Volume 37 — Pennsylvania Superior Court Reports

Appeal, No. 203, April T., 1908, by defendant, from judgment of Q. S. Washington Co., Feb. T., 1908, No. 159, on verdict of guilty in case of Commonwealth v. M. M. McDermott. Indictment for violating the oleomargarine Act of May 29, 1901, P. L. 327. The opinion of the Superior Court states the case.

<p>Appeal, No. 6, April T., 1908, by defendant, from judgment of O. P. Washington Co., Aug. T., 1906, No. 130, for plaintiff on case tried by the court without a jury in suit of Claysville Borough School District v. John E. Worrell.</p> <p>Scire facias sur tax lien. Before McIlvaine, P. J.</p> <p>The facts are stated in the opinion of the Superior Court..</p> <p>Error assigned was in entering judgment for plaintiff.</p>

Appeal, No. 7, April T., 1908, by defendants, from judgment of C. P. Washington Co., Aug. T., 1906, No. 131, for plaintiff on case tried by the court without a jury in suit of Claysville Borough School District v. Estate of Thomas Anderson, deceased, W. H. Anderson, Benjamin Anderson and Catherine B. Anderson. ’ Scire facias suf tax fieri. Before McIlvaine, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was in entering judgment for plaintiff.

<p>Banks and banking — Checks—Bills of exchange — Negotiable paper — Acceptance — Notary public.</p> <p>The 137th section of the Act of May 16, 1901, P. L. 194, imposes a statutory duty on the drawee of a bill of exchange or check, to return the same accepted, or nonaccepted, to the holder within twenty-four hours after the same is delivered to such drawee, unless the holder may allow a greater period, and the failure to so return renders the drawee liable as an acceptor. The act of a bank in delivering checks to a notary public for protest is not a compliance with the act, and does not relieve the drawee from liability.</p>

Appeals, Nos. 190 and 191, April T., 1908, by defendant, from judgment of Q. S. Washington Co., Nov. T., 1907, No. 11, on verdict of guilty in case of Commonwealth v. M. M. McDermott. Indictment for violating the oleomargarine Act of May 29, 1901, P. L. 327. The opinion of the Superior Court states the case. Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

<p>Justice of the peace — Summary conviction — Appeals—Act of March 20, 1810, 5 Sm. L. 161.</p> <p>A judgment of the common pleas affirming a judgment of a justice of the peace in a summary proceeding for the collection of a penalty prescribed by a city ordinance, is not within the purview of the Act of March 20, 1810, 5 Sm. L. 161, and such judgment of the common pleas is not final and conclusive.</p> <p>Justice of the peace — Summary conviction — Violation of city ordinance — Theaters—Restitution.</p> <p>Where a city ordinance makes it unlawful for the owner or lessee or the agent of the owner or lessee, of any place of entertainment to knowingly rent the same, or permit it to be used for exhibitions tending to corrupt the morals of the people, a summary conviction cannot be sustained under such ordinance on an information charging that the defendant being the owner or lessee, or the agent of the owner or lessee of an opera house, did unlawfully and knowingly rent the same, or permit it to be used for certain exhibitions tending to corrupt the morals of the people. The information is bad in charging the defendant with a large number of things in the alternative.</p> <p>In such a case a judgment of the justice finding the defendant guilty of producing an entertainment tending to corrupt the morals of the people is wholly void where the justice also finds that the defendant owned the building in question, and rented the same to another person to be used for the entertainment in question.</p> <p>In reversing such a judgment restitution is within the sound discretion of the appellate court, and it may reverse the judgment without awarding restitution, if the conduct of the defendant is shown to have been improper.</p>

Appeal, No. 39, April T., 1908, by plaintiff, from order of C. P. Lawrence Co., March T., 1906, No. 3, refusing to take off nonsuit in case of Lewis E. Flanders v. J. W. Snare. Assumpsit against the acceptor of a bill of exchange. Before Wm. E. Porter, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 91, April T., 1908, by plaintiff, from judgment of C. P. Butler Co., June T., 1907, No. 51, for defendant on case stated in suit of A. M. Christley v. Butler County. Case stated to determine liability for tax. The case stated was as follows: That A. M. Christley, plaintiff above named, was and is the owner of a tract of 170 acres, more or less, of land, situate in Centre township, Butler county, Pa.

Appeal, No. 157, April T., 1908, by defendant, from decree of C. P. Indiana Co., June T., 1907, No. 4, awarding an injunction in case of Myrtle D. Gay v. L. E. Chambers. Bill in equity for an injunction. Before Telford, P. J. The opinion of the Superior Court states the case. Error assigned was decree awarding injunction.

Appeal, No. 150, April T., 1908, by defendant, from judgment of C. P. Indiana Co., Dec. T., 1906, No. 110, on verdict for plaintiff in case of James S. Blair v. Harry E. Clark. Assumpsit for balance due on a contract of sale. Before Telford, P. J. ' The opinion of the Superior Court states the case. Defendant presented the following points: 1.

Appeal, No. 56, March T., 1908, by defendant, from order of C. P. Luzerne Co., Oct. T., 1906, No. 612, sustaining exceptions to report of referee in case of I. Robbins v. Locust Mountain Savings Fund and Loan Association. Exceptions to report of Felix Ansart, Esq., referee.

<p>Road, law — Breadth of road — Approval nisi nunc pro tunc — Practice, Q. S.</p> <p>The court of quarter sessions cannot fix the breadth of a public road and approve the report of viewers nisi as of a former term, and thus deprive interested persons of the right to file exceptions after the breadth has been fixed and approval nisi entered.</p>

Appeal, No. 147, April T., 1908, by defendant, from judgment of C. P. Beaver Co., Dee. T., 1906, No. 45, on verdict for plaintiff in case of Frederick Thiele v. Beaver Traction Company. Trespass to recover damages for personal injuries. Before Holt, P. J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed. Error assigned among others was in refusing binding instructions for defendant.

<p>Telegraph companies — Negligence—Mistake in telegram — Contract.</p> <p>Where a dealer in one city quotes by telegraph a price for goods to a dealer in another city, and by mistake of the telegraph company, the price in the telegram received is less than that stated by the sender, and the receiver of the telegram orders goods at the lesser price, but the sender of the telegram delivers the goods, invoiced at the true price, the receiver may either decline to accept them, or take them at the invoice price. If he chooses the latter course, there is a new contract and the telegraph company is not liable to him for the difference in the price.</p> <p>If in such a case the telegraph company is considered the agent of the sender, then the remedy of the receiver is not against the company, but against the sender for violation of the contract.</p> <p>If it appears that the receiver could not have bought the goods at the lesser price, he has not lost his bargain, and consequently has no action against the telegraph company.</p> <p>A party who selects the telegraph as a means of business communication must as between the sender and receiver bear the loss caused by the errors of the company.</p>

<p>Appeal, No. 196, April T., 1908, by Alfred Hileman, guardian, from decree of O. C. Armstrong Co., Sept. T., 1907, No. 18, dismissing exceptions to auditor’s report in Estate of Jacob Spencer, deceased.</p> <p>Exceptions to report of Ross Reynolds, Esq., auditor.</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>Error assigned was decree dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 38, April T., 1908, by defendant, from judgment of C. P. Butler Co., Dec. T., 1906, No. 68, on verdict for plaintiff in case of Martin-L. Gibson v. The Bessemer & Lake Erie Railroad Company.</p> <p>Trespass to recover, damages for the death of a horse. Before Galbreath,' P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $269.67. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeals — Executors and adminstrators — Party interested.</p> <p>While an executor as such cannot appeal from a decree distributing funds in his hands, yet if the record shows that he is one of the distributees, an appeal by him will be considered as if made by a party interested.</p> <p>Appeals — Findings of fact — Auditor.</p> <p>The findings of fact by an auditor, on sufficient evidence and con- ’ firmed by the orphans’ court, will not be disturbed except for manifest error.</p> <p>Payments — Application of payments — Least secured debt.</p> <p>In the absence of an agreement or direction by the debtor to the contrary, the creditor has the right, in general, to appropriate a pay-, ment at his will, and he may, therefore, appropriate it to the least secured debt.</p>

<p>Appeal, No. 171, April T., 1908, by defendant, from order of C. P. No. 2, Allegheny Co., April Term, 1907, No. 868, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Allegheny County Light Company v. Shadyside Electric Light Company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 183, April T., 1908, by plaintiff, from judgment of C. P. Cambria Co., Sept. T., 1906, No. 343, on verdict for defendant in case of The First National Bank of Gallitzin v. E. T. McNeelis.</p> <p>Assumpsit on a draft. Before O’Connor, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were in refusing binding instructions for plaintiff.</p>

<p>Married women — Promissory note — Principal and surety.</p> <p>A promissory note under seal was signed by a married man as principal and by another person designated as “bail.” When the note became due the principal was ill and confined to his house. A renewal note was sent to him by the bank which held the original note, and he requested his wife to sign the renewal note. She complied with his request, signing her own name. After the death of her husband she sent the note to the bail who signed the note after the wife’s signature again designating himself as “bail.” The new note was accepted by the bank as payment of the old note, and the old note was surrendered to the wife. Upon maturity of the new note the bail was compelled to pay it, and thereupon brought suit against the widow. Held, that the widow was liable to the bail for the amount of the note.</p>

<p>Appeal, No. 110, Oct. T., 1907, by-plaintiffs, from judgment of C. P. Delaware Co., Sept. T., 1899, No. 61, on verdict for plaintiffs in case of Grace Hoffman Barnett et al. v. Yeadon Borough.</p> <p>Appeal from award of jury of view. Before Johnson, P. J.</p> <p>At the trial the court refused under objection and exception evidence as to a borough ordinance, offered for the purpose of showing that Rockland avenue had been opened for the benefit of a street railway company. [1, 2]</p> <p>When Samuel J. Cochran was on the stand he was asked this question:</p> <p>“Q. How many lots were there — how many lots would-be there of twenty-five feet front? ”</p> <p>Mr. Smith: This witness has already testified that in 1899 this property was solely usable for farming purposes, having an enhanced value speculatively, but it was not then used for building purposes. Now, in the face of that testimony to attempt to put on a value as based solely on building purposes is, of course, in flat contradiction of his prior testimony and absurd. I do not think he ought to be allowed to testify to it.</p> <p>The Court: He says the value of $33,600 was because it might in the future be converted into building lots. That is the basis of the value. As farm land it would not be worth more than .$100 an acre, probably: I do not see anything inconsistent in it.</p> <p>Mr. Robinson: How many lots would that cut up twenty-five feet front?</p> <p>Objected to by Mr. Smith for the reasons just stated. Objection overruled. Exception. [2]</p> <p>“A. There are 185 feet front on the east side of Rockland avenue between Glenrock avenue and Grant street — there is a street comes in there — a Grant street. Q. That would be how many lots? A. According to the size you made that. Q. Each twenty-five feet front? A. There would be 185 feet in there, front. Q. What would those lots be estimated to be worth before the change of grade?”</p> <p>Objected to by Mr. Smith. Objection overruled. Exception. [4]</p> <p>“A. Before the change of grade there was no street there was there? but.with Rockland avenue there. Q. Oh, yes, Rockland avenue would be there. A. Five or $6.00 a foot front. These lots could only have been 100 feet deep. With $5.00 or $6.00 a foot front in the condition it was there.”</p> <p>On the cross-examination of defendant’s witness, Yarnall, this question was asked • ■</p> <p>“ Q. Has any provision been made in the borough of Yeadon for the bridge over that place at Rockland avenue?”</p> <p>Mr. Robinson: I desire to object to this.</p> <p>The Court: Objection sustained. Exception. [5]</p> <p>Mr. Smith: I show you the minute and ordinance book of council and ask you to refer me to any provision that the borough has made for a bridge over the railroad at Rockland avenue.</p> <p>Mr. Robinson: Objected to for the reason that it is irrelevant and immaterial.</p> <p>The Court: It is not cross-examination. He has not been asked about the paper and inquired of about it. Exception. [6]</p> <p>The court admitted in evidence the plan of Palermo, offered on behalf of the' defendant. Exception. [7-9]</p> <p>Defendant presented this point:</p> <p>4. In considering the damages, the jury must take into consideration the benefits to be derived from the opening of Rockland avenue as a public highway, and thereby making communication practicable between the parts divided by the railroad. Answer: That is affirmed. I have said to you in the general charge you must take into consideration all the benefits that may be derived to this land by the opening of this street. [14]</p> <p>Verdict and judgment for plaintiff for $1,240. Plaintiff appealed.</p> <p>Errors assigned among others were (1-9) rulings on evidence, quoting the bill of exceptions; (14) above instructions, quoting them.</p>

<p>Lease — Lease of machinery — Covenant as to repairs — Rental.</p> <p>In an action to recover rental under a lease of machinery, the plaintiff makes out a prima facie case when he proves the execution of the lease, and that the defendant went into possession under it.</p> <p>Where a lease of machinery provides that no liability for rent shall be incurred by the lessee until certain repairs have been made satisfactory to the lessee, the question whether the lessee’s objection to the repairs was made in good faith, or was merely capricious, is a question for the jury.</p> <p>In such a case the defendant enters into possession and the plaintiff enters into concurrent possession for the purpose of making the repairs, no rent accrues until after the repairs are completed, and the defendant’s concurrent possession has ended. When the repairs are completed and the lessee believes in good faith that the machinery had not been satisfactorily repaired, so that it could be successfully operated, he is not bound to accept it. He may surrender the possession or offer to surrender it, or he may enter into the exclusive possession and make the repairs in accordance with the lease, and defalk the cost of making them from the rent, or he may retain the exclusive possession and deduct from the rent the difference between the rental value of the machinery as it then was, and its rental value as it would have been if the repairs had been properly made. The lessee is not entitled to the exclusive possession without making some compensation. In such a case the measure of damages is not the difference in the cost of operating the plant, since the cost of operating it is not the only element affecting the rental value.</p> <p>Where a lease of machinery contained a covenant on the part of the lessor to repair the then existing plant so that the same may be successfully operated, the lessor is bound to repair all the machinery. which then comprises the plant, but he is not required to furnish additional machinery or larger pumps.</p> <p>Where the lessee has offered testimony as to the character of the defects to which he objected, the lessor is entitled to show the condition of the machinery at the time he completed the repairs and permitted the lessee to take possession; but it is not permissible to show the general condition of the plant after the lessee had been operating it for a year.</p> <p>Evidence as to the work which the lessor had caused to be done in making the repairs to the plant, is admissible, but the amount of money paid out for such work is not so.</p>

<p>Appeal, No. 77, Oct. T., 1907, by plaintiffs, from decree of C. P. No. 2, Phila. Co., Jan. T., 1906, No„ 4,200, dismissing bill in equity in case of Maurice L. Bower et al. v. The United Gas Improvement Company.</p> <p>Bill in equity for an injunction.</p> <p>Wiltbank, J., filed the following opinion1.</p> <p>FINDINGS OF FACT.</p> <p>1. The plaintiffs are residents of Philadelphia and occupy premises supplied with gas from the mains of The United Gas Improvement Company.</p> <p>2. The United Gas Improvement Company is a corporation duly organized under the laws of the commonwealth of Pennsylvania, engaged in the manufacture of illuminating gas for sale to the plaintiffs and other residents of Philadelphia.</p> <p>3. The United 'Gas Improvement Company, under the terms of a lease between it and the city of Philadelphia, which lease is contained in an ordinance of councils passed November 12, 1897 (ordinances of councils, 1897, page 227), claims the right to levy a penalty of three per cent on all bills for gas consumed which are not paid within five days of the presentation thereof.</p> <p>4. Sec. 11 of said ordinance provides as follows:</p> <p>'The said United Gas Improvement Company, its successors and assigns, shall be entitled to enforce the same penalties for nonpayment of bills at the office of the Company within five (5) days after presentation as are now in force in the City of Philadelphia, and to the same remedies against consumers for breaches of their contracts for the supply of gas.”</p> <p>5. The Philadelphia Gas Works were originally constructed under the authority of an ordinance of councils, of March 21, 1835, whereby the powers necessary for the construction and operation thereof were vested in twelve trustees elected by councils. By sec. 5 of said ordinances it was provided, inter alia, as follows:</p> <p>''The said trustees shall from time to time prepare and submit to Councils, for their approbation, rules and regulations under which the gas may be furnished to private consumers and to the public lamps.”</p> <p>6. By an ordinance of councils of February 8, 1838, it was provided in sec. 4 as follows:</p> <p>“ It shall be lawful for the said trustees to provide, from time to time, such further and other rules and regulations under which the gas may be furnished to private customers, as' experience may suggest, and as the said trustees may deem necessary or convenient in the use or consumption of gas.”</p> <p>7. Pursuant to said ordinance of 1838, the trustees of the gas works, on July 12, 1839, adopted the following rules and regulations:</p> <p>“Sec. 13. In default of payment for gas consumed, within ten days' after a bill is rendered, or in case of a leak or injury done to the meter or pipes within the premises of any consumer, the flow of gas may be stopped until the bill is paid, or the necessary repairs are made.</p> <p>“Sec. 14. The price of gas will be fixed from time to time by the trustees; and a penalty of three per cent will be added on all bills for gas not paid at their office within five days after presentation.”</p> <p>8. By an ordinance of councils of March 20, 1855, the said trustees were authorized and empowered to take charge of and exercise exclusive control over, and have the management of, the several gas works and all the property appertaining thereto “now in possession of the Corporation of the City of Philadelphia, or that may hereafter be in its possession.’” Said ordinance further provided:</p> <p>“And the said Trustees shall have the same power to make contracts or materials, labor and superintendence, to be used and employed in said works and to collect all debts now due or hereafter to become due to the same, as they now have under the ordinances of the Mayor, Alderman and Citizens of Philadelphia, relating to the gas works built under their authority, and to enforce the same rules and regulations for the introduction and consumption of gas, as are now or may be hereafter authorized by the said ordinance or any other ordinances duly enacted.”</p> <p>9. By ordinance of December 30, 1886, sec. 23, the trustees of the Philadelphia Gas Works were abolished, and by virtue of sec. 28 of said ordinance, and of the Act of June 1, 1885, P. L. 37, art. IV, sec. 1, all the powers, duties, incidents and functions of said trustees were vested in the department of public works, bureau of gas, said bureau of gas being created by ordinance of April 4,1887.</p> <p>10. By agreement made November 12, 1897, in pursuance of an ordinance of councils approved on the same date, the city of Philadelphia leased to The United Gas Improvement Company, for the term beginning November 12, 1897, and ending December 31, 1927, all the property, real and personal, collectively known as the Philadelphia Gas Works, with the appurtenances, comprising generally the land, buildings, tenements, machinery, apparatus, tools, mains, pipes, surfaces, meters, and other appurtenances possessed or used by or for the city of Philadelphia in the manufacture, storage, sale, distribution and supply of gas, with authority and power during the term oí said lease, to maintain, and to operate said •gas works and appurtenances.</p> <p>11. Said lease provides as follows:</p> <p>“Clause 11. The price which shall be-charged to all consumers, other than the city of Philadelphia, by the said The United Gas Improvement Company, its successors and assigns, shall, until otherwise provided by ordinances of Councils, be one (1) dollar per thousand cubic feet. It shall be competent' for Councils to reduce these charges from time to time by ordinances; but said ordinances shall not at any time reduce the price below the following:</p> <p>“Until and including the thirty-first day of December, 1907, ninety (90) cents per thousand cubic feet.</p> <p>“From January 1st, 1908, until and including December 31st, 1912, eighty-five (85) cents per thousand cubic feet.</p> <p>“From January 1st, 1913; until and including Decembér 31st, 1917, eighty (80) cents per thousand cubic feet. '</p> <p>“From January 1st, 1918, until and including December 31st, 1927, seventy-five (75) cents per thousand cubic feet.</p> <p>“The said The United Gas Improvement Company, .its successors and assigns, shall be entitled to enforce the same penalties for nonpayment of bills at the offices of the Company within five (5) days after presentation as are now in force in the city of Philadelphia, and to the same remedies against consumers for breaches of their • contracts for the supply of gas.'</p> <p>“But it is distinctly understood and agreed that nothing herein contained shall give' to said The United Gas Improvement Company, its successors or assigns, any lien or claim upon a property' for a tenant’s or occupant’s gas bills, or give the right to said The United Gas Improvement Company to refuse to furnish gas to any subsequent tenant or occupant of said property by reason of prior tenant or occupant having failed to pay the bill: Provided, however, That said The United Gas Improvement Company, its successors or assigns, shall not be required to furnish gas to any person, firm or body corporate indebted for arrearages due for gas theretofore supplied to them. ■</p> <p>“Bills shall not be rendered more frequently than are now rendered to various classes of consumers.”</p> <p>12. Said lease further provides:</p> <p>“Clause 12. The United Gas Improvement Company, its successors or assigns, shall pay to the city of Philadelphia, in each year during the continuance of this agreement, as follows, viz.:</p> <p>“Upon all gas sold prior to January 1st, 1908, all sums received by them in excess of ninety (90) cents per thousand cubic feet.</p> <p>“Upon all gas sold after December 31st, 1907, and prior to January 1st, 1913, all sums so received in excess of eighty-five (85) cents per thousand cubic feet. •</p> <p>“Upon all gas sold after December 31st, 1912, and prior to January 1st, 1918, all sums so received in excess of eighty (80) cents per thousand cubic feet.</p> <p>“Upon all gas sold after December 31st, 1917, and prior to January 1st, 1928, all sums so received in excess of eighty (80) cents per thousand cubic feet.</p> <p>“Statements shall be rendered and payments made under this clause by the lessee to the city as follows: Within twenty-five (25) days after the expiration of each quarter of each year for which any payment is to be made, beginning with the quarter preceding the first day of January, 1898, said The United Gas Improvement Company shall file with the Controller of the City of Philadelphia a statement sworn to by its President or Vice-President or by its Secretary or Treasurer, which shall state the quantity of gas measured in cubic feet sold hereunder within the quarter ending with the last day of the preceding month, the amount of money collected for such sales, or for sales in any previous quarter, and the amount of money due and payable to the City of Philadelphia under the provisions of this clause out of such receipts; and shall make payment to the City Treasurer of such amount so ascertained to be due to the City of Philadelphia hereunder within five (5) days after the expiration of said period of twenty-five (25) days. The City of Philadelphia shall have the right at all reasonable hours during the continuance of this contract, by its proper officers, to examine those books of the lessee which show the amount of gas so sold and paid for, so as to verify the correctness of said statements.”</p> <p>13. In accordance with clauses 11 and 12 of said lease the defendant has paid to the city of Philadelphia sums of money aggregating $3,608,159.94 in quarterly payments from January 1,1898, to July 1,1905.</p> <p>The aforesaid penalty for nonpayment of bills was continuously enforced by the trustees of the Philadelphia Gas Works and by the bureau of gas, successively, from 1839 until 1898.</p> <p>14. The defendant has not compelled the payment of the aforesaid penalty of three per cent by the plaintiffs or other consumers of gas, by threatening to cut off and by cutting off the supply of gas of consumers who, having incurred the said penalty; refused to pay the same within ten days after the date of presentation of bills. The defendant has exercised its right, under sec. 13 of the rules and regulations above set forth, in the event of default in payment for gas consumed within ten days after a bill was rendered, to stop the flow of gas until the bill was paid; but this defendant has never stopped the flow of gas for nonpayment of a penalty, as averred in paragraph 4 of the bill.</p> <p>15. On or about September 25, 1901, the plaintiff, Maurice L. Bower, applied for gas to be supplied under the company’s rules and regulations to premises No. 426 North Eighth street, and signed an application, a copy of which, marked exhibit “A,” is annexed to the answer, whereby he agreed to pay 'for the same promptly at the regular price and according to the rules of the company. On or about March 8, 1904, the defendant collected from Maurice L. Bower two cents as a penalty for nonpayment within five days of a bill presented on or about March 1, 1904, for gas consumed on said premises.</p> <p>16. On or about March 18, 1902, the plaintiff, Charles S. Aitken, applied for gas to be supplied under the company’s rules and regulations to premises No. 440 Salford street, and signed an application, a copy of which, marked exhibit “B,” is annexed to the answer, whereby he agreed to pay for the same promptly at the regular price and according to the rules of the company. On or about September 18, 1903, the defendant collected from Charles S. Aitken the sum of sixteen cents as a penalty for the nonpayment within five days of a bill presented on or about September 1, 1903, for gas consumed on said premises.</p> <p>17. On or about May 8, 1896, the plaintiff, James J. Doran, applied in writing to the city of Philadelphia for gas to be supplied “under the terms and conditions hereinbefore stipulated ” to premises 2212 Dickinson (now Firth) street. Subsequent to the aforesaid lease between the city of Philadelphia and the defendant, the defendant continued to supply gas to the said premises, and on or about February 20,1903, collected from James J. Doran, forty-nine cents as a penalty for the nonpayment within five days of a bill presented on or about February 10, 1903, for gas consumed on said premises,</p> <p>18. On or about June 28, 1904, the plaintiff, John Allsback, Jr., applied for gas to be supplied under the company’s rules and regulations to premises No. 60 South Second street, and signed an application a copy of which, marked exhibit “C,” is annexed to the answer, whereby he agreed to pay for the same promptly at the regular price and according to the rules of the company, On or about September 17,1904, the defendant collected from John Allsback, Jr., twenty-nine cents as a penalty for the nonpayment within five days of a bill presented on or about September 7,1904, for gas consumed on said premises.</p> <p>19. A copy of the rules and regulations referred to in said applications, marked respectively exhibits “A,” “B,” and “C,” is annexed to the answer marked exhibit “D.” A copy of said. rules and regulations were also printed upon the back of every bill rendered by the defendant to consumers of gas. All gas consumed by the plaintiffs, Maurice L. Bower, Charles S. Aitken, James J. Doran and John Allsback, Jr., was furnished by the defendant in accordance with their respective written applications, as above set forth and in each instance the penalty of three per cent was collected by the defendant, in accordance with said rules and regulations, and in accordance with their respective contracts. A great majority of the consumers of gas in the city of Philadelphia have signed applications in the forms herein set forth, and have expressly agreed to be bound by the rules and regulations aforesaid.</p> <p>20. The defendant has collected, in penalties from the consumers of gas in the city of Philadelphia, many thousands of dollars.</p> <p>21. Defendant is by law obliged to furnish gas to all persons residing in the city of Philadelphia occupying premises' therein who apply therefor and comply with the defendant’s rules and regulations, and furnishes gas on credit to large numbers of persons of small means, against whom it is impossible to collect the amounts due by process of law.</p> <p>22. Defendant renders bills quarterly except in cases where a consumer requests a monthly bill. Where a bill is rendered quarterly, defendant’s inspector reads the meter, on an average, two weeks before the bill is rendered, and at the time of reading the meter the inspector leaves wjth the consumer or with one of his family a written statement of the quantity of gas indicated by the meter to have been consumed, from which, by comparison with the last previous reading, the consumer may readily calculate the amount of the bill about to be rendered. Where a bill is rendered monthly the inspector reads the meter, on an average, one week before the bill is rendered, and at the same time leaves with the consumer a written statement of the quantity of gas consumed.</p> <p>OPINION.</p> <p>The United Gas Improvement • Company possesses franchises duly conferred by its charter, and as a business agency it has the power to transact business as an individual might, save as restricted by its articles of incorporation. It may, therefore, in operating its plant and furnishing citizens with illuminating gas, prescribe rules, regulations and conditions, not only for the manufacture of its product, but also for the sale of it to the public at large. In taking the leasehold of the property from the city, it stipulated not to prescribe certain rules. With respect to these, therefore, as well as to rules exceeding its charter limitations, it must be held incapable of enforcing them. The rule or regulation complained of by the plaintiffs, if not of this prohibited character and if such as an ordinary trading concern might adopt, must be respected unless it is against public policy.</p> <p>The plaintiffs contend that the regulation for the demand of three per cent on arrears remaining due beyond a certain time, is not a proper regulation of trade. If we are to regard it as prescribing a penalty for nonpayment of moneys due, it is against the law, because it is not warranted by any effective statutory provision, but depends only upon municipal ordinance: Emery v. Boyle, 200 Pa. 249; whilst if we are to regard it as a provision for liquidated damages, it can secure to the defendant company nothing more than actual compensation for the loss incident to the plaintiffs’ deferred payments. As we have understood the argument made in behalf of the plaintiffs, it is to be considered, further, that the regulation named, even if not open to the two objections just stated, cannot be countenanced by a court of equity, inasmuch as it is against public policy.</p> <p>The regulation or stipulation to the effect that a failure to pay for the consumption of gas, at a time named and after notice provided for, must result in one of two consequences, either in the shutting off of the supply from the premises of the debtor, or in his payment of three per cent as compensation for his delinquency, is one that, as a trading concern, the defendant might insist upon, independently of any terms of the grant by the city to it. Whether or not it is regarded as derived from the municipal authority, it is valid and effective by the light of the decisions of the Supreme Court upon the judicial investigation by that court of the powers of the city in supplying gas to its inhabitants, from the year 1838 to the time of the creation of the trustees of the City Gas Works and thence to the time of the contract of the city with the defendant company.</p> <p>In view of the authorities, to which we shall later briefly refer, the question of public policy suggests the broader ground for the plaintiffs’ contention. It may be urged that the rule for what is called the penalty operates to place a delinquent consumer under pressure or duress, inasmuch as when behindhand in his indebtedness he finds himself confronted with the alternative of paying what he may regard as neither lawful interest nor a lawful penalty, or of being deprived of the essential comfort of artificial light. He is forced to this position although ready to pay the manufacturer the arrears due by him, plus the legal rate of interest for his delay, and must elect to submit to a charge which is not prescribed by statute, or to lose the material convenience of a supply of light, unattainable elsewhere as conveniently, and which is undoubtedly more advantageous to him in respect of stability and cheapness than illumination from other sources, as, for instance, from applied electricity, or the burning of oil. And yet these considerations are not weighty. They originate, it must be remembered, in the failure of one the parties to a contract to duly perform his part, and his complaint is not free from the criticism that it disregards certain circumstances which make against him, and for some of which he is exclusively responsible.</p> <p>By nonpayment at the maturity of his account, each of the plaintiffs became one of a class who had knowingly exposed themselves to a consequence with which they were familiar and which they had deliberately invoked by the terms procuring the gas for them. No discrimination was made against him as an individual, nor did any action of the defendant procure a discrimination against him as one of this class. By his failure to pay at the date he had stipulated for, and by permitting the lapse of the interval of grace allowed him, he ranged himself in the company of delinquents. No one placed him there but himself. And he had agreed to stand there in the contingency which he later created.</p> <p>The defendant, it is true, has substantially the monopoly of the supply to the city, and as it derives its right from the municipality it must be required to afford a supply to the masses upon reasonable terms and without more than a reasonable compensation. Equity would take hold of and check any course of action indicating that unfair exercise of power which has always made a monopoly odious. But unless we find that a citizen proposing to use gas and constrained to purchase it' from one company because he can get it from no other source as satisfactory, in signing an agreement that he will pay at a certain rate for use and at an additional rate upon his neglect to comply with his contract, is under such duress as to require a chancellor to direct a modification of the terms so that the consumer obtains all that he bargained for and the provider must take less, we cannot conclude that relief is of right.</p> <p>This brings us to the true bearing of the question of public policy. The prompt collection of its returns is necessary to the defendant’s economical and efficient working of its plant and to a copious and steady supply to its customers according to its obligations. It is necessary, also, to the payment of its rentals to the city. The permitted increase of arrears on the part of all who failed to pay what they owed would seriously impair the power of the defendant to give good service generally. It might also lessen the revenue of the lessor. The laxity would become general and uncertainty ensue. The delinquents might have to face evils wider than that of which they complained, as, for instance, a higher rate and a poorer quality; and these considerations make it clear that the regulation for the so-called penalty operates beneficially if we have in mind the welfare of all consumers alike. In a large business combination for securing one of the necessities of life, essential in every hour of every day, and reaching to great manufacturing plants as well-as to domestic privacy, where darkness might involve extensive loss and even calamity, al| parts of the system should work harmoniously; and when consumers have agreed to a scheme that is practical, broad and efficacious, there is no merit in the contention of a few individuals of one of the classes that they, perhaps themselves an inconsiderable minority of that very class, must be allowed exceptional consideration. Even of this class a majority might prefer that the regulation should prevail. The interests of a few must; in equity, give way to the general interests of the public, and these last, it is obvious, are sub-served by the regulation for the penalty.</p> <p>There is also a circumstance established by the plaintiffs which must weaken the argument that they are aggrieved to a peculiar degree by the demand for the three per cent on their accounts in arrear. It was admitted for them at bar that upon nonpayment within the stipulated time the defendant might of right cut off the supply from their premises. If such was the case, and the point appears indisputable, Miller v. Wilkes-Barre Gas Co., 206 Pa. 254; Com. v. Phila., 132 Pa. 288, their decision that the payment of the penalty was preferable to this loss must be regarded as an acceptance by them of a consequence less serious than one which they had incurred, which was legal, and which they had no right to avert, and did not ask to avert, in this proceeding. They in fact compromised for an admitted lapse from their agreement.</p> <p>We therefore conclude that the plaintiffs have not shown a case in equity which entitles them to relief on the broad ground we have considered.</p> <p>We turn to the commercial aspect of the inquiry.</p> <p>It has been held that the city of Philadelphia when it undertakes the manufacture and sale of gas acts as a private corporation, and has the same powers with respect to the conduct of its business as are possessed by such a body. This was adjudged in the Western Saving Fund Society v. Phila., 31 Pa. 175-185; Wheeler v. Phila., 77 Pa. 338.</p> <p>The contracts which a municipal corporation may make for the purpose of supplying the .inhabitants with gas-light in their streets and houses, relate to the “things of commerce,” as distinguished in the civil law from the “things public,” which are regulated by the sovereign. Such contracts are not made by the municipal corporation, by virtue of its powers of local sovereignty, but in its capacity of a private corporation. The supply of gas-light is no more a duty of sovereignty than the supply of water: Lewis, C. J., speaking for the court in Western Saving Fund Society v. Phila.; 31 Pa. 175.</p> <p>In the Western Saving Fund Society v. Phila., a later adjudication, 31 Pa. 185, it was said for the court by Mr. Justice Strong : “ As a local sovereign it had no authority to enter into the business of manufacturing and selling gas, for its sovereignty did not extend to such subjects any more than it did to almost any other manufacture. . . . When such a corporation engages in things not public in their nature it acts as a private individual; no longer legislates, but contracts, and is as much bound by its engagements as is a natural person. The distinction between public duties and: private business is wide and obvious.”</p> <p>In the Girard Life Insurance Co. v. Philadelphia, 88 Pa. 393, this doctrine was restated and affirmed. See also Brumm’s Appeal, 22 W. N. C. 137; Bailey v. Phila., 184 Pa. 594.</p> <p>In Miller v. Wilkes-Barre Gas Co., 206 Pa. 254, Mr. Justice Dean said: “That a municipality or corporation furnishing water or gas may by ordinance or by-laws make’ reasonable rules and regulations to insure the payment of bills, among others that of stopping the supply unless all arrearages are paid, whether owing by the tenant in possession or his predecessor, has been settled.”</p> <p>The provision complained of at bar has been effective in Philadelphia for about thirty-six years; and a like provision with respect to water rents has been enforced for about fifty years. In Girard Life Ins. Co. v. Phila., 88 Pa. 393, a bill was filed to restrain the city from cutting off the supply of water to premises purchased at sheriff’s sale. The water department had claimed the right to shut off the supply unless payment was made of arrears for three years, together with a penalty of fifteen per cent. It was admitted that the city had the right to collect one year’s arrears as a condition of supplying water, but it was contended that the ordinance of councils did not authorize the water department to demand more than one year’s rent. That ordinance was sustained as a reasonable provision for enforcing payment.</p> <p>We find authorities in the books which are applicable by analogy to the case before us and sustain the contention of the defendant as to the validity of the provision for the payment of three per cent upon default: Phila. v. Cooke, 30 Pa. 56; Commonwealth v. Wagner, 24 W. N. C. 171; Bray v. Phila., 11 W. N. C. 202; Altoona v. Shellenberger, 6 Pa. Dist. Rep. 544; Smith v. Scranton Gas & Water Co., 5 Lack. Leg. N. 235; Appeal of City of Harrisburg, 107 Pa. 102; Foster v. Trustees of Gas Works, etc., 12 Phila. 511; Trimmer v. Water Co., 4 Kulp, 293.</p> <p>All these cases support in one form or another regulations for the coercion of payment of arrears due for the supply of great necessities like gas and water. Taxes demanded upon proper assessment from citizens for the privileges of residence may in some respects be regarded as analogous to payments made for participation in the general use of artificial light supplied by municipal arrangement with the manufacturer. The legislature has sanctioned the enforcement of prompt payment of taxes by a penalty: Vide Act of April 17, 1861, P. L. 354; Act of June 30, 1885, P. L. 193.</p> <p>The cases quoted in the earlier part of this discussion are directly to the point, and therefore we need not seek the aid of other decisions, however applicable they may be, by way of stating the principles of law which must guide us herein.</p> <p>The bill should be dismissed. Let due notice be given and a form of decree be presented.</p> <p>Error assigned was decree of the court dismissing the bill.</p>

Appeal, No. 41, April T., 1908, by plaintiff, from order of C. P. Warren Co., Dec. T., 1905, No. 31, discharging rule for judgment for plaintiff non obstante veredicto, in case of International Savings & Trust Company, Receiver of the Duquesne Mutual Casualty & Indemnity Co., v. A. A. Printz. Assumpsit for an assessment against a member of an insolvent insurance company. Before 'Lindsey, P. J. The opinion of the Superior Court states the case.

Appeal, No. 212, Oct. T., 1906, by plaintiffs, from order of C. P. Bucks Co., April T., 1904, No. 24, refusing to take off nonsuit in case of Daniel Louderback et al., Trustees of Penns Meadow Company, v. Geo. Warner. Assumpsit to recover assessments by a meadow company. At the trial the court entered a compulsory nonsuit. On a rule to take off the nonsuit, Stout, P. J., filed the following opinion: By Act of assembly approved March 4, 1815, 6 Sm.

Appeal, No. 234, April T., 1908, by plaintiff, from order of C. P. Lawrence Co., Dec. T., 1907, No. 135, discharging rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia Typewriter & Supply Company v. Smith, Hutton & Kirk Company. Rule for judgment for want of a sufficient affidavit of defense. The plaintiff claimed the price of a typewriter sold and delivered to the defendant.

Appeal, No. 189, Oct. T.,1907, by The Delaware & Atlantic Telegraph & Telephone Company, from decree of C. P. Delaware Co., March T., 1906, No. 172, on petition. Petition of the Delaware &' Atlantic Telegraph & Telephone Company to determine the reasonableness of license fees imposed by the borough of Sharon Hill. Before Johnson, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 9, April T., 1908, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 595, on verdict of guilty in case of Commonwealth v. Wilkinsburg Borough. Indictment for nuisance.

<p>Appeal, No. 8, March T., 1908, by Hess-Farris Mineral Exploration Company and Barclay Johnson, from order of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 26, dismissing exceptions to auditor’s report in case of Commonwealth ex rel. Attorney General v. Union Surety & Guaranty Company.</p> <p>Exceptions to report of John R. Fox, Esq., and Charles L. Brown, Esq., auditors.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 19, March T., 1908, by plaintiff, from order of C. P. Wyoming Co., April T., 1903, No. 143, making absolute rule to strike off judgments in case of Lucy B. Osterhout v. H. B. Briggs and S. H. Briggs. Rule to strike off judgments. Before Terry, P. J. The opinion of the Superior Court states the case. ■Error assigned was the order of the court making absolute rule to strike off judgments.

<p>Appeal, No. 78, Oct. T., 1907, by-plaintiff, from decree of C. P. No. 2, Phila. Co.,-Dec. T., 1905, No. 303, dismissing bill in equity in case of Frank Koenig v. The United Gas Improvement Company.</p>

<p>Deed — Estate tail — Heirs—Children.</p> <p>Although a stricter construction is applied to deeds than to wills, yet in deeds, the intent of the grantor, when legal, is a governing principle in their construction. This applies as well to the words “heirs” or “children” as to any other part of a deed, and they are to be construed as words of limitation or purchase as the intent requires.</p> <p>A deed to a woman, her heirs and assigns, which directs in a clause following the description of the land, that “the above described property shall go to the grantee and to her personal children and to no other,” creates in the grantee an estate tail which by the operation of the Act of April 27, 1855, P. L. 368, is enlarged into an estate in fee simple. The words “her personal children” are to be construed in the sense of “heirs of her body.”</p>

<p>Appeal, No. 59, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., May T., 1907, No. 8, sustaining judgment of justice of the peace in case of Commonwealth ex rel. W. L. Riley, Agent Anti-Saloon League, and to the use of the Middle Coal Field Poor District, as well as to himself, v. Michael Hudock.</p> <p>Certiorari to judgment- of justice of the peace. Before Fuller, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the judgment of the court.</p>

<p>Trusts and trustees — Trust fund — Contract—Mingling of trust funds and general assets.</p> <p>Where a sum of money is held by a surety company as a fund to indemnify the company against loss on a contract of suretyship, and the owner of the fund asks that the money shall be invested so that it shall bear interest or that the company shall pay interest, and the company agrees to pay interest, and thereafter deposits the money in its general account, the owner of the fund after the insolvency of the company has no preference in the distribution of the assets of the company. In such a case even if there had been no agreement as to interest, and the fund was in fact a trust fund, the owner would not be entitled to a preference unless he traced the fund into some specific property, or into some particular moneys or accounts of the insolvent company, which had passed into the hands of its receiver or assignee.</p>

<p>Road law — Change of grade — Petition of property owner — Damages— Act of May 16,1891, P. L. 75.</p> <p>A borough has the power to ordain the grading of a street without a petition having been presented by a majority of the owners of abutting property praying for the making of the improvement; and this power has not been taken away by the Act of May 16, 1891, P. L. 75, or by any later legislation, such as the Act of May 22, 1895, P. L. 106, relating to the -opening, widening, straightening or extending of streets, or the Act of May 19, 1897, P. L. 79, relating to the imposition of assessments upon abutting property according to the “foot-front rule.”</p> <p>Borough authorities alone have the lawful authority to change the grade of streets, and a lawful contract between a borough and a street railway company which necessarily results in a change of grade of a highway, must be construed as an ordinance of the borough providing for such change, and the change itself is a municipal improvement, rendering the borough liable in damages for injuries to abutting property resulting therefrom.</p> <p>Where a borough grants to a street railway company the right to use a street on condition that it shall grade and pave a portion of the street, the fact that the borough subsequently grades and paves those portions of the street outside of that part which the railway company graded and paved, does not relieve the borough from liability for injuries to property resulting from the change of grade made by the railway company; and damages for such injuries may be assessed under the Act of May 16, 1891, P. L. 75, without a preceding petition by property owners.</p>

<p>Public officers — Increase of salary — Constitutional officers — Legislative officers — Beal estate assessors.</p> <p>The term “public officers” is not restricted merely to offices created by constitutional provisions, but applies to officers who exercise important public duties, have delegated to them some of the functions of government, and whose offices are for a fixed term and whose powers, duties and emoluments become vested in a successor, when the offices become vacant.</p> <p>Real estate assessors in counties having a population of 1,000,000 or .over are public officers within the meaning of sec. 13, art. Ill of the constitution of Pennsylvania, which provides that: “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment.” Such officers are not entitled to the benefit of the Act of May 31, 1907, P. L. 329, which increases the salaries of real estate assessors in counties having a population of 1,000,000 or over from $2,000 to $3,000.</p>

<p>Will — Conversion—Presumption—Blending of real and personal estate.</p> <p>The presumption is against conversion by will, which is a legal fiction introduced on equitable principles to effectuate the intention of the testator. It is only to be resorted to when actually necessary to carry out the testamentary purpose. A direction to convert must be positive and the instrument resorted to must decisively fix on the ■land the quality of money. The direction to sell must be imperative ■and explicit. If it be contingent on the election or consent of the legatee ■or devisee or other person than the executor, such power of sale does not work a conversion, even where the will provides for a payment of legacies and distribution of the remainder of the fund. And this is so although the contingency on which the sale depends may never arise.</p> <p>■ Testator directed “that at any time after the decease of my wife, my said executors may be required by a majority of those having an interest therein to dispose of all that portion of my real estate on which I now reside, together with all the personal estate then having properly belonged to my said wife, and divide the proceeds of such sale in manner and proportion as follows:” He further directed that if his wife died prior to his youngest son arriving “at the age of twenty-one years, sái’d sale and distribution shall not take place until that period shall have arrived.” Held, that the direction to sell did not operate to produce a conversion at- the death of the testator, and no conversion •occurred until the real estate was sold by the direction of a majority of the surviving children.</p>

<p>Pipe line companies — Expert testimony — Opinion of witness.</p> <p>In an action against a pipe line company to recover damages for injuries to land, a witness called to testify as to the value of the land, may express an opinion as to the money damages sustained, based upon what he saw and knew, but not upon what he had merely heard.</p> <p>Pipe line companies — Grant of right of way — Injuries to land.</p> <p>Where an owner of land grants to a pipe line company the right to lay its pipes under his land, the company is not liable for any damages to the owner if it lays its pipes within the limits of the right of way,</p> <p>• according to the methods customarily adopted in prosecution of such undertakings, and without negligence.</p> <p>Where an owner of land grants to a pipe line company the right to lay lines of pipe on his land, and wherever the word “line” is used it is used in the plural, the laying of one pipe line within the limits of the grant is not an exhaustion of the right, and the company may thereafter lay other lines.</p> <p>If after such a grant the land changes ownership, and the new owner for a valuable consideration confirms the grant, he cannot prevent the company from laying new lines within the right of way, although he may never in fact have seen the original grant.</p> <p>Appeals — Assignments of error — Evidence.</p> <p>An assignment of error to a ruling admitting evidence is defective, which fails to set forth the evidence admitted, and will not be considered.</p>

<p>Negligence — Street railways — Breaking of trolley wire — Killing of horses — Presumption—Evidence.</p> <p>An action against a street railway company to recover damages for the death of two horses, cannot be sustained where the only evidence offered by the plaintiff is that a trolley wire broke, fell upon the horses passing beneath it, and killed them. In such a case the maxim res ipsa loquitur has no application.</p> <p>The maxim res ipsa loquitur is in itself the expression of an exception to the general rule that negligence is not to be inferred but to be proved affirmatively. The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer. Cases not coming under one or both of these heads must be those in which the circumstances are free from dispute and show, not only that they were under the exclusive control of the defendant, but that in the ordinary course of experience, no such result follows as that complained of.</p>

Appeal, No. 220, April T., 1908, by plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1907, No. 9, on bill in equity in case of W. T. Fogal v. Wm. M, Swart. Bill in equity for an injunction. Swearingen, P. J., found the facts to be as follows: 1.

<p>Appeal, No. 209, April T., 1908, by defendants, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 661, on verdict for plaintiff in case of Charles G. Mitchell v. W. A. Edeburn and Rachel L. Edeburn.</p> <p>Assumpsit to recover commissions on real estate.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Plaintiff presented the following points;</p> <p>1. If the jury believe from the evidence that the plaintiff, Charles G. Mitchell, produced to the defendants a purchaser in the person of John Z. Levy to whom a proposition of sale or exchange was made by or on behalf of the defendants, and that said Levy in good faith accepted said proposition, then a sale was made and the plaintiff is entitled to recover. Answer: Affirmed. [2]</p> <p>2. If the jury believe from the evidence that the defendants and John Z. Levy entered into a written agreement for the sale or exchange of certain real estate which included the real estate of the defendants described in plaintiff’s statement of claim filed in this case, and that said agreement was entered into by the defendants and said Levy as the result of the negotiations of the plaintiff acting for and as the agent of the defendants, then the plaintiff is entitled to recover. Answer: Affirmed. [3]</p> <p>The court charged, inter alia, as follows:</p> <p>[If Mr. Cochran put this property into Mr. Mitchell’s hands and Mr. Mitchell understood at the outset that he was to get a purchaser, but that Mr. Cochran was not bound to accept that purchaser if it was not convenient to pay the money, then Mr. Mitchell could not recover. But if that was not the understanding, but Mr. Mitchell was just employed to sell this property, and if he procured a purchaser for the property, although Mr. Cochran at the end refused to carry the transaction through, that would not relieve the defendants from the payment. Because, if Mitchell was employed to sell the property, and in good faith set about the sale of it, and finally secured a purchaser, and there is no doubt he had secured a purchaser, if you believe the testimony of Mr. Levy, and in fact, all the testimony in the case indicates that a purchaser had been secured upon the terms suggested by Mr. Cochran. If you believe that, and believe that Mitchell did not understand at the outset that if he did sell the property Mr. Cochran would ultimately have the right to say whether he would reject the purchaser because he could not raise the money, then the plaintiff would be entitled to recover.] [4]</p> <p>[If Mitchell performed his labors and secured a purchaser, and it was not understood that Mr. Cochran could turn the deal down at' the last for any reason he wished, then the plaintiff would be entitled to recover, and that, regardless of the question of Mr. Cochran refusing at the last to consummate the deal.] [5]</p> <p>[He, Mitchell, notified Mr. Levy, of course, that the papers had been signed, and if the reason why the transaction was not carried out was because Mr. Cochran could not raise the money at the time, as I have said to you, that would not be an answer to Mr. Mitchell’s claim; he would still be entitled to recover, unless when he entered into the transaction in the first place it was understood Mr. Cochran could refuse to take it.] [6]</p> <p>[But Mr. Mitchell was entitled to have his commissions, whether Mr. Cochran agreed to pay them or not, at the time of this conversation.] [7]</p> <p>Verdict and judgment for plaintiff for $596.18. Defendants appealed.</p> <p>■ Errors assigned amongst others were (1) answer of court to juror’s question as recited in the opinion of the Superior Court; (2-7) above instructions, quoting them; (8) in refusing to withdraw a juror and continue the case, and (9) that the charge as a whole was inadequate and misleading, but not quoting the charge.</p>

<p>Appeal, No. 204, April T., 1908, by plaintiff, from decree of C. P. Indiana Co., June T., 1906, No. 1, dismissing bill in equity in case of Daniel Mikesell v. R. W. Wehrle and Wm. M. Moore.</p> <p>Bill in equity to reform a deed. Before Telford, P. J.</p> <p>The trial judge filed the following opinion:</p> <p>FINDINGS OF THE JUDGE.</p> <p>1. That the plaintiff is the owner of a tract of land in Burrell township, containing 104 acres, more or less, and on June 17, 1902, made an optional agreement for the sale of the coal thereunder, with mining rights and privileges, to William M. Moore, “ excepting and reserving twenty-five to thirty acres of coal in the tops of the hills.”</p> <p>2. That R. W. Wehrle, under agreement, acquired the interest of William M. Moore in said optional agreement.</p> <p>3. That William M. Moore accepted said optional agreement.</p> <p>4. That in 1904 plaintiff opened “ the coal in the tops of the hills” claimed by him under the reservation and has since worked this vein.</p> <p>5. That this vein is about twenty-five to thirty acres in extent, is close by the house, is the only vein on the premises answering the description in the optional agreement, and is the vein contemplated by the parties to that agreement.</p> <p>6. That the vein alleged by R. W. Wehrle to have been lately opened on the plaintiff’s lands, is limited in extent not exceeding two. acres, was not known to the plaintiff and was not in contemplation of the parties to the optional agreement.</p> <p>7. That in March, 1903, R. W. Wehrle had knowledge of the existence of the optional agreement and made an offer through J. D. McCracken to Mikesell “for the coal he had reserved and the surface;” Wehrle also was told by Mikesell that he would reserve the. top seam and that Moore had an option.</p> <p>8. That prior to January 16, 1905, the defendants caused a deed to be prepared for the plaintiff to execute to Moore and another for Moore to execute to Wehrle; that these deeds are substantially alike and instead of the reservation contained in the optional agreement, contained a reservation of the “ seam or bed of coal which may be in, upon or under the above described premises known as the ‘ Pittsburg Seam.’ ”</p> <p>9. That on January 16, 1906, R. W. Wehrle, who resides in Indiana, Pa., and William M. Moore, who resides in Greens-burg, Pa., by arrangement, met in Blairsville with A. E. Fretts and D. S. Potts of Greensburg; that the purpose of this meeting was to secure the execution of a deed by Mikesell to Moore for the coal underlying the tract owned by Mikesell; and a deed from Moore to Wehrle; that Wehrle employed Jacob Geib, a justice of the peace of Blairsville, to go with Moore, Fretts and Potts to the home of Mikesell and take an acknowledgment of said deed, Wehrle paying the justice for his services and hiring and paying for the conveyance in which they went; that Wehrle gave to the justice the sum of $800 to pay to Mikesell the cash payment; that Moore, Fretts, Potts and the justice went to Mikesell’s, tendered the deed and demanded its execution; that Mikesell refused to execute the deed until he was assured by Moore that the deed was right and like the optional agreement and thereupon he signed it, the justice taking the acknowledgment and paying to Mikesell the sum of $713.33; Moore, Fretts, Potts and the justice then returned to Blairsville and the justice repaid to Wehrle the residue of the $800, and Moore delivered to Wehrle the Mikesell deed and also the deed for the same coal which Moore had acknowledged the same day before coming to Blairsville.</p> <p>10. That in January, 1906, Wehrle went to the home of Mike-sell and notified him not to dig the vein which Mikesell had opened in 1904; that then and there Wehrle claimed that Mikesell had reserved the “Pittsburg Vein and it had run out before it came there,” and upon Mikesell claiming that he had reserved and still owned the top seam of coal Wehrle said he had sent him a good justice of the peace.</p> <p>' 11. That in the securing of the deed from Mikesell to Moore Jacob G. Geib, justice of the peace, was the agent of Wehrle and participated in the transaction by the payment to Mikesell of the cash consideration.</p> <p>12. That there is no vein of coal in the neighborhood of the Mikesell farm known as the Pittsburg Vein, and the vein reserved by Mikesell is above the house, close by.</p> <p>DISCUSSION.</p> <p>There is evidence in this case sufficient to justify the conclusion that in the execution of the deed from Mikesell to Moore, Mikesell was deceived and was led to believe that the coal reserved in his option was also reserved to him in his deed. Jf this proceeding affects the rights of Moore, one of the defendants, only, an order would be made that the deed be reformed according to the first prayer of the bill. The rights of William M. Moore, however, had passed to R. W. Wehrle, and unless he participated in or was cognizant of the fraud, he could not be affected by it. There is no direct evidence that he had such knowledge. Circumstances are shown from which it might be inferred. He offered to purchase from Mikesell the surface and the coal reserved at a price named by him at a time when no other coal above the vein outcropping near Mikesell’s house was known by him to exist.</p> <p>He participated in closing the contract by the execution of a deed from Mikesell to Moore through Jacob G. Geib, a justice of the peace, who represented him in the transaction in so far as the payment of the money was concerned, but no act of his or his agents, so far as we can discover from the testimony, induced the conveyance nor can we certainly conclude that the defendant, Wehrle, knew that the clause in the deed differed from that contained in the option, when he accepted the conveyance and paid or secured the payment of the purchase money to William M. Moore. The evidence to reform a contract must be clear, precise and indubitable and must establish the fact relied upon beyond a reasonable doubt: Breneiser v. Davis, 141 Pa. 85; Reed v. Horn, 143 Pa. 323; Boyertown Nat. Bank v. Hartman, 147 Pa. 558.</p> <p>CONCLUSIONS OF LAW.</p> <p>In the absence of satisfactory evidence that R. W. Wehrle,at the time he took title from William M. Moore, knew of the departure from the reserve clause in the agreement, or had conspired with William M. Moore to procure a deed in the form which it now appears by inducing the execution of such a deed by Mikesell, it would be unreasonable that he should now be prejudiced by such a change in its terms. The bill ought therefore to be dismissed at the cost of the plaintiff.</p> <p>And now, August 9, 1907, the bill is dismissed at the cost of the plaintiff.</p>

<p>Appeal, No. 176, April T., 1908, by defendant, from order of C. P. Somerset Co., May T., 1906, No. 195, dismissing appeal from summary conviction in case of Commonwealth v. T. J. E. Yocum.</p> <p>Certiorari to a summary conviction for violation of a borough ordinance.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned are set forth in the opinion of the Superior Court.</p>

<p>Appeals — Assignments of error — Misquoting charge.</p> <p>An assignment of error which misquotes the charge violates rule XV in regard to assignments totidem verbis.</p> <p>Contract — Lumber contract — Price—Charge—Points.</p> <p>On an issue to determine the amount due on a lumber contract where the evidence definitely fixes the contract price, and the issue is narrowed down to a difference between the parties in their respective measurements of the lumber, and of the dates on which it should be credited, the trial judge commits no error in instructing the jury that the rights of the parties are fixed to a credit for not more and for not less than the conceded contract price.</p> <p>Contract — Judgment—Interest.</p> <p>Where the defendant in a judgment entered upon a bond, bearing interest, agrees to pay the judgment by deliveries of lumber, upon which deliveries credits are to be allowed as of their several dates, plaintiff will be entitled to interest on unpaid balances.</p>

<p>Divorce — Presumption—Voluntary separation — Desertion.</p> <p>A divorce will not be granted to a husband for desertion by his wife, where there is no evidence as to whether his wife went voluntarily, was expelled by her husband, or left in pursuance of a mutual agreement, while there is evidence that the husband within a few days after the departure of his wife leased his house to a tenant, left the state, and never made any attempt to communicate with his wife, or to give her any intimation as to where he had located. In such a case the law will presume that the parties separated by mutual consent.</p> <p>Separation by mutual consent is not willful and malicious desertion, and is no ground for divorce in Pennsylvania.</p>

<p>Appeal, No. 18, April T., 1908, by defendant, from judgment of C. P. Beaver Co., June T., 1906, No. 331, on verdict for plaintiff in case of The President, Managers. and Company for Erecting a Bridge over Big Beaver Creek, at or near Wolf Lane, in the County of Beaver, a Corporation v. Beaver County.</p> <p>Assumpsit for the value of lumber. Before Holt, P. J.</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for ,1502.51. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 28, Jan. T., 1908, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1904, No. 712, upon verdict of guilty in case of Commonwealth v. Ashley Borough.</p> <p>Indictment for nuisance. Before Lynch, P. J.</p> <p>At the trial Dr. J. B. Tobias, a witness for .the commonwealth, was asked this question:</p> <p>“ Q. In what condition did you find the stream? A. I found the stream full of paper and mud and a very foul odor coming from it.”</p> <p>Defendant’s counsel object and ask that the answer be stricken out.</p> <p>The Court: He may testify to that. “Q. Tell what you found there? ”</p> <p>Objected to, objection overruled, question allowed, exception noted and bill sealed for defendant. [1]</p> <p>“ A. I found a bad odor from the stream. I found the stream containing a good many waste papers, and the water was cloudy, dark colored and a bad odor; could be observed from the banks of the stream.”</p> <p>Mr. Welles, sworn for defendant.</p> <p>Defendant proposes to prove by the witness on the stand, the borough engineer, that the day before yesterday he made a survey of the stream called Solomon’s creek and its tributaries, and found below the point where the Ashley sewer enters, a slaughter house sending fleshings, blood and other filth into the stream; and below that he found a stream which passes through the city of Wilkes-Barre from beyond Empire colliery and down through the Fourteenth ward and the Thirteenth ward, entering into the stream, which also contained all kinds of filth, waste water and excreta, and below that he found a fifteen-inch sewer of the city of Wilkes-Barre entering the stream, and below that and before it reaches the point where this complaint starts, other nuisances.</p> <p>Commonwealth objects to the evidence offered because the alleged nuisance complained of here was that which existed on September 9, 1904, and previous thereto, and any evidence as to the condition of the stream or sewers along the stream, or nuisances now existing, would not be relevant, it being subsequent to the time of the indictment. Objection sustained. [2]</p> <p>The court charged in part as follows:</p> <p>[It is said the sewage from this town of about 4,500 inhabitants is emptied into Solomon’s creek. The witnesses upon the part of the commonwealth testify that especially in low water, the offensive odor and noxious air that arise from this stream is not only a discomfort, but a positive menace to the health of the people. If you believe this evidence, there can be no question about the guilt of this municipality.] [3]</p> <p>[It is conceded this stream was polluted, that it was made foul, in part, at least, by the sewer of this municipality. Witnesses upon the part of the commonwealth have testified that people’s health and comfort are seriously affected by reason' of this pollution.] [4]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-4) above instructions,'quoting them.</p>

<p>Appeal, No. 10, April T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., July Term, 1904, No. 842, on verdict for plaintiff in case of C. A. Seitz v. Scottish Union & National Insurance Company.</p> <p>Assumpsit on a policy- of fire insurance. Before Frazer, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $927.73. Defendant appealed.</p> <p>Error assigned among others was in giving binding instructions for plaintiff.</p>

Appeal, No. 186, April T., 1908, by defendant, from judgment of C. P. Jefferson Co., April T., 1906, No. 327, on verdict for plaintiff in case of M. Windows v. E. C. Rudolph. Trespass for deceit. Before Ormerod, P. J., specially presiding. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $162. Defendant appealed. Error assigned was in not entering judgment for plaintiff non obstante veredicto.

<p>Public officers — Appointment—Civil service examination — Moral obligation — Compensation—Municipalities—Act of March 5, 1906, P. L. 83.</p> <p>Where a clerk is appointed by one of the heads of departments of a city of the first class without having passed the civil service examination required by law, and such clerk has performed valuable services for the municipality, a moral obligation is created in his favor which will sustain an ordinance of the councils of the municipality appropriating a proper sum for payment of the services rendered.</p>

<p>Common carriers — Carriers of live stock — Liability for negligence — Contract.</p> <p>A contract containing a stipulation limiting a carrier’s liability for negligence, if made in one state, but with a view to its performance in one or more other states, will be construed in accordance with the law where the negligent breach, causing an injury, occurs. Although such a limitation of liability is prohibited in Pennsylvania, yet the courts of this state will enforce the stipulation if the injury has occurred in a state where the contract is valid; but if the injury has taken place ( within the limits of Pennsylvania, the courts here will declare the contract null and void.</p> <p>Where a shipper undertakes the duty of feeding and watering a carload of mules and starts with the car for that purpose, but at a divisional point where a new train is made up becomes separated from the car and fails to find it before it has started, and thereafter the carrier fails to feed and water the animals, except at one point where it was improperly done, and as a result some of the mules are dead when the car reaches its destination, and others are injured so as to depreciate their market value, the question of the carrier’s negligence, and of the shipper’s contributory negligence in losing track of the car at the divisional point, are for the jury.</p>

<p>Bridges — County bridges — Crossing of highway — Substitution of one bridge for another — Act of June 13, 1836, secs. 35 and 37, P. L. 551.</p> <p>There is no authority under secs. 35 and 37 of the Act of June 13, 1836, P. L. 551, to construct a county bridge over a stream in substitution of an older bridge at a point 500 feet from the latter, where there is no highway on either side of the stream, where it will be necessary to construct lofty approaches aggregating 1,000 feet in length, and where a borough street will have to be extended to connect with the bridge.</p>

<p>Appeal, No. 88., April T., 1908, by defendant, from judgment of C. P. Washington Co., May T., 1906, No. 60, on verdict for plaintiff in case of W. F. Eastman v. Washington & Canonsburg Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Taylor, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were (1) in refusing binding instructions for defendant, and (3) that the charge as a whole was inadequate.</p>

<p>Appeal, No. 119, April T., 1908, by plaintiff, from decree of C. -P. Erie Co., Feb. T., 1906, No. 2, dismissing bill in equity in case of Matthew H. Taylor et al., Trustees under the Will of -William L. Scott, deceased, v. The Erie City Passenger Railway Company and Erie Electric Motor Company.</p> <p>Bill in equity for an injunction. Before Walling, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Insurance — Accident insurance — Death—Violent, external and accidental cause — Voluntary exposure to danger — Evidence—Burden of proof —Classification of risks — Railroad conductor — Passenger.</p> <p>Under a policy insuring against death caused solely by external, violent and accidental means, evidence that the insured was found dead between the tracks of a railroad near a station, with his left foot severed from the body, establishes a prima facie ease, and casts the burden of proof upon the insurer to show that death resulted from the doing of an unlawful act, or from a voluntary and unnecessary exposure of the deceased to danger or to the obvious risk of danger,— risks not within the terms of the policy.</p> <p>Where the insured in an accident policy, a shifting passenger conductor on a railroad, is killed after his day’s work is done, and while riding as a passenger on a train, the indemnity payable is to be determined not according to his occupation, but according to the fact that he was a railroad passenger, a less dangerous position under the classification of risks set forth in the policy.</p>

<p>Appeal, No. 193, April T., 1908, by plaintiff, from order of C. P. Washington Co., Nov. T., 1902, No. 158, staying execution in case of Frank Foster (now R. L. McCarrell) in trust for Margaret Passerieux v. John Passerieux and August Yalentour.</p> <p>Demurrer to petition for stay of execution. Before Mc-Ilvaine, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order staying execution.</p>

<p>Appeal, No. 53, April T., 1908, by defendant, from judgment of C. P. Westmoreland Co., Aug. T., 1904, No. 688, on verdict for plaintiff in case of Wiliiam A. Hunter v. Mary A. Hunter.</p> <p>Ejectment for land in Mt. Pleasant Township. Before Doty, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions, particularly referred to in the opinion of the Superior Court.</p>

<p>Executors and administrators — Settlement of account — Distribution— Laches.</p> <p>The only effect of the settlement of an administration account in the orphans’ court is to show the balance of assets in the administrator’s hands after the payment of debts and charges, and can have no bearing upon the amount due to legatees, or to repel the presumption of the payment of a legacy which arises from lapse of time. The distribution of the estate of a decedent is not required to await the settlement of the final administration account.</p> <p>As long as the relation of trustee and cestui que trust is acknowledged to exist between the parties, and the trust is continued, lapse of time can substitute no bar to an account or other proper relief for the cestui que trust. But when this relation is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties or other circumstances give rise to presumptions unfavorable to its continuance; in all such cases a court of equity will refuse relief upon the ground of lapse of time and its inability to do complete justice.</p> <p>Where there has been a distinct repudiation by the trustee of even a direct trust, and knowledge of the repudiation has been brought home to the cestui que trust, the case comes within the ordinary rules of limitation and laches. Laches will in equity bar a suitor of his remedy as effectually as the statute of limitations, and for the same reason his own inaction raising the identical presumption which the law raises, one from a mere lapse of time.</p> <p>At the time of the death of a testator, a legatee mentioned in the testator’s will had not been heard of for many years. The executor filed an account which was confirmed absolutely by the court. Three years thereafter, the legatee being still absent, the orphans’ court made a decree distributing the amount of the legacy, and the administratrix c. t. a. made actual distribution thereof. About three years after the distribution, the legatee, then a man of twenty-five or twenty-six years of age, returned, learned of the legacy and the distribution thereof, but he did nothing, and shortly afterwards disappeared, and remained away for a period of twelve years. He then returned, and filed a petition for citation against the administratrix. Held, that the legatee by reason of his laches was barred from any recovery on account of the legacy.</p>

<p>Trial — Improper remark of counsel — Continuance—Discretion of court —Review.</p> <p>The appellate court will not review the discretion of a trial judge in refusing to withdraw a juror and continue the case on account of an improper remark of counsel, where it appears that such remark was at once withdrawn upon objection, and that the court instructed the jury that they must not regard it.</p> <p>Evidence — Contemporary writings — Notice to produce — Admission of writing in evidence.</p> <p>Where two notices to quit possession are contemporary writings, the counterparts of each other, one of which was delivered and the other preserved, they may both be considered as originals and the one which was preserved may be received in evidence without notice to produce the one which was delivered.</p> <p>Trespass — Eviction—Illegal eviction — Possessory action.</p> <p>Where an unlawful eviction is effected under the form of a possessory action, the person who makes complaint is liable in damages for the trespass, although he may have instituted the proceeding at the instance of another person.</p> <p>Trespass — Unlawful eviction — Evidence—Matter immaterial to the issue.</p> <p>In an action of trespass to recover damages for an illegal eviction, it is error to admit letters indicating a willingness upon the part of the plaintiff to move out if she were paid a sufficient sum to recompense her for so doing, but in no way indicating that she did not assert that she had the right to remain.</p> <p>In such a case if the plaintiff denies having written the letters, it is not competent for the defendant to produce evidence contradicting ' her on that immaterial matter, and if such evidence is admitted it is error for the court to charge the jury that if they found that the plaintiff willfully perjured herself by the denial of the letters, then this would properly tend to discredit her claim and justify the conclusion that her testimony should be disregarded.</p> <p>Trial — Charge—Points.</p> <p>Where facts set forth in a point are undisputed, and the opposite party has admitted them to be true in his testimony, the party presenting the points is entitled to an unqualified affirmance of the legal conelusions arising from the facts stated in the points, and for the court to qualify the affirmance, is error.</p> <p>Decedents’ estates — Orphans’ court sale — Passing of title — Confirmation of title — Deed.</p> <p>The confirmation of an administrator’s sale by the orphans’ court, does not divest the title of the heirs of the decedent. Such title is only divested when the deed is actually delivered to the purchaser.</p> <p>Execution — Possessory proceeding — Act of April 9, 1849, P. L. 524.</p> <p>A proceeding to obtain possession under the Act of April 9, 1849, P. L. 524, instituted before a single justice of the peace is void for want of jurisdiction.</p> <p>Trespass — Wrongful eviction — Damages.</p> <p>Where a purchaser at an administrator’s sale, before a deed is delivered to him, institutes possessory proceedings under the Act of April 9, 1849, P. L. 524, before a single justice of the peace, and causes an heir of the decedent in possession to be evicted, he is guilty of an unlawful eviction, and is answerable for the consequences of his fault which are natural and probable, and súch as reasonable forecast and prudence might have foreseen. If in such a case there were crops on the land either ready for present use, or which ripened before the title passed to the purchaser, the person evicted is entitled to recover the value thereof; and if the furniture of the person evicted is thrown out of the house while it was raining, or when the weather conditions were such as to indicate rain, and the furniture was actually injured by the rain, the owner is entitled to damages for such injury.</p>

<p>Will — Construction—Vested and contingent interest — “Then living”— Children — Grandchildren.</p> <p>The general rule is that such expressions as “surviving brothers,” “who may then be living” and similar words are construed to relate to the death of the testator unless from the language of the will it is clear that they refer to some other date. If the intention is clear, however, that must control, and the particular words be given the effect which the testator designed. If this .intention can be ascertained the consideration that the disposition made of his property by the testator is unequal or inequitable must be left out of the case.</p> <p>Under a bequest to children, grandchildren are excluded unless it appear from the will that it was the intention of the testator to make provision for such relatives.</p> <p>Where real or personal estate is devised or bequeathed to such individuals as shall attain a given age or who shall sustain a certain character or do a particular act or be living at a certain time without any distinct gift to the whole class preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is contingent on account of the person, for the reason that until the age is attained or the character is sustained or the act is performed the person is unascertained.</p> <p>The testator owned two parcels of land, one of which he directed to be sold and the proceeds divided among the children of his first wife in the shares set forth in the will. As to the other piece of real estate it was provided that after the decease of his wife and the arrival of his youngest son at the age of twenty-one years the executors might be required by a majority of those having an interest therein to sell and dispose of the same. Of the proceeds of the sale $1,000 was to be given to each of his sons G. and W., and to his daughters C. and S., the same amount which he gave to each of their older sisters out of the first piece, with the further direction that in case there should be a surplus over the distribution as thus arranged, such surplus was to be “equally divided amongst all my children that may be then living.” Held, that the interests in the surplus of the testator’s estate were contingent, and vested only in his children who were then living when the land was sold, and the surplus thereby created.</p>

<p>Appeal, No. 11, April T., 1908, by William W. McBride, Administrator of Emily S. Morgan, deceased, et ah, from decree of O. C. Allegheny Co., Dec. T., 1906, No. 70, sustaining exceptions to adjudication in Estate of John Scott, deceased.</p>

<p>Divorce — Cruel and barbarous treatment — Mental suffering — Evidence.</p> <p>Any unjustifiable conduct on the part of either the husband or the wife which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as seriously to impair the bodily health or endanger the life of the other, or which utterly destroys the legitimate ends and objects of matrimony constitutes cruelty, although no physical or personal violence may be inflicted, or even threatened or reasonably apprehended.</p> <p>To warrant the granting of a divorce on the ground of the conduct on the part of either the husband or wife, as to render the condition of the other party intolerable and life burdensome, where there is no proof of overt bodily harm actually inflicted or threatened, the evidence should be strong and convincing, the course of ill-treatment complained of must haye been long continued, and of a serious character.</p> <p>A divorce will be granted to a wife where the evidence shows that the husband treated the libelant as a menial in the presence of servants, asserted that she was under the influence of designing and wicked persons, circulated reports that she was of unsound mind, kept her by words and actions in constant fear that he intended to resort to legal proceedings to test her sanity and deprive her of her liberty, and generally exercised over her a continual arrogant domination, affecting her health, and rendering her life intolerable and burdensome.</p>

<p>Trusts and trustees — Resulting trust — Deed—Presumption—Evidence.</p> <p>Where an owner of land conveys the same in payment of a debt, to a person named by the creditor, and the creditor takes from the grantee cash and a judgment note, no resulting trust in the land is created in the creditor by the transaction.</p> <p>A resulting trust of such a nature rests upon presumption merely, and is not one juris et de jure, and is open to rebuttal. It may be rebutted by evidence which satisfactorily shows that it was not the intention of either party that the beneficial interest should be in the party paying; in other words, the presumption will be overcome by proof that it is at variance with the intention or understanding of the parties.</p> <p>To establish a trust by parol the evidence must be full, clear and convincing. It is not enough that it satisfies a jury, it must also satisfy the mind and conscience of the court sitting as a chancellor reviewing thé testimony, and if it fails in this respect it must be withdrawn from the jury.</p> <p>Deed — Annulment—Cancellation—Rights of third parties.</p> <p>In general an estate once vested cannot be divested by mere annulment and cancellation of the deed. The cancellation is but the destruction of the evidence of the title, and not the annulment of the title itself. A fortiori it cannot extinguish rights of third persons that have accrued in the meantime.</p> <p>Deed — Recording—Notice.</p> <p>A deed not recorded within ninety days after its delivery may prevail against a later deed duly recorded, where the grantees are not purchasers for value, and have full notice of the former deed.</p> <p>Execution — Real estate — Possession—Possessory proceeding — Act of April 20, 1905, P. L. 239 — Statutes—Appeal—Local legislation — Constitutional law.</p> <p>The Act of April 20, 1905, P. L. 239, relating to possessory proceed-, ings to recover possession of real estate purchased at judicial sales, is a general act, and repeals the Act of May 13, 1871, P. L. 820, relating to Schuylkill county, and is not affected by sec. 8, art. Ill of the constitution, relative to the publication of notice of the intention to apply for the passage of a local or a special bill.</p> <p>Constitutional law — Title of statutes — Local legislation — Repeal.</p> <p>The repeal of previous acts on the same general subject is always germane to the title of the repealing act.</p> <p>Execution — Practice, C. P. — Possessory action — Act of April 20, 1905, P. L. 239.</p> <p>A petition under the Act of April 20, 1905, P. L. 239, for the recovery of real estate purchased at a sheriff’s sale, must aver in what manner the person in possession went into possession, or that the manner of his obtaining possession was unknown to the petitioner. If, however, this is not averred, and the defendants appear, answer, make request for jury trial, and plead not guilty, they will be considered to have waived the defect in the petition, and cannot when the case is called for trial move the court to dismiss the petition on that ground.</p>

<p>Appeal, No. 155, Oct. T., 1907, by defendant, from judgment of C. P. Lehigh Co., Oct. T., 1905, No. 61, on verdict for plaintiff in case of' City of Allentown to use of Warren Brothers Co. v. J. M. Ackerman.</p> <p>Scire facias sur municipal lien. Before Heydt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial, plaintiff offered in evidence certificate of commonwealth of Pennsylvania, showing that on May 19, 1902, Warren Brothers Co., a foreign corporation, registered with the secretary of the commonwealth, an office located in Harrison Building, Philadelphia, and an agent as Charles Mitchell, Robert Gwynne, Jr., and John J. Dyer.</p> <p>Objected to. Defendant objects to the admission in evidence-of the offer of the certificate, because it is not an authority for a foreign corporation to do business in the county of Lehigh, but merely an authority to do business in the city of Philadelphia. [7]</p> <p>Plaintiff also offered in evidence municipal lien, City of Allentown to the use of Warren Brothers Co. against J. M. Ackerman, 254, January Term, 1905, in the court of common pleas, recorded Mechanic's Lien Docket No. 7, page 76, filed April 1, 1905, for street paving for $98.90, with interest.</p> <p>Objected to. Defendant objects to the lien being admitted in evidence.</p> <p>1. Because it is not signed by the city solicitor of the city of Allentown or by anyone authorized to act as agent for said city.</p> <p>2. Because it is signed by Dillinger & Schwartz, solicitors of the use plaintiff. That it is incorporated under the laws of the State of West Virginia with its principal office at 93 Federal street, Boston, Mass.; that its object is the manufacture and sale of bituminous paving and roofing materials and contracting for paving and roofing of all classes.</p> <p>3. That the lien offends against the provisions of sec. 11 of the act of 1901, passed June 4, 1901, which provides that said claim must be signed by the solicitor or chief executive officer of claimant, and in case of the use plaintiff must be accompanied by an affidavit that the facts set forth are true to the best of his knowledge, information and belief; that the municipal claim here is not supported by an affidavit by any party either solicitor or executive officer of the city of Allentown, but purports to be made by one Dallas Dillinger, Jr., resident cashier, who is not an officer of said city.</p> <p>4. The lien as filed does not set forth the kind and character of the work done as provided in sec. 11 of said act, par. No. 7, which reads, “ Any other than tax claims, the kind and character of the work done for which the claim is filed and if the work be such as to require previous notice to do it, when and how such notice was given. Objection overruled. [8]</p> <p>Defendant proposed to prove by Dallas Dillinger, Jr., on cross-examination, any representation of all inferences to be drawn from his examination in chief that he was not in any way connected with the use plaintiff in this issue, but was employed and paid by the Standard Bithulitic Company, a foreign corporation, who did the business of paving the street for which the lien in this case is filed.</p> <p>Objected to, as not cross-examination and as incompetent and irrelevant and properly a part of the defense. Objection sustained. [9]</p> <p>Plaintiff offered in evidence, both the paper and the resolution docket page 343. It is the third resolution on this page.</p> <p>Objected to. The alleged original resolution is objected to as incompetent and irrelevant and not in compliance with the act of assembly, which requires that all resolutions and ordinances shall be entered into an ordinance book kept for the purpose and signed by the mayor approving the same.</p> <p>And objects to the resolution in the book because it does not purport to have been signed by anybody and is apparently not any official act whatever.</p> <p>Objected to, further, for the additional reason that to what is called the original resolution, that it has not been proved either by the person offering it -or by the record of councils adopting it, or that it was referred to any committee or any report made thereon. Objection overruled. [10]</p> <p>Verdict and judgment for plaintiff for $114.74. Defendant appealed.</p> <p>Errors assigned were (1) in giving binding instructions for plaintiff, and (7-10) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 188, Oct. T., 1907, by defendant, from judgment of C. P. Schuylkill Co., May T., 1905, No. 138, on verdict for plaintiff in case of Percival K. Boltz and Francis W. Boyer, executors of the last will and testament of William K. Boltz, deceased, v. Catharine L. Muehlhof.</p> <p>Scire facias sur mortgage. Before Marr, J.</p> <p>At the trial, S. F. Muehlhof was called as a witness for the defendant.</p> <p>Mr. Smith: Before the witness is sworn, plaintiff wants to enter on the record an objection to the competency of the witness. Let the witness be sworn to make true answers.</p> <p>Witness sworn as requested.</p> <p>Mr. Smith: “Q. I show you note at six months offered in evidence, which is one of the notes referred to in the mortgage in suit, and ask you if that is your signature to that note. (Paper handed witness.) A. It is.”</p> <p>Mr. Roads: This is in support of your objection to the competency of the witness?</p> <p>Mr. Smith: Certainly. “ Q. I show you note already offered in evidence, payable eighteen months after date, which is one of the notes referred to in the mortgage in suit, and ask you if that is your signature. (Paper handed witness.) A. Yes, sir.”</p> <p>Mr. Smith: Under the act of 1887, this being an action between the representatives of a deceased party, and the other party to the contract a person in interest, the witness being a person in interest, we claim that under the plain provisions of the act of 1887, the witness is incompetent to testify to any fact prior to the death of the decedent, William K. Boltz, under clause E, of sec. 5 of the Act of May 23, 1887, P. L. 158.</p> <p>The Court: It seems to me I will sustain this objection. It seems to me that the testimony of these cases is that it is the interest in the subject-matter of a suit that disqualifies a party from being a witness; and this being a suit on a mortgage which is held as collateral for two notes, and the "witness being one of the makers of these notes, it seems to me that he had an interest in this subject-matter, which would be adverse to the plaintiff, and, therefore, he would come within this ruling and come within clause E, of sec. 5.</p> <p>The Court: My impression at present is that I will sustain the objection, but I will give it thought between this and morning, and if I come to a conclusion differently in the morning, I will reverse it for you very willingly.</p> <p>The Court: I think I will sustain the ruling the court made last evening, and sustain the objection to the competency of this witness.</p> <p>Defendant excepts. Bill sealed.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,224.92. Defendant appealed.</p> <p>Error assigned was ruling on evidence, quoting the bill of exceptions.</p>

Appeal, No. 45, Jan. T., 1908, by defendant, from order of C. P. Luzerne Co., Oct. T., 1905, No. 309, dismissing exceptions to report of referee in case of' Isaac Y. Robbins v. Wilkes-Barre. Exceptions to report of James M. Stack, Esq., referee. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to report of referee.

<p>Appeal, No. 154, May T., 1908, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1905, No. 4, on verdict for plaintiff in case of H. H. McElroy v. Glenn Kline Lumber Company.</p> <p>• Appeal from judgment of justice of the peace. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for' plaintiff for $87.17. Defendant appealed.</p> <p>Error assigned amongst others was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 195, April T., 1908, by-defendants, from decree of C. P. No. 1, Allegheny.Co., Sept. T., 1907, No. 730, on bill in equity in case of The Baltimore & Ohio Railroad Company v. Maria Yeltri and Maria D’Angelo.</p> <p>Bill in equity for interpleader. Before MacFarlane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree of the court in favor of Maria Yeltri.</p>

<p>Appeal, No. 208, Oct. T., 1907, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1907, No. 183, on verdict for plaintiff in case of John N. Califf v. The First National Bank of Towanda.</p> <p>. Assumpsit to recover the amount of a check. Before Fanning, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $383.89. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Liquor law — Retail license — Certificate of qualified electors.</p> <p>Where sixteen persons sign a certificate for a retail liquor license, the fact that four of such persons are not qualified electors within the meaning of the act, is immaterial, if it appears that the other twelve are properly qualified.</p> <p>Liquor laws — Revocation of license — Irregularity in certificate — Changing order of court.</p> <p>Am. application to revoke a retail liquor license on the ground of the falseness of certain statements made in the certificate signed by twelve qualified electors, is in the nature of an application to open a final order, judgment or decree regular on its face and after due hearing, and the makers of such an application must show that the facts they set up were not known to, or could not have been ascertained by, them prior to the granting and issuing of the license. Such a proceeding is entirely different from that provided by statute for the revocation of a license upon the ground that the licensee had violated a law of the commonwealth relating to the sale of liquor.</p>

Appeal, No. 165, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,516, discharging rule for judgment for want of a sufficient affidavit of defense in case of Robert D. Kinney v. Citizens’ Building & Loan Association of Philadelphia. Assumpsit for services and money expended. Before Martin, P. J. The opinion of the Superior Court states the case.

<p>Appeals — Assignments of error — Failure to assign error.</p> <p>■ Where the record of an appeal to the Superior Court shows that no assignments of error have been filed, the appeal will be dismissed. In such a case the omission is not cured by printing in the appellant’s paper-book what purports to be an assignment.</p> <p>The rule of court upon the subject is based on the substantial grounds that assignments of error are an essential part of the pleadings in the appellate court, and that when the case is disposed of and the record returned to the court below, the praecipe, assignments of error and plea thereto are all the papers which usually remain of record in the appellate court, as the basis of its judgment or decree, as the case may be. Therefore the omission to file assignment of errors is not a mere formal defect which the appellate court is at liberty to disregard.</p>

<p>Landlord and tenant — Lease—Waiver of appeal — Judgments—Striking off judgment.</p> <p>Where a justice’s judgment is founded upon a lease containing an express waiver of appeal the common pleas will, in general, give effect to such waiver by striking off an appeal, if application be made within a reasonable time, and before the appellee has taken steps to bring the case to trial or decision upon its merits. But where the application to strike off is based upon that ground, it must fail, unless the fact that the judgment was founded upon a lease; containing such waiver appears in the justice’s record.</p> <p>Landlord and tenant — Holding over — Presumption.</p> <p>The presumption of holding over which might arise from the unexplained fact of the nonremoval of the tenant’s goods, may be rebutted by facts which are inconsistent with the presumption.</p> <p>Where a tenant notifies his landlord that he will surrender possession of the premises at the end of the term mentioned in the lease, and the landlord agrees that the tenant shall have the right of ingress and egress for an additional day for the purpose of removing his goods, and for that purpose only, and that this shall not be treated as a holding over, the landlord cannot thereafter treat the tenant’s occupancy of the premises for an additional day for the purpose of removing his goods as such a holding over as will render the tenant liable for rent after the term mentioned in the lease.</p>

<p>Appeal, No. 63, April T., 1909, by W. C. Adams, from order of Q. S. Allegheny Co., March T., 1908, No. 41, revoking retail liquor license.</p> <p>Petition for revocation of retail liquor license.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were (1) order revoking license, reciting the order; (2) in revoking the license of the appellant upon the testimony of witnesses who were not named in the bill of particulars, and of whom the appellant was not notified until the day before the hearing; (3) in revoking the license of the appellant on a finding that appellant “has violated the law of this Commonwealth in relation to the.sale of intoxicating hquors, by selling and furnishing such liquors to minors, as charged in the petition upon which this rule was granted,” when there was no allegation of negligently or knowingly selling or furnishing liquor to minors, especially when appellant set up as a defense lack of knowledge and lack of negligence in the sale of liquors to minors. ., ,</p>

<p>Liquor law — Revocation of license — Selling to minors — Petition.</p> <p>The allegation in a petition for the revocation of a retail liquor license that the respondent “grossly violated the laws of the commonwealth by selling yinous, spirituous, malt and brewed liquors to the following girls, all minors,” naming them, charges in sufficiently explicit» and precise terms a violation of sec. 17 of the Act of May 13, 1887, P. L. 108, which makes it unlawful to furnish by sale, gift or otherwise any spirituous, vinous, malt or brewed liquors to a minor. This section was not repealed, nor was the burden of proving that the respondent knew, or was negligent in not ascertaining, that the persons to whom he sold or furnished liquors were minors cast upon the petitioner of the Act of May 25, 1897, P. L. 93.</p>

Appeal, No. 116, Oct. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 2,340, discharging rule for judgment for want of a sufficient affidavit of defense in case of Ignatius Gross v. Antonio Ricchezza. Assumpsit for goods sold and delivered,' Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Superior Court states the case.

<p>Appeal, No. 157, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 256, awarding alimony pendente lite in case of Charles T. Jones v. Catherine C. B. C.' Jones.</p> <p>Libel for divorce.</p> <p>Rule for alimony pendente lite.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in making absolute rule for alimony pendente lite for $10 DO per week.</p>

Appeal, No. 227, April T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1904, No. 142, on verdict for plaintiff in case of Tony Wisniewski v. Colonial Assurance Company. Assumpsit on 'a policy of fire insurance. Before Kennedy, P. J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $242. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Costs — Appeals—Printing paper-book — Statutes—Act of April 15,. 1907, P. L. 83.</p> <p>The Act of April 15, 1907, P. L. 83, allowing the successful party in the final decision of a case to tax, as part of the costs, the amount expended for the printing of the paper-book on appeals, is not so far retroactive as to apply to appeals determined before its passage.</p>

Appeal, No. 166, April T., 1908, by plaintiff, from judgment of C. P. Erie Co., May T., 1905, No. 134, on case tried by court without a jury in suit of City of Erie v. Parade Street Market Company. Assumpsit to recover a license tax. The opinion of the Superior Court states the case. The case was tried by Walling, P. J., without a jury, and judgment was entered for defendant. Error assigned was in entering judgment for defendant.

<p>Negligence — Animals—Vicious dog — Ownership of Premises.</p> <p>A person, who continues to maintain, or permit to be maintained, upon his premises, an animal, such as a dog, after notice that the dog has become vicious and dangerous to his neighbors, is liable in damages for injuries sustained by a bite of the dog.</p> <p>Where a person keeps several dogs of the same strain of blood and family, and strongly resembling each other in size, color and general appearance, such person cannot relieve himself from liability for injuries caused by the bite of one of the dogs, because the person injured cannot identify the particular dog that attacked him, and cannot prove that previous attacks upon other people, of which, the defendant had notice, were made by the same dog that assaulted him.</p> <p>In an action to recover damages for injuries sustained by the bite of a vicious dog, the defendant cannot relieve himself from liability by evidence to the effect that long before the injury to the plaintiff, he had presented the dog to his sister-in-law, who lived with him, and that at the time of the injury the title to the premises in which the defendant lives was in his wife.</p>

<p>Appeal, No. 182, Oct. T., 1907, by defendant, from decree of C. P. No. 2, Phila. Co., March T., 1905, No. 1,296, on bill in equity in case of Hoopes & Townsend Company v. Charles A. Ebel.</p> <p>Bill in equity to restrain proceedings at law. Before Sulzberger, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered a final decree as follows:</p> <p>And now, to wit: April 3, 1907, the above case having been fully heard on bill, answer and proof, it is ordered and decreed that the defendant, Charles A. Ebel, be permanently restrained from proceeding upon the judgment obtained by him for $557.12 against the plaintiffs, Hoopes & Townsend Company, upon the interpleader proceedings in court of common pleas, No. 2, September Term, 1902, No. 483, and from hereafter bringing any action or suits at law to recover the machinery or the value thereof, or any other estate of Gabriel E. Corwin, known as Eugene Corwin, seized under attachment proceedings issued out of court of common pleas, No. 4, September Term, 1902, or any other property or estate of the said Gabriel E. Corwin, which came into the possession of the said Hoopes & Townsend Company and was received by them in payment or part payment of the stolen goods from them by the said Gabriel E. Corwin and his accomplices.</p> <p>Error assigned amongst others was the decree of the court.</p>

Appeal, No. 73, Oct. T., 1908, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 339, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Margaret K. Schoenberg v. Provident Beneficial Association. Assumpsit for death benefits. The opinion of the Superior Court states the. case. Error assigned was the order of the court.

<p>Appeal, No. 87, Oct. T., 1908, by plaintiffs, from order of C. P. No. 3, Phila. Co., June T., 1907, No. 1,321, discharging rule for judgment for want of a sufficient affidavit of defense in case of M. H. Birge & Son Company v. Harry M. Armour and George Clark.</p> <p>Assumpsit on a guaranty.</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 discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals — Interlocutory order — Attachment execution — Interrogatories.</p> <p>An order discharging a rule for judgment against a garnishee on answers to interrogatories is an interlocutory order from which no independent appeal lies.</p>

Appeal, No. 20, Oct. T., 1908, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 4,229, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Pauline Strodick et al. v. Elijah S. Pennington. Assumpsit for rent in arrears. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeals, Nos. 174 and 191, Oct. T., 1907, by plaintiff, from orders of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 1,525, discharging rule for judgment for want of a sufficient affidavit of defense and in opening judgment in case of City of Philadelphia to use of the Vulcanite Paving Company v. Samuel M. Mason.</p> <p>Scire facias sur municipal lien.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule to open judgment.</p> <p>Wiltbank, P. J., filed the following opinion:</p> <p>The question raised by the defendant Morrell is exclusively of procedure, and turns upon the provisions of the acts of assembly relating to the discharge of a lien for municipal paving upon the failure of the city to serve the registered owner of the land. The work was done, and a claim was later duly filed in this court on February 19,1898. At that date Samuel M. Mason was the registered owner and defendant. On January 3, 1899, George B. Morrell acquired title to the land through sheriff’s sale, and his deed was registered the same day. On June 4, 1901, an act of assembly providing inter alia a general system for the filing of municipal claims, the extent of the liens created, the procedure upon claims, the methods of preserving liens and enforcing payment of claims, etc., etc., became the law. (P. L., 1901, 364.) This act repealed and supplied the place of the then body of law for the creation of municipal liens and the collection of claims secured thereby. On March 24, 1902, a scire facias issued on the claim in suit, which was directed against Samuel M. Mason as the owner, and was thereafter returned in proper form as to him. Before this return, however, to wit, on March 26, 1902, two days after the writ went out, the city filed a suggestion of George B. Morrell as the actual and present owner. Morrell was not brought in by notice or writ, and on May 24, 1902, judgment was taken on the writ as issued against Mason for want of an affidavit of defense.</p> <p>The record discloses that up to the taking of this judgment Morrell had not been notified or served, nor had he taken action in the case. His ownership was not suggested by him, but, according to his undisputed declaration which must be taken as true on this motion for judgment, it was suggested by the plaintiff without any notice to him. His first movement Was of December 18,1906, eight years and ten months after the filing of the claim, when he presented a petition to this court on which there was granted a rule on the city to show cause why the judgment above described should not be opened. In this proceeding the date of the registration of this deed was established, as we have already stated it, to wit, January 3, 1899. On January 15, 1907, the rule was made absolute; whereupon he filed an affidavit of defense on the 26th, or eleven days later. A rule for judgment on this affidavit as insufficient was discharged by us on March 4, 1907.</p> <p>. The facts averred in the petition that the judgment be opened and in the affidavit of defense were according to the above narration, and on the prima facie case thus shown and brought to our attention in this form, we adjudged the matter not ripe for a judgment in favor of the claimant.</p> <p>On March 20, 1907, the plaintiff sued out two writs of scire facias against Mason and Morrell; one to revive the claim, the other to revive the judgment. The writs as against Morrell were duly returned, and on April 15, 1907, he filed an affidavit of defense. This set forth the facts relied upon in his earlier affidavit, to wit, that of January 26, 1907, and is the subject of the rule for judgment now to be disposed of.</p> <p>The revival of a judgment standing opened may be the object of a proceeding in order that its lien may be preserved, and in this case the writ to revive the judgment must be treated with the writ to revive the lien as bringing in Morrell in order that he might show cause if any he had why the lien should not survive. His affidavit, as we have said, exhibiting the same state of facts which we deemed at an earlier stage sufficient to preclude a judgment against him, the question presents itself whether under the new circumstance of his having been summoned by these writs of revivor he is still in a position to dispute a recovery.</p> <p>As the claim was filed prior to the act of June 4, 1901, and as that act relates to claims to be thereafter lawfully imposed or assessed, the new legislation does not in matter of substance apply, and we have only to consider whether we may distinguish the procedure on the claim, which procedure had its inception subsequently to that date, and test it by the provisions of the new act; or should we advance in due course under the practice acts of the earlier legislation.</p> <p>It is clear upon examination of the record that the claimant has not in his process availed himself of the act of June 4,1901. The original sci. fa. on the claim and the later writs to revive are not in accordance with the directions of the seventeenth and twenty-first sections of that act, but vary in important particulars therefrom: nor did the sheriff comply with the mandate of the eighteenth section and add the name of George B. Morrell to the original sci. fa. either upon instruction of the claimant or upon his own investigation, although at that time Morrell had been for more than three years the registered owner of the land. Whilst in this case it is determined that the new system of 1901 did not affect the claim which had been validly created prior thereto and subsisted at its date, yet we are not prepared to say that the legislation referred to was inoperative in respect of the process for the continuance of the lien and the collection of the debt. We find no warrant in law to hold that there are to-day concurrent systems of procedure, one for claims arising before the last act, the other for those arising after it, involving different rules for notice, different duties as to inquiry, different forms of writ, and different circumstances for judgment, and one of them flowing from legislation carefully annulled. It would be a novel course only sustained by indubitable mandate to project the operation of repealed statutes indefinitely .into the future until all the possibilities of revivor of municipal claims existing at the enactment of June 4, 1901, should have been exhausted.</p> <p>It is not necessary, however, that we should decide the point. The process is not in compliance, as we have shown, with the provisions of the act of 1901, and if our construction of that act were to relegate us to the earlier subsisting law we would again find the process insufficient because not in compliance therewith. If the claim is to be held unaffected by the act of 1901, in its substance and also as to the practice for collection, the objection of the defendant must prevail that the provisions of the Act of March 23, 1866, P. L. 303, and of June 10, 1881, P. L. 90,- are applicable. By the second section of the former act the name of the true owner should have been ascertained and suggested before the issuance of the writ of scire facias. We regard the fact that the city put upon the record the name of Morrell as the actual and present owner as requiring us to consider that some effect was intended and produced, and we must hold the city aware of the date of Morrell’s registration, to wit, January 3, 1899, although she did not furnish it in her suggestion, and is estopped from denying it now. The city has volunteered this action, which may be viewed in one of two ways: first, as in the nature of an amendment of the record so as to substitute the name of Morrell for that of Mason, in which event the lien by this time would have lapsed; or, second, as indicating by implication of the date that after claim filed but before scire facias Morrell became the actual owner. Under the latter construction we would be obliged to treat Morrell as within the provisions of the Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, relating to registration of deeds, taken in connection with the act of March 23, 1866, and the act of June 10, 1881, just cited. It therefore appears that whether we regard the claim as to be prosecuted and collected under the law as it stood before the act of June 4,1901, or under the law as it was established by that act, the plaintiff has not shown himself' entitled to judgment. The rule is discharged.</p> <p>Errors assigned were the orders of the court.</p>

<p>Appeal, No. 55, March T., 1908, by defendant, from judgment of C. P. Monroe Co., Feb. T., 1907, No. 16, on verdict for plaintiff in case of Philip G. Henning v. Amos Keiper.</p> <p>Trespass quare clausum fregit to recover damages for an alleged wrongful cutting of timber. Before Staples, P. J.</p> <p>The question involved related to boundary lines.</p> <p>Defendant presented these points:</p> <p>3. If the jury believe, from the evidence, that at the time of the alleged cutting by the defendant, there were old stone corners on the ground, and by running lines between them the plaintiff, Henning, would get all the land he was entitled to under the Michael Kreider patent, and the return of survey thereof, and which would leave the trees cut outside of these lines, then the verdict of the jury must be for the defendant. Answer: Denied because involved. The corners may not have been original, or properly connected with the tract. [1]</p> <p>4. If the jury believe that when John L. Westbrook, the surveyor, went on the ground to survey the land in dispute, Philip G. Henning, the plaintiff, pointed out to him an old corner as being a comer of the Michael Kreider tract, and by the adoption of which by the said John L. Westbrook, in his survey, and using the courses and distances called for in the Michael Kreider warrant, two old stone corners were found along the Henry Woolery tract, which left the trees cut outside of the Michael Kreider tract, and gave Henning all the land called for by the Michael Kreider warrant and survey, then the verdict of the jury must be for the defendant. Answer: Denied because involved. [2]</p> <p>5. If the jury believe that Philip G. Henning, the plaintiff, pointed out to John L. Westbrook, the surveyor, a corner which Henning claimed to be a corner of the Michael Kreider warrant, and if, by the adoption of this corner, and using the courses and distances called for in the Michael Kreider warrant, not only the old beech tree, but also two old stone corners and the old chestnut called for in- the Michael Kreider warrant were found, lines between all of which corners left the trees cut outside of these boundaries, then the verdict of the jury should be for the defendant. Answer: Denied because involved. [3]</p> <p>Verdict for plaintiff for $60.58, which the court trebled and entered judgment for plaintiff for $181.74. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them, and (4) in trebling the amount of the verdict.</p>

<p>Deed — Estoppel—Land law — Warrant—Patent—Commonwealth’s title to forest land — Forestry.</p> <p>Where a patent is issued by the commonwealth for land on an application alleging a vacancy, when in fact no vacancy exists, and subsequently the commonwealth takes title to the land for forestry purposes by mesne conveyances from the holder of the older warrant, a person claiming under the junior warrant cannot allege that as the junior patent was issued by the commonwealth for a valuable consideration, the commonwealth is estopped from afterwards acquiring by purchase the older title and setting it up to defeat its own later grant.</p> <p>The rule that a grantor in a deed cannot set up a prior paramount title in himself against his own grantee applies only to a deed containing a warranty or covenant of title, and the estoppel is enforced merely to avoid a circuity of action. As a warranty and patent from the commonwealth contains neither warranty nor covenant for title, the rule is not applicable to these instruments, and as against them the commonwealth may set up a prior paramount title in itself.</p> <p>A person who secures a patent from the commonwealth on an application which either mistakenly or falsely alleges that the land is vacant is in no position to claim that the commonwealth is estopped by reason of its patent from setting up a prior paramount title in itself. In such a case there is an estoppel against an estoppel and the matter is at large.</p> <p>Adverse possession — Title—Burden of proof.</p> <p>Whilst the law raises no presumption against a title acquired by adverse possession, it certainly raises none in its favor. Upon him who asserts such a title, the burden of proof rests, with a constant pressure to establish, during the entire statutory period, the existence of every element out of which such a title must rise.</p> <p>Title to land by adverse possession for twenty-one years, cannot be established by proof of one or two crops on a very small portion of the land during the first two years, and a somewhat continuous cultivation of the same small tract during the last six years of the holding.</p>

<p>Appeal, No. 139, Oct. T., 1908, by defendant, from judgment of Q. S. Lehigh Co., April T., 1908, No. 23, on verdict of guilty in case of Commonwealth v. Albert E. Swartz.</p> <p>Indictment for conspiracy.</p> <p>The indictment was as follows:</p> <p>“The Grand Inquest of the Commonwealth of Pennsylvania, inquiring for the County of Lehigh, upon their respective oaths and affirmations, do present, that A. E. Swartz, late of the said County, Yeoman, on the eighteenth day of March, in the year of our Lord one thousand nine hundred and eight, at the County aforesaid, and within the jurisdiction of this Court, with force and arms, etc., did fraudulently, maliciously and unlawfully conspire, combine, confederate and agree to and with one William Lawson and others to this grand inquest unknown, to do an unlawful act, to wit, that he the said William Lawson falsely represent and personate one Elmer Frey, alias Elmer Freeman who was found guilty of Perjury in the Court of Quarter Sessions of Lehigh County of January Sessions, 1907, and to appear before said Court and personate and represent himself as being the said Elmer Frey, alias Elmer Freeman, who was found guilty upon the charge aforesaid and then and there to take the place of Elmer Frey, alias Elmer Freeman, and to receive, serve and’ comply with whatever sentence said Court might impose upon the said Elmer Frey, alias Elmer Freeman, whose person said William Lawson was then and there to falsely represent and personate, and for the performance of aforesaid representation and personation by the said William Lawson, the said A. E. Swartz agreed to pay the said William Lawson a certain sum of money of the United States of America (a further description of which this grand inquest is unable to give), thereby perpetrating a willful and malicious fraud upon the Court of Quarter Sessions of Lehigh County, and hindering and obstructing public justice, and against the peace and dignity of the Commonwealth of Pennsylvania.</p> <p>“And the Grand Inquest, aforesaid upon their respective oaths and affirmations aforesaid, do further present that the said A. E. Swartz did fraudulently, maliciously and unlawfully conspire, confederate and agree with one William Lawson and others to this grand inquest unknown to cheat and defraud the Lehigh County Law Library Association of Lehigh County, Pennsylvania, and the" County of Lehigh, state aforesaid, of their moneys, goods and chattels, to wit: the sum of Five Hundred Dollars by the said William Lawson agreeing to and with the said A. E. Swartz to falsely represent and personate one Elmer Frey, alias Elmer Freeman, who was convicted of the crime of Perjury in the aforesaid Court of Quarter Sessions of January Sessions, 1907, and for whom the said A. E. Swartz had entered into a recognizance with the Commonwealth of Pennsylvania in the sum of Five Hundred Dollars for the appearance of the said Elmer Frey, alias Elmer Freeman, before said Court and to falsely present and personate himself as being the same Elmer Frey, alias Elmer Freeman, who. was found guilty of Perjury in aforesaid Court, and then and there to receive whatever sentence said Court might impose upon the said Elmer Frey, alias Elmer Freeman, and to comply and to serve such sentence, thereby intending by said personation and compliance with the sentence then and there to be imposed by aforesaid Court, to cheat and defraud the Lehigh County Law Library Association and the County of Lehigh out of the sum of Five Hundred Dollars by preventing the forfeiture of the aforesaid recognizance; contrary to the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned appear by the opinion of the Superior Court.</p>

<p>Wills — Construction—Remainder—“ Children ” — “ Grandchildren.”</p> <p>Under a bequest to children, grandchildren who are the children of a deceased child, are not included, unless it is the clear intention of the testator as shown by the whole will that such grandchildren should be included.</p> <p>Where real or personal estate is devised or bequeathed to- such children, or to such child, or individuals as shall attain a given age, or the children who shall sustain a certain character, or do a particular act, or be living at a certain time, without any distinct gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is necessarily contingent on account of the person.</p> <p>Testatrix left one-half of her estate in trust to her son for the term of his natural life, and upon his death without issue the half was to be merged into a trust thereinafter created for the daughter. The other half of the estate was left in trust to pay the income thereof to the daughter for life, and upon the death of the daughter to pay the principal thereof to the children of the daughter as might then be living. The son died without leaving issue. Held, that the children of the daughter living at the latter’s death were entitled to the whole estate to the exclusion of the children of a deceased son of the daughter.</p>

<p>Negligence — Defective sidewalk — Evidence—Province of court and, jury.</p> <p>The happening of an accident on a sidewalk is not enough to establish negligence on the part of the person whose duty it is to construct and keep the sidewalk in repair.</p> <p>A mere depression of one-fourth of an inch in a board or plank sidewalk otherwise sound and in good condition, is not sufficient to carry the question of the negligence of the owners of the sidewalk to a jury. It is only requisite that the sidewalk should be maintained in a reasonably safe condition.</p>

<p>Appeal, No. 75, April T.., 1909, by A. G. Craig, from order of C. P. No. 2, Jan. T., 1907, No. 955, dismissing exceptions to report of commissioners in the matter of Redistricting the City of Pittsburg into wards.</p> <p>Exceptions to report of commissioners appointed to redistrict the city of Pittsburg into wards. Before Frazer, P. J.</p> <p>The only question involved in the case is the constitutionality of the Act of April 24, 1905, P. L. 307.</p> <p>Error assigned was in dismissing exceptions to report of commissioners.</p>

<p>Appeal, No. 10, 1908, by Mary Nallin O’Malley, from decree of O. C. Lackawanna Co., dismissing petition for administrator d. b. n. c. t. a. in Estate of Elizabeth Ruddy, deceased.</p> <p>Petition for appointment of administrator d. b. n. c. t. a.</p> <p>Sando, P. J., filed the following opinion:</p> <p>This proceeding is upon an appeal by Mary Nallin O’Malley from the decree of the register of wills dismissing a petition which 'prayed for the appointment of an administrator d. b. n. c. t. a. for the estate of Elizabeth Ruddy, deceased.</p> <p>Elizabeth Ruddy died on October 1, 1903, testate, her will was probated, and letters testamentary thereon were granted to E. J. Lynett. The estate was duly settled according to law and the fixed rules of procedure. The executor’s first and final account was confirmed finally on November 25, 1905, and subsequently a rule was entered on all persons interested to show cause why the executor should not be discharged; on January 27, 1906, the rule was made absolute and it was ordered, adjudged and decreed that E. J. Lynett be discharged from his trust.</p> <p>An examination of the will, dated February 18, 1899, attached to the petition, and a part of the same, discloses:</p> <p>1. A legacy, “to my daughter, Maggie Ruddy,” a piano.</p> <p>2. A legacy, “all the rest of my household goods,” etc., “to my daughters, Maggie Ruddy and Sarah Ruddy, share and share alike.”</p> <p>3. A legacy, “unto my niece, Mary Nallin, the sum of five hundred dollars.”</p> <p>4. A devise of a lot of land and the three-story brick building erected thereon, numbered and known as No. 306 Penn Avenue, “unto my three daughters, Maggie Ruddy, Nellie Lynett and Sarah Ruddy, share and share alike, their heirs and assigns forever.”</p> <p>5. No residuary clause.</p> <p>An examination of the account filed shows that there was an indebtedness of $594.78, to pay and discharge which there were personal assets ($7.97 in a bank and $150 due from the estate of M. J. Ruddy, deceased), amounting to $157.97. The balance necessary for the payment of the debts, viz., $436.81, was made up by the devisees of the real estate and paid by them.</p> <p>It is contended by the petitioner that her legacy should, at least, in part be paid, by an abatement of the other legacies.</p> <p>The. determination of the questions raised involve a consideration of an administration de bonis non, and the character and quality of the three legacies and the one devise.</p> <p>Administration is either general or special. General when it is unlimited as to duration, and it is of the whole of the decedent’s estate. Special when limited, either as to time, or as to the quantity of the decedent’s estate. Limited administrations are, during minority, during absence, pending suit, and de bonis non, or of goods not administered.</p> <p>An administration de bonis non is but a continuance of the original administration by another hand, and under a separate responsibility.' The Act of February 24, 1834, sec. 31, P. L. 70, provides that an administrator d. b. n., with or without a will annexed, shall have power to demand and recover from his predecessor in the administration, all moneys, goods and assets remaining in his hands.</p> <p>Administration d. b. n. is where one is appointed to administer the goods of an estate which has been partially administered by a former executor or administrator who has since died, been discharged, or removed: Scott, page 106. And it depends upon two principal facts: First, that there is a vacancy in the office of executor or administrator, for if there is none the grant of such administration is void; and, secondly, that there are assets remaining to be administered. This second fact, however, need not be conclusively established. If a prima facie case of assets is made out, it is sufficient for the appointment of such an administrator, and leave it to the common-law courts to settle title to the property.</p> <p>The administrator can claim nothing but the goods, etc., remaining in specie, unconverted and unchanged, and his. commission is for the administration of the goods and chattels, rights and credits which were of the decedent at the time of her death, and remain unadministered, that is, in specie, unaltered or unconverted, by any act of the first executor.</p> <p>What is meant by having administered a decedent’s personal estate is not barely that it had been converted into cash by the executor, but that he had also disbursed and paid out the same, together with all the assets of the estate, which at any time came to his hands, in the manner required by law.</p> <p>It has not been shown that there are any goods and chattels of the decedent which remained in specie, unadministered, in the hands of the former executor.</p> <p>Coming now to the consideration of the character and quality of the three legacies and the one devise. According to our view of the matter the gifts of the piano and all the rest of the • household goods, etc., are specific legacies; the devise of the property on Penn avenue, is a specific one; while the gift of $500 is nothing more or less than a general legacy.</p> <p>Legacies for all purposes of legal adjudication are of three lands: general, demonstrative and specific. A legacy is general when it does not amount to a bequest of any particular thing, or money, distinguished from all others of the same kind. When it is so given as not to amount' to a bequest of a specific part of a testator’s personal estate, as of a sum of money generally: 1 Roper on Leg. (2d Am. ed.), p. 365.</p> <p>A regular specific legacy may be defined:</p> <p>“The bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a house, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.” It differs from a general or pecuniary legacy in this respect, that if there be a deficiency of assets, the specific legacy will not be liable to abate with the general legacies: 1 Roper on Leg. (2d Am. ed.), p. 190. The specific legatees take their bequests in specie, and the specific devisees take the real estate directly under the will.</p> <p>These distinctions are all important to this inquiry, for a general legacy will abate until entirely consumed before the specific legacies can be compelled to abate.</p> <p>When the language of the bequest is such that neither by reference to any collateral thing can the money be distinguished from the testator’s other moneys, nor a clear intention be perceived to give a specific part of his personal estate, such a bequest will be general; it does not fall within the definition which has been given of a regular specific legacy. The legatee is unable to point out any particular sum of money that she can call her own. The legacy therefore must necessarily be general.</p> <p>Money may be the subject of a specific bequest, the test being, is it money separated from the testator’s other money and from his general personal estate, and described as in that condition, so that the intention is clear to give the identical and particular money and not a sum of like amount from the testator’s money generally: Gilchrist’s Estate, 9 Pa. Dist.,Rep. 249; Barrett’s Estate, 22 Pa. Superior Ct. 74.</p> <p>Having fixed the quality of these several bequests, the next question that arises is this: In the event of an insufficient fund to pay all of them, upon which does the loss fall? Our answer to the question is, upon the person who claims the general legacy.</p> <p>When, the bequest is made in the form of a general legacy, and there are no expressions in, or inference to be drawn from, the will, manifesting an intent to give priority, the legacy is not exempt from abatement.</p> <p>If there is a deficiency of assets after payment of debts, expenses and specific legacies, the loss is borne entirely and proportionately by those pecuniary legacies which are in their nature general: Appeal of University of Penna., 97 Pa. 187,</p> <p>It is presumed to be the intention of the testator that the legatee should have the chattels and the devisee the lands: Grim’s Appeal, 89 Pa. 333. Real estate specifically devised cannot be resorted to for payment of a pecuniary legacy in case of a deficiency of personal estate: Martin’s Estate, 12 Lane. Law Rev. 359.</p> <p>A testator owned a farm which he devised to his son, and also made a bequest of a certain sum of money to one of his children, and there being no personal estate out of which to pay the same, and no direction that said bequest should be a charge on the real estate, held, that the said bequest must fall: Kreitz v. Raub, 3 Lane. Law Rev. 196.</p> <p>The specific legatees and devisees cannot be called upon to pay any portion of the general legacy of $500 to Mary Nallin O’Malley. There being no moneys with which to pay it, and as there is nothing in the will to indicate any intention upon the part of the testatrix to charge it upon the real estate devised, it must fall.'</p> <p>What remedy, under existing circumstances, the petitioner can have, for the recovery of her legacy, we are not bound to say; we are to decide whether the proceeding which she has brought be maintainable. Our opinion is against the proceeding.</p> <p>Now, December 17,1906, the petition of Mary Nallin O’Malley is dismissed and the appeal from the register is not sustained.</p> <p>' Error assigned was decree dismissing the petition.</p>

<p>Trade-mark — Unfair competition in trade — Fraud,—“Carter shoe.”</p> <p>The general rale is that anything done by a rival in the same business, by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product offered by him for sale, they were buying the product of another’s manufacture, would be in fraud of that other’s rights, and would afford just grounds for equitable interference.</p> <p>Appeals — Findings of fact — Equity—Review.</p> <p>Where the conclusions of fact reached by the trial court in an equity case rest upon sufficient evidence, and the record discloses no manifest error in their deduction from the evidence, the appellate court will not reverse the decree based upon the findings, and this is the case although the evidence may be conflicting.</p>

<p>Practice, O. C. — Appeals—Adjudication—Redistribution—Paper-books —Quashing appeal.</p> <p>Where a decree of the orphans’ court is sustained on appeal, and a redistribution is made by the lower court in accordance with the order of the appellate court, a party in interest cannot on exceptions to the distribution, without presentation of any claim or offer of evidence, raise questions which were passed upon in the original adjudication, a,nd as to which no exceptions had been filed, or appeal taken.</p> <p>In such a case where an appeal is taken from the order of redistribution, but the appellant fails to print the evidence in the first appeal, and it also appears that the appellant failed to present any claim in the readjudication proceedings, the appeal will be quashed.</p>

<p>Contract — Sale—Executory contract — Goods sold and delivered — Tobacco.</p> <p>In an action to recover for tobacco sold and delivered, it appeared that the defendant agreed in writing to purchase the plaintiff’s present crop of tobacco, wrappers to be paid for at fifteen and one-fourth cents per pound and fillers at five cents per pound, “no fillers to be stripped in the wrappers.” It was also provided that the tobacco should be well assorted and in good merchantable order, and delivered at defendant’s warehouse. Plaintiff delivered one lot, which was received and paid for. Shortly thereafter he delivered the remainder, which the defendant rejected on the ground that it had not been properly assorted, but that fillers had been mixed with wrappers, and that the tobacco was not in good merchantable condition. At the time of the written contract, the tobacco was hanging in plaintiff’s barn, and before it could be delivered it had to be cured, stripped and assorted. The evidence was conflicting as to the condition of the second lot of tobacco when it was delivered. Held,</p> <p>(1) That the burden was on the plaintiff to show that the tobacco tendered and rejected was well assorted, and in good merchantable order.</p> <p>(2) That the acceptance of one lot of tobacco did not relieve the plaintiff of the covenants of the contract as to the toba.cco which he subsequently tendered.</p> <p>(3) That the contract was executory and title to the tobacco did not pass at the time the contract was made.</p> <p>(4) That it was competent for the defendant to establish by the testimony of witnesses expert in such matters what was the condition of the tobacco at the time of the alleged delivery, and it was not necessary that the plaintiff should have-had notice that such witnesses were to make such examination.</p> <p>(5) That it was proper for the defendant to show that the plaintiff had been notified to remove the tobacco from defendant’s warehouse after it had been rejected.</p> <p>(6) That evidence of the market value of the tobacco actually tendered, but which was not what the defendant had agreed to buy, was not admissible; and</p> <p>(7) That the whole case was for the jury and that a judgment and verdict for defendant should be sustained.</p>

<p>Broker — Real estate broker — Commissions—Contract—Modification— Question of fact — Conflicting testimony — Case for jury.</p> <p>In an action to recover commissions for sale of real estate where it appears that the commissions were to be paid as certain installments of the purchase money were received, the case is for the jury, where the evidence although contradicted tends to show that after certain installments had been paid, the original contract between the seller and the purchaser had not been abrogated, but had been modified and in the modified form had been executed.</p>

<p>Land law — Deed—Boundaries—Courses and distances — Evidence— Oral proof — Statute of frauds.</p> <p>The courses and distances in a deed always give way to the boundaries found on the ground, or supplied by the proof of their former existence when the marks and monuments are gone; and this is as true of the grant by an individual as of official surveys. To establish the existence of such marks and monuments parol proof is admissible, and such testimony is not in contravention of the statute of frauds and perjuries.</p> <p>Evidence — Witness—Party dead — Executors and administrators.</p> <p>Where an executor with power of sale executes a contract in writing to sell the land of his testator, and the executor subsequently dies, the other party to the contract may testify as to matters occurring between him and the executor in the latter’s lifetime.</p>

<p>Husband and, wife — Alienation of wife’s affections — Criminal conversation — Evidence.</p> <p>A husband may maintain an action against one who has wrongfully induced his wife to separate from him, and it is not necessary in order to sustain such an action, that the plaintiff should either allege or prove criminal conversation. In such a case the jury may be properly instructed that in estimating the damages, they could take into consideration the social relations of the parties and the apparent affection existing between husband and wife before the separation.</p> <p>Where the plaintiff in such a case has offered evidence as to the conduct of the parties prior to the separation, laying a reasonable ground to infer an improper relation then existing between them, testimony as to their relations after the separation is admissible in order to render certain the inference to be drawn from the prior conduct.</p> <p>Under the Act of May 8, 1907, P. L. 184, in an action of crim. con. by a husband, the wife is a competent witness to rebut an attack upon her character or conduct. The statute does not make the wife generally competent as a witness in such actions, but only in regard to the matter of her character or conduct.</p>

<p>Appeal, No. 177, Oct. T., 1908, by S. Mason McCollin, M. D., from decree of O. C. Delaware Co., dismissing appeal from register of wills in Estate of Almena Cummins, deceased.</p> <p>Appeal from register of wills.</p> <p>In addition to the facts stated in the opinion of the Superior Court it appears that the two clauses of the will of the testatrix showing the cancellations were as follows:</p> <p> </p> <p>The court dismissed the appeal.</p> <p>Error assigned was decree dismissing the appeal.</p>

<p>Appeal, No. 24, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1905, No. 479, on verdict for plaintiff in case of Miller Lock Company v. Diehl Manufacturing Company.</p> <p>Assumpsit on a covenant of warranty contained in a contract for the sale of an electric generator.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The defendant presented the following points:</p> <p>1. If the jury believe that the defendant company at its own expense kept the machine in reasonable repair for the period of one year from date of shipment, your verdict must be for the defendant. Answer: Refused. [1]</p> <p>3. By virtue of the contract under which the machine was sold by the defendant to the plaintiff the defendant was obligated for the period of one year to keep the machine in operation up to the standard of its warranty, namely, “without shifting the position of the brushes the generator will operate at all loads between no load and full load without sparking, and will withstand momentary overloads of 35 per cent without injurious sparking,” and since the plaintiff did not return or offer to return the machine at the expiration of one year from date of shipment, but continued to use it, such action on his part is deemed to be an election to retain the machine, and the plaintiff is, therefore, permitted to recover only such sum as would compensate for the cost of the proper repair of the machine. No such cost has, however, been proven and your verdict must, therefore, be for the defendant. Answer: Refused. [2]</p> <p>4. Under all the evidence of the case your verdict must be for the defendant. Answer: Refused. [3]</p> <p>Verdict for plaintiff for $1,080, upon which judgment was entered for $600, all above that amount having been remitted. Defendant appealed.</p> <p>Errors assigned amongst others were (1-3) above instructions, quoting them.</p>

<p>Contract — Agreement among creditors — Chattel mortgage.</p> <p>One of three creditors held a chattel mortgage under the laws of Massachusetts on a machine belonging to the debtor. The three creditors entered into an agreement by which the mortgagee was to foreclose the mortgage and divide the proceeds among the three creditors. Subsequently and immediately before the foreclosure sale the three creditors entered into another agreement by which it was provided that if the mortgagee bought in the property, it should operate the same and divide the net profits equally with the others until the other two creditors were paid in full. The property was bought in by the.mortgagee at a price stated, but no part of the purchase price was paid by the mortgagee to the other two creditors. Subsequently the mortgagee resold the property and divided the amount received equally with the other two creditors. One of these creditors whose account had been guaranteed, had taken a note from the guarantor and had agreed to credit against the note one-half of the moneys which should be received by such creditor from the sale of the property. Held, that the guarantor was entitled to credit only on one-half of the amount received from the resale, and was not entitled to an additional credit of one-half of one-third of the purchase price at the foreclosure sale.</p>

<p>Divorce — Setting aside decree — After-discovered evidence — Discretion of court — Appeals.</p> <p>The refusal of the court to open a final decree in divorce on the ground of after-discovered testimony so as to give the respondent an opportunity to contradict a witness who had testified in behalf of the libelant, will not be reversed in the absence of anything to show an abuse of the sound discretion of the court below.</p> <p>Where a decree in divorce was set aside on the ground that there was doubt as to whether the rule for final decree had been served on the respondent and this action of the court was reversed on appeal, and thereafter the respondent applied to reopen the case for the purpose of offering after-discovered testimony, and this application is refused and a second appeal is taken, the respondent cannot on the second appeal, and after the time for an appeal from the original proceeding had expired, allege that the evidence in the original proceeding was not sufficient to support the decree.</p>

<p>Appeal, No. 228, Oct. T., 1907, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1907, No. 354, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Land-Wharton Company v. Peter J. Hughes.</p> <p>Assumpsit to recover the .costs of a report on a railroad proposition.</p> <p>The writing containing the contract were the following letters:</p> <p>“To Mr. Peter J. Hughes,</p> <p>“530-531 Real Estate Building,</p> <p>“Philadelphia, Penna.</p> <p>“Dear Sir:</p> <p>“Mr. J. K. Davis, of H. F. Sanville and Co., 710 Girard Trust Building, Philadelphia, informed me that in making the proposed report on the Jeanette and West Newton Traction Co., proposition, we are to look to you for our fees.</p> <p>“To avoid any misunderstanding will you please drop us a line confirming Mr. Davis’ statement..</p> <p>“Our charge for the service will be based on the time occupied in making the examination and preparing a report at the rate of Fifty ($50) Dollars per day, plus actual expenses.</p> <p>“Yours very truly,</p> <p>“Land-Wharton Company,</p> <p>“[Sig.] Frank Land,</p> <p>“Secretary and Treasurer.”</p> <p>“Mr. Frank Land,</p> <p>“Land-Wharton Co.,</p> <p>“Pennsylvania Building, Philada., Pa.</p> <p>“Dear Sir:</p> <p>“Replying to your letter of the 11th inst,, I hereby accept your proposition, providing the time on the report does not exceed three days.</p> <p>“Your report to cover complete estimates for cost of construction, complete cost for operation and complete report of estimated earnings.</p> <p>“Yours very truly,</p> <p>“[Sig.] Peter J. Hughes.”</p> <p>The. material averments of the affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 125, Oct. T., 1908, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1908, No. 3,059, making absolute rule for judgment for want of a sufficient affidavit of defense.'in case of Oscar Sprissler v. Elizabeth McFetridge. Assumpsit for medical services'. 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. 21, Jan. T., 1908, by defendant, from order of Q. S. Columbia Co., Feb. T., 1905, No. 14, confirming order of removal in case of Overseers of the Poor District of Mifflin Township v. Directors of the Poor and of the House of Employment for the County of Schuylkill.</p> <p>Appeal from order of removal of a pauper. Before Evans, P. J.</p> <p>From the record it appeared that Harvey Gearhart had no notice of the complaint and hearing thereon, that he was likely to become chargeable to the poor district of Mifflin township. Other facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were in not finding certain facts and conclusions in favor of the defendant, including the fact that no notice had been served upon Harvey Gearhart of the complaint and the hearing (3).</p>

Appeal, No. 150, Oct. T., 1908, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1907, No. 1,253, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louis Schaefer v. Mary Lange. Assumpsit for goods sold and delivered. The facts are stated in the opinion of the Superior Court. Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 22, April T., 1909, by defendant, from judgment of O. & T. Allegheny Co., May T., 1908, No. 0000, on verdict of guilty in case of Commonwealth v. George McCloskey. Indictment for burglary. Before Kennedy, P. J. The court charged in part as follows: [If you are convinced beyond a reasonable doubt that they all three or any one of them was guilty of the offense, it will be your duty to say so by your verdict.

<p>Appeal, No. 27, April T., 1909, by defendant, from judgment of 0. & T. Allegheny Co., May T., 1908, No. 8, on verdict of guilty in case of Commonwealth v. Charles H. Porter.</p>

<p>Constitutional law — Special sessions of legislature — Proclamation by governor — Title of act — Corrupt practices act — Act of March 5, 1906, P. L. 78.</p> <p>The Act of March 5, 1906, P. L. 78, known as the corrupt practices act, and entitled “ An act to regulate nomination and election expenses, and to require accounts of nomination and election expenses to be filed, and providing penalties for the violation of this act,” does not violate sec. 25 of art. Ill of the constitution, which provides that “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such sessions.”</p> <p>The subject of secs. 9, 10, 11 and 12 of the act of March 5, 1906, is sufficiently designated in sec. 3 of the governor’s supplemental proclamation of January 9, 1906, as follows: “To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections,- and to require the managing committee and managers of all political parties to file with some designated official at the close of each campaign, a detailed statement in writing accompanied by affidavit, of the amounts collected and the purposes for which they were expended.”</p> <p>In order to interpret the proclamation of the governor the courts are bound to give the words used the same fair and reasonable meaning and intendment which they apply when considering a statute, >and the general scope and sufficiency of the proclamation is to be determined by the same well-known rules. The purpose of the proclamation is to inform the members of the legislature of the designated subject which they are convened to consider, and when the general assembly enacts a law which is fully and clearly responsive to such a call, both in its title and in the body of the act, such law will be maintained by the courts.</p> <p>The Act of March 5, 1906, P. L. 78 is sufficient in title and is not in conflict with sec. 3, art. Ill of the constitution.</p> <p>The subject in a title to a general law should be more comprehensive and clearly expressed than in a proclamation to the members of. the general assembly who are convened to consider particular legislation. The framers of the constitution had this difference in mind in not requiring the same particularity in the word used in the proclamation and that required in the title of a statute.</p> <p>The courts are not at liberty to declare statutes void because of their apparent injustice or impolicy. Neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the constitution. The only duty and power of the courts is to scrutinize the act with reference to its constitutionality in order to discover which principle of the constitution, if any, is violated.</p> <p>Whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution.</p>

Appeal, No. 8, April T., 1909, by W. M. Likins et a!., from order of Q. S. Fayette Co., Dec. T., 1907, No. 284, dismissing petition of W. M. Likins et al. for audit of the account of John Q. Van Swearingen. Petition for appointment of an auditor. Before Umbel, P. J. The opinion of the Superior Court states the case. Error assigned was order dismissing the petition.