony although incompetent taken by itself, becomes competent when taken in connection with the testimony of the plaintiff.</p> <p>In such a case where it appeared that the injuries were caused during an extraordinary flood by the accumulation of debris against defendant’s gas pipe which crossed the stream beneath a bridge, the defendant may show that during extraordinary floods prior to the placing of the gas pipe across the stream, the banks overflowed and injured plaintiff’s property.</p> <p>In a doubtful case, it is better to admit testimony offered that may be competent and-relevant from any point of view, and determine later whether or not the testimony meets the requirements of the offer. This is particularly true when offers have been amended a number of times, in order to meet objections raised by counsel or by the court in ruling them out.</p> <p>In an action to recover damages for injuries to property by reason of a flood, it is proper to admit testimony as to the general character of the flood, as to the amount of rainfall and snow, and the condition of the temperature at the time of the flood.</p> <p>Waters — Damages—Measure of damages — Charge of the court.</p> <p>In an action to recover damages for injuries caused by flooding the banks of a stream, the court refused the following point: “The measure of damages to plaintiff’s premises, the injury not being shown .to be permanent, is the cost of restoring it to its former condition, together with compensation for the loss of its use.” All that the court said in its general charge on the question of damages was that “the cost of remedying the injury to the real and personal property is the true measure of damages.” Held, that the refusal of the point was error and that the instruction as to damages was wholly inadequate.</p> <p>Where an injury to a house is not of a permanent character the measure of damages is the cost of restoring the property to its former condition, together with compensation for the loss of its use, unless such costs should exceed the value of the building, in which case such value would be the measure of damages.</p> <p>In an action to recover damages to land by the flooding of a stream, if it appears that the negligence of the defendant conspired with the act of God to cause the injury, and that the injury was due primarily to the negligence of the defendant, the latter is liable.</p>

<p>Appeal, No. 57, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1901, No. 85, on verdict for plaintiff in case of Thomas Porter v. William Weightman, deceased, Anne M. Walker, substituted defendant.</p> <p>Scire facias sur municipal lien. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Yerdict and judgment for plaintiff for 1173.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 187, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1904, No. 412, on verdict for plaintiff in case of Joseph N. Myers v. Alta Friendly Society.</p> <p>Assumpsit to recover sick benefits. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial plaintiff’s counsel asked a witness the following question :</p> <p>Q. What effect, if any, would such exertion as signing papers have upon his (the plaintiff’s) illness ?</p> <p>Objected to. Objection overruled. Exception noted for defendant by order of the court. [1]</p> <p>A. The effect of the slightest exertion was to aggravate his condition, and, of course, I cannot say how serious the result would have been, or might have been; it is possible he could have signed such a paper without any detriment, but the chances were all against it I considered.</p> <p>The court charged as follows :</p> <p>[Gentleman of the jury, this case presents questions of law, which will be settled hereafter. I instruct you to render a verdict for the plaintiff for $41.90, reserving the point whether there is any evidence in the case which would justify a verdict on behalf of the plaintiff for more than $10.00 and interest from April 30, 1904.] [3]</p> <p>Verdict and judgment for plaintiff for $41.09. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions ; (3) charge as above, quoting it; and (4) in entering judgment on the verdict.</p>

<p>Negligence — Municipalities—Defect in sidewalk — Question for jury.</p> <p>In an action by a woman against a city to recover damages for personal injuries sustained by a faE on a sidewalk, the evidence showed that the plaintiff, although having some knowledge of the condition of the sidewalk ^at the place where she was injured, had not frequently passed in that direction. On the evening of the accident, accompanied by some children, she passed over the sidewalk safely, and noticed nothing unusual. On her return after dark, the street being dimly lighted, she trod upon a brick which turned under-her weight and fell backward and dislocated or fractured the lower-vertebra of the spine. A neighbor testified that the sidewalk was in bad condition of which the police had been frequently notified, and that the witness herself on a number of occasions arranged the bricks, in the sidewalk, so as to make the passage thereon safe, but that-the boys in the neighborhood carried the bricks away. There was also testimony that there was water in the street at the time of the accident. Held, that the case was for the jury, and that a judgment and verdict for plaintiff should be sustained.</p>

<p>Appeal, No. 120, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1903, No. 1783, on verdict for plaintiff in case of Alice Addis, a minor, by her father, Charles A. Addis, individually, and Charles A. Addis, father of Robert D. Addis, a minor, deceased, v. Henry E. Hess or Harry E. Hess.</p> <p>Trespass to recover damages for the deatb of a child. Before McMichael, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $212. Defendants appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendants.</p>

Appeal, No. 5, Oct. T., 1905, by defendant, from order of C. P. Blair Co., Oct. T., 1904, No. 50, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Altoona Concrete Construction and Supply Company v. Knickerbocker Contracting Company. Assumpsit for goods sold and delivered. The opinion of the Superior Court sets forth the averments of the statement of claim, and of the affidavit of defense.

<p>Appeal, No. 104, Oct. T., 1905, by defendant, from judgment of O. P. Potter Co., March T., 1904, No. 57, on verdict for plaintiff in case of Charles O. Miller v. Buffalo & Susquehanna Railroad Company.</p> <p>Trespass to recover damages for injuries to land. Before Ormerod, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $819. Defendant appealed.</p> <p>Errors assigned are various instructions sufficiently set forth in the opinion of the Superior Court.</p>

<p>Appeal, No. 110, Oct. T., 1905, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1903, No. 217, for plaintiff on case stated in suit of David Reams v. D. B. Yeager.</p> <p>Case stated on certificate of justice of-the peace.</p> <p>Smith, P. J., filed the following opinion:</p> <p>This case came into the court on certificate from E. Fred Yosburg, Esq., justice of the peace at DuBois, Pennsylvania, said case having arisen before said justice by summary proceedings to obtain possession, under the act of June 16, 1836, as amended by Act of May 24, 1878, P. L. 134. Said amendment act of May 24, 1878, provides that the said summary proceedings shall be conducted before one justice instead of two and before six jurors instead of twelve, and in this case the writ issued by the justice commanded the sheriff to summon six jurors and the return of the sheriff shows that six jurors were summoned to appear before said justice on March 24,1903. On said return day, March 24, 1903, at the time set for hearing and before the jury were sworn, the defendant, D. B. Yeager, appeared and filed an affidavit setting up that he did not claim under the defendant in the judgment and execution by which the property was sold but by a different title, etc., and entered bail in the sum of $200, with sureties, as provided by said act of assembly. Whereupon the case was duly certified by said justice to the court of common pleas of Clearfield county.</p> <p>As appears by the case stated, the facts agreed upon are, that judgment was obtained by David Reams against Jessie Howat on September 7, 1902, upon which judgment execution was issued and the property in dispute levied upon and sold by the sheriff to David Reams, plaintiff in this case. The sheriff’s deed for said property was acknowledged and dated December 15, 1902. On December 16, 1902, David Reams, the plaintiff, gave notice to D. B. Yeager, tenant in possession of said property and defendant in this case, demanding possession of said premises within three months. The- said defendant, D. B. Yeager, refused to remove therefrom. Whereupon, on March 19, 1903, this proceeding was commenced before the said E. Fred Vosburg, a justice of the peace. The defendant, D. B. Yeager, according to the case stated, came into possession of said premises October 1, 1902, by lease from Jessie Howat, defendant in the judgment above recited, at a rental of $12.00 per month for a period of one year, and was in possession under said lease at the time of sale and remained in possession until on or about October 1, 1903. ■ Although the defendant made affidavit at the time fixed for the hearing, on March 24, 1903, that he did not claim under the defendant as whose property the same was sold but by a different title, it now appears by the case stated that this was a mistake and that he was in fact lessee of Jessie Howat by lease dated three days after the entry of the judgment of David Reams against Jessie Howat. No defense is set up by the defendant on the merits and the only defense urged by the counsel for the defendant is, that, the proceedings commenced' by plaintiff, David Reams, against D. B. Yeager, defendant, before E. Fred Vosburg, was under the amendment act of May 24, 1878, by virtue of which act the justice summoned only six jurors instead of twelve. Counsel for defendant alleges the unconstitutionality of the act of May 24, 1878, in so far as the second section thereof is concerned, providing for the selection of six jurors instead of twelve, and refers to the case of Moore v. Moore, 23 Pa. Superior Ct. 73, to • sustain said contention. It is clear that the act of May 24, 1878 is defective in so far as said section 2 is concerned, and we hold that the ruling of the Superior Court in Moore v. Moore controls us in our view of the unconstitutionality of section 2 of said act. We are, however, of the opinion that the plaintiff in this case is entitled to a verdict. The first section of the act of May 24, 1878, has been declared constitutional, giving jurisdiction to one justice, so that this proceeding, so far as the tribunal commencing the proceeding was concerned, had jurisdiction. The jurors summoned are of course a part of the tribunal when they act, but in this case, according to the facts in the case stated, no action was taken by them, because the right to so act was removed from that tribunal by virtue of the affidavit made by the defendant. Section 114 of the act of-1836 says, that upon defendant making the affidavit and being bound in recognizance as provided in a subsequent section of said act “ the said justices shall forbear to give judgment aforesaid.” The tribunal is the justice’s court and the jury are simply the aid in finding the facts. .In this case before they were even sworn the case was removed by the action of the defendant, and it then became by virtue of the certified record to the court of common pleas of Clear-field county an action of ejectment in that court, as provided • by the form of the recognizance in section 117 of the act of 1836.</p> <p>Irregularities of. proceeding in such eases are remedied by certiorari and the summoning of six jurors instead of twelve was simply an irregularity which could have been corrected by certiorari had the case gone on. As the record stands we do not consider that this mere irregularity in summoning the jurors to try the cáse by the justice constitutes a defense to this action, which is virtually only an action of ejectment, with the right to recover damages for wrongful detention. In Dean v. Connelly, 6 Pa. 239, and Walker v. Bush, 30 Pa. 352, it is held that the person in possession having made oath that “ he does not claim the land through or under the defendants as whose property the same was sold by title derived subsequently to the rendition of the judgment under which it was sold but by a different title ” becomes the actor in court and must establish that the title under which he claims is paramount to and different from the one sold by the sheriff, or else he fails. The trial, therefore, as we look at it, must be one on the merits, and no title in this case being shown by D. B. Yeager other'than that which he obtained as lessee of Jessie Howat after the entry of the judgment by David Reams, the defendant here has no defense and the plaintiff, David Reams, is entitled to a verdict for the premises. Plaintiff was entitled, therefore, to the rents, issues and profits of said premises from December 15, 1902 to October 1, 1903, at the rate of $12.00 per month, with interest from the different dates at which said $12.00 per month would fall due, making in all $126.98 at this date.</p> <p>Now, April 17, 1905, the prothonotary is directed to enter judgment in favor of David Reams, plaintiff, and against D. B. Yeager, defendant, first, for the premises described in said certified record of the justice, and, second, for damages for detention of the same in the sum of $126.98, with interest from this date and costs of suit. Exception noted to defendant and bill sealed.</p> <p>Krror assigned was in entering judgment for plaintiff on case stated.</p>

Appeal, No. 24, April T., 1906, from order of Q. S. Greene Co., May T., 1905, No. 1, dividing a borough ward into election districts in case of Waynesburg Borough’s North Ward. Petition for division of the North Ward of the Borough of Waynesburg into three election districts. Before Graweord, P. J. The facts appear by the opinion of the Superior Court. Error assigned amongst others was the order of the court.

<p>Boroughs — Election district — Appeals—Review.</p> <p>On an appeal from an order dividing a borough ward into election districts, where the order of the court below purports to divide the whole ward into three districts, the appellate court has no jurisdiction to determine a disputed question as to whether the three districts with the boundaries indicated in the order, make up the whole of the ward.</p>

<p>Appeal, No. 26, April T., 1906, from order of Q. S. Greene Co., May T., 1905, No. 8, dividing a township into election districts in the case of Franklin Township’s Election Districts. Before Rice, P. J., Beaver, Or-lad y; Smith, Porter, Morrison and Henderson, JJ. Affirmed.</p>

<p>Appeal, No. 103, Oct. T., 1905, by respondent, from judgment of C. P. No. 5, Phila, Co., March T., 1904, No. 12, on verdict for libelant in case of John E. Talley v. Susan E. Talley.</p> <p>Libel for divorce. Before Ralston, J.</p> <p>At the trial the respondent made the following offer:</p> <p>I offer to prove by two witnesses, who knew Mrs. Talley continuously up to the date of the trouble with her husband, that she had always borne a good reputation for virtue and chastity.</p> <p>Objected to. The answer to said offer being as follows : Objection sustained Exception for defendant. [1]</p> <p>I offer to prove that the plaintiff, John E. Talley, on or about September 10, 1901, while living with the respondent as man and wife, committed the crime of adultery.</p> <p>The answer to said offer being as follows:</p> <p>The court, addressing the witness:</p> <p>“ Q. When did you know of this? A. I knew from the condition of his clothes. Q. When? A. September 10. Q. The same night ? A. Yes, sir. Q. And you lived with him as his wife after that? A. Yes, sir. Q. For two years? A. Yes, sir.”</p> <p>Offer objected to. Objection sustained. Exception for defendant. [2]</p> <p>Respondent presented these points :</p> <p>11. If you believe, from the testimony, that the plaintiff, during the continuance of his married relations with the defendant, had been guilty of the like crime of adultery with which he has charged her in the libel filed, it is a good defense to this suit, and your verdict must be for the defendant.</p> <p>Answer: The defendant’s points are declined upon the ground that they are sufficiently covered in the general charge. [8]</p> <p>8. The two essential elements of the offense are, first, opportunity ; and second, adulterous desire or inclination of the parties charged. If these two facts appear in conjunction, you are at liberty to draw an inference of adultery provided you are satisfied thereof by a preponderance of the evidence, and believe the testimony offered in support of the charge. Either of these two facts alone would not be enough to justify you in returning a verdict against the defendant, and if you find that either is absent, your verdict must be in her favor.</p> <p>Answer: The defendant’s points are declined upon the ground that they are sufficiently covered in the general charge. [4]</p> <p>9. Mere friendly, indiscreet or suspicious conduct does not sufficiently show the guilty desire. Such actions must be considered with reference to the ethical standards of the party’s social equals. Appearances and circumstances equally capable of two interpretations should be decided in favor of the inference of innocence. Answer : Refused. [5]</p> <p>Yerdict and judgment for libelant. Respondent appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the biR of exceptions; (3-5) above instructions, quoting them.</p>

<p>Appeal, No. 35, Oct. T., 1905, by plaintiff, from order of G. P. No. 1, Pbila. Co., Dec. T., 1903, No. 2657 M. L. D., making absolute rule to strike off mechanic’s lien in case of William J. Collins, trading as Joseph H. Collins & Son, v. The Pennsylvania Railroad Company, owner or reputed owner, and M. F. Seeley, J. S. Seeley and C. R. De La Matyr, trading as Seeley, Son & Company, Contractors.</p> <p>Rule to strike off mechanic’s lien. Before Beitleb. J.</p> <p>The notice and affidavit were as follows :</p> <p>“ William J. Collins, trading as Joseph H. Collins & Son, v. Pennsylvania Railroad Company, owner or reputed owner, and Seeley, Son & Company, contractors.</p> <p>“ Philadelphia, October 30, 1903.</p> <p>“ To the Pennsylvania Railroad Co.:</p> <p>“ Please notice, that it is my intention to file a mechanic’s claim against the grain elevator, power house, stock and office building erected upon the lot of ground at Germantown Junction in the city of Philadelphia, bounded by Park avenue, Sedgeley avenue, Clearfield street, and Thirteenth street.</p> <p>“ Very truly,</p> <p>“William J. Collins,</p> <p>“ Trading as Joseph H. Collins & Son.”</p> <p>“ City and County of Philadelphia, ss. :</p> <p>“William J. Collins, trading as Joseph H. Collins & Son, being duly affirmed according to law, says: I claim from the Pennsylvania Railroad Company, owner or reputed owner, and Seeley, Son & Company, contractors, the sum of $1,134.62, with interest from September 5, 1903, the said sum being the balance due me of the sum of $13,236.04 for materials, to wit: Lumber furnished by me to the said Seeley, Son & Company, for, in, and about the erection and construction of the grain elevator, power house, stock and office building erected upon the lot of ground at Germantown Junction, in the city of Philadelphia, bounded by Park avenue, Sedgeley avenue, Clearfield, and Thirteenth streets, between January 17,1903, and September 5, 1903, on which last mentioned date the last of said material was furnished to the said Seeley, Son & Company, contractors, as aforesaid. The said lumber was furnished by me in pursuance of a verbal contract between Seeley, Son & Company and myself.</p> <p>“ I have been informed, and in consequence of such information further notify you, that the buildings aforesaid were erected and constructed by the said Seeley, Son & Company, in pursuance of the agreement made and executed between the said Pennsylvania Railroad Company and the said Seeley, Son & Company for the erection and construction of the said buildings.</p> <p>“ Affirmed and subscribed, etc.</p> <p>“ Wm. J. Collins.”</p> <p>The court made absolute rule to strike off the lien.</p> <p>Error assigned was the order of the court.</p>

<p>Affidavit of defense — Supplemental affidavit — Practice, C. P.</p> <p>A supplemental affidavit of defense cannot be said to be contradictory of the original affidavit of defense, where the supplemental affidavit is fuller and more specific than the original, and it appears that the facts averred in it are not irreconcilable with the facts expressly averred in the original, or with the necessary inferences to be drawn therefrom. •</p> <p>Promissory notes — Payment of debt — Affidavit of defense.</p> <p>In an action upon a promissory note, an affidavit of defense is sufficient which avers that prior to the giving of the note, a third person had paid to the plaintiff, at a time and place stated, for and on behalf of the defendant, the full amount of the claim for which the note was given “for the purpose of liquidating the said claim in full, if any, that the said plaintiff had,” and that this fact was not learned by the defendant until after he had given the note. ■</p>

<p>Appeal, No. 94, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1900, No. 729, on verdict for plaintiff in case of Abner E. Dotterel* v. John H. Scott.</p> <p>Assumpsit to recover money paid under mistake.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $976.64, upon which judgment was entered for $891.04, all above that amount having been remitted.</p> <p>Errors assigned were as follows :</p> <p>1. Refusal of the learned court to affirm the defendant’s second point-.</p> <p>2. Under all the evidence in the case the verdict should be for the defendant.</p> <p>The refusal of the court to permit the clerk to call eight more jurors so that defendant could exercise his right to have four peremptory challenges.</p>

<p>Marriage — Breach of promise — Contract—Assumpsit—Action.</p> <p>Damages for breach of promise of marriage were recoverable in an action of assumpsit prior to the procedure Act of May 25, 1887, P. L. 271, and the action is still assumpsit and not trespass.</p> <p>Execution — Exemption—Breach of promise of marriage — Marriage—Act of April 9, 1849, P. L. 533.</p> <p>A defendant against whom a judgment has been rendered in an action for breach of promise of marriage, is entitled to the benefit of $300 exemption allowed by the Act of April 9, 1849, P. L. 533.</p>

<p>Appeal, No. 41, Oct T., 1905, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1904, No. 469, on verdict for plaintiff in case of Mabel E. Norris and S. W. Norris v. H. E. Clark.</p> <p>Assumpsit for the cutting and delivery of logs. Before Smith:, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $182.49. Defendant appealed.</p> <p>Errors assigned (1-21) sufficiently appear by the opinion of the Superior Court.</p>

<p>Appeal, No. 116, Oct. T., 1905, by defendants, from order of Q. S. Northumberland Co., Sept. T., 1904, No. 22, overruling order of removal in case of Directors of the Poor and of the House of Employment of Schuylkill County v. Overseers of the Poor of Jackson Township, Northumberland. County.</p> <p>Appeal from order of removal. Before Auten, J.</p> <p>The parties agreed upon the following case stated :</p> <p>1. Emma J. Kembell was born, raised and had a legal settlement in Jackson township, Northumberland county, and whilst a single woman was delivered of a male bastard child, in said township of Jackson, Northumberland county, on or about October 11, 1888, which said bastard child is known by the name of Harrison Cleveland Kembell, and had always resided in said township of Jackson.</p> <p>2. That the said Harrison Cleveland Kembell became a charge upon the poor district of Jackson township, aforesaid, on or about March 22, 1898, as a pauper by regular proceedings had for that purpose and has been maintained as a pauper by Jackson township down to the present time.</p> <p>3. The said Emma J. Kembell, the mother of said bastard, on or about the beginning of March, 1898, entered in and was employed for weekly wages as a housekeeper for a certain Elias Klinger, in Upper Mahantongo Township, Schuylkill county, being part of the Schuylkill county poor district, and continued in the said employment until February 22, 1900, at which time she, the said Emma J. Kembell, was lawfully married to her employer, Elias Klinger, pursuant to a marriage license issued by the proper officer of Schuylkill county. The said Elias Klinger is not the father of the said Harrison Cleveland Kembell.</p> <p>4. After the said marriage, the said Emma J. Kembell became known as Emma J. Klinger. The said Elias Klinger being at the time of said marriage the administrator of the estate of a former wife of his, and as such administrator sold certain real estate to her, the said Emma, on or about May 3, 1900, for the consideration of the sum, of $360 and made a deed to her conveying the same to her in fee, and that the said Emma and her said husband dwelled upon it since then.</p> <p>5. The said Emma J. Klinger was immediately assessed with all taxes such as are levied for county and other purposes, and paid the same to the proper collectors ever since she became the owner of the said premises; the said premises being situated in Upper Mahantongo Township, Schuylkill county.</p> <p>6. The proceedings in this case were regularly commenced by information by the overseers of the poor of Jackson township poor district before a justice of the peace residing outside of the said township of Jackson, and at the hearing the said justice called another justice of said county, as provided by law, and the two said justices adjudged that the place of settlement of the said Harrison Cleveland Kembell was in the poor district of Schuylkill county, and granted an order of removal for the said Harrison Cleveland Kembell to the poor district of Schuylkill county. The said order of removal or a copy with the findings of the said justices, is attached to the appeal entered to the number above mentioned, and the same is made a part of this case stated.</p> <p>Error assigned was order overruling order of removal.</p>

<p>Appeal, No. 126, Oct. T., 1905, by DuBois Borough, from order of Q. S. Clearfield Co., Sept. T., 1899, No. 4, setting aside road proceedings in case of Union Township Road.</p> <p>Petition to set aside road proceedings. Before Patton, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned are quoted at length in the opinion of the Superior Court.</p>

<p>Negligence — Toumships—Defective road — Notice—Contributory negligence —Province of jury.</p> <p>In an action by a woman against a township to recover damages for personal injuries, the evidence showed that at the time of the accident plaintiff was riding in a wagon by the invitation of the owner. She was seated on a high spring seat near the front of the wagon, and she testified that she was holding on to the back of the seat and exercising due care. While thus seated one of the wheels of the wagon dropped into a rut or hole in the road, and plaintiff was thrown out and injured. It did not appear that plaintiff had knowledge of the condition of the road; but the road had been in a bad condition for such a period of time, as to amount to constructive notice to ' the supervisors. Held, that the question of negligence and contributory negligence was for the jury and that a. verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 149, Oct. T., 1905, by plaintiff, from order of C. P. Lancaster Co., Dec. T., 1902, No. 1, sustaining exceptions to taxation of costs in case of William F. Klugh v. Pennsylvania Railroad Company.</p> <p>Exceptions to taxation of costs.</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. 147, Oct. T., 1905, by defendant, from judgment of C. P. Lancaster Co., April T., 1905, No. 1, on case stated in case of Frank Hoakv. Lancaster County.</p> <p>Case stated to determine liability of county for compensation of an assessor.</p> <p>Landis, P. J., filed the following opinion :</p> <p>The plaintiff in this case was elected as assessor of Paradise township on February 18, 1904, for a term of three years, and, having been duly qualified, entered upon the duties of his office. In pursuance of the Act of May 8,1854, sec. 85, P. L. 617, it devolved upon him, as assessor, “to assess such persons as may remove into ” his district “between the last assessment and the first of May in each year, or who may have been omitted from the last assessment, and to return their names, with the amount of state and county tax, payable by each, to the board of school directors, who shall thereupon assess the amount of school tax payable by such persons,” etc. In the performance of the said duty, he was actively engaged in the year 1904, for a period of eleven days. He claims that he is entitled to compensation for these services at the rate of $2.00 per day, and that the county of Lancaster owes him for the samé the sum of $22.00. The liability of the county for this amount is the question now presented.</p> <p>By the Act of April 15, 1834, sec. 89, P. L. 537, it is enacted that “ it shall be the duty of each assessor and assistant assessor to keep an account of the several days by him actually employed in the performance of his duties and to make return of the same to the commissioners of the county, verified by his oath or affirmation; and for each day necessarily so employed, he shall receive the sum of one dollar.” By the Act of May 24, 1887, P. L. 195, this section was amended so as to increase the compensation of assessors to $2.00 per day. It left the original act identically the same in all other respects. Being a mere amendment to the act of 1887, it is to be read into the act of 1834, as if its provisions had always been there: Marquette v. Berks County, 3 Pa. Superior Ct. 36; Dilley v. Luzerne County, 8 Pa. C. C. Rep. 162. These acts, although fixing a per diem pay for the assessor’s services, do not expressly declare by whom it shall be paid. The same condition exists as to the national guard Act of April 13, 1887, sec. 119, P. L. 23, where the assessor is allowed three cents for each person enrolled. There are no specific directions concerning them imposing an obligation upon the county, but it has been the long-standing custom for the county to pay-, and, before this, its liability in such cases seems never to have been seriously contested.</p> <p>A distinction, however, is attempted to be made in the services here rendered: First, because, as it is asserted, the act of assembly makes no provision for the payment of any amount by the county; and, second, because the services are rendered for the school district and not for the county.</p> <p>It must be admitted that the established rule is that he who claims payment from the county funds must be able to point to the statute that authorizes it. This rule must, however, be taken with a few exceptions, and, besides, it is applied more especially to criminal proceedings. It has been decided that some things relating to the performance of public duties are to be compensated, although no enactment makes specific provision for them. Thus, a county is required to furnish fuel to keep the prisoners warm in jail: Richardson et al. v. Clarion County, 14 Pa. 198. It is liable for expenses made necessary in the custody of records : McCalmont v. County of Allegheny, 29 Pa. 417. A coroner has authority to bind it for the professional services of a physician in post-mortem inquests : Northampton County v. Innes, 26 Pa. 156. It must pay for the expenses of boarding and lodging a jury impaneled in a capital case, and for a physician summoned by order of court to attend a juror in such a case, who becomes suddenly ill: Commis-</p> <p>sioners v. Hall, 7 Watts, 290; and also for printing the trial lists of issuable cases in a newspaper for the information of the public: Yenango County v. Durban, 3 Grant, 66. In other words, there must be express liability imposed upon the county, or such as can be reasonably implied from the nature of the transaction : Wayne County v. Waller, 90 Pa. 99. In Union Township v. Gibboney, 94 Pa. 534, Mr. Justice Texjnkby says : “ Undoubtedly-a county or township may be legally liable for a debt without the active agency of the commissioners or supervisors.”</p> <p>It is true that, in County of Lehigh v. Semmel, 124 Pa. 358, it was held that public officers who are paid for their services by fees take and hold their offices cum onere, and can claim, therefore, no compensation out of the public treasury not specified or provided for in the fee bill. The plaintiff, however, is not paid by fees, but only for his actual time while performing his duty. There is, for this reason, it seems to me, no analogy between the cases. In Corr v. Lackawanna County, 163 Pa. 57, by the Act of. June 19, 1891, P. L. 849, sec. 13, it was directed that the ballots for elections in boroughs and townships for election officers and school directors should “ be printed and distributed by the auditor's, who ” should “ certify the costs of such printing and distribution to the county commissioners for payment as part of a (the) county .election expenses.” The act was silent upon the subject of pay to the auditors for performing such services. But the Act of May 4, 1889, P. L. 86, fixed the compensation of borough and township auditors at $2.00 per day necessarily employed in the duties of their office. The Supreme Court held that they'were entitled to be paid by the county at that rate. Also, in Blinker v. Northampton County, 5 North. 275, Judge Scott, in a carefully considered opinion, decided that the county was liable, for the per diem compensation to assessors for making the registration of children between the ages of eight and thirteen and making return to the commissioners, under the compulsory school law of May 16, 1895, P. L. 72, although the act, while stating that the assessors should “ be paid a per diem compensation for their services a sum equal to the compensation paid under existing laws for assessors of election,” did not, in express words, charge the payment upon the county stock. It seems to me that the act of 1834 and its supplements contemplate the payment of the assessors for all services imposed upon them at $2.00 per day for the days actually employed, and I cannot see why it should be necessary for each subsequent act, creating additional duties, to specifically order the county to make payment to them, at the risk of their being obliged to perform such services without compensation. The whole tendency of the legislation, placing, from time to time, new duties on assessors, indicates, to my mind, an intention to pay from the county stock for all services which the legislature thus directs them to discharge, and, if the contention of the defendant is the true one, this case is wholly exceptional, and will, in fact, be the only case in which assessors are deprived of pay from the county for duties executed by them in pursuance of the law. I, therefore, have concluded that the plaintiff is entitled to be paid, at least by some one, for his services in making this extra assessment, and I also think the county is responsible for the payment.</p> <p>But it is urged that the school district and not the county receives the benefit and that it should pay the bill. Even if it is true that the assessment is made for the sole benefit of the school district, that fact does not seem to me to in any wise affect the results. The 29th section of the common school act of 1854 provides, “ That for the purpose of enabling the board of directors or controllers to assess and apportion the tax for the ensuing school year, the county commissioners shall, when required, furnish the president and secretary of the board with a correct copy of the last adjusted valuation of proper subjects and things made taxable in the same for state and county purposes ; ” and section 39, which we have fully quoted above, makes it the duty of the assessors to assess such persons as may remove into the respective districts, etc., and return their names, with the amount of state and county tax payable by each, to the board of school directors. If the county commissioners are to certify a correct copy of such adjusted valuation to the school board, it seems to me to follow that whatever expense attends such certification must be paid by the county. This the defendant apparently concedes, and I am, therefore, relieved of the necessity of elaborating the proposition. But section 39 of the act I construe to be only a completion of the general plan of assessment devolving upon the countj’-, and, through it, conveyed to school boards, to enable the directors intelligently to levy the school tax. Can it be that it is a new assessment, made for the sole benefit of the school boards; rather than supplemental to thepriginal assessment, and in the nature of a certified copy of the omitted state and county taxpayers ? The school boards neither assume nor have they imposed upon them by this act any responsibility for the costs attending it, and can the assessor hold them responsible for his labor any more than he can the county ? The county, I think, 'is at least the agent of the school district in this respect, just as it is the agent of the commonwealth in the collection of the state tax, and liable, in like manner, for the costs. If the argument be a valid one that the work is done for the school board, the county, with as good grace, can ask the school board to pay at least a pro rata part of the original assessment, and the whole of the certification. Attorney General Elkin, in In re Liability of County for Pay of Assessors, 5 Pa. Dist. Rep. 253, reached a similar conclusion in regard to the enumeration of children between the ages of eight and thirteen under the compulsory school law of May 16,1895, P. L. 72; and Attorney General Carson, in School District Assessments, 27 Pa. C. C. Rep. 671, in considering the very question now before us, arrived at the same results as are here announced.</p> <p>My colleague does not agree in this conclusion. He holds that this work is done solely for the school district and not for the county, and that the school district is liable, and not the county. His position is, that the county is liable to pay only where the service is done for the county, or when it is done in pursuance of some duty imposed upon the county, or made a county matter, and that this case does not fall within these lines; that the work of the assessor does not benefit the county, and as the school board can only levy a tax on those who are liable, to a tax for state and county purposes, it is necessary that a return of the new or omitted names be made; that the test of liability to be taxed for school purposes is liability for county tax, and that the responsibility of the county to pay ends when it furnishes the assessment list to the school district; that this is the only duty imposed upon the county, and the changes are to be made by the school district for the school district and must be paid by it. He does not, however, enter a dissent, recognizing that a judgment in the case should be entered, so that the question, if desired, may be properly reviewed. It may be that he is right, and that an appellate court may consider the case in the same light; but I am, for this reason, led to add that I cannot see that the school boards have anything to do with the assessment of state and county taxes, for they certainly ■have no power to levy them. Yet section 35 of the act of 1854 directs the assessors to “ return their names with the amount of state and county tax payable by each to the board of school directors.” It seems to me that the making of the extra assessment belongs as much to the county as the making of the original one, and that the original assessment gives information which the additional assessment completes.</p> <p>The assessor who does this work should be paid for his services. This does not seem to be disputed. The controversy, instead, however, of being between the assessor and the county, seems to have shifted so that it is really between the county and the school districts, the money, in either event, coming from the people’s purse alike, though, of course, not exactly in the same way nor with the same effect on all individual citizens of the county.</p> <p>As there is no dispute as to the services having been fairly performed by the plaintiff, I think judgment in accordance with the terms of the case stated should be entered in favor of the plaintiff for the sum of $22.00, and that is, therefore, ordered to be done.</p> <p>Judgment for plaintiff.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeals — Certiorari—Justice of the peace.</p> <p>Where on an appeal from.a judgment of the common pleas affirming a judgment of a justice of the peace brought before the common pleas by certiorari, the record shows jurisdiction in the justice and a proper service of process upon the defendant the appeal to the Superior Court will be quashed. The judgment of the common pleas in such a case is final.</p>

<p>Appeal, No. 174, Oct. T., 1905, by J. R. Watkins, Assignee of Eneas F. Smith, from order of C. P. Chester Co., April T., 1905, No. 23, discharging rule to set aside execution in case of Aaron Charles v. Eneas F. Smith.</p> <p>Rule to set aside writ of fieri facias. Before Hemphill, P. J.</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. 193, Oct. T., 1905, by John Stolz and Catharine Stolz, from decree of O. C. Bucks Co., Sept. T., 1905, sustaining exceptions to auditor’s report in Estate of Jacob Riemensberger, deceased.</p> <p>Exceptions to report of Jerome Fackenthall, Esq., auditor.</p> <p>Stout, P. J., filed the following opinion :</p> <p>John Stolz and Catharine Stolz, the claimants, are husband and wife. Catherine Stolz is a sister of the deceased, and her husband, John Stolz, is the administrator of his estate.</p> <p>In filing his administrator’s account, John Stolz took credit for three payments to himself and his wife for board, nursing and services, itemized as follows:</p> <p>John Stolz, services five years . . . $500 00</p> <p>John Stolz, board and nursing one year . . 300 00</p> <p>Catharine Stolz, services six years . , 600 00</p> <p>These items, together with others, were excepted to, the account was referred to an auditor, who dismissed the exceptions. The exceptions before the court are to the report of the auditor and go to the three items above named.</p> <p>The decedent was a single man and lived on his farm in Bed-minster. He kept a housekeeper. At times he had been sick and John Stolz and his wife took care of him when sick. The last time he was taken sick his housekeeper left him. Just when he was taken sick does not clearly appear, but it was some time prior to November preceding his death. During his sickness on the farm he was nursed and taken care of by Stolz and his wife. In November preceding his death he sold his farm and was removed to the home of Stolz, where he was boarded, nursed and taken care of until he died, February 7, 1908. That Stolz and his wife rendered substantial services during this last illness appears from the testimony of the witnesses. Aaron Kratz, an officer of the Easton Trolley Company, testified that Stolz was employed at the power house of the company; that he was away from his work a great deal; that they needed him; that for that reason he called on the decedent at his home in Bedminster; that he found him sick in bed and did not expect him to go oút again ; that he told the decedent that John (Stolz) was neglecting his work, that the decedent then said, “ John and his wife must take care of me and they shall be well paid for it.” That he repeated this to the superintendent of the company and they let him off. Some time after this the decedent was removed to the home of John Stolz, where he died. No board, nursing or care was furnished the decedent during his last illness by any other person. In view of the fact that John Stolz gave up his work with the trolley company and devoted himself to the care of the decedent, the claim of $300 for himself and his wife for boarding and nursing during the period named, seems to be reasonable in amount and is allowed, and the exception thereto is hereby dismissed.</p> <p>Catharine Stolz presented no claim based on services to decedent during his last illness, and the court assumes that the claim made by her husband included the services rendered by her.</p> <p>The other two items excepted to stand upon an entirely different basis. They do not seem to relate to boarding or nursing during the last illness or any other time, but rather to services rendered to the decedent while he lived on the farm in Tinicum. John Stolz does not claim his services were rendered under a contract. He admits he has no written contract for the services of his wife, but claims there was a verbal contract as to them. No testimony, however, is offered to prove the contract or its terms. Therefore, in each case, it rests upon the claimant to prove the services for which he seeks to recover. In this they make no attempt.' They do not show what the services were, when, where or undér what circumstances they were rendered. There is nothing whatever before the court to support the claims. It is true that declarations were made by the decedent in his lifetime to disinterested third parties that they had worked for him ; that he owed them a lot of money and that they never had a settlement, and that when asked by one witness whether it was as much as $800, he said, “ Yes, more ; ” that they should be paid for all they did for him; that any balance after these payments should go to Mrs. Stolz, as she was the only person he could depend on. But he did not state how much he owed them or either of them.</p> <p>Claims for personal services which might have been presented to the debtor during his lifetime are the subjects of suspicion when presented after his death, and must be proved by clear and explicit testimony: Miller’s Estate, 159 Pa. 575.</p> <p>Claims for services against a decedent’s estate must be established by evidence other than that of mere loose declarations, and must be such as to clearly and distinctly establish a contract, whether express or implied, between' the claimant and the decedent: Estate of Rachel Weaver, 182 Pa. 349.</p> <p>In many respects the facts in this case are like the facts in the Estate of Mahlon Miller, deceased, 136 Pa. 239, where Mr. Justice Gbeen, delivering the opinion of the court, says : “ The other great overshadowing obstacle in the way of recovery, is the utter absence of the proof of the services.” '</p> <p>From the testimony of John L. Kulp and Jacob S. Snyder, it is evident that when the decedent spoke to them of his indebtedness to Stolz and his wife, he referred to the indebtedness for services rendered him on the Tinicum farm. Mr. Kulp says, “ He said lie did not know how much he owed them, but that they had worked for him on his farm in Tinicum for five or six years. He sold this farm eight years ago and bought a place in Bedminster.” Again, “ From what Riemensberger said, I considered that he owed them $800, and $600 for working on the farm. From what he told me, I do not think the charges in the settlement would compensate them for all they did for him.” If this were so, and the claims were fully made out, they would be barred by the statute of limitations.</p> <p>An acknowledgment of a debt to take it out of the statute of limitations must be made to the creditor or to his agent-: McKinney v. Snyder, 78 Pa. 497.</p> <p>A promise made to a stranger who has no interest in the transaction does not bind the promising party: Spangler v. Spangler, 122 Pa. 358.</p> <p>Now, June 15, 1905, the exceptions to item of credit to John Stolz “ for boarding and nursing, $300,” is dismissed, and the exceptions as to the items of “ John Stolz, services five years, $500,” and of “ Catharine Stolz, services six years, $600,” are hereby sustained. The auditor is directed to restate the account in accordance with this opinion and distribute the balance shown by the restated account to the persons entitled thereto.</p> <p>Brrors assigned were in sustaining exceptions to auditor’s report.</p>

<p>Boroughs — Sidewalks—Duty of owner — Notice—Equity.</p> <p>A borough has power to ordain the laying of sidewalks by the abutting owners, and upon their default, to lay the walks and collect the cost, with an addition of twenty per centum, as provided by the general borough law of April 3, 1851, sec. 2, P. L. 320. The owner, however, cannot be deemed in default, if he has not received reasonable notice to do the work.</p> <p>Where a borough ordinance fixes sixty days as the period of notice to lay sidewalks, and the ordinance applies to certain streets only, a subsequent ordinance applying to other streets of the borough, and fixing thirty days as the period of notice, is void.</p> <p>A court of equity has jurisdiction to restrain borough authorities from enforcing an ordinance requiring owners to lay sidewalks within thirty days, where it appears that such ordinance is invalid, and that no appeal to the quarter sessions could be heard until after the expiration of thirty days. In such a case the remedy at law is inadequate.</p>

<p>Wills — Fee or life estate — Presumption—Disposal of entire estate — Disinheriting heir — Mingling of real and personal property — Gift to widow.</p> <p>It is a presumption of law that a testator intends to dispose of his entire property.</p> <p>The heir is not to be disinherited except by express words or necessary implication.</p> <p>The blending of real and personal estate in a testamentary disposition may, in the absence of any inconsistent provision, indicate an intention to give the same interest in both, and hence that when the language employed is such as to create a fee in the realty the testator intends to make the gift of the personalty absolute. But even terms expressing an absolute gift of the personalty will not create a fee in the realty, when it appears that it is the intention of the testator to give a less estate.</p> <p>Testator stating that it was his intention to dispose of his whole estate, gave and bequeathed to his wife all of his estate real, personal and mixed “to be held for her own use and benefit so long as she shall remain my widow.” He appointed his wife and son executors and gave them full power to sell real estate. There was no residuary clause in the will. Held, that the widow did not take a fee in the real estate.</p>

<p>Execution — Judgment—Fraud.</p> <p>The issuing of an execution for an amount largely in excess of what is actually due, there being no uncertainty in the mind of the plaintiff as to the amount of the indebtedness, without any other evidence of fraudulent purpose, is a fraud upon the rights of subsequent creditors.</p> <p>While the parties may agree that a judgment may remain on the record as security for other debts, this cannot be effective to the prejudice of innocent third parties.</p> <p>Fraud, while concealed, is beyond the reach of the law, yet concealment is itself indicative of fraud, and, if unexplained, establishes a presumption of fraud which its author must rebut, or bear the consequences. If a party chooses to blend a claim which the law permits with one which it pronounces fraudulent, in an attempt to enforce them by the same process, he cannot look to the court to separate them, and preserve the former while avoiding the latter. Being united by the act of the party, they must stand or fall together, as a whole. The fraud inhering in part of the collective claim must be held to taint the whole, and the claim which, standing alone, would be valid, must fall with the fraudulent one with which it is combined.</p>

<p>Appeal, No. 52, Oct. T., 1905, by plaintiffs, from judgment of C. P. Clearfield Co., Sept. T., 1908, No. 195, on verdict for defendant in case of C. C. Hoover and M. Hoover trading as C. C. Hoover & Company v. Beech Creek Coal & Coke Company.</p> <p>Assumpsit for drilling a well. Before Smith, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instruction for defendant.</p> <p>Yerdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 169; Oct. T., T905, by plaintiff, from decree of C. P. Huntingdon Co., Sept. T., 1905, No. 120, dismissing bill in equity in case of A. S. Welch and Harry Kyper v. W. T. Sheaffer, Henry Shue and James King.</p> <p>Bill in equity for an injunction. Before Woods, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>jError assigned was the decree dissolving the injunction and dismissing the bill.</p>

<p>Appeals, Nos. 112 and 113, Oct. T., 1905, by defendant, from judgment of Q. S. Lancaster Co., Nov. T., 1904, Nos. 30 and 40, on verdict of guilty in case of Commonwealth v. Jacob D. Rider and W. H. Ruffhead. Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ. Reversed.</p> <p>' Indictment for assault and battery. Before Hassler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendants presented these points :</p> <p>1. Under the evidence there can be no conviction of the defendants for aggravated assault and battery. Answer: This point we refuse. [1]</p> <p>2. If the jury believe that the prosecutor, Roland Greiner, was attempting, at the time of the occurrence of the acts complained of, to collect an illegal and exorbitant amount of toll, the defendants had the right to pash their way through the gates, after offering to pay the legal and proper amount, using no more force than was necessary under the circumstances. Answer: That point we affirm, as we have explained to you in our general charge. There is no evidence, however, that there was an illegal or exorbitant amount of toll demanded. The defendants say, I think, forty-six cents, you will remember the amount that was demanded. There is no evidence that that was an illegal or exorbitant amount. But, as I have said to you, if he was demanding more than the company was entitled to, the defendants had their right, but their right was not to commit either of the offenses charged in this indictment. I affirm the point, if you find that illegal and exorbitant toll was demanded, but I say to you that the evidence does not show that any such toll was demanded from these defendants. [2]</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them; and (6) portion of charge as to doubt quoted in the opinion of the Superior Court.</p>

<p>Contract — Ratification—Corporation—President.</p> <p>Ratification of a contract implies knowledge of the material facts, and to be effective must be made by persons having the power to perform the act which is the subject of -ratification. In the absence of evidence that the facts were communicated to the party, or that he 'had knowledge of them and assented to the acts alleged to have been done for him, the question of ratification should not be submitted to the jury.</p> <p>Ratification may be shown by proof of facts from which it may be lawfully presumed, but the facts must be such as are inconsistent with another hypothesis than that the person whose ratification is sought to be established approved and intended to adopt what had been done in his name. The question ought not to be submitted for the determination of the jury upon evidence which does not logically lead to the conclusion sought to be established.</p> <p>In an action against a religious corporation to recover the price of a portrait alleged to have been sold to the president of the corporation, it appeared that the president had no authority under the constitution and by-laws to purchase such a picture. The evidence showed that after the portrait was painted, it was hung for exhibition in the synagogue of the defendant. It was taken away for a time but subsequently returned. The portrait was hung in the synagogue for the accommodation of the plaintiff, and it was not until about a year after it had been placed there that the alleged sale was made. Soon after the alleged sale the president died. Plaintiff testified that he had had a conversation with the succeeding president with reference to the portrait, in which the latter said that he knew all about the' arrangements that had been made, and that he knew that the portrait was hanging in the synagogue. Held, that the evidence was insufficient to submit to the jury, to determine whether there had been any ratification of a contract for the purchase of the portrait.</p>

<p>Railroads — Use of streets — Construction of watch-box on sidewalk — Municipal consent — Injunction-</p> <p>A railroad company cannot be enjoined by a property owner from constructing a watch-box partly upon the owner’s sidewalk, where it appears that the company has the consent of the city for such construction, that the watch-box is to be used in connection with a safety gate and is of proper construction, and that the erection of the box wholly within the street would interfere with the use of the driveway, and as constructed on the sidewalk would leave ample room for the passage of pedestrians.</p>

<p>Appeal, No. 125, Oct. T., 1905, by plaintiff, from judgment of C. P. Bedford Co., Jan. T., 1908, No. 85, on verdict for plaintiff in case of Susan Barley, Jr., v. John H. Beegle.</p> <p>Assumpsit for the keep of horses and to recover the value of certain articles of personal property taken by defendant. Before-Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Insurance — Mutual companies — Assessments—Withdrawals—Receivers.</p> <p>A mutual insurance company does not by permitting a member to withdraw, relieve Mm from Ms obligation to pay Ms proportion of losses incurred during the life of his policy, even where they were not charged against him prior to his withdrawal. He must pay the proportion of all liabilities occurring during the continuance of his policy up to the time of his withdrawal.</p> <p>An order of the court having jurisdiction of the subject directing the receiver of an insolvent mutual insurance company to make assessments on policies to cover losses during the period of the life of the policies, is conclusive both as to the necessity for and the amount of the assessment, and cannot be questioned in either respect in any collateral or ancillary proceeding.</p>

<p>Appeal, No. 123, Oct. T., 1905, by-defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1904, No. 4337, making absolute rule for judgment for waiit of a sufficient affidavit of defense in case of West Point Cotton Mills v. Richard A. Blythe.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Defendant’s affidavit of defense was as follows:</p> <p>Deponent admits that on December 2 or 3, 1903, the plaintiff consigned to the defendant the yarn mentioned in the statement of claim, and further admits that after the sale of said yarn, and after deduction for discount and commission, as set forth in the statement, plaintiff was entitled to $706.94.</p> <p>Deponent further admits that payment of the check for the said sum of $706.94 was stopped, as set forth in the statement, for the reasons hereinafter set forth.</p> <p>That as a defense to the claim of the plaintiff, deponent avers as follows:</p> <p>Plaintiff company is engaged in the business of spinning and weaving yarns at its mills in West Point, Mississippi, and the defendant is a commission broker in yarns and cottons in the city of Philadelphia.</p> <p>That for a period of several years past, plaintiff and defendant have had numerous transactions with each other in the matter of buying and selling yarns and warps, and sales and purchases were made and accounts entered into between the parties during said period.</p> <p>That on September 19, 1904, the plaintiff telegraphed to defendant to sell 15,000 pounds of 36-2 ply at twenty-two cents per pound, a copy of which telegram is hereto annexed, marked exhibit “A,” together with the translation thereof under the code agreed upon between plaintiff and defendant as follows: “ Telegraphed sell 15,000 pounds 36-2, 22c., wire answer.”</p> <p>That the best price which the defendant could procure for said yarn was twenty-one and three-fourths cents, and sent an order for 7,500 pounds of said yarn at said price of twenty-one and three-fourths cents, informing plaintiff that unless the defendant sold the same at the price of twenty-one and three-fourths cents he would lose the sale thereof; but if plaintiff would not accept the said price as named by defendant, then, as stated by the defendant, the price of twenty-one and three-fourths cents or twenty-two cents was left entirely in the hands of the plaintiff. That copies of said order and communication sent therefor are hereto annexed, marked exhibits “ B ” and “C.”</p> <p>That after said order was sent, plaintiff refused to ship said yarn, and has still refused to ship the same, after repeated demands made by the defendant.</p> <p>That the customer of the defendant for whose account said yarn was ordered by the defendant of the plaintiff, having made demand upon the defendant for the delivery of said 7,500 pounds of yarn, the defendant, after due notification to the plaintiff that he would go into the open market and purchase the said yarn at the best price that the same could be purchased for, and would hold the plaintiff liable for the difference, did go into the open market and purchase 7,500 pounds of yarn at the best price that the same could be purchased for, at the time of said purchase, to wit: twenty-five cents per pound, in the month of October, 1904.</p> <p>That the loss to the defendant of 7,500 pounds of yarn at twenty-five cents per pound, less the usual and customary discount and commission, amounted to $207.34.</p> <p>That there was due to plaintiff by the defendant for account of yarns sold on September 1,1904, the sum of $706.94. That in the latter part of September, 1904, the defendant sent his check to the plaintiff for the said sum of $706.94.</p> <p>That because of a dispute having arisen between the plaintiff and defendant by reason of the failure of the plaintiff to ship the yarns as above set forth, and which dispute was not adjusted between the parties until the early part of November, 1904, and for the purpose of enabling the defendant to properly adjust his just- and true account between himself and the plaintiff for the yarn consigned as mentioned in plaintiff’s statement, and for other yarns and interest accounts due by the defendant to the plaintiff, the defendant did, on November 11, 1904, send to plaintiff his certain check for the sum of $616.11, being in full of all accounts and transactions between the parties, plaintiff and defendant, as follows:</p> <p>Amount due plaintiff on Sept. 1, 1904, $706.94</p> <p>Interest on same, '. . . . 1.98</p> <p>■-708.92</p> <p>Interest on last mentioned sum from</p> <p>September 1 to Sept. 20, 1904, . . . 3.55</p> <p>Other sales for account of plaintiff . . . 101.36</p> <p>$813.83</p> <p>Interest on last mentioned sum from</p> <p>October 1 to November 1, 1904, . . . 4.21</p> <p>Other sales for account of plaintiff, . . 5.41</p> <p>$823.45</p> <p>That when defendant sent to plaintiff his check for $616.11, as aforesaid, he sent at the same time, inclosed in the same envelope, a statement of all transactions and accounts between the parties, together with a written memorandum of defendant’s claim for three cents per pound, being the difference at which plaintiff sold the yarn to defendant, and the price at which defendant was obliged to purchase the same after the plaintiff’s refusal to deliver it, as above set forth, and which memorandum shows a credit to the plaintiff of the usual and ordinary five per cent commission of three per cent discount liable in the trade, and which said check of $616.11, as accompanied by the said statement and memorandum as aforesaid, was accepted in full of all accounts between the plaintiff and defendant.</p> <p>That copies of said check, statement and memorandum are thereto annexed, marked exhibits “ D,” “ E,” “ F.”</p> <p>“ Exhibit ‘ C.’</p> <p>“ Sept. 21st, 1904.</p> <p>“West Point Cotton Mills,</p> <p>“ West Point,' Miss.</p> <p>“ Gentlemen:—</p> <p>“We confirm our telegram instructing you to ship 7,500 lbs. of 36-2 ply skein, and beg to enclose order for the same here•with. Now the price you gave us was 22 cents. Our customer had this yarn offered by two other houses at 21£ cents. We had either to take this price or lose it, so therefore rather than be cut out of the trade we closed with the customer and we are dividing our commission with you and sending the order to you at 21f cents, which we trust will be satisfactory. You gave us 22 cents, as stated, as the price for the yarn. We could not get it as we have explained. We are sending the order to you at a quarter of a cent more than we obtained, and we hope, as stated, that it will be satisfactory. We shall leave it, however, in your hands. We did not want to get out with customer and we thought it advisable to sell. The same customer has a lot of 40-2 ply offered to him at 22 cents. I don’t know whether this would appeal to you or not. I have wired you to know whether you would care to close out 5,000 to 10,000 lbs. of 40-2 ply at 22 cents and now await your reply.</p> <p>“ In making this shipment, please have it traced, as customer wants prompt delivery, and shipments from West Point are at times greatly delayed, therefore, as requested, please do not fail to trace, and oblige,</p> <p>“Yours truly,</p> <p>“ Richard A. Blythe.”</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>