Volume 35 — Pennsylvania Superior Court Reports

Appeal, No. 186, April T., 1907, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1904, No. 430, on verdict for plaintiff in case of John Krug v. Rembrandt Peale. Trespass to recover damages for injuries to land.

<p>Evidence — Expert witness — Competency of witness — Land damages.</p> <p>A witness is not competent as an expert in a case for land damages against a railroad company, where it appeared that he lived in an adjoining township three miles away from the land in question, that he had not been on it prior to the defendant’s entry, and did not know its boundaries, adjoinders, acreage, or of any sales of like property in the neighborhood.</p> <p>Trespass — Railroads—Land damages — Entry on land — Punitive darmages.</p> <p>In an action against a railroad company to recover damages for injuries to land evidence of a personal altercation between the defendant’s employees-with the plaintiff as to the defendant’s right to enter upon the land, is not ground for an award of punitive damages against the defendant, where there is nothing to indicate wantonness, evil intent, or wrong motive.</p>

<p>Appeal, No. 137, April T., 1907, by plaintiff, from decree of C. P. No. '2, Allegheny Co., Jan. T., 1906, No. 159£, refusing divorce in case of Augustus Hartje v. Mary Scott Hartje.</p> <p>Libel for divorce. Before Frazer, P. J.</p> <p>The court below filed the following opinion:</p> <p>The testimony shows that the libelant and respondent were married March 15, 1894, and lived together until July 24, 1905, when they separated, respondent, at that time and within two days after the family’s return from a trip to Europe, taking their two children and going to reside at the home of her parents. Immediately after the separation, libelant, through mutual friends and also by a letter to his wife, dated July 26, 1905, endeavored to effect a reconciliation. These efforts proving unsuccessful libelant again wrote his wife, on August 5, 1905, withdrawing his previous request for a settlement of their differences. This latter letter was followed by these proceedings, in which respondent was charged with having committed adultery with Thomas Madine, a coachman who was in the employ of libelant from April 6, 1904, until June 5, 1905, and “divers other persons.” Subsequent to filing his libel and in response to rules for bills of particulars, libelant alleged acts of adultery on the part of respondent with Clifford Hooe, a colored man who was also employed by libelant as a coachman from April to about July 1, 1905, and with a man whose name was not given, whom respondent was charged with meeting at a prominent hotel in this city. Respondent was also charged with visiting and meeting men at an assignation house in Watson street. At the trial no evidence was offered in support of any of these charges except that of adultery with Madine. The failure to even attempt to sustain those charges may and should be treated as an admission of libelant’s inability to prove them. We therefore have before us for determination the single allegation of criminal intimacy with Thomas Madine. In support of that allegation witnesses were called by libelant who testified to occurrences which they said took place between Madine and respondent in the Hartje home; and in addition to that testimony twenty-six letters of a highly incriminating nature were offered in evidence which libelant claimed were written by respondent to Madine. The burden of proof was on libelant to show respondent’s guilt by the weight of the testimony. He must prove the offense charged against his wife either by affirmative testimony or by “circumstances that would lead the guarded discretion of a reasonable and just man to the conclusion of guilt.” Has he sustained the burden? The witnesses called to prove the occurrences which are said to have taken place at the home of the parties, were, with one exception, servant girls who had lived in the family. Of these witnesses Katie Schempel was employed as a cook for about seven weeks beginning in February, 1905, and Fannie Jackolitch, also a cook was there for three months in the fall of 1904, and also from April to June, 1905. The testimony of Katie Schempel as a whole, is rather more favorable to respondent than libelant. Both girls say Madine was frequently in the upstairs part of the house, and while Fannie Jackolitch testifies to one or two incidents which were not consistent with prudent conduct on the part' of respondent, those occurrences, if true, indicate no more than an impropriety. The testimony of Katie Schempel proves nothing, and that of Fannie Jackolitch is of little weight, especially in view of the fact that she admitted, on cross-examination, that Madine when upstairs usually played with the children and that Susie Wagner was generally on the second floor at the same time. Annie Lutz, a seamstress in the Hartje house at intervals during several years immediately preceding the separation, also testified that she had often seen Madine in the upstairs, hall and also in the nursery and that he had slept in the spare room on two occasions during the absence of libelant from home. She, however, also said that she “never saw respondent do anything wrong,” and that she was “kind to the servants, devoted to her children and a good mother.”" Aside from her statement that Madine slept in the spare room on two occasions during libelant’s absence from home, which was denied by both respondent and Madine, there is nothing in her testimony to indicate more than imprudence on the part of respondent. Of the servants in the Hartje house, Susie Wagner, an “upstairs girl,” was the most favorable in her testimony toward libelant. Susie entered their employ September 1,1904, and remained with them until June 1,1905, when she accompanied the family to Europe, leaving them, however, upon their arrival in Liverpool, and going to the home of her parents in Germany, where she remained until the latter part of September, when she returned to this country, arriving in New York about October 1, 1905. This witness testified to several incidents of a highly incriminating nature in which she said respondent and Madine figured. That her story is grossly exaggerated and built upon a very slight foundation, is quite apparent. She is flatly contradicted by both respondent and Madine and is not corroborated in any instance by a single witness. It seems impossible that all the happenings testified to by her should have taken place in the Hartje house and not a single one of them be witnessed by one or more of the other servants. Susie was a strongly prejudiced witness, and, in giving weight to her testimony, we must consider that she was brought to this country from Germany in the fall of 1905, by her brother at the request and expense of libelant, that she was met upon her arrival in New York by libelant and his attorney, that she has been under the influence of relatives of libelant since her return to a considerable extent, that while in New York upon her return to this country she was shown statements purported to have been made by two other servants and told that “she knew the same and maybe more,” that she is not even an ordinarily bright girl, and that she also made a statement to respondent’s attorney, in which she said “that she did not know anything bad about respondent.” We cannot conceive that a married woman of iiitelligence and refinement and the mother of children would be guilty of such intimacy with a male servant as Susie testified respondent was guilty of with Madine. The improbability of her story brands it with suspicion. The testimony of these four servant girls is relied upon to establish incidents happening in the Hartje home, which libelant claims indirectly proves criminal conduct upon the part of respondent. Both respondent and Madine denied all improper conduct charged against them, and called other servants who were employed in the family from time to time during the years 1904 and 1905, who testified that respondent’s conduct was proper at all times and that they had seen no wrongdoing upon her part or undue intimacy with Madine. It was admitted by respondent' that Madine was frequently in the front part of the house and also upstairs. It was, however, denied that he was there at any time for an improper purpose. The weight of the testimony is that he was employed to assist in certain housework, beating rugs, moving furniture and cleaning porches, as well as driving the horses. Among other tilings, it was his duty to drive the little daughter of libel-ant and respondent to the kindergarten she attended, and it is uncontradicted that he usually carried the little girl from the nursery to the carriage in the morning and back to the nursery from the carriage upon bringing her home, and it is also uncontradicted that Madine often at libelant’s request spent the evenings with the children in the nursery while libelant and his wife were out driving. These duties satisfactorily explain Madine’s being so frequently on the second floor. Giving the testimony offered to prove the incriminatory house incidents the fullest credit it is in our opinion entitled to receive, we are clearly of the opinion that it does not establish either directly or by inference a criminal intimacy between respondent and Madine. Respondent’s visits to the stable are relied'upon to assist in sustaining the libel. The téstimony shows that respondent has a fondness for fine horses and took great pride in their horses and carriages. That she visited the stable quite frequently, is admitted. Her visits there, however, were not so common and made under such circumstances as to justify even an inference of criminal intimacy with the coachman, and were it not for the testimony of a sister óf libelant, who says that upon going to the Hartje stable one morning she saw respondent and Madine coming from an alcove, I should not deem it necessary to even refer to that branch of the case. The witness said respondent was embarrassed,' and that she, the witness, felt very much as though she had intruded. Respondent denied receiving a call from the witness under the circumstances detailed by her. Assuming, however, that witness called at the Hartje house and found respondent at the stable, the occurrence, it seems to me, was not at the time looked upon by her in an unfavorable or suspicious light. She said nothing to either her sister-in-law or libelant about the incident and continued upon friendly and intimate terms with respondent until respondent’s separation from her husband. While it is quite probable that the witness went to the stable as she testified and found respondent and Madine both there, the circumstance indicates no more than indiscretion upon respondent’s part, especially as the stable doors were open and afforded an opportunity to any person to walk in without notice or warning. While respondent visited the stable perhaps oftener than prudent women customarily do, her fondness for fine horses and carriages, in which she was encouraged by her husband, is to a certain extent an excuse for what the testimony at most shows was an indiscretion upon her part.</p> <p>In addition to the testimony of incidents at the Hartje home, libelant offered in evidence to support his libel, twenty-six letters which he claimed were written by his wife to Madine. These letters, if written by her, contain sufficient admissions to convict her of the improper conduct charged in the libel. To establish their genuineness, which was denied by both respondent and Madine, comparison was made with certain admitted letters and writings of respondent, which were used as standards. Among the standards first offered was a letter addressed to Susie Wagner, the servant above referred to, and marked exhibit No. 6. This letter was at first, upon a casual examination, admitted by respondent to be in her handwriting; subsequently, however, upon further examination, it was repudiated by her. In libelant’s case in chief, he and two experts on handwriting testified that all the disputed letters were- in the handwriting of respondent and a third expert testified that some of them were written by her. The testimony of these witnesses was very much weakened by their testifying that exhibit No. 34, an envelope addressed to Madine, was also written by respondent; that envelope was undoubtedly addressed by a sister of respondent; the young lady so testified, and stated the circumstances ’ under which it was addressed, and while on the witness stand at the request of counsel addressed two envelopes with the same inscription as that contained on exhibit No. 34, which to my mind clearly established the identity of her handwriting. The testimony of these witnesses and the experts who were afterwards permitted to testify in regard to exhibit No. 6, the Susie Wagner letter, was not convincing. While they selected letters and words in both the standard and disputed writings that were almost identical in form and shading, they admitted that the writing in the standards was angular and irregular, while that in the disputed letters was round and uniform — in other words, that the penmanship of the disputed letters was better than that of the standards and more easily read. These experts also admitted a difference in the pictorial effect in the writing in the two sets of letters; on the other hand, the experts and other witnesses called by respondent to disprove the letters, almost without exception sustained their opinions with substantial reasons. These witnesses included members of respondent's family, experts of national reputation, bank officers of this city, and teachers of penmanship in our city high school. Practically but three persons, libelant and two experts on handwriting, testified that the disputed letters (excepting exhibit No. 6) were written by respondent. The opinion of these experts was based upon a comparatively brief examination of the papers. Subsequently, however, these and other experts were permitted to testify upon further examination as to the genuineness of the “Susie Wagner letter,” exhibit No. 6. Whether that letter is in the handwriting of respondent, is very material in determining whether or not the other disputed letters were written by respondent. A number of the experts called on each side testified that the person who wrote exhibit No. 6 also wrote many of the other disputed letters. The penmanship of that letter is certainly different in several particulars from that of respondent. While the writing in exhibit No. 6 resembles that of respondent, an inspection reveals considerable difference from her admitted penmanship, both in the formation and shading of the letters and also in the pictorial effect of the writing. Instead of the angular formed letters of the standards, the writing in the Susie Wagner letter is round, and instead of being written in the nervous and careless style of respondent, the letter -has every appearance of deliberate preparation. The letter, in our opinion, is not in the handwriting of respondent. This conclusion is strengthened by the circumstances under which it reached Miss Wagner. Respondent says she wrote Susie but two letters, one from London and the other shortly after her return from Europe, and Susie says she received two letters from respondent while in Germany, one written in London and the other in Pittsburg; this latter one she says she brought with her to this country, and upon her arrival in New York about October 1, gave it to libelant’s brother. The disputed letter, exhibit No. 6, was not received by'her until the latter part of November, and was forwarded to her by her mother from Germany almost two months after her return to this country, and more than six weeks after respondent had seen and talked with her in this city. The letter, like the other disputed ones, is not dated, nor is the post-marked envelope produced with it. In addition to respondent’s denial that she wrote the letters, and that of Madine that he ever received them, and the testimony of the experts, which is overwhelmingly to the effect that the disputed letters were not written by respondent, there are several circumstances which strongly confirm that conclusion. The fact that not a single one of the disputed letters bears a date, attaches suspicion to them, as does also the fact that but a single post-marked envelope accompanies them, and that one certainly not in respondent’s handwriting. With these circumstances must also be considered the manner in which libelant claims to have obtained possession of the letters. We know of no law that authorizes a litigant to commit a felony or other crime for the purpose of enabling him to secure evidence to sustain his litigation, yet, in this case, if their testimony is true, libelant’s detectives entered the boarding house of Madine for the purpose of robbing him, and actually did take from him papers that had no connection with this case whatever. While they say that, at the same time, they also secured the disputed letters from Madine’s trunk, Madine says he never had them in his possession, and never saw them until they were produced in court and offered in evidence. It was argued that Madine’s denial should have little weight on account of his interest in the determination of this case; it can also be said that those who contradict him in regard to the letters are self-admitted lawbreakers. We saw nothing in the manner of Madine as a witness that suggests any reason why he is not as worthy of belief as the two detectives who say they robbed him. In addition to Madine’s denial, the detectives are flatly contradicted in material parts of their testimony by both the woman who kept the boarding house and her daughter; and, further, if these letters are genuine and were obtained from Madine’s possession, why were they so mysteriously mailed in bundles at intervals to libelant’s counsel by libelant’s brother-in-law, to whom they were given by the detectives, instead of being delivered personally? This latter circumstance was not satisfactorily explained, and it alone is sufficient to stamp the letters with suspicion. On the whole, instead of libelant establishing the genuineness of the disputed letters, as the burden was on him to do, by the’weight of the testimony, the preponderance of the evidence shows that these letters are not in the handwriting of respondent. Giving the testimony offered by libelant the fullest credence it is in our opinion entitled to receive, we are clearly of the opinion it fails to sustain the libel and convict respondent of criminal intimacy with Thomas Madine. We are confirmed in this conclusion by the failure of libelant to furnish any account of what facts came to his knowledge concerning the conduct of his wife, or how he became advised of them during the interval between his two letters to her of July 26 and August 5, above referred to. Immediately after respondent went to the home of her parents, libelant through his brother and also through an intimate lady friend of respondent, endeavored to induce her to return to him, and in addition to personal requests upon the part of these persons, libelant, two days after the separation, wrote his wife, asking her to return to their home; the letter begins, “My dear Mary,” and, after reciting that his brother had informed him of respondent’s absolute refusal to return home, imploringly asks her “as.his wife” to come back, and closes with the words, “Lovingly yours.” Certainly, when libelant wrote that letter, there was not even a suspicion in his mind of improper conduct upon the part of his wife. There being no evidence to the contrary, we must assume that up to this time libelant had not the slightest reason to suspect his wife of being criminally intimate with either Madine or any other person. Had he even suspected her of wrongdoing, that letter would not have been written. Ten days later he wrote her again, as follows: “ Since my letter to you of July 26-95, asking you to come back, facts have come to my knowledge which give me ample reasons to recall my request for your return to me. I therefore recall the offer made in that letter.” Yet in his testimony at the trial there is not a single wqrd indicating what facts had come to his knowledge between the writing of the two letters that gave him “ample reason” to recall his request for a reconciliation. Certainly, he had not learned what Susie Wagner would testify to, as she was then in Europe. There is no evidence to show that he even knew where the other servant girls were at the time, or had' any information as to what they would testify to, and he could not have known of the incriminating letters as they were not taken from Madine’s trunk until about a year afterwards, according to the detectives’ testimony. What knowledge had ’ he acquired, in the meantime concerning his wife’s conduct? The testimony fails to show that he had obtained any information on that subject. While his failure to show what information he received during that interval is not conclusive against the truthfulness of his charges against his wife, it is, especially under the circumstances of this case, an omission that not only detracts from the value of the testimony offered to support the charges, but goes directly to the good faith of the accusation. In view 6f the conclusion reached above, we deem it 'both unnecessary and inadvisable to discuss the affirmative testimony offered by respondent to show adulterous practices on the part of libelant, especially as that testimony will no doubt be at least partially relied upon by respondent to sustain the libel in her proceeding against her husband for a limited divorce, which is now pending.</p> <p>And now, December 12, 1906, decree refused and proceedings dismissed at cost of libelant.</p> <p>Error assigned among others was decree refusing divorce.</p>

<p>Appeal, No. 100, April T., 1907, by defendant, from judgment of Q. S. Lawrence Co., June T., 1907, No. 83, on case stated in suit of City of Newcastle v. A. W. Treadwell.</p> <p>Case stated on an appeal from a judgment of the mayor of the city of Newcastle.</p> <p>Porter, P. J., found the facts to be as follows:</p> <p>This case comes before the court on an appeal from the judgment of M. Louis Hainer, mayor of the city of Newcastle, wherein the defendant was adjudged guilty and sentenced to pay a fine of $25.00 for keeping open on Sunday, June 2, 1907, a room or place for the purpose of selling therein and thereat newspapers, and did therein and thereat sell newspapers on the Sabbath, commonly called Sunday, in violation of an ordinance of the city of Newcastle, entitled: “An ordinance prohibiting under penalty the desecration of the Sabbath or Lord's Day, commonly called Sunday,” approved June 30, 1900, which provides, inter aha:</p> <p>“Section 1. Be it ordained and enacted by the Select and Common Councils of the City of Newcastle, Pennsylvania, that it shall be unlawful for any person to keep open any store, room, or place, or maintain any stand, for the purpose of selling therein or thereat any fruits, candies, goods, wares, merchandise, or other articles and things whatsoever, or to sell any of the aforesaid in any such store, room, or place, or at any such stand, or at or in any other place within said city on the Lord’s Day or the Sabbath, commonly called Sunday. But this provision shall not apply to keeping open any room or place for the purpose of selling, or to the sale of any necessary medical- or surgical supplies, milk and such necessaries of life and other articles and things as are or may be necessary in works or matters of necessity, mercy and charity.”</p> <p>The court affirmed the judgment.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 142, April T., 1907, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T„, 1904, No. 515, for defendant non obstante veredicto in case of New Kensington Lumber Company v. German Insurance Company of Freeport. Assumpsit on a contract of fire insurance. Before Kennedy, P. J. The facts appear by the opinion of the Superior Court.

Appeal, No. 182, April T., 1907, by . .ay Twining, from decree of O. C. Venango Co., Nov. T., 1904, No. 22, sustaining exceptions to auditor’s first report and dismissing exceptions to second report, in Estate of David Crick, deceased. Exceptions to report of Thomas McGough, Esq., auditor.

Appeal, No. 2, Oct. T., 1907, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 5,036, discharging rule to strike off a judgment in case of Western National Bank v. The Cotton, Oil & Fibre Company. Rule to strike off judgment.

<p>Appeals — Failure to print statement of claim — Failure to print evidence —Paper-books—Quashing appeal.</p> <p>A failure by an appellant to print the statement of claim in his paper-book is a noncompliance with the rule of the Superior Court.</p> <p>On an appeal in an action against an insurance company to recover for a fire loss, where the transcript of the evidence shows that the policy and the proofs of loss were produced and offered in evidence, and it also appears that neither the policy nor the proofs Of loss are printed in the appellant’s paper-book, and that these papers are essential to a proper determination of the case, the appellate court will not send the case back for a retrial, but will quash the appeal of the insurance company.</p>

Appeal, No. 35, Jan. T., 1907, by plaintiff, from order of C. P., Lackawanna Co;, Sept. T., 1903, No. 1,237, making absolute rule to pay over money in case of The Pennsylvania Company to use v. Meredith L. Jones et al. Rule to pay over a fund raised by a sheriff’s sale of real estate. Before Edwards, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 129, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1905, No. 3,555, on verdict for plaintiff in case of Lewis A. Haspel,’ Receiver, v. Thomas Martin.</p> <p>Scire facias sur mortgage.</p> <p>At the trial the court gave binding instructions for plaintiff for the amount admitted to be due, i. e., $657.06.</p> <p>On a motion for a new trial and for judgment non obstante veredicto, Audenried, L, filed the following opinion:</p> <p>This action is brought by the receiver of the United Building and Loan Association upon a mortgage found by him among the assets of that society.</p> <p>The mortgage in suit (which is duly recorded) was given by the defendant in 1893 to secure his bond to the building association conditioned for the payment of $1,600, together with interest, the premium on his loan and the dues and fines on his eight shares of stock in the association. The defendant pleaded “Non assumpsit, non est factum, payment, payment with leave, etc.” No notice of special matter was given.</p> <p>At the trial the mortgage was offered in evidence by the plaintiff, and, not being objected to, was admitted.</p> <p>The defendant thereupon testified in substance as follows: About nine years prior to 1893 he had borrowed $1,000 from the association, giving a mortgage to secure it on his property, No. 2030 Wilder street. Half of this money was spent in extinguishing a ground rent charged on the mortgaged premises; and with the other half he started in business. To secure repayment of that loan he had pledged five shares of stock that he was carrying in the association. In the summer of 1893 the defendant became involved in financial difficulties and an execution was levied upon him for $119, under a judgment obtained by one of his creditors. He thereupon applied to the association for a loan of $600, which he was informed by one Carroll, the financial secretary of the association, was the sum required to pay the difference between the withdrawal value of his stock and the amount of his existing mortgage debt, satisfy the judgment against him and pay the dues on the eight shares of new stock that he must subscribe for in order to obtain the loan, that stock belonging to a series which had been running for a year. Carroll prepared the new bond and mortgage and attended to the application of the money advanced by the society, procuring the satisfaction of the old mortgage and paying the debt for which execution had been levied on the defendant’s effects. For some- unexplained reason, the amount of the defendant’s indebtedness to the association was mentioned in these papers as $1,600 instead of $600. Martin signed them without reading them or asking to have them read to him. He did not say that Carroll misstated their contents to him. Carroll is now a fugitive from justice.</p> <p>It was admitted on behalf of the defendant that his indebtedness to the association amounted, on the day of the trial to $657.06. 'Being unable to produce any evidence to throw further light upon the transaction in question, - the plaintiff consented that the verdict should be limited to that amount. The defendant, however, asked for binding instructions in his favor, on the ground that the insertion in the bond and mortgage of an amount of indebtedness exceeding by $1,000 the sum that he had actually borrowed from the mortgagee was a fraud that vitiated the mortgage and operated to prevent the enforcement of the mortgage debt as a lien on his property. This request was refused, and by direction of the trial judge the jury rendered a verdict for the plaintiff for $657.06.</p> <p>The defendant now moves for judgment non obstante veredicto, or for a new trial, if that judgment be refused. We are of opinion that both motions should be dismissed and that judgment should be entered in favor of the plaintiff on the verdict. Our reasons are as follows:</p> <p>In Sheppard’s Touchstone, page 56, it is said: “If the party that is to seal the deed can read himself and doth not, or being illiterate or blind, doth not require to hear the deed read or the contents thereof declared, in these cases, albeit the deed is contrary to his mind, yet it is good and unavoidable.” This principle was stated by Gibson, C. J., sitting at nisi prius, in Greenfield’s Est., 14 Pa. 489, as follows: “If a party who can read will not read a deed put before him for execution, or, if being unable to read will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection either in equity or at law.” On the appeal of that cause, it was intimated by the Supreme Court that equity will interfere in a clear case to correct a mistake even where a grantor has failed to read the deed that he signed; and we have no doubt that to-day in such a case relief may be had against fraud and accident upon equitable principles.</p> <p>At law, in the trial of an issue under the plea of non est factum, when the plaintiff puts in evidence the mortgage under which he claims, that being duly acknowledged and recorded and presenting no signs of alteration or erasure, the burden of proof shifts and it becomes incumbent on the defendant to offer evidence to show that the instrument before the jury is' not his deed. If no such evidence is forthcoming, the plaintiff is entitled to a verdict. Testimony that the mortgage does not correctly state the debt, but that, although he could read, the defendant neglected to read the paper before he signed it, nothing being said as to misrepresentations to him of its contents, falls far short of what is requisite to sustain the burden on him. Such a defense, whether it shows fraud or mistake, is purely equitable, and, while recognized in Pennsylvania, is governed by equitable principles. Since, then, he that would have equity must do equity, it follows that, at the most, such evidence amounts to a defense only to the extent that the debt named in the mortgage exceeds the real debt.</p> <p>There was no evidence in this case to take to the jury the question whether or not the mortgage in suit was a nullity. It was not denied that Martin had signed and sealed it. He did not say that its contents were misrepresented to him. As he might have read the paper but did not, he is presumed to have been acquainted with all that it contained. Such a verdict as that which the defendant asked the trial judge to direct could not possibly be sustained, nor can judgment non obstante veredicto be entered in his favor. Had there been doubt as to the amount which the defendant actually owed upon the mortgage, that question should have been left to the jury. But there was not. The amount of his indebtedness was agreed upon. There was no question of fact open, and there can be no need of a new trial.</p> <p>The application to this case of the principles upon which we have decided it works no injustice to the defendant. He borrowed $600 and agreed to pay it back with interest. The verdict is for that sum with interest at the stipulated rate. He undertook to secure payment of the loan on his property by mortgage. The judgment on the verdict is that his property shall be taken in execution and sold to pay the mortgage debt. The fraud or mistake by which the mortgage was made to refer to the debt secured by it as greater than its true amount was not the fault of the building association, but of his own scrivener and agent. Ordinary care on Martin's part would have led to its discovery and prevention. It would be hard law, indeed, for such a reason to deprive the estate of the association of its lien on his land.</p> <p>Error assigned was the charge of the court.</p>

Appeal, No. 21, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1906, No. 3,268, on verdict for plaintiff in case of Fifth Bluecher Building Association v. Frederick Sylvester. Assumpsit to recover damages for the nonperformance of a parol contract for the sale of lands. Martin, P. J., charged as follows: In this case the plaintiff put up at auction the property 2018 Arch street.

Appeal, No. 261, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 3,468, allowing an appeal from a tax assessment in case of Samuel Chew and Mary J. B. Chew v. City of Philadelphia. Petition for an appeal from tax assessment. The facts are stated in the opinion of the Superior Court. Error assigned was the order quoted in the opinion of the Superior Court.

Appeal, No. 10, Oct. T., 1907, by defendant, from judgment of C. P., No. 3, Phila. Co., June T., 1905, No. 2,642, on verdict for plaintiff in case of Austin C. Sarver v. John K. Mitchell. Trespass to recover damages for death of a child. Before von Moschzisker, J. The facts are stated in the opinion of the Superior' Court. Verdict and judgment for plaintiff for $1,000.

<p>Appeal, No. 123, Oct. T., 1907, by-George Cochran, from order of Q. S. Phila. Co., Aug. T., 1906, No. 768, dismissing petition for payment of costs in case of Commonwealth v. James Sawyer, alias John Murray, alias Harold Sawyer.</p> <p>Petition for payment of costs.</p> <p>• The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 42, Jan. T., 1907, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1907, No. 456, on verdict of guilty in case of Commonwealth v. Joseph. Belserawitz. Indictment for assault and battery. Before Halsey,'J. The opinion of the Superior Court states the case. Verdict of guilty, upon which judgment of sentence was passed. Error assigned was portion of the charge quoted in the opinion of the Superior Court.

<p>Appeal, No. 35, Oct. T., 1907, by William Herbert, from decree of C. P. Lancaster Co., Charter Book, No. 1, p. 363, granting a charter to St. Joseph’s Beneficial Society of Columbia, Pennsylvania.</p> <p>Exceptions to application for charter.</p> <p>Hassler, J., filed the following opinion:</p> <p>All the requirements of the act of assembly and rules of court have been complied with in the application for this charter. It is also in proper form, and for a purpose for which corporations of the second class may be formed, according to the provisions of the Act of April 29, 1874, P. L. 73, sec. 2. Exceptions have been filed objecting to our granting it by William Herbert, who signs the same “on behalf of himself and other members of St. Joseph’s Roman Catholic Beneficial Society.” We cannot consider the exception filed by anyone but William Herbert,- as it is necessary to set out the names of the others for whom he acts: In re Road in Strasburg Township, 23 Lane. Law Rev. 94.</p> <p>Two of the exceptions object to our granting the charter, for the reason that it is but an amendment of a charter of another corporation, and that certain provisions of that charter relating to amendments have not been complied with. Whatever may have been the intention of the applicants, this is not an amendment of another charter; it is not applied for as such; none of the requirements for the amendment of charters have been complied with; but it is asked for as a charter for a new corporation, and, if granted, will not change or affect the rights or liabilities of any other corporation, but will form an entirely new one. Whether or not the intention of the petitioners is to take over the property and business and affairs of another corporation is something with which we are not concerned in this application. So long as the purposes are within the purposes allowed by the act of assembly, we cannot inquire into or be concerned with what the intended corporation purposes to do, provided it does not exceed the powers given it by law.</p> <p>The other exception is that the charter should not be granted because its name is very similar- to an existing corporation, the name of which is “St. Joseph’s Roman Catholic Beneficial Society of Columbia, Pa.” It is the practice of the courts, and of the state department of this commonwealth, to refuse' charters to intended corporations of the same, or nearly the same, name as existing corporations: American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. 189, and cases therein cited on page 196. The reason for this is that corporations having similar names are liable to interfere with each other’s rights and confuse those having business with them. St. Joseph’s Roman Catholic Beneficial Society of Columbia, Pa., does not object to the name of the new corporation, but, on the contrary, when the proposed charter was read at one of their meetings, they approved it, name and all. Eighty-nine of the ninety members of that corporation ask us, in petitions, to grant it, and one of the members only, who is the expectant here, objects. It is. a corporation of the second class, and, while it may have business with people, other than its own members, and may be confusing to them, it is not a corporation intended to do business, but it is organized for the purpose of the social benefits and intellectual improvement of its members, and to afford them moral and material aid, and is not likely for this purpose to have much business with outside parties, so that little confusion, if any, would be caused by the similarity of names. While the name of this corporation, therefore, is very similar to the name of an existing corporation, they are not exactly alike, as the proposed corporation omits the words “Roman Catholic” from its name. In view of the almost unanimous request of the members-of the old corporation to us to grant this charter, and of the approval by the old corporation, at its meetings, of the charter, and the unlikelihood of much confusion arising in the transaction of its business because of the similarity of title, we dismiss the exceptions and grant the charter.</p> <p>Exceptions dismissed.</p> <p>Error assigned was decree of the court granting the charter.</p> <p>The name of a corporation is a property right, which will be protected by law: American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. 189; First Presbyterian Church of Harrisburg, 2 Grant, 240; Waverly Ladies of the Red Cross, 1 Pa. Dist. Rep. 605; Bradley Fertilizer Co. of Phila., 6 Pa. Dist. Rep. 423; Sons of Progress, 14 W. N. C. 31; United Brethren Hebrew Congregation’s Charter, 11 York, 89; Yaux’s App., 109 Pa. 497; Fort Pitt B. & L. Assn. v. Model Plan B. & L. Assn., 159 Pa. 308; Grand Lodge of the A. O. U. W., 110 Pa. 613.</p>

<p>Road law — Report of commissioners — Signatures to report — Review— Participation in review — Act of July 2,1901, P. L. 607.</p> <p>A report of reviewing road commissioners in proceedings under the Act of July 2, 1901, P. L. 607, signed by only two of the three commissioners, and not showing on its face that all of the commissioners participated in the review, is not fatally defective.</p>

Appeal, No. 29, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 152, on verdict of guilty in case of Commonwealth v. William B. DeCost. Indictment for perjury.

Appeal, No. 104, Oct. T., 1907, by John O’Hanlan, from order of C. P. No. 1, Phila. Co., Sept. T., 1906, entering judgment against defendant for want of a sufficient specific answer in case of John McCloskey and Richard P. McCloskey, trading as John McCloskey & Son, Agents for John J. Heck et ah, v. John O’flanlan. Appeal from judgment of a justice of the peace. The facts are stated in the opinion of the Superior Court.

<p>Criminal law — Conspiracy—Sunday law.</p> <p>On an indictment for .a conspiracy to obstruct and defeat the laws relating to Sunday labor, a conviction may be sustained where it appears that the defendant for several successive Sundays kept open his store on Sunday, and thereafter paid the fines imposed upon himself and clerks, and that subsequently he secured the assistance of two strange and unknown persons who came to his establishment on Saturday night, and after assisting in the business on Sunday disappeared shortly after midnight leaving no traces of their whereabouts.</p> <p>The declarations of a person indicted for conspiracy may be admitted against him as evidence of the conspiracy although the fact of the conspiracy has not been shown by other evidence, and no offer made to show it, if it appears that the case is not pressed against the other defendants.</p>

Appeal, No. 150, Oct. T., 1907, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1906, No. 2,903, on answers of garnishee in case of William A. Zumpfe v. Gustav Schultz, N. Schultz and Charles B. Weidlog. Rule for judgment on garnishee’s answers. The record showed that the plaintiff issued an attachment execution on a judgment entered against the defendant, summoning one Charles Weissinger, trustee in bankruptcy, as garnishee.

Appeal, No. 67, Oct. T., 1907, by Max Rosenthal, from decree of O. 0. Phila. Co., Jan. T., 1905, No. 680, dismissing exceptions to adjudication in Estate of Dundas T. Pratt, deceased. Exception to adjudication. The facts appear by the opinion of the Superior Court.

Appeal, No. 146, Oct. T., 1907, by defendant, from judgment of O. and T. Lehigh Co., April T., 1907, No. 5, on verdict of guilty in case of Commonwealth v. Cornelius Bartholomew. Indictment for abortion. Before Trexler, P. J. The opinion of the Superior Court states the case. Errors assigned were as follows: 1. The court erred in overruling the defendant’s motion in arrest of judgment. 2. The court erred in entering judgment upon the verdict of the jury. 3.

Appeal, No. 113, Oct. T., 1907, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1901, No.- 1,863, refusing to take off nonsuit in case of Homer C. Bloom v. Walter N. Gourlay. Assumpsit for moneys had and received. Before Ralston, J. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 259, Oct. T., 1906, by defendant, from judgment of C. P. Bedford Co., Nov. T., 1905, No. 136, on verdict for plaintiff in case of John B. Stewart v. The General Accident Insurance Company of Philadelphia. Assumpsit on a policy of life insurance. The facts are stated in the opinion of the Superior‘Court. Verdict and judgment for plaintiff for $235.82. Defendant appealed.

Appeal, No. 38, Oct. T., 1907, by plaintiff, from order of C. P. Bradford Co., Sept. T., 1906, No. 141, discharging rule for judgment for want of a sufficient affidavit of defense in case of John H. Whitman v. The First National Bank of Canton. Assumpsit on a check. Before Fanning, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 134, Oct. T., 1907, by-plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1905, No. 4,855, on verdict for defendant non obstante veredicto in case of Clara Schweriner v. Philadelphia. Trespass to recover damages for injuries to stock of goods. Before McMichael, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 258, Oct. T., 1906, by defendants, from order of C. P. No. 3, Phila. Co., Sept. T., 1906, No. 1,712, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Emil Stern and Jules Stern, Trading as Stern & Stern, v. Michael J. Dwyer et al., trading as Dwyer, Madden & Company. Assumpsit for goods sold and delivered. The averments of the statement of claim and affidavit of defense appear by the opinion of the Superior Court.

Appeal, No. 22, March T., 1907, by plaintiffs, from judgment of C. P. Lycoming Co., Sept. T., 1906, No. 98, for defendants non obstante veredicto in case of P. Duff & Sons v. F. B. Thrall, surviving partner of F. B. Thrall & Company. Assumpsit for goods sold and delivered. Before Hart, P. J. The facts are stated in the opinion of the Superior Court. At the trial the jury returned a verdict in favor of the plaintiffs for $370.34.

Appeal, No. 83, April T., 1907, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 652, on verdict for plaintiff in case of Dennis Hayes v. German Beneficial Union. Assumpsit to recover death benefits. Before Kennedy, P. J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $486.46. Plaintiff appealed.

<p>Promissory notes — Indorsement—Protest—Notice of dishonor — Affidavit of defense — Practice, C. P.</p> <p>A contract of indorsement, when made, is neither a primary nor an absolute one. It is secondary and conditional. .It is but an agreement for future liability upon and after the happening of certain contingencies. > These are nowhere described in the body of the instrument indorsed, but inhere, ex lege, in the contract created by the simple act of indorsement. They are (a) presentation for payment at the time and place designated by the parties or the law for that purpose; (b) refusal to pay by the party or parties primarily bound; (c) prompt notice of such-refusal to the indorser, whose liability then, but not until then, becomes fixed.</p> <p>As a consequence he who seeks to recover on a contract of indorsement must aver the happening of each and every one of these essential facts or his statement will be demurrable. And, per contra, where a defendant denies, under oath, the existence of any one or more of the same facts, the affidavit is sufficient to put the plaintiff to his proofs before a jury.</p> <p>In an action against an indorser of a promissory note an affidavit of defense is sufficient which declares: “That no notice of the dishonor or protest of said note was given to this deponent by the plaintiffs in this case, or the notary who is alleged to have protested the same or any one on the occurrence of such dishonor or protest, or at any time until the bringing of this suit.”</p>

Appeal, No. 41, April T., 1907, by plaintiff, from judgment of C. P. Warren Co., Sept. T., 1905, No. 58, on verdict for defendant in case of Thomas Gibson v. Lewis T. Rowland. Ejectment for land in Derrfield township. Before Lindsey, P. J. The facts are stated in the opinion of the Superior Court. The court charged in part as follows: Now, gentlemen of the jury, the main dispute in this case lies right here.

Appeal, No. 206, April T., 1907, by defendant, from judgment of C. P. Armstrong Co., March T., 1906, No. 156, on verdict for plaintiff in case of Kittanning Borough v. Garretts Run Gas Company. Assumpsit to recover license fees.

Appeal, No. 205, April T., 1907, by defendant, from judgment of C. P. Armstrong Co., March T., 1906, No. 155, on verdict for plaintiff in case of Kittanning Borough v. Armstrong Water Company. Assumpsit to collect a license tax on gas and water pipes in the borough of Kittanning, at the rate of $30.00 per mile each and every mile of pipe. Before Patton, P. J. Plaintiff presented, inter alia, the following points: 2.

<p>Trust and trustees — Principal and agent — Technical trusts — Statute of limitations.</p> <p>Trusts which are not affected by the statute of limitations are only those technical and continuing trusts over which the chancellor has exclusive jurisdiction. A person who receives money to be paid to another, or to be applied to a particular purpose, and does not pay it to the person, or apply it to the purpose intended, is within the operation of the statute of limitations. A claim by a principal against an agent for moneys received by the latter for the principal’s use, is within the statute.</p> <p>Tenants in common — Rentals—Use and occupation — Act of June 24, 1895,P. L. 237.</p> <p>In an action by one tenant in common against another to recover the plaintiff’s share of the rentals for the property, collected by the defendant, the plaintiff cannot recover from the defendant for the latter’s use and occupation of the premises, unless he has averred in his statement of claim that he seeks to recover for such use and occupation.</p>

Appeal, No. 263, Oct. T., 1906, by Isobel D. Frost, from decree of O. C. Phila. Co., Jan. T., 1881, No. 228, directing payment of income in Estate of Henry G. Freeman, deceased. Petition for decree to pay over income. The facts appear by the opinion of the Superior Court. Error assigned was the following decree: December 3, 1906.

<p>Appeal, No. 264, Oct. T., 1906, by Marion F. Wills, from decree-of O. C. Phila Co., Jan. T., 1881, No. 228, directing payment of income in Estate of Henry G. Freeman, deceased.</p>

Appeal, No. 28, Oct. T., 1907, by Alexander Holland, from decree of O. C. Phila. Co., Oct. T., 1905, No. 400, awarding distribution of a fund in estate of J. G. Robinson, deceased. Petition for decree to pay over money. The opinion of the Superior Court states the case.

<p>Appeal, No. 60, Oct. T., 1907, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 2,939, making absolute rule for judgment for want o’f a sufficient affidavit of defense in case of Morse, Williams & Co. v. D. Maurer & Son Co.</p> <p>Assumpsit for price of a freight elevator.</p> <p>The defendant filed an affidavit of defense, the material portions of which were as follows:</p> <p>That during the summer and early fall of the year 1906, the defendant was erecting and constructing for its own occupancy an entirely new factory building, three stories high, at No. 331 North Eighth street, in the city of Philadelphia. That for the purpose of its business it desired to have placed in the said building a freight elevator, and for that purpose invited proposals from various concerns in that line of business, among others the plaintiff corporation; that in due course, to wit: on or about September 14, 1906, the plaintiff submitted proposals to place such elevator, which proposal was accepted by the defendant, béing the proposal and acceptance referred to in the statement of claim, and on which this action is brought. That thereupon, the plaintiff, knowing from personal inspection, that the building was entirely new, on October 1, 1906, applied to the bureau of building inspection of the city of Philadelphia for and was granted a permit to place an elevator, not in a new, but in an “old hatch;” that this application was a fraud and in violation of the acts of assembly, particularly the Act of April 25,1903, P. L. 304, etc., for the reasons hereinafter set forth.</p> <p>That thereupon the plaintiff proceeded to place the said elevator in the building aforesaid, and when finished was on November 20, 1906, inspected and condemned by the bureau of building inspection as an illegal and dangerous elevator, in that being a new and not an old shaft in a factory building, it was required by the fourth section of the act hereinbefore referred to, to be inclosed between the floor and ceilings of each story in suitable walls of brick, or with a suitable framework of iron or burnt clay filling, or of such other fireproof material and form of construction as may be approved by the bureau of building inspection, excepting that the inclosure walls, required by said section in any fireproof buildings used as warehouses or factories shall be of brick; and the said building No. 331 North Eighth street was a building of such a character. That the elevator shaft in the said building was not inclosed as required by the act as above set forth, nor inclosed in any way, but that hatch openings were provided with automatic hatch doors only. That the said act of assembly permitted the latter construction only in buildings existing at the time of its passage, and it was to obtain the benefit of such-permission that the plaintiff at the time it made application for and received a permit as set forth in the “First” paragraph of this affidavit, fraudulently misrepresented to the bureau of building inspection that the hatch was an old one.</p> <p>That by reason of the condemnation by the bureau of building inspection aforesaid, the defendant will be put to an expense of $160, and perhaps more, to have the shaft and openings reconstructed and the shaft inclosed to make it conform to law, as it was the duty of the plaintiff to do.</p> <p>That the deponent is advised and informed, and therefore avers, that the plaintiff having deceived the bureau of building inspection, and having erected a contrivance that was contrary to law, it is not entitled to recover anything in this action.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p> <p>— There can be no recovery upon a contract based upon a violation of law: Mitchell v. Smith, 1 Binney, 110; Booth v. Hodson, 6 T. R. 405; Seidenbender v. Charles, 4 S. & R. 151; Swan v. Scott, 11 S. & R. 155; Holt v. Green, 73 Pa. 198.</p>

Appeal, No. 222, Oct. T., 1906, by plaintiffs, from judgment of 0. P. No. 2, Phila. Co., March T., 1904, No. 2,093, for plaintiff on case stated in suit of John T. Suckling et al. v. The Most Excellent Assembly Artisans’ Order of Mutual Protection. Case stated to determine liability for death benefits.

Appeal, No. 3, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Phila. Co., June T., 1905, No. 479, on verdict for plaintiffs in case of Charles I. Luntz and H. Arenson, trading as Akron Junk & Metal Company, v. Edward Y. Berry and James C. Aikens, trading as Berry & Aikens. Assumpsit for goods sold and delivered. Before Wilt-bank, J. The facts appear by the opinion of the Superior Court. Defendant presented the following points, all of which were refused: 1.

<p>Appeal, No. 45, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec.- T., 1905, No. 6,336, M. L. D., on verdict for plaintiff in case of Elwood Vansciver v. Frank P. Churchill, reputed owner and contractor, and the Empire State Surety Company.</p> <p>Issue under the act of June 4, 1901, to determine the validity of a mechanic’s lien. Before Ralston, J.</p> <p>The court charged as follows:</p> <p>Counsel have stated to you very clearly their respective views of the evidence in this case, as to the amount, etc. I shall not go over that again. Under ordinary circumstances, in this case, the plaintiff doing the work would have a lien upon the building, and, therefore, he would be protected. Under his contract, he renounced the right to lien. Now what did he get in return? (Instead of having his right to lien, there was a special stipulation in the contract that three houses should be set apart to secure him.) Consequently, he claims that when he gave up his right to lien, it was on account of that special stipulation in the contract, and that he was induced to sign that contract by the representations of Mr. Churchill, which he alleges were false and fraudulent. He, therefore, claims that he was induced to enter into this contract by the false statement that Mr. Churchill was the owner of these houses; that he was not the owner and could not carry out the agreement which he had made. Now, if you should find that he was induced by false representations to enter into this contract waiving his right to lien, then he has a right to disregard that contract altogether and resort back to his lien which he would have had in the absence of the contract. Exception to defendant.</p> <p>Verdict and judgment for plaintiff for $110. Defendant appealed.</p> <p>Errors assigned (1-7) are fully stated in the opinion of the Superior Court.</p> <p>At most, Churchill can be convicted only on breach of contract: Long v. Caffrey, 93 Pa. 526; Purvis v. Brumbaugh, 8 Pa. Superior Ct. 292.</p> <p>Plaintiff has waived any alleged right to set aside the contract, and affirmed his contract after full knowledge: Howard v. Turner, 155 Pa. 349; Williams v. Thomas, 7 Kulp, 371; Hilliard v. Carving Co., 173 Pa. 1.</p> <p>No material issue of fact was raised and no issue had been framed at the time of the trial.</p> <p>Claimant cannot avoid his contract filed of record after the rights of third parties have intervened: Hollingsworth on Contracts, p. 186; Sinclair v. Healy, 40 Pa. 417; Dettra v. Kestner, 147 Pa. 566.</p> <p>A claim simply for labor performed and furnished, or for materials without any specification of the kind or quantity, or time when furnished, is defective: Graham v. McLean & Ben-nor Machine Co., 1 Chester County Rep. 73; Kauffman v. Rodgers, 7 Lane. L. R. 348; Wolfe v. Keeley, 9 Pa. Dist. Rep. 515; Heron v. Robinson, 2 Pars. 248; Lauman’s Appeal, 8 Pa. 473; Clark v. Richardson, 4 W. N. C. 559; Mercer County v. Coovert, 6 W. & S. 70; Yohn v. Shumaker, 5 Pa. Superior Ct. 320; Green v. Boyd, 13 Pa. Superior Ct. 651.</p> <p>The surety is discharged by the amendment.</p> <p>— Amendments of the kind allowed in this case, which do not change the cause of action, have been held not assignable as error: Maus v. Maus, 5 Watts, 315; Davis v. Church, 1 W. & S. 24Ó; Ballman v. Heron, 169 Pa. 510; Krumbhaar v. Birch, 83 Pa. 426; Harding v. Lloyd, 3 Pa. Superior Ct. 293.</p> <p>It was not error to amend the lien before the trial: Ins. Co. v. Simmons, 30 Pa. 299.</p> <p>The lien did not require a bill of particulars: Young v. Lyman, 9 Pa. 449.</p> <p>The issue was properly made: Wyss-Thalman v. Beaver Valley Brewing Co., 216 Pa. 435.</p>

<p>Appeal, No. 136, Oct. T., 1907, by-defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1900, No. 562, on verdict for plaintiff in case of Rosina Metzger, formerly Rosina Thumann, Executrix of Heinrich Thumann, deceased, v. The Cecilian Musical Beneficial Association of Philadelphia.</p> <p>Assumpsit for benefits.</p> <p>The court charged in part as follows:</p> <p>[Now, the sole question in this case for you to determine is whether or not Mr. Thumann was lulled into a sense of security with regard to the certificate which he was obliged to furnish the company under the by-laws, by reason of the fact that the company paid him money upon improper certificates from Germany. [1]</p> <p>[Now, it is for you to say whether or not there was anything in this case which induced Mr. Thumann to be, you might say, careless with regard to the certificates which he supplied the organization. The by-law says positively that the certificate must be sworn to. It is admitted that the organization paid sick benefits for twenty-seven weeks upon certificates that were not sworn to. There is testimony that certificates were sent from Colorado and Florida that were not sworn to. Now, was Mr. Thumann misled by the conduct of the officers of the association under the circumstances? If he in good faith sent eertificates which were not sworn to and received payments upon them, and if he in good faith sent other certificates which were not sworn to, it was the duty, under the law, of the officers of this association to notify him that his certificates were not in proper form, and that for that reason they would not pay them. If they failed to do that, it is for you to say whether or not he had a right to expect and assume that the same rule which prevailed with regard to-the payments made while he was in Germany was to prevail while he was in Colorado and Florida. [2]</p> <p>[The sole question here is whether or not he was misled by the action of the officers of the association. If he was, his widow is entitled to recover the amount which she claims. Because I charge you as a matter of law that it was the duty of the officers of this organization to notify him that his papers were not in proper form, so that he might have an opportunity to correct them. If, from the evidence, you conclude that he did not receive any such notice and that he was sending his certificates on with the expectation that he was to receive this money ultimately, and did not realize that they were improper in form, you may render a verdict for the plaintiff. If, however, on the other hand, you have reason to believe from the evidence that this man knew these papers were not in proper form, and if he knew the payments were not being made to him because they were not in proper form, and’he had time and opportunity to correct them and make them comply with the requirements of the by-laws, then it would be your duty, under the evidence, to render a verdict for the defendant.] [3]</p> <p>Verdict and judgment for plaintiff for $310. Defendant appealed.</p> <p>Errors assigned were (1-3), above instructions, quoting them.</p> <p>To entitle a claimant to sick benefits he must show affirmatively a strict compliance with the by-laws: Myers v. Alta Friendly Society, 29 Pa. Superior Ct. 492; Carey v. Fire Ins. Co., 171 Pa. 204; Myers v. Fritchman, 6 Pa. Superior Ct. 580; Wick v. Accident Order, 21 Pa. Superior Ct. 507.</p> <p>By-laws requiring members to appeal to the tribunal of the order, before resorting to a suit at law, will be enforced by the courts: Beeman v. Supreme Lodge, 29 Pa. Superior Ct. 387; Myers v. Fritchman, 6 Pa. Superior Ct. 580; Leech v. Harris, 2 Brews. 571; German Reformed Church v. Com., 3 Pa. 282; Sperry’s App., 116 Pa. 391; Riddell v. Harmony Fire Co., 8 Phila. 310.</p> <p>Want of jurisdiction may be set up for the first time in the appellate court: Borough of Little Meadows, 28 Pa. 256; Fowler v. Eddy, 110 Pa. 117; Wall v. Wall, 123 Pa. 545; Hill v. Tionesta Twp., 129 Pa. 525; Middletown Road, 15 Pa. Superior Ct. 167.</p> <p>There is no estoppel where parties make a mutual mistake, or where one party is not misled: Lawrence v. Luhr, 65 Pa. 236; Heller’s App., 116 Pa. 534; Newman v. Edwards, 34 Pa. 32; Thompson’s App., 126 Pa. 367; Sensinger v. Boyer, 153 Pa. 628.</p> <p>The return of the certificates without objection constitutes a waiver: Stambler v. Order of Pente, 159 Pa. 492; Oswalt v. Fire Ins. Co., 175 Pa. 427; Welsh v. London Assur. Corp., 151 Pa. 607; Carpenter v. Allemannia Fire Ins. Co., 156 Pa. 37; Ins. Co. v. Cusick, 109 Pa. 157; Universal Fire Ins. Co. v. Block, 109 Pa. 535; Thierolf v. Ins. Co., 110 Pa. 37.</p> <p>The course of dealing showed a waiver: Susquehanna Mutual Fire Ins. Co. v. Hallock, 22 N. W. C. 151; Oswalt v. Ins. Co., 175 Pa. 427; Ins. Co. v. Cusick, 109 Pa. 157; Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73; Thierolf v. Ins. Co., 110 Pa. 37.</p> <p>It is'submitted that the case of Stambler v. Order of Pente, 159 Pa. 492, decides the case at bar.</p>

<p>Libel — Trade libel — Probable cause — Negligence—Province of court and fury.</p> <p>While in general, the question of probable cause is one of law for the court, it is for the jury to determine whether the facts relied on to constitute it are established by the evidence, unless they be admitted or be beyond controversy.</p> <p>When proof of the plaintiff’s case or defendant’s defense depends upon oral testimony it is the province of the jury to decide, under instructions from the court as to the law applicable to the facts, subject to the salutary power , of the court to award a new trial if it should deem the verdict contrary to the weight of the evidence.</p> <p>In an action for trade libel against a patented article, where the plaintiff has presented a prima facie case upon which it has a right to go to the jury, and the defendant presents oral evidence that the publication was made in good faith upon advice of competent counsel who knew the facts, the defendant is not entitled to binding directions in his favor, inasmuch as it is the function of the jury to p^ss upon the oral evidence as to whether the advice was given, and whether under all the circumstances defendant honestly believed that he had a right to publish the libel in question.</p> <p>Libel — Trade libel — Blander of title.</p> <p>An action for the wrong called slander of title, is not like an action for ordinary defamation. It is an action on the case for special damage sustained by reason of the speaking, or publication of the slander of the plaintiff’s title. Actual malice — that is, absence of good faith — no less than special damage is of the gist of the action. If there is no evidence of special damage, the plaintiff cannot recover.</p>

Appeal, No. 139, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 1,043, overruling defendants’ demurrer to plaintiff’s statement, in case of Samuel J. Birkhead v. Mary Ward et al. Appeal from judgment of justice of the peace, The material portion of the transcript of the justice of the peace was as follows: Now, September 19, 1906, counsel of both parties appear.

<p>Constitutional law — Special privileges and immunities — Emblems— Badges, etc. — Secret fraternal associations — Act of March 28, 1907, P. L. 35.</p> <p>The Act of March 28,1907, P. L. 35, which makes it a misdemeanor for any person “to wear or use, or aid in the wearing or use of, any emblem, button, device or insignia, falsely or with intent to deceive,” applies exclusively to the emblems of “any secret, fraternal association, society, order or organization which has hád a grand lodge having jurisdiction in this commonwealth for ten years or longer;” and as thus construed, the clause which creates the misdemeanor does not conflict with clause 27, sec. 7, art. Ill of the constitution of Pennsylvania, which forbids the legislature to pass any local or special law “the granting to any corporation, association, or individual, any special or exclusive privilege or immunity.”</p> <p>Argument that certain legislation is unwise, or dangerous in its tendencies, or contrary to the spirit of our institutions, or is special in that it does not apply to every case equally within the mischief to be remedied, can be of little avail upon the question of its validity unless the provision of the fundamental law with which it conflicts can be pointed out. Nothing but a clear violation of the constitution, a clear usurpation of powers prohibited, will justify the judicial department in pronouncing an act of the legislature department unconstitutional and void.</p> <p>The Act of March 26, 1907, P. L. 35, simply provides a public remedy for a kind of fraud and deceit, which, apart from its infringement of the rights of societies or individuals, as such, was deemed by the legislature to involve such turpitude and to affect the public injuriously in so large a degree as to justify it in declaring it to be a misdemeanor and punishable as such.</p> <p>Constitutional law — Title of statute — Emblems—Secret fraternal associations — Act of March 28, 1907, P. L. 35.</p> <p>The Act of March 28, 1907, P. L. 35, entitled “An act to prohibit the fraudulent use of the name or title of secret fraternities, associations, societies, orders, or organizations; also prohibiting the fraudulent wearing or use of any emblem, badge, button or insignia of such secret fraternal organization, and fixing the penalty for violation of this act,” does not contravene sec. 3, art. Ill of the constitution of Pennsylvania, which reads: “No bill, except general appropriation bills shall be passed containing more than one subject which shall be clearly expressed in the title.”</p> <p>The courts will sustain such portion of an act of which the title gives notice, if it be in itself a complete and sensible enactment, which is capable of being executed, unless it be so linked with the unconstitutional provisions as to lead to the conclusion that the former would not have been adopted by the legislature without the latter.</p>

Appeal, No. 22, Jan. T., 1908, by defendant, from order of Q. S. Lackawanna Co., April T., 1907, No. Ill, for support in case of Commonwealth v. Brownell. Certiorari to justice of the peace in desertion proceedings. The facts appear by the opinion of the Superior Court. Error assigned was order directing the defendant to pay to his wife $12.00 per month.

<p>Appeal, No. 43, Oct. T., 1907, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1906, No. 1,575, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Wolf Srolovitz v. Abraham Margulis.</p> <p>Assumpsit to recover hand money.</p> <p>Order making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 151, Oct. T., 1907, by-George A. Richmond et al., from order of Q. S. Phila. Co., March T., 1907, imposing costs of proceedings on petitioners in an election contest In re Election of Common Councilman in the Thirty-eighth Ward of City of Philadelphia. Petition for an election contest.

<p>Practice, C. P. — Parties—Unincorporated associations.</p> <p>In the case of unincorporated associations, having a large membership, actions may be brought by some of the members in their own names in behalf of all. This modification of the usual requirement as to necessary parties is an equitable exception suggested by convenience. Where the number of members is very large it would be, if not impracticable, very inconvenient and certainly unnecessary to include all their names as parties when the right of action exists in the association and when individuals are named who may be made liable for costs. Where the action is brought for all the parties in interest the requirement of the law is met by the use of some of the individuals composing the organization.</p> <p>Where an unincorporated association is composed of about 160 members, an action may be brought in its name by its president, secretary and three other members. In such a case a resolution of the association requiring the members appointed to conduct the suit to give security, is a matter with which the defendant has no concern. The court will assume in the absence of objection by other members that security has been entered.</p> <p>Statute of frauds — Promise to pay debt of another — Pecuniary interest of promisor.</p> <p>The statute of frauds does not apply where the promisor has a present pecuniary and personal interest in a transaction in which a third party was the original obligor.</p> <p>Where the creditor of an insolvent promises another creditor of the insolvent to pay the debt of the insolvent to him, the promise is not within the statute of frauds, and need not be in writing.</p>

Appeal, No. 66, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, PMla. Co., Sept. T., 1905, No. 671, on verdict for plaintiff in ease of W. W. Shoe v. Emil Maerky. Assumpsit to recover damages for breach of warranty in the sale of a steam engine. Before Audenried, J. The court charged in part as follows: [The only man who has tested that engine, who has come here and given you any statement of the result of his test, is Mr. Schramm.

<p>Corporations — Principal and agent — Agent’s authority — Duty of inquiry — Pledge of securities.</p> <p>The general rule as to agents of corporations, is that a corporate agent, like the agent of an individual, can make only such contracts as he is expressly authorized to make, or such contracts as pertain to the duties which the corporation imposes upon him.</p> <p>A person cannot retain negotiable securities which he accepts from an agent of a corporation, as a pledge for the debt of a third person, where it appears that he knew that the bonds were the property of the corporation, that it was his first transaction with the corporation, that he made no inquiry as to the authority of the agent, and that if he had made inquiry, he would have found that the action of the agent in pledging the securities was not only without authority, but in direct violation of it.</p>

<p>Insurance — Accident insurance — Relief association — Disobedience of employer’s rules — Negligence—Street railways — Evidence.</p> <p>In an action on a policy of accident insurance to recover for personal injuries sustained by the insured while acting as a motorman, where the policy provides that there shall be no liability if the injuries are sustained by reason of the violation of a rule of the employer of the insured, and it appears that a rule of the employer forbade the insured to leave his car “without first throwing off the overhead switch, and removing the controller handle,” and the evidence is conflicting as to whether the insured had complied with this order, the case is for the jury and a verdict and judgment for plaintiff will be sustained.</p>

<p>Appeal, No. 72, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 3,179, on verdict for plaintiff in case of Michael Brannan v. Edward Haldeman.</p> <p>Trespass to recover damages for injuries to a horse.</p> <p>Carr, J., charged in part as follows:</p> <p>The defendant was a bailee for hire, as it is called; that is to say, the defendant got possession of the horse and paid so much for its use. The rule of law is that he is obliged to use ordinary diligence and care in order to preserve the property; and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant.</p> <p>Now the facts are that the horse was in sound condition when the defendant received him about six o’clock on the morning of April 3. When he was next seen by his owner on the following morning about ten o’clock, he was lame. What then are the facts showing that he did not use ordinary care in using the animal? It seems that the defendant returned the night before about a quarter before twelve, and instead of taking the horse to its owner, the plaintiff, stabled him that night in his own control. The plaintiff asks you to believe that that is a suspicious circumstance, and that it was because the horse was not at that time in as sound condition as when the defendant received it, so that the defendant did not hunt up the owner or take the horse to stable; and it is a fact for you to consider; the plaintiff also asks you to find that either in taking the horse up the incline or in bringing him down the following morning at the Star Stable, his back was injured. That is a fact for you also to consider, and you will note whether it was the act of a man who was using- ordinary diligence and care in handling the animal.</p> <p>Not only that, but when the horse was returned the next morning to the stable, what was the fact? There was no one there. It was returned at an unusual hour, because these men go to work about seven o’clock. The horse was not returned until half-past eight. Again, was it a reasonable and cautious act, and that of a man using ordinary care, to leave the horse in the stable without a caretaker? Even though you take the defendant’s side of the story, that the horse was hurt in its stall, the question of fact for you to consider is, whether or not he did the ordinarily careful thing that a man would do, in leaving the horse in the stall without a caretaker. That to my mind is a material point, and if, under all the circumstances, you believe that the defendant, when he left the horse there without a caretaker, did a thing which an ordinarily careful and cautious man would do, and the horse was hurt in the stall, as the defendant contends, then the defendant is not liable. On the other hand, if you believe the horse was hurt in the stall, and that it was not the act of an ordinarily careful and cautious man to leave it in the stable without someone to look after it, then the plaintiff is entitled to recover.</p> <p>Verdict and judgment for plaintiff for $201. Defendant appealed.</p> <p>Error assigned was in finding binding instructions for defendant.</p>

Appeal, No. 145, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., March Term, 1906, No. 1,249, on verdict for plaintiff in case of Robert J. McNally v. Acis Jenkinson. Assumpsit for plumbing work. Before Staake, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $216.87. Defendant appealed.

<p>Appeal, No. 137, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1904, No. 239, setting aside divorce in case of Robert M. Catts v. Ola J. Catts.</p> <p>Rule to show cause why decree of divorce should not be open.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was'order making absolute rule to open decree in divorce.</p> <p>— We take it to be a primary principle of law that a decree of a court of competent jurisdiction cannot be opened after term time except for fraud: O’Donnell v. Flanigan, 9 Pa. Superior Ct. 136.</p> <p>The case of Hocking v. Hocking, 26 Pa. C. C. Rep. 362, decides the very point in issue.</p> <p>cited: Wanamaker v. Wanamalcer, 2 Pearson, 166; Keeseman v. Keeseman, 2 Pearson, 186; Allen v. Maelellan, 12 Pa. 328; Boyd’s App., 38 Pa. 241; Nickerson v. Nickerson, 16 Phila. Rep. 154; Perry v. Perry, 15 Phila. 242; Firmin v. Firmin, 16 Phila. Rep. 75; Given v. Given, 25 Pa. Superior Ct. 467.</p>

Appeal, No. 271, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 4,192, on verdict for plaintiff in case of Edmund C. Hoyt v. Clinton Hotel Company. Trespass to recover the value of a trunk'. Before Martin, P. J. The facts are stated in the opinion of the Superior Courts The defendant presented the following points : 1.

Appeal, No. 88, Oct. T., 1908, by defendant, from judgment of C. P, No. 1, Phila. Co., Sept. T., 1906, No. 405, on verdict for plaintiff in case of Charles Strahl v. Philadelphia. Trespass to recover damages for personal injuries. Before Magill, J. The facts are stated in the opinion of the Superior Court. Error assigned was in refusing binding instructions for defendant. cited: Boehm v. Bethlehem Borough, 4 Pa.

<p>Appeal, No. 138,' Oct. T., 1907, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 4,745, overruling exceptions to report of referee in case of James E. Ingram v. City of Philadelphia.</p> <p>Exceptions to report of David McCoach, Esq., referee.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The referee found in favor of the plaintiff for $500. Defendant appealed. '</p> <p>Error assigned was in dismissing exceptions to report of referee.</p> <p>— Plaintiff failed to show the existence of a defect in the highway, for which the city is bound to respond in damages: Borough of Mauch Chunk v. Kline, 100 Pa. 119; Dehnhardt v. Philadelphia, 15 W. N. C. 214; Blaine v. Philadelphia, 33 Pa. Superior Ct. 177; Garland v. Wilkes-Barre, 212 Pa. 151; Wyman v. Philadelphia, 175 Pa. 117.</p> <p>Having voluntarily entered upon the pavement in daylight with knowledge of its icy condition plaintiff was guilty of contributory negligence: Dehnhardt v. Philadelphia, 15 W. N. C. 214; Fleming v. Lock Haven, 15 W. N. C. 216; Haven v. Bridge Co., 31 W. N. C. 191; Winner v. Oakland Township, 158 Pa. 405; Conrad v. Upper Augusta Township, 200 Pa. 337; Bechtel v. Mahanoy City Borough, 30 Pa. Superior Ct. 135; Evans v. Philadelphia, 205 Pa. 193; Brown v. White, 206 Pa. 106; Steck v. Allegheny, 213 Pa. 573; Dwyer v. Port Allegheny Boro., 216 Pa. 22; Smith v. New Castle, 178 Pa. 298; Brown v. White, 206 Pa. 106.</p>

Appeal, No. 234, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1905, No. 2,020, for defendant non obstante veredicto in case of Katie E. Tolan v. Philadelphia. Trespass to recover damages for personal injuries. Before Brégy, J. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for defendant non obstante veredicto.

Appeal, No. 109, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 4,244, on verdict for plaintiff in case of Catharine Mc-Devitt, by her next friend and mother Laura Brady, v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Barratt, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $925. Defendant appealed.

Appeal, No. 114, Oct. T., 1907, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 735, making absolute rule for judgment for want of a sufficient-affidavit of defense in case of James Tyson v. Rudolph R. Baizley. Appeal from magistrate. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case. '' Error assigned was the order of the court. cited :• Sherman’s Est., 6 Pa.

Appeal, No. 154, Oct. T., 1907, by plaintiff, from judgment of C. P. Franklin Co., April T., 1904, No. 54, for defendant non obstante veredicto in case of Frank T. Smith, Executor of the last will and testament of John Smith, deceased, v. Landis J. Smith. Assumpsit on a judgment note under seal not in possession of the plaintiff. Before Endlich, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,400.96.

Appeal, No. 183, Oct. T., 1907, by Isaac Lesher, from decree of C. P. Franklin Co., sustaining and overruling certain exceptions to the auditor's report in the matter of the Assigned Estate of Samuel F. Peckham. .Exceptions to report of J. D. Rice, Esq., auditor. The facts relating to the claim of Isaac Lesher are stated in the opinion of the Superior Court.

<p>Landlord and tenant — Surrender of premises — Evidence—Question for jury.</p> <p>In an action by the owner of an apartment house to recover three months’ rental for an apartment after the defendant had vacated it, it appeared that the plaintiff had executed a yearly lease of the apartment, but that the defendant had not executed it. The defendant claimed that he was in the apartment under an oral lease from month to month, and that he had not agreed to sign a yearly lease. This was denied by the plaintiff. There was evidence that at the time defendant vacated the apartment the defendant’s wife gave the key to the clerk who accepted it without objection, and bade her a friendly farewell. Held, that the question whether the plaintiff intended to accept a surrender of the apartment, was for the jury, and that a verdict and judgment for defendant should be sustained.</p>

Appeal, No. 127, Oct. ,T-, 1907, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1903, No. 180, making absolute rule for permanent alimony in case of William Parker v. Mary Parker. Rule for permanent alimony. The opinion of the Superior Court states the facts.

Appeal, No. 132, Oct. T., 1907, by-defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 1,135, on verdict for plaintiff in case of David H. Rehder, in' his own right, and Wanda Rehder, his wife in her own right, v. Henry Muller. Trespass to recover damages for personal injuries. Before Willson, P. J. The facts appear by the opinion of the Superior Court. Verdict and judgment for David H. Rehder for $500 and for Wanda Rehder, $500. Defendant appealed.

Appeal, No. 245, Oct. T., 1907, by E. Lawrence King and Alexander King, Jr., from decree of O. C. Bedford Co., dismissing exceptions to auditor’s report in Estate of Edward F. Kerr, deceased. Exceptions to report of Alvin L. Little, Esq., auditor. The opinion of the Superior Court states the case.

Appeal, No. 536, Oct. T., 1907, by plaintiff, from order of C. P. Huntingdon Co., May T., 1903, No. 80, making absolute rule to open judgment in case of W. H. Boggs v. T. R. Walton and L. L. Walton. Rule to open judgment. Before Woods, P. J. The opinion of the Superior Court states the case.

Appeal, No. 54, Oct. T., 1907, by plaintiffs, from judgment of C. P. Centre Co., April T., 1906, No. 199, for defendant non obstante veredicto in case of F. C. Croyle and S. G. Stull, trading as Croyle & Stull, v. C. H. Guelich. Assumpsit on an oral acceptance of a draft. Before Orvis, P. J. The facts appear by the opinion of the Superior Court.

Appeal, No. 85, Oct. T., 1907, by .defendant, from decree of O. P. Clearfield Co., May 'T., 1907, No. 71, on petition for grade crossing in case of Westover Borough v. Pennsylvania Railroad Company. Petition for grade crossing. Before A. O. Smith, P. J. The opinion of the Superior Court states the case. ' Error assigned was decree allowing the crossing.

Appeal, No. 94, Oct. T., 1907, by defendant, from judgment of C. P. Lebanon Co., Dec. T., 1904, No. 80, on verdict for plaintiff in case óf Aaron G. Bomgardner, Executor of the last will and testament of Julian Blatt, deceased, v. Frank W. Blatt. Assumpsit to recover an overpayment by an executor. Before Ehrgood, P. J. The facts aré stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $182.50. Defendant appealed.

Appeal, No. 165, Oct. T., 1907, by defendants, from order of C. P. Lebanon Co., June T., 1907, awarding mandamus in case of Commonwealth ex rel. Edwin L. Kreider v. John B. Light, William Gassert and Samuel Royer, County Commissioners. . Petition for mandamus. The opinion of the Superior Court states the case.

Appeal, No. 175, Oct. T., 1907, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1907, No. 15, on verdict for plaintiff in case of Amanda Alloway v. The General Accident Insurance Company. Assumpsit on a policy of accident insurance. Before Woods, P. J. At the trial the jury returned a verdict for plaintiff for $504.20 subject to point of law reserved.

Appeal, No. 13, Oct. T., 1907, by • Supervisors of West Lampeter Township, from order of Q. S. Lancaster Co., confirming report of viewers. Petition to have final order of confirmation opened. The following exceptions, inter alia, were filed: 1. Because two of the viewers in the above case were petitioners for the road and were, therefore, disqualified as viewers, and the court had no jurisdiction to confirm their report. 2.

Appeal, No. 18, Oct. T., 1907, by defendant, from judgment of O. P. Clearfield Co., May T., 1906, No. 383, on verdict for plaintiff in case of Sol Cohn v. J. C. Levinson. Assumpsit for goods sold and delivered.

Appeal, No. 112, Oct. T., 1907, by defendant, from judgment of C. P. Lebanon Co.,' Sept. T., 1904, No. 122, on verdict for plaintiff in case of Emma Shaffer, wife of Horace N. Shaffer, v. Edward- R. Coleman. ■Trespass to recover damages for personal injuries. Before Ehrgood, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 178, Oct. T., 1907, by John Capero, from judgment of 0. & T. McKean Co., Feb. Term, 1907, No. 1, on verdict of guilty in case of Commonwealth v. John Capero. Indictment for felonious assault. Before Bouton, P. J. At the trial the court permitted the seven year old girl on whom it was alleged the assault had been committed to make a statement to the jury not under oath. [2] The court refused to give binding instructions in favor of the defendant.

Appeal, No. 253, Oct. T., 1906, by-defendants, from order of C. P. Berks Co., March T., 1904, No. 43, discharging rule to impose costs on plaintiff in case of Alexander Heckman v. J. E. Schmeck and William H. Riegel, executor of Elias Riegel, deceased. Rule to impose costs on plaintiff. The facts are stated in the opinion of the Superior Court.

Appeal, No. 254, Oct. T., 1906, by defendant, from order of C. P. Berks Co., Feb. T., 1906, No. 68, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Cyrus D. Althouse, executor of the last will of Mary Roth, deceased, v. Jacob L. Roth. Assumpsit on a policy of life insurance. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 17, Oct. T., 1907, by defendant, from judgment of C. P. Berks Co., Nov. T., 1905, No. 34, on verdict for plaintiff in case of Daniel Distasio v. United Traction Co. Trespass to recover damages for death of a boy four years old. Before Endlich, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $968.50. Defendant appealed. Error assigned among others was in refusing binding instructions for defendant.

Appeal, No. 2, March T., 1908, by defendants, from judgment of C. P. Cumberland Co., Sept. T., 1906, No. 197, sustaining demurrer to answer to petition for mandamus in case of Commonwealth ex rel. District Attorney v. J. Van Bowman .et al. Demurrer to answer to petition for mandamus. The opinion of the Superior Court states the case.

Appeal, No. 180, Oct. T., 1907, by plaintiff, from order of Q. S. Bedford Co., April T., 1907, No. 16, quashing indictment in the case of Commonwealth v. The Huntingdon and Broad Top Mountain Railroad and Coal Company. Indictment for obstructing a public road and for failing to rebuild a public road. Before Woods, P. J. The facts are stated in the opinion of the Superior Court.

<p>Mortgage — Assignment—Warranty—Principal and agent — Estoppel.</p> <p>Where a mortgagee assigns a mortgage that had already been paid, to another, he becomes liable to the assignee for the amount of the mortgage on the legal principle that the vendor of a chattel impliedly warrants a title to it, and that it is in effect the thing it purports to be.</p> <p>Where the mortgagee delivers to another an assignment of the mortgage in blank together with the mortgage and the bond accompanying it, he constitutes such person his agent to fill in the name of the assignee in the assignment, and the assignment is just as effective to bind the assignor as if he had written into it with his own hands the name of the assignee and made personal delivery of the paper.</p> <p>The words “without recourse to the assignors” embraced in an assignment of a mortgage have no fixed legal significance. What the parties intended by the use of the words is to be determined by the jury from the consideration of all the circumstances surrounding the transaction.</p> <p>Where a mortgagee delivers to an agent an assignment of a mortgage in blank, together with the mortgage and bond, and it appears that such agent had already received payment of the mortgage from the mortgagor without the mortgagee’s knowledge, the assignee whose name is subsequently inserted in the assignment by the agent, may maintain an action against the mortgagee for the amount of the mortgage, and in such action the record of a judgment on a scire facias issued by the assignee against the mortgagor, relieving the latter from liability, is conclusive upon the mortgagee if the jury finds that the mortgagee was notified by the assignee to participate in the scire facias proceedings, and that he actually did participate and direct the course of the litigation.</p>

<p>Judgment — Satisfaction—Discretion of court — Certiorari.</p> <p>An appeal from an order of court refusing to strike off the satisfaction of a judgment, amounts to nothing more than a common writ of certiorari, and must be disposed of as such. The matter is within the discretion of the court below, and such discretion will not be reversed by the appellate court in the absence of manifest error.</p>

Appeal, No. 140, Oct. T., 1907, by Lydia A. Barley et ah, from decree of O. C. Lancaster Co., June T., 1906, No. 41, dismissing appeal from order of the Register of Wills, refusing to grant letters of administration d. b. n. in Estate of Hetty Good, deceased. Petition for appeal from register of wills. The opinion of the Superior Court states the case.

Appeal, No. 166, Oct. T., 1907, by the First National Bank of Honeybrook, from decree of O. C. Berks Co., May T., 1907, No. 22, dismissing exceptions to adjudication in Estate of Samuel Deichley, deceased. Exceptions to adjudication. Before Bland, P. J. The fact appears by the opinion of the Superior Coúrt. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 172, Oct. T., 1907, by plaintiff, from decree of O. C. Lancaster Có., Oct. T., 1905, No. 58, dismissing exceptions to adjudication in estate of Mel-choir Fry, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 162, Oct. T.,- 1907, by defendants, from order of C. P. Lancaster Co., Feb. T., 1907, No. 24, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Conrad Bittner et al. v. George Bangert et al. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of'the Superior Court. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Auditor — Finding of facts — Review—Decedents’ estates.</p> <p>A finding by an auditor that a person claiming against the estate of a decedent was in fact not a creditor, if based on sufficient evidence and confirmed by the orphans’ court, will not be disturbed by the appellate court in the absence of manifest error.</p>

Appeal, No. 6, March T., 1908, by defendant, from judgment of Q. S. Lycoming Co., March T., 1907, No. 10, on verdict of guilty in case of Commonwealth v. Augustine W. King. Indictment for embezzlement. Before Hart, P. J. The opinion of the Superior Court states the case. Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

<p>Gift — Gift of land — Parent and child — Parol gift — Evidence.</p> <p>There is no marked distinction between the evidence required to establish a parol sale of land from a parent to a child, and that required to establish a parol gift from a parent to a child.</p> <p>As between such persons, the evidence of a gift or sale must be direct, positive, express and unambiguous, and its terms must be clearly defined, and all' the acts necessary to its validity must have special reference to it and nothing else. If the gift is in parol, it must be an unqualified parol gift, and there must be the taking and maintaining of exclusive possession thereunder, and the making of valuable improvements to the real estate.</p> <p>Ejectment — Verdict—Informal verdict — Practice, C. P.</p> <p>A verdict in ejectment, dated, taken in open court, and “for plaintiff, binding instructions,” although informal, is sufficient to support a judgment.</p>

Appeal, No. 196, Oct. T., 1907, by defendant, from judgment of C. P. Berks Co., Dec. T., 1906, No. 44, on verdict for plaintiff in case of George J. Gross for the use of 'Sidney T. Repplier v. Adams Express Company. Trespass to recover damages for injuries to a package of stained glass. Before Endlich, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $195. Defendant appealed.

<p>Appeal, No. 108, April T., 1908, by defendant, from judgment of Q. S. Washington Co., August T., 1907, No. 231, on verdict of guilty in case of Commonwealth v. Baltimore and Ohio R. R. Co.</p> <p>Indictment for obstructing a highway. Before Taylor, J.</p> <p>'The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) in refusing to quash the indictment; (2) in refusing to arrest the judgment; and (3) in passing judgment of sentence upon the verdict.</p> <p>—The indictment did not charge a crime under the law: Penna. R. R. Co.’s Case, 213 Pa. 373.</p> <p>The construction and maintenance of the railroad tracks' across the public highway and the running of the trains thereon, under the power conferred in the acts of assembly, is not a nuisance: Danville, etc., R. R. Co. v. Com., 73 Pa. 29; Mercer v. R. R. Co., 36 Pa. 99; Struthers v. Ry. Co., 87 Pa. 282; Joyce on Nuisances, 425.</p> <p>It is not sufficient to charge generally that defendant committed a certain offense, nor will the use of the word “unlawfully” supply the omission of material matter in the description of the offense: 22 Cyc. p. 326; Clark’s Criminal Procedure, 156; Lamberton v. State, 11 Ohio, 282; United States v. Cruikshank, 92U.S.542.</p> <p>Our position is that this indictment is so general in its terms that it does not state any offense which will enable the court to pronounce a sentence on the verdict: Seifried v. Com., 101 Pa. 200; Sherban v. Com., 8 Watts, 212; Com. v. Moore, 99 Pa. 570; Com. v. Gallagher, 9 Pa. Superior Ct. 100.</p> <p>— While it is true that the defendant company is authorized to construct and maintain its road over and across pub.'ic highways and to pass its trains over the same, it is equally true that it cannot do so to the nuisance of the public: Penna. R. R. Co.’s Case, 213 Pa. 373.</p> <p>Obstructing a public highway so as to incommode public travel is an indictable offense at common law: State v. Yarrell, 12 Ired. 130; State v. Morris and Essex R. R. Co., 3 Zab. 360; Rex v. Russell, 6 East, 427; People v. Cunningham, 1 Denio, 524; Rex v. Jones, 3 Camp. 230; Bush v. Steinman, 1 Bos. & Pul. 404; Com. v. Milliman, 13 S. & R. 403.</p> <p>It is not necessary that the acts constituting the offense ' be particularly described with all their circumstances, if it can be distinctly defined without this, and much of the particularity of pleadings comes from an abundant caution rather than from the requirements of the law: Sherban v. Commonwealth, 8 Watts, 212; Com. v. The Commercial Bank, 28 Pa. 391; Election Cases, 65 Pa. 20; Com. v. Keenan, 67 Pa. 203; Com. v. Johnston, 19 Pa. Superior Ct. 241; Com. v. White, 24 Pa. Superior Ct. 178; Brown v. Com., 78 Pa. 122.</p>

Appeal, No. 97, Oct. T., 1907, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket No. 4, page 159, dismissing exceptions to auditor’s report in case of Carrie D. Whiteside and Abbie E. Reynolds >v. William C. Whiteside. Exceptions to report of M. G. Schaeffer, Esq., auditor. The opinion of the Superior Court states the case.

<p>Appeal, No. 36, Oct. T., 1907, by the Chester Steel Casting Co., from order of C. P. Delaware Co., striking off appeal of Chester Steel Casting Company, in the matter of a Sewer on Seventh Street from Tillman Street to Lloyd Street in the City of Chester.</p> <p>Appeal from report of jury of view.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order striking off appeal.</p>

Appeal, No. 37, Oct. T., 1906, by plaintiff, from order of C. P. Bucks Co., Feb. T., 1905, No. 6, entering judgment for defendant non obstante veredicto in-case of Henry Keller v. Philadelphia & Reading Railway Co. Trespass to recover damages for personal injuries and for the loss of a horse. Before Stout, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,130.

Appeal, No. 57, Oct. T., 1907, by plaintiffs, from order of C. P. Bradford Co., Sept. T., 1903, No. 528, refusing to take off nonsuit in case of Fannie Hornet et al. Executors and Devisees of J. A. Hornet, deceased, v. Grace Singer et al. Ejectment for land in Asylum township. Before Fanning, P'- J‘ The facts arc stated in the opinion of the Superior Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

Appeal, No. 198, Oct. T., 1907, by-plaintiff, from decree of C. P. Bradford Co., May T., 1907, No. 2, dismissing bill in equity in case of J. L. Elsbree v. Ed. F. Keller et al., Supervisors. Bill in equity for an injunction. Fanning, P. J., filed the following opinion. This case came on to be heard July 24, 1907, at which time arguments were heard and later additional briefs submitted. The facts briefly stated are as follows: 1.

Appeal, No. 62, Oct. T., 1907, by plaintiff, from order of C. P. Schuylkill Co., Jan. T., 1903, No. 118, dissolving attachment in case of the Sailor Planing Mill & Lumber Co. v. Horace M.'Moyer. Rule to dissolve attachment. Before Marr, J. The opinion of the Superior Court states the case. Errors,assigned were as follows: 1.

<p>Road, law — Township of the first class — Change of grade — Damages Act of April 28,1899, P. L. 104.</p> <p>A township of the first class is not liable for damages to an abutting property occasioned by the change of grade of an existing highway within the limits of the township.</p>

Appeal, No. 93, Oct. T., 1907, by defendant, from order of C. P. Lehigh Co., Jan. T., 1906, No. 171, discharging rule to open judgment in case of Mary A. Geiser v. Levi H. Kleckner. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was the order of the court discharging rule to open judgment.

<p>Appeal, No. 133, Oct. T., 1907, by plaintiff, from decree of C. P. Northampton Co., Nov. T., 1906, No. 2, dismissing bill in equity in case of Milton A. Hughes v. W. B. Clark.</p> <p>Bill in equity for an injunction.</p> <p>Scott, P. J., filed the following opinion:</p> <p>The material facts I have specifically found in answer to requests, but some brief statement in narrative form will be advisable here. The defendant, above named, sued the plaintiff by the issue of two separate writs of summons on June 1, 1905, before Henry Krauskopf, a’justice of the peace, who died before this bill was filed. One action was in debt; the other was trover and conversion and conversion for detention of a horse. At the return day both parties met before the justice, and his docket, produced in court, shows that judgment was publicly entered against the defendant there in the two cases. No appeal was taken. The transcript of the judgment in debt was subsequently filed in the prothonotary’s office, and a writ of fi. fa. issued from the common pleas, No. 11; November Term, 1906, under which levy was made upon the property of that defendant. The' present complaint, upon which a preliminary injunction was awarded, and then continued until final hearing, is intended to restrain the collection of it indefinitely. The case in trover and conversion was settled before the parties departed from the office of the justice — by the defendant there undertaking to return that day the horse to the plaintiff, which he did. The latter (this defendant) paid the costs of that suit.</p> <p>It is the main contention of the plaintiff to this bill, that both suits were then settlecl; that judgment was entered subsequently, by the procurement of the present defendant, of which action he was then, and for a long time afterwards, ignorant, and so deprived of his right to appeal. I cannot find that this is sustained by the proof. There is testimony from two witnesses which, upon first consideration of it, apparently supports the plaintiff, but upon closer examination is not inconsistent with that of defendant here. One of them did not remain all the time, neither did the constable; the other did not hear all the- conversation. It is certain there were negotiations for some kind of settlement, but this is admitted; it is asserted by the defendant that these related altogether to the case of trover and conversion. The horse which was the subject of that suit was returned the same afternoon, and the costs paid as stipulated. Now it is plain from a few observations, that this complainant is mistaken. He says there was but one summons, and one suit (Transcript, pp. 2, 9, 12), but the constable who served the writs, and the record itself contradict this allegation. The defendant then had a counterclaim of set-off against the demand in debt, for payment of most of which the plaintiff produced receipts. It is, however, asserted by him that for the return of the horse, in settlement of the entire dispute, he was to have immediate payment of $165 from the plaintiff; he did not receive it then, and never afterwards to the time of filing his bill in October, 1906, made any request for this money. This is so improbable that it cannot be accepted as consistent with these alleged terms of settlement. To which must be added the fact that he was notified in January following, he must pay this judgment and that written demand was also sent by defendant’s counsel, April 10, 1906 (Ex. No. 3). He took no steps to dispute it, until after execution was issued in October. The plaintiff avers it was not then entered while the parties were present; the defendant says it, was, in which he is supported by the presumption that the justice’s docket speaks correctly; and there is no other direct evidence. The right to enjoin in equity the enforcement of unjust judgments, when the proven facts justify it, is clear enough. But no such case is presented here. Assuming the circumstances attending the entry of it existed, as the plaintiff now maintains, his right of appeal was not lost, if application were promptly made after knowledge was acquired: Mcllhaney et al. v. Holland, 111 Pa. 634. Neither was the remedy by certiorari gone: Laeock v. White, 19 Pa. 495. When the merits of the original cause of action may yet be the subject of review, or the right has been lost by laches, a court of equity will not entertain jurisdiction to enjoin execution on the judgment.</p> <p>Now, May 13, 1907, this cause came on to be heard, and was argued by counsel; after consideration thereof, it is adjudged and decreed that plaintiff’s bill be dismissed with costs.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 24, Oct. T., 1907, by George O. Rutt and Hettie Rutt, Administrators of the Estate of David Rutt, deceased, and George 0. Rutt, from decree of O. C. Lancaster Co., Oct. T., 1905, No. 6, dismissing exceptions to adjudication in Estate of Henry Rutt, deceased.</p> <p>Exceptions to adjudication.</p> <p>Smith, P. J., stated the facts to be as follows:</p> <p>The essential parts of the decedent’s will are as follows:</p> <p>“First. Saving excepting and reserving and subject and liable to as herein after mentioned, I give devise and bequeath unto my present wife Elizabeth (her Family name Zimmerman or Carpenter) all and singular the whole of my Personal and Mixed Estate of what kind and nature whatsoever.</p> <p>“Section or Item two. I give devise and bequeath unto my wife Elizabeth during her natural life the possession, occupancy, management, control, issue, growth, products, advantages and profits of my messuage and tract of about Twenty-two acres, more or less, of land on which I now live in said Township with all the buildings and improvements thereon and the appurtenances thereunto belonging as I now hold and am the owner thereof. Adjoining the Blue Ball and Churchtown Road late Turnpike road and adjoining the Downingtown, Ephrata and Harrisburg turnpike Road and adjoining lands of my Nephew David Rutt and lands of John S. Wallace and of T. W. Wanner and of Henry Yundt and of Henry Lewis. . . .</p> <p>“ 4th. I give and bequeath unto my said wife Elizabeth the right power and authority if she survives me, by her last will and testament or any other writing under her hand and seal, legally executed, to give, bequeath, grant, bargain, sell, bestow,1 or otherwise dispose of as she may think proper the sum of Two Thousand dollars ($2000) to such person or persons as she in her own discretion may think proper and in case of default of her failing in her lifetime to make such bequest grant bargain sell or other disposition of the said sum of Two Thousand dollars or any part thereof in her lifetime then in such case, the said sum of Two Thousand dollars or the part thereof not so as aforesaid disposed of by my wife shall desent to and I give and bequeath the same unto her heirs and legal representatives in the shares and portions and according to the intestate laws of this State in operation or effect at her death as if she had died in possession thereof intestate and unmarried.</p> <p>“ 5th. My said wife Elizabeth shall have hold and be entitled • to the devises, legacies and bequests herein before made to her under and subject to, that she shall pay, all my debts funeral expenses and settlement of my Estate, and that she • shall keep and maintain all the buildings fences and improvements upon the said messuage and tract of land on which I now live in constant good order and repair and cause the land to be so cultivated as not to deteriorate or get poorer in production qualities, and my Executors and the survivor shall have and I hereby give them and him authority and control over the said messuage and premises on which I now live (bequeathed to the use of my wife as aforesaid) and to the incomes issues rents and profits thereof as much as may be necessary to carry out this direction.</p> <p>“6th. I give devise and bequeath my said lands and Real Estate and all the lands and Real Estate of which I may die seized and owner of unto my Nephews Henry H. Rutt and David Rutt Sons of my brother George Rutt, deceased, one-fourth part thereof, unto Mary Kurtz, Elizabeth Kurtz, and John Kurtz children of my Nephew John Kurtz, deceased, who was a son of my Sister Elizabeth Kurtz, deceased, and widow of Samuel Kurtz, shall have one-fourth part thereof, unto Mary Rutt (single woman, one-fourth part thereof, unto Nancy widow of William Lichty one-fourth part thereof, as tenants in common to his and their respective heirs and assigns under and subject nevertheless to the rights of occupancy and possession and the Rents Issues and profits thereof unto my wife during her life as hereinbefore devised and bequeathed to her and subject and liable also to the liens legacies and bequests and payments to be made therefrom and thereout as herein-before and hereinafter made. ...</p> <p>“8th. I give and devise unto the said Lizzie A. Wanner, if she should be living at the time of the death of my said wife the sum of Five Hundred dollars to be paid to her in one year after my wife’s death and if the said Lizzie A. Wanner should be dead at the time of the death of my wife, then to be paid the said legacy unto her heirs and assigns.”</p> <p>Exceptions have been filed to the awards of $2,000 to the executor of the will of Elizabeth Eby, who had been Elizabeth Rutt, the testator’s widow, and $500 to Lizzie A. Wanner. “The testator’s intentions are not involved or obscure. They have been clearly expressed. In direct and comprehensive language he gave his whole personal and mixed estate to his wife, subject to the payment of “all my debts funeral expenses and settlement of my Estate.” He died more than thirty years ago and his debts and the expenses consequent upon his funeral and the settlement of his estate have long since been paid. Excepting the real estate this bequest exhausted his estate. All had been given to his wife — the first and natural object of his bounty. The burden of the exceptants’ argument was that the personal estate is the primary fund out of which to pay legacies. Of course it is. No one pretends to dispute this general proposition. But a testator may direct otherwise if he chooses, and this one did. “The only legacy to take effect immediately after his death was not only paid out of, but was the personal estate.” Had the testator said or done nothing more than bequeath the $500 and give his widow power to bequeath $2,000, the irresistible implication would have been that he intended these sums to be charged on the real estate. There was nothing else out of which they could be paid, but he left nothing to be implied. I'n direct and positive words he charged the real estate with these legacies. After devising to the remainder-men, he says:</p> <p>“ Under and subject nevertheless to the rights of occupancy and possession and the Rents Issues and profits thereof unto my wife during her life as hereinbefore devised and bequeathed to her and subject and liable also to the liens legacies and bequests and payments to be made therefrom and thereout as hereinbefore and hereinafter made.”</p> <p>The liens, legacies, bequests and payments to be made therefrom and thereout — from and out of the real estate— are these for $2,000 and $500. There are no others. The one for $2,000 had been “hereinbefore” made and the one for $500 was “hereinafter made.” There is no uncertainty as to his meaning or the meaning of his words.</p> <p>Exceptions are dismissed and the adjudication is confirmed absolutely.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p> <p>— The charge on the lands in the will was merely an additional security for the payment of a legacy to the widow or her heirs or legatees, in case the personal estate was insufficient: Smith v. Davis, 1 Grant’s Cases, 158; Muhlenberg’s App., 103 Pa. 587; Keeler v. Wood, 30 Vt. 242; Dewitt v. Yates, 10 Johnson’s Rep. (N. Y.) 156; Kendig v. Landis, 135 Pa. 612; Breden v. Gilliland, 67 Pa. 34; Eavenson’s App., 84 Pa. 172; Riegelman’s Est., 174 Pa. 476; Mann’s App., 14 Atl. Repr. 270; Walker v. Hardwick, 1 Mylne & Keene, 396.</p> <p>— The legacies were charged on the land: Clery’s App., 35 Pa. 54; Hershey’s Est., 21 Pa. Superior Ct. 651; Swuope’s App., 27 Pa. 58; Tower’s Appropriation, 9 Watts & Sergeant, 103.</p> <p>An absolute gift will not be cut down or diminished except by clear language, showing unequivocally an intention to cut down the quantum of the estate: Snyder v. Baer, 114 Pa. 278; Levy’s Est., 153 Pa. 174; Good v. Fichthorn, 144 Pa. 287; Gillmer v. Daix, 141 Pa. 505; Coles v. Ayres, 156 Pa. 197; Schuldt v. Herbine, 3 Pa. Superior Ct. 65; Yost v. Ins. Co., 179 Pa. 381; Sharpless’s Est., 209 Pa. 409.</p> <p>And the effect of the exception or reducing clause will not be extended beyond the clear intent of its language: Sharpless’s Est., 209 Pa. 409; Hiestand v. Meyer, 150 Pa. 501; Good v. Fichthorn, 144 Pa. 287.</p>

<p>Road law — Diversion of water from road — Public road — Supervisors— Discretion.</p> <p>Where supervisors open a drain along the side of a public road, and waters which naturally flowed from the road on to the lands of an adjoining owner, are carried off by the drain, and this condition of things exists for many years, a subsequent board of supervisors is not precluded thereby from closing up the drain, and again diverting the water on to the neighboring land, if they do so in the exercise of a proper discretion. In such a case the neighboring owner never acquired a right to use the road as a conduit to carry the water from his premises.</p>

<p>Appeal, No. 19, Oct. T., 1907, by defendant, from decree of C. P. Chester Co., Equity Docket, C. P. 34, No. 457, on a bill in equity in case of Spring City Borough v. Montgomery and Chester Electric Railway Company.</p> <p>Bill in equity for an injunction to compel the completion of a street railway. Before Hemphill, P. J.</p> <p>Hemphill, J., found the facts to be as follows:</p> <p>The plaintiff seeks to enjoin the defendant from further operating its railway within the borough limits, because of its failure to complete its road within the time stipulated in an ordinance approved January 9, 1899, and accepted in writing by defendant company on April 25,1899.</p> <p>FINDINGS OF FACTS.</p> <p>The plaintiff borough was duly incorporated under the acts of assembly and by decree of the court of quarter sessions of Chester county, made August 12, 1867, under the name of the borough of Springville, which, by decree of the same court, made December 17,1872, was changed to the borough of Spring City.</p> <p>The defendant company was duly incorporated under an act of assembly, May 14, 1889, entitled, “An Act to provide for the incorporation and government of street railway companies in this commonwealth,” and its supplements.</p> <p>In compliance with the requirements of the constitution and laws of this commonwealth the defendant sought permission of the plaintiff to construct and operate its road within the limits of said borough, which was granted by an ordinance approved January 9,1899, and duly accepted by said company.</p> <p>The eleventh section of said ordinance provided as follows: “The franchises and privileges hereby granted shall be exercised and the construction of said railway shall be fully completed and in full operations and open for the accommodation of the public, within one year from the approval of this ordinance. That provisions of this ordinance shall be null and void, unless said company, within thirty (30) days after the approval of the same, shall give to the Borough Treasurer a bond in the sum of two thousand five hundred (2,500.00) dollars, to be approved by the borough Solicitor, the condition of said bond to be that it shall complete and fully operate its road within the borough limits in one (1) year after the passage and approval of this ordinance. On failure to complete and fully operate said road within the time hereinbefore specified, all the franchises and privileges hereby granted shall be null and void and the amount of said bond, or as much thereof as may be necessary, shall be used to tear up the track on said streets and to put the same in proper repair and the balance of said bond shall be the property of the Borough.”</p> <p>In compliance with said ordinance said company on February 2, 1899, duly executed its bond for $2,500 with the Real Estate Trust Company as surety and filed the same with plaintiff, and later commenced the construction of its road within said borough.</p> <p>As originally planned and chartered, this road was to run from Phcenixville, Chester county, to Pottstown, Montgomery county, but upon the request of the defendant company the town council of the borough of Spring City on June 5) 1899, consented to the abandonment of that part of the road extending from Pottstown to the south bank of the Schuylkill river.</p> <p>That part of the route, from the south side of the Schuylkill river on Bridge street to the railroad siding of the Schuylkill division of the Pennsylvania railroad on Main street in said borough, has never been completed or operated by the defendant company; nor has it ever been released or relieved from the completion and operation of the same by the council of said borough. There were some negotiations between the parties looking to an agreement by which the company should be relieved from the construction and operation of its road over the route last described upon its paving in lieu thereof certain streets of the borough, but it was never consummated.</p> <p>CONCLUSIONS OF LAW.</p> <p>Under the facts above found the question presented is:</p> <p>Is the plaintiff entitled to an injunction restraining the defendant from operating any portion of its road within the limits of the borough by reason of its failure to comply with all the requirements of sec. 11 of the ordinance of January 9,1899?</p> <p>It has been well settled by numerous decisions in this state that where a municipality grants the use of its streets to a street railway company upon certain expressed conditions, that they must be complied with or upon failure to comply the company may be restrained from the exercise and enjoyment of the franchise granted.</p> <p>And it has been held that though the real purpose of a bill of injunction be not to enforce the conditions of the contract, though so alleged, it will not relieve the company from compliance with the conditions under which it accepted and obtained its franchise: Conshohocken Borough v. Conshohocken Railway Company, 206 Pa. 75.</p> <p>This case is directly in point and in our opinion rules the one under consideration; and the citation of additional authorities is therefore unnecessary.</p> <p>Following the precedent established in the case cited we make this order:</p> <p>And now, to wit: September 17, 1906, the bill filed in this case will be dismissed if the Montgomery and Chester Electric Railway Company shall within sixty days from the filing of this opinion and order complete the construction and begin the operation of its road over the route described in the ordinance of January 9,1899, between the south bank of the Schuylkill river at Bridge street and the railroad siding of the Schuylkill division of the Pennsylvania Railroad on Main street in the borough of Spring City; otherwise an injunction will be awarded as prayed for in said bill.</p> <p>Error assigned was the decree of the court.</p> <p>Impossibility of performance is a bar: Allegheny City v. Ry. Co., 159 Pa. 411; Keystone State Teh, etc., Co. v. Ridley Park Boro., 28 Pa. Superior Ct. 635; Millcreek Twp. v. Erie St. Ry. Co., 216 Pa. 132.</p> <p>Plaintiff is estopped by its laches and acquiescence: Duffield v. Hue, 129 Pa. 94; Com. v. Turnpike Co., 153 Pa. 47; Becker v. Ry. Co., 188 Pa. 484; Wenger v. Rohrer, 3 Pa. Superior Ct. 596; Com. v. Railroad Co., 23 Pa. Superior Ct. 235; Penna. R. R. Co. v. Traction Co., 25 Pa. Superior Ct. 115; Heilman v. Railway Co., 180 Pa. 627; In re Melon Street, 192 Pa. 331; Hinnershitz v. Traction Co., 199 Pa. 3; Taylor v. Railway Co., 212 Pa. 487; Bridgewater Boro. v. Traction Co., 214 Pa. 343.</p> <p>The purpose and object of the bill is to compel the railway company to pave certain streets.</p> <p>A court of equity will not interfere if the bargain is hard or unconscionable, or the terms unequal, or the complainant is seeking an undue advantage. Equity never aids in enforcing a forfeiture, especially when the contract has been substantially carried out, and its literal fulfillment prevented by uncontrollable circumstances: Oil Creek R.R. Co. v. Atl. & Great Western R. R. Co., 57 Pa. 65; Wistar’s Appeal, 80 Pa. 484; Helme v. Philadelphia Life Ins. Co., 61 Pa. 107.</p> <p>The condition in the ordinance to fully complete, and have in operation, its railway within one year was a condition precedent, and ho impossibility of performance will avoid the bar of the condition imposed: Allegheny v. Millville, etc., .St. Ry. Co., 159 Pa. 411; Minersville Borough v. Ry. Co., 205 Pa. 394; Keystone State Telephone, etc., Co. v. Ridley Park Boro., 28 Pa. Superior Ct. 635.</p> <p>The appellee is not es opped from revoking its consent in accordance with the terms of the ordinance: Jones v. Weir, 217 Pa. 321; Plymouth Twp. v. Ry. Co., 168 Pa. 181; Minersville Borough v. Ry. Co., 203 Pa. 394; Menendez v. Holt, 128 U. S. 514 (9 Sup. Ct. Repr. 143); Galway v. Ry. Co., 128 N. Y. 132 (28 N. E. Repr. 479); Hartupee v. Pittsburg, 97 Pa. 107.</p> <p>The order of the court, requiring the appellant to comply with its contract to build the road within sixty days, otherwise an injunction would issue as prayed for, was a proper and legal one: Conshohocken Borough v. Conshohocken Ry. Co., 206 Pa. 75.</p>

Appeal, No. 143, Oct. T., 1907, by plaintiff, from judgment of C. P. Delaware Co., June T., 1903, No. 273, on verdict for defendant in case of J. Bartram to the use of John B. Hannum, assignee for creditors of J. Bartram Helms, v. The Delaware County Trust, Safe Deposit & Title Insurance Company. Assumpsit for moneys had and received. Before Johnson, P. J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 5, March T., 1908, by the Union Traction Company, from order of C. P. Dauphin Co., Commonwealth Docket, 1898, No. 365, dismissing exceptions to auditor’s report in case of Commonwealth ex rel. Henry C. McCormick, Attorney General, v. Guarantors’ Finance Company of Philadelphia.</p> <p>Exceptions to report of S. J. M. McCarrell and Howard W. Page, Esqs., auditors.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 44, Jan. T., 1908, by defendant, from judgment of 0. & T. Lackawanna Co., Oct. T., 1907, No. 19, on verdict of guilty in case of Commonwealth v. Carl Howe. Indictment for. an offense against the act of May 19, 1887.

<p>Arbitration — Revocation—Seal.</p> <p>An agreement in writing under seal to arbitrate, can only be revoked by a writing under seal. The formality of the revocation must follow and conform to the formality of the submission.</p>

Appeal, No. 158, Oct. T., 1907, by defendant, from judgment of C. P. Delaware Co., June T., 1907, No. 80, on case stated in suit of John McMunigal v. Harry G. Ingram. Case stated to determine liability on a contract. The case stated was as follows: 1.

Appeal, No. 190, Oct. T., 1907, by plaintiff, from decree of C. P. Montgomery Co., March T., 1907, No. 2, dismissing bill in equity in case of Woodroffe v. Solomon S. Hagerty et al., Supervisors of Horsham Twp., and Sophia H. Greaves. Bill in equity for an injunction. Before Weand, J. The opinion of the Superior Court states the case.

Appeal, No. 215, Oct. T., 1907, by City of Philadelphia, from order of O. & T. Phila. Co., July T., 1907, No. 287, overruling demurrer to petition for allowance of fees under Act of March 22, 1907, P. L. 31, in case of Commonwealth v. Josephine Darmska. Petition for allowance of fees for professional services in a murder trial, provided by the Act of March 22,1907, P. L. 31. The city and county of Philadelphia demurred to the petition.

<p>Mechanic's lien — Subcontractor—Notice of intent to file lien.</p> <p>Where a written notice by a subcontractor to the owner, of an intention to file a mechanic’s lien has attached to it a copy of the contract between the subcontractor and the contractor, which does not in express terms refer to certain specifications under which the subcontract- , or’s work was done, the notice will not be deemed insufficient, if it appears as a fact that the specifications themselves were in the possession of the owner. Even if the notice were deemed insufficient on this account, an amendment made after trial and verdict which brought the specifications on the record, would cure the defect.</p> <p>Where, in such a case, the article supplied by the subcontractor was a patented device composed of various parts of iron, wood, etc., the subcontractor was not bound to set out in his notice an itemized statement of the different articles and materials of the device as a whole.</p> <p>The object of the notice is to inform the owner of the demand and the nature thereof, in order that he may require payment of the contractor, or in default thereof withhold the amount from the contract price. A substantial compliance is sufficient, and this is shown to exist whenever enough appears on the face of the statement to enable the owner to ascertain the amount of the claim, its date and the nature and amount of the labor or material out of which it arises. Certainty to a common intent suffices.</p> <p>Where on the trial of a scire facias sur mechanic’s lien the evidence is conflicting as to the date when the work was finished and completed, the case is for the jury.</p>

<p>Appeal, No. 80, Oct. T., 1907, by defendant, from order of C. P. Bradford Co., Feb. T., 1907, No. 82, discharging rule to show cause why execution should not be set aside in case of the First National Bank of Sayre v. F. W. G. Bartlett.</p> <p>Rule to set aside execution.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule to set aside execution.</p> <p>— We contend that if the fi. fa.' was void and the lien discharged by the adjudication in bankruptcy, then the venditioni exponas issued on March. 12 was also void, and no lien could be acquired by virtue of the venditioni exponas, unsupported by a live fi. fa.: Neil v. Colwell, 66 Pa. 216; McLaughlin v. McLaughlin, 85 Pa. 317; In re Tune, 8 Am. B. R. 285; Clarke v. Larremore, 9 Am. B. R. 476; In re Lesser, 5 Am. B. R. 326; First Nat. Bank v. Staake, 15 Am. B. R. 639</p> <p>— The bankruptcy proceedings did not nullify or destroy the lien of the execution upon the exempt property: Lockwood v. Exchange Bank, 190 U. S. 294 (23 Sup. Ct. Repr. 751); Sharp v. Woolslare, 25 Pa. Superior Ct. 251; Small v. Small, 129 Pa. 366; Brewer v. Blougher, 39 U. S. 178; Lau Ow Bew v. United States, 144 U. S. 47 (12 Sup. Ct. Repr. 517); Toof v. Martin, 80 U. S. 40; In re New England Piano Co., 9 Am. B. R. 767; Com. v. Montrose Boro., 52 Pa. 391; Moyer v. Penna. Slate Co., 71 Pa. 293; Eshleman’s Appeal, 74 Pa. 42; Loveland on Bankruptcy, 543; Lamorelle v. Mass., 30 Pa. Superior Ct. 190; In re Jackson, 8 Am. B. R. 594; McKenney v. Cheney, 118 Ga. 387 (45 S. E. Repr. 433); Bell v. Dawson Grocery Co., 120 Ga. 628 (48 S. E. Repr. 150); Robinson v. Wilson, 15 Kan. 595; Batdorff v. Focht, 44 Pa. 195; Bain v. Lyle, 68 Pa. 60; Slutter v. Kirkendall, 100 Pa. 307; Kightlinger’s Appeal, 101 Pa. 540; Reid v. Lindsey, 104 Pa. 156.</p>

Appeal, No. 105, Oct. T., 1907, by plaintiffs, from judgment of C. P. Montgomery Co., Dec. T., 1905, No. 80, for defendant non obstante veredicto in case of Joseph H. Ramsey and Dorothy Ramsay, his wife, v. Potts-town & Reading Street Railway Company. Trespass to recover damages for death of plaintiffs' son. Before Swartz, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiffs for $810.

Appeal, No. 176, Oct. T., 1907, by plaintiff, from decree of C. P. McKean Co., June T., 1907, No. 3, dismissing bill in equity in case of Ada M. Young, Administrator c. t. a. of the last will and testament of Ann Elida Taylor, deceased.

Appeal, No. 157, Oct. T., 1907, by defendant, from judgment of 0. P. Lancaster Co., JuneT., 1906, No. 6, on verdict for plaintiff in case of J. C. Brobst v. William C. Evans. Trespass to recover damages for injuries to land. Before Landis, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $50.00. Defendant appealed.

Appeal, No. 152, Oct. T., 1907, by plaintiff, from order of C. P. Chester Co., Oct. T., 1906, No. 10, entering judgment for defendant non obstante veredicto in case of William P. Thatcher v. West Chester Street Railway Company. Assumpsit for breach of a contract. Before Butler, J. The facts are stated in the opinion of the Superior Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $81.94. Plaintiff appealed.

Appeal, No. 142, Oct. T., 1907, by-defendant, from judgment of 0. P. Schuylkill Co., March T., 1906, No. 16, on verdict for plaintiff in case of Columbia Baking & Manufacturing Company v. J. H. Schissler. Assumpsit on a contract of guaranty. Before Shay, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 200, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1907, No. 3,454, discharging rule for judgment for want of a sufficient affidavit of defense in case of Henry Lemm, trading as Henry Lemm’s Fishery, v. Harry Potamkin and Max Potamkin, trading as H. Potamkin & Co. Assumpsit for price of fish alleged to have been sold and delivered.

Appeal, No. 201, Oct. T., 1907, by plaintiff, from decree of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 239, dismissing exceptions to master’s report in case of George Hedderson v. Jane Hedderson. Libel for divorce. The facts appear by the opinion of the Superior Court. Error assigned was decree dismissing exceptions to master's report. — There is no evidence whatever of any collusion between the parties.

<p>Replevin — Title to personal property — Estoppel—Appeals.</p> <p>Where, in an action of replevin the plaintiff's title is undisputed, and no question of estoppel is raised at the trial, the defendant cannot, on an appeal, raise such a question in the appellate court.</p> <p>The real owner of a chattel cannot be charged with an estoppel by a purchaser of the chattel, where it does not appear that the purchaser acted on,-or was misled by anything said or omitted to be said by the owner or his agent.</p>

Appeal, No. 65, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1905, No. 3,811, on verdict for plaintiff in case of Emma B. Guillou v. Charles S. Campbell, Mary B. Campbell, intervening. Replevin to recover a child’s bureau. Before Ralston, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff. Defendant appealed.

Appeal, No. 95, Oct. T., 1907, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1906, No. 6, for defendant on the whole record in case of Elizabeth H. Keely, Administratrix of the Estate of Jesse Roberts, deceased, v. Lena D. Jones, owner or reputed owner, and Bernard Dobbins and George F. Dobbins, trading as Dobbins Brothers, Contractors, and Lena D. Jones. Scire facias sur mechanic’s lien. Before Swartz, P. J. The opinion of the Superior Court states the case.

<p>Appeal, No. 202, Oct. T., 1907, by Samuel C. Browne and William Anderson, Jr., from judgment of C. P. No. 3, Phila. Co., Dec. T., 1902, No. 448, on verdict for plaintiffs in case of James Roscoe and Samuel Bishop, trading as Roscoe & Bishop, v. William Browne, Samuel C. Browne, Bernard S. Browne and William Anderson, Jr., copartners, late trading as The Phcenix Mills Company.</p> <p>Assumpsit on a contract.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiffs for $776.74. William Browne and Samuel C. Browne appealed.</p> <p>Error assigned was in entering judgment on the verdict against all of the defendants.</p> <p>— It is of course perfectly clear that no valid judgment can be entered against a defendant who has not been served with process and who has not voluntarily appeared: Jamie-son v. Pomeroy, 9 Pa. 230; Erdman v. Stahlnecker, 12 S. & R. 325; Herschberger v. Brown, 2 Woodward, 101.</p> <p>The mere presence of a party in court during the trial will not of itself constitute an appearance to the action: Building Society v. Holt, 184 Pa. 572; Merkee v. Rochester, 13 Hun (N. Y.), 157; Newlove v. Woodward, 9 Neb. 502; Miller's Est., 159 Pa. 562.</p> <p>Appearing to testify as a witness is not an appearance to the action: Nixon v. Downey & Wolverton, 42 Iowa, 78; Anderson v. Anderson, 55 Mo. App. 268; Scott v. Hull, 14 Ind. 136; Bank v. Rowley, 89 N. W. Repr. 765.</p> <p>A fortiori, making an affidavit in a purely collateral matter, not affecting the merits, such as an affidavit to the presence of witnesses, should not be construed to be an appearance to the action: Hendrick v. Kellogg, 3 Greene (la.), 215.</p> <p>Where counsel appears expressly for certain defendants his signature to papers in the case after that time as attorney for the defendants will be construed as limited to those defendants for whom he specifically appeared: Spangel v. Dellinger, 42 Cal. 148; Hobbs v. Duff, 43 Cal. 485.</p> <p>Where pleas are filed purporting to be filed by the defendants generally this will not be an appearance for those not served: Crump v. Bennett, 2 Litt. (Ky.) 209; Kimmel v. Kimmel, 5 S. & R. 294.</p> <p>In all the Pennsylvania cases in which it has been held that the acts of the defendants have construed a general appearance, the record itself has shown, either the entry of bail, or the filing of an affidavit of defense, plea, answer or other paper, or the making of some application, affecting the merits: MacGeorge v. Chemical Mfg. Co., 141 Pa. 575; Southern Bldg. & Loan Assn. v.Fire Ins. Co., 23'Pa. Superior Ct. 88; Jeannette Boro. v. Roehme, 197 Pa. 230; Taylor v. McCafferty, 27 Pa. Superior Ct. 122; Daley v. Iselin, 212 Pa. 279.</p> <p>If, however, it be admitted for the purposes of this argument that the defendants, William Anderson, Jr., and Samuel C. Browne, by their appearance in court and their testimony as witnesses, are to be construed as appearing and submitting themselves to the jurisdiction of the court, the case falls within the ruling in Donnelly v. Graham, 77 Pa. 274, and the judgment is bad.</p> <p>cited: Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33.</p>

Appeal, No. 207, Oct. T., 1907, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 4,539, discharging rule for judgment for want of a sufficient affidavit of defense in case of The Gingerbread Man Company v. Henry Schumacher. Assumpsit to recover the value of certain theatrical costumes. The averments of the affidavit of defense are set forth in the opinion of the Superior Court.