Volume 32 — Pennsylvania Superior Court Reports

<p>Constitutional law — Title of statute — Food law — Act of June 26, 1895;, P. L. 317. ' '</p> <p>The Act of June 26, 1895, P. L. 317, entitled “An Act to provide against the adulteration, of food, and providing for .the enforcement thereof,” is not defective in title in that its title does not embrace the subject of the sale of adulterated food.</p> <p>Under the act of June 26, 1895, it is not necessary for the commonwealth to plead that the article sold was not within the proviso of the third section of the act.</p> <p>On an indictment under the act of June 26, 1895, the question of the validity of the title to office of the “Dairy and Food Commissioner,” is immaterial.</p> <p>An objection to such a prosecution that it was instituted by an agent of the' Department of Agriculture is without merit.</p>

<p>Railroads — Carriers—Cars—Discrimination—Coal.</p> <p>All shippers similarly situated must be treated alike by a railroad company at the same place in the distribution of cars. An unusual volume of business may make it impracticable for the railroad company to provide an adequate supply, but the duty remains to distribute whatever cars may be available among those of the same class in due proportion. Any inequality of charge or facilities for transportation must be justified' by a difference of circumstances and situation.</p> <p>A transportation company may not discriminate in favor of particular persons or companies because they have been for a longer time engaged in business than other companies.</p> <p>A person who is not the owner or lessee of a coal mine, but has only a contract to purchase and sell coal, has a standing to demand cars from a railroad company on which his coal may be loaded from wagons, where it appears that owners or lessees of coal mines have been furnished cars for use in the same way.</p> <p>A Pennsylvania court has jurisdiction over a railroad company sued for discrimination in supplying coal cars, where it appears that the plaintiff's relation to the coal terminated at a point within the limits of the state of Pennsylvania; and it is immaterial that the intentions of plaintiff may have been that the coal should be shipped from that point to a point without the state.</p>

<p>Appeal, No. 52, Jan. T., 1906, by plaintiff, from judgment of C. P. Luzerne Co., Oct, T., 1902, No. 474, on verdict for defendant in case of Jacob Griesmere v. Frederique Thorn and Maggie O’Boyle, Executrix of the Estate of Hugh O’Boyle, deceased.</p> <p>Scire facias to revive a judgment. Before Lynch, 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>According to the testimony of Miss Cannon, called by the defendant, she caused the execution to be issued on this judgment. She testified, in substance, she said to the sheriff “ levy upon the property of O’Boyle, but do not now, or at present, levy upon the property of Thorn.” Deputy sheriff Seiple testified she said, “levy upon the property of O’Boyle and do not levy upon the property of Thorn.” But on cross-examination said he would not swear Miss Cannon did not say to him “ not at present ” or “ not now.”</p> <p>It is the duty of the surety to give notice to the creditor to proceed against -the principal, but if the creditor does proceed upon his judgment, issues execution and places it in the hands of the sheriff, it is the duty of the sheriff to levy first upon the personal property of the defendant named in the writ; he is presumed to know nothing except to obey the order of the writ, make demand first, then levy if the money is not paid, advertise and sell, realize the money and pay it to the creditor. Whether the law be or not as argued, it appears to the court this must be the law : — [If the creditor, when a writ is placed in the sheriff’s hands, before he does anything upon the writ orders him not to levy upon the principal’s property and to levy upon the suret}r, that certainly is equivalent to withdrawing it from levy if already made.] [1] Because it would be the sheriff’s duty to levy, and if prevented from exercising such duty, by order of the plaintiff in the writ, the latter could not afterwards say the creditor is exempt because the sheriff had not actually levied. [If the order not to levy upon Thorn was explicit and unqualified by Miss Cannon, but to levy upon O’Boyle, it would exempt O’Boyle.] [2] If simply not to levy now, with the qualification he could 'levy after, it would not. Because, as well argued by Miss Cannon, the sheriff had a certain time within which to levy on.both.</p> <p>You must consider, too, the fact that a few days after this writ was placed in the sheriff’s hands, it was stayed upon the affidavit of the defendant. The crucial test and the sense of the thing is, was it plaintiff’s fault that Thorn’s property was not held by the execution? If it was by his order, he should not get th'e advantage of it now. If not done by his command, through his counsel, he should not be held responsible and it should not-be charged against him.</p> <p>On the same but later in the day, the note was signed by Thorn and O’Boyle. Mrs. Thom made a bill of sale of what might be- called the bottling establishment, which has been read in your hearing, to Mr. Griesmere. [If Griesmere without the surety’s knowledge, without O’Boyle’s knowledge, knowing that O’Boyle was surety for the payment of this money, deliberately and intentionally by a scheme with Thom withdrew the property of Thorn, so that it could not be reached by execution, and therefore execution would be thrown over on O’Boyle, it would be unfair dealing.] [3] It is claimed O’Boyle knew it — part of the testimony is O’Boyle knew this transaction had taken place, and the other, that he did not know. If it was done by Griesmere for the purpose of withdrawing the property of Thorn from the reach of the execution and thereby throwing the weight of debt upon O’Boyle, it would be illegal.</p> <p>Plaintiff presented these points:</p> <p>2. Jacob Griesmere was under no obligation to proceed to collect this judgment out of the property of Fred. Thom in the absence of notice from Hugh O’Boyle or his representatives. Answer: This is true as a general proposition, but it is not true in this case and is therefore denied. [4]</p> <p>3. Execution having been issued against Thom and O’Boyle which was stayed on application of the surety four days later, and no levy having been made on Thom’s property, the plaintiff never had such possession or control of defendant’s (Thorn’s) property as would discharge the other defendant, Hugh O’Boyle, or his estate. Answer: No. 3 is denied. [5]</p> <p>4. Neglect or refusal to levy in the absence of notice from the surety will not discharge the surety. Answer : No. 4 is denied. [6]</p> <p>6. The jury should disregard all evidence as to the alleged bonus of $200. Answer: No. 6 is denied. [7]</p> <p>7. In the absence of notice from the surety to proceed to collect from defendant’s goods the plaintiff is not chargeable with the value of the goods at the time the note fell due, or until the same were actually sold, and the only evidence of their value at that time is the sheriff’s return to the writ. Answer:. No. 7 is denied. [8]</p> <p>8. The testimony showing that the alleged promise to postpone the payment of the old indebtedness until after the O’Boyle note was paid, was made after the execution of the O’Boyle note, was without consideration and 'therefore not binding. Answer; No. 8 is denied. [9]</p> <p>Defendant presented these points:</p> <p>1. If the jury believe that before the note in suit was executed by the defendant, O’Boyle, Griesmere agreed that all moneys paid by Thorn to him, Griesmere, on the indebtedness subsequently thereto, should be applied on the said note, then they may allow the defendant credit for said sum so paid. Answer; Affirmed. [10]</p> <p>2. If .the jury believe that Thorn paid to Griesmere $200 out of the $1,200, as a bonus for the loan, the defendant will be entitled to a credit for the same. Answer; Affirmed. [11]</p> <p>3. If the jury believe that the attorney for plaintiff after she had placed the execution in the hands of the sheriff instructed him not to levy on Thorn, and by reason thereof his personal property was released from the lien of said execution, they may allow the defendant credit for the amount that the personal property of the- defendant, Thorn, so released would have realized at sheriff’s sale at that time, less the costs of sale. Answer ; That is affirmed with this addition: “ by reason thereof alone and only.” [12]</p> <p>4. If the jury believe that the bill of sale was made and delivered to Griesmere with the express condition and agreement, as testified to by Thorn, that the O’Boyle note should first be paid thereout and therefrom, and Griesmere took possession of said goods or of the greater part of the same, then they may allow the defendant credit for the value of the goods so taken as represented by their fair market value at the time he took possession of the same. Answer: That is affirmed, but it will be necessary for you to ascertain from the evidence what the fair market value at that time was. [18]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-18) above instructions, quoting them.</p>

<p>Appeal, No. 2, April T., 1906, by defendant, from judgment of C. P. Cambria Co., June T.,1903, No. 32, on verdict for plaintiff in case of Hudson C. Bracken for use of W. D. Lloyd v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before O’Connor, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented the following points :</p> <p>1. It being admitted that the defendant company operated safety gates on both sides of the railroad, it would not be negligent in running its express train at a speed of forty miles per hour at that point. Answer: If it is admitted that the defendant operated safety gates at this crossing and that it would not be negligent in running its train at a speed of forty miles an hour, then we cannot see how, under the circumstances, the defendant can escape the conclusion that it was negligent in this case, because the uncontradicted evidence is that the gates were not operated on this particular occasion ; we cannot affirm the point because the gates were not operated at the time the accident occurred. [1]</p> <p>2. The decedent not having stopped, looked or listened, nor having requested the driver to do so, for the approaching train, before and while on the crossing, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: We refuse the point because it is not-conceded that the driver even did not stop, look and listen. [2]</p> <p>3. The evidence being undisputed that the decedent was a strong, healthy and intelligent boy, about twelve1 years and six months old, and was warned by his parents of the danger at said crossing, therefore it is presumed that he was sensible of the danger and possessed the intellectual power to avoid it and was required to take proper care of his person by stopping, looking and listening before going on the crossing and also before going on track No. 2. Answer: We have tried to instruct you fully upon that point and we have said to you that the plaintiff in this case was not bound by the negligence of the driver in his failure to observe the usual rule, but that if the decedent, Robert Bracken, considering his age and intelligence and his knowledge of the crossing, deliberately went into the danger knowingly, that he could have reasonably avoided the danger, in that event the plaintiff would not be entitled ,to recover. [»]</p> <p>4. Inasmuch as Alice Bracken, the mother of the decedent, is living and not a party to this suit, the 'verdict should be for the defendant. Answer: We decline to so instruct you. [4}</p> <p>5. That under the act of April 26, 1855, the plaintiff would be entitled to one-half of the whole damages the parents sustained, if any, inasmuch as the evidence shows the mother of the decedent is living and her rights would not accrue to the plaintiff. Answer; We decline to affirm that point. The doctrine as laid down in Phila. Traction Co. v. Orbann, 119 Pa. 37, is to the effect that where an action is brought by a minor to recover for personal injuries, he is not entitled to recover for the losses of earnings during minority, since his father is entitled to them. The act of 1855 says the parents 'may recover in cases of this kind. In one case that went to the Supreme Court the parents were joined, but the Supreme Court did not pass upon the question because it was not made a special assignment of error. We are of the opinion that the wife is entitled to one-half the damages in an action of this kind, and therefore refuse the point. [5]</p> <p>6. That the measure of damages, if any, is the compensatory value of the services of the decedent during his minority; less (a) The cost of his maintenance and support; also less (b) The period during which the plaintiff was compelled to send the decedent to school in accordance with the Act of July 11,1901, P. L. 658, which is until his son would be sixteen years o f age. Answer : With the exception of the last line of this point, we affirm it. The last line assumes a fact which is not a correct statement. The father in a case of this kind is not obliged to send his son to school until he is sixteen years of age. In this case, under the evidence, Robert Bracken was such a boy as his parents would not be required to send to school after he becomes thirteen years of age. With this exception the point as stated is correct, and it states the true measure of damages. [6]</p> <p>10. If the whistle was not sounded for the Fairfield-avenue crossing it could not be negligence on the part of the defendant. Answer : If the gates had been down and prevented Dennison and this boy from going upon the tracks, that might have been sufficient warning — -we think it would have been; but if the gates were up, and no signal sounded, we would say, as matter of law, unless there is evidence of some other warning, that the Pennsylvania Railroad was negligent. It is hard to escape the conclusion -in this case that ■ they were negligent under any circumstances, and this point admits that there is evidence of other negligences. [8]</p> <p>The court charged in part as follows:</p> <p>[It has been argued by counsel that these are not safety gates, but rather death traps; why they should be there we are not just clear, because if they are a positive injury they ought to be taken down.] [12]</p> <p>[It is argued by counsel for the defendant that the boys were forbidden to be on the wagon, but we recollect of no testimony in the case which would warrant such conclusion.] [13]</p> <p>[Because the plaintiff is entitled to recover for the loss of services, he is not bound by the rule which requires that the person driving the wagon must be shown to be free from negligence ; in other words, there is no evidence in the case which would warrant you in concluding that the plaintiff consented to his son being on this particular wagon, and if the railroad company was negligent so as to fasten upon it responsibility, though the driver of this wagon might also be negligent, his negligence cannot be chargeable to the plaintiff, for the reason that it has not been shown that the parents of either of the boys consented or acquiesced in their being upon the wagon, and the boys could not be chargeable with the driver’s negligence, for the reason that he had entire control over the vehicle.] [14]</p> <p>[If that is the evidence, then he did stop; if he stopped, the law will presume that he looked and listened, and there being no evidence to the contrary, that would be assumed; that is, his compliance with the ironclad rule would be presumed, and that would take it out of the case.] [15]</p> <p>[If the jury find that the driver of the wagon on which Robert Bracken was riding was negligent, the negligence of the driver cannot be imputed to the plaintiff, the father of the boy.] [16]</p> <p>Verdict and judgment for plaintiff for $1,250.15. Defendant appealed.</p> <p>Errors assigned were (1-6, 8, 12-16) above instructions, quoting them; (7, 10, 11) rulings on evidence referred to hr the opinion of the Superior Court.</p>

<p>Appeal, No. 86, April T., 1906, by defendant, from judgment of O. P. Armstrong Co., March T., 1905, No. 6, on verdict for plaintiff in case of Eunice T. King v. S. T. McKinstry, Administrator c. t. a. of Estate of William McKinstry, deceased.</p> <p>Assumpsit for services. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $468. Defendant appealed.</p> <p>Errors assigned among others were (7) in admitting in evidence the paper quoted in the opinion of the Superior Court; (6, 9) in directing the jury to fix a definite amount for their verdict, and in entering judgment on the verdict as finally returned by the jury.</p>

<p>Practice, C. P. — Pleading—Statement of claim — Evidence—Allegata et probata — Variance.</p> <p>The procedure act of 1887 requires that the declarations in assumpsit and trespass shall be a concise statement of the plaintiff’s demand. It should be not only concise, but precise; exhibiting with accuracy and completeness the ground on which recovery is sought. It is hot enough that the evidence may show a cause of action; it must show the cause of action laid in the declaration. The plaintiff does not recover on the proofs alone; he recovers secundum allegata et probata.</p> <p>In an action of assumpsit where the statement sets forth a claim for services rendered as bookkeeper and salesman, and the proof on the part of the plaintiff related wholly to an alleged partnership between the plaintiff and the defendant, a verdict and judgment for plaintiff cannot be sustained.</p> <p>Practice, C. P. — Trial—Disorderly conduct of witness.</p> <p>Where a plaintiff on the witness stand persistently charges crimes to his brother, the defendant, that had no possible relation to the questions at issue, and constantly puts in arguments and tries to throw slurs upon persons connected with the case, the court should entertain a motion to withdraw a juror and continue the case.</p>

<p>Vendor and vendee — Judgment—Lien—Legal title.</p> <p>A judgment entered against a vendor who has sold land by articles of agreement, but who still retains the legal title, becomes a lien against any estate remaining in the vendor evidenced by that title.</p> <p>If the vendor either in the agreement of sale itself, or at any time thereafter but prior to the entry of the judgment, in good faith, and for a lawful consideration to him moving, assigns and transfers to another, or to one in trust for a number of others, all of the unpaid purchase money, then the legal title remaining in the vendor is stripped of every incident and element of value to him, and there will be nothing upon which the lien of a judgment against him can fasten. He will then hold but the naked legal title in trust for his vendee, if the terms of sale are complied with, or for those who had succeeded to his own rights in the purchase money if it becomes necessary for them to use it to enforce those rights.</p> <p>Where a vendor in good faith assigns the purchase money of the land to the vendee to be by him applied in payment or settlement of the vendor’s debts, the transaction amounts to an assignment of the purchase money, and no title to it will remain in the vendor, to which the lien of a judgment against him can fasten.</p> <p>The assignment of a chose in action or of a fund need not be by any particular form of words, or particular form of instrument. Any binding appropriation of it to a particular use by any writing whatever is an assignment of a transfer of the ownership.</p>

<p>Appeal, No. 42, Oct. T., 1906, by E. B. Sage et al., from order of Q. S. McKean County, Dec. T., 1905, No. 24, dismissing petition for an election under act of April 12, 1905, In the Matter of the Petition of the Citizens of Foster Township.</p> <p>Petition for an election under Act of April 12,1905, P. L. 142.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 95, April T., 1906, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 653, on verdict for defendant in case of James Marshall v. James H. Reed.</p> <p>Assumpsit to recover commission for the sale of real estate. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>. Appeal, No. 106, Oct. T., 1906, from judgment of Q. S. Phila. Co.</p> <p>Rule to show cause why an alternative mandamus should not issue.</p>

<p>Pleading — Statement—Trespass—Negligence.</p> <p>Where a statement in trespass contains clear and concise averments of the acts of negligence of which complaint is made, the plaintiff is not debarred from showing in the statement other items which are the natural results of such negligent acts.</p> <p>If the defendant regards -the statement of claim as insufficient, he may demur, or apply to the court for a rule to show cause why more specific statement should not be filed. If he joins issue, goes to trial on the statement as filed, and the trial clearly shows that he was prepared to meet the testimony of the plaintiff as to the damages resulting from the nSgligence complained of, he cannot thereafter complain of the statement.</p> <p>Practice, C. P. — Continuance—Discretion of court.</p> <p>A motion for a continuance based upon the plea of surprise, appeals ordinarily to the discretion of the court.</p> <p>Municipalities — Obstruction in street — Negligence—Notice.</p> <p>A municipality cannot allow a dangerous obstruction in a street to exist for any considerable time, and then say it is exempt from liability, or that it had no notice, or that it had no knowledge. It is bound, after a reasonable time, to know, and if it is a defect, to remedy it.</p> <p>In an action against a borough to recover damages for injuries caused by water, it appeared that the borough had substituted pipes for an open stream, and it was averred that these pipes were insufficient to allow free passage of the water from above which ordinarily came down the course of the stream. It was also averred that the defendant had erected a wooden grating or crib above the entrance to the pipes, against which it carelessly and negligently allowed brush, dirt and débris to gather and accumulate so as to fill up the stream, clog the pipes, and dam back the water upon plaintiff's land. Held, that independently of any error of judgment in the matter of the substitution of the pipes for the open stream, there was sufficient to carry the case to the jury on the distinct charge of negligence in the manner in which the pipes were cared for.'</p> <p>Waters — Act of God — Negligence—Concurring negligence.</p> <p>In an action of trespass against a borough to recover damages for injuries resulting from alleged negligent acts of the borough in connection with a water course, where there is evidence that the damage took place at the time of an unusually high flood, it is not error for the court to charge that “the rule of law is that, although an act of God entails' no injury upon anyone in contemplation of law, yet if man contributes towards it, it is man alone that is responsible.”</p>

<p>Summary conviction — Justice of the peace — Record—Illegal hunting— Act of April 14, 1903, P. L. 178.</p> <p>A summary conviction must contain a finding that a specific act has been performed by the defendant, and it must describe or define it in such a way as to individuate it, and show that it falls within an unlawful class of acts. Without this a judgment that the law has been violated, goes for nothing. This is not merely a formal or technical rule of summary conviction, but most essential and substantial.</p> <p>A summary conviction for illegal hunting in violation of the Act of April 14, 1903, P. L. 178, cannot be sustained where the record of the justice merely shows that the defendant hunted in a particular county named without having procured a license from the county treasurer of that county. In such a case the defendant by the very terms of the act might lawfully hunt in the county named, if he has secured a proper license in any other county of the commonwealth.</p>

<p>Criminal law — Charge of court — Trial.'</p> <p>On a criminal trial it is proper for the court to charge as follows: “The commonwealth must make out a case which convinces the jury of the guilt of the defendant, and the various elements of it, and all of them, so that there is no reasonable doubt left in the minds of the jury that the commonwealth’s case is made out. The duty of the jury, therefore, is to take all the evidence they have heard, both of the commonwealth and the defendant, and apply it to their own common sense, their knowledge of human affairs, and to make up their minds whether or not they are convinced, they are sure, that there is no reasonable doubt that the defendant is guilty.”</p> <p>Criminal law — Improper conduct of counsel — Jury—Discretion of court.</p> <p>Where private counsel for the commonwealth in a criminal prosecution uses violent and inflammatory language against the defendant, but the court in a calm and dispassionate charge warns the jury not to be affected by prejudice, and subsequently refuses a motion for a new trial based on the language used by counsel, the appellate court will not under the circumstances review the discretion of the trial judge and reverse the judgment entered on a verdict of guilty.</p>

<p>Deed, — Delivery—Recording—Evidence.</p> <p>In an action of ejectment it appeared that the plaintiff, a church, claimed the land, designated as a numbered lot of a town under a deed from the founder of the town. The defendant claimed the land by mesne conveyances from the founder. It appeared that the deed to the church was not delivered until twenty-eight years after it was executed and acknowledged. About sixteen years after it was executed the founder executed a deed to defendant’s predecessor in title for the same land “subject to any previous conveyance” to the church, “if, on examination, such a previous conveyance exists.” Defendant took title several years thereafter, and her deed was recorded seven years prior to the recording of plaintiff’s deed. There was evidence that the defendant immediately fenced the land, and in the subsequent year erected thereon a dwelling. There was also evidence that five years before the deed to plaintiff, the church, with the consent of the founder, began the erection of a church building on the adjoining lot then owned by the founder, and to some extent used the lot in controversy as a means of access to the church. Held (1) that plaintiff’s deed was properly admitted in evidence; (2) that it was error to give binding instructions for plaintiff; (3) that the paper title of the defendant was superior to that of plaintiff, and (4) that the question whether the plaintiff had acquired an adverse'and exclusive possession of the whole or any part of the lot was for the jury.</p>

<p>Water companies — Condemnation—Appeals—Certiorari.</p> <p>While no appeal lies from an order refusing to approve the bond of a water company, such proceedings may be reviewed by certiorari. If the proceedings are regular in form the order of the lower court must be sustained.</p> <p>Where one water company tenders a bond in proceedings to condemn the lands of another water company, and it does not appear in the bond itself, or in the petition for its approval, or otherwise in the record, that the company has no right in law to appropriate the land and waters described therein, and the court without passing upon the question of the sufficiency of the bond, dismisses the proceedings, the order will be reversed, and the case remitted to the court below in order that it may pass upon the sufficiency of the bond.</p>

Appeal, No. 178, Oct. T., 1905, by defendant, from judgment of O. P. No. 4, Phila. Co., Dec.-T., 1904, No. 483, on verdict for plaintiff in case of Barbara McCullough by her mother and next friend, Mary A. McCullough, and Mary Á. McCullough v. City of Philadelphia. Trespass to recover damages for personal injuries. 'Before Carr, J. The opinion of the Superior Court states the oase.

Appeal, No. 18, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Go., Sept. T., 1906, No. 3,624, on verdict for plaintiff in case of Yallee Brothers Electrical Company v. North Penn Iron Company. Assumpsit for goods sold and delivered. Before Ralston, J. The facts are stated in the opinion of the Superior Court. Defendant presented the following points: 1.

Appeal, No. 100, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1904, No. 1,249, on verdict for plaintiff in case of Phillip Sternberg v. Solomon Sklaroff. Assumpsit on a promissory note. Before Willson, P. J. Verdict and judgment for plaintiff for 1171.06. Defendant appealed. jErrors assigned were as follows: 1.

Appeal, No. 249, Oct. T., 1905, by defendant, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1899, No. 415, on verdict for plaintiff in case of Israel Levy v. the Singer Manufacturing Company. Trespass for foreeable removal of a sewing machine. Before Brégy, J. Verdict and judgment for plaintiff for $150. Defendant appealed. Error assigned was refusal of binding instructions for defendant.

Appeal, No. 136, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., June T., 1903, No. 2,093, for defendant non obstante veredicto in case of Job R. Mansfield v. Harry K. Mansfield, Susie G. Mansfield and John Cooper, Executors of the will of John H. Mansfield, deceased. Assumpsit to recover one-half of a surcharge. Before BeitLER, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 218, Oct. T., 1906, by the Pattonville & Woodbury Turnpike Road Company, from order of Q. S. Bedford Co., confirming proceedings in the matter of the Condemnation of Pattonville and Woodbury Turnpike Road. Petition to condemn a turnpike road. Before Woods, P. J. The opinion of the Superior Court states the case. Error assigned was order confirming the proceedings.

Appeal, No. 59, Oct. T., 1906, by defendant, from order of C. P. Huntingdon Co., Dec. T., 1905, No. 83, discharging rule to open judgment in case of H. B. Groninger to use of W. H. Cliilcote v. Isaac M. Acker and George W. Acker. Rule to open judgment. Before Woods, P. J. The opinion of the Superior Court states the case. Error assigned was the order of the court • discharging rule to open judgment.

<p>Appeal, No. 63, Oct. T., 1906, by plaintiff, from judgment of O. P. Bedford Co., April T., 1905, No. 6, affirming judgment of a justice of tbe peace in casé óf Huntingdon and Broad Top Mountain Railroad Company v. David Fluke.</p> <p>Certiorari to the judgment of a justice of the peace. Before Woods, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 84, Oct. T., 1906, by-defendant, from judgment of O. P. Clearfield Co., Feb. T., 1905, No. 225, on verdict for plaintiff in case of Margaret Kirley v. G. W. Thom.</p> <p>Assumpsit to recover salary. Before Smith, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were answers to defendant’s point quoted in the opinion of the Superior Court.</p>

<p>Judgment — Opening judgment — Forgery—Evidence—Discretion of court.</p> <p>Although the defendant in a confessed judgment testifies that his signature is a forgery, and there is opposing testimony, there is no inflexible rule which compels the court to open the judgment. Even in such a case the judge should exercise a sound discretion, after a careful consideration of the character and effect of the testimony.</p> <p>On a rule to open a judgment, the defendant alleged that the note upon which the judgment was entered was a forgery. The testimony upon this subject was that of the defendant herself and a comparison of the signature to the note in question with others which she admitted to be genuine. On the other hand, her sister, who was the subscribing witness to the note, and the plaintiff himself both testified unequivocally to the fact that she signed the note. A brother also testified that she admitted to him that she had signed a note for a settlement of $300, which was the amount of the note in controversy. The defendant was an illiterate woman, and testified that she wrote her “name poorly.” Held, that the court committed no error in discharging the rule to open the judgment.</p>

<p>Appeal, No. 237, Oct. T., 1905, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1905, No. 1,825, discharging rule to open judgment in case of Joseph H. Loeb and Harry Lipper, trading as Loeb, Lipper & Company, v. William H. Allen.</p> <p>Assumpsit on a promissory note.</p> <p>From the record it appeared that a summons issued June 21, 1905, returnable Monday, June 26, 1905.</p> <p>The sheriff’s return to the writ is as follows :</p> <p>“ Served William H. Allen, the within-named defendant, by handing June 23, 1905, a true and attested copy of the within writ to an adult member of said defendant’s family, at No. 4045 Powelton ave., the dwelling house of defendant.”</p> <p>The statement and rule to file an affidavit of defense within fifteen days were filed on June 21, 1905, and copy served the same day.</p> <p>On July 10, 1906, judgment was entered by the prothonotary for want of an affidavit of defense and execution issued. The defendant then presented his petition, showing that sérvice of the statement had been made upon him prior to the service of the summons, and that the copy of statement contained no reference to the court or number of the case.</p> <p>No answer was filed to the petition, and at the argument the court expressed a preference to hear the merits of the defense. A supplemental petition was then filed and an answer filed by the plaintiff and depositions were taken in support of the petition. Upon hearing further argument the court discharged the rule.</p> <p>Error assigned was order discharging rule to open judgment.</p>

Appeal, No. 34, Oct. T., 1906, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 1,068, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Scientific American Compiling Company to use of Cetlon B. Taylor v. Edward B. Creighton. Assumpsit on a written contract. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case.

Appeal, No. 19, Oct. T., 1906, by plaintiff, from order of G. P. No. 5, Pbila. Co., June T., 1905, No. 2,323, discharging rule for judgment for want of a sufficient affidavit of defense in case of Thomas Yearsley v. Sigmund Glaser. Assumpsit for work and labor done and material furnished.

<p>Appeal, No. 83, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1906, No. 426, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Julius Kessler & Company v. Patrick J. Connor.</p> <p>‘Assumpsit on promissory notes. Before Martin, P. J.</p> <p>The material portion of the affidavit of defense is quoted in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 104, Oct. T., 1906, by-defendant, from order of C. P. Ño. 1, Phila. Co., Dec. T., 1905, No. 1,214, making absolute rule to pay over money in case of Lewis A. Haspel, Receiver of the United Building and Loan Association of Philadelphia, v. Daniel O’Brien, Mortgagor, Wilson H. Brown, Sheriff, and the City of Philadelphia.</p> <p>Rule upon the sheriff to pay over money.</p> <p>From the record it appeared that on a scire facias sur mortgage the mortgaged premises were sold, and the sheriff retained out of the purchase money a sum sufficient to cover tax claims and water rent due to the city of Philadelphia. The mortgage was created in September 24, 1892. The taxes and water rent were for the years 1905 and 1906. Plaintiff took a rule on the sheriff to show cause why the money retained by him should not be paid to the plaintiff. This rule was made absolute.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 21, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 1,815, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The United Oil Company v. Louis Dash and Bernard S. Siegel, trading as New York Commission Company.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Rule for judgment for amount admitted to be due.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>From the record it appeared that after the original affidavit of defense was filed, judgment was entered for $56.77 for the amount admitted to be due. After the supplemental affidavit of defense was filed, the court made absolute a rule for judgment for want of a sufficient affidavit of defense, and damages were assessed in the sum of $198.05.</p> <p>Errors assigned were (1) in entering judgment for $56.77 as the amount admitted to be due; and (2) in making absolute a rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 68, Oct. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 1,040, making absolute rule for judgment for want of a sufficient affidavit of defense in case of E. J. Miller and E. W. Morris, trading as Miller, Morris & Company, v. Gawn Douglas and Fred Crsemer.</p> <p>Replevin for an engine.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Landlord and tenant — Waiver of appeal — Striking off appeal — Eviction — Discretion.</p> <p>A waiver of a right of appeal in a lease may be claimed by the lessor, although the lessee sets up the defense of eviction. In such a case the justice has jurisdiction to determine the question whether there was in fact an eviction, and the agreement is in effect that the lessee will be bound by his decision.</p> <p>If there are any special facts which will preclude the lessor from claiming the waiver, the lessee may show them in response to a rule to show cause why the appeal shall not be struck off. If he fails to do so the rule will be made absolute.</p> <p>A subsequent application to reinstate the rule to strike off upon the ground of after-discovered evidence, is addressed to the sound discretion of the court below.</p>

Appeal, No. 97, Oct.T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 951, on verdict for plaintiff incase of Charles Hentzler v. Hans Weniger, Executor of Mary Barbara Schunzel, deceased. Assumpsit on a contract. Before Atjdenried, J. At the trial it appeared that plaintiff, a brother-in-law of the decedent, claimed to recover for board and care of the decedent from May, 1901, until May, 1902. Decedent-died on August 6, 1908.

<p>Appeal, No. 132, Oct. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1906, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Benjamin W. Snyder v. Thomas Henry.</p> <p>Assumpsit for rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>JSrror assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Mechanic’s lien — Bankruptcy—Judgment—Opening judgment.</p> <p>Where a contractor is adjudged a bankrupt, and the subcontractor files a mechanic’s lien against the owner and contractor, upon which judgment is entered against the contractor by default, the judgment is not to be opened because of the existing adjudication of bankruptcy, or because of the allegation that the effect of the judgment would give the subcontractor a preference over other creditors of the bankrupt.</p>

Appeal, No. 153, Oct. T., 1906, by Mary A. Wade, from decree of O. C. Phila. Co., July T., 1905, No. 231, dismissing exceptions to adjudication in Estate of Emily B. De Silver, deceased. Exceptions to adjudication. The opinion of the Superior Court states the case. JError assigned was in dismissing exceptions to adjudication.

<p>Appeal, No. 160, Oct. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1906, No. 3,480, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Tabor Manufacturing Company v. Clifford S. Lovell.-</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court making absolute rule for judgment for-want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 20, Oct. T., 1906, by defendants, from order of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 3,716, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Adrian St. Gar-man v. Max Gumbiner.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals — Warrant of arrest — Evidence—Record—Revieio.</p> <p>An appellate court has no power to review an order of the common pleas quashing a warrant of arrest issued under the Act of July 12,1842, P. L. 339, where it appears that the order of the lower court was based upon the conclusion reached from an examination of the evidence, that the debt for which the warrant was issued was not fraudulently contracted. In such a case the evidence is not before the appellate court, and a reversal may be had only for errors manifest upon the face of the record.</p>

<p>Municipal lien — Mortgage—Execution—Distribution—Priority of liens —Act of June 4, 1901, P. L. 364.</p> <p>Where property is sold in 1905, under a mortgage executed in 1890, the proceeds of the sale should be applied to the mortgage in preference to taxes and municipal hens which had accrued after the passage of the Act of June 4, 1901, P. L. 364.</p>

Appeal, No. 31, Oct. T., 1906, by defendant, from order of C. P. Del. Co., discharging rule to set aside subpoena in divorce in case of Mary N. Tobin v. Francis Tracy Tobin. Rule to set aside service of subpoena in divorce. Error assigned was order discharging rule to set aside service of subpoena.

<p>Appeal, No. 240, Oct. T., 1905, by Annie L. Feigham, from decree of O. C. Phila. Co., Oct. T., 1900, No. 306, charging legacies on real estate in Estate of James Todd, deceased.</p> <p>Petition for a decree to charge real estate with the payment of legacies. Before Ashman, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree charging the real estate of the decedent with $6.00 a week in favor of Arthur Todd.</p>

Appeal, No. 239, April T., 1905, by defendant, from judgment of C. P. Cambria Co., March T., 1904, No. 424, on verdict for plaintiff in case of A. B. & H. S. Goldstein v. Adams Express Company. Assumpsit for the loss of money from a package. O’Connor, P. J., charged as follows: In the issue you have been sworn to try, A. B. & H. S. Gold-stein seek to recover from the Adams Express Company the sum of $104, with interest from November 9, 1903.

<p>Appeal, No. 252, Oct. T., 1905, by defendant, from order of C. P. Lebanon Co., Sept. T., 1905, No. 54, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth v. Michael Lamar and J.ulius Barbini.</p> <p>Scire facias sur recognizance.</p> <p>Ehrgood, P. J., found the facts to be as follows:</p> <p>The writ of scire facias in this case has been served on only one of the defendants, J. A. Barbini.</p> <p>A person by the name of Michael Lamar was arrested on a charge of larceny, and brought before an alderman, who, under said name, committed him to the county jail for a hearing, and, as appears by the transcript, gave him a hearing under that name in which Barbini, one of the defendants in this case, was sworn as an interpreter. The person so charged, after the hearing, in default of bail, was committed to the county jail under the name of Michael Lamar, to answer said charge of larceny at June sessions, 1905, of the court of quarter sessions, or until he finds security for his appearance at said court. As appears from the transcript, Barbini afterwards became the security for the appearance of the person under the name of Michael Lamar at the June sessions of court. When the case against said Lamar was called for trial, he did not appear, and the court was informed by the said Barbini that Lamar had gone to Itaty. The recognizance was then forfeited. After a motion had been made to remit the forfeited recognizance upon the payment of costs, Barbini, in open court, stated, in answer to questions put by the court, that he had $115 cash money and a judgment exemption note for the balance to secure himself against liability on the said recognizance. After suit was brought on the recognizance, the said defendant, Julius Barbini, by his attorney, filed a demurrer, in which his first reason was : “The recognizance on which the above sci. fa. has issued, as appears from the copy thereof, embraced in the prsecipe, is not signed by any principal, but only by the said J. A. Barbini as security for Michael Lamar, principal.” The demurrer was afterwards withdrawn, and the affidavit of defense filed, in which the affiant neither affirms nor denies that he signed the forfeited recognizance in question, and that it was for the appearance of a person therein designated, who was arrested and who had a hearing under the name of Michael Lamar, but makes the evasion and, in view of the statements contained in the demurrer, the remarkable statement that he never knew nor was acquainted with any person by the name of Michael Lamar; that he never became surety for the appearance of anybody by the name of Michael Lamar at the June sessions, 1905, of the court of quarter sessions and oyer and terminer of Lebanon county; and that he never became surety for the appearance, at said court, of any one whose name resembled or was similar to Michael Lamar. It is quite evident that the affiant did not intend’ to deny his signature to the recognizance, nor could he deny it, but that the real name of the person for whose appearance he became surety, is not Michael Lamar, but some other name which, for some reason best known to the affiant himself, he is not willing to disclose to the court. That the prisoner failed to disclose his real name, and took a hearing under the assumed name, and that the affiant became his bail under that assumed name for his appearance, when he knew that it was not bis real name, is no defense in this case, but was a deception, practiced on the alderman, of which neither the prisoner nor his surety ought to or can be permitted to take advantage. The affidavit of defense, in so far as it relates to the name of tbe person charged with the larceny, is too vague and indefinite, and in other respects is insufficient to prevent judgment.</p> <p>And now, December 6, 1905, judgment is directed in favor of the plaintiff, and against J. A. Barbini, for the sum of $200 and costs, for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 245, Oct. T., 1905, by William F. Nye, 'trustee of Moonshine church, from decree of O. C. Lebanon Co., June T., 1904, No. 1, directing payment of money in Estate of Peter Deaven, deceased.</p> <p>Petition for an order to pay over money. Before EhrGOOD, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the following order :</p> <p>“ And now, June 24, 1905, it is ordered and directed that if the petitioner, W. F. Nye, enter in a recognizance in the sum of one thousand dollars with sufficient surety, to be approved by the court for the faithful performance of the duties of the-trust, the said executor is ordered and directed to pay said trust fund to said petitioner. The costs of this proceeding to be paid out of the said fund.”</p>

<p>Appeal, No. 37, April T., 1907, by D. Hunter, Jr., et. al. from order of Q. S. Allegheny Co., Dec. T., 1905, No. 71, annexing the city of Allegheny to the city of Pittsburg.</p> <p>Petition to annex the city of Allegheny to the city of Pittsburg. Before McClung, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The appellants filed in the court below the following exceptions :</p> <p>1. The act of assembly under which this petition is filed is local or special legislation, in conflict with article III, section 7, of the constitution of the state of Pennsylvania, and is unconstitutional.</p> <p>2. The proclamation of the governor of Pennsylvania, convening the general assembly in special session, does not designate the subjects of legislation embraced and contained in the act of assembly under which this petition is filed, and the said act is therefore in violation of article III, section 25, of the constitution of the state of Pennsylvania, and is unconstitutional.</p> <p>3. If the paper, or letter, promulgated by the governor of the state of Pennsylvania, on January 9, 1906, shall be held to be a call or authority for legislation thereunder, the said paper or letter does not designate the subjects of legislation embraced and contained within the act of assembly under which this petition is filed, which act therefore is in violation of article III, section 25, of the constitution of the state of Pennsylvania, and is unconstitutional.</p> <p>4. “ The act of the general assembly under which these proceedings are had, is in violation of the law of the land, it being unfair, unjust and unequal; and is in conflict with the rights and privileges reserved by the people to themselves, in that it permits the qualified electors of the larger city to overpower or outnumber those of the lesser city, and to annex the lesser city without the vote or consent of a majority of the qualified electors of the lesser city.</p> <p>5. The act of assembly under which this petition is filed for annexing of the city of Allegheny to the city of Pittsburg is in conflict with article I, section 9, paragraph 10, of the constitution of the United States, in that it impairs the obligations of the contract existing between the city of Allegheny and your respondents, by which they are to be taxed only for the government of the city of Allegheny and for improvements, repairs and expenditures incidental to the government of said city of Allegheny, and the attempt to subject them to the increased taxes and burdens of an additional or enlarged city government, by legislation, is in violation of article I, section 9, paragraph 10, of the constitution of the United States, and therefore is unconstitutional.</p> <p>6. The act of general assembly under which this petition is filed is in conflict with article Y, of the amendments to the constitution of the United States, because if the city of Allegheny shall be annexed in pursuance of the petition filed in this case, it will be depriving your respondents of their property without due process of law, and is therefore unconstitutional. Said annexation of the city of Allegheny to the city of Pittsburg will add additional taxes to the property of your respondents, and create additional burdens without compensation, and will depreciate the value of the property, in violation of said article Y of the amendments to the constitution of the United States, and they, therefore, will be deprived of their property.</p> <p>7. The act of assembly under which this petition is filed is in conflict with article XIY of the amendments to the constitution of the United States, because the said annexation of the city of Allegheny to the city of Pittsburg deprives your respondents of their property without due process of law. The additional taxes and burdens which the property of your respondents will have to bear in case the annexation takes place will cause a large depreciation in the value of the property of your respondents.</p> <p>Hrrors assigned were (1-7) dismissing exceptions as aboAre, quoting them; and (8) in entering the decree of annexation.</p>

<p>Appeal, No. 43, Jan. T., 1907, by defendant, from judgment of Q. S. Monroe Co., May T., 1907, No. 43, on verdict of guilty in case of Commonwealth v. Edgar A. LeBar.</p> <p>Indictment for violation of Act of February 25, 1901, sec 2, P. L. 11.</p> <p>The first count of the indictment was as follows:</p> <p>The grand inquest of the commonwealth of Pennsylvania, inquiring for the county of Monroe, upon their respective oaths and affirmations, do present, that Edgar LaBar, late of the county aforesaid, yeoman, on February 26, 1906, and at divers other times as well before as since, in the township of Middle Smithfield, at the county aforesaid, and within the jurisdiction of this court, did unlawfully, willfully and maliciously cut about 245 young timber trees, said timber trees standing and growing upon land belonging to the commonwealth of Pennsylvania, and the said Edgar LaBar then and there well knowing said timber to be so standing and growing upon the land, of the commonwealth of Pennsylvania and well knowing that the land on which the same were standing and growing did not belong to him the said Edgar LaBar, contrary to the form of the act of general assembly in such -case made and provided and against the peace and dighity of the commonwealth of Pennsylvania.</p> <p>' The court charged in part as follows :</p> <p>[Wlzere the words, maliciously, unlawfully and knowingly are used, the court holds that is mere surplusage. This act of assembly provides that if any person shall cut timber upon any of the state lands, he shall be liable to pay a penalty, and it does' not matter whether the person cutting knew it or not. ■ That is, if he believed he was cutting on his own land or the land of some other person, it would hot excuse him from this penalty. The act provides that if any person shall cut any timber whatever, as the court remembers the act, and if you find from the evidence, and it seems to be uncontradicted, the .defendant himself admitting it, that this defendant went upon the state lands and cut timber, it is immaterial whether at that time he knew whether it was the state lands or that it was the land of his father, if he cut, you, as a jury are warranted in finding him guilty in manner and form as he stands indicted. [3]</p> <p>[As the court remembers it, he cut about 240 hoop poles, averaging in thickness from one and one-half inches to two inches, and the court, in the interpretation of this statute, holds that is included in the word timber, -and the evidence being undenied by the defendant, the commonwealth has shown, in the opinion of the court, the fact that he did enter upon the lands, and that he cut timber and is liable to conviction as he stands charged in the first and third counts.] [4]</p> <p>[Thez-e ought to be no trouble in your'zninds at arriving at a verdict in this case. The court has instructed you as to the law. There is no dispute as to the facts. The court has stated to you that if you believe the facts, it is your duty to find a verdict of guilty on the first and third counts and find the defendant not guilty under the second count.] [6]</p>

<p>Appeal, No. 10, Oct. T., 1906, by defendant, from judgment of C. P. Berks Co., June T., 1903, No. 30, on verdict for plaintiff in case of Wallace A.-Dietrich v. The Farmers Union Mutual Fire Insurance Company.</p> <p>Motion to quash appeal.</p> <p>The grounds for the motion are stated in the opinion of the Superior Court.</p> <p>The assignments of error as amended were as follows:</p> <p>1'. The court erred in declining defendant’s first point as ■follows : “ It being admitted that the'appraisers made an award of $450, and that in that award they included an item of $250 on negatives, the jury will have to deduct that amount from the amount of the award for the reason that negatives come under the head of “implements, models, patterns, pictures, scientific apparatus, tools or property held on storage,” whicli are specifically excluded from insurance by the terms of the policy, unless specifically included, which was not the case in the policy upon which the suit is brought.</p> <p>2. The court erred in declining the defendant’s second point, which was “ the policy insures only the property of the plaintiff. Photographic negatives being paid for by the subjects are the property of the subjects, and held by the photographer on storage for the production of future photographs, and any insurance on negatives cannot be recovered in this action because under the terms of the policy goods held on storage are not included.”</p> <p>3. The court erred in discharging the rule to show cause why judgment n. o. v. should not be entered for plaintiff "for $229.62.</p> <p>4. The court erred in directing judgment to be entered on the verdict for $526.50 with interest from September 21,1905.</p>

<p>Appeal, No. 149, Oct. T., 1906, by defendant, from judgment of C. P. Chester Co., Aug. T., 1905, No. 38, on verdict for plaintiff in case of Margaretta L. Kearney v. J. A. Bayard Kane.</p> <p>Assumpsit for interest on purchase money of real estate. Before Butler, J.</p> <p>The opinion of the Superior Court states the case. .</p> <p>Verdict and judgment for plaintiff for 1340.16. Defendant appealed.</p> <p>Errors assigned were portions of charge quoted in the opinion of the Superior Court.</p>

<p>Fees — Subpcenas—Witness—Act of July 11, 1901, P. L. 663.</p> <p>The fees of constables or private persons for serving subpcenas on witnesses are fixed by the Act of July 11, 1901, P. L. 663, and not by the Act of April 2, 1868, P. L. 3.</p>

<p>Appeals, Nos. 165 and 166, Oct. T., 1905, by Philip Valverdi and Edward H. Wood, from judgment of Q. S. Phila. Co., Nov. T., 1904, No. 282, on verdict of guilty in case of Commonwealth v. James McCartney, Philip Valverdi and Edward II. Wood.</p> <p>Indictment for conspiracy. Before Carr, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>At the trial the defendants presented the following points:</p> <p>2. The jury must not consider under this indictment the evidence that the names of unnaturalized persons appeared' upon the assessor’s list of May and September, 1904. Answer ; Refused. [2]</p> <p>3. The only testimony offered by the commonwealth that can be considered by the jury under the counts of this indictment is that respecting the allegation that non-residents were assessed as qualified electors. Answer: Refused. [3]</p> <p>Verdict of guilty as to Valverdi and Wood, upon which judgment of sentence was passed.</p> <p>Errors assigned among others, were (2, 3) above instructions, quoting them.</p> <p>(5.) The learned trial judge erred in refusing to grant a new trial in the said cause, in view of the inflammatory, prejudicial and untruthful publications in the newspapers of Philadelphia, concerning the trial of the said cause, the attacks thus made upon the jurors through the same channels, which publications were proven to have been read by the jurors during the progress of the trial.</p> <p>(6.) The learned trial judge erred in overruling the defendant’s motion in arrest of judgment because a verdict of “ not guilty ” as to the duly elected assessor, is a finding that no crime had been committed, or was contemplated by him, and, therefore, the other two defendants could not have conspired with him to commit a crime.</p>

Appeal, No. 22, Oct. T., 1906, by-defendant, from order of O. P. Pliila. Co., Sept. T., 1905, No. 3,727, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Kensington National Bank v. John H. Ware and Frank P. Conrey, trading as The Export Fruit Cleaning Company. Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ. Assumpit on a promissory note. The facts appear by the opinion of the Superior Court.

<p>Judgment — Opening judgment — Failure of consideration — Commissions for sale of real estate.</p> <p>The appellate court will not review the discretion of the court of common pleas in refusing to open a judgment entered upon a judgment note given to secure the payment of commissions on sale of real estate, where the evidence for the defendant that the purchaser for the property was secured through sources entirely apart from the plaintiff, is directly contradicted by the evidence of the plaintiff and another person.</p>

<p>Deeds — Descriptions—Boundaries—Survey.</p> <p>Where no monuments or marks on the ground are called for in a deed, the calls in the deed must control • unless it be proved by sufficient evidence that the parties agreed upon a fixed line on the ground.</p> <p>Where a fence is not called for in a deed, and there is no evidence that the fence was adopted by the parties as a division line between their properties, evidence as to the situation of the fence is inadmissible to determine the division line; but if a nick was put in the fence by a surveyor as a line mark, the location of the nick may be shown as a mark or monument on the ground.</p>

<p>Appeal, No. 86, Oct. T., 1906, by plaintiff, from order of C. P. No. 5, Pbila. Co., Dec. T., 1905, No. 1,889, making absolute rule for judgment for want of a sufficient affidavit of defense in case of J. Hampton Moore, receiver of the City Trust, Safe Deposit & Surety Company of Philadelphia, v. Lincoln L. Eyre.</p> <p>Assumpsit for rent.</p> <p>From the record it appeared that the claim was for $460 for rent, part of which fell due before plaintiff’s appointment as receiver, and the rest thereafter, under a lease executed before the receivership.</p> <p>The defendant filed an affidavit of defense in which he set up that there was due to him from the City Trust, Safe Deposit & Surety Company $1,601.99 on two deposit accounts, and also the sum of $200 for professional services. He therefore claimed a certificate in his favor for $1,841.99. The plaintiff took a rule for judgment for want of a sufficient affidavit of defense. The court discharged this rule.</p> <p>Error assigned was the order of the court.</p>

<p>Equity — Equity rules — Appeals—“Brief statement of error.”</p> <p>The equity rule which provides that “the appellant shall file in the court below, with his notice of appeal, a brief statement of the errors he alleges to have been made by the order or decree appealed from,” is not a mere formality, and want of compliance with it cannot be cured at a subsequent time upon mere motion without any excuse offered.</p> <p>Rule 17 requiring a concise statement of the question involved to be printed in the appellant’s paper-book, is mandatory, and is violated by printing a statement a page in length.</p>

<p>Affidavit of defense — Denial of liability — Practice, C. P.</p> <p>In an action of assumpsit the plaintiff averred that on a day stated the defendant was indebted to her hi the sum of $100 for money loaned to him by plaintiff at his request, and which he promised to repay plaintiff, and that defendant on the day stated gave to plaintiff a paper signed by him and in his handwriting as follows: “Received of (plaintiff) one hundred dollars to be paid on time payments.” Defendant filed an affidavit of defense in which he denied that he was indebted to plaintiff on the day stated, or at any other time, in any way whatever, and that the paper in question was merely written and signed by him for the purpose of showing his wife that he knew how to draw up a note, and that the wife who was the daughter of the plaintiff, took possession of the note, and refused to return it to the defendant, who never authorized her to deliver the note to any other person. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

<p>Appeal, No. 171, Oct. T., 1906, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1905, No. 2,426, discharging rule for judgment for want of a sufficient affidavit of defense in case of George Horlacher, trading as George Howard, v. William L. Bear, trading as William L. Bear & Co.</p> <p>Assumpsit for balance alleged to be due on purchases of wheat.</p> <p>Plaintiff in his statement averred that the defendant was indebted to him in the sum of $459.54, a balance alleged to be due on certain purchases and sales of wheat. Attached to the plaintiff’s statement of claim were certain exhibits marked A, B and C. Exhibit “ A ” was as follows:</p> <p>“ Wm. L. Bear and Company,</p> <p>“Bankers and Brokers,</p> <p>“ Chestnut and Fifteenth Sts.,</p> <p>“ Philadelphia, March 23, 1905.</p> <p>“ Geo. Howard, Esq.,</p> <p>“We have this day Bo.t for your account and risk:</p> <p>“ Per Taylor</p> <p>Amount. Description. Price. Time. Name,</p> <p>x 5 M July wheat 90 Jjj- R Chgo.</p> <p>5 M “ “ 90-| “ “</p> <p>“ (Duplicate)</p> <p>. “Yours respectfully,</p> <p>“ Wu. L. Beak akd Co.</p> <p>“ Per G. C. K</p> <p>Defendant filed an affidavit of defense in which he averred that the transactions in question were made for one W. H. Taylor’, a broker in Allentown, as principal.</p> <p>The affidavit of defense continued as follows :</p> <p>“ The said defendant company denies that the said W. H. Taylor ever acted in any transactions with the plaintiff or with anybody else as the agent of the defendant company. The said W. H. Taylor was an independent broker, doing an independent business at Allentown, Penna., and had no connection whatever with the defendant company, except as a customer purchasing and selling through the defendant company. The defendant company neither bought nor sold any of the merchandise mentioned in the plaintiff’s statement of claim for or on behalf of the plaintiff, either directly or through the said W. H. Taylor as the defendant company’s agent.</p> <p>“ The course of business dealing between the said Taylor and the defendant was as follows: The said Taylor would order and direct the defendant to make certain purchases or sales of stocks, bonds or merchandise for and on account of him, the said Taylor, and the said Taylor would deposit the amount due to defendant by reason of said purchase or sale to the credit of the said defendant, and the said defendant would purchase or sell as directed by Taylor, and confirm by letter to the said Taylor the said sales or purchases so made. As an accommodation to the said Taylor, the defendant would also make out duplicate confirmations of the sales or purchases made on account of the said Taylor,'in the name or names of the parties to whom the said Taylor desired to have tbmsaid purchases or sales accredited, which said duplicate confirmations were also forwarded to the said Taylor. Tins was exactly what was done in this case with reference to exhibits A, B and 0, attached to the plaintiff’s statement of claim. All these purchases were for and on behalf of Taylor as a principal, and the duplicate confirmations, copies of which are inserted as exhibits A, B and C, of the plaintiff’s statement, of claim, were sent to Taylor, and the defendant company does not know what Taylor did with them. The defendant company presumes, although not able to state of its own knowledge, that the said Taylor wanted to show to his customers that he actually did purchase the commodities that he was to purchase for them, but all of these duplicate confirmations, including exhibits A, B and C, attached to the plaintiff’s statement of claim, were made between the defendant company as principal and the said W. H. Taylor as principal, and there Avas no relation of agency of any Mud Avhatever betAveen the said defendant company and the said W. H. Taylor in connection Avith any of the purchases mentioned by the plaintiff in his statement of claim, and the papers of Avliich exhibits A, B and C, are copies, were simply made by the defendant company for the convenience and accommodation of the said W. H. Taylor, and were delivered to the said W. H. Taylor and Avere not intended by the defendant company, nor had the said W. H. Taylor any Avarrant for delivering the same to any customer of his, the said W. H. Taylor, including the said plaintiff. The original confirmation orders of which exhibits A, B and C Avere duplicates, Avere made out in the name of W. H. Taylor as principal, and the plaintiff’s name did not appear on this paper, and the plaintiff was well aware at the time and now Iuioavs that the defendant company did not purchase the merchandise mentioned in the plaintiff’s statement of claim for or on behalf of the said plaintiff.</p> <p>“ The said defendant company and the said W. H. Taylor adjusted and settled up the accounts between them as principals on or about July 5, 1905, by the payment to the said W. II. Taylor by the defendant company of the sum of twelve hundred and two and 92-100 dollars. The defendant- company does not owe the said W. H. Taylor or the said plaintiff any money Avhatever.”</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense;</p> <p>Error asdyned was the order of the court.</p>

<p>Lease — Option to sell — Evidence—Province of jury — Contract.</p> <p>An owner of a lease gave to another person a written option to purchase the same for an amount stated, the option to terminate at a certain hour on a day mentioned. In addition to the price stipulated the purchaser was to pay for certain professional services in connection with the transfer of the lease. There was no provision requiring a formal acceptance of the option. There was evidence that there was a subsequent parol agreement by which the price for the lease was reduced. Thereafter a second agreement in writing was executed which recited that the owner of the lease had assigned and transferred the 'same to the purchaser. This paper further recited that if the purchaser should obtain a new lease from the owner satisfactory to him, the seller of the lease would deliver possession on or before a day stated. There was no evidence of any actual formal assignment. The reduced purchase price was paid, possession was delivered, but the purchaser refused to pay for the professional services. The seller of the lease was compelled to pay for these services. Held, that the case was for the jury to determine whether the subsequent parol and written agreements were not mere modifications of the original option, and whether the purchaser was not bound for the professional services as stipulated in the option.</p>

<p>Sale — Contract—Sale on condition — Sale for cash — Waiver—Replevin.</p> <p>A contract for the sale of chattels for cash is a sale on condition. Where, in case of such a sale, delivery is made by the vendor upon the understanding that the condition will be performed at once, and he then, with reasonable promptness, demands the performance of the condition, the vendee does not acquire title in case of refusal, and the vendor may recover his property in an action. Whether the title has become absolute or not depends upon the question of waiver by the vendor. Waiver is a voluntary relinquishment of a right or advantage to which the relinquisher is entitled and may be shown by express declarations or by acts of evidencing an intention not to insist upon a right; or it may appear from such a course of conduct or failure to act as would justify the conclusion that it was the vendor’s intention to waive the right. The evidence must be such as to warrant the inference of a voluntary choice. The question of waiver is one of fact for a jury to be solved by the interpretation put upon the acts and declarations of the vendor or his omission to claim or act.</p> <p>Where delivery is made without a performance of the condition on the part of the vendor to insist with reasonable promptness upon performance, and on failure by the vendee so to do, the vendor may recover the property. What is a reasonable time depends upon the > circumstances, and the conduct of the vendee may materially affect the question whether there has been unreasonable delay in claiming redress.</p> <p>In an action of replevin to recover carriages sold and delivered to defendant, it appeared that the sale was for cash. There was evidence that when the property was delivered the defendant promised to see the plaintiff and pay him or send him a check in a day or two; that the defendant procrastinated, promised to pay, put the plaintiff off, and at one time delivered to him his note which the plaintiff accepted, as he claimed, upon condition that it could be negotiated at a bank. The bank, however, refused to take the note for the reason that it was worthless, and the plaintiff returned it to the defendant. It further appeared that the plaintiff wrote several letters to the defendant-insisting upon payment according to the terms of the contract, and that he made numerous demands on him personally for the money. According to the plaintiff’s own statement he “kept going to him and writing to him day by day.” He also employed an attorney to demand the money or the goods. Finally after these efforts to secure payment, continuing for more than two months, the action of replevin was brought. Held, that the case was for the jury and that a verdict and judgment for' plaintiff should be sustained.</p> <p>Trial — Improper action of counsel — Discretion of court.</p> <p>It is the duty of the trial judge to see that the trial is conducted in a legal manner, and the exercise of his authority is discretionary. Unless this discretion is abused the action of the court is not the subject of an appeal.</p>

<p>Waters — Mill dam — Lower riparian owner — Quarry—Sediment in mill-dam — Damages.</p> <p>In an action by the owner of a milldam, against the owner of a quarry on a stream above the milldam, to recover for injuries to the latter by reason of the residuum of the defendant’s stone quarrying operations settling in the milldam, the case is for the jury where there is voluminous testimony to the effect that the sediment found in the milldam was the same as the residuum of the quarry, and that the settling of such sediment required at times the entire stoppage of the mill.</p> <p>In such a case it is error for the court to charge generally that the measure of damages was the loss of profits where there is evidence of the gross receipts for previous years, but no evidence whatever of the cost of repairs, insurance, taxes and other expenses incidental to the operation of the mill.</p> <p>The damages are twofold: First, the cost of removing the deposits occasioned by the acts of the defendant from the dam and race of the plaintiffs; and, second, the compensation for the total or partial loss of the úse and enjoyment of the premises in the meantime, or in other words, the difference in rental value of the property, as affected by the injury complained of.</p>

<p>Appeal, No. 117, April T., 1906, by plaintiff, from order of C. P. Clarion Co., May T., 1906, No. 207,, discharging rule for judgment for want of a sufficient affidavit of defense in case of A. IT. Whitmore v. J..O. Craig.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging the rule.</p>

<p>Sale — Fraudulent sale — Sale in bulk of stock of merchandise — Notice— Parties — Act of March 28, 1905, P. L. 62.</p> <p>Under the Act of March 28, 1905, P. L. 62, entitled “An Act relative to the sale in bulk of the whole, or a large part of a stock of merchandise and fixtures, not in the ordinary course of business; providing certain requirements therefor; imposing certain duties upon the seller, and making then violation a misdemeanor,” a creditor who has not received the notice of the sale provided by the act may proceed alone without the co-operation of other creditors to have the sale declared fraudulent and void, and this he may do by securing a judgment against the debtor, and issuing execution against the goods in the hands of the purchaser.</p> <p>The language of the Act of March 28, 1905, P. L. 62, that such sale without notice “ shall be deemed fraudulent and voidable as against the creditors of the seller,” is not to be construed as simply casting the burden of proving the good faith of the transaction on the purchaser, but is to be construed as meaning that noncompliance by the purchaser with the provisions of the act shall make the sale voidable as to creditors without regard to the intent of the parties to it.</p> <p>Constitutional law — Class legislation — Federal constitution — Fourteenth amendment — Act of March 28, 1905, P. L. Q2 — Sale in hulk of stock of merchandise.</p> <p>The'act of March 28, 1905, entitled “An Act relative to the sale in bulk of the whole, or a large part of a stock of merchandise and fixtures, or merchandise, or fixtures, not in the ordinary course of business; providing certain requirements therefor, imposing certain duties upon the seller, and making their violation a misdemeanor,” is not arbitrary class legislation which denies to those affected by it the equal protection of the laws guaranteed by the fourteenth amendment of the federal Constitution.</p> <p>Class legislation, discriminating against some and favoring others, is prohibited; but legislation which in carrying out a public purpose is limited in its application, if within the sphere of its operation it affects all persons similarly situated, is not within the amendment.</p> <p>The Act of March 28, 1905, P. L. 62, deals with a particular class of sales, but the rule of conduct prescribed for the seller in each sale within the class is precisely the same as that prescribed for the seller in every other sale within the class, and the same is true of the purchaser.</p> <p>It is not necessary that a statute regulating the sale of goods shall embrace all lands of property, either personal or real, but it is sufficient if the selection of the articles and property is based on reasonable and just grounds of difference, and the prohibition comprehends all kinds of property within the relations and circumstances which constitute the distinction, extends equally to every citizen, and all classes of citizens, and denies to no one a privilege which another is permitted under the like circumstances to exercise.</p> <p>The Act of March 28, 1905, P. L. 62, is not an unconstitutional and unwarranted infringement of the liberty, and of the right to acquire, possess, protect and dispose of property, guaranteed by the bill of rights both of federal and state constitutions.</p> <p>The act relates to unusual and extraordinary transfers affording exceptional chances for fraud, and its enactment is a reasonable exercise of the police power within the discretion of the legislature.</p> <p>Constitutional law — Title of act — Statutes—Act of March 28, 1905, P. L. 62 — Notice to purchasers.</p> <p>The act of March 28, 1905, entitled “An Act relative to the sale in bulk of the whole, or a large part of a stock of merchandise and fixtures, or merchandise, or fixtures, not in the ordinary course of business; providing certain requirements therefor; imposing certain duties upon the seller, and making their violation a misdemeanor,” is not defective in title in failing to give sufficient notice of the duties imposed upon the purchasers to whom it applies.</p>

<p>Lateral support — Land—Damages.</p> <p>In the case of land which is fixed in its place each owner has the absolute right to have his land remain in its natural condition unaffected by any act of his neighbor; and if his neighbor digs upon, or improves his own land so as to injure this right, he may maintain an action against him, without proof of negligence; but this right of property is only in the land in its natural condition, and the damages in such action aro limited to the land itself, and do not include any injury to buildings or improvements thereon.</p> <p>The cost of restoring the land to its original condition, or of repairing by grading and erecting a retaining wall, is not to be taken as the measure of damages, unless it be shown that such cost would be less than the amount of diminution in value if nothing be done.</p> <p>Where damage to the land by withdrawal of lateral support is both permanent and complete, the owner is entitled, apart from buildings, to have his damages assessed as in the ease of any other permanent injury to the land in its natural state.</p> <p>In an action to recover damages for injuries to land by the withdrawal of lateral support, it is reversible error to admit and submit to the jury for their consideration for any purpose, evidence of the depreciation in the market value of lot as a whole, including the buildings.</p> <p>In such a case evidence as to the cost of putting the lot as far as possible, in as good a condition as it was before, is relevant only for the single purpose of showing that the injury was permanent, in the sense that it was irremediable except at a greater cost, than the depreciation in the value of the lot if left in its unrestored and unrepaired condition.</p> <p>The defendant in such a case is not entitled to instruction that the damages could not exceed the difference in the value of plaintiff’s lot before and after the excavation. He is entitled to instructions that in the event of the jury finding that the injury to the lot was permanent and complete, the damages could not exceed the difference between the value of the lot without the improvements immediately before the subsidences of the soil, and its value afterwards.</p>

<p>Appeal, No. 64, April T., 1907, by Charles McGinley, from order of Q. S. Indiana Co., Dec. T., 1905, No. 16, making absolute rule to revoke a retail liquor license in the application of Charles McGinley.</p> <p>Petition to revoke a liquor license. Before Telford, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court of quarter sessions.</p>

<p>Affidavit of defense — Sale—Contract—Fraud—Principal and agent.</p> <p>In an action upon an accepted draft alleged to have been given in payment for balance due for paint sold and delivered, an affidavit of defense is sufficient which avers that the contract of sale was for a specified quantity of paint “at the usual and customary market price,” that defendant relied on the representations of the plaintiff’s agent that the price as stated was $1.25 per gallon, and that after accepting the draft he learned that the usual and customary price for the paint was $1.05 per gallon, and that the price remained at that figure until the affidavit was filed, that payments made on account of the draft after the acceptance thereof were made without knowledge of the misrepresentation as to the price, and that as soon as he learned what the usual and customary market price was he notified the plaintiff thereof.</p>

<p>Appeal, No. 50, Oct. T., 1906, by the City of Philadelphia, from order of Q. S. Phila. Co., Oct. T., 1903, dismissing exceptions to report of viewers in the Matter of the Vacation of Umbria Street.</p> <p>Exceptions to report of road jury.</p> <p>From the record it appeared that the jury of view was appointed under a petition filed October 15, 1903, to assess damages for the vacation of Umbria street. The jury was appointed on October 29,1903, to report on or before March 1,1904. The time for filing the report was extended. The jury finally reported, assessing damages against the Pennsylvania Railroad Company. On exceptions the report was referred back to the same jury, which was not resworn. Subsequently the jury reported, assessing damages against the city of Philadelphia. Exceptions filed by the city of Philadelphia to this report were dismissed.</p> <p>Error assigned was in dismissing exceptions to the report of the jury of view.</p>

<p>Appeal, No. 58, Oct. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 3,250, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Sophie Hausman v. Helen S. Johnson.</p> <p>Assumpsit for the return of purchase money paid on account of real estate and for the expenses of searches.</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>Building and loan association — Interest—Payments—Application of payment — Mortgage—Stock payments — Insolvency.</p> <p>A provision in the by-laws of a building and loan association for the payment of interest monthly at the rate of one-half per cent on the amount loaned, and that the interest shall be annually reduced by deducting or allowing the interest on the amount of contributions paid by the purchasers during the year, cannot be so construed as to apply to payments on the principal of the debt.</p> <p>After the insolvency of a building and loan association there can be no appropriation of the value of shares to a mortgage debt.</p>

<p>Landlord and tenant — ü&moval of tenant’s furniture — Bailment—Distress — Office building.</p> <p>In an action of assumpsit against the owners of an office building to recover the value of office furniture leased by the plaintiff to a tenant in the building, it appeared that the plaintiff with the consent of the tenant removed the furniture from an upper floor room occupied by the tenant to the first floor, when it was forcibly seized by the defendant’s employees, and returned to the room from which it had been taken. On the same day or the following day the furniture was distrained for rent due the defendant. There was a rule of the building that all furniture and bulky packages should be carried on the freight elevator. Held, (1) that the defendant’s liability, if any, for the conversion, arose before the distress, and therefore plaintiff’s remedy by replevin was not exclusive; (2) that defendant had no right to take the goods from plaintiff’s possession, and return them to the upper room merely because they had been brought down the stairway, and not by the freight elevator; (3) that as the tenant had consented to their removal, the defendant had no right to enforce a rule of the building which was merely intended to protect the tenant from a surrejjtitious removal of the goods by a stranger; (4) that the goods in question having been in the possession of the tenant under a bailment, were not distrainable for rent, inasmuch as they had been redelivered into the possession of the bailor before the distress; (5) that the stairways, elevators and halls of the office building were not a parcel of the demised premises as far as bailors of tenants were concerned; (6) that the bailor was not bound by an agreement between the lessor and the lessee of which he had no notice that the lessees or those claiming under him should not remove the property from the building without the consent of the lessor, when rent was in arrear.</p>

<p>Husband and wife — Agreement of separation — Support—Equity-— Specific performance.</p> <p>A valid agreement may be made for an actual and immediate separation between husband and wife, if made upon reasonable terms, and actually carried into effect by both parties in good faith; and equity has jurisdiction specifically to enforce the terms of such an agreement.</p> <p>Where a husband and wife, having four children, enter into a written agreement to separate, and the husband in the agreement covenants to pay a certain amount per month for the support and maintenance of the wife and children, the husband cannot, years afterwards, refuse to pay the amount stipulated to the wife for the reason that “the four children are now of mature years, and installed in lucrative positions,” and that the sum named is not now needed for the support of the wife.</p>

<p>Practice, C. P. — Affidavit of defense — Affidavit made by strange)'.</p> <p>When a defendant puts in a stranger’s affidavit of defense, the affidavit must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability.</p> <p>In an action of assumpsit an affidavit of defense was made by a person, who averred that he was the manager for the defendant, but did not say that he was manager át the time of the transactions referred to, nor that they were conducted by him, or in his presence, nor that he had personal knowledge of them. The reason he gave for making the affidavit was that the defendant, on the day of filing the same, was away, and would not return for about five weeks; but the date of his departure was not stated, and the affiant gave no reason why the defendant did not, or could not file the affidavit between the date when service of the summons, statement and rule to file affidavit of defense was accepted, and the date of his departure. The usual formula that the defendant has a true, just, legal and adequate defense to the whole of the plaintiff’s claim, of the following nature and character, was followed by a recital of certain facts which the affiant asserted that the defendant admits and avers, and the affidavit concluded as follows: “All of which facts the defendant asserts to be true to the best of his knowledge, information and belief, and expects to be able to prove at the trial of this cause." Held, that the affidavit of defense was insufficient to prevent judgment.</p>

<p>Will — Trusts and trustees — Separate use trust — Spendthrift trust— Foreign attachment.</p> <p>The testator bequeathed to his executors “the sum of $50,000 in trust, to invest and keep the same invested in good, interest paying securities, well secured first mortgages on real estate to be preferred when obtainable; to collect and receive the interest and income therefrom and pay the same over to my daughter, in equal quarterly payments during the period of her natural life, for her own sole and separate use and behoof," and upon her decease to pay the income for the maintenance of such issue as may survive her until their arrival respectively at the age of twenty-one, and after such time to pay the said income to such issue personally, and on the arrival of each of said issue at the age of twenty-five to pay to him a proportionate share of the principal. The daughter was married at the date of the will, but was divorced and remarried prior to 1901. A foreign attachment was issued against her in 1904. To another daughter testator bequeathed $75,000 outright. The other provisions of the will indicated no intention to create a spendthrift trust. Held, that a foreign attachment issued against the daughter after her divorce-and remarriage bound the income in the hands of the trustees.</p>

<p>~rsPrindpal and agent — Sale of real estate — Commissions—Serving two masters.</p> <p>It is a rule of public policy that an agent for the sale of property cannot at the same time act as the agent for the purchaser thereof, and thus become entitled to compensation from both vendor and purchaser. This rule may be waived by an express agreement between the parties, but such agreement cannot be inferred either from knowledge of the fact that the rule had been violated, or from silence or failure to dissent at the time, or from all these combined. Nothing short of clear and satisfactory proof of an express agreement to waive the rule can be regarded as sufficient for that purpose.</p>

Appeal, No. 115, Oct. T., 1906, by defendant, from judgment of O. P. No. 1, Phila. Co., Sept. T., 1903, No. 498, on verdict for plaintiff in case of Stanley Dwight v. William F. Singer. Assumpsit on a.promissory note. Before Beitler, J. The opinion of the Superior Court states the case. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $595.53. Defendant appealed.

Appeal, No. 122, Oct. T., 1906, by-defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1900, No. 38, on verdict for defendant in ease of City of Philadelphia v. John R. Manderfield. Scire facias sur municipal lien for water pipe. Before Willson, P. J. The opinion of the Superior Court states the ease. Verdict and judgment for defendant. JError assigned was in giving binding instructions for plaintiff.

<p>Appeals, Nos. 30, 31, 32, 33 and 34, April T., 1907, by defendants, from judgment of Q. S. Cambria Co., Sept. T., 1905, Nos. 47, 48, 49, 50 and 51, Sept. T., 1905, on verdict of guilty in case of Commonwealth v. E. P. Shaffer et al.</p> <p>Indictments for malicious mischief and forcible entry. Before O’Connor, J.</p> <p>From the record it appeared that the Pennsylvania Railroad Company condemned a property in the city of Johnstown belonging to one John Schonhart, and duly filed their bond which was confirmed by the court. Schonhart refused to surrender possession, and the defendants, who were employees of the railroad company under instructions from the company, went upon the premises and proceeded to remove the fences and permanent buildings in order to clear the way for railroad construction. There was testimony that a large number of persons were gathered together, and that the defendants were armed with crowbars and picks. There' was also testimony that in removing the windows, doors and partitions, carpets were injured.</p> <p>The court charged in part as follows:</p> <p>Now, does the testimony satisfy you, beyond a reasonable doubt, that the conduct of the defendants on this occasion evidenced violence and a strong hand ? Some of the witnesses testified that the defendants were armed with crowbars and picks. The prosecutor testified that he had a stick, but it was not strong enough, and he got or asked for a baseball bat. We are only recalling this so as to direct your attention to the material part of the testimony in the case, for upon it depends your verdict. You have a right to consider this testimony; you have a right to consider the testimony to the effect that there was a large number of people assembled there; you have a right to consider all the testimony in the case as bearing upon the question whether or not there were violence and a strong hand shown there and whether or not the peace of the neighborhood was disturbed. It is not necessary that a blow be struck. If the neighborhood is disturbed — if the peace and quiet of the neighborhood are disturbed — by some show of violence or some loud and unseemly conduct, that would be sufficient to make out a breach of the peace.</p> <p>You take the case and determine carefully what the facts . are. If the evidence brings your minds to the firm, unwavering conclusion, beyond a reasonable doubt, that there was such a strong show of force as to frighten the members of the ^chonhart family and to disturb the neighborhood, and that the defendants, in that manner, took possession of the property, you convict them of forcible entry. If you are not so satisfied from the evidence in the case, then it would be your duty to acquit them; in other words, if the evidence does not satisfy you of the guilt of the defendants beyond a reasonable doubt the defendants are entitled to the benefit of the doubt and you would acquit them.</p> <p>The other three bills of indictment relate to malicious mischief. Mr. Robinson is charged with malicious mischief committed upon June 7, and in the other bills the other defendants are charged with having committed the offense in the morning of the same day, about 11 o’clock, and also in the afternoon. Did these defendants,-or any of them, at any time, act with such total disregard for the property rights of the prosecutor in the case as satisfies you, beyond a reasonable doubt, that they at least had what is known as legal malice ? It is not necessary, in order to make out a case of this character, that the defendants acted with special malice; that is, with spite or ill will; this of itself constitutes legal malice, and legal malice is an element which must appear before there could be a conviction of malicious mischief.</p> <p>In this connection we call your attention to the fact that the owner of the property was the Pennsylvania Railroad Com-, pany; that is, they were entitled to the possession of the prop- •< erty, and if the injury committed were only to their own property, then it would not be malicious mischief, because they would have the right to use their own property as they pleased. But if in the destruction of their own property— that is, the property of the Pennsylvania Railroad Company— the}’- injured the property rights of the prosecutor through a plain disregard of his rights (you have heard, for instance, about the tearing down of the plastering, the throwing of this stuff upon the carpets, etc.), and you find, under our instructions, that there was such a disregard for the property rights of the prosecutor as amounts to legal malice, then the defendants could be convicted of malicious mischief. If there was not, or if you have a reasonable doubt upon that point, then you would render a verdict of not guilty in either or all of such indictments as you find the facts to thus exist.</p> <p>Verdict of guilty. The court refused to arrest the judgment and sentence was duly passed.</p> <p>Error assigned among others was in refusing to arrest the judgment.</p>

<p>Appeal, No. 96, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Pbila. Co., March T., 1905, No. 4,120, on verdict for plaintiff in case of Josephine Glasse v. Hugh Stewart.</p> <p>Assumpsit for breach of contract for the sale of land. Before Willson, P. J.</p> <p>Defendant presented the following points :</p> <p>1. If you believe the plaintiff has a right to recover, then she is limited in damages under the pleadings in this case to the $20.00 paid at the signing of the agreement for sale, with interest from the date, viz.: April 20, 1905. Answer : I decline that point. [5]</p> <p>2. The value of the bargain, or in other words what profit the plaintiff might have made had the contract been consummated, is not the measure of damages. Answer: I decline that point. [6]</p> <p>3. You should not consider any profits the plaintiff might have made had the contract been consummated. Answer: I answer that in this way, that you have no right to consider in estimating damages the profits which the plaintiff might have made in the transaction, as profit. The only thing you could consider would be what advantage the plaintiff might have derived if the bargain had been carried out, by reason of the property being worth more in the market than the price which she agreed to pay. [7]</p> <p>Verdict and judgment for plaintiff for $250. Defendant appealed.</p> <p>Errors assigned were (5-7) above instructions, quoting them.</p>

<p>Quo warranto — Title of office — Corporations.</p> <p>The second section of the Act of June 14, 1836, P. L. 621 makes the writ of quo warranto the appropriate remedy when any question arises concerning the exercise of an office in any corporation created by authority of law and having its chief place of business within the county. It is the specific statutory method of determining the right of one claiming to exercise an office in such corporation so to do.</p> <p>The eighth section of the Act of April 29, 1874, P. L. 73, was not intended to repeal or be a substitute for any of the provisions of the Act of June 14, 1836, P. L. 621. It is therefore not necessary in order to obtain a writ of quo warranto to test the title to office in a corporation of a person alleged to have been illegally elected that five stockholders imite in the petition. The object of the act of 1874, was wholly to set aside an invalid election. The act of 1836, was intended merely to provide a method by which title to an office may be inquired into through a writ of quo warranto such as might be issued at the suggestion of a single individual.</p>

<p>Malicious prosecution — Wrongful arrest — Charge of court.</p> <p>In an action for malicious prosecution a judgment and verdict for plaintiff will be sustained, where it appears that the plaintiff was arrested in another state by the defendant personally at the point of a pistol, was detained in prison in that state for two weeks, was subsequently brought to Pennsylvania on a requisition, and at his trial was acquitted under binding instructions by the court on account of meagre and unreliable character of the evidence.</p> <p>It is not error for a judge in his charge to the jury, to express his opinion on the facts, if done fairly.</p>

<p>Appeal, No. 137, Oct. T., 1906, by plaintiff, from order of C. P. No. 3, Phila. Co., Dec. T., 1904, No. 1,091, refusing to make absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel Corkran v. James B. Patterson and Herman L. Hohlfeld, trading as Patterson & Hohlfeld Manufacturing Company.</p> <p>Assumpsit to recover commissions on sale.</p> <p>The affidavit of defense of Herman L. Hohlfeld was as follows:</p> <p>It is true that this deponent was a member of the firm of the Patterson and Hohlfeld Manufacturing Company up to August 1, 1904, at which time the firm was dissolved, the said James B. Patterson having previous to that time arranged to start a new business in competition with the said Herman L. Hohlfeld and in violation of the articles of partnership between the said James B. Patterson and this deponent the said James B. Patterson rented premises, put in machinery and started a business and arranged to engage the plaintiff, Samuel Corkran in the same capacity in which he was then engaged by the firm of the Patterson and Hohlfeld Manufacturing Company.</p> <p>That at the time of the dissolution, the said James B. Patterson, who had had charge of the accounts with the plaintiff Samuel Corkran, gave the amounts of his sales and commissions thereon to an expert accountant engaged by this deponent, which the said Patterson informed the expert accountant was all of the amount due or that would become due to the said Samuel Corkran at the time of the dissolution on August 1, 1904. That upon these figures settlement was made with the said Samuel Corkran and the whole of the commissions to which he was entitled according to these papers was paid him. That the said Samuel Corkran, the plaintiff, was an arbitrator selected by the said James B. Patterson-to settle the differences in dispute under the articles of partnership at the time of the said dissolution between the said James B. Patterson and this deponent and was familiar with all the facts relating to the settlement and said nothing to this deponent about any other amount being due him before the settlement of the said partnership affairs in which this deponent paid to the said Patterson the sum of upwards of $45,000. Not only was the said Samuel Corkran an arbitrator representing the said James B. Patterson, but he was also at the same time a salesman for the said James B. Patterson and in his employ, and he knew that this deponent was endeavoring to get all the indebtedness of the firm so that he could make- a definitive settlement with his partner, the said James B. Patterson, and that knowing all this the said Samuel Corkran never suggested in any way that he had an additional claim against the'firm of the Patterson and Hohlfeld Manufacturing Company until this deponent had made a settlement with the said James B. Patterson. He'then stated to this deponent that his contract with the old firm ran to the end of August, 1904, and demanded .from this deponent the commissions on sales made during the month of August, 1904. Believing the statement of the said Samuel Corkran this deponent paid him on September 6,1904, $20.61 for commissions during the month of August, 1904. Now, by the statement filed in this ease he finds that the said Samuel Corkran only claims his contract to have been to August 1, 1904. He therefore says that this sum of $20.61 was fraudulently obtained from him and should be returned to this deponent.</p> <p>This deponent is informed, believes and expects to be able to prove that the plaintiff is not entitled to any further amount of commissions and he is not entitled to commissions on any of the sales for which he brings suit, and he is informed by counsel that inasmuch as he, the said Samuel Corkran, knew of the settlement between the two partners, was an arbitrator representing the said James B. Patterson in the settlement between the partners, and did not make any claim for any further commissions until after the settlement had been made by this deponent with the said James B. Patterson, that he cannot now recover.</p> <p>This deponent further avers that he is informed, believes, and expects td be able to prove that this suit has been brought by the said Samuel Corkran by agreement and in collusion with the said James B. Patterson for the purpose of injuring this deponent in the business which he purchased from the said James B. Patterson.</p> <p>This deponent avers that he is not indebted to the plaintiff in any sum whatever, but on the contrary he overs that the plaintiff is indebted to him in the sum of 120.61 paid to him, the said Samuel Corkran, by this deponent upon the fraudulent statement that he was entitled to commissions for goods during the month of August, 1904, and he will ask for a certificate for the return of this money to him upon the trial of this cause.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Contract — Performance—Substantial performance — Defective work.</p> <p>In an action on a contract where a substantial performance has been shown, the plaintiff may recover subject to deduction for defective work. In such a case it is error for the court to refuse to permit the defendant to show the amount of such deduction, merely because the defendant set up as a defense that he had not made the contract with the plaintiff. Two defenses were open: one that the contract was not executed as claimed by the plaintiff; the other that the plaintiff had failed to perform according to the contract. The plaintiff could only recover by showing that the defendant contracted. If the contract was shown to exist the defendant was bound to pay, but only according to the terms of the agreement, and if that was not carried out by Ihe plaintiff the defendant was entitled to show such failure of performance.</p> <p>Principal and agent — Evidence—Foreign corporation — Evidence.</p> <p>In an action against a foreign corporation which was a manufacturer of engines, to recover a balance alleged to be due on a contract for piping, the defendant averred that the contract was made by a selling agent, and that it was not within the scope of such agent’s authority. There was evidence that the agent in question was the defendant’s registered agent in Pennsylvania, and there was some evidence that he was held out to be the commercial agent. His name appeared on letter-heads as the manager of the defendant’s eastern sales department. The letter-head showed that the defendant was a manufacturer of high grade heavy duty Corliss engines and boilers. The agent made the affidavit of defense in the suit. Held, that the question- of the extent of the agency was for the jury.</p>

<p>Contracts — Entire and severable contracts — Intention—Rescission.</p> <p>The entirety of a contract depends on the intention of the parties, and not on the divisibility of the subject. The severable nature of the ■latter may often assist in determining the intention, but will not overcome the intent to make an entire contract when that is shown.</p> <p>On October 10, 1903, the plaintiff and defendant entered into a "written contract for the purchase and sale of 302,000 paving blocks. The consideration to be paid was reached by applying the rate of $12.00 per M. to the number above stated. The place of delivery named in the contract was f. o. b. cars W. Pa. The clause governing shipments was “Please ship as follows: One carload at the earliest possible moment, the balance of 37,800 immediately following telegraphic instructions from us, and the remaining 264,600 beginning November 1 next, deliveries to be completed by December 1, 1903.” The terms of payment were “Terms net cash on the twentieth of each month for deliveries made in preceding month.” The seller agreed “to give guarantee-for proper wear for five years.” Held, that the contract was an entire one.</p> <p>An entire contract for future delivery of bricks provided that payments should be made on the twentieth of each month. After the contract had run for a time payment was not made on the twentieth of the month, but a check was received on the twenty-fourth. One of the intervening days was a Sunday. On the twenty-first a delivery was made, and when the check was received on the twenty-fourth, receipted bills were returned to the seller with a letter which contained no intimation of dissatisfaction, or of an intention to rescind. On the twenty-seventh, the seller notified the purchaser that he rescinded the contract. Held, that the notice of rescission was ineffectual.</p>

Appeal, No. 53, Oct. T., 1906, by defendant, from judgment of C. P. Blair Go., Jan. T., 1906, No. 318, on verdict for plaintiff in case of John C. Farley v. Altoona & Logan Valley Electric Railway Company. Motion to quash appeal on the ground that the testimony was not properly certified by the trial judge. No certificate was filed in the court below until after the record had been removed.

<p>Appeal, No. 197, Oct. T., 1906, by L. E. Ryder, from decree of C. P. Lancaster Col, Equity Docket, No. 4, page 18B, on bill in equity in case of Annie H. Groff v. City Saving Fund & Trust Company.</p> <p>Motion to quash appeal.</p>

Appeal, No. 196, Oct. T., 1906, by-defendant, from judgment of C. P. Lancaster Co., Nov. T., 1904, No. 67, on verdict for plaintiff in case of J. W. Denlinger v. Conestoga Electric Light & Power Company. Motion to quash appeal on the ground that the appeal bond had not been approved by the prothonotary of the court below.

<p>Appeal, No. 211, Oct. T., T906, by-defendant, from judgment of Q. S. Blair Co., Oct. T., 1906, No. 52, on verdict of guilty in case of Commonwealths. W. L. Owen.</p> <p>Motion to quash appeal on ground, that written assignments of error were not filed as provided by rule 13.</p>

<p>Appeal, No. 90, Oct. T., 1906, by defendant, from decree of C. P. No. 5, Phila. Co., March T., 1905, No. 1,881, on bill in-equity in case of J. Ernest Smith v. Robert- S. Perry.</p> <p>Bill in equity for specific performance. Before Martin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree of specific performance.</p>

<p>Contract — Sale—Future deliveries — Mutual departure from terms of ■ contract — Notice—Time. . 1 '</p> <p>Where a provision in a contract for future deliveries stipulating for payments weekly upon presentation of. bills, has been .allowed, to remain a dead letter for more than a year after the contract was made, it is in the power of either party to determine at any time that the relations created by the contract shall be resumed, and that thereafter a strict and’ literal compliance with' tbe contractual obligations will be accorded and expected; but such a determination, arrived at by one party' cannot become operative until after such fair, and reasonable notice as will afford to the other party an opportunity to adapt himself to the new situation. ■</p> <p>A retail dealer in ice in a city contracted for weekly supplies from a packer in another county. Payments were to be made weekly upon presentation of bills, but both parties ignored this provision of the contract for over a year. On a June twelfth, the seller wrote to the dealer a letter in which after complaining of some other matters he said: “Further than this, you are not keeping up your payments according to the agreement, which provides for weekly settlements. .-Unless a settlement is made on or before the 18th, .... we will be. .compelled to suspend shipments, and cancel our contract with .ypu-."-. On the eighteenth he wrote again as follows: “Not having, heard from you in reply to my letter of 12th. .... I am compelled to notify you that the contract is hereby cancelled and that no further shipments will be made.” It appeared"that by usual course of mail letters passing between the parties would reach destination the day following their date. A letter of the twelfth, reached the defendant on Saturday afternoon, which' was the thirteenth. Held, (1) that the questiop, whether the notice was within a reasonable time was a mixed one of law and fact, and was for the jury; and (2) that the letter of the twelfth was for the construction of the court, and was sufficiently plain fairly to advise the defendant of plaintiff's dissatisfaction with existing conditions, and the intention to stop shipments and cancel the contract unless its covenants were thereafter performed.</p> <p>Evidence — Inferences—What is reasonable under the circumstances —Question for jury — Time—Notice.</p> <p>When conditions group themselves into unusual or varying forms; when the inferences to be drawn from established facts may change with the personality of him who makes them; when the mind hesitates to affirm just what a reasonable man would likely do under the circumstances,. then the ascertainment, of the legal duty becomes . a mixed question of law and fact, and must be submitted to a jury.</p> <p>, In every case where a Pennsylvania court has declared, as a matter of law, that a given time was reasonable or unreasonable, it has been where it was so long or short, so clearly within, or widely without the limit contemplated by the law or the parties, that the assent of all fair minds to the correctness of the conclusion reached would be certain and undoubted.</p>

<p>Contract — Building contract — Approval by architect — Fraud.</p> <p>In an action to recover a balance alleged to be due on a building contract, where the contract provided- that the work should be done under the direction of the architect whose decision should be conclusive, it is reversible error for the court to refuse to permit the plaintiff to show “that the architect made a mistake either in the plans or the specifications, which rendered it physically impossible to comply with both, that when that fact was called to his attention he directed the plaintiff to go on and finish that building according to the plans, to build the floor level, regardless of the old floors in the old building, which the specifications required should be on a line with the new floor; that he was directed to do that both by the representative of the owner, the defendant, and by the architect, and in pursuance of that he did it; that when he went to the architect after completing the building and told him that he came for a settlement, he was told by the architect that there could be no settlement because the owners were not satisfied with the incline, and that they would have to be satisfied; and that he then called upon the defendant company and asked them for a settlement, and that they told him there could be no settlement unless he covered the incline with steel plates,” and that there was no provision in the contract for steel plates.</p> <p>A mere mistake in judgment on the part of the architect is not ground for judicial interference with his decision where it is stipulated in the contract that it shall be conclusive, unless it be so gross as necessarily to imply bad faith or a failure to exercise an honest judgment; but a demand of the owner after full performance by the contractor, which the' architect attempts to assist the owner in enforcing by refusing his certificate unless it is complied with, may be so unconscionable, or so utterly unreasonable and unwarranted on its face that the mind is irresistibly led to the conclusion that they are acting in collusion within the meaning of the decisions.</p>

<p>Road law — Vacation of road — Revision of city plan — Confirmation of revised plan.</p> <p>Where a portion of a street of the city of Philadelphia appearing on the confirmed plan is omitted from a revised plan, and the revised plan is duly authorized by ordinance and subsequently confirmed, such confirmation works a legal vacation of the part of the street thus omitted. The right of a property owner to damages for such vacation accrues from the date of the confirmation of the revised plan.</p> <p>Road law — Vacation of street — Jury of view — Setting aside report of jury of view — Laches—Mandamus—■Damages.</p> <p>Where the report of a jury of view assessing damages and benefits arising from the vacation of a street is set aside by the court, and shortly thereafter the court makes an order refusing to reopen the decree and refer the report back to the viewers, and property owners take no further steps for seven years, when they petitioned the court to amend its decree setting aside the report of the viewers, so as to direct the report to be referred back to the jury of view, so that the jury might determine whether damages should not be assessed against the city, the previous damages having been assessed against a railroad company, the court will refuse the petition because of the laches and delay of the petitioners, and because of their neglect to pursue their remedy by appeal.</p> <p>Where a report of a jury of view assessing damages arising by reason of the vacation of a street, has been set aside by the court, a property owner in whose favor damages have been assessed has no standing to petition for mandamus execution against the city for the payment of the damages.</p> <p>The report of a road jury awarding damages is not a final adjudication in favor of those to whom damages are so awarded, nor does it become a debt of record due by the municipality until it is approved by the court.</p>

<p>Appeal, No. 203, Oct. T., 1905, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1902, No. 343, on verdict for defendant in case of Mary A. Arnold v. Buffalo, Rochester & Pittsburg Railway Company.</p> <p>Writ of dower unde nihil habet. Before Wilson, J., specially presiding.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for defendant. Plaintiff appealed..</p>

<p>Appeal, No. 2, Oct. T., 1906, by-plaintiff, from judgment of C. P. Bedford Go.,- April T., 1885, No. 212, on verdict for defendants in case of Commonwealth to use of Charles Barnett, Susan Hoover, Wm. M. Barnett and John M, Barnett, heirs of Ann Barnett, deceased, one of the heirs of Michael Cashman, deceased, v. John B. Cashman and Jacob Biddle.</p> <p>Scire facias sur recognizance. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) exclusion of the offer of evidence quoted in the opinion of the Superior Court; (5) in giving binding instructions for defendant.</p>

<p>Boroughs — Incorporation—Inclusion of lands — Acts of April 1, 1863, P. L. 200 and June 26, 1895, P. L. 389.</p> <p>A general decree incorporating a borough has the effect of overruling exceptions to the petition for incorporation. It is not necessary for the court to make a formal order granting or refusing a request of a party who seeks to have his land excluded. The decree of incorporation is a legal refusal of such request.</p> <p>On an appeal from a decree incorporating a borough, the appellate court will not review the discretion of the lower court in determining questions of fact, unless an abuse of such discretion is distinctly charged and clearly established.</p> <p>There is nothing in the legislation relating to the incorporation of boroughs which authorizes the presentation by the parties of requests for findings of fact by the court.</p>

<p>Taxation — Mercantile tax — Restaurant—License for each establishment — Foreign corporation — Corporation.</p> <p>A foreign corporation organized for the purpose of operating restaurants or eating houses, which has complied with all the laws of this state relative to foreign corporations doing business in the commonwealth, is required under the Act of April 10, 1849, P. L. 570, to take out a separate license for each separate establishment which it maintains in a city in this state.</p> <p>The Act of April 10, 1849, P. L. 570, in so far as it relates to eating houses, restaurants and oyster sellers, was not repealed by the Act of May 2, 1899, P. L. 184, and is still in force.</p>

<p>Principal and agent — Investments—Mortgage—Assignments—Fraud.</p> <p>Where an agent ,for investing money having entire charge of his principal’s investments and. papers, receives a payment on account of the principal of a mortgage, and invests the same in his own name in another mortgage which he assigns to his principal without informing the latter of the fact, and the assignment is not witnessed or acknowledged, and thereafter the agent assigns the same mortgage to himself and another person as trustees of an estate, and this assignment is witnessed and acknowledged, and both assignments are found amongst the papers of the agent after his death, the first assignment will prevail over the second assignment.</p>

<p>Appeal, No. 233, Oct. T., 1905, by plaintiff, from order of C. P. Huntingdon Co., Sept. T., 1905, No. 2, refusing to take off nonsuit in case of H. M. Chaney, trading as Mrs. H. M. Chaney & Daughter, v. Farmers’ Fire Insurance Company of New York.</p> <p>Assumpsit on a policy of fire insurance. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>JError assigned was the order of the court refusing to take off nonsuit.</p>

<p>Appeal, No. 81, Oct. T., 1906, by D. K. Light, from order of C. P. Lebanon Co., March T., 1905, No. 99, dismissing exceptions to auditor’s report in case of Michael Graybill to use of D. K. Light v. Cyrus C. Deitrich.</p> <p>Exceptions to report of Frank A. Lehman, Esq.j auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was as follows :</p> <p>The court erred in dismissing the exceptions of the appellant to the report of the auditor and confirming the same absolutely, as follows :</p> <p>“ And now, March 27, 1906, the exceptions to the report of the auditor are dismissed, his report confirmed absolutely and the money ordered to be paid out as therein decreed.”</p>

<p>Appeal, No. 110, Oct. T., 1906, by plaintiff, from judgment of V. P. McKean Co., June T., 1902, No. 136, for defendant non obstante veredicto in case of V. L. Ackley v. Bradford Township.</p> <p>Trespass to recover damages for personal injuries. Before Ormerod, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Frror assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Decedents’ estates — Costs—Auditor.</p> <p>Where an auditor is appointed by the orphans’ court to pass upon exceptions and make distribution, and the auditor charges all the expenses of the audit on the estate, the court will not disturb the auditor’s disposition of costs, where there is no way by which it can be determined how much of the expense should be chargeable to distribution, and how much to the disposition of the exceptions.</p> <p>Appeals — Executors and administrators — Trusts and trustees — Testamentary trustee.</p> <p>Although executors and administrators as such have no right to appeal from a decree distributing the funds in their hands, yet if such a person takes an appeal, not only as administrator d. b. n. c. t. a., but also as testamentary trustee, the appeal may be sustained.</p> <p>Decedents’ estates — Auditor—Distribution.</p> <p>Where an auditor “is asked to indicate the person to receive the share” of one of the legatees, but no particular person is indicated to him, he cannot be convicted of error in distributing the share to “the trustee appointed, or hereafter to be appointed” of the legatee mentioned.</p> <p>Auditor — Findings of fact — Review.</p> <p>Where facts have been found, and the discretion of an auditor properly exercised, and his report has been confirmed by the orphans’ court, the appellate court will not interfere.</p>

<p>Constitutional law — Plumbers—Boards of héalth — Delegation of legislative power — Act of June 24, 1895, P. L. 232.</p> <p>The Act of June 24, 1895, P. L. 232, which authorizes boards of health to provide for the registration of journeymen and master plumbers, is not unconstitutional as involving an unlawful delegation of legislative power to municipal authorities. The fact that the act fixed a penalty for a violation of the municipal regulation does not affect the validity of the statute.</p> <p>Constitutional law — Local and special legislation — Plumbers—Boards of health — Sewers—Classification.</p> <p>The Act of June 24, 1895, P. L. 232, authorizing the registration of journeymen and master plumbers by boards of health in cities and boroughs, is not unconstitutional as local and special legislation because of the fact that the act applies only to boroughs which have a system of sewerage.</p> <p>Boroughs — Boards of health- — Plumbers.</p> <p>Under the Act of June 24, 1895, P. L. 232, relating to the registration of journeymen and master plumbers in boroughs and cities, a board of health has no authority to adopt a regulation that a person applying for registration should produce satisfactory proof that he was a bona fide master plumber, and that all persons failing to furnish such satisfactory proof should be obliged to pass an examination before the examining committee of the board of health.</p> <p>A regulation under the act which provides for the registration of master plumbers only, and fails to provide for the registry of journeymen, is invalid as lacking in uniformity.</p>

<p>Appeal, No. 216, Oct. T., 1905, by J. H. Rathfon, Receiver of the City Saving Fund and Trust Company, Trustee and Accountant, from decree of O. C. Lancaster Co., April T., 1902, No. 21, dismissing exceptions to adjudication in estate of Francis Mylin, deceased.</p> <p>Exceptions to adjudication.</p> <p>The exceptions were as follows :</p> <p>1. The court erred in surcharging the accountant with $614.52, commissions on the principal.</p> <p>2. The court erred in refusing to allow the accountant any commissions on the corpus of the estate.</p> <p>3. The court erred in surcharging the accountant with $30.00, counsel fees paid.</p> <p>4. The court erred in surcharging the accountant $9.85 for. register’s and orphans’ court costs paid on the account.</p> <p>The court dismissed the exceptions in an opinion by Smith, P. J.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 225, Oct. T., 1905, by William C. Whiteside, Administrator d. b. n. of Mary Hill and Winfield S. Hill, from decree of O. C. Lancaster Co., Feb. T., 1902, No. 72, dismissing exceptions to adjudication in Estate of Mary C. Hill and Winfield S. Hill, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Municipalities — Boroughs—Police power — Contract.</p> <p>A municipality cannot bargain away its right to exercise at all times its police power; nor enter into any contract by which the free exercise of the police power which is delegated to it by the state, can be abridged, limited or destroyed.</p> <p>A borough cannot, in granting to an electric light company the right to erect poles and wires in the streets, deprive itself of the right thereafter to impose a license tax upon the company for such poles and wires, under its police powers.</p>

<p>Corporations — Forfeiture of stock — Legislative authority — By-laws.</p> <p>When a money corporation makes and attempts to enforce a by-law which involves a forfeiture of vested property rights, it must show express legislative authority, or a power lawfully conferred by its charter to declare such a forfeiture.</p> <p>A corporation owning and operating a creamery cannot enforce a by-law providing for the forfeiture of the stock of a stockholder if he does not furnish milk to the company’s creamery, against a stockholder who owned stock before the by-law was passed, and who never consented to its passage.</p>

<p>Appeal, No. 189, Oct. T„ 1906, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1902, No. 238, on verdict for plaintiff in case of Job L. Green v. The Sun Company.</p> <p>Trespass to recover damages for injuries to real estate resulting from fumes from an oil refinery. Before Johnson, P. J.</p> <p>At the trial the plaintiff under objection and exception testified that the fumes given off by defendant’s works smelled like rotten eggs, that they caused deposits like stove blackening, destroying paint and wall paper, and also the metal on the roofs of his houses. He also testified under objection and exception that these effects were observed immediately after the defendant’s works were put in operation. [1-4] The plaintiff’s wife under objection and exception testified to the same effect. [5]</p> <p>Another witness testified to the existence of such fumes, the effects upon her property, and upon his person. [6]</p> <p>When Ell wood B. Worrilow, a witness for defendant, was on the stand he was asked this question:</p> <p>“ Q. Speaking about the employment by the Sun Company— what is their pay-roll; the number of hands ? ”</p> <p>Mr. Robinson: I object to that unless we are permitted to go fully into it. I do not want to crowd anything out, but I do not want half to go in, and I do not see how that has any bearing in the case.</p> <p>The Court: Of what importance is it?</p> <p>Mr. Broomall: My thought is just the line of thought I have several times indicated, that the actionability of any industrial establishment in a community, the line of actionability and non-actionability is not a hard and fast fixed line. Every man in the community, and as it necessarily follows, the community as a whole balances the advantages and the disadvantages in determining whether or not any annoyances that arise from the establishment are such as men ordinarily are willing, quite willing to bear for concomitant advantages. Now, inasmuch as this line is a wavering line, and it might be said that if an industrial establishment came into Marcus Hook from which no advantage at all was derived, employed pobody in Marcus Hook, no advantages direct or indirect, every man in fixing the line of disadvantages that he would endure would fix the line hard and fast against such an establishment; but if, on the other hand, an extreme case — if there was an establishment upon which the very life and being of the town depended so that we might say nobody would live there at all if it was not for the establishment, it employs so many hands and permeates the entire community with advantages that run through every rivulet — that affects everybody — as against an institution of that kind, the sense of the community which the law would recognize, would place that line of annoyances which the community would bear very much more liberally in favor of the establishment. It is for the purpose of showing the number of hands that this establishment employs with a view of permitting the jury to see to what extent a town of 1,400 inhabitants must depend upon,, and very extensively depend upon the life and being of this establishment employing as many hands as it does. It is with that line of thought that we advance the offer.</p> <p>The Court: Objection sustained. [7]</p> <p>“ Q. Now all this process of operation that Mr. Dickinson has called your attention to, requires the labor of how many men ? ”</p> <p>Mr. Robinson: That is open to our objection.</p> <p>Objection sustained. [8]</p> <p>Robert Cash, being sworn for defendant:</p> <p>“ Q. Have you or your family ever had any bad effects from the oil odors in Marcus Hook ? ”</p> <p>Mr. Robinson: I object to this question whether he or his family have ever had any bad effects from this odor as irrelevant and immaterial.</p> <p>The Court: If that question does not include—</p> <p>Mr. Broomall: I mean physically. You may qualify the question. This is what I intended. Any physical effect.</p> <p>The Court: The objection is sustained. [9]</p> <p>Mr. Broomall: Now we offer to prove by a large number of other witnesses — make the same offer.</p> <p>Mr. Robinson: Objected to.</p> <p>Objection sustained. [10]</p> <p>The court charged in part as follows:</p> <p>[Because we say to you that if this company did carry on its works in such a way that the gases or fumes emanated from them and injured the paints and papers on the houses, these tenement houses occupied by tenants of the defendant; in a substantial manner, then he is entitled to recover whatever it cost — whatever it has cost him in the past — whatever it will cost him in the future to restore them to the condition in which they were before they were injured, if you shall find that they shall be injured by these smokes or fumes or gases or whatever they may be.] [11]</p> <p>[The court does not intend to refer to the testimony upon that question except to say that the plumbers and painters were called. The plaintiff claims that he has shown to you that it has cost him, or will cost him, reasonably cost him, $1,723.81, and he says that is what he claims you should award him, and that it will require that to put him where he was before these people subjected his property to the influences of these gases.</p> <p>The defendants called some witnesses, called two, the plumber and painter, probably more, if you will remember, and you will remember the testimony — the court does not recall what they said about it, but you must take into consideration all of it in passing upon the question as to what will compensate this plaintiff.] [12]</p> <p>Defendant presented these points :</p> <p>2. There is no evidence in this case that the business of tire defendant is such as necessarily produces substantial injury to the plaintiff. Answer : This is refused. We can’t say — that point has two meanings to it. We do not say that the evidence shows that the business of the defendant is such' as necessarily produces substantial injury to the plaintiff, but we leave it to you to say whether or not these gases or fumes did produce the mischief, substantial injury, of which the plaintiff complains. [13]</p> <p>3. If the jury were to decide that the business of the defendant necessarily produces substantial injury to the plaintiff, the result would be that the defendants would have to abandon their works. Ansiver : That is refused. [14]</p> <p>5. In the absence in this case of any evidence that the defendant’s business necessarily produces substantial injury to the plaintiff, and in the absence in this case of any evidence of negligent operation, the plaintiff is not entitled to recover, and the Amrdiet should be for the defendant. Answer : That is refused. [15]</p> <p>9. If the jury believe that the injuries of which the plaintiff complains are only such as men ordinarily undergo in order to obtain the advantages to themselves and their propr erty which accompany the increase of population and industry, the verdict should be for the defendant, and in coming to a conclusion the jury should take into consideration the established oil industries of Marcus Hook, their magnitude, extent, and the manner in which the atmospheric conditions are always affected wherever such industries exist and are operated. Answer : There are some propositions in this point which, if stated separately, might be affirmed, but as a whole it is refused. [16]</p> <p>10. Under the evidence in this case, none of which is applicable to the pleading, except that which refers to injuries to real estate in the possession of tenants, the verdict should be in favor of the defendant. Answer: That is refused. [17]</p> <p>18. The court erred in the answer to defendant’s eleventh point. The point and answer are as follows :</p> <p>Under all the evidence in this case the verdict should be in favor of the defendant. Ansiver : Refused. [18]</p> <p>Yerdict and judgment for plaintiff for $1,308.75. Defendant appealed.</p> <p>Errors assigned were (1-10) rulings on evidence, quoting the bill of exceptions ; (11-18) above instructions ; and (19) in entering judgment for $1,308.75, and in not entering judgment for the amount of. the verdict, $1,250.</p>

<p>Appeal, No. 72, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1905, No. 4,243, on verdict for plaintiff in case of Samuel Y. Ditchfield v. Philadelphia & West Chester Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Biddle, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $800. Defendant appealed.</p> <p>Prror assigned among others was in refusing binding instructions for defendant.</p>

<p>Dower — Deed—■Assignment for benefit of creditors.</p> <p>Where a wife does not join with her husband in a deed of assignment for the benefit of his creditors, she may after her husband’s death maintain her common-law action of dower against the purchaser at the assignee’s sale.</p> <p>Practice, C. P. — Removal of cause to United States court.</p> <p>A cause will not be removed to a federal court on the ground that certain parties in interest are not residents of Pennsylvania, where it appears that the application for removal is made by the only defendant in the case who is present, and is admittedly a resident of Pennsylvania.</p> <p>Practice, C. P.- — Plea of surprise — Continuance.</p> <p>The refusal of the court to heed the plea of surprise and continue the case, is, under ordinary conditions, a matter of discretion.</p> <p>Marriage — Evidence—Reputation—Cohabitation.</p> <p>In a common-law action of dower, the plaintiff’s marriage may be proved by evidence of reputation and cohabitation, and in the absence of other evidence on the subject, may be conclusive.</p> <p>Practice, C. P. — Refusal of new trial — Assignment of error.</p> <p>The refusal of the court below to grant a new trial, is not the subject of an assignment of error, except for a gross abuse of discretion.</p> <p>Dower — Common-law action — Evidence.</p> <p>In a common-law action of dower brought by a widow who had not joined her husband in a deed of assignment for the benefit of his creditors, it is incompetent to show that no action was brought by the plaintiff against the assignee for dower, during his administration of the estate; or that an auditor had decided adversely to plaintiff’s claim for dower against funds in the hands of the assignee.</p> <p>Practice, C. P. — Dower—Form of verdict — Evidence—Deeds.</p> <p>In a common-law action of dower a verdict in the following form is not improper; “For plaintiff for one-third of the real estate described in the writ.” Such a verdict cannot in the nature of the case confer a fee.</p> <p>In a action of dower the plaintiff need go no further back in showing title than a conveyance in fee to her deceased husband.</p> <p>In a common-law action of dower where the defendant refuses to produce the deed under which he claims title, it is not error for the court to allow parol evidence as to the identity of the land conveyed to the defendant as to which recovery is sought.</p>

<p>Appeal, No. 4, Oct. T., 1906, by plaintiff, from decree of O. C. Lancaster Co., Oct. T., 1905, No. 56, quashing appeal from Register of Wills in case of William Rock v. Carrie Laukhuff Macintosh.</p> <p>Appeal from register of wills. Before Smith, P. J.</p> <p>The appeal was in the following form :■</p> <p>“APPEAL.</p> <p>“ In the Estate of Andrew 1 Latticftttw, deceased, late , of Salisbury Township Lancaster County, Penna. Oct. Term, 1905. No. 56.</p> <p>“ To Benjamin Wissler, Esq., Register of Wills of said County:</p> <p>“ I, William Rock, to whom Letters of Administration were granted by you, in the estate of said Andrew Laukhuff, deceased, on the 12th day of October, A. D; 1905, hereby take an appeal to the orphans’ court of Lancaster county, from your order, judgment or decree, revoking the granting of letters to me and issuing letters thereon to Carrie Laukhuff Macintosh.</p> <p>“ William Rock.”</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree quashing appeal.</p>

<p>Payment — Voluntary payment — Ignorance of law.</p> <p>One who voluntarily pays money with full knowledge or means of knowledge of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of law.</p>

<p>Appeal, No. 87, Oct. T., 1906, by plaintiff, from order of Q. S. Berks Co., Miscellaneous Docket No. 651, page 326, affirming judgment of justice of the peace in case of Commonwealth v. George Kenney and H. J. Humma.</p> <p>Appeal from judgment of justice of the peace.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 128, Oct. T., 1906, by plaintiff, from decree of C. P. Montgomery Co., Dec. T., 1905, No. 2, dismissing bill in equity in case of A. M. Rader v. E. G. Kriebel and John K. Metz, Supervisors of Worcester Township.</p> <p>■ Bill in equity for an injunction.</p> <p>Swartz, P. J., filed tbe following opinion :</p> <p>The township of Worcester made a contract with the state highway commissioner, under the Act of-April 15, 1903, P. L. 188, for the improvement of a public road. Before the road was fully completed the Act of May 1, 1905, P. L. 318, was passed. The bill raises the question whether the township must pay one-sixth of the cost of construction as provided by the act of 1903, or whether the state is entitled to only one-eighth of the cost of said construction as provided by the act of 1905.</p> <p>FINDINGS OF FACT.</p> <p>1. Worcester township is a township of the second class, and E. G. Kriebel and John K. Metz were the supervisors in the year 1904.</p> <p>2. On September 8, 1904, the supervisors of said township and the county commissioners of Montgomery county entered into a contract with the state highway commissioner for the improvement of about two miles of a certain highway in said township of Worcester.</p> <p>The agreement was under seal and sets forth that the improvement was recommended by the highway commissioner under the provisions of the act of April 15, 1903. Under this contract the county of Montgomery agreed to pay one-sixth of the total expenses of fhe improvement and the township of Worcester was to pay one-sixth of said expenses.</p> <p>3. The state highway commissioner entered into a contract with C. N. Smith & Co. for the construction of tbe highway. This contract was made in the month of September, 1904. Smith & Co. abandoned the work and on December 12, 1904, the work was relet to the township of Worcester.</p> <p>4. The work of construction began prior to December 12, 1904, under Smith & Co., and was completed by the township in August, 1905.</p> <p>5. No payments of any kind for the construction were made prior to June 20, 1905; all payments made to the contractor were made under warrants drawn by the highway commissioner on the state treasurer as provided by the act of May 1, 1905.</p> <p>6. The amount appropriated under the act of 1903, by the legislature was $6,500,000. The unexpended balance undéi said act was $6,356,232.47. The amount appropriated under the act of 1905 was $6,356,232.47.</p> <p>7. The bill alleges -that the supervisors of the township are about to pay to the state treasurer the one-sixth part of the entire expenditures for the highway improvement. This allegation is not denied. The defendants do not question the jurisdiction of the court to entertain the cause of complaint.</p> <p>8. If the township supervisors must pay according to their contract under the act of 1903, the amount due from them is $2,375.10. If they pay the proportion fixed by the act of 1905, then the amount due from them is but $1,781.32.</p> <p>CONCLUSIONS OP LAW.</p> <p>1. Equity takes jurisdiction where a taxpayer by bill seeks to restrain the illegal disposition of municipal funds which the taxpayer in common with others will be required to pay.</p> <p>2. The defendants are required to pay the proportionate cost of the improvement according to the terms of their contract under the act of April 15, 1903. There is nothing in the act of May 1, 1905, to relieve them from such payment.</p> <p>3. The act of 1905 embraces only cases where the improvements are made under the provisions of that act. Payments of expenditures for road improvements are to be made to the state treasurer by the township to the extent of one-eighth of the whole cost when the improvements were made under the provisions of the act of 1905. There is no direction in the act of 1905, that its provisions shall be retrospective. Retroactive laws being in their nature odious it ought never to be presumed that the legislature intended to pass them where the words will admit of any other meaning.</p> <p>4. As the defendants propose to do that which the law requires of them, it follows that the bill must be dismissed at the cost of the plaintiff.</p> <p>DISCUSSION.</p> <p>The parties occupy rather a peculiar position in this case. The supervisors advocate a demand which ordinarily we should expect the commonwealth to assume. We may admit, however, that the supervisors would not undertake to pay the larger sums unless the state demanded it.</p> <p>It is not very clear that the supervisors do admit that they intend to pay the sixteen and two-thirds per centum of the highway improvement. The failure to make a direct denial of the allegation in the eighth paragraph of the plaintiff’s bill may be regarded as such admission. If the supervisors are satisfied that they owe the larger sum, then there is no géod reason why they should attempt to withhold the money from the state treasury. It cannot be questioned that a citizen and taxpayer majr proceed in equity to test the validity of the proposed appropriation by the supervisors, where the money to be paid must be raised by taxation or expended from the municipal treasury: Frame v. Felix et al., 167 Pa. 47.</p> <p>Does the act of 1905 apply to the contract made between the commonwealth and the township supervisors on September 8, 1904? The act of May 1,1905, both in its title and various sections, declares how highway improvements shall be paid, but it is careful to state that the payment is for costs of highway improvements “ made under the provisions of this act.”</p> <p>The improvements made in "Worcester township were not made under the act of 3905. The contract was made under the provisions of the act of April 15, 1903, and the work was done under the latter act. Even the contract for the actual doing of the work was executed in September, 1904, and the subletting to the township of Worcester was entered into as early as December 12,1904. The work of improving the highway was commenced fully seven months before the act of 1905 was passed.</p> <p>Under the written contract of September 8, 1904, the commonwealth “ agreed to carry out the recommendation of the State Highway Commissioner and to defray two-thirds of the total expense of such improvement.” The county and the township of Worcester “jointly and severally agree to pay each one-sixth of the total expense of such improvement.”</p> <p>There is nothing in the act of 1905 that we discovered that relieves the township from paying according to the terms of its contract. There is no declaration'in the act of 1905 that its provisions are to have á retroactive construction or effect. “ Statutes are prima facia prospective in their operation and. retrospective laws being in their nature odious, it ought never to be presumed the legislature intended to pass them where the words will admit of any other meaning : ” Underwood v. Lilly, 10 S. & R. 97.</p> <p>Statutes must be construed to be prospective unless the legislature has expressed in clear and unambiguous terms an intent that they shall act retrospectively or such intent is necessarily implied from the language of the statutes: Thomas’s Election, 198 Pa. 546; Sproul v. Standard Plate Glass Co., 201 Pa. 103.</p> <p>It is true that the commonwealth has the undoubted power to pass a retroactive law impairing her own right: Davis v. Dawes, 4 W. & S. 401, but the act must show such intent or purpose before we can give to it the retroactive interpretation.</p> <p>That the act of 1903 was repealed by the act of 1905 is quite evident. The later act was intended as a substitute for the earlier statute upon the same subject. It does not follow, however, that the repeal of the act of 1903 destroys the contract made with the supervisors prior to the time of the enactment of the repealing statute. The contract was so far executed that the township received its consideration for the money it had promised to pay. The improvement was fully completed in accordance with the provisions of the act of 1903, although some wort may have been done after the act of 1905 was passed.</p> <p>All contract obligations are protected from impairment by the constitution. This constitutional provision extends to contracts made by a state with individuals. When the state becomes a party to a contract, the same rules of law are applicable to her as to private persons under like circumstances: Davis v. Gray, 84 U. S. 203. She can claim her rights under a contract until she relinquishes them. She did not say that for improvements heretofore made she would pay seventy-five per centum of the cost. What she did say by the act of 1905 was, that for improvements made in pursuance of the new act she would pay three-fourths of the costs.</p> <p>True, the act of 1903 is repealed, but the state does not require the aid of that act to enforce her claims of sixteen and two-tliircls per centum. She has her contract, and upon this she can sue just as any individual may claim his rights on a subsisting contract.</p> <p>The act of 1905, does not save or provide for existing contracts. If it did, we might hold that there was no impairment of the old contracts, because if they are covered by the act of 1905, the remedy of the township is as adequate and efficacious as it is under the act of 1903. Any inadequacy on behalf of the state would be waived by her through the enactment of the new law. The act of 1905, does not pretend to provide for existing contracts under the act of 1903. It follows that if the contract with the supervisors is defeated by the act of 1905, then that contract is necessarily impaired.</p> <p>If the contract of September 8, 1904, between the state and the supervisors is not binding upon the parties then there is no obligation on the part of either to pay anything. The agreement of the state to pay two-thirds of the cost of the improvement is an obligation to pay money and, therefore, a contract of the highest nature which the legislature may not impair.</p> <p>It is argued that the legislature intended to discharge all existing contracts under the provisions of the act of 1905, because all the money appropriated under the act of 1903, was reappropriated under the act of 1905. In other words, that there is no money to meet the obligation of September 8,1904, unless it is furnished out of the appropriation made by the act of 1905. If we concede the premises, the conclusion may follow. Under the act of 1903, a certain sum was appropriated or apportioned to the county of Montgomery for highway improvements. So much of this fund as was required to meet the obligation of the state in the Worcester improvement “ was applied for ” by the county. The cost of the improvement was expended or specially appropriated by the highway department. The act of 1905 does not pretend to appropriate any money already expended under the act of 1903. In fact there is nothing in the act declaring that any of the money appropriated by the act of 1903, shall be used to meet the requirement of the act of 1905. There is an appropriation of a specific sum under the act of 1905, but its source is not designated. We cannot- assume that the legislature intended to take from the highway department the money specifically set apart to meet the existing obligations of the state. Of course, as already stated, so much of the appropriation of 1903, as was not needed to meet existing contracts fell back into the state treasury to meet any call of the legislature. The old act was repealed and no new expenditures could be made out of the appropriation of 1903. It is a simple business proposition to ask the highway department to discharge its obligations incurred under the act of 1903, out of the funds set apart for that purpose and then pass the balance of the appropriation to the state treasury. Any other method of dealing would work out inequality. The Worcester contract was not promptly executed because of the'default by the original contractors; by the delay, if we adopt the plaintiff’s theory, the township makes a profit.</p> <p>Another township under a later contract, but by prompt action, finished the work before May 1, 1905, and had to pay the larger percentage of the cost of the improvement. This would be a reversal of the rule that the reward is to the diligent rather than the slothful. There was no difficulty in fixing the amount to be retained to meet the Worcester contract. The agreement with the contractor must have fixed the sum to be paid for the road improvement.</p> <p>And now, April 20, 1906, the bill is dismissed at the cost of the plaintiff; the prothonotary will enter a decree nisi accordingly and if no exceptions are filed as required by the equity rules, he will enter a final decree as of course.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Road law — Vacation of streets — Damages—Montgomery county — Acts of May 9, 1871, P. L. 639 and May 16, 1891, P. L. 75.</p> <p>The vacation of a highway or street is not an injury to the abutting owners within the provisions of the constitution requiring compensation, and, in the absence of special legislative provision for damages, none can be recovered.</p> <p>The Act of May 16, 1891, P. L. 75, contains no express grant to property owners of the right to damages for vacation, nor any clear implication of an intention to make such grant. This being so, the fact that the street was vacated upon the petition of the parties who are benefited thereby cannot change the result.</p> <p>The special Act of May 9, 1871, P. L. 639, relating to road law procedure in Montgomery county does not give the right to recover damages for the vacation of roads or streets in that county.</p>

<p>Appeal, No. 150, Oct. T., 1906, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1905, No. 24, on verdict for plaintiff incase of Margaret Skean v. Schuylkill Yalley Traction Company.</p> <p>Trespass for personal injuries. Before Weand, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Yerdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>JError assigned was in refusing binding instructions for defendant.</p>

<p>Liquor laws — Bottler’s license — Scope of bottler’s license.</p> <p>A bottler’s license does not confer the right to sell other intoxicating beverages than those specified in the Act of April 20, 1858, P. L. 365, viz.: cider, perry, ale, porter and beer.</p>

<p>Appeal, No. 81, April T., 1906, by plaintiff, from judgment of C. P. Cambria Co., Dec. T., 1902, No. 278, on verdict for defendants in case of S. C. Gearhart and S. D. McCartner v. Luther Gwinn and Thomas Gwinn.</p> <p>Ejectment for coal in Read township. Before O’Cosr-ÍTOK, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court admitted G. B. Kuhn to testify, under objection, as to the amount of expense incurred in developing the opening of the mine or drift, which testimony, objection and ruling of the court thereon are as follows :</p> <p>“ Q. Can you state how much expense you incurred in the work of developing that opening ? ”</p> <p>Objected to as being irrelevant and immaterial.</p> <p>The Court: The objection is overruled, an exception noted and bill sealed for plaintiffs. [7]</p> <p>“ A. Yes, sir; $325 without my own work and that of my partner; I paid that out in money, cash.”</p> <p>Counsel for plaintiffs moved to strike out all the testimony in relation to the cost and expense which Kuhn & Gwinn claimed they were at in connection with the action of trespass brought by Elmer Edmiston, to No. 219, March Term, 1897, it being disclosed from the declaration or statement of claim in that case that the allegation and foundation of the claim in that suit were based upon the alleged trespass of the property of Elmer Edmiston. If that be true, it would have no application to the operations upon this particular property, and for that reason we would move to exclude from this case all the testimony bearing upon the question of cost and expense incident to that trespass and the proceedings had thereunder.</p> <p>Motion refused, exception noted and bill sealed for the plaintiffs. [8]</p> <p>G. W. Turley, witness on stand. “ Q. Do you know the location of these two pieces of coal leased, the eight-acre piece and the thirty-acre piece ? A. Yes, sir. Q. State whether or not they adjoin ? A. Yes, sir. Q. Do you know whether or not there had been mining operations previously conducted ? A. I do know that it was an abandoned mine; that the coal under this property was worked out, there being nothing there but props, pillars and stumps.”</p> <p>Objected to.</p> <p>Mr. Kittell: We propose to prove by the witness on the stand that the main body of coal contained in the two pieces of land described in the writ in this case had been previously mined and removed by the Great Bend Coal Company, or some other operator, and that the only coal left available for mining was crop coal, pillars and props ; also that by reason of the location of these two pieces of land and of the improved property along the base of the hill — the buildings, cultivation of lands and private ownership of lands — that the only place where coal could be mined would be upon property owned by the party himself; in order to have an operation of the “coal on this land the present operator must be the owner of the land itself, and that it was impossible to mine any coal from, these two pieces of land from the Van Scoyoc land adjoining, because of the pillars having been driven and the mine allowed to fall in. This for the purpose of showing, in support of our allegation in .our answer, that the defendants used due diligence in the mining operations, and that as soon as it was possible for them to obtain a place to make -an opening they did so.</p> <p>Counsel for plaintiffs objected to the offer for the reasons :</p> <p>1. That the same is irrelevant, immaterial and incompetent.</p> <p>2. That the contract in writing between Judge Bell and G. B. Kuhn and Grant Kuhn specially provided that no stumps or no pillars shall be mined from this property without having obtained the written consent of the lessor.</p> <p>3. That the difficulty as to making an opening upon this property is not such a matter as would excuse the defendants in this case, or the persons under whom they claimed to hold the coal in question from pursuing their mining operations with due diligence.</p> <p>4. That the testimony of the defendants shows that for' a period of more than four years no operation or attempted operation was made upon this property for the purpose of mining and removing the coal, and it, therefore, becomes a question of law for the determination of this court as to whether due diligence was exercised.</p> <p>The Court: Due diligence, like ordinary care, depends upon the circumstances, and while there may be some matters in this offer that are not necessary in order to support the allegation of due diligence, we think that the circumstances surrounding the situation, the difficulty of mining, and unforeseen matters would have some bearing upon the question as to whether or not the defendants made an honest effort to comply with the terms of the lease and would affect the right of the lessor to terminate the lease under the terms of the written contract. We, therefore, overrule the objection, note an exception, and seal a bill for the plaintiffs. [9]</p> <p>[The question of due diligence we propose to submit to you; you are to determine that fact from all the circumstances, as shown by the evidence in the case. Notwithstanding that clause in the agreement, Judge Bell could not arbitrarily declare the contract at an end; he would have the right to do so if those persons were not properly mining the coal, or if they were not working at it; but the question Avas for him if they were found guilty of acts, Avhich, under the terms of the agreement, forfeited their rights. If Judge Bell did not see fit to exercise the option the agreement would still be in force at the time he transferred his interest, in 1902, to the plaintiffs in the case, and if it was in force then it would be in force yet, because there had been no action taken which Avould forfeit it since that time.] [1]</p> <p>[There is one other matter which is argued by counsel for defendants in support of the position that they were not bound by any action of Judge Bell’s and that the agreement was not canceled, and that is this, that Judge Bell, in his notice or letter, even though it had been received, does not indicate that he takes the action which he declares he takes in that notice or letter, for the reasons that he is authorized to take it, but merely that he desires to annul the contract. If that is all you find is contained in the notice — if that is all the notice they Avould receive — then that would not be sufficient because he had no right to terminate the contract if they were doing all they were required to do under the contract.] [2]</p> <p>Plaintiffs presented this 'point:</p> <p>4. It appearing from the evidence that Hon. Martin Bell gave notice that he desired to exercise his option to terminate and end the' lease of November 16, 1896, prior to the institution of the present action, and that the defendants having been informed or notified of such intention the verdict should be in favor of the plaintiffs. Answer: If Judge Bell exercised his option under the lease for the reasons mentioned therein authorizing him to do so, and the lessees had notice of it, then the lease was canceled and your verdict would be for the plaintiffs and with that explanation we say, if there was no lease, or no notice of the existence of any lease at the time McCartney took the title from Judge Bell, you will find for the plaintiffs. [3]</p> <p>6. If the jury believe from all the evidence that the lessee or the defendants in this suit failed or neglected to mine the coal, which is the subject-matter of the present suit, for a period of more than four years, they would be warranted and justified in finding that there was an abandonment of said lease, and in that case the verdict should be for the plaintiffs. Answer: We do not regard that statement as applicable to this case, for the reason that Judge Bell reserved the right to terminate the lease for certain reasons. If he did not see fit to do so then no one had a right to complain. If he did not choose to exercise the option, but waived the right which he had of exercising the option, though the lessees had not acted and lived up to the agreement, then the agreement was not forfeited or canceled, and we cannot affirm the point as applicable to this case. [5]</p> <p>8. The evidence showing that an opening was eventually made in 1902 on the Hopkins lot, which is a part of the Great Bend Coal Company property, by the defendants, that is conclusive proof of the fact that it was practicable to make such an opening there in 1896 and 1897, at which time defendants had an absolute right to make the opening thereon. Answer: We think they had a right to make that opening; of course, a question of damages was involved, and, unless it was a question of means, they could have made it as well in 1897 as in 1902. We recollect that one of the defendants states that it was a question of means with them at the time. You will consider that as bearing upon the question of whether or not there was any notice and as bearing upon the question of the intention of the parties. [6]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1, 2, 8, 5, 6) above instructions, quoting them; (7-9) rulings on evidence, quoting the bill of exceptions.</p>

<p>Railroads — Occupation of street — Station—Nuisance—Act of April 11, 1849, P. L. 754 — Equity.</p> <p>Under the Ohio act of February 24, 1848, sec. 11, adopted in Pennsylvania by the Act of April 11, 1849, P. L. 754, entitled, “An Act to incorporate the Ohio & Pennsylvania Railroad Company,” the Pennsylvania company, the successor in title to the Ohio & Pennsylvania Railroad Company, has the right to occupy a street in a borough or township with the municipal consent, to the extent only of a width sufficient for its rails and ties, but not for passenger depots or freight houses.</p> <p>Even if it should be assumed that section eleven of the Ohio act gave to the railroad company the right at the time of the original location of the railroad, to encroach upon the street for the purposes of a station, this right will not be extended, years after the railroad was located and á station established outside the lines of the street, to a right to encroach on the street by an extension of the station.</p> <p>The power of a railroad company to occupy a public street or highway must be derived directly, or indirectly, from legislative grant, and must be given in plain words, or by necessary implication, or be taken not to exist.</p> <p>Where such an encroachment is about to be attempted, a citizen owning property on the opposite side of the street, whose light and view are interfered with, and whose right to use the street may be interfered with by increased travel in the future, and who has bought his property according to a plan of lots on which the street was indicated, has a standing in equity to enjoin the railroad company from encroaching on the street for station purposes.</p> <p>An abutting owner who must use a street as a means of access to his property has a special interest therein, which gives him a standing to invoke the aid of equity to prevent unlawful obstruction of the street which other members of the general public have not.</p> <p>The general rule is that a railroad company occupying a public street without authority by legislative grant in clear words, or by unavoidable implication, constitutes a public nuisance, and may be enjoined at the suit of a private citizen specially injured.</p> <p>Deeds — Plan of lots — Streets—Right to use streets.</p> <p>When an owner of land subdivides it intb lots and lays out streets, alleys or courts, for the accommodation of the lots, the purchasers of the lots acquire a right of property appurtenant to the lots, in the use of the streets, alleys or courts, without regard to whether any right is by the plotting and conveyances vested in the public.</p> <p>Equity — Equity practice — Multifariousness—Parties.</p> <p>Several parties may join as complainants in a bill of equity although there is no privity among them, where they seek to avert an injury which would affect them all in the same manner, although perhaps, not in the same degree. In such a case a failure of evidence as to an alleged special injury to some of the complainants, but not to all, is not ground for dismissing the bill after a full hearing upon the merits.</p> <p>Statutes — Construction—Legislative intent.</p> <p>The hardship, or inconvenience that would result from one possible interpretation of the words of a statute, may be considered, amongst other things in determining the legislative intent, where the words are as plainly open to an interpretation that would lead to a different result, and still not defeat the general purpose of the enactment.</p>

<p>Will — Devise—Description of land — Boundaries.</p> <p>Testator owned land on which were two dwelling houses facing a street. The land extended within parallel lines back to another street. In the rear of the two houses on the portion of the land abutting on the back street testator built a bakehouse, which he operated until he went out of business a year prior to the execution of his will. About ten years prior to the date of his will he erected a fence separating the land appurtenant to the bakery from that adjoining the houses. In this fence were openings used as access to the bakery. At the time of his death testator occupied one of the houses, and rented the other to a nephew. The bakery was rented to a firm which had succeeded testator in business. By his will testator devised (his) “my dwelling house and lot attached thereto ” to his sister. By a codicil he devised to the same sister the dwelling house occupied by his nephew and the land attached thereto. He gave, devised and bequeathed the entire remainder of his estate to others. Held, that the residuary devisees were entitled to the land occupied by the bakery.</p>

<p>Contract — Sales—Acceptance of order.</p> <p>Where a dealer issues to his salesmen blank orders which have printed on their face an express stipulation that all sales are to be subject to acceptance by the dealer, and a purchaser gives an order to a salesman on such a blank, as he had been hi the habit of doing in previous transactions, and such order is rejected by the dealer as soon as it was received, the purchaser cannot allege as a defense that he had signed the order as an absolute contract of purchase and sale, relying on the statement of the agent that the latter had authority to make an absolute sale and did not always use the printed forms in sending in orders, which were nevertheless filled.</p>

<p>Appeal, No. 121, Oct. T., 1906, by Mahlon Reinard, Administrator of Harriet Reinard, deceased from decree of O. C. Berks Co., Dec. T., 1905, No. 30, dismissing exceptions to adjudication in Estate of Harriet Reinard, deceased.</p> <p>Exceptions to adjudication.</p> <p>Bland, P. J., filed the following opinion :</p> <p>As the judicial determination of each case depends upon its particular facts, it is essential, in considering the exceptions filed, to state the material facts of the case.</p> <p>They are:</p> <p>1. That the accountant, Mahlon Reinard, and the decedent, were married in 1867; and that they lived in wedlock until her death, November 12, 1896, a period of almost thirty years.</p> <p>2. That during that period, the decedent received from the estates of her father and mother, the sum of $2,243.60.</p> <p>3. That'all the money so received by the decedent passed directly or indirectly through her to the accountant, during her lifetime; and, at her death, was in his possession; and that at her death, he claimed it as his own, by gift from her.</p> <p>4. That notwithstanding the fact that he then claimed the $2,243.60, as a gift from her, he refused to bear the expenses of her burial and medical attendance, and the cost of a .tombstone for her grave.</p> <p>5. That on January 4, 1897, he obtained letters of administration on her estate, for the purpose of collecting from his daughter, Annie Missimer, the funeral expenses and the physician’s bill; and that he collected from her for those purposes, and for refreshments furnished at the funeral of the decedent, and one-half the cost of a tombstone, the sum of $121.45.</p> <p>6. That the account here was filed by him October 31,1905, nine years after decedent’s death; in which he charged himself with $400 “ reserving to the accountant, however, the right of any defense he may have against the payment of said amount, by reason of the statute of limitations.”</p> <p>7. I have also found, on the testimony of five witnesses who knew the decedent many years, corroborated by the fact that the decedent was of admittedly unsound mind several years before her death, and by the fact that her father, Henry Zerr, gave her a restricted interest in her share of his estate, while he gave his five other children their shares absolutely, that the decedent was always somewhat weak in mind.</p> <p>These are the main facts. It is a case which, in a sense, involves the relations and mutual rights and obligations of husband and wife. In a normal case of the marriage relation, it is. safe to assume the existence of that mutual love and affection which grows as the years go by; and of an overwhelming sense of pain and loss, when the union, hallowed by innumerable touching memories, is broken, by death. How a normal man can look into the face of his dead wife, with whom he has lived for thirty years, and who, could her cold lips speak, could say to him, “I gave you all,” without a heart melted in tenderness and a feeling of sacred obligation to lay her lovingly and tenderly in the earth, is inconceivable. General rules of law are based on normal facts; and those which declare the rights of a husband with respect to a wife and her acts, are grounded on the supposition that his feelings and conduct in his relations with her were those of the ordinary man. The sordid, grasping man; he whose overmastering selfishness leaves no room in his heart for affection or justice to his wife, is not the type of man whom the rules of law favor. He is the kind of mar whom the law suspects and whose acts it discredits; and who'se calculating selfishness the law condemned in Watson v. Mercer, 6 S. & R. 49; Weeks v. Haas, 3 W. & S. 520; and Darlington’s Appeal, 86 Pa. 512.</p> <p>I take the conduct of Mahlon Reinard, after his wife’s death, as typical of his conduct towards her and her estate, during her lifetime; and conclude that, as he was controlled' by pure selfishness at the time when he should have been under the influence of a sense of justice to her, he certainly acted upon the same sordid motive in his relations with her, while she lived. If I am right in this inference, and if, as I have found, she was infirm in mind, and an easy subject of undue influence, the law declares the alleged gift of the principal of her estate, void, because such alleged gift is presumed to have been the effect of his dominating influence. He certainly had the motive to dominate her. There are a number of circumstances which confirm the opinions of the witnesses who testified that she was weak in mind. Although she attended school, she could not write her name ; she spoke with difficulty; her talk was peculiar; for some years before her death she was of unsound mind; and for some reason her father gave her but a limited interest in her share of his estate, while he gave the shares of his remaining five children to them absolutely.</p> <p>I think this case clearly lies within the sphere of operation of the principle declared and followed in Darlington’s Appeal, 86 Pa. 512. In that case, at p. 519, Mr. Justice Tbunkey, said : “ On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client; and on the other hand, it is not necessarily void, ipso facto. But the burden of establishing its perfect fairness, adequacy and equity is thrown upon the attorney. If no such proof is established, courts of equity treat the case as one of constructive fraud. In dealings between principal and agent, or guardian and ward, or trustee and cestui que trust, the same principles prevail, with a larger and more comprehensive efficiency; and the burden of proof is upon the agent, the guardian, or a trustee who claims a benefit arising from the transaction to show the utmost good faith on his part, that he took no advantage of his influence or knowledge, and that he brought everything to the knowledge of the other party, which he himself knew. The foregoing principles are too familiar for citation of text-hooks or report. It is equally unnecessary to show by authority that the most dominant influence of all relations is that of the husband over the wife.”</p> <p>In this case the accountant, for. nine years, and until he was compelled by the court to file an account as administrator, retained and claimed as his own the whole estate of the decedent. He then filed an account charging himself with the $400 which had been “ advanced ” to him, on account of the share of the decedent in her mother’s estate, but failed to account for the $407.64, on the alleged ground that she gave it to him. The only evidence of the alleged gift is that of the executors of the mother’s estate; one of whom testified that when the decedent received the $407.64, she passed it to the accountant, saying, “ That is yours; ” and the other of whom testified that she passed it to him saying “You just take it.” As between husband and wife, the expression “ That is yours,” is of little value to prove a gift, for it may mean, “ yours to use,” “ yours to keep for me,” or any similar purpose. ■</p> <p>But apart from its equivocal meaning, the testimony that she made that expression does not agree with that of the other executor, who testified that she, when she passed the money to him, said, “ Just take it.” When the ambiguity of the expression, “ That is yours,” is considered in connection with the conflicting testimony of the other executor, it is utterly inadequate to overcome the strong presumption of law arising from the confidential relation, and of fact, arising from the avaricious spirit which plainly controlled him in his dealings with her estate.</p> <p>He has been allowed to retain the interest money received from her, amounting to $1,456.60, and the interest on the $400, advanced to him by her mother, from the time he received it until his wife’s death; and as a distributee entitled to share equally with his daughter, he received in this proceeding the further sum of $586.04. These sums aggregate more than $2,400. In addition to this, his compensation, which was excepted to, was allowed to stand, notwithstanding his obdurate persistence in claiming and keeping the whole estate for nine years after his wife’s death.</p> <p>It is my opinion that the accountant has failed to establish his claim to the $407.64, as donee of the decedent; and that there is no error, in the distribution excepted to. The exceptions are, therefore, overruled.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 188, Oct. T., 1906, by plaintiff, from judgment of G. P. Berks Co., April T., 1899, No. 66, on verdict for plaintiff in case of DeB. Randolph Keim v. City of Reading.</p> <p>Appeal from award of jury of view.</p> <p>At the trial the following offer was made :</p> <p>Mr. Hiester: The plaintiff having shown that William M. Fulton testified at a former trial of this case and that the said witness had died and that there are no notes of his examination, now proposes to give the substance of Mr. Fulton’s testimony so far as it may be relevant to this case — the facts detailed by said witness upon examination by counsel for plaintiff and upon cross-examination by counsel for the city of Reading being, that the witness for many years past had been extensively engaged in the business of quarrying stone at the west end of the Penn street bridge, opposite the city of Reading, and had much experience in the operation of quarries and the value of stone similar to that taken from plaintiff’s quarry, that the quarries of the witness and of the plaintiff were the only two quarries advantageously located for supplying stone to the city of Reading, that the witness was well acquainted with the plaintiff’s quarry, that said quarry produced red stone, which was well adapted and readily and profitably marketable for cellar purposes, and white stone, which was more valuable and well adapted and readily and profitably marketable for facing fronts; that the said quarry could have been further and profitably operated to a very great extent except for the appropriation by the city, and was a valuable part of the plaintiff’s property, covering about three acres of the plaintiff’s land, and that the appropriation by the city rendered it impossible to proceed further with the operations of the quarry in a safe and profitable manner, but practically ruined and destroyed the quarry.</p> <p>Mr. Rourke: This offer is objected to as incompetent and inadmissible.</p> <p>The Court: The objection is sustained; bill sealed for plaintiff. [1]</p> <p>Henry Knoll, a witness for defendant, was asked these questions :</p> <p>“Q. Where do you live ? A. 713 Birch street. Q. What business are you engaged in? A. Iam hauling stones. Q. How long have you been engaged in that line of business ? A. Twenty years. Q. Will you state whether or not you are acquainted with the Keim property and With the quarry thereon ? A. Yes, sir, I was therQ already. Q. How often have you been .there? A. A good many times ; I hauled some stones away there already. Q. When did you last see the quarry? A. I wasn’t in the quarry for — that I didn’t work, for a couple of years. -Q. Couple of years? A. Yes, sir. Q. Before that you worked at this very quarry ? A. Yes, sir, I hauled stones away. Q. And for what length of time? A. Well, I didn’t haul so many away." Q. What time did it go over — how much time were you there ? A. When they had a pile of stone there I hauled them away until they were all. Q. Did you ever make any examination of the stone, its quality ? A. Well, there ain’t any such nice stones ; the masons don’t like to work them. Q. You made an examination of the stone time and again, did you not? A. Yes, sir. Q. Now, what is the kind of stone that you find there ? ”</p> <p>Mr. Hiester: We object; he is not an expert on this subject.</p> <p>“ Q. Do you know anything about stone, or about the quality of stone? A. I ought to know; I am long enough in the business. Q. How long have you been in that business? A. Twenty years. Q. Then you do know about the quality of stone? A. Yes, sir. Q. And the uses to which they can be put? A. Yes, sir. Q. Tell us what the quality of these stones is and to what use they can be put ? ”</p> <p>Mr. Hiester: Objected to, that the witness has not been shown to be an expert on stones.</p> <p>“ Q. You deal in stones and have during these twenty years? A. Yes, sir. Q. All kinds of stones ? A. Yes, sir. Q. Buy and sell stones for building purposes? A. Yes, sir; that is what I am hauling. Q. How long have you been doing that ? A. Twenty years. Q. What was the extent of your business during these twenty years in that line? A. Well, hauling stones, that is the most business I have. Q. That was the only business that you have pursued in twenty years, isn’t it ? A. Yes,sir. Q. That is right, isn’t it? A. Yes, sir. Q. You have dealt in stone and nothing else during all these years ? A. No, sir. Once in awhile I dug a cellar. Q. Now, tell us what the condition or quality of these stones in the Keim quarry is or was in 1896 ? ”</p> <p>Mr. Hiester: We object, that the witness has not been shown to be an expert in the kind of stones quarried from this quarry.</p> <p>The Court: The witness having testified that he has for twenty years been engaged in the business of buying and selling stones for building purposes, and that he hauled stone from this very quarry and was acquainted with these stones, I think he may be permitted to state what the quality of the stone is; bill sealed for plaintiff. [2]</p> <p>Verdict and judgment for plaintiff for $725.70. Plaintiff appealed. *</p> <p>Errors assigned were (1, 2) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 56, Oct. T., 1905, by defendant, from judgment of O. P. Chester Co., Jan. T., 1905, No. 46, on verdict for plaintiff in case of Ellen M. Kennedy v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Butler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $825. Defendant appealed.</p> <p>Errors assigned among others were (4) in refusing binding instructions for defendant; and (5,6) portions of charge quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 69, Oct. T., 1905, by defendant, from judgment of C. P. Del. Co., Sept. T., 1903, No. 114, on verdict for plaintiff in case of George G. Dutton v. Philadelphia, Baltimore & Washington Railroad Company and the Chester Creelc Railroad Company.</p> <p>Trespass to recover damages for injuries to a milldam.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $1,860.74. Defendant appealed.</p> <p>Errors assigned were (1, 2) in permitting E. A. Howell to testify; (3, 4) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 55, Oct. T., 1906, by Ursinus College, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Christian Amolé, deceased.</p> <p>Exceptions to report of T. R. Cornwell, Esq., auditor.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Road, law — Paving—Original pavement — Repair—Evidence—Burden of proof.</p> <p>Where a property owner resists payment of a municipal lien filed for paving a street with vitrified brick, on the ground of prior or original paving, the burden is upon him to show that at the time of the alleged original paving the street had been permanently improved by the city as a city street, and paved as such, and that the work had been done under the authority of those authorized to represent the city with the intention of changing the old roadway into a permanent city street.</p> <p>On a scire facias sur municipal lien for paving a street with vitrified brick, the defendant offered evidence which tended to show that the street in question some years before had been macadamized from curb to curb in such a manner as to change a clay road into a good, reasonably smooth, and substantial artificial highway. Prior to the macadamizing, the city council enacted a resolution requiring all property owners on the street to curb and pave the sidewalks in front of then-respective properties within thirty days. About six weeks afterwards the councils instructed thé street committee to advertise for proposals for macadamizing the street, and subsequently a contract was awarded, and the work of macadamizing done. The evidence showed that the council had from time to time ordered the bills to be paid to the contractor for the macadamizing, as the work progressed. Held, (1) that the evidence was sufficient to show that the macadamizing of the street had been done under the express authority and direction of the city council; (2) that the defendant was entitled to judgment on a verdict in his favor.</p>

Appeal, No. 220, Oct. T., 1905, by Margaret B. Gross, from decree of O. C. Lancaster Co., May T., 1905, No. 89, dismissing exceptions to adjudication in Estate of John Hoffman, deceased. Exceptions to adjudication. Before Smith, P. J. The facts are stated in the opinion of the Superior Court. ■ Errors assigned were in overruling exceptions to adjudication.