Volume 3 — Pennsylvania Superior Court Reports

<p>Practice, G. P. — Discretion to quash writ — Act of 1869.</p> <p>The court has discretionary power to quash a writ of attachment under the act of 1869 upon extraneous evidence that the affidavit and bond were not filed upon the day the record shows they were filed.</p> <p>Record imports verity — When it may be supplied or corrected.</p> <p>A record imports absolute verity and, as a general rule, it should be so regarded in practice. It is not on every occasion that resort should be permitted to affidavit and depositions to contradict the record or explain it away. When it is lost or destroyed or error has intervened and the due administration of justice demands that it should be supplied, amended or reformed, it can and should be done in the appropriate and orderly way.</p> <p>Records — Power of court to control — Presumption of verity.</p> <p>Every court of record is the guardian and judge of its own records, it is clothed with full power to control and inquire into them and set them right if incorrect, but when a court considers a record without attempting to reform same in an appropriate and orderly way, every presumption of verity must be accorded such record and apparent alterations and interlineations made by the prothonotary should be construed as mistakes corrected as soon as made rather than as a tampering with a record, w'hich would be unlawful.</p> <p>Practice, G. P. — Records not to be impeached inferentially.</p> <p>It is error to quash a writ of attachment, on allegations impeaching a record, by an affidavit alleging alterations thereof, while permitting the record to stand. The proper practice would be for the court to inquire, as it had power to do, into the impeachment of the record and amend or correct it if tampered with, and upon the record if amended quash the writ if. warranted. A record may not be inferentially impeached.</p>

<p>Appeal No. 145, Nov. T., 1896, by defendant, from judgment of C. P. No. 1., Phila. Co., March T., 1896, No. 674, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Appeal by defendant from judgment of magistrate, in assumpsit, in favor of plaintiff.</p> <p>The record discloses: Statement filed May 4th. Affidavit filed May 22d. Rule for judgment July 8th. July 18th a rule entered by defendant against plaintiff for security for costs and proceedings to stay granted by the court. On September 22, 1896, during the pendency of the latter rule the court entered judgment against the defendant for want of a sufficient affidavit of defense. On September 26,1896, a rule filed September 22, to discharge rule for security for costs as of September 22, 1896, was made absolute. On September 25, 1896, this appeal was taken.</p> <p>Plaintiffs’ statement discloses the following cause of action:</p> <p>This action is brought to recover the sum of $90.00, with interest thereon from the 23d day of October, 1895; said sum is the amount due and owing to the plaintiff, which is a corporation under the laws of New Jersey, from the defendant upon a cause of action, whereof the following is a statement:</p> <p>On May 21,1895, defendant ordered plaintiff to manufacture or have manufactured for him, at his expense, a metal mold, to be used in the manufacture of washers. Subsequent thereto, and after the work had been commenced, defendant directed plaintiff to cease work upon said mold, as he proposed to have certain changes made therein; that plaintiff did cease work thereon until the 20th day of September, 1895, when defendant directed them to finish said mold and ship it to him, whereupon it would be paid for; that plaintiff caused said mold to be finished, and shipped it to defendant on October 23, 1895 ; that defendant, although demand has been made upon him therefor, has wholly neglected and refused,’and still wholly neglects and refuses, to pay the sum of 190.00, the cost of the manufacture of said mold, which sum, with interest thereon from the 23d day of October, 1895, plaintiff claims to recover from him in this action.</p> <p>AFFIDAVIT OF DEFENSE.</p> <p>The defendant admits having instructed the plaintiff to construct for him a certain metal mold which was intended and designed to complete an invention of a metallic barrel bung. Defendant ordered said mold with the understanding that if upon examination it should be found to vary or be incorrect, the same would not be received.</p> <p>The allegation in the statement of demand filed, that the mold was shipped on October 23, 1895, the defendant has no knowledge of, having never received notice thereof directly from plaintiff nor any one else, until as hereinafter set out, nor has the defendant ever received a bill of lading, as is usual and customary in such cases, from the plaintiff or any one else.</p> <p>The defendant avers that the said plaintiff has and did have, at the time said mold was shipped, the proper and correct address of this defendant; the same being 237 North Front street, Philadelphia, Pa.</p> <p>In the latter part of November, 1895, defendant received notice from plaintiff’s counsel, Messrs..Chapman & Chapman, that the mold had been shipped to Philadelphia, and after the expiration of some time they informed defendant that same was at the Dock Street Freight Station of the Pennsylvania R. R. Company, in Philadelphia aforesaid.</p> <p>Defendant avers that after a diligent search he discovered a wooden box at the station aforesaid, marked “ S. L. Small, Philada., ” which said box was- in a very filthy and damaged condition. Defendant thereupon requested of plaintiff’s counsel permission to examine the box and its contents, before receiving same, but the request was refused.</p> <p>The defendant believes he had a proper and legal right to examine the box and contents, and not having received permission so to do, lie was justified in refusing to receive the same, or to pay for the metal mold without prior examination.</p> <p>Judgment for plaintiff for $94.95. Defendant appealed.</p> <p>Errors assigned were (1, 2) entry of judgment.</p>

<p>Appeal No. 76, April T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 567, on verdict for plaintiff.</p> <p>Trespass for removing pipe line. Before White, J.</p> <p>The action was trespass to recover damages alleged to have been caused to plaintiff’s property by defendant in removing pipe line therefrom. In the year 1888 defendant appropriated the right of way for a pipe line across the plaintiff’s property by proceedings in the court of common pleas. In March, 1893, defendant entered upon plaintiff’s property and removed this pipe line therefrom, and this action was brought to recover alleged damages therefor; the question involved in the case is what, if any, damages a property holder is entitled to recover under such circumstances.</p> <p>Defendant’s points, inter alia, were as follows :</p> <p>2. The plaintiff is only entitled to recover as damages in this case compensation for any unnecessary injury done to said farm in the removal of said pipe. The defendant company had the right to haul its pipe from the place where it was laid to the nearest and most convenient public highway, and the defendant company is not liable therefore for any necessary damage in so doing. Answer: The first part of this point is affirmed. The latter part is affirmed, provided that in removing the pipe the defendant company kept within the right of way originally appropriated, as explained more fully in the charge. [1]</p> <p>3. The defendant company is not hable for damages caused by the fact that the ditch settled after the pipe was removed. There was no obligation upon the defendant company to restore the surface of the ground after removal to the same condition that it was before the pipe was lifted. Answer: This point is affirmed provided that the ditch was filled in a careful and reasonable manner, and the surface left in a reasonably smooth and level condition. [2]</p> <p>The court, White, J., charged the jury, inter alia, as follows: Under that act of the legislature, and the right acquired by the defendant company under it, they could appropriate a strip of land anywhere through a man’s farm, and as wide as they chose to make it, for the purpose of laying and maintaining their pipe.] [3] Of course the act provided that compensation must be given. If they could not agree upon the price a bond might be filed, and then viewers appointed to determine the damages. That right of way did not give the defendant company the exclusive right to the strip of ground; it simply gave them the right to lay a pipe, and to maintain that pipe, and to maintain it as long as they wanted to keep it, if that was a hundred years, or a thousand years. But they might take it up, and, in taking it up they would relieve the land of that easement, and, in that respect, it would be better for the owner of the property than to have the easement continue for an indefinite number of years. The owner had a right to use the ground that was appropriated; He could use it for pasture, or he might plow it and put in a crop, but, of course, his right was subject to the right of the defendant company to have a man pass along it and examine it, and, if it got out of order, to repair it; and, if necessary, to haul pipes along the line. These were the rights of the defendant company, acquired by the appropriation, and when they chose to abandon it, they had a right to take up and remove the pipes. That would be a final abandonment of their right.</p> <p>[Now, it seems this company, in making the appropriation for the right of way, did not designate what width through the land they wanted. I think all these companies ought to do that. It is impossible for a board of viewers or a jury in court to clearly determine what the damages should be when there is no width designated for this right of way. But it seems in this case that it was not done, and now the question arises here, how far out from that pipe could the defendant go with teams in removing it? In removing the pipe they had no more rights than they had originally under the appropriation. They had no more right to go outside of a reasonable appropriation in removing the pipes than- they had originally in placing them there. I think when the defendant company does not designate the width they want, they would be limited to what is strictly necessary for their purpose. Now, how much was necessary for them to use in laying one string of their ten inch pipe ? How much width would be necessary for that purpose ? They are limited to what they originally required.] [4] The law provides that "where the line runs through a wood the pipes may be laid on the surface of the ground; where it goes through cultivated fields it has to be buried at least two feet below the surface. It does not appear here whether the portion, said to have been laid through the woods, was sunk below the surface or laid on the surface.</p> <p>[Now, what width would be necessary for the construction of this pipe line originally? There doesn’t seem to be any very uneven ground. There is no evidence but what a foot in width would be sufficient for the pipe. Suppose the company had appropriated twelve feet in width; would that not be quite enough to dig the ditch and have the team go along it hauling the pipe? Many of these companies, originally, appropriate only eight feet in width, but that, evidently, would not be sufficient to make an excavation, and haul the pipes, and the result was, they frequently went outside of that and caused trouble and difficulty. I cannot see, in 'gronnd like most of the farm land in the country, but what, say twelve feet, would be wide enough to dig the ditch; put the earth on one side and have a wagon go along with the pipe. If that would be sufficient for the laying of this pipe line through this farm, originally, the defendant has no more right to go outside of it now than it had then. I have to leave to you what would be a reasonable appropriation in the original construction of this pipe line. If the company had appropriated twelve feet they would have no right to go one inch outside of that twelve feet for any purpose whatever, and, if a team went outside of that, it would be a trespass on the property of the farmer. So, now, in removing these pipes, they were limited to what was the original appropriation ; and if they went one foot outside of that, they were trespassing on the plaintiff’s farm.] [5]</p> <p>[I do not remember, gentlemen, of any evidence in this case that fixes what width was necessary to be used in removing these pipes. Some witnesses say the pipes were laid close by the trench, and they came up with teams as near as was necessary to load them. Well, how much would that take; how many feet in width; they had no right to drive out on the man’s farm to turn the wagons, if that was beyond their right of way, and there is some evidence (and I do not know that it is controverted by the defendant) that some of these teams went out fifty feet from the line. They had no right to go out that far from this line, because there is no evidence to show that that was necessary or proper. But there is evidence that some went out one hundred and fifty feet. This is a matter for the jury to determine, as to how far they have trespassed beyond their original right of way.] [6]</p> <p>[Now, there are two grounds of damage claimed by the plaintiff. One is for this driving over the fields a considerable distance from the trench, and driving over it just after a very heavy rain, when, as one of the witnesses testified, the wagons sank down in the field to the hubs, and when two horses stalled with a load and two other horses had to be hitched to the wagon to get it out. If any of you are farmers you will know what effect that will have on a meadow or on a field. That is one ground of damage here, and if they drove outside of their original right of way and injured the field, that is an element of damage for which the plaintiff is entitled to recover.</p> <p>Another claim is that in filling up the ditch there was negligence or carelessness on the part of the defendant company. The plaintiff said, as I understood him, that the ditch was dug when the ground was frozen, and it remained open about a month before it was filled in, and before it was filled in the soil at each side, for some distance, fell in and was covered up from two to three feet below the surface, and the subsoil which was thrown out from the ditch was thrown out on the surface, injuring the ground in that way. The defendant’s witnesses say it was only open about ten days. It is also contended that the ditch was not filled properly; that it sank, and the ground was ■not smoothed as it should have been,</p> <p>■ These are questions of fact for you, gentlemen, and if you find on either ground that the plaintiff is entitled to recover, it is for you to say, under the evidence, what amount of damages the plaintiff has sustained.] [7]</p> <p>Yerdict for plaintiff for $150. Defendant appealed.</p> <p>Errors assigned were (1, 2) answers to defendant’s points, reciting same ; (4-7) in portions of the general charge, reciting same ; (8) in ruling upon offers of evidence on the part of the plaintiff, as follows, to wit: The witness ex parte plaintiff, to wit, James Armstrong, being placed on the stand testified as follows, to wit:</p> <p>Q. What injury was done to that farm by this hauling that was done and the slipping in of this trench ?</p> <p>Defendant’s counsel objects to the last part of the question.</p> <p>Objection overruled by the court and a bill filed for the defendant, whereupon said witness testified as follows, to wit: A. You mean in value? Q. Yes, sir. A. Well, I would sajr, 'taking everything into consideration, I would consider the injury $100.</p>

<p>Auditor — Findings of fact rarely disturbed when confirmed.</p> <p>Where an auditor has carefully investigated every question presented for his consideration and based his findings upon ample testimony, and when he is confirmed on exception by the court below, the appellate court will not ordinarily disturb his findings of fact.</p>

<p>Appeal, No. 129, Nov. T., 1896, by plaintiff, from judgment of C. P. Berks Co., April T., 1896, No. 52, in favor of plaintiff on a case heard before the court without a jury.</p> <p>Appeal from judgment of alderman.</p> <p>Tbe facts sufficiently appear in tbe-opinion of tbe court below, by Endlich, J.</p> <p>This is an action against the county of Berks to recover a sum alleged to be due to the plaintiff for services as assessor. By agreement of counsel, it was tried without a jury under the act of 1874.</p> <p>FINDINGS OF FACT.</p> <p>1. At the spring election of 1893, the plaintiff was elected assessor of the 12th ward of the city of Reading. Shortly thereafter he took an oath and filed it in the office of the commissioners of Berks county.</p> <p>2. On or about September 4,1894, he took another oath and started in upon the work of preparing for the making of the triennial assessment by measuring and arranging properties.</p> <p>3. On December 4, 1894, he received from thesaid commissioners the precept ordering him to proceed with the making of said assessment and the triennial assessment book, and took and subscribed the statutory oath, which was subsequently returned by him to the commissioners with the assessment, etc.</p> <p>4. After December 4, 1894, he spent fifty-three days, and altogether one hundred and thirty-one days, in preparing for, completing and entering the assessment of said ward, all of which time was fairly necessary to enable him properly to do the entire work required of him, and at the expiration of said fifty-three days he returned the precept and assessment to the commissioners.</p> <p>5. The plaintiff kept an account of all the days so employed by him and returned the same, duly verified by oath, to the said commissioners, who refused to pay the plaintiff for more than the number of days spent in the work after December 4, 1894, viz, fifty-three days.</p> <p>FINDINGS OF LAW.</p> <p>a. The plaintiff is entitled to pay at the rate of $2.50 per day for fifty-three days.</p> <p>1. The plaintiff is entitled to judgment against the defendant for $132.50 with interest from January 26, 1895.</p> <p>The act of April 15, 1834, P. L. 511, sec. 2, as modified by the act of April 22,1846, sec. 16, P. L. 490, required the county commissioners, within six weeks after general election of the proper year, to issue their‘precept for the triennial assessment, directing the assessors to make out and return within thirty days thereafter a just and perfect list of taxables and taxable property, etc. The act of May 15, 1841, sec. 6, P. L. 395,' changes the period within which the precept is to issue to four weeks after the election, 'and that within which the assessment is to be returned to sixty days after the issuance of the precept. “ On the receipt of the precept aforesaid,” said act of 1834 continues, in sec. 4 (as modified by act of February 28, 1835, sec. 6, P. L. 46), the assessors are to proceed to take an account of the taxables and taxable properties within their respective districts, the act of 1841, sec. 2, requiring them, “before entering upon the duties of their offices,” to take and subscribe an oath, the form of which is prescribed by the act of July 27,1842, sec. 9, P. L. 445, and which is to be returned to the commissioners at tire time of the return of the assessments. On the same day upon which the act of 1834, already referred to, became, a law, there was also approved “ An act relating to counties and townships and to county and township officers: ” Act of April 15, 1834, P. L. 537. This act, in sec. 89, P. L. 552, provides “that each assessor shall keep an account of the days actually employed by him in the performance of his duties, make return thereof under oath to the commissioners, and receive for each day necessarily so employed ” the sum of $1.00. This section is amended by the act of May 24,1887, P. L. 195, re-enacting the former, with the single change that the pay is increased to $2.00 per day. The two acts of 1834 being laws not only of the same session but of the same days are, in so far as they are in pari materia, to be construed together: People v. Jackson, 30 Cal. 428 ; Chandler v. Lee, 1 Idaho, N. S. 349; Smith v. People, 47 N. Y. 330. Hence, so far as the triennial assessment is concerned, the “ duties ” for the performance of which the assessor was to be paid $1.00 per day under sec. 89 of the second act of April 15, 1834, were tbe duties referred.to in sec. 4 of the first act of that date. And the act of 1841, being part of the same system, these are also the “ duties ” referred to in sec. 89 of the second act of 1834; the same phrase occurring in each is to be given the same interpretation: Gonder v. Estabrook, 33 Pa. 374. Being moreover a mere amendment of the section in question, the act of 1887 is to be read into that of 1834 as if its. provision had always been there: see McKibben v. Lester, 6 Ohio St. 627; People v. Sweetser, 1 Dak. 308; Ludington v. U. S., 15 Ct. of Cl. 453, and has no other force than to change the specific enactment it refers to, in the single particular in which it departs from the same; see Dilley v. Luzerne Co., 8 Pa. C. C. 162. It cannot, therefore, operate to repeal by implication the act of March 9, 1865, P. L. 290 (cited, as not expressly repealed, in Price’s Ind. Loc. Leg. p. 88), which provides “that the pay of assessors, in the county of Berks,, shall be $2.50 per day for each and every day actually engaged in the discharge of their duties.” By virtue of this enactment, sec. 89, act 1834, had no application to Berks county; and of course a nrere amendment of that specific section, without any words of repeal capable of reaching existing statutory provisions other than that recited and re-enacted with the alteration referred to, cannot affect a statute itself providing a substitute, in Berks county, for the section amended. But the act of 1865, in its turn, must be construed as part of the system created by the then existing laws, an exception as to Berks county being established in the rate of per diem for the duties to be performed under those laws, in order to make their operation, in the matter of compensation, to accord with what was deemed just and -proper in that county; see Thomas v. Hinkle, 126 Pa. 478, 483. That being the manifest purpose of the act of 1865, the rule requiring statutes to be so interpreted as to restrict their effect to their scope and object, and to avoid any change in the existing law beyond what is necessary to serve these. Maxw. Int. Stat. 96, forbids the assumption that compensation was intended to be given to assessors in Berks county for anything for which they were not entitled to compensation under the previous statutes. In other words, the term “ duties,” used in the act of 1865, refers to the same thing as the same term used in the acts of 1834, 1841 and 1887; and whilst, in Berks county, the rate of pay demandable by assessors is $2.50 per day for every day necessarily employed in the discharge of their duties, the question what those duties are, when they begin and when they end, i. e., the question for what services and for how many days’ service assessors in Berks county are entitled to pay, is to be settled by reference to the provisions of the acts of 1884 and 1841.</p> <p>It is very clear, that, under these enactments, the office of assessor is not one of continuous employment and compensation. He has specified duties to perform, at specified times, and generally within specified limits as to the number of days allowed for their performance. He can claim no compensation for the performance of any other service nor for anything done by him at other times by way of preparing himself for the performance of those imposed upon him, nor for the employment, in the performance of the latter, of any number of days in excess of that allowed therefor. It may well be that, with the increase of population and the subdivision of property, the same degree of precision in the making of triennial assessments will require, from time to time, an enlargement of that allowance. Manifestly, however, the legislature is the sole judge of whether the time therefor has arrived and how far it shall go. Thus, the period of thirty days under the act of 1834, proving inadequate by 1841, was extended to sixty days by the statute of that year. But the latter limit as yet remains unchanged by the only power competent to change it, and while it so remains, assessors are bound, if they can, to complete the assessments within that number of days, to return within the same their assessments, whether completed or not, and to be restricted, for the work they have done, to a compensation not exceeding the appointed per diem during that period. Certainly, an assessor who has accepted his office with this limitation cannot go beyond it. If, in view of it, he applies himself to preparing for the work in advance of its inception, it must be presumed that he does so in order to enable himself fully to satisfy the demands of the statute, not to lay ground for a claim against the county for which there is no warrant in the law. There may be various particulars in which a conscientious assessor may feel himself in need of such preparation. He may be conscious of an insufficiency in arithmetic, in penmanship, in his knowledge of the real estate market, etc.; and he may very properly devote some of the time intervening between his election and the issuance of the commissioner’s precept to the acquisition of such skill and information in these matters as may be indispensable to him, or at least will greatly aid him, in the performance of his duties when the occasion for their performance shall have arrived. It would scarcely occur to any one to claim compensation for time thus spent. Yet, in principle, there seems to be no difference between such a claim and that here set up, and “principles are tested by taking extreme cases: ” Philadelphia v. Scott, 81 Pa. 80, 88. It follows, that, under no circumstances, can an assessor demand pay for more than sixty days employed in making his return to the precept for a triennial assessment. But if, for any reason, he is able to complete the assessment and make the return in less than sixty days, he is bound to do so, and his compensation in such case will necessarily be measured, not by the maximum period allowed but by the number of days employed by him upon the work after the receipt of the precept. As regards this work, his “ duties,” in the sense in which the term is used in the statutes of 1834,1841,1865 and 1887, begin at that point of time. Before, he has no warrant to proceed with, and is not and cannot be engaged in, the making of the assessment, and no amount of gratuitous oath-taking can alter that fact. The law, however, gives him compensation only for the days spent in the performance of his official duties, not for time employed by him in preparing himself for their .performance, before they began. If in this result of the law as it stands there is any hardship, relief must be looked for from the legislature, not from the courts.</p> <p>It seems hardly needful to add that there is no authority in the county commissioners to allow the plaintiff extra pay for the excess over so and so many hours employed by him in the work of making the assessment on any or each of the fifty-three days during which the precept was in his hands, an expedient suggested at the argument. The law says that the assessment shall be returned within sixty days from the receipt of the precept; i. e. sixty days of twenty-four hours each: Kane v. Com., 89 Pa. 522; Opim.of Justices, 45 N. H. 607; Benson v. Adams, 69 Ind. 354; Hyde v. White, 24 Tex. 137; Pulling v. People, 8 Barb. (N. Y.) 385; Haines v. State, 7 Tex. App. 33. It fixes no number of hours per day to be given to the work. If the eight hour law, act of April 14, 1868, P. L. 99, has any application, directly or by analogy, to the case of assessors, it can only be by way of furnishing a measure for the minimum number of hours to be so employed each day, where that is sufficient to complete the work within the period limited. Where it is insufficient for that purpose, it is the duty of the assessor to put upon the accomplishment of his task as many of the twenty-four hours of each day as shall be consistent with a due allowance for rest, etc., and for each of these days not exceeding sixty, he is entitled to $2.50. The law thus imposes a limit, not only upon the number of days to be consumed, but also upon the compensation to be allowed. If the former shall, in any instance, be found to be absolutely inadequate to the completion of the work by the assessor, apart from the mere question of his personal qualifications, there will not, perhaps, be any difficulty in finding within the provisions of our law a satisfactory remedy. But it is safe to say that it will not be in the line of this suggestion. Neither the assessors nor the commissioners can split up the days fixed by the legislature, so as to double or treble, or in any degree increase the compensation given by it to the officers for any one day, or for the entire number of days. That would be a mere evasion of the statute.</p> <p>And now, to wit: January 6,1896, it is ordered that the foregoing decision be filed in the office of the prothonotary, and that he forthwith give notice thereof to the parties or their attorneys, in conformity with the act of April 22, 1874, P. L. 109, sec. 1.'</p> <p>To which findings of law plaintiff filed the following exceptions, which were dismissed by the court below.</p> <p>EXCEPTIONS.</p> <p>1. The court erred in the following findings of law, to wit: “ The plaintiff is entitled to pay at the rate of $2.50 per day for fifty-three days; ” and in not finding that the plaintiff is entitled to $2.00 per day for one hundred and thirty-one days.</p> <p>2. The court erred in the following conclusion of law, to wit: “ The plaintiff is entitled to judgment against the defendant for $132.50 with interest from January 26, 1895; ” and in not finding that the plaintiff is entitled to $262.</p> <p>OPINION DISMISSING EXCEPTIONS.</p> <p>The argument of these exceptions has thrown no new light upon the questions raised in this case, and passed upon in the decision filed January 6,1896. They do not, therefore, require any detailed discussion. I fully realize the wisdom and importance of the rule laid down by the Supreme Court in Com. v. Macferron, 152 Pa. 244; Quinn v. Cumberland Co., 162 Pa. 55; Com. v. Weir, 165 Pa. 284; Com. v. Wunch, 167 Pa. 186. The question whether an earlier statute is impliedly repealed by a later one is essentially one of legislative intent: Fraim v. Lancaster Co., 171 Pa. 436, and since the constitution aims at uniformity in the body of laws regulating the affairs of counties, art. III. sec. 7, and the lawmakers must be presumed to legislate in furtherance of, and not in opposition to the policy declared by the constitution, an intent to repeal whatever stands in the way of uniformity must be assumed to exist where the language of a statute is broad enough to afford room for such an assumption and to give the enactment such operation without doing violence to its terms. But it would seem to be pushing that principle beyond its legitimate application to hold that the act of May 24, 1887, P. L. 195, specifically amending sec. 89 of the act of 1834, could have any possible effect upon the act of March 9,1865, P. L. 290, in the absence of a declaration repealing acts inconsistent with the rate of compensation allowed by the amendment. Nor can this enactment be treated as affecting the limitation established by previous statutes upon the number of days within which the triennial assessment must be returned. It is just because all these provisions are in pari materia and must, as such, be construed together, that the direction in the act of 1887, that assessors shall be paid “ for each day necessarily so employed,” must be understood as intended to be subject to the restriction referred to, i. e., that the days to be counted shall be days falling within the period of sixty days allowed for the return (I do not say the completion) of the assessment.</p> <p>The third section of the act of February 14,1889, P. L. 7; on the other hand, defining the duties of assessors thereafter to be elected, has no bearing upon any of the previous provisions as to their compensation. The latter being a per diem, if new duties are imposed in the performance of which additional time is to be consumed, the compensation, by the terms of those earlier provisions, is correspondingly increased.</p> <p>A re-examination of the case, in the light of the exceptions filed, has failed to indicate to me any particular in which the conclusions heretofore announced can be modified.</p> <p>And now, to wit: June 20,1896, the exceptions are dismissed, and it is ordered that judgment be entered in favor of plaintiff and against defendant for $143.65. Plaintiff appealed.</p> <p>Errors assigned were, (1, 2) dismissing defendant’s exceptions ; (3) entering judgment for $143.65.</p>

<p>Appeal, No. 23, Nov. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., Jan. T., 1890, No. 38, on verdictfor defendant.</p> <p>Interpleader between the vendor of certain hogs of the value of $126, and tbe execution creditor of vendee, in which the court below gave binding instructions for execution creditor defendant.</p> <p>Frror assigned was, directing the jury to enter a verdict for defendant.</p>

<p>Sale — Bailment—Possession—Fraud—Question for jury.</p> <p>Where the question of ownership of certain chattels was not only prominent but of vital importance on the trial of an issue involving an alleged bailment, and where the evidence on that question was by no means one sided or free from doubt, the question should have been submitted to the jury under proper instructions, and the paper creating the alleged bailment correctly construed could have been submitted in the determination of the issue.</p>

Appeal, No. 29, Nov. T., 1896, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March Term, 1895, No. 850, on verdict for plaintiff. Assumpsit sur policy of insurance on life of plaintiff’s husband.

Appeal, No. 62, Nor. T., 1896, by-defendant, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1895, No. 306, in favor of plaintiff for want of a sufficient affidavit of defense. Appeal from magistrate. Assumpsit on a promissory note. It appeared from the plaintiff’s statement of claim that suit was brought on a promissory note for $85.40 drawn by Rufus C. Hartranft and indorsed by H. G. Hartranft.

<p>Appeal, No. 150, Nov. T., 1896, by-defendant, for judgment of C. P. Berks Co., Aug. T., 1896, No. 47, in favor of plaintiff on case stated.</p> <p>Case stated to determine title to land.</p> <p>Edward Schuldt, by articles of agreement between himself and Thomas Herbine, executed on June 1,1893, agreed to sell and convey by deed to Thomas Herbine the premises No. 8151-Cherry street in the city of Reading for the consideration of $1,000. On June 26, a deed sufficient in form was executed and acknowledged by Schuldt and wife and duly tendered to Herbine, who admitted that the deed was sufficient in form but refused to pay the purchase money, alleging that Schuldt had only a life interest in the property.</p> <p>Schuldt derived title to the premises under the will of his father, Frederick Schuldt, duly probated and recorded in the register’s office of Berks Co. The clause of the will relied upon as vesting title in Edward Schuldt is, viz : “ I give and bequeath to my son Edward Schuldt the income of the following described properties, viz: 816 Penn Street, 915, 919 and 921 Franklin Street and 815^ Cherry Street, Reading, Pa. and I hereby direct the Reading Trust Co. to take charge of these houses, collect the rents, keep them in repair, pay the taxes, and pay the balance of the income therefrom in monthly payments to my son Edward, for the support of himself, wife and children.” To determine the controversy a case stated was entered into between the parties and filed to No. 47, August term, 1896j in the court of common pleas of Berks county. Wherein, after stating and agreeing upon the facts it was 'stipulated in art. 4 of the agreement: “ 4. If the Court shall be of the opinion that under said item of the said will of the said Frederick Schuldt, deceased, the estate devised to Edward Schuldt in the said property is a fee simple, and that his conveyance of the same, joined in by his wife, makes a good and legal title to the fee of said property, judgment shall be entered for the plaintiff in the sum $1000.00.</p> <p>“If the court shall be of the opinion that the estate of the said Edward Schuldt under said devise, is not a fee simple, but is simply a life estate, judgment to be entered for the defendant with costs.”</p> <p>Upon the case stated the court entered judgment for the plaintiff in the sum of $1,000, the defendant appealed, assigning for error the entry of judgment in favor of the plaintiff.</p> <p>The case stated in full is as follows:</p> <p>The following facts are agreed upon and admitted by the plaintiff and defendant in the above issue to be submitted to the court in the nature of a case stated for its consideration, determination and judgment.</p> <p>1. Frederick Schuldt of the city of Beading, Berks county, Pennsylvania, died, having made his will and testament which has been duly approved in the register’s office of Berks county, and which directs, inter alia, as follows:</p> <p>“ Second. I give and bequeath, to my son Edward Schuldt the income of the following described properties, viz: 816 Penn Street, 919, 915 and 921 Franklin Street, and 815^- Cherry 'Street, Reading, Pa.; and I hereby direct the Reading Trust Company, to take charge of these houses, collect the rents, keep them in repair, pay the taxes, and pay the balance of the income therefrom, in monthly payments to my son Edward for the support of himself, wife and children.”</p> <p>2. At the time of said devise, and at the time of the death of said testator, he was the owner in fee simple of the properties described in said paragraph of his will, one of them, No. 815^ Cherry street, in the city of Reading, Pa., is more particularly described as follows, to wit: “ All that house and lot of ground on which the same is erected, situate on the North side of Cherry Street, in the City of Reading, Pa., between Eighth and Ninth Street, being No. 815 bounded on tbe South by Cherry Street, on the East by property of Agnes Woomer, on the North by property of Agnes Woomer and on the West by property of Agnes Schuldt. Containing in front, on Cherry Street, fifteen feet, and in depth sixty feet, more or less, with the appurtenances.” The testator left no debts that have not been paid. Edward Schuldt has not aliened said house and lot of ground nor put any incumbrances thereon.</p> <p>3. On the 1st day of June, 1896, articles of agreement were entered into between Edward Schuldt, the plaintiff in this action, of the one part, and Thomas Herbine of the other part, all of the city of Reading, Berks county, Penna., for a sale of one of said properties, to wit: All that certain house and lot of ground on which the same is erected, situate on the north side of Cherry street, in the city of Reading, Pa., between Eighth and Ninth streets, being No. 815^ Cherry street; bounded on the south by Cherry street, on the east by property of Agnes Woomer, on the north by property of Agnes Woomer, and on the west by property of Agnes Schuldt; containing in front, on Cherry street, fifteen feet and in depth sixty feet, more or less, for $1,000, payable on June 27, 1896, on the delivery of the deed. The said Edward Schuldt and Christina, his wife, tendered to the said Thomas Herbine a deed, sufficient and correct in form, for the above described premises, on said June 27,1896, and demanded the purchase money, $1,000, according to the agreement, which the said Thomas Herbine declined and refused to pay, admitting that the deed was sufficient in form but averring that, under the will of Frederick Schuldt deceased, the estate of the said Edward Schuldt was a life estate and not a fee simple, and that he and his wife could not make a legal conveyance in fee simple of the said premises.</p> <p>4. If the court shall be of the opinion that under said item of the said will of the said Frederick Schuldt, deceased, the estate devised to Edward Schuldt in said property is a fee simple, and that his conveyance of the same, joined in by his wife, makes a good and legal title to the fee of said property, judgment shall be entered for the plaintiff in the sum of $1,000.</p> <p>If the court shall be of the opinion that the estate of the said Edward Schnldt, under said devise, is not a fee simple, but is simply a life estate, judgment to be entered for the defendant with costs; each party reserving to himself the right of appeal, writ of error and certiorari to the appellate court.”</p>

Appeals, Nos. 86 and 87, Nov. T., 1896, by plaintiffs, from judgment of C. P. Delaware Co., Dec. T., 1896, Nos. 97 and 98, in favor of defendant, on report of referee. Amicable scire facias sur joint apportioned mechanic’s lien. Before Clayton, P. J. It appears from tbe testimony and the record that Barry D. Lane contracted with Ms father, Joel Lane, for the erection of certain buildings on his property.

Appeal, No. 88, April T., 1896, by judgment creditors, from the judgment and decree of C. P. Mercer Co., March T., 1896, No. 9, sustaining exception of assignee to the auditor’s report, surcharging the assignee. Exception to auditor’s report in re assigned estate for benefit of creditors. Michael Hamill made an assignment to R. S. Johnston for the benefit of’ creditors on January 4,1894.

Appeal, No. 51, Nov. T., 1896, by defendant, from judgment of C. P. Delaware Co., June T., 1894, No. 286, on verdict for plaintiff. Trespass to recover for injuries arising from the erection and maintenance of a certain toll gate upon land of the turnpike operated by defendant.

<p>Appeal, No. 108, Nov. T., 1896, by Clifton Pennypacker, Ella Hause and Maggie James, grandnephew and grandnieces of Jacob Moses, the testator, they being children of Silas Pennypacker, deceased, who was a son of Mary Pennypacker, deceased, who was a sister of Jacob Moses, the testator, from the decree of O. C. Chester Co., affirming the auditor’s report making distribution.</p> <p>Exceptions to auditor’s report.</p> <p>The facts sufficiently appear from the report of William But? ler, Jr., auditor, which is as follows:</p> <p>By the ninth item the testator gives to the children of his brother Samuel Moses one fourth of the residue of his estate. At the time the will was executed there were three children of Samuel Moses living, to wit: John G. Moses, Margaret A. Chalfant and Eusebia N. Warden, and four grandchildren, to wit: Lewis B. Yanderslice, Horace F. Vanderslice, Adelle G. Bader and Sallie A. McKeone; children of a fourth child, Mary S. Vanderslice, who died in the year 1888. These grandchildren claimed before the auditor that they were entitled to</p> <p>take under the bequest to the children of Samuel Moses, what their -mother, Mary S. Yanderslice, would have taken if she had been living. This proposition was opposed by counsel for the executors, and A. P. Reid, Esq., who represented Mary Phillips, a child of Mary Pennypacker, deceased, they contending that the bequest is distributable solely to the three children of Samuel Moses, who were those living at the date of the execution of the will. Mary S. Yanderslice had been dead for some time at the date of the will, and her four children, and her two sisters and a brother, above named, were living at the date of the will, and are all still in being.</p> <p>The clause of the will is as follows: “ I give and bequeath to my brother Samuel Moses’s children, one equal fourth part to be divided between them, their heirs and assigns, share and share alike.”</p> <p>Counsel for these grandchildren did not rely in urging the claims of Iris clients upon the act of May 6, 1844, P. L. 565, relative to lapsing of legacies ; but as there are other claimants, under another clause of the will, who are similarly situated, whose counsel do, in part, depend on that act, the act lias been brought earnestly to the attention of the auditor, and has been by bim carefully and fully considered.</p> <p>The language of the act is as follows : “No devise or legacy hereafter made in favor of a brother or sister, or the children of a deceased brother or sister of any testator — such testator not leaving any lineal descendants, shall, be deemed or held to lapse or become void by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or-legatee shall leave issue surviving the testator. Saving always to every testator the right to direct otherwise.”</p> <p>This act has been interpreted so as to save a void as well as a lapsed legacy. It has been held to be effective to carry a bequest to the representatives of one named as a legatee, though such legatee was dead at the time the will was executed: Minter's Appeal, 40 Pa. 111; Hook’s Estate, 10 W. N. C. 140.</p> <p>It would therefore appear that if Mary S. Yanderslice is designated as a legatee, the fact that she was dead when the will was executed will not avoid the application of the statute against lapsing, and if there is nothing else in the way, her children will take her legacy.</p> <p>The difficulty on this branch of the contention, which occurs to the auditor’s mind, is that Mary S. Vanderslice is not named as a legatee, and that there is consequently no bequest to her to be saved from lapsing by the act of 1844, and to be thus handed down to her children. Mary S. Vanderslice is not designated by name; and at the time the will was executed, she did not, as a fact, exist; she was dead; she was not a child of Mary Pennypaclcer. At this time there were children of Mary Pennypacker living, and they aptly answered the description of testator’s objects of bounty.</p> <p>It. follows, as above suggested, that no legacy is given to. Mary. S. Vanderslice, and that the act of 1844 has no application to the question under consideration. It is expressly decided in Gross’s Estate, 10 Pa. 360, that the act of 1844. 'does not apply in case of a bequest to children of a collateral relative i that in such case no estate vests until the death of the. testator; that until then the estates of the children are contingent, and if any of them are dead before the testator, no estate vested.in them. Guenther’s Appeal, 4 W. N. C. 41, and Bradley’s Appeal, 166 Pa. 300, are to the same effect.</p> <p>In Minter’s Appeal, and Hook’s Estate, above cited, the legacies saved by act of 1844 were unequivocally given to the parties whose death resulted in the application of the act.</p> <p>In Minter’s Appeal, the legacy saved by the statute wat given to “ My sister Barbara Saval.” In Hook’s Estate, the bequest was to Cumberland C. Hook.</p> <p>Since, then, no legacy was given to' the mother of the claimants, and the act of 1844, above considered, can consequently be of no benefit to them, they cannot take unless they are directly named as legatees; unless the words “heirs-and assigns ” as found in the bequest, designates and describes, them.</p> <p>No citation'of authority is necessary to sustain the prpposi-. tion that, if the bequest had been to the “ children,” without more, the claimants could not take. Where the term..^'children ” is used, and there are children, grandchildren do not take, unless there is language in the will making such purpose apparent: Hallowell v. Phipps, 2 Wh. 379; Dickinson v. Lee, 4 Watts, 82; Castner’s Appeal, 88 Pa. 478,; Hunt’s Estate, 133 Pa. 260; Denlinger’s Appeal, 170 Pa. 104.</p> <p>The question presented is whether the addition of -the words “ their heirs and assigns ” shows the purpose of the testator to have been, not to give to the “ children ” as an exclusive class. Have these words such operation ? Can they be construed as substitutionary, as expressing the purpose that if any of the children should be dead at the death of the testator, their children should take. If so, then the rule laid down in Gross’s Estate, 10 Pa. 360, to the effect that in case of a bequest to a class, the bequest is limited to those individuals of the class who are in being at the death of the testator, will not prevent the claimants taking, for that rule yields where a contrary intent appears. In the judgment of the auditor, however, the words “ heirs and assigns ” as found in the language of the bequest are not used in a substitutionary sense, are not intended to designate takers in the place or stead of the children. They are used as words of limitation of the estate given to the “ children; ” are intended to indicate that an absolute estate is given to them.</p> <p>If it be granted that if the word “ heirs ” stood alone, there might be some doubt as to its office, connected as it is with the word “ assigns,” there can scarcely be a legitimate doubt. The word “heirs” is itself a term of general import and comprehends collaterals as well as lineals, but the word “ assigns ” is still more comprehensive, includes those who are strangers to the blood, and could not be construed to mean the children of Samuel Moses’ child. The testator would not describe his grandnephews and nieces as “ assigns ” of his nephews and nieces. The auditor is of the opinion that the language of the bequest, giving to the “ children,” one equal fourth part to be divided between them, “ their heirs and assigns, share and share alike,” is susceptible of no other construction than as giving an estate to a class, and the words “ their heirs and assigns ” are not used in a substitutionary sense, as designating other takers,' but as words of limitation of the estate given to the children.</p> <p>The case of Dickinson v. Lee, 4 Watts, 82, would seem to compel the conclusion stated. The facts of that case are so nearly identical in their material features with those before the audit- or, that the conclusion there recorded must rule the question before him.</p> <p>In Dickinson v. Lee, the bequest was to “ all my children, their heirs or assigns, in equal shares, share and share alike,” etc. Here the bequest is to the “ children one equal fourth part to be divided between, them, their heirs and assigns, share and share alike.” There, as here, there were “ children.” .The court say: “ Here the testator had children, and there is no room to declare the grandchildren entitled on that ground. Then as to the description in other respects. The residue is ordered to be divided among all the testator’s ‘ children,’ their heirs or assigns in equal shares, share and share alike.” There is but one word in this (heirs) that can, by any construction, whatever, have the remotest relation to the children as constituting separate stocks; and that word, used as it is without words of restriction, is too general to be equivalent to issue, as it would equally let in collaterals. It is, however, coupled with a word (assigns), which if it is to have any effect at all, certainly cannot be a restrictive one. Even putting that difficulty aside, there is another, and á more formidable one, in the nature of the office these two words were evidently intended to perform. To speak analogically, they were used as terms, not of purchase, but of limitation; or at least of perpetuity, to indicate that the bequest was in full property.’</p> <p>The words “ their heirs and assigns ” not being used in a substitutionary sense, to describe takers in place of “ children,” but as words of description of the estate given to the “children,” the rule declared in Gross’s Estate, 10 Pa. 360, applies. The bequest is to the children as a class, and as is said in that case: “ Those only who are in being at the time of the testator’s death can take.”</p> <p>Gross’s estate not only enunciates principles which control the disposition of the questions before the auditor, but is so similar in its essential facts as directly to decide the questions. In that case the bequest was to “ the children of the brothers and sisters of my first wife, . . . share and share alike, to them severally and their heirs and assigns forever.” The court say: “Mr. Justice Yeates says: ‘Where the devise or gift to the children is general, and not iimited to a particular period, it is confined to the death of the testator.’ This, then, being the general rule, is there anything to make this case an exception ? It is contended there is, because the devise is to the children, share and share alike, to them severally, and their heirs and assigns forever. But it is difficult to distinguish this case from the rule, as stated by Chief Justice Tilghman, in Pemberton v. Parke. There it is to be equally divided among the children; here it is to be divided among them share and share alike— words conveying exactly the same meaning. It is clear these words are not intended to designate the persons who are to take, to control the general expressions, or to determine the time when the legacies are to vest; but are designated to indicate the manner they are to hold, viz, share and share alike, and the quality of their respective interests in the legacies, viz, an absolute estate. There is, therefore, nothing in these words to exempt the case from the operation of the general rule.”</p> <p>Counsel urged that the case of Dickinson v. Lee, above cited, was not in point because of the subsequent passage of the act of 1844, relative to the lapsing of legacies, and of the act of 1855, P. L. 368, relative to representation in case of intestacy.</p> <p>. As to the act of 1844, the auditor has given his reasons for thinking that it has no application in this case. It is his judgment that no legacy was given to the mother of the claimants, and that, consequently, there is no legacy to be saved from lapsing. Aside from this, it is expressly decided in Gross’s Estate, that the act of 1844 has no application where the bequest is to a class. Bradley’s Appeal, 166 Pa. 300, cited by claimants, does decide that the act of 1833, relative to legacies given to lineals, is operative even where the bequest is to a class, but holds that in this respect it differs from the act of 1844, relative to collaterals, and recognizes the rule laid down in Gross’s Estate, as the law, where the bequest is to collaterals. The auditor is unable to discover in what way the act of 1855 can benefit the claimants. If this was a case of intestacy, they as grandnephews and grandnieces of the decedent would take their mother’s share of the estate by representation.</p> <p>The act of 1855 extends representation this far. The act of 1855, however, can play no part when a testator has intelligibly manifested what disposition he desires made of his estate.</p> <p>The case of Sorver v. Berndt, 10 Pa. 213, was relied upon by claimants. There the bequest was to the children or legal heirs of my brother D. One of the children died before the testator, leaving a child. The court was of opinion that unless the words “ or legal heirs of my brother D. ” were construed as descriptive of beneficiaries other than children — as introducing other takers' ' — they could have no meaning. The court consequently held that by these words the testator expressed the purpose to have his brother’s heirs take, whether children or grandchildren.</p> <p>In the case before the auditor the bequest is not to the children or heirs of Mary Pennypacker, but to the children, their heirs and assigns. To say nothing of the presence of the word “ assigns,” in connection with “ heirs ” — showing that “ heirs ” is used in the sense of limiting the estate given to the children —there is a manifest difference between a bequest to the children or heirs of a brother, and a bequest to the children of a brother, their heirs. In the former case the testator expressly indicates that the bequest is not confined to his brother’s children, but that his brother’s heirs, whether children or not, shall take. Sorver v. Berndt is distinguished and explained in Gross’s Estate.</p> <p>In Long v. Labor, 8 Pa. 229, the word “ heirs ” is unequivocally used to describe substitutes, takers in the place of children, should any of then be dead at the date of distribution. The testator provided: “ And the remainder if any .... to be divided among my children who may be living at the time of such distribution; and in case any of them should be deceased, their heirs are to receive, in equal parts, such share as their parent would be entitled to receive, were they living.” In this case, manifestly, the rule of Gross’s Estate had no application because the testator had plainly ordered that the bequest should should not be limited to the children living at his death, but should be divided among the children then living, and the children of those who might then be dead.</p> <p>In McGlathery’s Estate, T Pa. C. C. 61, the court hold that “ children ” must be construed to mean issue, the testator having provided that the estate was to be divided between the children, “ the same as though it came from their father.” The language quoted was held by the court to demonstrate that the testator had in mind a more extensive scheme of distribution than to “ children ” strictly, that he intended to include all who would take under the intestate laws, children and other issue of the “ father.”</p> <p>In Denlinger’s Estate, 170 Pa. 107, the court hold that while the bequests were to classes, the issue of individuals of such classes dying before the testator might take, notwithstanding the rule of Gross’s Estate, because there was express language in the will distinctly showing that such was the intention of the testator.</p> <p>As above stated the auditor can discover no language in the will under consideration showing that the testator meant to designate substitution takers for children who might be dead— that he intended to designate the grandchildren of Mary Penny-packer as takers.</p> <p>Even if it should be conceded that by the use of the words “ their heirs and assigns,” the testator meant to indicate substitutes for such children as might be dead at his death, there would seem to be no justification for concluding that he intended substitution for any other than such children of Mary Pennypacker as were living at the time he made his will. He gave to the children of Mary Pennypacker, their heirs and assigns. When he used this language Mary S. Vanderslice, the mother of claimants, had been, for a considerable time, deceased. Was not the gift to those children of Mary Pennypacker who properly answered such description, who were living when the will was written; and was Mary S. Vanderslice — then not a child, but a dead woman — given anything? If she was not, then “ their heirs and assigns ” must refer exclusively to the heirs and assigns of the three children who were living at the date of the will.</p> <p>In Long v. Labor, 8 Pa. 229, in passing on the language, “ and the remainder, if any, .... is to be divided among my children who may be living at the time of such distribution, and. in case any of them should be deceased, their heirs are to receive, in equal parts, such share as them parents would be entitled to receive, were they living,” the court say: “ As the words in the last clause are properly applicable to the children of those who should die in the interval, and not to the children of those already dead, a strict interpretation of them wonld exclude the latter.”</p> <p>. In this case the court found justification for departing from the natural construction of the language thus used, in the fact that the testator in an earlier part of his will had, in disposing of the bulk of his estate, included the children of children who were deceased at the date of the will, and had thus expressly manifested an intention to make them beneficiaries, and to dispose of his estate upon the principle of equality. The court said: “ Here, we are not merely left to conjecture that the testator did not mean to exclude the offspring of the dead, from the absurdity or the injustice of the thing; but we can resort to his general principle of equal distribution which pervades every other part of the will. . . .</p> <p>“ Thus we see that the principle of his will is equality; and we are bound to give it effect so far as there is room for interpretation.</p> <p>“ In Gray v. Garman, no such principle was discoverable; for nothing had been previously divided among the residuary legatees, by any measure of distribution whatever.”</p> <p>In the will before the auditor there is nothing outside the residuary bequest to indicate what the testator’s purpose was with respect to the residue. The auditor is, to use language above quoted, “merely left to conjecture that the testator did not mean to exclude the offspring of the dead, from the absurdity or the injustice of the thing.”</p> <p>For the reasons given, the auditor is of opinion that tlie bequest under consideration requires the legacy to be distributed to John G. Moses, Margaret A. Chalfant and Eusebia N. Warden, exclusively. The claims of the grandchildren here, and of another set of grandchildren, under another clause, were most earnestly and ably presented, and the auditor has given his views at length because the exhaustive examination of the question made by counsel has inspired him with the desire that counsel shall know, that, if the auditor’s views are 'erroneous, they are not the result of arbitrary or hasty judgment.</p> <p>The auditor is of opinion that Jacob Moses intended that these claimants, his grandnephews and grandnieces should take. His relations with them appear to have been friendly, and no cause was discoverable for excluding them. This is mere conjecture, however, outside the will, and the auditor has not been able to find any language in the paper creating them beneficiaries.</p> <p>By item ten of the will, one equal fourth part of the residue is given to the children of testator’s brother, John Moses, share and share alike. At the date of the will John Moses’ children were, and they are all living now, Martin Moses, John D. Moses, Hosea Moses, Annie Emery, Sarah Krauser, Rebecca Young and Ellen Hallman. These parties, seven in number, will each be awarded one seventh part of one fourth of the residue.</p> <p>By item eleven, one fourth part of the residue is given to the children of the testator’s brother, Martin Moses, share and share alike. The children are: Samuel Moses, Reuben Moses, William Moses, Edward Moses, Abram Moses, Rachel Moses, and Annie Simmers. • These children were all living at the date of the will, and are in being at this time. They will each be awarded one seventh part of one fourth of the residue.</p> <p>I. Newton Wynn, Esq., called the auditor’s attention to an attachment execution, Abraham Moses v. Samuel Moses, No. 41 October term, 1895. The attachment was issued upon a judgment for $800, with interest from April 1, 1895. The attachment was served upon the defendant, and upon the executors of Jacob Moses, deceased, as garnishees. This share of Samuel Moses will be retained by the executors until the attachment proceedings are concluded, or they are satisfactorily secured.</p> <p>By the last item, testator bequeaths to the children of his sister, Mary Pennypacker, one fourth part of the residue, to be divided between them, their heirs and assigns, share and share alike, excepting her son, William J. Pennypacker, who is excluded from participation.</p> <p>At the date of the will there were three children of Mary Pennypacker living: William J. Pennypacker, Albert P. Penny-packer and Mary Philips. These children are in being at this time. Mary Pennypacker had had a fourth child, Silas Penny-packer, but he was dead at the date of the will, leaving to survive him three children: Clifton E. Pennypacker, Ella Hause and Margaret James. Tn the opinion of the auditor, for the reasons given in connection with the claims of grandnephews and grandnieces, under the bequest to the children of Samuel Moses, these children of Silas Pennypacker are not entitled to participation in this legacy. William J. Pennypacker is excluded, and consequently this last fourth part of the residue will be equally divided between Albert P. Pennypacker and Mary Philips.</p> <p>The following exception was filed, inter alia, to the auditor’s report and dismissed by him:</p> <p>Second. The auditor erred in disallowing the Silas Penny-packer heirs to participate in the distribution.</p> <p>A similar exception was also filed by H. H. Gilkyson, Esq., attorney for the heirs of Mary S. Vanderslice.</p> <p>The auditor’s report was confirmed and exception dismissed by opinion of Waddell, P. J., as follows:</p> <p>We think the auditor has reached a proper conclusion upon the question submitted for his consideration.-</p> <p>His report is exhaustive and shows careful research and judicious consideration.</p> <p>It may be the principles established by Gross’s Appeal, 10 Pa. 860, and subsequent cases, result in hardships and will be modified or abandoned in time, but we prefer the court of last resort should indicate some such purpose before we depart from what appears to be the present rule of distribution under the circumstances of this estate.</p> <p>Error assigned was in not sustaining the second exception filed to the report of the auditor.</p>

Appeal, No. 48, April T., 1896, by Joseph Arnheim from judgment and sentence of Q. S. Allegheny Co., Sept. Sess., 1895, No. 591, on verdict of guilty. Indictment charging embezzlement by consignee and factor.

<p>Appeal, No. 3, Nov. T., 1896, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1895, No. 89, on verdict for plaintiff.</p> <p>Trespass for injuries arising from a collision with defendant’s car.</p> <p>From the evidence it appears that the plaintiff, riding a five year old horse bareback northward on Edgemont avenue, was overtaken hy defendant’s car and the horse collided with the front corner of the car on the right hand side, was thrown and in falling on the plaintiff broke his leg. The evidence as to the negligence of the defendant company was contradictory, there being evidence tending to show that the car was going at a rapid rate of speed, faster than the condition of things at this point justified, and that the motorman was in a position to see the condition of the horse and rider, and by slackening his speed could have prevented the accident.</p> <p>Verdict for plaintiff for $1,000. Defendant appealed.</p> <p>Error assigned was declining to affirm defendant’s point, which point and answer was as follows:</p> <p>1. Under all the evidence in this case the verdict should be for the defendant. Answer: You will understand, gentlemen, that that asks me to take the whole question from the jury, and it requests that the court shall determine that there is not sufficient evidence to submit the case to the jury for their consideration. I cannot do that; I must leave you to determine the questions which I have submitted for your consideration without expressing any opinion as to what conclusion you should reach on these points.</p>

<p>Partnership — Application of firm, assets to individual debt.</p> <p>When copartners by their language or actions authorize or ratify the application of firm assets to the payment of the individual debt of one of them, all will be bound by such application. The question is primarily one of consent, and consent may be gathered and inferred from the attending circumstances, such as the knowledge of the other partners that the assets are being so applied, and their acquiescence therein.</p> <p>Where property for which an individual partner was indebted went into the partnership stock, under an agreement that the firm should assume the balance due for it, and that was the consideration for the transfer, then in equity and good conscience it became the firm’s debt; and if they assumed it by their notes, they cannot repudiate those obligations.</p> <p>Practice, O. P. — Province of court and jury — Unfair comments on evidence.</p> <p>Courts and juries are organized for the purpose of administering justice through the forms of law. The function of the court is to direct the course of the trial within the rules of procedure and evidence and to expound the law applicable to the questions raised for the guidance of the jury. In commenting on the evidence the court should deal with that of both sides equally and impartially, and leave with the jury their exclusive right to determine the facts.</p> <p>To present one side of the evidence, to belittle that of either side, or to say there is no evidence on a material point when in fact there is, all of which was done in the case at bar, is unfair and erroneous, and the ends of justice will peremptorily demand a reversal.</p> <p> Biased charge not cured by declarations that evidence was for the jury. </p> <p>An erroneous charge cannot be cured even by frequent declarations to the jury that all the evidence was for their consideration.</p> <p>To hold that a trial judge may partially and inadequately present the facts to a jury in positive terms, and that the injured party has no remedy for this, simply because he told them that his opinion was not binding upon them, would be grossly unjust, and subject the administration of the law to ridicule and contempt.</p> <p>Practice, G. P. — New trial — Misleading and inadequate charge.</p> <p>With the evidence preponderating greatly in favor of the plaintiffs, it is error for the trial judge to deliver a charge to the jury which in phrase and substance was marked by a very strong bias in favor of the defendants ; and in which the brief allusions to the evidence are opposed to the weight of the testimony, and where, in the light of the evidence, the instructions were so inadequate, unwarranted, misleading and inconsistent, that the jury could deduce no intelligent or correct rule to guide them.</p>

Appeal, No. 85, Nov. T., 1896, by .defendants, from judgment of C. P. Lancaster Co., Jan. T., 1896, No. 68, on verdict for plaintiff. Interpleader to try right to certain personal property levied upon by the sheriff on fi. fas. to January term, 1896, Nos. 58 and 54.

Appeal, No. 102, Nov. T., 1896, by defendant, from decree of C. P. Lancaster Co., Jan. T., 1896, No. 964, making absolute rule to strike off satisfaction of judgment. Rule to strike off satisfaction of judgment. Real debt $500.

Appeal, No. 117, Nov. T., 1896, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1894, No. 118, on verdict for plaintiff. Trespass for alleged negligent collision.

<p>Appeal, No. 64, Nov. T., 1895, by plaintiff, from judgment of C. P. Delaware County, Dec. T., 1894, No. 146, directing a nonsuit.</p> <p>Trespass for change of grade of road in township of Nether Providence, Delaware county. Before Clayton, P. J.</p> <p>The plaintiff made the following offer of evidence.</p> <p>That the public road front of plaintiff’s lands was laid out in 1855.</p> <p>That in June, 1893, the township of Nether Providence changed the grade opposite plaintiff’s lands by cutting down the public road, greatest depth about four feet, running down to nothing in a distance of two hundred and fifty feet.</p> <p>That the lands are in a village and that the property is suitable for store and residence.</p> <p>That the ingress and egress to plaintiff’s land was made more difficult.</p> <p>That the whole property was damaged by reason of the change of grade.</p> <p>That the plaintiff purchased this property before the change of grade was made.</p> <p>The court refused the plaintiff’s offer and directed a nonsuit which it subsequently on motion refused to take off.</p> <p>The court below filed the following opinion :</p> <p>December 2, 1895. The Court: This is an action for damages against a township for a change of grade in a public road. There seems to be no doubt but that the plaintiff has been seriously injured by the change in the grade of the road in front of his property. It is not alleged that the act of the supervisor was wanton or malicious. For such conduct under color of his office, he would be personally responsible. The case is that of a change of grade for the purpose of making a better road. The question in the case is, whether the township is liable in damages to property owners along the line of a public road for a change in the grade of the road for the improvement of public-travel ?</p> <p>At common law there could be no recovery for such an injury. The roads belong to the state and not to the township. The burden of keeping them in repair is cast by the law upon the township.</p> <p>The state’s right of eminent domain is paramount to all other rights and all titles are held subject to it. If the plaintiff, therefore, has any remedy it must arise under the constitution of the state.</p> <p>The plaintiff relies upon art. XVI. sec. 8 of the constitution of 1874, which reads as follows:</p> <p>“ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury Or destruction.”</p> <p>This clause of our constitution has restricted or modified the common law powers of the state. It has been held that a county is such a corporation, but it has not yet been held that a township is such a corporation. A careful reading of the article of the constitution relied upon will clearly show that it cannot be classed as a corporation invested with the privilege of taking property for the construction of its works, highways or improvements. The highways are not its improvements or works; they belong to the state and all the interest of the township in them is the burden of keeping them in repair. It is only such municipal corporations as have control over their streets or highways, and can lay them out, vacate and improve them, such as boroughs and cities, that are included in this clause of the constitution.</p> <p>It will be seen that the corporation must not only have the right to take the property of a private individual, but the property must be taken for the improvement or enlargement of the highways or works of the corporation taking the same. If the townships of the states owned the highways within their limits, and had the power to collect tolls, vacate, widen or enlarge them, they would be within the constitutional requirements and would have to pay or secure the amount of injury, etc.</p> <p>The argumentan ad absurdum will make the case still more clear. If it should be decided that township supervisors cannot interfere with the grades of the county roads which they are required to keep in good traveling order, then, for every change in grade, though only an inch, they must adjust the damages before they do the work. If a freshet should fill a hollow or wash down a Mil, they could not repair the road without either lowering or filling it up to the old grade. In repairing the road every spring, they would have to employ a surveyor to locate its old grade lines and see that the repairs did not interfere with them. At the crossing of streams, or in hilly districts, it would be impossible for the supervisor to repair the road without interfering, more or less, with the old grade.</p> <p>Again, while townships are, to a certain extent, corporations invested with the privilege of taking private property for public use, the use to wlfich they put the property so taken is to the state and its citizens and not to the improvement or enlargement of the township’s own works.</p> <p>Again the law has already provided for a settlement of damages caused by taking private property for the repairs of a public road, and no new constitutional provision was necessary upon this subject. Damages for property taken for a public road are to be paid by the county. The constitutional provision, probably, only applies0to corporations empowered to take land for public use. Supervisors have no such power. They may take stone, timber, soil, etc., in other words they may injure adjoining land, but they have no power to take land. The act of 1836 provides how the injury shall be compensated. We may also add that under the law, which required all roads to be kept at an easy grade of not more than five degrees, the original viewers to assess damage are supposed to award full damages for all future improvements in the grade.</p> <p>For the reasons above given we are of opinion that the township is not liable for the Mjury complained of in this case.</p> <p>Error assigned was refusal to hear plaintiff’s offer and take off nonsuit.</p>

<p>Practice, Q. S. — Gutting down trees — Proceedings on appeal from justice.</p> <p>On an appeal from proceedings instituted before a justice, for wrongfully cutting down ornamental trees, under the act of June 8, 1881, P. L. 82, the proper method of procedure is followed when the defendants are indicted and the case tried de novo.</p> <p>The question of the insufficiency of the justice’s record in such an action is immaterial, — the only conviction revievvable is that in the quarter sessions. If defendants had wished to test the regularity of the justice’s record they should have proceeded by certiorari or motion to quash.</p> <p>Practice, Q. S. — Refusal to read points — General charge.</p> <p>In a trial in the quarter sessions it is not error to refuse specifically to read and discuss before a juiy all the points, when the only point which could have been affirmed was fully and emphatically covered by the general charge.</p> <p>If the law applicable to the case is plainly, fully and accurately stated, the party has no cause of complaint should the judge choose to express it in his own words.</p> <p>Statutes — Repeal—Cutting down trees — Acts 0/I88I and 1891.</p> <p>The act of 1881, P. L. 82, is not repealed by the act of June 2, 1891, P. L. 170. The latter act provides for a method of recovery of damages for cutting trees along a public highway whether exercised regularly or irregularly under the right of eminent domain. The act of 1881 was intended to punish wrongdoers. There is no inconsistency between these statutes.</p> <p>Criminal law — Destruction of trees — Question for jury.</p> <p>The question whether trees alleged to have been wantonly destroyed were ornamental within the meaning of the act of 1881, P. L. 82, is properly for the jury, as also whether the cutting was “ wanton, reckless and useless.”</p> <p>Constitutional law — Statutes—Title—Acts of 1881 and 1895.</p> <p>The title need not schedule nor index.the contents of the act; it is enough that in a general way attention is called to the matters contained therein.</p> <p>The words “ et cetera ” in the title of the acts of June 8,1881, P. L. 82, and June 18, 1895,'P. L. 196, refer to things generally the same as those specifically specified, and therefore embrace trees, plants, flowers and the like.</p>

<p>Vendor and vendee — Conditional sale — Bailment.</p> <p>Where a person receives horses under an agreement purporting to be a lease and under whioh he agrees to pay for their use, such amount so paid to be credited as so much paid towards the purchase of the said horses and where the vendor virtually admits in his testimony that the installments of rent were really purchase money, such conditions disclose a conditional sale and not a bailment.</p> <p>Vendor and vendee — Rescission of contract — Question for jury.</p> <p>Where there is evidence tending to show that there has been a breach under a conditional sale and the vendor has retaken his goods prior to the service of an attachment execution against the vendee the question was for the jury, as the vendor was entitled to succeed if these facts were established and so found by the jury.</p> <p>Practice Superior Court — Assignments of Error.</p> <p>An assignment of error is defective and offends against RuleXY. wbich assigns error as follows “ in refusing to charge the jury as requested by plaintiff in all his points.”</p>

<p>Easements — Appurtenant to dominant estates — Conveyance thereof.</p> <p>It is settled law in Pennsylvania that an owner of land may arrange it as he pleases, doing no injury to others, and that any ways or other privileges which he may provide for the necessary or convenient use'of the different parts of the land, or of structures on it, will remain as servitudes upon the parts subjected to them by him, in the hands of subsequent purchasers with notice, or when the easements are continuous and apparent. The easements thus created, being for the specific use of the lands for which they were provided, become appurtenances of those dominant estates, and require no deed or writing to support them; they pass by a conveyance of the estates to which they are appurtenant.</p>

Appeal, No. 13, March Term, 1897, by defendants, from judgment and sentence of Q. S. Lebanon County, June Sess., 1896, No. 36, on verdict of guilty. Indictment charging larceny; receiving stolen goods; larceny from the person.

Appeal, No. 14, March T., 1897, by defendant, from judgment and sentence of Q. S., Lebanon County, June Sess., 1896, No. 54, on plea of guilty. Indictment for escape. The defendant, John Adams, was convicted of larceny from the person. A motion in arrest of judgment was thereupon made.

Appeal, No. 115, Nov. T., 1896, by defendant, from judgment of C. P. Berks Co., June T., 1895, No. 34, on verdict for plaintiff. Trespass for a collision.

<p>Appeal, No. 15, March T., 1897, by defendant, from judgment and sentence of Q. S. Lebanon County, Jnne Session, 1896, No. 55, on plea of guilty.</p>

<p>Appeal, No. 38, Nov. T., 1895, by plaintiff, from judgment of C. P. Berks Co., Oct. T., 1895, No. 51, on verdict for defendant.</p> <p>Trespass for obstructing a right of way. Before EndLICH, J.</p> <p>The facts appear from the charge of the court below, as follows :</p> <p>“ This suit is brought to recover damages for an alleged obstruction of a private right of way over the land of the defendant. That obstruction is said to consist of two items : In the first case, a swinging gate and movable bars placed across the way; and, in the second place, obstructions at the one end of it near the creek by the placing of stones in such a manner as to make it impossible or very inconvenient to drive through the creek into this lane or way.</p> <p>“Now, as to the matter of the swinging gate and the movable bars, I have this to say to you, and, of course, there can be no question that the jury is bound by the law as given to it by the court. The evidence seems to establish very conclusively, and I don’t understand that it is disputed by the defendant that it is established by the evidence that the plaintiff has a right of way over this one hundred and thirty-two feet of land of the defendant. The right of way, however, is a right of passage ordinarily, and ordinarily the property over which this right of way goes belongs to the owner of the soil, who can make any use of it that is consistent with the enjoyment of the right of way by the other party. He has a perfect right to put up swinging gates or movable bars, provided that they are not an unreasonable obstruction to the enjoyment of this party’s right of way over his property. In ordinary cases, swinging gates and movable bars across roads that are used in the manner in which this one appears to have been and to be used are not obstructions of an unreasonable character. [They are not ordinarily unreasonable interferences with the right of passage, and I say to you, gentlemen, that there is nothing in the evidence of this case which would justify yon in finding that in this instance an exception to the rule has been shown, to wit, that the gate or bars in this case are an unreasonable interference. Therefore, as far as that item of the plaintiff’s complaint goes, there can be no recovery on his part.] [1]</p> <p>That leaves the only question open to you, whether or not there was any obstruction of an improper kind by the placing of stones in the lane near the creek. Now, on that question, gentlemen, you have heard all the evidence, and you will, of course, remember all the evidence on the subject, and you will decide whether, under that evidence, it has been shown that the defendant has placed stones in such a way and in such quantities in this lane as to create a substantial interference with the plaintiff’s right of way over this property. If he has, then you will ascertain what, in dollars and cents, will compensate him for the inconvenience he has already suffered.</p> <p>If, however, there is no proof, in your, judgment, of the existence of an interference by reason of the placing of stones there, then your verdict will have to be for the defendant.</p> <p>And now, gentlemen,. that is the only question there is in this case that is submitted to you for your detemination, and as I said before, you will consider all the evidence on the subject and return a verdict that will do justice to both parties.</p> <p>Exception for plaintiff.</p> <p>Verdict for defendant. Plaintiff appealed.</p> <p>JSrror assigned, was to a portion of the general charge, reciting same.</p>

<p>Evidence — Lease—Parol evidence to define the leased property.</p> <p>When an inspection of a lease does not disclose a self-contained description of the property intended to be leased, and something outside the description itself is necessary to determine just what is included in its terms, parol evidence is admissible to apply the description in the lease to the land intended to be included therein.</p> <p>Landlord and, tenant — Lease—Construction of — Evidence.</p> <p>The question whether certain tenant houses were included in the farm premises intended to be leased, being the subject of parol evidenpe to define the purport of the written lease, evidence as to the respective rental values of the farm and the tenant houses was admissible, as bearing on the issue which was, — what was actually rented; and the instruction of the court was pi'oper, which directed the consideration of the jury to the theoiy of the case as affected by such rental values of the tenant houses and the farm, as bearing upon the probability of the former having been included in the premises intended to have been let.</p> <p>Practice, Superior Court — Assignments of error — Isolated sentences.</p> <p>Isolated and disjointed sentences and parts of sentences from an entire paragraph, which should be read as a whole, should not be assigned for error, as they do not fairly represent the substance of what was said by the court.</p>

<p>Fraud — Jurisdiction, equity — Injunction to restrain sheriff's sale.</p> <p>A fraudulent concealment of the husband’s title in the name of the wife often lies at the bottom of cases where real estate standing in the wife’s name is levied upon by the husband’s creditors, while on the surface her title may be apparently good.</p> <p>The jurisdiction of equity for the prevention or restraint of the commission of acts contrary to law and prejudicial to the rights of individuals was never intended to be used to obstruct the collection of debts. It is only where the creditor is clearly and undeniably proceeding, against right and justice, to use the process of the law to the injury of another that equity intervenes to stay his hand. To adopt another rule would lead to a constant use of the powers of equity to hinder and delay the collection of honest claims and to prevent the creditor from reaching the marrow of a fraud.</p> <p>Husband and wife — Wife's title to real estate — Husband's creditors— Sheriff's sale — Injunction.</p> <p>Where real estate standing in a wife’s name is levied upon as the husband’s property, a bill filed by the wife to enjoin the sale will not be sustained where the answer of the execution creditors disputes the alleged ownership of the wife and alleges that title was taken in her name to defraud creditors. Such a case is not within the exception recognized in Hunter’s Appeal, 40 Pa. 194, and the'parties will be left to their legal remedy.</p>

<p>Appeal, No. 23, March T., 1897, by relator, from decree of C. P. Lebanon Co., Sept. T., 1896, No. 153, quashing writ of alternative mandamus.</p> <p>Petition for writ of mandamus. Before Ehrgood, P. J.</p> <p>From the record it appears that a petition for a writ of alternative mandamus was filed; the writ issued and served and a motion to quash filed. The petition alleged that the relator was by profession a public school teacher duly licensed by the superintendent of public instruction. That at a duly authorized meeting of the school directors of South Londonderry township on the 20th of June, 1896, the relator was duly elected teacher for the grammar school of Campbelltown, receiving a majority of votes. That subsequently on the 18th day of July, 1896, the school directors held another meeting and elected R. P. Wolfersberger to the same position, it being alleged that the election of the relator on June 20 was illegal by reason of the fact that the board neglected and failed to ascertain and record the names of the members voting for each candidate with the names of the candidate voted for, as required by law. It was further alleged that from the date of the election of the relator a contract was then and there entered into between the relator and the school board, duly signed by the president and countersigned by the secretary, providing for the employment of the relator for the ensuing school term at $40.00 per month.</p> <p>Other facts appear from the opinion of the court below.</p> <p>Opinion of court below by Ehrgood, P. J.</p> <p>The relator is a public school teacher and alleges that on the 20th day of June, 1896, he was elected by the board of school directors of South Londonderry township to the position of teacher of the grammar school at Campbelltown, in said township. It is admitted that his alleged election was by secret ballot.</p> <p>The act of April 11, 1862, requires that in the selection of teachers by school directors the affirmative and negative votes, and by whom cast, shall be recorded by the secretary on the minutes of their proceedings [thereby clearly indicating that the teacher must be elected, by open ballot]. The board of directors, recognizing this fact, on July 18, 1896, held auother meeting and declared the election of teachers of June 20,1896, void, and proceeded to elect teachers in accordance with the provisions of the act of assembly, and at such election elected R. P. Wolfersberger to the position of teacher of the said grammar school at Campbelltown, in place and stead of the relator.</p> <p>It is admitted that said Wolfersberger is now performing the active duties of said office or position of teacher of said grammar school at Campbelltown aforesaid.</p> <p>[If a mandamus to reinstate Ileisey were allowed it would Undoubtedly affect the rights of Wolfersberger who is not-a party to this proceeding.] [3]</p> <p>[By these proceedings the relator seeks to have determined which election is binding on the township and who is entitled to the office or position of teacher of the said school. The office or position is not vacant and therefore a reinstatement of relator to the duties of the office is in effect an ousting of Wolfersberger. This is not the office of the writ of mandamus.] [4] We have carefully examined the authorities cited by counsel, together with some others, and have come to the conclusion that this writ must be quashed. And now, September 7,1896, upon consideration of' the petition and motion to quash the writ in this case, the motion to quash is allowed and the writ heretofore issued is set aside and the relator is ordered to pay the costs.</p> <p>And now, September 12, 1896, exception to relator.</p> <p>Errors assigned were, (1) in not finding that, under the facts set forth in the petition, Heisey’s appointment is binding upon the township; (2) in not finding that the school directors of South Londonderry township are estopped by their contract from denying the validity of Heisey’s appointment; (3, 4) findings in the opinion of the court below, reciting same; (6) in holding that it is not the office of a writ of mandamus to reinstate a teacher to his position when it is occupied by another; (6) in denying relator his only adequate remedy; (7) in quashing the alternative writ of mandamus.</p>

<p>Appeal, No. 35, Nov. T., 1896, by plaintiffs, from judgment of C. P. Berks Co., Feb. T., 1894, No. 52, on verdict for defendant.</p> <p>Assumpsit on promissory note. Before Endlich, P. J.</p> <p>In 1889 Wm. L. Grim and Gideon Hartman entered into a partnership arrangement for tbe purpose of buying and selling butter. Grim .represented tbe firm in purchasing tbe stock. He purchased from tbe plaintiffs four hundred and eight tubs of butter amounting to $3,723.08 paying $723 cash, and giving his individual notes for tbe balance. There was no dispute as to the partnership interest’ in this purchase. Subsequently Grim purchased butter from the plaintiffs for a distinctly individual enterprise and gave his individual notes for the same. These notes were all gradually reduced by credits allowed to the one or the other. By frequent subsequent renewals the notes involving the partnership and those of Grim individually were blended together. At this juncture all the notes were entered on the plaintiffs’ books against Grim individually. Grim then transferred to the plaintiffs a note for $2,864.52 given by one Ross, payable four months after date, together with a written statement signed by Grim guaranteeing the refunding of one half the amount of said note in case of nonpayment. The Ross note was not paid when due. A distribution of $724.68 out of Grim’s estate liquidated one half of his individual liability and part of his partnership indebtedness. The action below was brought against Hartman the surviving partner. The main question involved in this case is, whether the Ross note was a payment, and the guarantee signed by Grim an individual guarantee ; or on the other hand was the said note intended to be applied as payment on account if paid when due, the defendant’s liability as partner thus continuing in case of nonpayment; and further, was the guarantee, though signed by Grim individually, given to bind the firm and thus involving the defendant as surviving partner. The court submitted the case to the jury and a verdict was found for the defendant.</p> <p>Frrors assigned were, (1-11) submitting the questions at issue to the jury, i. e. (1) whether the note sued on was accepted as payment, subject to the individual guarantee of one half thereof by the deceased partner; (2) whether that guarantee was intended to have been given to bind the firm, and in not directing a verdict for the plaintiff.</p>

<p>Practice, O. P. — Supplemental affidavits — Time of filing same.</p> <p>Where a defendant is granted leave to file a supplemental affidavit it is his duty to file it within a reasonable time after such leave granted; failing to do so the court is justified in finally disposing of the rule, and in entering judgment upon the presumption that the defendant either could not or did not wish to be more specific.</p> <p>Practice, G. P. — Requisites of affidavit of defense alleging set-off.</p> <p>A deduction or set-off alleged in an affidavit of defense must, in order to be of any avail, be stated with precision and exactness as to the amount, and the court must be left in no doubt as to its source and character, so as to be able to judge of the propriety of its allowance against the plaintiff’s claim.</p> <p>Requisites of affidavit under act of 1887.</p> <p>While an affidavit of defense need not have all the particularity and technicality which are necessary in a special plea, yet it ought to set out the defense so that the plaintiff may know with some degree of certainty what will be interposed to defeat his claim. Since the act of May 25, 1887, the completeness and accuracy required in the plaintiff’s statement and the defendant’s affidavit are substantially the same.</p> <p>Practice, G. P. — Affidavit of defense — Breach of independent contract as set-off.</p> <p>Where a defendant sets up a breach of an independent contract as an offset he should, not only attach a copy of the contract, if it be in writing, and allege a breach and the amount of damages, but should also specify with precision in what the breach consists.</p>

<p>Practice, O. C. — Citation to file an account.</p> <p>The proper practice is, where a person who is not a creditor obtains a citation, to answer it, denying that the petitioner is a creditor. This at once challenges his position as such and unless he can make out a primafacie claim, it is the duty of the court to dismiss his petition.</p> <p>Appeals — Jurisdiction, Superior Court — Definitive decree.</p> <p>The appellate courts cannot take jurisdiction until a definitive sentence or decree has been entered; and a decree of the orphans’ court citing an executor to file an account is an interlocutory decree from which no appeal lies.</p>

<p>Appeal, No. 46, Nov. T., 1896, by defendant, from judgment of Q. S. Northampton Co., Feb. T., 1896, No. 35, on verdict of guilty.</p> <p>Indictment for selling liquor to minors.</p> <p>Under a retail liquor license, effective during the years commencing in March, 1894 and 1895, granted by the court of quarter sessions of Northampton county, William Newhard, defendant in the court below, maintained a bar in his hotel and served liquors. It was practically admitted that shortly after obtaining the license, he placed behind the bar a placard with the inscription “No Liquor Sold to Minors,” at the same time instructing his wife and son to sell liquors neither to minors nor to drunken men. Testimony was admitted to prove that the defendant with his son, on December 16, 1895, left his bar in charge of his wife and proceeded to a neighboring pond to cut ice. During this absence several young men, who upon tiñe trial were found to have been minors at the time, were served with beer and whisky at the defendant’s bar by Mrs. Newhard, wife of the defendant. Testimony was adduced by the commonwealth to the effect that the defendant was present during the sale of some of the liquor. It was contended on the contrary by the defendant that the sales occurred between 3 and 4 o’clock, and that he did not return until 5:30 when he found the young men there; that he at once gave orders to stop the sale of all liquors to them. The court in its charge to the jury instructed them that the defendant was criminally liable, whether the sales made by Mrs. Newhard to the minors were sales as agent for or as wife of the defendant.</p> <p>Verdict of guilty. Defendant appealed.</p> <p>. Errors assigned were, (1) in charging the jury as follows to wit: “When the proprietor puts a bartender in charge of his bar, a wrongful act by the latter within the scope of his employment, and during the period of time which that employment lawfully covers is presumed to have been authorized by the principal. To such service the law of principal and agent is in some respects applied: Wharton’s Cr. Law, sections 247, 1422, 1503. But the wrong must have been committed in the service for which he was lawfully employed. Let me illustrate •tlié rule. A licensed innkeeper may sell at his bar spirituous liquors on week days but not on Sunday; his agent is therefore lawfully employed for such service during the week, and sales then made even to the excepted classes are made in the strict line of his employment, and are presumed to have been done by the master’s authority, although he is absent. . . . While such violations as I have first described are presumed to have been by authority of the principal, it is only a presumption, which must yield to proof. If there is no other evidence the proprietor may be convicted.”</p> <p>(2) In charging the jury as follows, to wit: “ The defendant contends that if sales were made to these minors by his wife they were made without his knowledge and he so testifies. If that be conceded he has put her in charge and whether we treat her as bearing the relation of wife or as agent and bartender, she is presumed to have been acting under his authority ■liand direction, although by reason of his absence he had no knowledge of these particular sales and had given no consent to them specifically. If he was present she is presumed to have acted under his compulsion as his wife ; if he was absent under .the circumstances claimed here by this proof she is presumed as his wife and agent, acting within the scope of her employment, to have made the sales by his authority and direction.”</p> <p>(8) In charging the jury as follows, viz: “ The defendant has further testified that two years ago when his license was first granted, he gave express commands that no sales should be made to minors and that a printed notice to this effect was behind the bar. I have said to you that these presumptions to which I have referred may be overcome by proof. Now, if the defendant did in good faith, for the purpose of having it obeyed, give this order and none of the sales were made in his actual presence, it would constitute a good defense. This is supported by his own testimony alone and he is an interested witness; but he is not for that reason to be disbelieved. To reject it for this reason would be to nullify practically the act of assembly which makes him competent; you have a right, however, to consider this interest in determining what credibility he is entitled to receive; you will consider what degree of probability attaches to this statement. Is it or is it not probable that if such instructions were given to the wife she would have disobeyed them? These are all matters for you.”</p> <p>(4) In imposing the following sentence upon the defendant, to wit: That he “pay costs of prosecution, a fine of $150 to the • commonwealth of Pennsylvania for use of county of Northampton, and undergo imprisonment in the Northampton county prison for the period of 20 days from this date, the defendant to stand committed until this sentence be complied with.”</p>

<p>Appeal, No. 69, Nov. T., 1896, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1892, No. 68, M. L. D., on verdict for defendant.</p> <p>Sci.fa. sur-apportioned mechanics lien.</p> <p>The terre tenant having by leave intervened, the question in controversy turned on the' liability of three houses purchased by him for their respective apportionments of $180 a house, amounting in all to $540.</p> <p>The other essential facts appear in the opinion of the Superior Court.</p> <p>The court below, Biddle, P. J., directed a verdict for the defendant, charging the jury as follows:</p> <p>The decision in this case depends upon a question of law. A man has the right to file one lien against the entire property, or he can file a lien against each one of the houses, but he cannot file two apportioned liens against one property.</p> <p>Two apportioned liens on parts of one entire block, undivided by any street, cannot be filed; one.apportioned lien can be filed against the whole, or a lien can be filed against each house. Your verdict in this case must, therefore, be for the defendant.</p> <p>Yerdict for defendant. Plaintiff appealed.</p> <p>Errors assigned were, (1, 2) in directing a verdict for defend.ant and not directing a verdict for the plaintiff.</p>

<p>Marine insurance — Measure of damages — Running down clause — Liability of underwriter thereunder.</p> <p>The perils insured against in a policy of marine insurance, as ordinarily executed, do not include damages to another vessel by collision between such vessel and the vessel injured. This risk, when assumed, will be found in the “ Running Down Clause.”</p> <p>In determining the liability of the underwriter under such clause, the value placed upon the vessel insured in thp body of the policy does not enter into the controversy excepting in so far as it is a factor in making the calculation. If by the words of the clause the undertaking of the underwriter is dependent upon the amount which the insured became liable to pay and shall pay, the sum paid will be the amount of damages which have been satisfied to the damaged party: Thomson v. Hopper, 7 E. &B. 172, followed.</p>

<p>Nuisance — Abatement—-Power of board of health. -</p> <p>The board of health in Philadelphia has final jurisdiction in determining the fact of nuisances which it orders to be removed.</p> <p>A privy well may or may not be a nuisance per sé according to circumstances, and the board of health has power to determine the character of such wells and to direct the necessary things to be done in order to prevent its becoming or remaining a nuisance. If cleaning the well does not abate the nuisance the board may take the next step and order the well to be filled up.</p>

<p>Appeal, No. 132, Oct T., 1896, by T. De Witt Cuyler and Effingham B. Morris, assignees, from the order and decree of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 1132, directing the assignees of the Solicitors Loan and Trust Company to set aside the sum of $807.54, to be held by them as a trust fund for the benefit of the estate of John Cob-son, a lunatic.</p> <p>Petition to have funds, placed with a trust company, set aside as a special trust fund.</p> <p>Frederick K. Cobson was appointed by the court of common pleas, No. 4, Phila. Co., committee of the person and estate of John Cobson, lunatic, on October 21, 1895, and security in the sum of $10,000 required. He thereupon arranged with the Solicitors Loan & Trust Company to furnish the required-security upon the deposit with said company, as indemnity, of all moneys, securities and proceeds from the same belonging to the estate of the lunatic, under the provisions of an indemnity agreement, and the same not to be withdraAvn except by order of the court and on orders or checks countersigned by one of the officers of said company.</p> <p>On December 24, 1895, the Solicitors Loan & Trust Company was approved as surety by the court and executed the requisite bond, receiving, as indemnity, from Frederick K. Cob-son all cash and securities of the lunatic’s estate valued at $4,691.26, of Avhich $807.54 was in cash and the balance in securities.</p> <p>An assignment to Effingham B. Morris and T. DeWitt Cuyler, for the benefit of creditors, was made on January 3, 1896, by the Solicitors Loan & Trust Company.</p> <p>An order of the court of common pleas, No. 4, was granted to Frederick K. Cobson on April 7, 1896, whereby he was authorized to sell certain securities and expend the proceeds from the same in the payment of medical bills, board and other proper charges connected with the care and maintenance of the lunatic, and in addition thereto allow the sum of $10.00 per week for his future maintenance and support.</p> <p>Upon application to the Solicitors Loan & Trust Company for the cash deposit of $807.54, the same was not paid over on the ground that it was not sufficiently earmarked to form a trust fund for the estate of the lunatic. The committee, Frederick K. Cobson, contended that such was his intent upon placing the same with the company, not that it should be regarded as an ordinary deposit.</p> <p>A petition representing the above facts, together with the contentions of the committee of the lunatic was presented by Frederick K. Cobson to the court below and by a decree of that court the petition was granted and the assignees of the Solicitors Loan & Trust Company ordered to set aside the sum of $807.54 to be held by them as a trust fund for the benefit of the estate of John Cobson, lunatic.</p> <p>From tlris decree, directing the setting apart of the sum of $807.54 as a trust fund, the appeal is taken by the assignees above.</p> <p>Prayer of the'petition granted and decree entered directing the assignees to set apart $807.54 to be held by them as a trust fund for the benefit of the estate of John Cobson, a lunatic. Assignees appealed.</p> <p>Error assigned was, entry of decree, reciting same.</p>

<p>Appeal, No. 159, Nov. T., 1896, by plaintiff, from judgment of C. P. Berks Co., March T., 1896, No. 6, on verdict for defendant.</p> <p>Replevin for goods distrained for arrears of dower.</p> <p>Lucy Heffner, widow of Daniel Heffner, (subsequently intermarried with one Schearer) distrained through the defendant constable, John M. Sharp, for arrears of dower alleged to be due her on an estate of which her son, Franklin D. Heffner, was seized. The son Heffner replevied and made offers of evidence tending to show that by his inadvertence and mistake, if corrected, in a certain adjustment and settlement made between himself and his mother some years previous, an overpayment or set-off would appear which would show that no dower was in arrears at the time of the distraint made. The court rejected these offers, which formed the ground for the first four assignments of error, Endlich, J., charging the jury as follows-:</p> <p>In this case there does not seem to be any question to be passed upon by the jury. The only evidence here is that this party, Lucy Schearer, at whose instance this distress was made was entitled to a certain amount of dower at the hands of the plaintiff. There is no evidence to contradict her in this case that can be submitted to the jury, and, therefore, your duty in this matter will be to find a verdict in favor of the defendant, and to find the amount of interest in arrears due to Lucy Schearer, together with the interest on said arrearages, was $140.50, that she is entitled to.</p> <p>Exception noted for plaintiff.</p> <p>Other facts appear in the opinion of the Superior Court.</p> <p>Errors assigned were, (1-4) rejection of all offers of evidence, reciting same; (5) error in charging the jury.</p>

<p>Banks and banking — Forgery—Rubber stamp.</p> <p>The mere fact that a depositor, without knowledge of his bank, had a rubber stamp made which was a substantial facsimile of his bank signature does not, irrespective of depositor’s negligence, relieve the bank from loss which occurs by reason of the unauthorized signing by means of such stamp, by a third person of the depositor’s signature to a check.</p> <p>Negligence — Rule as to innocent parties.</p> <p>The rule governing loss by one of two innocent parties has no application in cases where the two persons are not equally without fault, but where one owes a duty to the other, to do or to refrain from doing, a particular thing, and has failed in the performance of his duty.</p> <p>Negligence — Forgery by a facsimile stamp) — Proximate cause.</p> <p>It is not negligence per se for a depositor to have in his possession a rubber stamp, a facsimile of his signature. He is bound to use it and keep it with prudent car? so as to secure it against unlawful use by others, but it cannot be said that his mere possession of the thing was the proximate cause of the mispayment of money to one who unlawfully possessed himself of it and used it to commit forgery.</p> <p>Proximate cause — Negligence—Non-negligent act.</p> <p>In determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence, such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act. The same rule, and for a stronger reason, applies when it is sought to hold one liable for the consequences of a lawful and non-negligent act.</p> <p>Negligence — What constitutes — Province of court and jury.</p> <p>There are cases in which the court can determine that certain omissions constitute negligence, but they are exceptional, those in which the precise measure of duty is determinate, the same under all circumstances. What constitutes negligence when the standard shifts, not according to any certain rule, depends upon the facts and circumstances developed at the trial, and cannot be determined by the court but must be submitted to the jury.</p>

<p>Appeal, No. 124, Nov. T., 1896, by defendants, from judgment of Q. S. Phila. Co., January Sess., 1896, No. 690, on verdict of guilty.</p> <p>Motion in arrest of judgment.</p> <p>Under an indictment for engaging in business of druggist without being registered the jury found a verdict of guilty, and specially found the following facts agreed upon as a special verdict.</p> <p>It is hereby agreed that the jury may find the following facts:</p> <p>That the defendant, Samuel M. Zacharias, at and before the bills of indictment were found, was part owner of the three drug stores at Forty-fourth and Girard avenue, Forty-second and Westminster streets, and Forty-fifth and Brown streets, in the city of Philadelphia, commonwealth of Pennsylvania.</p> <p>That as such he was part owner of the stock and fixtures of said stores, and received from the sales there made a proportion of the profits.</p> <p>That he employed in the stores regular registered pharmacists to sell drugs and medicines and to put up prescriptions to whom he paid salaries.</p> <p>That the defendant himself did not in any way put up prescriptions or personally sell the drugs, but that the said defendant has never passed an examination before the State Pharmaceutical Board, neither has he received a certificate therefrom, either as a registered manager or a qualified assistant.</p> <p>The court allowed a motion in arrest of judgment to be filed, and upon argument overruled the same and sentenced. the defendant.</p> <p>Defendant moved in arrest of judgment, which motion was overruled by McMichael, J., in an opinion reported in 5 Dist. Rep., 475.</p> <p>Verdict of guilty and sentence that defendant pay a fine of $100 and costs of prosecution and stand committed until this judgment be fully complied with. Defendant appealed.</p> <p>Errors assigned were, (1) overruling defendant’s motion in arrest of judgment; (2) entering judgment on verdict and sentencing defendant.</p>

<p>Appeal No. 52, Nov. T., 1896, by Margaret Richardson from decree of O. C.‘, Montgomery Co., Oct. T., 1895, No. 107, dismissing her exceptions and confirming the report of the auditor, appointed to distribute the balance in the hands of the administrators of John Taylor, deceased.</p> <p>Exceptions to auditor’s report.</p> <p>Jacob A. Strassburger was appointed auditor to distribute the balance in the hands of J. F. Siegel et al., administrators e. t. a., of John Taylor, deceased; the auditor engaged Miss Margaret Richardson to report in shorthand the proceedings of the audit and to furnish four type-written transcripts thereof. The bill which was as follows: To reporting testimony at audit, 175 pp. (4 copies) at 50 cents per p. $87.50, copying 8 pp. at 14 cents per p., $1.12; total $88.62, was objected to by the creditors and the auditor found her charges excessive, awarded her $50.00 as full compensation, and reduced her compensation to that amount. Exceptions were filed to this report of the auditor, which were dismissed by the court in an opinion by Weand, J.</p> <p>The claim of the stenographer in this case is governed by the sixth section of the act of May 24, 1887, P. L. 199.</p> <p>This act allows an auditor to employ a stenographer “at the request of the parties,” etc., and we will assume that such request was made, as the only contention is as to the amount of compensation which should properly be allowed.</p> <p>The act further provides that “ the compensation of the stenographer .... shall be such as the court may direct, together with such reasonable additional compensation as shall be fixed by said examiner and for extra services,” etc. This clearly implies that the court shall, by a general order, fix the compensation; otherwise, in every case after the services were ended, the matter would have to be referred to the court and then .recommitted to the examiner or auditor before a report or distribution could be made. This court has made no such order, and hence the claimant has no standing except for what the auditor might allow her. We can only treat the allowance made by the auditor as “ for extra services or time not otherwise provided for,” and of this amount he is made the arbiter, subject, of course, to correction, if based upon erroneous 'findings as to time, services, etc.</p> <p>The auditor appears to have given the subject his careful attention and allowed the claimant what he supposed the court would have allowed her in full, and after hearing the depositions in support of the claim after exceptions filed, he renews his opinion that his allowance was correct; He must necessarily have had better opportunities of coming to a correct conclusion than we can, and we ought, therefore, to adopt his findings.</p> <p>And now, February 19, 1896, the exceptions are dismissed and the report of the auditor is confirmed.</p> <p>And now, March 11, 1896, the claimant, Margaret Richardson, excepts to the decree of the court overruling her exceptions to the auditor’s report. And bill sealed.</p> <p>Hrrors assigned were, (1-5) dismissing the exceptions to the auditor’s report and in confirming the same.</p>

<p>Practice, C. P. — Service of process — Acts of 1836 and 1887.</p> <p>The act of May 25, 1887, P. L. 271, does not in any way repeal or modify the provisions of the act of June 18, 1836, P. L. 568, relating to the beginning of personal actions and the mode therein provided for the service of summons.</p> <p>Practice, C. P. — Service of process and statement.</p> <p>Where a summons has issued and been returned nihil liabet such service</p> <p>is a nullity and the issuing of an alias returnable upon a different return day and a service thereof cannot relate back to the issuing of the original summons and the service of the statement, so as to give the latter any value or validity under the provisions of the act of 1887. The service of an alias summons does not bring the defendant within the jurisdiction of the court as of the date of the issuing of the original summons.</p>

<p>Evidence — Shipping receipt — Bill of lading.</p> <p>When a shipping receipt provides that: “ The acceptance of this receipt for goods made subject to the provisions of the bill oE lading of this company makes this an agreement between the M. D. T. Co. and carriers engaged in transporting said goods and all parties interested in the property,” such a provision in the receipt entitled parties to have the bill of lading in evidence as part oE such agreement.</p> <p>Common carriers — Evidence—Bill of lading — Question for jury.</p> <p>A suit was brought by plaintiffs against a common carrier for alleged misdelivery of goods consigned to R. of Tyler, Texas, by delivering same lo M. at Dallas, Texas. Held, That it was error to direct a verdict for defendant, and that under the evidence it was for the jury to decide the facts as to the purchase by and delivery to M. What the contract was, whether the defendant was liable as common carrier or merely as forwarding merchant, and whether or not plaintiffs are estopped, by reason of delay in making their claim or by the acceptance of part of price of goods forwarded from the person who received them, were questions which will be properly raised under the contract, which, in view of the rejection of the bill of lading, was not fully in evidence and is not now a part of the record.</p> <p>Evidence — Beading parts of depositions — Rights of other party to balance.</p> <p>Where portions of depositions are read in evidence by plaintiff the remainder can be read by defendant as cross-examination. The time for the introduction of such parts of the depositions as were not used by the plaintiffs was within the discretion of the court.</p>

<p>Appeal, No. 164, Nov. T., 1896, by-Mary E. Luce, from decree of O. C. Phila. Co., Jan., T., 1895, No. 142, dismissing appeal from the register in the matter of the petition for revocation of letters testamentary.</p> <p>Appeal from register on refusal to revoke letters.</p> <p>Charles E. Luce died intestate. Letters were granted to his brother Francis E. Luce. Mary E. Luce, the petitioner, applied for revocation of these letters as improvident, and the granting of letters to herself as the widow of decedent. The register refused the petition and the case on appeal to the orphans’ court' was heard before Ashman, J.</p> <p>The evidence was conflicting, but tended to show a marriage ceremony, long years of cohabitation and affectionate intercourse as well as reputation as man and wife.</p> <p>The auditing judge sustained the appeal, revoked the letters, and directed the register to issue new letters to the petitioner. On exceptions filed the auditing judge was reversed by the Court in an opinion by Hanna, P. J., reported in 5 Dist. Rep. 137. Ashman, J., dissenting.</p> <p>Errors assigned were, (1-12) to the findings of the court in banc in reversing the auditing judge.</p>

<p>Appeal, No. 30, Nov. T., 1896, by plaintiffs, from judgment of C. P. Chester Co., Jan. T., 1895, No. 62, on verdict for defendant.</p> <p>Sheriff’s interpleader to determine ownership of certain goods.. Before Waddell, P. J.</p> <p>The issue was a sheriff’s interpleader directed by the court below to determine the ownership of certain goods claimed by the plaintiffs and levied upon by the sheriff under a writ of fieri facias, wherein Horace Lloyd was plaintiff and E. P. Jester defendant, as the property of the said E. P. Jester.</p> <p>The plaintiffs in the interpleader were manufacturers and wholesale dealers of shoes in the city of Philadelphia. The defendant was an execution creditor of one E. P. Jester, who had a retail store in Phoenixville, Chester county, Pa. A lot of shoes levied -upon in. Jester’s store under the execution of the defendant was claimed by the plaintiffs, who alleged that said shoes had been procured of them by Jester by fraud, and that said fraud vitiated his title thereto and entitled them to take possession of the same. The testimony of fraud and false representations is sufficiently indicated and set out in the opinion of the Superior Court. The value of the goods was 1180.</p> <p>Verdict for defendant in the interpleader. Plaintiffs appealed.</p> <p>Errors assigned were (1-4) to the charge of the court; (5) in submitting to the jury the construction of the language testified to by plaintiffs’ witness as to the representations relied on; and in not instructing the jury that if they believed the representations as testified to by plaintiffs’ witnesses that the goods in dispute were parted with on the faith and credit of such representations, in that event the verdict should be for the plaintiffs; (6-8) error in charge of the court (the language of the judge’s charge and the objections thereto are sufficiently indicated in the opinion of the Superior Court).</p>

Appeal, No. 55, Nov. T., 1895, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1894, No. 27, on verdictfor defendant. Sheriff’s interpleader to try the right to certain property. Before Livingston, P. J. It appeared from the evidence that the plaintiff was a wholesale shoe dealer in Philadelphia.

<p>Criminal law — Embezzlement—Juror—Challenge for cause.</p> <p>Where it clearly appears that a juror has formed a fixed opinion of the prisoner’s guilt, he should not be permitted to say that he can act impartially, or at least he should not be accepted on his own dictum.</p> <p>Qualification of juror — Preconceived opinion.</p> <p>Where a juror testifies on his voir dire that he had formed and expressed an opinion with Reference to the guilt or innocence of the defendant, but not of a character to prevent him from fairly trying the case, and that if sworn as a juror he could render a verdict in accordance with the evidence produced in court, such juror is prima facie competent.</p> <p>But this preconceived opinion becomes a fatal objection when it appears that the jm'or was the owner of a newspaper in which many editorials had been published pronouncing defendant guilty, and that the juror had read these editorials and approved of the sentiments in them with regard to the case.</p> <p>As evidence of prejudgment the deliberate and repeated publication of opinions with the juroi-’s approval, in a newspaper in part owned by him, is not less conclusive than the deliberate expression of opinion, reduced to writing and signed by the juror, which in Com. v. Cleary, 148 Pa. 26, was held to disqualify.</p> <p>Practice, Superior Court — Assignments of error — Rules of court.</p> <p>Assignments are defective which do not contain references to the preceding’testimony necessary to make them self-explanatory and to show fully on’what they are based. .</p> <p>While the practice of presenting an excerpt from the stenographer’s notes, in an assignment of error, has obvious advantages, it has manifest limitations, and there are occasions which would be better served by the formal bill of exceptions long employed by the profession, but now apparently regarded, though quite erroneously, as not “ up to date.”</p>

<p>Negligence — Streets—Reciprocal duties of pedestrians and vehicles.</p> <p>Pedestrians and drivers of vehicles are charged with reciprocal duties of vigilant care toward each other in the use of the city street and especially at the crossings.</p> <p>The degree of care demanded to exonerate from negligence in regard to a collision in a city street is that care which would be expected under the circumstances from a prudent and sensible person.</p> <p>Negligence— Question fo r jury.</p> <p>Where the evidence is conflicting as to the negligence of one or both parties to a collision in a city street the case is for the jury under proper instructions from the court.</p>

<p>Appeal, No. 45, Nov. T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1894, No. 788, on verdict for plaintiff.</p> <p>Assumpsit for lumber sold defendant. Before Willson, J.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>The court left the question of performance or substantial performance to the jury.</p> <p>Verdict for plaintiff, $594.41. Defendant appealed.</p> <p>Errors assigned were, (1) in charging as follows: “If it was' substantially performed, if it was performed so that the proportionate extent of failure was comparatively small, and did not constitute the bulk of the entire quantity, then the plaintiff would be entitled to recover for whatever he did deliver that was in accordance with the contract, and the defendant would-be entitled to have credit for whatever portion was deficient.” (2) In charging as follows : “ At the same time, you will remember that he (Arnold) stated that they (the Casket Company) were ready to give credit to the defendant for a certain quantity. As I understand the testimony, he said that they were ready to give credit for 45,000 and some odd feet of the 60,000 or thereabouts, covered by the contract.”</p>

<p>Appeal, No. 167, Nov. T., 1896, by defendant, from judgment of C. P. No. 2, Pbila. Co., June T., 1896, No. 1123 for plaintiff for want of a sufficient affidavit of defense.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>Judgment for plaintiff for §610.50 with interest. Defendant appealed.</p> <p>Mrrors assigned were, (1,2) entry of judgment in favor of plaintiff.</p>

<p>Appeal, No. 136, Nov. T., 1896, by defendant, from judgment of G. P. No. 2, Phila. Co., March T., 1896, No. 973, making absolute rule disallowing exemption.</p> <p>Assumpsit for coal sold and delivered.</p> <p>On May 9, 1896, the plaintiffs obtained judgment against the firm of Rhoads & Shuster. The levy was made under fierf facias on the interest of Shuster in another concern known as Warner, Shuster & Co., Ltd. Shuster claimed the benefit of the. exemption law. His claim was allowed by sheriff. The court subsequently made absolute the rule to show cause why the claim should not be disallowed and the appraisement thereof set aside.</p> <p>Other facts sufficiently appear in the opinion of the Superior Court.</p> <p>Error assigned was in making absolute the above rule.</p>

<p>Common carrier — Presumption of negligence.</p> <p>Where goods are injured while in the custody of the carrier under a special contract, and he gives no account of how it occurred, a presumption of negligence follows of course: Express Co. v. Sands, 55 Pa. 140.</p> <p>Special custom, in relief of carrier — Requisite proof.</p> <p>In all cases where relief of a carrier’s liability at common law, by special custom or usage is relied on, such custom or usage must be clearly proved, and that the employer knew it, or is presumed to know it by reason of its generality in the neighborhood.</p> <p>Stipulation limiting carrier's liability — Public policy.</p> <p>Stipulations, insisted upon by carriers or other persons who stand in such a position toward their customers as enables them to compel a compliance with their demands or destroy their customer’s business, will be judged of by their fairness, and held to be void whenever they are unreasonable or oppressive: Willock v. R. R. Co., 166 Pa. 184.</p> <p>This principle applies alike to a custom and to a stipulation. Public policy compels its acceptance in all civilized countries.</p> <p>Carriers — Release from negligence — Public policy.</p> <p>Public policy forbids that any custom, stipulation or condition shall release the carrier from liability for negligence. Even a provision fixing the value of the property, or limiting the amount to be recovered, will not relieve the carrier if the loss or injury be due to negligence.</p> <p> Transition from carrier's to warehouseman's liability. </p> <p>When goods have been carried to place of destination, liability as carrier ceases, and the less onerous liability of warehouseman is substituted. This liability is only for negligence, measured by want of ordinary care.</p> <p>Railroads — Carrier's duty as to freight when landed.</p> <p>For a carrier to discharge freight without any attempt at making reasonable provision for its protection from dangers which, in the ordinary course of affairs, may naturally be apprehended, must be regarded as not only negligence but gross negligence.</p> <p>The carrier’s duty is not measured by the quantity of freight discharged; its duty is not discharged at any station, by dropping freight at the side of the road, whether on an open platform or in mud or snow, to remain exposed to the elements, to injury from other sources, or to theft, until the owner learns of its arrival and removes it. To give such a practice the legal sanction of a custom, or to enforce a stipulation permitting it, would be to place the public at the mercy of the carrier.</p>

<p>Actions ex contractu — Stipulation against a tort.</p> <p>A contract may stipulate against the commission of a tort and upon its breach an action ex contractu lies.</p> <p>Costs — Claims under $100 — Form of action — Substance of claim.</p> <p>The right of exemption from costs under the statute cannot be defeated by plaintiff’s erroneous proceedings, whether intentional or by mistake. The important question is not the form of action, but the nature of the plaintiff’s demand.</p> <p>Jurisdiction — Practice, C. P.— Costs — Verdict under $100.</p> <p>Plaintiff cannot recover costs where the verdict was less than $100, he having failed to file the affidavit required by the act of 1810.</p> <p>Where although the writ was in trespass, the statement was in assumpsit and the plea not guilty, it appearing that the nature of action was clearly in assumpsit, the irregularity of the writ and pleadings was cured by the verdict, and the verdict being below $100 the plaintiff’s right to recover costs falls, he having failed to file the requisite affidavit.</p>

<p>Municipal law — Negligence—Construction of sewers — Ministerial duties.</p> <p>It must be conceded that the power of a municipal corporation to construct sewers is discretionary and in its nature judicial, and that no civil liabilities are incurred for failure to perform ; nor for errors of judgment in its exercise, such as selecting plans, locations, etc., although the sewers constructed pursuant thereto prove inadequate. But the work of construction in accordance with adopted plans is purely ministerial; it must, therefore, like all ministerial duties, be performed in a skillful and careful manner. A municipality is liable for injuries caused by negligent performance.</p> <p>Municipal law — Liability in regxilating flow of surface water.</p> <p>In regulating the flow of surface water on the streets, municipalities have no right to cast it upon adjacent property, and that water thus diverted must first pass over the intervening lands of others, will not affect the question of liability.</p> <p>Municipal law — Injuries from construction of seivers — Measure of damages.</p> <p>Where property is injured by negligent construction of a sewer, by reason of the diversion of water caused thereby, the measure of compensation would be the cost of repairing the damages and thus restoring the property to its former condition, unless such cost would equal or exceed the value of the building, in which case the value of the building would be the measure of the plaintiff’s damages.</p>

<p>Appeal, No. 119, Nov. T., 1896, by defendant, from judgment of C. P. Lehigh Co., April T., 1895, No. 87, on verdict for plaintiff.</p> <p>Appeal from judgment of alderman. Before Albright, P. J.</p> <p>The form of the action was assumpsit to recover on a certificate for sick benefits.</p> <p>On August 13, 1894, defendant company issued a policy, or as called by the company, a certificate of insurance for the consideration of 25 cents weekly dues, in the sum of $62.50 for death benefits and $6.25 per week for sick benefits. This certificate, together with a receipt hook for the crediting of the weekly dues.paid by the plaintiff and a “sick card ” (a blank form to be filled out by insured in case he became entitled to benefits by reason of sickness, and forwarded to the company as notice of his claim) were duly delivered hy defendant to plaintiff.</p> <p>The certificate provides, filter alia: “ Provided, however, that in case sickness or accident or death should occur to the member named in the certificate within the first twenty weeks from the date of the certificate, the society shall return the premiums that have been paid and cancel this certificate.” And again, in the eleventh clause, “ and before any payment can be claimed under this certificate, said certificate and receipt book must be surrendered to the society.”</p> <p>Plaintiff was taken sick on or about November 21,1894, fourteen weeks and two days after issuing of the certificate, or five weeks and five days before expiration of the twenty weeks of probation required as a condition precedent. The twenty weeks expired on December 31, 1894, up to which time plaintiff’s premiums had been paid, and without any further payments under the terms of the certificate the insurance would not lapse until four full weeks after that date, if, in other respects the terms of the contract were fulfilled. He also paid on January 18, 1895, two more weekly premiums for weeks ending January 7, and 14, 1895, which extended the beneficial period two weeks longer, if he had been entitled to any benefits at all, when these two payments were made. After the last payment no more premiums were paid by plaintiff, and under the terms of the contract the insurance lapsed four weeks after January 14, 1895, and the certificate became null and void.</p> <p>About November 26,1894, plaintiff sent his sick card to the company. There was evidence that the agent called upon plaintiff and informed him that he was not entitled to sick benefits because he became sick before the expiration of twenty weeks from the date of his policy; that all he could ask and receive under the circumstances was the return of the weekly premiums he had paid to the company, upon the surrender of Iris book and policy. To which the reply was made: “We do not want that, we want sick benefits; ” on which the company’s agent told him that plaintiff could not get.</p> <p>On January 18, 1895, two more weeks’ dues were paid and accepted. On January 19, 1895, suit was brought before the alderman. On February 18, 1895, the policy was lapsed for arrears.</p> <p>Verdict for plaintiff for $13.00. . Defendant appealed.</p> <p>Errors assigned were, (1) in instructing the jury as follows : “ Under the view we take of the contract between the parties, aird the law applicable to it, the plaintiff is entitled to recover if you find that he was sick and disabled during two weeks after January 1, 1895.”</p> <p>(2) In charging the jury as follows: “ If the member falls sick within twenty weeks after he became insured, the company may terminate the policy; they may cancel it; and the policy says that the society shall return the premiums paid and cancel this certificate. Although it says they shall do it they are not bound to do it. They may leave it remain in force and may continue to treat the member as a member; they could take his dues after that; they could decline to avail themselves of this privilege of canceling the policy. My view of the law governing this case is, that if this company, before Baranowski had sued them for the benefits, had tendered back to him the premiums which he had paid — if they had paid them to him and he had taken them, that that would have been a cancelation of the policy whether he had surrendered it or not, or if they had offered him the money, made what in law amounts to a tender — taking money which is a legal tender and showing it and offering to give it to the plaintiff — if they had done that, even if Baranowski had not taken the money, we would say that it would have amounted to the same thing as if it had been paid into his- hands, and then the policy would have been canceled and at an end. Tbe eleventh clause, as I said before, relates only to the claim for premium that has been paid: Its provision that the policy must have been surrendered applies only to the insured, to the member; it says ‘ before any payment can be claimed under this certificate there must be a surrender.’ But Baranowski is not claiming premiums here; he is claiming sick benefits.”</p> <p>(3) In charging the jury as follows: “ Although he could not claim for his sickness and disability until the twenty weeks were up, yet when the twenty weeks from the date of the policy were up, and if he was then sick, even though it was a continuance of a former sickness, he is entitled to recover; and if you find that he was sick and disabled so as to fulfill the condition of the policy as to sickness, for two weeks after January 1, 1895, then you may find for plaintiff.”</p> <p>(4) In negativing defendant’s point, — “that under all the evidence the verdict must be for the defendant.”</p>

<p>Appeal, No. 141, Nov. T., 1896, by defendant, from order of C. P. Schuylkill Co., Nov. T., 1895, No. 375, making absolute rule for pluries writ of h. f. p. with fi. fa. for costs.</p> <p>Petition for pluries writ of h. f. p. Before Pershing, P. J.</p> <p>On November 6, 1895, an amicable action of ejectment filed; ■judgment entered and a hab. fac. issued and writ stayed. Subsequently an alias hab. fac. issued on which delivery of possession of the premises on November 21, 1895. Defendant subsequently re-entered and took possession of the premises, and forcibly retained possession of the same. Whereupon plaintiff filed the petition for a pluries writ of h. f. p. with fi. fa., under the act of February 1, 1834, P. L. 26, and notice was given to defendant and answer filed and the case heard on petition, answer and depositions, and the rule for the pluries writ made absolute.</p> <p>Other facts sufficiently appear in the opinion of the Superior Court.</p> <p>Defendant appealed.</p> <p>Error assigned were (1, 2) making absolute the rule for pluries writ of habere facias possessionem, with fi. fa. for costs.</p>

<p>Appeal, No. 100, Nov. T., 1896, by defendant, from judgment of C. P. Berks Co., June. T., 1895, No. 44, on verdict for plaintiff.</p> <p>Trespass for personal injury to plaintiff. Before Ermentrout, P. J.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $933.88. Defendant appealed.</p> <p>Errors assigned were, (1, 2) refusal of binding instructions . for defendant.</p>

<p>Appeal, No. 73, Nov. T., 1896, by. Land Title & Trust Co., trustee from decree of Q. S., Phila. Co., Jan. T., 1893, Court .No. 2, confirming the report of the viewers in the matter of the opening of Allegheny avenue, from Second street to Germantown avenue.</p> <p>Exceptions to report of jury of view in the matter of opening Allegheny avenue.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>The court below dismissed the exceptions and confirmed the. report of the jury.</p> <p>JErrors assigned were, (1-6) to the order of the court in dismissing exceptions to the report of the jury.</p>

Appeal, No. 16, Nov. T., 1896, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1893, No. 540, on verdict for defendant. Replevin for goods distrained for rent. Before FinletTER, P. J. The above suit was an action of replevin by William Bandel ■for goods distrained for rent. Defendant filed an avowry and cognizance, and plaintiff’s pleas were “payment,” “no rent in arrear,” and “ non est factum.” The lease was given by Walter R. Kern, agent.

Appeal, No. 147, Nov. T., 1896, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1896, No. 82, on verdict for plaintiff. Interpleader on claim to property levied upon by sheriff.' Before Livingston, P. J. From the evidence it appeared that Eber E. Hilton, the defendant in the execution, and his wife, lived with his mother-in-law, the claimant in the inteipleader, on a farm.

Appeal, No. 98, Nov.- T., 1896, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1892, No. 195, non obstante veredicto in favor of defendant. Trespass for injury to plaintiff’s property. The court directed a .verdict for the plaintiff, reserving a question of law (which is set out in the opinion of the Superior Court). Other facts sufficiently appear in the opinion of the Superior Court. Verdict for plaintiff, $500.

<p>Criminal law — Evidence—Expert testimony.</p> <p>No clearly defined rule is to be found in the books as to wliat constitutes an expert. Much depends upon the nature of the question in regard to which an opinion is asked.</p> <p>Opinions of witnesses are in some cases admissible as evidence even when not coming properly under the head of expert testimony.</p> <p>Criminal law — Evidence of general and particular reputation.</p> <p>Defendants have a right to submit their reputation as peaceable, law abiding citizens as positive evidence and it is error to permit the commonwealth to seek to overcome the effect of this by proving a special ami particular reputation as an abortionist, abortion being the crime charged</p> <p>Criminal laio — Evidence as to character.</p> <p>In an indictment for procuring abortion evidence having been given as to defendant’s general good character it was error to permit the commonwealth’s witnesses, called in rebuttal, after stating that the character of defendant as a peaceful, law abiding citizen in his community was “ bad ” or “ not above reproach” to answer affirmatively questions touching his particular reputation as a procurer of abortion.</p> <p>Criminal law — Discretion of court limiting number of witnesses.</p> <p>After a reasonable number of witnesses have been called, it is not aiding the administration of justice to multiply the proof, and the trial judge being belter able to decide when to stop than the appellate court, his discretion will not be reviewed unless it is apparent that the defendant has been injured.</p> <p>Criminal law — Clerical error in docket entries — Q. S. and O. & T.</p> <p>The clay of mere technicality is past, and,courts will look more at substantial justice than artificial nicety. An assignment will not be sustained where the record shows that an indictment, trial and recognizance were had in the quarter sessions though the docket entries by clerical error were kept in the oyer and terminer. The defendant was deprived of no constitutional right, and the amendment, to correct what was a clerical error, was properly allowed.</p>

<p>Appeal, No. 61, Nov. T., 1896, by Christ’s Evangelical Lutheran Church, from .decree of O. C. Bucks Co., sustaining exceptions to ..report of auditor in the estate of Lavina Wampole, deceased.</p> <p>Exception to auditor’s report.</p> <p>Harvey D. Fellman, as executor of the will of Lavina Wampole, deceased, filed a final account on the 3d of June, 1895.</p> <p>Christ’s Evangelical Lutheran Church, of Trumbauersville, Bucks county, Pa., filed exceptions to the account on the 25th day of June, 1895.</p> <p>An auditor, Elias Carver, Esq., was appointed by the orphans’ court of Bucks county to pass upon the exceptions, restate the account if necessary, and make distribution of the fund in the hands of the executor. The auditor made a report which Avas filed October 14, 1895, awarding the residue of the estate to Christ’s Evangelical Lutheran Church. The German Reformed Church of Trumbauersville,. on the 23d of October, filed exceptions to that part of the report distributing the residue of the estate to Christ’s Evangelical Lutheran Church. The court, Yebkes, P. J., sustained the exceptions and made a decree on the 9th day of March, 1896, directing that the residue of the estate be distributed to the Evangelical Lutheran Church and the German Reformed Church, jointly.</p> <p>Other facts appear in the opinion of the Superior Court.</p> <p>Errors assigned were, (1) in sustaining the third exception to the report of the auditor, which was as follows:</p> <p>“ The auditor erred in distributing the residuary balance to . the Evangelical Lutheran congregation of Trumbauersville.”</p> <p>(2) In not sustaining the report of the auditor distributing the residue of the estate to Christ’s Evangelical Lutheran Church, of Trumbauersville, Bucks county, Pennsylvania.</p> <p>(3) In making the following decree:</p> <p>“ And now to wit, March 9, 1896, the third exception is sustained, and it is directed that the residue of the estate be distributed to the Evangelical Lutheran Church and the German Reformed Church, jointly, owners of the Trumbauersville Church and associated together through their congregations, by regulations adopted in 1872, for the government, maintenance and use of said Trumbauersville Church.”</p>

<p>Practice, G. P. — Opening judgment — Orderly practice.</p> <p>In cases where judgments are sought to be opened too much emphasis cannot be laid upon the necessity for a less careless and more orderly practice. The records import verity; any attempt to impeach or set aside a judgment for matters dehors the record should be permitted only after a plain issue has been made up by petition verified by affidavit, with answer responsive thereto, and the testimony should be limited to the issue. Being decrees wholly in equity, the reasons for them become important, and the action of the court should not be formulated in the bald entries of “ rule absolute ” or “ rule discharged.” The appellate court obliged’ to review should have the benefit of the reasons which moved the conscience of the chancellor.</p> <p>Jurisdiction, G. P. — Opening judgment — Review of discretion.</p> <p>The act of May 20, 1891, P. L. 101, allowing appeals from an order of the court below opening a judgment does not take away the discretion vested in such court, and the exercise of such discretion will be reviewed upon the usual principles governing the exercise of judicial discretion.</p> <p>Such applications are addressed to the equity powers of the court, and the judge who hears them sits as a chancellor and disposes of them in accordance with the principles of equity. The decision of the chancellor must, of course, rest upon competent evidence, and if not so founded it will be set aside by the appellate court.</p>

<p>Appeal, No. 165, Nov. T., 1896,' bji plaintiff, from judgment of C. P. No. 4, Phila. Co., March T.; 1894, No. 139, on verdict for defendant.</p> <p>Assumpsit to recover damages for failure to deliver possession of premises purchased subject to a lease. Before Thayer, P. J,</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>The court directed a verdict for defendant. Plaintiff- appealed.</p> <p>Error assigned was giving binding instructions to the jury to find a verdict for the defendant.</p>

<p>Appeal, No. 65, Nov. T., 1896, by defendant, from judgment of C. P. No. 1, Phila. County March T., 1895, No. 1032, on verdict for plaintiff.</p> <p>Trespass for deceit in misrepresenting condition of leased premises. Before Biddle, P. J.</p> <p>The facts are sufficiently disclosed in the opinion of the Superior Court.</p> <p>Errors assigned were (1) In charging, as requested by counsel for plaintiffs, “ If the jury believe that the defendant stated to the plaintiffs, before they rented the store, No. 816, North Second Street, Philadelphia, that the bulk windows and the roof and drainage thereof were in first-class condition, suitable for the display of millinery, well knowing that the roof was in bad condition, liable to cause damage to any goods placed in the windows, and that damage did subsequently occur to plaintiffs’ goods from the defective roofing, the defendant is responsible in damages to the plaintiffs.”</p> <p>(2) The learned judge erred in declining to charge as requested by counsel for defendant, “The evidence having shown that the plaintiffs entered into possession of the premises by virtue of a lease, the conditions of that lease must be enforced unless the plaintiffs have shown fraud, accident, or mistake ; and no fraud, accident or mistake having been shown, and the lease obliging to repair, your verdict should be for the defendant.”</p> <p>(3) In declining to charge, as requested by counsel for defendant, “A written agreement is the visible evidence of the purpose of the parties, and it cannot be reformed except by the evidence of two witnesses or of one with corroboration as to fraud, accident or mistake; and the lease containing a covenant for repairs, and this evidence failing in this case, your verdict should be for the defendant.”</p> <p>(4) In declining to charge, as requested by counsel for defendant, “The plaintiff, Ida Sacks, cannot recover in this action under the evidence, and your verdict as to her must be for the defendant.”</p> <p>(5) In declining to charge, as requested by counsel for defendant, “ The plaintiff, Lewis Sacks, can only recover if he has shown that he did not make the contract of lease in evidence or that the terms of the said lease were altered by subsequent agreement among the parties, and this not having been shown, your verdict should be for the defendant.”</p> <p>(6) In declining to charge, as requested by counsel for defendant, “ Under all the evidence your verdict should be for the defendant.”</p>

<p>Appeal, No. 114, Nov. T., 1896, by defendants, from judgment of C. P., No. 3, Phila. Co., March T., 1895, No. 270, on verdict for plaintiffs.</p> <p>Assumpsit for goods sold. Before McMichael, J.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>Errors assigned were, (1) in charging the jury as follows : “ There seems to be no contradiction in the testimony, as it is direct and to the very point of the case, especially the testimony that the goods were of a specific character, not only as to the quantity of the oil, but as to the marking of the bottles with the names of these defendants; and that the oil had been actually bottled, and the bottles had been marked; that twenty-five cases had been shipped and delivered, and the other seventy-five cases marked and ready for shipment, set apart, and not delivered because of the refusal of the defendants, the McCaffreys, to carry out their part of the contract, and take the goods; but it is for you to say whether the property passed from the seller to the buyer. The seller seems to have done all he could reasonably do, and if you believe that testimony, if you believe Mr. Brown’s account of the original agreement to be correct, and these depositions to be correct, you can, and should, find a verdict for the plaintiffs for the price agreed upon, which, I believe, there is no dispute about, amounting to §372.75.”</p> <p>(2) In refusing to affirm and charge the jury, without qualification, the defendants’ first point: “If the jury believe that the oil is not the property of the plaintiffs, but of some third person in France, or elsewhere, their verdict must be for the defendants.”</p> <p>(3) In charging the jury as follows : “The testimony was,— but it is for you, — -that the correspondents were the agents of the plaintiffs in France; that they represented the plaintiffs in France.”</p> <p>(4) In refusing to charge the jury; and affirm the defendants’ second point, as follows: “If the jury believe that no tender or delivery of the oil in question was made, their verdict should be for the defendants.”</p>

<p>Assigned estate — Judgments—Prior execution — Distribution.</p> <p>It is the status of a claim at the time of an assignment for benefit of creditors that determines the amount due thereon, but where a claim has been reduced to judgment and execution has issued thereon and levy been made, before the date of the assignment, there is a pro tanto satisfaction of so much of the judgment as was made on the execution. It follows,’ therefore, that the creditor can only claim a dividend on the balance due after such deduction, and not on the face of the claim.</p>

<p>Appeal, No. 83, Nov. T., 1896, by defendants, from order of C. P. Lancaster Co., Oct. T., 1895, No. 78, discharging rule to open judgment.</p> <p>Rule to open judgment for want of appearance.</p> <p>Judgment was entered in favor of plaintiff and against defendants on a fi. fa. sur mortgage for 1438.48. The court subsequently granted a rule to show cause why judgment should not be opened, which it afterwards upon hearing depositions discharged.</p> <p>The practice was governed by rule of court of Lancaster county which is set out in the opinion of the Superior Court.</p> <p>Defendants appealed.</p> <p>Errors assigned were, (1-3) refusing to open the judgment.</p>

<p>Appeal, No. 32, Nov. T., 1896, by-defendant, from judgment of C. P. No. 1, Pbila. Co., June T., 1895, No. 751, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Assumpsit on special contract.</p> <p>The plaintiff claimed $250 as due him by the defendant under a special contract in consideration of services as attorney at law.</p> <p>The affidavit of defense was as follows:</p> <p>George McAleer, the defendant in the above entitled cause, being duly sworn, deposes and says:</p> <p>That he is advised and believes that he has a just and true defense to the whole of the plaintiff’s claim of the following nature:</p> <p>On or about February 6, 1895, deponent engaged Frank F. Brightly, Esq., the plaintiff in the above entitled case, and .Joseph D. Ford, Esq., to apply for a retail liquor license for him to sell malt and spirituous liquor at premises 1420 Columbia avenue, and agreed them to pay a fee of $1,000 contingent upon success. Afterwards, at their solicitation, this deponent paid the plaintiff and Joseph D. Ford $100 on account. Subsequently they wrote to this deponent to come down to Mr. Brightly’s office on particular business and thereupon .they demanded of him additional money, whereupon this deponent expressed dissatisfaction with their conduct and notified them that he intended to go elsewhere for counsel, which he after-wards did. Thereafter, this deponent called upon the plaintiff to get his papers and inquired of him how much would settle any claim for services that he might have, to which the plaintiff replied $500. Deponent answered “ wouldn’t half that sum be sufficient,” to which the plaintiff replied, “ well, anything at all you like.” Whereupon plaintiff asked deponent to go upstairs to his office, the interview having taken place on the steps of the building in which the plaintiff’s office was. To this, deponent replied that he had an engagement and could not go with him, whereupon plaintiff then said, “ license or no license ? ” to which this deponent replied, “ all right.” Whereupon the interview ended and deponent went away without having made any promise or engagement other than such as may be inferred from the above conversation.</p> <p>This deponent is further advised and believes, that as the services, if any, in consideration of which this claim is made, were performed by the plaintiff before the date of this conversation which took place upon the 24th of April, 1895, as alleged in the plaintiff’s statement, and as under the original contract, the fee was contingent upon success, and as the license for which the plaintiff was engaged to apply was refused, no liability can arise therefrom.</p> <p>All of which this deponent believes to be true and expects to be able to prove at the trial of this cause.</p> <p>The court entered judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Errors assigned were entering judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 75, Nov. T., 1896, by defendant, from judgment of C. P. Chester Co., Aug. T., 1895, No. 102, on verdict for plaintiff.</p> <p>Assumpsit on policy of insurance. Before Waddell, P. J.</p> <p>A barn belonging to Edward S. Eaby and Mary S. Richwine, insured in the defendant company was destroyed by fire. Edward S. Eaby, one of the owners, was arrested on the charge of arson, and on the trial the jury found that the defendant was insane at the time of the crime, and acquitted him on the ground of insanity.</p> <p>By proceedings in lunacy Samuel W. Showalter was appointed a committee in lunacy for the said Edward S. Eaby and brought suit to recover for the lunatic’s interest in the policy.</p> <p>There was evidence tending to show that the barn was burned by the wilful conduct of the said Eaby. The court directed a verdict for the plaintiff.</p> <p>Verdict for plaintiff $606.62 and 6 cents costs. Defendant appealed.</p> <p>Errors assigned were (1) affirmance of plaintiff’s first point which point was as follows: Even if the jury believe that Edward S. Eaby burned tbe barn in question, if they also believe that he was a lunatic at the time of the burning, the verdict must be for the plaintiff for the amount of the insurance; (2) in affirming plaintiff's second point, which was to the same effect; (3) in giving binding instructions for the plaintiff.</p>

<p>Appeal, No. 112, Nov. T., 1896, by defendant, from judgment of C. P., Chester Co., Oct. T., 1895, No. 44, on verdict for plaintiff.</p> <p>Trespass for wilful burning of a barn. Before WADDELL, P. J.</p> <p>On January 18, 1895, a barn with its contents belonging to Edward S. Eaby and his sister, Mary S. Richwine, was totally destroyed by fire. The property was insured in the plaintiff company, — barn for $850 and the contents for $350. The insurance covered much less than the whole loss.</p> <p>Edward S. Eaby, who had become insane, appeared to have set the barn on fire, either wilfully or by gross negligence. The insurance had been recovered by Edward S. Eaby and his sister Mary from the insurance company. Subsequently the company procured an assignment to them for the entire claim for loss which had been suffered by'Mrs. Richwine. The company thereupon brought suit against the estate of Edward S. Eaby in the name of Mary S. Richwine. Subsequently her name as use plaintiff was stricken out and the plaintiff’s statement amended so as to cover only the amount paid her by the company, and a new assignment executed by Mrs. Richwine in accordance with the subrogation clause of the policy.</p> <p>The defendant submitted a number of points involving directions which in substance may be summarized: That if the said Edward S. Eaby at the time of the burning of the barn was in such a state of mental incapacity at the time as to be unable to foresee and guard against his conduct the verdict should be for the defendant. These points were refused by the trial judge. The court left the case to the jury on the single question as to whether Edward S. Eaby burned the barn deliberately or by accident, instructing them that if he burned it by accident the verdict should be for the defendant; if he burned it deliberately it makes no difference whether he was sane or insane.</p> <p>Verdict for plaintiff $605.68 and 6 cts. costs. Defendant moved for a new trial, which was refused in the following opinion by Waddell, P. J:</p> <p>OPINION OF COURT REFUSING NEW TRIAL.</p> <p>This was an action brought by the plaintiff to recover, by virtue of an assignment, a certain sum of money, paid by it, as a loss upon a policy of insurance, occasioned by the illegal act of Edward S. Eaby, a lunatic. We submitted to the jury the question, whether the said Edward S. Eaby burned the property insured, saying if he did, and it was done through accident or negligence, the plaintiff could not recover.</p> <p>If, however, his insanity was the only defense, this would not avail; that he was liable for the injury done by him, to another’s property, although insane, and he must answer to the extent the plaintiff was required to pay, by reason of his act.</p> <p>The jury found for the plaintiff, and we are asked to grant a new trial because of such instructions, and further, because we refused to affirm certain points presented by the defendant.</p> <p>We have carefully reconsidered our rulings, in the light of the argument and authorities presented by the counsel for the defendant, and believe they were right as held upon the trial, and must refuse the motion for a new trial.</p> <p>Errors assigned were to the refusal of defendant’s points, the substance of which are indicated in the statement of facts.</p>

<p>Promissory note — Novation—Burden of proof.</p> <p>Where a creditor accepts the note of a third person in payment of his debt a novation takes place, but the mere acceptance of such note, however, does not constitute a novation without some evidence that it was taken in satisfaction oí the debt. The burden of proof is upon the party asserting the novation.</p> <p>Practice, O. P. — Discretion of court as to evidence after case is closed.</p> <p>To admit or exclude additional evidence after the evidence is formally closed, is a matter within the discretion of the trial court; and the appellate court will not reverse the decision unless there has been a very plain abuse of discretion.</p> <p>Practice, G. P. — Charge of court — Failure to rehearse and comment on evidence.</p> <p>Where a case turns upon a single question of fact, which is, whether one of the parties made a certain express promise, and the trial judge accurately and plainly states the question, and fairly submits it to the jury, he cannot ordinarily be convicted of error because he did not rehearse the evidence on the one side and the other, and comment on the bearing of the particular corroborating circumstances where he was not requested to do so.</p>

<p>'Road law — Review—Appellate-jurisdiction—Rules of court.</p> <p>Where an appeal is taken on any order or proceeding in relation to a public road, the appellate courts will not suffer the merits of the case to be entered into, nor reverse the order of the court of quarter sessions unless for some error or irregularity apparent on the record, or because 'the court below exceeded their jurisdiction or erred in their judgment in •point of law.</p> <p>Rule XIII. of the Superior Court is a substantial transcript of the rule of the Supreme Court upon the subject, which is a declaration of the law as established by numerous decisions.</p> <p>Practice, Superior Court — Defective assignment of error.</p> <p>An assignment of error is defective where matters of fact are alleged which are not brought upon the record and where the evidence in support thereof and also the exceptions are not printed.</p>

<p>Appeal, No. 44, Jan. T., 1897, by plaintiff, from order of C. P. Montour Co., June T., 1894, No. 108, granting a new trial.</p> <p>Trespass against sheriff of Montour county. Before Ikeler, P. J.</p> <p>Summons issued June 5,1894. March 18, 1896, jury called, issue joined and a verdict for plaintiff for $117.78. March 20, 1896, reasons for a new trial filed. June 5, 1896, motion refused. June 5, 1896, assignment of judgment filed, jury fee paid and judgment entered.</p> <p>On October 19, 1896, the court revoked the order of June 5 refusing a new trial, and made absolute the same.</p> <p>Errors assigned were, inter alia, making decree of October 19, 1896, as follows: “We think, therefore, that our order of -‘June 5, should be revoked and the rule for a new trial made absolute, which is now, October 19, 1896, done.”</p>

Appeal, No. 158, Nov. T., 1896, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 1074, awarding special injunction until further order from the court. Bill in equity to restrain collection of garbage. Before Thayer, P. J. An abstract of the bill and answer disclosed the following conditions: COPY OE ORDINANCE. Section 1.

<p>Practice, O. P. — Affidavit of defense — Traverse of cause of action.</p> <p>Where an original obligation upon which plaintiff bases his cause of action is expressly traversed with a specific denial oí its material parts, and the whole tenor of the affidavit is a refutation of the contract set up in the plaintiffs declaration, nothing further is necessary to put the plaiuliff to proof of his claim before a court and jury.</p>

<p>Appeal, No. 14, Jan. T., 1897, by James Nichols, from decree of O. C. Lackawanna Co., No. 810, Series A., 1895, dismissing appeal from register of wills.</p> <p>Citation issued on petition directed to Mary Davis and J ames Nichols to appear and show cause why the will of Sarah Nichols should not be produced and admitted to probate, May 21,-1892. Before Abchbald, P. J.</p> <p>September 9, 1892, proceedings were dismissed at cost of petitioner. May 17, 1895, the petitioner filed a petition asking that the case be opened on the ground of after discovered testimony. On this petition a new citation issued, testimony was taken and proceedings dismissed by the register. Subsequently an appeal was taken to and dismissed by the orphans’ court. The decedent, Sarah Nichols, died on March 29, 1885.</p> <p>Errors assigned were to the decree of the court dismissing the appeal from the register.</p>

Appeal, No. 130, Nov. T., 1896, by defendants from judgment of C. P. No. 4, Phila. Co., Dec. T., 1894, No. 1133, on verdict for plaintiff. Trespass for obstruction of right of way. The defendants submitted the following points: 1. That under all the evidence in this case the plaintiff cannot maintain his action against the defendants. 2. That under all the evidence in this case the verdict must be for the defendants. 3.

Appeal, No. 39, Jan. T., 1897, by defendant, from judgment of C. P. Carbon Co., June T., 1893, No. 20, on verdict for plaintiff. Trespass for injuries arising from defective sidewalk. Before Cbaig-, P. J., wbo charged the jury as follows: The issue which you have been sworn to try arises in a suit brought by Jackson Smith and Sarah J. Smith, for the use of Sarah J. Smith, against the borough of East Mauch Chunk.

Appeal, No. 4, Jan. T., 1897, by defendant, from judgment of C. P. Bradford Co., May T., 1894, No. 706, on verdict for plaintiffs. Trespass to recover for negligent killing of plaintiff’s son. Before Peck, P. J. Tbe court reserved the point whether “ there was any evidence in this case upon which plaintiffs are entitled to recover,” and on January 6,1896, without filing an opinion, directed judgment to be entered on the verdict.

Appeal, No. 35, Jan. T., 1897, by plaintiffs, from decree of C. P., Wyoming Co., April T., 1896, Nos. 178 and 179, making distribution of fund in sheriff’s hands. A case in the nature of a case stated.

<p>Actions — Assumpsit—Proof of conspiracy does not defeat the action.</p> <p>An action was properly in assumpsit for money received by defendant from plaintiff on a promise to return same although the plaintiff’s proof established a conspiracy to extort money, in which conspiracy defendant had a part. The evidence, however, being conflicting, the case was properly left to the jury.</p> <p>Practice — Pleading—Erroneous plea cured by trial and verdict.</p> <p>The action being assumpsit the fact that defendant elected to file an erroneous plea but went to trial and submitted proof in support of a proper one precludes him from questioning, after verdict, the record as he made it.</p>

Appeal, No. 36, Jan. T., 1897, by defendant, from judgment of C. P., Susquehanna Co., Nov. T., 1894, No, 291, on verdict for plaintiff. Appeal from justice of the peace. Before Searle, P. J. The action was assumpsit to recover the sum of $30.36 from the defendant.

<p>Theatrical licenses — Review of previous legislation respecting same.</p> <p>It would seem that the purpose of the act of June 24, 1895, was to codify the previous legislation upon the subject.</p> <p>That legislation seems to show clearly that a tax although in form levied on a house, is not a tax on real estate, but on the trade, occupation or profession of players and showmen. This in the Pennsylvania tax system means a business with money returns, not a business done by one who works gratuitously. Amateur actors are not, therefore, taxed, and therefore the building in which they perform is not, since the tax on the building is simply a method of taxing the occupation.</p> <p>The act of March 23, 1865, exempting from taxation representations by amateurs in Philadelphia and Pittsburg, the net proceeds of which are to be devoted to the relief of widows, etc., cannot be construed to impose a tax by implication on amateurs who may devote the proceeds of their representation to other purposes. Taxes are not imposed by implication.</p> <p>Theatre — Amateur performances do not constitute. .</p> <p>A single performance in a building of a play or drama, does not constitute such building a place for theatrical exhibitions or entertainments within the contemplation of the act of June 24, 1895, nor, would a succession of performances given by persons not professional players, even though the proceeds or profits of the exhibition were to be devoted to purposes other than those religious or charitable in their character and not to the pecuniary advantage of the participants.</p> <p>Theatre — Intent of act of June 2-1, 1895, P. L. 219.</p> <p>It was clearly the intent and purpose of the legislature in enacting the act of 1895 to impose a license fee upon places where plays were given by professional players, who played for compensation where the exhibition was given for personal profit, and it was not the intention of the legislature to impose this tax of $500 upon a building where theatrical performances were given bj'amateurs who were mere volunteers, for the purpose either of amusing themselves or others, even though there was a profit from such exhibition which was devoted to other than charitable purposes and not to their own use.</p>

<p>Insurance — Designated beneficiary — Right of action by assignee — Act of 1873.</p> <p>When the language of a policy of life insurance contemplates and invites a designation of a beneficiary, and the company furnished a blank form for such designation the designation of a daughter by the mother who was the insured, vests a right of action in the daughter. Such designation never having been revoked and having been accompanied by delivery of the policy to the beneficiary who paid the subsequently accruing dues with the knowledge of the company’s agents, is a virtual assignment.</p> <p>The beneficiary so designated being the assignee of the policy has a right of action in her own name as such assignee under the provisions of the act of March 14, 1873, P. L. 46.</p> <p>The fact that the policy was under seal and the assignment was not, is immaterial under the provisions of the act of 1873, which was intended to cure just such cases.</p>

<p>Appeal, No. 29, Jan. T., 1897, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1891, No. 184, on verdict for plaintiff.</p> <p>Verdict for plaintiff $151.91. Defendant appealed.</p>

<p>Appeal, No. 149, Nov. T., 1896, by defendant, from judgment and sentence of Q. S. Lancaster Co., Jan. T., 1895, No. 122, on verdict of guilty.</p> <p>Indictment for embezzlement as factor and consignee. Before Brubaker, J.</p> <p>The facte sufficiently appear in the opinion of the Superior Court.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned, seven in number, were directed to the single question whether or not a conviction- should • have been permitted in view of tbe evidence as to whether or not tbe commonwealth had proved a compliance with the provisions of the act of 1874 relative to foreign corporations, by the consignor company which it was admitted was a corporation, of the state of Maryland. The exceptions challenged the sufficiency of proof by the commonwealth and assigned as error (6) the following specific portion of the charge of the trial judge: “ If you believe the witnesses for the commonwealth, and that the defendant embezzled these moneys of the company, then you ought to find him guilty, no matter whether the prosecutor is a nonresident or not. It would be a shame to the commonwealth of Pennsylvania for people to say we do not mete out justice here to people because they are not residents.”</p>

<p>Appeal, No. 6, Nov. T., 1896, by-defendants, from judgment of C. P. No. 3, Phila. Co., June T., 1894, No. 1001 on verdict for plaintiff.</p> <p>Trespass. Before Feyletter, P. J.</p> <p>The facts are sufficiently set out in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $287.50. Defendants appealed.</p> <p>Errors assigned were (1) In overruling the following offer of testimony on behalf of the defendant.</p> <p>“ Counsel for defendant 'offers to show by this witness (Mrs. Bourne), that this bill of sale was executed by witness to Mrs. Clowes to secure an indebtedness amounting to about $300— that the goods mentioned in the bill of sale — the possession of said goods was never parted with by Mrs. Bourne, and that after the date of the bill of sale she continued to retain possession of the goods as before, and exercised full ownership over them.”</p> <p>(2) In overruling the following question propounded by counsel for defendant to. said witness, Mrs. Bourne.</p> <p>“ Q. What was said to you at the time the paper was signed ? ”</p> <p>(3) In overruling the following offer of evidence upon behalf of the defendant:</p> <p>“ Counsel for defendant offers to show by this witness, Mrs. Bpurne, that at the time the paper was signed it was signed without her understanding the nature- and purport of it, and that it was not explained to her.”</p> <p>(4.) In charging the jury as follows :</p> <p>“ The goods in controversy in this case were originally owned by Mrs. Bourne, and were placed by her on storage with the defendants. After they had been so placed there Mrs. Bates (Bourne), by a bill of sale, sold the goods to the plaintiff. I have not seen the bill of sale, but I presume it is in the usual form, and was an absolute change of ownership. The goods were originally placed on storage with the defendants. It is a matter of no consequence that Mrs. Bourne sold these goods to the plaintiff, if it was before she placed them on storage, then she had no claim whatever on them, and she had no right to interfere in any way with the care or custody or ownership of the goods, but inasmuch as she allowed her to have possession of the goods, and she put them on storage, then the defendant was bound to recognize no one but Mrs. Bates [Bourne] who placed the goods in his charge as owner.”</p> <p>(5) In charging the jury as follows:</p> <p>If there is no evidence in this case that she made a tender or an offer to secure him for the charges he had upon them the verdict must be for the defendant. If, however, you are satisfied from all the testimony in the case that the plaintiff did make such a tender and did make such an offer, and was ready and willing and able to comply with the offer and defray all the charges up to that time, then he was bound to deliver them to her whenever she made a proper demand.”</p> <p>(6) In charging the jury as follows :</p> <p>“ In cases of this kind there should be positive and direct evidence satisfactory to the juiy, I mean, that the goods were of some specific value, and the plaintiff should not leave a matter of. this kind for the jury to guess at, but the jury must determine from the evidence, whatever it is, what the value of the goods was. ■ It is in evidence that they were sold for #300, while in his possession. That is, shortly before any demand whatever was made.”</p> <p>(7) In declining the defendants’ first point, to wit:</p> <p>“1. It was the duty of the defendants to deliver the goods to the party who deposited them with the defendants, and with whom they made their contract. Your verdict should therefore be for the defendants.”</p> <p>(8) In declining the defendants’ third point of charge, to wit:</p> <p>“ 3. A mere notice in writing mailed to the defendants is not a legal or proper demand. To constitute a legal or proper demand the plaintiff or her agent should have demanded the goods in person, prepared to remove the same, and offering to pay the legal charges and expenses to which the defendants were entitled.”</p> <p>(9) In declining the defendants’ fourth point of charge, to wit:</p> <p>“ 4. The evidence in this case shows that the goods in question were the property of the owner, Mrs. Bourne, and the defendants were justified in delivering the goods to her. Your verdict should therefore be for the defendants.”</p> <p>(10) In declining the defendants’ seventh point of charge, to wit:</p> <p>“ 7. Under all the evidence the verdict should be for the defendants.”</p>

<p>Appeal, No. 174, Nov. T., 1896, by Harris Flomenhaft, from order of Q. S. Phila. Co., Dec. Sess., 1895, No. 1, discharging rule of appellant to remit forfeiture of recognizance and strike off judgment.</p> <p>Rule to remit forfeiture of recognizance and strike off judgment. Before Hake, P. J.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p>

<p>Appeals — Review—Findings of fact by court below — Fraud.</p> <p>An appellate court will not reverse the court below upon its findings of fact except for palpable error.</p> <p>Fraud is not to be presumed, it must be clearly proven; the presumption of innocence will prevail until overthrown by clear proof of fraud.</p> <p>Confessed judgment — Preferred creditor — Fraudulent intent.</p> <p>A creditor may take a judgment or conveyance or payment in any form to secure an actual debt, and the transaction will be valid against other creditors, although he knew, (1) that the effect would be to postpone others, (2) that the debtor intended it to have that effect, and (3) although he took it to aid that intention as well as to protect himself. The criterion is not the effect but the fraudulent intent; without that, the transaction cannot be impeached as fraudulent.</p> <p>Judgment confessed — Bona fide debt — Fraud.</p> <p>A chancellor having found that a judgment had been given to a trustee for the benefit of bona fide creditors under which property was sold and bought in at sheriff’s sale, and subsequently assigned by the sheriff’s vendee to a new corporation composed of directors of a limited partnership, the defendant in the execution, held that the • transaction was valid as against other creditors.</p>

<p>Negligence — Contributory negligence — Question for jury.</p> <p>Where the facts, as to whether defendant’s car was properly lighted ; whether the gong was sounded; whether the speed was unusual and unsafe at the point and time of accident; and whether plaintiff’s conduct contributed to the accident, were all important and all disputed, the case was for the jury.</p> <p>Trial — Charge of court — Practice, C. P.</p> <p>The question of defendant’s negligence and plaintiff’s contributory negligence being proper to s.ubmit to the jury they were properly submitted when the defendant had the benefit of a full, clear, unbiased and satisfactory charge in which all the weaknesses of the plaintiff’s case were pointed out and dwelt upon and where the trial judge to avoid mere guessing or loose and uncertain methods of reaching a conclusion on the part of the jury, submitted certain questions for their finding which compelled a careful analysis of the evidence and elicited answers which manifested care in the weighing of the evidence and deliberation in reaching a conclusion.</p>

<p>Appeal, No. 152, Nov. T., 1896, by Victoria R. Heft, defendant, from judgment of C. P. Chester Co., Jan. Term, 1896, No. 86, on verdict for plaintiff.</p> <p>Trespass for malicious prosecution. Before Waddell, P. J.</p> <p>This and the following cases were actions of trespass in the court below to recover damages for alleged malicious prosecutions. Jacob D. Heft and Victoria R. Heft caused Levi Hess to be arrested for stealing chickens and Samuel and Ambrose Slichter for béing accessories after the fact. The evidence was uncontradicted that every step taken in the proceedings by the wife, Victoria R. Heft, was so taken by her in the presence of her husband. The jury rendered a verdict in favor of the plaintiff, Levi Hess for $300; in favor of Ambrose Slichter for $300, and in favor of Samuel Slichter for $600 against both the defendants. The defendants’ first and second points and the answers of the court thereto were as follows:</p> <p>1. The court is respectfully requested to charge the jury that the complaints made in the prosecution against Samuel Slichter, and Ambrose Slichter and Levi Hess were each one and the same act, that the act was the act of the husband. Jacob D. Heft, and not the act of the wife, Victoria Heft; therefore there can be no recovery against Victoria R. Heft. Answer: I cannot, say that, gentlemen. I have left that for you to determine, whether or not it was the act of Jacob D. Heft alone; in other words, whether his wife acted of her own free will and accord, or whether she acted under compulsion. In connection with what I have said I will have to refuse to affirm that point. I cannot say that it was his act alone, and therefore they are not entitled to recover. To which answer the defendant’s counsel excepted and prayed the court to seal a bill of exceptions thereto, which was done accordingly.</p> <p>2. The court is respectfully asked to charge the jury that the presence of and participation of the husband, Jacob D. Heft, in signing the complaints with his wife, Victoria R. Heft, raises the presumption that the complaints were signed by the wife by the direction and coercion of her husband, and that therefore their verdict must be for the defendant, Victoria R. Heft.</p> <p>Answer of the court: I may say to you, gentlemen, that the law holds, as I recollect it, that the presence of Jacob D. Heft at the time these affidavits were made, raises the presumption that it was signed by the wife under the coercion of the husband, but I. cannot say to you that they were, because that presumption is liable to be rebutted by all the facts and circumstances in the case, and if rebutted, then it would not be, the presumption would be swept aside, and I therefore cannot say that upon his really being present, and that presumption arising in that way, that therefore the verdict must be for Victoria R. Heft. Whether it is for her or not will depend upon what I have said to you heretofore. To which answer the defendant’s counsel excepted and prayed the court to seal a bill of exceptions thereto, which was done accordingly.</p> <p>Verdict for plaintiff $300. Defendant appealed.</p> <p>Frrors assigned among others were to answers to defendant’s first and second points, reciting same.</p>

<p>Appeal, No. 151, Nov. T., 1896, by Victoria R. Heft, defendant, from judgment of C. P. Chester Co., Jan. T., 1896, No. 35, on verdict for plaintiff.</p>

Appeal, No. 43, Jan. T., 1897, by the commonwealth, from judgment of Q. S. Luzerne Co., Sept. Sess., 1893, No. 183, sustaining defendant’s plea of autrefois convict. Indictment for receiving money as a banker, with knowledge of insolvency. Before Edwards, J. Defendant pleaded antrefois convict. Plaintiff demurred to the plea and the court entered judgment for defendant on the demurrer. Error assigned was entry of judgment for defendant on the plea.

Appeal, No. 142, Nov. T., 1896, by-defendants, from judgment of C. P. Lancaster Co., Dec. T., 1893, No. 12, on verdict for plaintiff. Trespass for injury to plaintiff’s drain. Before Livingston, P. J. It appeared from the evidence that plaintiff was the owner of a lot or piece of ground fronting on the Manheim & Sporting Hill Turnpike.

<p>Appeal, No. 56, Nov. T., 1895, by Casper Maurer, from decree of C. P. Lancaster Co. Nov. T., 1894, No. 47, in distribution.</p> <p>Exceptions to auditor’s report. Before Livingston, P. J.</p> <p>The facts sufficiently appear in the opinion of the court below •which, as to the question raised by exception, was as follows:</p> <p>The exceptions filed by counsel for Jacob Wolf, the execution creditor, are:</p> <p>1. The auditor erred in awarding to Casper Maurer the sum of $90,</p> <p>2. The auditor erred in not awarding the whole fund in court to Jacob Wolf.</p> <p>With reference to the claim of Casper Maurer, the learned auditor finds, as a fact, and in his report says, that, “ J. M. Kriclc and Harry A. Hagelgans made up their minds to start a caramel factory in the now borough of Ephrata, Lancaster county. To this end a building, or more exactly speaking, a part of one, was leased from Mrs. McCaa. By the terms of the arrangement between Krick and Hagelgans, the first was to equip the building by putting in the necessary machinery. Casper Maurer is a millwright and skilled mechanic; he was employed in putting up the machinery, with general supervising power. He did so, commencing work on August 13, 1894, and finishing his work, as he calls it, on September 20, 1894. It seems he had an agreed price, which no one has called in question, and he claims a balance is due him of $87.79. That “the enterprise projected by Krick and Hagelgans ended in a failure. The caramel factory was never started, and, therefore, never ran or put in operation. That the thing seemed to have been dismantled — the machinery at which Maurer worked was sold by the sheriff of Lancaster county, on an execution issued by Jacob Wolf against J. M. Krick.</p> <p>“That $300 of the proceeds in selling out Krick were paid into court, and this is now for distribution and is, undoubtedly, the proceeds of personal property, and made so by Wolf himself, which prevents from holding that Maurer’s claim should have been on the real estate, and that the parties to this contention, after barring out Hagelgans, are Wolf, the execution plaintiff, and Maurer as a wage earner and preferred claimant.” After referring to the law cited, he allows the claim of Maurer, $90.00, and deducts it from the fund in court.</p> <p>To this allowancé, exception has been taken, as we have before stated.</p> <p>Is the exception well taken, and should it be sustained ?</p> <p>In this case the learned auditor has found as a fact, and we think correctly, that Krick was not er gaged in, or employed in, any occupation, or business, mining or manufacturing, or any business named or specified in the act of 1872, or its amendment of 1883 and 1891, at the time the labor of Maurer was done and performed, or in or about, or concerning which it was done or performed. But that he, in connection with another person, had made up their minds and proposed to go into business, the business of manufacturing caramels- — to start a caramel factory. That a part of a building was leased. That Kriclc was to prepare the building, purchase and put in the machinery, put it up in the building and make it ready to commence operations. It appears from the evidence, and the master so finds, that Maurer was engaged, employed to prepare the building and- put in, and put up the machinery furnished by Mr. Krick, and did so, or at least part of it, and the amount he charges for his labor has not been disputed, but the business never was commenced, the manufactory never finished or started, and no caramels were manufactured. The machinery which Maurer was hired to put in the building and set up, was sold by the sheriff as the property of Mr. Krick, under and by virtue of an execution issued upon a judgment held against him by one of his creditors, and the money in court, out of which Maurer claims he should be paid is, and so the auditor finds, part of the proceeds of that sale.</p> <p>There can be no doubt as to the right of any miner, mechanic or laborer of any class named in the act of 1872 and its amendments of 1883 and 1891, to be paid out of the sale or transfer of the real or personal property, works, mines, manufactories or business, or other property connected therewith in carrying on the same, of said person or persons, chartered company, joint stock company, limited partnership or other partnership, by «execution or otherwise. On account of the death or insolvency of such employer or employers, it shall be a lien upon said real estate or personal property, mine, manufactory, business or other property, in and about, or used in carrying on said business or in connection therewith, etc., etc., and their claims are to be preferred and first paid out of the proceeds of the sale of such real and personal property, mines, manufactory, business or other property used in and about or in carrying on said business, or in connection therewith.</p> <p>To give employees such right of preference under the act of 1872 and its supplements, the employer must be actually engaged in some business, some occupation, mining, manufacturing, carrying on the same, etc., and the employment must be in connection with such business, manufacturing, mining or other business, and the wages or claim therefor must arise from the performance of labor in and about such business and in connection with the same.</p> <p>. The legislature evidently intended to embrace any business in which the employers named in the act and its supplements maybe employed, but there must be a business, and the employment and labor must be in connection with that business.</p> <p>In White’s Appeal, 15 W. N. C. 313, the present chief justice of the Supreme Court said: “ It has been repeatedly held that the business contemplated by the act (1872) must be connected with works, mines or manufactories, business ejusdem generis ; that ex vi termini, the branches of business intended to be described by the words works, mines, manufactory,’ are in a certain sense complete and independent, and of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business.” In this case the principal business of the execution creditor was manufacturing lumber, and it was held that unless the wages claimed were earned in the prosecution of that business or in a pursuit connected with it and forming a part thereof, the claim was not covered by the act of 1872.</p> <p>The act of April 9, 1872, sec. 1, declares, that, all moneys that may be due, or hereafter become due, for labor and services rendered by any miner, mechanic, laborer or clerk, from any person or persons or chartered company employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or' other business where clerks, miners or mechanics are employed, whether at so much per diem or otherwise, for any period not exceeding six months immediately preceding the sale and transfer of such works, mines, manufactories or business, or other property connected therewith, in carrying on said business, by execution, etc. — shall be preferred and first paid out of the sale of such mine, manufactory, business or other property — not exceeding $200.</p> <p>On June 13,. 1883, P. L. 116, an act was passed entitled, “ An act to amend the first section of an act, entitled, ‘ An act for the better protection of the wages of mechanics, miners, laborers and others,’ approved the 9th day of April, A. D. 1872, amending said act, so that wages of servant girls, washerwomen, clerks and others shall be preferred and first paid out of the proceeds of sale of the property of insolvent debtors, owing wages to such servants or employees.”</p> <p>Which, in amending said first section, declares, “ That all money that may be due, or hereafter become due, for labor and services rendered by any miner, mechanic, laborer or clerk, servant girls at hotels, boarding houses, restaurants or in private families, or other servants and helpers in and about said houses of entertainment and private houses, porters, hostlers, all persons employed in and. about livery stables, laundrymen, and washerwomen, seamsters and seamstresses employed by merchant tailors, milliners, dressmakers, clothiers, shirt manufacturers, and clerks employed in stores, hands, laborers, mechanics, printers, apprentices, hired for wages or salary, from any person or persons or chartered company employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or other business where clerics, minéis or mechanics are employed at so much per diem or otherwise for any period not exceeding six months immediately preceding the sale and transfer of such works, mines, manufactory or business or other property connected therewith in carrying on said business by execution or otherwise, preceding the death or insolvency of such employer or employers, shall be a lien upon such mine, manufactory, business or other property in and about or used in carrying on said business or in connection therewith, to the extent of the interest of said owners or contractors, as the case may be, in said property, and shall be preferred and first paid out of the sale of such mine, manufactory, business or other property, as aforesaid — • not exceeding $200.”</p> <p>And the Act of May 12,1891, P. L. 54, entitled, “ An act to amend the first section of an act, entitled, ‘ An act for the better protection of the wages of mechanics, miners, laborers and others, approved the 9th day of April, A. D. 1872, amending said act so that wages of servant girls, washerwomen, clerks and others shall be preferred and first paid out of the proceeds of the sale of the property of insolvent debtors owing wages to such servants or employees, approved the 14th day of June, A. D. 1883, so that wages of farm laborers and all other laborers or clerks and tradesmen, whether employed by private individuals or corporations, joint stock companies or partnerships, shall be preferred and paid first out of the proceeds of the sale of the property of insolvent debtors.” Amends said act and amended act so as to declare, “ That all moneys that may be due or hereafter become due for labor and services rendered by any miner or mechanic, servant girl at hotels, boarding houses, restaurants or in private families, or any other servant and helper in and about said house of entertainment and private families, porter, hostler or any other person employed in and about livery stables or hotels, laundrymen or washerwomen, seamster or seamstress, employed by merchant tailors or by any other person, milliner, dressmakers, clothier, shirt maker or clerk employed in stores or elsewhere, hand labor, including farm labor or any other kind of labor, printer, apprentice and all other tradesmen, hired for wages or salary from any person or persons, chartered company, joint stock company, limited partnership or other partnership, either as' owner, lessee, contractor or under-owner, whether at so much per diem or otherwise, foi any period not exceeding six months preceding the sale or transfer of the real or pferspnal property, works, mines, manufactories or business, or other property connected therewith in carrying on the same, of said person or persons, chartered company', joint stock company, limited partnership or other partnership, by execution or otherwise, on account of the death or insolvency' of such employer or employrers, shall be a lien upon said real or personal property, mine, manufactory, business or other property in and about or used in carrying on said business or in connection therewith, to the extent of the interest of such employer or employers in said property, and shall be preferred and first paid out of the proceeds of the sale of such real and personal property, mines, manufactory, business or other property as aforesaid. The claim thus preferred not to exceed two hundred dollars.”</p> <p>In Pardee’s Appeal, 100 Pa. 408, the same learned judge in delivering the opinion of the court, held that the act (1872), contemplates a business, complete and independent, of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business. That cutting saw logs, for the owners, and driving them to the place of manufacture, is not a business which comes within the act.</p> <p>In Sanger v. Skinner, 16 W. N. C. 16, and Adamson’s App., 110 Pa. 459, the Supreme Court held, that under the acts of 1872 and 1883, to entitle a wage claimant to preference in the distribution of the proceeds of an execution, the notice to the sheriff should show in writing: the process by which the goods are under execution; the amount claimed to be due as a preference, which must not exceed $200; that such amount is claimed as a lien on the property under execution; the character of the labor or service rendered, which must be within the terms or meaning of the acts; that such labor or service was performed in and about a business carried on by the execution debtor, which business must be within the scope of the acts.</p> <p>In Wilson v. Gibson, 10 C. C. R. 191, it is said that farm laborers are entitled to a preference for wages under the act of 1872; but the employment must be continuous, not temporary, in its character. Hay packers and threshers, temporarily employed as contractors, are not within the act.</p> <p>In Llewellyn’s Appeal, 103 Pa. 458, it is held that labor and services which are entitled to priority of lien by virtue of the act of 1872 must be such, as in the course of a regular and permanent employment, contribute, directly or indirectly, to the particular, permanent and continuous use of “works, mines, manufactory or other business,” and it is immaterial whether such labor is skilled or unskilled in the particular art or craft. That labor or services contributed to the construction and equipment of such works, mines, manufactory or other business, being only temporary and preliminary to their operation, are not within the purview of the act. That in order to start the manufacture of iron it is requisite, first, to construct the buildings, supply the machinery and equip the works; the labor bestowed upon the construction and equipment is merely temporary and preliminary in its character to the general employment for which the works are designed. That the construction of a manufactory is one thing, and the operation of it is another; the price of the materials furnished and labor done in the former is preferred, under the mechanic’s lien law, whilst the wages of the labor performed, in the latter, is covered by the provisions of the act of 1872. This is the judicial construction of the language of the act of 1872, as to the character of the business contemplated by the act, and the language of the act of 1872, on this point is re-enacted in the amendatory acts of 1883 and 1891; and it is held by the courts, that “ when the legislature re-enacts language which has received judicial construction, it carries the same construction with it.”</p> <p>In Mulholland v. Brown & Co., 166 Pa. 486, it is held that a person employed by a firm, under a written agreement to sell goods for the firm, paying his own expenses and receiving road commissions, is a traveling salesman, and not a “ clerk employed in- a store or elsewhere,” within the meaning of the act of 1891, giving a preference for wages. Because “such a person is not an assistant in the store or business of his employer. He is' not employed to keep accounts, or to assist in the store or elsewhere in the management of the business.”</p> <p>The findings of fact by the learned auditor, as well as the decisions of the courts and their construction of the law, show clearly, that the claimant, Maurer, has not brought himself or his claim within any of the provisions of the act of April 9, 1872, or its amendments of June 13, 1883, and May 12, 1891, before mentioned, and is not, therefore, entitled to the protection which they are intended to, and do, afford to those who are shown to be within the range of their provisions.</p> <p>We are, therefore, of opinion that the exceptions taken to the allowance of the claim of Casper Maurer, are well taken, and must he sustained and the claim disallowed by the court.</p> <p>Exceptions sustained, the claim of Casper Maurer disallowed and the amount awarded to Maurer $90.00, is directed to be added to the sum of $147.11, awarded to Jacob Wolf, the execution creditor, and paid to him as execution creditor.</p> <p>Errors assigned were (1, 2) sustaining exceptions; (3) in making the decree.</p>

Appeal No. 127, Nov. T., 1896, by defendants, from'order of Q. S. Schuylkill Co., discharging rule to show cause why the auditor’s report should not be stricken off. Motion of Margaret Joyce, executrix of Peter Joyce, deceased, and Iris sureties, to strike off report of auditors for matters appearing on the record.

<p>Appeal, No. 128, Nov. T., 1896, by defendants, from order of Q. S. Schuylkill Co., July T., 1894, No. 27, refusing rule to show cause why the judgment should not be stricken off and the judgment opened and defendants let into a defense.</p> <p>This case was argued below and above with the preceding case, and the facts sufficiently appear by reference to the statement of the facts therein set forth.</p>

<p>Sale — Rescission of — Fraud—Knowledge of insolvency.</p> <p>The insolvency oE a vendee and his knowledge of it when the purchase is made are not alone sufficient to invalidate a sale or support an action by the seller in rescission of it. There must be some trick, artifice or deception used, or conduct which reasonably involves a false representation to accomplish the purchase.</p> <p>Rescission of sale — Knowledge and assertion as to insolvency.</p> <p>There must be convincing facts in evidence to show with clear certainty that a condition of insolvency was well known to a purchaser of goods when he asserted solvency as a means of procuring a sale of goods to himself, otherwise his assertion does not have that aspect of fraud, or artifice, or misrepresentation which is required to abrogate an executed contract.</p> <p>Rescission of sale — Statement made to mercantile agency.</p> <p>A sale made on a mistaken rating by a mercantile agency founded upon information given to that agency by the purchaser, upon which such erroneous rating was based by filie agency, will not be sufficient to justify a rescission of a sale on the ground of fraud, especially as in this case the statement made by the purchaser to the agency was not fairly given to the public in the report of the agency.</p> <p>Evidence — Rescission of sale — Res gestee.</p> <p>In a feigned issue to test the rescission of a sale for fraud of purchaser, evidence is inadmissible of the representations made by a mere purchasing agent of the purchaser to other parties from whom goods were bought about the same time, there being no evidence that plaintiff knew of such sales or representations at the time he made the sale which he attempts to rescind, or that the agent was authorized to make any representations.</p>

<p>Appeal, No. 30, Jan. T., 1897, by defendant, from judgment of C. P. Lackawanna Co., March T., 1894, No. 637, on verdict for plaintiff.</p> <p>Trespass for maintaining a nuisance. Before Edwards, J.</p> <p>The facts sufficiently appear from the charge of the court below, which was as as follows :</p> <p>[The plaintiff in this case, James Gavigan, has brought an action against the Atlantic Refining Company, the defendant, to recover damages for injuries alleged by him to be inflicted upon him in the enjoyment of his property, and also on account of injuries said to be inflicted upon his health, and that of his family, and of the physical discomfort that he has suffered on account of the proximity of the defendant’s plant to his property, and on account of the manner in which this plant is conducted.] [1] That is substantially the claim of the plaintiff in this case. You will, of course, come to the conclusion that a case of this kind is of considerable importance, not only to the plaintiff'and the defendant in this suit, but as a matter of ascertaining not only what the law is, but what the relative rights of people are, and property holders, in circumstances situated such as the plaintiff and the defendant are.</p> <p>You have undoubtedly formed an idea as to the relative positions of the property of the plaintiff and defendant in this ease. You have seen the map, and you have heard the testimony of the witnesses. The location of the plaintiff’s property has been described to you in relation to the location of the defendant’s property. It is an undisputed fact in the case that the plaintiff acquired his property some fourteen years ago, that he owns it himself, and that he has lived upon it from the time he purchased it up to the time of the beginning of this suit and up to the present day.</p> <p>It seems that eight or nine years ago the defendant in this case, not probably under the name in which it is sued here now, acquired several lots in the vicinity of the plaintiff’s property and proceeded to erect what is commonly termed in this case as an oil plant, or a plant for the storage, receipt and distribution of oil to and through the trade. I need not go over to you the details as to the manner in which this plant was constructed nor as to the manner in which the defendant has conducted the business which has been carried on. You will notice in considering the testimony on behalf of the plaintiff that it was not clear as to the actual business that was carried on on the defendant’s property. There was only one witness who said anything as to what he had seen inside of the fence or on the defendant’s property. On the defendant’s side you have, if it is to be believed, a full and careful description, not only of the plant in its construction, but also of the nature of the business that has been carried on there from the time it was constructed up to the time of the bringing of this suit, as well as up to the time of trial. You will understand that one of the rules in regard to the credibility of witnesses is that a witness, conceding that he is honest, conceding now that all witnesses are honest in what they say, that the witness who has the best opportunity of observing the facts about which he is testifying, is the witness whose testimony should have the greater weight in regard to that fact. The reason that I mention that rule to you now is because it seems from the testimony in thi3 case that the only clear, definite and full testimony as to the construction of this plant and as to the conduct of the business that is carried on there, and the nature of the business that is carried on there, has been received from the defendant’s side of the case. [There may have been some doubt in your minds when the plaintiff’s case was through, as to whether the defendant was manufacturing oil upon these premises; but I apprehend, although it is a matter for you entirely, that after hearing the defendant’s testimony, the positive testimony of these several witnesses that have been sworn in regard to the plant, its nature, its construction, and the business that has been carried on there, that there is no manufacturing of oil being carried on upon these premises; that while they have a great many different kinds of oil stored in these several tanks, that whatever they have there they receive in tanks from the oil regions over the railroad, this oil that they so receive is pumped into the receptacles known as tanks, and then carried into barrels and sold to the trade. Outside of the different kinds of prepared and refined oil that they deal in, they also deal in greases, which come in barrels and in boxes or cases. While it is for you, from all the evidence in the case, to find out the nature of the business that is carried on there, and the manner in which it is carried on, still I say to you that from the testimony in the case, in my opinion, the only clear and intelligent description we have had of the construction of the plant and of the nature of this business, has been received from the witnesses that have been sworn on behalf of the defense.] [2]</p> <p>[The important question in the case is, what are the relative rights of the plaintiff and the defendant ? The plaintiff bought his property fourteen years ago, and he occupied it, and he has a right to the comforts of his home, to the use and enjoyment of his property, without suffering injury to his health or actual physical discomfort to himself and to his family.] [7] We may also say that the defendant, from the testimony of the case, had a right to buy this property in the place in which they bought it, to erect upon it this plant to store oil there, and to sell it to the trade. I do not think there is any question to be submitted to you, gentlemen of the jury, as to whether the defendant is or is not rightfully there conducting this business. That is not the question. The defendant may be there rightfully and may be carrying on a lawful and legitimate business and in a legitimate way, but the question is, does he so conduct his business or is his business of such a nature that he inflicts physical injury and causes physical discomfort to the plaintiff in his use of his property ?</p> <p>Now, you have heard the counsel argue, and I believe they are pretty near in their views as to the law which would govern this case. You have to take into consideration that this property is in a populous city, and that there are certain discomforts and certain inconveniences that persons owning property and residing in a city must expect. It may be that one has a.house in a pleasant part of the city and that next door to him is built a livery stable. A good many people would not like that, it would annoy them, their taste would be disturbed, their personal comfort or sentimental comfort, call it what you will, would suffer. Or it may be that next to a very nice residence occupied by you or by somebody else, a common restaurant or common saloon might be placed, or even something that would be more uncomfortable than that, we will say a distillery or brewery, still the mere fact that a livery stable or a distillery, or brewery, or a restaurant is carried on and is either built or occupied, after you acquired your property, next door to you, however disagreeable it might be, affords no ground of action and there is no legal redress, because people living in a city and building and occupying their own houses must expect such industries and such business as are generally to be found in cities, especially if the cities are populous. [At the same time if my neighbor carries on a livery stable or brewery or distillery and carries it on in such a manner, although it may be the best manner in which he can carry it on, but he still actually inflicts injury upon my health or upon my family’s health, and causes actual physical discomfort, he would still be liable for whatever injury I would suffer;] [8] but you must not charge such injury to a defendant in a case of this nature, if it is common to all the neighborhood.</p> <p>In the neighborhood of this plant there are other plants, there are other industries, and smoke ascends from the stacks of these different plants, this as well as others, and that smoke intermingles in the air, and of course it impregnates the air with noxious gases to a lesser or greater extent; those things are common inconveniences that everybody suffers from. The traveler on the highway, the man who only makes an occasional visit there, and the people for four or five or half a dozen blocks away, would suffer that discomfort, one just as well as the other. Now, the public that suffers discomfort of that nature are not entitled to recover in a court of law, because individuals must give way to each other where their relative rights are such that everybody must have Ms right to prosecute Ms own business in a proper way. You will understand that whatever discomfort this plaintiff has suffered, or whatever annoyance or inconvenience he has suffered in common with all the people of that section of the city on account of the smoke ascending from the stack, or on account of the gases or odors that come from the plant and mingle with the air and scatter all over, and cause inconvenience and discomfort to everybody that passes that way, that he is not to recover on that account unless he shows an actual and a peculiar injury to himself and to his family. [I do not want you to understand that because the cause of the injury to the plaintiff, provided he has suffered any injury, is of a general character, that he is not therefore entitled to recover, because it may be that a business is of such a character as to influence a large circle and a great many people; nevertheless, the law is that if the man who owns the property in the immediate vicinity has suffered an actual, substantial injury peculiar to himself and his own property, he would be entitled to recover.] [3] I think I have told you enough in that direction, and that is the reason that I have considered this case important on account of the fact that may be your verdict will establish to a great extent the relative rights of persons under the circumstances of the plaintiff and defendant in this case.</p> <p>[Now, has the plaintiff been injured? Has he received substantial, actual injury ? Has the proximity of this plant and the business that has been carried on there caused him actual physical discomfort in the enjoyment of his home, either to him or to his family ?] [9] There was some evidence received in the early part of the case showing the effect the proximity of this plant had upon the market value of the plaintiff’s property. That evidence was stricken out because it has no place in the consideration of this case. So you will discard from your minds entirely all the testimony that you have heard from the witnesses on the stand in regard to the effect that the erection of this plant and the carrying on of the business has had upon the market value of the plaintiff’s property. The only way in which he could show an injury to the real estate would have been by showing a loss of rental value, that is, that he would receive so much when the plant was not there and so much less when the plant was there on account of the plant being there. Or in the destruction of his crops, if he had any; that before the plant was put there his crops netted him so much money per annum, but after the plant was put there it only netted him so much. That is the evidence that is proper in a case of this kind. There is no evidence of that kind, because the plaintiff occupied his own property, and there was no rental value to be considered, and second, there was no evidence whatever as to whether he had anything planted there. So you see that question is entirely out of the case; and the reason I mention it now, although you heard the motion by which it was stricken out, is that it may have no place in your consideration of this case when you are arriving at a verdict.</p> <p>[The contention of the plaintiff is — at least one of them — ■ that the manner in which this business was carried on by the defendant was such as to cause a large quantity of oil to escape into the ground and to percolate through the ground down to Roche Court, through those intervening lots, and into the soil of the plaintiff’s property. There has been considerable testimony in regard to that fact. The reason why that is evidence is not because, even if you find such to be the fact, it has injured the soil, because there is no evidence as to whether the impregnation of the soil with oil has injured the plaintiff at all, but whether the impregnation of the soil, if you find such to be the fact, has caused the plaintiff actual physical discomfort and has had an injurious effect upon his health and upon the health of the family.] [4]</p> <p>First, did the oil percolate from the distance that is shown on the map and has been testified to by the witnesses from the land of the defendant through the lots that I have mentioned to you and through Roche Court and on to the property of the plaintiff and into Iris cellar ? Now, is that a fact ? You have to consider a good deal of evidence in arriving at a conclusion upon that one fact alone. You have the testimony of the people who built, the sewer, and you have the testimony of the inspectors of the sewer, and they say that when the Poplar street sewer was huilt and after-wards when the Roche Court sewer was built that there was found upon the surface of the water in the ditches a scum indicating the presence of oil. Some of the witnesses say that the scum was light, others say that it was thick enough for them to detect it as oil, and one or two witnesses testify that the ground around the ditch and in the ditch was saturated with oil. There is some contradiction on that question, even in the testimony of the witnesses themselves. You find the foreman of the men who did the work on Roche Court, who did the sewer work,. saying that there was no oil, that he was there ten hours each day, but that there was no oil on Roche Court. Now, of course, there is a dispute even in the testimony of witnesses as to that fact. It is your duty to take the testimony of the witnesses on that fact, as well as on the others, harmonize it if you can, and if you cannot harmonize it, then believe that which you consider to be the truth. That is the privilege of a jury, to decide what witnesses they believe and what witnesses they do not believe, and what weight they give to the testimony of any witness that, comes upon the stand. Then, after considering the testimony of the witnesses on that point, you have a right to take into consideration the testimony of the witnesses who have described to you the manner in which the defendant company have carried on their work from 1887 or 1888 up to the time of the bringing of this suit, which was in March, 1894. They have described to you in detail the manner, and two or three of them have told you that it was impossible — of course, they are giving you the facts as well — for a sufficient quantity of oil to leak so as to get into the ground and saturate the ground, and to get there in sufficient quantities to allow it to percolate through the intervening lots to Roche Court and to the property of the plaintiff. You see that also bears upon the question whether as a matter of fact the oil did percolate in the manner the plaintiff would want you to infer and believe.</p> <p>There is considerable testimony as to the manner in which this work was conducted on the defendant’s plant. You have the testimony as to the spilling of a barrel of lard, and as to the manner the oil was taken from the tanks, and as to the incidental dripping from the valves. You have all that. But if the testimony of the defendant’s witnesses is correct as to the greatest quantity of oil that might possibly escape during the six years before the beginning of this suit, then it would be for you, gentlemen, to come to a conclusion from that fact and from all the other testimony in the case whether it was possible for a sufficient quantity of oil to descend through the ground and percolate in the manner that some of the witnesses have described, and to which I have called your attention. [If you find that fact in the negative, that the oil did not as a matter of fact percolate through the ground from the defendant’s plant, then of course you will eliminate it out of the consideration of this case. But if you find that it did percolate from the defendant’s plant through the ground and on to the plaintiff’s lot, that fact alone would not be sufficient to entitle the plaintiff to a veidiet, but what effect did it have upon tbe plaintiff and upon his health, and upon the health of his family, and upon his physical comfort.] [10]</p> <p>The plaintiff has said, and so has his wife, that there was a strong odor of gas and oil, or of gasy, oily matter in the cellar, and they want you to take that in connection with the testimony as to the saturation of the ground and the percolation of the oil — they want juju to take that as the basis of an inference that the odor in the cellar was on account of the saturation of the ground with the oil that came from the defendant’s plant. Now, is that true? Did it come into the cellar so the odor that he detected there and Mrs. Gavigan detected there, was the odor of oil that came there in that manner. [They say to you, as far as they are able to judge, and their testimony is for you, that it was the smell of oil, but they also say to you that they kept their provisions in the same cellar. That is a fact for you to consider as to the view that these people took of that odor, whatever it was, that was in the cellar, and as to the effect it had upon their comfort, in their enjoyment of their right and their privileges; that is a fact for your consideration.</p> <p>Then, again, you have the testimony of Mr. Gavigan and his wife and his daughter in regard to the effect upon their health. Now, that effect must be injurious to the health before the plaintiff would be entitled to any consideration on that ground. If a person suffers loss of appetite from an offensive odor, that might and does affect one’s health; but you have seen the man upon the stand, you have seen the wife, and you have heard their testimony as to their physical condition at that time and now. Of course there is no evidence here that any physicians were called to attend this family. There is no evidence that any money was 'expended in the purchase of medicine, or in the employment of professional gentlemen to attend them. There is no evidence here of loss of work on the part of the plaintiff himself, although there is some evidence that one of the daughters, I think, was sick for about a week, whether it was on account of this odor around the premises or not, I do not know; I leave you to gather that fact from the evidence in the case. Now, is that correct? Did the plaintiff and his family suffer in their health? Do you find that from the evidence? You have also heard the testimony in regard to the physicial discomfort that they suffered in the enjoyment of their own home; that the odors that came from the defendant’s plant were so offensive, so noxious, so thick and strong as to drive them in the summer from their porches into the house, and to compel them to close the doors and windows.</p> <p>Is that a fact ? If you should find that to be a fact, that is such an inference of injury to the physical comfort of the plaintiff as would entitle him to some damage at your hands.] [11] But you must find that such is the fact, and that that physical discomfort was caused by the odor and the smell and the smoke that came from the plaintiff’s plant, and not from any other source.</p> <p>Now, I do not propose to go over all the testimony. A large number of witnesses on the side of the plaintiff have testified to the offensive character of the odor in the immediate neighborhood of this plant and of the plaintiff’s property. A large number of witnesses on the side of the defense say there is no such offensive odor; that they have been around there, and the men immediately connected with the work, they have been most of the time in there, and they have discovered nothing of the kind, and there is positively nothing of the kind around there. People who have traveled around there have béen on the witness stand, and they say that while they discovered the smell of oil, still it is not offensive, and it is not sufficient to affect the health of the people in the immediate neighborhood. Of course it may not be desirable, but that is not the question, because it must relate to the injury to the plaintiff and his family, as I have already described to you.</p> <p>Now, which of these witnesses are correct? Their evidence is for you, gentlemen of the jury, and you must consider it in the light of all the facts and circumstances surrounding this case.</p> <p>I think I have gone now about as much over the testimony as I have the time to, and as is necessary in the disposition of this case. Consider this case in an intelligent manner. If tins man has been injured in the manner that he has described, and that injury is traceable to the plant of this defendant and to the manner in which they have conducted it, then he would be entitled to a verdict at your hands. On the other hand, if he has not suffered actual physical discomfort and has not been injured in his health, or his family have not suffered in the same manner, then your verdict should be for the defendant. If you find a verdict for the defendant you simply say, we find for the defendant. If you find a verdict for the plaintiff you say, we find for the plaintiff in such a sum, naming it; and that sum, whatever it might be, in case you find a verdict for the plaintiff, must be such as twelve reasonable men would have aright to give in good conscience in a case of this nature.</p> <p>I have been asked to charge you by the defendant on certain points of law, which I will now proceed to do:</p> <p>1. That if the jury find from all the evidence in the case that the plaintiff has received no bodily injury or physical discomfort from the storage of oil in the defendant’s plant, the plaintiff cannot recover.</p> <p>Answer of the Court: If it has not affected his health or that of his family, or caused him substantial physical discomfort, he cannot recover. Thus qualified the point is affirmed. [5]</p> <p>2. That if the jury find that the plaintiff has simply been annoyed, and has not been injured in his health, and such annoyance or inconvenience is in common with all the other neighbors in the vicinity of the plant, he has no right of action, and the verdict should be for the defendant.</p> <p>Answer of the Court: I affirm this point.</p> <p>3. That upon the whole evidence the plaintiff is not entitled to recover a verdict.</p> <p>Answer of the Court: Of course I cannot affirm that, because I have left it to you as a question of fact. For that reason that point is refused. [6]</p> <p>The counsel for the plaintiff and for the defendant except to the charge of the court, and to the answers to the points, and request that the same may be reduced to writing and filed.</p> <p>The jury comes into court for further instructions.</p> <p>By the Court: What instructions do you want, gentlemen, in regard to what part of the case ?</p> <p>By a Juror: As to the question of consideration of the discomfort that this man might sustain, and his family, from not being able to sit on his porch, aside from any physical injury that they might have sustained, as to the discomfort that they have sustained, and not being able to enjoy all the privileges of their home. We did not understand thoroughly the judge’s charge in relation to that.</p> <p>By the Court: What is the difficulty with that part of the case ? What information did you want?</p> <p>By a Juror: The jury understood, some of them, that you charged us directly on that point; others understood differently.</p> <p>By the Court: I charged you that if, on account of this plant of the defendant, the business that they carried on there, and the manner in which they carried on the business, injury was done to the plaintiff in the enjoyment of his property, causing actual physical discomfort, that you would have a right to take that into consideration in arriving at your verdict. I cautioned the jury at the same time that it was not a fancied discomfort, not whether it was a disagreeable matter simply, living on the next property to an oil storage plant, but whether the presence of the plant and the offensive odor coming from it were such as to cause actual physical discomfort to the' plaintiff and his family. Now, if such was the case, and that discomfort was attributable to this plant and the manner in which the business was carried on, he would be entitled to compensation for that discomfort so inflicted by the defendant.</p> <p>Verdict for plaintiff for 1470.84. Defendant appealed.</p> <p>M-rors assigned were (1-4) portions of the judge’s charge, reciting same; (5, 6) refusing defendant’s first and third points, reciting same; (7-11) portions of the judge’s charge, reciting same.</p>

<p>Mechanic's lien — Alterations and repairs — Evidence.</p> <p>A meehanie’s lien cannot be sustained as for work done on a new building, where it appears that the work for which the lien is claimed was done on two adjoining three-story buildings, the old structure having a front of 40 feet and the new of 60 feet, that the old structure was occupied as a hotel during the whole progress of the work, that the first floor was changed but the other stories remained substantially intact save for connecting doors, and that the finished structure continued to be used as a hotel.</p> <p>No notice having been given, a lien cannot be sustained for work done and materials furnished for what in fact were alterations and additions.</p>