Volume 30 — Pennsylvania Superior Court Reports

Appeal, No. 9, Jan. T., 1905, by defendant, from judgment of Q. S. Lackawanna Co., Oct. T., 1904, No. 1282, on verdict of guilty in case of Commonwealth v. John Shaleen. Indictment for violating the Miners’ Certificate Act of July 15, 1897, P. L. 287.

<p>Equity — Accounts—Remedy at law.</p> <p>. A bill in equity for an account will be sustained as the proper remedy where it appears that four separate actions of assumpsit might be necessary for the final adjustment of the matters in dispute involved in the litigation. A partnership is formed by the purchase and sale of leaseholds and a division of the proceeds.</p>

<p>Note. — The foregoing opinion and order were written by Judge Smith during his term of office as a member of the Superior Court, the cases having been duly assigned to him for that purpose, and were adopted and filed as the opinion and order of the court on Jan. 13, 1906. Reporter.</p>

<p>Foreign attachment — Wages—Exemption—Waiver.</p> <p>The Act of April 15, 1845, P. L. 459, exempting wages from attachment, is a general law, and applies to foreign attachment. The exemption given by the act cannot be waived.</p> <p>While a general appearance in a foreign attachment precludes the defendant from afterward questioning the jurisdiction of the court to proceed in the action as if it had been commenced by summons duly served, it does not, of itself, deprive him of the right to have his wages or salary released from the lien, or pretended lien, of the attachment.</p>

<p>Criminal law — Extortion—Public officers — Police captain — Bribery.</p> <p>A captain of police may be convicted of common-law extortion.</p> <p>Extortion is an abuse of public justice which, consists in an officer’s unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him, or more than due, or before it is due.</p> <p>An essential element of the offense of extortion is, that the fee or reward must be taken by the officer by color of his office, but this does not necessarily imply that it must be taken for an act or service which it is his duty, or he has discretionary power, to perform. It does imply, however, an exercise of official power possessed, as pretended to be possessed by the officer, or distinguished from an act which could have been performed by any other person.</p> <p>Bribery on the part of an officer and extortion are not identical, but they are very closely allied; and whilst the former does not necessarily involve a pretense of official authority to do the act for which the bribe is given, yet, if such pretense is used to induce its payment, there is no reason to doubt that the taking of it is common-law extortion as well as bribery.</p> <p>Where the conduct' of a captain of police is tantamount to the assertion and use of his official authority as a cover for an act whereby he obtains a pecuniaiy reward to which he is not entitled, the officer may be convicted of extortion at common law.</p>

<p>Criminal law — Extortion—Public officers — Police captain — Bribery.</p> <p>Where the conduct of a captain of police is tantamount to the assertion and use of his official authority as a cover for an act whereby he obtains a pecuniary reward to which he is not entitled, the officer may be convicted of extortion at common law.</p>

<p>Appeal, No. 79, Oct. T., 1905, by plaintiff, from order of O. P. No. 2, Phila. Co., Dec. T , 1895, No. 1093, dismissing exceptions to referee’s report in case of A. Klipstein v. Warren H. Whitesides, trading as Warren H. Whitesides & Company, Merchandise Storage and the Equitable Trust Company, Receiver of the Keen-Sutterle.</p> <p>Exceptions to report of referee.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error's assigned were in dismissing exceptions to report of referee.</p>

<p>Principal and agent — Commissions—Liquor license.</p> <p>An owner of a liquor license agreed to pay a certain amount in commissions to an agent if the latter would procure a purchaser for the license. The agreement was conditioned upon the approval by the license court of a transfer of the license to the proposed purchaser. The agent produced a purchaser, but the owner of the license refused to make the sale, and refused to pay the commissions. Held, that the owner of the license was liable for nominal damages -only if he refused for a good reason to make the sale, but that he was liable for the whole commissions if his action in refusing to make the sale was in bad faith.</p>

<p>Negligence — Master and servant — Evidence.</p> <p>In an action by an employee against his employers to recover damages for personal injuries, it appeared that at the time the accident occurred plaintiff and two other workmen were engaged, under the immediate directions of one of the defendants, in rolling a heavy and unwieldy wheel into the defendants’ machine shop. All three of the workmen had .been engaged in a similar work on former occasions. In passing through a somewhat narrow space one of the workmen stepped aside, leaving the wheel to be supported by the other two. Almost instantaneously the wheel toppled over and plaintiff was injured. It appeared that before coming to this space, the workman who had stepped aside had previously left the wheel in charge of the other two, in order to close a door, and that during his absence the two workmen maintained the wheel in an upright position. Held, that the evidence was insufficient to convict the defendant of negligence.</p> <p>Appeal, No. 99, Oct. T., 1905, by defendants, from judgment of C. P. No. 4, Phila. Co., March T., 1902, No. 3088, on verdict for plaintiff in case of John Whitley, by bis next friend, Margaret Davis, v. William Evans, Robert Evans and John H. Evans, trading as John Evans & Sons.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J. ’</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p>

<p>Appeal, No. 114, 1905, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1908, No. 3682, on verdict for plaintiff in case of Harry J. Eisenbrown, agent for James Flaherty, v. Lawrence Burns and Elizabeth Burns.</p> <p>Ejectment for No. 1019 Master street in the city of Philadelphia. Before Beitler, J.</p> <p>The facts are statéd in the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Negligence — Automobiles—Negligent driving.</p> <p>In an action to recover damages for personal injuries sustained from collision with an automobile, a verdict and judgment for plaintiff will be sustained where it appears that at the time of the accident plaintiff was standing on the edge of a pavement with one foot on the curb, in the act of stepping upon the roadway, when the driver of an automobile, either through reckless mismanagement or through inexperience, drove his machine upon the curb and struck and injured the plaintiff.</p> <p>Appeal, No. 80, Oct. T., 1905, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1904, No. 3, on verdict for plaintiff in case of Joseph May v. W. M. Allison.</p> <p>Trespass to recover damages for personal injuries. Before Savidge, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $275. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Road law — Turnpike road — Condemnation of turnpike — Exceptions—Appeal — Damages.</p> <p>An appeal from an order of the court of quarter sessions dismissing exceptions to a report of a jury of view in proceedings to condemn a turnpike road under the Act of June 2, 1887, P. L. 306, is in fact a certiorari, and the appellate court in reviewing the order will concern itself only with the regularity of the proceedings in the court below. The solution of the question of damages is through an appeal to the court of common pleas from the report of the jury of view.</p>

<p>Criminal law — Indictment—Quashing indictment — Witness—Appeals.</p> <p>The Superior Court has authority to review the action of the quarter sessions iii refusing to quash an indictment; but where the action of the lower court is purely discretionary it will not be set aside unless there be an abuse of discretion both manifest and flagrant.</p> <p>Where the'motion to quash an indictment is based on an allegation of facts outside of the record proper, the revisory jurisdiction of the appellate court is necessarily confined to a determination of the question arising upon the latter, taken in connection with the facts or the evidence duly brought upon the record by bill of exceptions.</p> <p>The Act of March 31, 1860, sec. 10, P. L. 427, giving authority to the foreman and members of the grand jury to administer the oath to a witness whose name is indorsed on the indictment, does not abrogate the common-law practice by which witnesses were sworn in open court and sent before the grand jury.</p> <p>The Superior Court will not reverse an order of the quarter sessions refusing to quash an indictment because the indictment was found upon the testimony of a single witness whose name was not indorsed on the indictment, where it does not appear from the record either affirmatively or by necessary implication not only that the indictment was found as alleged, but also that the witness was not sworn before the court.</p>

<p>Husband and wife — Married women — Earnings of wife — Debt of husband— Execution.</p> <p>Money earned by a'married woman before her marriage and by keeping boarders afterwards cannot be taken in execution to satisfy the debt of her husband.</p> <p>A wife is entitled to the avails of her separate property though the labor of her husband mingles in the production.</p> <p>Appeal, No. 93, Oct. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 739, refusing to take off non-suit in case of Thomas J. Martin, Jr., v. Louis Davis, defendant, and the Commonwealth Title Insurance & Trust Company, garnishee.</p> <p>Attachment execution.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court refusing to take off nonsuit.</p>

<p>Appeal, No. 217, Oct. T., 1905, by defendant, from judgment of Q. S. Lehigh Co., April T., 1905, No. 85, on verdict of guilty in case of Commonwealth v. R. S. Clymer.</p> <p>Indictment for practicing medicine without a state license. Before Trexler, P. J.</p> <p>At the trial when H. H. Fleisher, a clerk in the office of the state superintendent of public construction, was on the stand, he was asked this question:</p> <p>“Q. And those records are the official records of the office ? A. Yes, sir. Q. And they are under the control of the superintendent of public instruction, who is a member of the board? A. Yes, sir. Q. And Doctor N. C. Schaeffer is a member of that board? A. Yes, sir.. Q. Did you examine that record? A. Yes, sir. Q. From what time to what time did you examine it? A. From June, 1894, up to the present time. Q. When you say from June, 1894, up to the present time, what time do you mean, up to yesterday or day before ? A. Up to April 11, 1905. Q. Were there any examinations before the board prior to Juné, 1894 ? A. I don’t know. Q. Is there any record prior to that time ? A. No, sir. Q. In examining the record did you find the name of one R. S. Clymer upon it ? ”</p> <p>Mr. Schaadt: This is objected to as incompetent and irrelevant.</p> <p>The Court: The court is of the opinion that the records are not within the jurisdiction of the court and the objection is overruled.</p> <p>The defendant asks for a bill, and further objects to the testimony of the witness as incompetent and irrelevant, because if the records are not able to be produced in court, then the next best testimony are certificates under the hand of the proper officer and the seal of his department, and because sec. 12 of act of 1893 provides that the record of the state medical board of examiners shall be open to public inspection, and in all legal proceedings shall have the same weight as evidence that is given to the conveyance of land.</p> <p>The Court: The objection is overruled and bill sealed for defendant. [3]</p> <p>Senator Dewalt: “ Q. Did you find in your examination of the records from June, 1894, up to and including April 11, 1905, the registration of any such person as R. S. Clymer? A. I did not. Q. Did you make such search? A. Yes, sir, I did. Q. Is there any such registration? A. There is not. Q. There is no such name upon your books ? A. No, sir.”</p> <p>The court charged in part as follows :</p> <p>[Now, if you find that the defendant has not passed the state board examination and has not duly registered under the act, then it is your duty to convict. You are judges of the law and the facts. If a lawyer in his address to the jury, makes a misstatement and the man is acquitted thereby, that mistake can never be corrected. If the court in its instruction to the jury makes a misstatement, that mistake on the part of the court can be corrected on appeal to a higher court, which is the privilege in every case, so that I state to you as a matter of law, if you find that Dr. Clymer practiced medicine, without first having passed the state board examination, then he is guilty of a violation of the act; if he has failed to comply with any other provision of the act, to which he is liable under the act, he is guilty of its violation.] [4]</p> <p>[If I were on the jury, I would have no difficulty in bringing in a verdict of guilty, but as I said before, that you can do or not as you see fit, under your conscience and under the oath. It is your duty to take the law from the court, and the best evidence of the law, considered only as evidence, is that which the court gives to you, and I think I can safely leave this matter in your hands ; that you will do what is right; the verdict should be of guilty or not guilty.] [5]</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned among others were (3) rulings, on evidence, quoting, the bill of exceptions; (4, 5) above instructions, quoting' them.</p>

<p>Appeal, No. 176, Oct. T., 1905, by defendaut, from decree of C. P. Equity Docket 1904, No. 865, on bill in equity in case of M. C. Horine v. Ralph H. Mengel.</p> <p>Bill in equity for an accounting.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree for an accounting.</p>

<p>Appeal, No. 16, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1903, No. 1152, on verdict for plaintiff in case of Jonathan D. Wilson v. Union Transfer Company.</p> <p>Trespass to recover damages for personal injuries. Before Finletter, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $300. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Affidavit of defense — Practice, C. P. — Landlord and tenant.</p> <p>In an action for rent where the statement avers payment in advance of rent for a previous month and that the defendant requested the plaintiff to send a bill for the rent, an affidavit of defense is sufficient which denies any payment of rent for a previous month or any agreement or contract for rent of the premises, &t the rate charged, or at any other rate. In such a ease the omission to deny the averment as to the request for a bill for rent, does not amount to an admission that the rent was due.</p>

Appeal, No. 219, Oct. T., 1905, by Alice A. Murrow, from decree of C. P. No. 5, Pliila. Co., Dec. T., 1903, No. 2753, ou bill in equity in case of Richard M. Naglee and Helen B., his wife, and David J. Rashbam and Clara Virginia, his wife, v. William P. Naglee and Emma, his wife, and Francis Naglee and Louise, his wife. Bill in equity for partition. The case was referred to Edward W. Magill, Esq., as master.

<p>Appeal, No. 198, Oct. T., 1905, by plaintiff, from judgment of O. P. Northumberland Co., Dec. T., 1902, No. 261, on verdict for defendant in case of Annie M. McCurdy v. Orient Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Savidge, P. J.</p> <p>The court charged as follows :</p> <p>The facts of this case are not disputed. The insured, Annie M. McCurdy, was the owner of a double dwelling house on Fifth street, in the borough of Sunbury. This was occupied as a tenement house, she herself living elsewhere, and so described in the policy. So that it was understood at the time that this policy was bought that is was to be used as a tenement house. During the life of the policy, namely, July 22, 1902, the property was destroyed by fire. There is no dispute as to the origin of the fire. .</p> <p>On the preceding day the tenant had taken to the house a gasoline stove, which was in use at the time the fire took place, and the use of which occasioned the fire. They say the fire came through the use of gasoline as a fuel on the insured premises.</p> <p>The policy of insurance contains the usual clause that if there be kept, used or allowed on the premises, gasoline among other things, that it seems to me, holds that the prohibited article may be on the premises for temporary use.</p> <p>[Everything in this case indicates and shows clearly that gasoline was not temporarily to be used, on the single occasion, or on a day or two. The testimony is that it was during the coal strike. This tenant tried to get coal and could not and was using gasoline as a fuel because he could not get any other fuel.] [2]</p> <p>It would be proper to hold that if gasoline was introduced for the purpose of mixing paint or for cleaning purposes, brought in temporarily for that, or for any other merely temporary purpose, that it did not come within the prohibitory clause of the policy. But where it is brought in to be used for some length of time, and, especially to be used as fuel, it cannot be said it was there for a mere temporary purpose, in the sense the term temporary is used in the case referred to by counsel for the plaintiff.</p> <p>[It is contended that because this was not either known to, or sanctioned by, the owner of the premises the policy was not avoided and she ought to recover. We do not think the voidance of the policy is dependent upon the knowledge of the insured of the use of a prohibited article, gasoline in this case. These words are not in the conjunctive but in the disjunctive, either the keeping or the usage or the permitting to be kept or used.</p> <p>It has been argued that the plaintiff could not know what a tenant did, nor could prevent a tenent from the using of the prohibited article; that in this case this woman did not know and had ordered the tenant not to use gasoline or any of the articles prohibited by the policy. We think that makes no difference. It will not be pretended that a tenant may, notwithstanding the prohibition of the use of dangerous articles upon the premises use them habitually 'and violate the terms of the policy and jeopardize the property.] [3]</p> <p>Nor will it be pretended that the insurance company could have any means of knowledge as to what was kept on the premises, or ought to have had knowledge. It is the owner or leasor who is expected to look after the property, and see what is being done upon it, whether the terms of the insurance are being violated.. That would be reasonable and right. We think it makes no difference whether she had or had not notice, whether she did or did not command that there should be no gasoline used on the premises.</p> <p>It is high time that owners understand that they are responsible for what their tenants do.s Every policy of insurance ought to be accompanied with the notification, not only to persons insured who dwell upon the premises but especially to landlords, of the fact that these prohibitions are contained in the policy. Their attention ought to be especially called to it because it would take half a day, more or less, fora busy owner to read over, sift out and understand the fine print conditions of an ordinary policy.</p> <p>You may return a verdict for the defendant.</p> <p>The plaintiff presents a few points for me to answer.</p> <p>1. If the jury believe from the evidence that the plaintiff had forbidden the use of gasoline stoves and that the tenant took it there at supper time on the day before the fire, which occurred at 7 A. m., such use would not avoid the policy because the plaintiff was without means of knowledge, expressed or implied, and hence had not violated the contract. Answer : This is the evidence. It is not a question whether the jury believe it or not. The facts are as contained in that point, but this point is refused. [4]</p> <p>2. The words “keep, use or allow” refer to a known or continued use and cannot refer to such a use as is shown in this case. Answer: I have said to you that that is not the law, in my judgment. You might as well tear up policies of insurance, if that is the law, and say to the landlord you may have your premises insured, where the hazards are increased on account of their being occupied by tenants, at the same rate that owners have their properties insured, and you are paying for these extra hazards for the landlords’ property who don’t look after their properties. It all comes off the insured and they ought to be all treated alike. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others, were (2-5) above instructions, quoting them.</p>

<p>Promissory notes — Principal and surety — Release of surety — Payment of interest.</p> <p>A surety on a promissory note is not released from liability by the mere payment of interest by the principal, where it does not appear that the interest was paid in advance, or that the note was extended, or in any way varied in its terms.</p> <p>Decedents’ estates — Claim for services — Findings of fact.</p> <p>A finding by the orphans’ court against a claim for nursing, will not be reversed by the appellate court where the finding is based on sufficient evidence and no manifest error is made to appear.</p> <p>Appeals — Joint appeals — Decedents’ estates.</p> <p>A husband and wife are not entitled to a joint appeal from a decree of the orphans’ court, where it appears that the wife appealed as a distributee, and the husband as a disappointed claimant, and that the matters of complaint iyere entirely separate and distinct.</p>

<p>Practice, C. P. — Trial—Reservation of question of law-</p> <p>A reservation of a question of law is properly made by the following instruction: “This verdict will be taken subject to the point of law reserved, whether there is any evidence in the case to be submitted to the jury.”</p> <p>Negligence — Street railways — Motorman—Scope of employment.</p> <p>Where a street car is obstructed by a coal wagon, and the motorman leaves his car, and in attempting to start the horses of the wagon negligently injures the driver, the street railway company is not liable to the driver, inasmuch as the motorman was acting without the scope of his employment.</p>

<p>Liquor laws — Res adjudicata — Revocation of license.</p> <p>The principle of res adjudicata cannot be set up against a rule to revoke a liquor license where it appears that the rule in the previous proceeding had been discharged by consent, and that the parties procuring the two rules had been different persons.</p> <p>The refusal of the Supreme Court to grant a mandamus to compel the court of quarter sessions to grant a rule to revoke a liquor license, is not an adjudication on the merits of the case, but is based on the ground that the remedy of the petitioner for the rule is by an appeal to the Superior Court.</p> <p>Where the petitioner's for a rule to revoke a liquor license show that the licensee sold liquors in three different buildings, one of which was not connected with the licensed premises, it is the duty of the court to grant the rule, and a refusal to do so is reversible error.</p>

<p>Appeal, No. 196, Oct. T., 1905, by Lillie Troub, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Robert Stephenson, deceased.</p> <p>Exception to report of H. H. Gilkyson, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 33, Oct. T., 1905, by plaintiff, from order of G. P. Northampton Co., Dec. T., 1901, No. 93, dismissing rule to open judgment in case of Freemansburg Building & Loan Association to the use of J. Steward Schick et. al., now to the use of Mary Keen v. Emma E. Billig, now Emma E. Reinhold, and A. H. Reinhold, her husband.</p> <p>Rule to open judgment.</p> <p>Schuyler, P. J., filed the following opinion:</p> <p>This is a rule to open a judgment against a mortgagor after two returns of nihil. At the time the mortgage was executed the mortgagor was a single woman, but prior to the issuing of the present writ she married A. H. Reinbold, her codefendant and the present petitioner. It now appears that she was dead when the writ issued. “ Two returns of nihil are equivalent to a return of scire feci and the legal validity of a judgment entered thereon for want of an appearance cannot be impeached by evidence that the mortgagor was dead. This well-established rule does not prevent the exercise by the court of its equitable powers to open the judgment where justice requires it and prompt application is made : ” Luzerne Bldg. &. Savings Assn. v. Engle, 5 Kulp, 105.</p> <p>Does then “ justice require ” that this judgment be opened, and if so has “prompt application ” been made to that end? Outside of a number of technical objections, which because of their triviality should not have been made, the only grievance complained of is that the judgment includes too much interest. In support of this complaint the petitioner sets up an alleged tender. “ The burden of proof rests upon the party who pleads a tender,” and the evidence must be “ clear and satisfactory: ” 28 Am. and Eng. Ency. of Law (2d ed.) 42.</p> <p>Tested by this rule the evidence before us taken as a whole falls far short of the required standard. Moreover, there is no pretense that the tender was kept good, as required by the overwhelming weight of authority : Summerson v. Hicks, 184 Pa. 566.</p> <p>But even if a valid tender had been established, the petitioner is clearly guilty.of laches. The alleged tender was made June 5, 1902; the judgment sought to be opened was entered August 23, 1904, and the present petition was not filed until December 5, 1904, at which time a levari facias had been issued, and the property advertised for sale. As a party to the record the petitioner cannot plead ignorance of the impending danger, and, being one of his wife’s executors, there was nothing to prevent his filing an answer, as such, before judgment, he having been personally served as early as December 5, 1901. His failure to do so was gross carelessness against which equity affords no protection.</p> <p>January' 9, 1905. Rule discharged and petition dismissed.</p> <p>Error assigned was order discharging the rule.</p>

<p>Judgment — Revival of judgment — Scire facias — Amendment.</p> <p>Where a scire facias to revive a judgment is correct in every particular, except the amount, the writ may be amended, since this can be done from the record itself.</p> <p>On a scire facias to revive a judgment matters cannot be set up as a defense which are only appropriate in a proceeding to open the original judgment.</p>

<p>Appeal, No. 293, Nov. T., 1901, by defendants, from judgment of C. P. Schuylkill Co., Nov. T., 1901, No. 293, on verdict for plaintiff in case of John O. Ulrich v. Mike Matika and Paul Richardson.</p> <p>Ejectment for land in the Borough of Gilberton. Before Shay, J.</p> <p>At the trial it appeared that the defendant, Paul Richardson, claimed title under a tax sale. The evidence showed that there was sufficient personal property on the premises at the time of the assessment to pay all of the taxes levied.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Criminal law — Pleading—Indictment—Information—Variance.</p> <p>A motion in arrest of judgment must be based on some matter appearing on tbe record. A variance between the information upon which the warrant issued and the indictment is not such matter, nor where the defendant has gone to trial without raising the objection is it a valid ground upon which to base a reversal of the judgment upon appeal.</p> <p>The fact that three persons mentioned in an information are joined in an indictment with four others not mentioned in the information, is no ground for reversal after a trial on the merits, and when no motion to quash or for a severance has been made before pleading.</p>

<p>Appeal, No. 188, Oct. T., 1905, by defendant, from judgment of C. P. Berks Co., Sept. T., 1903, No. 52, on verdict for plaintiff in case of Frank M. Brown v. D. L. Reber.</p> <p>Assumpsit for the purchase price of a horse. Before Ermentrout, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned are all quoted in full in the opinion of the Superior Court.</p>

<p>Public officers — County commissioners — Compensation—Statutes—Repeal— Acts of March 30, 1869, P. L. 581, and May 7, 1889, P. L. 109.</p> <p>The Act of May 7, 1889, P. L. 109, fixing the compensation of county commissioners within the commonwealth, does not repeal the local Act of March 30, 1869, P. L. 581, relating to Berks county, and fixing the compensation of county commissioners in that county at 1500 per annum. The general act only repeals local laws fixing a rate per diem compensation less than is provided in the act of 1889.</p> <p>Constitutional law — Title of act — Act of May 7, 1889, P. L. 109.</p> <p>The Act of May 7, 1889, P. L. 109, entitled “An Act regulating the compensation of county commissioners within this commonwealth,” sufficiently indicates in its title the purpose of section 3 of the act which reads “all local laws fixing a per diem compensation, less than is provided in this act, be and the same are hereby repealed.”</p> <p>Public officers — County commissioners — Compensation—Statutes—Repeal— Acts of March, 30, 1869, P. L. 581, and May 5, 1897, P. L. 42.</p> <p>While it is true that the Act of May 5, 1897, P. L. 42, repealed so much of the Act of March 30, 1869, as fixed the annual compensation for the commissioners of Berks county, and that the Act of May 7, 1889, P. L. 109, went into full force in that county, commissioners who were elected and went into office prior to the act of May 5,1897, are not entitled to reap the benefit from the repeal of the local act, since the constitution prohibits the increase or diminishing of salaries of public officers after their election or appointment.</p> <p>Public officers — Compensation—County commissioners.</p> <p>County commissioners are not entitled to use the public moneys in paying their expenses in attending a county commissioners’ convention in another city in the State.</p> <p>County auditors — County commissioners — Notice—Res adjudicata.</p> <p>Where county auditors meet, and pass upon reports of county commissioners submitted to them, although the commissioners are not summoned, and do not appear, and subsequently the commissioners move the court to strike off portions of the report, and pending this motion, appeal from the county auditor to the common pleas, the county commissioners cannot thereafter complain that they were not summoned to appear before the auditors. In such a case where it appears that the court refused the motion to strike off so much of the report as charged the commissioners with a sum of money, it will be deemed on the appeal to the common pleas that the question of notice to the commissioners was adjudicated in the disposition of the motion to strike off portions of the report.</p>

<p>Appeal, No. 207, Oct. T., 1905, by defendant, from judgment of C. P. Berks Co., June T., 1901, No. 70, on verdict for plaintiff in case of Berks County v. Charles E. Stangier.</p>

<p>Contract — Parol contract for sale of land — Breach—Action for damages— Statute of frauds — Vendor and vendee.</p> <p>Under the Pennsylvania statute of frauds and perjuries, an action may be maintained for the recovery of damages for the breach of a parol contract for the sale of land. The measure of damages in such a case, in the absence of fraud by the vendor, is the actual purchase money paid, and actual damages incurred by the vendee, and if no purchase money was paid, and no actual expenses incurred, then mere nominal damages can be recovered.</p> <p>Where the plaintiffs make out a prima facie case by proving the contract, and the breach of it, and the defendants prove that without any fraud or collusion on their part, they were unable to carry out the contract, the burden is then upon the plaintiffs to prove fraud, if any exists.</p> <p>The fraud necessary to entitle the vendee to recover must be such as inhered in the original agreement. A subsequent fraudulent purpose is not enough.</p> <p>Where in an action to recover damages for the breach of a parol contract to sell land, the vendors show that they were unable to carry out the contract because the husband of one of the parties in interest refused to sign the deed on the ground that his wife was to receive shares of stock and not cash, the defendants cannot be charged with more than nominal damages over and above the purchase money paid, and expenses actually incurred by plaintiff.</p>

<p>Appeal, No. 151, Oct. T., 1905, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1903, No. 264, on verdict for plaintiff in case of H. T. Bechtel v. The Borough of Mahanoy City.</p> <p>Trespass to recover damages for the death of a horse. Before Shay, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $200. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 1, March T., 1905, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1903, No. 148, on verdict for defendant in case of William Yinger v. Samuel L. Young and Robert Mitchell.</p> <p>Replevin for goods distrained. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows :</p> <p>[It appears that Mr. Lambert took possession of these premises, and some time in June following, by an arrangement between him and the plaintiff in this case, William Yinger, Mr. Yinger took possession of this property in the place, and stood in the shoes of Mr. Lambert, and the rights he was possessed of there were no higher than Mr. Lambert possessed; and the relation that existed between him and Mr. Youngman from the time he became the tenant of that property was the same that had existed between Mr. Youngman and -Mr. Lambert. Yinger’s goods upon the premises were just as much liable for seizure for rent in arrear as Mr. Lambert’s goods were liable while they were there.]</p> <p>[It also appears from the evidence that there was steam heat in this building; that the building was supplied with steam heat from the Updegraff steam heat plant; but it is complained on the part of the plaintiff here, Mr. Yinger, that there was not sufficient heat in that building. Now, you have heard some description here of the condition of that room. I can say to you that it was the duty of Mr. Yinger to make such use of the room as was reasonable he should make; in other words, if there were openings in the room where the cold could get in and which could be easily repaired, some duty was due from him in that respect. Another thing, it is in evidence that there were radiators on the floor and that there were places to attach these radiators ; and in the absence of any positive agreement on the part of Mr. Youngman that he should attach those radiators, even if you believe that Mr. Youngman agreed to furnish the radiators, they were there, and it was as much his duty to attach them as it would be Mr. Youngman’s. Such an excuse as that is hardly sufficient to avoid the payment of rent, if you believe the rent was honestly due.] [5]</p> <p>[Now, it is claimed, on the part of the plaintiff that since the issuing of this writ of replevin, or since 'the issuing of the landlord’s warrant, $50.00 has been paid to Mr. Youngman. You have heard the circumstances under which that claim is made. A check was given to Mr. Youngman for the sum of $50.00. This check has never been paid. It is in the .hands of Mr. Youngman, and I understand he has presented it to the bank, and you have heard what has been said in reference thereto. Now, I can say to you that if Mr. Youngman had received that $50.00 represented by that check, that that would be a payment on account of this $90.00, but a check is not payment unless it is received as such and the check has actually been paid. Hence, the question is here, what amount of rent was due and unpaid on this lease at the time that this levy was made, which was on March 14, which I understand would include the rent for that month, because the rent is made payable in advance — hence the question is, what would be due on April 1,1903 ?] [6]</p> <p>Plaintiff presented these points :</p> <p>1. If the jury find from the evidence that S. L. Youngman at the time the memorandum for steam heat was made on the back of the lease, agreed to put radiators in the premises leased from him by plaintiff, and that he failed to keep his agreement, and that the plaintiff has paid the rent for the premises in question, then the verdict must be for the plaintiff, William Yinger. Answer : We say to you if you find the rent for the premises has been paid by the plaintiff, then your verdict, of course, would have to be for the plaintiff ; but with reference to the matter of radiators, as referred to in this point, we have already charged you particularly with reference to the law upon that subject; and with what we have said in our general charge with reference to that, we will affirm this proposition. [7]</p> <p>3. Under all the evidence in this case the verdict of the jury should be for the plaintiff, William Yinger. Answer .-We refuse to so charge you. [8]</p> <p>Verdict and judgment for defendant for $90.45 for rent in arrears and for $65.00, the value of the goods distrained. Plaintiff appealed.</p> <p>Errors assigned were (1) in admitting in evidence the lease between the parties ; (2, 3) in refusing to admit evidence as to the oral agreement referred to in the opinion of the Supreme Court; (4-8) above instructions, quoting them.</p>

<p>Will — Legacies—Distribution—Per stirpes — Per capita — Analogy of the statute.</p> <p>Testatrix after having directed that her estate should be converted into money, gave, devised and bequeathed it as follows: “To my brother B, to the children of E, my sister, to the children of my sister L, and to the children of M, (another brother), share and share alike.” B had no children, E, had seven, L, had five and M, had two. E, L, and M, were deceased. No brother or sister or nephew or niece was excluded. Held, that distribution following the analogy of the statute, should be made per stirpes and not per capita.</p> <p>The statute of distribution governs in all cases where there is no will, and where there is one, and the testator’s intention is in doubt, the statute is a safe guide.</p>

<p>Evidence — Witness—Party dead — Cross-examination—Relevancy of testimony — Decedents’ estates.</p> <p>Where a surviving party to a contract has been called for cross-examination as to matters occurring in the lifetime of the decedent, he becomes a fully competent witness as to other relevant matters, whether occurring before or after the death of the decedent; and this is the case although the cross-examination as to matters occurring in the decedent’s lifetime was neither very extended nor very important.</p> <p>The Act of May 23, 1887, P. L. 158, does not change the common-law rule that a party calling and examining generally an incompetent witness, and having the benefit of his testimony, cannot object to his competency when called by the other side as to other relevant matters.</p> <p>If the witness is called for cross-examination, he may testify generally as to other relevant matters, although such matters were not touched upon in his cross-examination.</p> <p>Where an administrator is sought to be surcharged by a guardian, and the administrator has been called for cross-examination as to certain matters occurring in the lifetime of the decedent, he may testify on his own behalf that he took his father, the decedent, and one of the minors to live with him, and that the father promised that he would pay board for himself and the minor; and this is the case although the subject of board money was not referred to' in the cross-examination of the administrator.</p> <p>In such a case if the administrator’s testimony is supported by the testimony of two other witnesses as to declarations made to them by the decedent, a finding by an auditor confirmed by the court below, that a contract to pay board was made, will not be disturbed by the appellate court.</p> <p>A contract to pay for services or boarding may be express and binding, although the amount is not defined. If the sum be not expressed, it will be implied to be the value.</p> <p>An appellate court will not disturb a finding of fact by an auditor approved by the orphans’ court, except in cases of fraud, clear mistake or manifest lack of due consideration, and especially is this true where the finding is based on direct oral testimony, and is not a mere inference from other facts.</p>

<p>Appeal, No. 32, March T., 1905, by S. P..Shadle, Administrator, from decree of O. C. Dauphin Co., overruling exceptions to auditor’s report in Estate of Gideon Shadle, deceased.</p> <p>Exceptions to report of Eugene Snyder, Esq., auditor. Before Jacobs, J.</p> <p>The facts appear by the opinion of the Superior Court and from the report of Shadle’s Estate (No. 1) ante, p. 151.</p> <p>Error assigned was the decree of the court.</p>

<p>Practice, C. P. — Trial—Instructions—Points for charge.</p> <p>A party is entitled to a olear and distinct statement of the law in answer to every point properly drawn that is material and applicable to the case, and warranted by the facts and the evidence, if not fully covered in the general charge.</p>

<p>Appeal, No. 44, Oct. T., 1905, by defendant, from judgment of G. P. No. 2, Phila. Co., Dec. T.. 1902, No. 343, on verdict for plaintiff in case of William H. McMahen v. Stacy H. White.</p> <p>Trespass to recover damages for death of a horse. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Superior Court and the charge which was as follows :</p> <p>The facts in the case have been gone over so carefully and fully by counsel for plaintiff and defendant, and they are in themselves so few, so far as they are controlling facts, that I need not state them again to you. The conceded facts are that these parties were driving along the Wissahickon road, and that there was a collision. The plaintiff’s horse and the defendant’s horse ran together, and you may reasonably infer that at least one of the parties was traveling at a rapid rate. Perhaps both were, but the result of the impact must necessitate the conclusion that at least one was, because the defendant has testified that the shaft of the plaintiff’s carriage pierced his horse’s breast to the extent of seventeen inches, and that the shaft of his own carriage pierced the plaintiff’s horse’s breast to the extent of seven inches. You may, therefore, I think, reasonably infer that the travel of these two parties was, so far as one and perhaps both of them may be considered, not slow travel. You are further to consider that it appears to be conceded that at the time of the accident the road was very dark. The electric lights can best be described by the park guard, who stated that along there, according to the regular method, that spot was pretty well lighted, but that there might be a time or times when there was a cessation in the light, or a falling of it so that it became dark. There seems to be no difficulty about that point. There is no difficulty about understanding that the plaintiff was driving his own horse northward on the proper side of the road. The defendant, however, was not driving his horse. Pie owned the horse, but he had permitted his guest to drive for him, and accordingly [in considering the proofs you are to consider what under the circumstances that guest was doing, and what she did in driving the horse at that time you may regard as substantially the act of the defendant himself], [2] He has said with candor that she asked if she might drive just after they left the house where they had dined, and he said she might, and she was driving at the time the accident occurred. It is further undisputed that people in both carriages were thrown out. The plaintiff himself was thrown out, his companion remaining behind, and the defendant and his companion were thrown out, so that we have a further indication that it was not easy driving on the part of both of these parties. One or both of them must have been driving somewhat more rapidly than the ordinary, usual, simple pace. However, I leave that to you. The resolution of all questions of fact is exclusively for you, and whilst I suggest these things as conelusions probably or reasonably to be looked for, yet you may reach quite different conclusions, and it is entirely within'your province to do so.</p> <p>Finding the plaintiff and defendant rightfully on the road, because each had a right to travel there, finding in the inception of the history of the transaction each on the right-hand side of the road, it is for you to consider whether the defendant was negligent in his driving to such an extent as to have produced the injury to the plaintiff’s horse and wagon, an injury which, had he used proper care, would have been avoidable and probably avoided. If the defendant through his agent used the care which a reasonable man might be expected to use under the circumstances, he is not to be held responsible here. If'you find, on the other hand, that his action through his agent was not such in respect of care as a reasonably prudent driver under the circumstances would have exercised, then you are to consider a further question, because even that will not conclude the case against the defendant. The further question is, whether the plaintiff himself was free from all contributory negligence. Was he driving along there in such a way as would be the course of a reasonably prudent driver under the circumstances ? If he was not, it makes no difference how much to blame you may regard the defendant as exceeding the rule of care, your verdict should go for the defendant. If he was exercising proper care and the defendant was not, according to my statement of the measure of care to you, then you might find that the verdict should be for the plaintiff.</p> <p>If you find a verdict for the plaintiff, the measure of damages would be the market value of the horse, of which you heard sufficient evidence to enable you to reach a conclusion, and the necessary outlay of the plaintiff in the premises incident to the result of the very accident itself — outlay in the care of the horse. I do not recall any evidence as to damage to the wagon, although it is claimed in the nan*.</p> <p>Verdict and judgment for plaintiff for $674.13. Defendant appealed.</p> <p>Errors assigned were (1) that the charge was inadequate ; (2) portions of charge as above, quoting it; (3) in refusing binding instructions for defendant.</p>

<p>Landlord and tenant — Use and occupation — Contract—Affidavit of defense.</p> <p>The plaintiff in an action for the use and occupation of land must prove a contract to pay either a stipulated compensation for the use of the land, or such sum as the use was reasonably worth. A mere averment in the ^statement of claim that the defendant continued in the occupation of the premises after a sheriff’s sale, and had been frequently requested to pay an amount mentioned per month for the use and occupation of the premises, and had refused to pay that sum, is insufficient.</p> <p>To entitle'a plaintiff to judgment for want of an affidavit of defense, or for want of a sufficient affidavit of defense, the statement of his demand under the Act of May 25,1887, P. L. 272, must be self-sustaining; that is to say, it must set forth in clear and precise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of this claim.</p>

<p>Brokers — Real estate brokers — Commissions—Contract.</p> <p>A real estate broker who sues for commissions must establish his employment, either by previous authority, or by acceptance of his agency, and the adoption of his acts. A mere volunteer is not entitled to commissions though he brings the parties together and is the efficient means of procuring the sale.</p> <p>Where the contract between the broker and his principal is in writing its construction is for the court. But where it is oral, and its terms are in dispute, it is erroneous to charge the jury that if the plaintiff brought the purchaser to the notice of the seller he is entitled to the commissions, and that that is the only question for them to determine, unless under the only reasonable interpretation of which the language of the parties is susceptible, in the light of the circumstances, that is all he was required to do to earn the commissions. What the parties said, and, subject to the foregoing qualification, what was meant by what they said, are questions for the jury.</p> <p>It is one thing for a real estate broker to hold out for a higher price in order to bring the prospective purchaser up to the price fixed by the prineipal, and quite another thing to insist that the property cannot be bought for less than the price which the agent has named, and that, too, in the face of the purchaser’s express offer to pay the price fixed by the owner. Possibly the former might be regarded as not prejudicial to the principal’s interest, but clearly the latter would be, in the absence of explanatory circumstances, or at least would have that tendency. Such agent is bound to act toward his principal with the utmost good faith, and exert his skill for his benefit.</p>

<p>Bankruptcy — Federal bankrupt act — Attachment execution — Dissolving attachment.</p> <p>A garnishee in an attachment execution against whom a judgment has been entered has no standing after both the plaintiff arid the defendant in the attachment have been adjudicated bankrupts, to move the court to dissolve the attachment, and strike off the judgment. Only the trustee in bankruptcy of the defendant can take such action.</p>

<p>Appeal, No. 64, Oct. T., 1905, by defendant, from order of O. P. Lebanon Co., June T., 1904, No. 269, discharging rule to stay execution in case of The Davis Coal & Coke Company v. Abram Hess and J. Lansing Mines.</p> <p>Rule to stay execution. Before Ehrgood, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court discharging rule to stay execution.</p>

<p>Nuisance — Obstruction of street — Bay window.</p> <p>A second-story bay window projected beyond the building line over and into the street of a city, and erected in disregard of notice by the proper municipal authorities, in the absence of any municipal ordinance upon the subject, constitutes a public nuisance per se: and the reasonableness or unreasonableness of such an obstruction, its necessity, convenience or ornament, are not matters to be submitted to the jury from which they may determine the fact of a public nuisance.</p> <p>In the absence of express municipal authorization, evidence tending to show the existence of other bay windows, extending over the building line, is not admissible as a defense to an indictment for maintaining a second-story bay window projecting into the public highway.</p>

<p>Justice of the peace — Judgment—Transcript—Amendment.</p> <p>A transcript of a judgment of a justice of the peace filed in the common pleas may be amended so as to make it correctly show what proceedings were had before the justice.</p> <p>Justice of the peace — Summons—Judgment—Act of March 20, 1810, sec. 2, 5 Sm. L. 161.</p> <p>A judgment of a justice of the peace based upon a summons issued on May 17, returnable May 22, is valid. The five days provided by the statute are to be computed by excluding the first day, that of the date of the summons, and including the last day, that of the return of the summons.</p> <p>Judgment — Partnership—Names of partners.</p> <p>A judgment is not void because it was entered against a partnership without setting forth the names of the individual partners.</p> <p>Where irregularities, not jurisdictional in character, in a judgment are allowed to stand for ten years unquestioned, it will be presumed that such irregularities have been waived.</p>

<p>Road law — Viewers—Report—Necessity for road — Proposition from private company to construct road.</p> <p>Where viewers in their report state that a proposed road is necessary for a public road and public use, it is not fatal to the report to conclude with the statement “that in consideration of the advantages which W (a lime company named), would derive from the laying out of said new road, and the vacation of the old road, said company has agreed and promised to build said new road and make it as good a road as the present old road now is, without any expense to the township.”</p> <p>The proposition was not an improper one to be made when the question of confirmation of the road came up for consideration in court, and it was certainly not a fatal error for the reviewers to put it in their report so that the court might consider it and take such action as it deemed necessary to compel the performance of the promise before finally confirming the report.</p>

<p>Insurance — Life insurance — Proofs of death as evidence.</p> <p>Where in an action on a policy of life insurance, the plaintiff offers the proofs of death for the sole purpose of showing that the condition precedent to the right to sue, namely, furnishing the company sufficient proof of death, had been performed, and the defendant offers no evidence, the latter cannót use the proofs of death as a basis for a motion for nonsuit, on the ground that the proofs of death contained unexplained and uncontradicted statements showing on the face of the papers a breach of the condition relating to the statements of the insured in his application.</p> <p>Where proofs of death are offered and admitted specially, they are not in evidence for any and every conceivable purpose for which such documents may be introduced in an action on the policy.</p> <p>It is within the power of the court to control the order of evidence by admitting the proofs of death for the single and exclusive purpose of determining whether they comply with the requirements of the policy, and postponing comparison of the statements contained in them with the statements contained in the application until they are offered for that purpose by the defendant.</p>

<p>Appeal, No. 118, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 742, on verdict for plaintiff in case of Ferdinand Rondinella, Guardian of Joseph Rizzo et al., Minors, v. Metropolitan Life Insurance Company.</p> <p>Judgment on verdict for plaintiff. Before Wiltbank, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>'Verdict and judgment for plaintiff for $1,455. Defendant appealed. See 18 Pa. Superior Ct. 613 and 24 Pa. Superior Ct. 293.</p> <p>Error assigned was in refusing binding instruction for defendant.</p>

<p>Appeal, No. 76, Oct. T., 1905, by-defendant, from order of C. P. Lancaster Co., Dec. T., 1898, No. 14, overruling exceptions to master’s report in case of Levi Sensenig v. County of Lancaster and the City of Lancaster.</p> <p>Exceptions to report of Henry Carpenter, Esq., Master.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in overruling exceptions to master’s report.</p>

<p>Appeal, No. 58, Oct. T., 1905, by plaintiff, from decree of O. P. No. 2, Phila. Co., June T., 1901, No. 803, dismissing libel in divorce in case of Agnes Blair Reed v. George Elkins Reed.</p> <p>Libel in divorce.</p> <p>The facts are stated in the opinion of Sulzberger, P. J., which was as follows :</p> <p>The libelant and respondent, both citizens of New York, were married in Brooklyn, N. Y., on February 22, 1900, and removed thence to South Amboy, N. J., where they lived about six months. Afterwards they lived together at Newburgh, New York, for over a year, and then at Brooklyn, N. Y., until November IT, 1902, when the libelant left her husband because of his ill-treatment of her.</p> <p>She came to Philadelphia in December, 1902. Her testimony is that when she left her husband she took the baby to her husband’s father at Baltimore, who had agreed to support the child, and, to use her own words, “ immediately came to Philadelphia as a nurse and companion to a Mrs. Dodge for seven months; we were at Delaware Water Gap for a while and I left Mrs. Dodge and came back to Philadelphia and I was nurse and companion for a Mrs. Murray, 100 West Coulter street, Germantown, for eight months until she died. I was also companion to a Mrs. Nassau, on North Broad street, Philadelphia. Since then I have no employment. I have not felt very well and I have been doing nothing but living upon my mother’s check which she had been sending me each week.”</p> <p>Her reasons for coming here she stated to be “ taking a position here and because I didn’t care to stay in Brooldyn, N. Y., where I was known and lived well before I was married, and I came here because I had friends here and I wanted a position and did not care to work where I was known by everybody. I have some cousins here and an aunt. I intend to make this my home. I have made this my permanent residence.”</p> <p>The libelant’s mother testified that her daughter wanted to get away from Brooklyn on account of friends and acquaintances, and she had relatives here in Germantown.</p> <p>The master found that the libelant has resided in Philadelphia since December of 1902, which is in effect a finding that she had resided here at least one whole year previous to the filing of the libel.</p> <p>In Lyon v. Lyon, 61 Legal Int. 410, 13 Pa. Dist. Rep. 623, we held that in order to obtain a divorce the libelant must have had a bona fide residence here; that is, a residence with domiciliary intention.</p> <p>The facts in the present case are strikingly similar to those in Lyon v. Lyon. Here, as there, both parties were strangers to this commonwealth, before and at the time of their marriage, and here, as there, the marital offense was committed in another state while both parties were citizens of that state.</p> <p>Moreover, the parties were also citizens of the state of New York, whose law allows absolute divorce on the one ground of adultery only, and grants merely a separation for the cause alleged on this libel.</p> <p>When persons desire an absolute divorce under such circumstances ' it is only natural to expect them to turn to a state where the laws are more favorable to their wishes than is the law of their own domicile, and it is quite conceivable that one of the parties would be willing to devote a year or more' of time to the accomplishment of a cherished purpose otherwise unattainable. This state of affairs must continue while two adjoining commonwealths have divorce laws of opposite character, the one of extreme stringency, the other of wide liberality.</p> <p>While it is 'our duty to give to our own citizens the benefit of our liberal divorce laws, the extension of their action to citizens of other states whose laws are dissimilar, would be a lack of comity toward our sister states, and hence we must be reasonably sure that the party seeking relief is really and in good faith a resident within this state, of such degree as to entitle her to the protection of our divorce law.</p> <p>The evidence in this case leaves us unsatisfied of the libel-ant’s right. Her mother lives in Brooklyn; her child in Baltimore. The motive for coming to Philadelphia, in preference to another place, is alleged to be the residence of an aunt and cousins here, while she gives as her motive for leaving Brooklyn the desire not to be working under the observation of friends who had known her when in better circumstances.</p> <p>The motive seems weak. Any young woman without property or business interests can readily go from one town or state to another, and the mere fact that she had a situation from time to time as a nurse and companion for a sick person, is but slight evidence even of actual residence. It is quite as consistent with residence in an adjoining state.</p> <p>Her mere declaration of the state of her mind regarding her intention to settle here permanently, without confirmatory evidence satisfactory to the court, is, as we held in Lyon v. Lyon, not conclusive. No witness living in Philadelphia was called to show any of the libelant’s movements, acts, or relations with other parties since December, 1902. Whether she visited anyone or received visits, whether she made acquaintance with anybody or acquired interests of any kind here, does not appear. Coming here in December, 1902, she may, for aught that appears in the evidence, be as mere a stranger to-day as she was on the day of her arrival.</p> <p>When we remember that the libelant and her husband parted with bad feeling in November, 1902; that she went to Philadelphia and he to Báltimore; that on May 6, 1904, the libel was filed and the subpoena issued; and that on May 12, 1904, the sheriff served the subpoena personally on the respondent at the southwest corner of Broad and Chestnut streets, in the city of Philadelphia, we have here the circumstances which, as we said in Lyon v. Lyon, “ cause us to scan the evidence closely in order to see whether the grounds of divorce, as set forth in the libel, are fully made out by the evidence.” -</p> <p>It may not be without significance, in this connection, that in the libel sworn to by the libelant on May 5, 1904, she averred that the respondent had during “ their ” residence at No. 1,742 Green street, in the city of Philadelphia, and also previous to such time, committed the marital offense complained of. In point of fact, as the evidence shows, the respondent has never lived at 1,742 Green street, nor anywhere else in the city of Philadelphia, either with the libelant or separate from her.</p> <p>We do not think that the bona fide residence of the libelant, within the meaning of our divorce law, has been established.</p> <p>The libel is dismissed at the costs of the libelant.</p> <p>Error assigned was decree dismissing the libel.</p>

<p>Appeal, No. 90, Oct. T., 1905, by defendant, from judgment of G. P. Delaware Co., March T., 1904, No. 206, on verdict for plaintiff in case of Ernest Lewis, by his next friend, Oliver Lewis, and Oliver Lewis v. Frank H. Fleer.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The court charged as follows :</p> <p>This is a suit by Ernest Lewis and his father, Oliver Lewis, against Frank H. Fleer to recover damages for injuries which he says he received by reason of a shot, rifle shot or gun shot, in which the bullet struck him in the thigh.</p> <p>[One of the great questions in the cause is: Did this defendant fire this shot? If he did, there is no dispute, serious dispute, that it struck this boy. And the other questions will be, one of how much will compensate him for the injury and whether or not Mr. Fleer shall be punished by punitive damages because of his wantonness in the use of this pistol or gun or rifle, whatever it was.] [1]</p> <p>[Take up the question first: From the evidence in this case, are you satisfied that the defendant fired this shot ? The two boys, — Lewis, who is the plaintiff, says that he did. And you have heard what he said about whether or not this was the defendant. Mr. Fleer denies that he fired the shot, and says that from some evidence which he has received from others, as I understand from the counsel, he was not there until eight o’clock.</p> <p>So that there is really a conflict of testimony between Mr. Fleer and the plaintiff, in which one says Mr. Fleer fired the shot and Mr. Fleer virtually says he did not. Both of these persons are interested in the outcome of this lawsuit and in passing upon the weight to be given to their evidence you ought to take that into consideration. And this is especially true where there is a direct contradiction between the two.</p> <p>The other lad — I have forgotten his name — Malin, appears to have no interest in this controversy at all. He says he was present. He says he knew Mr. Fleer, and that he saw him fire the shot. He says he had seen him at Lansdowne, Darby, at his home before, seen him since, seen him here, and knows that it was Mr. Fleer.</p> <p>So that is passing upon this question of whether or not it was Mr. Fleer, you have to pass upon the weight of the evidence. And the court says to you that you should take into consideration the fact in weighing the testimony of the defendant and the testimony of the boy, Lewis, that both are interested in the outcome of this suit.] [2]</p> <p>[Mr. Fleer says, if I remember, that he did not fire at all on that day. Is that a fact ?</p> <p>Mr. Robinson : That is right. He says he has no rifle.</p> <p>Mr. Smedley: He says he had a rifle.</p> <p>The Court: Which fired a — in which was used a ball of this size.</p> <p>So that in passing upon the question you will take into consideration all the evidence in the case, and you will bear in mind, too, that this firing took place in August. As I underderstand, Mr. Fleer’s attention was not called to it until the next April — eight months after it took place. And in passing upon this question as to whether or not'he did fire this shot on this day, because he admits he was accustomed to shooting, he says, a shotgun — this ball might have been shot from a shotgun — shooting a shotgun, using a shotgun, shooting at; I believe he did not say who, boys probably, and that his attention was not called to it until eight months afterwards — whether he is able to say, because he says his recollection of it — he did not recollect it himself, as I remember, but that his attention was called to it by someone else.] [3]</p> <p>[Now, that has a very important bearing upon this case. This statement informed Mr. Fleer that this shooting took place on August 13. And if he did have evidence beside his own that would contradict it, it was very important that they be here. And while there is no presumption against him on that account, yet it is a principle of law where one has within himself the power to produce evidence of a particular fact in his favor, the jury may infer that if it was produced that it would be unfavorable to him. That is as far as it goes. There is no presumption against him on that account.] [4]</p> <p>[So that in taking into consideration who is mistaken upon whether or not he did fire this shot on that day, take into consideration the fact that both the plaintiff and the defendant are interested, take into consideration the fact that one of the witnesses has no interest, and also that Mr. Fleer did not have his attention called to this until eight months afterwards, which would increase the difficulty of his recollection of the particular day.] [5]</p> <p>If you find that he did not fire this shot, that is the end of the plaintiff’s case, and you need go no further. If you find that he did then take up the next question : Did it strike this boy ? If it did, what will compensate him ? First: What will compensate his father? He is entitled to be paid the money that he has expended. It appears to be $25.00 or $30.00. I do not remember wbat the exact amount was from the evidence. And if you find for the plaintiff you may allow the father whatever he has expended for medicine and doctors’ bills. There does not appear to be any other expenditure, I believe.</p> <p>Then take up the next question : The lad is entitled to be compensated for his pain and suffering. He does not appear to be permanently injured. At least there is no evidence from which the jury could reasonably infer that he is. But he will be entitled, if you shall find in his favor, to be compensated for the pain and suffering that he has endured, discomfort. There is not very much evidence on that subject. Very little. But it will be for you to say what will compensate him for the pain and suffering, if you shall find in his favor, that he has endured. We can lay down to you no rule by which you can measure that. It will be for you to say what would reasonably, adequately compensate him under the circumstances for the pain and suffering which you shall find he endured.</p> <p>[You may also take up the next question which has been argued to you.</p> <p>Whether or not you shall award to this plaintiff anything by way of punishment of the defendant.</p> <p>There are two kinds of damages. One is what is called damages for compensation. It compensates the plaintiff for the loss he has sustained. And the other, the courts call it punitive damages, damages by way of punishment. That can only be awarded where the act is wantonly done.</p> <p>So that if you shall find that the plaintiff is entitled to recover, you may punish the defendant for his wantonness if you find that he did wantonly injure this young man.</p> <p>And in passing upon that question you will take into consideration that this was a deadly weapon, if he did shoot, and that he fired twice. And both boys, one at least, says he aimed directly at the boy he shot, that was struck. So that it does have in it the element of wantonness. Because it is a crime in Pennsylvania to point a weapon, h loaded gun, at another.</p> <p>So that in passing upon this question, first take up the question of whether or not this defendant fired this shot. The burden is on the plaintiff. He must satisfy you that he did. If from all the evidence in the case you are satisfied that he did not, that is the end' of it. If you are satisfied that he did, then compensate the father first for the money he has expended. Next, the boy for the damages he has suffered. And if you find from the evidence this shot was wantonly fired, then you may add to your verdict by way of punishment whatever you think — if you find it was wantonly fired — is necessary to punish him for his wanton act.] [6]</p> <p>The plaintiff has asked us to say to you:</p> <p>1. The plaintiff asks the learned court to charge that if the jury finds that the shooting in this case was wanton or vindictive or malicious and cruel then the verdict should be for such a sum as would be a proper punishment for the unlawful and cruel act. Answer: That is affirmed. That is what we have said to you in the general charge. [7]</p> <p>Verdict and judgment for Ernest Lewis for $400 and Oliver Lewis $27.50.</p>

<p>Executors and administrators — Decedents’ estates — Power of sale — Power to confess judgment — Judgment.</p> <p>An executrix who is given a life interest in real estate, and an unrestricted power of sale of all the real estate of a decedent, has no power to bind the real estate by the confession of a judgment, and particularly for a claim, which has, by lapse of time, lost its statutory lien upon the real estate.</p>

<p>Malicious■ prosecution — Grounds for arrest — Justification—Probable cause.</p> <p>An arrest for a crime or misdemeanor can only be justified when such a state of facts was known at the time the prosecution was undertaken, as would induce a person of ordinary caution and prudence to entertain an honest belief and strong suspicion of guilt. There must be such an appearance of guilt arising from facts and circumstances as to produce belief. This appearance may arise from facts misapprehended or misunderstood, but it must be of such a character as moves the mind of a person of ordinary prudence to entertain the belief of guilt.</p> <p>A prosecutor should have information with such directness and certainty as to gain credit with prudent men of the existence and susceptibility of proof of such facts as show guilt, or which on proper advice he supposed would constitute guilt.</p> <p>The representations of a third party as to matters not tending to establish the guilt of the accused, do not amount, without further investigation or inquiry, to probable cause.</p> <p>A boy thirteen years old was employed to assist the driver in a department store in delivering packages on which money was to be collected. At the end of a particular day the driver claimed “something like $53.60” from the boy, who accounted for “$43.00 and something" and said that was all he got. The driver reported the alleged shortage to his employers. The driver was not able to state within one hundred pieces the number delivered during the day. An agent of the owners of the store swore out a warrant, and the boy was arrested towards night, taken to the store where he was detained for an hour and three-quarters, and there examined, and was only released when his mother appeared and insisted on his discharge. No effort was made to take him before a magistrate for a hearing. Held, that the case was for the jury, and that a verdict and judgment for $150 should be sustained.</p>

<p>Appeal, No. 107, Oct. T., 1905, by defendant, from judgment of C. P. Nó. 5, Phila. Co., Dec. T., 1902, No. 672, on verdict for plaintiff in case of Henrietta Greenan, by her father and next friend, Peter F. Greenan, and Peter F. Greenan v. Frederick W. Eggeling.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Plaintiff presented the following point:</p> <p>4. The law imposes upon the master the duty of giving proper instructions to a young and inexperienced servant employed about a dangerous machine, and thesemust.be sufficient to enable a person of her youth and inexperience to perform her duty with safety. Answer: Affirmed. [2]</p> <p>Defendant presented these points :</p> <p>2. That the plaintiff, having worked at the mangle for almost a month prior to the accident, should have known the dangers to which she was exposed and should have exercised care, and if she did not do so she was guilty of contributory negligence and cannot recover. Answer: Refused. [8]</p> <p>6. The plaintiff alleged that the machine jumped and jerked, and that she had made complaint of the said jumping and jerking, and afterwards continued to work upon the machine. She therefore had knowledge of the alleged defect, and was required to exercise more than the ordinary degree of care, and if she did not exercise such care she was guilty of contributory negligence and cannot recover. Answer : Refused. [4]</p> <p>1. Under all the evidence in the case the verdict should be for the defendant. Answer : Refused. [6]</p> <p>Verdict and judgment for Henrietta Greenan for $1,500 and for Peter Greenan for $414. Defendant appealed.</p> <p>Errors assigned were (2,-4, 6) above instructions, quoting them ; (1) in admitting the testimony of A. K. Potter given at a previous trial; and (5) that the charge as a whole was inadequate.</p>

<p>Appeal, No. 92, Oct. T., 1905, by defendant, from judgment of G. P. Schuylkill Co., July T., 1904, No. 301, on verdict for plaintiff in case of Peter Wertz, in his own right, and Anna Wertz, by her next friend and father, Peter W ertz, v. The Borough of Girard ville.</p> <p>Trespass to recover damages for personal injuries. Before Shay, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented these points :</p> <p>2. If the jury believe that the cause of the accident was by reason of Anna Wertz turning from a path in the center of the pavement to go into the street, and stepping on a heap covered by snow, which she saw, and slipping from off the heap, the verdict must be for the defendant. Answer: This we affirm, if you find that the hole in the pavement, under the instructions that we before gave you, was not the primary cause of her injury- [1]</p> <p>3. If the jury believe that the plaintiff, Anna Wertz, in departing and turning from a safe course along the center of the pavement, knowingly stepped upon a heap covered by snow, and thereby contributed to the accident by going from a safe place to what proved a dangerous place, the verdict must be for the defendant. Answer: This we refuse. [2]</p> <p>7. That under all the evidence the verdict must be for the defendant. Answer: This we refuse, leaving it for you to say, gentlemen, 'of the jury, under the instructions we have given you, what your verdict shall be. [3]</p> <p>Verdict and judgment for Peter Wertz for $30.00, and for Anna Wertz for $162.08. Defendant appealed.</p> <p>Errors assigned were above instructions, quoting them.</p>

<p>Contract — Building contract — Breach.</p> <p>A person who enters into a contract with a builder, cannot avoid liability on the contract, because he was disappointed in securing the money which was to cover the contract price, and this -is the case although the builder may have had knowledge of the plan in accordance with which the land, and a part of the money for the erection of the building, was to be secured.</p> <p>Practice, C. P. — Trial hy court without a jury — Findings of fact.</p> <p>The findings of fact of a judge who by agreement tries a case without a jury, are no more reviewable on appeal than is the verdict of a jury, and an appellate court will only look beyond the findings of fact when the assignment of error is such as could be heard if the trial had been before a jury according to the course of the common law.</p> <p>Contract — Reducing contract to writing.</p> <p>Where all the terms of a contract are agreed upon and its reduction to writing is provided for, merely for facility of proof as to its terms, such provision for a contract in writing is not inconsistent with a present contract, and this is especially true in a case where the things to be done are provided for in writt'en plans and specifications, and where there is evidence of the intention of the parties to proceed to work at once under the oral contract.</p> <p>■Contract — Breach—Loss of profits — Damages.</p> <p>Profits or advantages which would result from a fulfillment of a contract, may, if the contract is broken, be compensated in damages where they are the direct and immediate fruits of the contract.</p>

<p>Promissory notes — Statute of limitations — Indorsement as tolling the statute —Husband and wife — Decedents’ estates.</p> <p>The husband of an intestate payee of a promissory note, although not administrator of the intestate, has such an interest in the note that indorsement by him of the payment of interest upon the note will toll the running of the statute</p> <p>Where it is sought to toll the running of the statute of limitations against a promissory note by means of indorsements of the payment of interest on the note, it must be shown that the indorsements were made at the dates at which they purported to have been made respectively.</p> <p>The principle upon which the indorsement of a payment on a promissory note by the holder thereof is admissible to toll the running of the statute of limitations is that it is against the interest of the party making it, but this is true only -s¿hen the indorsement is made prior to the date at which the statute becomes a bar, and in order, therefore, to give it the effect that .it should have, it is necessary t'o show that the indorsement was made at the time at which it purports to have been made, otherwise, if made after the statute had become a bar, although dated before, it might be a merely self-serving declaration.</p>

<p>Assignment — Equitable assignment — Contract—Performance.</p> <p>Where a contractor directs in writing the owner to pay to a bank a sum named, and charge it to the contractor’s account on the contract, the writing is, for the purpose of this case, assumed to be an equitable assignment, but not decided that it is such; and if a suit is subsequently brought on the paper in the name of the contractor to the use of the bank, no recovery can be had by the plaintiff unless it is shown that the contractor fully complied with the contract.</p>

<p>Appeal, No. 26, Oct. T., 1905, by plaintiff, from judgment of C. P. Bucks Co., Sept. T., 1904, No. 57, discharging rule for judgment for want of a sufficient affidavit of defense in case of The D. B. Martin Company v. Hetty A. Williams.</p> <p>Assumpsit for goods sold and delivered. Before Stout, P. J.</p> <p>The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was order discharging the rule for judgment.</p>

<p>Appeal, No. 54, Oct. T., 1905, by defendant, from judgment of G. P. Chester Co., Oct. T., 1901, No. 17, on verdict for plaintiff in case of First National Bank of Pittsburg, Kansas, v. Hoopes Darlington.</p> <p>Assumpsit against the stockholders of a foreign corporation. Before Butler, J.</p> <p>The facts are stated in the opinion of the Superior Court and in the report in 25 Pa. Superior Ct. 438.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,418.82. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 89, Oct. T., 1905, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1902, No. 565, on verdict for plaintiff in case of Lelia E. Taylor v. Canton Township.</p> <p>Trespass to recover damages for injuries to land. Before Fanning, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $400. Defendant appealed.</p> <p>Errors assigned were (1-27) various rulings on evidence and instructions sufficiently set forth in the opinion of the Superior Court.</p>

<p>Criminal law — Public officers — Demand for payment of public funds— Statute of limitations — Act of March 31, 1860, P. L. 382.</p> <p>A public officer cannot be convicted of failing to pay over public moneys on proper demand as provided by the Act of March 31, 1860, sec. 65, P. L. 382, until an actual and not a constructive demand has been made by the proper officer or person authorized to demand and receive the money. Until such demand is made no offense has been committed. The statute of limitations began to run, therefore, only from the date of the demand.</p> <p>Criminal law — Pleading—Former acquittal — Public officers.</p> <p>On a demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to he entitled thereto. If the plea is former acquittal, the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom.</p> <p>The true test to ascertain whether the plea autrefois acquit be a good bar, is whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction on'the first.</p> <p>Where a public officer has been convicted of failing to pay over public moneys after demand made upon him, and the ^conviction has been reversed by the Supreme Court on the ground that no proper demand was or could have been made upon the defendant pending the determination in a civil proceeding of his right to hold the money, such a reversal cannot be pleaded as a former acquittal to a subsequent indictment for failing to pay over moneys, where it appears that the civil proceedings were concluded against the defendant, and that a demand was made thereafter by the proper officer.</p>

<p>Railroads — Right of way — Adverse possession — Land purchased.</p> <p>No title can. be acquired by adverse possession, however long continued, to land purchased by a railroad company and used by the company for the construction of switches adjacent to and diverging from its main track.</p> <p>A railroad is a public highway, and the land which it covers whether acquired by the exercise of eminent domain or by purchase, is not the subject of adverse possession, and is immune from the statute.</p> <p>Appeals — Assignments of error — Points.</p> <p>A single assignment of error embracing several points violates Rule XIV.</p> <p>An assignment of error to an instruction which does not quote the instruction totidem verbis violates Rule XV.</p>

<p>Appeal, No. 44, Jan. T., 1906, by plaintiff, from judgment of Q. S. Wyoming Co., Oct. T., 1905, No. 31, on appeal from justice of the peace in case of Commonwealth v. W. R. Bercaw.</p> <p>Appeal from summary conviction before a justice of the peace.</p> <p>Terry, P. J., filed the following opinion:</p> <p>This is an appeal from a summary conviction under the Act of May 29, 1901, P. L. 802.</p> <p>The defendant is charged with the violation of the provisions of the second section thereof, which reads as follows :</p> <p>“ That from and after the passage of this act it shall be unlawful to fish for game fish in any of the waters of this commonwealth in any manner except with rod, hook and line, or with hand line having not more' than three hooks; or for food fish with any device not specifically permitted in this act. Any person violating any of the provisions of this section shall, on conviction thereof, as provided in section thirty-eight of this act, be subject to a fine of twenty-five dollars.”</p> <p>The case came before the court on appeal, as stated, and was heard in accordance with the practice in cases of summary conviction, when it appeared that the defendant was arrested by a special fish warden for fishing with rod, hook and line, and with hand lines, in the Susquehanna river. The justice fined the defendant $25.00. The evidence taken before the court clearly shows that he was fishing with a rod, hook and line, and also with one hand line with two hooks thereon.</p> <p>It was claimed by the commonwealth that he had two hand lines in use, but the weight of the evidence is against such contention. Therefore we find as a fact that he was fishing with but one hand line.</p> <p>The only question before us is this: Is it unlawful for a person to fish with a rod, hook and line, and a hand line having not more than three hooks, at the same time ?</p> <p>The section referred to makes all manner of fishing for game fish unlawful except two specified modes. Those two methods are legalized. The legislature has said to the individual: “You may fish for game fish in two ways, first, with rod, hook and line ; second, with hand line haying not more than three hooks —all other modes are prohibited.” This, in our opinion, does not mean to confine the person to one or the other of these methods. If the word “ and ” had been substituted for “ or,”it could have been contended with equal plausibility, that both modes were meant to be employed at the same time. To escape this construction, the word “ or ” may have been used. However this may be, we think the section under consideration simply distinguishes the unlawful from the lawful modes of fishing, and that, if a person avoids the former, he is not required to make a choice of the latter.</p> <p>If the meaning of this provision or the law is not clear, we must apply the rule of interpretation governing in such-cases.</p> <p>Penal statutes must be construed in case of doubtful meaning, in favor of the accused, and it is a reasonable expectation that when the legislature “ intends the infliction of suffering, or an encroachment upon natural liberty or rights, or the grant of exceptional exemptions, powers and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in cloudy and dark words only; for an offense cannot be created or inferred by vague implications, — but will manifest it with reasonable clearness : ” Endlich on the Interpretation of Statutes, p. 452. If the legislative intent had been to prohibit fishing with a rod, hook and line and a hand line at the sanie time, we think it would have been definitely expressed.</p> <p>In the absence of such expression, we think it was not intended.</p> <p>Therefore, the defendant has not been guilty of a violation of the act under which he was arrested, and accordingly, he is now discharged. The county is directed to pay the costs of prosecution.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 264, April T., 1905, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1908, No. 671, on verdict for plaintiff in case of Elmer E. Winkle v. Frederick Meany.</p> <p>Replevin for goods seized for rent. Before Galbreath, P. J.</p> <p>From the record it appeared that A. C. Bruce died intestate, leaving to survive him a brother and three sisters as his heirs. The heirs leased a farm which had belonged to the intestate to E. E. Winkle, the plaintiff, for one year with a right to end the term on ninety days’ notice. The administrator of Bruce obtained an order from the orphans’ court to sell the land for the payment of debts. The sale was held on July 14, 1903. On the day of the sale the administrator agreed with the tenant that the latter should be relieved of payment of rent if he would surrender the premises on or befoi'e November 1, 1903. The heirs subsequently assigned the lease to Frederick Meany, the purchaser at the sale. Winkle moved from the farm on November 2, 1903. Meany would not permit him to remove certain goods, and subsequently Winkle brought this suit.</p> <p>Defendant presented these points :</p> <p>1. Under all the evidence the verdict should be for the defendant. Answer: That, gentlemen, we cannot affirm, but leave that to be found by the jury. [1]</p> <p>2. If the court refuses to so charge then, that under the terms of the lease in question the lessors had the right to remove the, lessee at any time, upon giving said lessee ninety days’ notice. Answer : As we said to you in the charge it is unnecessary the court should construe that particular clause in this agreement, for the reason it was not called into effect. It was not called into operation, no notice was given, and therefore it is unnecessary and idle to speculate as to what might have been the result if notice had been given. [2]</p> <p>3. If the jury find from the evidence that the plaintiff, Elmer Winkle, understood that the terms of his agreement with James E. Smith, administrator, were that he, Winkle, was to give up possession of the farm on November 1, 1903, and if he did so that the rent due October 1 would be canceled, and that the administrator understood that the terms were that he was to leave October 1, there would be no assent of minds or agreement of the parties, the rent due October 1 would not be released and the verdict should be for the defendant.</p> <p>In answer to that point, gentlemen, we simply say if no agreement was entered into then, of course, the verdict would have to be for the defendant. [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1 — 3) above instructions, quoting them.</p>

<p>Appeal, No. 12, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 891, on verdict for plaintiff in case of D. E. Frantz v. The Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for wrongful eviction.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for §1,220.75. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 14, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., Oct. T., 1904, No. 1,099, for plaintiff on case stated in suit of John Newton v. Luzerne County.</p> <p>Case stated to determine liability for fees. Before Halsey, J.</p> <p>The court entered judgment for plaintiff on the case stated.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 33, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., March T., 1898, No. 231, on verdict for plaintiff in case of George F. Lee and Frank J. Scouton, copartners, trading as Lee & Scouton, v. David Williams and Johanna Owens or Susan Owens, owners or reputed owners, and J. W. Zimmerman and J. E. Zimmerman, contractors or builders.</p> <p>Scire facias sur mechanic’s lien. Before Wheaton, J.</p> <p>The facts appear by the opinion of the Superior Court, and by the report in 26 Pa. Superior Ct. 405.</p> <p>Verdict and judgment for plaintiff for $564.56. Defendant appealed.</p> <p>Errors assigned were various portions of charge quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 34, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., March T., 1898, No. 231 1/2, on verdict for plaintiff in case of George F. Lee and Frank J. Scouton, copartners, trading as Lee & Scouton, v. David Williams and Johanna Owens or Susan Owens, owners or reputed owners, and J. W. Zimmerman and J. E. Zimmerman, contractors or builders.</p>

<p>Equity — Jurisdiction—Ejectment bill — Title to land.</p> <p>A court of equity has ho jurisdiction over a bill which involves the title to real estate, and the determination of which requires the construction of legal conveyances formally and solemnly executed as muniments of title, the ascertainment from contradictory testimony of the facts as to notice and possession, and the application of proper legal principles to them. In such a case either party has the constitutional right to have his cause tried before a jury in an action of trespass or ejectment, and may not be deprived of it. Averments in the bill as to multiplicity of actions and irreparable injury are no basis for jurisdiction of equity, if the evidence in support of such averments fail.</p>

<p>Execution — Exemption—Forfeited recognisance — Act of April 9, 1849, P. L. 533.</p> <p>The exemption Act of April 9, 1849, P. L. 533, does not include an execution issued on a forfeited recognizance, and this is the case although the judgment may have been obtained in an action of assumpsit on the bond.</p>

<p>Fences — Equity—Dismissal of bill — Clean hands.</p> <p>A bill in equity filed for an injunction and to charge the defendant with the costs of a line fence is properly dismissed where it is shown that the plaintiff destroyed or instigated the destruction of two fences sufficient for all practical purposes, with the only possible motive of erecting another in order to charge the defendant with the cost thereof.</p>

<p>Evidence — Husband, and wife — Witness—Separate property.</p> <p>In an action brought to recover damages for an alleged tortious conversion of personal property, the mere fact that the plaintiff admits in his preliminary examination that both he and his wife, who is not a party to the suit, claim the property in dispute, does not disqualify him to testify on his own behalf and in support of his claim of exclusive ownership of the goods.</p> <p>In such a case the plaintiff does not become disqualified because the defendant subsequently and in the development of his own case, testifies that he took the chattels by direction of the plaintiff’s wife who claimed to be the owner of them. The plaintiff should be permitted to testify subject to the power of the court to take such action regarding his testimony as the facts subsequently developed in the trial might warrant.</p> <p>In the enactment of sec. 4 of the Act of June 8, 1893, P. L. 344, the legislature did not have in view a proceeding in which only husband or wife was a party and in which no judgment or decree could be entered that could be pleaded as res adjudicata in a subsequent controversy between them involving the same subject-matter.</p>

<p>Justice of the peace — Transcript—Amendment.</p> <p>A transcript of a justice of the peace after an. appeal filed, may be amended so as to bring upon the record of the common pleas a full and true transcript of the proceedings before the justice.</p> <p>Practice, C. P. — Statement—Affidavit of defense — Pleading.</p> <p>A statement of claim which consists of nothing more than an unintelligible series of figures, and which contains no intimation as to the character of goods furnished, does not impose upon the defendant the necessity of filing a.n affidavit of defense.</p>

<p>Appeal, No. 17, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., May T., 1903, No. 391, on verdict for plaintiff in case of Stanley Druzepski v. The People’s Street Railway Company of Nanticoke & Newport.</p> <p>Trespass to recover damages for personal injuries. Before Lynch, P. J.</p> <p>At the trial it appeared that plaintiff was injured late in the evening of March 25, 1903, while riding as a passenger on one of defendant’s cars. Plaintiff’s testimony tended to show that he took his seat inside the car, but was subsequently directed and forcibly urged by tbe conductor to go out on tbe rear platform. While standing on this platform the front wheels of the car left the track, and defendant in some way was injured.</p> <p>The court charged in part as follows :</p> <p>The plaintiff and his witnesses contend he did take his seat inside of the car, he had in his hand an unlighted cigar, the conductor ordered him, if he wished to smoke, to go out, or ordered him to go out, and put his hand upon plaintiff’s shoulder, and directed him to the platform of the car, and, about the time the door was opened and he reached the platform, the front wheels of the car left the track and he was struck by the brake or thrown against something.</p> <p>The defendant’s contention is that the man was not at any time inside the car; he boarded the platform and remained there; the conductor had directed him and others to go inside; they did not do so; he voluntarily stood upon the platform at the time the car was derailed, and even there was not injured, and this, as counsel called it, is a “ fake case,” that is, a case without foundation in fact.</p> <p>[If the plaintiff took a seat in the car, and was ordered out upon the platform by the conductor, and in obedience to such order went, and immediately upon reaching there the car was derailed and he was injured without fault on his part, he is entitled to recover such damages as you think are fair and right under the rules which I shall lay down.] [1]</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $1,180. Defendant appealed.</p> <p>JErrors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 43, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., June T., 1905, No. 228, for plaintiff on case stated in suit of Sarah Conniff, Administratrix of Michael Conniff, deceased, v. Luzerne Co.</p> <p>Case stated to determine liability for costs. Before Ferris, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered judgment for plaintiff on the case stated.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Negligence — Master and servant — Safe place for employment — ■Evidence.</p> <p>In an action by a boy seventeen years old against a foundry company, Ms employer, to recover damages for personal injuries, the case is for the jury, and a judgment and verdict for plaintiff will be sustained, where the evidence tends to show that the plaintiff was injured before daylight on a Monday morning by a heavy door falling upon Mm; that on the previous Friday the door had become detached from its fastenings and had been temporarily placed in an upright position under the direction of the foreman, and with the approval of the president of the defendant company; that the position in which the door was left was dangerous, and it was liable to be toppled over by anyone attempting to open or close it; that the plaintiff was unaware of its condition, and in attempting to shut it caused the door to fall with the resulting injuries to himself.</p>

<p>Husband and wife — Tenant by curtesy — Estoppel—Will.</p> <p>Where a wife devises her real estate to two persons for their lives and then over, and the husband permits the life tenants to enjoy the estate during their lives for a period of seven and one-half years, and does nothing to mislead or injure the remainder-man, he may after the death of the life tenants assert his right to the real estate as tenant by the curtesy.</p>

<p>Will — Legacies—Wearing apparel — Jewelry.</p> <p>Where a testatrix by her will distributes various articles of personal property and her wearing apparel among friends and gives the residue of her estate to her next of lcin, the words “wearing apparel” will not be construed to include jewelry.</p>

<p>Carriers — Common carriers — Carriers of live stock — Special contract— Pleadings — Evidence—Allegata and probata.</p> <p>Where a shipper contracts with the initial carrier for the transportation of a carload of horses at a special rate and subject to certain limitations as to the liability of the carrier, and this contract covers the transportation of the horses over all the intervening lines to the point of destination, and the shipper, after a loss sustained, brings an action against a connecting carrier to recover on the common-law liability of such carrier, and the existence of the special contract is made to appear in the development of the plaintiff’s case, the court commits no error in directing a compulsory nonsuit against the plaintiff. In such a case the allegata and probata do not accord, and the whole foundation of the action fails.</p>

<p>Appeal, No. 201, Oct. T., 1905, by defendant, from judgment of C. P. Montgomery Co., March T., 1904, No. 20, on verdict for plaintiff in case of Josephine Myniek v. Richard W. Bickings.</p> <p>Scire facias sur mortgage. Before Weand, J.</p> <p>At the trial the court charged as follows :</p> <p>The mere fact that an attorney is employed to invest money on mortgage does not invest him with the right to receive the principal of that mortgage, unless he has some authority from the mortgagee to do so, either express or implied. Now, when this .man, Mr. Bickings, went to Mr. Jones to pay off part of this mortgage, it was his duty to inquire of Mr. Jones whether he had authority to receive it; but nothing of. that kind took place. He relied on the fact that he had received the mortgage through Mr. J ones. Mr. J ones did not have the mortgage nor the bond with him. If he had, and had produced them, that would have been evidence that he had the right to receive the money; but nothing of that kind took place. Mr. Bickings paid $500 on account, and afterwards only paid Mr. Jones interest on the balance; but Mr. Jones paid Miss Myniek interest on the whole amount, and, therefore, she was under the belief, all the time, that the whole amount was still due. It just simply amounts to this : That Mr. Jones was false to his duty. He received this money, he never paid it over to Miss Mynick, and there is no evidence that he had any right to receive it. Now, this may be unfortunate for this poor man; but, when a loss occurs, the person who occasioned the loss must bear it, and, through his ignorance, probably, he neglected to do his duty, and it is his misfortune that he may have to pay the money the second time. It is my duty, however, to instruct you, under the law, that you are to render a verdict in favor of the plaintiff for the sum of $634.32, being the amount now due, after deducting the $415.10 which was paid into court, and you will so render the verdict in that form.</p> <p>Verdict and judgment for plaintiff for $634.32. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 62, Oct. T., 1905, by defendant, from judgment of C. P. Montgomery Co., March T., 1904, No. 82, on verdict for plaintiff in case of Emma Roberts v. Henry G. Lentz, Surviving Executor of Benjamin Lentz, deceased.</p> <p>Scire facias sur mortgage. Before Swartz, P. J.</p>

<p>Appeal, No. 214, Oct. T., 1905, by plaintiff, from judgment of O. P. Montgomery Co., March T., 1904,No. 81, for defendant on case tried by the court without a-jury" in suit, of Norristown Trust Company, administrator dLb.' n. c. t. a. of Sarah Burns, deceased, et al. v. Henry G. Lentz, executor of Benjamin Lentz, deceased, real owner and tenant in possession.</p> <p>Scire facias sur judgment.</p> <p>The case was tried before Swartz, P. J., without a jury under the Act of April 22, 1874, P. L. 109.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 224, Oct. T., 1905, by-plaintiff, from order of C. P. Northampton Co., June T., 1905, No. 39, overruling demurrer to return to writ of alternative mandamus in case of Robert J. Lilly v. Edward J. Krause, II. J. Myers et al., members of the town council of the borough of Bethlehem.</p> <p>Petition for alternative mandamus. Before Scott, J.</p> <p>The facts are stated in the opinion of the Superior Court;</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 83, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1902, No. 1,800, on verdict for plaintiff in case of George Keile v. Samuel M. Kahn.</p> <p>Trespass to recover damages for injuries to a horse. Before Atjdenried, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $125. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Sheriffs’ sales — Jurisdiction, of court — Setting aside sale — Acts of April 10, 1849, P. L. 597, and March 10, 1858, P. L. 91.</p> <p>The delivery by the sheriff to a purchaser at a sheriff’s sale of a paper stating that the purchaser had bought at the sale certain stock of a corporation at a price named, will not deprive the court of the jurisdiction which it has under the Acts of April 10, 1849, P. L. 597, and March 10, 1858, P. L. 91, to examine into the regularity of the sale, where it appears that the application to have the sale set aside was made before the return day of the writ, and within fifteen days after the sale, that neither transfer of the stock on the books of the company nor delivery of the certificate had taken place, and that there was- nothing in the special circumstances of the case which made the omission to move earlier prejudicial to the rights of any of the parties concerned.</p> <p>Where the evidence shows that the price brought at the sheriff’s sale was inadequate, that the sheriff had posted only two or three handbills instead of six as the law required, and that the defendant had no actual knowledge that a day and hour had been set for the sale, and that he was not present at the sale, the court is warranted in setting the sale aside.</p> <p>The matter of setting, aside sheriffs’ sales belongs to the class in which the courts exercise discretionary power. The appellate court will not presume that the court below acted arbitrarily and without proper proof of the facts upon which to base its action and will not reverse such action, whether setting aside or refusing to set aside the sale, unless there be manifest abuse of discretion.</p>

<p>Appeals — Quashing appeals — Justice of the peace.</p> <p>The Superior Court will quash an appeal from an order of common pleas quashing a certiorari to a judgment of a justice of the peace, where it appears that the justice had jurisdiction of the cause of action, and that the defendant had been served, but had neglected to take advantage at the proper time, and in the proper form, of the method provided by law for the correction of the irregularities in the proceedings before the justice of which he complained.</p>

<p>Appeal, No. 45, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 1,071, on verdict for plaintiff in case of William Weida v. Hanover Township.</p> <p>Trespass to recover damages for death of a child two and one-half years old. Before Lynch, J.</p> <p>The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,033.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 49, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1905, No. 833, sustaining demurrer to return* to writ of alternative mandamus in ease of Joseph Collett, by his father and next friend, Robert Collett, v. E. H. Scott.</p> <p>Demurrer to return to writ of alternative mandamus.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in refusing mandamus.</p>

<p>Insurance — Fire insurance — Pleading—Statement of claim.</p> <p>Where in an action on a policy of fire insurance, covering a building and furniture, the plaintiff in his statement of claim avers the right to recover the whole amount of the insurance both that on the building and that on the furniture, without setting forth specifically the loss upon the building and that upon the furniture, the statement may be amended so as to show the amount of the loss upon the two classes of property. In such a case the amendment introduces no new cause of action.</p> <p>Insurance — Fire insurance — Sole and unconditional ownership.</p> <p>Where a policy of fire insurance provides that the contract shall be void if any change shall take place in the interest, title or possession of the subject of the insurance, a conveyance by the insured to a third person followed by a conveyance by such person to the insured’s wife, will constitute a violation of the covenant; and this is the case although the insured and his wife and the person through whom the conveyance was made to the wife unite in testifying that the deed by the insured was the result of a fraudulent conspiracy between the insured’s wife and such third person.</p> <p>In the above case it appeared that the deed from the insured was executed during a short interval between the expiration of the lien of a judgment and the revival of the same. Held, that the record of the judgment was admissible in evidence to show a motive for the conveyance to the insured’s wife, and to contradict the testimony as to the conspiracy. - •</p>

<p>Negligence — Evidence—Inhalation of gas — Opinion of physicians — Expert.</p> <p>In an action to recover damages for the death of a child two reputable physicians of long practice and high standing, each of whom saw, and carefully examined the child, one at the beginning, the other near the fatal termination of its sickness, and each of whom was apprised of the conditions under which the sickness began, gave it as their deliberate opinion and judgment that the child died from the effects of an inhalation of gas. Held', that such testimony could not be rejected nor ignored.</p> <p>In an action against a gas company to recover damages for the death of an infant, it appeared that the employees of the defendant went into plaintiff’s cellar to make some repairs in the gas service, and while so engaged permitted the escape of a volume of gas which found its way into an upper room, where the infant inhaled it. The testimony shows that the mother of the child knew that the men were at work in the cellar, and was herself almost overcome by the gas. In attempting to save herself from being entirely overcome she did not close the doors. Held, that the question of the defendant’s negligence and the mother’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 30, Jan. T., 1906, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1903, No. 137, for defendant non obstante veredicto in case of Thomas W. Kay v. Angus C. Gray et al.</p> <p>Scire facias sur mortgage. Before Edwards, P. J.</p> <p>See Cameron v. Gray, 202 Pa. 566, and Kay v. Gray, 24 Pa. Superior Ct. 536.</p> <p>At the trial the following offer was made:</p> <p>By Judge Vosbttrg: The counsel for the plaintiff offers to prove by Emma Gray, Alderman Baker and by other witnesses, that Angus Cameron, the grantor in the deed to Angus C. Gray, which has been offered in evidence, was living in September, 1899, in the city of Carbondale, in the home of Mrs. Scurry; that he there executed and acknowledged before Alderman Baker the deed to Angus C. Gray which has been offered in evidence here, and that he took no steps to secure it by placing it in any safe deposit vault or safe, but that he left it in a satchel in a closet off the sick room where he then lay, and that this was the only precaution he took in order to preserve the same from being taken and recorded, and that several people, including domestics, had access to the house.</p> <p>This for the purpose of showing that Angus Cameron was negligent in the care and custody of the deed after having executed and acknowledged the same, and that he did not take proper steps and precautions or such steps and precautions as a man of ordinary prudence would have taken, to prevent the delivery of the deed or its passing into the hands of any person without his consent. We further propose to follow this by showing by W. W. Baylor, a member of this bar, that at the request of Thomas W. Kay, the plaintiff, he examined the title to property described in the mortgage, and that he found the deed from Angus Cameron to Angus C. Gray upon the record; that he found no incumbrance; that he found the title to be perfect; that he so reported to Dr. Kay, the plaintiff in this case, and that Dr. Kay thereupon paid out $1,000 and took the mortgage in suit, and recorded it. This for the purpose of showing that there was no negligence upon the part of the plaintiff, but that he is a bona fide mortgagee for value without notice of any equities or any defects in the delivery of the deed.</p> <p>Mr. Daviss: We object to this evidence as incompetent and immaterial.</p> <p>Mr. Lathrope: We further object to the offer on the ground that the plaintiff has had his day in court, and that the matter is res adjudicata.</p> <p>The Court: I will sustain the objection.</p> <p>Exception noted for plaintiff at whose request a bill is sealed. [3]</p> <p>Verdict for plaintiff for $1,250, subject to question of law reserved.</p> <p>On a rule for judgment for defendant non obstante veredicto, Edwards, P. J., filed the following opinion:</p> <p>The jury in this case found a verdict in favor of the plaintiff for the sum of $1,258, subject to a question of law reserved by the court. The reservation was in the following form:</p> <p>“ The point reserved relates to the effect of the decree in equity dated August 6, 1901, entered in No. 5, January Term, 1900. If the court be of opinion that said decree is conclusive as to the validity or invalidity of the mortgage offered in evidence in this case, then judgment to be entered for the defendant, notwithstanding the verdict; if the court holds otherwise as to the effect of said decree, the verdict is to stand.”</p> <p>We are of the opinion that the reservation is specific enough to cover the legal question involved in this case. The only criticism we make as to the form is that the word “ validity ” might have well been left out; but this is a mere technicality. The criticism does not reflect upon the counsel in the case, because the point was drawn by the court itself.</p> <p>The facts involved in the case are now before this court for the third time. They have also been before the Supreme Court once and before the Superior Court once. We do not mean to say that all the facts have been before the various courts in each case; nevertheless the substance of the contention between the parties has been considered, in some form or another, each time.</p> <p>The full history of the case in its first phase is to be found in Cameron v. Gray, 202 Pa. 566. The story is briefly as follows : Angus Cameron, ninety-two years old, confined to his bed in his last sickness, executed a deed in favor of his grandson, Angus C. Gray, for a property worth about $4,000. The old man kept the deed with other papers in a small satchel in a closet near his bed. At no time did he give instructions or directions to anybody to deliver the deed to the grantee or to anyone else for him. The deed was signed, acknowledged, placed in the satchel, and was within the sole control of the grantor to the day of his death. The grantor died at 3 A. M. September 29,1899. Between this hour and noon of the same day the deeds, old and new, were taken from the satchel by Mrs. Gray, the mother of the grantee, and handed to her son. The deed was then stamped and in six days was placed on record.' On the day the deed was recorded the grantee executed a mortgage in favor of Thomas W. Kay pledging the land described in the deed as security for a loan of $1,000. In November, 1899, the heirs of Angus Cameron instituted a suit in equity against Angus C. Gray, the grantee in the deed, and Thomas W. Kay, the mortgagee named in the mortgage. An answer was filed on behalf of Gray and Kay. The case came on for a final hearing, and it was decreed that the deed was void for the want of delivery and that the mortgage was invalid and not a lien upon the land therein described. The case was then appealed to the Supreme Court, where the decree was affirmed on the opinion of the court below. The part of the decree referring to the mortgage is in the following words:</p> <p>“ And that the mortgage for $1,000 executed by said defendant, Angus C. Gray, in favor of Thomas W. Kay, the other defendant, dated October 5, 1899, and recorded on the same day, is not a valid lien or incumbrance upon the land therein described, being the same land described above.”</p> <p>The next step in the litigation between the parties is the present scire facias sur mortgage. Thomas W. Kay is plaintiff, and Angus C. Gray and the heirs of Angus Cameron, are the defendants. An affidavit of defense was interposed by the Cameron heirs, to which the plaintiff filed exceptions and asked for judgment. We refused judgment, whereupon the plaintiff took an appeal to the Superior Court. One of the defenses set forth in the affidavit is the defense relied upon now to prevent the plaintiff from recovering judgment in the trial of the scire facias. We refer particularly to the adjudication in the equity case. The Superior Court in Kay v. Gray, 24 Pa. Superior Ct. 536, says on this branch of the case:</p> <p>“ But the court was warranted in refusing to enter judgment upon another ground. The appellees aver that in a suit in equity between them as plaintiffs and Kay and Gray as defendants, in which the validity of this mortgage, as well as of the Gray deed, was in issue, the court decreed, first, that the Gray deed was null and void for want of delivery and ‘ that the same be and is hereby set aside; ’ second, that Gray reconvey in fee simple the land described in the deed and mortgage; and, third, ‘ that the mortgage for $1,000 executed by said defendant, Angus C. Gray,.in favor of Thomas W. Kay, the other defendant, dated October 5, 1899, and recorded on the same day, is not a valid lien or incumbrance upon the land therein described, being the same land described above; ’ which decree having been appealed from by the defendants in that suit was affirmed by the Supreme Court in the following terms :</p> <p>“ ‘ The decree in this case is affirmed on the opinion of Judge Edwabds.’ The case is reported under the title Cameron v. Gray, in 202 Pa. 566. So far as we have been able to discover there is no ground whatever for the contention that the decision of the Supreme Court does not apply to that part of the decree relating to the validity of the mortgage. The decree was affirmed as an entirety, and as the case is now presented the question of the validity of the- mortgage must be regarded as res judicata.”</p> <p>One fact that appears clear in the record of the present case is, that Thomas W. Kay, the plaintiff mortgagee, has had his day in court. His rights under the mortgage in question have been adjudicated finally. He was joined as defendant in the equity case ; an answer was filed in his behalf ; he was a party to the issue and to all the proceedings; the validity of the mortgage was included in the issue, and the decree declared his mortgage was not a valid lien on the property described in the deed and mortgage. And we would have no hesitation in ending- the discussion of this case here and now were it not for a line of cases relied upon by the plaintiff’s counsel which decide that it is no defense to a mortgage that the mortgagor had no mortgageable interest in, or title to, the land.</p> <p>In Penna. Co. v. Beaumont, 190 Pa. 101, the court says:</p> <p>“ It has never been supposed that the right to foreclose an overdue mortgage in any way depends upon the goodness of the mortgagor’s title to the premises embraced in the mortgage.”</p> <p>There are several other cases to the same effect. We have no quarrel with this line of decisions. The doctrine laid down in them is well established, and the plaintiff’s case would come under this principle were it not for the important fact that it has already been decided by a court of competent jurisdiction that the plaintiff has no valid mortgage and, therefore, has no lien upon the land which can be enforced by scire facias, or in any other way. The mortgage is absolutely void. The deed from Cameron to Gray, as was said in another case, “ was a mere nullity, a blank sheet of paper, conferring no title on the original grantee, or on an innocent purchaser from him.” The mortgage from Gray to Kay is no better. In view of this statement, must the defendants sit still in the scire facias proceedings because it happens that the' mortgage was properly esecuted and is overdue, although it has been declared not to be alien upon the land embraced in it? Must they wait until the property is sold at sheriff’s sale and until the purchaser thereat brings an ejectment suit ? We think not. We are of the opinion that the plaintiff is precluded by the decree in the equity suit from proceeding to judgment upon his scire facias.</p> <p>Now, August 7, 1905, for the reasons above stated, we enter judgment in favor of the defendant upon the point reserved notwithstanding the verdict.</p> <p>Errors assigned were (1, 2) in entering judgment for defendant on the question of law reserved; (3) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 32, Jan. T., 1906, by defendant, from judgment of C. P. Lackawanna Co., May T., 1904, No. 346, on verdict for plaintiff in case of John Reynolds v. Maryland Casualty Company of Baltimore, Md.</p> <p>Assumpsit on a policy of health insurance. Before Kelly, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict and judgment for plaintiff for $234.44. Defendant appealed.</p> <p>Error assigned among others was in refusing judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 36, Jan. T., 1906, by defendant, from order of C.P. Lackawanna Co., Sept. T., 1905, No. 1,008, discharging rule to open judgment incase of Abram Nesbitt, W. L. Watson and W. A. May v. Henry Tarbrake.</p> <p>Rule to stay writ of habere, facias possessionem. Before Kelly, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 229, Oct. T., 1905, by plaintiff, from order of O. P. No. 5, Phila. Co., Sept. T., 1904, No. 3,956, sustaining demurrer to statement in case of Joseph P. Drumgoole v. Franklin L. Lyle, Trustee in Bankruptcy, and Otto Zimmerman, Constable.</p> <p>Replevin for furniture.</p> <p>The plaintiff’s amended statement after setting forth the articles seized continued as follows:</p> <p>“ On the said November 18,1904, Franklin L. Lyle and Otto Zimmerman, defendants, entered upon the said premises, 942 Belmont avenue, and wrongfully seized and took out of plaintiff’s possession and into their own possession all of the said articles mentioned in this statement, and retained the same until service had been made of the writ of replevin issued in this case.</p> <p>“ So far as the plaintiff has been able to understand defendants’ conduct, as above stated, they claim to justify the same on the ground that the said Lyle was owner of the premises named, plaintiff was their lessee under a certain lease by the said Lyle to him of the said premises, of which a copy is attached hereto as exhibit4 A,’ and that two monthly installments of rent, in $25.00 each, were due and in arrear under the same at the date of the said entry and taking.</p> <p>44 If this be actually their claim, they are not justified thereby in their trespass, because, though the said Lyle was owner of the said premises, and the plaintiff was lessee of the premises, the whole amount of the said supposed arrears of rent was in fact paid by plaintiff November 2,1904, to Sarah W. Murphey, in part satisfaction of a certain installment of ground rent in the amount of $62.50, due to her October 1,1904, and in arrear, out of same premises, and subject to which ground rent the said Lyle held title to the said premises. . . . All of the contents of the said premises were subject to be distrained upon by said Sarah W. Murphey for arrears of ground rent at any time during the term for which, under the provisions of the said lease, this plaintiff was entitled to continue as lessee of the said premises, or said owner of ground rent might have re-entered for nonpayment of the said installment, or she might have resorted to the other forms of redress in such case.</p> <p>Plaintiff is injured by the seizure of the said property belonging to him and bailed with and intrusted to him by the owners thereof in the sum of $200, for collection whereof and recovery of possession of the said property enumerated in the foregoing list plaintiff brings this suit.</p> <p>The defendant demurred to the statement, alleging the following reasons:</p> <p>1. The statement of demand is in violation of the provisions of section 4 of the Act of April 19, 1901, P. L. 88, which requires the plaintiff to “ file a declaration, verified by oath, which shall consist of a concise statement of his demand, setting forth the facts upon which his title to the goods and chattels is based.”</p> <p>2. The statement of demand is argumentative.</p> <p>3. It may be inferred from the statement of demand that the chattels sought to be recovered in this action were distrained for rent, without giving any facts or legal reasons showing the invalidity of said distraint.</p> <p>4. The plaintiff seeks to escape liability for the payment of rent by alleging that he paid the amount thereof to a third person who was the owner of a ground rent issuing out of the demised premises, which, in law, does not excuse the plaintiff from payment of the rent due and distrained for.</p> <p>The court sustained the demurrer.</p> <p>Error assigned was order sustaining the demurrer.</p>

Appeal, No. 47, Jan. T., 1906, by M. H. Rittenhouse et al., from order of C. P. Columbia Co., Sept. T., 1904, No. 5, directing sheriff; to pay over proceeds of sale In re Insolvent Estate of H. F. Rittenhouse. Demurrer to petition for order on sheriff.

<p>Judgment — Opening judgment — Evidence.</p> <p>A judgment entered upon a judgment note 'will be opened where the testimony of the defendant, strongly corroborated by other witnesses, although contradicted by the plaintiff, tends to show that the defendant and the subscribing witness did not sign and subscribe as the paper represented them to have done, and that the defendant was not at the place where the plaintiff alleged the note was executed but was sick at home a considerable distance away.</p>

<p>Decedents’ estates — Orphans’ court — Disallowance of claim — Findings of fact — Review.</p> <p>Where an auditing judge disallows a claim against a decedent's estate for goods sold and delivered, and Ms decision is affirmed by -the orphans' court in banc, the appellate court will not reverse the decree in the absence of manifest error.</p>

<p>Road law — Vacation of street — Damages.</p> <p>Where the effect of the vacation of a street is not to cut off access to lots from any direction, but merely to make it necessary to travel farther than before to reach them, the owner of the lots sustains no injury which will entitle him to recover damages for the vacation of the street.</p>

<p>Road law — Change of grade — Streets—Damages,</p> <p>Where after a proper grade of a street is established, the owner dedicates the bed of the street to the public use, and subsequently the grade is changed, and some time after this the physical opening and grading takes place at the same time, a purchaser of the land subsequent to the dedication is entitled to recover damages only for the difference between the old grade and the new.</p>

<p>Sale — C ontract — W arranty — C ondition.</p> <p>Where a dealer sells leather knowing that it is bought by the purchaser with a view of selling it to a third person, and warrants that the leather is of good quality, and of the size and tannage represented, such language raises no implication that the sale was conditioned upon the acceptance of the goods by the third person.</p>

<p>Evidence — Cross-examination—Residence—Citizenship.</p> <p>Where a plaintiff in an accident case has been permitted to show his residence, he may be asked on cross-examination whether he is a citizen of the United States.</p> <p>Negligence — Street railways — Damages—Punitive damages — Pushing pas-, senger from car.</p> <p>Where the conductor of a street railway car without previous ill will, and without unkind words declines to receive an intoxicated man as a passenger, and when the latter attempts to board the car, pushes him on the breast so that the man falls from the car and is injured, the street railway company is liable for compensatory, but not punitive damages.</p> <p>The recovery of exemplary damages from a master for injuries inflicted by the servant, which the master neither authorized nor approved, is not to be permitted except in a very clear case. Such damages are allowed only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage or wanton recklessness; in the absence of proof of these circumstances of aggravation, compensation merely is the rule. __ .</p>

<p>Sale — Bill of sale — Title—Possession.</p> <p>As between vendor and vendee title to personal property may pass under the bill or contract of sale without actual delivery.</p> <p>Where an owner of personal property executes a bill of sale for it, and the vendee permits the property to remain in the possession of the vendor upon condition that it shall not be removed 'from the vendor’s premises, and the vendor subsequently removes it to a warehouse, at which place it is surrendered to the vendee on demand, the warehouseman is not liable in an action of trespass to the vendor for surrendering the property. He will be liable, however, for any property surrendered by him to the vendee, and belonging to the vendor, which was not included in the bill of sale. In such a case the vendor is entitled to recover not only the fair value of the goods wrongfully surrendered, but something in addition to the value of the goods not exceeding the legal interest from the time of the wrongful act.</p>

<p>Appeal, No. 7, March T., 1906, by defendant, from order of C. P. Sullivan Co., Sept. T., 1902, No. 62, sustaining demurrer to statement in case of Cherry Township v. Sullivan County.</p> <p>Demurrer to statement. Before Terry, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 12, March T., 1906, by plaintiff, from judgment of C. P. Sullivan Co., Sept. T., 1902, No. 66, for defendant non obstante veredicto in case of O. Elmer Bigger v. John G. Scouton, John Andrews and George W. Andrews.</p> <p>Ejectment for land in Shrewsbury township. B efore Terry, -P.J.</p> <p>On a motion for judgment for defendant non obstante veredicto Terry, P. J., filed the following opinion:</p> <p>The verdict of the jury in the above-entitled case was directed by the court and taken in the following form:</p> <p>“ You say you find for the plaintiff the land described in the writ, subject to the reserved question whether under all the evidence in the case and the law applicable thereto, the plaintiff is entitled to recover; the court reserving the right to enter judgment for the defendants, non obstante veredicto, in case we conclude the evidence does not warrant a-recovery by the plaintiff.”</p> <p>The form of the question thus reserved was adopted with the consent of the counsel for the parties, and the matter is now before us for disposition.</p> <p>There are two subjects for discussion. One is whether the acknowledgment of the treasurer’s deed to F. H. Ingham, plaintiff’s grantor, for the land in controversy, was legally proven by the production of an entry thereof upon the court minutes ; and the other, whether the return of said land by the tax collector for unpaid taxes, in pursuance of which the treasurer subsequently sold it, was made within the time prescribed by law.</p> <p>The defendants’ objection to the deed, when it was offered, was, in substance, that it was inadmissible unless accompanied by proof that it was acknowledged in open court and an entry thereof made in the court minutes ; and in support of this position the case of Lee v. Newland, 164 Pa. 860, was cited. Whether that case, decided upon peculiar facts, rules the one .at bar,, ip view of the clear minute appearing upon the sheriff’s and treasurer’s deed book offered in evidence by the plaintiff, need not be decided, as, in our opinion, the other question must be resolved in favor of the defendants.</p> <p>The tax for which the land in dispute was sold was assessed in 1894. The collector’s return of the land to the county commissioners for exoneration of the tax for which it was afterward sold, was made June 14, 1895.</p> <p>It was decided in Vandermark v. Phillips, 116 Pa. 199, that the provision of the third section of the Act of April 21,1856, P. L. 477 (as amended by the Act of February 28,1858, P. L. 45), requiring tax collectors to make their returns to the county commissioners for exonerations on or before February 1 in-each and every year, is mandatory, and its observance is a condition precedent of the right of the commissioners to sell the land so returned for the unpaid taxes.</p> <p>Counsel for the plaintiff admits this decision will prevent a recovery in this case if the act of 1856, as amended, is still in force He contends, however, that it has been repealed by the Act of June 25, 1885, P. L. 187, and its supplements; not expressly but by implication.</p> <p>By the act of 1885, the term of office of the collector was made one year, beginning on the first Monday of April following his election ; and the tax duplicate is required to be issued to him on or before the first day of August. Upon receiving it he is directed to give notice thereof, and the persons rated therein who pay their taxes within sixty days from the date of such notice are entitled to a reduction of five per cent. Those who fail to make payment within the period of six months from said date are charged five per cent additional, to be added and collected by the collector. The Act of June 2, 1891, P. L. 175, provides that taxes collected within the sixty-day period shall be paid over by the collector to the proper authorities within fifteen days after the expiration of said period; all taxes thereafter collected during his term of office shall -be paid over at regular intervals of one month, and a full and complete settlement of all taxes collected shall be made by him with said authorities not later than three months after the expiration of his term of office. The Act of June 6, 1893, P. L. 333, extends the collector’s official term to three years and requires him to give bond annually.</p> <p>The argument of counsel for the plaintiff is that as the duplicate may be withheld from the collector until August 1, and as the period for collecting the tax with the addition of the five per cent penalty begins bn the expiration of six months from the date of the notice aforesaid, the time for returning land for the nonpayment of tax and securing exoneration is thereby impliedly extended. That is, if he waits, as it is contended he should, for the expiration of the six months’ period before making such return and obtaining the exoneration, the collector will have at the longest but one day viz.: February 1, for such action, which, the contention is, would be unreasonable.</p> <p>It is further urged that the collector has until July 1 of each year to make the full settlement mentioned in the act of June 2, 1891. This conclusion is reached by the following mode of reasoning: The act of 1885 made the collector’s term of office one year; the act of 1891 requires him to make ful-1 settlement within three months after the expiration of such term; the act of 1893 lengthened the term of office to three years, but requires him to give bond annually; hence, the full settlement aforesaid is enjoyed yearly, within said period of three months, which, dating from March 31, the end of the official term, would extend it to July 1, up to which time he would be authorized to return lands for nonpayment of taxes.</p> <p>The weakness of the argument we have just outlined is, first, there is nothing in the act of 1895, or those following it, compelling the collector to wait until the expiration of the aforesaid six months’ period before returning land in order to secure exoneration from the tax with which it is charged; and, second, not only does the act of 1885 fail to expressly repeal the act of April 21,1856, as amended by the act of February 23, 1858, but on the contrary it provides, in section 10, that “ ex-onerations may be made by the authorities and in the same manner as heretofore.”</p> <p>The word “ manner” is defined by Webster to mean “ customary method of acting; ” one definition thereof given in the Standard Dictionary is, “usual practice ; ” and in 19 Am. & Eng. Ency. of Law (2d ed.), p. 921, note it is said that it sometimes includes time as well as mode. It seéms to us that if the legislative intent had been to change the time for making land returns it would have found expression, especially as there was an allusion to the. subject.</p> <p>We are unable to perceive any repugnancy between the act of 1856, as amended, and those of later date to which reference has been made, that would warrant us in adjudging the former repealed. As, in our opinion, it is still in force, the case of Vandermark v. Phillips, 116 Pa. 199, is decisive of the question under consideration and requires us to hold that the treasurer’s deed, upon which the plaintiff relies, conferred no-title "because the sale preceding it, and which is recited therein, was held without authority of law — -the tax for the collection of which said sale of this land was made not having been returned on or' before February 1, 1895.</p> <p>Accordingly judgment is now entered for the defendants, non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 173, Oct. T., 1905, by defendant, from judgment of C. P. Lehigh Co., April T., 1905, No. 81, on verdict for plaintiff in case of Franklin J. Mohr, now to use of Thomas Scherer, v. Thomas A. Scherer et al.</p> <p>Scire facias sur mortgage. Before Trexler, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $879.83. Defendant appealed.</p> <p>Error assigned was in directing a verdict for plaintiff.</p>

<p>Appeal, No. 204, Oct. T., 1905, by Francis R. Dever, from order of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 1,744, M. L. D., making absolute rule to convey real estate in case of City of Philadelphia v. Unknown.</p> <p>Rule to compel reconveyance of real estate. Before Will-son, P. J.</p> <p>The facts are stated in the opinion of the Supei-ior Court.</p> <p>Error assigned was the action of the court in making the rule absolute.</p>

<p>Appeal, No. 221, Oct. T., 1905, by Lavinia R. Clymer, from decree of O. C. Phila. Co., April T., 1905, No. 191, dismissing exceptions to adjudication in Estate of John Roats, Sr., deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that the auditing judge surcharged Lavinia R. Clymer, the accountant, with $1,166.66, being the interest on a bond and mortgage bequeathed to the accountant by a codicil of testator’s will. The reason for the surcharge was that the widow of the testator being alive, and the mortgage not having been given to the accountant absolutely, the interest oh the mortgage was applicable to the uses stated in the will. The material portions of the will are quoted in the opinion of the Superior Court.</p> <p>On exceptions to the adjudication, Penrose, J., filed the following opinion:</p> <p>Without stopping to consider the very many cases cited in the able assignment of counsel for the exceptant and even conceding for the sake of argument, that the" statement in the textbooks, that a substituted testamentary gift is subject to the qualifications and restrictions of the original gift, does not apply where the gifts are of different natures or not from the same fund — a proposition which the cases cited are far from sustaining — it is enough to say that it is a well-settled principle that a codicil, even where it contains an original gift, will not be understood in the absence of express provision as intended to interfere with the provisions of the will or a prior codicil, further than it is clearly inconsistent with it; and that it is to be interpreted in accordance with the general scheme of the will: Brick’s Est., 20 W. N. C. 45; Whelen’s Est., 175 Pa. 23 ; Phillips’s Est., 1 Pa. Dist. Rep. 311.</p> <p>Here the income of the entire residuary estate is given to the children of the testator, during the life of the widow, in equal shares; and as the devise to the exceptant was not to take effect until the trust had thus ended, the legacy, substituted by the codicil for the real estate so given is to be understood as being similarly deferred, otherwise the equality among all of his children, contemplated by the will, would be defeated, and the presumption is always in favor of equality as between those standing in the same relation to the testator. This is made still clearer bjr the gift to the exceptant by another codicil of 1500, which it is expressly provided shall be “ paid to her immediately after,” the testator’s death-words which are wholly wanting in the gift of the bond and mortgage, by the codicil in question “ in lieu of ” the property devised to her at the expiration of the trust. -</p> <p>Expressio unius est exclusio alterius.</p> <p>The exceptions are dismissed, and the adjudication confirmed absolutely.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 15, Jan. T., 1906, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1901, No. 284, on verdict for defendant in case of Miranda H. Wenchell v. William J. Stevens. Assumpsit on a promissory note. Before Newcomb, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 24, March T., 1906, by plaintiff, from order of O. P. Cumberland Co., May T., 1905, No. 7, striking off judgment in case of George Livingston v. H. S. Kerbaugh, Incorporated.</p> <p>Rule to strike off judgment. Before Sadler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order striking off the judgment.</p>

<p>Appeal, No. 20, March T., 1906, by Lewistown & Kishacoquillas Turnpike Company, from order of Q. S. Mifflin Co., opening a new road In re Derry Township.</p> <p>Exceptions to report of viewers. Before Savidge, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court. ■</p>

<p>Appeal, No. 116, April T., 1906, by Waynes burg Borough, from order of C. P. Greene Co., Feb. T., 1905, No. 8, on application for the appointment of viewers In re Washington Street.</p> <p>Application for appointment of viewers.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals — Assignments of error — Violation of rules of court. .</p> <p>Assignments of error based upon the charge will be dismissed where the appellant did not except to the charge, or request that it be reduced to writing and filed, before verdict rendered.</p> <p>Assignments of error based on answers to points and the admission of testimony, will not be considered where the points and the testimony referred to are not set out in the assignments.</p> <p>The refusal to grant a new trial is not ground for reversal unless there be manifest and flagrant abuse of discretion.</p>

Appeal, No. 48, April T., 1906, by defendant, from judgment of C. P. Westmoreland Co., Aug. T., 1903, No. 45, on verdict for plaintiff in case of National Lumber Co. v. Anna J. Mehaffey. Scire facias sur mechanic’s lien. The opinion of the Superior Court states the case. No errors were assigned.

<p>Street railways — Wrongful construction of road — Injuries to land — Damages —Malice.</p> <p>Where a street railway company lays its tracks on a public highway without the consent of an abutting owner, and this is done wrongfully, but without malice, and there is a resultant permanent injury to the real estate, the extent of the damage caused thereby is to be measured by the resulting depreciation in the value of the property. In such a case no malice can be inferred from the mere wrongful laying of the tracks, where the act was committed before the relative rights of street railways and abutting owners had been adjudicated by the courts.</p> <p>The mere fact that the road was not located in the center of the highway, but along the side of the road where it worked a greater injury to the landowner, does not affect the rule as to damages, or permit the owner to sue as for successive trespasses.</p>

<p>Appeal, No. 41, Jan. T., 1906, by-defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1908, No. 508, on verdict for plaintiff in case of James Murphy v. Prudential Insurance Company of America.</p> <p>Assumpsit on a policy of life insurance. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[Now the policy being in this condition, the premiums not having been paid according to the terms of the policy, the real question in the case then is this, — did the company do something which now prevents them from defending against this suit on this point or on this ground ? That is the contention of the plaintiff in this case. It is in substance that Mrs. Murphy, acting for her husband, paid a visit to Mr. Schubert, the district superintendent of the Prudential Insurance Company of America in this district, in July, 1902; that she informed him that the strike was on or was pending, and that she would be unable' to pay the premiums, asking what should be done ; and then Mr. Schubert, according to her testimony, told her that during the pendency of the strike the company had decided to suspend the rules requiring the payment of the premiums, and that the premiums might be paid after the expiration of the strike, and that he had sent a man around to inform the policy holders of that fact, and that if the person insured should die in the meanwhile that the unpaid, premiums, the accrued premiums, should be deducted from the amount payable upon the death of the insured, and that those unpaid premiums should be a lien upon the policy. That is, in substance, the claim of the plaintiff in this case as to his right to recover on the policy which, according to its own terms, had lapsed. This is what is known in law as the doctrine of estoppel. The doctrine of estoppel is based upon good conscience, upon equity, upon common justice. If this company through its agent told Mrs. Murphy, who was acting for her husband, that she need not pay the premiums during the strike, and made the promise which she has testified that Mr. Schubert made to her, then the company would be estopped from coming into court and denying the right of the plaintiff to recover.] [1]</p> <p>[It is not considered good conscience, it is not considered good morals in law to permit a company through its agent to mislead a party with whom it has insurable relations and to lull them, according to the term used in the books, into fancied security, thinking that everything is all right, whereas if the agent had said no, it cannot be done, you must pay your premiums promptly, then the party insured could go and borrow the money and pay the premiums. I am giving you the side of the plaintiff now in this case, and I say to you that if the promise was made by Mr. Schubert in the manner testified to by Mrs. Murphy and by her son, Anthony Murphy, then the company is estopped from defending on the ground that the McNamara policy had lapsed.] [2]</p> <p>Verdict and judgment for plaintiff for #581.25. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them ; (4) refusal of binding instructions for defendant.</p>

<p>Insurance — Fire insurance — Mutual fire insurance — Assessments—Boohs—■ Evidence.</p> <p>In an action by the receiver of a mutual fire insurance company to recover assessments on a policy, the assessment book of the company is admissible in evidence where it is shown to be a book of original entries containing the record of the policy in suit along with all others issued. In such a case the book is admissible not only as a book of original entries, but also as a record of a company of which the defendant was a member.</p> <p>In an action by the receiver of an insolvent mutual fire insurance company against a member to recover assessments, the plaintiff may show evidence of previous assessments laid by the company on the policy of the defendant and paid by him without objection. In such a case the evidence is competent as showing the course of dealing between the parties to the contract indicative of its true intent and meaning as construed by themselves.</p>

<p>Appeals — Quashing appeal — Final and interlocutory decree — Act of April 14, 1835, P. L. 275.</p> <p>'Where the report of an auditor appointed by the orphans’ court has been excepted to by two of the parties in interest, and the exceptions of one party are overruled, and those of the other are sustained, and the report referred back to the auditor to make distribution, and the auditor takes no further steps, an appeal from the decree overruling the exceptions of one of the parties, is premature, and will be quashed.</p>

<p>Appeal No. 8, March T., 1906, by L. P. Thomas, Administrator, from decree of O. C. Lycoming Co., March T., 1904, No. 44, dismissing exceptions to report of auditor in Estate of Joseph Marshall, deceased.</p> <p>Exceptions to report of W. C. Gilmore, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>' Insurance — Fire insurance — Sole and unconditional ownership.</p> <p>Where a policy of fire insurance provides that the policy shall be void if the interest of the insured be other than unconditional and sole ownership, the policy is rendered void if the insured conveys the property insured to a third party by a deed absolute on its face, under a parol agreement that the same shall be held as collateral security for the payment of a debt.</p>

<p>Appeal, No. 76, April T., 1906, by defendant, from judgment of G. P. Somerset Co., Feb. T., 1904, No. 91, on case tried by the court without a jury in suit of Elizabeth Lawrence King and Alexander King, Jr. Devisees of Georgia Edith Manning, deceased, by Alexander King, their father and next friend, v. The Savage Fire Brick Company and Frank Fletcher, Administrator of Charles C. Reamer, deceased.</p> <p>Assumpsit for rentals.</p> <p>The case was tried without a jury under the act of April 22, 1874, by Kooser, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Appeal, No. 23, March T., 1906, by defendants, from decree of C. P. Juniata Co., April T., 1904, No. 1, on bill in equity in case of George L. Russell v. Dr. Herbert M. Howe, Prank P. Howe, John Markle and Donald F. Bush, .trading as the Rockhill Furnace Company.</p> <p>Bill in equity for an injunction and an account.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree in favor of the plaintiff.</p>

<p>Contract- — Breach—Damages—Board and lodging — Rent.</p> <p>Where a contract to pay $50.00 per month for three years, one-half thereof for board and lodging and the other half for rent, is abandoned shortly after it is made, by the party who was to make the payments, the other party may at once rescind and proceed to recover the damages for the whole term. In such a case the damages as to the board and lodging will be the difference between the contract price and the expenses, and as to the office the difference between the rent and the value of the office after the breach.</p>

<p>Appeal, No. 15, March T., 1906, by defendant, from judgment of C. P. Clinton Co., May T., 1904, No. 118, on verdict for plaintiff in case of John Gartsee, now to use of Emma Cook, v. The Citizens Insurance Company of Missouri.</p> <p>Assumpsit on a policy of fire insurance. Before Mayer, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $691. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Orphans’ court — Findings of fact — Conclusiveness of.</p> <p>A finding by the orphans’ court on competent evidence that the signature of a decedent to a contract is genuine, will not be disturbed in the absence of manifest error.</p> <p>Contract — Support of father — Parent and child.</p> <p>An agreement between two sons that one of them will take their aged father into his family, and that the other will pay his share of the expenses of support and maintenance of the father, is a valid contract, although there may be other children who might under the poor laws be compelled to contribute to their father’s support, and although the amount to be paid was not fixed at any definite sum.</p>

<p>Negligence — Sidewalk—Barrels on sidewalk — Infants.</p> <p>Those controlling property on, or immediately adjacent to, a public highway must have regard to the reckless and thoughtless tastes and traits of childhood. The owner* of premises are required in such cases to anticipate that children may use the highway, and in so doing be exposed to any unsafe object placed thereon.</p> <p>Where the owner of a brewery piles beer barrels on a sidewalk, and keeps them there without in any way being secured, and in such a way as to invite children to climb thereon, and a child five years of age is in consequence injured, he is liable for the injuries sustained.</p>

<p>Landlord and tenant — Destruction of -premises — Fire—Abatement of rent— Lease — Covenants.</p> <p>The rule that the destruction of a building by fire does not absolve the lessees from liability for rent, does not apply to a case of a demise of an apartment in a building.</p> <p>In an action for the rent of one of the floors of a building, an affidavit of defense is sufficient which alleges the total destruction by fire of a portion of the building, a re-renting by the lessor of the portion of the demised premises not destroyed, an entry by the new tenants, and a failure by the lessor to furnish steam and elevator service in accordance with the covenants of the lease.</p>

<p>Trade-marks — Penalties—Constitutional law — Due process of law — Act of June 20, 1901, P. L. 582.</p> <p>The Act of June 20, 1901, P. L. 582, for the protection of trade-marks, which gives to any person, copartnership or corporation “aggrieved in the matter” the penalty provided by section four of the act, is not unconstitutional, as depriving the defendant of his property without due process of law. The act is to protect both the owner of the trade-mark and the public, and the legislature has the right not only to enforce the penalty, but also to direct to whom it shall be paid.</p>

<p>Appeal, No. 194, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, on verdict for plaintiff in case of James Pollock, Trustee of the Estate of Dingley Manufacturing Company, Bankrupt, v. James Talcott.</p> <p>Assumpsit for money had and received. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court, under objection and exception, refused to admit in evidence a lease from Elizabeth Aldrich to James Talcott from February 1,1901, to February 1,1902. [1]</p> <p>S. S. Burr was asked this question :</p> <p>“ Q. You have said'that no use was made by James Talcott of this one-third of the premises that was to have been occupied by the Dingley company. Will you tell us whether, under all'the circumstances, Mr. Talcott could have disposed of that one-third of the premises ? Under all the circumstances in this case could he have made use, with some other party, of that one-third of the premises ? ”</p> <p>Objected to. Objection sustained. Exception noted for defendant by direction of the court. [2]</p> <p>Defendant presented this point:</p> <p>8. If you find that the plaintiff is bound by the agreement made with the defendant, and that defendant complied with his part of the agreement, then defendant is entitled to retain out of the money otherwise owing to plaintiff the amount of damages he has suffered by failure of the Dingley Manufacturing Company to comply with its part of the agreement. Answer : The defendant’s points are refused. [8]</p> <p>The court charged the jury as follows :</p> <p>The defense of set-off has not been established. It is admitted by the defendant that he has moneys in his hands collected for the account of the plaintiff, and as he has failed to make out the set-off against the plaintiff’s claim for these collections, your verdict must be in favor of the plaintiff for the full amount of the claim. [4]</p> <p>Verdict and judgment for plaintiff for $893.61. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (3, 4) above instructions, quoting them.</p>

<p>Appeal, No. 186, Oct. T., 1905, by defendant, from judgment of C. P. Lebanon Co., Sept. T., 1903, No. 111, on verdict for plaintiff in case of Jerome Behney v. R. Stoever Foundry Co.</p> <p>Assumpsit for minor’s wages. Before Ehrgood, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $44.76. Defendant appealed.</p>

<p>Appeal, No. 154, Oct. T., 1905, by J. Hain Mengel, Assignee, from decree of O. P. Berks Co., June T., 1905, Assignee Docket, Vol. 4, setting aside confirmation of account in Assigned Estate of Jeremiah H. Wentzel.</p> <p>Petition to set aside confirmation of account. Before Endeich, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Physicians — Registration—License—Constitutional law — Police power— Act of May 18, 1893, P. L. 94.</p> <p>Registration as 'a physician after March 1, 1894, is outside of the limitations of the Act of May 18, 1893, P. L. 94, and is useless as a defense to an indictment for practicing medicine without a license.</p> <p>The Act of May 18, 1893, P. L. 94, providing for the licensing of physicians and surgeons is a proper exercise of the police power of the state, and does not violate either the federal or state constitution.</p>

<p>Judgment — Revival—Posthumous child, — Intestate laws — Devise.</p> <p>Where the owner of land devises it to his wife subject to the lien of a judgment, and the testator leaves to survive him his wife and two daughters and after his death a posthumous daughter is born, and the judgment is revived by amicable scire facias against his wife as executrix, terre-tenant and sole devisee, and the posthumous daughter claims and receives one-third of the proceeds of the land raised by a sale under the- revived judgment, such daughter cannot three years thereafter, and after valuable improvements have been made on the property, tender back the money , paid her and maintain an ejectment for one third-interest in the land.</p>

<p>Appeal, No. 47, Oct. T., 1905, by defendant, from order of C. P. Huntingdon Co., Sept. T., 1900, No. 140, discharging rule to open judgment in case of Thomas J. C. Ripple for use of G. L. Owens v. Benjamin F. Ripple and Charles E. Succop, terre-tenant.</p> <p>Rule to open judgment. Before Woods, P. J.</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>Error assigned was order discharging the rule to open the judgment.</p>

<p>Appeal, No. 124, Oct. T., 1905, by Pike Township, from order of C. P. Bradford County, Deo. T., 1903, No. 474, overruling exceptions to report of reviewers In re Vacation of Public Highway in Pike Township.</p> <p>Exceptions to report of viewers.</p> <p>Fanning, P. J., filed the following opinion:</p> <p>The road commissioners of Pike township reported adversely upon the petition presented. An appeal was taken and reviewers duly chosen, who, on November 7, 1903, went upon the ground and all agreeing reported in favor of the new road prayed for. For the purpose of laying out and establishing the same by metes and bounds, they then adjourned to meet ■ November 14, 1903. On said last mentioned date, two of the reviewers, namely, William Morrow and O. English, met and, after making a survey, filed a supplemental report fully describing said proposed new roa'd. Said report also provided as follows : “ so much of the old road as will be supplied by the proposed new road when built and opened is vacated to the state road to take effect when the proposed new road is opened for public travel, a plot or draft whereof, is hereto annexed and is made a part of this report.” Exceptions to the proceedings were filed by A. B. Burrows as follows, namely: First, tbe record does not show that the viewers or reviewers were sworn according to law; second, because the. record does not show that the viewers or reviewers after being duly sworn found whether the road was necessary; third, because a supplemental report of reviewers laying out the said road was participated in only by two of the viewers; fourth, because the reports of viewers and reviewers were wholly irregular, unlawful and insufficient. The exceptions relating to the omission of the report to state that the viewers were sworn were not pressed, doubtless owing to a decision recently rendered by tbe president judge of the 44th judicial district when specially presiding in this county to the effect that under the special laws applicable to Bradford county road commissioners are given the general charge and supervision of all roads therein with power to lay out and alter or vacate the same, and as such have severally taken an oath to perform their duties according to law, thereby dispensing with tbe necessity of again being sworn when called out as viewers or reviewers. With the explanation noted we proceed to a consideration of the matters alleged to be fatal to the proceedings. The Act of April 18, 1848, section 20, P. L. 218, conferring upon road commissioners in Bradford county jurisdiction in the matter of roads provides, inter alia, as follows : “ That it shall be the duty of the said commissioners to take the general charge and supervision of all the roads and bridges in each of the said townships in said county (county bridges excepted) and to lay out and alter the same at the request in writing of the citizens of said township, if they shall deem the same necessary,” etc. The report of the reviewers chosen as before stated to review the action of the road commissioners of said township, is not perhaps as explicit as could be desired in averring the necessity for a public road between the points named. It must be remembered, however, that viewers and reviewers, are not as a rule men learned in the law and their action should not be defeated by mere technicalities, if it clearly appears that there has been a substantial compliance with all legal requirements. In Road from App’s Tavern to Susquehanna through Charleston, 17 S. & R. 388, Huston, J., says: “ The report must state distinctly whether they decide on a public or private road. If this appears plainly in their report, it is sufficient.” In the report now the subject of objection, the reviewers first state that, “after making diligent inquiry and examination of the need and benefit of the said new road to the public did report,” etc., and again that “ having viewed the ground for the proposed road, both of us concurring, did lay out and now return the same for a public road,” and still again the vacation of old road is “ to take effect when the proposed new (road) is opened for public travel.” It is clear as language can make it that the new road was laid out as a public road. It is evident from a careful reading of the report and the action taken that the reviewers deemed the road necessary. The finding that they “ did lay out and now return the same for a public road ” under the authorities meets the requirements: Road in Norriton and Whitpain Twps., 4 Pa. 337; Road in Reserve Township, 2 Grant, 204; Road in Versailles Township, 4 Brewster, 57. The second exception for the reasons stated is dismissed.</p> <p>The third exception is also dismissed. The return shows who of the reviewers were present at the view. The fact that but two of the reviewers were present at the time when the survey was made is not fatal. The reviewers, all concurring, had previously made a report in favor of the road, and this adjourned meeting was to designate the metes and bounds and complete the work.</p> <p>The fourth exception raises a question as to the validity of the vacation of the old road. It would doubtless be a sufficient compliance with the law, if the report substantially found that the road to be vacated had' become “ useless, inconvenient and burdensome,” but it does not. We may infer that was the conclusion reached by the reviewers, for they say “so much of the old road as will be supplied by the proposed new road when built and opened is vacated to the state road.” This, however, does not meet the requirements of the act of assembly, and cannot be held to be a finding that the road vacated is “ useless, inconvenient and burdensome.” Apart from this, however, the report does not adequately describe the road to be vacated, nor does it appear on the plot or draft. This is essential to give ■ validity to the vacation : Road in Ross Twp., 36 Pa. 87. The fourth exception is sustained so far as relates to the vacation of the old road and dismissed so far as it relates to the laying out of the new road. This may be done under the act of July 2, 1901, giving to the courts authority to inquire into the regularity of the proceedings had and if unlawful, to set the same aside “ either in whole or in part.”</p> <p>And now, to wit: November 19,1904, the proceedings in above case are confirmed so far as relates to the laying out of the proposed new road, and set aside so far as relates to the vacation of the old road.</p> <p>Errors assigned were in overruling exceptions to report of viewers.</p>

<p>Appeal, No. 191, Oct. T., 1905, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1905, No. 3519, discharging rule for judgment,for want of a sufficient affidavit of defense in case of Walter Snyder v. John Lingo.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>