Volume 36 — Pennsylvania Superior Court Reports

<p>Affidavit of defense — Practice, C. P. — Contract—Sale by sample — Fraud.</p> <p>In an action to recover for goods sold and delivered, defendant filed an affidavit in which he averred that the amount of goods ordered was $120 instead of $320, as claimed; that the goods actually bought were orally ordered by sample, that the plaintiff’s agent fraudulently induced the plaintiff to sign a paper saying that it was. mere promise to receive the goods when shipped, that the paper was in fact a written order for more goods than orally ordered, that the goods sent were not according to sample, that a large quantity had never been ordered, and that the goods had been returned to the plaintiffs. Held, that the affidavit of defense was sufficient to prevent judgment.</p> <p>Pleading — Statement of claim — Sale of goods — Insufficiency of statement — Affidavit of defense — Practice, C. P.</p> <p>Where a written contract for the purchase of goods provides that payment should be made in certain installments, if notes were given within ten days from date of shipment, the seller cannot maintain a suit for the goods brought before the first installment becomes due, unless he avers in his statement some breach of the contract that would make the purchase price of goods presently payable. If the purchaser did not give the notes, that fact is essential and must be pleaded. If no breach is averred, the statement is defective, and the defendant need not file an affidavit of defense. The insufficiency of the statement may be objected to in the appellate court, although no objection was made to it in the court below.</p> <p>When the consideration of the defendant’s contract is executory, or his performance is to depend on some act to be done or forborne by the plaintiff, or some other event, the plaintiff must aver the fulfillment of such condition precedent whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or any other person, or must show some excuse for the nonperformance.</p> <p>Where the conditions of a contract for the purchase of goods show that the seller is to furnish to the purchaser a particular article free of charge, the seller in a suit for the purchase money must aver that the article was given or tendered, or that there was a good excuse for nonperformance.</p>

<p>Appeal, No. 98, Oct. T., 1907, by plaintiff, from order of C. P. Montgomery Co., June T., 1906, No. 105, reversing judgment of justice of the peace in case of Commonwealth v. J. Jay Corson et al.</p> <p>Certiorari to judgment of a justice of the peace.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Weand, J., filed the following opinion:</p> <p>Upon information of Howard A. Simpson, “Building Inspector of the Burgess and Town Council of the Borough of Norristown,” eleven separate warrants were issued against the different persons therein named, charging them with a violation of a borough ordinance entitled “An ordinance to regulate the construction of buildings within the Borough of Norristown, and to provide for inspection thereof.</p> <p>The magistrate notwithstanding the separate informations and warrants united the eleven cases in one, and tried the case as if it were on suit for a joint trespass or joint promise.</p> <p>The information charged the defendants with “constructing two dwelling houses, etc., without first submitting to the Building Inspector, etc., the plans therefor and receiving his approval and permit for the erection thereof, contrary to the provisions of the ordinance,” etc. “Said J. Jay Corson and William L. Gotwals being the owners of the ground and buildings as aforesaid, etc., said Joseph F. Evans being the contractor for the masonry of said buildings, employed by the said Corson and Gotwals” and the said other defendants “being workmen employed upon and engaged in the construction of said buildings.”</p> <p>After hearing the magistrate adjudged each defendant guilty of “having constructed certain building walls for the purpose of erecting houses, etc., without having obtained permit,” etc. and contrary to the ordinance, etc., and imposed a fine of $50.00 and costs against each defendant. In the bill of costs eleven warrants were charged for.</p> <p>The case now comes before us on certiorari and seventeen exceptions have been filed involving the jurisdiction of the magistrate, the validity of the ordinance, and the regularity of the proceedings.</p> <p>The sixth exception alleges that “the Justice had no power to proceed in the name of the Commonwealth under the ordinance.”</p> <p>We have already decided in Com. v. Weachter, 22 Montgomery, 198, that “in a prosecution for the violation of an ordinance imposing a penalty or fine for the use of the borough, the suit should be in the name of the borough, ” citing Sell v. Com., 1 Montg. County Law Repr. 177; Com. v. Clark (No. 1); 14 Lanc. Law Rev. 41; Speakman v. Speakman, 1 Pa. Dist. Rep. 119; Milton Borough v. Hoagland, 3 Pa. C. C. Rep. 283.</p> <p>The commonwealth has no interest in these proceedings. By the Act of June 4, 1897, P. L. 121, “All fines and penalties for the violation of borough ordinances shall be paid over to the borough treasurer.”</p> <p>The fifteenth exception alleges that “ although separate war^ rants are shown to have been issued for each of the defendants, yet the case was heard and tried against all of the defendants at one time, instead of being tried against each individual defendant separately.”</p> <p>The penalty imposed by the ordinance is “a fine not exceeding one hundred dollars.” The Act of April 5, 1849, P. L. 410, sec. 7, provides “In all cases of the breach of any by-laws of any city, borough, town or corporate body within this commonwealth, subjecting the offender to a penalty or fines therefor, suits for the recovery thereof maybe maintained before any Justice of the Peace or alderman in like manner as suits for the recovery of debts under the sum of one hundred dollars may now be maintained before them,” etc.</p> <p>The action, therefore, is in the nature of a civil proceeding and as' each defendant, if liable at all, was only liable for his own act, the joinder was improper. If they can thus be jointly sued for a debt it must be because they are jointly liable, but the judgment is individual.</p> <p>Under the ordinance each person who violates its provisions is individually liable because he commits a separate offense and the act of one has no connection with the act of another.</p> <p>The tenth exception alleges that the justice had no jurisdiction to convict the eight workmen as no permit was required from them. Section 2 of the ordinance provides that a building inspector shall be elected “to whom builders, contractors or owners must submit plans and specifications for construction, alterations and repairs as aforesaid, together with written application for a building permit,” etc.</p> <p>• Section 29 provides “Any person or persons, .firms or corporations, whether owner, builder, contractor, architect or workman, who shall make any alteration, construction, etc., without permit” shall be liable to a penalty. It is only the builders, contractors and owners who must submit plans, etc., to'whom the permit is to be granted. To hold the workmen liable would be to require the laborer who digs the cellar, the carpenter who drives a nail or the man who lays a brick to obtain a permit under penalty. Only one permit is required and this after the approval of the plans and specifications. The facts in evidence show that Corson & Gotwals were owners and Joseph F. Evans, the contractor, and therefore these eight workmen cannot be considered as constructing the buildings.</p> <p>We sustain the sixth, tenth and fifteenth exceptions and reverse the proceedings before the magistrate. The legality of the ordinance is also questioned, but it is not advisable in this proceeding to discuss that question inasmuch as it could not be reviewed. Having reversed the proceedings the defendants could not appeal; and if we are correct in our other findings, the judgment would not be reversed on appeal by the borough, or the point decided by the higher court.</p> <p>And now, April 12, 1907, the proceedings before the magistrate are reversed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 47, Oct. T., 1907, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 457, making absolute rule to dissolve attachment in case of R. Crosby Fairlamb et al., trading as P. H. Fairlamb Company v. Smedley Construction Company, defendant, Swarthmore College, garnishee.</p> <p>Rule to dissolve attachment.</p> <p>From the record it appeared that on October 12, 1906, a petition in bankruptcy was filed against the Smedley Construction Company, and on the same day the company was adjudicated a bankrupt. On November 27, 1906, plaintiffs brought an action against the Smedley Construction Company under the Act of June 4,1901, sec. 28, P. L. 431, and summoned Swarthmore College as garnishee. From the record of this suit it appeared that the construction company had a contract with the college to erect a certain building in Delaware county, and that the college was indebted to the construction company on account of work on the building. The trustee of the bankrupt intervened by leave of court, and took a rule to dissolve plaintiff’s attachment. This rule was made absolute, and plaintiffs thereupon appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Road law — Road master — Compensation for use of team — Supervisors— Public officers.</p> <p>A road master appointed under the provisions of the Act of April 12, 1905, P. L. 142, is not entitled to compensation for the use of his team in repairing roads in his district, where it does not appear that the supervisors had engaged the use of the team, or in any way authorized its employment, or that they even knew that it was in use.</p> <p>Practice, C. P. — Case stated — Facts stated.</p> <p>The judgment of the court on a case stated must be on facts agreed upon, and it will not go outside of the case stated by assuming that. which is not agreed to by the litigants.</p>

<p>Trespass — Unlawful cutting of timber — Boundary—Evidence—Question of fact — Question for jury.</p> <p>In an action of trespass to recover damages for the unlawful cutting of timber, where the issue turns upon one of the boundary lines of the plaintiff and defendant, and defendant’s contention that a line designated by him had been established and agreed to between himself and plaintiff’s predecessor in title, and such contention is met by evidence that no such line existed until after the death of the former owner, and that it was marked on the ground wrongfully by the defendant without the consent of the plaintiff, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.</p>

<p>Appeal, No. 3, March T., 1908, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1906, No. 199, on verdict for defendants, in case of Asher D. Upd.egraff v. F. P. Snyder and Edward Holt.</p> <p>Ejectment for land in Lewis township. Before Hart, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Divorce — Desertion—Separation—Intent.</p> <p>Desertion is an actual abandonment of matrimonial cohabitation, with intent to desert willfully and maliciously persisted in without cause for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other. The guilty intent to desert is rebutted where the separation is encouraged by the other party, or is by mutual consent.</p> <p>Mutual consent to the separation, not revoked by either party, is as fatal to an application for divorce upon the ground of desertion, as would be acts on the part of the libelant which would give the respondent legal cause to leave him, and to obtain a divorce from him.</p> <p>What may have been desertion in its inception, but has become a separation with mutual consent within two years, is not ground for divorce.</p> <p>The mutual consent that will prevent a divorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement.</p> <p>Divorce — Findings of fact — Review by the appellate .court — Evidence— Appeal.</p> <p>In reviewing the evidence brought up on an appeal from a decree refusing a divorce after trial in open court by a judge, where the evidence is in irreconcilable conflict, and the correct determination of the issues-of fact depends upon a determination of the veracity of witnesses who have given opposing testimony, the appellate court will, amongst other things, consider and give weight to the fact that the judge who saw and heard the witnesses and observed their manner of testifying had a much better opportunity than the appellate court to form a correct judgment as to their credibility.</p> <p>Desertion — Alimony—Counsel fee.</p> <p>The court in entering a decree refusing a divorce, may at the same time make absolute a rule on the libelant, the husband, to pay the respondent, the wife, reasonable alimony pendente' lite and counsel fees.</p>

<p>Deed — Reformation of deed — Mistake—Equity.</p> <p>A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued •concurrently in the minds of all parties down to the time of its execution; and, also, must be able’ to show exactly and precisely the form to which the deed ought to have been brought. To reform a contract, and then enforce it in its new shape, calls for a much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. Hence, in order to justify a decree for reformation in cases of pure mistake, it is necessary that the mistake should have been mutual.</p> <p>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 is not the subject of protection, either in equity or at law.</p> <p>■ Where an agent of a corporation prepares a deed and sends it to the officers of the company, who insert in the deed a building restriction, •;and then execute it, and the grantee accepts the deed and pays over the purchase money after he has had a full opportunity of examining ■the deed, he cannot afterwards have the building restriction stricken from the deed, on the ground that he had accepted the deed and paid the purchase money without knowledge of the insertion of the restriction.</p>

<p>Appeal, No. 23, March T., 1907, by defendant, from judgment of C. P. Lycoming Co., March T., 1906, No. 582, on verdict for plaintiffs in case of Nicholas M. Edwards and Edward Carter Edwards v. City of Williamsport.</p> <p>Trespass to recover damages for injuries to plaintiff's premises on West Third street in the city of Williamsport. Before Omerod, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

<p>Boroughs — Borough president and treasurer — Payment of borough debt— Refusal of president to sign order — Mandamus.-</p> <p>Payments of the debts of a borough lawfully incurred in the daily administration of its affairs, is purely ministerial, and ordinarily involves no executive action, but devolves upon the council and the treasurer.</p> <p>■ Where a borough council has ordered the payment of a debt due by the borough on a building contract, and the borough president refuses to sign an order for the payment, on the ground that in his judgment the contract was not properly performed, the president may be compelled by mandamus to sign the order, inasmuch as the signing of the order is a mere ministerial act, and it is not the judgment of the president, but it is that of the council which determines that the bill should be paid.</p> <p>One of the most common uses of the writ of mandamus is to enforce obedience of officers who decline performing a mere ministerial act, and where such an act is to be done, a specific duty or act enjoined, and there is no other specific remedy, performance will be compelled by mandamus.</p>

<p>Appeal, No. 17, Jan. T., 1908, by Elizabeth E. Cadman, from decree of O. C. Columbia Co., May Term, 1905, No. 21, directing distribution in Estate of Louisa Gross.’</p> <p>Petition for an order to pay over money. Before Evans, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court directing distribution to be made.</p>

<p>Justice of the peace — Appeal—Extension of time for taking appeal.</p> <p>Where a defendant appears at a hearing before a justice of the peace, offers no testimony, and leaves the office of the justice without any inquiry as to what the justice intended to do, and the justice, after the departure of the defendant, and on the same day, enters judgment against the defendant, the twenty days for taking an appeal begins to run from the date of the entry of the judgment, and not from a day ten days thereafter when the defendant first heard of the entry of the judgment. In such a case an appeal taken more than twenty days after the date of the judgment will be quashed and stricken from the record.</p>

<p>Appeal, No. 13, March T., 1908, by plaintiff, from judgment of C. P. Wyoming Co., Jan. T., 1906, No. 139, on verdict for plaintiff in case of H. F. Metcalf v. Emma M. Buck.</p> <p>Ejectment for land in Lemon township. Before Ferris, J., specially presiding.</p> <p>At the trial it appeared that Dr. E. L. Dieffenderfer, in 1882, became the owner of a tract of land bordering on the shores of Lake Carey, and that he caused this land to be laid out in lots by T. A. Miller, a surveyor. Both plaintiff and defendant claimed under deeds from Dieffenderfer. -The facts relating to the conflicting boundaries are stated in the opinion of the Superior Court.</p> <p>L. E. Stearns, a grantee of a lot from Dieffenderfer, was called by the defendant, and the following offer was made:</p> <p>Counsel for 'defendant offers to show by the witness upon the stand, and by other witnesses, that while Dr. Dieffenderfer was the owner of the land adjoining the lands designated by witness, that he pointed out to the witness the line to the owners and that some of them erected fences upon the lines so pointed out by him, among them being the line fence between lot No. 1 and lot No. 2, between lot No. 2 and lot No. 3, and between lot No. 4 and lot'No. 5, and to show by the witness that at the time he did so there were stakes and monuments upon the ground corresponding with the location so pointed out by Dr. Dieffenderfer as being the location of the line between the lots then designated.</p> <p>This for the purpose of showing that the line between the plaintiff and defendant, as indicated by the fence upon the ground, and between other lots, namely, between lots No. 4 and No. 5, is the true location between those two lots, and propose to show other monuments upon the ground indicating the division line between the lots referred to.</p> <p>This is objected to by counsel for the plaintiff:</p> <p>1. That declarations made by Dr. Dieffenderfer, as to the location of the division line between the lots conveyed, is immaterial, irrelevant and incompetent, and, further, that such declarations, if made, would be within the statute of fraud.</p> <p>2. That any testimony as to stakes on the ground is immaterial, irrelevant and incompetent, unless it be shown they were put there by the surveyor at the time the plot referred to in the deed was made, and for the purpose of locating the division line of such lots.</p> <p>The Court: I will take it as a designation by the grantor of monuments, as proposed to be shown by the witness, fixing upon the ground the lines described in the deed. It seems to me it is admissible for that purpose, and, perhaps, as an admission against interest by the predecessor in title. The objections are overruled and the evidence admitted; to which the defendant excepts and at his request an exception is noted and bill sealed. [1]</p> <p>Mrs. L. E. Stearns testified as follows:</p> <p>“ Q. Do you recollect of your husband building a fence upon the ground just north of the summer pavilion there? A. Yes, sir. Q. Do you recollect of seeing any stakes along there where that fence was built? A. Yes, sir; where they built the fence. Q. And they built the fence along where the stakes were? A. Yes, sir.”</p> <p>Counsel for plaintiff renew the same objections which were made to similar testimony when Mr. Stearns was on the witness stand.</p> <p>■ The objections to Mr. Stearns’ testimony being as follows:</p> <p>1. That declarations made by Dr. Dieffenderfer, as to the location of the division line between the lots conveyed, is immaterial, irrelevant and incompetent, and, further, that such, declaration, if made, would be within the statute of fraud.</p> <p>2. That any testimony as to stakes on the ground is immaterial, irrelevant and incompetent, unless it be shown they were put there by the surveyor at the time the plot referred to in the deed was made, and for the purpose of locating the division line of such lots.</p> <p>The Court: The objection is overruled and the evidence admitted; to which the plaintiff excepts and at his request an exception is noted and bill sealed. [2]</p> <p>The court charged in part as follows:</p> <p>[I am referring now to what I said a moment ago as to the contemporaneous construction of an instrument by the parties, and you may apply that principle in construing the act of Dr. Dieffenderfer and Mr. Stearns as to the location upon the ground of certain lot lines mentioned in the deed and in the plot of Miller.</p> <p>In that connection we also instruct you as matter of law that where the courses and distances in a deed are in conflict with monuments upon the ground, the monuments upon the ground govern. They will control the location of the land. Monuments upon the ground are stakes or stones set for corners, trees marked for corners or for line trees, and natural objects called for as corners or to identify the line; and, in general, whatever is done by the surveyor in placing upon the ground ■the results of his survey, and where there is a conflict between the monuments upon the ground and the courses and distances in the deed, what the surveyor has done upon the ground is supposed to mark the true line and control the courses and distances.</p> <p>In this connection you may, in trying to ascertain what monuments there were upon the ground, so far as this tract that was plotted by Mr. Miller is concerned, consider the testimony of Mr. Stearns, of Mrs. Stearns and of Mr. Knuppenburg, as to what was done between Dr. Dieffenderfer and Mr. Stearns and what was done pursuant to the survey as to the putting in of stakes. It is not my intention to attempt to detail all this to you as it was given by the witnesses, but briefly to refer to it.</p> <p>You will remember the testimony of Mr. and Mrs. Stearns as to Dr. Dieffenderfer pointing out the line of Mr. Stearns’ lot No. 1, including the triangle, and his testimony that the fence was built upon the line as so pointed out by Dr. Dieffenderfer, and that stakes were put there before the fence was built, and that the fence was built according to the stakes, and extended from the end of the stone wall near the pavilion on the lake shore up to Lake street, giving to Mr. Stearns the entire fifty feet of the triangle and the fifty feet rectangular lot, giving him, in other words, 100 feet, which he claims, and which is 'shown on the Miller map as the distance to be covered by that lot of ground.</p> <p>Also you may take into consideration the testimony of the same witnesses as to Dr. Dieffenderfer pointing out to Mr. Stearns the line of lot No. 2, after the purchase by him of lot No. 1, and which he afterwards bought from Dr. Dieffenderfer, adjoining Mrs. Buck’s land. You have the testimony of these witnesses as to the location of these lots by Dr. Dieffenderfer, on the ground, and as to the existence of stakes which were set there and had been there some years.</p> <p>You will remember the testimony of Mr. Knuppenburg also as to.the general staking out of that plot of lots. Also his testimony as to the location of the fences which were after-wards built upon the lines which had been staked out, and as to who did the staking out. As I recollect it, he states that Dr. Dieffenderfer and he thinks Mr. Miller, the surveyor, were present, and perhaps some other person, and that the stakes were driven where Dr. Dieffenderfer and Mr. Miller directed them to be driven.</p> <p>There is testimony also that witnesses saw stakes driven at the lot lines on the lake shore.</p> <p>Now there is other testimony given, not exactly contradicting that, but to the effect that the other surveyors did not see any stakes at all upon the land. I think Mr. Lathrop and Mr. Stone both say they did not see any stakes that bore any evidence of having been stakes placed there by the original surveyor, Mr. Miller. There were some stakes placed along Lake street, as conceded by Mr. Stone, but those were the only stakes which the plaintiff’s surveyors testified they were positive of. Against their testimony is that of Mr. Knuppenburg, Mr. and Mrs. Stearns that stakes were placed there and that the fences were afterwards built upon the line marked by those stakes, and that those fences are still in that same location.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (4) portion of charge as above, quoting it.</p>

<p>Waters — Flooding of land — Canal—Culverts—Evidence—Negligence.</p> <p>Where a lessee of the bed of an abandoned canal, constructs drains in such a way as to throw on the land of an adjoining owner, at times of heavy rain, a much greater volume of water than was usual at such times, the owner may recover from such lessees damages for the injuries to the land.</p>

Appeal, No. 30, Jan. T., 1908, by defendant, from order of C. P. Luzerne Co., Oct. T., 1906, No. 321, discharging rule to strike off judgment in case of Jacob Griesmer v. James Lewis Hill and James C. Hill. Rule to strike off judgment. Ferris, J., filed the following opinion: On July 6, 1906, the plaintiff sued out a writ of replevin, returnable on the second Monday of September, 1906, for certain chattels alleged to be in the possession of the defendants.

<p>Appeal, No. 4, March T., 1908, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1903, No. 251, on verdict for plaintiff on trial by court without a jury •in case of Robert F. Allen, Administrator d. b. n. c. t. a., and Trustee of the Estate of Levi Houston, deceased, v. Williams-,'port National Bank.</p> <p>' Assumpsit to recover the expenses of an equity suit. Before Ormerod, P. J., specially presiding.</p> <p>The facts arestated in the opinion of the Superior Court.</p> <p>Error assigned was the judgment of the court stated in the opinion of thé Supreme Court.</p>

<p>Appeal, No. 50, March T., 1908, by defendant, from judgment of C. P. Montour Co., May T., 1907, No. 48, for plaintiff on trial by the court without a jury in case of Trustees of State Hospital for Insane at Danville, Pa., v. Danville & Mahoning Poor District.</p> <p>Assumpsit for the board of lunatic.</p> <p>The case was tried by Evans, P. J., without a jury.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff in the sum of $100.80.</p>

<p>Appeal, No. 16, Jan. T., 1908, by plaintiff, from order of C. P. Susquehanna Co., Nov. T., 1906, No. 201, discharging rule for judgment for want of a sufficient affidavit of defense in case of Arlington C. Harvey v. J. S. Dimon.</p> <p>Assumpsit on a promissory note.</p> <p>The defendant filed an affidavit of defense which was as follows:</p> <p>That on or about April 30, 1906, a party calling himself Charles Stallsmith, called at his house representing himself as the agent of a concern which he represented was the Columbus Food Company, of Columbus, Ohio, and requested deponent to become an agent of the said Columbus Food Company for the sale of certain articles, for the county of Susquehanna.</p> <p>That deponent finally consented to act as such agent, if, upon considering the matter he should be of the opinion that he had time to engage in the sale of articles represented to be manufactured by the said Columbus Food Company.</p> <p>That he entered into an agreement upon the representations of said Charles Stallsmith to become the agent ;for the sale of said products to pay for the same as the sales should be made; it was then and there agreed that the goods of the said company to be shipped to the said deponent were to be shipped on the June 1,1906, and not before that time.</p> <p>That at the request of the said agent he signed an order for such goods as the agent directed, the said party, to wit: the Columbus Food Company, reserving the right to cancel such agreement at any time at their option and asked him to sign an agreement in connection with such order promising to pay to the Columbus Food Company $409.50. That said agent then and there promised and agreed that the time for the payment was to be extended at any time when requested by deponents as to all goods that might remain unsold.</p> <p>Later on the same day he met him the said Charles Stallsmith, and told him that he did not believe he would have time to engage in the sale of the Columbus Food Company’s products and it was then and there agreed between deponent and said agent that he could countermand the order given for goods and rescind the contract at any moment that he pleased previous to June 1,1906.</p> <p>That on May 1, 1906, he wrote the said Columbus Food Company a letter of which the following is a copy:</p> <p>“May 1,1906.</p> <p>“ Columbus Food Company,</p> <p>“Columbus, Ohio.</p> <p>“Gentlemen:</p> <p>“You will please consider the agreement entered into between your Company and myself on the 30th day of April, 1906, rescinded and everything in connection therewith revoked.</p> <p>“I have no time to give attention to the matter in any way and any order for any goods is also revoked. Do not ship any goods to me.</p> <p>“Yours truly,</p> <p>(Signed) “J. S. Dimon.” .</p> <p>That notwithstanding such rescission of said contract and countérmand of said order on May 1, 1906, the said company shipped to deponent a quantity of goods, the amount and character of which are unknown to said deponent, which said property so forwarded he refused to accept or take from the D., L. •& W. R. R. station, but left the same subject to the order of the said Columbus Food Company as its own property .and so notified the said company on June 7, 1906.</p> <p>At the second interview with the said agent, when .it was agreed that deponent could rescind his contract and revoke any orders he had given, together with any obligation, all said papers the agent agreed should be returned to said deponent.</p> <p>' Deponent is not indebted in any way or manner to the said Columbus Food Company or to the said A. C. Harvey. A true copy of instrument upon which suit is brought is hereto .attached.</p> <p>; “TRUE COPY OF INSTRUMENT.</p> <p>“Columbus Food Co.,</p> <p>, . “ 115 Vine St., Columbus, Ohio.</p> <p>“Please ship to J. S. Dimon, Penn.</p> <p>“Postoffice, Fairdale, Pá.</p> <p>“All goods F. O. B.</p> <p>“Columbus, Ohio.</p> <p>“Shipping address Montrose by D. L. & W.</p> <p>Bales 4-50 lb. Sacks Stock Food, $</p> <p>Bales 8-25 lb. Sacks Stock Food, $</p> <p>Bales 16-12 lb. Sacks Stock Food, $</p> <p>Cases 24r-50c Packages Stock Food, $</p> <p>1 Cases 48-25c Packages Poultry Food, $ 6.50</p> <p>2 Cases 20-60c Packages Poultry Food, $ 13.00</p> <p>Lbs. in 12 lb. Buckets Poultry Food, $</p> <p>■ Lbs. in 25 lb. Buckets Poultry Food, $ ■</p> <p>Cases 48-25c Packages Animal Condiment, $</p> <p>Cases 2A-50c Packages Animal Condiment, 6-3,-c per lb., $</p> <p>Cases 16-75c Packages Animal Condiment, $</p> <p>2000 Lbs. in 12 lb. Buckets Animal Condiment, $ 130.00</p> <p>4000 Lbs. in 25 Jb. Buckets Animal Condiment, $ 260.00</p> <p>Lbs. in 50 lb. Drums Animal Condiment, $</p> <p>Lbs. in 100 lb. Drums Animal Condiment, $</p> <p>Cases 48-25c Packages Perfect Louse Killer,- $</p> <p>$ 409.50</p> <p>“Town Fairdale, State Pa. Date April- 30, ’06.</p> <p>“ 150 days after date for value received, I, we, or either of us, promise to pay to Columbus Food Co., or order, Four Hundred & Nine & 50-100 Dollars, at Columbus Food "Co.’s office, Columbus, Ohio, with interest after maturity until paid. '</p> <p>(Signed) “J. S. Dimon.</p> <p>“We, the undersigned agree with J. S. Dimon of Fairdale, State of Pa., executing above order as follows: You are expected and instructed to sell Columbus Food strictly on its merits and to warrant and guarantee said Food to each customer if used and fed according to printed directions. And we agree in all 'cases where your customers have fed the Food for 30 days as aforesaid, and by writing Columbus Food Company, Columbus, Ohio, stating to them just how they have fed the Food, and how long and what kind of stock fed and condition of same. If we are then unable to show them how to feed the Food and get the results we claim for it by them furnishing us with their affidavit, clearly and explicitly stating they have fed said Food in accordance with our instructions, detail the manner of feeding same, and that his stock has derived no benefit therefrom, and we agree in all cases where your customers have complied with the above to ship you free of charge f. o. b. cars your station, as many pounds, not exceeding 500 lbs. to a single customer, as shall appear by such affidavit to have been used by such customer. It is understood that this guaranty shall cover in each case only the first sale made to each individual customer. Otherwise this warranty is of no force or effect.</p> <p>“Countermands not recognized.</p> <p>(Signed) “ Columbus Food Company,</p> <p>“ 115 Vine St., Columbus, Ohio.</p> <p>“Sole Mfrs. of Columbus Foods.</p> <p>“No agreement recognized unless in writing bn this sheet.</p> <p>(Signed) “Stallsmith, Salesman.”</p> <p>Indorsed upon back of the foregoing agreement is the following:</p> <p>“For value received this note is assigned to Arlington C. Harvey. August 27, 1906.</p> <p>(Signed) “ Columbus Food Company,</p> <p>“D. N. Moore, Mgr.</p> <p>“Arlington C. Harvey pay to Farmers’ National Bank, Montrose, Pa., or order.</p> <p>“The Columbus Savings Bank Company,</p> <p>“O. G. Henderson, Cashier.”</p> <p>Note. The last indorsement of bank and cashier erased with ink lines.</p> <p>Searle, P. J., filed the following opinion:</p> <p>The copy of instrument filed with plaintiff’s statement as the one on which suit was brought is as follows:</p> <p>“Town Fairdale, State Penn’a, Date April 30, ’06. 150 days after date for value received I, we or either of us promise to pay Columbus Food Company or order Four hundred and nine and 50-100 dollars at Columbus Food Company’s office, Columbus, Ohio, with interest after maturity until paid.” (Signed) “ J. S. Dimon,” and indorsed on back thereof as follows: “For value received this note is assigned to Arlington C. Harvey. Columbus Food Company, D. N. Moore, M’gr., August 27,1906.” November 19, 1906, upon affidavit of defendant setting forth in substance that the copy of instrument upon which suit was brought contained in plaintiff’s statement was only a portion of the instrument signed by defendant. Rule was granted upon plaintiff to show cause why he should not file in the No. and Term of this action a full, true and correct copy of the original itself of this instrument alleged by the defendant to be only in part quoted in plaintiff’s statement in the prothonotary’s office as oyer of the same.</p> <p>November 24, 1906, this rule for oyer was discharged upon plaintiff’s attorney delivering to the prothonotary to be impounded by him the original note — said prothonotary to retain custody of same until a copy of the original is deposited with prothonotary.</p> <p>The affidavit of defense filed December 3, 1906, with an amended affidavit filed December 31, 1906, claim to give a correct copy of the instrument executed by J. S. Dimon upon a portion of which as claimed by plaintiff’s statement suit was instituted. This copy shows an order by J. S. Dimon to the Columbus Food Company for a bill of goods appended to which is the note a copy of which is contained in plaintiff’s statement. This signature of J. S. Dimon being after the note which follows immediately after the order of bill of goods and is only signature of defendant to the paper. Following the note is what purports to be an agreement with defendant containing, instruction to said defendant how to sell the goods ordered and how to warrant and guarantee them and authorizing certain specific agreements with purchasers. This last agreement or instructions is signed only by Columbus Food Company, 115 Vine St., Columbus, Ohio, also the words “Countermands not recognized. No agreements recognized unless in writing on this sheet.” Also assignment to plaintiff.</p> <p>. The affidavit of defense avers an agreement made with the agent of the company at time he signed the written or printed paper whence he was appointed an agent of the Columbus Food Company, and on same day he and said agent agreed that said Dimon could countermand the order for goods and rescind contract at any time previous to June 1,1906; that said Dimon did on May 1, 1906, write a letter to Columbus Food Company rescinding and revoking the agreement, and ordering them not to ship any goods, notwithstanding which Columbus Food Company shipped goods to him which he refused to receive, and so notified company June 7,1906.</p> <p>It was urged by plaintiff’s attorney that this affidavit was not an answer to plaintiff’s suit:</p> <p>1. Because the paper on which suit was a negotiable note passed, before due, to an innocent holder.</p> <p>2. ' That all the instrument alleged to be a portion of the written agreement of the parties by the defendant, taken- together, do not modify or change the legal effect of the paper signed by Dimon; taken as an entirety it remains a negotiable instrument and is not subject to any defense of the character set up in affidavit of defense when passed to an innocent holder for value before maturity.</p> <p>The whole paper signed by Dimon and also signed by Columbus Food Company, by its agent, must be taken as an agreement between the parties either entire or partial, and in either case the entire paper is to be taken as the foundation of the suit. The defendant alleges that the entire paper does not contain all the agreement between the Columbus Food Company and himself, and that there were other agreements made between himself and the plaintiff company through its agent at the time of signing of this paper and subsequent to signing it, but on same day (and consequently before it was possible for the agent to have delivered it to the principal), which so modified the paper as to allow the defendant to rescind the agreement therein contained, and that he did rescind the said agreement before thé time stated in plaintiff’s narr of its transfér to the present plaintiff.</p> <p>This affidavit in short alleges that the actual agreement between defendant and the agent of the Columbus Food Company was partly written and printed and partly verbal; and that the entire agreement gave him a right of rescission of contract, which he exercised before any rights under the contract vested in plaintiff.’</p> <p>These averments entitle the defendant to have the facts passed upon by a jury, especially as there are expressions in the written instrument which passed to plaintiff which might be construed to indicate that the writing did not contain the entire contract between defendant and the Columbus Food Company.</p> <p>It was claimed by attorney for defendant at the time of the argument of this rule, that the order of court as to the custody of the original instrument by the prothonotary' did not. make the paper a part of the files, and therefore his right of oyer was not protected by said order, and asked that the original rule as to oyer should be reinstated. Plaintiff’s attorney stated that if the court was of opinion that defendant was entitled to have a copy of instrument made part of record he would consent that the original now impounded in hands of prothonotary be filed in the case. It is therefore ordered that the original paper impounded in custody of the prothonotary be marked by him filed and made a part of the record in this case. And the rule to show cause why judgment should not be entered for want of sufficient affidavit of defence, is hereby discharged.</p> <p>Error assigned was the order of the court discharging the rule for judgment for want of a sufficient affidavit of defense..</p>

<p>Railroads — Diversion of water onto neighboring lands — Evidence.</p> <p>In an action against a railroad company to recover damages for injuries to land caused by an alleged wrongful diversion of water from the street on which the railroad tracks were laid, binding instructions should be given for the defendant, where the evidence shows that the tracks had been laid before plaintiff had title’to the land in question; that the construction of the roadbed did not cause the conditions complained of; that no change in the condition of the tracks or the surrounding lands had occurred since the original laying of the tracks; and there is a total absence of facts from which a legal conclusion could be drawn that the defendant was under any obligation to the plaintiff to take care of the water which flowed along the street during heavy rains.</p>

Appeal, No. 24, Jan. T., 1908, by defendant, from judgment of C. P. Lackawanna Co., May T., 1903, No. 723, on verdict for plaintiff in case of City of Scranton v. Robert P. Koehler. Scire facias sur municipal lien. At the trial the court gave binding instructions for plaintiff. Verdict for plaintiff for $239.32. On a rule for judgment for defendant non obstante veredicto, Edwards, P. J., filed the following opinion: Defendant offered no evidence in this case.

<p>Appeal, No. 184, Oct. T., 1907, by-plaintiff, from decree of C. P. Franklin Co., Equity Docket 3, page 24, dismissing bill in equity in case of The Regents of the Mercersburg College v. Jacob TJ. Poffenberger, collector of taxes.</p> <p>Bill in equity for an injunction.</p> <p>Endlich, J., specially presiding, filed the following opinion:</p> <p>This bill is filed for the purpose of obtaining a decree (1) declaring Mercersburg College to be an institution of purely public charity, and a college founded, endowed and maintained by private charity, and its property, with some few admitted exceptions, to be exempt frífia taxation for county, borough and school purposes, and (2) enjoining the collection of such taxes assessed against the whole of its property during the years 1905 and 1906. The answer denies the character claimed for the institution in the bill, as well as the necessity of much of the property for occupancy and enjoyment by its lawful purposes, and asserts the liability of the whole of it to local taxation. The cause was tried, and upon conclusion of the testimony argued, on December 1, 1906. There seems to be no ground for dispute about the facts.</p> <p>' FINDINGS OF FACT.</p> <p>1. By a decree of this court, of October 30, 1865, a corporation was erected on the basis of certain articles thereby approved as its charter, providing for the establishment of “a college for the education of youth in the learned languages, the arts, sciences and useful literature .... called and known by the name of the Mercersburg College .... under the management, direction and government of” nine regents, named, who were to “continue to exercise their trust until their successors shall be-duly elected,” and who with their successors were “declared to be a body politic and corporate .... by the name, style and title of The Regents of the Mercersburg College.” A further decree of this court, of June 20, 1894, increased the number of the regents to fifteen, of whom nine were to be elected by the Synod of the Potomac of the Reformed Church of the United States and six by the board of regents. The plaintiffs are the corporation thus erected and existing in due succession to its original organization under said decrees.</p> <p>2. The powers conferred upon them by their charter are, besides those essentially incident to all corporations, and those specifically involved in the management and operation of a college with its usual incidents, the powers “for the use of said college” to acquire and hold real and personal property and dispose of or invest the same, and for the purchase of real estate, repair of existing and erection of new buildings for the general purposes of the institution, to issue stock redeemable or perpetual on such terms as they may deem fit, and procure money in such manner and to such amount as they may think expedient.</p> <p>3. The college was founded by charitable bequests and gifts of individuals. It has been all along and still is the recipient of such, and may reasonably expect to be aided thereby in the realization of projects of development already on foot. Until within recent years it was almost entirely supported, as a small and sickly institution, by voluntary contributions. During the past twelve years, under the guidance of a most competent principal, it has developed into a large and prosperous school, whose revenues from the sums paid by students for tuition, etc., now not only maintain it, but yield a surplus over and above the cost of maintenance, that surplus averaging for the past five years about $9,000 per annum.</p> <p>4. In addition to the income from charges for tuition, etc., the plaintiffs derive a revenue from certain portions of the land (about thirty-five acres, worth from $100 to $150 per acre), acquired by them for the future uses of the college, necessary to be controlled by it with a view to its enlargement, but presently cultivated as farming land; also from a building outside of the college grounds occupied by and virtually leased to an employee of the institution, its rental value being $50.00 or $60.00 per year; and, finally, from certain old buildings known as the Preparatory School and Diagnothean Hall, formerly used as dormitories in connection with the college, but now unused by it and at times wholly or partially rented.</p> <p>5. A tract of about eleven acres -is cultivated by plaintiffs as a truck patch, the produce being consumed in the school, except an occasional trifling excess over its needs, which is' sold. Upon this tract is a pig-pen in which a quantity of pigs are fattened with the offal from the college kitchen and table. From this economy plaintiffs realize about $500 a year.</p> <p>6. In Main Hall is kept and operated a store under plaintiffs’ direction in such manner as to pay for itself and yield a profit of from $2,000 to $3,000 a year. The store is for the accommodation of, and patronized by, not the general public, but the students; is indispensable as well for their convenience as for the proper discipline of the institution, and pays no rent to the plaintiffs. Its profits go to the maintenance of the athletic enterprises of the students, which, if not thus paid for, would have to be either abandoned or provided for by contributions from or assessments upon the students. Plaintiffs derive no revenue from the store.</p> <p>7. The entire income of the college over and above what is needed to defray the expenses of its maintenance goes into the betterment of the school, the extension and improvement of its grounds, buildings and equipment, and the augmentation of its facilities and efficiency as an educational institution. None of the regents derive any profit from it whatever. Their service is gratuitous. .No stock has ever been issued. No individual has, as a member of the corporation, realized any pecuniary advantage by the increase in the extent or value of the property or by the income derived from its successful management.</p> <p>8. Within the constantly expanding limits of the accommodations afforded, the college is open to all white male students of suitable age and character, without distinction of class or creed. No particular religious or denominational beliefs are enforced; nor is any sectarian test applied in the employment of instructors. The regular annual charge for resident students in 1901 and 1902 was $330, and is now $375 (with an additional charge for breakage, etc., of $5.00, contingently returnable). Sons of ministers intending to study for the ministry are charged $250. A similar reduction is made in cases of sons of officers of the army and navy. Poor students, willing to render certain services in the institution, are received at the rate of $150 — a reduction greatly in excess of the market value of the services exacted. And there are yearly, on an average, two poor students who render no services and pay nothing at all. The minimum charge for separate rooms in 1901 and 1902 was $30.00 and is now $40.00, running all the way up to $150. Day scholars are charged $50.00 for tuition. The college has at present 371 students, of whom over ninety enjoy reduced rates. The regular charge of $375 (or $380) is very much below the average charges made by other institutions of similar standing and facilities.</p> <p>9. The real estate owned by the plaintiffs, and lying partly within the limits of the borough of Mercersburg and partly in Montgomery township, comprises about eighty-three acres, including four acres leased to them by the Synod of the Potomac for ninety-nine years, and a small vacant lot. They also hold under lease (with the intention and for the most part with options to purchase) thirty-nine and one-half acres. With the exception of said vacant lot and the properties referred to in the fourth finding of fact, all the property held by plaintiffs is occupied by and necessary for the purposes of the college.</p> <p>10. The total amount (representing voluntary contributions, surplus revenues and a remaining indebtedness of $50,000) expended since 1893 in acquiring and improving the property, etc., óf the college exceeds $175,000, which includes $20,000 spent in enlarging and bettering the buildings upon the tract held under the lease from the Synod of the Potomac.</p> <p>11. The rental value of the entire property is such that, if it be added to the expense of maintaining the college, the total would more than wipe out the clearings of any year.</p> <p>12. For the year 1905 the county of Franklin levied and assessed a county tax upon the real estate of plaintiffs and two horses and five head of cattle owned by them, amounting to $479.22, and for the year 1906, a similar tax on the same property, amounting to $479.50.</p> <p>13. For the year 1905 the borough of Mercersburg levied and assessed a borough tax upon so much of said property as lies within its limits, amounting to $539.75.</p> <p>14. For the year 1905 the Independent School District of Mercersburg levied and assessed a school tax upon so much of said property as lies within its limits, amounting to $541.25.</p> <p>15. Notice of these several assessments was given to plaintiffs, who did not appeal therefrom.</p> <p>16. The duplicates for the collection of the county tax for 1905 were placed in the hands of the defendant, Abram Carbaugh, and those for the collection of the borough and school taxes in the hands of the defendant, Jacob U. Poffenberger— they being respectively the proper persons for the purpose.</p> <p>17. The plaintiffs admit their liability to taxation upon those portions of their property mentioned in the fourth, and the vacant lot mentioned in the ninth finding of fact; but upon demands made for payment of the gross sums of the several above taxes assessed upon the entire property for the year 1905, refused to pay the same and instituted this proceeding to .restrain their collection, as well as any further steps towards collecting the county tax assessed for the year 1906.</p> <p>DISCUSSION</p> <p>The bare statement of the foregoing facts carries with it a commendation of the institution here involved, as well as of the devotion, the wisdom and the energy of its management. Unfortunately, under the adjudicated cases, it also decides adversely to the plaintiffs’ contention the question of their rights to exemption from local taxation as regards the whole or any part of their property. . .</p> <p>That we are dealing with an institution in its inception and practical workings partaking of many important characteristics of a public charity cannot be doubted. It was founded by charity. Its original and much of its subsequently acquired property was contributed by charity. It continues to be the recipient of charitable' donations. It is open to the public generally. It receives all whom it receives at rates far below those obtaining in other schools of similar rank, many at a still further reduced and some wholly without charge. In the nature of things it cannot admit everybody. But so long as the line is drawn by distinctions which involuntarily affect or may affect any of the whole people (e. g., youth, age, sex, infirmities, etc.), it does not destroy the public character of the institution, although but a small number may be directly benefited: Philadelphia v. Masonic Home, 160 Pa. 572. Neither, as sufficiently appears by Episcopal Academy v. Philadelphia, 150 Pa. 565; White v. Smith, 189 Pa. 222, and Haverford College v. Rhoads, 6 Pa. Superior Ct. 71, is that character impaired by the preponderance of representatives of a certain denomination in the management or by a discrimination between students with respect to charges for tuition, etc., based upon their parentage or their ability to pay. Again, there is - in the relation of plaintiffs to the institution committed to their care no element of gain or profit to them individually. Their charter expressly designates that relation as one of “trust,” and circumscribes the power conferred upon them to receive, handle, increase and dispose of property by the words “for the use of said college,” while limiting that of issuing stock and borrowing money to the purchase and improvement of real estate “for the general purposes of the institution.” So far as the persons constituting the corporation are concerned, in the absence of any stock issue giving the holders an interest in any part of the property or a right to dividends payable out of profits made by its use, the language of the present chief justice in Donohugh’s App., 86 Pa. 306, at p. 341, is very much in point:</p> <p>“The library is a trust, and while it is the property of the corporation; and therefore in a certain sense of the corporate stockholders, yet it is not their property in any full, legal or commercial sense. They cannot sell it and divide the proceeds among themselves as individuals — that would be a violation of the trust, which a court of equity would be bound at once to restrain.”</p> <p>At the same time it must be conceded that there is in the organic law of this corporation the same lack that was deemed significant in Thiel College v. Mercer County, 101 Pa. 530, and Miller’s Appeals, 10 W. N. C. 168 (see Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 580), of any provision stamping it as a charity, pure and simple, and its property as devoted to such charity to the exclusion of private or corporate gain— of any provision preventing the institution from being ever turned entirely into a money-making concern, or permanently enjoining upon it the retention in its operation of any of the benevolent features above instanced as presently incident to the same. If, therefore, the declared object of the corporation, so greatly emphasized in Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, rather than its practical work, is to be looked upon as a test of its charitable character, there is no comfort in the application of such a test here. But apart from this consideration, it must be remembered that it is not every charity even of a public nature that is entitled to hold its property free from local taxation. The constitution exempts nothing, but in art. IX, sec. 1, gives the legislature the restricted power of granting exemption to certain classes of property, among which the only one capable of embracing the plaintiffs’ property is that of “institutions of purely public charity,” leaving it to the legislature to say what subjects within the meaning of the constitutional language, to be declared by the courts as the ultimate interpreters of the constitution, the privilege contemplated by it is to be extended. The legislature by the Act of May 14, 1874, P. L. 158, has ordained in detail what is to be exempt from local taxation. The claimant of exemption is bound to bring itself clearly within this enumeration: Philadelphia v. Barber, 160 Pa. 123,126. The item of it here invoked is:</p> <p>“All .... colleges .... and institutions of learning .... with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity.”</p> <p>Of course, this enactment is to be read in the light of the constitutional restriction upon exemptions to institutions of purely public charity, and to be construed so as to conform to, and not to violate it. The idea of a purely public charity implies that all the benefit resulting from the management and use of the property held for its purposes goes to the public: Episcopal Academy v. Philadelphia, 150 Pa. 565, 573. It is inconsistent with the withholding from the public of any part of what is contributed by it, in the shape of donations for maintenance, of earnings, or of income from lands or invested funds. Under the statute the criterion of exemption of institutions of learning is to be sought in the words “founded, endowed and maintained by ... . charity.” In applying that criterion it must be so understood as to make it in truth the equivalent of the constitutional test. That does not mean that in order to be within the exemption the institution must be one devoted to pauperizing the public by casting its benefits gratuitously upon those able as well as upon those unable to pay in money or in work. It is settled that the purely public character of a charity is not destroyed if to some extent it derives a revenue from the recipients of its bounty. It is only essential to the preservation of that character that, where its operations are in part carried on upon the footing of business dealings, by exacting a return for what is given, they be as a whole free from any element of corporate as well as private gain: Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 582; Haverford College v. Rhoads, 6 Pa. Superior Ct. 71. This principle was applied in Episcopal Academy v. Philadelphia, supra, with the effect of holding entitled to exemption under the act of 1874 a school founded and endowed by charity, and managed with a view to furnishing educational advantages at a minimum cost and as far as possible gratuitously, but deriving a revenue from tuition fees sufficient to keep it in operation, constantly increasing the number of free scholarships. But it was distinctly stated that had the revenues gone beyond the line of self-support, it would not have been exempt. Of this decision it was declared in Sunday School Union v. Philadelphia, 161 Pa. 307, and in White v. Smith, 189 Pa. 222, that it went to the uttermost limit of liberality in the construction of the constitution and of the statute, and is to be accepted as authority only upon a state of facts identical with that there passed upon. It is to be noted also that the contrary decision in the same case when first before the Supreme Court upon appeal from a preliminary injunction, Hunter’s App., 22 W. N. C. 361, 1 Mona. 1, has been referred to with approval by the same court, before the decision in 150 Pa. 565, in Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 580-581, and since in Philadelphia v. Overseers, 170 Pa. 257, 265; White v. Smith, 189 Pa. 222, 229. In view of all this it is declared in Harrisburg v. Harrisburg Academy, 26 Pa. Superior Ct. 252, that the doctrine of the Episcopal Academy case “is not to be extended one jot further,” that doctrine being, in Pocono Pines Ass’y v. Monroe County, 29 Pa. Superior Ct. 36, 45, again stated as going no farther than this, that an institution of learning, which in its nature and purposes is a purely public charity, does not lose its character as such under the tax laws if it receives a revenue from tuition fees sufficient to keep it in operation. Accordingly, in the case of Harrisburg v. Academy, 26 Pa. Superior Ct. 252, a school originally founded with state aid, for a long time supported by voluntary donations, but for a series of years self-sustaining from tuition fees based upon “actual cost, including instructors’ salaries, light, heat, repairs and insurance,” and deriving, besides, an annual revenue of $150 from the renting to the principal of the school of a house upon its grounds as a residence, was because of this circumstance held not to be exempt.</p> <p>There seems to be nothing at all in the facts of the plaintiffs’ case which can be laid hold of to take it out of the rule thus authoritatively prescribed. The fact that the charges for tuition, etc., are lower than in other similar schools, and are in part or wholly remitted in certain cases, is not at all decisive. See Thiel College v. Mercer County, 101 Pa. 530; Philadelphia v. Overseers, 170 Pa. 257; Miller’s Appeals, 10 W. N. C. 168; Harrisburg v. Harrisburg Academy, 26 Pa. Superior Ct. 252. It is not claimed, as it was in the last-named case and shown in Episcopal Academy v. Philadelphia, 150 Pa. 565, that the charges made represented but the actual cost of what was given in exchange. Instead of going down with the increase of revenues, the charges at the Mercersburg College have gone up, and there has been no proportionate increase in the number of students received gratuitously. For some years past its income from charges for tuition, etc., has been sufficient, not only to meet the actual current expenses of its maintenance, but to yield a substantial annual surplus over and above the same; and in addition thereto, it derives a revenue from the cultivation as a farm of part of the land and the rental of buildings belonging to it. It is true that it is also in receipt of voluntary donations. But it is idle to talk of a school as “maintained" by such, where its income from its students is employed and exceeds what is needed for that purpose. It is also true that this excess goes into the extension and improvement of the property and the enhancement of the facilities of the school. Yet it is revenue derived from the use of the property donated by charity. It is money gathered from the public not by way of charity, but in exchange for benefits conferred upon it in the line of the purposes for which the institution was created and endowed. It represents payments made by the public for those benefits over and above their cost to the college. In every aspect it is money contributed by the public. Being retained by the corporation it is something contributed by the public and withheld from it. Granted that, by reason of the use of the surplus in enlarging the capacity, the conveniences and the efficiency of the school, the public will in turn derive a benefit from it; still, whatever that may be, it can only be the issue of what has come from the public, the corpus being held by the corporation as its own. In a word, a surplus thus derived is, no matter how invested or employed, corporate profit; and hence in Harrisburg v. Academy, 26 Pa. Superior Ct. 252, it was said at p. 262, referring to the $150 revenue over expenses met by tuition fees:</p> <p>“To what purpose this was devoted does not appear, nor is it material to the decision of this case that we should know, in view of the admission that the revenue derived from other sources made the institution self-sustaining.”</p> <p>In determining whether there is a surplus over the cost of maintenance it will not do to include in the latter the rental value of the property devoted to the purposes of the institution. According to the legal definition of rental value it necessarily means the value of the use of property for any purpose to which it is adapted: Nelson v. Ry. Co., 41 Minn. 131 (42 N. W, Eepr. 788). It would be a curious system that would grant or deny to an institution enjoying a surplus of revenues immunity from taxation in proportion to the increase or decrease in the value of the property out of the use of which that revenue is made. An institution largely endowed with property in an appreciating locality would be privileged to increase its corporate profits from year to year practically without limit, and yet remain a purely public charity. Another, doing exactly the same things and making exactly the same surplus over expenses would lose that character because its property was worth less in the market. There is nothing in the decision in Philadelphia v. Penna. Hospital, 154 Pa. 9, at p. 11, carefully read, which sustains any such theory. One building of a number comprised in the establishment was used for the reception of patients paying high rates. ' Treated as something apart from the rest of the institution, this .building yielded a considerable profit over the expense immediately incident to its maintenance. Comparing, however, the expense of the whole institution with its income as a whole, the latter, including the revenue from the building referred to, was just about equal from year to year to the actual cost, without considering the value of the property (over $1,000,000) as at all entering into the computation. The point of the decision is that a purely public charity does not lose its status as such because of a profit derived from an integral part of the.establishment and going into its general revenue devoted to the purposes of its creation and as a whole not exceeding the actual cost of its maintenance — a doctrine reaffirmed in Penna. Hospital v. Delaware County, 169 Pa. 305, and in entire accord with the strictest definition of a purely public charity. It is not unlikely that the word “ after,” in the next to the last paragraph of the per curiam opinion in Philadelphia v. Penna. Hospital, 154 Pa. 9, at p. 11, ought •to be regarded as but a slip of the pen, or a misprint, for "without;” for throughout the case, and in the preceding paragraph the fact of the exclusion of the rental value as an element of cost is emphasized. But even standing as it does, the decision does not profess and is not effective to sanction the inclusion, in the estimate of the cost of maintenance as compared with revenue, of the rental value of the property occupied. It was cited by counsel for defendants in Philadelphia v. Overseers, 170 Pa. 257, as so deciding; but this view of its effect failed to secure even a passing notice in the elaborate opinion rendered by Mr. Justice Dean. It is very plain that, the question being.one of comparison between corporate income and corporate expenditure, the rental value of the property is no part of the latter. Where the property has been donated for the benefit of the public the corporation holding the legal title is but the vehicle of that benefit. The rental value of the property is a gift to the public and belongs to it. In so far as the property may have been acquired by the corporation. with profits realized and retained by it, the very assertion that, in estimating the' profits of any year the annual value of the profits of other years invested in the property is to be deducted, is its own sufficient refutation. Indeed, the inadmissibility of ■the proposition under discussion is one of those things which are, in the language of Keith, P., in Smoot v. L. & B. Assn. (Va.), 29 S. E. Repr. 746, “so clear that the attempt to elucidate them serves rather to obscure.” It is, however, in addition settled by express authority. In Harrisburg v. Academy, supra, it seems to have been urged that the rental value of the property should be considered in determining whether the revenues exceeded the cost of maintenance. Rice, P. J., delivering the opinion of the court, rejects, the contention, saying, at p. 262:'</p> <p>“ There is no warrant for holding that that is the test by which ■to determine whether an institution, founded and endowed by public or private charity, is or is not self-sustaining within the meaning of the decisions.”</p> <p>' Equally irrelevant is the fact that the college owes a debt of $50,000 incurred in the enlargement and improvement of its property. It has the equivalent in property and equipment, i. e., in the means of realizing increased profits, out of which to pay the interest upon the debt and eventually the debt itself.' Under the circumstance, the incurring of the indebtedness was in truth but the anticipation of future profits. The question whether the debt can be set off against the yearly surplus until the former shall be extinguished by the accumulations of the latter thus comes back to the question already discussed, whether the fact that profits realized are devoted to the increase and betterment of the property employed for the purposes of the institution makes them anything else than corporate profits? It may be pertinent to note that the property held subject to taxation in Philadelphia v. Overseers, 170 Pa. 257, had been (see p. 260) to a considerable extent purchased with surplus income and money borrowed on mortgage. In Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, it was agreed that the property acquired by the association for $70,000 was subject to a debt of $36,000 borrowed to pay for the excess of its cost over what had been' contributed by charity towards its purchase. Yet the fact of even this original indebtedness, though mentioned, cut no figure in the decision.</p> <p>The, conclusion, however, reluctantly arrived at seems to be inevitable, that for a considerable period the Mercersburg College must be deemed as having made, by reason of its revenue from the charges for tuition, etc., an annual profit, within the meaning of the decisions, and that during that period it has been and presently is in*no proper sense maintained by charity. It is not even dependent upon, though it looks for the further aid of, charity for the carrying out of its ambitious and praiseworthy program of future extensions and betterments. In a word, it is not a purely public charity free from the element of corporate gain, with which exemption from taxation does not, under our law, consist. And inasmuch as this corporate gain is the result of the conduct of the establishment as a whole, it subjects the whole of it to taxation. This is not the case of a charitable institution deriving a revenue from some distinct item of property owned by it or some divisible portion of the same, and therefore taxable only in respect to it, as in Philadelphia v. Barber, 160 Pa. 123; Sunday School Union v. Philadelphia, 161 Pa. 307; Pocono Pines Ass’y v. Monroe Co., 29 Pa. Superior Ct. 36. The question here is of liability to or exemption from taxation of the entire property of the plaintiffs. No distinction need, therefore, be made between the bulk of it and the items referred to in the fourth and the vacant lot mentioned in the ninth finding. Nor, finally, is it a just, though perhaps a ready, criticism of the law to say that it puts a premium upon nonsuccess and a penalty upon judicious and enterprising management. Failure to earn expenses does not -make a school a public charity: Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 581, per Paxson, C. J. No more, as has been seen, does a school founded and endowed as- a charity lose its character as such by proving its ability to earn its way. But when it has reached and is about to pass that point it has the choice of two courses. It may keep its income down to its expenses by reducing its charges for tuition, etc., or increasing the number of its free scholarships, as in Episcopal Academy v. Philadelphia, 150 Pa. 565, trusting to future charitable gifts for an enlargement of its capacity. Or it may go on, as here, increasing its revenues beyond its expenses and adding to its permanent property from the surplus of its own earnings as well as from such donations as may come its way. In the one case the number of its beneficiaries will probably continue more restricted. But the benefit conferred upon each individual will be greater, and the charity will remain a purely public one, exempt as such from taxation. In the other case the institution will be enabled to reach out farther and whilst perhaps bestowing less direct charity will expand the sphere of its influence and usefulness. But it will do so not upon the footing .'of purely public charity, but partly of commercial business and resulting corporate profit, thereby voluntarily abandoning its .claim to exemption. Which of these alternatives to choose is a practical question. If the latter is chosen, it must be because, it's larger promises outweigh the comparatively trifling advantages of immunity from local taxation. The liability to taxation, however, follows, not upon success; for there may be successful management within the lines of pu'rely public charity, but upon success directed into some form of corporate emolhment, as distinguished from the transmission to the- public, unabridged, of the whole fruits of private benevolence. And it follows, not as a penalty in any sense, but as'a duty incident to the situation the institution has itself created, identical with that of all others engaged in like enterprises, and as> much •& duty as it is a duty to pay debts: Com. v. Duffield, 12 Pa. 277, 281. ■ • -</p> <p>CONCLUSIONS.</p> <p>(a) The plaintiff corporation is not entitled to a-decree .de-</p> <p>claring it to be presently or to have been at the time of. the assessments in its bill complained of' an institution of purely public charity, or a college founded, endowed and maintained by private charity. '•</p> <p>(b) The property held by the plaintiff corporation and assessed for county, borough and school taxes -as -found in the foregoing findings of fact was liable to such taxation and was lawfully assessed therefor.</p> <p>. (c) The plaintiff corporation is not entitled to the injunction or other relief prayed for in its bill. - - - ■</p> <p>(d) The bill is to be dismissed with costs.</p> <p>And now, January 10, 1907, it is ordered that the prothonotary enter a decree nisi in accordance with the foregoing decision, viz. : that plaintiffs’ bill be dismissed with costs, and that he forthwith give notice thereof to the parties to this- suit or their counsel of record, sec. reg. ■</p> <p>On exceptions, Endlich, J., filed the following, opinion1:</p> <p>All the exceptions taken in this case hinge upon the first one. The position there insisted upon was discussed in the decision on file in the light of all the then adjudicated cases bearing upon it and of full arguments of counsel. ■ No' additional cases seem to have been reported and- no new views -are suggested to modify the conclusion arrived at. A careful reconsideration of it has disclosed no avenue of escape from1 it. Nor is there any necessity for re-discussing the matter. It -may, however, not be improper to add to what has heretofore been said that in no legal or popular sense can the expansion and betterment of the institution in question, the acquisition of additional grounds, erection of new and enlargement of old buildings, and the like, be treated as entering into the cost of its “maintenance.” In Moon v. Durden, 2 Exch. 22, 30, Platt, B., says that “the verb 'to maintain' .... signifies to support what is already brought into existence.” In Barber Asph. Pav. Co. v. Hezel, 155 Mo. 391 (56 S. W. Repr. 449), it is declared that it does not mean to provide or construct, but to keep up, to keep from change or decay, to preserve, to hold or keep in any particular state or condition. With this all the lexicographers agree. And in Warren Hospital for the Insane, 3 Pa. Dist. Rep. 223,' 15 Pa. C. C. Rep. 83, Mr. Attorney General Hensel, adopting accepted dictionary definitions, declines to expand the term “maintenance” in a statute making an appropriation into “enlargement, addition, improvement or construction. Much less can it be permissible to do so in the case of a statute enacting exemptions from taxation: Academy of Fine Arts v. Philadelphia County, 22 Pa. 496; Com. v. Lackawanna Iron & Coal Co., 129 Pa. 346, 356.</p> <p>And now, August 27, 1907, this cause came on to be heard upon exceptions filed by plaintiffs to the decision thereof filed January 10, 1907, and was argued by counsel, and thereupon, upon consideration thereof it is ordered, adjudged and decreed (1) that the said exceptions be dismissed, and (2) that the plaintiffs' bill be dismissed with costs.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Divorce-Trial by jury — Evidence—Review.</p> <p>Where there is a trial by jury in a divorce case, the appellate court is relieved from the burden of reviewing the evidence with reference ro its credibility. The provision for appeal to a jury implies that its verdict shall determine the facts in the case if there be competent evidence.</p> <p>Divorce — Cruel and barbarous treatment — Indignities to the person— Evidence — Act of March 13, 1815, 6 Sm. L. 286, and May 8, 1854, P. L. 644.</p> <p>Undér the Act of 'May 8, 1854, P. L. 644, which gives to a husband a right to a divorce for cruel and barbarous treatment, whatever directly tends to show a course of treatment which renders the condition of the libelant intolerable and his life burdensome, is admissible in evidence, and in determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife toward her’ husband during the period of the allegéd ill-treatment should be considered. " • .</p> <p>A decree for divorce in favor of a husband on the ground of cruel and barbarous treatment will be sustained where there is evidence that the respondent assaulted the libelant with a dagger and drove him out of the house ; that at another time she threw a valise at him, that she struck him in the face with a ring; that she frequently used profane and obscene language; that she in a number of'instances, sent to him offensive postal cards through the mail; that she exhibited a violent.and quarrelsome disposition; interfered with him in his business; and by her general and continuous course of conduct towards him brought on nervous prostration and inability to carry on his work as an instructor in music.</p>

<p>Habeas corpus — Appeals—Evidence—Extradition.</p> <p>An appeal in habeas corpus proceedings is in effect a certiorari, in which the jurisdiction of the appellate court is restricted to an examination of the record. The evidence introduced and the rulings of the judge thereon are not properly for the upper court.</p> <p>Extradition — Warrant of arrest — Fugitive from justice — Duty of governor — Criminal law.</p> <p>The constitutional provision on the subject of interstate extradition and the act of congress relating thereto are part of the supreme law of the land and of every state. Requisitions and warrants of arrest for alleged fugitives are issued under the laws of the United States. The statute of this state on the subject is in aid, merely, of the proceedings and in no sense inconsistent with the federal statute. Whether the warrant of arrest shall be issued or not is an executive consideration and the duty of the governor is absolute whenever the requisition from the demanding state is presented in due form, with the necessary accompanying papers as required by law, to the governor of the state where the accused has taken refuge. The latter is under obligation to issue a warrant for the surrender of the person accused if he is a fugitive from justice. If the requisition is in proper form he has no authority to determine whether the charge is true. The constitutional provision for extradition is in the nature of a treaty between the states to which the executive of each is bound to give effect.</p> <p>Jurisdiction of the court on a writ of habeas corpus in an extradition proceeding does not involve any executive function. It is limited to (a) the identification of the person demanded; (b) an inquiry whether the record shows that a crime was substantially charged against him and (c) whether he is a fugitive from justice.</p> <p>Each state has the power unless forbidden by the constitution of the United States to. declare what shall be offenses against her laws, and persons residing in such state are subject to her laws. The words “treason, felony and other crimes,” in sec. 2, article IV of the federal constitution, ■include every offense against the laws of the demanding state without exception as to the nature of the crime. A state may make the desertion of a wife a crime, and a husband guilty of such an act and becoming a fugitive from justice may be arrested in the state to which he has fled, by proper extradition proceedings.</p> <p>It is not necessary that the person accused should have fled from the state in which the crime is alleged to have been committed or have left it in apprehension of a prosecution to constitute him a fugitive from justice within the meaning of the federal statute. If, having been within a state, he is accused of having committed while there that which by its laws constitutes a crime and when he is sought to be subjected to criminal . proceeding therefor, he has left its jurisdiction and is found within another state, he is a fugitive from justice. It is not important whether the' accused leaves the state to avoid prosecution or not. His motive does not affect his relation to the law.</p> <p>■ One who leaves a state after the date of the commission of an alleged crime becomes from the time of such leaving, yithin the meaning of the words of the constitution of the United States, a fugitive from justice, and if found in another state must be delivered by the governor of such state to the state whose laws are alleged to have been violated on the production of the the requisite evidence of the indictment or-affldavit certified by the governor of the state from which the accused departed..</p>

<p>Appeal, No. 52, Oct. T., 1907, by Jacob S. Adams, from order of Q. S. Berks Co., June T., 1906, No. 1, sustaining exceptions to report of viewers In re Private Road in Perry and Maidencreek Townships, Berks Co., Pa.</p> <p>Exceptions to report of viewers.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order sustaining exceptions to report of viewers.</p>

<p>Ground rent — Presumption of payment — Trial by jury — Acts of April 27, 1855, P. L. 368, and June 14, 1897, P. L. 149.</p> <p>On the trial of a feigned issue under the Act of June 14, 1897, P. L. 149, to determine whether or not a ground rent had become extinguished by presumption of the law, the action of the trial judge in declaring that the plaintiff had failed to establish his right to recover, and in directing a verdict for defendant in no way impinges upon the plaintiff’s right to have a trial by jury.</p> <p>When the conditions prescribed by the Act of April 27, 1855, P. L. 368, are present, the act itself declares that an extinguishment of the ground rent shall be presumed, and it shall “thereafter be irrecoverable.” When the presumption is properly invoked it has every practical effect that a formal written release or extinguishment, if then produced, would have, and the rent jjgharge becomes irrecoverable.</p> <p>In a proceeding to determine whether a ground rent had become extinguished by presumption of law, evidence of a mere naked entry on vacant and unoccupied premises for the purpose of making a demand, and the record of a judgment obtained against the original covenantor more than twenty-one years prior to the institution of the proceedings, are not sufficient to warrant a jury in finding that any payment, claim or demand, for or on account of the rent had been made within twenty-one years prior to the inception of the proceedings.</p>

<p>Appeal, No. 99, Oct. T., 1907, by defendants, from decree of O. C. Lancaster Co., April T., 1905, No. 22, refusing to open a decree In re Estate of Solomon C. Groff, deceased.</p> <p>Petition to open a decree surcharging accountant.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 96, Oct. T., 1907, by-defendant, from judgment of Q. S. Bedford Co., April T., 1907, No. 6, on verdict of guilty in case of Commonwealth v. Robert E. Gamble. Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, Jj. Reversed.</p> <p>Indictment for adultery. Before Woods, P. J.</p> <p>Verdict of guilty, direction of the court upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was in directing the jury to convict.</p>

<p>Appeal, No. 68, Oct. T., 1907, by plaintiff, from decree of C. P. Montgomery Co., March T., 1906, No. 1, dismissing bill in equity in case of Alvah F. Conrad v. Thomas C. Conrad.</p> <p>Bill'in equity to cancel an agreement in writing.</p> <p>From the record it appeared that the agreement was as follows:</p> <p>"Whereas Mary H. Thomas, late of No. 804,DeKalb street, Norristown, Pa., died January 31st, A. D. 1906, intestate, leaving surviving as her next of kin, a son, Thomas C. Conrad, and a grandson, Alvah F. Conrad, both of full age.</p> <p>“And whereas, the said decedent, with the knowledge of her family, had certain instructions with regard to the distribution of her estate, which her heirs at law are desirous of carrying out.</p> <p>“Now, in consideration of the premises, and as a family agreement in said estate, and for the purpose of controlling and directing the distribution thereof, it is hereby agreed,</p> <p>“ 1st, That Thomas C. Conrad shall take out letters of administration on said estate.</p> <p>“ 2d, That said administrator shall not inventory or account for the household furniture, wearing apparel or jewelry of the decedent, but shall deliver to Alvah F. Conrad the old dressing table with drawers, and distribute the balance among his three children and their mother.</p> <p>“ 3d, That said administrator shall take to himself absolutely as his own property, the Hanley mortgage of $1000.00, and execute such transfers as are necessary to assure the same to him individually.</p> <p>“ 4th, That said administrator shall pay the debts of the decedent, and the expenses of administration, account and settlement, and out of the net balance due the estate, shall take and pay the following sums, to wit:</p> <p>To Frances E. Clemmer...................... $150 00</p> <p>To Alvah F. Conrad......................... 150 00</p> <p>To himself in trust for Ethel S. Conrad.......... 150 00</p> <p>To himself in trust for Belle T. Conrad.......... 150 00</p> <p>To Alvah F. Conrad on his executing a written promise to pay to Ruth Ann' Hamilton, One 50-100 Dollars per annum, during’her life...... 25 00 .</p> <p>To himself on his executing a written promise to pay Ruth Anna Hamilton Four 5-100 Dollars per annum during her life................... 75 00</p> <p>“Note: On the death of Ruth Anna Hamilton he is to pay Twenty-five Dollars to each of his said three children.</p> <p>“ 5th, The balance remaining after -the payment of these sums is to be equally divided between the said Thomas C. Conrad and said Alvah F. Conrad.</p> <p>“Witness our hands and seals this sixth day of February. A. D. 1906.</p> <p>“Thomas C. Conrad. (Seal.)</p> <p>“Alvah F. Conrad. (Seal.)</p> <p>“ Signed, sealed and delivered in presence of us:</p> <p>“Henry Freedley.”</p> <p>Swartz, P. J., filed the following opinion:</p> <p>FINDINGS OF FACTS.</p> <p>1. Mary H. Thomas was the mother of Thomas C. Conrad and grandmother of Alvah F. Conrad. Her next of kin are the said Thomas C. Conrad and the said Alvah F. Conrad. Frances, Belle and Ethel are the children of Thomas C. Conrad. Alvah F. is the only child of Frances H. Conrad, deceased. Under the intestate laws the said Thomas C. Conrad and Alvah F. Conrad would each take one-half of the estate of the said Mary H. Thomas, déceased.</p> <p>2. Ethel and Belle are minors and their father was appointed guardian ad litem for them.</p> <p>3. Alvah F. Conrad lived with his grandmother. He came to her when he was nine years old and he is now twenty-four. She supported him for eleven years.</p> <p>4. On the day of Mrs. Thomas’s death a paper was found in her desk and in her own handwriting disposing of her property. At the head of the paper she wrote the words, “My Will.” To her son Thomas she gave a mortgage of $1,000 and divided $600 equally among her four grandchildren, Frances, Belle, Ethel and Alvah. She made other bequests of household goods and gave to her sister the income from $100 for life, at her death the principal to the four grandchildren. She failed to sign the paper. The estate consists of personalty, and its appraised value according to the inventory filed is $2,300..</p> <p>5. Mrs. Thomas died on January 31,1906, and on February 6 following, Thomas C. Conrad and Alvah F. Conrad took the unsigned paper to the office of Henry Freedley, Esq., a member of this bar. They were accompanied by the brother of the decedent. Mr. Freedley had been counsel for Mrs. Thomas for some years. Both Alvah and his uncle, Thomas C., inquired of Mr. Freedley whether the paper could be probated as the will of Mrs. Thomas. He replied that the paper was of no avail as a will, because of the absence of the signature. Both expressed regret and a search was then instituted for a will at the Penn Trust Company and at the office of Judge Solly, who had acted for Mrs. Thomas in some matters prior to his elevation to the bench. No will was found.</p> <p>6. Mr. Freedley explained to the parties that inasmuch as they were the only parties interested and as there were no debts they could agree to a distribution of the estate in accordance with the terms of the unsigned paper, but that this must be done through an administration. Both parties readily assented to this proposition and the paper in controversy was then signed. The agreement embodied all the provisions of the unsigned paper and concluded with the clause that any balance remaining after the payment of the sums named shall be divided equally between the said Thomas C. Conrad and the said Alvah F. Conrad.</p> <p>7. The agreement was carefully read by both parties before their signatures were attached. Alvah F. knew at the time he signed the paper that under the intestate laws he was entitled to one full half of his grandmother’s estate. Mr. Freedley so explained the law to him, and between the time of the explanation and the actual signing of the paper Alvah F. stated at the family dinner table that he supposed his grandmother gave his uncle the mortgage to balance up for the many years she had maintained him, the said Alvah. At the time of the signing of the agreement Mr. Feedley made a calculation to determine the balance that would be left after the provisions of the unsigned will were satisfied. Alvah F. was again informed that he and his uncle under the law shared this balance equally.</p> <p>8. There is no evidence of any confidential relationship existing between Alvah F. and his uncle, nor is there any evidence of fraud or undue influence in obtaining the signatures of Alva F. to the paper he now seeks to set .aside. He is an intelligent young man and signed the paper because it was his desire to respect the wishes of his grandmother as expressed in the unsigned paper found in her dressing table, and because he considered her distribution fair and just.</p> <p>9. Alvah F. received no pecuniary consideration for his signature to the paper. He expressed no dissatisfaction with the agreement before this bill was filed, but it is not shown that Thomas C. Conrad did anything during the month and one half in pursuance of the agreement that would be prejudicial or detrimental to him should the paper now be canceled as prayed for in the bill.</p> <p>10. The agreement sets forth that the parties were desirous to carry out the distribution of the estate in accordance with the instructions of Mrs. Thomas. The agreement is under seal. It purports to be a family agreement to control the distribution of the estate.</p> <p>11. The agreement provides that Thomas C. Conrad shall take to himself absolutely as his own property the Hanley mortgage of $1,000 and execute such transfers as are necessary to assure the same to himself individually. By a previous clause in the agreement Thomas C. Conrad was to be the administrator. He did so administer and took possession of the assets of the estate. The Hanley mortgage was taken to Mr. Freedley, it was handed to him by Thomas C. Conrad for collection.</p> <p>CONCLUSIONS OP LAW.</p> <p>1. Under our findings of facts the paper cannot be set aside or canceled upon the ground that the plaintiff was ignorant of his rights at the time he signed the agreement, nor can it be set aside upon the allegation of fraud or undue influence because there was no evidence of their existence.</p> <p>2. The kinship of uncle and nephew does not of itself constitute a confidential relationship; there must be some evidence of trust and confidence before a confidential relationship arises between them.</p> <p>3. As Alvah F. Conrad fully understood his rights and the effect of the transfer of his interest in the Hanley mortgage, equity will not disturb the executed agreement.' The mortgage was fully delivered in accordance with the provisions of the agreement.</p> <p>4. The sealed instrument having been made with the intent to carry out the wishes of Mrs. Thomas as to the disposition of her property and the plaintiff having signed the same not only because he believed it expressed his grandmother’s desire, but also because he considered the disposition fair and just to his uncle, equity will not relieve him from doing that which he agreed to and that which in good conscience he ought to do.</p> <p>5. The estate had vested upon the death of Mrs. Thomas. Alvah F. Conrad had more than an expectancy; he was an owner and could dispose of his property as he saw fit, by gift or otherwise, uninduced by any pecuniary consideration. His transfer is beyond the power of revocation because the consideration was sufficient to support it even so far as it concerned the shares made payable to the nieces.</p> <p>6. The bill should be dismissed at the costs of the plaintiff.</p> <p>ARGUMENT IN SUPPORT OF OUR FINDINGS AND CONCLUSIONS.</p> <p>We are satisfied that Alvah F. Conrad fully understood his rights when he signed and sealed the agreement. His rights were explained to him by counsel. His conversation at the dinner table shows that he understood what he was doing. His uncle heard the explanation at Mr. Freedley’s office and the calculation exhibited to Alvah showing the distribution of the balance of the estate into two equal shares also conveyed to a man of his intelligence a true knowledge of his rights under the intestate laws. He not only knew his rights, but he was anxious to see his grandmother’s estate distributed according to what he believed was her wishes and expressed intent. He also recognized the justice and equity of her distribution of the estate. He knew that he had for years enjoyed her beneficence in the support and maintenance she furnished him. No doubt outside influence induced him to recall the act which his own judgment approved at the time the paper was executed.</p> <p>There is no evidence of undue influence or that any fiduciary or confidential relationship existed at the time the paper was signed.</p> <p>The Hanley mortgage was in the possession of Thomas C. Conrad on the very day the agreement was made. He administered and then passed the mortgage to counsel for collection. There could be no purpose in handing the mortgage to Mr. Freedley' other than a desire to recover the proceeds for himself.' The agreement provided that Thomas C. Conrad should take this mortgage to himself absolutely as his own property. When he had possession of the paper he held it as his individual property and not as a part of the estate of Mrs. Thomas for administration. The transfer was as fully executed as the existing conditions made it possible. There was a delivery of the paper according to the terms of the agreement. All parties in interest may' divide the property of an intestate without administration; the property passes to those legally entitled at the death of the intestate, subject to the claims of creditors: Roberts v. Messinger, 26 W. N. C. 70 (Supreme Court case). .If they may divide the whole estate without administration, it follows that they may dispose of any part thereof in the same way. The delivery was therefore complete so far as the Hanley mortgage is concerned. Whether the agreement, so far as this mortgage is concerned, be termed a gift or assignment of family settlement, it was fully executed before the bill in equity was filed: Delamater’s Estate, 1 Wharton, 362.</p> <p>This instrument does not, as counsel for the plaintiff argues, transfer an expectancy. If it did it would require an actual consideration to support it: Lenneg’s Estate, 182 Pa. 485. Alvah F. Conrad and his uncle were the owners of all the assets óf the estate at the time the agreement was signed. No one without their consent could take from them that which the law vested in them upon the death of Mrs. Thomas. They held this title subject to the claims of creditors alone. There are no creditors so far as there is any testimony before us. It is conceded that at the time of the execution of the paper the two persons owned all the estate; that there were no debts of the decedent. “The perfect right of a proprietor to divest himself of his estate by way of gift uninduced by pecuniary consideration is among those which do not admit of question, and when such a gift is executed or otherwise fixed in the beneficiary, either by the direct conveyance of an estate or the creation of an use, it is beyond the power of the donor or his representative to revoke it: ” Rynd v. Baker, 193 Pa. 486.</p> <p>We are of opinion that equity will not interfere to revoke any part of the agreement even as to such parts that may still be considered executory. There is á marked difference between an application to the chancellor to revoke or cancel a contract and an application to aid in its execution. He may refuse to execute and yet decline to revoke. If Mrs. Thomas by accident failed to sign the paper headed “my will” or failed by accident to carry out her purpose to do justice to her son in the distribution of her estate and Alvah from a settled conviction signed the paper to do for his uncle what his grandmother failed by accident to do, and if his purpose was to repair the wrong resulting from intestacy then the moral obligation cast upon him would be a consideration to support even an executory agreement: Delamater’s Estate, 1 Wharton, 362. At least equity will not help him to escape from the great obligation he had assumed with full knowledge and without any fraud, mistake or undue influence. We think the same principle is recognized in Hart’s Estate (No. 3), 203 Pa. 492. In Lennig’s Estate, 182 Pa. 485, an agreement by the heirs to change the distribution of the estate divided by the testator was defeated because the agreement was executed before the testator died and was an attempt on the part of the children to dispose of an expectancy, something that they did not own; this could not be sustained in the absence of a valuable consideration. The court said: “If the paper could be sustained as a gift it would answer the purpose, but that cannot be, because the thing given had no existence and as a gift under all the authorities, it cannot be sustained.” Alvah F. Conrad did have something to give because he and his uncle owned the estate of Mrs. Thomas upon her death. In Mechling’s Appeal, 2 Grant, 157, the heir prospectively agreed to release and did so in ignorance of the most material facts in the case, and the court refused to sustain the agreement. In the case before us there is an express direction to pay to each of the nieces $150, and the administrator who had the custody of the funds is directed to make the payment. It is the transfer or assignment of an existing fund in which Alvah F. Conrad had a present interest. Nothing remained to be done by him to give to the nieces title to the fund: Lambe v. Orton, 1 Drew. & Sm. 125, 29 L. J. ch. 319.</p> <p>It is competent for the devisees and legatees under a will to bind themselves by an agreement to destroy the will and to distribute the estate under the intestate laws: Phillips v. Phillips, 8 Watts, 195. Why is not the converse allowable? The principle involved is the same where all the heirs agree to avoid intestacy and to distribute the estate according to their ideas of justice and fairness among themselves, and according to the wishes of the decedent as expressed by her.</p> <p>While the agreement may not in strictness be termed a family agreement or settlement, still it has some of the features that belong to these favored settlements. One purpose is to preserve harmony among the members of the family. Surely this agreement had in view that purpose. To refuse to divide the estate in accordance with the written request of the decedent would certainly tend to estrange the parties and bring about discord. If Alvah had taken one full half of the estate in addition to benefits already received from his grandmother, his uncle, no doubt, as well as his children, would have regarded such act as grasping and unjust to themselves.</p> <p>The parties in their agreement set forth that the paper was executed as a “family agreement.” If they designated the contract by that name we do not see why the court should altogether overlook or disregard their interpretation of the contract. Their motive in making the paper must have been known to themselves, while we can do no more than draw an inference as to these motives.</p> <p>A man may transfer his property without valuable consideration by acts that amount in law to a conveyance and assignment of the property and then completely divest himself of the legal ownership; in such case the person who by those acts acquires the property takes it beneficially or in trust as the case may be: Smith’s Estate, 144 Pa. 428. By the agreement the uncle was made the custodian of the funds payable to the nieces. He took possession of the same and still holds them in trust to pay over the same as directed by the plaintiff.</p> <p>If, however, the agreement so far. as it concerns the nieces is executory and the motive which induced the plaintiff to sign it do not constitute a sufficient consideration to support it, still equity cannot order the cancellation of the paper. In the absence of fraud, accident or mistake equity will not interfere. The paper is just what the plaintiff intended it to be under the full understanding of his rights and interests in the estate. The orphans’ court is the proper tribunal to determine what effect it shall have in the distribution of the estate of Mary H. Thomas.</p> <p>And now, July 2, 1906, the prothonotary will enter a decree nisi dismissing the bill at the cost of the plaintiff and unless exceptions are filed to our findings and conclusions as required by the equity rule he will enter a final decree accordingly as of course. ' '</p> <p>Error assigned amongst others was decree dismissing the bill.</p>

<p>Appeal, No. 51, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1905, No. 284, on verdict for plaintiff in case of Aaron Freeman v. Wilkes-Barre & Wyoming Valley Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Lynch, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,200. Defendant appealed.</p> <p>Errors assigned amongst others were (4) portion of charge, quoted in the opinion of the Superior Court, and (9) in not withdrawing a juror and continuing the case because of the language used by plaintiff’s counsel, and quoted in the opinion of the Superior Court.</p>

<p>Partnership — Dissolution—Release of retiring partner — Consideration —Act of April 14,1851, P. L. 612.</p> <p>A contract releasing one member of a partnership by a creditor of the partnership must be based upon a good and lawful consideration in so far as past indebtedness is concerned, but this rule does not apply to any future indebtedness which may have been created after notice of dissolution of the partnership was given to the creditor.</p> <p>Where on the trial of an issue which involves the distinction between past and future indebtedness, the court correctly distinguishes between the two classes in the general charge, but failed to do so in answers to points in which the distinction is not made, the failure to make such distinction in the answers is ground for reversal of the judgment.</p> <p>The Act of April 14, 1851, P. L. 612, providing for the filing of the names and location of the members of a partnership in the office of the prothonotary, applies only to persons who are actually members of the partnership, and does not apply to persons not members, nor preclude such persons from setting up the fact that no partnership existed.</p> <p>Where one of the defendants sued as a partner is in fact not a partner and this fact is admitted by the other defendants, the court cannot be charged with error in permitting the plaintiff after the trial to enter a nol. pros, as to such defendant nunc pro tunc as of the time of trial.</p> <p>Partnership — Evidence—Call of party as upon cross-examination— Witness — Act of May 23,1887, sec. 7, P. L. 158.</p> <p>Where in an action against three persons sued as partners the plaintiff calls one of the persons as upon cross-examination, under the Act of May 23, 1887, see. 7, P. L. 158, the other defendants are not precluded from examining the witness as to anything legitimately growing out of his cross-examination. The court therefore commits error if it shuts off the offer of another of the defendants to examine the defendant witness without first ascertaining whether or not the question to be asked, and the'further pursuit of the examination related to the testimony which he had given as upon cross-examination. The fact that the witness, by being called as for cross-examination is made a competent witness for the other party does not help the matter, for the other party may not wish to make him his own witness.</p>

<p>Appeal, No. 246, Oct. T., 1906, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1906, No. 25, on verdict for defendant in case of Aaron Reyer and E. H. Laubach v. Louis C. Rice.</p> <p>Sheriff’s interpleader to determine ownership of a newspaper establishment. Before Heydt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial when Charles D. Andrews, a witness for defendants, was on the stand the following offer was made:</p> <p>Mr. Gernerd: I propose to prove by this witness that E. J. Royer was doing his banking business with the Cement National Bank of Siegfried; that after the dissolution he continued to do that; that drafts were sent on from different places on the “Cement News” for materials that were bought, and that E. J. Royer acknowledged and honored those drafts; that at no time Aaron Reyer or Senator Laubach had an account there in the bank or paid any of these drafts that were sent on in the name of the “Cement News,” indicating in that capacity that there was no sign of any kind to the public that there had been such a change of ownership as we believe the law requires.</p> <p>Objected to.</p> <p>The Court: I think we will permit this testimony. Bill sealed for plaintiff. [1]</p> <p>Charles D. Andrews, recalled by defendant.</p> <p>Mr. Gernerd: “Q. Did you have any dealings with the 'Cement News’ ? A. Yes, sir, E. J. Royer.”</p> <p>Mr. Gernerd: I wish to prove by this witness that he had dealings with this firm, and that bills were sent to him in the name of E. J. Royer, and even his subscription was sent to him.</p> <p>Same objection.</p> <p>Mr. Stewart: We offer to prove further by this witness that during the years 1905 and 1906 that the “Cement News” published the bank statement of the Cement National Bank, and that Edward J. Royer took the affidavit required by the government that he was the owner and publisher of the “Cement News,” and that the bank statement was published in his paper.</p> <p>Objected to for the same reason and upon the same principle that the objections heretofore were made; that Edward J. Royer by his act or declaration cannot affect our rule.</p> <p>The Court: Any declarations that Royer has made as bearing on the title of this property we exclude, but the manner in which this business was conducted we permit, and we will permit you to ask this witness whether the bank statement was published in this paper and who negotiated for it if you desire, and questions of that nature, as bearing on the question who was actually in possession of this property, because that is what will have to go to this jury. The part that Royer swore that he owned this, that part, if he said that, we exclude. Bill sealed for plaintiff. [2]</p> <p>Defendant presented these points:</p> <p>1. That if from the evidence the jury find said alleged sale to Reyer and Laubach to have been' honest and for value, yet there was not such an open, notorious and visible change of possession of and from Royer to the plaintiff as would be apparent to the public, the same is a fraud in law and not binding on Louis C. Rice, the defendant, one of the creditors of Royer at the time of the alleged sale to Reyer and Laubach, and the verdict must be for the defendant. Answer: That proposition is affirmed. [3]</p> <p>2. That if the goods in suit were never removed from the possession and control of Royer by the plaintiff, the mere fact that Royer moved same from the building where the goods were in May, 1905, to another building, this change does not make such open, notorious and visible ‘ change of possession as the law. contemplated when he sold to Reyer and Laubach, and the change of possession which the law requires must be an actual or constructive delivery from Royer to Reyer and Laubach. Answer: That proposition is affirmed. [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.'</p> <p>. Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3, 4) above instructions, quoting them.</p>

<p>Negligence — Boroughs—Fall at crossing in street — Contributory negligence.</p> <p>In an action by a woman against a borough to recover for personal injuries sustained by slipping on smooth or icy stones at a crossing and striking her foot against a crossing plate, binding instructions for the defendant are proper where the testimony does not show exactly what caused the fall, but does show that it was after plaintiff had slipped that her foot struck against the crossing plate which extended above the level of the pavement, but which without her first slipping and falling against it would have done her no injury.</p>

Appeal, No. 160, Oct. T., 1907, by Alvah F. Conrad, from decree of O. C. Montgomery Co., March T., 1907, No. 5, dismissing exceptions to adjudication in Estate of Mary H. Thomas, deceased. •Exceptions to adjudication. See Conrad v. Conrad, ante, p. 154. The facts appear by the opinion of the Superior Court, and Conrad v. Conrad, ante, p. 154. Errors assigned were in dismissing exceptions to adjudication.

<p>Appeal, No. 130, April T., 1908, by defendant, from judgment of Q. S. Allegheny Co., April T., 1908, No. 130, affirming judgment of police magistrate in case of Commonwealth v. David Levine.</p> <p>Appeal from summary conviction for vagrancy.</p> <p>At the trial appellant proposed to prove by his parents and other witnesses the appellant is not a vagrant. That at the time of his arrest he resided at No. 1224 Clark street, Pittsburg, Pa., with his parents. That he has resided there with his parents for the past twenty years.</p> <p>That at the time of his arrest he was engaged in the produce business with his brother, Abe N..Levine, and J. Zidman, the name of the firm being the Charleroi Produce Company.</p> <p>That from April 3, 1903, until July 29, 1907, he was in partnership with one Harry Abel, in the shooting gallery business at No. 105 Grant street, in the city of Pittsburg, Pa.; that on July 29, 1907, he sold his interest in said business to his partner, Harry Abel, for the sum of $550, receiving $450 cash and a judgment bond from the said Harry Abel for $100, in payment for his said interest in said business.</p> <p>That on August 22, 1907, he was also engaged in the scrap iron business with one Harry Ruben, at No. 431 Second avenue, in the city of Pittsburg, Pa., the name of said firm being the Fort Pitt Junk Company, he owning a one-half interest in said business, and that prior to that time he had been engaged in the furniture business at the corner of Sixth avenue and Ross street, Pittsburg, Pá. That he had also been engaged in the flower business in the Fifth .Avenue Arcade Building in the city of Pittsburg, Pa.</p> <p>That at the time the appellant was in court for a hearing on his appeal he was compelled to employ a man to do his work as a partner of the Charleroi Produce Company.</p> <p>The court overruled the offer and affirmed the judgment of the magistrate.</p> <p>Errors assigned were (1) in overruling the offer of evidence and (2) in affirming the judgment.</p>

<p>Appeal, No. 156, Oct. T., 1907, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1906, No. 73, on verdict for plaintiffs in case of L. S. Jacoby and S. A. Weishample, trading as Jacoby, Weishample & Biggin, v. Lehigh County.</p> <p>Assumpsit on a contract of employment. Before Trexler, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $555. Defendant appealed.</p> <p>Error assigned was in entering judgment for the plaintiffs on the verdict, and in not entering judgment for defendant non obstante veredicto.</p>

<p>Appeals — Assignments of error — Instructions—Charge.</p> <p>An assignment of error relating to the admission of evidence will not be considered, where the evidence is not given in connection with the assignment, nor any reference given as to where it may be found.</p> <p>A single assignment of error complaining of the action of the court in refusing to affirm two separate and distinct points, is in flat violation of the rules and will not be considered.</p> <p>An assignment of error to an answer to a point will not be considered where the answer is not set forth in the assignment.</p> <p>An assignment of error is in proper form which reads: “The charge of the court is inadequate in failing to define to the jury the nature and character of the crime charged in the indictment, and the proofs required for sustaining the same.”</p> <p>Criminal law — Conspiracy—Evidence—Construction.</p> <p>On the trial of an indictment for conspiring to cheat and defraud the prosecutor out of the ownership and possession of certain stock, where there is evidence that the prosecutor recognized the right of the defendants to the stock, settled with them and took their money, it is reversible error for the trial judge to say to the jury that it was not for the jury to consider whether the defendants had a right to retain the stocks, because that was a question for the civil courts.</p>

<p>Appeal, No. 60, March'T., 1908, by plaintiff, from order of C. P. Lackawanna Co., May T., 1905, No. 862, refusing to take off nonsuit in case of Scranton Trust Company, Administrator d. b. n. c. t. a. of the Estate of Ambrose Mulley, deceased, v. Thomas Hartshorn.</p> <p>Assumpsit for goods sold and delivered. Before Newcomb, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. : . ■</p> <p>Errors assigned were in refusing to admit in evidence the ledger referred to in the opinion of the Superior Court, and- in refusing to take off nonsuit.</p>

Appeal, No. 62, March T., 1908, by-Pearl Brundage, from degree of O. C. Lackawanna Co., Old Series, No. 1,558, making distribution in Estate of C. W. Brundage, deceased. Exceptions to adjudication. On the exceptions to the adjudication Sando, P. J., entered a decree distributing the fund for distribution per stirpes and not per capita. The facts appear by the opinion of the Superior, Court.. Error assigned was the decree of the court.

<p>Appeal, No. 63, March T., 1908, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 351, for defendant on case stated in suit of Patrick Higgins, collector of school taxes for the School District of Lackawanna Township, v. Luther Price.</p> <p>Case stated to determine liability of real estate for a school tax'. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was' in .entering judgment for defendant on the case stated.</p>

<p>Appeal, No. 6, Jan. T., 1907, by plaintiffs, from order of C. P. Lackawanna Co., Sept. T., 1904, No. 1,257, overruling exceptions to report of referee in, case of Alamanza Porter v. City of Scranton.</p> <p>Exceptions to report of S. B. Price, Esq., referee.</p> <p>Edwards, P. J., filed the following opinion:</p> <p>There is only one question in this case and the referee has correctly disposed of it.</p> <p>It appears that the city of Scranton in the construction of the viaduct on West Lackawanna avenue elevated the grade of the avenue in front of plaintiffs’ property from eight to eleven feet. Viewers were appointed and the plaintiffs were awarded $4,500 damages. Afterwards, by agreement, judgment was entered in favor of the plaintiffs for $4,000. At the time of construction of the viaduct and the change of grade of the street the plaintiffs were engaged in the junk business and the building erected on their land was adapted for that business. The referee has found .that the change of grade rendered the premises unfit, if not useless, for the business of the plaintiffs; at least it seriously affected its use for that purpose. Plaintiffs in the present action seek to recover for loss of profits, the evidence being that the profits were from $150 to $200 a month. None of the personal property , was taken or destroyed.</p> <p>The authorities cited by the referee sustain his conclusion. We need not go over them again.</p> <p>Now, April 29, 1907, the exceptions to the report of the referee are overruled and we direct judgment to be entered in accordance with the recommendation of the referee.</p> <p>Error assigned was the order of the court.</p>

<p>Fish law — Illegal device — Fish basket — Eels—Act of April 27, 1903, P. L. 319.</p> <p>Substituting a wire screen for slats in an eel basket, and having three-fourths of the bottom a permanent construction and immovable, is a violation of the Act of April 27, 1903, P. L. 319, which provides “that every basket so used shall be made of slats not less than one-half inch apart with a movable bottom which shall be taken out of each basket, so used, at sunrise, and be kept out until sunset.”</p> <p>' While the Act of April 27, 1903, P. L. 319, repealed all acts or parts of acts with which it is inconsistent, it must be treated as a part of the general system of regulating the catching of fish in the public waters of the commonwealth, and, as such, to be construed with the Act of May 29, 1901, P. L. 302, which by its title declares the species of fish which are game fish, and the species of fish which are commercially valuable for food, and also regulates the catching, and encourages the propagation of the same.</p> <p>To admit the use of an unlawful device, and at the same time contend that' the act was not violated because the fish taken were not of the species of game or food fish, is not consistent with the doctrine of the decided cases.</p>

<p>Husband and wife — Tort of wife — Execution against husband — Setting aside execution.</p> <p>The property of a husband is not liable to execution on a judgment recovered against a wife for tort, the husband not being a party defendant to the action. Where a husband’s property is levied upon, and the husband takes a rule to set aside the execution, the execution should not be set aside generally, but only as to the levy upon the husband’s property.</p>

<p>Appeal, No. 11, March T., 1908', by defendant, from order of Q. S. Dauphin Co., Jan. T., 1906, No. 57, discharging rule to remit forfeiture in case of Commonwealth v. Frank Harvey and the Title Guaranty & Trust Compáúy of Scranton.</p> <p>Rule to remit forfeiture of recognizance. Before Kunkel, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule to remit forfeiture.</p>

<p>Libel — Judicial proceedings — Publication—Newspaper—Malice—Damages — Reputation—Evidence.</p> <p>In general, reports of judicial proceedings, if fair, impartial and truthful, and there be no express malice, may be published without incurring •liability to action even though they give currency and publicity to defamatory accusations against individuals, which, otherwise, those accusations would not have.</p> <p>Publication of a report of proceedings in the orphans’ court are qualifiedly privileged; hence if a newspaper simply publishes a copy of the exceptions to the account of an administrator, the latter cannot recover from the proprietor .of the newspaper in an action of libel without proof of express malice.</p> <p>While it is true that it is not absolutely necessary that, the report of judicial proceedings be verbatim in order to entitle the publisher to set up the defense of privilege, yet if he undertakes to give an abstract of matters of record, such as exceptions to an administrator’s account, he is bound to publish an accurate, truthful and impartial abstract. If he uses words different from those used in the legal document to describe the allegations against the accountant, he must take care that the words he selects, the form in which they are placed, and the comments that he makes do not convey to the minds of ordinary readers an impression that the alleged wrongdoings of the accountant are more flagitious than the exceptions themselves show them to be. Failing in this, he forfeits his privilege and is liable to action as he would be if the charges he represents as having been made by the exceptant were made by himself.</p> <p>Where a newspaper publishes what purports to be an abstract of exceptions to an administrator’s account, and in the headlines and the preliminary statement it is said that the administrators had stolen and robbed from their father’s estate, and “then tried to cover their tracks by forgeries,” but the abstract of the exceptions shows that the words “stolen” and “robbed,” were not used in their strictly technical sense as implying larceny and robbery, it is not the duty of the court to charge the jury that they must take the publication to mean that the plaintiff had been charged in the exceptions with having committed crimes of larceny and robbery. If in such a case the public might and probably would, understand the article to mean that the administrators and the plaintiff conspiring together had fraudulently and by means of forgeries and other dishonest methods misappropriated the funds of the estate to their own use, it is the province of the court to construe the exceptions and determine what charges of misconduct they import. If the court finds that there is nothing in the exceptions which justifies the charge of forgery, it should state this finding to the jury and instruct them, that if they came to the conclusion that the publication would convey the impression to the minds of ordinary readers that the plaintiff had been guilty of forgery, then the defendant -had exceeded his privilege, the article was libelous and plaintiff might recover.</p> <p>The quality of an alleged libel as it stands upon the record, either simply or as explained by averments and innuendoes, is a question of law for the court, and in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true.</p> <p>If an article purporting to be an abstract of a judicial proceeding is not in fact a fair report of the proceeding, a republication of the article accompanied by the emphatic assertion that it was true in every particular, and other similar comments, tends to show that the first publication was not made through carelessness or inadvertence, and might be the basis of an inference that the defendant was actuated by actual malice. An instruction that the republication and the accompanying comments were not, in any aspect of the case, evidence from which the jury could infer actual malice, is error.</p> <p>WTiere an article alleged to be libelous is given a special prominence by the use of headlines, over many other articles, although not over all articles, the question whether the article was given an undue prominence is for tlie jury. The Act of May 12, 1903, P. L. 349, does not mean that special prominence over every matter published in the newspaper, is required.</p> <p>If a jury finds that an article in a newspaper was not a fair report of the judicial proceedings to which it related, that it was calculated to convey the impression to ordinary readers that certain exceptions referred to, charged plaintiffs with crimes which they did not charge, that special prominence was given to the article by the use of headlines, displayed type and other matter calculated to specially attract attention, and that the defendant was actuated by special malice against the plaintiff, it is within the province of the jury to award punitive damages, but they are not bound to do so. The question is for the jury under appropriate instructions by the court as to the findings of fact which would or would not support such award.</p> <p>Where a publication of a judicial proceeding does not purport to have been published upon information received from others, but upon defendant's knowledge of what the record contained, and the article is republished with emphatic assertion that it was truthful in every particular, it is not competent to show in mitigation of damages that another newspaper had previously published a substantially similar report of the same judicial proceeding. It is also irrelevant to show that the plaintiff had not published a denial of the article published in the other newspaper.</p> <p>In an action for slander or libel, where the general issue is pleaded, the defendant may show in mitigation of damages the general bad reputation of the plaintiff for the particular thing with which he was charged.</p>

<p>Criminal law — Reputation—Evidence—Charge.</p> <p>On the trial of an indictment for crime the defendant proved a good general reputation for honesty in the neighborhood where he had resided for thirteen months'prior to his arrest, by ten of his neighbors. On the question of reputation the court charged as follows: “Where one has, for a period of years, lived in a neighborhood and endeared himself to his neighbors, by leading an honest, righteous and upright life, that goes far toward assisting him at a time when his character may be called in question, and it is of great value, and should be eonsidered by a jury as a substantive 'fact.” Held, that the charge was misleading and erroneous inasmuch as the defendant was not required to show good reputation during a period of years, nor that he had endeared himself to his neighbors, nor that he had lived a righteous and upright life.</p>

<p>Will — Devise—Charge on land — Supply of hay to widow'to feed cattle.</p> <p>Where a testator charges land with an annuity iii favor of his widow for life, 'and further directs that the owners of the land “are yearly to put in the stable on the premises- occupied by my wife, so long as she remains my widow, as.much hay as she mqy need to feed one horse and two cows without.charge,” the.owners pf the land are not obliged to supply the widow with hay during a period when she does not reside on the land nor own of possess any of the animals named in the will.</p>

<p>Landlord, and tenant — Covenants—Lease—Seat and light — Eviction.</p> <p>If a landlord neglects and’refuses to furnish, heat an'd light which1 his covenants require him to furniáh, and the premises'are thereby rendered unfit for occupancy, the law will not require'the tenant .to first pay the rent, and then sue for damages .suffered by the landlord’s breach of his covenants. , • , ,</p> <p>Physical expulsion is not now considered necessary to constitute’ an. eviction. Any act of a landlord which deprives his tenant of'' that beneficial enjoyment of the premises to which he is entitled under' a lease, will amount in law to an eviction and suspend the rent. ■' .</p> <p>Landlord and tenant — Covenant—Removal of garbage — Inducement— Parol evidence — Evidence.</p> <p>A tenant may set up against his landlord a parol agreement of the latter in reference to the removal of'garbage, if ¡he'shows that the parol agreement was made at the time of the execution of. the lease, that it was one of the moving considerations for its execution, and that with-r out it the lease would not have been executed.</p>

<p>Road law — Notice of street opening proceedings — Mortgage—Payment of damages to owner — Eminent domain.</p> <p>Where a city condemns a street through land covered by a mortgage, in proceedings under the Act of May 16, 1891, P. L. 76, and damages are paid to the owner without objection by the mortgagee, and thereafter the land is sold by the sheriff m foreclosure proceedings, and the mortgage paid in full, the purchaser at the sheriff's sale has no standing to enjoin the city from proceeding with the physical opening of the street on the ground that personal notice of the street opening proceedings had not been given to the mortgagee.</p> <p>In such a case the purchaser at the sheriff’s sale acquired the title of the defendant in the execution, and no more; a part of the land under the sovereign power of the state having been previously appropriated for public purposes. Even if the purchaser possesses the rights of the mortgagee he stands in no better position than the mortgagee, and as the latter was paid in full, and is not complaining, the purchaser has no standing to complain of the lack of notice.</p> <p>In proceedings under the Act of May 16, 1891, P. L. 75, a mortgagee is not entitled to receive actual notice, or be made a party to the proceedings, since the mortgagee is not the owner of the land.</p> <p>When land is taken for public use it is not the record title that is acquired, nor is it any person’s title, but the land itself, irrespective of record or other ownership.</p> <p>A mortgage executed after the passage of the law of May 16, 1891, P. L. 75, relating to the opening of streets is subject to that act, inasmuch as all the laws of the state existing at the time a mortgage was made which affect the rights of the party to the mortgage, enter into and become a part of it and are obligatory upon all courts which assume to give a remedy on such a contract.</p>

Appeal, No. 161, April T., 1908, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1907, No. 144, making absolute rule to open judgment in case of C. Webster v. Elizabeth Smith and John T. Smith. Rule to open judgment. MacFarlane, J., filed the following opinion: In the month of September, 1905, the defendant made a note to plaintiff for “about $625.” She actually received in cash $500. No explanation is given as to the balance.

Appeal, No. 163, April T., 1908, by plaintiffs, from order of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 171, discharging rule for judgment for want of a sufficient affidavit of defense in case of Allan C. Bakewell and Thomas W. Bakewell, executors of the last will and testament of William Bakewell, deceased, v. G. E. Turner. Assumpsit for rent. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 198, April T., 1908, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1908, No. 527, for defendant non obstante veredicto in case of Henry Lohrey v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for the destruction of a wagon and its contents and for injuries to a horse.. Before Carnahan, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $329.46. The court subsequently entered judgment for defendaut non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 208, April T., 1908, by defendant, from order of C. P. No. 4, Allegheny Co., Second Term, 1908, No. 201, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Central Typesetting Company v. Frank L. Ober.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No., 132, April T., 1908, by defendants, from judgment of C. P. No. 1, Allegheny Co., March T., 1905, No. 931, on verdict for plaintiff in case of Mary Patton v. The Allegheny Loan & Trust Company and H. Thomas. Appeal from judgment of justice of the peace. Trespass against the defendants as joint tort feasors, for wrongfully taking and carrying away plaintiff’s goods. Before MacFarlane, J. Verdict and judgment for plaintiff for $106.

Appeal, No. 98, April. T., 1908, by the Moxham and Ferndale Bridge Company, from order of Q. S. Cambria Co., Sept. T., 1906; No. 108, dismissing exceptions to report of viewers, In re Condemnation of Moxham and Ferndale Bridge. Exceptions to report of viewers.

Appeal, No. 233, April T., 1908, by plaintiff, from judgment of C. P. Clarion Co., May T., 1908, No. 11, for defendant on case stated in suit of Clarion County v. Clarion Township. Case stated to determine the liability of a township for the repair and maintenance of an abandoned turnpike road. The court in an opinion by Wilson, J., entered judgment for defendant on the case stated. Error assigned was in entering judgment for defendant on the case stated.

Appeal, No. 16, April T., 1908, by plaintiffs, from order of C. P. No. 2, Allegheny Co., April T., 1907, No. 579, making absolute rule, to open judgment in case of H. L. Gain and E. S. Romine, trading as Gain & Romine, v. Jacob Steinberger. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was order opening the judgment.

<p>Appeal, No. 145, April T., 1908-, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 89, on verdict for plaintiff in case of Theresia W. Kalin v. Andrew Wehrle.</p> <p>Assumpsit for money alleged to have been stolen. Before Brown, P. J.</p> <p>The court charged in part as follows:</p> <p>This is an action brought by Mrs. Kalin against her brother, Mr. Wehrle, to recover $672.50, with interest from about January 25, 1891. She alleges that that sum of money was in her possession in the home where they both lived, and on Sunday, while at church, it was taken by the defendant.</p> <p>He admits that he took the money, but he alleges that it was partnership money. She insists that it was her own money. He alleges that there was no concealment about the taking of it; that the next day he told his sister about it. That is his story. He further sets up two lines of defense to the recovery of this money. First, that he has paid the amount to his sister; that it was partnership money, and in a partnership settlement made some time in July, 1891, that this money which is claimed by the sister to have been taken from her bureau was actually included in a settlement. He also alleges that the plaintiff cannot recover because her claim is barred by the statute of limitations.</p> <p>First, as to the statute of limitations. We have a law in Pennsylvania that where one claims another is indebted to him he must bring his action within six years from the time it became due, and if he failed to do that it is a bar to recovery — not upon the ground that it is paid, but upon the ground of a legal payment.</p> <p>The policy of the law with regard to the statute of limitations is based upon the idea that important witnesses may die or important papers may be lost. If you want to collect a debt, you must bring your action within six years. If you do not, then you run the risk of having the defendant set up the fact that it is more than six years old, and that, therefore, there can be no recovery. That is the law in Pennsylvania, and that is the law that governs business under certain conditions.</p> <p>The law, however, is fair, and as against that the law says if the failure to bring the action within six years from the time the money was taken was the result of some fraud perpetrated by the defendant, some act of his, an act of concealment, some criminal act, covering it up from her and putting it in such shape that she could not determine whether he was the right party, and she did not learn with certainty that he was the right party until twelve years after, then the six years is not a bar. The six years would not be a bar here if she did not actually get knowledge that he was the party until twelve years afterwards, because that brought it down to about 1903. This action was brought in 1903, so that it then would have been brought in time. If she knew within six years from the time she lost it that that money was taken by her brother, if the testimony satisfies you that she knew that, but failed to bring the action, that is a bar to her claim here. If she did not know it, by reason of concealment on his part, not only concealing it himself, but getting others to conceal it for him — if this whole line of conduct was concealment — then she would- have six years from the time of discovery within which to bring suit. If that is the situation, then she brought this suit in time.</p> <p>Verdict and judgment for plaintiff for $1,344.50. Defendant appealed.</p> <p>Errors assigned were in the following form:</p> <p>First Assignment of Error: The court erred in permitting appellee to testify to matters contained in a memorandum -which was not made by the appellee, or at her direction.</p> <p>Second Assignment of Error: The court erred in permitting counsel for the plaintiff, in the course of his address to the jury, to make the following remarks, which the court did not correct:</p> <p>(a) “The defendant denied in his affidavit of defense filed that he took the money, and afterwards admitted that he took it.”</p> <p>(b) Also, “That the affidavit of defense was not a denial of the statement of claim, and that there was only a technical denial,” when in fact the original affidavit of defense as filed was a complete denial and defense to the statement, which statement erroneously set forth the date as being January 25, 1901, instead of January 25, 1891, which mistake on the part of the 'plaintiff was subsequently corrected, and which change compelled defendant to file an amended affidavit of defense, ■which should not have been commented upon before the jury.</p> <p>(c)'' Also in commenting to the jury upon the alleged statements of the mother of both plaintiff and defendant, who was not a witness at the trial (whose testimony was therefore hearsay), and also the statement which implied that plaintiff was not of good character or honest, by using the following language: “That the poor old mother, who was dead, did not want the defendant sued, which would have made him out a thief, and that is the reason that this suit was nevér brought ■before, and many people come into court looking very innocént, and yet they are thieves at heart.”</p> <p>>" (d) The improper and irrelevant remarks of counsel for the plaintiff unduly prejudiced the minds of the jury.</p> <p>Third Assignment of Error: The court erred in refusing appellant’s motion for a continuance of the case for the reason that the material witness for appellee, Fred Schwitter, who is a brother-in-law of the appellee, was also a juryman in tie same panel, which motion and the refusal of the same is as follows :</p> <p>“And now, to wit: September 16, 1907, on motion of Hern and Leahy, attorneys for defendant, the above case is postponed until the present jury panel is finished, on account of Fridolin Schwitter being a juryman, No. 50, on said panel, and' ■is also a witness for the plaintiff in this case. ' That’ on account of the same, there may be some question as to the fairness of the trial. Refused.</p> <p>Fourth Assignment of Error: The court erred in failing to call the jury’s attention to the many inconsistent and' contradictory statements of the appellée concerning her knowledge of the time at which the money was taken.</p> <p>Fifth Assignment of Error: The court erred in permitting a recovery on a sum in excess of $200 and interest, as appellee testified this was the only money she had of her own and the rest of the money was partnership funds.</p>

<p>, Waters — Obstruction of stream — Overflow of banks — Gas pipe — Gas company — Question •for jury — Negligence.</p> <p>In an action by an owner of property in a house against a gas company to recover damages for injuries to the property by the backing of water on the property from a stream, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the municipality in which the property was situated had provided a sufficient vent under a city bridge, but that the defendant had suspended a gas pipe of from four to six inches in diameter between the bed of the stream and the bottom of the bridge, and that this pipe at a time of high water caught the debris, and backed the water on plaintiff’s premises causing the injuries for which suit was brought.</p> <p>In such a case if the pipe contributed in any substantial way to the damage, it was sufficient to make the defendant liable; and this is so even if the flood was an extraordinary one.</p>

Appeal, No. 1, Oct. T., 1907, by-plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1903, No. 3,607, for defendant non obstante veredicto in case of Charles J. Blair v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Barratt, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,000. The court subsequently entered judgment for defendant non obstante veredicto.

Appeal, No. 194, Oct. T., 1907, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 2,034, making absolute rule to open judgment in case of Stanislaw Zajaczkowski v. A. E. Jawer. Rule to open judgment. The opinion of the Superior Court states the case. • Error assigned was order making absolute rule to open judgment.

Appeal, No. 147, Oct. T., 1907, by Victorine H. Brooke, from decree of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 3,968, dismissing exceptions to auditor's report in the estate of James Henry Brooke, lunatic. Exceptions to report of Benjamin Daniels, Esq., auditor. The opinion .of the- Superior Court states the case. Errors assigned were in.dismissing exceptions to the referee’s report.

Appeal, No. 148, Oct. T., 1907, by Victorine H. Brooke, from decree of C. P. No. 1, Phila. Co., ■March T., 1903, No. 1,194, dismissing exceptions to auditor’s report in estate of James Brooke, trust for James Henry Brooke. Exceptions to auditor’s report. The facts are stated in the opinion of the Superior Court. . Error assigned was in dismissing exceptions to auditor’s report.

Appeal, No. 149, Oct. T., 1907, by Victorine H. Brooke, from decree of C. P. No. 1, Phila. Co., March T., 1903, No. 1,195, dismissing exceptions to auditor’s report in estate of James Brooke, trust for James Henry Brooke. Exceptions to auditor’s report. The opinion of the Superior Court states the case. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Appeal, No. 204, Oct. T., 1907, by defendants, from order of C. P. Schuylkill Co., May T., 1907, No. 29, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Eureka Knitting Company, Limited, to the use of Harry Deibert, to the use of John A. Sprenger, v. Charles P. Snyder and Wm. Seifert, trading as Snyder & Seifert.</p> <p>Replevin for a boiler and engine.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. ■</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Corporations — Officers—Foreign corporations — Registration—Bond— Individual liability of officers.</p> <p>The officers of a foreign corporation not registered in Pennsylvania, cannot be held individually liable for money paid for a bond of the corporation, where it appears that although they signed the bond in their official capacity, they did not sell, negotiate or deliver the bond, nor receive the money, and that when'the bond left their hands it was without validity because it was not certified by the trustee of the mortgage..</p> <p>The incorporators and members of a foreign unregistered corporation are not liable as partners for the debts of the corporation.</p> <p>When the execution of a contract is by written obligation, or sealed covenants, the agent signing it cannot be sued upon the instrument itself, unless there be apt personal, contractual words of his own, or he signs it as his own.</p>

<p>Equity — Equity jurisdiction — Equitable assignment — Multiplicity of suits — Accounting. /] A</p> <p>Where a building (Mmfcractor assigns moneys due him from the/mer, and the assjgnuq notifies the owner, the ; ' ment is an equitable assignment, afrcFnas priority over an earli ¡ignment as to which no signments are followed by attachments against the moneys due by the owner to the contractor, and the fund is not sufficient to pay all of the ity against the' ownerHaaid the other claimants, for an accounting, and for a distribution of the fund. In such a case the remedy-in-equity-is jnore convenient aq.d. adequate, and the assignee will not be driven to his remedy at law. notice had been given to the owner. In a case where the two as-claims, and has notJn fast been definitely-ascertained as to amount, the owner of the equitable assignment having priority, may file a bill in equiSSl</p> <p>Constitutional law — Mechanics’ liens — Attachment execution — Act' of June 4, lfiOl^P. L. 431.</p> <p>The provisions of the Act of June 4, 1901, P. L. 431, which gives to a subcontractor or material man the right to issue an attachment execution against the owner or other party indebted to the contractor for labor or materials furnished, is special legislation in favor of a special class of creditors, and offends against art. 3, sec. 7, of the constitution which forbids the general assembly from passing any local or special law “ providing or changing methods for the collection of debts, or the enforcement of judgments.”</p>

<p>Appeal, No. 195, Oct. T., 1907, by-defendant, from order of Q. S. Delaware Co., Sept. T., 1906, Miscellaneous Quarter Sessions Book, C. P. 263, affirming judgment of summary conviction in case of Yeadon Borough v. John J. White.</p> <p>Appeal from summary conviction. Before Johnson, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 17, April T., 1908, by defendant, from judgment of 0. & T. Westmoreland Co., Feb. T., 1907, No. 12, on verdict of guilty in case of Commonwealth v. F. R. House. Indictment for assault and battery. Before McConnell, J. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 107, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 1,541, on verdict for plaintiff in case of Jacob D. Weiss v. Swift & Company.</p> <p>Assumpsit to recover damages for breach of an implied warranty in the sale of eggs. Before Carr, J.</p> <p>Carr, J., charged in part as follows:</p> <p>The question is whether there was a sale by sample or by inspection. The plaintiff claims there was a sale by name or description and also by sample, as well as an express agreement on the part of the defendant that they would not deliver musty eggs, or cases of musty eggs. That is to say, in a sale by sample, the law declares that there is an implied agreement on the part of the seller to deliver articles of the same quality, that is, of the same character and of the same kind as the sample which was shown when the bargain or sale was made. If you believe that was the contract of sale between these parties, and if you believe that in January, when the breach of the contract to deliver came, that the cases of eggs that were offered to be delivered to the plaintiff were not up to the sample but were musty, then the plaintiff is entitled to recover and he is entitled to recover these figures which have been mentioned before you, $120 and $140, making $260, less $9.90.</p> <p>Now, on the other hand, the claim on the part of the defendant is that this was a sale by inspection of the bulk of the articles, and while a sample was produced of twenty cases or five cases or ten cases, still the plaintiff had the opportunity to examine the bulk of the eggs he was buying, and, therefore, it was a sale by inspection. Not only that, but they claim before you that it was a sale of so many case counts, that is to say, it is the usage and custom of the trade that when a sale of eggs was made by case count, that the plaintiff was obliged to take and receive whatever was in those particular cases, no matter whether they were rotten eggs or musty eggs or whether they were below the sample of the eggs he had examined or below the quality of the bulk of the articles he had inspected. Therefore, the question before you is, which is the .truth upon that point? Now you will remember the plaintiff’s testimony that after he had seen the samples produced on the sidewalk in the twenty or forty cases from the carloads of No. l’s, he went with Bressler, the employee of Swift & Company, and examined the two carloads, and then not content with that, but upon the following day when he found the cases had been delivered to the cold storage warehouse, and he then knew he could make no further examination of them, before he said, “ I will take these eggs,” he had the promise on the part of Collins that if there were any musty cases of eggs, that he should not be compelled to receive them. Now that is the nerve of this case, because if you believe that, the plaintiff is entitled to recover, if you find that afterwards, and it is not denied here, that the eggs were musty when they came to be delivered in December and January.</p> <p>Plaintiff presented this point.</p> <p>1. It is also the law of this state that in every sale of merchandise used wholly or in part for food, the goods or merchandise shall correspond in kind and quality with the description given, either orally or in writing, by the seller, and in every such sale of goods, unless the parties agree otherwise, there shall be an implied contract or undertaking that the goods or merchandise are sound and fit for household consumption. Answer: Affirmed. [2]</p> <p>Defendant presented this point:</p> <p>1. If the jury find from the evidence that the eggs were purchased outright and that no arrangement was made at the time of the execution of the contract for the return of any of the eggs should they become moldy or unmerchantable, then the mere fact that the defendants agreed to help Weiss out of his loss did not put any obligation upon defendant to do so because the arrangement or agreement was without consideration and, therefore, not binding bn the defendant. Answer: That point is refused as it assumes there was no consideration. It may have been a consideration which was to the benefit and advantage of the defendant that such an arrangement should go through. [3]</p> <p>Verdict and judgment for plaintiff for $277.31. Defendant appealed.</p> <p>Errors assigned were (2, 3) above instructions, quoting them.</p>

<p>Appeal, No. 89, Oct. T., 1907, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 2,538, making absolute rule for judgment for want of a sufficient affidavit of defense in case of James N. Stetson, trading as James N. Stetson Son & Company, v. Sun Co.</p> <p>Assumpsit to recover on a contract to secure an option.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals — Assignments of error — Evidence.</p> <p>When error is assigned to the admission of evidence the specification must quote the testimony or evidence admitted, if any.</p> <p>Husband and wife — Necessaries—Contract of wife — Evidence.</p> <p>While the fact that the premises occupied by husband and wife, to which articles of food and other domestic supplies are furnished, are owned by the wife, does not determine the question of her liability for the price, it is nevertheless a relevant fact to be considered in connection with other evidence tending to show a personal undertaking on her part.</p> <p>In an action against a wife to charge her personally with necessaries, the case is for the jury, where the evidence produced by the plaintiff consists not only of testimony that the wife was present on the occasion of the purchase and picked out the goods, but of testimony as to her declarations and subsequent acts, and as to the circumstances of the parties from which it could be inferred that she was acting in her own right, and intended to bind herself in making the purchase, and the plaintiff delivered the goods upon that understanding.</p> <p>No recovery can be had against the wife in such an action where the evidence is undisputed that the husband alone was present when the goods were bought, and there is no evidence that they were ordered by the wife, nor evidence to overcome the prima facia presumption that the husband bought the goods in the performance of his duty to maintain the family, and upon his own credit.</p>

<p>Appeal, No. 157, Oct. T.,-1906, by defendants, from decree of C. P. Berks Co., ‘Equity Docket 1901, No1. 792, on bill in equity in case of George P. P. Scholl v. Levi Emerich et al.</p> <p>: Bill in- equity for an injunction and for an account. Before Endlich, J. ■</p> <p>The facts appear by the opinion of the- Superior Court. •</p> <p>' Error assigned was the decree of-the court, as set forth in the opinion'of-the Superior Court.'</p>

<p>Appeal, No. 58, March T., 1908, by plaintiff, from judgment of C. P. Luzerne Co.., Oct. T., 1905, No. 1,067, on verdict for defendant in case of Teresa McGuire v. The City of Wilkes-Barre.</p> <p>Trespass for an alleged wrongful invasion of plaintiff’s property. Before Halsey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 7, Jan. T., 1908, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1905, No. 511, on verdict for plaintiff in case of Annie Gates v. Richard Little.</p> <p>Trespass for libel.</p> <p>At the trial it appeared that the article for which suit was brought charged a woman, not named, as being a prostitute.</p> <p>■ The court admitted under objection and exception evidence of facts-and circumstances- which tended to identify the plaintiff with the person mentioned in the article. [,2] - .</p> <p>The court also admitted under objection and exception, evidence that acquaintances of plaintiff after reading the article had ceased to call upon her, and no longer employed her for sewing. [3, 4]' ;</p> <p>Verdict and judgment for plaintiff for $372. Defendant appealed.</p> <p>Errors assigned were (1) refusing to arrest judgment; (2-4) rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 53, March T., 1908, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1907, No. 1,159, on verdict for defendant in case of John F. Walsh to use of Commonwealth v. Luzerne County. Case stated to determine liability for a fee for serving a criminal warrant. Ferris, J., filed the following opinion: The facts as agreed upon are as follows: 1.

<p>Fish law — Navigable streams — Posting land by owner — Act of March 26, 1814, 6 Sm. L. 187, May 29,1901, P. L. 302 and April 14,1905, P. L. 169.</p> <p>The Lackawaxen creek which was declared by the Act of March 26, 1814, 6 Sm. L. 187, a public highway “for the passage of rafts, boats and vessels,” but which is not in fact navigable for rafts, boats and vessels, is not a stream in which public fishing is permitted, as provided by the the Act of May 29, 1901, P. L. 302; and if the owner of the bed.of the creek duly posts it in compliance with the Act of April 14, 1905, .P. L. 169, a person fishing therein, is liable to the penalty provided by the latter act.</p>

<p>Appeal, No. 46, March T., 1908, by defendant, from judgment of C. P. Columbia Co., Dec. T., 1906, No. 26, on verdict for plaintiff in case of Emma F. Goodhart v. The Columbia & Montour Electric Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, P. J.</p> <p>The facts are'stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $950. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 143, April T., 1908, by defendant, from order of Q. S. Lawrence Co., June T., 1907, No. 101, sustaining summary conviction in case of City of New Castle v. John Cummings.</p> <p>Appeal from summary conviction. Before Wm. E. Porter, P. J. ■ '</p> <p>The opinion of the. Superior Court states the facts.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals — Summary conviction — Transcript of magistrate’s record.</p> <p>The Superior Court will not reverse the action of the court below in refusing a defendant’s petition for the allowance of an appeal from a summary conviction before a magistrate, where the transcript of the magistrate’s record is not produced for the consideration of the appellate court.</p>

<p>Appeal, No. 141, Oct. T., 1907, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1906, No. 1,741, on verdict for plaintiff in case of Heinrich Ewald Buchholtz v. George Barrie, George Barrie, Jr., Robert Barrie and Alexander Barrie, trading as George Barrie & Sons.</p> <p>Assumpsit for services rendered in writing two books. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $663.05. Defendants appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 26, March T., 1908, by defendant, from judgment of C. P. Luzerne.Co., May T., 1906, No. 430, on verdict for plaintiff in case of Mary Gill v. The Ladies Catholic Benevolent Association.</p> <p>Assumpsit on a benefit certificate. Before Halsey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $548.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 27, March T., 1908, by defendants, from judgment of C. P. Luzerne Co., May T., 1906, No. 430, on verdict for plaintiff in case of Mary Gill v. The Ladies Catholic Benevolent Association.</p>

Appeal, No. 5, March T,, 1908, by plaintiff, from judgment of C. P. Sullivan Co., Feb. T., 1905, No. 46, on verdict for defendant in case of El Dorado Jewelry Company, formerly Elgin Jewelry Co. v. August Hartung. Assumpsit to recover for goods alleged to have been sold and delivered on an order. Before Terry, P. J. The opinion of the Superior Court states the case. Errors assigned were various rulings on evidence and instructions.

<p>Appeal, No. 39, Oct.’ T., 1907, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 2,883, on verdict for plaintiff in case of Albert Caldwell et al., trading as J. E. Caldwell & Company, to the use of J. Albert Caldwell et al., trading as J. E. Caldwell & Company, v. United States Express Company.</p> <p>Assumpsit to recover for loss of package of jewelry. Before Stáake, J.</p> <p>The court charged in part as follows;</p> <p>Now, the claim in this case as you know is brought by the firm of J. E. Caldwell & Company, the well-known jewelers of this city, against the United States Express Company, and it is to recover the value of one sapphire ring, $100, one ruby ring valued at $100, one diamond ring valued at $170 and another ring of the value of $145, making the total $515. They aver that they are jewelers and silversmiths engaged in business in Philadelphia and that the defendant is a common carrier engaged in the transportation of merchandise and valuables, and it is admitted by both sides that on January -5, 1903, such a package as has been described to you was given into the care of the defendant company to be conveyed to the firm of Caldwell & Company, in the city of Philadelphia. Therefore, there is no question in the ease as to whether the express company did receive the package and 'that the package was consigned to J. E. Caldwell & Company, Philadelphia. It is rather singular to the court that in the trial of this case we are left absolutely without any information as to what was paid by anybody for the actual handling of this particular package; whether it was a large amount or a small amount. My recollection is that there is no testimony upon that point, but of course if I am wrong in this your better recollection will correct me, as you must determine what the facts are in the case. The receipt in evidence fails to show us what was paid, and I recollect no testimony regarding that point.</p> <p>Now, the court charges you that a common carrier cannot, of its own volition, by simply printing terms or conditions, limit such liability as it would otherwise have in a case of this kind. A familiar instance of that is the ordinary case of the attempt of a railroad company to limit its liability by imposing conditions sometimes printed upon its tickets. A common carrier cannot so limit its liability. Therefore, so far as the mere limiting of its liability to the sum of $50.00, if the value is not given, the court charges you as to that, that such limitation is not available as a defense in this case, but there comes a further defense which is, after all, the important question, which I will leave to you to determine, and that is, whether in this transaction, in the delivery of this package by Mrs. Richmond L. Jones, in the city of Reading, at her home on Fifth street, there was such a disguising of the package, suph efforts at concealment, as made the conduct of Mrs. Jones at that time a fraud upon the express company.</p> <p>It. is admitted as I understand from the argument of the learned counsel for the plaintiff, that if there had been a wrapping of a small package in a large piece of cloth, as was the fact in one of the cases submitted by counsel for defendant, and this was handed over to the express company as an ordinary piece of merchandise, with the intention of concealing the fact that in the interior recesses of that package there was a valuable diamond ring or any article of that kind, that, undoubtedly, would be an intentional effort to deceive the company as to the contents, or the nature of the package which the company was asked to carry: There are two things which you must consider in determining whether there was or was not such a fraud committed in this particular case. One of those things is the nature and character of the package in question. The other is, what actually took place, in connection with the delivery of the package. [It was undoubtedly the duty of the common carrier in this case to inquire as to the contents of the package, to ask for a declaration of value. Now, what did actually transpire? Of course, the best evidence is possibly the testimony of the lady herself, who shipped the package, and she tells you in the evidence that has been submitted to you:] [5]</p> <p>“Q. Did you ship this package yourself? A. I gave it to Harvey, my butler. Q. Did you give him any instruction about declaring the value to the express agent? A. No, sir, I did not. I never do. In fact, I am often not here when the package is given to the expressman. Q. As a matter of fact, didn’t you tell your butler not to declare a value upon the package, as requested in Caldwell & Co.’s memorandum? A. No, sir, I would not have done that. I didn’t think they meant anything of that kind. I thought it was for my accommodation, so I wouldn’t have any bother about it, Q. I just want the fact as to whether you did or not. A. No, sir. If I had been asked, of course I would have put the value on; if anybody had asked me, if Harvey had asked me, of course I would have put the value on it. Q. But you did not in point of fact? A. I did not. Q. You did not have any conversation with the express agent for this package, did you, about shipping the package? A. No, sir. I was upstairs. I don’t think anybody did. Q. Will you kindly describe how this package was wrapped? A. When they sent it they had it wrapped and sealed, sealing-wax with their seal on it; but of course that is always too much trouble for me, I wouldn’t do that, so I kept the same paper, and wrapped it up the same way, and tied it with the same twine, or just exactly as it was, only it wasn’t sealed like they sent it; but I never seal anything. Q. Was there 'anything on the wrapper as you sent it to denote the value of the package? A. No, sir, there wasn’t except the name; that would be a temptation to a great many people. I thought since you are speaking about it, that wouldn’t make much difference to them, because everyone knows their name and the business they are in. But I never knew there was any danger in express companies; I thought that when I gave it to an express company it was safe; I was surprised. Q. Do you know whether or not this package was delivered to J. E. Caldwell & Co.?”</p> <p>The answer to that question is not very important. It is admitted that the package was not delivered, and was never found, although you have heard what efforts were made by the express company to locate it. The company’s memorandum spoken of by Mrs. Jones was the memorandum which has been referred to saying that in returning these goods she was not to place any value on them, as all their goods were insured.</p> <p>Mrs. Jones handed the package to her butler, Harvey Scott, and he testified:</p> <p>“Q. Do you remember handing to the express agent of the U. S. Express Co. who called here on January 5, a package addressed to J. E. Caldwell & Co., Phila.? A. I do, yes, sir. Q. Who gave you that package? A. Mrs. Jones. Q. What did she say to you when she handed it to you? A. Before the man came, she told me to telephone to the U. S. Express Co., which I did, and they came, and of course the package and basket at the same time were ready when they called. Q. About what time of the day was this when they called? A. Well, as near as I can tell, I suppose between ten and eleven o’clock, around that time; I couldn’t say exactly what time it was. Q. Did you know the contents of the package to be shipped to Caldwell & Company? A. No, sir. Q. Did Mrs. Jones say anything to you about answering the driver’s question, if he would make any, as to the value of the contents? A. No, sir. Q. Didn’t she instruct you not to declare the value of the package to the driver if he asked for the same? A. No, sir, not at the present time. Q. What do you mean by that, at the present time? A. Well, when I first came to the house Mrs. Jones always told me what to do in regard to sending packages, that is, in taking the receipt and so on. Q. Did she give you any general instructions, then, about not declaring the value of the package? A. No, sir. Q. Did you declare a value on this package shipped to Caldwell & Co.? A. No, sir. Q. Was there anything said about the package which would denote that it was a valuable one? A. I couldn’t say that. I simply took the package from Mrs. Jones and took it right to the door. I never looked at it, as far as denoting the value of the package is concerned; I saw it was Caldwell & Co., and that is all.”</p> <p>The man Hain who signed the receipt says: “At the time, I was driving a team extra just for a few days and that is the reason I recall it. I was on the team that delivers goods from the city office to the depot, and all such goods are waybilled out of the city office and put off at the platform.”</p> <p>This witness described the package and I think we may say that it has been generally described as a package about six by four inches in size and two inches deep. Hain says that he went to 105 North Fifth street and “brought an empty basket and a package — an ordinary looking package wrapped up in dark brown paper. It didn’t look to me as if it was anything valuable. It was an ordinary small package about that big square” (indicating).</p> <p>This witness further says: “I wrote the receipt and asked them if there was any value on it and the colored man told me that Mrs. Jones said they need not — or the Mrs. said you need not place any value on it — so I gave him the receipt and just simply run my pencil through the receipt where the value is. I should have put ‘Value asked and not given/ but I didn’t do that. I took the package and basket to the office at the depot.</p> <p>“Q. Was there any evidence of sealing wax on the wrapping paper? A. No, not the slightest. Q. The only thing written on it was J. E. Caldwell & Company? A. Yes. Q. Did you know at that time who J. E. Caldwell & Company were? A. No, at that time I didn’t know who they were.”</p> <p>That testimony, gentlemen, you will recollect in connection with the testimony of Mr. Lilly and Mr. Campbell who said that when they interviewed Mrs. Jones she said that she did not put any value on the package because it had been suggested to her that it was «not necessary to put any value on.</p> <p>[I shall leave the question entirely to you in this case, to determine whether under the facts as you have heard them testified to, there was in what transpired at the time of the actual delivery of this package between Mrs. Jones and Harvey Scott and Harvey Scott and the driver, or in the manner of wrapping up this particular package, such evidence as satisfies your mind that there was a deliberate and intentional effort upon the part of J. E. Caldwell & Company, the original shippers, or on the part of Mrs. Jones, so far as she represented them in sending this package back to Caldwell & Company, an intention to defraud.] [6] That is, whether the facts amount to a fraudulent concealment of things which this company ought to know. If you find that the evidence does satisfy your minds that there was a fraudulent concealment, and that the company was thereby defrauded, I charge you that your verdict should be for the defendant. If, on the other hand, you believe that this package, wrapped as it was, in exactly the same box, the same paper, tied with the same twine or string, and lacking only the sealing-wax — was not such a fraudulent concealment of facts Which this company ought to have known, then you will be warranted in finding a verdict for the plaintiff.</p> <p>Verdict and judgment for plaintiff for $425. Defendant appealed.</p> <p>Errors assigned among others were (1) refusal to strike out testimony referred to in the opinion of the Superior Court; (5, 6) above instructions, quoting them; and (19) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 237, Oct. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., on verdict for plaintiff in case of S. G. Seligman, trading as Seligman & Co., v. J. W. Beecher.</p> <p>Assumpsit for goods sold and delivered. Before Marr, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[If, after going over this evidence, you conclude that there has been a breach of this contract, if you find the contract was that there were to be 240 cars of lumber shipped by Mr. Seligman to Mr. Beecher during the year 1905, and that the monthly order was to be twenty, that whilst the monthly order was not given for twenty, yet Mr. Beecher’s explanation for not giving more is a proper one, and that his complaint is justified by the fact that the orders he did give Mr. Seligman were not filled, and therefore it was no use to give him more orders; that Mr. Beecher was complaining month after month to Mr. Seligman that his orders were not being filled, and that he would hold him responsible for any damages arising from that, if you find that is correct, and that there was neglect on the part of Mr. Seligman in 'filling the orders and shipping the timber, then you would be justified in saying that Mr. Seligman committed a breach of this contract, and the question then arises, what damages did Mr. Beecher suffer from that breach?] [1]</p> <p>[Take all of this evidence into consideration as to whether or not there was a breach of this contract on the part of Mr. Seligman, in other words, whether Mr. Seligman was neglecting to ship the prop timber as ordered by Mr. Beecher in what is called a fair, reasonable time. The orders would go to Mr. Seligman in Tamaqua; Mr. Seligman would have to send them down to Virginia. Then it would take some time before this timber could be brought out of the woods and shipped. That is apparent to every person. The question is one for you, whether Mr. Seligman did ship this timber in a reasonable time after it was ordered, or whether he let it hang to such an extent that Mr. Beecher was compelled, in order to protect himself, to go into the market and buy timber from other people or bring the timber from his own tract of land. After Mr. Seligman got these orders it was his duty to exercise reasonable diligence in sending them immediately to his camp in Virginia, or wherever he obtained his timber, then it was his duty to see that the men there promptly filled the orders. That is what his contract called for. And in carrying out that duty it is proper that he should have filled them in what might be called fair, reasonable time. The defendant contends that he did not do that, that five, six, seven, eight weeks, sometimes two or three months would pass by and yet the orders were not filled, that Mr. Seligman shipped just as he saw fit and for reasons best known to himself. This becomes a very important question in this case, because if Mr. Seligman after he received those orders did not fill them properly and shipped the timber in what you may consider a fair, reasonable time, and Mr. Beecher then was compelled, in order to keep his contracts with the collieries, to go into the market and buy timber from other people, or to go onto his own timber lands, wherever they were, and bring timber from them, then there would be a breach of this contract by Mr. Seligman, unless he gives some fair, reasonable explanation why it was not done. That is a question for you entirely.] [2]</p> <p>[It is for you to say if Mr. Seligman committed a breach of his contract in supplying this lumber what damages Mr. Beecher suffered; it is not for the court to say. Take into consideration the estimates given to you by the gentlemen on both sides. It is for you to say which is correct. If you find Mr. Beecher has suffered damages by the negligence and refusal of Mr. Seligman to carry out his contract, then how much is it? Take up these different estimates and you can adopt one or adopt the other or you can adopt such estimate of the damages as you think proper.] [3]</p> <p>Verdict and judgment for plaintiff for $605.19. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 186, Oct. T., 1907, by defendant, from judgment of C. P. Delaware Co., June T., 1906, No, 206, on verdict for plaintiff in case of John A. Wood v. Chester Traction Company.</p> <p>Trespass to recover damages for- personal injuries. Before Johnson, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $725. Defendant appealed.</p>

<p>Equity — Equity jurisdiction — Discovery—Action at law — Demurrer— Fraud.</p> <p>A complainant in a bill in equity who was a defendant in an action at law has no standing to maintain a bill for discovery only, where it appears that he voluntarily, and to protect his interest terminated the action at law by paying the debt, interest and costs; nor is such a complainant entitled to a decree consolidating the action at law with the bill.</p> <p>Where a defendant in an action at law in order to protect his leasehold estate pays the debt, interest and costs, and does this voluntarily, and without having been subjected to fraud or duress, he cannot maintain a bill in equity to recover back the money.</p> <p>A general allegation of fraud in a bill in equity is insufficient, even upon demurrer, if the facts and circumstances relied upon to support the allegation do not constitute a fraud.</p> <p>A bill in equity by a tenant, which contains no allegation of facts sufficient, to establish fraud, will be dismissed, where the prayer is that the defendant be enjoined and restrained from proceeding before any justice of the peace or otherwise, to recover possession of the premises until the termination of the lease, so long as the plaintiff promptly pays when due, the rent secured thereby.</p>

<p>Contract — Written and farol contract — Evidence—Question for fury— Fraud.</p> <p>When matters of fact, depending on oral testimony, are connected with and necessary to a proper understanding of written evidence, the court is not bound to consider and give effect to the latter as though it stood alone; an admixture of oral and written evidence draws the whole to the jury.</p> <p>When an instrument has been obtained for one purpose and an attempt is made to use it for a different and unfair purpose, parol evidence is admissible to establish the contemporaneous agreement as to the purpose for which it was to be used. Nor is it essential to the admission of parol evidence that a fraud was originally intended. It is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or use it in violation of the accompanying agreement.</p> <p>Contract — Building contract — Price—Evidence—Expert testimony.</p> <p>In an action to recover on a building contract where the plaintiff claims twice the amount which the defendant alleged was the contract price, the defendant may prove by competent experts that the amount claimed by the plaintiff was more than twice what would be a fair and liberal price for the work; but the jury may use this testimony only as corroboration of the defendant’s testimony as to the price agreed upon, and for no other purpose.</p>

<p>Appeal, No. 247, Oct. T., 1906, by William C. Whiteside, testamentary guardian of David C. Christie, from decree of O. C. Lancaster Co., April T., 1904, No. 40, dismissing exceptions to adjudication in Estate of William J. Christie, deceased.</p> <p>Exceptions to adjudication.</p> <p>Smith, P. J., filed the following opinion:</p> <p>A note for $1,000, with interest, held by the widow against the testator was allowed, as was also" a claim for the balance of her exemption. These awards are assigned as error and are the subjects of exceptions.</p> <p>The widow was the testator’s second wife and is the mother of his two surviving infant daughters. By a previous marriage he had a son, David C. Christie, to whom, saving $50.00 to each of the little girls, he gave and devised his estate subject to a charge for the use of his widow during life. She elected to take against the will. The testator was a drunkard, abused his wife and dissipated much of his estate. Her protests failing of good results, she threatened to leave him, and, when arranging to take her departure, he offered her $1,000 that peace and harmony might be established and in consideration that she remain with him and care for his home and family. She accepted the offer. The note was given, and she was faithful unto the end. This was a fair and open postnuptial agreement, entirely free from fraud and concealment, supported by an adequate consideration.</p> <p>In Fennell’s Estate, 207 Pa. 309, Mr. Justice Fell said: “If this agreement had been made in the contemplation of an actual and immediate separation even before the act of 1893, there could be no doubt of its validity: Dillinger’s Appeal, 35 Pa. 357; Hitner’s Appeal, 54 Pa. 110; Commonwealth v. Richards, 131 Pa. 209; Scott’s Estate, 147 Pa. 102. While the common-law disability of a married woman remained, except as modified by statute, her contracts when unobjectionable might be enforced through the medium of equity. Equity for some purposes regarded husband and wife as distinct persons, capable of contracting with each other, notwithstanding their legal unity: Williams’s Appeal, 47 Pa. 307. In Burk-holder’s Appeal, 105 Pa. 31, a postnuptial contract to settle differences between husband and wife which had led to their separation, and the object of which was to adjust their property rights in order that they should thereafter live together in peace and harmony, was upheld on the ground that it was enforceable in equity. That a separation is provided for in an agreement between husband and wife goes to the consideration only and does not affect her power to contract. If there was any doubt before on this subject, it was settled by the act of June 8, 1893, which gives to a married woman the same right and power that any other person has to acquire, possess, control and dispose of any kind of property in possession or expectancy, and to make any contracts that may be necessary, appropriate or advantageous to the exercise and enjoyment of the rights and powers granted, excepting only certain contracts named.”</p> <p>The payment of this note is opposed on the ground that there was no consideration for it, that it was a gift which was revoked by the death of the testator; but what the objection is to the payment of the balance of the widow’s exemption we have not been able to learn. It was claimed that $285.50 of the exemption was owing, to which at the time no objection was made, and it was “admitted that the balance of the widow's exemption is in the balance in the account.” The award was made accordingly. Exception dismissed.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 23, Oct. T., 1907, by defendant, from judgment of C. P. Del. Co., Dec. T., 1904, No. 49, on verdict for plaintiff in case of Edgar B. Millert v. Augustinian College of Villanova.</p> <p>Assumpsit to recover for breach of a contract of employment. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Plaintiff presented the following points:</p> <p>16. If you find for the plaintiff, the measure of damages will be the sum stipulated in the agreement, with interest from the date of discharge to the date of the expiration of the contract.</p> <p>The Court: Was he entitled to all of it at that time?</p> <p>Mr. Bradbury: I understand that to be the law here, with interest.</p> <p>The Court: He was to be paid monthly?</p> <p>Mr. Bradbury: I may not be clear on that.</p> <p>The Court: I am not inclined to affirm that. I think I will say to you, gentlemen, that if you find for the plaintiff he will be entitled to the monthly pay which he was to receive and interest from the date at which they were due until the date cf your verdict. Not entitled to interest due, but that you may allow him anything up to six per cent for its detention. Not interest, as we said a moment ago. That was a slip. But you may allow him anything up to six per cent by way of its detention. [1]</p> <p>17. It is admitted that the plaintiff was to receive $900 for the school year of nine months, and was to board himself outside of the institution. He has- received $140, so that the amount of your verdict will be the difference between $140 he received and $900, which is $760, with interest on same. Answer: That is affirmed if you find for the plaintiff. [2]</p> <p>Defendant presented this point:</p> <p>1. The acceptance of the check of November 19, 1904, marked “in full,” is to be treated as an accord and satisfaction, and there can be no recovery in this case. Answer: This is refused. That is a question for the jury under all the evidence. That point means this, gentlemen: You will remember that when the final check of $50.00 was given to the plaintiff it had on it “in full,” and the defendant asks us to say to you, as a matter of law, that receiving that check in full was an acknowledgment that that was all that was due him, and that, therefore, you will not be permitted to find in his favor.' 'We submit that question to you. As the court remembfersy that-transaction was something like this: After the plaintiff-had' been informed that his services were no longer needed, or was discharged, that Dr. Delurey tendered to him in cash, if T remember, notes, $50.00, and requested him to sign a receipt'in full, and that the doctor then or soon after, the court does not' recollect how soon after, handed him this check to his order-marked “in full.” He says when he went to use it — I am not1 sure just when he discovered it, but before he used it he marked on the back of it, “in full to November 19, 1904,” indorsed his name on it and drew the money from the bank. Now, it will be for you to say whether he did receive that check in full payment or not. You will remember that he refused to sign a receipt in full, and took the check, and he says, if I remember, because of his circumstances he could not wait and had to have the money, and he indorsed this on the back and drew the money, so that it will be for you to say whether under all the evidence in the case he did accept that check in full. [5]</p> <p>Verdict and judgment for plaintiff for $460. Defendant appealed.</p> <p>Errors assigned were (1, 2, 5) above instructions, quoting them.</p>

<p>Appeals — Practice, Supreme Court — Evidence—Judge’s certificate of approval — Diminution of record.</p> <p>Where the transcript of the notes of testimony and charge are properly certified, approved and filed, but a carbon copy of the transcript without the judge’s approval noted thereon, is sent up with the record, the appellant may after motion to quash, bring up the original transcript with the approval of the court below, and file it with the record with the approval of the appellate court; and the result of such action will be the same as that which would have been reached by the more formal proceeding of suggestion of diminution of record.</p> <p>Appeals — Practice, Supreme Court — Bond—Filing bond — Approval of bond.</p> <p>Where a bond in appeal is marked and filed by the prothonotary of the court below, and no objection is made to the bond in the court below, the appellate court will not entertain a motion to quash because the record does not affirmatively show that the bond was approved by the prothonotary in the court below. The fact that the prothonotary personally filed the bond and attested that act by his own signature raises the presumption that he approved the bond.</p> <p>Appeals — Paper-book—Statement of question involved.</p> <p>A “statement of question involved” covering about seventeen lines of appellant’s paper-book, does not violate the rule as to length.</p> <p>Appeals — Assignments of error — Evidence—Nonsuit—Distinct rulings.</p> <p>. Assignments of error to the admission of evidence will be dismissed where the evidence admitted under the offers is not quoted in the assignments, and no reference is made to the page of the paper-book where it may be found.</p> <p>The overruling of a motion for compulsory nonsuit is not assignable for error.</p> <p>A specification of error relating to two distinct rulings does not conform with rule XIV.</p> <p>Insurance — Fire insurance — Principal and agent — Estoppel.</p> <p>An agent duly authorized to bind his company by contract for insurance may make contracts by parol which will be binding on the company before the issuing of the policy, unless there be specific charter requirements that such or all insurance contracts shall be in writing. But in such case the contract and the authority of the agent must be satisfactorily proved. A mere statement by the plaintiff that he knew that a particular person was the agent of the defendant, an insurance company, is not sufficient to establish the agency.</p> <p>Where an application for fire insurance shows on its face that the issuing of a policy depended upon the approval of the application by the company, the mere acceptance of the application and a small fee thereon by a soliciting agent without authority to approve the policy, will not, without more, establish a contract binding on the company to issue a policy, or subjecting it to liability for loss by fire pending the company’s action upon the application.</p> <p>No estoppel can arise either from an insurance company’s failure to act upon and formally reject an application, or from the failure of the company’s soliciting agent to forward the application to the company, where, before either of these things can be done, the property is totally destroyed by fire, and the soliciting agent immediately tenders to the applicant the policy- fee he had paid.</p>

<p>Appeal, No. 71, Oct. T., 1907, by A. A. LaRue, from judgment of C. P. Clearfield Co., Sept. T., 1906, No. 115, on verdict for plaintiff in case of Agnes Prouty v. L. J. Marshall and A. A. LaRue, terre-tenant.</p> <p>Scire facias sur mortgage. Before A. 0. Smith, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in overruling motion of defendant for judgment non obstante veredicto on question of law reserved.</p>

<p>Appeal, No. 44, April T., 1908, by-defendant, from judgment of Q. S. Butler Co.,. June T., 1904, No. 12, on verdict of guilty in case of Commonwealth v. Bessemer & Lake Erie Railroad Company.</p> <p>Indictment for violation of the act of February 19, 1849, relating to the reconstruction of a public road. Before Gal-breath, P. J.</p> <p>Defendant presented this point:</p> <p>11. The question in this case is not whether public crossings might have been avoided, but whether or not the Allegheny and Shenango Railroad Company, in constructing its railroad twenty-four years ago, partly upon a public road, supplied it with another in lieu of that portion taken, and it being undisputed that the public from that time up to the present has been traveling the same and that the public authorities worked upon and improved the supplied road, and on March 22, 1904, the supervisors, together with other citizens, presented a petition to vacate the public road set forth in the bill of indictment, and the court of quarter sessions having confirmed absolutely the report of viewers vacating the road now in question and supplying it with another, this prosecution under the indictment in this case cannot be maintained. Answer: Refused. [8]</p> <p>The court charged in part as. follows:</p> <p>[You may take into consideration whether or not the road that has been given is upon the most favorable location as a fact; whether it requires the public to cross at points not far separated from each other and that the Supreme Court has passed upon the question in case of Commonwealth v. Railroad Co., 215 Pa. 149.] [9]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Error assigned amongst others was portion of charge, quoted above.</p>

<p>Negligence — Railroads—“Stop, look and listen” — Grade crossings.</p> <p>Where a collision takes place at a railroad crossing at the moment when a person enters upon the tracks, such person cannot recover for injuries sustained, no matter what his testimony may be as to stopping, looking and listening, because the fact of an immediate collision conclusively proves that he did not exercise his senses as to the approaching train. There is no difference in the application of this doctrine as to foot passengers and carriage passengers.</p> <p>A driver on approaching a grade crossing, stopped his team which was drawing a heavily loaded wagon, about thirty feet distant from the crossing, and at the foot of an incline about six feet lower than the track. He had an unobstructed view of about 300 feet in the direction from which a train came. After having looked and listened, and not seeing or hearing a train, he started up the grade on a slow pull, and continued until the horses entered upon the track. One of the horses was immediately struck by a train. During the whole distance from the point of- stoppage to the tracks there was nothing to distract the driver’s attention, nor to obstruct his view. Held, that there could be no recovery against the railroad company.</p>

<p>Contract — Principal and agent — Commissions—Insurance agent.</p> <p>■ Where a contract between an insurance company and its agent provides in a printed clause that the agent shall have a commission on both original and renewal cash premiums during his continuance as agent, and another typewritten clause refers to the previous clause, and -provides for certain commissions on renewal premiums on insurance secured by the agent under the plans designated in the previous clause, the provision in the first clause that commissions shall be paid only during the continuance - of the agency, is to be read into the second clause, and applies to the commissions on renewal premiums therein specified.</p>

<p>Negligence — Railroads—Unlighted platform — Passenger.</p> <p>When a passenger has alighted from a train the relation of passenger and carrier remains until he has left the premises of the carrier.</p> <p>Platforms of a railroad station should at night be reasonably lighted for a sufficient time before and after the arrival of trains to enable passengers to avoid danger. •</p> <p>In an action by a passenger against a railroad company to recover damages for personal injuries sustained by falling over a piece of baggage while proceeding across a station platform from a train to a street, the case is for the jury, and a verdict and judgment will be sustained where the evidence tends to show that the three platform lamps were not lighted, that the only light on the platform was that which emanated from a light within the station, that the night was dark, and that if the platform had been properly lighted, the accident would not have occurred.</p>

<p>Appeal, No. 161, Oct. T., 1907, by-defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1900, No. 422, M. L. D., on verdict for plaintiff in case of city of Philadelphia to use of Pennsylvania Asphalt Paving Company v. George A. Bilyeu.</p> <p>Scire facias sur municipal lien for paving. Before Sulzberger, P. J.</p> <p>At the trial the trial court gave a full charge, ending with a direction to find for the defendant. Plaintiff’s counsel thereupon appealed to the conscience of the court to reverse the direction upon the ground that if the appellate court should reverse, the plaintiff could .get no advantage from the victory, since he would be defeated in his remedy on another trial by virtue of limitation provisions in statutes. For a similar reason judgment was entered on the verdict for the plaintiff.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $359.20. Defendant appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned judge of the court below erred in directing the jury to find a verdict for the plaintiff.</p> <p>2. The learned judges of the court below erred in deflying the defendant’s motion for judgment non obstante veredicto upon the whole record.</p>

<p>Negligence — Street railways — Infants—Contributory negligence of parents — Question for jury.</p> <p>A mother whose duties require her personal attention in the kitchen of a humble home, is not guilty of contributory negligence, per se, in allowing a child of three years of age to be taken into the yard, or on to the road to play, in care of a sister eight years of age. The situation of the parents, the character of their home, the weather, the health of the children, their manner of living, and all the attending surroundings are elements to be considered by the jury in determining whether the parents have used reasonable precautions in safe-guarding the child.</p>

<p>Negligence — Street railways — Passenger—Defective hand rail.</p> <p>A womáñ incumbered with' a baby, while getting off a car, took hold of a hand rail on the side of a car for the purpose of aiding herself in descending to the ground. While . grabbing the hand rail, in some way and for some reason not entirely clear, her hand caught on the rail and she was suspended therefrom by something catching under a ring which she wore on the third finger of her hand, and so holding it that the flesh of that finger was torn off to the first joint, so that it was necessary to push the flesh back through the ring to return it to its proper place. One of plaintiff’s witnesses testified that an inspector of the defendant said to him that there was a defect in the hand rail, a split or "something, which caused thé accident. This was denied by the inspector. Witnesses for the- defendant testified as to the perfect condition of the hand rail after the accident, but they could not say on cross-examination whether the handle was of brass or wood, and they could1 not give the number of the car. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p> <p>When the thing which causes the injury is shown to be under the management of the defendant, and’the accident is such' as in'the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. ■' ■ ■</p>

<p>Statutes — Construction—Retroactive action — Appeals—Costs—Printing paper-books — Act of April 15, 1907, P. L. 83.</p> <p>A statute is always to be interpreted so as to operate prospectively, and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature.</p> <p>The Act of April 15,1907, P. L. 83, imposing upon the losing party the cost of printing the winning party’s paper-book, is limited to appeals taken subsequent to the date of the approval of the act.</p>

<p>Appeal, No. 93, April T., 1908, by defendants, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 401, on verdict for plaintiff in case of C. A. Green v. Annie G. Kiefer et al.</p> <p>Trespass for conspiracy. Before MacFarlane, J.</p> <p>The facts'are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for six and one-fourth cents. Defendant appealed.-</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 26, April T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 530, sustaining demurrer in case of Thomas E. Plunkett v. T. Leo Hamnett. Demurrer to statement of claim in assumpsit.

<p>Appeal, No. 197, April T., 1908, by defendant, from judgment of C. P. Erie Co., Feb. T., 1907, No. 35, on verdict for plaintiff in case of J. W. Necker v. P. S. Sedgwick.</p> <p>Trespass against a sheriff for refusal to sell goods levied upon. Before Thomas, P. J., specially presiding.</p> <p>At the trial defendant’s counsel offered to show that in the summer of 1905, W. H. Smith issued an execution upon a judgment amounting to $700 or $800, which he had against G. G. Thomas, and that all of the property, of every kind and nature, including the crops upon the farm, in which Mr. Thomas had any interest, or which he owned, were sold at sheriff’s sale, and purchased by Mr. Smith the witness. That after the sale Mr. Smith and Mr. Thomas canceled this lease, and entered into an agreement, by which Mr. Smith employed Mr. Thomas to run the farm for him, Smith, and by the terms of which agreement Mr. Thomas was to receive $40.00 per month, and the use of such products of the farm as he wished to use for living purposes, for his table and household use, etc., and was to turn the balance of the proceeds of the farm over to Mr. Smith. This for the purpose of showing, that at the time of the levy, the following year, under the writ issued by the plaintiff, Mr. Thomas was not the owner of any property on the farm, upon which the defendant, as sheriff, could lawfully make a levy or sale.</p> <p>■ Objected to any evidence in this case tending to show that Mr. Smith, the witness on the stand, was the owner of the personal property levied upon, on fi. fa. No. 12, November Term, 1906, for the reason that the Act of assembly of May 26,1897, P. L. 95, prescribes the proceedings to be taken on part of the sheriff, where goods are levied on as the property of one person and claimed by another. That the sheriff cannot determine the question of ownership for himself, and refuse to proceed in the manner directed by this act. That while evidence of ownership would be competent in a feigned issue, it is not competent evidence in this case.</p> <p>The objection to the offer is sustained. Exception sealed for the defendant. [1]</p> <p>Counsel for the defendant offers to show by the witness on the stand and other witnesses, that at the time of the entry of judgment of the Plaintiff v. G. G. Thomas, upon which the writ of execution, referred to in the plaintiff’s declaration, was issued, and under which, levy was made by the defendant as sheriff, the defendant, G. G. Thomas, owned no property, real or personal, of any character or description, within the county of Erie. That the grain, crops, and any other property attempted to be levied upon by the sheriff under the said writ of execution, belonged, at the time of the issue of said writ, and at the time of the said attempted levy, to Willis H. Smith and not to G. G. Thomas; that said G. G. Thomas, the defendant in the execution, was working upon said farm, upon a salary paid him by Willis H. Smith; that he was not a tenant of said farm, and had no interest in the crops, or any other property thereon. That the whole of said crops and other property, together with the said farm, belonged to said Willis H. Smith, and that the possession, such as it was, of said G. G. Thomas was the possession of Willis Smith, said Thomas being his employee as afcfresaid. Also, that after the issuance of the said writ, and the making of said levy, said Willis H. Smith duly notified the defendant, sheriff, that said property, and the whole thereof, belonged to him, and not to Thomas, and that said G. G. Thomas had no interest therein, and forbade the sheriff to proceed with said execution, at his peril, and that the said sheriff, after investigation, was convinced that the title and ownership to all of said personal property was in said Willis H. Smith and not in G. G. Thomas, and thereupon proceeded no further with said execution.</p> <p>This for the purpose of showing that the .plaintiff sustained no damage, by reason of the failure of the sheriff to proceed with the said execution, and is therefore not entitled to recover in this case.</p> <p>Said offer being objected to as follows:</p> <p>Objected to, for the reason that after the sheriff made his levy upon this writ, it was his duty to proceed in the manner prescribed by the act of assembly of May 26, 1897, and it is not competent for him to prove in this case that the property levied upon belonged to a third person. Upon which the court made the following ruling.</p> <p>Objection sustained, and exception sealed for the defendant. [2]</p> <p>Verdict and judgment for plaintiff for $181.65. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.</p>

<p>Practice, C. P. — Trial by court without a jury — Form of the decision —Act of April 22, 1874, P. L. ,109.</p> <p>Where a case is tried by the court without a jury under the Act of April 22, 1874, P. L. 109, the fact that the judge’s discussion of the pertinent legal principles and authorities does not follow, but precedes his statement of the final conclusion' or conclusions of law, is not ground for valid objection to the form of the decision.</p> <p>Boroughs — Ordinance—Police power — License tax — Street railways.</p> <p>A license tax imposed by a borough ordinance on street cars is not invalid because there is no allusion therein to police inspection and regulation.</p> <p>If a license tax is lawful if intended for police regulation, but is unlawful if intended for revenue purposes, the presumption is that the purpose of the ordinance was lawful, unless the contrary clearly appears.</p> <p>The burden of proving the reasonableness of an ordinance imposing a license tax on street railway cars is not upon the borough imposing the tax, but upon the street railway company owning the cars.</p> <p>The courts will not declare such an ordinance void because of the alleged unreasonableness of the fee charged, unless the unreasonableness be so clearly apparent as to demonstrate an abuse of discretion on the part of the municipal authorities.</p> <p>An annual license tax on a street car imposed as police regulation includes more than a mere periodical inspection of the cars by the municipality. Such a tax is a specific charge to meet the entire expense of the duty of regulation, inspection and supervision cast upon the municipality with respect to the manner in which the company is exercising its privilege.</p> <p>The fact that a borough neglects some part of its supervisory duty as to cars during the year, is not, standing alone, a bar to. an action to recover a reasonable license fee for a particular year which was due and collectible at the beginning of the year:</p> <p>In a proceeding by a borough against a street railway company to recover an annual license tax on street cars, the company may show the existence of another ordinance whereby street railway companies were obliged to pay an annual sum of fifty cents for each pole carrying overhead wires.</p> <p>A license fee which might be reasonable, if intended to cover the probable expense incident to proper police supervision and inspection of the railway, and its operation as a whole, may be excessive and unreasonable when considered in connection with the fact, that under another ordinance an additional license fee is exacted for the inspection and supervision of poles and wires.</p> <p>The probable additional cost to .a borough of maintaining and keeping in repair the portions outside the tracks of the streets on which an electric railway is lawfully operated under municipal consent, cannot be included in the license fee imposed by the municipality in the exercise of its police power.</p> <p>In an action by a borough against a street railway company to recover an annual license tax on street cars, it is error to consider evidence to the effect that in consequence of the occupation of the streets by the railway tracks, and the kind of rail used, the great burden of travel is cast upon the sides of the streets and this increases the costs to the borough of repairing and maintaining them.</p>

<p>Contract — Disposal of dead body — Undertaker—Street railways — Inspectors — Principal and agent.</p> <p>Where a person is killed .on the track of a street railway, and the line is blocked by reason of the difficulty of disposing of the body, an inspector of the company whose duty it is to keep the line open, has authority to contract with an undertaker near at hand to take and bury the body at the company’s expense.</p> <p>If in such a case the imdertaker before incurring the expense of actual burial, informs the superintendent of the company of the arrangement made with the inspector, and the superintendent tells him to go ahead, the company will be deemed to have ratified the act of the inspector.</p>

<p>Corporations — Officers—Compensation—Contract—President.</p> <p>An officer of a corporation is not entitled to compensation, unless such compensation has been agreed upon before he accepts office; and this rule applies to the president of a corporation, whether he be a director or stockholder, or not.</p>

<p>Appeal, No. 131, April T., 1908, by plaintiffs, from judgment of C. P. Westmoreland Co., May T., 1906, No. 552, on verdict for defendants in case of Commonwealth to use of Lucinda Thompson and Anna B. Thompson, executrix of the estate of Lewis Thompson, deceased, v. Joseph A. Donnelly and Margaret Conway, executors of Henry G. Donnelly, deceased.</p> <p>Assumpsit on a bond. Before Doty, P. j.</p> <p>At the trial the jury returned a verdict for defendants.</p> <p>On a rule for a new trial, and for judgment for plaintiff non obstante veredicto, Doty, P. J., filed the following opinion:</p> <p>The defendants are executors of Henry G. Donnelly, deceased, who was one of the sureties on the official bond of W. B. Conway, recorder of deeds of this county for three years from the first Monday of January, 1891. During his term as recorder, a mortgage given by William F. Uebing was presented for record and was duly recorded October 5, 1891. But by mistake the same was indexed in the name of William F. Nebing. Eight years after Conway’s term had expired, to wit: on April 4,1902, another mortgage given by William F. Uebing on the same property covered by the former mortgage was placed on record. Before any money was advanced on what may be called the second mortgage, a careful search was made of the record without discovery of the first mortgage, which was improperly indexed. After due proceedings on the first mortgage, the property was sold by. the sheriff and the sum of $945.57 was appropriated to the first mortgage on record and nothing to the one held by the use plaintiffs. Suit was brought April 11, 1906, to recover the sum of $945.57, with interest from February 24,1906, the date of the confirmation absolute of the sheriff’s distribution. The action was, therefore, brought more than twelve years after the term of the recorder had ended and more than fourteen years after the negligent act which caused the loss.</p> <p>The only defense is the statute of limitations. If this be no bar it is conceded that plaintiff is entitled to judgment in the sum of $945.57, with interest from February 25, 1906.</p> <p>The defendant relies on sec. 4 of the Act of April 4,1798, 3 Sm. L. 331, which provides that no suit shall be brought against the sureties of any public officer after seven years, “to be computed from the time at which the cause of action shall have accrued.” The plaintiff contends that the cause of action did not accrue at least until the second mortgage was placed on record on April 4, 1902, and that, therefore, the action is not barred.</p> <p>The mistake in the indexing occasioned the ultimate loss. It is not pretended that there was fraud or concealment. The whole question is whether the action accrued at the time the act of negligence was committed, or when a party prejudiced by such negligence was in a position to bring suit. The exact question has not been decided. No case precisely alike in facts has been discovered. In analogous cases, however, the principle which controls is readily ascertained.</p> <p>It seems to be well settled that the statute bars an action of tort six years after the wrong done. Thus in Owen v. Western Saving Fund, 97 Pa. 47, which was an action against a recorder for a false certificate, it was held that the statute began to run from the time the certificate was given and not from the development of damage.</p> <p>Suit was brought against directors for an illegal resolution, but in Link v. McLeod, 194 Pa. 566, it was held that the statute ran from the time the resolution was passed and not from time the money was paid. And in both cases last cited, it was recognized that ignorance of the transaction did not toll the statute. The principle is therefore settled that to an action brought for injuries resulting from an act done more than six years before, through mere mistake not involving fraud, the statute of limitations is a complete bar. See also Noonan v. Pardee, 200 Pa. 474; Guarantee Trust, etc., Co. v. Nat. Bank, 202 Pa. 94.</p> <p>An apparent exception to the rule is found in Lewey v. Coke Co., 166 Pa. 536, wherein an action after six years from the wrong done is sustained. The decision, however, was by a divided court and it was put on the express ground that the concealment of the wrong was a fraud. But the case has no application here, as fraud is not alleged.</p> <p>It is contended furthermore that the line of cases does not control because they all arise under the act of March 27, 1713, and not under the act of 1798 which is relied on by the defense. But. such contention is not well founded. The acts are substantially the same. Under the act of 1713 no action of case can be brought after six years from the “cause of such action.” While under the act of 1798, the same thing is expressed thus: “That no suit shall be brought after seven years from the time at which the cause of action shall have accrued.” Whether the limitation be from the cause of such action or from the time the cause of action shall accrue gives rise to no distinction. The expressions mean the same thing, as uniformly, under the act of 1713, it has been held that the statute begins to run upon the time the right of action accrues: Overton v. Tracey, 14 S. & R. 311; Evans v. See, 23 Pa. 88.</p> <p>An action of case against the recorder himself would likely be defeated by application of the principle declared in Owen v. Saving Fund, 97 Pa. 47. If it has no application in a suit against the sureties, the whole purpose of the act of 1798, as set forth in the preamble, would be defeated, and sureties on official bonds would be liable to suit many years after the term of their principal had ended.</p> <p>Defendants’ further reliance is on a line of cases of which Marsteller v. Marsteller, 93 Pa. 350, is the leading example. The case holds that if a cause of action accrue in the lifetime of a decedent the statute is not interrupted by the death, but if the action does not accrue until after the death, the statute begins to run only from the time of administration. It is plain that this principle is not in conflict with that declared in Link v. McLeod, 194 Pa. 566.</p> <p>Binney v. Brown, 116 Pa. 169, in its facts is a case much like the one in hand. Binney by mistake wrongfully entered satisfaction on the margin of a mortgage. Brown bought the property relying on a certificate from the recorder that he found no unsatisfied mortgages. The mistake was not discovered for fourteen years. The Supreme Court on appeal dismissed the case with the observation that plaintiff’s only remedy was an action on the case, a remedy long since barred by the statute of limitations.-</p> <p>And now, June 15, 1907, new trial refused and judgment on the verdict.</p> <p>Error assigned was in entering judgment on the verdict.</p>

<p>Equity — Injunction—Injunction against plaintiff — Cross bill — Equity practice — Security.</p> <p>A court cannot, at its own instance, enjoin one of the plaintiffs in a bill in equity from conveying real estate standing in his name, without any allegation or prayer in the pleadings to that end, and without a cross bill.</p> <p>A preliminary, temporary or special injunction cannot be granted without security.</p>

<p>Appeal, No. 30, April T., 1908, by defendant, from judgment of C. P. Washington Co., Aug. T., 1906, No. 110, on verdict for plaintiff in case of Thomas Swan-wick v. Monongahela City.</p> <p>Trespass to recover damages for personal injuries. Before Taylor, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $425. Defendant appealed.</p>

<p>Liquor law — Constitutional law — Act of May 13, 1887, P. L. 108.</p> <p>The Act of May 13,1887, P. L. 108, relating to the granting of licenses for the sale of spirituous, brewed and malt liquors at retail does not violate any of the provisions of the constitution of the United States or the state of Pennsylvania.</p>

<p>Appeal, No. 255, April T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 347, on verdict for plaintiff in case of Dolly Newby v. H. S. Ford.</p> <p>Assumpsit against a carrier for loss of a trunk: Before Evans, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for |100. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff, and in refusing binding instructions for defendant.</p>

<p>Landlord, and tenant — Levy—Goods leased to tenant — Wrongful removal of goods after levy.</p> <p>In an action by a landlord against a company leasing or selling goods on the installment plan, to recover damages for the wrongful removal of the goods by the defendant after they had been levied on by the plaintiff for rent, a verdict and judgment for the plaintiff will be sustained where the collecting agent of defendant saw the notice of the levy on the leased premises, communicated the fact to the secretary 'and treasurer of the company from whom he took his orders, and the latter told him to go ahead and remove the goods. In such a case it is no defense that the president and the chief executive officer of the defendant had neither authorized nor ratified the action of his subordinates.</p> <p>Landlord and tenant — Levy—Notice—Custom.</p> <p>Where a constable, acting not in his official capacity, but merely as bailiff of a landlord, posts a notice of a levy on household goods, the law raises no presumption either in favor of or against the regularity of the the notice.</p> <p>In an action to recover damages for the wrongful removal of a tenant’s household goods, as against a landlord’s levy for rent, the court will not assume that the levy was invalid because the constable in speaking of a • notice that he had posted, said that it was to run ten days before he could make an appraisement, when in fact the goods were removed about five or six days after the notice was posted.</p>

<p>Appeal, No. 194, April T., 1908, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1901, No. 538,' arresting judgment of case of The Kountz Brothers Company v. The Consolidated Ice Company, owner or reputed owner, Peter W. Herrington and Andrew Henslein, partners as Herrington & Henslein, and Harry R. Worthington.</p> <p>Scire facias sur mechanic’s lien. Before Young, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in arresting judgment.</p>

<p>Practice, C. P. — Affidavit of defense — Defective statement of claim— Pleading.</p> <p>Where the declaration is defective, the defendant is not required to file an affidavit of defense; but if he does and the affidavit is itself defective, judgment will not be entered against him. The declaration must be self-sustaining.</p> <p>In an action on a building contract the plaintiff is not entitled to judgment in the absence of an averment of full compliance with the terms of the written contract under which he did the work and furnished the materials, in the absence of an averment of waiver by the defendant.</p> <p>A declaration for extra -york an¿ materials is not sufficient to call for an affidavit of defense if it does not aver any contract on the part of the defendant to pay for extra work and materials, or that the defendant requested the plaintiff to furnish extras in the line of work and materials, and there is no clear averment that all of the so-called extras were not included in the written contract, nor any averment that the prices charged were reasonable and just, or the usual and ordinary charges for such work and materials.</p>

<p>Divorce — Desertion—Justification.</p> <p>The conditions which will justify a wife’s abandonment of her husband are those only which would support a decree of divorce in her favor where she is the libelant.</p> <p>Where a husband’s conduct is such that the wife is justified in abandoning him, the husband cannot thereafter obtain a divorce from hi3 wife upon the ground of disertion.</p>

<p>Appeal, No. 42, April T., 1908, by Franc R. Blumberg, executrix, from decree of O. C. Allegheny Co., Dec. T., 1906, No. 34, dismissing exceptions to adjudication in Estate of Albert Blumberg, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

Appeal, No. 200, April T., 1908, by plaintiffs, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 683, allowing debtor’s exemption in case of Meyer Forst and Max Wolf, trading as Forst & Wolf, v. Sam Lees, defendant, and Hausman & Wimmer Co. et al., garnishee. Rule for allowance of debtor’s exemption out of money in the hands of garnishee. The opinion of the Superior Court states the case. Error assigned was order making absolute rule allowing exemption.