Volume 33 — Pennsylvania Superior Court Reports

Appeal, No. 186, Oct. T., 1906, by defendant, from judgment of C. P. Lancaster Co., April T., 1905, No. 44, on verdict for plaintiff in case of Rebecca J. Moss v. The Lancaster & York Furnace Street Railway Company. Trespass to recover damages for personal injuries. The facts are stated in the opinion of the Superior Court. At the trial the defendant presented the following points : 1.

<p>Appeal, No. 241, Oct. T., 1906, by plaintiff, from decree of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 207, dismissing libel in divorce in case of Albert Samuel Dulin v. Emmer Peculiar Dulin.</p> <p>Libel in divorce.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the libel.</p>

<p>Appeal, No. 199, Oct. T., 1906, by</p> <p>defendants, from judgment of C. P. Bradford Co., Sept. T., 1905, No. 91, on verdict for plaintiff in case of Edward E. Pease v. Samuel Doane and O. L. Haverly, terre-tenant and real owner.</p> <p>Scire facias sur mortgage.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows :</p> <p>[It has been held by the courts of this state that “ a mortgage does not necessarily merge or become extinct by being united in the same person with the fee ; it may be kept alive where such is the intention of the holder, or the intention or agreement of the parties, or where it would be for the holder’s interest or advantage that the lien should be preserved. In the latter case his intention to keep the mortgage alive will be presumed. Merger being largely a question of intention, where there is the intention, actual or presumed, of the person in whom the mortgage and fee unite that there shall not be a merger, equity will not hold the mortgage extinguished.” I have quoted this from the opinion of one of the late judges of Supreme Court of this state.] [1]</p> <p>[Juror: The jury would like to ask and be informed if Dr. Pease could keep his judgment alive after the deed was given, without the consent of Mr. Doane ?</p> <p>The Court: We say to you, further, that where there is a union of the two estates — a union in the same person of the mortgage and the fee — if it is for the benefit of the mortgagee that the obligation shall be kept alive for his protection, the law in that case will not presume a merger. And we quote, as we did in our general charge, what has been said by the Supreme Court upon this question, and I think probably it will throw light on the inquiry that is in your minds: “ A mortgage does not necessarily merge or become extinct by being united in the same person with the fee; it may be kept alive where such is the intention of the holder or the intention or agreement of the parties — either one — or where it would be for the holder’s interest or advantage that the lien should be preserved. In the latter case his intention to keep the mortgage alive will be presumed. Merger being largely a question of intention, where there is the intention, actual or presumed, of the person in whom the mortgage and fee unite that there shall not be a merger, equity will not hold the mortgage extinguished.”</p> <p>Juror: Will you quote the last few lines over again?</p> <p>The Court: Merger being largely a question of intention, where there is the intention, actual or presumed, of the person in whom the mortgage and fee unite that there shall not be a merger, equity will not hold the mortgage extinguished.] [2]</p> <p>Juror: Here is the point: We take it for granted that the man that deeds his property deeds it for the purpose of killing the mortgage and for no other purpose, and he thinks at that time that it is killed, and the man who gets the deed and holds the mortgage believes that he can hold that mortgage good and keep it good. One man thinks that he cannot, and the other thinks he can. It is a little difficult to know just how to construe that.</p> <p>The Court: We think the last inquiry is covered by the third point presented to the court by the counsel for the plaintiff, and which was affirmed, which is this :</p> <p>“ Merger in Pennsylvania is a question of intention, actual or presumed, of the person in whom the interests are united, and when it is for the interest of the plaintiff to keep up the charge and collect his mortgage, in the absence of any evidence to show a contrary intention, the law will not presume an intent to merge.”</p> <p>Juror: I think that is satisfactory.</p> <p>[The Court: This intention must have existed or been formed at the time of the transaction, to keep the mortgage in life. And, as we said, all the circumstances are for you to consider, in arriving at what was the intention of the parties, and of the mortgagee, at the time.] [3]</p> <p>Verdict and judgment for plaintiff for $1,434.23. Defendant appealed.</p> <p>Errors assigned were (1, 2, 3) above instructions, quoting them.</p>

<p>Appeal, No. 207, Oct. T., 1806, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1904, No. 55, for defendant non obstante veredicto in case of Thomas M. Sullenberger and Annie M., his wife, v. Chester Traction Company.</p> <p>Trespass to recover damages for death of a child.</p> <p>At the trial the court refused binding instructions in favor of the defendant, and the jury returned a verdict for plaintiffs for $750. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned among others was in entering judgment for defendant non obstante veredicto. (</p>

<p>Appeal, No. 209, Oct. T., 1906, by defendant, from judgment of C. P. Delaware Go., Dec. T., 1904, No. Ill, on verdict for plaintiff in ease of Julia Corrigan v. Cambridge Mutual Beneficial Association.</p> <p>Assumpsit on a policy of life insurance.</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 defendant for $190.53. Defendant appealed.</p> <p>JError assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 1, Oct. T., 1906, by Charles J. Miller, Trustee, from decree of C. P. Northampton Co., dismissing exceptions to auditor’s report in Estate of Jacob Miller, deceased.</p> <p>Exceptions to report of J. W. Wilson, Esq., auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Negligence — Water company — Bursting of main — Failure to inspect.</p> <p>In an action against a water company to recover damages to property resulting from the bursting of a water main in a street, a verdict and judgment for plaintiff will be sustained, where it appears that the main had been in the street for nearly fifty years, that it had originally been subjected to a pressure of sixty pounds, but that for some time prior to the accident the pressure had been increased to 110 pounds, that for two years before the accident the surface had from time to time settled in front of plaintiff's premises, indicating some trouble beneath, but that the defendant had neglected to inspect the main or remedy the trouble.</p>

<p>Landlord and tenant — Lease—Assignment—Notice.</p> <p>Where a lease contains a provision that.it shall be assignable to a corporation named, or to a company having a capital of $50,000, and it appears that the corporation named was not in existence at the date of the lease, the lessor is entitled to notice of any assignment made in pursuance of the lease.</p>

Appeal, No. 192, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1902, No. 3,160, for defendant non obstante veredicto in case of J. M. Jaekel et al. v. Nixon & Zimmerman Amusement Company. Assumpsit to recover percentages on a contract to sell theater tickets. At the trial the court gave binding instructions for plaintiff and the jury returned a verdict for plaintiff for $93.00.

<p>Appeal, No. 17, Jan. T., 1907, by defendant, from order of Q. S. Luzerne Co., Jan. T., 1906, No. 151, refusing to quash the array of grand jurors in case of Commonwealth v. H. H. Hughes.</p>

Appeal, No. 18, Jan. T., 1906, by defendant, from judgment of Q. S. Luzerne Co., Jan. T.,1906, No. 68, on verdict of guilty in case of Commonwealth v. John W. Tilly et al. Indictment for conspiracy.

Appeal, No. 51, April T., 1907, by defendant, from judgment of C. P. No. 2, Jan. T., 1902, No. 857, on verdict for plaintiff in ease of David C. Finefrock and Margaret Finefrock, his wife, v. The United Traction Company. Trespass to recover damages for personal injuries. Before Young, J, The circumstances of the accident are stated in the opinion of the Superior Court. Verdict for David C. Finefrock for $1,500 and for Margaret Finefrock for $1,500. Defendant appealed.

Appeal, No. 143, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1905, No. 570, on verdict for S. Feingold in the interpleader in case of Simon Feingold, trading as S. Feingold & Company, v. Jacob Steinberg, Morris Barsh and Meyer Luber, copartners, trading as M. Barsh & Company. Interpleader to determine title to a stock of merchandise sold in bulk. The facts are stated in the opinion of the Superior Court.

<p>Decedents' estates — Contract—Executors and administrators — Distribution.</p> <p>Where an administratrix as such pays a portion of a bill of an expert accountant, -and it is agreed between them'that the accountant shall present his claim for the balance against the estate and that the administratrix shall not be held personally responsible therefor, the administratrix cannot object to the payment of the balance out of the estate merely because she is the sole distributee thereof.</p>

<p>Deeds — Plan of lots — Boundaries—Courses and distances — Marks on ground.</p> <p>The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence, when the marks or monuments are gone.</p> <p>A map or plan referred to in a deed is a material and essential part of the conveyance, and has the same effect as though copied into the deed itself.</p> <p>Where a deed for a block of lots describes the lots as numbered according to a certain plan, and there is a further description by an outside boundary of the whole block by courses and distances, and" there is an inconsistency between the two descriptions, the courses and distances of the outside boundary will give way to the measurements of the plan of lots.</p> <p>In ascertaining the location of an interior line in a block of lots, the same rule applies that is applicable in locating an interior tract of land in a block survey, viz.: “The marks of a block consist of the marks, if such are found, of every tract of the block.”</p>

<p>Arbitration — Finality of decision — Fraud.</p> <p>Where an executory contract provides that any dispute between the parties growing out of the contract shall be referred to an arbitrator whose decision shall be final, the award of the arbitrator cannot be attacked for a mere mistake of judgment on his part, or even for partiality where the person benefited is not implicated. It is only fraudulent conduct on the part of the arbitrator, or collusion between him and the party benefited that will impeach the award.</p>

<p>Appeal, No. 228, Oct. T., 1906, by plaintiff, from order of C. P. Northampton Go., June T., 1906, No. 21, discharging rule for judgment for want of a sufficient affidavit of defense in case of Birmingham Iron Foundry v. James Regnery.</p> <p>Assumpsit on a promissory note.</p> <p>Scott, J., filed the following opinion:</p> <p>This action is instituted by the payee against indorser, upon a promissory note of which a copy follows :</p> <p>“1445.00. Catasauqua, Pa., March 16,1905.</p> <p>“ Three months after date we promise to pay to the order of Birmingham Iron Foundry, Four Hundred Forty-five dollars at the National Bank of Catasauqua, without defalcation, value received.</p> <p>(Signed) “ Catasauqua Rubber Company oe Penna.</p> <p>“Wm. W. Wilson</p> <p>“Secy, and Treas.</p> <p>(Endorsed) “ Jas. Regnery Prest.”</p> <p>Prior to the Act relating to Negotiable Instruments, May 16, 1901, P. L. 194, this irregular indorsement by the president of the rubber company must have been taken as creating the liability of second indorser, in the absence of competent written evidence of a different contractual relation: Eilbert v. Finkbeiner, 68 Pa. 243. By the provisions of that statute, however, he is now responsible to the payee: Sec. 64 (1). This liability is, prima facie at least, personal and individual, as no principal is designated : Sec. 20. An antecedent or preexisting debt constitutes a valuable consideration : Sec. 25.</p> <p>The only matter interposed as a defense which invites discussion, is the suggestion contained in the second paragraph of the supplemental affidavit, that the plaintiff knew James Regnery was the president of the Catasauqua Rubber Company, “ and that when he endorsed his name as President on said note it was known to the plaintiff that it was a restrictive endorsement, and was not intended to bind the endorser individually.”</p> <p>That part of the Act of 1901 which is pertinent to the present contention provides (sec. 20, P. L. 194) that “. . . . the mere addition of words describing him as agent or as filling a representative character, without disclosing his principal does not exempt him from personal liability.”</p> <p>This is but a codification of the existing law : Sharpe et al. v. Beilis, 61 Pa. 69; Eaton & Gilbert’s Com. Paper, p. 83. The liability is not absolute and conclusive, beyond the admissibility of parol proof otherwise respecting the intention between the immediate parties or any holder with knowledge of it: Seyfert, McManus & Co. v. Lowe, 7 W. N. C. 39; Wanner v. Emanuel’s Church, 174 Pa. 466; DeRoy v. Richards, 8 Pa. Superior Ct. 119. The phraseology of the statute itself implies that. Such evidence is not open to the objection that it is within the rule of contradicting or reforming a written indorsement: Barclay v. Pursley, 110 Pa. 13. Eaton & Gilbert in their commentary upon the Negotiable Instruments Law as now codified in many states (p. 93 et seq.) discuss these propositions at length. I need not pursue the subject further.</p> <p>It may be improbable that the payee would have accepted this note with knowledge that the sole indorsement was intended to be the obligation of the corporation maker, which would add to it nothing of value. But if a defendant makes affidavit to a substantial defense, it is sufficient to prevent summary judgment. Now, October 1, 1906, rule discharged.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 170, Oct. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1904, No. 1,618, on verdict for plaintiff in case of S. Lawrence Bodine v. Wayne Title & Trust Company.</p> <p>Trespass to recover damages for loss resulting from the negligence of the defendant as a conveyancer. Before McMichael, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court charged as follows :</p> <p>The cases in Pennsylvania have gone so far as to say in the alternative case, where the railroad company sues on its covenant, that what it is entitled to recover in a case of this kind is the cost of the fence and the cost of maintenance. That testimonjr is to a certain extent positive. You heard the witnesses. They differed somewhat in their estimates according to locality and according to their own experience. But still, while one of us, I know, is not a farmer and does not know much about fencing, we know more than we did before we opened this case, and you have testimony of what the cost is. Then we come to two matters, one of which was a matter of evidence and the other a matter of argument, but they are very interesting and they are matters which science will not solve but common sense may, and it is for you. [One is the argument, supported by evidence of the plaintiff, who says he is damaged more than the cost of the fence and the cost of maintenance, because the fence, according to the testimony, is only going to last fifteen years, and when he is through that fifteen years he will have to erect another, and he says, therefore, he should have a principal sum, which he gave you, which at interest, so much a year to be earned on that principal sum, will at the end of fifteen years enable him to go on with the fencing. I think the evidence was admissible and it is for you to determine whether the argument is properly drawn from that testimony. It is for you to draw the inference.] [11] On the other hand, defendant’s counsel argued, supported by evidence, partly by the cross-examination of the plaintiff’s witnesses and partly by the evidence of his own witnesses, that this was a farm and used for farm purposes, and he argued, with how much persuasiveness I do not know, but he argued that if this land was used as farm land, the plaintiff would need the fences anyhow, that he could not let his cattle be in there without having fences to turn the cattle, and that after all, tliifc which is called a charge or incumbrance was nothing at- all, that the plaintiff would have to do it anyhow.</p> <p>Now, gentlemen of the jury, I shall leave the case with you, except for the answers to points, which I can only explain in this way, that a judge has not only to charge the jury on the evidence — and however much he may wish to let them go with a- blessing, like the preacher, he must preach the sermon — but he must also answer any hypothetical points which, in the opinion of counsel, touch the case. But I think I have brought to your attention the questions which you are to decide by a common-sense consideration of the evidence. The salient question of fact, was the defendant company careless ? Second, if it was, what did the plaintiff suffer ? What was his loss ? And with that I shall leave the case with you, after charging you on the points as submitted.</p> <p>[A Juror; May I ask your honor a question? I am interested in this, because I have considerable business of this kind myself.</p> <p>The Court: Yes.</p> <p>The J uror: As I understand it, the defendant gave a policy of insurance. How does that affect the liability ?</p> <p>The Court: It does not affect it at all in my judgment. In ' my opinion — and you will take the law from me, subject to review hereafter — the policy of insurance, which was excluded, does not affect the question here. It is a very interesting and sensible question, and I am glad you asked it. But, subject to review hereafter, the policy of insurance, which is a contract to indemnify the plaintiff, does not affect the question here. Here the plaintiff sues, as he has a right to sue, for the loss he suffered by the tort or wrong done by the defendant, and in my opinion, the policy of insurance has no bearing, except as it is part of the history of the case. He brings his suit for the loss which he suffered through the carelessness of the defendant company, which he employed and paid as a conveyancer to look up his title and get his searches and so on. The policy of insurance is a contract. Now, how far he might recover on that I do not know, I have not examined into it. How far he might, as was argued at length by counsel for the defendant, defalk against the mortgage is a matter depending on other considerations than we have here. I am glad the juror, who interested me very much before by his intelligent questions to counsel, asked me that question, because I can give my view, which is subject to review hereafter.] [7]</p> <p>Defendant presented these points :</p> <p>2. By the terms of the deed from William C. Latch to S. Lawrence Bodine, the property was conveyed freed from incumbrance done or suffered by Latch. Bodine, therefore, has a right of action against Latch for any damage which he has sustained by reason of the breach of this covenant, and there can be no recovery against the defendant in this case until Bodine has exhausted his remedy against Latch. Answer: Declined. [1]</p> <p>The plaintiff’s remedy in this case is primarily against Latch, his grantor, for breach of. covenant, and there can be no recovery against the defendant until the plaintiff has exhausted his remed}1, against the grantor. Answer : Declined. [2]</p> <p>11. The title insurance policy issued by the defendant and accepted by the plaintiff covers the terms of the contract and undertaking between them, and there can bé no recovery in this case; suit should have been brought on the title policy. Answer: Declined. [4]</p> <p>12. Under all the evidence the verdict should be for the defendant. Answer: Declined. [5]</p> <p>Verdict for plaintiff for $1,851, upon which judgment was entered for $951, all above that amount having been remitted. Defendant appealed.</p> <p>Errors assigned among others were (1, 2, 4, 5, 7, 11) above instructions, quoting them.</p>

<p>Appeal, No. 208, Oct. T., 1906, by-defendant, from order of C. P. No. 1, Phila. Co., June T., 1906, No. 8,483, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph Perna v. Cornelius F. McFadden.</p> <p>Assumpsit to recover a balance alleged to be due on a building contract.</p> <p>The portion of the affidavit relating to the set-off for liquidated damages and interest, is as follows :</p> <p>That the contract sets forth on its face that the work was to be completed in two weeks from the date of < signing of contract. That as the contract was signed on May 2, 1906, the work therein provided for should have been completed on May 16, 1906, but in point of fact and according to the statement filed it was not completed until June 25,1906, which was forty day’s after the date agreed upon. And it was further provided in said agreement that said Perna should be liable to a penalty of $1.00 per day for each house for each dayr’s delay, as liquidated damages, so that this deponent is entitled to retain out of any money due or to become due the said plaintiff the sum of $480 for his delay in completing the work, the said amount being $1.00 per day per house for twelve houses and for forty days.</p> <p>Defendant further says that by the delay caused as aforesaid by the failure of the plaintiff to complete the work within the time agreed upon, this deponent was put to great additional loss and expense as all other work had to wait until the cellars and foundations were completed by the plaintiff and during all that time the amount of interest charged against this deponent and paid by him (the interest on $84,000 for forty days making $560) could have been avoided had the plaintiff completed his contract within the time specified therein.</p> <p>The order of the court was as follows :</p> <p>September 19, 1906, rule absolute for §782.27, with interest thereon.</p> <p>September 22, 1906, damages assessed at §734.25.</p> <p>The affidavit is insufficient in its claim to set off the forty days’ penalty of §12.00 a day, because it does not aver that twelve houses were not completed. The claim for interest charges is not authorized by the contract.</p> <p>Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Replevin — Possession—Demand—Damages.</p> <p>There is good ground for an action of replevin where property is shown in the plaintiff, and a refusal on the part of the defendant to deliver it upon demand.</p> <p>Where a piano company places a piano in a house in order to secure either a lease or a sale through the wife, and this is done in spite of the remonstrances of the husband, it should not, in an action of replevin to recover possession of the piano, be permitted to charge the defendants with damages arising from the reasonable use of the piano up to the time of the demand for its return.</p> <p>Appeals — Assignments of error — Charge.</p> <p>An assignment of error in the following form violates rule 15: “The learned trial judge erred in submitting the case to the jury, in contradiction to the plaintiff’s theory.”</p> <p>The refusal of a nonsuit is not assignable for error.</p> <p>Detached portions of the charge assigned for error will not be considered, where it is impossible to determine, from the assignments themselves, what the judge decided as to any of the several questions involved.</p>

<p>Negligence — Street railways — Roads—Obstruction of highway.</p> <p>In an action against a street railway company to recover the loss of a horse, a judgment on a verdict for plaintiff will be sustained where the evidence for plaintiff although contradicted, tends to show that the defendant, at the place of the accident piled ballast three or four feet beyond its tracks on the public highway, that the highway at this point was hardly wide enough for two teams to pass, and that plaintiff in permitting a heavily loaded team to pass, was compelled to drive upon the stones, and that the loose stones caused his horse to' fall and sustain the injuries for which the suit was brought.</p>

<p>Appeal, No. 216, Oct. T., 1906, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1906, No. 196, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Bernstein and William Kaufman, Copartners, trading as Bernstein, Kaufman & Company, v. Angelo Hirsch, Herman Hirsch and Felix Hirsch, Copartners, trading as G. Hirsch’s Sons.</p> <p>Assumpsit for balance of account.</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>Jury — Grand jury — Jury wheel — Sealing wheel.</p> <p>Where it is necessary to draw a grand jury as soon as the wheel is filled, it is not required of the sheriff and the jury commissioners to go through the form of locking and sealing the wheel, and at once reopening it. The object of sealing the wheel is to preserve it from interference with by unauthorized persons between the time when the wheel is filled and a later date when it becomes necessary to open it for the purpose of drawing a jury.</p> <p>All presumptions are in favor of the validity of the action of the jury commissioners and sheriff.</p> <p>Where there is nothing to indicate that the jury list was not truthfully certified, the fact that the jury commissioners signed the certificate in blank, and that the names of the jurors were filled in under the direction of the jury commissioners from a proper list is not sufficient basis for quashing the array.</p>

<p>Appeal, No. 210, Oct. T., 1906, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1906, No. 1,462, discharging rule for judgment for want of a sufficient affidavit of defense in case of Philip Frank v. Thomas F. McCrossin.</p> <p>Assumpsit to recover amount of taxes paid by plaintiff.</p> <p>The opinion of the Superior Court states the case.</p> <p>Frror assigned was the order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 26, Jan. T., 1907, by defendant, from judgment of Q. S. Carbon Co., Oct. T., 1904, No. 33, on verdict of guilty in case of Commonwealth v. Louis Pearl. Indictment for fornication and bastardy.

<p>Appeal, No. 123, Oct. T., 1906, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 2,915, discharging rule for judgment for want of a sufficient affidavit of defense in case of Margaret Lomasney v. John W. Turner.</p> <p>Assumpsit for services rendered as nurse.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>The court made the rule for judgment absolute for $125, admitted to be due, and discharged the rule for judgment for want of a sufficient affidavit of defense, as to the balance claimed.</p> <p>Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 103, Oct. T., 1906, by Emil Wahl Manufacturing Company, from order of Q. S. Phila. Co., June T., 1905, quashing petition for the appointment of viewers In the Matter of the Vacation of Pulaski Avenue from Ruffner Street to Roberts Avenue.</p> <p>Petition for the appointment of viewers.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order quashing the petition.</p>

<p>Appeal, No. 205, Oct. T., 1905, by plaintiff, from judgment of C. P. Lancaster Co., April T., 1906, No. 9, for plaintiff on case stated in suit of Leonora Allen v. J. W. Hirlinger.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>‘ The facts are stated in the opinion of the Superior Court.</p> <p>The court in an opinion by Landis, P. J., entered judgment for defendant.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p>Appeal, No. 213, Oct. T., 1906, by Preston Ayres, from decree of O. C. Chester Co., No. 6,825, dismissing exceptions to auditor’s report in Estate of Roland Todd, deceased.</p> <p>Exceptions to report of J. Frank Hause, Est., auditor.</p> <p>The material portion of the will of Roland Todd was as follows:</p> <p>“ 3. I give and devise to my nephew Roland Todd, son of my brother John Todd, (deceased), for and during his natural life, my farm of eighty acres in Lincoln township, Wright county, Iowa, viz.: N. N. E. J section ten (10) T. 91, N. R. 24, west of 5th P. M. At the death of said Roland Todd said-landto descend and go to the children of said Roland Todd then living, share and share alike, in fee simple.</p> <p>“ 4. I give and devise to my nephew Robert Todd son of John Todd the forty acres of land lying south of the railroad in Lincoln township, Wright county, Iowa, being part of W. ■£, S. E. 4, sec. 3-91-24.</p> <p>“ 5. I give and devise to my nephew Harry Todd, son of John Todd, the forty acres (less right of way of Rjr.) lying north of railroad in Lincoln township, Wright county, Iowa, being part of W. S. E. {-, sec. 3-91-24.</p> <p>“ 6. I give and devise to my niece Anna Todd, daughter of John Todd, my house and two lots in the town of Clarion, Wright county, Iowa, known as</p> <p>“7.1 give and devise to my beloved brother Robert Todd* my house and lot No. , Star street (lot 33, blk. 4, Martin & Burns’ add.), also my house No. 315 Appel street (on leased ground) both in the city of Peoria, county of Peoria, state of Illinois.</p> <p>“ Further, I give and bequeath to my said brother, Robert Todd, the sum of $1,000.</p> <p>“8. I give and bequeath to my step brother Porter Todd, the sum of $500, and to my step brother Albert Todd, the sum pf .($10.00).</p> <p>“ 9. I give and bequeath to my sister Ellen Hieston the sum of $3,000. All said bequests to be liens on my real estate until paid.</p> <p>“ 10. I will and bequeath that the balance of my property and estate remaining after the aforesaid devises and bequests are paid and satisfied, shall be divided equally between the children of my brothers Charles Todd and James Todd and the children of my sister Jane Ayres, giving to each of said nephews and nieces (not hereinbefore mentioned in this will) share and share alike, in case of the death of any of said nephews and nieces without issue his or her share to be equally divided among the survivors.”</p> <p>Jane Ayres had foul children, Elizabeth T. Schofield, Annie E. Auehenbaeb, Ellen King and Robert Ayres, the latter of whom died before testator made his will, leaving to survive .him a son, Preston Ayres, who now seeks to recover the portion of this estate which would have passed to his father, .Robert Ayres, had he survived the testator.</p> <p>The auditor disallowed the claim of Preston Ayres.</p> <p>The court dismissed the exceptions to auditor’s report.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 217, Oct. T., 1906, by defendant, from decree of C. P. Del. Co., June T., 1905, No. 132, on bill in equity in case of Jehu D. Bishop and Nellie L. Bishop, his wife, v. J. Monroe Buckley.</p> <p>Bill in equity to restrain the defendant from disconnecting and interfering with a water pipe. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree awarding the injunction.</p>

<p>Appeal, No. 93, Óct. T., 1906, by plaintiff, from order of C. P. Schuylkill Co., March T., 1906, No. 280, discharging rule to compel the payment of a deed in case of Joseph P. Mack v. Schuylkill Trust Company.</p> <p>Rule to compel the recording of a deed. Before Shay, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Frror assigned was the order of the court discharging the rule.</p>

<p>Appeal, No. 35, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 1,183, discharging rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia Warehouse Company v. Colonial Biscuit Company.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Prom the record it appeared that the goods sold were barrels of flour. The statement of claim averred that the terms of sale were net cash. Appended to plaintiff’s statement was the following letter:</p> <p>“ Philadelphia, October 12, 1905.</p> <p>“Colonial Biscuit Company,</p> <p>“ 12th & Brown Streets,</p> <p>“ Philadelphia.</p> <p>“ Gentlemen :—</p> <p>“ Confirming the writer’s conversation with your flour buyer this morning, we hand you herewith by messenger four samples of flour representing lots as per memorandum below, which we offer subject to prior sale, at the prices annexed. The flour is to be sold in warehouse on net cash terms.</p> <p>“ Hoping to be favored with an order, we remain.</p> <p>“Yours very truly,</p> <p>“ [Signed] Edwards S. Dunn,</p> <p>“ Treasurer.”</p> <p>“Venus” 200 bbls. at 15th & Carpenter Sts. Price $3.75</p> <p>“F” 1090 “ “ 16th & Callowhill “ “ 3.50</p> <p>“100$” 365 “ “ 15th & Carpenter “ “ 3.25</p> <p>“D” 450 “ “ 16th & Callowhill “ “ 3.00</p> <p>Defendants’ affidavit of defense contained, inter alia, the following averments:</p> <p>The defendant company did agree to purchase from the plaintiff 335 barrels of 100$ flour at $3.25 in warehouse, but did not agree to pay net cash; on the contrary, the terms of the contract were that defendant company should pay for the same as it was hauled from the warehouse from time to time in accordance with the needs of the defendant’s business; that is to say, about sixty barrels per week, and. in pursuance of this contract the defendant company did haul, and pay for as hauled, the following, to wit: On November 14, 1905, thirty barrels ($97.50), and on November 27, 1905, thirty barrels ($97.50) ; in all $194.</p> <p>Defendant company denies that it confirmed the alleged terms of sale, and upon October 19,1905, or shortly thereafter, upon the receipt of the bill for 335 barrels and order for release of flour from the warehouse, your deponent, as treasurer of the ■company defendant, telephoned to the plaintiff company explaining to the secretary of the company the terms of the contract as herein set forth by your deponent, and thereupon the secretary of the company stated that Edward S. Dunn, the treasurer of the company, was in New York, and that the facts would be communicated to him, and upon his return some time thereafter the said treasurer called at the office of defendant company, and your deponent for the company denied that the company has purchased the said flour on any such terms without any opportunity for inspection, defendants’ contract having provided for deliveries from time to time would have enabled your deponent to examine the flour as hauled and delivered, to all of which the said Dunn replied that the company defendant was good for the money and that his company would sue for it.</p> <p>jError assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Landlord and tenant — Cropper—Contract—Execution—Leasing on shares.</p> <p>A cropper is one hired to work land and to be compensated by a share of the produce. Such a contract gives him no legal possession of the premises, further than as a hireling. The legal possession remains in the hirer or landlord, and hence the remedy by distress is not applicable to him.</p> <p>Leasing on shares is where the owner of a farm puts the worker of it into possession under an agreement to receive as compensation or rent a certain portion of the actual annual crop. In these cases the farms are not leased, but the owner occupies a dual position, being a tenant in common with the worker as to the crop, and remaining virtually in possession, as the worker is his laborer. Therefore, the owner cannot distrain, nor can the whole crop be sold for a debt of either owner or worker.</p> <p>Where a written agreement between an owner of a farm and another person shows that the latter is to cultivate the land and receive a one-half interest in the crops, but all moneys are to be paid to the owner, and after net proceeds ascertained, one-half thereof are to be paid to the cropper, a creditor who has obtained a judgment against the cropper cannot levy upon a “half interest” in crops upon the farm; but if it appears that the cropper was to furnish all the poultry, and the owner of the land was to have a one-half interest therein, the creditor of the cropper may levy upon the latter’s interest in the poultry.</p>

<p>Promissory note — Defenses—Affidavit of defense — Set-off.</p> <p>In an action by the last indorser on a promissory note against the maker of the note, which was payable to the maker’s order, an affidavit of defense is sufficient which alleges that the defendant indorsed the note, and delivered it to the second indorsee, that the plaintiff was not the owner of the note, but that the suit was brought by the plaintiff for the use and benefit of the second indorsee, and for the purpose of depriving the defendant of his just defense thereto, and preventing him from setting off against the payment of the note an amount claimed to be due from the second indorsee to the defendant.</p> <p>The Superior Court will not reverse an order of the lower court discharging a rule for judgment for want of a sufficient affidavit of defense, where the affidavit of defense sets forth a complicated state of facts, supporting a claim of set-off, and the facts alleged constitute a defense according to the reasonable and common understanding of the language.</p>

<p>Reargued. Oct. 16, 1906. In the matter of the vacation of Ruscomb street.</p> <p>The case was previously argued on October 13, 1905, and an opinion filed by Rice, P. J., on April 23, 1906. The case is reported in 30 Pa. Superior Ct. 476.</p>

<p>Appeal, No. 206, Oct. T., 1906, by defendant, from judgment of Q. S. Montgomery Co., June T., 1906, No. 42, on verdict of guilty in case of Commonwealth v. Edward Emmers.</p> <p>Indictment for discharging sewerage into the Schuylkill river. Before Swartz, P. J.</p> <p>At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.</p> <p>The only question involved was the constitutionality of the Act of April 22, 1905, P. L. 260.</p> <p>Error assigned was in refusing to arrest the judgment.</p>

<p>Criminal law — Statutory rape — Age of prisoner — Evidence.</p> <p>On the trial of an indictment for statutory rape of a female under sixteen years of age, where the commonwealth rests without offering any evidence of the age of the prisoner, or as to his identity as the person indicted, and without offering his appearance in evidence, it is reversible error for the court to submit the age of the prisoner to the jury on his appearance, without more.</p> <p>Criminal law — Practice, 0. & T. — Arrest of judgment — Sufficiency of the evidence.</p> <p>A motion in arrest of judgment is not the proper mode of raising the question as to the sufficiency of the evidence to warrant a conviction.</p>

<p>Appeal, No. 61, Oct. T., 1906, by defendant from judgment of C. P. No. 5, Phila. Co., Dec. T., 1904, No. 3,734, on verdict for plaintiff in case of Margaret Blaine and David G. Blaine v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial it appeared that Mrs. Margaret Blaine fell on an icy pavement on December 29, 1904, in the city of Philadelphia, and sustained serious injuries to her wrist. It appeared that at the place of the accident there were no ridges, but merely a general slippery condition caused by rain and freezing during the previous twenty-four hours.</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $700. Defendant appealed.</p> <p>Error assigned was in refusing motion for judgment non obstante veredicto.</p>

<p>Negligence — Licensee—Evidence—Contributory negligence.</p> <p>Where a person, goes into a factory building and enters the office by the ordinary and usual passageway to it, and subsequently after leaving the office goes into a room where he knew he had no right to be, and, in an alleged attempt to reach the office again, walks through an opening-made in the wall and is injured, he cannot recover damages for his injuries from the owner of the factory; and this is the case whether the room was light or dark.</p> <p>In entering or leaving a building, the visitor is bound to use the ordinary and customary place of ingress and egress, and if he adopts some other way he becomes a mere licensee and cannot recover for defects outside of or not substantially adjacent to the ordinary way.</p>

<p>Appeal, No. 79, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Phila. Co., June. T., 1905, No. 1,731, on verdict for plaintiff in case of Tbyele M. Lamb and Benjamin C. Lamb, copartners, trading as Lamb & Company, v. Charles B. Prettyman.</p> <p>Assumpsit to recover commissions on sale of real estate.</p> <p>At the trial it appeared that the defendant owned and controlled a number of houses in West Philadelphia, and that he exchanged them for a house at 2112 Spruce street. The introduction between the defendant and the owners of the Spruce street house was made by one of the plaintiffs. There was evidence that, prior to the introduction, the defendant mentioned the West Philadelphia houses to the plaintiffs, and asked them to get a deal on the houses. The defendant denied that he ever employed the plaintiff to act for him.</p> <p>Verdict and judgment for plaintiff for $1,036.07. Defendant appealed.</p> <p>¡Error assigned among others was in refusing to enter judgment upon defendant’s motion for judgment non obstante veredicto.</p>

<p>Oct. T., 1906, by. defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1905, No. 3,949, on verdict for plaintiff in case of Sarah Moore v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,250. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 192, Oct. T., 1906, by-Francis B. Reeves, from order of C. P. No. 1, Phila. Co., March T., 1906, No. .1, discharging rule to show cause why appeal should not be sustained in case of Francis B. Reeves from Audit of Accounts of “ Managers for the Relief and Employment of the Poor of the' Township of Germantown.</p> <p>Appeal from audit of accounts of managers for the relief and employment of the poor of the township of Germantown.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p> <p>The limitation on the tax collector’s commission was never meant to be revived. The managers had express power to pay the tax collector under the act of 1839. If the appellees were in error the conduct of the community has made their error. right: Steiner v. Coxe, 4 Pa. 13; Graham’s App., 1 Dallas, 136; French v. Cowan, 4 New Eng. Repr. 682; Davey v. Turner, 1 Dallas, 11; Lloyd v. Taylor, 1 Dallas, 17; Wartman v. Phila., 33 Pa. 202; Clark v. Dotter, 54 Pa. 215.</p>

<p>Appeal, No. 146, Oct. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., May T., 1906, No. 205, for plaintiff on case stated in suit of Luke Travis, Supervisor of Blythe Township, v. Lehigh Coal & Navigation Company.</p> <p>Case stated to determine right to a salary.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 48, Oct. T., 1906, by Robert J. Barr, from decree of O. C. Phila. Co., Jan. T., 1891, No. 492, amending prior decree in Estate of Margaret Dalton, deceased.</p> <p>Bill of review.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Check — Lost check — Indemnity—Banks and hanking.</p> <p>Where a check has been lost in the mail, and the maker upon notice thereof has stopped payment, and it appears that the payee requested that payment should be made by check mailed to him, and had refused to give a simple agreement to indemnify the payee against loss, he cannot thereafter recover the amount of the cheek by suit, without a prior tender of indemnity.</p>

<p>Appeal, No. 158, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1906, No. 8,506, making absolute rule for judgment for want of a sufficient affidavit of defense in case of H. E. Heisley v. the Economy Tool Manufacturing Company and the Philadelphia Boat & Engine Company.</p> <p>Replevin to recover possession of a planing machine and a lathe.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The affidavit of defense was as follows :</p> <p>The said defendant did not derive title to either the planing machine or the lathe described in the plaintiff’s statement of claim from the Economy Tool Manufacturing Company, or from either of the two lessors named in said statement, but did derive title and the right of possession to said two machines from a partnership known as the Philadelphia Boat and Engine Company, consisting of deponent, Henry L. Blatz and Jacques Stiegelmann, which partnership became the corporation defendant on March 10,1905, by virtue of a charter obtained under the laws, of the state of Delaware on said date. Prior to March 10, 1905, said two machines formed part of the assets of the aforesaid partnership. Said two machines became the property of said partnership on September 19, 1903, as part of the contribution of the said Jacques Stiegelmann to said firm, prior to which time the said Jacques Stiegelmann was in possession and use of said two machines in connection with the business then carried on under the name of the Laurel Machine Works on the premises in the rear of No. 1015 North Front street in the city of Philadelphia, on which premises, the said two machines remained continuously from September 19, 1903, until tliey were taken by the sheriff of the county of Philadelphia in obedience to the writ of replevin issued in this case.</p> <p>At the time when said two machines were transferred and delivered to the said defendant by the partnership aforesaid the plaintiff had no right, title or interest therein, and both said defendant and its predecessor, the partnership aforesaid, had no notice or knowledge of the existence of the two leases attached to and made part of the statement of the plaintiff’s claim filed herein; nor did said partnership at the time of its formation on September 19, 1903, have any notice or knowledge of the existence of said two leases. On April 14, 1903, the Economy Tool Manufacturing Company was adjudicated bankrupt and by virtue of said adjudication all right, title and interest of said Economy Tool Manufacturing Company in said two machines, if any it had, passed either to the trustee of its estate in bankruptcy or reverted to the respective lessors of said two machines.</p> <p>Deponent further avers that the said defendant had no knowledge or notice of the plaintiff’s alleged claim to said two machines until some time in the month of April, 1906, or more than a year after said two machines had come into the possession of said defendant. Prior to the making of the plaintiff’s demand for said two machines, as set forth in his statement of claim, said two machines had been continuously, openly and notoriously in the possession of said defendant and of its predecessor, the partnership above mentioned, since September 19, 1903, from and after which date no claim or demand was made either by the trustee in bankruptcy of the Economy Tool Manufacturing Company or by the lessors named in the leases attached to the plaintiff’s statement of claim or by the plaintiff in this case for possession of said two machines, or for rent for the same, or for compensation for the use thereof, until the demand made by the plaintiff as set forth in his statement of claim.</p> <p>Said defendant therefore denies that the plaintiff has any right, title or interest in either of said two machines, but, on the contrary, avers that it will prove its title thereto as above set forth at the trial of this case.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 225, Oct. T., 1906, by defendant, from judgment of C. P. Berks Co., Sept. T., 1905, No. 12, on verdict for plaintiff in case of Prospect Dye Works v. Federal Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Endlich, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court give binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for 11,344.50. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Telephone company — Borough—Contract—Sale—Lease—Affidavit of defense.</p> <p>In an action by a borough against a telephone company to recover on a penal bond which was conditioned to pay to the borough the penalty stated, if the company should “sell out, or in any manner be controlled by another company,” the statement of claim averred that the company had leased its lines to an individual for the term of 999 years. It was also averred that the object of the lease was to transfer the possession and control of the property to a company or companies unknown to the plaintiff. The defendant in its affidavit of defense denied that it had sold out to any other company, or was controlled by any other company, and averred that the lease was made in good faith and without any design that the possession and control of the company should be transferred to any other company or companies. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

<p>'Appeal, No. 102, Oct. T., 1906, by-defendant, from judgment of C. P. Northampton Co., Feb. T., 1905? No. 28, on verdict for plaintiff in case of William A. Rundle v. The Slate Belt Electric Street Railway Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The court charged in part as follows:</p> <p>[The plaintiff seeks to recover in this case because the company has omitted to do something that it should have done, or has done something that it ought not to have done. In other words, he says the company is to blame for this accident that' happened to him. And in order to fully understand this question, gentlemen of the jury, it is well for you to consider what the relative duties of a common carrier such as this electric street railway company are in regard to the people it carries for hire. This man paid his fare, and by reason of the payment of that fare there was a contractual relation between them, and it was the duty of this company to carry this man safely and to use all means possible to avoid any accident occurring that it could have foreseen, or ought to have foreseen (could have seen is probably expressing it correctly), and they should provide against such occurrences as the reasonable human foresight could see would happen, or would likely happen.] [1]</p> <p>[In such eases as this, and this has all been alluded to, the mere happening of an accident presumes that the company was negligent. In an ordinary case, if a man hurts you and causes you harm, you, being the plaintiff, would come into court; and the burden of establishing that negligence, showing that he is to blame for the occurrence, is upon you. But in cases of this character the law says this company has a higher duty than an ordinary person, and that the happening of an accident to one whom it has engaged to carry, one who is in its charge, imputes to them negligence and blame, and that they should produce evidence in the court to show that they were not negligent, and in that way the burden is shifted.</p> <p>Understand, gentlemen, considering all this case there nevertheless must be found by you that the defendant was negligent in order that you should bring in a verdict against him. The only effect of the rule is that the defendant must show the absence of it, and the' burden is upon him to do that. But* still the theory of recovery is that negligence was committed.] [2]</p> <p>[And the plaintiff claims. that he is permanently disabled; not totally disabled, but permanently, partially disabled, to use two adverbs; and it is a matter for you to decide whether or not that statement is borne out by the testimony in this case. And if you find that he is permanently disabled, then the question of his expectancy of life might come into this case, and would come into this case, and the Carlisle tables, as they are known, have been introduced into this case ; and it is my duty to warn you that these tables are based upon the experience of insurance companies and they take a large number of people and, from their experience, they can find out what the average time is that a man of such age in full life will live, and they may be of some aid to you if you can get that far in the case, to determine how long it is likely that the plaintiff in this case would live. But they are not a positive guide to you; they are not binding upon you. Mr. Bundle might die to-morrow, or he might live sixty years, notwithstanding the Carlisle tables. You, as reasonable men, understand that. The duration of his life cannot be told, cannot be found out. It depends upon his physical condition. It depends upon his acts and conduct, and somewhat upon his social condition in some cases. And so with this warning I will state that these tables may be of some aid to you — if you find out that Mr. Rundle is permanently disabled — may be of some aid to you in ascertaining hów long he is liable to live.] [3]</p> <p>Defendant presented this point:</p> <p>7. It appearing from the plaintiff’s own evidence that he continued to.receive his usual and regular monthly wages as assistant superintendent, without abatement or interruption from the time of the injury, and that, with the exception of a week or ten days, he performed duties of his employment, although for a time they might not have been to the same extent or as efficient as before, the plaintiff is not entitled to recover as part of his damages, any compensation for loss of earnings. Answer: This is refused; although I am glad this point was submitted, because the court would have probably overlooked this. The evidence in this case is that the slate company, in which the plaintiff was employed, paid their monthly men, as-they call them, if they were injured or got sick, irrespective of the work that they performed; and there is some evidence in this case which would indicate that this amount was'paid to the plaintiff in this case. No, the evidence is undoubted that the amount was paid to the plaintiff in this case. I think it was ten days from the time that the accident occurred.</p> <p>Mr. Stewart: The whole period.</p> <p>The Court: And that for ten days he was disabled and could not go to the quarry, and that after the ten days, he testified, that, in order to occupy his mind, he went to the quarry, but that when he was at the quarry he performed certain duties; that he directed the men, and gave advice and so on. Now, these two facts are before you, the fact that the wages were paid even during the period when he did not work anything; and that the company paid their monthly men whenever they were hurt or got sick, irrespective of what they did. Now, if he was in the quarry and was occupying his position, and the relation between the employer and him was such that he was paid for what he was doing there, even if he did not perform his full duties, then he should not recover. If, however, you can find from the case, or rather, you do find from the case, that this amount was paid to him, not for the work he did there, but as a gratuity, in other words, that the company made him a present and that it was not paid him for the labor performed, then you can give him an amount which he has lost by reason of his loss of wages, irrespective of the- amount which he received from his company as a present. The presumption is that when a man goes to work at such a place that he is there by reason of his usual occupation; but there is enough in this ease, in my mind, to submit it to you, whether the amount he received after the ten days of idleness was a present from the company, or was wages for the services he performed in and about the quarry. [9]</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned were (1, 2, 3, 9) above instructions, quoting them.</p>

<p>Appeal, No. 234, Oct. T., 1905, by defendant, from judgment of O. P. No. 4, Phila. Co., JuneT., 1904, No. 3,527, on verdict for plaintiff in case of James Brown and Jane Brown v. Robert J. Milligan.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for James Brown for $68.00 and for Jane Brown $96.00.</p>

<p>Liquor law — Revocation of license — Record—Appeal—Evidence.</p> <p>An appeal from an order revoking a liquor license does not bring into the appellate court the evidence taken in the case. Where the petition shows that the charge against the liquor dealer was selling at wholesale at places outside of and away from the distinct place where he had authority to sell, the appellate court will assume that the lower court properly exercised its discretion in making the order.</p>

<p>Appeal, No. 230, Oct. T., 1906, by plaintiff, from order of C. P., No. 3, Phila. Co., March T., 1906, No. 4,249, discharging rule for judgment for want of a sufficient affidavit of defense in case of Allen R. Evans v. Gustav Lyon and Jonas Lichten, Copartners, trading as Lyon, Licbten & Company.</p> <p>Assumpsit to recover balance alleged to be due on a contract.</p> <p>From the record it appeared that the balance claimed was alleged to be due for goods of the plaintiff sold by the defendants on commissions, as agents. The defendants alleged in their affidavit of defense that the plaintiff had wrongfully terminated the contract before the time fixed by its terms. They claimed to set off against the balance apparently due certain moneys which had been expended by them after the breach in endeavoring to carry out the contract.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 203, Oct. T., 1906, by plaintiffs, from orders of C. P., No. 1, Phila. Co., June T., 1902, No. 4,508, discharging rules for leave to file an amended statement, and to compel the filing of a second affidavit of defense in case of Commonwealth to use of Charles Beckingham v. James E. Magee et al.</p> <p>Assumpsit on a bond.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were orders discharging the rules referred to in the opinion of the Superior Court.</p>

<p>Appeal, No. 198, Oct. T., 1906, by-defendant, from judgment of G. P. Bradford Co., Sept. T., 1905, No. 225, on verdict for plaintiff in case of Alton T. Swingle v. Sun Insurance Office.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,306.04. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Practice, C. P. — Parties—Warranty—Joint warrantors.</p> <p>An action on a general warranty in a joint deed cannot be maintained against the personal representatives of the deceased warrantors jointly. Death severs the joinder, and the right of action on the warranty remains against the survivor.</p> <p>Warranty — Deed—Measure of damages.</p> <p>In an action on a general warranty, where it appears that the plaintiff has been in peaceable possession of the premises for a long period of time, the court cannot give a binding instruction to the jury to taire the purchase money of the interest as to which a breach is claimed, and add interest thereto regardless of possession, use, improvements, and the liability of the plaintiff for mesne profits.</p> <p>Warranty — Breach—Eviction—Possession.</p> <p>In an action on a general warranty contained in a deed plaintiff cannot recover, where it appears that there was no binding judgment or decree sufficient to amount to his eviction either actual or constructive.</p> <p>The orphans’ court has no jurisdiction to try and settle disputed titles and rights of possession of real estate in a partition proceeding.</p> <p>Where a person is in quiet and peaceable possession of land under a deed of general warranty purporting to convey it all, and subsequently the orphans’ court awards partition of this land and adjoining land under a petition which merely sets up an ex parte claim of title, and the grantee under the warranty deed purchases one of the interests awarded in the partition, he cannot make such a purchase a basis for .an action on the general warranty. In such a case the facts that the plaintiff had a good title to a partial interest in the land, and that the defendants did not appear and defend in the partition proceedings, are immaterial.</p>

Appeal, No. 38, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1904, No. 1,715, for defendant non obstante veredicto in case of Pasquale Piro v. Samuel R. Shipley et al., trustees under the will of Stephen Smith, deceased. Trespass to recover damages to real estate. Before Biddle, P. J. The opinion of the Superior Court states the case. Error assigned was in entering judgment for defendant non obstante veredicto.

<p>Deceit — Evidence — Burden of proof — Fraud — Misrepresentations — Non-suit.</p> <p>In an action of trespass for deceit against a stockholder and officer of a gold mining company, to recover damages for losses alleged to have been sustained by false representations made to the plaintiff by the defendant on the strength of which the former purchased the stock of the company, the plaintiff is bound to show not only that the representations were in fact false, but also that the defendant knew that they were false at the time he made them. If the plaintiff fails to show by his proof that the defendant knew-that the representations were false, he will be non-suited.</p>

<p>Appeal, No. 57, Oct. T., 1906, by defendant, from decree of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 2,556, on bill in equity in case of Samuel Morrison v. William J. Blake.</p> <p>Bill in equity to enforce a trust. Before Sulzberger, J.</p> <p>The court entered a decree in accordance with the prayer of the bill.</p> <p>Rrror assigned in No. 57 was the decree of the court.</p> <p>Mrror assigned in No. 177 was order for the attachment.</p>

<p>Appeal, No. 177, Oct. T., 1906, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 2,556, making absolute rule for order for attachment in case of Samuel Morrison v. William J. Blake.</p>

Appeal, No. 193, Oct. T., 1906, by plaintiff, from order of C. P. Lebanon Co., Sept. T., 1904, No. 50, refusing to take off nonsuit in case of Thomas Bomberger V. American Iron & Steel Company. Trespass to recover damages for death of a horse. Before Ehrgood, P. J. The facts appear by the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 47, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Go., May T., 1902, No. 536, discharging rule for judgment for want of a sufficient affidavit of defense in case of Joseph Schlitz Brewing Company v. Max Rosenblutli.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court discharging the rule.</p>

<p>Appeal, No. 45, Jan, T., 1907, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1904, No. 292, on verdict for plaintiff in case of William H. Leisenring and Phoebe Z. Leisenring v. Nanticoke Borough.</p> <p>. Trespass to recover damages for personal injuries. -Before Halsey, J. '</p> <p>The court charged in part as follows :</p> <p>It appears that on December 16, 1902, Phcebe Leisenring, this wife plaintiff, lived in Nanticoke, at No. 15, I think, Main street. She felt it incumbent, upon her that morning to go to see a relative at the corner of Arch and Walnut streets, who, it is alleged, was ill. She passed from her house on Main street to Broadway, on the corner of which was Meyers’s drug store, passed down Broadway on the left-hand side toward Arch street, some eighty feet or more, where there is a crossing that enters from Broadway into the stables on property that was formerly Gruver’s hotel. When she approached this crossing, between half-past eight o’clock in the morning and nine o’clock, she suddenly slipped, she said, her feet going out from under her forward ; she fell backward on the heel of her left hand, and one of the two bones of the left arm, as a consequence of that fall, was broken. The radius was broken, and the ulna, the other bone of the arm, was sprained or dislocated, it did not appear clearly as you will recollect; it was probably dislocated — the radius was broken and the wrist was dislocated. .... It is important for you to determine first just wliefe this lady fell. She alleges in her declaration that in the said borough of Nanticoke there is, and was, at the time complained of, a street called Broadway, extending from Main to Arch street in the said borough, on the westerly side of which said Broadway there was a sidewalk extending from said Main to said Arch street. At the point about midway between Main and Arch streets an alley intersects said Broadway. Noth withstanding its duty in the premises the said borough of Nanticoke, at the point where said alley intersects said Broadway, defectively constructed, or permitted to be defectively constructed and maintained, the said sidewalk so that a hollow or depression was created therein, and negligently allowed ice to form and remain in said hollow or depression, and that this ice was for a long time, to wit: for several weeks, negligently allowed to gather, and with snow and slush, so that said point appeared to be as safe as the other part of said'sidewalk.</p> <p>The vital, narrow edge of the issue here, so far as a conclusion as to recovery or no recovery is concerned, depends upon your finding as to where this accident occurred. Mrs. Leisenring says in her testimony that at this alley, which was a crossing, as I said before, from Broadway to the stable, made of cobblestones and paving stones, there was a depression, caused by the fact that there had not been exercised due care and caution on the part of this municipality in keeping it in proper repair and condition, which on this day was filled up with snow and ashes and ice ; that on top of this ice she fell; that it was on this crossing. The O’Brien girl did not see her fall — that is my recollection, but it is not a conclusion for you — but she heard the alarm and she looked around and saw a man — the man was Hopple — who was there to aid her to get up. She testifies she went over and assisted' her, and that where she found her was on the alley. The Butscavitch girl immediately followed the O’Brien girl, and .she says it-was not on the crossing.</p> <p>This, substantially, particularly as to where the accident occurred, is the testimony on the part of the plaintiffs. There is corroborative testimony, also, on the part of the plaintiffs given by the husband that he heard of the wife’s injury, started down to the locality, and saw evidence on the surface that someone had fallen at that point. On the other hand, there is the testimony of the Reilly girl, who was coming up Broadway to Main street, that she had just passed over on the crossing, passed Mrs. Leisenring and had occasion to turn around — she did not say she saw her fall — that she fell between the first and second posts in front of the hotel, the posts, as you will recollect, being the supports to the awning. The witness Hopple says he heard this lady give an outcry for relief and he saw her, and that she fell in front of the hotel. Kulp, the butcher, says he saw her, and that she fell in front of the hotel. Abbott, the hotel man, says he was looking from the window and saw her fall in front of the hotel.</p> <p>This is the issue for you to determine, first, as to where she fell, and this you must do from the credible testimony in the case. Looking over the witnesses, studying them and their manner upon the witness stand, you must determine where the truth lies as to just where this accident occurred that caused this lady this injury; because, undoubtedly, she was injured. If you find she was injured in front of the hotel and was not injured as alleged in the statement, you need proceed no further with the consideration of the case. If you find she was injured, as she alleges, then you have for further consideration the allegation of negligence on the part of the defendant borough.</p> <p>It has been held, and it is the law, that it is the duty of a municipal corporation having the exclusive control of its streets to see that they are kept in a condition that is ordinarily safe for the passage of persons and property; and if that plain duty is neglected and thereby injury results to anyone, the corporation is primarily liable to the injured party. A municipality is liable for negligence of its general duty to see that the streets and sidewalks thereof are kept in a reasonably good and safe condition. Another essential as to the applicability of this rule is as to notice. The municipality must have notice of the condition of a street that is alleged to be out of condition before there can be a recovery against it as a consequence of any injury sustained by reason of negligence of duty. There are two kinds of notice. There is actual notice and there is constructive or implied notice. Actual notice is notice that is given directly to some duly authorized representative of the municipality that a certain street at a certain point is out of repair. Constructive or implied notice is the notice which the borough is presumed to have when a defect in a public highway has existed so long that the borough should reasonably take notice of it and remedy it. If the defect complained of in this case — and you find that such defect was the cause of the injury to this lady — existed so long that in your opinion the borough should have known it, and the plaintiff was free from negligence that contributed to the injury, the plaintiffs might recover compensatory damages and no more. As to the legal duty of a municipality in a case of this kind, it has been held that persons are not necessarily prohibited from using a street of a borough because it is defective or may be partly obstructed. While such conditions may not of themselves prevent the use of a street, they, nevertheless, impose upon the persons using it a higher degree of care than if the street were free from obstructions. In such cases the party traveling the street must use that degree of care demanded by the 'circumstances of the particular case. When the testimony shows a defect 'of such character that the street can be used with safety by the exercise of reasonable care, notwithstanding its defective condition, it is for the jury to determine whether the injured party performed the duty required of him under the circumstances. It has been held that one is not precluded from recovery for an injury received from a defect in a road, though knowing it was defective, unless the danger was so apparent that in the use of ordinary care he ought not to have undertaken the passage. A person who uses a street or a highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous and therefore avoid it, that a trial court can say as matter of law that the person using the more dangerous route is guilty of contributory negligence. It is nob necessary negligence to attempt to pass over even a noticeable accumulation of ice on the pavement. That may depend upon the size and shape of the accumulation, the obviousness and magnitude of the danger, the means .at hand of avoiding it and other circumstances. In the present case the plaintiff had passed over the obstruction the evening before, and whether it was prudent in her to try to do so again is for the jury.</p> <p>That is what the Supreme Court said in a case from which I have read. Therefore, it is for you, under these rules, as I have given them to you to- determine, whether this municipality was negligent in not maintaining in an ordinary and proper condition this street at the point where this lady alleges she was injured.</p> <p>The defendant presented the following point:</p> <p>If the jury believes that Mrs. Leisenring’s fall was caused by the general slippery condition of the sidewalk, there can be no recovery against the defendant in this case. Answer: Standing as it does there we will have to negative that point.</p> <p>Verdict and judgment for Phoebe A. Leisenring for $1,000, and for William H. Leisenring for $683.44. Defendant appealed.</p> <p>Errors assigned among others were (1) refusal of binding instructions for defendant; (2) refusal of defendant’s motion for judgment non obstante veredicto; (3) answer to defendant’s fourth point, quoting it.</p>

<p>Election law — Appeals—Record—Dismissal of appeal.</p> <p>An appeal to the Superior Court in an election contest will be dismissed where the record is not printed and there is nothing to show by whom, or upon whose petition, or on what grounds the election was contested.</p>

<p>Appeal, No. 51, Jan. T., 1907, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 554, on verdict for plaintiff in case of Petro Petri v. Dominick Carracciolo.</p> <p>Motion to quash appeal.</p> <p>The fourth reason assigned in support of the motion was as follows:</p> <p>4. Because there was no exception in the court below to rulings on the points presented by plaintiff or to the charge, and no request by the counsel for appellant to the court, before verdict for an order directing the charge to be made a matter of record for purposes of enabling them to except thereto.</p> <p>1. There must be an exception noted to the charge before verdict, to enable a complaining party to successfully assign errors thereto afterwards.</p> <p>2. Counsel must request before verdict that the charge be reduced to writing from the stenographer’s notes, and filed of record, and that he does so request, must appear of record. If the record does not so show, his appeal will be quashed on motion of the opposite counsel: Curtis v. Winston, 186 Pa. 492.</p> <p>The above case is cited as authority in quashing the appeal of Patterson v. Groetzinger, 10 Pa. Superior Ct. 327.</p> <p>Where no exception is taken, the book should be quashed: Finch v. Conrade’s Executor, 154 Pa. 326 ; Tasker v. Sheldon, 115 Pa. 107.</p>

<p>Appeal, No. 52, Jan. T., 1907, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 453, on verdict for plaintiff in case of The Crane Marks Company v. A. A. Gordon.</p> <p>Motion to quash appeal.</p>

<p>Appeal, No. 257, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 1,891, dissolving attachment under act of 1869,’ in case of Charles Ingram and Alfred Armitage, trading as Armitage Brothers, v. Charles C. Orangers.</p> <p>Motion fo quash appeal.</p>

<p>Equity — Equity jurisdiction — Remedy at law — Multifariousness — Fraud.</p> <p>Jurisdiction in equity depends not so much in the want of a common-law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court.</p> <p>Equity seeks to prevent a multiplicity of actions by disposing in one proceeding of all the questions which will arise affecting many persons. To oust jurisdiction the remedy at law must be full, adequate, complete and reasonably convenient.</p> <p>Where a complainant in a bill in equity shows in his bill that four of the defendants had received either by sale or hypothecation five county bonds from a person to whom the plaintiff had delivered the bonds solely for the purpose of exchange into a bond of a borough, and it also appears that the county is made a party to the bill to prevent a redemption of the bonds or a payment of interest thereon, it is reversible error for the court to dismiss the bill either on the ground that there was an adequate remedy at law or because the bill was multifarious.</p>

<p>Contract — Construction contract — Efficiency of plan — Evidence—Conflicting evidence — Case for jury.</p> <p>The contractor in a construction contract is bound to construct according to the directions given him, and his obligation does not bind him for the efficiency of the plan adopted.</p> <p>In an action by a contractor against a water company to recover a balance alleged to be due for the construction of a tunnel and ditch for a water pipe, where the defense set up is that the plaintiff had failed in material particulars to perform the work according to the plans, and that there had been a long delay for which the contract stipulated liquidated damages, and the evidence on both subjects is conflicting, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.</p>

<p>Appeal, No. 155, Oct. T., 1906, by defendant, from decree of C. P. Schuylkill Co., March T., 1906, No. 193, awarding a divorce in case of Otto H. Schulze v. Katie Schulze.</p> <p>Libel for divorce.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding divorce.</p>

<p>Appeal, No. 9, Jan. T., 1907, by plaintiff, from judgment of C. P. Monroe Co., Feb. T., 1905, No. 9, on verdict for defendant in case of Wade H. Mervine v. Thomas Arndt.</p> <p>Assumpsit for price of goods sold at auction. Before Staples, P. J.</p> <p>At the trial plaintiff presented this point:</p> <p>If the jury believe from all the evidence that the sale of the potato digger to Thomas Arndt, the defendant, was at a public sale or vendue; that the said defendant bid the price or sum of $45.25 on said digger, and that was the highest bid on the same; that after the digger was knocked down to the defendant, in his presence and hearing, the defendant made no objection to the sale, and further, that the plaintiff, nor anyone lawfully acting for him, prevented the defendant from taking possession of and removing the digger, then the said sale was executed upon the digger being so knocked down to the defendant, the only thing that remained was payment for the same, and the plaintiff is entitled to recover the price so bid for the same. Answer: Refused.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) in giving binding instructions for defendant, and (6) answer to point as above.</p>

<p>Appeal, No. 17, March T., 1907, by Cyrus S. Wheeler, from order of Q. S. Clinton Co., Jan. T.', 1907, No. 11, refusing a liquor license.</p>

<p>Appeal, No. 20, March T., 1907, by Charles W. Seasholtz, from order of Q. S. Clinton Co., Jan. T. 1907, No. 62, refusing a liquor license.</p>

<p>Appeal, No. 18, March T., 1907, by T. H. Hevner, from order of Q. S. Clinton Co., Jan. T., 1907, No. 39, refusing a liquor license.</p>

<p>Liquor law — Petition for license — Time of filing — Act of May 13, 1887, P. L. 108.</p> <p>The requirement of the Act of May 13, 1887, P. L. 108, that every application for a liquor license shall be filed three weeks before the first day of the session at which the same is to be heard is mandatory; and the court has no authority to grant a license where the application has been on file for only nineteen days before the first day of the session.</p>

<p>Appeal, No. 20, March T., 1906, by defendant, from order of C. P., Lycoming Co., Sept. T., 1900, No. 165, refusing to open judgment in case of C. B. Bastían v. G. H. Paulhamus.</p> <p>Rule to open judgment.</p> <p>Hart, P. J., filed the following opinion.</p> <p>This is an application to open a judgment entered on a judgment note given by the defendant to the plaintiff for medical attendance and medicine, and to let the defendant into a defense.</p> <p>The evidence shows that the plaintiff, a practicing physician, attended different members of the family of the defendant professionally, and more particularly the wife of the defendant, from 1897 to 1900.</p> <p>In 1897 defendant’s wife gave birth to her sixteenth child. The plaintiff attended her in that confinement. The patient did not get along well thereafter and plaintiff was frequently called in to attend her and treat her. The patient did not improve under the treatment, had much pain and distress, and her mind more or less affected, and was finally taken to the Williamsport- Hospital, where an examination made by Dr. Glosser and Dr. Nutt showed a diseased uterus — “the womb much injured and out of place,” the uterus much inflamed and showing what the physicians “supposed might be the beginning of cancer.” An operation was performed and the uterus removed, after which the patient regained her health and increased in weight from ninety pounds to 140 pounds.</p> <p>The plaintiff treated the patient for womb disease, as is plainly shown by the testimony of the defendant. He says, “ Pie came and visited her and gave her local treatment occasionally. Q. What were the treatments ? A. I do not know, really. Some local treatment that he inserted on the womb. Q. Did he tell you at any time what was the trouble? A. No, he never told of the condition she was in.</p> <p>Dr. W. E. Glosser, who assisted at the operation, is called as a witness for the defendant, who gives it as his opinion that the condition of the uterus was due to a tear of the cervix at childbirth, but cannot say' at which birth, might have been at any one of the sixteen, most likely at first or second, and which he says is of frequent occurrence ; and says, “sometimes these tears heal up themselves, they heal up to such an extent that they never give any trouble afterwards, but where a woman bears children frequently they are usually kept irritated instead of getting better of their own accord. - Sometimes they treat them locally, sometimes with very good effect, sometimes with practically no effect.” “ Q. From the examination that you made before the operation, state whether or not, in your opinion, the attending physician had used proper care and skill in treating this womb? A. This is a question you can’t tell; because a case may look one way one day, and may look entirely different to another physician who is equally skilled.”</p> <p>The witness did not say that the plaintiff’s treatment was unskillful or negligent, and says the operation was performed in time to effect a cure. That operations are' not performed in over ten per cent of cases of uterine tears, and again says there was no evidence of negligence on the part of the plaintiff in his treatment of the case.</p> <p>Negligence is not presumed in any case, and before the defendant can avail himself of such defense to this judgment, he must prove negligence by the testimony of witnesses competent to judge of such negligence.</p> <p>The only witness called competent to testify upon the question of the plaintiff’s negligence is Dr. Glosser, rvho does not testify that the plaintiff was either negligent or unskillful, but on the other hand positively testiñés that he discovered no evidence that would justify a conclusion from a medical standpoint that the treatment followed by the plaintiff was not proper and such as might have been followed by a skilled physician.</p> <p>DeLong v. Delaney, 206 Pa. 226; Wurdemann v. Barnes, .92 Wis. 206 (66 N. W. Repr. Ill) ; Wood v. Barker, 49 Mich. 295 (13 N. W. Repr. 597) ; Spaulding v. Bliss, 83 Mich. 311 (47 N. W. Repr. 210), and kindred cases, establish the rule that medical testimony is necessary to establish the fact as to whether or not a certain treatment was negligent or not; and that without the aid of such testimony no recovery can be had for negligence, and for the same reason could not be made available as a defense in resisting a claim for payment of medical services rendered.</p> <p>And now, February 12, 1906, rule discharged.</p> <p>Error assigned was the order of the court.</p>

<p>Costs — Criminal law — Taxation of costs — Appeals—Record—Evidence.</p> <p>An appellate court will not review a taxation of costs by the common pleas where the adjudication complained of relates to the number and materiality of the witnesses in attendance, length of time they were in attendance, the number of miles traveled by them, or by the officer or other person serving the subpcena, and similar matters of facts. These matters cannot be considered because the evidence upon which they are based is not brought up with the record. Errors of law, however, apparent on the face of the record will be reviewed. The same rule applies to an appeal from the taxation of costs by the quarter sessions.</p> <p>Where, in a criminal case, the commonwealth pays costs which are wholly unauthorized by law, and the prisoner has no opportunity to object until the costs are taxed against him at the end of his term of imprisonment, he is not estopped from objecting to the illegal costs taxed against him.</p>

<p>Appeal, No. 19, March T., 1907, by Richard J. Free, from order of Q. S. Clinton Co., Jan. T., 1907, No. 41, refusing a liquor license.</p> <p>Petition for a liquor license.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Taxation — Telephone and telegraph companies — Incense tax — Affidavit of defense.</p> <p>In an action by a borough against a telegraph and telephone company to recover a license tax on poles and wires of #1.00 and #2.50 respectively per annum, an affidavit of defense is sufficient to prevent judgment which avers that the license tax was not based upon the cost of inspection, and that it was more than twenty times the amount that might have been, or could possibly be, incident to such inspection.</p>

<p>Corporations — Foreign corporations — Registration—Inspection of certificate — Act of April 22, 1874, P. L. 108.</p> <p>Under the Act of April 22, 1874, P. L. 108, relating to the registration of foreign corporations, the certificate of registration may be kept in a safe in the office of the company, instead of being hung up on the wall for public inspection.</p>

<p>Poor laws — Settlement—Quasi settlement — Appeals.</p> <p>The court of quarter sessions has power to remove a pauper from the place where there is no pretense of settlement to the place of quasi-settlement, which, as between two contending poor districts in such a situation, is liable for the support of such person.</p> <p>Assignments of error in an appeal from an order of removal which do not follow the exceptions to the points of evidence or of law found by the court below, will not be considered by the appellate court.</p>

<p>Appeal, No. 24, Jan. T., 1906, by plaintiff, from order of, C. P. Luzerne Co., Oct. T., 1903, No. 145, refusing to take off nonsuit in case of Bridget Ryan, Administratrix of the Estate of Mary Menningham, deceased, v. Prudential Insurance Company of America.</p> <p>Assumpsit on a policy of life insurance. Before Wheaton, J.</p> <p>On motion to take off nonsuit, Wheaton, J., filed the following opinion:</p> <p>The defendant, on March 11, 1901, and October 20, respectively, issued two policies of insurance'on the life of plaintiff’s decedent.</p> <p>Both of these policies afterwards lapsed for failure to pay premiums.</p> <p>December 3, 1902, the insured made a written application for a renewal or revival of said policies.</p> <p>This application contained the following provisions: .“ I hereby declare that I am in as good state of health as when the said policies were issued, and having allowed them to become lapsed I wish to renew them, upon the understanding that they will not be in force, although I now pay the arrears, until the company shall have consented to .revive the same.”</p> <p>At the time of making the application the applicant gave to the local agent the amount of the arrears, $10.00, a revival receipt containing the following provision : “ Under no circumstances will the company be liable under said policy in case of default, until the policy has been revived on the books of the company and the money credited in the premium receipt book belonging to said policy.”</p> <p>At the time when the application to revive was made the applicant was sick; she died fifteen days afterwards.</p> <p>On December 5 or 6, 1902, the collector to whom the application to revive had been given by the applicant, turned it over to the local cashier, and it was then forwarded to the home office of the company at Newark, New Jersey, with a report of the collector that the applicant was sick, but recommended that as a good advertisement that the policies be revived. The company, however, declined to renew or revive the policies, and so reported to the local agent.</p> <p>The $10.00 were then offered to plaintiff, who was a sister of the applicant, but who had not at that time taken out any letters of administration. They were refused by her.</p> <p>The plaintiff claims that there was no offer to return the money until about January 9, 1903.</p> <p>The failure of the company to act promptly upon the application to' renew is the basis of the plaintiff’s claim.</p> <p>The applicant’s right to a revival of her lapsed policies, in the light of the terms imposed by the company, and assented to by her, was no greater than her right to receive a policy upon an original application therefor. This being the case, in the absence of a stipulation as to the time within which the company should act, the mere lapse of two weeks would not in itself warrant a. presumption of acceptance. Particularly would this be true where, as in the case at bar, the application contained a misrepresentation as .to the health of the applicant.</p> <p>It must be borne in mind that the applicant died on December 18, 1902, fifteen days after the application to renew was made by her.</p> <p>It can hardly be argued that the failure of the company to take action by way of accepting or rejecting her application could continue after her death.</p> <p>As to the return of the money, there appears to have been no one who had any lawful authority to receive it after the applicant’s death, until letters of administration were taken out, which was not until 1903.</p> <p>Npon the whole case we are of the opinion that the non-suit was properly entered.</p> <p>Rule to take off the nonsuit is therefore refused.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Adverse possession — Title—Evidence—Trespass q. c. f.</p> <p>. A claim of title by adverse possession to a tract of unimproved woodland adjoining a tract of land on which the claimant resides and to which he has title by deed, cannot be sustained by evidence merely that he cut firewood from time to timé, took some timber from the land, and made a road thereon to enable him to remove the timber.</p>

<p>Appeal, No. 7, Feb. T., 1906, by-plaintiff, from order of Q. S. Eycoming Co., March T., 1906, No. 73, removing a pauper in case of Overseers of the Poor of the Poor District of Shrewsbury Township, Lycoming County, v. Overseers of the Poor District of Penn Township, Lycoming County.</p> <p>Petition for order of removal.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned are set forth in full in the opinion of the Superior Court.</p>

Appeal, No. 219, Oct. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1895, No. 1,454, M. L. D., on verdict for plaintiff in case of City of Philadelphia v. Masonic Home of Pennsylvania. Scire facias sur tax lien. Before McMickeal, J. See 160 Pa. 572. At the trial it appeared the taxes in question were for the year 1894.

<p>Appeal, No. 367, Oct. T., 1906, by defendant, from order of Q. S. Phila. Co., Oct. T., 1906, No. 9,822, for support in case of Commonwealth v. Isaac Isaac-man.</p> <p>Warrant for nonsupport. Before Carr, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Fish laws — Pollution of streams — Act of May 29, 1901, sec. 26, P. L. 302.</p> <p>The twenty-sixth section of the Act of May 29, 1901, P. L. 302, provides as follows: “That from and after the passage of this act it shall be unlawful to fish in any waters in this commonwealth with dynamite, nitro-glycerine, torpedoes, electricity, quick-lime, or with-any kind of explosive or poisonous substances; or to place such substances in any waters whatever, except for engineering purposes, when written permission has been given therefor by the proper national, state, city or county official or officials.” Held (1), that the act applied in its prohibition to the deposit in streams of non-explosive substances of a poisonous kind; (2) that the placing of explosive or poisonous substances in a stream need not be directly connected with the catching of fish; (3) that the word “place” did not mean that the poisonous substances must directly pass from the hand into the stream, but contemplated an intentional act proximately connected with the introduction of the poisonous substances into the stream; (4) that in proving the commission of the prohibited act it is not necessary to prove that the accused was impelled thereto by an evil motive to destroy the fish, but he may be convicted by showing that, although engaged in a lawful business, he intentionally discharged poisonous substances employed in his business so that such substances flowed into the stream.</p> <p>Constitutional law — Title of act — Fish law — Act of May 29, 1901, P. L. 302.</p> <p>The title of the Act of May 29, 1901, P. L. 302, is sufficient to cover the prohibition contained in section 26. of the act, forbidding the placing of explosive or poisonous substances in any waters whatever.</p> <p>An owner of a dye works who deposits in a stream poisonous substances which destroy the fish therein, may be convicted and punished for violating the provisions of section 26 of the Act of May 29, 1901, P. L. 302.</p>

<p>Appeal, No. 139, Oct. T., 1906, by plaintiffs, from judgment of O. P. Huntingdon Co., Sept. T., 1903, No. 33, on verdict for defendants in case of Jacob F. Trexler and John L. Trexler v. J. Murray Africa and John Edelblute.</p> <p>Trespass to recover damages' for injuries to land.</p> <p>The opinion of the Superior Court states the case.</p> <p>When the plaintiff was on the stand the following offer was made:</p> <p>Mr. Waite: I propose to show that the witness did not know that the John Patton tract had been sold on June 13, 1898, until more than two years thereafter, when it was too late to redeem it, for the purpose of showing good faith on the part of the plaintiff.</p> <p>Mr. J. S. Woods : That is objected to as immaterial and inadmissible. It was the duty of the plaintiffs if their land was sold to redeem it and to see that they were sold, and they cannot plead that negligence of duty here.</p> <p>The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for the plaintiffs. [1]</p> <p>Mr. Waite: I propose now to prove by the witness on the stand that he was informed by J. D. Kenned3r of the fact that these two tracts were advertised by the county treasurer of Huntingdon county for sale on June 13, 1898, that this notice came to him some two weeks prior to the time when the property was sold.</p> <p>Mr. Bailey: That is objected to. The court has already permitted witness to testify in chief that he had information that the land involved in this controversy was advertised for sale; the fact of the source of that information, from whom it was derived, is immaterial.</p> <p>The Court: We do not think it is evidence. Objection overruled. Bill of exceptions sealed for plaintiff.</p> <p>Third assignment of error. The court erred in rejecting the following offer in evidence.</p> <p>Andrew Shuldt, witness on the stand.</p> <p>Mr. Waite: I propose to prove by the witness on the stand that J. L. Trexler came to the office of the county commissioners of Huntingdon county prior to the treasurer’s sale of the John Patton tract in 1898, and inquired as to the place of paying the taxes and was directed to the county treasurer’s office. This for the purpose of showing good faith on the part of the plaintiff, John L. Trexler, who has testified that he made an honest effort to pay the tax.</p> <p>Mr. Bailey: It is objected that anything done or said by the witness to any person other than the county treasurer is inadmissible.</p> <p>Mr. J. S. Woods: We propose to prove by Mr. Spyker that the fee for advertising a tract of land at treasurer’s sale is fifty cents, to be followed by proof that the taxes on the Smith tract amount to a certain amount of money, to which was added fifty cents ; that John L. Trexler gave a check to Henry Musser which was deposited in the Union National Bank, on the First National Bank of Lancaster, for the exact amount of the taxes on the William Smith tract, with fifty cents added; for the purpose of contradicting John L. Trexler when he said he paid all the taxes that were demanded of him.</p> <p>Mr. Waite: We object:</p> <p>1. That John L. Trexler did not testify that he paid the taxes on the John Patton and the William Smith; he testified that he went to the county treasurer’s office and asked the county treasurer for all the taxes due on the John Patton in Walker township and William Smith in Porter, and as the county treasurer gave him the amount and that he then and there gave him a check for the amount demanded and therefore the offer does not or cannot contradict John L. Trexler in any respect.</p> <p>2. The. evidence is incompetent and inadmissible.</p> <p>The Court: John L. Trexler having testified that he went to the county treasurer’s office in company with Peter Kean and there transacted business with the county treasurer, Mr. Musser, and having testified that both parties are dead, we think it is evidence and we overrule the objection, admit the evidence and seal a bill of exceptions for the plaintiff. [4]</p> <p>W. G. Focht, a witness called on behalf of the plaintiff, sworn.</p> <p>Mr. J. S. Woods: We propose to prove by the witness on the stand that he is bookkeeper in the Union National Bank; that he was bookkeeper in J une, 1898; that it was his duty as bookkeeper to list all checks and mail all letters containing checks on foreign banks; by foreign banks means outside of the borough of Huntingdon, and that on June 9, 1898, there was placed by Henry Musser in the Union National Bank of Huntingdon, check of the Trexler Stave & Lumber Company in favor of Henry Musser, treasurer, on the First National Bank of Lancaster, for $48.13, this being the exact amount of the taxes on the William Smith tract for 1895 and 1896, with fifty cents added for advertising the tract; it having been testified by Mr. Africa that this check is lost; for the purpose, as stated in a former offer, of contradicting John L. Trexler, and for the additional purpose of corroborating the record of the treasurer’s office on the John Patton tract, which states that the taxes were not paid on June 2, 1898.</p> <p>Mr. Waite: It is objected that John L. Trexler has already testified that he went to the treasurer’s office to pay the taxes due on the John Patton in Walker and the William Smith tract in Porter townships, that he asked the county treasurer for all the taxes due thereon, that the county treasurer gave him the amount, and he gave him’a check for all the taxes due thereon as stated to him ; that he has testified that he had no recollection of the amount or as to whether the amount was the full amount due on the Smith and Patton tracts and therefore the offer does not in any respect contradict John L. Trexler.</p> <p>2. The offer does not propose to follow it by proof that this was the identical check given by Trexler & Company, who were then doing business in this county for the payment ■ of the taxes.</p> <p>3. Incompetent and inadmissible.</p> <p>The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for the plaintiff. [5]</p> <p>Mr. J. S. Woods: I desire now to offer Land Ledger P, page 298, being the record of the assessment of the taxes of 1895 and 1896 on the L. L.-Fritch tract, and the payment, on June 2, 1898, by check of John L. Trexler, county, school and road taxes, 1895 and 1896, amounting to $47.63, which added fifty cents, charged for advertising the tract of treasurer’s sale, makes the sum of $48.13, the exact amount of the check which M. Focht testified passed through the bank; for the purpose of contradicting John L. Trexler and sustaining the record of exceptions sealed for plaintiff.</p> <p>Mr. Waite: That is objected to for the reason that the record does not show that the county 'treasurer charged any fee of fifty cents such as is embraced within the offer and there is no specific testimony offered in the case that such charge was , made to Mr. Trexler.</p> <p>The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for plaintiff. [6]</p> <p>Thomas Musser, a witness called on behalf of the defendants, sworn.</p> <p>“Q. (By Mr. Woods) Mr. Musser, who was your father? A. Henry S. Musser. Q. Was he in 1898 treasurer of this county? A. Yes, sir. Q. Were you deputy treasurer? A. Yes, sir. Q. Were you in the office of the treasurer on June 2, 1898? A. Yes, I think I was. Q. Mr. Musser, when taxes were paid for unseated lands, did they always give receipts? A. Yes, sir. Q. In these receipts would they mention the name of the contract ? ”</p> <p>Mr. Waite: I object: the practice of the office of the county treasurer or what the witness generally did in that office, is incompetent to affect the rights of the plaintiff.</p> <p>The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for the plaintiffs.] [7]</p> <p>The court charged in part as follows: •</p> <p>[If you find that he did not go there with any intention of paying this tax or that if he went there and after having paid his tax, he was guilty of laches himself by not looking at it, if you believe this, and that it was not an honest effort on the part of the plaintiff, then your verdict should be for defendant.] [8]</p> <p>[Henry Musser, the treasurer, is dead; Peter Kean, who accompanied Mr. Trexler to the treasurer’s office, according to the testimony of Mr. Trexler, is also dead. You have his statement, which, as I have said already, is evidence; but with this evidence must be taken into consideration all that transpired at that time, the entries in the records of the court, the entries in these books, the receipt, if it is there; if not, then such other evidence as is explanatory of the receipt, the check, the amount of money that was paid, the amount of taxes that were assessed, these are all to be taken into consideration.] [9]</p> <p>[You are to take into consideration the fact that the tax was not paid and that it was not paid for some time after. These are all matters to be considered by you in arriving at your verdict. Whose fault was it that this land was sold for taxes ? Was it the treasurer of the county of Huntingdon’s fault that these taxes were not paid and that this land was advertised ? I may say here, that the way these lands are advertised is by advertising in a newspaper the name of the tract of land, the number of acres, where it is located and situated, and you are to take into consideration these things and that the land was not redeemed for two years.] [10]</p> <p>[Now, gentlemen of the jury, as I have already said to you, the only verbal testimony we have is the testimony on the part of Mr. Trexler, one of the plaintiffs. That is contradicted by the records of the court. But the Superior Court has said to us that is evidence which should be received in order to enable the jury to determine whether or not there was a mistake or fault or a neglect on the part of the officials doing the business.] [11]</p> <p>[Now, gentlemen of the jury, take this case and decide it from the evidence and the evidence alone. We have the evidence on the part of the defendants ; he offers land ledger, P, page 448, which shows that in 1895 this land was assessed to McNeil and Harris and on June 13, 1898, by draft of J. Simpson Africa, that the tax was paid for this year on this very land; and we have also the record of the treasurer’s deed made to this defendant, J. Murray Africa. All these matters are to be considered by you in arriving at your verdict.] [12]</p> <p>[Every person has notice of the tax sales ; it is published in the weekly papers and everybody is supposed to have notice and for that reason the law says they are entitled to two years in which to redeem the land, unless there is some mistake made, and that is the question for you, gentlemen of the jury. If you believe that what transpired at that time was written in the records, and that they are correct, then the plaintiffs cannot recover.] [13]</p> <p>[But, you must be satisfied first that this plaintiff made an honest effort to go and pay his taxes and, when he went to the treasurer’s office, it was his intention to pay them all, on this land, that intention must be arrived at from all the circumstances which surround this case, including the entries in the record, including the .sale, the delivery of the deed and the time that elapsed between the sale and the time the deed was given and the fact that there was no redemption, all the circumstances surrounding the case.] [14]</p> <p>Plaintiff presented this point:</p> <p>Under all the evidence in the case, the verdict of the jury must be for the plaintiff. Answer : Refused. [15]</p> <p>■ Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1-7) rulings on evidence, quoting the bill of exceptions; (8-15) above instructions, quoting them.</p>

<p>Libel — Pleading—Statement—Attaching copy of article to statement— Newspaper — Punitive damages.</p> <p>In an action of trespass against the proprietor of a newspaper to recover damages for libel, the form setting out the libelous words, by attaching a copy of the article in which they appear, to the statement, and making it part thereof, is open to criticism, but it does not constitute a substantial defect which can be complained of after pleading the general issue and going to trial on the merits.</p> <p>In such a case where the headlines of the article are quoted in the statement, but the article itself is attached thereto, and the statement charges that the writing is libelous, the charges in the statement cover not only the headlines actually quoted therein, but also the article attached as an exhibit.</p> <p>In an action for libel by one newspaper proprietor against another, where it appears that the article in suit was a long one, and embraced not only criticism of the paper itself, but charged that the news furnished by the plaintiff was fake news, that three men named had been grossly libeled by the plaintiff, and that the good reputation of the paper had been destroyed by the plaintiff, and that the latter was not responsible in a financial way, it is reversible error for the court not to instruct the jury to distinguish between such parts of the article as constitute a mere criticism of a thing, and such as either directly or indirectly are defamatory of the plaintiff personally.</p> <p>Where such defamatory charges are made, the social relation and standing of the plaintiff, and that he has a family, may be considered by the jury.</p> <p>It is not error for the court in such a case to refuse to permit the defendant's counsel to prove by cross-examination of the plaintiff that his newspaper circulation and his business had not been injuriously affected by the publication, where it appears that no evidence had been adduced by the plaintiff upon this subject, and the objection to the offer is met by a statement of the plaintiff's counsel, that plaintiff was not claiming special damages.</p> <p>Where a libelous article refers to a person named, or is so written that it would reasonably be taken to refer to him, it establishes legal malice within the meaning of the third section of the Act of April 11, 1901, P. L. 74, and where this is the case, the jury may under the Act of May 12, 1903, P. L. 349, award punitive damages against the defendant.</p> <p>The quality of an alleged libel, as it stands upon the record, either simply or as explained by averments and innuendoes, is a question of law for the court, and in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true. But there is a manifest distinction between instructing a jury that legal malice is to be implied from certain defamatory words, and instructing them as to the actual motive of the defendant in publishing them. It is therefore reversible error for the trial judge ■after saying that headlines were calculated to specially attract attention to add “the motive therefore was. evidently to attract attention rather than to give information.”</p> <p>Justification cannot be considered as pleaded within the meaning of the Act of April 11, 1901, P. L. 74, when under the plea of the general issue an offer is made at the trial to prove the truth of any libelous statement. The plea of not guilty is not a conclusive admission of the falsity of the publication.</p> <p>If it appears in the development of the plaintiff’s own case that a particular severable statement contained in the publication is true, the defendant is not precluded by his plea of not guilty from having the benefit of the evidence in mitigation of damages, particularly where the statement if true, was proper for public information.</p>

<p>Appeal, No. 3, Jan. T., 1908, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1904, No. 436, dismissing exceptions to report of referee in case of City of Scranton v. Scranton Electric Light & Heat Company.</p> <p>Exceptions to report of James H. Torrey, Esq., referee.</p> <p>Kelly, J., filed the following opinion:</p> <p>This action was brought to recover the amount of a license tax levied against the defendant by virtue of an ordinance of the city which provides, inter alia, that every electric light company, engaged in business or about to engage in business, shall procure a license from the city treasurer and shall pay for it, annually, two per centum of its gross receipts per annum. After issue joined it was referred to a referee, under the provisions of the act of 1869, and supplements, who filed a report in which he directed judgment to be entered in favor of the defendant. The case is now before us on exceptions filed in behalf of the plaintiff.</p> <p>The second and fifth exceptions are dismissed without comment, as we acquiesce entirely with the reasoning and conclusions of the learned referee upon the subject-matter of these exceptions. The fourth raises questions which are also raised by the other exceptions, and need not be separately considered. The third raises the most important question involved in the case, viz.: the power of the city to levy the tax imposed by the ordinance.</p> <p>Before the passage of the ordinance Scranton had become a city of the second class, and it is claimed on the part of the city that the authority for the levying and collection of the tax in question is found in article XIX, section 3, clause 4, of the Act of March 7, 1901, P. L. 20, which reads as follows: “ Every city of the second class shall have power, for general revenue purposes, to levy and collect a license tax, to be fixed by ordinance, upon street railways, back-driver, auctioneers, and all and every corporation, company or individual doing business in said city, payable annually, and to regulate the collection of the same.” An examination of the ordinance under which this tax is sought to be recovered can lead to but one conclusion, and that is, as found by the learned referee, that the tax in question is not a license tax, but a franchise tax, or business tax. No discussion of this proposition need be added to that found in the report.</p> <p>That the legislature may impose such a tax upon corporations, in the absence of constitutional restriction or charter provisions forbidding it, cannot be doubted; and that the power to impose such a tax may be delegated to a municipal corporation, is equally clear. The question, therefore, is, does the clause of the act of 1901, which we have quoted, confer upon cities of the second class the right to levy and collect such a tax. We think not. The power to do sois not inherent in municipal corporations, and it will not be held to exist unless conferred in express terms or by necessary implication. Statutes delegating such powers are to be construed strictly, and if there is any doubt as to the existence of the power, it must be resolved in favor of the public and against the municipality: 21 Am. & Eng. Eney. of Law (2d ed.), 783.</p> <p>The power conferred by the words of the act is to levy’ and collect a license tax upon street railways, hack-drivers, auctioneers, etc. This language indicates the intention to levy and collect license taxes within the ordinary mfeaning of the term. It is true that the act says that the power to levy and collect such taxes shall be “ for general revenue purposes,” and it is one of the tests in determining whether the legislature intended to provide for a license fee, or a tax, to consider whether the purpose -was for revenue only, or for the purpose of regulation; but that is not the only test. In construing any statute we must look to the whole of the language used. The provision for levying a license tax upon street ears, hack-drivers and auctioneers suggests that regulation was the uppermost thought of the legislative mind, while the provision that the tax was for general revenue purposes, suggests the contrary. The legislative intent is not very clearly expressed, but is, to say the least, ambiguous. As was said by Frazer, P. J., in Pittsburg Rys. Co. v. Pittsburg, 211 Pa. 479 : “As an authority delegated by the state to impose and collect a tax, the clause is quite indefinite.”</p> <p>It appears in the findings of fact that the defendant ■ company has paid to the state a tax upon its capital stock, and also a tax upon its gross receipts, as required by the laws of the commonwealth, for the same period of time that the city now seeks to collect the tax in question. However this tax may be designated by the city ordinance, it is in fact, an additional tax upon its gross receipts, and to construe the statute so as to authorize its collection would be to subject the defendant to double taxation. While, in Pennsylvania, the legislature may impose double taxation, in a proper manner, the intent to do so will not be presumed. The presumption is against the existence of. such an intention, and this presumption will prevail until it- is overcome by express language showing such intent: Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612; Com. v. Fall Brook Coal Co., 156 Pa. 488. Upon this principle also we are forced to the conclusion that the clause of the act in question does not confer upon the city the right to impose such a tax.</p> <p>This clause has been construed by the Supreme Court in Pittsburg Rys. .Co. v. Pittsburg, 211 Pa. 479, and it was there held that it did not confer power to collect a property tax. While the question in that case was not precisely the question here, the same principle is involved. Mr. Justice Brown, in his opinion on page 487, said : “ What the act of assembly authorizes the city to levy and collect is a license tax or fee. ...” And again, at page 488, he said : “ The authority conferred on the city of Pittsburg by the paragraph quoted from section 3, art. XIX, of the act of 1901, is to levy and collect a license tax or fee. The attempt is to collect a property tax which is not authorized by either of the paragraphs. . . . ” Here the attempt is to collect a franchise or a business tax, which the statute does not authorize.</p> <p>Inasmuch as we have concluded that there is no authority to support the ordinance at all, it would be idle to discuss the first exception, which relates to the question of the uniformity of the tax imposed by it. There are also questions in the case which are not raised by the exceptions, and therefore need receive no consideration.</p> <p>We might well .have disposed of the case by dismissing the second exception, which attacks the fifth conclusion of law, viz.: That there was no tax due, under the provisions of the</p> <p>ordinance, for the year ending April 1, 1902, but that would have left the main question, the question of the power to levy the tax sued for, undecided; and as that question is fairly raised by the exceptions we think the public interests require that it be passed upon. And it is only on account of the public importance of the question that we see fit to add anything to the learned discussion of the referee.</p> <p>The exceptions are dismissed, and judgment is directed to be entered in accordance with the order of the referee.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 14, March T., 1907, by plaintiff, from judgment of G. P. Sullivan Co., Dec. T., 1905, No. 81, on verdict for defendant in case of Louis J. Hymen, now to use of Nettie Hymen v. Louis Gatta and Jennie Gatta.</p> <p>Ejectment for land in Cherry township. Before Terry, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Tax collector — Bond—Surety—Payment—Judgment—Execution.</p> <p>Where a county enters up a judgment against a tax collector and his surety, and issues execution, and the surety pays a balance claimed on the judgment, and the surety is informed when he makes the payment that this was all that the tax collector owed the county, the county cannot thereafter, and after the death of the tax collector, enter a second judgment against the surety, and maintain such judgment, ‘without showing that there had been an error in the original judgment. On the trial of an issue to determine the validity of the second judgment, the county treasurer's declarations made to the surety at the time of the payment of the balance on the original judgment, are admissible as against the county.</p>

<p>Estoppel — Statement as to boundary of land — Executors and administrators — Orphans’ court sale.</p> <p>Where at an orphans’ court sale for the payment of decedent’s debts, the executor publicly states that the land sold extends to a particular line named, and it appears that in the petition for the sale, and in the advertisements thereof, the same line is designated as a boundary, the executor is estopped from subsequently asserting that the land did not extend to the line designated, where such assertion is in favor of an individual title in himself.</p> <p>Deed — Boundaries—Description—Quantity.</p> <p>Quantity is not decisive in determining title. Description of land by qauntity does not amount to a covenant that the land shall equal the quantity mentioned in the deed. The grantee has a right to all the land within the boundaries.</p> <p>Ejectment — Pleading—Estoppel—Evidence.</p> <p>The proper plea in ejectment is “not guilty,” and under this plea the defendant may avail himself of the defense of estoppel, and he may do this by oral testimony.</p>

<p>Appeal, No. 15, March T., 1907, by defendant, from order of Q. S. Cumberland Co., Sept. T., 1905, No. 101, making absolute a rule to abate a nuisance in case of Commonwealth v. Philadelphia, Harrisburg & Pitts-burg Railroad Company.</p> <p>Rule to abate a nuisance. Before Sadler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule.</p>

Appeal, No. 10, March T., 1907, by defendant, from judgment of C. P. Juniata Co., Sept. T., 1904, No. 106, on. verdict for plaintiff in case of S. E. Pennebaker v. Edmund S. Parker and James J. Horning. Appeal from judgment of a justice of tbe peace. Before Shull, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Practice, C. P. — Evidence—Nonsuit—Trial—Province of court and jury.</p> <p>A peremptory nonsuit is in the nature of a judgment for defendant on demurrer to evidence; and hence, in testing the validity of such nonsuit, the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them. It is immaterial that the evidence in support of a plaintiff’s claim may be very slight, provided that it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to the well settled rule, be submitted to the jury. It is their exclusive province to pass upon the credibility of witnesses, weigh the evidence and ascertain the facts.</p> <p>Evidence — Primary evidence — Secondary evidence — Documentary evidence..</p> <p>The best evidence rule applies exclusively to documentary evidence; and there is no distinction between primary and secondary evidence, except where some document, or other written instrument exists, the contents of which should be proved by an original rather than by other evidence which is open to the danger of inaccuracy.</p> <p>In an action to recover the price of a large quantity of rope, the fact that somebody weighed the rope and made a record of the weight, does not render other evidence of the weight secondary.</p>

<p>Negligence — Master and servant — Instructions—Duty to instruct— Dangerous machinery — Contributory negligence.</p> <p>In an action by a boy eighteen years old to recover damages for personal injuries sustained while working at a dangerous machine, the question of the defendant’s negligence, and of the plaintiff’s contributory negligence, is properly left to the jury where there is evidence tending to prove that the plaintiff was inexperienced; that he did not have the benefit of any special instructions from his employer warning him of the danger of doing his work in the way be attempted to do it; that he did not from his own observation, or from other sources possess the knowledge that enabled him to appreciate the risk he ran; and that the danger of the method he adopted was not so obvious, that a prudent person of even his years and limited knowledge, although not specially instructed, would have recognized and avoided it.</p>

<p>Appeal, No. 232, Oct. T., 1905, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1903, No. 232, on verdict forplaintiff in case of Pottsville Borough’s Corporation v. Pottsville Gas Company.</p> <p>Appeal from judgment of justice of the peace. Before Bechtel, 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>[The plaintiff’s witnesses, Mr. Fleet, the chairman of the highway committee, and the engineer of the borough, the commissioner of highways, testified that every time this corporation opens a street, while they put it back in as good condition, possibly, as they can, under the circumstances, yet, being macadamized, being made in a certain way, it is necessary for them every time to go back and refill that street and reroll it, and that the cost of rerolling, taking out the road roller, the engineer, the rock and material, all that, Mr. Pugh testifies, is more than twice as much as what the ordinance calls for; and Mr. Fleet, while he could not give the figures, testifies that they must always go over and repair these places that have been opened by the defendant corporation. We say to you that if you believe that evidence on the part of the plaintiff that it is necessary for them to go back and reroll these streets, and that it costs more than twice as much, or twice as much, or even more than the amount charged in the ordinance, then that is a reasonable charge, and your verdict should be for the plaintiff.] [1]</p> <p>[I want you to understand it distinctly, gentlemen. I say that if you believe the evidence of the plaintiff, that the excavations made by this defendant company require not only an inspection of the premises, but requires them to go there and reroll and put new material upon those excavations, taking out the road roller, and that that cost is as much, even as much, but under the testimony of Mr. Pugh twice as much — if it is as much or more than that contained in the ordinance, then we say to you that it is a reasonable charge, and your verdict should be for the plaintiff.] [2]</p> <p>[It is conceded by the defendant’s counsel that under their charter they would be bound to pay this sum if the borough sent them a bill after the work was done. We are of the opinion that the borough would have a right to calculate the general charge, the general cost of what these repairs would be, estimate that and charge it in the permit, and we, therefore, say to you if you believe the evidence of the plaintiff, that the work to repair these openings cost more than twice as much as what the permits called for in this ordinance, then we say to-you that that is a reasonable charge, and your verdict should be for the plaintiff.] [3]</p> <p>Defendant presented these points :</p> <p>2. That under the charter rights of the defendant company the cost incurred by the borough of Pottsville, of inspecting the refilling, repairing and placing in a safe condition of all opeiiings made by tíre defendant, and the cost of issuing the permit, are the only basis for permit charges, as regards the defendant company, and any substantial amount charged therefor bejmnd such a sum would be unreasonable, unjust and illegal, and render the ordinance void. Answer; This we refuse. [4]</p> <p>3. That under all the evidence in the case, the ordinance in suit is void for unreasonableness and for abuse of discretion in respect of the amount charged for permits, and, therefore, the verdict of the jury must be for the defendant. Answer : This we refuse ; we refer you to our general charge as to what we said upon the reasonableness of this oi'dinance. [5]</p> <p>4. If the jury believe under all the evidence in the case that the actual cost to defendant for the seasons of 1903 and 1904, of refilling, repairing and putting in safe condition of all street openings, made by the defendant company alone, in the borough of Pottsville, was $1,707.85, and the permit charges for the same openings, under the terms of the ordinance in suit, amount to $2,278.15, the permit charges are excessive, the ordinance becomes a revenue measure, and is, therefore void, and the verdict must be for the defendant. Answer; This we refuse, referring you to what we said in our general charge as to reasonableness of the amount charged. [6]</p> <p>Yerdict and judgment for plaintiff for $200. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p>Appeal, No. 172, Oct. T., 1906, by plaintiff, from judgment of G. P. Delaware Co., March T., 1905, No. 164, on verdict for defendant in case of The Louis Bergdoll Brewing Co. v. John Babe.</p> <p>Ejectment for land in the city of Chester. Before Johnson, 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>Error assigned was in not entering judgment upon the whole record in favor of plaintiff non obstante veredicto.</p>

<p>Insurance — Fire insurance — Payment of premiums — Broker—Cancellation of policy.</p> <p>Where an ordinary insurance broker places insurance for his client, and the company insuring delivers the policy to the broker, and the broker delivers it to his client, who pays to him the premium, the payment to the broker is payment to the company; and the company, after the receipt of the premium, cannot cancel the policy merely by giving five days’ notice of its intention so to do. To avail itself of the right to cancel, reserved in the policy, it must not only give the required notice but must actually repay or tender payment of the unearned portion of the premium.</p>

<p>Appeal, No. 22, Jan. T., 1907, by plaintiff, from order of G. P. Lackawanna Co., May T., 1905, No. 333, refusing to take off nonsuit in case of Diamond Glass Co. v. John H. Ladwig.</p> <p>Assumpsit for goods sold and delivered. Before New-comb, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The following amendment was refused:</p> <p>That by mistake and inadvertence the following was omitted from the plaintiff’s statement, to wit: “ It was expressly agreed by and between the plaintiff and defendant at the time when the orders were signed by Ladwig, that the plaintiff was to take the goods from the freight station and put them in place, and that the defendant was not to take the same from said station or meddle with them in any way; but that in violation of said agreement, the said John H. Ladwig did on November 3,1903, cause and allow the said goods ordered by him from the plaintiff to be removed from the freight station in the city of Scranton and placed in his store in violation of his contract with the plaintiff, and as a result of said breach of contract and of duty on his part, the goods were destroyed on said November 3, 1903, shortly after they had been placed in his said store. Plaintiff avers by reason of said breach of contract the defendant waived and prevented the plaintiff from taking said show cases from the station and setting them up, and that the said goods were worth $875, and that by reason of the acts of the defendant, it has lost the same. Plaintiff avers that by reason of the premises it is entitled to recover the sum of $375 with interest thereon.”</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeal, No. 10, March T., 1907, by plaintiff, from judgment of C. P. Clinton Co., Jan. T., 1906, No. 90, reversing judgment of a justice of the peace in case of Deering Harvester Co. v. Valentine Zink. Certiorari to justice of the peace. The opinion of the Superior Court states the case. Error assigned was the judgment of the court.

<p>Nuisance — Highway—Road established hy prescription.</p> <p>An indictment for nuisance may be maintained against a person who maintains a nuisance upon a public highway established by prescription; but where a part of such prescriptive highway has been abandoned, arid a new way has been constructed by citizens and supervisors without any statutory proceedings, and without having obtained the consent of all the owners of the land over which the new road is laid out, an indictment cannot be maintained for acts on the new road which if committed on a legal highway would have been a public nuisance.</p> <p>It is impossible upon an indictment charging a public nuisance in obstructing and injuring a public highway to convict upon evidence which shows that it is not a public highway.</p>

<p>Appeal, No. 19, March., 1907, T. by plaintiff, from decree of Q. S. Sept. T., 1906, No. 1, refusing order of removal in case of Turbett Township Overseers of the Poor v. Port Royal Borough Overseers of the Poor.</p> <p>Petition for order of removal. Before Siiull, P. j.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Jürror assigned was refusal of order of removal.</p>

<p>Bailment — Pledge—Evidence—Parol evidence — Fraud.</p> <p>In an action of trespass for the conversion of a stock of goods, where the defendant relies upon a bill of sale, absolute on its face, from the plaintiff to himself, and the plaintiff claims that the transaction was in fact a pledge to secure a debt, he may show that he subsequently gave to defendant a sum of money in consideration of extension of time, and that the defendant permitted him to keep the goods, and make sales therefrom, without an accounting. In such a case evidence of what took place at the time the bill of sale was executed is competent as bearing on the new agreement for thij extension of time. It was not necessary for the trial judge to instruct the jury concerning the nature of the testimony necessary to establish fraud in the execution of the bill of sale, inasmuch as the subsequent agreement, if established, shows that the bill of sale was in fact a pledge, and so recognized by defendant.</p>

<p>Appeal, No. 28, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., May T., 1905, No. 161, refusing to take off nonsuit in case of Hiram L. Hess v. Leo A. Sutton and William H. Freeman.</p> <p>Trespass to recover damages for cutting timber. Before Ferris, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 168, Jan. T., 1906, by Wert White, from decree of O. C. Adams Co., dismissing appeal from register of wills in Estate of David McC. White, deceased. Appeal from register of wills.

<p>Vendor and vendee — Payment—Evidence—Agreement to pay debt of another.</p> <p>In an action against the estate of a decedent to recover a balance of purchase money for interest in a farm which the plaintiff had conveyed to the decedent, and also for a balance of purchase money in a house and lot which the plaintiff had conveyed to another person, and which it was alleged the decedent had agreed to pay, one witness alone testified to what was due, but he failed to state the amount due on each account, and he was not able to show how it was that the decedent had agreed to pay the balance due on the house and lot. It also appeared that the deed for the house and lot was delivered more than six years before the bringing of the suit, and there was no evidence tending to show that the purchase money was not due on the delivery of the deed. Held, that the court committed no error in directing a verdict for the defendant.</p>

<p>Appeal, No. 23, Jan. T., 1907, by plaintiffs, from order of C. P. Wyoming Co., Equity Book, p. 219, dissolving preliminary injunction in case of Elmer J. Miller and Elizabeth Miller, his wife, v. James W. Piatt.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were certain findings of fact and the decree dissolving the preliminary injunction.</p>

<p>Insurance — Fire insurance — Assignment of policy — Consent of company —Proofs of loss.</p> <p>Where a vendor of real estate retains title until a balance of purchase money is paid, and the vendee takes out a policy of fire insurance, which with the consent of the insurance company, he assigns to the vendor as collateral security, and a fire occurs after all of the purchase money has been paid, but before a deed has been delivered to the vendee, the insurance company cannot object to jbroof that the assignment, although absolute on its face, was in fact collateral for the debt, nor can it allege in a suit brought by the vendor on the policy in his own name that the vendor had no insurable interest in-the property, and had no right to bring the suit in his own name.</p> <p>In such a case the vendor holds the policy as trustee for the vendee, and if the vendee does not object, the insurance company cannot object.</p> <p>Where an insurance company has refused to pay a policy of fire insurance on the sole ground that the plaintiff had no insurable interest, in the property, the insurance company cannot defend on the ground that the plaintiff had failed to furnish supplemental proof of loss on notice from the defendant.</p>

<p>Corporations — School laws — State aid — Officers—Sale of supplies— Act of April 23, 1903, P. L. 285 — Constitutional law.</p> <p>A private corporation operating a state normal school and receiving moneys from legislative appropriations, is within the purview of the Act of April 23,1903, P. L. 285, entitled; “An Act to prevent officers or members of boards of managers of institutions receiving appropriations of state money from selling supplies to such institutions, or acting as agent for the sale of the same.”</p> <p>The Act of April 23,1903, P. L. 285, is constitutional.</p>

<p>Appeal, No. 40, Jan. T., 1907, by defendant, from judgment of C. P. Lackawanna Co., March T., 1905, No. 351, on verdict for plaintiff in case of Helen M. Fuller v. Uriah Cole.</p> <p>Trespass to recover damages for cutting ice on ar lake. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for six cents. Defendant appealed.</p> <p>Errors assigned were (2, 3) rulings on evidence as stated in the opinion of the Superior Court; (1, 4-6), instructions as follows:</p> <p>[1. The plaintiff has established her title to about nine-tenths of Lily Lake, and the trespass committed by the defendant was committed on the part of the lake belonging to the plaintiff.] [1] Whether there is a small undivided part outstanding is immaterial; it does not defeat the plaintiff’s right to bring her action.</p> <p>[2. Under the undisputed testimony on both sides the plaintiff had sufficient possession, considering the character of the property, to maintain an action of trespass.] [4]</p> <p>3. The defendant’s land is described by metes and bounds, two of the courses reading as follows : “ Thence south forty-four degrees west seventy-nine perches and five-tent! s of a perch to a corner in the edge of Wall pond; (Wall pond being Lily Lake) thence along the edge of said pond south fifty-seven degrees east thirty-one perches to a corner in the edge of said pond.” [This line extending thirty-one perches along the edge of the pond does not give the defendant the right to the center of the lake or to any part of the lake beyond his survey line.] [5]</p> <p>[4. All the evidence in the case as to the use made of the lake by the defendant and by the other shore-owners, seven or eight in number, defeat any right on the part of any of them to claim a prescriptive privilege to cut ice upon the lake or to fish or to boat upon the waters of the lake within the lines of the plaintiff’s property.] [6]</p>

<p>Appeal, No. 7, March T., 1907, by plaintiff, from judgment of C. P. Adams Co., Aug. T., 1905, .No. 174, on verdict for defendants in case of John Smith etal. v. Cyrus G. Beales et al.</p> <p>Ejectment for land in the Borough of York Springs.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p>Appeal, No. 14, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., J une T., 1902, No. 99, on verdict for plaintiff in case of Bridget Scott V. Central Valley Railroad Company.</p> <p>Appeal from award of jury of view. Before Wheaton, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Frrors assigned were (1, 2) in admitting the testimony of M. J. Tigue and W. J. Devanney; (3) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 53, Jan. T., 1907, by defendant, from order of C. P. Luzerne Co., Oct. T., 1906, No. 167, discharging rule to open judgment in case of Daniel Kline v. Saint Mary of -Czestochow Polish National-Catholic Church of Plymouth.</p> <p>Rule to open judgment.</p> <p>Ferris, J., filed the following opinion :</p> <p>The petition, answer and depositions present two questions for decision. 1. Were John Strojny, president, and Antoni Mazur, secretary, of the church committee on June 18, 1906, being the time they executed the note in question, and had they authority to sign the note? 2. Does the note represent a lawful, valid debt of the church ?</p> <p>If it appears, by the weight of the testimony, that Strojny and Mazur were such officers, duly authorized to so act at the time, and that there was a valid consideration, the judgment should stand.</p> <p>By opinion filed March 15, 1906, dissolving the injunction, Judge Wheaton decided that St. Mary’s Czestochow Polish National Catholic Church, John Strojny, Floryan Bieloglowicz, Anthony Mazur, John Mazur and Anthony Szerejko, officers ■ and members of said church, were in possession of the church property and the office of president on December 18, 1905.</p> <p>The weight of the testimony in the cause shows that there was a meeting of the congregation the evening of January 14, 1906, at which trustees were elected; Strojny was president, and Mazur secretary of the board of trustees, and that at the time the note was signed Strojny and Mazur had full authority to-execute the note.</p> <p>As to the indebtedness.</p> <p>St. Mary’s Church, with others, was defendant in a bill in equity in this court, and retained as counsel Messrs. Martin, Trescott and Butler to defend the cause. Being sucessful they charged for their professional services the sum of $800. Rev. Davidowsld was at the time of the litigation pastor of said church. There is due him, balance of unpaid salary, $440, and $65.00 expended for the church. The defendant church owed Mr. and Mrs. Strojny $235, making in all $1,540. This is the indebtedness for which Strojny and Mazur gave the judgment note in question.</p> <p>It also appears by the depositions that the petitioner in this case is not a creditor of norlegally interested in the property or control of the church.</p> <p>The note contains a commission of ten per cent, to be added for collection.' We think, in the circumstances here shown, that five per cent, is sufficient.</p> <p>We are convinced that the note in question was given for a valid consideration by persons who had lawful authority to execute and deliver it.</p> <p>In the above-mentioned case in Equity No. 5, February Term, 1906, the plaintiffs averred that Strojny and Mazur were members and officers of that congregation. The attempt on the part of the petitioner to show the trustees first elected held office for life, and that a distinction between trustees and committee existed and was recognized by the congregation, has no foundation in fact.</p> <p>The congregation, who it is shown has been in financial and other trouble since its organization in 1898, is divided into bitter factions, and have been and are fighting each other, dismissed the pastor, refused to recognize the authority of the alleged bishop, and now one faction attempts to repudiate the services of counsel rendered on behalf of the church.</p> <p>The rule to open the judgment is discharged.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Electric light company — Horse—Proximate and remote cause — Nonsuit.</p> <p>An electric light company which maintains its wires in a public highway is bound to adopt the best precautions against danger, in general use, which experience has shown to be effectual, and to avail themselves of every such known safeguard, or generally approved invention, so as to lessen the danger to persons lawfully using the highway.</p> <p>In an action by a fire engine company against an electric light company to recover damages for the killing of a horse, the case is for the jury where it appears that the defendant maintained an arc lamp on a pole about forty feet distant from a .place where a fire broke out, to which the plaintiff was driving its engine; that the arc lamp was suspended on an arm to which it was attached by a rope; that the fire reached the rope, burnt through it; and that the arc light fell in such a way that one of the horses attached to the engine stepped on a live wire and was lulled.</p> <p>Negligence may be the proximate cause of an injury of which it is not -the sole or immediate cause. If the defendant's negligence concurred with some other event other than the plaintiff’s fault, to produce the plaintiff’s injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are so closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time.</p>

<p>Appeals — Order of sale — Interlocutory decree — Quashing appeal.</p> <p>An order, by the orphans’ court directing the sale of the estate of a decedent is not a final decree from which an appeal lies.</p>

<p>Evidence — Parol evidence — Written agreement.</p> <p>Parol evidence is admissible of a contemporaneous oral agreement which induced the execution of a written contract though it may vary, change or reform the instrument; but such oral agreement must be shown by evidence that is clear, precise and indubitable. It is error for the court to instruct the jury that they may determine it by the weight of the evidence, or that they may determine it by the party's own testimony and corroborating circumstances.</p>

<p>Appeal, No. 48, Oct. T., 1906, by plaintiffs, from order of Q. S. Philadelphia Co., Feb. T., 1907, No. 2, remanding relator to custody in case of Commonwealth ex rel. Richard C. Flower, Superintendent of the County Prison.</p> <p>Petition for writ of habeas corpus. Before Sulzberger, P. J.</p> <p>At the hearing the following offer was made :</p> <p>Counsel for Richard C. Flower offered to prove that he did not know Isabella Gray Taylor, mentioned in indictment 42,324, court of general sessions of the peace, in and for the county of New York, attached to the requisition; that he did not sell her any stock; that he did not obtain any money from her; that he made no representations or misrepresentations to her ; that she owned no'stock as mentioned in said indictment; that she owned stock in another mining company (Lone Pine Mining Company), with which Richard C. Flower had no connection whatever; that one William F. S. Hart, of No. 5 Beekman street, New York city, had employed one H. C. Woodruff and Frank H. Burr, the latter for ten weeks at $25.00 per week, to have former stockholders of Arizona, Eastern and Montana Smelting, Ore Purchasing & Development Company employ said William F. S. Hart as their attorney, “ to take criminal action against Flower for the purpose of securing the moneys invested in this stock.” That said William F. S. Hart had by such means become attorney for $150,000 par value of stock in Lone Pine Mining Company, with which R. C. Flower had no connection, taking said claims for collection on the basis of contingent fees of fifty per cent, and thirty-three per cent. That five of the clients of said William F. S. Hart, viz.: Isabella Gray Taylor, Henry C. Woodruff, Alden Solomans, Herman A. Butterick and S. W. Woolley, had had indictments found against Richard C. Flower; that no other indictments were pending against him j. that no civil suit had been instituted by William F. S. Hart, and that no civil suits existed, and besides statute of limitations had run against civil suits ; that the said actions of William F. S. Hart were in violation of the laws of the State of New York, constituting the crime of champerty and punishable by imprisonment and disbarment. ' 1</p> <p>The court overruled the offer. [2]</p> <p>The court ordered that the relator be remanded to custody. [3]</p> <p>Errors assigned were (2) ruling on evidence; (3) the order of the court.</p>

<p>Appeal, No. 85, April T., 1907, by defendant, from judgment of S. Butler Co., March T., 1906, No 48, on verdict of guilty in case of Commonwealth v. Joseph Poliak.</p> <p>Indictment for selling liquor without a license. Before Gal-breath, P. J.</p> <p>The facts appear by the opinion'of the Superior Court.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were the various instructions.</p>

<p>Liquor law — Selling without a license — Sale by agent.</p> <p>On the trial of an indictment for selling liquor without a license the evidence tended to show that the defendant represented a firm of liquor dealers in another state, that he took orders from various persons in Pennsylvania for small quantities of liquors, such persons not signing the orders, that the principals on receiving the orders filled them and sent them, charges prepaid, by express C. O. D. to the purchasers, who went to the express office, paid for the packages and took them away. The court submitted to the jury the question whether the sale was made in this state, or whether it was complete when the goods were delivered to the carrier in the' other state. Held that a conviction should be sustained.</p>

<p>Appeal, No. 7, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1904, No. 954, on verdict for plaintiff in case of John Bauer v. Verona Ferry Company.</p> <p>Trespass for injuries to horses. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff.</p> <p>jErrors assigned were (1) refusal of binding instructions for defendaiit; (2) refusal of judgment non obstante veredicto, and (3, 4) portions of the charge quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 19, April T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1900, No. 1,114, on verdict for plaintiff in case of John Szok v. Joseph Crown.</p> <p>Assumpsit against an attorney at law for a balance collected.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeals — Final and interlocutory orders — Review.</p> <p>Where a final order has been made granting judgment on a scire facias sur mortgage, and an appeal has been taken therefrom, the appellate court may review an interlocutory order of the court below refusing to strike off the hen.</p> <p>Mechanics’ liens — Contract—Contractor and owner — Detailed statement —Act of June 4, 1901, P. L. 431, sec. 11, par. 6.</p> <p>Where a lien is filed by a contractor on a contract with the owner for the furnishing of the material and labor and the construction of a dwelling house “a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof,” need not be set out in the lien.</p> <p>Where a building contract does not incorporate and make the specifications a part thereof, the specifications need not be filed with the lien.</p> <p>Where a part of the contract is verbal, and the items of it are not covered by the written contract, and no statement of the terms and conditions of the verbal portion of the contract is set forth in the lien filed, the lien to that extent is bad, and such items will be stricken out.</p>

<p>Appeals — Certiorari—Justice of the peace — Act of March 20, 1810, 5 Sm. L. 161.</p> <p>No appeal lies from a judgment of the common pleas affirming upon certiorari the judgment of the justice of the peace in an action of assumpsit.</p>

<p>Wills — Construction—Vested and contingent estates — “Die without issue” — Act of July 9, 1897, P. L. 213.</p> <p>Testatrix after giving shares of her estate to two sons, directed that such shares should be held by her executor “in trust for my said sons, the income and clear annual profit arising from the interest or share hereby given is to be paid to my said sons, but no part of the principal of said estate is to be given to my said sons for five years after my death, and then only when in the judgment of my executor, they shall have proven themselves to be entirely competent and qualified to take proper care of same, at which time the said trustee, shall pay the same over to my said sons, and ini the event of the death of either of my said sons without issue, then their share or shares shall revert back to my estate, and shall go to and be divided among my remaining heirs.” Held, (1) that the words “death without issue” meant death in the lifetime of the testatrix; (2) that the sons took a vested estate upon surviving the testatrix, and (3) that there is nothing in the Act of July 9, 1897, P. L. 213, to prevent such a construction of the will.</p>

<p>Appeals — Interlocutory order — Mechanic’s lien.</p> <p>No appeal lies from an order discharging a rule to strike off a mechanic’s lien.</p>

<p>Bailment — Rental—Landlord’s warrant — Contract.</p> <p>Installments reserved in a bailment contract for personal property furnish no ground for the issue of a landlord’s warrant, unless expressly so provided in the contract.</p> <p>Landlord and tenant — Fraudulent removal of goods — Distress.</p> <p>An open removal of the tenant’s goods from the demised premises in the daytime, in order to secure them from distress for rent, is not a clandestine, or fraudulent removal, and, without more, it is not sufficient to justify the landlord in following them, and distraining within thirty days.</p> <p>Bailment — Seizure of goods — Damages—Right of bailee.</p> <p>Where goods have been illegally taken from a bailee in possession, the latter has a right to recover as against the wrongdoer, the market value of the goods, and the bailee will then be liable over to the bailor for such interest as he may have in the goods.</p>

<p>Appeal, No. 52, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1902, No. 857, on verdict for plaintiff in case of David C. Finefrock and Margaret Finefrock, his wife, v. The United Traction Company.</p>

<p>Appeal, No. 77, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., July Term, 1902, No. 463, on verdict for plaintiff in case of J. W. Smith etal., trading as Smith & Company, v. Illinois Central Railroad Co.</p> <p>Appeal from judgment of justice of the peace. Before Frazer, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in refusing judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 70, Oct., T., 1907, by Black Diamond Distilling Co., from decree of Q. S. Clear-field Co., refusing distiller’s license.</p> <p>Petition for distiller’s license. Before Smith, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order refusing the license.</p>

<p>Appeals — Assignments of error — Evidence—Certificate.</p> <p>Where a paper-book for an appellant does not contain an index with the eyidenee as provided by rule XXIV, and the certificate of the judge required by rule VI, and the record itself shows that the stenographer’s report of the testimony had not attached, thereto the certificate of the trial judge as to its correctness, the appeal will be quashed.</p>

<p>Appeal, No. 161, April T., 1907, by defendant, from judgment of C. P. Washington Co., May T., 1906, No. 30, on verdict for plaintiff in case of Frank Schimmack v. Washington & Cononsburg Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before McIlvaine, P. J. y</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,350. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>