Volume 31 — Pennsylvania Superior Court Reports

<p>Appeal, No. 28, .by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1908, No. 28, on verdict for the plaintiff in case of Israel Yanko and'Abram Lewitas, trading as Yanko & Lewitas, v. Standard Fire Insurance Company of Trenton, N. J.</p> <p>Assumpsit cn a policy of fire insurance. Before Hassler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff on facts found by the jurjr in the nature of a special verdict. ■</p>

<p>Evidence — Receipts—Wages—Extra work.</p> <p>In an action for wages where the plaintiff claims to recover for extra work, and he is met by several receipts in full which did not cover any extra work, and by defendant’s testimony in denial of any agreement to pay for extra work, it is reversible error for the court to neglect to charge the jury as to the serious effect of such evidence on the plaintiff’s claim.</p>

<p>Criminal law — Assault and battery — Evidence—Indictment—Charge.</p> <p>An indictment for assault and battery charged that the prisoner inflicted upon the prosecutrix grevious bodily harm by striking her on the head with a chair. At the trial the prosecutrix testified that among other injuries, the prisoner knocked her down with a chair, thereby causing a lump on her head, which got sore, and was not healed at the time of the trial. Held, that it was competent for a physician to testify that the wound might have been caused by a blunt instrument, and that from an examination made within four or five months of the trial he was of the opinion that the injuries might have been inflicted a year before the trial at the time averred in the indictment for the assault.</p> <p>Rule of court — Witness—Evidence.</p> <p>The court may adopt and apply in a proper case a rule of court to the effect that “the re-examination of a witness shall be only in respect to explanation of any new matter elicited on the cross-examination unless with leave of the court where the matter had been overlooked in chief.”</p> <p>Appeals — Assignments of error — Waiver of error.</p> <p>An assignment of error which embraces more than one point or refers to more than one bill of exceptions violates rule XIV.</p> <p>Criminal law — Reasonable doubt — Charge.</p> <p>A pi-isoner in a criminal trial has no ground to complain of a charge as follows: “the presumption is that the defendant is innocent, and the presumption continues up until the moment that you are satisfied by the evidence beyond a reasonable doubt of his guilt. This reasonable doubt is such a doubt that fully arises from the evidence. It should not be a mere whim or surmise. There should be such a doubt as there is a reason for and which fully arises out of the evidence. . . . We would say further that the doubt arises from all of the evidence, and if the doubt arises from a single juryman the other eleven jurymen should come to the mind of that one. It of course takes twelve jurymen to arrive at the verdict.”</p>

<p>Boroughs — Incorporation—Freeholders—Estates in remainder — Act of April 1, 1834, P. L. 163.</p> <p>A person who owns a vested remainder in real estate located within the limits of a proposed borough, subject to a life estate, owned and enjoyed by some other person, is not a freeholder within the meaning of the second section of the Act of April 1, 1834, P. L. 163.</p> <p>There is nothing in the Act of April 1, 1834, P. L. 163, which requires the application to set forth the number of freeholders residing within the proposed territory, nor is there any provision that it is to be verified by affidavit.</p>

<p>Appeal, No. 10, March T., 1905, by J. O. Clepper, from order of C. P. Cumberland Co., Sept. T., 1901, No. 142, sustaining exceptions to distribution of proceeds of sheriff’s sale.</p> <p>Exceptions to distribution of proceeds of sheriff’s sale.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Insurance — Fire insurance — Additional insurance — Notice—Waiver.</p> <p>A provision in a policy of fire insurance that additional insurance will void the policy unless assented to by the company by indorsement on the policy, is not waived by evidence, that the insured several months after the policy had been delivered to him procured additional insurance, and thereafter informed the local agent of the company of this fact in a casual conversation on the street, but made no effort to secure an indorsement on the policy either from the company or the local agent, although the latter had power to make the indorsement.</p>

<p>Appeal, No. 22, March T., 1906, by American Tract Society, from decree of O. C. Cumberland Co., sustaining exceptions to report of auditor in estate of Calvin O. Diffenbacher, deceased.</p> <p>Exceptions to report of Géorge M. Hays, Esq., auditor.</p> <p>Sadder,- P. J., filed the following opinion:</p> <p>Charles W. Minnich purchased an engine in the year 1903 from the J. J. Case Company for the sum of $1,125. A judgment note was given for the same by the said parties, which matured September 1, 1903, and which, with interest to that date, amounted to $1,135.13. This sum was paid to the First National Bank of Mechanicsburg on September 21, 1903 — Air. Reeser paying his half of the note, apparently with his own funds, while the share of Charles W. Alinnich was provided for by the latter making a loan of $562.50 from his father, and to secure the same, a promissory note was given for that amount payable to the order of Emanuel B. Alinnich, and signed by Charles W. Alinnich and Calvin O. Diffenbacher, and payable one day after date. The following being a copy of the said note:</p> <p>“$562.50 September 21, 1903.</p> <p>“ One day after date Charles W. Minnich promise to pay to the order of Emanuel B. Alinnich, five hundred sixty-two and fifty one hundredth dollars, without defalcation, value received, with interest at four per cent per annum. •</p> <p>“ And further we do hereby empower any attorney of any court of record to appear for we and with or without declaration filed, confess judgment against we for the above sum, with costs of suit, release of errors and without stay of execution, and with five per cent added as part of the judgment for attorney’s fees for collection said fees to be liquidated damages, and become due and payable immediately after maturity of the note without demand of the debt proper, which is hereby waived. And we hereby waive the right of inquisition and extension, and agree to the condemnation of any real estate levied on by virtue of any writ of execution issued hereon, and agree to the sale of said real estate on fi. fa., and we hereby waive the benefit of the exemption laws of the commonwealth on any levy on real or personal property made by virtue of any execution hereon, and no benefit of exemption or stay law shall be claimed.</p> <p>“ Witness, Chas. W. Mlinnich [Seal].</p> <p>“ L. G. Firestine. Calvin O. Dieeenbacher [Seal].”</p> <p>It will be observed that Calvin O. Diffenbacher executed the note as one of the makers. “ His rights and liabilities were fixed by the position in which his name appeared on the note,” given to secure the loan made from Emanuel B. Alinnich: Delaware County Trust, etc., Co. v. Haser, 199 Pa. 17.</p> <p>To the offer of the note, made before the auditor to establish the claim of the holder, objection was made that it had been altered materially. The alterations complained of were the substitution of the word “ we ” for the letter “ I ” before the name Charles W. Minnich, and also in the power of attorney, attached to the note, providing for the confession of judgment. It does not appear from the testimony whether this alteration was made before Calvin O. Diffenbacher signed it or not.</p> <p>The note is a judgment note, under seal, and is therefore not a negotiable instrument, hi the strict sense of that term. The presumption, therefore, is that the change or alteration was made before delivery: Frey v. Wessner, 1 Woodward, 145.</p> <p>But was the alteration a material one ? Did it affect or change in any manner the liability or rights of Diffenbacher ? In law the obligation was a joint and several one, and this is so whether the letter “ I ” had been changed to the word “ we ” or not. That the acts of assembly of April 6, 1830, and April 11,1848, obliterated the common-law distinctions in Pennsylvania between instruments joint and those joint and several, in cases like the present, was decided long ago in Miller v. Reed, 27 Pa. 244. In that case, where the note had been signed by two persons, the words “ or either of us ” interpolated in the note after the word “we,” and Justice Woodward in delivering the opinion of the court held, “ That neither the moral nor legal effect of the instrument was changed, and that the alteration was consequently immaterial.”</p> <p>In Knisely v. Shenberger, 7 Watts, 193, the obligation sued on commenced with the words, “ I do certify that I will go security, etc.,” and it was signed by both the principal and the surety, and in sustaining a judgment recovered in the court below, in an action against the surety alone, the Supreme Court held, that, “ Such an obligation might be treated as the several obligation of each person who signed it, or the joint obligation of all.”</p> <p>Also in Leith v. Bush, et al., 61 Pa. 395, where a bond was drawn in the name of one defendant, “ I, William W. Bush, am held,” etc., signed and sealed by him and four other defendants, it was held to be the joint and several obligation of the five parties, who executed the same.</p> <p>Our Superior Court also, in Dodge v. Chessman, 10 Pa. Superior Ct. 604, held, that a promissory note, which stipulated that, “I promise to pay,” etc., but executed by more than one person, might be treated as the several obligation of each person who signed it, or as the joint obligation of all.” In this instance the suit was instituted against both drawers, and the plea was that they should have been sued separately.</p> <p>To the same effect are Gardinier v. Sisk, 3 Pa. 326 ; Robertson v. Hay, 91 Pa. 242, and Snively v. Fisher, 21 Pa. Superior Ct. 56.</p> <p>Where a note is written, “ I promise to pay,” etc., and there are many promissors, it is the several and joint promise of all: ” Parsons on Bills and Notes, 251.</p> <p>The changing of the word “ I ” to “ we ” in a joint note is not material, and recovery may be had on the altered instrument: Eddy v. Bond, 19 Maine, 461.</p> <p>The alteration of the word “ we ” to “ I ” in the phrase “ we guarantee ” is not material, and recovery can be had : Kline v. Raymond, 70 Ind. 271.</p> <p>The cases of Craighead v. McLoney, 99 Pa. 211, and Nesbitt v. Turner, 155 Pa. 429, cited by the auditor, and apparently relied upon by him as the basis of his determination, were both cases in which the alteration increased the liability of the drawer, in the one ease, and the obligor in the other, and are, therefore, not pertinent, in the present contention. In the first of" said cases the words “ at ” eight per cent interest, without the consent of one of the drawers, and in the other,, in which the action was against the surety, on a cashier’s bond, and the erasure and alteration changed the year from 1871 to 1873; the surety was a married woman in 1871 and became divorced in 1872, and the court left it to the jury to find, whether the obligee ratified or consented to the change in the date, after her discoverture. The finding being in her favor, judgment was entered on the verdict of the jury and affirmed in the Supreme Court.</p> <p>The finding by the auditor that, “ In April, 1904, CharlesW. Minnich, then living with his father at East Petersburg, made an .agreement that his interest in the machine should be held by his father as security for the payment of the $562.50 note, the note in controversy, and for any other money that he might owe his father. That Charles W. Minnich had no right to any part of the engine until he had. paid his father, for a one-half interest, which he has never done,” and his fifth conclusion of law, based thereon, to wit: “ Charles W. Minnich having put into his father, Emanuel B. Minnich’s, hands, his one-half interest in said engine as collateral security for the said note, the said Emanuel B. Minnich was bound to account to the pledgor, his son, for the profits he derived from the pledge, the engine, and for the deterioration of the same, and in absence of proof of the definite amount of the profits, and deterioration of the pledge, the pledgee, Emanuel B. Minnich, cannot recover from the pledgor, Charles W. Minnich, or from anyone else, the debt for which the pledge was given,” are not sustainable.</p> <p>This finding of fact was not warranted by any testimony which we have been able to discover in his notes, and the legal conclusion based upon the same must therefore fall.</p> <p>As before stated Emanuel B. Minnich purchased the interest of Reeser in the engine about September, 1903 ; he, therefore, was a joint owner with his son, and had the same right to the control and possession of it as the latter. When the engine was shipped, Emanuel B. Minnich resided at East Petersburg, Lancaster county, Pennsylvania, the place to where the same was consigned, and one-half of the freight bill was paid by Charles W. Minnich, the other .joint owner (see p. 7, auditor’s notes No. 2) ; the threshing business was manifestly carried on in Lancaster county, during the year 1904, by both C. W. Minnich and his father, E. B. Minnich, (see auditor’s notes No. 2, p. 7).</p> <p>The gross amount collected, from the threshing done, was from $200 to $250, and this was received by E. B. Minnich. As a matter of course from this gross income, it is reasonable that there would have to be deducted certain necessary -expenses, so that the net profits received would not exceed or even be sufficient to discharge the obligation of Charles W. Minnich for the boarding he had contracted to pay. He had agreed to pay $4.00 per week from the 1st of April to the first of the year, a period of nine months^ (see p. 9 auditor’s notes No. 2. He still owes his father about $250.</p> <p>“ Q. How much is it? A. Oh, it is about $250. Q. The machine is security for that, is it? A. Yes. Q. So that he would have that claim against anyone else who came in after you? A. Yes. Q. Was there anything in writing to that effect? A. No. Q. None? A. No. Q. Are you positive of that? A. Yes. Q. Have you not signed any agreement turning over to him your share in this machine ? A. No. Q. Think? A. No, sir. Q. You never made a statement to that effect in the presence of anyone ? A. No. Q. Was anyone present except you and your father when you made the agreement that the machine was security for what you owed him? A. No. Q. What date did you make that agreement ? A. I don’t know. Q. Think? A. Near April 1, 1904. Q. That was before you owed him the money ? A. No it was not. Q. Didn’t you say you made an agreement of $4.00 a week, when you went there last year, April 10 ? A. Yes. Q. Now you made this agreement April 1 ? A. Yes. Q. Before the debt was incurred, he was to hold that'machine as security for anything you were to owe him? A. Yes. Q. And then he collected everything that came in from the working of the machine and gave you nothing? A. Yes.”</p> <p>(See p. 10, testimony C. W. Minnich, notes of auditor No. 2.).</p> <p>This was the testimony on which the auditor’s finding must have been mainly based.</p> <p>It thus appears that not only was the auditor in error in stating that the engine was held as security for the note of $562.50, but that the only proof given, as to the purpose the machine was held, was that it was for an entirely different item of indebtedness, which the son was obligated to pay the father.</p> <p>The authorities, therefore, cited by the auditor, in support of the principle that the profits derived from a pledge, and the deterioration of the same, while in the hands of the pledgee, should be considered in the present inquiry, have no relevancy.</p> <p>Exceptions sustained.</p> <p>Error assigned was the decree of the court.</p>

<p>Judgment — Township poor district — Laches—Striking off judgment.</p> <p>Where the overseers of the poor of a township borrow money and give a note therefor, and the money is used for the legitimate purposes of the district, a judgment entered on the note will neither be stricken off nor opened, where it appears that a portion of the judgment was paid, and that no steps were taken by the overseers for three years to contest its validity. Such a judgment is not void, but at the most voidable if steps are taken within a reasonable time to question it.</p>

<p>Judgment — Fraud—Preference—Father and son — Interest—Findings of fact by auditor.</p> <p>An auditor’s finding that a judgment promissory note given by a decedent to his son was for a bona fide indebtedness, when such finding is based upon competent evidence and is confirmed by the court below, will not be disturbed except upon the clearest proof of mistake.</p> <p>In such a case the mere fact of the relationship of the parties, or that the giving of the note created a preference, or that in a proceeding to revive the judgment on the note the son waived the interest, will not invalidate the note as fraudulent.</p>

<p>Appeal, No. 18, April T., 1906, by-defendant, from order of C. P. No. 3, Allegheny Co.,. May T., 1906, No. 478, sustaining demurrer to return of writ of alternative mandamus in case of Charlotte S. King y. James Brown.</p> <p>Petition for mandamus.</p> <p>Demurrer to return.</p> <p>From the record it appears that plaintiff was awarded damages for the grading and paving of a street by a jury of view, and that the award was confirmed by the court on May 28,1904. On January 17, 1905, demand was made on defendant’s city controller for a warrant for the amount of the award and interest thereon. On the controller refusing the interest, the petition for the writ of mandamus was filed.</p> <p>Error assigned was the order sustaining the demurrer to the returns.</p>

<p>Appeal, No. 68, April T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1904, No. 151, discharging rule for judgment in case of Charles E. Kowdy for use of David Spear, for use of the American Steel Package Company v. Savings Fund Loan Association.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>MacFarlane, J., filed the following opinion:</p> <p>The plaintiff’s claim is for an admitted balance of 1700 due upon a sale of certain savings banks or boxes, and the defense is a set-off that Kowdy, the plaintiff’s assignor, the original party to the contract of sale, had two written contracts with defendant by which he was to be allowed a commission on sales of stocks, and under the terms of the agreements defendant advanced him $920. That he only earned $49.70 of commissions, leaving a balance against him on that account of $870.30. No reason was suggested why such a credit is not good in law, and the averment that Kowdy agreed that the balance against him should be adjusted and balanced with his claim, does not weaken defendant’s position. Whether the defendant’s claim be called a credit, a set-off or payment does not affect the case.</p> <p>The rule should be discharged.</p> <p>Error assigned was the order of the court.</p>

<p>Divorce — Indignities to person of husband — Act of June 25,1895, P. L. 308.</p> <p>The continuous neglect by a wife of her housekeeping duties and the proper care of her husband and children and frequent absence from home of evenings and even for several days at a time at religious meetings are not such indignities to the person of a husband as will entitle him to a divorce under the Act of June 25, 1895, P. L. 308; nor is her refusal of conjugal intercourse such an indignity within the meaning of the act.</p>

<p>Landlord and tenant — Habitable condition of premises — Dampness—Covenant for repairs — Termination of lease — Delivery of key.</p> <p>A tenant who has covenanted to make repairs cannot avoid the obligation of his lease by reason of the uninhabitable condition of the house by reason of dampness, where it appears that he inspected the house and its location before leasing it, and that the dampness was due either to the flow of water into the house during a heavy rain, or to the fact that a retaining wall became dilapidated during the tenancy.</p> <p>The delivery of the key of demised premises to the landlord’s agent, will not terminate the tenancy, where there is no proof that the landlord accepted the key.</p>

<p>Appeal, No. 133, April T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 189, on verdict in case of Goff-Kirby Coal Company v. Marine Coal Company.</p> <p>. Assumpsit for breach of contract to deliver coal. Before Kennedy, P. J.</p> <p>At the trial it appeared that the contract between the parties was as follows:</p> <p>“ Marine Coal Company.</p> <p>“ Room 307 Westinghouse Building,</p> <p>“ Pittsburg, Pa., Oct. 13th, 1902.</p> <p>“ The Goee-Kirby Coal Co.,</p> <p>“ Cleveland, Ohio.</p> <p>“ Gentlemen :</p> <p>“ We hereby agree to ship 50 cars of f coal on your orders from our Marine Mines at 12.00 per net ton on cars. Shipments to be made on jmur order at the rate of 2 or 3 cars per day based on the car supply. In case of car shortage Ave agree to give you your proportionate supply.</p> <p>“ Very truly yours,</p> <p>“ Marine Coal Co.</p> <p>(Signed) “ A. H. Stolzenbach.</p> <p>“ Accepted by</p> <p>“ The Goee-Kirby Coal Co.</p> <p>(Signed) “ I. C. Goee, Pres.”</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for 11,223.35.</p> <p>Error assigned Avas refusal of binding instructions for defendant.</p>

<p>Municipal liens — Scire facias — Philadelphia county — Act of July 26, 1897, P. L. 420.</p> <p>A municipal claim filed by the city of Philadelphia for the cost of removing a nuisance from a, lot, loses its lien if a scire facias is not issued and prosecuted to judgment within five years from the date of filing the claim.</p> <p>The Act of July 26, 1897, P. L. 420, does not apply to a municipal claim filed by the city of Philadelphia for the cost of removing a nuisance from private property. The act is to be strictly construed as applying only to the particular class of claims specifically described therein.</p>

<p>Municipal liens — Scire facias — Defective sidewalk — Sewer—Act of July 26, 1897, P. L. 420.</p> <p>The Act of July 26, 1897, P. L. 420, is to be strictly construed as applying only to the particular class of claims specifically described therein. As to all kinds of municipal claims not clearly embraced within its provisions the presumption is that the legislature intended to leave in force the former law which required that the scire facias be duly prosecuted to judgment as in the case of mechanics’ and judgment liens.</p> <p>A municipal lien for the cost of repairing a defective sidewalk is not within the provisions of the act of July 26, 1897.</p> <p>. While a municipal claim need not set out the provisions of the ordinance or ordinances under which the work was done, yet the lien, being of purely statutory creation, the claim must aver upon its face all the facts necessary to sustain its validity, and unless it does so, it may be summarily stricken off on motion. To state a claim so ambiguously as to leave it in doubt whether it is for repairing a defective sidewalk, or for making a sewer connection, is not a compliance with the true intent and spirit of the rule.</p>

<p>Tax liens — Defense—Affidavit of defense — Scire facias.</p> <p>Where "the city of Philadelphia issues a scire facias to revive a judgment on a tax lien, and makes the owner a party defendant, an affidavit of defense filed by the owner is sufficient, if it avers that he became owner at an orphans’ court sale for the payment of debts, that the tax claim was filed thirteen years before he became owner, and that the original scire facias had not been issued until more than five years after the first of January next succeeding the year in which the taxes became due.</p>

<p>Municipal lien — Scire facias — Notice to registered owner — Philadelphia County.</p> <p>Where a scire facias is issued by the city of Philadelphia on a municipal claim for curbing and grading, and personal service of the writ is had on the registered owner, and judgment is entered for want of an affidavit of defense, the city on a subsequent scire facias to revive is not .obliged to give notice to the owner who has succeeded to the title of the original defendant, although such owner may have registered his title.</p>

<p>Corporations — Names—Conflicting titles.</p> <p>The Superior Court will not review the discretion of the court of common pleas in refusing to grant a charter to a church congregation under the name of the Polish National Catholic Church of St. Francis, where the application for the charter is resisted by an unincorporated congregation already in existence under the name of the St. Francis Roman Catholic Church.</p>

<p>Equity — Specific performance — Inadequate consideration — Judgment.</p> <p>A court of equity will not enforce the specific performance of a contract to purchase a judgment, where it appears that the defendant in the bill agreed to pay $900 for a judgment from which there was no reasonable hope of realizing one dollar. In such a case the plantiff will be left to his remedy at law.</p>

<p>Parent and child — Gift—Promissory note — Evidence.</p> <p>In an action by a daughter against her father’s administrator, on a promissory note, a verdict and judgment for the defendant will be sustained where the evidence shows that the father gave the note to his daughter on the understanding that she should return it, if he so demanded; that he did so demand, and that she refused to return the note.</p>

<p>Appeals, Nos. 27 and 28, Oct. T., 1906, by defendants, from judgment- of Q. S. Delaware Co., on verdicts of guilty in cases of Commonwealth v. Frank E. Sharpless and Commonwealth v. Newton P. West.</p> <p>Indictment for embezzlement and for falsifying books. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were as follows :</p> <p>1. The learned trial judge erred in overruling the defendants’ objection to granting special leave to the district attorney to send district attorney’s bills to. the grand jury as follows:</p> <p>September 21, 1905, transcript quashed. Eo die: District attorney moves the court for special leave to send district attorney’s bills to the grand jury. Eo die : Defendants object. 1. Because there is no great public, pressing or adequate necessity or exigency justifying such action. 2. Because the defendants were first arrested and bound over by a justice of the peace whose return was quashed and the motion of the district attorney is-made to overcome the effect of the quashing of the return. 3. Because the district attorney upon application of defendants would not set out or state liis reasons or the necessity for sending out such bills, and the court was moved to refuse the application unless the district attorney would state his reasons or the nec.essity. Eo die : Defendants’ objections overruled, to which the defendants except. Eo die: Exception granted the defendants and bills sealed.</p> <p>2. The learned trial judge erred in overruling the defendants’ motion to require the district attorney to state his reasons sending special bills to the grand jury as follows :</p> <p>Eo die : The court declined to require the district attorney on motion of defendants to state his reasons, or the necessity for his said application. Eo die : Defendants except. Eodie: Exception granted the defendants and bill sealed.</p> <p>3. The learned trial judge erred in overruling the defendants’ motion to quash the indictment as follows :</p> <p>September 17, 1905. Morning session.</p> <p>(Defendants each make a motion to quash indictment.).</p> <p>(Motion overruled.)</p> <p>An exception is granted to each of the defendants.</p> <p>4. The learned trial judge erred in charging the jury that they could convict of falsifying the books and acquit of- appropriating the money to their own use as follows:</p> <p>“ It is for you to determine whether under the evidence, these defendants have beyond a reasonable doubt violated, the provisions of the statutes referred to or any of them. You may convict them of any one and acquit the rest, or you may. acquit them of all.”</p>

<p>Account render — Evidence—Mistake—Electric light company.</p> <p>Where a customer of an electric light company has received monthly bills, which, through the gross mistake of a clerk, were much less in amount than the contract called for, and has paid such bills, he cannot set up such bills as an account stated in an action against him to recover the difference between the amount of the bills an,d the amount due under the contract.</p> <p>An account stated may be opened or falsified on proof of mistake. Such an account is only prima facie evidence of its correctness and may be impeached by clear, precise and satisfactory evidence either of unfairness or mistake.</p>

<p>Negligence — Infant—Wagon—Identification of wagon — Contributory negligence of parent.</p> <p>In a negligence case, where the plaintiff has proved that the defendant operated upon the streets of a city, wagons of a particular kind, marked in a peculiar manner, and that such a wagon so marked was responsible for the accident, such proof is sufficient to sustain a finding by the jury, under proper instructions, that the wagon was the property of the defendant company.</p> <p>Proof of ownership, under such circumstances, is sufficient to sustain an inference in favor of a third party that a person in charge of the property was the agent or servant of the owner.</p> <p>In an action to recover damages for injuries to a child of tender age, the evidence showed that the horses and wagon which ran down the child were being driven at a slow walk in broad daylight, in front of the premises where the child lived with its parents; that the mother left the child in the house and stepped across the street, and the child came out of the house and attempted to follow her, and was knocked down and severely injured by the horses and wagon. Held, that the negligence of the defendant, and the contributoiy negligence of the mother, were questions for the jury.</p>

<p>Appeal, No. 38, Jan. T., 1905, by defendant, from decree of C. P. Luzerne Co., Dec. T., 1901, No. 2, sentencing for contempt of court in case of J. E. Patterson & Co. v. Wyoming Valley Council et al.</p> <p>Rule for an attachment for contempt of court. Before Ferris, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were (1) order for production of books; (2) the-decree making absolute rule for attachment and (3) the sentence of the court.</p>

Appeal, No. 11, March T., 1906, by George Ehrhart, from decree of O. G. York Co., dismissing exceptions to auditor’s report in Estate of Priscilla Ehrhart, deceased. Exceptions to report of H. C. Brenneman, Esq., auditor. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Practice, C. P. — Judgment—Opening judgment — Public officers — Principal and surety — Act of April 21, 1846, P. L. 413.</p> <p>Where an action of assumpsit is begun against a public officer and his surety, under the Act of April 21, 1846, P. L. 413, and there is nothing to indicate that the action was brought under that act, or that it was not an ordinary action under the act of 1887, a judgment entered by default of the defendants in not proceeding under the act of 1846, in presenting their defense, will be opened where an affidavit presented by the defendants shows that their case was entitled to be submitted to a jury.</p>

<p>Statute of frauds — Guaranty—Collateral undertaking.</p> <p>An owner of a building operation, fearing that men employed by the contractors would quit work, said to them: “I want you men to stay with the job and complete it, and if you are afraid that you wall not get-your money, I will see that you get your pay.” Held, that the undertaking oí the owner was a promise to pay the debt of another, and, not being in writing, was void under the statute of frauds.</p>

<p>Appeal, No. 16, March T., 1096, by plaintiff, from judgment of C. P. Elk Co., April T, 1908, No. 230, on verdict for defendants incase of Chatham National Bank v. J. K. Gardner, A. M. McClain and George A. McClain, trading as the Gardner Shingle Company, Limited.</p> <p>Assumpsit on promissory notes. Before Mayer, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in directing a verdict for defendants.</p>

<p>Appeal, No. 17, March T., 1906, by plaintiff, from judgment of C. P. Elk Co., Oct. T., 1903, No. 41, on verdict for defendants in case of Merchants & Traders Bank v. J. K. Gardner, A. M. McClain and George A. McClain, trading as the Gardner Shingle Company, Limited.</p> <p>Assumpsit on a promissory note.</p> <p>The opinion of - the Superior Court states the case.</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p>

<p>Appeal, No. 100, April T., 1906, by defendant, from judgment of Q. S. Crawford Co., May T., 1905, No. 17, on verdict of guilty in case of Commonwealth v. D. W. Tryon.-</p> <p>Indictment against a banker for accepting deposits when insolvent. Before Thomas, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-8) rulings on evidence referred to ' in the opinion of the Superior Court; (5, 6) in refusing a new trial “ when the evidence Avas overwhelmingly in favor of the defendant as to his actual knowledge of his, and the bank’s insolvency, at the time of the commission of the offense charged.”</p>

<p>Negligence — Boroughs—Defective sidewalk — Constructive notice. -</p> <p>In an action by a woman against a borough to recover damages for personal injuries sustained by a fall on a defective board walk, the question of the constructive notice to the borough of the condition of the sidewalk is for the jury where the plaintiff testifies that the board walk was old and in bad condition for three years before the accident, and a neighbor testified that the walk was broken and rotten, and had been so for a year before the accident. ,</p>

<p>Trusts and trustees — Cestui que trust — Assignment—Will.</p> <p>A direction in a will that the share of a son shall be paid directly to him “without diminution for the payment of any debts or liabilities whatever in transit from’’ the executor to him, applies to an assignment by the son of his share to his wife for the support of herself and children, and renders invalid such assignment.</p>

<p>Liquor law — License—Transfer—Revocation.</p> <p>Where a liquor license has been granted, but has been revoked by the clerk for nonpayment of the license fee within the fifteen days prescribed by the statute, and thereupon the licensee has abandoned the premises, there can be no transfer of the license to another person, inasmuch as there is nothing to which a petition for a transfer can attach.</p>

<p>Trusts and trustees — Spendthrift trust — Parol evidence — Will.</p> <p>The mere fact that testator left a portion of his estate to a daughter absolutely, and another portion to a son in trust to receive the income only, raises no presumption that he intended to create a spendthrift trust for the son, nor in such a case will evidence be admitted, in order to establish a spendthrift trust, that the son was insolvent and incapable of making a living for himself.</p>

<p>Appeal, No. 78, April T., 1906, by A. W. McCormick et al., from order of Q. S. Allegheny Co., Sept. T., 1904, No. 32, confirming report of commissioners in the matter of the division of the Borough of Avalon into wards.</p> <p>Petition for the division of the Borough of Avalon into wards.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order confirming the report of the commissioners.</p>

<p>School law — Agreement between school districts — Decree of court — Apportionment of property and debt — Acts of April 11, 1862, P. L. 471, and J une 24, . 1895, P. L. 259.</p> <p>Where a borough is formed out of a portion of a township and a new sdhool district thereby created, the two school districts may agree that in consideration of the new district having within its limits most of the property, all of the bonded indebtedness of the old district shall be assumed by the new district, and upon such an agreement being submitted to the court, a decree in accordance therewith will be entered without the necessity of hearing any testimony.</p> <p>The Act of April 11, 1862, P. L. 471, has not been repealed or suspended by the Act of June 24, 1895, P. L. 259.</p>

<p>Appeals — Interlocutory order — Desertion—Issue.</p> <p>An order refusing a petition for an issue to determine the paternity of a child, in proceedings under the Act of April 13, 1867, P. L. 78, by the mother of the child, for an order on the father for support of the child, is an interlocutory order from which no appeal lies.</p>

Appeal, No. 161, Oct. T.,/1905, by defendant, from order of O.'P. No. 4, Phila. Co., Jnne/T., 1904, No. 5,335, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Israel J. Marks v. Charles Willenski and Adolph Mark. Assumpsit upon a bond. Rule for judgment for want of a sufficient jaffi davit of defense. / The facts appear by the opinion of the Superior Court.

<p>Exemption — Debtor’s exemption — Ejectment—Landlord and tenant.</p> <p>Where a judgment is entered against a tenant under an ejectment clause in a lease which provides for the termination of the lease at the election of the landlord, the tenant is entitled to the benefit of debtor’s exemption Act of April 9, 1849, P. L. .533.</p>

<p>Practice, C. P. — Trial by court without a jury — Exceptions—Act o} April 22, 1874, P. L. 109.</p> <p>A party who has not filed exceptions within thirty days after úotice of the decision of the court in a case tried by the court without a jury, cannot thereafter file exceptions. Where, on appeal, the record shows that no such exceptions were filed, the appeal will be quashed.</p>

<p>Arbitration — Referee’s findings of fact — Review.</p> <p>The findings of fact of a referee appointed under the Act of May 14, 1874, P. L. 166, will not be reversed where there is no fraud or manifest error, and the findings are based upon the consideration and the weighing of conflicting oral testimony, and have been approved by the court below. 1</p>

<p>Appeal, No. 13, April T., 1906, by defendant, from order of Q. S. Beaver Co., March T., 1906, No. 4, refusing a liquor license In re Petition of James Mc-Crory for a tavern license.</p> <p>Petition for liquor license.</p> <p>Holt, P. J., gave as his grounds for refusing the license the following:</p> <p>The Old Economy Hotel is a three-story frame structure, erected probably more than fifty years ago by the Harmony Society, and the same- has been used as a hotel, so far as we have been able to learn, continuously since that time, and was until the year 1905 the only licensed hotel within the present limits of the borough of Ambridge, and was licensed for a number of years prior to the present year, the present applicant having enjoyed the privilege of a license for said hotel for the years 1904 and 1905. During the year 1905 two large modern brick hotels were completed and equipped for hotel purposes within the said borough, and to these two hotels licenses were granted in 1905 by the said court, and licenses have been granted to the last mentioned two hotels for the present year; and in addition to these hotels there are a number of good restaurants within the limits of the said borough. By a covenant running with the land upon which the town of Ambridge proper is located, the keeping and sale of liquors is prohibited, and all three of said hotels are located in a part of the said borough where the population does not exceed 2,000 people, and the evidence taken at the hearing in hehalf of the applicant is not very strong on the question of the necessity for the said Old Economy Hotel.</p> <p>In granting licenses to hotels, we think the court should steadily keep in view the interests of the traveling public, and to grant no more licenses than are necessary for their accommodation, and to grant the licenses to the hotels which afford the best accommodation in the shape of modern structures and equipment. In passing upon the applications in the borough of Ambridge, we were 'clearly satisfied from the evidence before us (having due regard to -the number and character of those for and against the granting of the same), that two hotels were all that were necessary to meet the demands of the public. Having found this fact, we then granted the licenses to the new modern hotels, which, in our judgment, would afford better accommodations to the public than one new house and the old one could afford.</p>

Appeal, No. 153, April T., 1906, by defendant,-from judgment of C. P. Warren Co., June T., 1905, No. 30, on verdict for plaintiff in case of W. A. Ray v. Jefferson County Gas Company. Assumpsit for salary.

<p>Appeal, No. 163, April T., 1906, by plaintiff, from order of O. P. Lawrence Co., Sept. T., 1905, No. 6, discharging rule for judgment for want of a sufficient affidavit of defense in case of Pennsylvania Company v. Marquis Limestone & Clay Company.</p> <p>Assumpsit for car demurrage. Before Porter, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Mechanic’s lien — Amendment—Practice, C. P.</p> <p>Where on the trial of a scire facias sur mechanic’s lien filed six months prior to the date of the trial, it appeared from the uncontradicted testimony that the plaintiff did not furnish the material on the credit of the building, it is not error for the court to refuse to permit the record to be amended so as to substitute as plaintiff, the person who really furnished the material on the credit of the building.</p>

<p>Evidence — Witness—Party dead — Cross-examination.</p> <p>Where an administrator has been cross-examined as to his accounts and writings showing business relations with the deceased, he may testify in his own behalf as to his transactions between himself and the decedent in the latter’s- lifetime. »</p> <p>Auditor — Findings of facts — Gift.</p> <p>An auditor’s findings of facts relating to a gift if based on sufficient evidence and confirmed by the orphans' court, will not be reversed in the absence of manifest error.</p>

<p>School law — Independent school district — Notice—Acts of May 8, 1855, P. L. 509, and May 20, 1857, P. L. 587.</p> <p>An order establishing an independent school district, will not, after the expiration of fifty years, be vacated and the district abolished, merely because the notice required by the act was not given before the order was made, nor because the order was made prior to the term provided by the Act of April 15, 1834, P. L. 537; and this is especially the case, where there is ground for holding that the report of the commissioners and the confirmation thereof, were made at the times prescribed by the act.</p> <p>The Act of May 20, 1857, P. L. 587, has no application to proceedings for the formation of independent school districts begun and consummated under the Act of May 8, 1855, P. L. 509, before the act of May 20, 1857, was passed.</p>

<p>Appeal, No. 34, April T., 1906, by Britton Run Independent School District, from order of-Q. S. Crawford Co., Feb. T., 1856, No. 51, abolishing independent school district In re Britton Run Independent School District.</p> <p>Petition to abolish independent school district. Before Thomas, P. j.</p>

<p>Judgment — Payment—Partnership—Evidence.</p> <p>On the trial of an issue to determine what, if anything, was due upon a judgment entered on a judgment .note, the case is for the jury and a judgment and verdict for the defendant in the judgment will be sustained, where the evidence for the latter, although contradicted, tended to show that the debt represented by the judgment had been fully discharged by the settlement of a partnership business, and a delivery by the defendant to the plaintiff of the latter’s interest in the business which had been carried on in the defendant’s name.</p>

<p>, Equity — Trespass—Injunction—Evidence.</p> <p>A court of equity will restrain by injunction the commission of a trespass which by reason of its character or the persistency with which it is repeated will become or threatens to become of a permanent nature.</p> <p>On a bill in equity to restrain a continuing trespass, it is not incumbent upon the complainant to set forth in his bill the evidence upon which he relies to show that the trespass was committed on his land. Such evidence is admissible at the trial, although not set forth in the bill.</p> <p>■ Appeals — Assignments of error — Practice, S. C.</p> <p>An assignment of error which sets forth two distinct orders of court is in' violation of the rules of court.</p> <p>An assignment of error which avers error in granting an injunction is insufficient if it does not set forth the decree itself.</p>

<p>Deed — Will—Consideration—Life estate.</p> <p>Where a writing is a formal conveyance of real estate in fee reserving the property to the grantor “ as long as she lived,” but with no reservation in the habendum, and extraneous evidence shows that the object of the grantor was to compensate the grantee for services rendered or to be rendered to her, and that she understood what the effect of the delivery of the instrument would be, and that she directed the scrivener to keep possession of the paper, the paper will be construed to be a deed, and not a will.</p>

<p>Telephone company — Damages to landowner — Municipal use — Eminent domain.</p> <p>The erection of telephone poles and wires in city and borough streets, under charter rights, with municipal consent, and in conformity to municipal regulations, is not in itself an additional burden for which the owner of the fee is entitled to compensation. It follows from this, that unsightliness of the poles, and noises which are the ordinary incident of the lawful and non-negligent maintenance of the poles and wires and the conduct of the business, do not constitute a special injury for which damages are recoverable; but appreciable interference with light, air, access or drainage is an additional burden to which the land of the abutting owner cannot be subjected without rendering to him just compensation.</p> <p>In an action against a telephone company by a landowner claiming to recover injury to his drainage by reason of the erection of a telephone pole, the question of the alleged injury will not be submitted to the jury where the only evidence on the subject is, that water backed into the plaintiff’s cellar, and that the pole was erected within about eight inches of the drain, without anything to show a connection between the two conditions. An additional ground for such ruling is found where there is no evidence as to the specific amount of the loss caused by the injury to the drainage.</p> <p>Where a large telephone pole designated as distributing pole of a diameter of sixteen inches is planted opposite to kn alley, at a point distant from the house line between nine and ten feet, and it appears that by reason of the pole it was impossible to take long pieces of timber and lumber through the alley for the purpose of repairs and alterations, the owner is subjected to an injury that is not temporary, and for which he is entitled to damages.</p>

<p>Receipt — Payment—Ambiguity—Construction of instrument — Evidence.</p> <p>Where a receipt for a payment on a judgment is so indefinite and uncertain on its face as to the amount of the payment that the court cannot construe it, it is not evidence either one way or the other on an issue to determine the unpaid amount of the judgment, except as to the fact that a payment applicable to the judgment was made on the day that the receipt was given.</p> <p>Evidence — Competency of witness — Party dead — Act of June 11, 1891, P. L. 287.</p> <p>Where on an issue to determine the amount of an unpaid balance due on a judgment, it appears that the plaintiff is dead, and two witnesses have testified on behalf of the executors as to occurrences in the lifetime of the deceased, the defendant is qualified also to testify as to such occurrences.</p>

<p>Contract — Evidence—Witnesses—Opinion.</p> <p>In an action to recover the price of a quantity of crushed limestone, witnesses were called who showed that they had had actual experience in the use of concrete materials, although they were not familiar with the theory of combination by percentages. They testified as to their actual experience and the result secured by combining crushed stone with cement mixtures to fill voids. Held, that the testimony of these witnesses were properly admitted.</p>

<p>Liquor law — Wholesale license — Bottler’s license — Act of July 30, 1897, P. L. 464.</p> <p>The holder of a license under the Act of July 30, 1897, P. L. 464, as a wholesale dealer in vinous, spirituous, malt or brewed liquors has no right under such license to purchase beer in barrels and kegs, and transfer the beer thus purchased into bottles, and sell the same at wholesale.</p>

<p>Divorce — ■Practice, C. P. — Appointment of master — Irregularity—Adultery.</p> <p>An order irregularly appointing a master in divorce prior to the return of an order of publication, cannot be taken advantage of on appeal by the respondent, where it appears that after the return of the order of publication the respondent had personal notice of the appointment .of the master, appeared before him by counsel, testified in her own behalf and called a number of witnesses, and that no exception was taken before the master or the court to the want of jurisdiction of the master.</p> <p>A divorce will be granted to a husband on the ground of adultery of his wife, where the inferences of the respondent’s guilt are fairly deducible from the testimony, although there is no direct evidence to establish it.</p>

<p>Appeal, No. 30, April T., 1906, by defendant, from decree of C. P. No. 2, Allegheny Co.', Jan. T. 1904, No. 568, granting divorce in case of Annie McAndrews v. John McAndrews.</p> <p>Libel for divorce. Before Young, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of court.</p>

Appeal, No. 72, April T., 1906, by-defendant, from judgment of C. P. Greene Go., Nov. T., 1904, No. 57, on verdict for plaintiff in case of Ida M. Rhome et al v. George M. Morris et al. Appeal from Register of Wills. Before Crawford, P. J. The facts are stated in the opinion of the Superior Court.

<p>Vendor and vendee — Fraud—Concealment—Prior conveyance of coal— Rescission — Contract.</p> <p>Where a person sells land by articles of agreement and conceals the fact that he had previously conveyed the coal under the land to another person by a deed of record, the purchaser on discovering the fraud may rescind the contract and recover back the poi'tion of the purchase money paid, the value of the improvements which he had placed upon the land, and damages for the loss of his bai'gain.</p>

<p>Contract — Several and entire contract — Intention—Evidence.</p> <p>The entirety of a contract depends upon the intention of the parties and not upon the divisibility of the subject. The several nature of the latter may often assist in determining the intention, but -will not overcome the intention to make an entire contract when that is shown; nor will the mode of measuring the price, as by the bushel, ton or pound, change the effect of the agreement, even in entire contracts, from agreeing to partial payments, pending the full performance.</p> <p>In an action to recover the difference between the contract and market price of pig iron which defendant refused to accept, it appeared that defendant by an order in writing directed the plaintiff to forward 200 tons “at $21.00 per gross ton, Time of delivery; one ear per week, July and August.” The shipments began in August, and it appeared that they corresponded with .the orders given by the defendant company. The market price of pig iron decreased, and in December the defendant canceled its order, and the plaintiff was compelled to sell the undelivered balance aggregating seventy-two tons in the open market, at a loss. The various shipments were paid for as they were received. Held, that the court committed no error in instructing the jury that the contract was an entire contract.</p>

<p>Insurance — Mutual insurance companies — Receiver—Appointment of receiver — Collateral attack — Act of June 23, 1885, P. L. 137.</p> <p>The appointment of a receiver of a mutual insurance company by the court of common pleas of Dauphin county under the Act of June 23, 1885, P. L. 137, cannot be attacked in a suit brought by a receiver against a policy holder to recover assessments; nor in such a case can the amount of the assessments as levied by the court be attacked by the defendant.</p> <p>A receiver of a mutual insurance company appointed by the common pleas of Dauphin county, may bring an action in his own name to recover assessments levied by the court.</p> <p>A canceled policy of a mutual insurance company is the same as an expired policy, and is liable to pay its share of losses up to the date of cancellation.</p>

<p>Vendor and vendee — Payment of taxes — Protection of title.</p> <p>Where a vendor of land has instituted a suit against the vendee to recover the purchase money, and pending the suit has paid the taxes which have been levied against him as owner of the title held as security for the payment of the purchase money, such vendor may, after the decision of the suit in his favor, recover the taxes thus paid, and it is immaterial that no demand was made upon the vendee to pay the taxes, and no seizure of the vendor’s goods was made by the collector to enforce payment thereof.</p>

<p>Landlord and tenant — Distress—Removal of goods in nighttime.</p> <p>A tenant after taking possession of a residence bought some furniture for use therein. Shortly aftenvards he removed from the house, locked it, and turned the key over to a stranger. Upon his removal he asked the dealer, who sold him the furniture, to take it back. When the tenant left rent was due, and a constable at the instance of the landlord made several ineffectual attempts to levy on the goods between sunrise and sunset. The furniture dealer secured the key to the house, and while he was attempting after sunset to remove the furniture, the constable levied upon it before it reached the pavement. Held, that the distress was a lawful one.</p>

<p>Negligence — Railroads—Infant—Parent and child — Parties—Amendment.</p> <p>Where a suit is brought in the name of a father to recover damages for the death of an infant son, and the jury returned a verdict in a lump sum for the parents as “total damages for the death of their son,” the record may subsequently be amended by adding the name of the mother of the deceased.</p> <p>Negligence — Railroads—Newsboy—Station—Defective locomotive.</p> <p>Where a boy employed by a news company is properly and lawfully engaged in taking newspapers from a train standing at a station, and while doing so is killed by a locomotive passing on the track between the train and the station, the company will be liable for his death where it appears that the locomotive was in a defective condition, that by reason of the defect it could not be stopped by its engineer after he had ascertained that a train was standing at the station, and that the locomotive was being operated by direct order of the superintendent of the division after he had been advised of its defective condition.</p>

<p>Appeal, No. 129, April T., 1906, by plaintiff, from order of C. P. Cambria Co., March T., 1906, No. 400, discharging rule judgment for want of a sufficient affidavit of defense in case of International Savings & Trust Company, Receiver of the Duquesne Mutual Casualty & In-</p> <p>demnity Co., v. John Stenger.</p> <p>Assumpsit to recover assessments. Before O’Connor, 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>Justice of the peace — Jurisdiction—Amount of claim.</p> <p>On an appeal from the judgment of a justice of the peace for $300, the jurisdiction of the justice will not be ousted by evidence that plaintiff, a physician, on advice of counsel fixed the value of his services at $300, and that in making a claim against a school board for the' same services, fixed the value at $420, or at the rate of $10.00 per visit for forty-two visits, there being nothing on the record to show that he ever made any other claim against the defendant than that for $300.</p>

<p>Appeal, No. 59, April T., 1906, by defendant, from judgment of C. P. Butler Co., Deo. T., 1903, No. 51, on verdict for plaintiff in ease of B. C. Anderson v. The Bessemer & Lake Erie Railroad Company.</p> <p>Trespass against a common carrier for loss on goods. Before Thomas, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $275.03. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 167, April T., 1906, by defendant, from judgment of G. P. Butler Co., Sept. T., 1904, No. 82, on verdict for plaintiff in case of Frank X. Kohler v. County Commissioners of Butler County.</p> <p>Appeal from report of a jury of view. Before Galbbeath, P. J.</p> <p>The facts are stated in the opinion of the Superior. Court.</p> <p>Verdict and judgment for plaintiff for $1,120. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Criminal law — School directors — Corrupt interest in contracts — Indictment.</p> <p>Where an indictment against a school director charges him substantially in the words of section 66 of the act of March 31, 1860 with being interested in a contract for furnishing'school supplies to the district of which he is director, and no application is made for a bill of particulars, the defendant is not entitled to have the indictment quashed because it was not sufficiently specific as to the kind of supplies and material furnished, or the price or prices agreed upon.</p> <p>After a motion to quash an indictment has been overruled, the jury sworn, and the testimony taken, it is too late to move to quash the indictment because it charged several separate and distinct misdemeanors in one count.</p> <p>An indictment charging a school director with being interested in a contract for furnishing materials and supplies will not be quashed because it charged that certain materials and supplies were furnished to one schoolhouse of the district, and that certain other materials and supplies were furnished to another schoolhouse of the district. In such a case the gravamen of the offense charged is not the mere furnishing of the materials and supplies, but the being unlawfully interested in the contract under which they were furnished.</p> <p>The sixty-sixth section of the act of March 31, 1860 as applied to school directors is not restricted to cases where the director of the purchasing school district is at the same time a member, officer or agent of some other corporation which has contracted to furnish the supplies or materials, but includes a case where the contract is between a person in his sole right, or as a member of a firm, officer or agent of a corporation, and the school district of which he is a director.</p> <p>A corrupt or dishonest intent, or unfairness in the price charged for the supplies and materials, is not an essential element of the offense. Therefore, an allegation in an indictment that the defendant was “corruptly” interested in the contract is surplusage.</p> <p>Evidence — Criminal law — Good character — Reasonable doubt.</p> <p>Evidence of good character is substantive and positive proof in the prisoner’s behalf, and may give rise to a reasonable doubt, which would not otherwise'exist, by making it improbable that a man of such character would commit the offense charged; but where the jury is satisfied beyond a reasonable doubt under all the evidence that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.</p>

Appeal, No. 242, Oct. T., 1905, by defendant, from judgment of Q. S. Schuylkill Co., Nov. T., 1905, No. 1,014, on verdict of guilty in case of Commonwealth v. John A. Miller. Indictment for bribery.

<p>Appeal, No. 60, April T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 152, on appeal from justice of the peace in case of Fred Clauchs v. City of Pittsburg.</p> <p>Appeal from justice of the peace.</p> <p>The opinion of the court below was as follows :</p> <p>The first exception to the record of the alderman is : “ The alderman had no jurisdiction for the reason that the action was brought in the name of the" city of Pittsburg, but without the knowledge, consent or authority of said city.” The 71st section of the act of June 7, 1901, known as the “Plumbers’ Act,” P. L. 493, provides that the “fine shall be recoverable before any alderman of police magistrate in said cities by summary proceeding, and shall be sued for in the name of such city.” The suit was brought before an alderman of the city, and in the name of the city of Pittsburg, but, so far as the record shows, without the knowledge, consent or authority of the city. The case of City v. Strawbridge, 4 W. N. C. 215, is relied upon as authority that the suit cannot be maintained without the authorization or approval of the city. The principal reason assigned for the decision in that case is that the city “ may be obliged" to pay large sums for costs in proceedings with which it has had no concern.” That reason cannot obtain in actions commenced in the city of Pittsburg, for the reason that the 2d section of the act of February 10,1859, applicable to the city of Pittsburg, provides, that “ the mayor, alderman and citizens shall not be liable for the costs in any suit in which the corporation may be plaintiff unless the institution of the said suit has been authorized by the mayor, alderman and citizens of said city: ” Thompson’s Digest, 1. But the first section of the act of April 13, 1859, seems to me to preclude the bringing of suit in the name of the city without its consent. That act provides: “No suit shall be brought by any city officer in the name of the city without notice in writing or in person to the regular city solicitor: ” Thompson’s Digest, page 1. Impliedly, then, suits in the name of the city are to be instituted by some one of its officers, but even its officers cannot institute suit without due notice to the city solicitor. It would seem, therefore, that suit may be entered relying on the city’s approval of the suit after it has been entered, but notice is required to be given to the city solicitor before the suit is instituted. Reading the second section of the act of February 10, 1859, which prevents the city from liability for costs unless the suit is authorized, and the first section of the act of April 13, 1859, which prevents the institution of suit by any city officer without notice to the city solicitor, we have the whole subject covered, and a complete and ready means provided for the institution of suits in the name of the city; first, the authorization by the corporation, and second, the proper notice to the chief law officer of the said city.</p> <p>I am, therefore, of the opinion that the first exception must be sustained. While this disposes of the entire case, and makes it unnecessary to consider the other exceptions, it is proper to remark that my present opinion is that the Plumbers’ Act of 1901, P. L. 493, does apply to journeymen plumbers and all other persons carrying on or working at the business of plumbing, etc., and that the obtaining of a license by a firm or corporation upon the examination of one member thereof, or of its superintendent, permits such firm or corporation to engage in the business of plumbing, but does not permit any person to do the work of a plumber unless such person is licensed. I do not think any unlicensed person can do the manual and mechanical work required, though an unlicensed person may be a member of a firm or corporation carrying on the business. The purpose of the act seems to me to be to secure better sanitary conditions in the city by seeing that the important work of plumbing, upon which depends so largely the healthful conditions' of the buildings and houses of the city and thereby the health of the occupants of those buildings and houses, shall only be done by skillful and approved mechanics, and therefore it provides that at least one member of the firm or corporation shall be licensed, permitting others not licensed to be interested in the business, but requiring that every person doing the manual or mechanical work of the business shall be examined and-licensed, thus securing skilled labor in the most important part of the business. This purpose would be defeated if one skillful mechanic could take under the protection of his license any number of unskilled persons to do the most important part of the work. Having sustained the first exception, the judgment of the alderman must be reversed, and restitution awarded of the fine and costs.</p> <p>And now, May 16,1905, the first exception is sustained, the judgment reversed and restitution of the fine and costs awarded to the plaintiff in error.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeals — Statement of question involved — Paper-books—Non-pros.</p> <p>Where an appellant fails to print in his paper-book a statement of the question involved, the appeal will be non-prossed. The rule as to such statement is in the highest degree mandatory, and admits of no exception.</p>

<p>Appeal, No. 154, April T., 1906, by Robert L. DeHaven, from order of Q. S. Butler County, Feb. Term, 1906, No. 32, refusing^ a wholesale liquor license In re Application of Robert L. DeHaven.</p> <p>Petition for wholesale liquor license. Before Galbreath, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 3, March T., 1906, by defendant, from judgment of C. P. Clinton Co., Jan. T., 1902, No. 106, for plaintiff on case tried by court without a jury, in suit of William Auman v. Nathan Hough et al. Ejectment for 207 acres of unseated land in Logan Township. The case was- tried by Mayer, P. J., without a jury under the act of April 22,1874. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for plaintiff.

<p>Appeal, No. 17, Ocfc. T., 1906, by-defendant, from judgment of Q. S. Potter Co., Dec. T., 1904, No. 35, on verdict of guilty in case of Commonwealth v. D. A. Sunderlin.</p> <p>Indictment against county commissioners for being illegally interested in contracts for public bridges. Before Thomas, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-8) refusing to quash indictment; (14-20) various rulings on evidence referred to in the opinion of the Superior Court.</p>

<p>Townships — Supervisors—Contract—Road machine.</p> <p>The purchase of a road machine by township supervisors is a deliberative as distinguished from a purely ministerial act, and is governed by the general rule applicable to such acts.</p> <p>In an action against a township to recover the price of a road machine, the plaintiff makes out a prima facie case for the jury where he shows that the two supervisors met and conferred with regard to the machine, and after inspecting it and observing the manner in which it worked, agreed between themselves to accept it, and did accept it, gave their note on behalf of the township for the price, and that thereafter the machine remained in possession of the township.</p> <p>In such a case the plaintiff is not bound, in the first instance, to go further and adduce express evidence that the supervisors discussed the matter before them for determination, or that they expressed their views one to the other regarding the many things it was their duty to consider before taking such action, or that each did, in fact, honestly, fairly, deliberately, and adequately consider the interests of the taxpayers and inhabitants of the township.</p>

<p>Criminal law — Indictment—Conspiracy—Election laws.</p> <p>Nine persons were indicted for a conspiracy to violate the election laws. Three of these at the time of the indictment were fugitives from justice. For an irregularity at the preliminary hearing the bill was quashed as to all. the defendants except the three fugitives; as to the latter the bill stood. In the meantime one of the other defendants died. A new indictment was then found for the same offense against the five living persons as to whom the first bill had been quashed. At the trial the court made an order that all of the defendants under both bills of indictment should be tried together before the same jury. Held, that the order .was proper.</p> <p>Criminal law — Crime against the ballot — Opening ballot box.</p> <p>On the trial of an indictment for a conspiracy against election laws a ballot box, when properly identified, may be opened, and for this purpose a commissioner may be appointed to open the box in the presence of the district attorney and counsel for defendants so as to sort and arrange the contents of the box in such order that they could more rapidly and conveniently be inspected by the jury.</p> <p>On the trial of such an indictment where it appears that certain of the defendants made a violent attempt to seize a window book, and that one of the defendants asked the watcher whether he intended to put it out of sight, such book may be offered in evidence against the defendants.</p> <p>At a criminal trial á witness against the defendant may be asked if there existed any quarrel or ill feelings between himself and the defendant, and if he answers this in the negative, the defendant may contradict the witness, but he cannot testify as to the origin or subject-matter of the alleged quarrel.</p>

<p>Criminal law — Election law — Crime against the ballot — Conspiracy.</p> <p>A clerk of elections may be convicted with the other election officers of conspiracy to violate the election laws, where it appears that he was present during the whole election day, saw without protest numerous illegal acts committed by the election officers, took part in the count and signed the election return.</p>

<p>Road law — Sewers—Change of grade — Damages—Remedy.</p> <p>Where a municipality through its councils has adopted a plan for grading a street and constructing a sewer, and has made the improvements in accordance with the plan, and without negligence, a property owner whose property has been injured by the work cannot maintain an action of trespass against the municipality for the injuries sustained; where, however, after the completion of the improvement the municipality permits a vent in the sewer to become and remain closed, in consequence of which there is a backage of water into the owner’s cellar, he may maintain an action of trespass for such injuries; but in such action he cannot recover for the injuries resulting from the original construction without negligence. For such injuries he must pursue the statutory remedy.</p>

<p>Appeal, No. 64, April T., 1906, by defendant, from order of Q. S. Allegheny Co., June T., 1905, No. 211, granting restraining order under the oleomargarine act of May 29,1901, in case of Commonwealth v. G. B. Henderson.</p> <p>Petition for restraining order.</p> <p>The petition was as follows :</p> <p>The petition of E. D. Miller respectfully represents:</p> <p>That he is a special agent of the department of agriculture of Pennsylvania, acting for and by the direction of the state dairy and food commissioner.</p> <p>That at his instance John Banzhoff purchased from G. B. Iienderson, of 128 Frankstown avenue, in the city of Pittsburg, state of Pennsylvania, on or about February 18, 1905, one or more pounds of an article or compound known as oleomargarine, and handed the same over to your petitioner, which was by him delivered to F. T. Aschman, chemist for the dairy and food department, and upon an analysis by him found to be oleomargarine, which said article or compound was sold contrary to the provisions of an act of assembly entitled, “ An act to prohibit the manufacture and sale of oleomargarine and butterine,” etc., approved May 29, 1901.</p> <p>That upon the information so obtained a warrant was issued by Alderman Groetzinger for the arrest of the said G. B. Henderson on or about March 15, 3905, and hearing waived, and the defendant held in bail for court; and subsequently a true bill of indictment was found against'him, to wit: on June 9, 1905, the said bill of indictment being of June sessions, 1905, No. 211. A copy of said bill of indictment is hereto attached and marked exhibit “ A.”</p> <p>That subsequent to the commencement of this prosecution, to wit: on June 17, 1905, the said G. B. Henderson, at his place of business, No. 128 Frankstown avenue, in the city of Pittsburg aforesaid, has again violated the provisions of the .act of assembly aforesaid by selling to F. J. Enfield one or more pounds of a similar article which, upon analysis, proved to be oleomargarine.</p> <p>Your petitioner therefore asks the said court to make an order- commanding and restraining the said G. B. Henderson, or his agents, from further violating any of the provisions of the act of assembly aforesaid until such time as the said prosecution shall have finally decided and determined.</p> <p>The court granted the order prayed for.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 67, April T., 1906, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1905, No. 28, for defendant on case stated in suit of Cowanshannock Poor District v. Armstrong County.</p> <p>Case stated to determine liability to bury a pauper.</p> <p>Patton, P. J., filed the following opinion:</p> <p>August 16, 1905: The case stated is brought under the Act of March 6, 1903, P. L. 18, by the poor district to recover from the county the expenses sustained by the plaintiff in the burial of a certain Frank Shrefrick, a pauper, who died in said district, but had no legal place of settlement in the state of Pennsylvania.</p> <p>By an opinion this day filed in the case of Parks Township Poor District v. Armstrong County, we held that the county is not liable for any such expense incurred before notice to its commissioners. The case stated shows that the expenses were incurred on March 17, 1905, and the county had no notice until April 18,1905. This in our opinion was too late. We are of the opinion that it was the duty of the overseers to furnish aid to the pauper as soon as required, and that it should be paid for by the proper poor district up until such time as they notify the county commissioners. After the notice was given then the burden was shifted from the poor district to the county. The purpose of this act of assembly was to spur the overseers to prompt action, if they desired to hold the county liable. If a delay of one month was excusable, so would be the delay of one year, and thus the provisions of the act of assembly are frittered away. If we hold all parties to the words of the act of assembly, no injustice is done. At most, the poor district would only have to pay such expenses as were incurred from the time that they were rendered until notice was given to the county commissioners, which at most could be but for a few days, and would not be an unjust or undue burden on the poor district. For further reasons for reaching the above conclusion, we refer to the opinion this day filed in the case of the Overseers of the Poor of Parks Township v. Armstrong County, No. 27, Sept. Term, 1905.</p> <p>And now, August 16, 1905, judgment is entered in favor of Armstrong county and against the overseers of the poor of Cowanshannock township, for costs. To which order and decree plaintiff excepts and at its request bill of exceptions sealed.</p> <p>Error assigned was judgment of the court.</p>

<p>Practice, C. P. — Nonsuit—Evidence—Contract—Principal and agent— Corporation — Railroad.</p> <p>A peremptory nonsuit is in the nature of a judgment for defendant on demurrer to the evidence; and hence, in testing the validity of such non-suit the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them.</p> <p>It is immaterial that the evidence in support of the plaintiff’s claim may be very slight, provided that it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to well-settled rule, be submitted to the jury.</p> <p>In an action against a railway company to recover for services rendered in securing rights of way, plaintiff claimed that he was employed by a person who was an agent of the company. The evidence tended to show that the defendant opened an office, placed its name upon the door, and left the alleged agent to occupy it in such a manner that his agency might be inferred; that he represented himself as the agent of the company; and that the stockholders and officers of the company knew this, and knew that the plaintiff was employed by the alleged agent in the interest of the company. Held, that the question of the agency was for the jury.</p> <p>While the declarations of an alleged agent are not evidence of the existence of the agency, continuous acts performed by him in and about the business of his alleged principals, and their recognition of these acts, are evidence from which an agency may be fairly inferred by a jury.</p>

<p>Appeal, No. 111, April T., 1906, by defendant, from judgment of C. P. Butler Co., March T., 1905, No 2, on verdict for plaintiff in case of Etna Manufacturing Company v. Enos & Co. for use.</p> <p>Issue to determine title to an engine. Before Gad-breath, P. J.</p> <p>The court charged in part as follows:</p> <p>[Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent.] [6]</p> <p>[So that we may accept it as being the law that where an article is sold upon trial, that is, that the purchaser shall try it, or something is to be done by the seller before it is to be accepted by- the purchaser or the money paid, in that event the title does not pass until that trial and acceptance have taken place and the money paid in accordance with it. That I think is still the rule of law in this state.] [7]</p> <p>[You wish to buy and someone wishes to sell you a reaping machine; you wish to know that it will work satisfactorily; the seller says that he is willing to sell the machine, put it together and start it going and if it works satisfactorily to you and you accept it, that you will then pay him the price agreed upon; in that event he brings the reaper to your farm ; it does not become your property and subject to the payment of your debts or to be taken on execution the moment it is set on your farm, but under the law it is still the property of the vendor, the man who sells the machine, until such time as he has-set it up and started it going and it proves acceptable and you pay the money pursuant to that acceptance ; up till that time it is the property of the vendor and could be taken for his debts, but not yours.] [8]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (6, 7, 8) above intructions, quoting them, and (9) in directing a verdict for plaintiff.</p>

<p>Appeal, No. 43, April T., 1906, by defendant, from order of O. P. No. 3, Allegheny Co., Nov. T., 1903, No. 41, making absolute rule for judgment against garnishee in ease of George H. McGeary v. Charles C. Huff.</p> <p>Attachment execution against a trust company.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment against the garnishee.</p>

<p>Appeal, No. 46, April T., 1906, by defendant, from order of C. P. No. 2, Allegheny Co., Oct. T., 1904, making absolute rule for judgment for want of a sufficient affidavit of defense in case of W. J. Jackson v. American Natural Gas Company.</p> <p>Appeal from judgment of a justice of the peace.</p> <p>From the record it appeared that on April 10, 1900, plaintiff executed a gas lease to W. G. Hunter, which was aftérwards assigned to the defendant. The lease was as follows:</p> <p>“ In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, W. J. Jackson, of Kiskiminetas township, Armstrong county, Penn’a, first party, hereby grants unto W. G. Hunter, of Allegheny city, Pa., second party, his heirs and assigns, all the oil and gas in and under the following described premises, together with the right of ingress and egress at all times for the purpose of drilling and operating for oil, gas or water, and to conduct all operations and lay all pipes, erect such buildings and tanks necessary for the production and transportation of oil, gas or water, reserving, however, to first party the equal' one-eighth (1-8) part of all oil produced and saved from said premises, to be delivered in the pipe line to the credit of first party free of charge, all that certain lot of land situate in the Township of Kiskiminetas, County of Armstrong, in the State of Pennsylvania, bounded and described as follows, to-wit: North by lands of Cocheranand McLaughlin and R. Beck and Martin heirs; East by lands of J. Y. and S. M. Jackson; West by lands of George and McClelland Kerr; South by lands of Mathias Bousterd and J. A. Wylie; containing 275 acres, more or less.</p> <p>“ To Have and to Hold the Above Premises unto the parties of the second part, his heirs, executors and assigns, on the following conditions: Term, ten years, and as much longer as oil or gas is produced in paying quantities.</p> <p>“If gas only is found, second party agrees to pay at the rate of $200 each year, payable quarterly in advance, for the product of each well while the same is being used off the premises and marketed.</p> <p>“ Whenever first party shall request it, second party shall bury all gas lines, and pay all damages done to growing crops by reason of burying and removing of said pipe lines.</p> <p>“ No well shall be drilled nearer than 300 feet to the house or barn on said premises without the consent of both parties hereto.</p> <p>In case no well is commenced within three months from this date, then this grant shall immediately become null and void as to both parties. Provided, that second party may prevent such forfeiture from quarter to quarter, and no longer, by paying to the first party at the rate of sixty-eight 75-100 dollars per quarter at office of the American Natural Gas Company, Pitts-burg, until such well is commenced.</p> <p>“ The second party shall have right to use sufficient gas, oil and water to run all necessary machinery placed on the within or neighboring premises owned or operated by them, and also the right to remove all his property at any time.</p> <p>“ All monies that may become due under this instrument pajable to W. J. Jackson by check of the American Natural Gas Company mailed to his address, Apollo, Pa. When a well is completed, the rental is thereby reduced to $183.33 per year, or $45.83 per quarter, and the well holds protection of ninety-one acres. When second well is completed, the rental is reduced to $91.66 per year, or $22.91 per quarter; and when a third well is completed the rental ceases, and it is understood each well holds for protection one-third of the 275 acres.”</p> <p>' The defendant company completed two wells prior to July 9, 1902. On July 9, 1902, the defendant gave the plaintiff the following notice:</p> <p>“ Pittsburg, Pa., July 9th, 1902.</p> <p>“ Mr. W. J. Jackson, Apollo, Pa.:</p> <p>“ Dear Sir — In view of the fact that our operations in your vicinity have been very disappointing, we have decided not to make any further payment of rental on your oil and gas lease, dated April 10th, 1900, and hereby notify you that we consider our rights forfeited and our obligations at an end, as far as they pertain to the undrilled one-third of the farm.</p> <p>“Yours very truly,</p> <p>“ American Natural Gas Company.”</p> <p>The plaintiff now sues for rental at the rate of $22.91 per quarter from July 10, 1902, to July 10, 1904, making the sum of $160.37. The defendant in its affidavit of defense claimed that under the forfeiture clause in this lease, as decided in the case of Glasgow v. Chartiers Oil Company, 152 Pa. 48, the defendant was not liable.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of' the court.</p>

<p>Appeal, No. 80, April T., 1906, by plaintiff, from order of O. P. No. 3, Allegheny Co., May T., 1904, No. 666, making absolute rules to strike off appeals in case of J. E. Brackney v. Crafton Borough.</p> <p>Rule to strike off appeals. Before Evans, 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. 114, April T., 1906, by defendant, from order of C. P. No.,2, Allegheny Co., July T., 1905, No. 994, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Andrew Mellon v. Harry C. Sawyer.</p> <p>Appeal from judgment of a justice of the peace.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment of the Superior Court.</p>

<p>Appeal, No. 158, April T., 1906, by James C. Ferguson, from decree of O. 0. Westmoreland Co., Aug. T., 1903, No. 61, in not sustaining exceptions to adjudication in Estate of Samuel N. Ferguson, deceased.</p> <p>Exceptions to adjudication of Wilson, P. J.</p> <p>In addition to the facts stated in ■ the opinion of the Superior Court it appeared that one of the legatees mentioned by the testator was his brother, William M. Ferguson, to whom $800 was to be paid out of the proceeds of the real estate in case of the death of the son. William M. Ferguson died January 1, 1892, and Daniel J. Ferguson, testator’s son, died on November 13, 1897, aged about ten years, leaving to survive him as his sole heir, his mother, Minnie Ferguson. William F. Ferguson left to survive him as his sole heir his father, James C. Ferguson. The court refused to award the legacy of $800 to James C. Ferguson.</p> <p>Error assigned was the decree of the court.</p>

<p>Adverse possession — Tenant for life — Evidence—Witness—Party dead.</p> <p>Where a widow takes a life estate in land formerly belonging to her husband, as an heir at law of her minor son, and rents the land to a person to whom she subsequently attempted to leave it by will, and it appears that neither the widow nor her tenant and devisee ever set up any hostile claim to the fee in the land during the lifetime of the widow, an ejectment may be successfully maintained fifteen years after the death of the widow by a descendant of a brother of the widow’s husband for an undivided interest in the land. In such a case the fact that the widow had made her will more than twenty years before the death devising the land to her tenant, and that this fact was well known in the neighborhood, is immaterial as affecting the plaintiff’s right.</p> <p>In the above .case one of the defendants who claimed under the tenant is an incompetent witness as to matters occurring in the lifetime of a brother of the widow’s husband through whom the plaintiff claimed title.</p>

<p>Insurance — Life insurance — Beneficiary—Assignment of policy.</p> <p>A policy of insurance provided that the insured might “change the beneficiaries at any time during the continuance of this policy by filing with the company a written request, accompanied by this policy, such change to take effect upon the indorsement of the same on the policy by the company.” The beneficiaries were two minor children of the insured. The insured, when under sentence of death, executed a paper purporting to be an assignment of the policy in payment of, or as collateral security for, a pre-existing debt. The paper was delivered to the insurance company, but it was not accompanied by the policy, nor was any change of beneficiary indorsed on the policy, nor was it stated in the paper that it was impossible to produce the policy for the purpose of having such indorsement made. The paper was not addressed to the company, nor was the subject of change of beneficiary mentioned therein, nor did it appear in any way that the insured intended it to be filed with the company. Held, (1) that the burden of proving the intent of the insured to revoke the designation of his children as beneficiaries, rested on the claimant; (2) that an assumption by the company of a neutral position could not give the paper the effect of a revocation of the designation, unless it was so intended by the insured, and (3) that the evidence was insufficient to establish an intent to change the beneficiaries.</p>

<p>Constitutional law — Summary convictions — Appeals—Act of April 22, 1905, P. L. 284.</p> <p>The Act of April 22, 1905, P. L. 284, entitled “An Act to amend an Act entitled ‘An Act relating to appeals in cases of summary convictions,’ approved the 17th day of April, a. d. 1876, providing for the entering of security on appeal on summary conviction,” is unconstitutional because (1) it violates article V, section 14, of the constitution, inasmuch as it deprives the appellate court from allowing or refusing an appeal in cases of summary conviction; and (2) because it violates article III, section 3, in not clearly expressing in its title the provision depriving the appellate court of its discretion in the allowance or refusal of appeals in cases of summary conviction.</p> <p>Appeals — Interlocutory order — Quashing appeal.</p> <p>Where the defendant in a summary conviction takes an appeal under the act of April 22, 1905, but subsequently petitions the court of quarter sessions for the allowance of an appeal nunc pro tunc under the Act of April 17, 1876, P.-L. 29, and this application remains undisposed'of, an appeal subsequently taken by the commonwealth, from an order refusing to strike off defendant’s appeal,'will be quashed as an interlocutory order from which no appeal lies.</p>

<p>Negligence — Mines and mining — Bituminous mines — Mine foreman— Ventilation — Failure to provide material — Question for jury.</p> <p>In an action against a coal mining company to recover damages for the death of plaintiff’s husband, a miner, caused by an explosion of gas in a bituminous coal mine, the ease is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence shows that the accident was due to the failure of the mine foreman to close up “cut throughs” that first became useless, and then dangerous, as the work progressed; that at the time of the explosion there was absolutely no material on hand, as required by law, to enable the foreman or anyone else to keep the ventilating apparatus in a condition necessary for the safety of the miner; and that such material had been asked for by the foreman and promised by the superintendent more than three weeks before, but was not furnished until the day after the explosion.</p>

<p>Negligence — Master and servant — Vice principal — Definition.</p> <p>A vice principal for whose negligence an employer will be liable to other employees must be either, first, one in whom' the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not mere authority to superintend certain work of certain workmen, but control of the business, and exercising no discretion or oversight of his own; or secondly, one to whom he delegates a duty of his own which is a direct personal and absolute obligation, from which nothing but performance can relieve him.</p> <p>Any person who so far represents the master as to exercise his authority in directing the places where the employees shall work, whether he be called the superintendent, foreman, or agent, will become in that respect and as to the performance of that obligation of the master, a vice principal.</p> <p>In an action to recover damages for personal injuries it appeared that the plaintiff was directly ordered to work in a place, which, under the conditions usually prevailing, would have been regarded as a reasonably safe one, but which by virtue of another direct order from another person employed by defendant, had been suddenly converted into a place of great risk and danger. The evidence showed that the person who gave the order was in general charge of the men, hiring and discharging them at pleasure, and that he was known as the foreman. There was also evidence that he was superintendent under the architect. Held, that the question whether such person was a fellow servant of the plaintiff, or a vice principal of the defendant, was for the jury.</p> <p>Appeals — Assignments of error — Extract of charge.</p> <p>An extract from the charge alleged to be error is not a proper basis for an assignment of error, where the extract taken in connection with the context, and the charge in general, was a proper instruction.</p>

<p>Appeal, No. 79, April T., 1906, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1904, No. 188, on verdict for plaintiff in case of Nathan Hottner v. Aachen and Munich Fire Insurance Company of Aix-la-Chapelle, Germany.</p> <p>Assumpsit on a policy of fire insurance. Before Umbel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>- Verdict and judgment for plaintiff for $1,054.90. Defendant appealed.</p> <p>Error assigned was (6) refusal of binding instructions for defendant..</p>

<p>Appeal, No. 1, April T., 1907, by plaintiff, from judgment of C. P. Fayette Co., Sept. T., 1903, No. 340, for defendant non obstante veredicto in case of Mary D. Newmyer v. Jean H. Davidson, Executrix of William A. Davidson, deceased.</p> <p>Assumpsit for an amount alleged to be due on a note. Before Umbel, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Road law — Change of grade — Boroughs—National road — Act of May 24, 1878,P. L. 129. ■ '</p> <p>A borough is authorized to change, within the borough limits, the grade of a road which extends beyond the line of the borough, and which was not laid out by the authorities of the borough; and in such a case, an owner of property injured may have the damages ascertained under the provisions of the Act of May 24, 1878, P. L. 129. This rule applies to a street in a borough which is a part of the road known as the “National or Cumberland Road,” originally constructed by the United States Government.</p>

<p>Appeal, No. 130, April T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1902, No. 427, on verdict for plaintiff in case of Robert J. Scheafer, minor, by his next friend and mother, Mary Scheafer, and Mary Scheafer in her own right, v. Iron City Sand Company.</p> <p>Trespass to recover damages for personal injuries, sustained by a fall in a coal hole in a sidewalk. Before Collier, P. J.</p> <p>Verdict and judgment for plaintiff for $1,082.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Negligence — Master and servant — Dangerous explosive — Instruction as to work.</p> <p>Where a common workman, without any scientific knowledge of explosives, is set to work by his employer in disentangling and straightening wires connected with dangerous explosive caps used in quarrying, and is given no warning of danger, and no instructions as to how to do the work, and is injured by an explosion in the course of his work, the employer is liable for the injuries sustained.</p>

<p>Appeal, No. 141, April T., 1906, by-Joseph Herron, from decree of O. C. Allegheny Co., May T., 1905, No. 154, overruling exceptions to adjudication in Estate of Morris B. Harrison, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 38, April T., 1906, by defendants, from order of C. P. Fayette Co., Sept. T., 1904, No. 127, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Walter Dull et al. v. Joseph D. Slater, with notice to Charles P. Newell, Terretenant.</p> <p>Assumpsit to enforce a charge on land. Before Umbel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.’</p>

<p>Appeal, No. 131, April T., 1906, by plaintiff, from decree of C. P. Fayette Co., No. 400, in equity, dismissing bill in equity in case of A. S. Livengood v. Joseph R. Stauffer, James W. Wiley, Stauffer & Wiley, H. C. Frick Coke Co., American Sheet Steel Co.</p> <p>Bill in equity for an injunction. Before Reppert, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Married women — Liability on note — Suretyship.</p> <p>Where two partners having an outstanding firm note, dissolve partnership, and one of the partners, becoming sole owner of the business, gives a note signed by himself and wife, to the payee of the outstanding note, and this note is accepted by the payee in lieu of the first note, and the avowed purpose of the wife in signing the note is to secure to herself a joint interest in the business with her husband, the payee of the note is under no obligation to see that the avowed purpose for which the wife gave the note is in fact carried out.</p>

<p>Appeal, No. 148, April T., 1906, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 63, on verdict for defendant in case of William J. Richards v. Charles M. Richards, Ada E. Wills and the Pennsylvania Title & Trust Company, Trustee.</p> <p>Ejectment for an undivided one-seventh interest in real estate in the sixth ward of the city of Allegheny. Before Brown, J.</p> <p>At the trial it appeared that Martin Richards died in 1892, leaving a will wherein he devised all of his property to his wife for life. He then provided as follows:</p> <p>“I give and bequeath to Ada E. Wills, William J. Richards, Charles M. Richards, Jane Harter, Mary W. Wright, Theodore A. Armstrong and Charles M. Wagner, each share and share alike, at the time of sale or division of my effects, real or personal.”</p> <p>The widow neglected to pay the taxes, and tax liens were entered against the property. At a tax sale the property was knocked down to Ada E. Wills. She, however, failed to pay the purchase money, and the property was again sold on an alias levari facias to Charles M. Richards and Ada E. Wills. The purchase price was $1,320. Fifteen hundred dollars was borrowed upon the property, and the purchase money was paid out of the proceeds. It appeared that P. T. Trimble, Esq., a member of the bar, attempted to make some arrangement to purchase the property on behalf of the daughters of William J. Richards, the plaintiff. This plan was acquiesced in by the plaintiff, but the plan was not carried out. Neither Mr. Trimble nor the plaintiff interfered in any way at the second sale.</p> <p>The court charged in part as follows :</p> <p>[You have, then, not only the fact, if you so find, that he refused to join in the sale, but if you find from the clear force of the testimony — that is, by testimony clear, precise and indubitable — that he not only refused to join in this joint effort to save the property, but did something more than that— attempted adversely to get the property in the name of the children, which would have'taken the property entirely from the other parties — if that were his sole effort in refusing to join the other people to save it, and his effort was to divert it into the possession of his children, so that they would get the full, round benefit of the whole property, and thereby, as a matter of law, depriving the other people of any possible interest, or any chance of getting any interest in the property; if you find that was his purpose and effort, if the testimony satisfies you it was that, then there ought to be a verdict for the defendant.</p> <p>If the plaintiff, by a line of conduct which did not bear the impress of good faith, but showed a disposition upon his part not to act in good faith, for the common benefit or joint benefit of the other heirs, who were jointly interested, but adverse to them attempted to wreck that situation, to strike it down, to carry the property away and put it in his children, by conduct of that sort, he is estopped from coming in at this point and attempting to get from the other people what they had a right to get under the circumstances, because they had the right to save it. If he had agreed to join them in buying that, and helping them, clearly, then, he would be entitled to a verdict; but if his conduct was just the reverse of that, not attempting to save it for the joint benefit, but attempting to wreck it and take it away from that joint interest, and pass it down to his children, so that they would have it, and all the other interests would be stricken down, then it was a line of conduct that is not considered fair and right in law, and would bar him from a recovery in this case.] [8]</p> <p>[As we have said to you, if his line of conduct does not bear the impress of good faith, fairness to his cotenants; if his whole effort was not in that common direction, to help the joint purpose'of the cotenants, but to strike down that interest, to carry the property away and put it in his children, and get it out of the way in that sense, then there ought to be a straight verdict for the defendant.] [9]</p> <p>Mr. Wright: You have stated Mr. Trimble said he was representing the plaintiff. He stated that he represented the children.</p> <p>The Court: In connection with Mr. Trimble’s testimonj’- as to whether he was representing solely the children, or representing the children and the plaintiff here, in an effort to put the property in the children’s name, Mr. Trimble says, I believe— but it is for you to recollect just what the testimony was, and not take it from the court. It is for you to take what you remember the testimony to be. I think his testimony was — but you will correct it if we are mistaken — that he was consulted in a joint way, not merely by the children. Of course he met one child and then another, but he was consulted by the children, and by the father, the plaintiff in this case. So that, if the common purpose was well known, to direct this property from the line of the joint saving for all, to his own personal interest in the children, then there ought to be a straight verdict for the defendant.] [10]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (8, 9, 10) above instructions, quoting them.</p>

<p>Appeal, No. 94, April T., 1906, by plaintiff, from judgment of C. P. Jefferson Co., Aug. T., 1904, for plaintiffs on ease tried by the court without a jury in suit of T. M. Kurtz, S. Keltonik and G. L. Glenn, assignees of the Punxsutawney Mutual Building and Loan Association, v. Ira J. Campbell, S. K. Livingood and Rebecca M. Livingood, his wife.</p> <p>Scire facias sur mortgage.</p> <p>The case was tiled by Reed, P. J., without a jury, under the act of April 22, 1874.</p> <p>The court found, inter alia, the following facts :</p> <p>The defendants, March 25, 1895, subscribed for and became the owners of twenty shares of the capital stock of the nineteenth series of said association, of the par value of $200 each, represented by certificate No. 598.</p> <p>On April 23, 1895, the defendants borrowed from said association the par value of their said stock, to wit: On five shares thereof the sum of $1,000, subject to a deduction of fifteen per cent premium bid therefor, and on fifteen shares thereof the sum of $3,000, subject to a deduction of twelve and three-fourths per cent premium bid therefor. The amount received by the defendants, less premiums as stated, was $3,467.50. The premiums, amounting to $532.50, the association retained.</p> <p>In accordance with the by-laws of said association, and as the security required thereby, the defendants made, executed and delivered to the association, and the said association accepted, their judgment bond and mortgage on real estate in the sum of 18,000'respectively conditioned for the payment of said sum of 14,000, etc., as hereinafter stated. Said bond and mortgage are in the form provided by said association and required of its borrowers. The defendants also, by indorsement on the back of the bond, assigned their stock to the association as collateral security for the payment of said debt, which indorsement is in the form provided by said association and required of its borrowers.</p> <p>The association became insolvent on February 1, 1904.</p> <p>The conclusions of law were as follows:</p> <p>1. That by virtue of the following clause contained in the assignment of the defendants’ stock as collateral security for the payment of the loan obtained thereon, viz., “ And further, we do hereby elect to treat all past and future payments of dues on said stock as credits on the within bond and mortgage accompanying the same, and authorize and direct the officers of said association to so appropriate and credit the same,” there was an appropriation, at the inception of the contract of .loan, of all payments on stock to the extinguishment of the debt created by said loan, which cannot be questioned by either of the parties to said contract.</p> <p>2. That this Clause in said assignment must be interpreted in accordance with the intent of the parties as plainly and unequivocally expressed at the time of the execution of the contract, and there is nothing in the testimony, or in the-findings of fact deduced therefrom," that can be held to be a waiver of the appropriation of payments on stock to the mortgage debt as then made, or that would estop the defendants from standing on said agreement of appropriation in the present action to enforce payment of the balance due on said mortgage.</p> <p>3. The doctrine of appropriation as applicable to building and loan associations is so firmly embedded in the law of this state that the question must be considered as settled in favor of the right of either the stockholder or the association to make such appropriation save in exceptional instances, none of which exist in this case.</p> <p>4. The Punxsutawney Mutual Building and Loan Association having become insolvent, the contract between it and the defendants is so far abrogated that the defendants can only be held for the repayment of the actual amount received as a loan on their stock, with interest from the date of the loan, and they are further absolved from the payment of dues on said stock from the time of such insolvency. They are entitled to credit as of the date of the insolvency of said association, for all sums paid as dues on stock and for all sums paid as interest on the loan, to wit: Paid on dues, $2,140, and paid on interest, $2,100, or to a total credit of $4,240.</p> <p>5. The rights and obligations of the defendants in this case are to be settled and determined on the principles of law as declared in the case of York Trust, etc., Co. v. Gallatin, 186 Pa. 150, and kindred cases.</p> <p>Errors assigned were various findings of the court.</p>

<p>Appeal, No. 74, April T., 1906, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1903, No. 41, on verdict for plaintiff in case of Charles Kness v. Anchor Fire Insurance Company of Cincinnati, Ohio.</p> <p>Assumpsit on a policy of fire insurance. Before Koosee, 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 we say to you, while it is true that is the contract between the company and the insured, yet,if facts occurred after the fire and before the lapse of the sixty days’ period, either by an express agreement of an authorized officer of the company, or by acts of the company or its authorized agent, from which the jury could conclude that the defendant company waived the conditions I have read, then the jury may find that, notwithstanding those terms in the contract, the defendant still is liable, if the defendant itself, either by direct expression of its officers or by acts warranting such conclusion — by such acts as misled the plaintiff into the belief that the company does not intend to enforce compliance with the terms of the policy— then it is no longer absolutely necessary that the terms should be complied with in the letter.</p> <p>[So the question that will come to 3ou is: Has this company, or an agent for said defendant with authority, said such things or done suck acts as have induced the plaintiff to neglect giving the notices, which in this case it is complained by the defendant were not given.] [1]</p> <p>[Under the provisions of the act of 1888, if Mr. Boyer, under the proofs we have as to the extent of his agency and his relations to this particular policy, told the plaintiff within twenty days after the fire that he need not produce to him any detailed, itemized proofs of loss, but that he should prepare the paper and have it ready until the adjuster would come, and if this plaintiff was misled into a neglect or failure' to produce the proofs by reason of a direct statement from the mouth of Mr. Boyer within the period of twenty days after the loss, or by any language or act of Mr. Boyer from which the plaintiff could reasonably and fairly infer that it was his direction to him that he could prepare it and hold it himself to lay before the adjuster when he came, we say Mr. Boyer could charge his company with such directions ; and from such facts, if they would impress you as proven in the case, you would have power to find that the company waived the necessity of compliance with the clause in the contract as to notice and proofs, and by reason of the waiver the plaintiff was not required to make the proofs, but could recover in this action without having made them.] [2]</p> <p>Verdict and judgment for plaintiff for $990. Defendant appealed.</p> <p>Errors assigned among others were (1, 2) above instructions, quoting them; and (9) in refusing binding directions for defendazit.</p>

<p>Appeal, No. 27, AprilT., 1906, by defendant, from decree of O. P. Armstrong Co., June T., 1904, No. 36, on bill in equity in case of The Apollo Trust Company v. Safe Deposit and Title Guaranty Company, Thomas Robertson and Godfrey G. Lunderstadt.</p> <p>Bill in equity for an account.</p> <p>The averments of the bill appear by the opinion of the Superior Court.</p> <p>The decree was as follows :</p> <p>And now, to wit: May 1,1905, it appearing to the court that the original bill as amended has been duly served on G. G. Lunderstadt and the Safe Deposit & Title Guaranty Company of Kittanning, Pennsylvania, as required by order of this court May 9, 1904;</p> <p>And it further appearing that the time for filing an answer to said amended bill has fully expired and that Thomas Robertson, one of the defendants, admits all the facts as alleged in the plaintiff’s bill so far as he is conversant with the same, and that G. G. Lunderstadt and the Safe Deposit & Title Guaranty Company of Kittanning have neglected to file their answer to said bill as amended, it is now ordered, adjudged and decreed that said bill be taken pro confesso and that the facts therein alleged be deemed and taken as true and admitted.</p> <p>It is further ordered and decreed, 1That the Safe Deposit & Title Guaranty Company of Kittanning shall pay over to the Apollo Trust Company the sum of $500, with the interest received by it on said payment, being the amount paid by Thomas Robertson to said Safe Deposit and Title Guaranty Company on or about May 1, 1903, being the fourth payment of the moneys secured by the mortgage of Thomas Robertson to G. G. Lunderstadt mentioned in said bill.</p> <p>2. That Tilomas Robertson be directed to pay to the Apollo Trust Company the balance remaining unpaid of said Lunderstadt mortgage, to wit, $300 and interest, due May 1, 1904.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 108, April T., 1906, by defendant, from judgment of Q. S. Crawford Co., J3ept. T., 1904, No. 23, on verdict of guilty in case of Commonwealth v. Samuel Houghton. Indictment for receiving stolen goods. Before Thomas, P. J. The opinion of the Superior Court states the case. Error assigned was refusal of new trial.

<p>Appeal, No. 109, April T., 1906, by . defendant, from judgment of Q. S. Crawford Co., Sept. T., 1904, No. 24, on verdict of guilty in case of Commonwealth v. Samuel Houghton.</p>

<p>Appeal, No. 11, March T., 1905, by defendant, from judgment of C. P. Dauphin Co., No. 171, Mechanics’ Lien Docket No. 1, for plaintiff on case stated in suit of City of Harrisburg' v. Harrisburg Gas Company.</p> <p>Case stated to determine the validity of a tax. Before Weiss, 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 on case stated.</p>

<p>Appeal, No. 257, Oct. T., 1905, by defendants, from judgment of Q. S. Philadelphia Co., Oct. T., 1905, No. 607, on verdict of guilty in case of Commonwealth v. Giovanni Di Silvestro and Joseph Di Silvestro.</p> <p>Indictment for libel. Before Wiltbank, J.</p> <p>The first of the publications upon which the prosecution was based was published in a newspaper called II Popolo. Both the original, in Italian, and a translation were set forth in the indictment.</p> <p>The translation is as follows :</p> <p>“ The Doings oe Naselli.</p> <p>“It should be the duty of the honest, incorruptible and healthy press, to exercise an attentive, constant and inexorable control on the doings of the Consuls.</p> <p>“ Italy, impoverished by a bureaucracy devouring millions, victim of the political cliques, inclosed as within an enormous iron circle by the plague of militarism, supports with secular resignation, and with amazing carelessness, the enormous weight of the diplomatic expenses, which are the greatest drain on the blood of a people almost dead, and oppressed by a barbarous tributary system.</p> <p>“In the early epoch of the new Italy, and also at the present time, although in smaller proportion, in homage to the Royal House, only those who were born in Piedmont, or the indirect descendants of the Savoyian loins, were appointed consuls and ambassadors. So that the court, or rather'the low and vulgar intrigues of the court ladies, determined the appointments to such high and delicate office, and .... having to take care of the sons of their majesties’ illicit relations, we have had and still have, consuls and ambassadors with sonorous names, but with empty heads'.</p> <p>“ Minister Tittoni continues this dishonest system of nepotism. Tittoni, the minister by the grade and will of the ladies, of handsome appearance and with extensive relations, not accustomed to be over-scrupulous in illicit affairs, not long ago appointed to take charge of two consulates one of his nephews and a favorite of ... . the Sporting Club of Rome. So that the political gang still, and always, finds in the public treasury an open field to satisfy its’ wishes. Italy, abroad, is represented by inept (sic), ignorant men, completely ignorant of their duties, derided because almost illiterate, not cared for because weak, despised because they are known to be the product of corruption and intrigue.</p> <p>“ This is precisely the case with Count Naselli; perhaps also himself a consul by the grace of the Savoyian loins. Let us examine him in his personal value: presumptuous, ignorant, impolite — he does not present any quality which might make of him an average consul of the lowest class.</p> <p>“ In the examination of his doings, the diagnosis is still worse, and this is not said through personal feeling, but as a real fact.</p> <p>“ The consul should live among the Italians ; study their needs ; their system of life ; their aspirations ; but Naselli prefers the American element, to the element which should be his first thought, because it is composed of fathers, brothers, mothers and wives of those who, at home, pay blood taxes to supply him, the consul, the salary which enables him to lead an idle and lazy life.</p> <p>“ He should be here among ourselves to watch over the Italians, to defend their rights, to protest and claim justice for any abuse, while he, with arrogance and phenomenal bestiality, prefers to give shyster legal consultations to whoever innocently may apply to him as the representative of his country; whereas, he does not hesitate to take the odious repugnant part of defender and justifier of those who commit abuses, violence and vexations against the Italians.</p> <p>“ Count Naselli, in his consular -work, should render less painful the condition of the emigrants subject to military service ; he should listen to their inquiries and give them advice, because .... he is well paid for this purpose; but being completely ignorant of the questions relating to the military service, to a frank and sincere declaration of his ignorance, he prefers an offending behavior really worthy of a consul dug out from the nullities of a presumptuous, stupid, weak and degenerate aristocracy.</p> <p>“ When requested and implored, he should provide for the removal of the causes which permit swindling and thievery, which are practiced against the emigrants at the landing station ; but having a weak and vile disposition, he prefers carelessness or a guilty acquiescence, only because in his servile bureaucratic soul he thinks that it is easier to take off his hat to prominent people enriched by crime, rather than ask for his countrymen the respect of the law.</p> <p>“ What does Count Naselli know of the emigration question ? What does he know of the relations between the Government, which he is called to represent, and the country which gives him hospitality? What does he know of what can and should be done, for a numerous colony, like the one of Philadelphia? Nothing, nothing. He is an ass, who has the good luck of clubbing instead of being clubbed. And Count Naselli gives good beating to the public Italian money.</p> <p>“ Our rebellious conscience imposes upon us the duty of denouncing to the public reprobation, as we brought before the public contempt, not long ago, the hideous mercenary figure of the Baron Mayor des Planches, a Piedmontese, always by the grace of the deplored favoritism, ambassador at Washington.</p> <p>“ The Baron des Planches, who having gone to examine the conditions offered by avaricious speculative companies, to Italian emigrants, traveled in trains deluxe, offered by the same companies, accompanied by a secretary of these insidious organizations of the American affarism, allowing the same companies to pay the bills for liis banquets, while for the defense and protection of the Italians he should have exercised a scrupulous and diligent investigation against them.</p> <p>“ Of such elements easy to be corrupted, inept through deficiency of education, and on account of their incapacity to fulfill their duties, Italy feeds a large quantity, to its shame, on account of having abroad, through its own representatives, a luminous proof of the degeneration of its ruling classes.</p> <p>“ May, at least, the contempt of the conscious crowd mark on the hardened cheeks of these productions of the impertinent favoritism, an indelible stamp of infamy.”</p> <p>At the trial the defendants admitted the publication and that it was aimed at the prosecutor.</p> <p>The court charged in part as follows :</p> <p>What does the article say? It is for you to determine. Primarily, you must consider the question of written translation, because we assume that you do not understand the Italian language. So far as you, or any of you, understand that language, you are at liberty to treat the article to which I refer, upon your examination of it, without reference to any translation. A written translation is what represents in another tongue the substance of a statement as that substance reaches the understanding of men of average intelligence, reading it in, and familiar with, the original language.</p> <p>There has arisen some dispute as to the correctness of the translations offered in evidence. On the part of the commonwealth, a native Italian has produced the various versions of the several articles appearing in II Popolo, including that which is the foundation of the indictment, and has informed us that these versions represent the spirit and expression of the papers. This testimony is corroborated by an expert in the Italian language, who has shown himself to possess an intimate familiarity therewith.</p> <p>On the part of the defendants, an eminently respectable witness has been produced, who has made a translation of the article of June 8, 1905, for you, and you have that before you.</p> <p>It appears that whilst there is a variance in these several versions, yet they all agree in producing to you an article which make charges against, and casts serious imputations upon, the prosecutor. I instruct you that you may take these several versions and the several originals (that is to say, the article referred to and the other articles which have been offered in evidence)) and from these it is your province to ascertain whfit actually was written and published by the defendants. Having thus ascertained the spirit and the expression of the paper, if you find these to be as contended for by the commonwealth and as indicated by the evidence, I instruct you that the article of June 3, 1905, is libelous in itself. Being thus libelous in itself, the law delares that article to be malicious and criminal.</p> <p>********</p> <p>On the part of the defendants, it is contended that the presumption of malice in the case is rebutted when one considers the circumstances of the public station of the prosecutor as the representative in this city, to a certain degree, of a foreign government, and in view of his duties as consul. So far as these subjects are testified to, and you reach conclusions of fact upon the testimony, you are to ask yourselves : Was there a case for comment in the public prints ? I instruct you that in my opinion, which, however, is not to bind you, there is not adequate evidence of a case inviting or requiring fair comment. That question of fact I leave to you, as I do all questions of fact here presented.</p> <p>&#***#*#</p> <p>I instruct you that the law does not find in these particulars, or in any other particulars shown by the proofs, any rebuttal of the presumption of malice in the writing and publication of the article of June 3, 1905. But it is for you to consider, and if you find you may under your oaths determine otherwise under the facts and the law, then you would have to consider the circumstances of the comment and ascertain if the defendants had written and published only after seeking, with reasonable care, for information touching the conduct of the Italian consul and touching the truth or good faith of any reports on which they acted. On this head I am bound to instruct you that there is no evidence of their having proceeded in a just and even temper, with deliberation, industry and calmness to learn if there' was or was not warrant for their procedure, and I leave to you the determination of the question whether in fact that is correct.</p> <p>It may be a proper caution in me to proceed further and to state to you that even were there some ground for fair comment, it would be necessary that you should take into consideration the extravagance of expression and the persistence of repetition on the part of the defendants in order to ascertain whether or not these did not exceed the limits of proper public discussion. In regard to this, it is my duty, as in the other instances, to instruct you that the law finds the comments unreasonable and extravagant and beyond the sphere of the protection of the principle of fair comment.</p> <p>* * ***** * *</p> <p>No community, I am bound to add as an officer of the law, could subsist in peace and good order if such conduct as that of the defendants (always assuming you should find as a fact that they acted as charged in the indictment, and this is for you) were allowed and sanctioned. It must be conceded on the part of right-minded citizens, it would seem, although with regard to that it is merely an expression of opinion which is not to bind you in any way, that the prosecutor owed it to himself to institute this proceeding.</p> <p>****** * * *</p> <p>The case has been ably presented to you on the part of the defendants, and, so far as I have been able to gather that there is a defense, it is founded upon the suggestion that there were reasons which were adequate for the publication of these papers. I must leave to you that argument, that it may have the weight that you consider it to deserve.</p> <p>******* * *</p> <p>[Having thus ascertained the spirit and the expression of the paper, if you find these to be as contended for by the commonwealth and as indicated by the evidence, I instruct you that the article of June 3, 1905, is libelous in itself. Being thus libelous in itself, the law declares that article to be malicious and criminal.] [18]</p> <p>[It may be a proper caution in me to proceed further and to state to you that even were there some ground for fair comment, it would be necessary that you should take into consideration the extravagance of expression and the persistence of repetition on the part of the defendants in order to ascertain whether or not these did not exceed the limits of proper public' discussion. In regard to this, it is my duty, as in the other instance, to instruct you that the law finds the comments unreasonable and extravagant and beyond the sphere of the protection of the principle of fair comment.] [19]</p> <p>[There has been evidence offered as to the character of the defendants, but I am bound to say to you that as they admit they published these articles, it would be difficult, assuming that you reached the conclusion that they were otherwise guilty, to ascertain from the evidence of character that they were not guilty.] [20]</p> <p>Defendant presented these points:</p> <p>4. If the jury find that the matter contained in the said article is true, and the matter was proper for public information, and the publication was not maliciously or negligently made, then your verdict should be “ Not guilty.” Answer: That I decline to charge, on the ground that you have nothing to do with the truth or falsity of such averments of fact as there may be in the articles, and also.on other grounds which I have indicated by my general charge. [21]</p> <p>5. If the jury believe that the article in question admits of two constructions, one that it is libelous and the other that it is not libelous, you are bound by law to put upon it that construction which renders the article not libelous, and to acquit the defendants. This in pursuance of the principle of law that where one of two constructions may be put upon an act, the one which is consistent with innocence must prevail. Answer : I decline so to charge. [22]</p> <p>6. The jury must take into consideration the evidence of the good reputation of the defendants in considering the question as to whether they are guilty of the crime of libel in this case. Answer: I decline so to charge, referring to my general charge for such answer thereto as I consider sufficient. [23]</p> <p>8. If upon the evidence in the case the jury have a reasonable doubt as to the guilt of the defendants, they must give the defendants the benefit of that reasonable doubt and render a verdict of “Notguilty.” Answer : That I decline to charge, because there is no evidence in the case on which ycm can found anj-r reasonable doubt, such as is indicated in the point itself. [24]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>On the rule for a new trial Wiltbank, J., filed the following opinion:</p> <p>This was a trial of the defendants on four indictments for writing and publishing a libel of and concerning the prosecutor, who was the consul representing the Italian government in this city. The libel laid in the indictment was dated June 3, 1905, and appeared in a publication of that date called “ II Popolo.” This article had been preceded by a publication somewhat of the same character on May 27, 1905, and it was followed by numerous publications at different times, on June 17, 24, July 1, 8,15, 29, August 5, 12, 19, 26, of the same year. The writing and publication of these several articles was admitted by the defendants in the course of the development of the case for the commonwealth. The defendants were called in their own behalf to show that the prosecutor was a public official within the provisions of the 8th section of the first article of the constitution, and that the subject-matter of the libel was merely fair comment, and- therefore within the protection of that section. A reference to the article must dispose of the question of fair comment.</p> <p>It is opened by stating that it should be the duty of the honest, incorruptible and healthy press to exercise an attentive, constant and inexorable control on the doings of the consuls. It refers to the early epoch of the new Italy, and to a similar condition at the present time, when, in homage to the royal house, only those who were born in Piedmont, or the indirect descendants of the Savoyian loins, were appointed consuls and ambassadors; “So that the court,or rather the low and vulgar intrigues of the court ladies, determined the appointments to such high and delicate an office, and .... having to take care of the sons of their majesties’ illicit relations, we have had, and still have, consuls and ambassadors with sonorous names, but with empty heads.” It declares that Italy abroad is represented by inept, ignorant men, completely ignorant of their duties, derided because almost illiterate, not cared for because weak, despised because they are known to be the product of corruption and intrigue. And it adds, “ This is precisely the case with Count Naselli; perhaps also himself a consul by the grace of the Savoyian loins. Presumptuous, ignorant, impolite — he does not present any quality which might make of him an average consul of the lowest class.”</p> <p>We need not reproduce the volume of criticism which the article contains. It says of the prosecutor that he, with arrogance and phenomenal bestiality, prefers to give shyster legal consultations to whoever, innocently, may apply to him as the representative of his country; where he does not hesitate to take the odious, repugnant part of defender and justifier of those who commit abuses, violence and vexations against the Italians. It states how the duties of the consul should be performed with respect to the condition of the emigrants subject to military service, and declares that he prefers an offending behavior really worthy of a consul dug out from the nullities of a presumptuous, stupid, weak and degenerate aristocracy. It declares that he should provide a remedy for the swindling and thievery which are practiced against the emigrants at the landing station; but that having a weak and vile disposition, he prefers carelessness or a guilty acquiescence, only because, in his servile bureaucratic soul, he thinks that it is easier to take off his hat to prominent people enriched by crime, rather than ask for his countrymen the respect of the law. It pronounces him an ass, who has the good luck of clubbing instead of being clubbed. It concludes thus : “May, at least, the contempt of the conscious crowd mark on the hardened cheeks of these productions of the impertinent favoritism an indelible stamp of infamy.”</p> <p>This article was followed by a note: “ In future issues interesting articles, with documents, upon Nasellism. In the subsequent .... we shall contemplate how Count Naselli pockets money that should be expended in the better execution of the draft.”</p> <p>There does not appear to be in the article any statement of fact which might be made the subject of comment with a view to the enlightenment of the public.</p> <p>The other publications of the series were even more violent. They impute to the prosecutor that he was a buffoon, an imbecile, a swindler, a parasite, a blackmailer, a poltroon, an indirect descendant of the royal loins, a man with a brainless head, dishonest, degenerate.</p> <p>Independently of this question, however, the trial judge was of the opinion that the prosecutor was not a public officer within the meaning of the constitution. This left the case to be one of admitted guilt in the writing and publication of a malicious libel, and, accordingly, but one question presented itself : There being at bar a bald admission of the commission of the crime of what in law must be called a malicious libel, was it the duty of the trial judge to leave to the jury any question of doubt ?</p> <p>This subject claimed the closest attention on the argument of the rule for a new trial, and was raised by the answer of the court to the eighth point presented on the part of the defendants. That point was as follows : If, upon the evidence in the case, the jury have a reasonable doubt as to the guilt of the defendants, they must give the defendants the benefit of that reasonable doubt and render a verdict of not guilty.</p> <p>The answer of the court was: That I decline to charge because there is no evidence in the case on which you can found any reasonable doubt such as is indicated in the point itself.</p> <p>It was not necessary to refer to the technical defect in the point which, precluded, its affirmance. The claim that, upon the fair conception of a doubt, the verdict must be for the defendant, was too broad. In criminal procedure such a doubt might fall short of involving an acquittal, while supporting a recommendation to mercy, and a peremptory instruction upon the hypothesis presented would have been error. But the reason assigned at the trial was adequate.</p> <p>The subject appears free from difficulty upon the ascertainment of the issue and'the relation of the proofs to it. The facts as to which alone the jury might have had a doubt were facts sought to be set up in defense to rebut the presumption of malice. The facts of the indictment were all admitted by the defendants : the (1) writing and (2) publishing (3) of and concerning the prosecutor. The writing was in law libelous per se. Hence, as to the crime of criminal libel, it was fully made out, under the law, and there was no room for doubt; indeed, there was no issue of fact in any stage of the development of the case of the commonwealth.</p> <p>In a criminal trial the benefit of the doubt must be of a doubt as to the facts; and even in libel, where the jury are judges of the law as well as of the facts, the principle is the same. Some inaccuracy lurks in our familiar declaration that they judge of the law; but for our present purpose we need not enlarge upon this. It cannot be questioned that a jury’s doubt as to the law was never contemplated. If they have a reasonable doubt as to the law, it is their duty to resolve it by instructions of the court, or upon praying further direction, not by a verdict of acquittal. Their best evidence of the law is the judge’s declaration of it. Their doubt may be, not as to the law, but as to the application of it; but this is a doubt as to the facts, as to whether the facts make in all a case to which that law extends. In the case at bar, as we have seen, the defendants admitted the writing and publishing, and the truth of the innuendo that the prosecutor was intended. The court could under no circumstances permit the jury to doubt this. Then, nothing remained from which a doubt could arise in the defendants’ favor.</p> <p>The only issue of fact arose upon the presentation of the de-' fense, and if we assume for the purpose of the argument that an issue thus arose, two considerations present themselves: first, it is clear that ordinarily to have doubt as .to the facts would be to discredit the defense, upon whom the burden lay. To charge that the defendants should have the benefit of such doubt would be insensible. It would be a doubt against them, and an instruction to the jury to exclude the facts claimed, if they saw fit, would be to direct them to find the semblance of justification obliterated, and the criminal responsibility to remain as already established. If facts to rebut the presumption of malice are swept aside by the jury upon reasonable doubt, nothing remains but the malice. The defendants cannot complain that the court prejudiced them by not placing them in this situation.</p> <p>The second consideration arises upon the presumption of malice. A jury may hear evidence in defense in rebuttal of this presumption, and may consider that whilst this evidence is not conclusive, it affords ground for doubt of the evil intent of the defendants. Of this, of course, the defendants should have the benefit. In the case at bar, however, no facts were shown which could justify such a doubt. It was not a case in which proof was produced of any significance, but a case in which there was no proof. It was asserted in argument that the defendants were privileged to offer fair comment to the public touching the conduct of his office by the Italian consul; yet the assumption that a representative of a foreign government was a public officer in contemplation of the 8th section of the first article of the constitution was not fortified by authority, and the recital of his actions showed nothing in which the public had concern. With respect to these he is responsible only to his own government. He does not owe his office to the suffrages of our people.</p> <p>If, upon a-practical confession of guilt, the court is to charge the jury in the mode requested, it would, in effect, be an intimation to the jury that they had the power in violation of their sworn duty to find a verdict contrary to the truth.</p> <p>That the jury has the power to abuse its function is true, but that a court should be held to charge it to that effect on the ground that it is the defendants’ right is, in our opinion, a proposition not only untenable, but shocking to the moral sense.</p> <p>The rule for a new trial is discharged.</p> <p>Errors assigned, among others, were (18-24) above instructions, quoting them.</p>

<p>Appeal, No. 254, Oct. T., 1905, by defendant, from judgment of Q. S. Phila. Co., Oct. T., 1905, No. 410, on verdict of guilty in case of Commonwealth v. Joseph Di Silvestro.</p>

<p>Appeal, No. 256, Oct. T., 1905, by defendant, from judgment of Q. S. Phila. Co., Oct. T., 1905, No. 417, on verdict of guilty in case of Commonwealth v. Carlo Tresca.</p>

<p>Appeal, No. 82, April T., 1906, by defendant, from order of C. P. Indiana Co., Dec. T., 1904, ' No. 268, refusing to open a judgment in case of S. I. McCullongh. v. H. M. Kinnan and J. W. Kinnan..</p> <p>Rule to open judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>jError assigned was in not opening the judgment.</p>

<p>Appeal, No. 121, April T., 1906, by defendant, from order of C. P. Cambria Co., March T., 1904, No. 234, making absolute rule for judgment for want of a sufficient affidavit of defense in case of T. J. Moyer v. Pennsylvania Railroad Company.</p> <p>Appeal from justice of the peace. Before O’Connor, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 31, April .T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1903, No. 73, on verdict for plaintiff in case of Joseph Hantman v. M. W. Hedden and the Pittsburg Cigar Company.</p> <p>Trespass for malicious prosecution.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $850. Defendant appealed.</p> <p>Error assigned was the portion of the charge quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 164, April T., 1906, by defendant, from judgment of C. P. Mercer Co., April T., 1906, No. 22, for plaintiff on case stated in suit of James A. Donaldson v. William C. Pettit.</p> <p>The case stated was as follows :</p> <p>Dr. F. Donaldson, late of the borough of Greenville, said county, died intestate on February 8, 1902, leaving to survive him a widow, Margaret C. Donaldson, and other heirs, among whom was the plaintiff In the case; letters of administration on the estate of the said Dr. F. Donaldson were duly issued by the proper officer of said county to the said Margaret C. Donaldson, and she filed her final account as administratrix of said estate at No. 12, June Term, 1902; an auditor was duly appointed to report a distribution of the funds in the hands of the said administratrix; and James A. Donaldson, the plaintiff in this case, on July 29, 1902, presented a claim before said auditor, for services rendered to the said Dr. F. Donaldson during his lifetime, and offered testimony concerning same, which claim was disallowed by the auditor, by report filed in the orphans’ court of Mercer county, Pa., on September 15, 1902, at No 12, June Term, 1902, which report was confirmed absolutely by said court -on September 25, 1902, all of which will appear by the report and records above referred to, which are hereby made a part of this statement.</p> <p>That said Margaret C. Donaldson died on December 17, 1904, leaving her last will and testament, which has been duly probated in said county, wherein W. C. Pettit was appointed executor of her estate, and wherein she directed that all of her real estate should be sold as soon as was considered best by her executor, as will appear by a copy of said will hereto attached dated February 12, 1902, and marked exhibit “ A,” and made a part of this statement; that by the terms of a codicil to said will dated March 13, 1902, a copy of which is hereto attached, made a' part of this statement, and marked exhibit “B,” the said James A. Donaldson is given the use of the following real estate for the term of his natural life, viz.: “All that certain lot of land, being a small three cornered piece situated in borough of Greenville, Mercer county, Pa., hounded north by an alley; east by lot of A. D. Gillespie; west by Water Street, on which is erected a two story brick building,” which said real estate is valued at and worth $500. That in said codicil there is also the following clause, viz.: “ Provided, however, if my said son, James A. Donaldson, shall involve my estate in litigation in any manner whatever, or shall endeavor to collect any bills or claims against my estate or that of my deceased husband, Dr. F. Donaldson, then the bequests made in this codicil are entirely revoked and my will shall be and remain as if this codicil had never been written.”</p> <p>If the court he of the opinion that the said James A. Donaldson, under the terms of the will of the said Margaret 0. Donaldson, is entitled to the use of said real estate for the term of his natural life, then judgment is to be entered for the plaintiff the same as if a suit in ejectment had been instituted by the plaintiff in this case against W. C. Pettit, executor, etc., and a verdict rendered by a jury in favor of the plaintiff; but if not, then judgment to be entered for defendant, etc.</p> <p>The court, in an opinion by Williams, P. J., entered judgment for plaintiff on the case stated, citing: Clarke’s Est., 82 Pa. 528; Hutchins’s Est., 9 Phila. 800; Stover’s App., 77 Pa. 282; Mickey’s App., 46 Pa. 337, and Chew’s App., 45 Pa. 228.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 229, April T., 1905, by plaintiff, from decree of C. P. Butler Co., June T., 1904, No. 3, dismissing bill in equity in case of James Follett v. Butler County et ah</p> <p>Bill in equity for an injunction.</p> <p>For the facts see 30 Pa. Superior Ct. 21.</p> <p>Error assigned was the decree of the court.</p>

<p>Criminal law — Costs—Prosecution—Corporations.</p> <p>Upon the trial of a prosecution for burning a dwelling house to defraud an insurance company the verdict was “Not guilty, and the Standard Fire Insurance Company of Trenton, N. J., to pay the costs, represented by James F. D. Wilson as prosecutor.” It appeared that Wilson was the agent and adjuster of the insurance company. Held, that a judgment for costs of prosecution was properly entered against the insurance company.</p> <p>A judgment for costs in a criminal prosecution may be imposed upon a foreign corporation.</p>

<p>'Negligence — Statement of claim — Evidence—Allegata and probata— Variance.</p> <p>In an action of trespass for negligence, the fact that the testimony does not bring out every detail alleged in the statement, cannot be regarded as any violation of the rule that the proofs and the allegations must agree. The proof and allegation must not differ or contradict each other. If the testimony sustains all the material allegations of the statement, that is sufficient.</p> <p>Negligence — Damages—Charge of court.</p> <p>In an action of trespass for negligence the court cannot be convicted of error because it mentions in the charge the amount claimed in the statement, if it appears that the court also charges that the jury are not obliged to find that amount, but can find no more than that, and can find any amount near to or less than that which they may deem proper under the circumstances of the case.</p>

<p>Appeal, No. 10, March T., 1906, by plaintiff, from judgment of C. P. Tioga Co., Sept. T., 1905, No. 286, for defendant non obstante veredicto in case of R. M. Ketcham v. Pranlc M. Davis.</p> <p>Issue to determine validity of a judgment. Before Cameron, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. ■</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Auditors — Reports—Form.</p> <p>When reports of auditors of townships and boroughs distinctly and unequivocally find all the facts necessary to charge the collector and the bondsmen, that is sufficient without regard to the form in which the findings are made.</p> <p>A report to borough auditors is as to all matters which it passes upon conclusive upon all parties, and it is not within the jurisdiction of the auditors at another time to re-examine what had been by the report decided.</p>

<p>Railroads — Right of way — Easement—Telephone companies — Act of February 19, 1849, P. L. 79 — Action.</p> <p>A right which a railroad company acquires in land by condemnation proceedings under the Act of February 19, 1849, P. L. 79, is a right which it enjoys for the purpose of its business only, and is limited to railroad uses. A railroad company cannot, therefore, grant to a telephone company the right to erect poles and wires on its right of way, where the use of the property by the telephone company is a private one for its own profit, having only a slight connection with the railroad business. The owner of the land may maintain an action of trespass against the telephone company for its unlawful entry on its land.</p> <p>When the law gives the right to a person to enter on the land of another for a particular purpose, and the person so authorized enters for another purpose not authorized by law, such entry constitutes him a trespasser, and an action for trespass will lie.</p>

<p>Bonds — Tax collector — Public officers — Act oj June 25,' 1885, P. L. 187.</p> <p>Where a tax collector’s bond is taken in the name of the commissioners of the county, and not in the name of the commonwealth as required by statute, and a suit is brought in the name of the commonwealth as legal plaintiff, the sureties cannot, after a trial upon the merits and a judgment against them, complain of the variance between the obligee named in the bond, and the legal plaintiff in the suit. Such a defect may be cured by amendment, and such amendment will be allowed even in the appellate court.</p>

<p>Judgment — Opening judgment — Names of parties — -Principal and surety— Forgery.</p> <p>A judgment bond was signed by W. Posluszsy as principal, and M. Debinski as surety. Judgment was entered on the bond against “George” (alias W.) Posluszsy and M. Debinski. Debinski’s full name was Martin Debinski. Held, that if there was any substantial discrepancy between the bond and the record of the judgment, as to the names of the parties, the defect could be cured by amendment.</p> <p>In a proceeding to open a judgment, valid on its face, based on a petition alleging that the instrument upon which the judgment is founded is a forgery, to which petition there is a fully responsive answer, the defendant is the actor, and the plaintiff is not required to prove the signature of the defendant by the subscribing witness, or account for his failure to produce the witness.</p> <p>The exercise of jurisdiction upon rules to open judgment, entered on warrants of attorney, is within the discretion of the court, and an appellate court will not interfere except where there is a manifest abuse of such discretion.</p> <p>The appellate court will not reverse an order of the court below in refusing to open a judgment, merely because the lower court did not file an opinion.</p>

<p>Gift — A cceptance — Presumption—Evidence.</p> <p>Every gift by will or deed is supposed', prima facie, to be beneficial to the donee, and, therefore, the law will presume that the gift is accepted until the contrary is proved.</p> <p>Subrogation — Payment—V olunteer — Mortgage.</p> <p>When a mere volunteer discharges the debt of another he is not entitled to the remedies which the creditor possesses against the debtor.</p> <p>Where a mere volunteer in possession of land pays a portion of the mortgage debt on the land for his own benefit, he is not entitled as against the owner to keep alive so much of the mortgage as he paid; and this is especially the case where he' has agreed in consideration of the use of the land to pay off the mortgage debt.</p> <p>Mortgagor — Comortgagor—Payment of debt.</p> <p>Where one of two mortgagors has been compelled to pay a balance of debt, interest and costs due on the mortgage in order to save the land, he is entitled to collect one-half of the sum so paid, out of the interest of the comortgagor.</p>

<p>Will — Legacies—Vested and contingent interest.</p> <p>Testator directed as follows: “I give, bequeath and devise all of the residue of my estate, real and personal, not herein otherwise devised or bequeathed specifically, unto my said grandchildren, including those now living and those which may be bom hereafter, if any, unto my sons from their present wives, the personal or such of the real estate as may be converted into personal, to be paid to each as he or she respectively becomes twenty-one years of age, reserving sufficient invested in the lands or under the control of my executors to provide for the payments of any other grandchildren that may subsequently be born, and the realty which passes by this residuary devise to come fully into the possession of the said residuary devises when the youngest shall reach the age of twenty-one years.” Held, (1) that the legacies to the grandchildren vested on the death of the testator, and opened on the birth of each succeeding grandchild to admit those later born; and (2) that the legacies were not divested by the death of any of the grandchildren before they reached the ages of twenty-one years.</p>

<p>Appeal, No. 127, April T., 1906, by Guy C. Bachop, deceased, from decree of O. C. Warren Co., March T., 1903, No. 11, dismissing exceptions to auditor’s report in Estate of Guy C. Irvine, deceased.</p>

<p>Appeal, No. 179, Oct. T., 1905, by Sarah Jane Pierce, from decree of O. C. Chester Co., sustaining exceptions to auditor’s report in Estate of Sarah Jane Rogers, deceased.</p> <p>Exceptions to report of Charles H. Pennypacker, Esq., auditor.</p> <p>Butler, J., hied the following opinion:</p> <p>Sarah Jane Rogers by will gave to her husband, Evans Rogers,' the residuary portion of her estate, for life, with power of appointment; directing specifically its disposition in case he should fail to execute the power. Henry Marshall, a cousin of Mrs. Rogers on her father’s side, who is given a smaller legacy under Mr. Rogers’ appointment of the residue than he would take under Mrs. Rogers’ disposition of it, contends that the attempted execution of the power was invalid, and excepts to the failure of the auditor to make distribution in accordance with Mrs. Rogers’ alternative disposition.</p> <p>After giving Mr. Rogers the use of her residuary estate for life, Mrs. Rogers’ will proceeds : “ I. do authorize and empower him to dispose of the same by his will as follows r $4,000 to my mother’s family and the balance to my father’s family, in such manner as he may think proper; but in case he fails to make such disposition, I give and bequeath to my mother’s family as followsThe testatrix then completely disposes of her residuary estate to designated persons, all of whom are of her mother’s or father’s families.</p> <p>Evans Rogers by his will, reciting the power, gives to members of Mrs. Rogers’ mother’s family $4,500, and to members of her father’s family the balance of her residuary estate.</p> <p>Thus, in the attempted execution of the power he apportioned among selected members of the mother’s family a sum $500 larger than that directed, and among selected members of the father’s family a sum $500 smaller than that directed. In neither instance did he make an appointment to the class named, of the fund submitted to his disposition. He did appoint the entire residue of his wife’s estate among members of her father’s and mother’s families, but the power demanded more than this. It divided the residue into two funds, one of $4,000, the other consisting of the balance of the residue, and it enjoined the appointment of the first fund to the one class, and the appointment of the other fund to the other class. As before stated, the donee appointed neither of these funds to the classes named, but other and different funds, in the one instance larger, in the other smaller than provided by the power.</p> <p>It must be conceded that the donee defectively executed the power, that his execution of it cannot stand unaided.</p> <p>Are the parties interested, are the circumstances, such as could move a court of equity to lend its aid ? If so, is the defect in the execution of this power curable ?</p> <p>These, we think, are the two questions presented in the case.</p> <p>The appointees here, who must ask the aid of equity, are mere volunteers, collateral relatives, in precisely the same class .as, and having but equal equities with, those who will take in case the appointments fall. This being the situation, the defective execution of the power would not be aided, even if the donee’s transgression could be viewed as a matter of mere form and unsubstantiality. “ On the contrary, when a party undertakes to execute a power, but by mistake does it imperfectly, equity will interpose to carry his very intention into effect in aid of those who are peculiarly within its protective power; that is, creditors, purchasers, wives and children: ” 1 Story Eq. Jur., sec. 170. “But equity will not lend its aid in favor of a volunteer, nor give any assistance where both the remainder-man and the appointee are volunteers : ” 18 Am. & Eng. Ency. of Law, 983, notes 3 & 4. In Margaret Pepper’s Will, 1 Pars. 436, it is declared that equity may aid the execution of a power in favor of children, creditors, or even a charity, but not in favor of volunteers. In Anne Blackford’s Estate, 4 W. N. C. 17, the donee had power to appoint by will her husband’s estate, to such of his relatives as she might see fit. She sought to execute the power, and violated its terms in no other respect than that she appointed one interest in trust. The orphans’ court of Philadelphia held the attempted execution of the power to be utterly void, though it could have made the execution conform exactly to the terms of the power, by simply striking down the trust feature of the one interest, and decreeing that the beneficiary should take an absolute estate along with the other appointees. As here, the appointees were mere volunteers.</p> <p>In Porter et al. v. Turner et al., 3 S. & R. 108, the only defect charged in the execution of the power was the donee’s alleged failure to make the appointment, as the power directed, by an instrument under seal. It was held that such mere formal defect would be fatal unless equitable relief could be had. And it is plainly intimated that the appointees, grandchildren, were so remote in relationship as to be mere volunteers entitled to no equitable assistance; but it is said that even assuming for argument’s sake that grandchildren fall under the same rule as children, no relief would be granted, because whether the appointments stood or fell, the property went to the same class. In this case the court say: “ There are cases where equity will aid the defective execution of a power; relief will be granted in favor of creditors, or a wife or children. But this is not one of those cases. The appointment, it is true, is in favor of grandchildren. But even supposing, for argument’s sake, that grandchildren fall under the same rule as children, there would be no reason for an interposition here, because in default of an appointment the estate would go to grandchildren, so that the equity of the contending parties would be equal. The solemnity of a seal is not considered with the same veneration now as formerly. Still this court has no power to dispense with a seal, where the party creating a power has required one. The question is therefore reduced to a single point, viz.: whether there was an appointment under the seal of Mrs. Dupuy. That she intended to make an appointment under her father’s will is certain.”</p> <p>In Slifer v. Beates, 9 S. & R. 166, the only defect in the ex-eeution of the power was that the donee instead of joining in a deed with certain trustees whose approval of his disposition of the donor’s real estate was a condition of the power, disposed of the real estate by will. The trustees witnessed his will and promptly after his death, 'by formal deed, expressed their approval of his devise. In holding the execution of the power to be void, the court say: “ It is conceded that if the power be defectively executed, the parties being volunteers, and standing in equal equity, chancery could grant no relief, .nor remedy the defect. . . . The province of the judge is not to inquire Avhether the circumstances required are important or unimportant, essential or ceremonial, reasonable or unreasonable, but what they are. . . . Where forms are imposed on the execution of a poAver, the circumstances may be perfectly arbitrary, unessential in point of effect, to the validity of the instrument, by which the power may be exercised; but being required by the creator of the power, they can only be satisfied by a strictly literal and precise performance, and without recapitulating the cases in which it has been decided there must be this literal adherence, it may be said, that in every case the originality of man can devise, the terms of the power must be strictly complied Avith: Sugden’s Powers, 211, 213.”</p> <p>Under the authorities cited, we are clearly of opinion that Mr. Rogers’ appointees have no equities which would move a court of equity to attempt to aid and cure the defectively executed poAver. The appointees are mere vol unteers, collaterals, members of the families of Mrs. Rogers’ mother and father, among which same relatives her will specifically divides the property here involved, upon failure of her husband to execute the power.</p> <p>If, for the sake of argument, it be conceded that under the circumstances presented a court of equity would attempt to aid and cure the defective execution of the power, is it curable, could it be sustained ?</p> <p>The cases already cited, as well as Wickersham v. Savage, 58 Pa. 865; Horwitz v. Norris, 49 Pa. 213; Fidelity Co.’s Appeal, 4 W. N. C. 265; Pepper’s Appeal, 120 Pa. 235, emphatically impress the propositions that the estate appointed is that of the donor, not of the donee; that the latter is merely a trustee of the former to carry out and execute the orders contained in the power, and has no discretion to vary the conditions imposed.</p> <p>These cases, and other authorities which will be cited, make it manifest that even a court of equity, moved by the situation of the parties to lend its fullest aid, cannot sustain an attempted execution of a power where the donee has failed to regard a material feature of his power and the defect cannot be supplied with certainty.</p> <p>Mr. Rogers was invested with the special, limited power to apportion among a certain class a certain fund, among another class a certain other fund. Among the designated classes, he was desired and authorized by his wife to apportion the two funds named, and none other. He failed to apportion either of them. Unless this failure can be supplied, unless it is possible now to ascertain from Mr. Rogers’ will how he would have apportioned the two funds in question, to the classes named, manifestly the execution of the power falls, and Mrs. Rogers’ alternative disposition of the property attaches. Mr. Rogers’ power to apportion the funds was purely personal, it cannot be delegated to, nor performed by another. “ It follows from the idea of a personal confidence reposed in the donee, that such a power cannot be delegated. A trustee appointed by the court in place of the donee cannot execute the power: ” 18 Am. & Eng. Ency. of Law, 968-970.</p> <p>Mr. Rogers apportions $4,500 among designated members of his wife’s mother’s family. Is this apportionment a certain guide as to how he would have divided the $4,000 among the members of this class ? Clearly not. If before his death he had discovered his error, in apportioning $4,500 instead of $4,000, what would have been his mode of correcting it ? He might have cut out one of the $500 legacies, he might have abated all of the legacies proportionately, he might have preferred a completely new scheme of division. Obviously it is impossible to supply his undeclared apportionment of the $4,000.</p> <p>If Mr. Rogers, as directed, had divided the $4,000 among members of the class, and had appointed to them an additional $500 of the residue of his wife’s estate, then, so far as this branch of his power is concerned, it would be fully executed, with an independent excess added, which 'could be stricken down. “ An execution of a power is not void because it exceeds the power, if the part in excess is separable from the part authorized by the power: ” 18 Am. & Eng. Ency. of Law, 921. “ Where there is the complete execution of a power and something ex abundanti added, which is improper, there the execution shall be good, and only the excess void; but where there is not the complete execution of a power, or where the boundaries between the excess and execution are not distinguishable, it will be bad: ” Alexander v. Alexander, 2 Yes. 640. Mr. Rogers did not completely execute the power by appointing $4,000, and then, independently, appoint $500 more ; but appointed $4,500 without indicating at all the “ boundaries between the excess and execution,” without affording any means of locating the $500 excess.</p> <p>Turning to the other branch of the power, the distribution of a specified fund to Mrs. Rogers’ father’s family, and considering the possibility of correcting Mr. Rogers’ defective execution in appointing to that class a fund of $500 less than specified, we are confronted, first, with the difficulty that this $500 was erroneously added to the $4,000 distributable to the other class, has entirely lost -its identity in the resultant $4,500 distributed to Mrs. Rogers’ mother’s family, and cannot be distinguished and returned for distribution in her father’s family. But if this difficulty be overlooked, if the matter be viewed as if Mr. Rogers had distributed all of the specified fund to the father’s family, excepting $500, and had erroneously appointed it — the $500 — by itself, to one outside the class, so that its identity would be clear and it would be readily available for appointment within the class, who within that class are to receive it ? Mr. Rogers alone had authority to say where every penny of the entire fund should go within the class, and power to apportion this errant $500 of the fund survived to no one.</p> <p>Pie failed to do the essential thing directed by the power, to declare an apportionment of the entire balance of the residue after deducting $4,000 among his wife’s father’s family. Can this failure be supplied ? It cannot, unless his disposition of the part of the fund within the proper class is a certain guide to what his disposition would have been had he confined the entire fund to the class.</p> <p>The amount to be distributed, in connection with the number and needs of those within the class to which the distribution is limited, are the considerations that would naturally control a distribution, and it follows that Mr. Rogers’ appointment of a part of the fund within the class, affords no basis for a reliable conclusion as to what his disposition would have been had he appointed the entire fund to the class. Upon the basis of a mistakenly assumed authority to appoint part of the fund outside of the class, thus bringing its members in competition with foreigners, Mr. Rogers has declared to what members of the class and in what proportions a part of the fund shall go; but it does not follow at all if he had done the one thing he had authority to do, had limited the entire fund to the class, that the same member’s would have taken it and in the same proportions.</p> <p>If he had discovered his error after executing his will, he might have appointed the $500 to a new legatee within the class, he might have simply applied it to a proportionate increase of the existing bequests within the class, he might have arranged a new and radically different disposition of the fund. As to this we could only conjecture and guess.</p> <p>It follows inevitably that Mr. Rogers’ attempted appointment of this fund fails entirely; that upon the basis of a distribution of the whole fund within the class, as commanded by the power, he did not act at all, and he left behind no reliable chart from which it is possible now to ascertain and declare how he would have apportioned the entire fund to the designated class. “ It must not be forgotten when handling such a question, that we are dealing with the property of another, and not with that of the donee of the power. In the donee it is but a trust, and those interested in the estate of William Bingham (the donor) have a right to know that the will of their testator has been actually executed as he intended by the donee of his power. Hence, they are entitled to certainties, not mere conjectures or possibilities: ” Bingham’s Appeal, 64 Pa. 345. This language of the court occurs in a case where the question was whether the donee intended to execute the power, but it illustrates the exactness and certainty essential throughout the execution of a power.</p> <p>The reasonings and conclusions we have announced relative to Mr. Rogers’ attempted execution of that branch of the power which concerns Mrs. Rogers’ father’s family, are apparently exactly and fully sustained by the case of Varrell v. Wendell, 20 N. H. 431. There the donee deceased had, through mistake, exercised the power of appointment in favor of some who were, and some who were not the legitimate objects, had distributed part of the fund within the class, and part outside. It was held that the attempted execution was in its entirety utterly void and distribution was directed under an alternative provision of the donor’s will, as if the donee had not attempted to execute the power; the court saying in part: “ Having thus arrived at the conclusion that the testatrix was limited, in the exercise of the power, to an appointment of the fund among such as were of nearest kindred’ to the testator, according to the statute of distributions, a question arises, whether any regard should be had to the action of Mrs. Gardner in giving a part of the property to those persons. In short, should her will, in assigning to certain of those persons a portion of the stock, be regarded as an execution of the power pro tanto, and, if so, final as to those persons ? Her appointment was, as an execution of the power in the extent in which it was intended, invalid. Her act was based upon a misapprehension of her rights and the rights of others in relation to the property, and she proceeded upon the belief that she might' select the objects of her preference from a much wider range than that to which she was legally confined. So that, although it appears from her acts what shares she would, in the discre: tion confided to her, have assigned to the persons in question, as compared with those with whom she did in fact put them in competition, it by no means follows- that, in the narrower competition of claims to which she should have restricted her choice, she would not have assigned to those individuals very different portions. Indeed, it is most probable, and is to be presumed from the plain aspect of the case, that the misapprehension under which she acted very materially affected her conduct with respect to these individuals, and they ought not to be bound by a judgment which proceeds so entirely upon a mistake in a very material matter. . . . It is not to be presumed that, if the donee of the power in the case before us had been made aware of the mistake she bad committed, and had undertaken to correct it, she would, without disturbing the shares that she had apportioned to the next of kin whom she had selected, have simply divided the ill-apportioned residue in equal shares among all the next of kin. The court did that in Sadler v. Pratt, 5 Simons, 45, but there the result was perfect equality among the appointees, and precisely the same that it would have been if the appointment had been entirely vacated. A very different result would follow here, and in cases like the present there is no safety or propriety in presuming what the testatrix would have done had she been aware of all the circumstances.</p> <p>“The fact that is practically of most importance is, that she did not execute the power. . . . This is not one of those cases in which, in default of an appointment, the fund goes over and is wholly lost to all of the number of possible appointees. In such a case there would be a reason that does not here exist, for upholding to the extent to which it had been made in favor of the proper objects. How such a case would be decided, it is not necessary to inquire. . . .</p> <p>“ The conclusion, therefore, is, that the power of appointment has wholly failed of being executed, the attempted appointment being null and void. The court cannot execute the power. The fund must go, as if the donee had not attempted to execute it, namely, among the next of kin : Atty. General v. Doyley, 7 Ves. 58n ; Reade v. Reade, 5 Ves. 744.”</p> <p>In Salter v. Howell, 15 S. & R. 188, the donee was authorized to appoint a fund of $4,000 to her sister’s children. She appointed $8,000 of the fimd contingently to one of her sister’s children, and the remaining $1,000 to a grandchild.</p> <p>The court held the attempted execution of the power to be wholly void.</p> <p>If in our ease the court would, legitimately, bring back the misappointed portion of the fund, and in lieu of Mr. Rogers declare an apportionment of the whole fund within tbe designated class; then in the case cited, treating the donee’s appointment of $3,000, contingently, to her sister’s child, as an appointment absolutely, the court would have brought back the misappointed $1,000, and instead of having declared the execution of the power void, would have cured and sustained it by making, in the place of the donee, a distribution of the entire $4,000 among the proper class.</p> <p>In the case just referred to, the court say: “There is a strictness required in the execution of powers which frequently appears to be harsh; but if once a latitude was allowed, and the direction of the testator as to the appointment was departed from, there would be no rule to go by; and if an implied or presumed intention, even in hard cases, was permitted, and the broad rule of strict adherence to be broken in upon by a minute inquiry into the circumstances of families, it would be highly mischievous and render the judge the distributor of favors, instead of deciding on the words of the testator, or his clear and declared intention.”</p> <p>In Neilson’s Estate, 17 W. N. C. 326, the donee was required to appoint to all the members of a class. She made an appointment excluding certain members. The court did not undertake to cure her defective appointment, to make an apportionment for her among all the members of the class, but simply declared her attempted appointment utterly void and decreed a distribution under her donor’s will.</p> <p>In Stephenson v. Richardson, 88 Pa. 40, a father devised real estate to his daughter for life and at her death in fee to such of her children as she might appoint. She directed the real estate to be sold, and divided part of the proceeds among certain of her children, and part outside the designated class among grandchildren. Counsel argued that the excess of power in directing the real estate to be sold was immaterial, that the children named by the donee could take interests in the land proportionate to the shares of proceeds he has sought to give them, and that the misappointni'ents to grandchildren could be corrected by dividing those shares among all the children of the donee, or among all those named in her appointment according to their respective interests. It would have been no more difficult to aid and sustain this defective execution of a power, than it would be to sustain the one we are considering. In the case cited the court held the defectively executed power to be void, and distribution was made as if the donee had not attempted an execution.</p> <p>• In conclusion, we are of opinion that under the circumstances existing, a court of equity would not seek to aid Mr. Rogers’ defective execution of the power of appointment of the residue of his wife’s estate.</p> <p>.His appointees were mere volunteers, and are substantially those who will in default of an appointment take the property under the alternative provision in Mrs. Rogers’ will.</p> <p>Further, we are convinced that if the circumstances warranted an effort to aid and sustain Mr. Rogers’ appointments, the effort would fail. He did not apportion the funds submitted to his disposition among the classes designated; he is dead and has left no guide by which we can know his mind upon the question. It inevitably follows that his wife must be disappointed of her purpose to have him appoint the two funds in question to the classes named, and the alternative provision of her will, giving the residue of her estate to these classes according to her own schedule of distribution, attaches.</p> <p>We have no doubt that Mr. Rogers’ defective execution of the power conferred by his wife’s will was an inadvertence, and we realize that his appointment of the residue of his wife’s estate, recently made, with a knowledge of the present situation of the members of his wife’s family, ought to be sustained if possible. With these considerations in mind, reluctantly, and only after earnest consideration, has the conclusion been reached, that the attempted execution of the power must be declared void.</p> <p>The exceptions are sustained, and the report is referred back to the auditor so that he may make distribution of the fund in his hands as the will of Sarah Jane Rogers provides in the event of her husband’s failure to execute the power of appointment conferred upon him.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 50, Jan. T., 1906, by plaintiff, from order of C. P. Lackawanna Ce., March T., 1904, No. 283, refusing to take off nonsuit in case of William S. Nyhart v. Taylor Borough.</p> <p>Appeal from award of viewers.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 9, March T., 1906, by the heirs of the Estate of Sarah T. Smith, deceased, from order of C. P. Lycoming Co., March T., 1901, No. 332, assessing damages from appeal of award of jury of view in the Matter of Grafius’ Run.</p> <p>Appeal from award of jury of view. Before Hart, P. J.</p> <p>From the record it appeared that in 1901 the city of Williamsport by ordinance changed the location of Grafius’ Run. Viewers were appointed to assess benefits and damages’ under the act of April 28, 1899. The jury assessed benefits against a large number of property owners.</p> <p>Exceptions to the report of the jury of view were overruled by the court.</p> <p>Errors assigned were in overruling exceptions to report of jury of view.</p>

<p>Appeal, No. 50, April T., 1906, by defendant, from judgment of O. P. Warren Co., June T., 1901, No. 36, on verdict for plaintiff in case of Howard H. Clark</p> <p>& Company, Limited, v. Warren Savings Bank.</p> <p>Assumpsit on a check. Before Wilson, P. J.</p> <p>At the trial the following offer was made:</p> <p>■Mr. Patterson: Our case is founded on the check with the indorsement as proved, and the fact that this check has been paid to some one and it has been charged to Powers’ account, and the check is offered in connection with the entire testimony that has been offered.</p> <p>Objected to, for the reason that the indorsement has not been proved, and without it no right to recover on the check by anyone would appear. And object to it further as entirely immaterial and incompetent as tending in any way to establish any indebtedness of the bank to the plaintiff in this case.</p> <p>Objection overruled and exception sealed for defendant. [1]</p> <p>Plaintiff presented the following points:</p> <p>1. If the jury believe that the defendant charged the check in suit to the account of J. H. Powers, the drawer, and in its settlement of accounts with him obtained a credit of the amount thereof, and that John Barclay was without authority to indorse the check on the plaintiff’s behalf, under all the evidence the verdict should be for the plaintiff. Answer: Affirmed. [9]</p> <p>2. If Barclay was without authority to indorse the check, there has been no legal payment thereof, and if the jury believe the bank has charged the check to Powers’ account, the verdict should be for the plaintiff. Answer: Affirmed. [10]</p> <p>3. The receipt of the check exhausted Barclay’s authority to collect, and he had no authority to indorse the check as an incident of his authority to receive the same. Answer: Affirmed. [11]</p> <p>Defendant presented these points :</p> <p>1. There is no privity of contract between the bank and the payee of an unaccepted check on such bank, and the payee of the check has no cause of action against the bank on which it is drawn until said check is accepted. Answer: Affirmed. [12]</p> <p>2. Since the act of May 10, 1881, the acceptance of a check for more than $20.00 must be in writing, signed by party on which it is drawn or its proper officer or agent. Answer : The second point as applied to the evidence in this case is refused.</p> <p>3. No legal or valid acceptance of the check sued on has been shown, and the verdict must be for the defendant. Answer : The third point is refused. [13]</p> <p>Verdict and judgment for plaintiff for $98.15. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (9-13) above instructions, quoting them.</p>