Volume 34 — Pennsylvania Superior Court Reports

<p>Appeals — Assignments of error — Interrogatories.</p> <p>Assignments of error consisting of a series of questions of a general character, which the appellant conceives are involved in the appeal, will not be considered.</p> <p>Assignments of error must be so complete in themselves as not to require reference to other parts of the record.</p>

<p>Appeal, No. 46, Jan. T., 1907, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1906, No. 655, on verdict of guilty in ease of Commonwealth v. A. R. Spudis.</p> <p>Indictment for embezzlement. Before Ferris, J.</p> <p>In addition to the facts set forth in the opinion of the Superior Court it appeared that the letter there mentioned was as follows :</p> <p>“ Prince & Company, manufacturing clothiers, Pottsville, Pa., September 21, 1905. Mr. A. R. Spudis, dear sir: We have this day' consigned to you to sell on account the following goods, as per inclosed invoice, amounting to $223.25. These goods are not to be sold at less than the price at which they are hereby invoiced, and your commission must be the difference realized by you in excess of the invoice price. If you sell these goods within sixty days and account for the proceeds within that time, you may deduct six per cent, from the amount of the goods as consigned, otherwise you must account for the goods or proceeds at invoice.</p> <p>“ Yours respectfully,</p> <p>“A. Prince & Co.”</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>..Errors assigned were (1, 2) instructions submitting the case to the jury, and (3) admission of letter as above.</p>

<p>Appeal, No. 162, Oct. T., 1906, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1905, No. 103, for defendant non obstante veredicto in case of The Burgess and Town Council of Phoenixville Borough v. John B. Miller.</p> <p>Scire facias sur municipal lien. Before Hemphill, P. J.</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>Negligence■ — Street railways — Summer car — Standing on steps — Contributory negligence.</p> <p>In an action against a street railway company by a passenger, to recover damages for personal injuries, it appeared from the plaintiff’s own testimony that he stepped down upon the alighting step of a summer car, and, with his cane in his left hand, grasped the stanchion of the car in order to steady himself upon the step. He turned himself about to catch the stanchion with his right hand, in order'“’to give himself support in re-entering the car, which had not stopped-as he had expected. Instead of catching the stanchion, he caught hold of his cane, which gave him no support, and he was precipitated into the street and injured. Held, that a nonsuit was properly entered.</p>

Appeal, No. 141, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1906, No. 1,396, on verdict of guilty in case of Commonwealth. v. William Walker. Indictment for rape. Before Young, J. Verdict of guilty, upon which judgment of sentence was passed. ¡Errors assigned are indicated in the opinion of the Superior Court.

<p>Justice of the peace — Judgment—Transcript—Execution—Proceedings to obtain possession — Sheriff’s sale — Acts of June 16, 1836, P. L. 755, March 20, 1810, 5 Sm. L. 161, June 24, 1885, P. L. 160, and May 9, 1889, P. L. 176.</p> <p>'■ A judgment in a proceeding before a justice of the peace or alderman and a sheriff’s-jury under the act of June 16, 1836, to obtain.possession of premises by a purchaser at sheriff’s sale, is not'within the meaning of the statutes authorizing transcripts of judgments of justices of the peace to be filed in the office of the prothonotary, and providing that such judgments shall thereafter have all the force and effect of judgments originally obtained in the court of common pleas.</p> <p>Statutes — Construction—Repeal.</p> <p>Later statutes which do not abrogate settled practice or repeal former statutes are to be expounded as near to the use and reason of the prior law as can be, without violation of their intent. “ • v</p>

<p>Appeal, No. 7, Jan. T., 1907, by defendant, from judgment of C. P. Monroe Co., Dec. T., 1905, No. 24, for plaintiffs on demurrer in case of Monroe Borough to the use of Stroudsburg Borough, Coolbaugh Township of Chestnut Hill, Smithfield Township and Polk Township v. Fred W. Eilenberger, A. Y. Zimmerman, Jacob E. Michaels, James Armitage, A. W. Knapp and Obadiah Zimmerman, who survive Martin Yetter.</p> <p>Assumpsit on a , county treasurer’s bond. Before Staples, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in overruling demurrers and in entering judgment for plaintiffs.</p>

<p>Appeal, No. 32, Jan. T., 1907, by-defendant, from judgment of G. P. Monroe Co., Dec. T., 1905, No. 24, for plaintiff on demurrer in case of Monroe County ex rel. Hamilton Township v. Fred Eilenberger, A. Y. Zimmerman, Jacob E. Michaels, James Armitage, A. W. Knapp and Obadiah Zimmerman, who survive Martin Yetter.</p> <p>Assumpsit on a county treasurer’s bond. Before Staples, P. J.</p> <p>The opinion of the Superior Court states the case.</p>

Appeal, No. 94, Oct. T., 1906, by defendant, from order of C. P. Lancaster Co., Dec. T., 1905, No. 37, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John B. Miller, Assignee for Benefit of Creditors, v. Joseph Jackson. Replevin for chattels.

<p>Judgment — Opening judgment-^-Evidence — Forgery.</p> <p>A proceeding to open a judgment is an appeal to the equity powers of the court; the judge exercises the functions of a chancellor, is vested with a discretion to pass upon the weight of the evidence and the credibility of the witnesses, and to' dispose of the question presented upon equitable principles. The action of the court below will only be reversed in such a case where an abuse of judicial discretion is apparent. These principles apply where an allegation of forgery is involved with the same force and effects as in other cases.</p> <p>A court cannot be charged with abuse of discretion in discharging a rule to open a judgment entered upon a bond, where it appears that the defendant and her sister testified that the signature to the bond was forged, but it also appears that neither of the witnesses had seen the bond for ten years, that nine years before, it had been removed from the court records by the attorney for the defendants, had not been restored to the records, nor produced at the hearing, and that no adequate search had been made for it.</p>

<p>Municipalities — Sewers—Negligence—Contributory negligence — Waters —Evidence—Province of court and jury.</p> <p>In an action" of trespass against a city to recover damages for injuries resulting from the flooding of a cellar, the plaintiff cannot be charged with contributory negligence as a matter of law, where it appears that the plaintiff connected his premises with the city sewer under lawful authority from the city, and that for several years after the connection was made, the work of drainage went on undisturbed, leaving the cellar dry, and easily cleaned.</p> <p>Where a municipality in the exercise of its rightful powers has. constructed a public sewer, it. assumes the duty of maintaining it in a reasonable state of efficiency, and a failure to discharge such duty is an act of negligence, and will subject the municipality to an action for damages by a citizen whose property has been injured by reason of such failure.</p> <p>In an action against a city to recover damages for injuries resulting from the flooding of a cellar, the case is for the jury where the plaintiff shows that he connected his premises with the public sewer under authority from the city; that for several years the drainage was effectual-; that later the water began to back into' his cellar; that these occurrences became more and more frequent; that he repeatedly gave notice to the borough authorities without obtaining any relief and that finally, it appeared, that the sewer had been allowed to become so choked with sand and dirt that its volume and efficiency were greatly diminished thereby.</p> <p>In such a case where the defendant claims that the injuries were the result of the action of tides in a tidal river into which the sewer emptied, but the evidence shows that only under infrequent weather conditions, when heavy rain storms and unusual tides happened at the same time, was damage done to plaintiff’s premises, the defendant cannot complain of the verdict against it, if it appears that the court carefully instructed the jury that there could be no responsibility for injuries suffered by the action of the tides or forces not under the control of man.</p> <p>Municipalities — Negligence—Sewers—Damages—Measure of damages.</p> <p>In an action against a city to recover damages for injuries to a dwelling house caused by flooding from a broken sewer, the owner who is in the occupancy of the house, is entitled to recover for injuries affecting the structure itself, and also for the temporary destruction or diminution of the use value of the house; and the owner cannot be deprived of his damages for diminution in the use value of the house for six years prior to the bringing of the action, although the injuries began more than six years before the action was brought.</p>

<p>Negligence — Master and servant — Vice principal — Fellow servant— Master mechanic — Repairs.</p> <p>A master mechanic of a steel works, is a vice principal and not a fellow servant of other employees of the works, where it appears that he has entire charge of the repairs, employs and discharges the repair men, and has the authority to determine, without being required to consult any higher officer, when and what repairs are necessary, and to select his own means for executing his plans.</p> <p>A vice principal is one to whom the master delegates a duty of his own which is a direct, personal and absolute obligation, from which nothing but performance can relieve him.</p> <p>Negligence — Master and servant — Safe place of employment — Vice principal.</p> <p>The obligation of a master to furnish to his servant a reasonably safe place in which to work, is a direct, personal and absolute obligation, and if such a duty is delegated to an agent, such agent is a vice principal.</p> <p>The imperative obligation upon a master to furnish to his servant a safe place in which to work, is not discharged by the master merely by seeing that the working place was safe, when the relation began; he must continuously furnish it, that is, maintain it, in that condition; and the rule extends to the means provided on the master’s own premises by which the servant obtains access to his working place.</p> <p>In an action against a corporation operating a steel works, by an employee, to recover damages for personal injuries, it appeared that the plaintiff fell into an open ditch on the 'defendant’s premises, and was injured. The ditch had been opened over night by the defendant’s master mechanic who had entire charge of the repairs of the plant. When the plaintiff was on his way to his work in the morning, he approached the ditch without being aware of its existence. There was evidence on behalf of the defendant that warning of the danger was given by a burning torch. The plaintiff, however, testified that, at the moment he passed, no such light was visible, either because the torch was not then actually burning, or because its light was swallowed up in, and obscured by, the clouds of steam and fog then rolling along the surface of the ground. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p> <p>Negligence — Judgment—Wrong reason for rightful conclusion — Motion for judgment n. o. v.</p> <p>Where the court refuses a motion for judgment non obstante veredicto, and in its opinion gives a wrong reason for a rightful conclusion, and it appears that there is no trace of the erroneous view in the record of the trial, nor that it was in any way productive of the verdict that was rendered, the appellate court will not reverse the judgment because of the wrong reason thus given.</p>

Appeal, No. 227, Oct. T., 1906, by plaintiff, from order of C. P. Schuylkill Co., Jan. T., 1906, No. 36, refusing to take off nonsuit in case of Esther A. Smith v. The Metropolitan Life Insurance Company of New York. Assumpsit on five policies of insurance. Before Marr, J. The facts appear by the opinion of the Superior Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

<p>Boroughs — Annexation of adjacent territory — Appeals—Quarter sessions —Acts of June 2,1871, P. L. 283 and April 22,1903, P. L. 247.</p> <p>The Act of April 22, 1903, P. L. 247, relating to the annexation of adjacent territory to boroughs, repeals the Act of June 2, 1871, P. L. 283, sec. 4, giving the right of appeal to the. quarter sessions.</p> <p>When the record of annexation proceedings is filed in the court of quarter sessions as provided by the Act of April 22, 1903, P. L. 247, the court has jurisdiction only to pass upon any irregularity in the record itself, upon the application of a party in interest. It cannot go behind the record and Open up the proceedings for the purpose of determining whether or not the town council had acted upon good and sufficient grounds, had properly considered the facts involved, or had exercised a proper discretion in the passage of the ordinance providing for annexation.</p> <p>Since the passage of the Act of April 22, 1903, P. L. 247, the remedy of a party aggrieved may be by a bill in equity in the common pleas for relief from the attempted extension of the boundaries of the borough.</p>

Appeal, No. 116, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 1,261, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. Frank Weckerly. Assumpsit on a promissory note. The averments of the affidavit of defense are set forth in the opinion of the Superior Court. The court made absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 33, Oct. T., 1906, hy defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 860, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. William W. Pinkerton.</p>

Appeal, No. 44, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1905, No. 43, discharging rule for divorce in case of Cory L. Penny v. Walter T. Penny. Libel for divorce. Before Halsey, J. The facts are stated in the opinion of the Superior Court. Error assigned was the order discharging the rule for divorce.

<p>Equity — Findings of fact — Review—Appeals.</p> <p>In general, and particularly in cases where the correctness of a judge’s findings of fact in an equity case depends upon the view to be taken of the direct testimony of witnesses which is in conflict, such findings will not be disturbed, except for error which clearly appears; and an apparent preponderance of testimony against them is not sufficient to lead to a reversal, if there is testimony which, if believed, will warrant them.</p> <p>Equity — Granting of an issue — Discretion.</p> <p>In an equity suit the granting of an issue is a matter of discretion with the chancellor. This course is only adopted to inform his conscience, and if he is not satisfied with the finding of the jury he may disregard it. Being solely for the benefit of the chancellor, if he can to his own satisfaction pass upon the evidence without the assistance of a jury trial, he may do so; for the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction.</p> <p>Equity — Assignment of legacy — Collateral security — Finding of indebtedness — Jurisdiction of orphans’ court.</p> <p>Where a bill in equity is filed for the cancellation of a note, a dee'd, and an assignment of a legacy, and the court upholds the note and the deed, and it is admitted that the assignment of the legacy was as collateral only, and was made absolute in form at the plaintiff’s request, the court of equity in which the bill was filed may leave to the orphans’ court the task of ascertaining the indebtedness for which the legacy was assigned, and a refusal to ascertain the indebtedness is not ground for reversal.</p>

<p>Appeal, No. 10, Jan. T., 1907, by defendants, from order of C. P. Luzerne Co., Oct. T., 1905, No. 596, revoking prior order directing sheriff to proceed to execution in case of B. F. Wruble v. C. Day & Bro.</p> <p>Rule for sheriff’s interpleader.</p> <p>From the record it appeared that the court made the following orders:</p> <p>Now, September 28, 1905, the rule for sheriff’s interpleader having been made absolute on September 11, 1905, and more than two weeks having elapsed since that time, and the claimant, B. F. Wruble, having failed to file his statement of title together with a bond, as required by this honorable court and by law, the sheriff is directed to proceed witli the execution.</p> <p>Now, October 4, 1905, order of court made on September 11, 1905, is hereby reconsidered and' rule reinstated and ordered to be placed on argument list for next tejan.</p> <p>Now, October 4, 1905, rule in above case, which was made absolute on September 11, 1905, having been i’einstated and ordered to be placed on argument list for next term, the order of court made on September 28, 1905, clii'ecting the sheiiff to proceed with execution, is hereby revoked and set aside.</p> <p>Errors assigned were the above orders of October 4, 1905, quoting them.</p>

<p>Appeal, No. 30, Jan. T., 1907, by defendant, from judgment of O.'P. Luzerne Co., May T., 1906, No. 162, for plaintiff on case stated in case of March Turner v. Lehigh Valley Coal Company.</p> <p>Case stated to determine whether the defendant was liable to the plaintiff for the value of ninety tons of coal which the plaintiff claimed should have been delivered to him by the defendant. Before Wheaton, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Replevin — Pledge of goods — Statement of claim — Affidavit of defense— Sheriff’s return — Contradiction of sheriff’s return — Act of April 19, 1901, P. L. 88.</p> <p>A statement of claim in replevin shows a prima facie case, which sets forth that the defendant was indebted to the plaintiff, and as collateral for the debt assigned to the plaintiff certain chattels, the possession of which he was allowed to retain until the debt was paid, that the debt had never been paid, and the chattels never delivered to the plaintiff. Such a statement of claim is not overcome by an affidavit of defense averring that there had never been a delivery to the plaintiff either actually or constructively, of the property pledged and replevied. In such a case where the defendant retains possession under a claim property bond, he will not be heard to say that the chattels replevied were not the chattels pledged.</p> <p>In an action of replevin the defendant cannot in his affidavit of defense contradict the sheriff’s return. If there was a wrongful return the remedy is by an action against the sheriff.</p>

<p>Appeal, No. 42, Jan. T., 1907, by-defendants, from order of C. P. Luzerne Co., Dec. T., 1905, No. 693, making absolute rule for judgment for want of a sufficient affidavit of defense in case of A. B. Hazard to use of Western Valve Company v. Exeter Machine Works, Incorporated.</p> <p>Assumpsit for commissions.</p> <p>The averments of the statement and the affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 41, Jan. T., 1907, by Frances E. Simpson et al., from decree of O. C. Lackawanna Co., No. 989, Series A., dismissing petition to enter security in Estate of George W. Simpson, deceased.</p> <p>Petition to compel executors to enter security.</p> <p>Sando, P. J., filed the following opinion :</p> <p>This proceeding is upon a citation to Mark C. Simpson, executor of the will of George W. Simpson, deceased, to give security, under sec. 22 of the Act of March 29,1882, P. L. 190.</p> <p>The petitioners are here appealing to this court under a statutory proceeding, and it is a well-known principle of law that a statute must be strictly construed ; therefore, unless it can be shown that the executor has violated the authority given by the will or that he has mismanaged or is jeopardizing the estate, the petition of the legatees must be dismissed.</p> <p>In their petition they have alleged two grounds on which they ask this court to make the executor give security — first, that he has sold and conveyed to the Pennsylvania Coal Company a large and valuable tract of coal, being a large part of the value of the real estate belonging to the estate, without authority, and causing the coal to be mined and is using the proceeds thereof for his own purposes ; second, that for several years past, he has become intemperate in his habits and is using the personal property in his possession in a reckless and careless manner, and that the petitioners fear that at the expiration of the period of time when the legacies become payable, not enough money belonging to the estate may be found to pay the legacies.</p> <p>This proceeding, to a considerable extent, involves the construction of the will of the testator, from which it becomes necessary to give some pertinent extracts.</p> <p>By the will, the testator first bequeaths, by clause one, to his wife, all the furniture, chattels, effects, etc., in and about his dwelling house; and by clause two, bequeaths to his son William, all his right, title and interest in certain contracts made by the testator for the sale of various tracts of land in Dunmore.</p> <p>He next directs by clause three, that, “ All the rest, residue, and remainder of my estate, real and personal, wheresoever the same may be, I give and devise unto my said wife Mary Jane, during her natural life.”</p> <p>He then, by clause four, directs that, “ From and after the decease of my wife, I give and bequeath as follows: Unto my grand-daughter, Alice Vickers, I give and bequeath three thousand dollars, to be paid by my executor within three years from the death of my wife. I also bequeath to said Alice Vickers my horse, harness, buffalo robe, and best buggy. I give and bequeath unto the husband of said Alice Vickers, E. E. Vickers, five hundred dollars, to be paid by my executor within five years from the death of my wife. I give and bequeath to my great grand-daughter, Jeanne Vickers,' one thousand dollars, to be paid by my executor when said Jeanne shall reach the age of eighteen years. To Eugene Simpson, wife of my son William, I give and bequeath one thousand dollars, to be paid by my executor within five years from the death of my wife. To my grandchildren, May, Lois and Mary Jane, children of my son, Mark C. Simpson, I give and bequeath one thousand dollars each, to be paid by my executor to each one when she shall reach the age of eighteen years. To Milly, wife of my son, Mark C. Simpson, I give and bequeath one thousand dollars, to be paid by my executor within five years from the death of my wife.”</p> <p>He then, by clause six, gives, “ All the rest, residue, and remainder of my estate, real and personal .... unto my son, Mark C. Simpson, his- heirs and assigns forever.”</p> <p>■He then, by clause seven, appoints Mark C. Simpson sole executor, and then continues as follows:</p> <p>“And I hereby give and grant unto my son Mark, my executor, full power and authority to grant, bargain, and sell any and all real estate of which I may die possessed, seized or in any manner entitled to, whenever it shall be necessary to carry out the provisions of my will. . . .”</p> <p>The testator, George W. Simpson, died May 10, 1895, and his widow, Mary Jane Simpson, died June 22,1905.</p> <p>It is to be noted that the executor had no right to use any of the personal property of the estate to carry out the provisions of the will for, under clause three, this was all left to the testator’s wife, the mother of the executor. All of the personal property belonged, therefore, to the wife absolutely, if she cared to use it, during her natural life, as will appear from the following cases: Markley’s Est., 132 Pa. 352; Gold’s Estate, 133 Pa. 495; Heppenstail’s Est., 144 Pa. 259.</p> <p>In 1897, after paying many of the expenses necessary and incidental to administering the estate, the executor had in his possession about $600 belonging to the estate. There was no income from the estate ; taxes, insurance and expenses of repairs had to met; the widow maintained; on January 20,1898, a legacy of $1,000 would be due the granddaughter, May; on April 6, 1900, a legacy of $1,000 would be due the granddaughter, Lois; on January 30, 1904, a legacy of $1,000 would be due the granddaughter, Mary Jane, and without money coming in that the executor could use, he proceeded under the clause in the will which authorized him to dispose of the real estate when needed to carry out the provisions of the will, .namely, clause seven, in which testator authorized his executor to sell any and all real estate “ whenever it shall be necessary.”</p> <p>In the absence of proof of error or mistake or willful disregard of duty, the court will not interfere. with the exercise by executors, in their discretion, of a power to sell real estate: Castor’s Estate, 16 Phila. 360.</p> <p>The testator in naming Mark C. Simpson as executor seemed to'have confidence in his good judgment and integrity, conferred upon him the widest discretion, and gave him “full power and authority to grant, bargain, and sell any and all real estate .... whenever it shall be necessary to carry out the provisions ” of the will.</p> <p>In the exercise of this discretion the executor deemed it advantageous and necessary to make the lease, dated November 9, 1897, recorded in Lackawanna county, December 9, 1897, in deed book No. 158, at page 160, with the Pennsylvania Coal Companjn There is no testimony to show that this was not without knowledge to all parties interested, nor to show that anyone took steps to interfere with or prevent the making of the lease.</p> <p>The widow dying on June 22, 1905, by the provisions of clause four of the will there will be due Alice Vicker}% $3,000, within three years, that is, in June, 1908; to E. E. Vickers, $500, within five years, that is, in June, 1910; to Jeanne Vickers, $1,000, when she shall reach the age of eighteen years, that is, on August 11, 1908; and to Eugene Simpson, wife of the testator’s son William, $1,000 within five years, that is, in June, 1910.</p> <p>It is contended by the learned connsel for the petitioners that the executor, under the testimony and the decisions in McKennan’s Appeal, 27 Pa. 237; Estate of Williamson, 18 Phila. 63, and Parker’s Estate, 64 Pa. 307, is brought within section 22 of the Act of March 29, 1832, P. L. 190, and should be required to give security.</p> <p>What has the executor done, not authorized by the will, and to sustain the allegations of mismanagement of the estate or the property under his charge? The mismanagement alleged is that the executor built a house and mingled his own funds with the funds of the estate.</p> <p>The Pennsylvania Coal Company has paid the executor in royalties for 35,163 tons of coal mined, since the making of the lease in 1897, the sum of $13,900. The executor has made disbursements up to March 25, 1905, a date prior to the death of the widow, for maintenance of the widow; legacies amount-ins to $3,000; necessary charges of taxes, insurance and repairs ; built a new house at the cost of $4,300 on land belonging to the estate; and has a balance in the bank of $2,723.83.</p> <p>Inasmuch as the new house was built in the j-ear 1900, during the lifetime of the widow, and a second partial account, taking credit for the payments for the new house, filed March 25, 1905, and no exceptions thereto being taken, it cannot be contended that the building of, and the payment for, the new house is mismanagement.</p> <p>There is no testimony whatever of the application by the executor of the funds of the testator to the payment of his own debts, as in McKennau’s Appeal, or that the moneys have been used in trade or business or gross dereliction of duty as in the estate of Williamson.</p> <p>This proceeding was begun November 13, 1905, and the first hearing was on, and testimony taken December 11, 1905. On December 20, 1905, the executor deposited in the bank to the credit of the estate of G. W. Simpson the sum of $3,015. At the hearing on January 22,1906, the respondent testified “ that I had no money in the bank in the estate’s account ” at the time of the former hearing, and that the money of the estate was included in his own account.</p> <p>Among the first duties of an executor or other trustee is to separate the moneys of the trust from his own, and deposit the same not in his own individual name, but in his name as an executor.</p> <p>It was improper and an unlawful act for the executor to mix the trust funds to any extent Avith his own. However clear it may be that it Avas Avithout any dishonest intention of making gain to himself, such a practice ought never come before a court without being in some way marked with its disapprobation. The mingling of the estate’s money with his own is an indefensible practice which has always been condemned by the courts.</p> <p>When the executor is authorized to sell the real estate at such time as he may deem necessary to carry out the provisions of the will and he does so, acting in good faith and under advice of counsel, and although depositing the money received from the royalties in his own personal account, does not use the same for his own purposes, and is always ready to make distribution when necessary and pay legacies Avhen due, we are not prepared to visit him with the penalty of compelling him to enter security.</p> <p>The money deposited in the bank since the commencement of this proceeding is noAV money of the estate, but it was not such till after the death of the Avidow, in June, 1905.</p> <p>The undisputed testimony shows the value of the real estate to be from $15,000 to $17,000, exclusive of the coal; that there remains to be mined, including the 17,000 tons in the pillars, from 29,000 to 30,000 tons of coal, and that is deposited in the bank to the credit of the estate about $2,700. The security is therefore ample for the legacies, amounting to $5,500, which are not yet due. The testimony fails to show any neglect or mismanagement of the estate.</p> <p>With regard to the testimony as to the alleged intemperate habits, one witness testified that he saw the respondent intoxicated about eight years ago, a second witness that he saw him intoxicated about fourteen months ago, and a third witness that shortly after the death of the respondent’s wife in May, 1904, she saw him intoxicated.</p> <p>But with this insufficient testimony it is not shown that he is wasting or mismanaging the estate.</p> <p>It is contrary to the spirit of the law to ask an executor, in whom the testator had confidence, to give security, unless he is wasting or mismanaging the estate. This is very clearly and distinctly set forth in Parsons’ Estate, 82 Pa. 465, where the court, inter alia, saj’s : “ It must clearly appear that the executor is wasting or mismanaging the property or estate under his charge, or that for any reason the estate or property is likely to be jeopardized by the continuance of such executor before the court can interfere.”</p> <p>Now, April 7, 1906, the petition to show cause why Mark C. Simpson, executor, should not give security, is dismissed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 13, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1904, No. 16, on verdict for plaintiff in case of Samuel Brader V.- Lehman Township.</p> <p>Trespass to recover damages for personal injuries. Before Halsey, J.</p> <p>The facts relating to the accident are set forth in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $848. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Road law — Paving—Lien—Assessment—Acts of May 23, 1889, P. L. 277 and May 16, 1891, P. L. 69 — Statutes—Repeal.</p> <p>A lien for paving assessed according to the foot-front rule in proceedings under the Act of May 23,1889, P. L. 277, entitled “An Act providing for the incorporation and government of cities of the third class,” is good, if a specification of lien has been filed within six months after the completion of the work. The Act of May 16,1891, P. L. 69, providing for the filing of a lien within six months from the date of final assessment, has no application to proceedings under the Act of May 23, 1889, P. L. 277, and the Act of May 16,1891, P. L. 69, does not in this particular repeal the act of 1889.</p>

<p>Appeal, No. 29, Jan. T., 1907, by plaintiff, from judgment of C. P. Lackawanna Co., Sept T., 1904, No. 337, for defendants non obstante veredicto in case of City of Scranton v. Mary C. Ansley and Joseph Ansley.</p> <p>Scire facias sur municipal lien for a sewer. Before New-comb, J.</p> <p>Tbe facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 11, March T., 1907, by defendant, from judgment of C. P. Sullivan Co., Sept. T., 1902, No. 78, on verdict for plaintiff in case of Commonwealth to use of George E. Brown and J. G. Cott v. Hiram W. Osier et al.</p> <p>Scire facias sur recognizance on sheriff’s bond. Before Teeky, 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>[Subsequently Terry took an appeal to the Superior Court from his conviction in the court of quarter sessions. The Superior Court issued an order making that appeal a supersedeas. The sheriff then returned the aforesaid execution to the court of common pleas, whence it issued, stating his levy and concluding as follows: “This case being appealed to the Superior Court, I respectfully return this writ.”</p> <p>This, gentlemen, the sheriff had no right to do,.unless so ordered by the court of common pleas or. directed to do so by the plaintiff in the execution, or by the attorney of that plaintiff. The sheriff could not legally return his writ without executing it, or endeavoring to do so, as therein commanded. The plaintiff in the execution can control it by directing the sheriff to refrain from following that command; but when neither the plaintiff, nor the court issuing it interferes, it is the duty of the sheriff to make the money the writ calls for if the defendant in it has sufficient property. It is the sheriff’s duty to sell that property and bring the money arising from such sale into court for the plaintiff in the execution.] [9]</p> <p>[ The appeal taken to the Superior Court by Terry was not a supersedeas of the execution ; that is, it did not suspend the operation of that writ. Terry’s conviction was obtained in tlm court of quarter sessions. His appeal was from the sentence of that court. The judgment on his license bond was entered in a different court, the common pleas, and the execution issued from the court of common pleas, and the appeal to the Superior Court from the quarter sessions did not affect or disturb that judgment, or the execution issued on it; nor did the supersedeas granted by the Superior Court. Something more than this was necessary to have such a result.] [10]</p> <p>[Later another execution was issued on the judgment against Terry, Brown and Cott and a levy was made on the property of Cott. To save that property Brown and Cott paid the amount of the execution and took an assignment of the judgment. The sum they paid was 1389.35. Then they issued still another execution on the judgment. This writ came out against Terry, and the coroner, to whom it was directed, made a return thereto, that no property of Terry’s could be found in the county. This established the fact that the judgment could not be collected from Terry, and, if no other question were presented, would make out a case against the sheriff. We say this because it haying been shown that a levy was made by the sheriff on property which was not sold, but which was, owing to his neglect to sell, removed from the county, and subsequent writs having been issued and returned without avail, it is evident that these plaintiffs, who were Terry’s sureties and paid his debt, have lost whatever that property would have brought had the sheriff sold it by virtue of the first execution.] [11]</p> <p>The defendant presented these points :</p> <p>1. The appeal to the Superior Court taken by Terry in the criminal case, and the subsequent supersedeas entered in said case, ousted the right of the use plaintiff to have execution till this appeal was disposed of. It was then the duty of the sheriff to return his writ, and he was guilty of no negligence in so doing. Answer : This point is refused. [13]</p> <p>2. The county of Sullivan was the only party that had the right to enforce the collection of this fine and costs at the time the writ was placed in the hands of the sheriff, notwithstanding the writ had been issued by order of the district attorney, the solicitor for the county had the right to control said writ and to order the same returned. Answer: This point is also refused. [14]</p> <p>3. The subsequent issue of a fi. fa. by the county to collect the amount of fine and costs due upon the sentence imposed upon Terry in the court of quarter sessions was an abandonment of the levy upon the former writ, and a voluntary surrender of any rights that use plaintiff might have in same. The present use plaintiffs, who derive their title by assignment from the county of Sullivan, can rise no higher than their assignors and have no right now to complain that the sheriff was guilty of negligence in not disposing of the property embraced in the levy on the former writ. Answer: This too is refused. [15]</p> <p>4. The sheriff owed no duty to the present use plaintiffs at the time this writ was in his hands, hence he cannot be guilty of negligence in the discharge of his duty to their injury. Answer : This point is refused. [16]</p> <p>Yerdict and judgment for plaintiffs for $374.73. Defendant appealed.</p> <p>Errors assigned among others were (9-11, 13, 16) above instructions, quoting them.</p>

<p>Appeal, No. 1, March T., 1907, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1905, No. 175, on verdict for defendant in case of the Geiser Manufacturing Company v. Frankford Township.</p> <p>Assumpsit to recover on a contract for the sale of a traction engine. Before Sadler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The trial judge gave binding instructions for defendant.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 12, March T., 1907, by defendant, from order of C. P. York Co., Jan. T., 1906, No. 105, discharging rule to open .judgment in case of Adair & Reiff v. Thomas R. Decker.</p> <p>Rule to open judgment.</p> <p>Wanner, J., filed the following opinion:</p> <p>The defendant asks the court to set aside the fi. fa. in this case and to open the judgment and .let the defendant into a defense, on the ground of payment of the several debts secured by this collateral judgment. • ■</p> <p>His petition contains a general allegation of the payment of a certain note of $1,000 indorsed by Adair & Reiff for defendant’s accommodation, and of other notes amounting to $500 given by him for tobacco purchased from them. But no details of the payment are given in the petition to open this judgment, and though the execution plaintiff denied said above payments in the answer'filed, the defendant has offered no further evidence to the court to sustain his allegation of payment.</p> <p>It clearly appears, however, from the testimony of the execution plaintiff and others, that $750 is still due and owing on a renewal note given by defendant for the unpaid portion of the original $1,000 note covered by this collateral judgment.</p> <p>Renewal notes were given from time to time by the defendant, but they were only acknowledgments' of the original debt. It is well settled that they do not constitute legal payments of the debt unless there was an express agreement of the parties to that effect: McCartney v,. Kipp, 171 Pa. 644; Shrew-bury Savings Institution’s Appeal, 94 Pa. 309.</p> <p>There is no evidence in this case of such an understanding between the parties. “ It follows, therefore,” as was said in the last cited case, “ that the indebtedness for which the judgment was given as collateral, being still unpaid, the debtor has no standing to allege that the note is not protected by the lien of said judgment.” This was said of a similar renewal note in that case and is precisely applicable to the facts of this case.</p> <p>Defendant’s counsel contended that this collateral judgment was only given to secure payment of the several notes named in the petition, but the evidence submitted by the execution ■plaintiff, fully establishes the fact that it was a general collateral, and was intended to cover not only the defendant’s then existing indebtedness to the firm of Adair & Reiff, but also such as might afterwards accrue. As there is still 1750 due on a renewal of one of the notes admitted by defendant to have been covered by this collateral judgment, the extent of the collateral is scarcely a material question in this case. The firm would, under the above-recited decisions, clearly be entitled to enforce its collateral judgment against the defendant for this unpaid balance of the debt due it on the original note, although evidenced now only by a renewal thereof. It is claimed by the defendant that the dissolution of the partnership relieves him from payment of this collateral obligation because it was given to the firm only. But by the terms of dissolution all the firm property, assets and claims were assigned to James Adair, the present execution plaintiff, who, in consideration thereof, assumed payment of the debts of the firm. He therefore has the same right to enforce this collateral as the firm itself had, before its dissolution. No authority has been cited to the contrary by counsel and any other conclusion would be manifestly unjust to the creditor and unmerited bjr the debtor, who is under the fullest legal obligation to pay this debt to the assignee of his former creditor.</p> <p>There is no merit in the objection made to the sale of the debtor’s exempt property because it was set aside to him in bankruptcy proceedings. That such property may be seized and sold by a judgment creditor (whose judgment waived the exemption) before the final discharge of the bankrupt, has been repeatedly decided by the courts: Wagenseller v. Gemberling, 18 Pa. Dist. Rep. 716 ; Lockwood v. Exchange Bank, 190 U. S. 294; Sharp v. Woolslare, 25 Pa. Superior Ct. 251; Gilmore & Co. v. Smith, 15 Pa. Dist. Rep. 347.</p> <p>We find no sufficient warrant either in the law or in the facts of this case to justify the court in staying this execution or opening this judgment. There is clearly now due and owing to the execution plaintiff a portion of the original debt due the firm of Adair & Reiff, greater in amount than the whole of the property seized under fi. fa., and the defendant will suffer no injustice if the law is permitted to take its course in the sale of the same: Parrish v. Felts, 12 Luz. Leg. Reg. Rep. 457.</p> <p>The rule to show cause why this fi. fa. should not be set aside, and the judgment note opened, is therefore discharged at the cost of the defendant.</p> <p>On reargument Wanner, J., filed the following opinion:</p> <p>In a former opinion, the court refused to open this collateral judgment, or to set aside the fi. fa. under which the bankrupt defendant’s exempt property was seized, because there remained unpaid a portion of the original indebtedness secured by this collateral, greater in amount than the value of the goods levied upon; and because the exempt property of a bankrupt may legally be sold by a creditor whose judgment contains a waiver of the benefit of the exemption laws.</p> <p>Upon a reargument of the case, defendant’s counsel contended that section 31 of the Act of June 4, 1901, P. L. 404, secures to an insolvent his exemption in all cases, notwithstanding a waiver thereof in his judgment note, and notwithstanding the fact that he may not have made an assignment under the provisions of that act.</p> <p>It was urged that the national bankrupt act of 1898 only suspended such parts of the act of 1901, as conflict with said act of congress, which expressly reserves to bankrupts the exemption allowed them by the state laws in force at the time of the filing of the petition in bankruptcy, and, therefore, that section 31 of the act of 1901, protecting the insolvent against any waiver of the exemption by him, is still effective, notwithstanding the proceedings in bankruptcy in the defendant’s case.</p> <p>But we do not so understand the act of 1901, and the decisions of the Superior Court of Pennsylvania, on this subject.</p> <p>It was held in Potts v. Smith Manufacturing Co., 25 Pa. Superior Ct. 206, after a careful review of the decisions of the courts of this and other states, that the national bankruptcy act was intended to supersede, and does supersede and suspend, all state laws relating to insolvency or bankruptcy; that the act of 1901 is substantially a bankrupt act similar to the national law on the subject, and that congress having passed a bankrupt act, even if the states previous to that had concurrent powers of legislation on the subject, such powers could not be exercised by them, after the enactment of a national bankrupt law.</p> <p>The court, therefore, held that the act of June 4,1901, never became operative at all because of the previously existing national bankrupt act of July 1, 1898, as to any of the persons and subjects to which the latter act applies.</p> <p>The defendant is admittedly subject to the provisions of the national bankrupt act, and the entire act of 1901, so far as he is concerned, is, therefore, suspended and inoperative. He cannot invoke in this proceeding the benefits of section 81 of said act of 1901, while he and his property are in the clutches of the bankrupt laws of the United States. At the time of the filing of this application for a stay of execution, his exempt property had been set aside to him, but he was not yet finally discharged as a bankrupt.</p> <p>The defendant’s contention that section 31 of the act of 1901 protects any and all insolvent debtors against a waiver of exemption, and that it is intended to reverse the former decisions of the courts on that subject, is not supported by any decision to that effect, and the act of 1901 does not seem, on careful consideration, to bear that construction. . Its exemption clause only speaks of certain property which the insolvent shall be entitled to retain “ out of his assigned estate,” and as to which no waiver shall be effective. To so enlarge this language of the act as to include in its protection insolvent debtors generally, irrespective of any proceedings under said act, as contended for by the defendant’s counsel, would be to give to every insolvent debtor in every execution, the' opportunity of escaping with $300 worth of property in spite of his contract waiver of the exemption. Though the Supreme Court of Pennsylvania in Firmstone v. Mack, 49 Pa. 387, intimated that if the question were a new one it would reject a debtor’s waiver of his exemption, yet the court has ever since followed precedent, and enforced the waiver. .</p> <p>We cannot believe that this section of the act of 1901 was inserted to reverse the decisions of the courts of last resort on this subject, and to introduce.a new general rule on the subject of exemptions. A simple general act to that effect, or a clear statement of that purpose in the title of this act, would have been the proper method of accomplishing that purpose. To annul any waiver made previous to the passage of this act would be clearly unconstitutional, because it would impair the obligation of an existing contract. In Weist v. Wuller, 210 Pa. 143, the Supreme Court of Pennsylvania held that where the debtor had waived the stay of execution, his assignee for the benefit of creditors had no standing, under the subsequent provisions of the act of 1901, to demand a stay.</p> <p>The decisions of the courts wherein it has been held that a judgment creditor of a bankrupt in whose favor the latter had waived the exemption, can sell the exempt goods of the bankrupt, are all based necessarily upon the validity of the waiver. They sustain it notwithstanding the provisions of the act of 1901, and an examination of the facts of the cases, shows that in some instances the waiver had been made subsquent to the passage of the act of 1901: Illfelder v. Montgomery, 14 Pa. Dist. Rep. 25; Lafferty v. Patton, 14 Pa. Dist. Rep. 255.</p> <p>Finding no sufficient authority in the statutes or in the decisions of the courts to apply said 31st section of the act of 1901 to this case, we adhere to the conclusion reached in the former opinion filed in this case and, therefore, discharge the rule at the cost of the petitioner.</p> <p>Error assigned was the order of the court.</p>

<p>Will — Construction—Remainder-man—Life estate — “Her and my heirs ” — Husband and wife — Estate tail.</p> <p>Where a husband executes a deed for a nominal consideration of all his estate, real, personal and mixed, to his wife, naming her, “her and my heirs,and assigns,” and it appears that at the date of the deed he had living one child by his first wife and two by the wife named in the deed, the wife takes an estate for life, and upon his death an interest in remainder vests in the child of the first wife, and upon the death of the life tenant the children of such child, he having died intestate in the meantime, are entitled to a share in possession in the real estate covered by the deed.</p> <p>Whilst the precise words, “heirs of the body,” are not necessary to the creation of an estate tail, it is requisite that the heirs shall be limited to be procreated by, or begotten on, some body certain, either by express words or by words amounting to so much. It results that a conveyance to A, and the heirs of the grantor and the heirs of the grantee, even though the grantor and the grantee are husband and wife, neither by express words nor by express implication creates an estate tail, which by virtue of the act of 1855 becomes an estate in fee simple. And it is very clear that a granting clause in that form does not, ex vi termini, vest a fee simple in severalty in A. Further, applying the rule nemo est haeres viventis, it is beyond controversy that such a grant would not, eo instanti, vest an estate in fee simple in A and the living children of the grantor and of the grantee as tenants in common.</p> <p>In this state, when the word “heirs” is used as a word of purchase, it,means “statutory heirs” — those persons designated by the intestate act to take the estate not disposed of by last will and testament.</p>

<p>Deed — Deficiency of acreage — Representations—Oral statements — Judgment — Opening judgment — Evidence.</p> <p>Where an owner of a farm agrees to sell it to another, and the vendor and the vendee employ the same attorney to draw the deed, purchase money mortgage, and an agreement as to liens, and the attorney draws the papers from the title papers submitted to him, and in each of the three papers the land is described as containing in the aggregate about twenty-three acres, and there is uncontradicted evidence that the papers were read in the hearing of the parties, the vendee cannot, on a rule to open the judgment entered on the bond accompanying the mortgage, allege as a ground therefor, that the vendor prior to the execution of the deed had represented to him that the farm contained thirty acres, and that he would not have bought it if he had known it contained the acreage as it actually existed, and such representation is denied by the vendor. In such a ease the rule applies that all prior negotiations and understandings must be presumed to have been merged in and superseded by the deed.</p> <p>Where a contract is executed by a deed and bond, or other security taken for the unpaid purchase money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, nor can there be a recovery for an excess.</p>

<p>Boroughs — Ordinances—Distribution of advertisements — Act of April 3, 1851, P. L. 320.</p> <p>An ordinance which forbids the casting of advertisements, handbills, circulars or waste paper upon the streets, alleys, highways or in other public places of a borough is sustainable by the legislative grant to boroughs of the powers to make such laws, ordinances, by-laws and regulations not inconsistent with the laws of this commonwealth as they shall deem necessary for the good order and government of the borough; to regulate, and to exercise all needful jurisdiction over, the roads, streets, lanes, alleys, public squares and common grounds of the borough; to prohibit and remove any obstruction in the highways of the borough, and any nuisances, whether in the highways or in public or private ground; and “to make such other regulations as may be necessary for the health and cleanliness of the borough.”</p> <p>If an ordinance, or even the same section of an ordinance, contains two separate prohibitions relating to different acts, with distinct penalties for each, one of which is valid and the other void, the ordinance may be enforced as'to that portion of it which is valid.</p> <p>Where a defendant charged with willfully violating a borough ordinance, pleads guilty, and appeals to the court of quarter sessions, he thereby waives mere irregularities in the proceedings, and, to avoid the effect of his plea, he is bound to establish the invalidity of the ordinance as a whole, or to show that his act was not prohibited by the valid part of the ordinance.</p> <p>The placing of advertisements in the vestibules of houses may be prohibited by borough ordinance.</p>

<p>Appeal, No. 179, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1906, No. 91, affirming judgment of burgess in case of Commonwealth, Borough of Wilmerding, v. Ralph Jackson.</p> <p>Appeal from summary conviction.</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. 44, April T., 1907, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 75, refusing a divorce in case of Sophia Simon v. Philip F. Simon.</p> <p>Libel for divorce. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree refusing a divorce.</p>

<p>Appeal, No 79, April T., 1907, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 313, discharging rule to open judgment in case of M. H. Stevenson v. Cathrin Henning.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of’the Superior Court.</p> <p>Error assigned was the order of the court discharging rule to open judgment.</p>

<p>Practice, C. P. — Motion for judgment non obstante veredicto — Evidence —Act of April 22,1905, P. L. 286.</p> <p>The Act of April 22, 1905, P. L. 286, is not intended to change the relative functions of court and jury, so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do.subsequently on review of the whole case what it then appears it would have been proper to do by a binding direction at the trial.</p> <p>Principal and agent — Serving two masters — Commissions—Vendor and vendee — Fraud—C ontract — Rescission—Notice.</p> <p>Where the seller of land, or his agent in the transaction, has knowledge that there exists between the purchaser and another such a relation that it would be a breach of duty on the part of that other person to enter into a similar relation with the seller, the same principle of law which forbids him to do so while still acting for the purchaser, must forbid the seller to enter into that relation with the purchaser’s agent or employee, without the knowledge and consent of his principal or employer.</p> <p>The rule being not merely remedial of actual wrong, but preventive of the possibility of it, it may be invoked not only against the unfaithful agent or employee in an action involving his commissions, or other form of compensation, but also against the seller as the foundation of a right in the purchaser to rescind the contract of sale upon discovery of the constructive fraud.</p> <p>The vendee’s right to rescind is not affected by the fact that a part of the commission paid by the vendor to the vendee’s agent was for services previously rendered by such agent to the vendor in prior transactions.</p> <p>Where a vendor of land gives secret commissions to the vendee’s agent, and knowledge of the fraud is discovered by another of the vendee’s agents three months after the transaction, and after the expiration of such agent’s employment, the notice to such agent is not notice to the vendee.</p> <p>To visit the principal with constructive notice, it is necessary that the knowledge of the agent or attorney should be gained in the course of the same transaction in which he is employed by his client.</p> <p>The act of a vendor in giving secret commissions to the vendee’s agent, although contrary to good faith and the policy of the law, does not make the contract of sale absolutely void. Either ratification or rescission at the election of the vendee is permissible; and omission to repudiate within a reasonable time, unless explained, is conclusive evidence of an election to affirm. The election to rescind must be communicated to the other party. Where it is not declared in judicial proceedings, prompt repudiation and restitution as far as possible must be made by the vendee.</p> <p>Where discovery of the fraud is not made by the vendee until after a suit has been brought for the balance of the purchase money, the vendee has a right to set up the fraud as a ground for rescission, and as a defense to the suit; and he may do this where there is a delay of only two months and a half after the discovery of the fraud, if there has been no such change of conditions in the meantime as to make the rescission inequitable.</p>

<p>Execution — Judgment—Lien—Testatum fi. fa. — Scire facias to r&oive —Acts of June 16,1836, P. L. 755, and May 19,1887, P. L. 132.</p> <p>By operation of the Act of June 16,1836, P. L. 755, a writ of testatum fieri facias entered by the prothonotary in another county becomes a lien in that- county on the real estate of the defendant from the date of such entry unless sooner paid, and that, whether the lien of the original judgment is continued or not. The lien so obtained expires at the end of five years, although the judgment upon which it was issued may .continue to be a lien in the county where it was entered.</p> <p>The Act of May 19, 1887, P. L. 132, which authorizes the issue of execution against personal property under a judgment which has lost its lien upon real estate, without a previous writ of scire facias to revive, does not repeal the Act of June 16, 1836, sec. 80, P. L. 755, declaring the effect of a testatum fi. fa. as to lien on real estate.</p> <p>If it be conceded that a judgment must be revived before a testatum fi. fa. may issue, the restriction is in favor of the defendant, and is one which he may waive. An execution creditor has no standing to object to the testatum writ because it was issued before the revival of the judgment.</p>

<p>Where a jury of view assesses certain landowners with benefits for the construction of a sewer, and also allows the same owners special damages, another landowner has no ground to complain because he did not receive special damages. The fact that there were special damages allowed, and a separate assessment of benefits to certain owners, leads to the belief that the viewers did not consider the other owner’s property damaged by the improvement.</p>

<p>Appeal, No. 170, April T., 1907, by J. Y. Thompson, from judgment of C. P. Greene Co., Feb. T., 1906, No. 94, on case stated to determine the marketable title to real estate in suit of Louie Throckmorton and Charles Throckmorton v. J. Y. Thompson.</p> <p>Case stated to determine the marketable title to real estate. Before Taylor, J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered judgment, for plaintiff on the case stated.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Appeal, No. 171, April T., 1907, by J. Y. Thompson, from judgment of C. P. Greene Co., Feb. T., 1906, No. 95, on case stated-to determine the marketable title to real estate in suit of Elizabeth S. Huffman and Joseph Huffman v. J. V. Thompson.</p>

<p>Criminal law — Sentence—Imprisonment—Supersedeas.</p> <p>Where a prisoner is convicted of a misdemeanor, is sentenced to fine and imprisonment, and immediately enters a bond for his appearance without surrendering himself, and thereafter takes an appeal without securing an order of supersedeas, he cannot, after his appeal has been non-prossed, object to an order of the quarter sessions directing that the sentence be carried into effect, either on the ground that the appeal had not been made a supersedeas, or on the ground that the order was made after the end of the term in which the sentence was imposed.</p>

<p>Bridges — County bridges — Cities—Duty to repair — Toll bridges.</p> <p>Where the duty of maintaining highways is imposed on cities, townships and boroughs, and the duty of maintaining bridges is imposed on the county, the question as to what constitutes an approach to the bridge, in other words, where the duty of the county begins and the duty of the city, borough or township ends, must generally depend for its determination upon the facts of the particular case, and not upon any arbitrary rule relative to the distance from the bridge structure.</p> <p>A company was incorporated under the act of 1874 for the purpose of constructing and maintaining a toll bridge over the west branch of the Susquehanna river from the foot of Maynard street in the city of Williamsport to a point opposite in Armstrong Township; the foot of Maynard street was 1,985 feet distant from the river, and in the following year the company acquired title to a strip of land sixty feet wide extending from that point to the river; in the meantime it constructed a bridge over the river, a bridge over a log basin which lay between the river and the foot of Maynard street, and an artificial roadway about 700 feet long extending from the river bridge to the basin bridge of an average width of thirty feet, and varying in height from three to fifteen feet above the natural level of the land; for twenty-five years this roadway was kept open continuously for public travel, and was used as a public highway by all persons who desired to cross the bridge, as well as by those who desired access to the river and the fields lying on either side of the roadway; in 1891 the county acquired the bridge in proceedings under the act of 1876. Held, in a case stated between the city and the county to determine whether the former or the latter 'was liable for an accident to a pedestrian, that, assuming that the duty of repairing county bridges and their approaches devolved upon the county, it did' not extend to the whole of the highway connecting the two bridges, and that it was incumbent on the plaintiff to show that the place of the accident was within the limits of the approach necessary to make the bridge accessible physically from that highway.</p> <p>Distinction between an approach to a bridge and a way provided for reaching the bridge from another highway considered.</p> <p>Under the Act March 30, 1859, P. L. 309, extended to the county of Lycoming by the Act of March 12,1860, P. L. 144, the city of Williams-port was bound to keep in repair a county bridge located within its limits, and this was the case, although Williamsport was not a city when the act of March 12,1860, was passed.</p> <p>In Pennsylvania there is no common-law duty of counties to repair highways, or bridges or sidewalks and highways; such duty, and consequent liability for negligence in the care thereof, must be imposed by statute, or be held not to exist.</p> <p>Prior to the Acts of March 30, 1905, P. L. 75, 81, the duty of the city of Williamsport to repair county bridges situated within the municipal limits, applied not only to bridges built at the expense of the county, but also to toll bridges which had been freed from tolls, and acquired by the county in proceedings instituted under the Act of May 8, 1876, P. L. 131.</p> <p>Case stated — Facts set forth — Material facts — Practice, C. P.</p> <p>It is essential to a case stated that all the material facts be agreed upon, so that the court may have nothing to do but to pronounce the law arising out of them. As in a special verdict, the facts must be distinctly and expressly agreed upon and set forth as admitted,’ and not left to be inferred from mere evidence; whatever is not so set forth will be taken not to exist.</p>

<p>Appeal, No. 172, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 74, on verdict for plaintiff in case of Joseph A. Herron et al. v. Duquesne Borough.</p> <p>Trespass to recover damages to property caused by leakage of a water main. Before Shaeer, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $1,026. Defendant appealed.</p> <p>Errors assigned were (1, 2) the instructions quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 23, April T., 1907, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, No. 342, on verdict for defendant in case of City of Pittsburg v. Consolidated Gas Company.</p> <p>Scire facias sur municipal lien for taxes. Before Brown, J.</p> <p>The court charged as follows:</p> <p>[This property held by the company was a property that they had the right to put their buildings upon, which means tanks, retorts and everything that goes to the manufacture of gas. It had, in addition to that, the right to use the property for everything that helped to produce the gas; storage of coal, storage of pipes for the distribution of gas. They had the right to use it if you believe they used it in good faith, for dumping purposes, because the refuse from a large plant accumulates rapidly. As the testimony shows, it runs into many tons daily or into several carloads daily. If that had to be transported by this company over a large distance for dumping purposes, the expense perhaps would be very great, and that expense the company would have to get back in some way out of its general business in order to get a fair revenue. It would mean, perhaps, an increase in the price of gas. It may be that gas can be reduced in price, but eveiy additional bit of cost, as, for instance, the cost of transporting the dumping material over a long distance rather than dumping on a piece of ground adjoining, and convenient and cheap for that purpose— the difference would run very rapidly into large amounts of money.] [1]</p> <p>[If the weight of the evidence satisfies you that this company purchased this property in good faith for its corporate purposes, the manufacture and distribution of gas, and incidentally, in connection with that purpose, used it for the storage of coal, the storage of pipes and largely used it for dumping purposes in 1901 and preceding that year and all the way down to the present time and will continue to use it, as I believe the testimony shows, for dumping purposes, until filled, then we think, gentlemen, that the verdict should be for the defendant, the gas company.] [2]</p> <p>[The company, when buying property, does not have to purchase at the time it is about to build its plant just so much ground as is necessary at that time. It has a right to anticipate the future; that, as the city grows, as the demand for gas grows, a larger plant will be necessary not only for building, but for every purpose that helps to bring about the production and distribution of gas at the lowest possible rate, perhaps, consistent with a fair profit.] [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned were (1-3) above instructions, quoting them.</p>

Appeal, No. 175, April T., 1907, by defendant, from judgment of C. P. Washington Co., Feb. T., 1906, No. 97, on verdict for plaintiff in case of Clara Bleadingheiser v. E. E. Crumine, Executor of J. W. Nesbit, deceased. Assumpsit for services rendered as nurse to defendant’s testator. Before Taylor, J. At the trial the defendant claimed that the services had been paid for by checks given by the testator to defendant.

<p>Appeal, No. 48, April T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 1,041, on verdict for plaintiff in case of Lydia Dunn to use of Louis Rauh v. The Farmers’ Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Bbown, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for 1714.89. Defendant appealed.</p> <p>Error assigned was. in refusing binding instructions for defendant.</p>

<p>Appeals, Nos. 123, 130,131, 132, 133 and 134, April T., 1907, by Ella A. Hartón and Harry M. Hartón, Executors of John E. Hartón, deceased, from order of C- P. No. 1, Allegheny Co., Sept. T., 1905, No. 57, on. exceptions to auditor’s report in case of The Prudential Trust Company to use of Michael P. Howley v. W. E. Hildebrand, former owner, with notice to Frank P. Howley, present owner.</p> <p>Exceptions to report of John G. MacConnell, Esq., auditor, appointed to distribute funds raised by sheriff’s sale of real estate.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in the following form:</p> <p>1. The court erred in sustaining the objections to appellants’ mechanics’ liens, which denied their right of lien, and in holding the liens invalid.</p> <p>2. The court erred in not holding that such right of lien was conclusively established, by the judgments obtained thereon, and that in the absence of fraud or collusion, such judgments could not be impeached collaterally.'</p> <p>3. The court erred in not holding that the right of lien being established by the judgments, and the priority of the lien of the judgments over the mortgage having been shown, such judgments were entitled to distribution in preference to the mortgage.</p> <p>4. The court erred in not decreeing distribution to the mechanic’s lien judgments.</p>

<p>Appeals, Nos. 124, 125, 126,127, 128 and 129, April T., 1907, by S. J. Campbell, from order of C. P. No. 1, Allegheny Co., Sept. T., 1905, No. 57, on exceptions to auditor’s report in case of The Prudential Trust Company to use of Michael P. Howley v. W. E. Hildebrand, former owner, with notice to Frank P. Howley, present owner.</p>

<p>Criminal law — Rape—Threats—Charge.</p> <p>On the trial of an indictment for rape, it appeared that the prosecutrix delayed informing her husband of the circumstance until the evening after the morning it occurred, and brought no criminal prosecution until three months thereafter, and that the prosecutrix and her husband, had had a quarrel with the prisoner about a business transaction, and prosecutrix had made threats against him. Defendant presented this point: “The delay in the prosecution should be considered by the jury, and if her explanation of same is unreasonable, and you find from the evidence that it was done to extort money or property from the defendant, these facts afiect her credibility, and if you have a doubt about the truth of her story, then it would be your duty to acquit." The court refused the point, saying: “A reasonable doubt about anything that is material to guilt should work acquittal of defendant, simply some trifling doubt about immaterial things should not." Held, that the answer was harmful error, inasmuch as it had a tendency to create, in the minds of the jury, the impression that the delay under the circumstances was a trifling or immaterial matter.</p>

<p>Common carriers — Carriers—Railroads—Question of fact — Delivery of goods.</p> <p>In an action against a carrier to recover the value of goods alleged not to have been delivered, plaintiff’s witness testified that the plaintiff receipted for a consignment of goods, and received a delivery, but that on subsequent examination the particular package for which suit was brought, was not found among the goods delivered. Witnesses for the railroad company testified that the package had been delivered according to their records. Held, that the case was purely one of fact and for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

Appeal, No. 46, April T., 1907, by J. C. Fair, from decree of O. C. Clarion Co., appointing an auditor in Estate of Hiram Fair, deceased. Decree appointing an auditor. ' The opinion of the Superior Court states the case.

Appeal, No. 212, April T., 1907, by plaintiff, from order of Q. S. Clarion Co., May T., 1907, No. 1, quashing constable’s return in case of Commonwealth v. P. M. Reinsel. Motion to quash constable’s return.

Appeal No. 2, April T., 1907, by defendant, from judgment of C. P. Clarion Co., for plaintiff on case stated in case of Andrew J. Early and Louisa A. Early v. A. B. Coleman. Case stated to determine marketable title to real estate. In addition to the facts stated in the opinion of the Superior Court, it appeared that Rachel Summerville after her father’s death married and had lawful issue, and that thereafter she sold and conveyed the land in controversy.

<p>Liquor law — Distiller’s license — Refusal of license — Appeal.</p> <p>A refusal of a distiller’s license will not be reversed where the order is in the following form: “After hearing and upon due consideration, this application is refused;” and this is the case although no remonstrance was filed, and the certificate and bond were in due form, and no reason was given on the record for the refusal.</p>

<p>Appeal, No. 87, April T., 1907, by libelant, from decree of O. P. Jefferson Co., Jan. T., 1905, No. 54, dismissing libel in divorce in case of Emma Rebecca Baughman v. Robert Isaac Baughman.</p> <p>Libel for divorce. Before Reed, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Trespass — Obstruction of lane — Prescriptive use — Evidence—Cross- ' examination.</p> <p>In an action of trespass for obstructing a private way or lane, where it appears that the plaintiff before purchasing a farm demanded that the lane in question, which was on one of the boundary lines, should be closed, and the plaintiff, the vendor, and the owner of the adjoining land agreed that the lane should be closed, and the adjoining owner subsequently did close it, a sufficient consideration exists between the plaintiff and the adjoining owner to support the agreement entered into between them in relation to the fence.</p> <p>In such a case where the plaintiff claims the right to the lane by prescriptive use, and testifies that the fence was erected against his protest, and claims exemplary damages against the defendant, the adjoining owner, the defendant may show upon cross-examination of the plaintiff an agreement made before plaintiff took title that the fence should be removed, and that in pursuance of such agreement, a fence was constructed along the boundary line, and that it was built by the defendant with the knowledge, consent, and in the presence of the plaintiff, and on an agreement that the plaintiff should bear his share of the expense. Such proof is proper cross-examination, and is not in contradiction of plaintiff's deed. Declarations and acts of the plaintiff may be shown by the testimony of other witnesses, indicating an intention on the part of the plaintiff to abandon the easement.</p> <p>Where a right to a private way on the boundary line between two farms is claimed by prescription, the person denying the right may show that the use of the way had its beginning in the friendly and intimate association of a father-in-law and a son-in-law who owned the adjoining properties, that the use of it was for mutual accommodation, by permission, and so continued thereafter and was, therefore, not adverse. A . change in ownership by a sale of either property does not necessarily change the character of the relation, nor make that hostile which had previously been permissive.</p>

<p>Criminal law — Evidence—Independent crimes — Adultery.</p> <p>Generally speaking, evidence of an independent crime is not admissible in the trial of a defendant for a specific offense; but where the testimony bears upon the conduct and motive of the accused with reference to the particular charge, or where it tends to show the relation between parties in connection with the crime alleged, such evidence is always admissible.</p> <p>On the trial of an indictment for larceny of money stolen from the bed of the prosecutor’s wife, it may be shown that at the time of the larceny the defendant and the wife were living in adultery.</p> <p>Criminal law — Bill of particulars — Larceny—Trespass—Adultery.</p> <p>On an indictment for larceny, a bill of particulars furnished by the commonwealth set forth that the defendant committed the larceny charged in the indictment, and that the taking of the property was accompanied by a trespass. The proof showed that the defendant entered an apartment occupied by the prosecutor's wife, in her absence, and took and carried away the money which she had concealed in her bed. It also appeared that the prosecutor's wife had not acted promptly in an effort- to recover the money. Held, that the evidence supported the bill of particulars, and was sufficient to sustain a conviction.</p> <p>Receipt from the wife of the husband’s goods by an adulterer or one intending to elope with her and live with her in adultery, is larceny from the husband.</p> <p>Where a wife sells land belonging to her husband as an attorney in fact, and receives the purchase money as his agent, and thereafter elopes with another, and her paramour steals the money from her bed in her absence, he may be convicted of the larceny of the husband’s money.</p>

<p>Appeal, No. 50, Jan. T., 1907, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1905, No. 6, dismissing bill in equity in case of Dunmore Borough v. Scranton Railway Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>jError assigned was decree dismissing the bill.</p>

<p>Corporations — Merger—Recording certificate of charter — Office of recorder of deeds.</p> <p>Where several corporations which have been regularly organized under the general corporation Act of April 29, 1874, P. L. 73, and have recorded their respective certificates of charter in the office of the recorder of deeds, have been merged and consolidated under the Act of May 29, 1901, P. L. 349, the certificate of merger of the new company need not be recorded in the office of the recorder of deeds.</p> <p>Corporations — Water companies — Eminent domain — Exhaustion of power.</p> <p>A water company does not exhaust its right to condemn land by a single exercise of the power of eminent domain. It has the right to acquire, by purchase or condemnation, such additional land as it reasonably requires for the extension or enlargement of its plant necessary to enable it to discharge its duty of furnishing the public an adequate supply of water.</p> <p>Where additional land condemned by a water company is adjacent to the company’s existing plant, is marked off by easily visible and well-defined boundaries, and its adaptability for the use intended is obvious, the condemnation is not invalid, because it was not preceded by a preliminary entry and experimental survey, showing topography, grades, and the exact location of each proposed building.</p> <p>Courts — Judges—Prejudice—Previous employment-as counsel.</p> <p>A judge is not disqualified from sitting in a case involving the right of a merged corporation to condemn land, merely because some years previously he had been employed as counsel by one of the constituent corporations in other condemnation proceedings against the plaintiff.</p>

<p>Appeal, No. 6, May T., 1906, by plaintiff, from order of C. P. Mifflin Co., April T., 190-1, No 53, making absolute rule to open judgment in case of The Citizens’ National Bank v. Florence L. Marks.</p> <p>Rule to open judgment. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule to open judgment.</p>

<p>Appeal, No. 16, March T., 1907, by plaintiff, from decree of C. P. York Co., Aug. T., 1906, No. 3, dismissing bill in equity in case of Frank P. Miller Paper Company v. the York Coated Paper Company et al.</p> <p>Bill in equity to enforce liability of directors for corporate debts in excess of capital of a corporation actually paid in.</p> <p>Wanner, P. J., filed the following opinion:</p> <p>Plaintiff’s bill seeks to hold the directors of the York Coated Paper Company individually liable, under the provisions of the Act of April 29, 1871, P. L. 73, in the sum of $1,587, for an excess of corporate indebtedness created by them, over and above the amount of the paid-in capital stock of the said company. It alleges the incorporation of the company, the election of the directors named as defendants in the bill, and an increase of the corporate indebtedness by them, to the amount above named, in excess of the capital stock of said company then actually paid in. But it gives no details as to the specific character of the indebtedness created, or as to the manner in which it was done by said defendant directors.</p> <p>The defendants demur to the insufficiency of the bill as filed, and contend that since the passage of the Act of February 9, 1901, P. L. 3, no personal liability attaches to directors of a corporation for increasing its indebtedness beyond the amount of its paid-up capital stock, provided that it is done in the manner authorized by said act.</p> <p>Section first thereof provides that the capital stock or indebtedness, or both, of any corporation “may with the consent of the persons or bodies corporate holding the larger amount in value of its stock be increased to such amount in the aggregate of each, as it shall deem necessary to accomplish and carry on, and enlarge the business and purposes of the corporation.” It further provides that such increase may be made at once, or from time to time as the stockholders of the company may determine.</p> <p>Sections second and third of the act provide for the submission of the question of such increase by the directors to the stockholders, and how it shall be acted upon by the latter, etc.</p> <p>Section fourth provides that “ nothing in this act contained shall be construed as compelling resort to the process herein provided, in the case of indebtedness contracted in the usual course of corporation business. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.”</p> <p>It was contended by plaintiff’s counsel that this act only refers to an increase of the capital stock or of the bonded indebtedness of a corporation. But both the general language of section one, and the specific terms of section four of the act, clearly show that such was not the intent of the lawmakers. The former sections provided a specific method of procedure for authorizing an increase of capital stock, or of the bonded or other forms of general indebtedness of the corporation, while section four expressly provides that for such increased indebtedness contracted in the usual course of corporate business, no resort to such process is necessary. The act of 1901, therefore, operates as a repeal of the general language of the act of 1874, forbidding any kind of an increase of the indebtedness of a corporation beyond the amount of its paid-in capital stock.</p> <p>It was held in Commonwealth v. Buffalo & Susquehanna Railroad Company, 10 Pa. Dist. Rep. 363, that the act of February 9,1901, extinguishes the proportion which the authorized issue of indebtedness must bear to the amount of paid-up capital stock, and restricts an increase of the stock or bonds, or both, of a corporation, by two things only, the consent of the stockholders of the larger amount in value, and the business necessities of the company, to be determined by the body having authority to issue stock or create corporate indebtedness.</p> <p>It is, therefore, apparent that in any attempt to hold the directors of a corporation individually liable for an increase of the corporate indebtedness, since the passage of the act of 1901, it is necessary that the bill should contain sufficiently specific allegations, as to the nature and extent of the indebtedness, and the manner of its creation, to clearly indicate that the proceedings were not authorized by the act of 1901, and fell within the penal provisions of the act of 1874, for a violation of the law. An inspection of plaintiff’s bill filed in this case discloses only such a general allegation of increase of corporate indebtedness, since the passage of the act of 1901, as may have been made in entire accordance with the requirements of the said act on that subject. From a reading of the entire bill it cannot be concluded that the law as it now exists on the subject has been violated by the defendant directors of the York Coated Paper Company.</p> <p>It is also contended on the part of the defendants that the plaintiff, under the provisions of the Act of July 18, 1868, P. L. (1864) 1102, secs. 41 and 42, should have first proceeded to judgment and execution against the corporation itself with a return of the latter unsatisfied, before it had a right to file its bill in equity to hold the directors responsible for the alleged increase of corporate indebtedness.</p> <p>An inspection of the act shows that to be the method prescribed therein, and as the provisions of said act are extended to York county by the Act of April 4, 1865, P. L. 60, a noncompliance with its provisions in that regard makes the plaintiff’s bill demurrable: Green v. Whitehead, 5 Pa. Dist. Rep. 612 ; Wagner v. Corcoran, 2 Pa. Dist. Rep. 440.</p> <p>In the last cited case it was held that the act of April 29, 1874, did not either expressly or by implication repeal secs. 41 arid 42 of the act of July 18,1863, with reference to the method of procedure which must be followed to hold the directors of a corporation liable individually for creating an excess of indebtedness over the amount of capital stock paid into the company.</p> <p>For the reasons above stated the plaintiff’s bill seems to be clearly deficient in form and substance, and so lacking in the material allegations of fact necessary to fix upon the directors of this company any individual liability, as to require no answer from the defendants.</p> <p>The demurrer is therefore sustained and the bill is dismissed at the cost of the plaintiff.</p> <p>Error assigned was decree dismissing the bill.</p>

Argued, No. 162, April T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 801, on verdict for plain tiff, in case of J. W. Marlatt & Son v. School District of Aleppo Township. Appeal from judgment of alderman. Verdict and judgment for plaintiff for 175.00.

<p>Road law — Paving—Grading—Single improvement — Sidewalks—Notice — Act of May 16, 1891, P. L. 75.</p> <p>Where an ordinance for the grading and paving of a street, a part of which is level and a part hilly, provides that the level part shall be paved with asphalt, and the hilly part with block stone, and the work is let in two contracts on the same day, the asphalt paving being given to one contractor, and the stone paving to another, the work though done under the two contracts is a single improvement, and one jury of view may assess the benefits therefor.</p> <p>A sidewalk is not included in the term “street” within the meaning of the statute of Pennsylvania relating to the paving and grading of streets.</p> <p>A municipality cannot charge a property owner with the cost of laying a sidewalk, unless the owner has been previously notified to do the work, and has refused or neglected to do so.</p>

<p>Beal estate brokers — Brokers—Principal and agent — Evidence—Statement of claim — Admission of record.</p> <p>In an action to recover commissions on sale or exchange of real estate, where the plaintiff describes himself in his statement of claim as “a dealer in real and personal property, and in the regular course of business,” made the sale or exchange in question, and it is admitted that plaintiff had not taken out a license as required by law, the statement of claim is admissible as evidence tending to show that the plaintiff is a real estate broker, and when the statement is supported by the evidence of two witnesses called by the defendant, it is error for the court to give binding instructions for plaintiff.</p> <p>Practice, C. P. — Repeated offers of testimony — Trial.</p> <p>In considering the propriety of a refusal to permit counsel to make a formal offer of testimony, because a similar offer had already been made and ruled, much must be left to the sound discretion of the judge.</p>

Appeal, No. 139, April T., 1907, by defendant, from order of C. P. No. 2, Allegheny Co., Jan. Term, 1901, No. 39, discharging rule to open judgment in case of Mary L. Youngk v. Elizzie S. Keim. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was in discharging rule to open judgment.

<p>Practice, C. P. — Motion for judgment non obstante veredicto — Evidence —Fraud—Act of April 22, 1905, P. L. 286.</p> <p>In an action of assumpsit where the defendant sets up fraud as a defense, and the court overrules a request for binding instructions for plaintiff, and a verdict is rendered for defendant, the plaintiff may move for judgment upon the whole record non obstante veredicto as provided by the Act of April 22, 1905, P. L. 286, and this motion does not need any prior reservation of a question of law to support it.</p> <p>In such a case the appellate court will proceed to a consideration of the evidence, not as a jury would in a case where there is a conflict of testimony, or where the credibility of witnesses is involved, nor as a trial court would in a case where a motion for new trial is made upon the ground that the verdict was against the weight of the testimony, but as an appellate court does in a case where the trial judge has affirmed the plaintiff’s point requesting binding instructions in his favor, and the defendant has appealed from the judgment upon the verdict so directed.</p> <p>False representations — Fraud—Declaration of intention.</p> <p>Exptessions of purpose, promises and predictions, that fail of realization, are fraudulent in law only when they are connected with misrepresentations respecting alleged facts, or falsely held out a prospect of collateral advantages that leads the vendor to accept a price greatly below the real value of the property parted with.</p> <p>Evidence — Contract—Written instrument — Prior negotiations.</p> <p>When parties have deliberately put their engagements into writing, in such terms as import legal obligations, without any uncertainty as to the object or extent of such engagements, all prior negotiations are merged in and extinguished by the written instrument which is the final result of their bargainings.</p> <p>Vendor and vendee — Lease—Consideration.</p> <p>Where a vendor of land has accepted a lease of the land from the vendee, has received full consideration for the land, and subsequently acknowledged the binding force of the lease, he cannot allege that the lease was procured from him by fraud.</p> <p>Vendor and vendee — Escrow—Condition—Voidable title — Delivery— Covenant — Fraud.</p> <p>An escrow is a written instrument, which by its terms imports a legal obligation, deposited by the grantor, promissor or obligor, or his agent with a stranger or third person,.that is, a person not a party to the instrument, such as the grantee, promisee or obligee, to be kept by the depository until the performance of a condition or the happening of a certain event, and then to be delivered over to take effect. Where the future delivery depends upon the payment of money, or the performance of some other condition, and the grantee obtains possession of the deed without performing the condition, he acquires at the most but a voidable title to the land described. If the condition precedent be expressed in writing, the construction of the writing is for the court. While the courts generally hold the grantee to very strict compliance with the conditions precedent to delivery, yet, in determining from the writing what they are, no constrained construction is to be put upon the words in order to make that a condition precedent which was not clearly so intended by the parties.</p> <p>Where words can be construed either as a condition, a reservation, or a covenant, the latter construction is favored.</p> <p>An owner of a mill deposited with a trust company a deed for his property, in escrow. By the terms of the escrow agreement he was to receive money and stock of a corporation, which was to take title to the property. Subsequently he was notified that the option in the escrow agreement had been exercised. The trust company delivered the deed to the purchaser, and forwarded the money and stocks to the grantor, who receipted for them. About the same time the grantor executed a lease whereby he covenanted to operate the mill for a period of sixty days as lessee. After the organization of the corporation he acknowledged his liability for rent to the company. In an action against him for rent he attempted to avoid the lease on the ground that certain representations had been made to him as to the source from which the corporations was to derive the money part of the consideration. There was no evidence that any false representations were made to him to his injury, at the time of the execution of the deed in escrow, or that he was induced to sign the deed by any representations that the money part of the consideration was derived or was to be derived from any particular source. Held, that the defense set up was insufficient.</p>

<p>Appeal, No. 214, May T., 1907, by tbe German Protestant Orphan Asylum, from decree of O. C. Allegheny Co., Sept. T., 1906, No. 337, dismissing exceptions to adjudication in Estate of George T. Jacoby, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Superior Court states the ease.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 100, April T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 34, on verdict for plaintiff in-case of Mary Ella Weedon, by her next friend, C. E. Lipscomb, v. HughH. Weedon.</p> <p>Libel for divorce. Before Kennedy, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were portions of the charge quoted in the opinion of the Superior Court.</p>

<p>Judgment — Opening judgment — Forgery—Evidence—Indictment—Estoppel of record — Contradiction of party.</p> <p>On the trial of an issue to determine the validity of a judgment entered upon a judgment note signed by two persons, where one of the defendants swears that his signature was a forgery, it is proper to admit in evidence a written information signed and sworn to by the plaintiff, charging the other defendant with having feloniously forged to the note in suit, the name of the defendant who denied his signature. Such evidence, however, is not conclusive on the plaintiff, nor is it necessary that it be -regarded as contradictory of any testimony delivered by him on the witness stand.</p> <p>A witness speaks in court through his testimony only and hence his testimony forms the sole -basis upon which the inconsistency of his other statement is predicated. But a party, whether he himself take the stand or not, speaks always through his pleadings and through the testimony of his witnesses put forward to support his pleadings; hence the basis upon which may be predicated a discrediting inconsistency on his part includes the whole range of facts asserted in his pleadings and -in the testimony relied on by him. Thus, in effect and broadly, anything said by the party may be used against him as an admission, provided it exhibits the quality of inconsistency with the facts subsequently asserted by him in pleadings or in testimony.</p> <p>On the trial of an issue to determine the validity of a judgment, where one of the two defendants testifies that his signature is a forgery, an indictment against the other defendant returned by the grand jury as a true bill, is inadmissible; and it is immaterial that the name of the plaintiff had been indorsed on the bill by the district attorney, as a witness for the state. Such testimony is dangerous, as it would be both easy and natural for the jury to regard the finding of the grand jury as a determination, by an independent tribunal, that a forgery had been committed, and to give it weight accordingly.</p> <p>Evidence — Witnesses—Forgery—Expert witnesses.</p> <p>On the trial of an issue where the question involved is the forgery of a signature, witnesses may testify who are actually familiar with the genuine signature of the defendant, either from having seen him write, or from having conducted a correspondence with him, or from having seen signatures acknowledged to be genuine and acted on them in the usual course of business. Such witnesses are not expert witnesses, and are not required to qualify as such. The scantness of their knowledge affects their credibility rather than their competency.</p> <p>A mere general comment in a charge disparaging the quality and value of expert testimony, is not ground for reversal.</p>

<p>Appeal, No. 210, April T., 1907, by</p> <p>defendant, from judgment of C. P. Somerset Co., Sept. T., 1903, No. 57, on verdict for plaintiff in case of J. B. Davis, W. S. Kuhlman, Samuel S. Beal and Lewis Habernicbt, Councilmen of the Evangelical Lutheran Church, at Ursina, Pa., v. Sarah Catherine Robinson, wife of Charles F. Robinson.</p> <p>Ejectment for land in the borough of Ursina. Before Koosek, P. J.</p> <p>The facts appear by the report in 32 Pa. Superior Ct. 90, and by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff.</p> <p>Errors assigned were instructions quoted in the opinion of the Superior Court, and refusal of binding instructions for defendant.</p>

<p>Municipalities — Police power — Subsurface of street — Water pipes — Gas company — Public health.</p> <p>Except as restricted by the act under which a public service company derives its powers, the police power of a borough or city extends to such occupancy and use of streets, whether upon or beneath the surface, as in its nature requires, or justifies supervision at the hands of the municipality in order to safeguard the public in their rightful use of the same streets as those that are occupied by the public surface company.</p> <p>Whatever right a gas company acquires in a public street is subject, in so far as the location of its pipes in any particular part of a street is concerned, to such future regulation as may be required in the interest of the public health and public welfare.</p> <p>Where a city finds it necessary, in the interest of the public health, to lay a water main in a street in the location occupied by the gas pipe of a gas company, it may remove the gas pipe to another part of the street, and the gas company has no right to object to such removal or to demand damages or compensation on account thereof.</p> <p>The exercise of such a power by the city is referable to, and sustainable by, its police power; and the constitutional provision relative to compensation for property taken, injured or destroyed in the exercise of the power of eminent domain, has no application.</p>

<p>Marriage — Husband and wife — Evidence—Competency of surviving widow.</p> <p>A woman claiming to be a surviving widow is a competent witness to prove her marriage with the decedent.</p> <p>Marriage — License—Application for license — Laches.</p> <p>A marriage is not invalidated by the fact that the woman alone procured the license; nor by the fact that there was an interval of four months between the date of the license and the date of the marriage.</p>

<p>Appeal, No. 188, April T., 1907, by defendant, from judgment of C. P. Cambria Co., June T., 1904, No. 213, on verdict for plaintiff in case of William and Cora J. Davis v. The Pennsjdvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Bell, P. J., specially presiding.</p> <p>The plaintiff presented the following points:</p> <p>3. While it is true that trains must be run at a high rate of speed to reach their greatest utility, yet in populous towns and cities where the tracks cross a much traveled street or highway, the speed must be moderated or such other precautions taken by the company as are reasonably commensurate with the danger of life, limb and property. Answer: This point is affirmed. [12]</p> <p>4. As it is an undisputed fact that there was no flagman stationed or gates maintained at the crossing of the public highway or street by the defendant’s tracks at Cresson, where the plaintiffs’ son was killed, if the jury find from all the evidence that the public safety could not be reasonably secured at said crossing otherwise than the company having a flagman stationed or gates maintained thereat, they may find negligence on the part of the company, the defendant in this case, on account of the absence of said flagman or gates. Answer : This point is affirmed. We call your attention to our instructions in the general charge that the company were not bound to- maintain a flagman or safety gates unless it was a much traveled crossing and a dangerous one. To rule otherwise would be to submit to a jury, to find negligence on the part of the railroad company every time that any person was killed at any grade crossing. [9]</p> <p>5. Even though the whistle were blown and the bell rung on the engine which struck and killed the plaintiffs’ son, yet, if under the particular circumstances of the ease, the jury find that the public safety was not reasonably secured at the crossing by reason of the absence of a flagman or of gates, they may still find that the defendant was negligent. Answer: This point is affirmed. [10]</p> <p>6. If the jury find from the weight of the evidence that the whistle on the engine which struck and killed the plaintiffs’ son was blown at such a place that it could not be heard at the crossing where the deceased was killed by reason of the fact of the noise caused by another train going east, and also find that no other sufficient warning of a train was given, the jury may find that the defendant was negligent. Answer: This point is affirmed. But at the same time we call your attention to the fact that the railroad company are only required to use ordinary care under the circumstances, and if they provided for the blowing of a whistle at a place where a man of ordinary prudence and judgment would provide for the blowing of a whistle, then they have performed their full duty as far as the blowing of a whistle is concerned. [11]</p> <p>Defendant’s counsel have requested the court to answer the following points:</p> <p>1. That inasmuch as the testimony is clear that decedent was standing close to the north rail of the track, observing a freight train passing in the opposite direction, he was in a dangerous place, and the plaintiffs cannot recover. Answer: This point is denied, because the deceased, William Davis, Jr., was under the age of fourteen years. If he had been over fourteen we would have affirmed the point, and, as we have stated in the general charge, take the responsibility of directing a verdict for the defendant; but as the deceased was under fourteen, we think it is not for the court to say that he was guilty of contributory negligence, but the question as to whether or not he was guilty of contributory negligence is for the jury. [1]</p> <p>2. That the measure of the boy’s contributory negligence is his capacity to see and appreciate danger: and in the absence of clear evidence of the lack of. it, he will be held to such measure of discretion as is usual in those of his age and experience, and the question is for the court. Answer: This point is denied, and our remaining answer would be the same as our answer to defendant’s first point.</p> <p>3. Inasmuch as the engineer and the decedent had a clear view of the crossing and the approach of the train for more than 4,000 feet, the fact there was no safety gates or flagman at the crossing is immaterial. [2] Answer : This point is denied as applicable to this present case for the reason that William Davis, Jr., was under the age of fourteen. If he had been over the age of fourteen, then, as we have said in our general charge, we would say that he was guilty of contributory negligence and direct a verdict for the defendaut. [3]</p> <p>4. Inasmuch as there was a clear view of more than 4,000 feet between the crossing and the train, a speed of forty miles per hour is not excessive at this particular crossing. Answer: This point is denied as put. The question of the speed of the train is for the jury, if they come to the question of alleged negligence on the part of the defendant. [4]</p> <p>5. That there is not sufficient evidence to submit to the jury that it is an extraordinarily dangerous grade crossing. Ansiver : This point is denied. That is a question for the jury to consider under the weight of the evidence. [5]</p> <p>6. That inasmuch as the engineer saw the boy for a long distance and the tower men saw him for almost 600 feet standing on the track watching a freight pass, the presumption that he stopped, looked and listened is withdrawn, and the facts not being controverted, he was guilty of contributory negligence, and the plaintiffs cannot recover. Answer : This point.is denied, because William Davis, Jr., at the time of his decease, was under the age of fourteen. If he had been over fourteen we would have taken the case from the jury. [6]</p> <p>7. That under the evidence the verdict should be for the defendant company. Answer : This point is denied. We submit the question to you to determine what your verdict shall be under the law as this court has instructed you, viewed in the light of the evidence as you have heard such evidence. [7]</p> <p>8. That inasmuch as the mother, who is living, is not a party to this action, the plaintiffs cannot recover. Answer: This point is denied as the case stands at present. The plaintiff, William Davis, Sr., this morning amended his cause of action by adding Mrs. Cora Davis as a coplaintiff, and in that view of the matter the point is denied.</p> <p>Verdict and judgment for plaintiff for $1,250. Defendant appealed.</p> <p>Errors assigned were (1-12) above instructions, quoting them.</p>

<p>Vendor and vendee — Suit for purchase money — Prior agreements — ■ Fraud — Evidence.</p> <p>In an action by a vendor to recover the balance of purchase money, where it appears that the vendee had given a bond to secure such balance, and at the same time had accepted a deed of general warranty, he cannot set up as a defense a prior written agreement not produced, and whose existence is denied by the plaintiff, alleging that the vendee was not to pay interest until a certain incumbrance was removed, and it appears that the vendee knew of the incumbrance, and the bond stipulated for interest, and the vendee does not allege that there was any fraud, accident or mistake, or that he was induced to sign the bond by reason of any alleged written or parol agreement.</p> <p>A deed constitutes the final agreement between the vendor and vendee, and is presumed to supersede all other agreements different, therefrom.</p>

<p>Judgment — Payment—Question of fact — Case for jury.</p> <p>On the trial of an issue framed upon an opened judgment, where the defense is payment, and this is a pure question of fact, a verdict and judgment for the defendant will be sustained, if it appears that the issue involved was properly submitted to the jury.</p>

<p>Negligence — Borough—Unsafe sidewalk — Country road — Road law— Contributory negligence.</p> <p>A highway may be maintained as a country road within a borough or city in districts not built up or thickly settled. Where a portion of such highway is actually used by the public, the municipality must maintain such portion in a reasonably safe condition for vehicles and pedestrians, and this duty extends not only to the cartway, but also to the sidewalks.</p> <p>A borough may be charged with negligence in failing to keep a sidewalk in repair, where it appears that a defect in the sidewalk was at a point where the cartway was a country road, although a borough highway, that at the point in question the road was thiclcly built up, that the sidewalk was much frequented, and that there was no sidewalk on the other side of the street.</p> <p>In such a case where it appears that the highway was rough and uneven, and the defect in the sidewalk not manifestly dangerous, the court cannot say as a matter of law that a person injured by reason of the defect was guilty of contributory negligence. This question is for the jury.</p> <p>Where the danger is so great and apparent that a person of ordinary prudence would regard the situation as dangerous, and, therefore, avoid it, the court should say as a matter of law that the person taking the risk to his damage, is guilty of contributory negligence; but this can only be done in clear cases.</p> <p>In an action against a borough to recover damages for personal injuries sustained by a fall on a defective sidewalk, the plaintiff testified that he was going from a store to his home between nine and ten o'clock at night; that he took several steps on the boardwalk, and as he placed his right foot on a plank the plank flew up and struck him in the right groin; his -right foot slipped off the end of the plank into the gutter, as a result of which he was thrown forward on the end of the plank into the gutter and street. It appeared that the walk was constructed of stringers and cross planks. The stringers were decayed, and the planks rested on the ground in places. The walk was higher than the gutter and the street. Held, that the case was fór the jury.</p>

<p>Appeal, No. 187, April T., 1907, by Mary F. Huth, from order of C. P. Beaver Co., Dec. T., 1906, No. 1, allowing auditor’s fee, In re Distribution of the Balance shown by the First Partial Account of Ira F. Mansfield, Receiver of the Point Bottle Works Company.</p> <p>Exceptions to auditor’s report.</p> <p>From the record it appeared that Mary F. Huth excepted to the allowance of $500 to the auditor as excessive. Hodt, P. J., dismissed the exceptions.</p> <p>Eri'or assigned was in dismissing the exception.</p>

Appeal, No. 221, April T., 1907, by defendant, from decree of C. P. Butler Co., Equity Docket No. 2, Sept. T., 1906, on bill in equity in case of E. A. Black et al. v. Pittsburg & Butler Street Railway Company. Bill in equity for an injunction. Galbbeath, P. J., filed the following opinion: FINDINGS OF FACT. 1.

<p>Appeal, No. 218, April T., 1907, by the Commonwealth of Pennsylvania, from decree of O. C. Allegheny Co., Sept. T., 1903, No. 150, overruling exceptions to adjudication in estate of Theodore Koering, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that in 1893, Theodore Koering was charged with certain escheat money, due the commonwealth. He died November 1,1900, without having paid over this money. More than two years after Koering’s death, his real estate was sold, and the proceeds became the fund for distribution in this proceeding. The commonwealth claimed out of the fund the escheat money due by the decedent.</p> <p>The auditing judge disallowed the claim, but on exceptions the fund was distributed to the commonwealth.</p> <p>On motion a reargument was allowed, and Hawkins, P. J., filed the following opinion:</p> <p>The claim presented in this case should be rejected on these grounds:</p> <p>The commonwealth having been expressly named as one of the objects of litigation in the act of February 24, 1834, its claim is thereby taken out of the general rule of exemption from the running of the statute of limitation : State v. Crutcher, 2 Swan, 504. The 21st section of that act provides that, “ All debts owing by any person within this State,” shall be paid in. ¡ a prescribed order, including “ debts due the Commonwealth,” which are placed last; and these are necessarily the same “ debts ” whose lien is limited by the 24th section of the same act to five years, unless an action at law be commenced and duly prosecuted. The fact that debts due the commonwealth were ordered to be paid last was said in Mitchell’s Estate, 2 Watts, 87, to manifest an.intention to abandon any supposed preference which the commonwealth might otherwise have had under the rule of common law. “ The maxim of the common law does not apply when from the whole Act a contrary intention can be collected.” The whole scope and spirit of the act shows that it is intended to prevent heirs and purchasers from being surprised by claims against decedent himself not placed on the record in proper time: Cobaugh’s Appeal, 24 Pa. 143. “ The great object of the Act,” said the court in Oliver’s Appeal, 101 Pa. 299, “ was to quiet the title of heirs and devisees, and purchasers from them, of lands derived from decedents. It was only necessary for the purchaser or mortgagee to resort to a single office, the prothonotary of the county, to ascertain whether or not any action had been brought or copy or statement of any judgment filed within the period of five years from decedent’s death. If there was no mortgage or judgment at the time of his death and the office of the prothonotary was clear of any action or statement of demand, he might rest perfectly secured that his title was unincumbered by any debts or judgments against the estate of the decedent, whatever the nature of the judgment might be.” Debts due the commonwealth were just as much within this purpose as those of its citizens. It was just as important to heirs, devisees and purchasers that the land should be freed from the lien of debts of this class as any other. They could not “ rest perfectly secure ” until debts of every nature had been satisfied. The right of the commonwealth to lien at all rises out of the system of statutory law of which this act is part, and it is as much bound by the rules prescribed for the administration of justice as any citizen- Attorney General v. Radloff, 10 Exch. 84, Pollock, C. B.; Mitchell’s Estate, 2 Watts, 87. It is for this reason that the commonwealth is bound to present its claim on audit of the administrator’s account: Mitchell’s Estate, 2 Watts, 87; and there is just as much reason why it should bring an action to continue a lien which must otherwise cease to exist. An analogous case is found in that line of cases in which it has been held that the commonwealth gains no preference over other creditors when it fails to file the statement required by the act of 1827: Gladden v. Chapman, 188 Pa. 586. The policy of the law to facilitate the settlement of estates and unshackle titles and discourage secret liens is in the interest of public prosperity.</p> <p>The commonwealth, having failed to bring action as prescribed by the act of 1834 and its supplements, has lost its lien.</p> <p>Error assigned was disallowance of commonwealth’s claim.</p>

Appeal, No. 192, April T., 1907, by plaintiff, from judgment of C. P., No. 1, Allegheny Co., Sept. T., 1903, No. 944, on verdict for defendant in case of Catherine F. Maisch v. Order of Americus. Assumpsit on a beneficial certificate. Before Brown, P. J. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed. JError assigned was in giving binding instructions for defendant.

<p>Pipe lines — Construction of lines — Trespass—Failure to condemn— Equity — Injunction—Finding of fact.</p> <p>A pipe line company which constructs pipe lines upon land without complying with the conditions precedent to the exercise of the power of eminent domain, and without the plaintiff’s consent, either express or to be implied from knowledge and failure to object, may be enjoined from operating the lines, unless within a period fixed, it proceeds to the condemnation of the land and the assessment of damages.</p> <p>In such a case a finding of fact by the court that the owner had no knowledge of the construction of the line, will not be set aside on appeal, where it appears that the finding involved a consideration of the credibility of witnesses, and there was no manifest error.</p> <p>An action of trespass against a pipe line company which has illegally,1 and without consent, laid a pipe line across the plaintiff’s land, is not res ad judicata to a subsequent bill in equity by the owner to restrain the operation of the line, where it appears that the trespass suit was brought merely to establish plaintiff’s right, and that the recovery therein was for nominal damages only.</p>

<p>Contract — Evidence—Parol contract — Inducement—Fraud—Written instrument.</p> <p>When a party is inveigled into signing a -written contract upon the faith of a contemporaneous agreement which is violated as soon as it has accomplished its purpose in securing the execution of the paper, such oral agreement may always be shown when the enforcement of the paper is attempted.</p> <p>In an action for goods sold and delivered under an alleged written contract, an affidavit of defense is sufficient which avers that at the time the writing was signed defendant refused to buy the goods, that plaintiff’s agent thereupon falsely and fraudulently represented to defendant that the writing would be held merely as a memorandum of goods to be placed on sale in defendant’s store to be sold by him as an agent, and that it would not be enforced according to its terms, and which further avers that defendant would not have signed the paper except upon the inducement of the parol agreement.</p>

<p>Appeal, No. 185, April T., 1907, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 750, oh bill in equity in case of John H. Sawyer v. The Southwest Pennsylvania Pipe-Lines.</p>

<p>Appeal, No. 195, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 586, on verdict of guilty in case of Commonwealth v. W. A. Martin.</p> <p>Indictment for bribery.</p> <p>Evans, J., charged as follows :</p> <p>The defendant is indicted under the Act of assembly of May 23, 1874, P. L. 230, which provides that certain acts therein described, by certain persons mentioned, shall be indictable. The section of this act applying to this case has been read by counsel, but in order that it may be impressed more fully upon your minds, I will read it again.</p> <p>Section 8. “ A member of Council who shall solicit, demand or receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward, thing of value or enjoyment, or of personal advantage, or promise thereof, for his vote or official influence, or for withholding the same, or with the understanding, expressed or implied, that his vote or official action shall be in any way influenced thereby, or who shall solicit or demand any such money or other advantage, matter or thing aforesaid, for another, as the consideration of his vote or official influence, or for withholding the same, or shall give or withhold his vote or influence in consideration of the payment or promise of such money, advantage, matter or thing to another, shall be guilty of bribery.”</p> <p>In the first clause I ask your special attention to the terms used so far as they affect the action of the member of council “who shall solicit, demand, receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward or promise thereof” to influence his public act. The defendant has been since the first Monday of April a member of the common council of this city, and the act of assembly under which this defendant is indicted, applies to the common councilmen of this city. Therefore, you start with a proposition that this defendant is subject to the provisions of this act. There was before the councils of this city, as shown by the records thereof offered by the commonwealth, in this case, an ordinance granting certain rights and franchises to the Pittsburg and Tube City Railroad, and the evidence on the part of the commonwealth is that the president of the railroad, and the person who actively represented it in negotiating for the passage of that ordinance through councils, was one C. S. Cameron; that the engineer of that railroad, who had prepared its plans and made its surveys, was Milholland; that Cameron had an office in the Arrott building in this city, at the corner of Wood street and Fourth avenue, and that Milholland had an office in the Victory building, on Fourth avenue, above Smithfield street. There is not, so far as I have heard from the evidence or from the remarks of counsel, any contention that these facts as I have related to you are not true. This ordinance had passed select council and had been sent through in the regular course of eouncilmanic business, to common council, and on motion of this defendant, Martin, the rules were suspended, and the ordinance was passed second reading. Millholland, the engineer of the Pittsburg and Tube City Railroad, was called upon the stand to testify to certain transactions, and did testify to certain transactions between himself, C. S. Cameron and the defendant. I do not propose going over in detail all the testimony, but you will remember that he testified to first receiving a check, which he saw lying on the table in the presence of Cameron and Martin, with instructions for him to take it and put it in a safe deposit vault, which he had already rented at the suggestion of Cameron, and to hold the check subject to the order of Martin and Cameron ; that he subsequently returned that to Cameron on the order of Martin; that at different times he received packages purporting to contain $60,000 and $70,000, which he would receive in the presence of Cameron and Martin, with instructions to put them in his safe deposit vault, and keep them safe and hold them subject to the order of Cameron and Martin, as he put it; that he returned them when ordered to Cameron and Martin, each of which packages he subsequently returned to Cameron on the order of Martin, and on one or two occasions Martin stating that “ It’s all off.” That he received the keys under similar circumstances, to be put in safe deposit vaults, which he was to hold subject to the order of Cameron and Martin.</p> <p>The csommonwealth has produced upon the witness stand a trian by the name of Richardson, who testified as to his providing the $60,000, and on two or three occasions, I have forgotten Which, $70,000, at the request of Cameron, and of delivering it to Cameton in the presence of Martin, and of his getting it back again under an arrangement with Cameron. Milholland testified that his understanding of this transaction, so far as the handling of this money was concerned, was that the $60,000, 'that the $70,000 was used, or to be used, for the furtherance of the Tube city ordinance through councils and over the mayor’s veto. He testified that he got his information from Martin and from Cameron both. Now, there has been considerable said upon the subject of Milholland’s character and acts in this connection. It has been stated that Milholland is in the employ of some persons interested in the defeat of the Tube city ordinance, and that his testimony here on the witness stand was in furtherance of that conspiracy. I have said to you, gentlemen, several times during this case, cautioned you that you should try this case in accordance with the evidence as it comes from the witnesses. There is no evidence here that Milholland is in the employ of or the employment of anybody except the Tube city railroad. There is no evidence here that anybody was interested in the defeat of the Tube city ordinance. The evidence as it appears here is the testimony upon which you will try this case, and not remarks upon the part of counsel, or what may possibly be the case where there is no evidence to justify. [Milholland is not on trial here except so far as his credibility is on trial as to the weight which you will give the testimony that he presents to you on the witness stand, and in passing upon his credibility you will consider the fact that he was engaged in the same business, which his testimony will tend to show. In other words, to a certain extent at least, if Martin is guilty, he was an accomplice. But on the other hand, in passing upon his credibility you must consider the fact that every statement he gave upon the witness stand goes unchallenged; he is not contradicted by any testimony offered upon the witness stand. His various statements as to what was done with the keys, money and checks are uncontradicted. His statement that this money was to be used for the passage of the Tube city ordinance is uucontradicted. His statement that he got that information from Cameron and Martin is uncontradicted, and in passing upon his credibility it is important for you to consider that. The evidence as shown, as I have stated, on the part of the commonwealth, that evidence was uncontradicted that there was some dealing between this defendant and Cameron, wherein $60,000 figured, and then $70,000, or what ivas supposed to be $70,000 and $60,000. [And if you find from the evidence that that course of dealings did take place as related here by Milholland, Flaherty and by Richardson, as to whether that was an honest transaction, or whether it was a.dishonest transaction, such as the charge as made against the defendant here, in'addition to the undisputed testimony of the witness that it was understood and stated by the two other parties in the case that it was to be used for the passage of the ordinance through councils; in addition to that you take into consideration the acts of the parties as to whether it was an honest above-hoard transaction, or whether it was a dishonest transaction, one necessaiy to do in secret, one that the public should not be informed of.] [1-3] And in passing upon that question you must line it up with the ordinary conduct of individuals; whether $70,000 is ordinarily paid in cash; whether it is placed in safe deposit vaults subject to the order of the two persons who are dealing; whether this defendant, in the two times which his name appears in connection with the transaction, when he gives the name of the person renting the box, did not give his own, and in one case not his own address, but in one case gave William Martin instead of William A. Martin, and in the other W. J. Martin, all these things you must consider. In pointing them out to you I am not stating to you what value you ought to give them, but I say they are evidence in this case for your consideration in passing upon the question, which is the question in this case, was this an honest transaction? Was it a transaction that could be enforced in the court if either side broke his agreement, or was it a transaction that the law did not countenance, which the parties knew they had to enforce themselves, and that neither could enforce in court? That is an important fact in this case. In this case if you find from the evidence that the defendant did solicit money or other valuable things, for his vote or influence in the councils of this city, or if you find that he did not solicit, but agreed to accept it, then it does not make any difference if by a sleight-of-hand performance he was deprived of the possession of this money. If he was promised, and agreed to act upon that promise, and they had arranged that he would not get the money, that would not affect his guilt or innocence in this case. The facts in this case are for your determination. I have instructed you as to what may constitute in law the offense of which this defendant is charged. Whether or not the evidence produced here justifies his conviction is for you determine. I have gone over the facts in the case, and pointed out to you the evidence produced on the question of the guilt or innocence of the defendant. It is for you to apply them. The burden is on the commonwealth to satisfy you beyond a reasonable doubt of the guilt of the defendant. A reasonable doubt is a doubt which arises out of the evidence, which arises in your mind out of the evidence produced in this case. If that evidence raises a doubt of the guilt of this defendant, then it is your duty to acquit him, but that doubt must be a reasonable one, not the mere fancied possible one. The defendant has offered you evidence of good reputation. The law has said that evidence of reputation is evidence substantive of his character; that it is not mere makeweight, but evidence for your consideration in passing upon the guilt or innocence of the defendant. It is evidence which may raise that reasonable doubt. That court says the evidence may raise that doubt if the evidence of good reputation is proven, and if you, in consideration of all the evidence in this case, the evidence of good reputation included, have a reasonable doubt, then it is your duty to acquit the defendant; but if in the consideration of evidence of good reputation with the evidence of guilt, if in the consideration of it altogether you fail to find a reasonable doubt, then it is just as much your duty to convict. I am instructed by the counsel for the commonwealth, and I say to you I have not examined it, and am not in a position to say, that this a misdemeanor*. Being that, in case you acquit, you must dispose of the costs, but if you convict, you have nothing to do with the costs.</p> <p>Counsel for defendant asks for a general exception to the charge, and a special exception to that part of the charge relating to the undisputed testimony of the witness Milholland.</p> <p>Exceptions allowed.</p> <p>Additional instructions given to the jury on Wednesday, January 9, 1907, at 3: 45 P. M.</p> <p>PRESENT:</p> <p>For the commonwealth: H. L. Goehring, Esq., district attorney.</p> <p>For the defendant: Rody P. Marshall, Esq.</p> <p>The Court: Gentlemen, I have a communication from your foreman stating that you desire additional instructions. Is that correct?</p> <p>Mr. Ayres, a juror: Your honor, there are those of the jury—</p> <p>The Court: Just before you make any remark let me state that I do not want to know, nor want you to state, what the result so far has been. I don’t want to know what the result of your ballots has been, or anything of that kind.</p> <p>Mr. Ayres: Your honor, there are those of the jury that would like to have the point defined with reference to the gravity of the charge in the indictment, it being a misdemeanor, and it having been referred to as bribery. We would like to have the difference defined between the charge of bribery and what is meant to convey in the indictment and a misdemeanor.</p> <p>The Court: The offense charged, gentlemen, is bribery. Bribery is a misdemeanor. The indictment may state on its back, “ Misdemeanor; ” the offense charged is bribery. Misdemeanor is the name of a class of offenses. It is not the name of any particular offense. Offenses are divided in this state into felonies and misdemeanors. The offense charged here is bribery and I defined to you what bribery is, and I suppose you understand it from that definition or'the act of assembly which I read in your presence. The word misdemeanor has no special significance with regard to the nature or character of this crime except that it is one of two classes of crimes, namely, felony and misdemeanor; and this is a misdemeanor. Is that satisfactory to all of you ? Is that what you mean by the question ?■</p> <p>Mr. Ayres: It was also suggested that some of them would like to know regarding the penalty.</p> <p>[The Court: The penalty you have nothing to do with.. That is for the court entirely. The court has absolute control over that. Any recommendation which you may make we will consider. Nothing outside of that has this jury anything to do with, and they should not consider it, and it should not enter into your discussion any further than a recommendation of mercy or severity, as you may see fit.] [4]</p> <p>To which additional instructions counsel for defendant requested an exception. Exception allowed and bill sealed.</p> <p>Supplemental instructions to the jury in the above-entitled case, Thursday, January 10, 1907, at 3 :30 P. M.</p> <p>Gentlemen of the jury : I have a communication from your foreman that you have not been as yet able to agree. Is there any further ins [ruction that I can give you that would aid you in coming to a verdict ?</p> <p>The foreman: I don’t believe there is ; you might send us back again.</p> <p>The Court: This is a case of considerable importance, gentlemen. [The evidence, in my judgment, is not complicated. I do not want to force any man’s judgment or conscience in the matter, but it does seem to me that in this case this jury ought to have been able to arrive at a verdict.] [5] Unless somebody here is suffering from the confinement, I do not feel inclined to discharge you yet..</p> <p>The foreman: I ask to be sent back to the room.</p> <p>The Court: I would suggest you return and make further effort to agree in this case.</p> <p>On Friday, January 11, 1907, at 3:40 p. m:., the jury again returned to the court room and the following colloquy took place :</p> <p>The Court: Well, gentlemen, you do not appear to be very much the worse for having stayed out so long. I will ask'you again if anybody is suffering seriously from this confinement?</p> <p>The foreman: No, we are not.</p> <p>[The Court: I have received your communication again today asking that you be discharged. I have given this question considerable consideration and I do not.think this is a case where there ought to be a disagreement. In a case where the testimony was as clear as it was in this case, I do not think it would be my duty to discharge you now. I ask you to return to your jury room and make an effort to agree upon a verdict in tins ease.] [6]</p> <p>Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p>Promissory notes — Consideration—Decedents’ estates — Evidence.</p> <p>In an action against a decedent’s estate, the defendant offered as a set-off a promissory note executed by the plaintiff which had been in possession of the decedent for four years before he died. The plaintiff admitted the execution of the note, but averred a want of consideration, alleging that it had been given by him to the decedent in order to be delivered by the latter to another person in renewal of a note held by such person against the plaintiff. There was no direct evidence to support the plaintiff’s claim, but it was shown that on the day on which the note offered as a set-off was given, the person holding plaintiff’s old note had indorsed thereon a money payment which was the difference between the old note and the note which the plaintiff claimed was to be a renewal note. It appeared that -the old note remained in the hands of its holder, and that plaintiff made no effort to have the renewal note- substituted in its place. Held,, that as there was no sufficient evidence to submit to the jury on the question of lack- of consideration, it was not error for the court to give binding instructions for defendant.</p>

<p>Boroughs — Annexation of territory — Townships—Practice, Q. S.— Appeals.</p> <p>An appeal from the decision of the action of borough authorities annexing the territory adjacent, as outlined in a plot or plan filed in the court of quarter sessions, is not subject to appeal so as to enable the court under the provisions of the Act of April 22, 1903, P. L. 247, to inquire into the validity of the proceedings themselves, or to review the judgment of the borough authorities in relation thereto.</p>

Appeal, No. 211, April T., 1907, by John Brezger, from order of Q. S. Beaver Co., refusing a liquor license. Application for a -wholesale liquor license. Before Holt, P. J. The opinion of the Superior Court states the case. Error assigned was the order of the court.

Appeal, No. 23, March T., 1907, by William H. Grothe, from decree of C. P. York Co., April Term, 1905, No. 1, sustaining exceptions to auditor’s report in case of The Tenth National Bank of Philadelphia v. The Smith Construction Company. Exceptions to auditor’s report. For the facts see Tenth National Bank of Philadelphia v. Smith Construction Company (No. 1), 218 Pa. 581.

<p>Appeal, No. 24, March T., 1907, by</p> <p>David F. Stauffer, from decree of C. P. York Co., April T., 1905, No. 1, sustaining exceptions to auditor’s report in case of The Tenth National Bank of Philadelphia v. The Smith Construction Company.</p>

<p>Practice, C. P. — Parties—Trespass—Negligence—Corporations.</p> <p>Where an action of trespass is brought to hold an employer, a limited joint-stock company, responsible for death, and it appears that the praecipe and declaration named the stockholders of the company as defendants, but the declaration shows that the proceeding was against the company, and not against the individuals, and it also appears that the company itself was served, and appeared and defended the action, and it was understood that the proceeding was not against the individuals, the names of the shareholders may be treated as surplusage, and a verdict and judgment against the company will be sustained.</p> <p>It is not the policy of the law to encourage technical objection to pleadings, which do not tend to promote the logical and expeditious administration of justice.</p> <p>Negligence — Master and servant — Dangerous tool — Defective machinery —Duty of inspection.</p> <p>It is not only the duty of the employer to furnish his employees with a reasonably safe place in which to work and with reasonably safe: machinery, but also to use care to keep the place of work and the-machinery in a reasonably safe condition. This is a continuing obligation and calls for proper and timely inspection to discover defects.</p> <p>In an action to recover damages for the death of an employee of a. foundry company, it appeared that tfie deceased was an unskilled! laborer known as a “handyman” or “-roustabout.” Among his duties! was to assist in shifting casting molds. In the performance of this work a hook of a sling broke and the deceased was killed. The hook had a. crack in it, but the defect was not apparent. It had been in use for five years, and the metal had become crystallized and brittle. No inspection had been made during the timé that the defendant had used the hook. Held, that the question of defendant’s negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 176, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. Term, 1898, No. 287, on verdict for plaintiff in' case of J. M. Hastings v. D. R. Speer trading as D. R. Speer & Company.</p> <p>Assumpsit for goods sold and delivered. See 15 Pa. Superior Gt.-115,</p> <p>The statement of claim was as follows:</p> <p>. Before me, the undersigned authority, personally came J. M. Hastings, who, being duly sworn, says that he has a just and legal claim against the defendant in the sum of $568.48, with interest thereon from February 1, 1896, the nature and character of which claim is as follows:</p> <p>On or about October 10, 1895, the said defendant applied to the plaintiff for a certain lot of Norway lumber to be shipped by plaintiff for the defendant to the defendant’s customer at Depew, N. Y.</p> <p>That in compliance with such request, the plaintiff made out a list of the lumber which he had been requested by defendant to ship, a copy of which list was given to defendant, and a copy of the same is hereby attached, marked exhibit “ A,” and made a part hereof.</p> <p>Defendant received and accepted said list of lumber, and, in accordance with the custom of trade, said list thereby became an order from defendant to plaintiff for said lumber.</p> <p>That in pursuance of the acceptance of said list and the order by defendant on plaintiff for said lumber, they then and there agreed upon the prices to be charged for the same.</p> <p>Plaintiff promptly and in the general course of business shipped and delivered to the point, namely, Depew, N. Y., all of said lumber. A short time after the same had arrived at Depew, this plaintiff was notified by defendant that the lumber was ■ not satisfactory^ had been rejected by defendant’s customer, and that the lumber was at the railroad tracks subject to plaintiff's order. Plaintiff then and there refused to receive or take back said lumber because it had been shipped in good faith upon the order of defendant, and in strict compliance therewith.</p> <p>Various negotiations have been entered into between plaintiff and defendant from time to time in respect to said lumber whereby plaintiff undertook to dispose of the same so that the defendant would not be subjected to a great loss, but plaintiff has recently been informed by competent persons, and verily believes the same to be true, that the reason said lumber was rejected at first by the customer of defendant was that the lumber had not been shipped to the defendant’s customer in .compliance w,ith the order given to defendant by his customer, the lumber required by defendant’s customer being of an entirely different quality and kind of lumber, and that the reason for the refusal of the lumber was no fault of plaintiff, and, plaintiff having been deceived by defendant as to the cause of the lumber being refused, plaintiff has repudiated all arrangements and agreements which tend to an adjustment of the claim between defendant and plaintiff, so that defendant should not be subjected to so great a loss, and plaintiff now claims of defendant the original contract price of said lumber on account of which defendant has paid to the plaintiff the sum of $250. Defendant is entitled to no other or further credits, and the whole sum of $568.48, with interest thereon from February 1, 1896, is now due and payable according to the terms of said agreement.</p> <p>At the trial when the plaintiff was on the stand the following offer was made:</p> <p>Mr. Crawford: I propose to prove by the witness that on October 10, 1895, J. M. Hastings furnished to the defendant, D. R. Speer & Company, a certain lot of Norway pine, to be shipped to Depew, New York, amounting in all to $818.48, under and in pursuance of an order received from D. R. Speer & Company.</p> <p>Mr. Ivory: This is objected to as incompetent under the pleadings, unless the plaintiff proposes in some way to get rid of the second contract set out in his own statement of claim.</p> <p>Objection overruled. To which ruling of the court counsel for defendant excepts, and thereon at his request exception .noted and bill sealed. [5]</p> <p>(Question read.) “A. We did. We shipped a bill of lumber for Mr. D. R. Speer & Company’s account, to Depew, New York, amounting to $818 and some odd cents.”</p> <p>Mr. Crawford: I want to ask the witness if the bill attached to the statement there is the bill of lumber he shipped.</p> <p>(Paper marked exhibit 1.) “ Q. I show you exhibit 1, attached to the court records, and I ask you if that is the bill of lumber that was shipped ? A. Yes, sir. Q. What disposition was made of the lumber at that time ? A. It was left--•</p> <p>Q. By you and Mr. Speer? A. Mr. Speer and I left it in the bands of a man named Brown to sell.”</p> <p>Objected to as incompetent, being under an agreement that the plaintiff himself in the pleadings has repudiated, and we ask that the answer be stricken out.</p> <p>Motion refused. To which ruling of the court counsel for defendant excepts, and thereupon at his request exception noted and bill sealed. [6]</p> <p>Mr. Crawford: “Q. Mr. Hastings, you have heard the testimony with respect io the agreement that was made for the disposition of this lumber. I wish you would state whether or not the agreement was as they have stated, and, if not, what was the agreement?”</p> <p>Objected to as incompetent under the pleadings and the former testimony of the plaintiff. Objection overruled. To which ruling of the court counsel for defendant excepts, and thereupon at his request exception noted and bill sealed. [7]</p> <p>(Question read.) “A. The agreement was that I was to take charge of the lumber, placing it in Mr. Brown’s hands with Mr. A. R. Speer mutually agreeing and being with me in Mr. Brown’s office at the time, and that the lumber was to be sold and the loss divided between us, each standing one-half. Q. Mr. Hastings, referring to this second agreement that Mr. Ivory has asked you about, and your loss, what was your loss under that?”</p> <p>Objected to, because the witness stated he never made a demand for the loss under the second agreement.</p> <p>The Court: We will permit the witness to state what the cost was to him in Depew, that is, the cost plus the freight. We will allow him to show the amount he received from Mr. Brown, and the net loss. Objection overruled. Exception 8.</p> <p>Defendant presented these points :</p> <p>3. Under the agreement for the disposal of the lumber in suit and the division of the loss, it being admitted by the plaintiff that the agent selected to handle said lumber accounted to him, and there being no evidence that said agent accounted to the defendant, the defendant was not able to ascertain how much, if any, loss was suffered until he received a statement thereof from plaintiff, and no suit can be predicated on said agreement until the plaintiff has first stated the account between himself and the defendant showing the net loss on said lumber, and made demand for the portion thereof due from the defendant. Answer: Refused. [1]</p> <p>4. Under the evidence of the plaintiff in this case as to the disposal of this lumber, it was an agreement in the nature of a partnership transaction; and the plaintiff having testified that he had charge of the matter with Brown, the selling agent, and the accounting by Brown was direct to him, before a suit will lie for a recovery by him against the defendant, he must first state an account between them showing the net amount of loss and the portion thereof which defendant owes, and make a demand therefor. And it being admitted by the plaintiff that this has never been done, this action will not lie and the verdict must be for the defendant. Answer: Refused. [2]</p> <p>5. Under the pleadings and all the evidence in this case the verdict must be for the defendant. Answer: Refused. [3]</p> <p>6. Under all the evidence in this case the verdict must be for the defendant. Answer : Refused. [4]</p> <p>Verdict and judgment for plaintiff for $284.57. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them; (5-8) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 68, April T., 1907, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1901, No. 51, on verdict for plaintiff in case of First National Bank of Wampum v. Western Union Telegraph Company.</p> <p>Trespass to recover damages for a loss alleged to have been caused by a forged telegram. Before Porter, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Evidence — Writing—Contradiction of witness.</p> <p>■ In an action of assumpsit where the plaintiff alleges that he and the defendant purchased land under an agreement in writing, that the plaintiff had furnished a part of the purchase money which the defendant had agreed to repay him, the deed being taken in the defendant’s name, the defendant may offer in evidence the agreement in question showing that the plaintiff’s wife, and not the plaintiff, was the person who with the defendant signed the agreement. Such an offer is admissible, first, as being evidence of the contract for the purchase of the land, and, second, as contradicting the plaintiff.</p> <p>In an action of assumpsit where the plaintiff testifies to a demand which he had made upon the defendant based upon the claim involved in the suit, the defendant may show that the demand in question was made by the plaintiff for an entirely different purpose.</p>

<p>Appeal, No. 66, April T., 1907, by defendant, from judgment of C. P. Lawrence Co., March T., 1901, No. 3, on verdict for plaintiff in case of Alexander Fisher v. Pennsylvania Company.</p> <p>Appeal from judgment of an alderman. Before Porter, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned among others was refusal to withdraw a juror and continue the case.</p>

<p>Appeal, No. 181, April T., 1907, by defendant, from judgment of C. P. Lawrence Co., March Term, 1904, No. 80, on verdict for plaintiff in case of James D. F. Wilson v. Pennsylvania & Mahoning Valley Railway Company.</p> <p>Trespass to recover damages for wrongful ejectment from a car. Before Porter, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions sufficiently appearing in the opinion of the Superior Court.</p>

<p>Negligence — Street railways — Collision between car and wagon — Signals —Fog.</p> <p>In an action against a street railway company to recover damages for personal injuries, it appeared that the plaintiff was driving a wagon on a dark and foggy night on one of defendants double tracks on which he would face an approaching car. The condition of the other track and the part of the cartway not occupied by the tracks was such as to make it dangerous to drive thereon. At the moment the plaintiff went upon the track in question he checked the- speed of his horse and looked and listened for an approaching car, but could see or hear nothing. Immediately afterwards a car appeared ahead of him with a signal light shining, but no gong sounding. Plaintiff attempted to leave the track, but his wagon was caught and he was injured. He testified that the car was going between twelve and twenty miles an hour. There was evidence that the gong was last rung when the plaintiff was 500 feet away. Plaintiff stated that he had been a brakeman on a steam railroad, and that his estimate as to the speed of the car was based upon his experience in such employment. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Telephone companies — Eminent domain — Damages—Evidence.</p> <p>In a proceeding against a telephone company to assess damages for injuries to land resulting from the construction of a telephone line along a public road passing through and over the land, witnesses will not be permitted to testify to diminution in the value of the land caused by increased danger from lightning by reason of the construction of the telephone line, where there is no testimony in the case as to a single fact founded on observation or actual experience that would warrant the conclusion that the construction and operation of the line would naturally and probably result in such increased danger to life or property from lightning as to substantially diminish the value of the land.</p> <p>When the property of an individual has been appropriated for public use, his right to , recover compensation, commonly called damages, therefor, is perfect, and he may proceed to enforce it as soon as the act of appropriation is complete. He is not required to await even the beginning of the actual work of construction on the ground. It is also true that he not only may but must recover in one proceeding, even when thus promptly begun, all of the compensation intended by the law as a satisfaction for the injuries resulting from the construction and use of the prospective improvement, or the subjection of his property to a servitude from which it was formerly free.</p> <p>It would therefore seem to follow that in such cases the injuries for which compensation is to be made are those and only those which can be ascertained and valued as well before they actually occur as after-wards. This is but another way of saying that tribunals awarding such compensation, will confine their attention to injuries which are real and actual, and which although they have not occurred, will so naturally, usually and probably follow the appropriation of the land and its subjection to the new public use, that their happening can be reasonably foreseen, their extent measured and their equivalent in money ascertained. To go beyond this limit would be to step at once into the domain of speculation or fancy and compel courts and juries to estimate, without rule or standard, the present cash value of all the apprehensions of future injury the imagination of a plaintiff or his witness might suggest.</p> <p>Where a jury returns an excessive verdict in a land damage ease, and it appears that there is testimony which in the judgment of the appellate court tends to fix the actual damages, such court may affirm the judgment conditionally, upon the plaintiff filing of record within a time stated, a release of so much of the verdict and judgment as will reduce them to the amount of the actual damages ascertained in the manner stated.</p>

<p>Insurance — Mutual insurance — By-laws—Forfeiture of policy.</p> <p>Where a by-law of a mutual insurance company provides that if the insured neglects or refuses to pay his loss dues within the time specified in his notice, his policy shall become null and void, a failure to pay does, not ipso facto render the policy void. The provision is for the protection of the company, and if the company does not choose to enforce the forfeiture, the policy continues in force against the member.</p>

<p>Liquor law — Buie of court — Additional petitions and remonstrances— Act of May 13,1887, P. L. 108.</p> <p>A rule of court which provides that all additional petitions and remonstrances in liquor cases shall be filed on or before the first day of the term at which the application is to be heard, and gives the parties a period of three weeks after the original petition is filed within which to circulate and file the additional petitions, deprives neither applicant nor remonstrant of any statutory right, and is not so plainly an abridgment of that right as to justify us in declaring it invalid upon that ground or the ground of unreasonableness.</p> <p>The refusal of an application for a retail liquor license, after full hearing and consideration of all the matters that the court may consider, because in the opinion of the court it is not necessary for the accommodation of the public and the entertainment of strangers or travelers, does not make the question of necessity res judicata upon the hearing of the application of the same person for the same premises in a subsequent year. The granting or refusal of the license in previous years is not conclusive, and, under some circumstances, it ought to have but little, if any, weight in the determination of the application before the court; but in the exercise of a sound judicial discretion the court may consider it in connection with the other relevant facts established at the hearing or known to the court, particularly if the conditions be unchanged.</p> <p>The words “due regard” in the Act of May 13, 1887, P. L. 108, means such regard as the circumstances of the case demand, and these circumstances include the knowledge possessed by the court, facts whereof judicial notice should be taken, the testimony of witnesses, and the opportunities of petitioners and remonstrance for knowing the things about which they volunteer information.</p> <p>The fact that the place is necessary either as a hotel or as an eating house for public accommodation does not necessarily and under all circumstances compel the conclusion that a license to the applicant to sell intoxicating liquors by retail at such place is necessary. In other words, not every place that may be necessary as a hotel or as an eating house for public accommodation is entitled as matter of right to be licensed to sell liquors if the other statutory requirements are complied with.</p>

<p>Appeal, No. 199, April T., 1907, by defendant, from decree of C. P. Lawrence Co., Sept. T., 1906, No. 1, on bill in equity in case of Robert C. Gailey v. New Castle Elastic Pulp Plaster Company.</p> <p>Bill in equity to reform a deed.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree. in favor of the plaintiff.</p>

<p>Townships — Supervisors—Contract—■Evidence.</p> <p>In an action against a township to recover the price of a rock crusher sold under a warranty that it would do certain work specified, evidence to the effect that one of the two supervisors who bought the machine was “satisfied to accept and settle for it” is immaterial and irrelevant, inasmuch as the acceptance by one supervisor without the concurrence of the other will not bind the township. In such a case the only question is whether the machine did the work it was warranted to do.</p> <p>The two supervisors of a township signed a written contract for the purchase of a stone crusher. In an action against the township to recover the purchase money, one of the supervisors testified that before the contract was signed, the plaintiff’s agent, in reply to his inquiry. said that an eight-horse power engine would do to run the machine. At a test made after the delivery of the machine it was found that an eight-horse power engine would run it, but not perhaps to the limit of its efficiency. The witness was asked whether or not he would have signed the contract or any other contract for a stone crusher, if the agent had not made that statement. The supervisor thus testifying was not. satisfied that the machine came up to the requirements of the warranty given at its sale. After his term of office had expired, a second test was made to the satisfaction of the other supervisor who had been a party to the purchase of the machine. Held, that it was error to permit the supervisor to testify that he would not have signed the contract if the agent had not made the statement in question.</p> <p>If all the supervisors of a township meet and consult together in reference to the purchase of a road machine, and then join in a contract for the purchase of the machine, the vendor of the machine is not bound to show affirmatively that the supervisors did their full duty. If there be no fraud or collusion, and no conduct on his part by which h'e knowingly induced them to forego that deliberation and the exercise of that judgment and discretion in the interest of the township which the law requires of them, he has a right to act upon the presumption that they did their duty; he is not bound to be present at their'meeting and see that they did.</p>

<p>Appeal, No. 94, April T., 1907, by plaintiff, from judgment of C. P. Mercer Co., Jan. T., 1904, No. 138, for defendants non obstante veredicto in ease of Joseph R. Wallace v. Leander Snodgrass et al., Trustees of the United Presbyterian Church of Jamestown, Mercer county, Pa.</p> <p>Assumpsit for salary.</p> <p>Williams, P. J., filed the following opinion:</p> <p>The defendant congregation is an unincorporated religious association, a member of Lake Presbytery, and, as such, subject to all of the laws, usages and deliverances of the various church courts of the “ United Presbyterian Church of North America,” and bound by the various provisions of its laws relating to church government, establishing and dissolving pastoral relations, etc. The plaintiff is a regularly licensed minister of said religious body or denomination, and is, in like manner, bound by and subject to all of the laws and usages thereof, as set forth in its “ Book of Government and Discipline.”</p> <p>In the month of May, 1871, the plaintiff received and accepted a call from the defendant congregation, and was soon thereafter ordained as pastor of the Jamestown church, at a salary of fl,000 per year. Under the laws of this church or religious body, the pastoral relation thus established between the plaintiff and the Jamestown congregation would continue until regularly dissolved by the Presbytery of which said congregation should at the time be a member.</p> <p>On April 11, 1891, a petition or complaint, signed by the members of the session of the Jamestown congregation, was presented to Lake Presbytery, of which said congregation was then a member, asking that the pastoral relation between the plaintiff and the defendant congregation be dissolved, for the reasons set forth in the petition, and which appear in full on pages 4, 5 and 6 of the testimony.</p> <p>The elders signing the petition were directed to formulate their complaint into charges, in order that there might be a judicial investigation, but declined to do so. The Presbytery then resolved to investigate the matter, but not judicially, and at a subsequent meeting took sworn testimony. As a result of its investigation, the Presbytery requested the plaintiff, as pastor, and the elders, or session, to resign their offices, but this they declined to do. The Presbytery then dissolved the relation between the plaintiff and the congregation, as well as between the elders and the congregation.</p> <p>Against this action, so far as it related to himself, the plaintiff took an appeal, or removed the case to the Synod, known as the “ First Synod of the West,” and made complaint that it was illegal and unwarranted. The Synod, on September 30, 1891, after discussion upon the testimony taken, sustained the plaintiff’s appeal or complaint, thus reversing the action of the Lake Presbytery. In view of this action of the Synod, Lake Presbytery, on October 15, 1891, declared the pastoral relations between the plaintiff and the Jamestown congregation to be re-established.</p> <p>At a called meeting of Lake Presbytery, held at Sandy Lake, December 7, 1891, a petition was received, signed by ninety members of the Jamestown congregation, stating that matters were growing worse, and praying for relief. As against this petition, a counter petition was presented, signed by 151 members and adherents of the congregation, who took sides with the plaintiff. In view of these petitions, Presbytery decided to meet in Jamestown on December 14, 1891, to make inquiry and take such action as might be deemed proper. At this meeting, after inquiry and conference with the plaintiff, the whole matter was postponed until a subsequent meeting.</p> <p>On April 11, 1892, Presbytery again met, and, after requesting the plaintiff to resign, and receiving his refusal to do so, proceeded to dissolve the pastoral relation, and at the same time appointed Rev. James Dodds to preach on the fourth Sabbath of April, 1892, and declare the pulpit vacant. The plaintiff preached his last sermon to the Jamestown congregation on the third Sunday of April, 1892, and on the fourth Sunday of April, 1892, Rev. James Dodds preached there, by appointment of the Presbytery, as above stated, and declared the pulpit vacant.</p> <p>Against this action, the plaintiff offered an appeal, which the Presbytery refused to consider. He then gave notice of complaint, and within ten days thereafter lodged a copy of the same with the clerk of Presbytery, as required by the church law. The Synod, at a meeting beginning August 81 and continuing until September 6, 1892, sustained the complaint, and from this action Rev. Free, a member of the Presbytery, gave notice of an appeal by the Presbytery to the next General Assembly. The judiciary committee was then requested to bring in a paper stating the effect of this latter action, and made a report as follows:</p> <p>“ The effect of sustaining a complaint against the action taken is to reverse the action of the court below. The action of the Presbytery being reversed the relation between the pastor and congregation of Jamestown remains the same as before the action was taken. An appeal being- taken, all proceedings are arrested, and Mr. Wallace cannot enter upon the pastoral relation until the Assembly may take action.”</p> <p>This report was adopted by the Synod.</p> <p>On December 15, 1892, the plaintiff entered suit in the court of common pleas of Mercer county, Pa-, at No. 120, January Term, 1893, to recover from the defendant the salary due to him. On January 28, 1893, judgment was entered in favor of the plaintiff for the amount shown by his statement of claim, $1,211.79. On July 5, 1893, the judgment was paid, and receipted on the execution docket as follows :</p> <p>“Received July 5, 1893, from T. A. McMaster, Harrison Hunter and H. M. Gamble $1,260.12, being debt, interest and costs of the above-stated judgment to this date. . . .” It is admitted by the plaintiff that the sum recovered in this suit paid his salary in full until May 1, 1892.</p> <p>About April 1, 1893, the plaintiff began to preach regularly for the New Bethlehem congregation, in Beaver county, Pa., said church being a member of Frankfort Presbytery. On May 30, 1893, the appeal of Lake Presbytery from the action of the First Synod of the West was sustained by the General Assembly at its meeting held at Monmouth, 111. Shortly after this action of the General Assembly, the plaintiff received and accepted a call from the New Bethlehem congregation of Frankfort Presbytery, and removed his family there about the last of May or June 1, 1898. The plaintiff also applied for and received a certificate of ministerial standing and dismissal from Lake Presbytery, and on September 19, 1893, was duly installed as pastor of the New Bethlehem congregation, of Frankfort Presbytery, where he has since continued as pastor, and has rendered no services to the Jamestown congregation since the third Sunday of April, 1892, the date of preaching his last sermon there.</p> <p>In 1898, about five years after the decision of the General Assembly, and about three years after its refusal to grant a rehearing, the plaintiff filed in the court of common pleas, No. 1, of Allegheny county, Pa., a bill in equity to declare void the action of the General Assembly in sustaining the action of Lake Presbytery dissolving the pastoral relation between the plaintiff and the Jamestown congregation. The bill was served on the trustees of the General Assembly, who answered that they were not proper parties to the bill, and, to sustain their answer, referred to the charter of the General Assembly. Upon inspection of the charter the court below sustained the answer and dismissed the bill. On appeal this action was reversed by the Supreme Court, in an opinion delivered by Mr. Justice Dean on December 30, 1899, reinstating the bill and directing the defendants to make answer thereto : 194 Pa. 178.</p> <p>After full hearing, the court below, in an opinion by Stowe, P. J., found as a fact that there were irregularities in the proceedings before the General Assembly which rendered its decision null and void, and entered a decree as follows :</p> <p>“And now, June 10, 1901, this cause came on to be heard at this term, and was argiied by counsel, and, therefore, upon consideration thereof, it is ordered, adjudged and decreed that the action of the General Assembly of the United Presbyterian Church of North America, in reversing the action of the First Synod of the West, and sustaining the action of Lake Presbytery in removing Jos. R. Wallace, the plaintiff, from the pastorate of the Jamestown United Presbyterian Church, be declared null and void. And that he be restored to the position of pastor of said church, with all the rights and benefits pertaining thereto, as fully and with the same effect as if the action of the First Synod of the West had not been reversed.”</p> <p>On an appeal this decree was affirmed by the Supreme Court, in an opinion delivered by Mr. Justice Dean on January 6, 1902 : 201 Pa. 292.</p> <p>After the affirmance of the decree, as above stated, the plaintiff gave or sent copies of it to the elders of the church and to the clerk of Lake Presbytery, and at a meeting of Lake Presbytery, held at Adamsville, Pa., June 20, 1902, the following notice was directed to be sent to the plaintiff and the Jamestown congregation:</p> <p>“ Adamsville, Pa., June 20, 1902.</p> <p>“ The Rev. J. R. Wallace, Zeller, Pa.</p> <p>“ Dear Bro.: At a special meeting of Lake Presbytery held in Adamsville yesterday the subjoined action was taken, and this will be your official notification of the same. It will also be official notice to you of the meeting of Presbytery therein v referred to.</p> <p>“Very respectfully,</p> <p>“ David Reed Milled, Clerk.”</p> <p>Following is the action of Presbytery :</p> <p>“ Your committee would recommend in the case of J. R. Wallace as now before us, by action of the General Assembly, (1) That he be officially notified that the way is now clear for his occupancy of the pulpit and pastorate of the Jamestown congregation.</p> <p>“ (2) But inasmuch as we cannot allow a member of another Presbytery to continue in the relation of pastor in a congregation under our jurisdiction, he be required to furnish a certificate of standing and dismissal from E'rankfort Presbytery and unite with this Presbjdery.</p> <p>“ (3) That a meeting of Lake Presbytery be called for July 11, 1902, at 11 A. M. in Greenville, Pa., to consider the action of J. R. Wallace in this matter and such other business as may properly come before us.</p> <p>“ (1) That a copy of this action be sent by the clerk to Rev.. J. R. Wallace, and also one to the Jamestown congregation.</p> <p>“ P. W. Fdee, “ Sam’l Dodds, Com.’</p> <p>On July 11, 1902, the plaintiff went to the meeting of Presbytery in Greenville, and a committee, consisting of David Reed Miller, Professor Samuel Dodds and Elder Orr, was appointed to wait on him and receive his answer to the resolutions of Presbytery, as above set forth. To this committee he presented a paper, as follows :</p> <p>“ Rev. D. R. Miller, D. D., Clerk of Lake Presbytery.</p> <p>“ Dear Sir: Your note and copy of action of Lake Presbytery reached me on June 25, only sixteen days ago.</p> <p>“ I had been absent from home, and the congregation to whom I have been preaching was dismissed for a month’s vacation. Under the circumstances it was impossible for me to get my dismissal from Frankfort Presbytery and present the same to this Presbytery to-day, as required by second resolution.</p> <p>“ If, however, customary courtesy would be allowed me I can procure my credentials later at my earliest convenience, and can preach in Jamestown next Sabbath, July 18, 1902.</p> <p>“ Respectfully submitted,</p> <p>“ J. R. Wallace.”</p> <p>It seems that this committee declined to accede to the terms proposed in this paper, and made a partial oral report to Presbytery to the effect, “ that negotiations looking toward an amicable settlement were under way, but before reaching a definite conclusion Brother Wallace had a request to present to the Presbytery,” which is as follows :</p> <p>“ I ask a conference with the pastors of Presbytery, that I may see my duty clearer in the hope of a peaceful settlement of the matter to-day.”</p> <p>The conference was granted by adding the pastors of Presbytery to the committee. After the conference had been held the committee reported that an amicable settlement had been reached by the resignation of the plaintiff of all pastoral claims in the Jamestown congregation. His resignation is made apart of the report, and is as follows :</p> <p>“ After conference with the pastors of Presbytery with reference to the present state of the congregation, I am satisfied that the way is not clear for my restoration, and that the decree of the civil court cannot be carried out without trouble to the congregation. I, therefore, resign my pastorate of the U. P. Church of Jamestown, Pa. J. R. Wallace.</p> <p>“ Greenville, Pa., July 11, 1893.”</p> <p>The report was adopted, the resignation laid on the table, and the clerk directed to notify the congregation. The Presbytery then adjourned to meet in Exposition Park, Conneaut Lake, August 14, 1902, to act on this resignation.</p> <p>On August 14, 1902, the plaintiff presented to Presbytery a paper as follows :</p> <p>“ Whereas, I am now persuaded that I was misled by representations made to me at Greenville, Pa., July 11, 1902, and previously, concerning the state of the IJ. P. Church of Jamestown, Pa., and, whereas, in giving up my demit of my pastorate in said church I acted through fear that I would be deposed from the ministry that day, or steps would be taken to that end if I did' not resign; and, whereas, I have been credibly informed that the congregation has not been cited to appeal and lias taken no action on my demit, I hereby withdraw it.</p> <p>“ This I do with the distinct understanding that as soon as possible I will seek to have the First Synod of the West transfer me and the congregation of Jamestown, Pa., to the fellowship of Cleveland Presbytery. And this I would do that this Presbytery might have no trouble with me and that I might have no trouble with them.”</p> <p>It appears from the minutes of this meeting of Presbytery that the resignation of the plaintiff was taken up, and the clerk stating that notice of the demit had been served on the Jamestown congregation, a motion was made to accept the resignation. The plaintiff was then given fifteen minutes to present his side of the case, after which the resignation was unanimously accepted, and Rev. J. H. McCormick was appointed to preach in Jamestown on August 31, 1902, and declare the pulpit vacant. On September 9, 1902, Rev. McCormick reported that he had, in obedience to the direction of Presbytery, preached in Jamestown on August 31, 1902, and declared-the pulpit vacant.</p> <p>After this action of the Presbytery, the plaintiff petitioned both the First Synod of the West and the General Assembly to set it aside, but his petition was refused by both bodies. Hence, the action of Lake Presbytery in accepting plaintiff’s resignation on August 14, 1902, and dissolving the pastoral relation between him and the Jamestown church on August 31, 1902, stands unreversed.</p> <p>On January 15, 1904, the plaintiff entered suit in the court of common pleas of Mercer county, at No. 133, January Term, 1904, against the trustees of the Jamestown congregation, to recover eleven annual installments of salary of $1,000 each, accruing since May 1, 1892, with interest on each installment from the time it became due, on June 1, of each year.</p> <p>At the close of the testimony produced on the trial, showing the facts above summarized, the court, on November 29, 1905, refused the request of defendants’ counsel for binding instructions in favor of the defendants, and directed a verdict for the plaintiff for the sum of $960, subject to the opinion of the court on the legal question raised by defendants’ third point.</p> <p>It was conceded by the plaintiff and his counsel that plaintiff’s salary had, prior to the bringing of this suit, been paid in full to May 1,1892, and that on September 19,1893, the plaintiff was duly installed as pastor of the New Bethlehem congregation of Frankfort Presbytery, he having previously applied for and received a certificate of ministerial standing and dismissal from Lake Presbytery, of which he was then a member, as required by the laws and usages of the United Presbyterian Church. The verdict is for the sum agreed upon by counsel as the amount of the plaintiff’s salaiy, at $1,000 per year, from May 1, 1892, until September 19, 1893, after deducting therefrom the amount received by him from other sources, and computing interest on the balance to date of verdict.</p> <p>The defendants’ third point, with the answer of the court thereto, is as follows:</p> <p>3. That the legal effect of the action of Lake Presbytery taken on April 12, 1892, dissolving the pastoral relation between the plaintiff and the United Presbyterian Congregation of Jamestown, and the rulings and deliverances of the First Synod of the West and the General Assembly, in this matter, received in evidence, was to relieve the plaintiff from the obligation of ministering to said congregation, and also to relieve the congregation from the obligation of paying any salary to the plaintiff, as long as these rulings and deliverances stood, or until the date of the decree of the Supreme Court of Pennsylvania setting aside the action of the General Assembly. Answer: The legal question raised by this point is reserved.</p> <p>Counsel for the plaintiff except, generally, to the charge of the court, and to the refusal of the court to affirm their first, second and third points, including the various paragraphs thereof. They also except to the affirmance of the defendants’ first, second, fourth and fifth points.</p> <p>The question raised by these several exceptions may well be disposed of in our consideration of the motion of defendants’ counsel for judgment on the reserved question, non obstante veredicto.</p> <p>An accurate understanding as to who are the real parties to this action will conduce to a clearer conception of the contractual relations between them and the duties and obligations resting upon each. The defendant congregation is an unincorporated religious association, and such organizations are recognized by the law of Pennsylvania as having a legal entity separate and apart from its members. The fact that this suit, as brought, is against certain individual members of the defendant congregation as trustees, is of no particular moment or controlling importance, as a suit in this form is well brought and service on the trustees is sufficient to give the court jurisdiction over such congregation, as an unincorporated religious body or association.</p> <p>Further than this, it seems to be conceded on both sides and, in fact, the learned counsel for the plaintiff have filed a stipulation to the effect, that no judgment can be entered against the individuals named, but if judgment be entered in favor of the plaintiff, it must be against the congregation, and the lien thereof or of any execution issued thereon be confined or restricted to the property of the congregation or religious body known as the United Presbyterian Church of Jamestown, Pa.</p> <p>We have, then, as plaintiff, Rev. J. R. Wallace, and as defendant the United Presbyterian Congregation of Jamestown, Pa., not as individual members, but as a legal entity or body, separate and apart from its members.</p> <p>Prior to and at the time of the establishment of the pastoral relation between them, the plaintiff and defendants were each subject to the laws and usages of the United Presbyterian Church of North America, and from and after the establishment of such relation, were subject to the jurisdiction of Lake Presbytery, the First Synod of the West and the General Assembly, and were bound by the laws, usages and deliverances of each of these church courts in all matters brought before them for adjudication.</p> <p>About May 1, 1871, the defendant congregation called the plaintiff as pastor, which call was sustained by Lake Presbytery, and he was thereafter duly ordained and installed as pastor of the Jamestown congregation, at a salary of $1,000 per year. The relation thus established between the parties gave rise to certain reciprocal duties and obligations to be discharged by each toward the other. It became the duty of the plaintiff to faithfully “ perform all the duties of a pastor, to preach the Gospel in purity and simplicity; to catechise and exhort from house to house, to visit the sick, and to perform whatever other duties were incumbent on him as a faithful minister of Christ.” It likewise became the duty of the defendant congregation to “ encourage the plaintiff in his labors for its instruction and edification, to submit to him in the due exercise of his authority, and while he was its pastor to give him a competent worldly support, and whatever else it might see to be needfnl for the honor of religion and his comfort.”</p> <p>These were mutual and dependent promises, performance by one party'being the consideration for performance by the other. The plaintiff’s promise was to perform the duties of a pastor for the defendant congregation. The defendant congregation promised to pay, as a consideration for such services, the compensation agreed upon. Until the plaintiff had rendered some of the services contracted for, had, at least, partly performed his contract, no obligation accrued against the defendant congregation to pay to him any part of the compensation, unless performance was prevented by some act of the defendant. Liability, then, under this contract would extend only to such breaches thereof as were within the control of the party alleged to be in default, and not to those caused by circumstances over which such party had no control.</p> <p>This being the situation of the parties at the time the pastoral relation was established between them, a consideration of their subsequent actions will aid in a determination of their respective liabilities in the present controversy.</p> <p>For some twenty years after his ordination, the plaintiff continued to discharge his duties as pastor of the defendant congregation, and it, from time to time, paid to him the salary agreed upon. On April 11, 1891, as we have already seen, eight members of the session of the Jamestown church, of their own motion and, as the testimony shows, without any action taken by the congregation, presented to Lake Presbytery some complaint against the plaintiff, and requesting a dissolution of the pastoral relation. The elders who signed the petition declined to put the same in the form of charges, but Presbytery decided to investigate the matter informally, and as a result, requested both the pastor and the elders to resign, and on their refusal, dissolved the relation between the plaintiff and the congregation, as well as between the elders and the congregation. On an appeal by the plaintiff from this action, the Synod reversed the action of the Presbytery, and, on October 15, 1891, declared the pastoral relation between the plaintiff and the Jamestown congregation re-established; On December 7, 1891 — without any action by the Jamestown congregation — a petition signed by ninety members was presented to Lake Presbytery, stating that the matters of difference between the plaintiff and said congregation were growing worse, and asked for relief; but did not ask for a dissolution of the pastoral relation, but left the whole matter in the hands of Presbyteiy. As against this petition, a counter petition was presented, signed by 151 members of the congregation who seem to have taken sides with the plaintiff, thus clearly showing that neither petition was presented as a result of any congregational action.</p> <p>Presbytery considered both of these petitions and, after investigation, requested the plaintiff to resign, and on his refusal to do so, dissolved the pastoral relations and appointed a commissioner to declare the pulpit vacant. This action of the Presbytery was reversed by the Synod, but on an appeal, taken by a member of the Presbytery, the General Assembly reversed the action of the Synod and affirmed the action of the Presbytery.</p> <p>Pending a decision of the case by the General Assembly, the plaintiff began to preach regularly for the New Bethlehem congregation of Frankfort Presbytery, and shortly after the deeision was rendered, he accepted a call from said congregation, obtained a certificate of ministerial standing and dismissal from Lake Presbytery, was duly installed as pastor of said congregation and has remained there ever since, having in the meantime rendered no services whatever to the defendant congregation.</p> <p>After having acquiesced in the decision of the General Assembly for two years, the plaintiff petitioned for a rehearing, which was refused. After waiting three years longer, he proceeded against the General Assembly in 'the civil courts, and succeeded in having the action of the General Assembly declared null and void.</p> <p>The defendant Congregation was at no time a party to any of the proceedings above referred to, either in the church courts or in the civil court, nor does it appear that it ever took any action, as a congregation, pertaining to any of said pro-. ceedings. Nor is there any evidence to show that it at any time authorized or directed any person either to institute or conduct any of said proceedings in its behalf. The most that can be said is that the members of the session at one time, and some dissatisfied members of the congregation at another, made complaints, upon which Presbytery took the action complained of. How, then, could any liability accrue against the defendant congregation, whether said proceedings were void or otherwise? If it be argued that the defendant congregation is bound by the act of the session, the answer is that, under the laws of the United Presbyterian -Church, the session is charged with the spiritual oversight and government of the congregation; but we find no power vested in the session to act of its own motion on behalf of the congregation in preparing charges against the pastor. Aside from this, however, the action of the Presbytery in dissolving the pastoral relation, in pursuance of a complaint filed by the session, was reversed by the Synod and the pastoral relation re-established. Hence, it is of no importance in the present controversy whether the action of the session as to these charges was binding on the congregation or not.</p> <p>As a part of his ordination and installation as pastor of the Jamestown congregation, the plaintiff was asked and required to give affirmative answers to, inter alia, the following:</p> <p>“III. Do you approve the Presbyterial Form of Church Government and the Directory for Worship, received by this church, as agreeable to, and founded on, the Word of God, and are you resolved, by the grace of God, to maintain and defend them ?</p> <p>“ IV. Do you promise to submit, in the spirit of meekness, to the admonitions of the brethren of this Presbytery, in subordination to the Synod and General Assembly</p> <p>Both the plaintiff and the defendant congregation were bound by the laws and usages of the United Presbyterian Church, and if obedience to the decision of the church courts justified the plaintiff in withholding his services from the defendant congregation, the same law would'excuse or justify the congregation in withholding the compensation agreed upon for such services. If obedience to the laws and usages of the church and the decisions of the church courts can be invoked as an excuse or justification for nonperformance of his services as pastor of the Jamestown congregation, they can also be invoked by the defendant congregation as a defense in a suit to recover compensation for the period during which no services were performed by the plaintiff, especially when the defendant congregation was not a party to tire proceedings which resulted in a suspension of the pastoral relation previously established between them, and was compelled to support another pastor or pastors during the time the controversy between the plaintiff and some of the individual members of the congregation was pending in the church courts. Even conceding that the action of Presbytery in dissolving the pastoral relation was based on a charge or complaint presented in pursuance of the -official act of the defendant congregation, the church law and the decisions of the church courts were equally binding upon both parties: Riddle et al. v. Stevens, 2 S. & R. 537.</p> <p>In the case cited, suit was brought by the pastor to recover for services alleged to have been rendered. At the trial, the defendants offered in evidence the minutes of the proceeding of Presbytery dismissing the plaintiff from his pastoral charge, on the complaint made against him for improper conduct in his private capacity. The court admitted the evidence, so far as it went to prove the suspension or removal of the plaintiff, but directed the jury that it was not evidence so far as it went to inculpate the plaintiff, or was alleged to have dissolved the contract of the defendants for services actually rendered. Tilghman, G. J., in delivering the opinion of the Supreme Court, on this branch of the case, said: “ The second error is the not permitting to be given in evidence the proceedings of the Huntingdon Presbytery, on a complaint made against the plaintiff for improper conduct in his private capacity. These proceedings were, in some respects, directly pertinent to the issue; the plaintiff’s demand is for services rendered to the defendants as their pastor; the Presbytery, according to the rules and discipline of the Presbyterian Church, had power to suspend the functions of the plaintiff, or even to remove him from his ministry. So far as concerned his suspension or removal, the jury were directed to consider the proceedings as evidence; but no regard was to be paid to the details of evidence before the Presbytery; the particular facts alleged or proved were to have no effect on the verdict; the decision of the Presbytery as to the suspension or removal of the plaintiff, was the only matter to be regarded. Every church has a discipline of its own; it is necessary that it should be so; because, without rules and discipline, no body composed of numerous individuals can be governed. But this discipline is confined to spiritual affairs; it operates on mind and conscience, without pretending to temporal authority. No member of the church can be fined or imprisoned; but be he minister or layman, he may be admonished, reproved and finally ejected from the society; so, may he retire from the society, at his own free will. Under these restrictions, religious discipline may produce much good, without infringing on civil liberty. Both plaintiff and defendants were subject to the laws of the church, both as to the induction and removal of the plaintiff; according to these laws, it was not in the power of the defendants to remove the plaintiff; the Presbytery alone could do it, with a right of appeal, first to the Synod, and in the last resort, to the General Assembly. This being the case, it was to no purpose to enter into the particulars of the plaintiff’s misconduct before the jury; the cause has been heard and decided by the Presbytery; and so far as regarded the plaintiff’s continuance in his ministry, that decision is binding, subject to an appeal to the superior ecclesiastical tribunals, as before mentioned. The court of common pleas was right, therefore, in deciding that the proceedings before the Presbytery were evidence only so far as they proved the suspension or final 'discharge of the plaintiff.”</p> <p>In the case cited, the suit was to recover only for services rendered prior to the suspension or dismissal of the plaintiff, but the principle stated is applicable to the case at bar, and clearly shows that when Presbytery, whether acting upon complaint or charges preferred by the congregation or by individual members thereof, dissolved the pastoral relation between the plaintiff and the defendant congregation, its action was binding both on the plaintiff and the defendant congregation, subject only to appeal to the Synod and, finally, to the General Assembly, and that the legal effect of the decision of Presbytery was to at least suspend the plaintiff’s right to continue in the capacity of pastor of the Jamestown congregation, and also to suspend the liability of said congregation to the plaintiff, pending final disposition of the matter in the church courts.</p> <p>The action of Presbytery in dissolving the pastoral relation between the plaintiff and the defendant congregation was affirmed by the General Assembly, the highest church court of the United Presbyterian Church, and while the decision of the General Assembly was, as we have already seen, decreed null and void by the civil court, such decree was based entirely on the failure of the appellant on its appeal from the decision of the Synod to lodge its appeal and the reasons for it with the clerk of the General Assembly, together with authenticated copies of the record and testimony. The defendant congregation, however, was not a party to the suit brought in the civil court; neither was it a party to the proceedings in the church .courts.</p> <p>We are, therefore, unable to conceive how a congregation bound by the decision of the Presbytery of which it is a member, dissolving the pastoral relation, can be deprived of the services of its pastor during a long period of litigation, to which it was not a party, and still be liable to such pastor for the compensation agreed to be paid to him as a consideration for services actually rendered.</p> <p>To hold the defendant congregation liable under the circumstances of this case is to say to it: “ Lake Presbytery- has dissolved the pastoral relation existing between Rev. Wallace and the Jamestown church; this decision is binding on Rev. Wallace so that he can render no services to the congregation until the action of Presbytery has been passed upon by the General Assembly. It is also binding on the congregation so that it cannot accept his services pending a decision of the matter by the church courts. If, however, the decision of Presbytery is reversed because of some irregularity in the proceedings, in which the congregation had no part, it will still be liable for his salary in the meantime, although no services were rendered by him, and this notwithstanding the fact that the congregation has been compelled to support another pastor in the meantime.”</p> <p>The simple statement of such a proposition appears to our mind as both illogical and inequitable. There is no legal distinction between a contract with a minister and his congregation and any other civil contract for personal services. Hence, if performance of the contract becomes impossible by reason of any law, civil or ecclesiastical, which is binding on both parties, the liability of the parties thereunder is at an end.</p> <p>Suppose that the defendant congregation had felt that it had been greatly damaged through the loss of the plaintiff’s services to it, and had brought suit against him to recover damages for a breach of contract, would not his showing'that he had been prevented from rendering the services contracted for, by an act of the church court dissolving the pastoral relation between him and the plaintiff congregation, have been a bar to a recovery? We are clearly of the opinion that it would, and this notwithstanding the fact that it might subsequently appear that there was some irregularity in the proceedings by which a dissolution of the pastoral relation was declared, as the judgment of the church court was binding upon the parties until reversed by competent authority. If such a dissolution of the pastoral relation would protect the plaintiff if he were the defendant in a suit brought by the congregation, it will equally protect the congregation in a suit brought agaiust it.</p> <p>That this was the view of the plaintiff is evidenced by his action subsequent to the decision of the Synod, from which an appeal was taken to the General Assembly, to some of which we may refer, as showing his acquiescence :</p> <p>1. The pulpit of the Jamestown church was declared vacant, by direction of the Presbytery, on the fourth Sunday of April, 1892, since which time no services whatever were rendered by the plaintiff to the defendant congregation. The decision of the First Synod of the West, reversing the action of Lake Presbytery, was delivered and an appeal therefrom taken some time between August 81 and September 6, 1892.</p> <p>2. The plaintiff began preaching for other congregations, and on December 15, 1892, entered suit in the court of common pleas of Mercer county to recover salary due to him to May 1, 1892, and made no claim whatever for salary accruing subsequent to that date, and on July 5, 1893, the judgment obtained in said suit was paid to his attorney, and so receipted on the record.</p> <p>3. About April 1, 1893, the plaintiff began to preach regularly for the New Bethlehem congregation, in Beaver county, said church being a member of Frankfort Presbytery.</p> <p>4. Shortly after the decision of the General Assembly on May 30, 1893, the plaintiff accepted a call from the New Bethlehem congregation, applied for and received a certificate of dismissal from Lake Presbytery, and was duly installed as pastor of said congregation.</p> <p>5. About two years after the decision of the General Assembly, the plaintiff petitioned for a rehearing, which was refused, and in this refusal he acquiesced for some three years before commencing his action in the civil courts.</p> <p>6. About one year after the decree of the civil court had been affirmed by the Supreme Court, the plaintiff resigned his pastorate of the Jamestown congregation, which resignation was accepted by Presbytery on August 14, 1902, and the pastoral relation was dissolved on August 31, 1902; and on January 15, 1904, about one year and a half after the aeceptance of his resignation, he entered the present suit to recover eleven annual installments of salary, from May 1,1892, covering a period during which he rendered no services whatever to the Jamestown congregation, and during which time said congregation was compelled to support another pastor and pay to him the sum of $1,000 per year for performing the very services that should have been performed by the plaintiff.</p> <p>These facts and circumstances are persuasive evidence of the plaintiff’s understanding that the action of Presbytery was binding upon him and suspended his right, not only to perform any services for the Jamestown church, but also his right to receive compensation during such time as the action of Presbytery remained unreversed. The fact that it was finally determined by the civil court that the action of the General Assembly, reversing the First Synod of the West and thus affirming the action of Presbytery, was irregular because of some informality in taking or prosecuting the appeal, does not, to our mind, change the situation of the parties. The action of Presbytery suspended the right of the plaintiff to perform the services required of him as well as the liability of the defendants to compensate him therefor, pending a final settlement of the matter in the church court, and this whether the action of Presbytery should finally be determined to be legal or illegal. If any right accrued to the plaintiff by reason of irregularity in the proceedings dissolving the pastoral relations between him and the Jamestown congregation, his remedy, in the opinion of the court, would be an action for damages for a wrongful dismissal, instead of an action to recover salary for the period during the time the matter was pending in the courts, and during which he rendered no services whatever.</p> <p>The theory of the learned counsel for the plaintiff seems to be that the decree of the civil court, declaring the action of the General Assembly in sustaining the action of Lake Presbytery in removing the plaintiff from the pastorate of the Jamestown church null and void and decreeing that he be restored to the position of pastor of said church, carried with it the right to recover from the defendant congregation salary for the time his services were suspended. This conclusion, however, does not follow from the language of the decree, even had the court had the power to make a decree against the defendant congregation. The language of that part of the decree as to the plaintiff’s restoration is as follows: “ And that he be restored to the position of pastor of said church, with all the rights and benefits pertaining thereto, as fully and with the same effect as if the action of the First Synod of the West had not been reversed.” This decree makes no reference to the right of the plaintiff to recover salary for the time intervening between the date when the pastoral relation between him and the Jamestown church was dissolved and the time of his restoration was decreed by the civil court; nor could it do so, for the reason that that question was not. before the court. The proceeding in which this decree was entered was an equitable one, in which the plaintiff “ avers that the illegal action of the church courts had deprived him of his salary which his congregation was willing to pay him, had injured him in bis standing and reputation as a Christian teacher, and had practically excluded him from the reasonable exercise of the profession by which he lived. ” The proceeding was in ho sense one for the recovery of compensation for a period when no services were performed, and during which the plaintiff’s right to perform them was suspended by the action of the church court, but was rather one for the restoration of the plaintiff to a position where he could earn the living or salary of which he alleged he had been deprived by the action of the church court. The decree of the court should, therefore, be construed accordingly, and, when so construed, is perfectly clear and consistent.</p> <p>The plaintiff was pastor of the Jamestown congregation, receiving the salary of $1,000 per year. The pastoral relation had been, as it subsequently appeared, illegally dissolved, and the plaintiff was thus deprived of the opportunity of earning the salary he had been receiving. He appealed to the civil court for relief, asking that he be restored to the pastorate from which he had been dismissed, and thus placed in a position to perform the duties of a pastor and receive the compensation fixed therefor. Hence, the effect of this decree was to restore the plaintiff to the position of pastor of said church, and thus place him in a position for performing the services of a pastor and earning the compensation agreed upon. This was evidently the understanding of the plaintiff, as he at once served copies of this decree on the elders of the church and the clerk of Lake Presbytery; and then followed the action of the Presbytery notifying the plaintiff that the way was then open for his occupancy of the pulpit and pastorate of the Jamestown church. It appeared, however, that the plaintiff was at that time, and had been for some eight or nine years, the pastor of the New Bethlehem congregation of Frankfort Presbytery, having taken a certificate of dismissal from Lake Presbytery, and, therefore, not eligible to the pastorate of the Jamestown church, and could not be until he would receive a certificate of dismissal from Frankfort Presbytery, in the manner provided by the laws of the churoli. Instead of placing himself in a position for performing the duties of pastor of the Jamestown • congregation, the plaintiff resigned the pastorate, to which he had been restored by the decree of the court, and this without performing any services whatever.</p> <p>Assuming, however, that the plaintiff would be entitled to recover the compensation stated in the call, less such sums as lie earned and received from other sources during the time his services were suspended by the action of Lake Presbytery, it is clear that this right was determined by his action in asking for and receiving a certificate of ministerial standing and dismissal from Lake Presbytery, thus voluntarily severing his connection with Lake Presbytery and accepting the call of the New Bethlehem congregation in Frankfort Presbytery.</p> <p>The testimony shows that the plaintiff had severed his connection with Lake Presbytery and was installed as pastor of the New Bethlehem congregation as early as September 19, 1893. Plence, his right, if any existed, to recover from the Jamestown congregation salary from May 1, 1892, to September 19, 1893, would accrue on the date last mentioned, and would be barred by the statute of limitations, unless suit was brought within six years from that date. This suit was brought on January 15,1904, a period of a little over eleven years after the right of action accrued.</p> <p>The .conclusions we have reached may, therefore, be summarized as follows:</p> <p>1. The action of Lake Presbytery in dissolving the pastoral relations between the plaintiff and the defendant congregation was binding upon both parties, and had the effect of suspending the right of the plaintiff to render services required of him as pastor of the Jamestown congregation, and also suspended the liability of the defendant congregation to the plaintiff for the compensation agreed upon, pending a final determination of the question as to the regularity of the action of Presbytery in dissolving the pastoral relation.</p> <p>2. The defendant congregation, not being a party to any of the proceedings in the church courts, was in no way responsible for the action of Lake Presbytery in dissolving the pastoral relations between the plaintiff and said congregation, whether such action was legal or illegal.</p> <p>3. The right of the plaintiff to perform the services of pastor for the Jamestown congregation and the liability of the defendant congregation to pay the compensation mentioned in the call to the plaintiff, having been suspended by the act of Lake Presbytery in dissolving the pastoral relation, the fact that the action of Lake Presbytery was thereafter decreed to be illegal, either by the civil or church courts, would not change the status of the parties pending a final determination of the question as to the legality of the action of Presbytery, but could do no more than restore the plaintiff to his pastoral rights and fix the liability of the defendant congregation for the payment of compensation for services thereafter performed.</p> <p>4 If any right of action existed in favor of the plaintiff as against the defendant congregation by reason of the action of Lake Presbytery in dissolving the pastoral relation, his remedy would be an action for damages for a wrongful dismissal.</p> <p>5. If the plaintiff were entitled to recover anything as salary from the defendant congregation after the pastoral relation had been dissolved by Lake Presbytery, said recovery would be at the rate of $1,000 per year, less such sums as the plaintiff earned and received from other sources, and his right to recover would cease and determine upon his voluntarily severing his connection with Lake Presbytery and accepting a call from the New Bethlehem congregation of Frankfort Presbytery.</p> <p>The conclusions stated make it unnecessary to discuss the various exceptions in detail. ■ It follows, from these conclusions, that judgment must be entered in favor of the defendant congregation on the reserved question, non obstante veredicto.</p> <p>Error assigned was the judgment of the court.</p>

<p>Railroads — Condemnation proceedings — Widening—Act of March 17, 1869, P. L. 12 — Practice, C. P. — Jurisdictional averments in petition.</p> <p>A petition by a railroad company in widening proceedings under the Act of March 17,1869, P. L. 12, for the approval of a bond, which averred that the board of directors of the company had adopted a resolution “to acquire additional ground for the better securing and safety of persons and property,-and to increase the facilities and capacity for the transportation of traffic upon its said road,” is defective, and is properly dismissed, where there is nothing either in the petition, the notice, or the bond to indicate that it was the purpose of the company to “ straighten, widen .... and otherwise improve the whole or portions of their lines of railroad.”</p> <p>The court is not under legal obligation to approve the bond tendered where it does not affirmatively and unequivocally appear either in the petition or in the notice, or in the bond itself, that the land is proposed to be taken for a purpose for which lands may be acquired by condemnation.</p> <p>In proceedings under the act of 1869, where the petition, notice and bond are all in proper form and contain the proper jurisdictional averments, it is the duty of the court to approve the bond and permit it to be filed for the benefit of those interested. In such a case and in that form of proceeding, the question whether the land is necessary for which the company proposes to take it, is not before the court for adjudication upon testimony outside the record. The resolution of the board of directors that the land is necessary for the specified purpose for which the company may condemn it, properly averred in the petition, is conclusive upon the court.</p>

<p>Appeal, No. 60, April T., 1907, by defendants, from judgment of G. P. Warren Co., Sept. T., 1906, No. 6, for plaintiffs on case stated in suit of F. IT. Rockwell & Co. v. Warren County, and E. D. Everts, Treasurer.</p> <p>Case stated, was as follows :</p> <p>The following facts are agreed to in the nature of a special verdict for the opinion and judgment of the court thereon, to wit:</p> <p>1. The plaintiffs are the owners of the petroleum, oil and gas in and under all that certain piece or parcel of land, situate in the township of Cherry Grove, county of Warren, and state of Pennsylvania, known and designated on the map of said county as tract No. 596, containing 165 acres of land, be the same more or less; all the other estate in said land, except such petroleum, oil and gas, is owned by other parties.</p> <p>2. The following two unseated assessments have been made upon said lot No. 596 for the years 1904 and 1905 as unseated assessments, described respectively (a) and (b), to wit:</p> <p>For the Year 1904.</p> <p>No. of Tract Reputed Owner No. of Acres Valuation Remarks</p> <p>(a) 596 Vandergrift J. J. Est. 165 $495</p> <p>(b) 596 Rockwell, P. H. & Co. 165 $ 50 Oil, Gas and Mineral Right</p> <p>For the Year 1905.</p> <p>No. of Tract Reputed Owner No. of Acres Valuation Remarks</p> <p>(a) 596 Vandergrift J. J. Est. 165</p> <p>(b) 595 Rockwell, ... r,t\ P. H. & Co. 165 1 50 Oil, Gas and Mineral Right</p> <p>3. The taxes assessed for the years 1904 and 1905 upon the unseated assessments designated as (a) of said lot No. 596, described in the preceding second paragraph, have been paid to the treasurer of the county by the owner thereof. The taxes for the same years upon the unseated assessments, designated as (b) of said lot No. 596, described in the preceding second paragraph, have not been paid, and the land assessed therefor is now advertised* for sale for the second Monday of June, 1906, as required by law in the case of unseated lands, by said E. D. Everts, treasurer of the county of Warren.</p> <p>4. The said lot No. 596 is not in the occupation or possession of any person, party or corporation, but is unoccupied and unimproved land, and as such is unseated land and was such unseated land at the time of the respective assessments (a) and (b) for the years 1904 and 1905, designated in the preceding second paragraph.</p> <p>If the court be of opinion that the said tract No. 596 as unseated land must be assessed and sold as one body of land, and may not be divided into two or more unseated assessments, according to the divided ownerships in the land, so as to have the surface of the tract in one assessment, and the petroleum, oil and gas in a separate assessment, then judgment to be entered for the plaintiffs. But if the court be of opinion that there may be divided unseated assessments of the surface of said tract in one assessment, and of the petroleum, oil and gas in said tract in another unseated assessment, and the interests on such respective unseated assessments sold by the treasurer for nonpayment of taxes thereon, then judgment to be entered for the defendants.</p> <p>The judgment to be entered for the plaintiffs or defendants as may be, to be with, costs, and the parties hereto reserve the right of appeal from such judgment to the appropriate appellate court or courts.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Practice, C. P. — Case stated — Facts—Inferences.</p> <p>A case stated should contain a clear statement of the facts agreed upon which give rise to the question presented for decision, and nothing should be left to inference.</p> <p>On a case stated to determine whether oil and gas separately owned may be separately assessed for taxes, the case stated is fatally defective if it fails to state whether the land in which the oil and gas are owned is seated or unseated. A statement that the land apart from the oil and gas is assessed in the seated list, does not determine the character of the land.</p>

<p>Appeal, No. 45, April T., 1907, by plaintiffs, from decree of C. P. Erie Co., Nov. T., 1905, No. 2, dismissing bill in equit}r in case of John Ripley, Guardian of Alma Highmyer and Ira Highmyer, Minor Children of Mary Hood, formerly Mary Highmyer, deceased, v. Mary Ann Ripley and Isaac F. Ripley.</p> <p>Bill in equity to caucel a bond and mortgage. Before Walling, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 98, April T., 1907, from order of Q. S. Mercer Co., April T., 1906, No. 34, dismissing petition in election contest In re Election of R. N. Nelson and R. C. Kerr, School Directors of Mercer School District.</p> <p>Petition to avoid the election of school directors in Mercer school district.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court in an opinion by Williams, P. J., dismissed the petition.</p> <p>Error assigned was order dismissing the petition.</p>

<p>Appeal, No. 222, April T., 1907, by Charles R. Henry et al., from decree of O. C. Lawrence Co., Dec. T., 1905, No. 23, refusing the sale of real estate in Estate of Patrick Henry, deceased.</p> <p>Petition for sale of real estate.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree refusing order of sale.</p>

<p>Constitutional law — Special and local legislation — Poor law — Act of March 6, 1903, P. L. 18.</p> <p>Those parts of the Act of March 6, 1903, P. L. 18, which provide for the relief of needy, sick and indigent persons who have no known legal settlement within the commonwealth, at the expense of the county where relief is required, do not contravene sec. 7, art. Ill of the constitution, relating to special and local legislation regulating the affairs of municipalities. The fact that the operation of the Act of June 4, 1879, P. L. 78, led to a diversity of method of accomplishing the same result in this class of cases, is not a valid reason for declaring the act of 1903 a local and special law; nor is it special because it divides paupers into two classes, namely, those without a settlement in this state, or whose settlement is unknown, and those who have a settlement, and establishes a different rule as to the relief of each class.</p>

<p>Appeal, No. 200, April T., 1907, by defendant, from judgment of Q. S. Warren Co., Dec. T., 1906, No. 15, on verdict of guilty in case of Commonwealth v. George Rodman.</p> <p>Indictment for an attempt to convey and deliver to prisoners in jail three steel saws proper to facilitate the escape of such prisoners. Before Lindsey, P. J.</p> <p>The material portion of the indictment was as follows :</p> <p>“ And the inquest aforesaid do further present that one George Rodman, late of said county, yeoman, afterwards, to wit: on the third day of October, in the year of our Lord one thousand nine hundred and six, in the county of Warren aforesaid, and within the jurisdiction of this court, the above-mentioned E. D. Martin (alias E. D. Morton), William A. Wentworth and John T. Hannon, then and there being prisoners in the jail aforesaid, lawfully committed to and detained in said jail as above set forth, under the authority and for the offenses aforesaid, respectively, and whilst the said E. D. Martin (alias E. D. Morton), William A. Wentworth and John T. Hannon, continued to be so detained in said jail, did attempt to commit an offense prohibited bylaw,to wit: did unlawfully attempt to convey and deliver to the above named E. D. Martin (alias E. D. Morton), William A. Wentworth and John T. Hannon, prisoners in the jail aforesaid, three steel saws, being instruments proper to facilitate the escape of the said prisoners from the said jail, with the intent that the said prisoners might thereby and therewith escape, or attempt to escape, from said jail, and in such attempt did then and there convey into said jail the three saws aforesaid concealed upon his person, with intent then and there to convey and deliver said saws to the said E. D. Martin (alias E. D. Morton), William A. Went-worth and John T. Hannon, prisoners as aforesaid, without the knowledge and privity of the keeper or keepers of said jail, but the said George Rodman then and there did fail in the perpetration of said offense, and was intercepted and prevented in the execution of the same, contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.”</p> <p>The court charged the jury in part as follows:</p> <p>You have heard the testimony on the part of the commonwealth, heard the testimony as to the finding of the file in the jail and where it was found, and also the other implements lying upon the table there connected with the' file, and you have heard the testimony of Mr. Wright, the deputy sheriff, who testifies in substance that Mr. Rodman, the defendant, came to him and wanted to go into the jail, I believe this was on Wednesday night, October 3, and that he allowed him to go into the jail, that he went with him and when they got into the corridor of the jail he told him he must search him and he proceeded to search him and found, he says, the three saws which have been exhibited here to you, inside of his breast pocket and he took the saws away from him. The defendant had a pie and perhaps something else which he was taking in to the prisoners to eat. It is also testified by Mr. Miller, a prisoner in the jail at the same time, that he saw Mr. Rodman give to one of the prisoners named in the indictment the file which lies upon the table. It is also testified by Mr. Miller that he heard a conversation between the defendant, Rodman and John Hannon, one of these prisoners, and gives you in detail the conversation, and says he heard him tell Rod-man to bring him in two saws and gave him some money, and that this was on Thursday, the Thursday before the saws were found upon Rodman when he went in there.</p> <p>Now, gentlemen of the jury, Mr. Rodman denies this testimony — he does not deny the fact that he had the saws, but he tells you that he sent by Mr. Wilson to get these saws and that Mr. Wilson got them and gave them to him on the night that he went in there with the food for these prisoners, and he tells you the purpose for which he got them. Mr. Wright testifies that he has told him that he got them to cut threads on pipe. He says that he got them to cut the pipe, and as I understand him, gentlemen, he said to cut the pipe or the end of the pipe where the thread was made. However, you will remember exactly what he did say. . . . Now he was engaged in putting this pipe together, as I understand his testimony. Were these instruments such as he would naturally want and would facilitate him in doing that ? These are inquiries for you in connection with determining how much credit to give to his evidence.</p> <p>Now, Wilson corroborates Mr. Rodman in getting the saws and giving them to Mr. Rodman that night. Mr. Wright says that Wilson told him that he got them and gave them to Rod-man during that day before he went to the ball game. Wilson admits that he did tell Mr. Wright that, but he denies telling it to Mr. Magee. Now Magee, the constable, is called as a witness in rebuttal and he testifies that Wilson did tell him that he gave the saws to Mr. Rodman in the daytime before he went to the ball game. So that Mr. Wilson is contradicted in this by the evidence of Mr. Magee.</p> <p>Verdict of guilty', upon which the court sentenced the defendant to pay a fine of $50.00, and to be confined in the Western Penitentiary for a period of one year and seven months by solitary confinement at labor.</p> <p>The defendant filed a motion for a new trial, assigning the following reasons:</p> <p>1. Because no evidence was produced nor proof adduced showing where the alleged offense was committed, either township, borough, county nor state, and, therefore, the cause was not within the jurisdiction of this court.</p> <p>2. That the indictment does not charge an indictable offense against any statute of the state and should have been quashed.</p> <p>8. Because the indictment in this case alleges that the defendant did not commit the alleged offense which is first alleged in said indictment to have been committed.</p> <p>4. Because there was no legal and competent evidence that the defendant committed an offense which is indictable under the statutes of Pennsylvania.</p> <p>5. Because the verdict of the jury, “We find the defendant, George Rodman, guilty as indicted,” is not in fact a judgment rendered against the defendant; too uncertain, and not on a valid indictment.</p> <p>6. Because the indictment charges the defendant with an alleged offense which can be no more than an attempt at an attempt, and sets out below therein that “the said George Rodman then and there did fail in the perpetration of said offense, and was intercepted and' prevented in the execution thereof.”</p> <p>7. Because the verdict was against the weight and preponderance of the evidence.</p> <p>8. Because the court erred in not quashing the indictment in this case for reasons set out in motion made in proper time for that purpose. 9. Because the court erred in admitting the evidence offered by the commonwealth and objected to by defendant in relation to searches made and materials found at the county jail by officers before the alleged offense was said to have been committed — to be given, to which exception was made and bill sealed — within the four days provided by rule of court, and supplementary hereto.</p> <p>Errors assigned were in not quashing the indictment and in not arresting the judgment.</p>

<p>Appeal, No. 143, April T., 1907, by plaintiff, from judgment of C. P. Crawford Co., Sept. T. 1900, No. 20, for defendant on case stated in suit of Titusville v. John Gahan.</p> <p>Case stated to determine the validity of a license tax on theaters and billposters.</p> <p>From the case stated it appeared that the defendant was the owner of a theater or opera house in the city of Titusville, which was a city of the third class. For the years 1896,1897, 1898 and 1899, licensed taxes were leved upon defendant both as the owner of the theater and as billposter under an ordinance entitled as follows : “ An ordinance to provide for the levy and collection for general revenue purposes, Of annual license taxes in the city of Titusville, Pa., approved June 25, 1888, and amendments and supplements thereto.”</p> <p>Thomas, P. J., filed the following opinion:</p> <p>The claims in each of these cases are of the same nature and of a twofold character, though covering different periods of time. The actions are brought to recover license taxes imposed upon the defendant for the years mentioned in two different capacities. First, as the owner of an opera house, which was conducted and maintained as a theater and opera house in which public exhibitions were given for pay, which exhibitions were not for local, religious, educationál or charitable purposes ; and, secondly, as a billposter in said city of Titus-ville.</p> <p>The question involved and the onty serious contention, as we understand it, is as to whether the ordinance under which these taxes were imposed is valid as against the defendant for the purposes for which they were imposed.</p> <p>It is urged that these taxes or licenses were lived for general revenue purposes, and that the city was without power so to do. As we understand the contention, the plaintiff practically admits that the assessments can only be imposed by virtue of the police power of the municipality, and whether this is admitted or not, we think that such is clearly the law.</p> <p>Under the Act of May 23, 1874, P. L. 230, cities of the third class have power to “.levy and collect licenses on auctioneers,” etc., and “to regulate the same by ordinance,” on a number of persons and institutions, including “shows, theaters and all kinds of exhibitions for pay.”</p> <p>The Act of May 24, 1887, P. L. 204, which was subsequently declared unconstitutional, is the act under which this ordinance was framed. By art. VII, sec. 2, clause 4, of said act cities of the class in which the plaintiff was included were allowed to levy and collect for general revenue purposes an annual license tax on auctioneers, etc., but' it is significant that some of the terms in the act of 1874, and especially that of theaters, was omitted therefrom; but under clause 26 of said section said cities were given power “ to license and collect license taxes from shows, theaters,” etc., and “to regulate the same and to restrain and prohibit all exhibitions of an indecent or immoral character.”</p> <p>The Act of May 23, 1889, P. L. 277, art. V, sec. 3, empowers cities of the third class to “ levy and collect for general revenue purposes a license tax not exceeding #100 each, annually, on all auctioneers,” etc. This section follows that of 1887, and excludes theaters. The 25th clause of said sec. 3 of said act empowers the city to “ license and collect a license tax from all skating rinks, operas, theaters,” etc., and to “regulate the same and to restrain all exhibitions of an indecent or immoral character.”</p> <p>It is clear to us that clause 4, sec. 2 of art. VII, of the act of 1887, and clause 4, sec. 3, of art. V, of the act of 1889, relate to taxation for general revenue purposes, and that the state has not delegated to municipalities of this class the power or authority to levy and collect for general revenue purposes a tax against theaters, but that the same may be regulated and a license tax imposed under clause 26, sec. 2, of art. VII, of the act of 1887, and clause 25, sec. 3, of art. V, of the act of 1889, but that under these provisions the power delegated to the municipality is that of regulation and by virtue of police powers.</p> <p>In none of these sections are billposters directly made the subject of taxation for general revenue purposes, nor license regulation by virtue of police powers delegated to the municipality. But each of said acts contains a general welfare clause under which, in our opinion, billposters might be regulated, subject to the police powers of the city, to wit: under clause 47 of said sec. 2, of art. VII, of the act of 1887, and clause 46 of sec. 3, of art. V, of the act of 1889.</p> <p>We see no reason why it would not be proper to regulate the occupation of billposter, both as to the structures where tiie bills might be posted, and as to the nature and character of the matter posted thereon. Certainly this looks to the protection, welfare and morals of the community, and, in our opinion, would be covered by the general welfare clause of eacli of said acts of assembly.</p> <p>Having arrived at the conclusion that theaters are under the expressly delegated police powers of a municipality, and that billposters are subject to regulation under the general welfare clauses of said acts of assembly, it is necessary to determine whether the taxes here sought to be collected were imposed by virtue of the police powers or for general revenue. If for the latter, it seems clear to us that the city was without authority to so impose them. If for the former, they had the power so to impose them, and the defendant is liable therefor in this action.</p> <p>From the title of the ordinance under which these taxes were imposed, it appears that the same was for the purpose of levying and collecting an annual license tax “ for general revenue purposes.” It is probably true that this does not determine the real character of the taxes imposed, but it will aid us somewhat in knowing what the purpose of the legislative body was in passing the ordinance, and may assist us in determining the purposes as provided by the ordinance itself. Most of the taxes imposed by said ordinance are allowed expressly by the act of assembly as a means for raising revenue, but not so as to theaters and billposters.</p> <p>The state has the power as a means to an end, namely, the better exercise of the police power, to impose a fee or license upon property uséd in a certain manner or upon certain callings or occupations. Ordinarily, the state has no right under this power to impose' license fees for purposes of revenue without regard to the question of the regulation, control or use of such property or occupation. The imposition of license fees, having for their purpose the better regulation and control of such occupations, or the use of certain property, is valid as coming within the proper exercise of the police power, when they are imposed not for the purpose of obtaining a revenue, but for the ostensible one : 1 Abbott on Municipal Corporations, p. 258.</p> <p>Strictly speaking, there is a distinction between a license granted or required as a condition precedent before a certain business can be carried on, and a tax assessed on the business in which such license may authorize one to engage. In statutes, however, and even in the decisions of the courts, this distinction is frequently disregarded; and in order to determine whether a sum imposed by statute or ordinance is a license fee proper or a tax, it is generally necessary to ascertain the purpose of the exaction, and. to determine the power by virtue of which it is made. Thus, where the fee is imposed for the purpose of regulation, and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper, imposed by virtue of the police power; but where the fee is exacted solely for revenue purposes, and payment of such fee gives the right to carry on the business without the performance of any further conditions, it is a tax : 21 Am. & Eng. Ency. of Law (2d ed.), pp. 778, 774.</p> <p>We are persuaded that this is a proper definition, and when applied to the case in hand clearly reveals that this ordinance is one wholly for the purpose of raising revenue generally, and not for the purpose of regulation, and that the payment of the fee is the only prerequisite to the carrying on of the business taxed.</p> <p>The plaintiff contends that this is a proper exercise of the police powers of the city, and refers us to several authorities on that subject. Our attention is first called to the case of the City of Chester v. P., R. & P. Telegraph Co., 148 Pa. 120. We are not informed as to the character of the ordinance in said case, but in the opinion of the lower court it is said: “ It is not a tax for revenue, but a police charge for the necessary liability of the city to supervise the use of its streets.” If such provisions were made it would seem that there was some legislation here with reference to regulations, but from the case as reported it is impossible for .us to determine the terms of the ordinance. The case is decided, however, on the authority of Telegraph Co. v. City of Philadelphia, 22 W. N. C. 39, and the City of Allentown v. Western Union Telegraph Co., 148 Pa. 117. In the former of said cases, to which our attention is called, the terms of the ordinances are not given, but, from the holding of the court that the city of Philadelphia had a right, as a matter of police regulation, to supervise and control the erection of poles upon and the stretching of wires along its streets, we are persuaded that some legislative provision for regulation was made. In the latter of said cases it would appear from the per curiam opinion that there was not only the imposition of a license fee or tax, but that the city had enacted an ordinance requiring telegraph, telephone and electric light poles to be inspected by the police department, and that the same should be licensed. It was held that was an exercise of the police power of the city.</p> <p>Our attention is called to the case of Johnson v. Philadelphia, 60 Pa. 445. In that case an annual sum was imposed upon each street car operated in the streets of said city. It was held that the same might be imposed as a police regulation, but could not as a tax, for raising revenue, and in that case it was held that the same was: a valid police regulation. The title to the ordinance in that case is one “ To regulate passenger railways,” and made provision for regulating and the operation of street cars in said city, though the full terms of the ordinance are not made known. It seems that such would be a valid exercise of the police powers.</p> <p>Attention is also called to the case of Oil City v. Oil City Trust Co., 151 Pa. 454. The tax imposed in this case rested on the authority of the act of 1874, but the same was supplied and repealed by the act of 1889. The court says : “ By the express language of clause 4, above referred to, the authority given to cities by this act to license bankers is for general revenue, and as if to emphasize the change of legislative purpose, the grant is transferred from its previous place in the enumeration of police powers to a place among the powers of taxation for revenue. It is, therefore, unquestionably a tax in the general sense, and we have to consider whether appellant is exempted from it by the acts of June 30, 1885, and June 1, 1889.” The court held that they were exempt under said act. Later on the court says : “ The result, therefore, is that banks are only subject to license tax by municipalities by virtue of express legislative authority; that the only authority shown in cities of the third class since the act of 1889 is to license as a tax for revenue purposes, and that as to such tax the appellant was exempt during the years of 1889 and 1890.” In our opinion this case does not support the contention of the plaintiff.</p> <p>Attention is also called to the case of Pittsburg Railways v. Pittsburg, 211 Pa. 479. This case is authority chiefly for the proposition that the naming of a certain tax as a license tax by legislative authority does not make it such, but that the court must look to the ordinance to determine what it actually is. From the title of said ordinance it appeared that the city of Pittsburg attempted to levy a license tax for general revenue purposes upon the street railways and others, and that they attempted to tax each lineal foot of track maintained and operated, and it was held that under the act by virtue of which the ordinance was passed they only had authority to levy and-collect a license tax, while, as a matter of fact, they had attempted to collect a property tax, which was contrary to law.</p> <p>Our attention is also called to the case of the Borough of North Braddook v. Second Avenue Traction Co., 8 Pa. Superior Ct. 233. Section 1 of a supplement to a certain ordinance is here recited and does not show that there was any provision for regulation such as to warrant the exercise of police powers in the taxing of street cars. Whether the courts would take judicial notice of the fact that supervision is required in such case is not necessary for us to consider. The question involved in the case at bar was not involved in this case. The only questions raised were the excessiveness and unreasonableness of the tax, and the vagueness, indefiniteness and lack of means to provide for reasonably assessing the cars operated.</p> <p>By both the act of 1887 and that of 1889 municipalities are permitted to levy taxes upon street cars for general revenue purposes and for that reason it is possible the question as to whether it was assessed by virtue of the police powers or for general revenue purposes was not made a material matter of inquiry.</p> <p>Attention is called to the case of the Borough of Warren v. Geer, 117 Pa. 207, but it is there held that the authority exercised by the borough in the passage of the ordinance was expressly conferred by virtue of the borough law of April 3,1851, sec. 2, par. 11, P. L. 320.</p> <p>It is not necessary for us to take into consideration the more recent decisions of the federal courts and the courts of this commonwealth with reference to the imposition of taxes on telegraph, telephone companies and the like, either by virtue of police powers, or by authority of the acts of assembly, and especially with reference to the regulation of the amount of said taxes by virtue of the sum spent in supervision.</p> <p>It seems clear that the city of Titusville enacted this ordinance as a general revenue measure and has attempted to include in it all persons, firms, etc., allowed by the act of assembly, and in addition thereto some that are hot. As to such as are permitted to be levied by virtue of police power alone the ordinance is invalid, and the claims in these cases are of that character.</p> <p>And now, to wit: July 16, 1906, pursuant to agreement in the case stated it is ordered that judgment be entered in favor of the defendant and against the plaintiff, with costs of suit.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p>Fence law — Township auditors — Fence viewers — Practice, C. P. — Acts of March 11, 1842, P. L. 62, and April 14, 1905, P. L. 162.</p> <p>Township auditors when acting as fence viewers have judicial functions but do not constitute a court, nor is their decision subject to appeal. No particular form is made essential to the validity of their report. Where their duty has been substantially performed, their certificate has all the force intended by the statute. The auditors are not required to measure the length of the fence, but may adopt the measurement made by the township supervisors. It is not necessary that they should deliberate and consult together as to the length of the fence since that is a matter not requiring an exercise of judgment; nor is it necessary that their report be prepared at the time of the view, nor that all sign at one time. The report of the viewers is not invalid because it was handed to the parties instead of a justice of the peace, and was not filed with the justice until twelve days after the view.</p> <p>The imposition of costs on a defendant by fence viewers does n'ot affect the validity of their report. The costs are fixed by statute, and no discretion is placed in the viewers with reference thereto in the Act of April 14, 1905, P. L. 162.</p>

<p>Appeal, No. 21, April T., 1907, by defendants, from judgment of C. P. Butler Co., Dec. T., 1905, No. 31, on verdict for plaintiff in case of Commonwealth to usq of the Butler County Poor District v. James M. Maxwell et al.</p> <p>Scire facias on a judgment entered on a tax collector’s bond. Before Galbreath, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>íftror assigned among others was in refusing binding instructions for defendants.</p>

<p>Appeal, No. 20, April T., 1907, by. defendant, from order of C. P. Butler Co., Sept. T., 1905, No. 99,. allowing scire facias to issue in case of Commonwealth to use ■ of Butler County, the Borough of Butler, and the School Board of Butler Borough v. James M. Maxwell et al.</p> <p>Scire facias sur judgment entered on a tax collector’s bond.</p> <p>Error assigned was order allowing a scire facias to issue on judgment entered by warrant of attorney on the bond of Jame.s M. Maxwell, tax collector for the borough of Butler.</p>

Argued May 20, 1907. Appeal, No. 36, April T., 1907, by plaintiff, from order of C. P. Warren Co., Dec. T., 1903, refusing to take off nonsuit in case of Theodore Johnson et al. v. A. W. Bumpus. Assumpsit for breach of contract. Before Lindsey, P. J. The opinion of the Superior Court states the case. Error assigned was the order of the court.

<p>Constitutional law — Boroughs—Annexation, of borough to city — Local and special laws — Contiguous territory — Counties—Act of April 28,1903, P. L. 332.</p> <p>The Act of April 28, 1903, P. L. 332, entitled “An act for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same,” does not violate article III, sec. 7 of the Constitution of Pennsylvania, which provides that “the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” That there may be a county within the commonwealth to which this act, by reason of special legislation previously passed, governing the affairs of that county, would not at present apply, is no argument against the general character of the act.</p> <p>. A statute, general in form, is not to be treated as local or special, simply because of the intervention of some unrepealed local statute which prevents it from having general effect.</p> <p>Statutes —■ Repeal — Boroughs — Annexation of territory — Allegheny county — City of Pittsburg — Act of May 10, 1871, P. L. 718.</p> <p>The Act of May 10, 1871, P. L. 718, entitled: “An act to authorize the consolidation of adjacent territory within the city of Pittsburg,” is not repealed either expressly or by implication by the Act of April 28, 1903, P. L. 332, entitled: “An act for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same.” The two acts are not repugnant; they stand together; and proceedings may be instituted under either to accomplish the object in view.</p> <p>Municipalities — Cities—Boroughs—Annexation—Contiguous territory -,Judicial notice — Courts—Notice.</p> <p>In proceedings under the Act of April 28, 1903, P. L. 332, to annex a borough to a contiguous city, the courts will take judicial notice of the fact that the borough is contiguous to the city, and the proceedings will not be invalid because such fact is not verified by affidavit; and the same rule applies as to the fact that the borough is in the same county with the city.</p> <p>In proceedings under the Act of April 28, 1903, P. L. 332, the court commits no abuse of discretion in fixing ten days as sufficient notice to the public of the hearings in court of objections to the annexation.</p> <p>Where an order in proceedings under the Act of April 28, 1903, P. L. 332, directs that notice shall be given in the “ Pittsburg Gazette,” and it appears that the notice was published in the “ Pittsburg Gazette-Times,” and that there was no other paper known as the “ Pittsburg Gazette ” published in the county at the time, the publication is a substantial compliance with the order of the court.</p> <p>The certificate of the judges of the common pleas constituting a returning board of a special election held in annexation proceedings under the Act of April 28, 1903, P. L. 332, imports verity, and is conclusive of the facts therein stated.</p>