Volume 38 — Pennsylvania Superior Court Reports

<p>Appeals — Errors—Granting of new trial — Judicial discretion.</p> <p>The granting of a new trial is not assignable as error, except where it is made to appear that there was a clear, manifest and undoubted abuse of judicial discretion.</p>

<p>Appeal, No. 52, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1905, No. 530, on verdict for plaintiff in case of Edmund Mullen, by his father and next friend, Festus Mullen, and said Festus Mullen, each in his own right, v Wilkes-Barre Gas & Electric Company.</p> <p>Trespass to recover damages for personal injuries. Before Lynch, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. Verdict and judgment for Edmund Mullen for $350, and for</p> <p>Festus Mullen for $150. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 29, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1903, No. 149, on verdict for plaintiff in case of Hannah L. Harter v. Albert Whitebread.</p> <p>Trespass to recover damages for slander. Before Halsey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>When a witness for defendant was on the stand he was asked this question:</p> <p>“Q. Tell us what the conversation was that you did have with Milton Bittendender?”</p> <p>Objected to as irrelevant, immaterial and incompetent.</p> <p>The Court: The purpose of these questions is contradiction, and we have to confine you to the rule. Objection sustained, the question rejected, exception noted and bill sealed for defendant. [4]</p> <p>When Abram Whitebread was on the stand the following offer was made:</p> <p>Defendant proposes to prove by the witness on the stand, the financial standing of the defendant.</p> <p>Objected to as not matter of defense. That the plaintiff might have proved it in relation to the question of damages, but that it cannot be proved in mitigation of damages. Objected to as immaterial, irrelevant and incompetent.</p> <p>Objection sustained, evidence rejected, exception noted and bill sealed for defendant. [5]</p> <p>The court charged in part as follows:</p> <p>[This is an action of trespass brought by Hannah Harter against Albert Whitebread. It is based upon an allegation of slander. The plaintiff contends in the statement filed that certain words used by the defendant against her were slanderous. While on its face, the statement may not indicate absolutely, or as lawyers say per se, that the words were slanderous, it is alleged on the part of the plaintiff that they impute a slander. They are in Pennsylvania Dutch, and what their translation ;s is for you. (The court here reads the alleged slanderous statement from the declaration.) What do those words mean? Their meaning as alleged in the declaration is as follows: “Did you hear the news?” Abram Whitebread answered, “No.” The defendant then said Hannah Harter went to bed with Irving Whitebread and Calvin Eroh.</p> <p>On their face those words would not be slanderous, but under the rule of law which is known as the doctrine of innuendo, it is alleged by the plaintiff that they were slanderous and that they impute the crime of adultery to this plaintiff.</p> <p>What are the facts? Hannah Harter and her husband, Sheridan Harter, lived in Hollenback township in the year 1902. This plaintiff, the wife of Sheridan, was a member of the Lutheran church in that township, in the village of Hobbie. Some time in December, 1902, knowledge came to her that certain stories were in circulation which were injurious to her reputation. She said she was told by a lady named Mrs. Harris that these stories were in circulation, and by Mr. Hippensteal. That she went in pursuance of information derived from these two people and others, to Abram Whitebread. It was on the night of Christmas, 1902, between the hours of ten and eleven o’clock, after the close of the Ghristmas ceremonies at the church. Mr. Whitebread was in bed and through his daughter, I think, he was gotten out and came out into the road where the plaintiff, Mrs. Harter, and her husband were in a buggy. That there at that time he told her, the conversation then being in English, the story that she heard was in circulation. The conversation was in English except as to the exact words which he said he derived from Albert Whitebread. He said that some time in the month of December, about the second, Albert came to his mill, he being a sawyer, called him out, and after talking about one thing and another, finally told him in Pennsylvania Dutch certain words, what they were you must determine, and which are alleged in this declaration, as I have read. Mrs. Harter thereupon on December 27, 1902, went to the place of residence, I think, of Albert Whitebread, this defendant, and asked him about it. He said he did say it, that his mother-in-law, Malvina Whitebread, had seen her in the bed. She testified there was other conversation with reference to an allegation on the part of Albert that this plaintiff had circulated stories derogatory to the reputation of his daughter Delia, I think, or Della; and this plaintiff thereupon said, “ I will sue you,” and he said, I think, “Sue and be damned,” or “sue, just as you see fit;” that afternoon, as alleged by the plaintiff, the story was told to other people by Albert, in the blacksmith shop. Albert denies he told this in the blacksmith shop. In this connection I will state that anything I say with reference to the testimony is only for the purpose of applying the rules of law applicable to it, and is not a conclusion because it comes from the court. Your determination is conclusive as to the truth of the testimony; the court only gives you the rules of law applicable to it.</p> <p>The defendant’s testimony is substantially that of the plaintiff with the exception that Mr. Abram Whitebread said that at the time of the conversation at the house, there was no Pennsylvania Dutch used at all, that the entire conversation was in English. However, the testimony is that the conversation at the mill, was in Pennsylvania Dutch. The conversation at the house, according to the evidence of the plaintiff here, was in English with the exception of the operative words here charging this slanderous offense. As I said before, the plaintiff says these words were in Pennsylvania Dutch. Abram Whitebread says they were all in English.</p> <p>Were these words slanderous? That is for your determintion. Slander may be sufficiently defined, as a false and malicious defamation by word of mouth, tending to injure or disgrace the person of whom the words are spoken; words falsely spoken of a person, which impute to a party the commission of some criminal offense, involving moral turpitude, for which the party, if the charge is true, may be indicted and- punished. As I said to you before, these words standing alone would not be slanderous, because they would not impute any criminal offense. But then comes the doctrine of innuendo. Where words are of dubious import, the plaintiff may aver their meaning by innuendo, and the truth of the innuendo is for the jury. The plaintiff has alleged here the words used, and applying the doctrine of innuendo to them says that those words mean that the plaintiff committed the crime of adultery with Irving Whitebread and Calvin Eroh.</p> <p>In this connection there is another question of fact in which there is contrariety between the testimony of the plaintiff and the testimony of the defendant. Abram Whitebread says that Eroh’s name was not used at all in any of the conversations, not used in the conversation between him and Albert, not used in the conversation between him and the Harters on the night of Christmas; that the Whitebread boy’s name was used.</p> <p>It is for you to determine whether these words did impute to the plaintiff the crime of adultery.] [1]</p> <p>Verdict and judgment for plaintiff for $1,225.50. Defendant appealed.</p> <p>Errors assigned were (1) above instruction, quoting it; (2) in presenting to the jury testimony of the plaintiff and her husband respecting her conversation with Abram Whitebread as proof of what the defendant said to the latter; (3) in not presenting to the jury either the theory or evidence of the defense; (4, 5) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. —, Jan. T., 1908, by M. F. Spellman, from order of Q. S. Columbia Co., Dec. T., 1906, No. 28, entering judgment on verdict in case of Commonwealth v. Bessie Harrison.</p> <p>Indictment for larceny and for receiving stolen goods. Before Evans, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment on the verdict.</p>

<p>Replevin — Quashing writ — Act of April 3, 1779, 1 Sm. L. 470.</p> <p>1. The Act of April 3, 1779, 1 Sm. L. 470, providing for quashing writs of replevin for goods seized by public officers, has no application to a case where a police officer of a borough seizes a vehicle to compel the owner to pay a license tax, if it appears that the officer had no process issued by any court, magistrate or tribunal, and that there was no law or lawful ordinance authorizing him to make such a seizure.</p> <p>2. In such a case where the defendant’s motion to quash the writ is based on an ex parte affidavit averring that the vehicle had been abandoned on a street of the borough, and that the officer seized it to abate a nuisance, and this averment is uncertain in its terms, and is flatly contradicted by the answer, the court will refuse to quash the writ of replevin.</p>

<p>Corporations — Light, heat and power company — Manufacture of electricity — Waters—Seepage—Eminent domain.</p> <p>1. A company organized for the purpose of supplying power for the manufacture of electricity to be used for public and private lighting, but without the power of eminent domain, must so conduct its business that a private nuisance shall not be created by percolation of water brought by an artificial water course upon its premises. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, distinguished.</p> <p>Deed — Reservation—Seepage—Release.</p> <p>2. Where a grantor reserves to himself the right of maintaining a dam, and the right of carrying water in a race course “as at present enjoyed,” free and clear from all liability to the grantee for loss by reason of the breaking away or overflowing of the race and dam, and subsequently executes a release to the grantee’s successor in title of all claims or demands to any estate, right, title or interest in the land, the land so released is thereafter no longer subject to a seepage servitude.</p> <p>Negligence — Proximate and remote cause — Waters—Seepage.</p> <p>3. On an issue to determine damages to plaintiff's land by seepage and percolation, the case is for the jury where the evidence is conflicting as to whether the flow of water came by the natural level of the land from defendant’s race course on to the plaintiff's land, or whether the injury was caused by the independent intervening agency of water flowing through drains constructed by a railroad company.</p> <p>Waiers — Damage to land — Landlord and tenant — Injury to the reversion.</p> <p>4. A landlord may maintain an action for an injury to land notwithstanding the occupancy of the tenant, where he shows that he is in fact the owner of the land, and that in consequence of the acts and omissions of the defendant, a stated number of the acres of the land were greatly injured and damaged, that his system of underdrains was flooded, and the land rendered unproductive and untillable for farming purposes.</p> <p>Waters — Injury to land — •Measure of damages.</p> <p>5. In an action to recover damages for injuries to land by water, the trial judge cannot be convicted of error in saying that the plaintiff “is entitled to whatever you find under the evidence to be the cost of remedying the injury done by the act of the defendant, unless that cost will exceed the value of the property injured, and in such case the value of the property becomes the measure of damages.”</p> <p>6. In such a case a clearer instruction would be that it was the cost of restoring the property to its former condition, instead of the cost of remedying the injury, that would be the measure.</p>

<p>Appeal, No. 20, Jan. T., 1908, by-plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 451, on verdict for defendant in case of Joseph Hendler v. T. F. Quigley.</p> <p>Appeal from judgment of a justice of the peace in proceedings under the act of 1863 to obtain possession of leased premises. Before Ferris, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Plaintiff presented the following points:</p> <p>2. In no event shall the jury allow in computing the damages, in case they should find for the defendant, any money value for loss of business or good will, except from the alleged eviction on August 18 to October 9, 1903, the date when the defendant transferred his license to Passavento.</p> <p>3. There is not sufficient evidence of any value as to the good will in itself to warrant the jury in awarding damages for this as a distinct item.</p> <p>4. Under the evidence in this case the defendant is not entitled to any damages for profit of business.</p> <p>The answer of the court to these points being as follows:</p> <p>The second, third and fourth points, gentlemen, I answer as follows: One of the items of damages, if any, would be the fair value to the tenant of the use of the property for the balance of the term, if you find that term was extended until April, 1904. And in estimating that fair value you should take into consideration the evidence relating to the amount and profits of the tenants’ business, and the evidence bearing upon the question as to whether in the transfer of the license to Passavento the good will of the business from October 1 was also transferred and the defendant compensated therefor; the question in that-regard being whether he suffered any loss as to the balance of the term after October 9, 1903. [2-4]</p> <p>5. If the jury find for the defendant, and also find that the eviction was wanton and malicious, then in addition to compensatory damages, vindictive or exemplary damages may be allowed. Answer: That we have already spoken to you about in our general charge, and that is affirmed. If you allow such damages they should, however, be reasonable in amount. [5]</p> <p>Verdict and judgment for defendant for $750. Plaintiff appealed.</p> <p>Errors assigned were (1) in refusing binding instructions for defendant; (2-5) above instructions, quoting them. ■</p>

<p>Equity — Specific performance — Reformation of contract.</p> <p>1. Where a plaintiff comes into a court of equity seeking to enforce the performance of a contract that is oppressive and unconscionable, a chancellor may withhold his aid even where the proof of the defendant shows little more than improvidence, surprise or even mere hardship. In such cases a court of equity may properly adhere to the ancient maxim that a decree is of grace, not of right. But where one seeks the active interposition of a court to reform a contract reduced to writing and signed and sealed by the parties, a very different principle controls. To reform a contract, and then enforce it in its new shape, calls for much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. •</p> <p>Equity — Equity pleading — Presumption.</p> <p>2. It is a fair presumption that a plaintiff who files a bill in equity, states his case as favorably for himself as the facts will warrant.</p> <p>Equity — Reformation of contract — Parol sale of land — Statute of frauds.</p> <p>3. A court in passing upon a bill in equity will not construe a parol bargain for the sale of land as a final bargain, although so averred, where the entire bill and the transaction therein described show plainly that the bargain was not final, but was to be supplemented by a written contract.</p> <p>4. A parol sale of lands cannot be construed as within the exception to the statute of frauds, where it appears that no substantial part of the purchase money was paid at the time, or in pursuance of the alleged sale, and that while possession was shown, the only averment as to improvements was that the purchaser “commenced to make valuable improvements. ”</p> <p>5. A bill in equity to reform a written agreement for the sale of land on the ground that the contract contained a reservation of minerals contrary to the plaintiff’s understanding, cannot be sustained where the plaintiff does not deny that the contract when and as she signed it contained the reservation, nor allege any mistake of the parties or the scrivener, or any fraud or deception practiced upon her by the defendant. In such a case there is no ground for reforming the contract, because the defendant gave plaintiff an untruthful reason for his determination to retain the mineral rights. He was not required to give any.</p> <p>6. A court of equity will not reform a written agreement on an averment that the plaintiff, when she signed the contract, was suffering from illness, and by reason of it, “unable to fully realize and understand the terms and conditions of the written contract,” where she does not disclose what her understanding of the paper then was, nor aver that it was then different from what it is now.</p>

<p>Banks and banking — Check—Collection.</p> <p>1. Where a person requests a bank in which he is not a depositor to cash a check drawn on a bank in another city, and he takes the cash, although warned of the bad credit of the maker, and that he will be held liable on his indorsement if the check is returned, and the bank acting , without negligence and in good faith transmits the check through its usual channels for collection, and it is returned unpaid, the bank may recover the amount of the check from the indorser, although it appears that one of the intervening banks taking advantage of the facts revealed by the check, entered up a judgment note against the maker and attached the whole deposit before the check was received by the bank on which it is drawn.</p> <p>2. Although the amount of a check left with a bank for collection has been credited to a depositor’s cash, it may be charged back to him in case it turns out to be worthless, unless the bank has been negligent, or has done something to mislead the depositor, thereby inducing him to act to his own injury.</p>

<p>Appeal, No. 49, Oct. T., 1907, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 2,626, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary L. Milligan et al.</p> <p>v. Alexander Marshall, Covenantor, and Harry Weinreich, Owner.</p> <p>Assumpsit to recover ground rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 13, March T., 1908, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1907, No. 441, on verdict for defendant in case of Joseph Clever v. Conrad Clever.</p> <p>Foreign attachment in assumpsit. Before Sadler, P. J.</p> <p>The court charged in part as follows:</p> <p>The plaintiff in this case has brought the present action to recover from the defendant the sum of $150 paid him on October 15, 1904, on a contract which he, the defendant, Conrad Clever, made on that day to sell him a farm in Southampton township, Cumberland county.</p> <p>The agreement of sale so signed by the defendant, a copy of which has been offered in evidence, is as follows:</p> <p>“Shippensburg, Pa., Oct. 15, 1904.</p> <p>“I have this day sold to Joseph Clever my Farm situated Cleversburg containing 100 acres more or less for Forty two dollars and fifty cts per Acre on the following terms I am to releas to the said Joseph Clever the lease now held by Russell & Hykes on a sertan no of acres now in peaches | of grain in ground to be delivered in the bushel. No straw or Fodder to be removed off said farm. No timber to be cut on said farm. Buildings to be left in a reasonabl condition. Insurans Policies to be transferred and all taxes to be Paid in full for 1904. One hundred and fifty cash. Five hundred or as much as can be raised on the first of April, 1905. Bal to be secured by mortgage at at 4%.</p> <p>“Witn my hand,</p> <p>“Conrad Clever.”</p> <p>The plaintiff contends, and has testified that it was agreed, and that the defendant stipulated, and that it was a condition of the purchase by the plaintiff, Joseph Clever, that a certain lease which had been made of a portion of the farm for a peach orchard to Russell & Hykes Brothers should be released, as stated in the article, but that not only was Conrad Clever to secure the release thereof, but that he was to accomplish this by the middle of the following week, and that he was also to notify him, Joseph Clever, that he had so secured the same; the latter desiring to take possession of this portion of the land, and remove the trees growing thereon; that he desired this, because his object in buying the property was to put his son on the farm, who had been employed in Pittsburg, and was there on a visit to his father; that no notice had been given to him that the release of the same had been secured up until Friday, October 21, that he then went to Shippensburg and notified S. K. Clever, the brother of the defendant, that he would not take the property, giving as a reason that no notice had been given him that a surrender of the lease has been secured from the said lessors. Some correspondence passed between the parties addressed by Conrad Clever to Joseph Clever, and by Joseph to Conrad, and one addressed by Conrad Clever to Joseph Clever, on the day of , 1904, was offered in evidence on his behalf. Joseph also states that no hay was to be taken from the farm which had been raised upon it, as well as no straw or fodder; that no timber was to be cut or carried away, or anything removed except what belonged to the tenant, and he called witnesses to show that three loads óf hay had been removed, about three tons each, of the value of, as given by one witness, as we remember, $12.00 or $13.00 per ton.</p> <p>On the other hand, the defendant came upon the stand and testified that no agreement as to the procuring of the surrender of the lease was made, except what appears in the agreement; that he did not agree to procure its surrender by the middle of the following week, and did not agree to notify him, Joseph Clever, of its surrender within that time.</p> <p>D. B. Russell, who prepared the agreement, also contradicts the plaintiff in this matter; he says that no time was fixed for its surrender to Clever, stating that he wanted it as soon as it could be secured. He also states that on that day he assured Joseph Clever that it would be surrendered, and that on that very night he and the Hykes met and agreed to surrender the lease, but that the paper formally surrendering the same was not executed until the day of January following. Mr. Russell also says that nothing was said about hay — that Joseph Clever was to have all except what belonged to the tenant.</p> <p>D. A. Smith was also called and states that he was present when the contract of October 15 was made and written, and he stated how the parties stood about the wagon on which it was written; that he heard all that was said by the parties, and he testified also that there was no agreement that a surrender of the lease was to be secured by the middle of the week, or at any definitely fixed time, or that notice of the surrender was to be given by Conrad Clever to Joseph Clever within that time, nor was any such promise made by Conrad Clever. He states that nothing was said about hay — all stuff on farm to go to Joseph Clever, except tenant’s property.</p> <p>[All three of these witnesses state that after the agreement was signed, Joseph Clever stated to Conrad that if he did noti secure the surrender of the lease, he would only pay $40.00 per acre instead of $42.50, and that to this Conrad made no reply. These statements, if made, were inconsistent with the present contention of the plaintiff, and were not denied by him, as we recollect the testimony.] [16]</p> <p>S. K. Clever also testifies that on Tuesday, October 18, Joseph Clever called on him at Shippensburg, and told him that he would not take the farm, and that if he had to lose the $150 paid he would do so, or words to that effect, and that he did not then state that he was refusing to carry out his contract because of the failure of Conrad Clever to secure a surrender of the lease. He also states that the hay was removed by him; that it belonged to him.</p> <p>Mr. Baker testifies that on Sunday the 16th and Monday the 17th, Joseph Clever spoke to him about leasing the farm to him; that he refused to take a lease of the same, and that on Tuesday evening the 18th, he told him he had concluded not to take the farm, and had thrown it up, or words of similar import.</p> <p>The defendant also offered the contract of October 15 to show that while it provides for a surrender of the lease, no time is fixed within which it should be done, except the implication that it would be required before April, when the deed was to be made.</p> <p>The letters of Joseph Clever were offered to show that in none of them does he assign as a reason for his refusal to carry out the contract that the lease had not been surrendered by the middle of the week following the sale of October '15, or that he had not received notice of the same — certainly not explicitly. But that he denied in these letters that he had ever made a contract. This was offered as tending to show that his present claim has been an afterthought.</p> <p>In this connection it may be but proper to state that Joseph Clever was called in rebuttal and denied that he saw Samuel Clever on October 18, insisting that it was on the 21st, and that it was on that day that he saw Baker, and told him that he had concluded not to take the farm, and his son was called who stated that he was husking corn that week with his father, and that he did not go to Shippensburg until Friday the 21st.</p> <p>The defendant also offered testimony showing that a deed was prepared and tendered to Joseph Clever, by letter of Mr. Johnston, dated March 27, and in person on April 1, which was refused.</p> <p>[It was further shown that Mr. Clever subsequently advertised the farm at public sale, and resold the same upon practically similar conditions as to payments;] [17] that he realized but $3,825.84 therefor, thus losing the sum of $135.11 on the sale, besides interest on the money which Joseph Clever had agreed to pay from April 1, which would amount to $19.00 additional; that the costs of the second sale were $8.00 and that he paid his attorneys $30.00. He thus contends that instead of being a debtor to the plaintiff, he has lost through the default of the latter not only the $150 paid to him on October 15, but that he has in addition lost the sum of $192.91; and this he insists that the plaintiff is bound to refund him, and he asks that instead of finding a verdict in favor of the plaintiff, you should, and are required, under the evidence, to find a verdict in his favor and against the plaintiff for this loss above $150. As already stated in answer to the points presented, we do not think that under the testimony you can consider the fees paid the attorneys, and the $30.00 paid them should be eliminated, as well as the costs of the second sale, $8.00. [So that the amount that we think proper for you to take into consideration is $154.91, to wit: the loss of the $135.11, the difference in the price of the, sale, and interest from April 1, to the time of the second sale at four per cent. We think, as a matter of law, that that is the damage suffered by the defendant in this case, and the damage which we think you can take into consideration in coming to a determination.] [18]</p> <p>[We are satisfied that as no fraud, accident or mistake was alleged or shown in the'making of the written contract, that it is incompetent under the law for the plaintiff, Joseph Clever, to contradict its terms, or to materially modify the contract by fixing the surrender of the lease of the peach orchard at a particular date, and making that of the essence of the contract. Surely is this so when the written paper is testified by three witnesses to set forth what was agreed as to the lease, and three of whom expressly contradict the plaintiff in this matter.] [19]</p> <p>[It not being controverted that the plaintiff paid $150 to the defendant on October 15,1904, what will, therefore, be for your consideration is to determine whether Conrad Clever suffered any loss or damage by reason of the default of Joseph Clever to take the farm and comply with the conditions, and if so, how much;] [20] and also whether under the evidence that you have heard in this case, and the law as given you by the court, the defendant is entitled to set off the loss or damages against the claim for the return of the $150, and should you find his loss exceeded that sum, determine how much, and in that case, as the defendant insists, you may find a verdict in favor of the defendant for such sum.</p> <p>[The law is that when one enters into a contract for the purchase of a property, and refuses to comply with the conditions, there may be collected from him the loss which the owner of the property suffers by such default, and that this loss or damage may be ascertained by a public resale of the property, on the same conditions as to the payments, and if a partial payment or partial payments have been made, they may be retained to an amount sufficient to pay the owner for the loss, and should these partial payments not be sufficient to reinburse him for the loss, he may sue and recover the excess in an action at law.] [21]</p> <p>[The terms must be reasonably as advantageous at the second sale as at the first — there must be reasonable care exercised, and they must be substantially and practically the same.] [22]</p> <p>Verdict and judgment for defendant for $4.06. Plaintiff appealed.</p> <p>Errors assigned amongst others were (16-22) above instructions, quoting them.</p>

<p>Appeal, No. 69, Oct. T., 1907, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1906, No. 228, on verdict for plaintiff in case of George Barrett, Jr., v. Minersville Borough Corporation.</p> <p>Trepass to recover damages for injuries to real estate. Before Marr, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>flf, on the other hand, you find that the flow of water upon the plaintiff’s premises or upon his leasehold estate was caused by the construction of the gutter, either in the fact that it cast a greater lot of water upon his premises, which was accumulated from the streets surrounding that spot, if you find that is the truth, then he would be entitled to such damages as would compensate him for such an injury arising from such an act on the part of the borough.] [1]</p> <p>Defendant presented these points:</p> <p>1. If you find that no greater area of ground has been drained by the laying of the gutter on South Delaware avenue, referred to in the evidence, your verdict must be for the defendant. Answer: This request is denied, as, if no greater area of ground has been drained, yet, if the jury find that the construction of the gutter caused a greater flow of the surface water to be cast upon plaintiff’s leasehold estate than existed before the construction of the gutter, and an injury arose therefrom, defendant may be liable. [2]</p> <p>6. Under all the evidence your verdict must be for the defendant. Answer: Refused. [4]</p> <p>Verdict and judgment for plaintiff for 1175. Defendant appealed.</p> <p>Errors assigned were (1, 2, 4) above instructions, quoting them.</p>

<p>Principal and agent — Express company — Route agent — Evidence.</p> <p>1. Where it is sought to hold an express company on a contract made by one of its route agents to pay a sum of money to a constable for securing the arrest of thieves who had stolen packages from the company, it is proper to permit the general agent of the company, who had charge of the route agents and knew the extent of their authority, to testify that the route agent had no authority to make such a contract.</p> <p>2. While the fact that a certain act is or is not within the scope of ’the authority of one who, admittedly, is a ministerial agent, cannot be proved by evidence of his declarations to third persons, yet if his authority is orally conferred, he is a competent witness to the fact.</p> <p>3. An agent is competent to prove his own authority where it is by parol, but his declarations in pais are not proof of it; and though they become evidence as part of the res geste, if made in the conduct of his business intrusted to him, yet other evidence must first establish his authority to speak before his words shall bind his principal.</p> <p>4. In an action against an express company to recover on a contract alleged to have been made by the route agent of the company, to pay the plaintiff, the constable, a stated sum for procuring the arrest of a thief, binding instructions should be given for the defendant, where the plaintiff produces no evidence to show the functions of a route agent, the nature of his duties, the extent of his powers, or that the company had ever held him out as having authority to make such a contract, or that he had ever made similar contracts with the plaintiff, or anyone else.</p> <p>5. Where a route agent of an express company is assigned by his employer to investigate a theft, there is not implied in such assignment a power to contract with a constable, who had been designated previously as the commonwealth’s agent in a requisition for a person charged with the theft, to pay such officer a specific sum for apprehending the accused in a distant state. The making of such a contract is beyond the scope, not only of the agent’s actual, but of his apparent authority.</p>

<p>Negligence — Master and servant — Dangerous machine — Knowledge of danger — Notice to employer — Risk of employment.</p> <p>1. Where an employee is injured by the sudden irregular -working of a machine, at which he had been employed for four days without knowledge of its defective condition, he may in a suit against his employer show by the testimony of another employee, that the latter had worked at the same machine two months before the accident, that it had acted on several occasions in an erratic and dangerous way, and that he had notified the foreman who had charge of the machinery of the defect.</p> <p>2. Where a workman of mature years is placed at a machine, which without his knowledge had worked at times erratically and dangerously, and nothing in his age or experience, nor in the appearance of the machine could lead him to apprehend that the machine would suddenly act in a dangerous way, he cannot be charged with assuming the risk of such action of the machine.</p> <p>3. Where a workman was directed to work at a stamping machine, and on the first day of his employment the upper die fell, and the foreman charged that he had tramped the treadle, which he at first denied, but subsequently took it for granted that he had, as the machinist and others insisted that he had, the court cannot say as a matter of law that the workman assumed the risk by continuing at the machine after this single occurrence.</p>

<p>Practice, C. P. — Case stated — Contract—Principal and agent.</p> <p>1. Where a case stated avers that one of the parties was an agent of a foreign corporation as shown by a copy of a contract annexed, the court may look into and construe the contract and find that the party named was in fact a purchaser of goods from the foreign corporation, and not its agent as averred in the case stated.</p> <p>Taxation — Mercantile tax — Interstate commerce — Purchase of automobile — ’Principal and agent.</p> <p>2. When goods are sent from one state to another for sale, or in consequence of a sale, they become part of its general property and amenable to its laws, provided that no discrimination be made against them as goods from another state, and that they be not taxed by reason of being from another state, but only taxed in the usual way as other goods are.</p> <p>3. If the mercantile tax imposed by the Act of May 2,1899, P. L. 184, be regarded as a tax upon property, it is one which the state has power to impose. If it be regarded as a tax upon a trade, or the business of vending merchandise, it is also a tax which the state may legally impose.</p> <p>4. A foreign corporation manufacturing automobiles entered into a contract with a Pennsylvania corporation doing business in this state, by which the foreign company agreed to sell automobiles to the Pennsylvania company at a certain list price, delivery to be made as soon after orders were received as practicable, payment to be made in cash. The Pennsylvania company agreed not to sell any other kind of automobiles within a designated territory, and not to sell the foreign company's automobiles outside of such territory. Payments were to be made either in advance, or by paying drafts with bills of lading attached. The contract could be terminated by either party upon ten days' notice. There was nothing in the agreement which authorized the Pennsylvania company to bind the foreign company by any engagement with a third party. Held (1), that the agreement was a contract for the sale of automobiles, and did not create between the parties the relation of principal and agent; (2) that upon the payment of sight drafts the automobiles became the absolute exclusive property in Pennslyvania of the purchasing company; and (3) that the Pennsylvania company was a retail vendor of automobiles, and as such subject to the mercantile tax imposed by the Act of May 2, 1899, P. L. 184.</p>

<p>Appeal, No. 205, April T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 873, on verdict for plaintiff in case of Essie Biehl v. General Accident Assurance .Corporation, Limited.</p> <p>Assumpsit on a policy of accident insurance. Before Young, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $277.20. Defendant appealed.</p> <p>Errors assigned were (1) portions of the charge, quoted in the opinion of the Superior Court; (2) in refusing binding instructions for defendant; and (3) refusal of defendant's point, quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 215, April T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, No. 504, for defendant on case stated in suit of Bellevue Borough v. L. E. Umstead, with notice to George H. Quaill.</p> <p>Case stated to determine the validity of a municipal lien for grading and paving. Before Frazer, P. J.</p> <p>In addition to the facts stated in the opinion of the Superior Court the record showed that the report of viewers upon which the lien was based was filed on May 28, 1902, and that the sheriff’s sale in foreclosure proceedings was on February 4,1903.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

<p>Taxation — Mercantile tax — Appeals—Certiorari.</p> <p>1. The Act of May 2, 1899, P. L. 184, entitled, “An act to provide revenue by imposing a mercantile license tax on venders of or dealers in goods, wares, and merchandise, and providing for the collection of said tax,” gives no right of appeal from the decision of the common pleas, and as the act does not impose a tax on the property, but upon the business of vending merchandise, the Act of June 26, 1901, P. L. 601, does not apply. The Supreme Court may, however, review the proceedings when brought up on certiorari.</p> <p>2. Where in such a case the record shows that the matter in dispute, and for determination by the common pleas, was not the volume of the business done, but its classification, and it appears that the common pleas made a mistake in law as to classification, the appellate court may, on certiorari, correct the error.</p> <p>Taxation — Mercantile tax — Wholesale and retail venders — Dealers.</p> <p>3. One who carries on a business of selling goods, wares and merchandise manufactured by him at a store or warehouse, apart from his manufactory, is such a vender or dealer as is liable to taxation upon the volume of his business done by him at such store or warehouse, while one who keeps a store or warehouse at his own shop or manufactory for the purpose of vending his own manufactures exclusively, is not.</p> <p>4. It is not true as a general proposition that venders of or dealers in goods, wares and merchandise must necessarily mean those, and those only, who carry on the business of selling things previously purchased, in the same form and condition, and not in the form or condition to which they have been changed after passing through some process.</p> <p>5. A brewers’ supply company which sells malt, hops, isinglass, bottles and corks to brewers, bottlers and wholesale liquor dealers, who use these articles in carrying on their business, is, as to such business, a wholesale vender within the meaning of the Act of May 2,1899, P. L. 184.</p>

<p>Constitutional law — Interstate commerce — Storage of goods in cars— Carriers — Railroads—Act of May 24,1907, P. L. 229.</p> <p>1. The Pennsylvania Act of May 24, 1907, P. L. 229, providing maximum car service charges, including car storage charges, that railroad companies may impose, is invalid as to goods and cars engaged in interstate commerce, in view of the fact that congress has legislated on the subject by the federal acts of February 4,1887, 24 Stat. at Large, 379, and June 29, 1906, 34 Stat. at Large, 584.</p> <p>2. When goods are shipped from one state into another and upon arrival at their destination remain in the cars placed upon public sidings, they continue a part of the interstate commerce transaction until unloaded.</p> <p>3. A state has no power to prescribe that a consignee, who has received a car the property of a common carrier of another state containing goods which have been consigned from another state, shall have practically three days of free time within which to unload the car and shall, if he wishes, have the right to retain the car, while standing upon the public sidings of the final carrier, for an indefinite period upon payment for the same at the rate of $1.00 per day.</p>

<p>Landlord and tenant — Covenant to pay water rent — Assessment.</p> <p>1. Where a lessee covenants to pay “all water taxes assessed” on the demised premises, and the city where the property is situated assesses water taxes at the beginning of the last year of the term and no appeal is taken from the assessment, and the amount is certified to the collector of delinquent taxes, the lessee is not liable for anything in excess of the assessment, although an increased consumption of water during the year leads to a higher assessment for the following year.</p> <p>2. The system provided by the Acts of February 20,1857, P. L. 56, March 22, 1877, P. L. 16, and June 4, 1901, P. L. 364, for charging upon land water rates, water taxes or water rents, does not contemplate the making of two levies or assessments for the same year but only a single levy or assessment at the beginning of the year.</p>

<p>Appeal, No. 1, April T., 1908, by plaintiffs, from order of C. P. Cambria Co., Sept. T., 1906, No. 77, staying execution in case of John. S. Hay and George Hay v. Valley Pike Company and Johnstown Passenger Street Railway Company.</p> <p>Petition for stay of execution. Before O’Connor, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order staying the execution.</p>

<p>Insurance — Fire insurance — Waiver—Evidence.</p> <p>Where in an action on a fire policy, it appears that the plaintiff had not filed proofs of loss, and relied upon a waiver, evidence that the adjuster of the defendant many months after the suit was brought had promised that his company would pay the loss, is not admissible to establish the waiver.</p>

<p>Criminal law — Assault and battery — Aggravated assault and battery.</p> <p>1. An information charging that the defendant did “beat, wound and ill treat the prosecutor,” and an indictment based thereon, charging that the defendant did commit an assault on the prosecutor, and “did strike, beat and ill treat,” him does not charge an aggravated assault within the meaning of sec. 98 of the Act of March 31, 1860, P. L. 382. In such a case the use of the word “wound” does not of itself raise the offense charged to the grade of aggravated assault and battery, and it may be treated and rejected as surplusage. In order to support a conviction for aggravated assault, there must be an act upon which aggravation supervenes and with which it is in some way connected.</p> <p>2. Under the local Acts of May 1, 1861, P. L. 682, April 11, 1868, P. L. 859, and April 10, 1873, P. L. 699, relating to Clarion county, where a person is indicted for an assault based upon an information charging beating and wounding, and the defendant is convicted in the quarter sessions of assault and battery, the prosecutor may not be sentenced to pay the costs of the prosecutor and other witnesses for the commonwealth.</p>

<p>Appeal, No. 218, April T., 1908, by defendant, from judgment of C. P. Indiana Co., Sept. T., 1905, No. 131, on verdict for plaintiffs, in case of R. L. Hess and B. M. Smith, trading as the Gipsy Mercantile Company, v. Hartford Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Crawford, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the defendant presented the following point: •</p> <p>4. The plaintiffs having neglected to set out any waiver in their statements of claims and having claim in their amended statements that the defendant companies waived that condition in the policies of fire insurance requiring proofs of loss to be filed within sixty days of the date of fire, no evidence of waiver of filing proofs as condition precedent to the action is admissible, and no such evidence having been offered, and the plaintiffs not having filed any proofs at all, these actions are premature, and the verdict should be for. the defendant. Answer: This point is refused. [2]</p> <p>Verdict and judgment for plaintiff for 1800. Defendant appealed.</p> <p>Errors assigned were (1) in refusing binding instructions for defendant, and (2) answer to defendant’s point, quoted above.</p>

<p>Corporations — Pipe line companies — Unlawful entry on land — Trespass —Pleading■—Anticipatory replication — Damages.</p> <p>1. Where in an action of trespass against a pipe line company, the plaintiff avers in his statement that the defendant wrongfully entered upon the plaintiff’s land and laid a pipe line against the plaintiff’s will, and the defendant sets up a right of way agreement with the plaintiff, giving the defendant a right to enter upon the land and lay a pipe line, the plaintiff may in rebuttal show that the pipe line actually laid was in a substantially different location than that mentioned in the agreement. The plaintiff in such a case is not bound to anticipate a defense of this character and answer it, in his pleadings.</p> <p>2. A permanent injury to land caused by the laying of a pipe line entitles the owner of the land to recover damages measured by the resulting depreciation in the value of the property.</p> <p>3. Where a landowner has knowledge that a pipe line company is laying a pipe line on his land, without having tendered him a bond, or made any effort with him to agree as to damages, he is not thereafter estopped from suing the company in trespass for damages for the permanent injuries to his property. In such a case the owner has a right to waive his constitutional and statutory right to security for his damages, and make claim in his action of trespass for permanent injuries to his property as if the company had given such security.</p>

<p>Master and servant — Contributory negligence — Planing mill.</p> <p>In an action by an employee against his employer, a planing mill company, to recover damages for personal injuries, it appeared that the plaintiff, a man of mature years, who had been in the service of the defendant for several years, was foreman of the planing mill, machine hands and carpenters, with the right to hire and discharge men, and with general control over his'department. On the main floor of the mill there was a saw intended for a special use. It was operated by a belt from the basement and could be detached from the general system of power by throwing the belt in the basement. When the saw was to be used it was necessary for someone to go to the basement and restore the broken connection. On the day of the accident a superior officer of the plaintiff told him that he wished to have some lumber sawed up by the special saw. He said: “When you have time, I wish you would do that. ” Plaintiff said: “ If I have to do it, I might as well do it now as at any other time.” Plaintiff then proceeded to slacken the speed of the running machinery, which he could do by an apparatus on the first floor. After this he went down into the basement, which was separate from his own department and apart from his control, and which he did not often visit, and while attempting to adjust the belt of the special saw was caught in his clothing by a set screw projecting from the shaft revolving near the belt, and was injured. Held, that the plaintiff was not entitled to recover, as the proximate cause of the injury was his own lack of care.</p>

<p>Appeal, No. 224, April T., 1908, by defendant, from judgment of C. P. Armstrong Co., March T., 1907, No. 220, on verdict for plaintiff in case of Jacob W. Clark v. American Natural Gas Company.</p>

<p>Appeal, No. 102, April T., 1908, by City of New Castle Poor District, from decree of O. C. Lawrence Co., March T., 1907, No. 30, dismissing exceptions to auditor’s report in Estate of Isabella Stewart, deceased.</p> <p>Exceptions to report of Charles R. Davis, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court below in an opinion by Porter, P. J., dismissed the exceptions.</p> <p>Error assigned was decree dismissing the exceptions to auditor’s report.</p>

<p>Appeal, No. 5, April T., 1909, by defendant, from judgment of C. P. Indiana Co., March T., 1903, No. 208, on verdict for plaintiffs in case of P. W. Steele, Admin-i'strator of Sarah J. Miller, deceased, et al., v. Thomas Maher.</p> <p>Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.</p> <p>Assumpsit to recover minimum coal royalties. Before Tel-ford, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>When Thomas Maher was on the stand, he was asked this question:</p> <p>“Q. Had you any knowledge of the coal in the Freeport vein at that time, in what is known as the Upper Freeport vein?”</p> <p>Counsel for plaintiffs ask the purpose of the question.</p> <p>Mr. Barron: The purpose of this question is to.show by this witness — and we make this offer — that at that time this witness was not acquainted with the conditions with respect to the mining of coal in the Upper Freeport vein and especially with respect to the mining of coal in this particular locality embraced in what is known as the Sarah Miller tract, and that he entered into the agreement in question here not knowing of these conditions and having no knowledge of either the quantity or the quality of the coal embraced in the tract in question.</p> <p>Mr. Taylor: Objected to as incompetent, irrelevant and immaterial. It is also objected to for the further reason that this testimony is incompetent to affect the contract on which this suit is brought.</p> <p>The Court: It appears to us that in this case the grant is absolute and exclusive, without regard to the contingencies. The lessee, the defendant, took his risk as to quantity or expense of operation and agreed to pay a definite, fixed minimum price or royalty for each year during the term after the expiration of the first year.</p> <p>Under the authority of Timlin v. Brown, 158 Pa. 606, the objection to the character of evidence proposed must be sustained. The objection is therefore sustained. Exception. [1]</p> <p>To which ruling counsel for the defendant except, and a bill of exceptions is sealed to the defendant.</p> <p>Mr. Banks: We propose to show by the witness on the stand, to be followed by the testimony of other witnesses to be called on behalf of the defendant, that the defendant was not acquainted with the premises or the coal thereunder embraced in the agreement at the time of entering into the same. Further, we propose to show that all the coal was mined and marketed under said land that was marketable. That the defendant paid the royalties up until November 7, 1901, and at that time gave notice to the plaintiffs that the coal under the premises had become exhausted and that he elected to deliver up the lease to the plaintiffs and abandon further operation: and that he has done nothing toward operating the mines on the premises since that time. This for the purpose of showing that all the coal under the premises that could be taken out has been taken out and that the coal under the premises has been exhausted, and that the plaintiffs have been paid for the royalties up until the abandonment of the mine by the defendant and have had notice of the abandonment; and to relieve the defendant from paying further royalties.</p> <p>Mr. Taylor: The offer is objected .to as incompetent and irrelevant.</p> <p>The Court: The objection is sustained. [2]</p> <p>Mr. Barron: The defendant offers to prove that the defendant was not acquainted with the premises or the coal thereunder embraced in the agreement at the time of entering into the same other than that the face of the bluff of said tract showed certain outcroppings of coal. That the coal at that time had not been tested to the knowledge of the defendant nor did the defendant have the right to make said tests upon the surface above said coal, nor could he make any test except driving through said bluff where was the outcropping aforesaid. That the defendant having had no experience in mining in that seam of coal or in that locality and no knowledge of the coal under said tract other than as aforesaid, entered into said agreement wholly upon the strength of the quantity and quality of the coal that was supposed to exist under said tract and that could with profit be mined therefrom. That the defendant with others operated the mine on said premises for a period of ten years, at a total loss of $10,000. That he and others employed at a great expense the largest number of workmen that could possibly be used in said mine. That he and others mined whatever coal it was possible to mine until rock rolls, faults, and the thinness of the seam prevented them from proceeding further. That the business of mining said coal was conducted in an economical and business like manner. Also to prove by other witnesses who had charge of the work in the mine that the coal has been mined until exhausted. Also by experts in mining that they have examined the premises embraced in the agreement and that said premises do not contain coal in sufficient quantities to enable the defendant or other persons to mine or take away the minimum quantity of coal specified in the lease to be mined. That said mine at no time could be worked for enough to pay the royalties as they became due. That all the coal that can be mined without great loss to the operators has been mined and that the defendant and others have done all that can reasonably be expected to prove that the coal is exhausted from the premises.</p> <p>That by reason of these facts the defendant found it necessary to abandon said premises and gave notice to the plaintiffs in December, 1901, of the abandonment and the reasons making the abandonment necessary.</p> <p>Mr. Taylor: Objected to as irrelevant and incompetent.</p> <p>The Court: The objection is sustained.</p> <p>To which ruling counsel for defendant except, and a bill of exceptions is sealed to the defendant. [3]</p> <p>Mr. Banks: We would like the court to state the reasons for overruling the offer.</p> <p>The Court: The offer is overruled for the reasons stated in sustaining the objection to the first proposition of proof of the defendant.</p> <p>Mr. Keener: The defendant proposes to prove by the witness on the stand and others, as follows:</p> <p>1. That owing to said coal having been exhausted the defendant availed himself of the clause of forfeiture in said agreement and made default in payment and gave notice to the said plaintiffs that he abandoned and surrendered said lease and elected to. take advantage of said forfeiture.</p> <p>2, That at the time of said forfeiture the said defendant surrendered the buildings on said premises to said plaintiffs, as provided for by the terms of said agreement.</p> <p>3. That the defendant has fully performed all the covenants and conditions relating to the forfeiture of said agreement on the part of said defendant.</p> <p>Mr. Taylor : Objected to as incompetent and irrelevant. The lessee under the contract in suit could not take advantage of the forfeiture clause, it being alone for the benefit of the lessors.</p> <p>The Court: The objection is sustained.</p> <p>To which ruling counsel for defendant excepts, and a bill of exceptions is sealed to the defendant. [4]</p> <p>The court charged in part as follows:</p> <p>[By an article of agreement bearing date of November 7, 1890, the plaintiffs in this case conveyed to the defendant the coal underlying a certain tract of land situated in Harrison township, Allegheny county, in the following terms, substantially: “The said parties of the first part for and in consideration of the covenants and agreements hereinafter mentioned, have granted, conveyed, demised, leased and let, and by these presents do grant, convey, demise, lease and let for the period of twenty-one years from the date hereof, to the said party of the second part, his heirs, executors, administrators and assigns, the exclusive right and privilege of developing and mining all the coal in and underlying that certain tract of land, situated,” etc.</p> <p>In our view this clause discloses a manifest intention to sell, and to buy, the coal. A contract which is in its terms a demise of all the coal underlying a tract of land, with the unqualified right to remove the same, is a sale of the coal in place.] [5]</p> <p>[This being a sale of coal in place, as we have stated, there is nothing that we can find in this contract that relieved the defendant from the obligation to pay the minimum royalty whether the coal is mined or not. Nothing is stated about the exhaustion of the coal or the expensiveness of mining in the contract. It was the agreement that $400 minimum was to be paid annually during the life of the contract; and to this amount the plaintiffs are entitled from November 7, 1901, to November 7, 1902, which is admittedly unpaid.] [6]</p> <p>[In our view of this contract the clauses relating to forfeiture must be construed as for the benefit of the lessors. They are here, however, resisting the forfeiture. They alone, in our judgment, can enforce it.] [7]</p> <p>[In this view of the case it becomes our duty to direct a verdict for the plaintiff for the amount of royalty claimed, $400, with interest from the time it was due, November 7, 1902, amounting in all to $530.</p> <p>For this amount you will find a verdict for the plaintiffs.] [8]</p> <p>Verdict and judgment for plaintiffs for $530. Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (6-8) above instructions, quoting them.</p>

<p>Appeal, No. 13, April T., 1909, by defendant, from judgment of Q. S. Lawrence Co., Dec. T., 1907, No. 18, on verdict of guilty in case of Commonwealth v. Frank Medióte.</p> <p>Indictment for perjury. Before Porter, P. J.</p> <p>The court charged in part as follows:</p> <p>[In the first place, gentlemen of the jury, you are to say whether or not the matters to which this defendant testified were true at the time he testified. Did he testify to that which was true, or did he testify to that which was false? If you find he testified to that which was false then you are to determine whether or not he did it willfully and corruptly. If you find he did it willfully and corruptly then it is your duty to convict him. If you find he did not, then you should acquit him.] [1]</p> <p>[You will remember the testimony in that case as to the congregating of some persons at the house of one Mike Bruno, and as to what took place there. The testimony of the witnesses for the commonwealth as to what took place there and thé testimony read' to you from the notes of testimony taken at the trial of the case of the Commonwealth v. Sergi. You have also the testimony of the witnesses as to what occurred from the time they left the Bruno house until they arrived at the corner of John Vacca’s store. You will remember the testimony of the witnesses for the commonwealth stated in your hearing and also the testimony as read to you from the record in the case of the Commonwealth against Sergi, as sworn to by this defendant.] [2]</p> <p>[In this case as in all criminal cases the burden of proof is upon the commonwealth to satisfy the jury beyond a reasonable doubt óf the guilt of the accused, before the jury is justified in returning a verdict of guilty. But when we say a reasonable doubt we do not mean such a doubt as you would search for, or hunt after in the evidence, but one that fairly presents itself to you in the consideration of the testimony— one that causes you to halt in arriving at a conclusion. In other words, gentlemen, a reasonable doubt is a conscientious difficulty in finding that the defendant is guilty of the offense charged in the indictment. When the defendant comes into court the law presumes that he is innocent, and until this presumption of innocence shall have been removed by the testimony adduced on the part of the commonwealth, the jury cannot but regard him as innocent. But when the commonwealth shall have produced evidence that satisfies the jury beyond a reasonable doubt of his guilt, then it is the duty of the jury to convict, and until the jury is so satisfied beyond a reasonable doubt, the jury should not convict.] [3]</p> <p>Defendant’s points are as follows:</p> <p>6. The commonwealth having called Rosario Sergi as a witness in its behalf, who testified that he was stabbed under the arm by Tony Conti at the corner of John Yacca’s store, the commonwealth is bound by that testimony and could not legally contradict the same, and the defendant could not be guilty of any testimony he gave in the trial of the case of the Commonwealth v. Rosario Sergi so far as the stabbing of Sergi by Conti at the same place is concerned. Answer: Under the facts in this case we do not find as requested in this point and it is therefore refused. [4]</p> <p>8. If the jury believe that the night of June 8, 1907, was an exceedingly dark night, there being no street lights, lights from houses in the vicinity, moonlight or starlight so far as the evidence discloses, and there being a large .number at Mike Bruno’s where the trouble is alleged to have occurred, and the greater part of which crowd left the said house and went to the corner of John Vacca’s store, and if on account of the darkness, size of the crowd and the fact that there is no testimony on the part of the commonwealth as to who and what number were at the house and on the road and their inattention to these matters the witnesses for the commonwealth do not positively know whether Frank Medióte was there or not, or if the jury have any reasonable doubt on this subject they should find the defendant not guilty. Answer: An affirmance of this point would require the court to pass upon certain matters of testimony in this case and declare as facts certain things related in this point which are wholly within the province of the jury. The court will refrain from stating what the facts are in the case and leave that wholly to the jury, and we therefore do not affirm this point. [5]</p> <p>Verdict of guilty, upon which the court sentenced the prisoner to pay a fine of $10.00 and undergo an imprisonment in the penitentiary for five years and six months.</p> <p>Errors assigned were (5) above instructions; (6) the sentence of the court, and (7) in refusing motion for new trial nunc pro tunc.</p>

<p>Trespass — Posted land — Private ways — Ways of necessity — Act of April 14, 1905, P. L. 169.</p> <p>1. The Act of April 14, 1905, P. L. 169, entitled, “An act making it unlawful to trespass upon land posted as private property, and providing the penalty therefor,” does not apply to a case where the owner of land builds tenement houses thereon in rows, and leases them to tenants, and where the only access to the houses for the tenants and those who have relations .with them is by customary or private ways on the land leading to public highways. A tradesman who uses such customary or private ways in order to deliver goods at the house of one of the tenants who has ordered the goods is not liable to the penalty imposed by the act for trespass upon posted land.</p> <p>2. When a conveyance contains no express grant of a right of way appurtenant to lands and no words are used from which such grant arises by implication, such right of way may, however, arise from the circumstances of the grant itself. The most marked right of way arising in this manner is the way of necessity. Where land is sold or leased and is so situated that access to it from the highway cannot be had except by passing over other land of the grantor or lessor, the grantee or lessee becomes entitled to a right to pass over the land of his grantor or lessor for the purpose of reaching the highway and returning to his own land.</p> <p>3. A right of way appurtenant to a house includes not only the right of the lessee to the use of it, but also the right to its use by any other person who with the permission of the tenant visits the house for any lawful purpose.</p>

<p>Criminal law — Good reputation — Reasonable doubt.</p> <p>In charging the jury in a criminal case as to the defendant’s previous good character, it is reversible error for the court to .instruct the jury as follows: “What its weight shall be, what effect it shall have, is wholly for you. As I have tried to suggest to you just now there are cases in which the proof of good character would be sufficient, in itself; to create a reasonable doubt. Where there is positive evidence of guilt, of a character that doesn’t admit of a reasonable doubt, then, of course, proof of previous good reputation, no matter how well established, would not be sufficient to raise the doubt.”</p>

<p>Criminal law — Perjury—Evidence.</p> <p>A conviction of perjury in swearing falsely in a proceeding before a mayor, cannot be sustained where it appears that there were proceedings before the mayor against two separate parties, that the defendant testified in one of the proceedings, but that he was not examined in the other proceeding in which he was alleged to have sworn falsely in the indictment.</p>

Appeal, No. 62, Oct. T., 1908, by defendant, from judgment of C. F. No. 1, Phila. Co., June T., 1906, No. 4,917, on verdict for plaintiff in case of Aubrey H. Brown v. Henry F. Waite. Trespass to recover damages for malicious prosecution. Kinsey, J., charged in part as follows: The question comes up to you to determine what were the motives of Dr. Waite in this prosecution; that is, in this arrest and imprisonment of Brown, this plaintiff.

<p>Appeal, No. 117, Oct. T., 1908, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 21, dismissing libel in divorce in case of Emma C. S. Burns v. Edward A. Burns.</p> <p>Libel for divorce.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in reversing the master, Philippus W. Miller, Esq., and dismissing the libel.</p>

<p>Appeal, No. 37, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1904, No. 4,158, on verdict for defendant in case of Charles 0. Beaumont, trading as Joseph Oat & Sons, v. Philadelphia & Reading Railway Company.</p> <p>Trespass against a common carrier for damages caused by the breaking of a casting while being unloaded from a car. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[The defendant’s duty with respect to these belts as a common carrier had ended. After the arrival of the belts in the city and notice to the consignee of their arrival, the duty of the defendant with respect to them was only that of warehouse keepers. The defendant is responsible for the loss of the belt that was broken only if its servants, acting within the scope of their authority, were guilty of some act of negligence which resulted in the breaking of the belt.] [3]</p> <p>Plaintiff presented these points:</p> <p>1. It was the duty of the defendant to safely unload the casting from its car, and as it is undisputed that the casting was broken in unloading, the burden of proof is on the defendant to prove that it was free from negligence. Unless you find the defendant free from negligence in unloading the said casting, you will find a verdict for the plaintiff. Answer: Refused.</p> <p>2. Under all the evidence your verdict must be for the plaintiff. Answer: Refused. [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Negligence — Electric light companies — Explosion in conduit — Upheaval of street — Evidence—Presumption of negligence — Res ipsa loquitur.</p> <p>1. Whore an electric light company in the exercise of its special franchises interferes with the ordinary right of the public to the injury of a citizen in the pursuance of that right by causing a violent upheaval in the street, a duty of explanation is on the company, when the place where the accident originated is beneath the ground in the exclusive care of the defendant, not accessible to the ordinary observation of persons outside, and if the thing can be explained at all that only can be done by the company. The doctrine of res ipsa loquitur applies in such a case, and the burden is on the defendant to disprove negligence.</p> <p>2. In an action against an electric light company to recover damages for personal injuries, there is sufficient evidence of negligence of the defendant, apart from the mere happening of the accident, to submit to the jury, where the plaintiff shows that his injuries were caused by the upheaval of a portion of the street where he was walking, that this was caused by the explosion in a conduit of the defendant, that a fire had been burning in the conduit for four hours before the accident with the knowledge of the defendant’s superintendent, that defendant’s employees removed the manhole covers letting in increased currents of air into the conduit without cutting off the electric current, although a fire official requested that it should be done, and that the letting of air into the conduit and continuing the electric current under the circumstances were in the opinions of persons expert in the business improper and dangerous acts.</p>

<p>Appeal, No. 67, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1903, No. 370, refusing to take off nonsuit in 'case of Christiana M. Wahl v. Casper Vetter.</p> <p>Trespass to recover damages for injuries to a building. Before Ralston, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Contract — Sale—Sample—Affidavit of defense — Practice, C. P.</p> <p>In an action to recover for goods purchased by an agent known to be such by the defendant, an affidavit of defense is sufficient which avers that the agent was authorized to purchase goods of a certain grade only, that on being informed that a purchase had been made, defendant requested samples, that the samples were up to grade, but that one-fourth of the goods first delivered were not up to grade and were returned, and that subsequent shipments were rejected.</p>

<p>Appeal, No. 16, Oct. T., 1908, by defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 1,298, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles C. Harrison, Jr.', to the use of Charles C. Harrison, Jr., Harry W. Harrison and Stephen Fuguet, copartners, trading as Charles C. Harrison, Jr., & Company, v. George B. Atlee and Wilson Woelpper, copartners, trading as George B. Atlee & Co..</p> <p>Assumpsit on a contract.</p> <p>From the record it appeared that.plaintiff sold to defendant certain bonds as shown by the following letter:</p> <p>“Philadelphia, September 7, 1906.</p> <p>“Dear Sirs:</p> <p>“This will confirm sale to you to-day of eleven thousand ($11,000) dollars Philadelphia and West Chester Traction Co. General Mortgage 4% Bonds, interest January and July, due 1954, at 93 and interest. It is understood that we will carry the above bonds for you charging interest at the rate of 6%. “Will you please also confirm this transaction, and oblige “Very truly yours,</p> <p>“[Signed] Chas. C. Harrison, Jr.,</p> <p>“ Per Stephen Fuguet.</p> <p>“Messrs. Geo. B. Atlee & Co.,</p> <p>“ 119 South Fourth St.,</p> <p>“Philadelphia.”</p> <p>Subsequently the plaintiff repurchased some of the bonds. On November 8, 1907, plaintiffs tendered the balance of the bonds to the defendants, but the latter refused to take them up. On November 14, 1907, the defendants were notified that the bonds were to be sold on November 20, 1907, and on that date they were sold for eighty-five per cent of their face value. Suit was then brought against the defendants to recover the difference between the contract price and the price realized at the sale.</p> <p>Defendants’ affidavit set up payment of all interest due up to date of sale.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 47, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 777, on verdict for plaintiff in an interpleader in case of Elmer E. Powell v. William S. Clawson. Feigned issue on a sheriff’s interpleader. At the trial the jury under binding instructions returned a verdict in favor of the plaintiff.

Appeal, No. 29, Oct. T., 1908, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T,, 1906, No. 769, on bill in equity in case of Samuel P. Smith, Administrator of Estate of Eliza Smith, deceased, v. Emma Smith. Bill in equity to enforce a trust.

<p>Appeal, No. 113, Oct. T., 1908, by Mary E. Brownlee, from decree of C. P. No. 5, Phila. Co., June Term, 1905, No. 1,443, dismissing exceptions to the report of viewers in case of Change of Grade of Thirteenth Street from Godfret Avenue to a point 230 feet north of Sixty-fifth Avenue north in the forty-second ward of the city of Philadelphia.</p> <p>Exceptions to report of viewers.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to report of viewers.</p>

<p>Appeal, No. 61, Oct. T., 1908, by-plaintiff, from judgment of C. P. Phila. Co., March T., 1905, No. 126, on verdict for defendant in case of National Bank of Phcenixville v. C. F. Bonsor & Company, Incorporated.</p> <p>Assumpsit upon a check. Before Carr, J.</p> <p>At the trial when Charles F. Bonsor was on the stand the following offer was made:</p> <p>Mr. Porter: I offer to prove by this witness that this check was drawn to the order of the Schuylkill Valley Match Company; that it was afterwards stopped payment because the Schuylkill Valley Match Company were not entitled to the money and Bonsor & Company did not owe them the money; to develop by this witness the contract between Bonsor & Company and the Schuylkill Valley Match Company and show in detail the financial relations which required the stopping of the check and all the general merits of the case.</p> <p>Mr. Thompson: I object to that unless it is preceded by proof that the National Bank of Phoenixville was not a holder for value and that the National Bank of Phoenixville had notice of the equities between the parties'before it became holder for value.</p> <p>Objection overruled.</p> <p>Exception noted for the plaintiff by direction of the court. [1]</p> <p>Objections to similar offers were overruled. [2, 3]</p> <p>Defendant presented this point:</p> <p>That the court should direct a verdict for the plaintiff under all the evidence for the amount of the check; with interest from the date of the notice of nonpayment, December 20, 1904. Answer: Refused. [4]</p> <p>The court charged as follows:</p> <p>[In this case there is only one question of fact for you to decide, and that is whether or not the matches that were delivered after the spring of 1904 were up to quality. Upon that point there can be no doubt, because you have the testimony of Mr. Bonsor on his oath as to that, and the samples are before you, and the testimony of Hutchinson, as well as the testimony of Wheaton, and they say that it was admitted by the Schuylkill Valley Match Company that their goods were not up to the standard. Therefore, there can be no doubt in this case as to the proof of the fact.</p> <p>The law is, if you believe that, then it is a proper defense in this case, and your verdict should be for the defendant.] [5]</p> <p>[The Schuylkill Valley Match Company, being a depositor in the plaintiff bank, and the check in suit having been deposited in due course, the presumption of law is that the check was taken for collection, in the absence of a special agreement. There is no proof of any special agreement on the subject, and if you believe there was the failure to deliver up to the standard which they contracted to deliver, that is a good defense in this case.] [6]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-6) above instructions, quoting them.</p>

<p>Appeal, No. 91, Oct. T., 1908, by defendants, from judgment of C. P. No. 2, Phila. Co., March T., 1904, No. 4,303, on verdict for plaintiffs in case of Allen E. J. Luckhurst and Ada M. Luckhurst, his wife, v. Gimbel Brothers.</p> <p>Trespass to recover damages for personal injuries. Before WlLTBANK, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Allen E. J. Luckhurst for $600 and Ada M. Luckhurst for $800.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 101, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 1,043, on verdict for plaintiff in case of City of Philadelphia to use of Charles J. Thompson v. Tradesmen’s Trust Company.</p> <p>Assumpsit on a contractor’s bonds.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were (1, 2) rulings on evidence referred to in the opinion of the Superior Court, quoting the bill of exceptions and various exceptions.</p> <p>Verdict and judgment for plaintiff for $264.54. Defendant appealed.</p>

<p>Constitutional law — Public officers — Special district attorney — Act of May 2, 1905, P. L. 351.</p> <p>1. The Act of May 2, 1905, P. L. 351, authorizing the attorney general to appoint a special district attorney under certain circumstances is not unconstitutional as depriving the district attorney, an elective constitutional officer, of his power. While the legislature may not abolish the office of district attorney, it may regulate the method of its administration.</p> <p>Election law — Neglect to deliver returns to prothonotary — Indictment— Surplusage — Acts of July 2, 1839, P. L. 519, January 30, 1874, P. L. 31, and June 10, 1893, P. L. 419 — Criminal law — Binding instructions.</p> <p>2. Where an election officer is charged with willful fraud in not delivering election returns to the prothonotary, and the jury finds him guilty of neglect of duty in not delivering the said returns, the words “willful fraud,” which are appropriate to an indictment under the Act of July 2, 1839, P. L. 519, may be stricken out as surplusage, and the indictment will then stand good under the Act of January 30, 1874, P. L. 31.</p> <p>3. All unnecessary words in an indictment may be rejected as surplusage if the indictment will be good after they are stricken out.</p> <p>4. On the trial of an indictment against an election officer for neglect to deliver election returns to the prothonotary, it is reversible error for the court to give binding instructions to the jury to convict the prisoner.</p> <p>5. In such a case the court may instruct the jury that the evidence is not sufficient to warrant a conviction and may set aside a verdict found in opposition to such instruction, but cannot direct a verdict of guilty, because the defendant cannot be found guilty but on the judgment of his peers. The question of guilt often involves an intermingling of law and fact, and the whole case is given to the jury. The trial of such a case is by a jury of the country, not by the court. The burden of proof does not shift in a criminal case; the jury must be satisfied beyond reasonable doubt of the guilt of the accused before a conviction can be lawfully had, and it makes no difference how convincing to the court the evidence of witnesses may be the credibility of the evidence is for the jury.</p>

<p>Road law — Vacation of street — Statute of limitations — Estoppel.</p> <p>Where the court of common pleas has entered an order quashing a petition for the appointment of viewers to assess damages for the vacation of a street, and such order is not appealed from, property owners, not petitioners, represented by counsel in the proceedings, cannot after the expiration of thirteen years from the date of the order petition the court for the appointment of viewers, because the Supreme Court in another proceeding between different parties had declared the law in an exactly contrary sense to that upon which the order dismissing the original petition was based. In such a case no estoppel arises against the city because the order dismissing the original petition was made on the city’s motion, it not appearing from the record what part the petitioners took in the original proceeding.</p>

<p>Appeal, No. 17, March T., 1909, by defendant, from judgment of Q. S. Luzerne Co., Jan. T., 1907, No. 58, on verdict of guilty in case of Commonwealth v. John Scott.</p> <p>Indictment for failure to deliver election returns to the prothonotary. Before Staples, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were as follows:</p> <p>1. The court erred in refusing to quash the indictment'.</p> <p>2. The court erred in charging the jury as follows: “We say to you that under all the testimony in this case it is the opinion of the court that this defendant did not exercise such care and caution as he ought to have done in the premises, and that he, therefore, is guilty of neglect of duty. The question, however, we leave to you, but see no reason why you should not, under all the facts and beyond a reasonable doubt, find the same as the court.” [3]</p> <p>3. The court erred in charging the jury as follows; “We say further to you, gentlemen óf the jury, that even if you should find the defendant not guilty of the direct charge which is made in the fifteenth count of the indictment, under the law a return judge, or a judge of election who neglects any duty. required by the act of assembly may be convicted, under this count, of neglect of duty, and the neglect of duty in this case would be the not delivering the triplicate return to the prothonotary as required by law.”</p> <p>5. The court erred in refusing to admit in evidence a copy of the election law sent by the county commissioners to the election board, of which the defendant was a judge, and in which law it was stated that the returns should be made to the prothonotary’s office.</p> <p>6. The court erred in failing to instruct the jury that the defendant could not be convicted of neglect in duty in failing to make his return to the prothonotary unless he failed to make said return to the prothonotary without any legal or reasonable cause.</p> <p>7. The court erred in imposing a penalty other than the maximum fixed by the penal section of the act of 1874.</p>

<p>Appeal, No. 19, March T., 1909, by defendant, from judgment of Q. S. Luzerne Co., Jan. T., 1907, No. 91, on verdict of guilty in case of Commonwealth v. William Kloss.</p> <p>Indictment for not delivering election returns to prothonotary. Before Staples, P. J.</p> <p>Verdict of guilty upon which the defendant was sentenced to pay a fine of $200.</p> <p>Errors assigned were in the following form:</p> <p>1. The court erred in refusing to quash the indictment.</p> <p>2. The court erred in charging the jury as follows: “He testified that he delivered it to a man who said he was a clerk in the prothonotary’s office. Now we instruct you, gentlemen of the jury, that, that did not meet the requirements of the law. The law required that he should deliver that triplicate return to the prothonotary and when he delivered it to a man who simply stated he was a clerk, or clerk of the prothonotary, that did not meet the requirements of the law and you can find nothing else. With regard to that question there is no alternative, because it is the man’s own story. The law requires that he should deliver it to the prothonotary and this man was not even a deputy prothonotary, and it does not matter whether it was the prothonotary’s office, because the act of 1839 provides for delivering to the prothonotary’s office and the legislature changed that and made it the prothonotary.”</p> <p>3. The court erred in charging the jury as follows: “The delivery to the clerk was not sufficient and we say to you, gentlemen of the jury, that under that statement of fact you ought to find that this defendant was guilty of neglect of duty, if you do not find that he was guilty of willful fraud, neglect of duty in not delivering the triplicate return to the prothonotary.”</p> <p>4. The court erred in charging the jury as follows: “If you should find him guilty of all the counts, and not guilty of neglect of duty, — but the court does not see how it is possible for you to do that, — you are to dispose of the costs.”</p> <p>5. The court erred in submitting a form of verdict to the jury which contained the following words: “As to the thirteenth count of the indictment we find the defendant guilty.” [1]</p> <p>6. The court erred in refusing to withdraw a juror after improper remarks had been made to the jury by the special district attorney in his closing argument.</p>

<p>Appeal, No. 75, Oct. T., 1908, by defendant, from judgment of C. P. Franklin Co., Dec. T., 1907, No. 136, on verdict for plaintiff in case of The Burgess and Town Council of Chambersburg Borough v. Chambersburg Gas Company.</p> <p>Assumpsit to recover charges for openings made in streets. Before Gillan, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial when John F. Etchberger was on the stand, the following offer was made:</p> <p>We propose to prove by this witness and by the ordinance book of the borough of Chambersburg that there are certain ordinances of this borough which impose upon every telegraph and telephone company within the borough limits, and upon every electric railway company, or other railroad company, a license fee or tax of so much annually for each pole within the borough, and for each mile of wire, and this to be followed by evidence to show that within the borough of Chambersburg there have been and now are erected considerably over 1,000 poles, the exact number not being known to counsel for defendant, and a great many miles of wire. This offer being made for the purpose of showing what would be the reasonable cost of inspection, if any were needed, for inspecting the trenches and openings made by the defendant company.</p> <p>Mr. Hoerner: The offer is objected to because there is no ground of comparison between the offer to prove and the acts regulated by the ordinance upon which this suit is brought; that this lack of ground of comparison exists not only as between concrete objects of poles on the one hand, and excavations in the streets on the other, but more particularly does the lack of comparison exist in the acts of assembly and ordinances of the borough which control the license fee in the matter of poles and wires, as against those acts of assembly and ordinances of the borough which control the lawfulness of license fees in the excavations of the street, and is irrelevant and immaterial.</p> <p>The Court: To admit the evidence would lead us to consider a collateral matter, and we cannot go into it; it is for that reason and for the reason that the evidence is wholly irrelevant and immaterial, that the objection is sustained, the evidence rejected and bill sealed for the defendant. [4]</p> <p>Mr. Bowers: Defendant now offers to prove by this witness and others the number of public service corporations to which the ordinance of June 24,1905, applies, together with the public utilities used by the corporations and other persons, who come under the provisions of that ordinance, simply for the purpose of showing the gross income which would be derived by the borough from and by means of the enforcement of the provisions of that ordinance. This, for the purpose of showing that this income would not only very grossly exceed in cost the number of the supervisions contemplated by the law, but would pay the salaries of the whole police force of the borough and leave money besides. This for the purpose of showing that the provisions of that ordinance are unreasonable; and that it is not a police regulation, but a revenue measure.</p> <p>Mr. Hoerner: The offer is objected to. First, in so far as it purports to prove the persons and natures of the corporations subject to the provisions of this ordinance, because the ordinance itself specifies what persons shall be subject to it. Second, that the offer, as to its remainder, is wholly irrelevant and immaterial.</p> <p>The Court: The objection is sustained, the evidence rejected and bill sealed for the defendant. [5]</p> <p>Verdict and judgment for plaintiff for $479.70. Defendant appealed.</p> <p>Errors assigned amongst others were (2) in refusing judgment non obstante veredicto and entering judgment on the verdict; (4, 5) rulings on evidence, quoting the bill of exceptions, and (3) in not submitting to the jury the question whether the ordinance was reasonable or not.</p>

<p>Appeal, No. 243, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 2,829, on verdict for plaintiff in case of Morris Williams v. Theodore Cuyler Patterson.</p> <p>Assumpsit for boarding a horse. Before Carr, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[If you believe that Williams received the mare, intending to charge board and not knowing that Patterson believed it to be dead, and if you believe he sent the bills on July 1 and that Patterson had received them, of course, that would be a fact from which you could infer an implied contract that Patterson knew that the mare was alive and that he was responsible for its keep.] [3]</p> <p>[There are certain transactions in the law in which the implication can be made from that action that the addressee received the letter. If you believe he did not receive the letters, or bills, then you should find for him and not for the plaintiff.] [4]</p> <p>Verdict and judgment for plaintiff for $353. Defendant appealed.</p> <p>Errors assigned were (3, 4) above instructions, quoting them, and (5) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 171, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 4,399, on verdict for plaintiff in case of George W. Melville and John H. MacAlpine, trading as Melville & MacAlpine, v. City of Philadelphia.</p> <p>Assumpsit on a written contract. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $1,112.87, on which judgment was entered for $681 all above that amount having been remitted. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 135, Oct. T., 1908, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 4,202, discharging rule for opening judgment in case of Fidelity Trust Company v. Henry S. Lee. Rule to open judgment in ejectment entered on lease. The opinion of the Superior Court states the facts. Error assigned was order discharging rule to open judgment.

<p>Appeal, No. 144, Oct. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 823, on verdict for plaintiff in case of Lewis A. Haspel v. Bridget McLaughlin-Lyons.</p> <p>Sci. fa. sur mortgage. Before Ralston, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,343.47. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plain; tiff.</p>

Appeal, No. 57, Oct. T., 1908, by Annie C. Gamer, from order of Q. S. Huntingdon Co., Feb. T., 1907, No. 5, overruling exceptions to report of viewers in the matter of petition for private road for A. Campbell Stewart. Petition for appointment of viewers to lay out a private road. The facts appear by the opinion of the Superior Court. Error assigned was order dismissing petition for appointment of viewers.

<p>Appeal, No. 131, Oct. T., 1908, by-defendant, from order of C. P. No. 5, Phila. Co., March T., 1908, No. 783, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Photogravure and Color Company v. Philip Goodman, trading as Goodman’s Sons & Company.</p> <p>Assumpsit for work done.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The averments of the affidavit are set forth in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 120, Oct. T., 1908, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1907, No. 41, on verdict for plaintiff in case of George E. Mundorf et al. v. Anna Wier et al., executors of Charles Wier, deceased.</p> <p>Assumpsit on a promissory note. Before A. 0. Smith, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in directing a verdict in favor of the plaintiff for $332.62. Defendant appealed. .</p>

<p>Corporations- — Foreign, corporations — Registration and appointment of agent — Contract—Subscription contract.</p> <p>1. Where a number of persons enter into a contract in writing with r, foreign corporation, not registered in Pennsylvania, by which they agree to organize a Pennsylvania corporation, to subscribe to the stock thereof, and to pay out of the money thus subscribed for a plant to be erected by the foreign corporation for the new company, and in pursuance of this agreement the Pennsylvania company is organized, a large portion of the subscriptions are paid, the plant is erected and the foreign corporation paid in full, certain subscribers who had not paid, cannot in an action against them by the Pennsylvania company set up that the whole of the contract is invalid because it was made with a foreign corporation which was not registered at the time in Pennsylvania.</p> <p>2. A subscription to a joint-stock company is not only an undertaking to the company, but with all other subscribers. Such contracts are trilateral, and even if fraudulent as between two of the parties, they are to be enforced for the benefit of the third.</p>

<p>Contract — Agreement with one person to pay money to another — Declarrations against interest.</p> <p>1. If one pay money to another for the use of a third person, or having money belonging to another, agree with the other to pay it, to a third, action lies by the person beneficially interested. But where the contract is for the benefit of the contracting party, and the third person is a stranger to the contract and consideration, the action must be by the promisee.</p> <p>2. One brother conveyed to another a farm for the consideration of $1.00 named in the deed. The farm was in fact worth $3,000. At the time of the acknowledgment before a justice of the peace, the grantee said, “That other paper we will make, too, before long.” Subsequently the grantee stated to four different persons on as many different occasions that he had agreed with his brother when he received the farm to pay to another brother and sister $1,000 each. Held, (1) that the brother and sister could maintain a suit against the grantee’s administrator for the money which the grantee had promised his brother to pay them; (2) that the declarations of the grantee were admissible to establish the grantee’s obligation to pay the money; and (3) that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 000, Oct. T., 1908, by defendant, from judgment of C. P. Lebanon Co., June T., 1905, on verdict for plaintiff in case of Luzetta Miller v. Morris Hoffa, Administrator of the Estate of William Hoffa, deceased.</p>

<p>Appeal, No. 39, Oct. T., 1908, by-Mary E. Clark, from judgment of C. P. McKean Co., Oct. T., 1900, No. 359, on verdict for plaintiff in case of W. W. Bell v. Mary E. Clark.</p> <p>Assumpsit on a promissory note. Before Bouton, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented the following point:</p> <p>1. That it appearing that the payment made was not applied, either by the debtor or creditor, the law makes application thei’eof in the manner most favorable to the debtor, that is to say, in relief of the source from which the payment fund arose. Answer: This, gentlemen, is good law in a case to which it applies, but as we view the law, it has no application to this case. No payment in this case was made by the debtor, Junius R. Clark,- — the debtor in the judgment, — the payment made in this case was made by Mr. Richmond as attorney for Ellen C. Hanna and Mary E. Clark for the purpose of getting control of this judgment and having the judgment assigned to him as such attorney, hence the rule of application has no place in this case. At the time Junius R. Clark made no application of the money, — the bank simply applied to the collateral security held by them. Mary E. Clark made no application and had no right to make application to these various notes, for the very reason that her stipulation was that the notes and other securities for which the collateral judgment was given, should be held and retained by the bank unaffected by the assignment, and that assignment was delivered to her upon the payment of this $6,750, hence this point is refused. [1]</p> <p>2. If the jury believe from the evidence that the agreement between the bank and Richmond was intended to be a full settlement between the bank and Mary E. Clark, then the verdict should be for the defendant. Answer: This point is refused. We say to you that under the evidence there was no settlement of this note in full or any other note in full held by the bank on which J. R. Clark was maker or indorser, as we view the law,— hence this point is refused.</p> <p>3. That the judgment note of Junius R. Clark having been given as collateral security for the note in suit among other notes, and the bank having entered judgment upon it and made assignment thereof, if the jury believe that the credit entered upon the judgment was an application of the amount paid, then the application thus made was pro rata upon the debts secured and the verdict should be only for the balance, if any, without interest thereon. Answer: This point is refused. The bank, being the holder of all these notes, being the owner of the judgment given as collateral security, had the right to assign this judgment for the consideration of $6,750, which they did assign, — had the right to make the stipulation which they did make that the notes for which the judgment was given as collateral should be retained unaffected by the assignment, and had’the right to pursue any note they held until they received the full amount of the indebtedness of J. R. Clark to them. This $6,750, of course, must apply upon this collateral and was so applied upon the collateral, but it in nowise affects the right of the bank under this stipulation in the case to pursue, as we have already said, any note which they held for which the judgment was given as collateral, and could pursue them to the extent of recovering their face amount up to the time when the total amount recovered, together with the sum of $6,750 — including the $6,750 — was in full of J. R. Clark’s debt.</p> <p>If they collected more by virtue of the judgment than was actually due them, such collection would inure to the benefit of the holder of the collateral, until the holder of the collateral had been reimbursed for the amount due him. When they had fully collected all that was due them, then they could, of course, collect no more, and the holder of the collateral, if it was Mr. Richmond or anyone else, could compel the bank by a proceeding in equity,- to transfer to them all of those other notes so that they might be able to pursue and recover what was due on them. In the absence of any stipulation, an assignment of the collateral would carry with it an assignment of the original evidences of indebtedness, but this stipulation, you will readily see, prevents those notes from passing to the holder of the collateral; the bank holds the notes first, to reimburse itself for all that is due it, — -afterwards holds them merely in trust for the holder of the collateral: the holder of the collateral held the judgment of $10,000 first, to reimburse him to the extent of his interest and after that, in trust for the bank. When J. R. Clark, or anyone for him, has paid the full amount of his indebtedness to the bank or to the holder of the collateral, then nothing further could be recovered from him. Any equities between Mary E. Clark and J. R. Clark cannot be worked out in this case, but would be worked out in a separate and distinct suit. [3]</p> <p>Plaintiff presented this point:</p> <p>1. The court is respectfully asked to charge the jury that under all the evidence in this case its verdict must be for the plaintiff for the face of the note in suit, with interest from April 7, 1897.</p> <p>We affirm this point; we say to you under the evidence in this case, the evidence on the part of the plaintiff being purely documentary, their case depends in no particular upon parol proof, and the defense having failed to make a defense to this action, this point is affirmed and the verdict will be for the plaintiff for the amount of this note, with interest from the time it was due to this date.</p> <p>Now, gentlemen, as we have already said to you, at the time this assignment was made, under the evidence offered by the plaintiff, there was due to the bank $10,613.98. Under the evidence since that time, there has been paid some small amounts, $84.58, to the bank, perhaps some other small items, but in any event it leaves the amount due to the bank considerably more than the amount of this note and interest, so that your verdict will be for the plaintiff, for the amount of this note and interest to this date. [4]</p> <p>Verdict and judgment for plaintiff for $568.75. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Contract- — -Alteration of written contract — Contract of sale — General and specific contract.</p> <p>1. Where a written contract for the purchase of typewriters is altered after the purchaser has signed it, by the insertion of serial numbers of the typewriters and by the addition of a schedule materially varying the terms of payment, the seller cannot enforce the agreement.</p> <p>2. In such a case the insertion of the serial numbers in the contract, without the knowledge or consent of the purchaser, changes it from a general to a specific contract, and the change is very material because it gives the seller the right to sue for and recover the contract price for the typewriters if the purchaser refuses to take them, but without such insertion the recovery is limited to the difference between the price agreed upon and the market value on the day fixed for delivery.</p> <p>Evidence — Assignments of error — Appeals—Harmless error.</p> <p>3. Where the trial judge gives binding instructions in favor of the defendant because of material alterations made by the plaintiff in the contract in suit after the defendant had signed it, errors in ruling on what was or was not proper cross-examination, are harmless.</p>

<p>Appeal, No. 163, Oct. T., 1907, by Mary Hafer, executrix of Charles Hafer, deceased, from order of C. P. No. 3, Phila. Co., Dec. T., 1906, No. 2,054, making absolute rule for judgment for want of a sufficient affidavit of defense in case of city of Philadelphia to use of Barber Asphalt Paving Company v: Charles Hafer.</p> <p>Scire facias sur municipal claim for paving. Before Ferguson, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Insurance — Fire insurance — Proofs of loss — Total loss — Change of possession — Occupancy.</p> <p>1. Formal proofs of loss are not necessary in the case of á total loss of a building insured where the insurance company has been promptly notified of the loss and has inspected the premises.</p> <p>2. Where a policy of fire insurance provides that the policy shall be void if any change takes place in interest, title or possession, except change of occupants without increase of hazard, a leasing of the insured premises by the legal owner, with the consent of the insured, the equitable owner, and placing the lessee in actual possession of the premises, without any increase of hazard, does not avoid the policy. In such a case the word “possession” means legal possession or possessory right.</p> <p>3. Where the terms of the policy of insurance are susceptible without violence, of two interpretations, that construction which is most favorable to the insured, in order to indemnify him against loss sustained, should be adopted.</p> <p>Appeals — Exceptions—Refusal of judgment non obstante veredicto— Practice, C. P.</p> <p>4. Parties asking for a judgment non obstante veredicto and failing to secure it, must ask for and obtain an exception. The court is not required to grant an exception and place it in the record, unless it is asked for by the losing party. If such an exception has not been obtained, an appeal from the order may be quashed.</p>

<p>Appeal, No. 108, Oct. T., 1908, by defendants, from decree of C. P. No. 5, Phila. Co., March T., 1908, No. 4,878, on bill in equity in case of Frank M. Zeller and the Arcadia & Clifton Heights Railroad Co. v. H. A. Farrand et al. and the Philadelphia Terminal Transfer Railroad Company.</p> <p>Bill in equity for an injunction. Before Ralston, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Judgment — Opening judgment — Forgery—Evidence—Question for jury.</p> <p>1. A proceeding to open a judgment is an appeal to the equity powers of the court; the judge who exercises the function of a chancellor is vested with the discretion to pass upon the weight of evidence and the credibility of witnesses, and to. dispose of the question presented upon equitable principles. The action of the court below will be reversed only in cases where the abuse of judicial discretion is apparent. Where the allegation of forgery is involved, these principles apply with the same force and effect as in other cases.</p> <p>2. Where the transaction is contrary to good faith, and the fraud affects individual interests only, ratification is allowed, but where the fraud is of such a character as to involve a crime, the adjustment of which is forbidden by public policy, the ratification of the act from which it springs is not permitted. Forgery does not admit of ratification.</p>

<p>Negligence — Brass band — Fright of horse — Animals.</p> <p>In an action against the leader of a band to recover for loss of a horse, where the evidence shows that the defendant's band took a stand at the intersection of two streets, gathering a crowd around it, and leaving only a narrow passageway open, and that plaintiff’s horse took fright at the sound of the drums and brasses, and as a result sustained injuries in consequence of which he had to be killed, the question whether the use of a street by the band was an ordinary one or an extraordinary one, and whether the playing of the band was the proximate cause of the accident is for the jury.</p>

<p>Deeds — Description—Svbject-matter—Evidence—Parol evidence.</p> <p>1. Where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed, but this rule has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance.</p> <p>2. Where a contract for the sale of timber calls for two tracts, one larger than the other, and one of the parties claims that the two tracts were both embraced in the larger tract, but evidence in support of this contention is in conflict, not only with the contract of sale, but with all the essential facts in regard to the location and character of the smaller tract, it is error for the court to permit the jury to find that both tracts called for in the deed were embraced in the boundaries of the larger tract.</p> <p>Bailment — Commodatum—Loan for use without pay — Degree of care— Negligence.</p> <p>3. A bailee is not an insurer, and in the absence of a special agreement he is not responsible for losses resulting from damages necessarily incident to the use of the bailed property, nor from inevitable accident or irresistible force. If the property is destroyed by fire it must be affirmatively shown that the fire was the result of some fault or neglect of the bailee to hold the latter for the loss.</p>

<p>Appeal, No. 175, Oct. T., 1908, by plaintiff, from order of C. P. Clearfield Co., May T., 1907, No. 313, entering judgment for defendant non obstante veredicto in case of R. H. Mull v. Pennsylvania Railroad Company.</p> <p>Assumpsit for value of a shipment of coal. Before A. O. Smith, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict for plaintiff for $176.04.</p> <p>The court subsequently made an order entering judgment for defendant non obstante veredicto.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 196, Oct. T., 1908, by plaintiffs, from order of C. P. Clearfield Co., Sept. T., 1907, No. 107, refusing to take off • nonsuit in case of Edgar B. Read and Lavina Read v. S. I. Snyder and Clark Snyder.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Appeal, No. 197, Oct. T., 1908, by Enoch I. Grove, from decree of O. C. Huntingdon Co., dismissing exceptions to auditor’s supplemental report in estate of David Grove, deceased.</p> <p>Exceptions to supplemental report of Howard L. Henderson, Esq. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s supplemental report.</p>

Appeal, No. 77, April T., 1909, by defendant, from order of Q. S. Allegheny Co., June T., 1905, No. 210, making absolute rule for attachment in case of Commonwealth v. F. A. • Hanley. Rule for attachment.

<p>Appeal, No. 199, Oct. T., 1907, by defendant, from judgment of C. P. Berks Co., June T., 1906, No. 70, on verdict for plaintiff in case of Daniel E. Berg v. Martin M. Flickinger.</p> <p>Assumpsit to recover a loss resulting from a sale of stock. Before Endlich, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $318. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 226, Oct. T., 1907, by plaintiff, from judgment of C. P. Berks Co., March T., 1907, No. 34, for defendant on demurrer in case of L. Tyson Warner v. Berks County Poor Directors. Demurrer to statement of claim.

Appeal, No. 80, Oct. T., 1908, by plaintiff, from judgment of C. P. Berks Co., Sept. T., 1907, No. 57, for defendant on case stated in suit of Henry H. Fry v. Berks County. Case stated to determine liability of county to county treasurer for expenses incurred in employing counsel and printing paper-book in mandamus proceedings to compel him to pay alleged illegal warrants.

<p>Appeal, No. 83, Oct. T., 1908, by plaintiff, from order of C. P. Berks Co., Feb. T., 1908, No. 31, discharging rule for judgment for want of a sufficient affidavit of defense in case of William E. Fisher v. Reading Realty Company.</p> <p>Assumpsit on a covenant in articles for sale of real estate.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Endlich, J., filed an opinion which was in part as follows:</p> <p>By articles dated March 21, 1907, the defendant sold to plaintiff real estate therein described, the stipulated consideration being the payment of $1.00 in cash, the conveyance of a certain property as the equivalent of $2,450, and the execution of a first and second mortgage to secure the balance of the price agreed, — “ settlement to be made within 5 days from the date hereof,” — “taxes in full for the year 1906 and previous to be paid by present owners,” — and “title to be good and complete.” At the date of the agreement a house sewer was in process of construction by the city of Reading along the street upon which the land sold to plaintiff fronts. The ordinance authorizing the work and directing the assessment of the cost upon abutting properties had been passed August 7, 1905. The amount chargeable against this particular property was not ascertained or ascertainable until long after the date of the transaction, and was finally paid by plaintiff,— namely on November 9, 1907, $542.55, and on December 5, 1907, $95.21. .This suit is brought upon the articles of sale to recover these amounts, with interest, from defendant on the ground that the cost of the sewer construction along the property was a lien upon it at the time of the sale; that in covenanting to convey a “good” title defendant covenanted against all incumbrances: Doebler v. Rank, 3 Pa. Dist. Rep. 494, per McPherson, J., including this lien; and that plaintiff’s payment of it in order to clear the property entitles him to reimbursement by defendant, on the principle recognized in Funk v. Voneida, 11 S. & R. 109, and similar cases.</p> <p>The plaintiff’s contention seems to be untenable on two grounds. (1) Assuming that the city’s lien for the cost of the sewer attached to the property at the time of the sale, a fair construction of the entire agreement leads to the conclusion that the covenant for a good title' was not designed to apply to such lien. (2) At the time of the sale there was no lien in favor of the city upon the property for the cost of the sewer, to which the covenant could apply.</p> <p>Every contract must be understood with reference to its subject-matter: Blakely v. Sousa, 197 Pa. 305; and every contract whose meaning is not so positively fixed by its language taken as a whole: Dame, Seymour & Co.’s App., 62 Pa. 417, as to exclude the office of interpretation under the maxim absoluta sententia expositore non eget, is to be construed in the light of the situation of the parties and the circumstances and relations of the property in regard to which they have negotiated: Wilson v. Wernwag, 217 Pa. 82. The subject-matter of the contract involved in this case was a tract of land in a city fronting upon a street, in which, visibly to all concerned and in pursuance of an ordinance known to all concerned, a municipal improvement was going on, the cost of which would eventually have to be borne by the property, to an amount not presently ascertainable. From this incomplete improvement neither the property nor its owner, the defendant, had at the time derived any advantage; nor, at least under the then existing law, with reference to which the parties must have dealt: Snyder v. Leibengood, 4 Pa. 305; Western Nat. Bank’s App., 102 Pa. 1731; Burnett v. R. R. Co., 176 Pa. 45; Silk Mfg. Co. v. Reilly, 187 Pa. 526, was there then or could there at any time be any personal liability by reason of it upon the defendant: Theobald v. Sylvester, 27 Pa. Superior Ct. 362, the charge being against the property itself: Wolf v. Philadelphia, 105 Pa. 25; Gimber’s Est., 15 Pa. Dist. Rep. 59, the benefit to which from the improvement would accrue only upon its completion and be enjoyed by the plaintiff. When in these circumstances the parties agreed that “settlement” of the transaction contemplated by their articles should be made within five days from their date including of course the transfer of a “good and complete title” to plaintiff, it appears not only unreasonable to suppose but highly improbable that any covenant against incumbrances was understood or intended to relate to the liability of the property for the cost of the sewer in process of construction. If it was, then this transaction must be regarded as unique in that one party to it undertook to pay for something in respect to which there was no personal liability upon him and the whole benefit of which inured to the other party, and that both parties deliberately agreed upon something which both knew to be impossible. The likelihood that they did not understand the covenant against incumbrances to apply to the sewer charge is, however, converted into a legal certainty by the express provision for the payment of the taxes of 1906 and previous years. The unpaid city taxes for those years were liens upon the property quite as much as the cost of the sewer, and were liens of the same character; for charges for municipal improvements are a species of taxes: Park Ave. Sewers, 169 Pa. 433. The express provision for the discharge of the property from a specific -incumbrance belonging to the general class to which the one in question equally belongs makes it very clear that the covenant for a good title, broad enough to cover both, was not understood or intended to cover either. Otherwise the express provision would have to be regarded as meaningless surplusage, which on familiar principles of interpretation is not allowable. On the contrary, seeing that the parties did not look upon the general covenant against incumbrances as embracing municipal claims arising from the exercise of the power of taxation, the rule applies that the language of a covenant, no matter how broad or comprehensive, is to be treated as restricted to that which the parties had and as excluding that which they had not in view: Case v. Cushman, 3 W. & S. 544; Smith’s Est.; 210 Pa. 604.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 128, Oct. T., 1908, by George W. Wertz, from order of Q. S. Berks Co., Miscellaneous Docket, 1907, No. 923, dismissing petition for the incorporation of a borough in the Matter of Incorporation of the Village of Wernersville into a Borough. Petition for the incorporation of a borough. The opinion of the Superior Court states the case. Error assigned was order dismissing the petition.

<p>Appeal, No. 221, Oct. T., 1907,' by plaintiff, from judgment of C. P. Lancaster Co., June T., 1906, No. 10, reversing judgment of a justice of the peace in case of David C. Yost v. William Yost.</p> <p>Certiorari to judgment of a justice of the peace. Before Hassler, J.</p> <p>Error assigned was order reversing judgment of a justice of the peace in favor of the plaintiff in an action of trespass.</p>

<p>Appeals — Certiorari—Road law.</p> <p>Where the record of a road case brought up by certiorari from the quarter sessions, shows that the court had jurisdiction, and that the proceedings were regular on their face, and there is no allegation or proof of abuse of discretion, the order of the lower court will be affirmed. In such a case the appellate court cannot look outside the record for the facts.</p>

Appeal, No. 160, Oct. T., 1908, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 1,607, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph MacGregor Mitcheson, for himself and as attorney for Mary Frances Mitcheson (now Mary Frances Nunns), v. Philip Barth. Assumpsit for rent. The opinion of the Superior Court states the facts.

Appeal, No. 234, Oct. T., 1908, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 4,309, dismissing bill in equity in case of George E. Stokes v. The John Crompton Company. Bill in equity for an account. Error assigned was decree dismissing the bill.

Appeal, No. 122, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1905, No. 592, on verdict for plaintiff in case of J. C. Stouffer v. Charles E. Kelchner. Assumpsit for bills of exchange. Before Willson, P. J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for 1146.36. Defendant appealed. Error assigned was in giving binding instructions for plaintiff.

Appeal, No. 12, Oct. T., 1908, by defendant, from orders of C. P. Lancaster Co., Dec. T., 1905, No. 37, discharging certain rules and exceptions and sustaining an appeal from taxation of costs in case of John B. Miller, assignee for creditors of William P. Chubbs and wife, v. Joseph Jackson. Rule to show cause why writ of inquiry, etc., should not be set aside. Rule to show, cause why an appeal from the verdict of the jury of inquiry should not be allowed.

<p>Appeal, No. 46, Oct. T., 1908, by plaintiff, from judgment of C. P. Delaware Co., June T., 1905, No. 107, on verdict for defendant in case of Nether Providence School District v. Montgomery.</p> <p>Appeal from settlement of the accounts of the defendant treasurer of the school district of Nether Providence. Issue to determine liability of the defendant for certain expenditures during an epidemic of smallpox. Before Johnson, P. J.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Broker — Real estate broker — Commissions—Vendor and vendee.</p> <p>Where an owner of land agrees to pay commissions to a broker for the sale of it and the latter prepares articles of sale, inserting the name of an alleged purchaser and providing that the purchaser should have a right to decline the property within two months, and the owner signs the agreement, without the alleged purchaser having any knowledge whatever of it, the broker cannot after the death of the owner and after the expiration of the two months, recover his commissions, because the purchaser named on discovering the transaction, but without having any extension from the owmer, bought the land under a new contract from the executor.</p>

Appeal, No. 26, Oct. T., 1908, by' Frank L. Mauger, from decree of O. C. Berks Co., Oct. T., 1907, No. 37, enforcing a charge on land in estate of Philip Levengood, deceased. Petition to charge a certain fund on land and decree its payment thereout. Before Bland, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was decree in favor of the petition.

Appeal, No. 209, Oct. T., 1908, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1908, No. 11, sustaining judgment of justice of the peace in case of Commonwealth v. Perley H. Nichols. Appeal from judgment of justice of the peace.

Appeal, No. 191, Oct. T., 1908, by-defendants, from order of C. P. Delaware Co., March T., 1905, No. 25, entering judgment for plaintiff non obstante veredicto in case of The Delaware County Trust, Safe Deposit and Title Insurance Company to use of Frank G. Perrin, Assignee, v. Rudolph C. Lukens, mortgagor, and Bernard V. Black, terretenant. Scire facias sur mortgage. Before Broomall, J. The opinion of the Superior Court states the case. Verdict for plaintiff for $164.61.

Appeal, No. 192, Oct. T., 1908, by defendant, from judgment of Q. S. Chester Co., on verdict of guilty in case of Commonwealth v. Charles H. Burns. Indictment for selling liquor without a • license. Before Butler, J. The facts are stated in the opinion of the Superior Court. Error assigned was portion, of charge, quoted in the opinion of the Superior Court.

<p>Appeal, No. 210, Oct. T., 1907, by defendants, from judgment quod computet of C. P. Lehigh County, October T., 1905, No. 25, in case of Francis L. Hall v. Alvin S. Haines and J. Martin Koons, trading as the Provident Slate Company.</p> <p>Action of account render. Before Trexler, P. J., sitting .without jury.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the judgment of the court.</p>

<p>Divorce — Desertion—Evidence.</p> <p>A suit by a husband for divorce on the ground of desertion cannot prevail where the proof shows residence of the parties within the time required to give the court jurisdiction, that they then went to a foreign country, where they resided for a time, that the husband returned without his wife, but thereafter visited her several times, and finally returned without her, and there is no proof of the grounds for the final separation or any competent evidence that the wife had refused without reasonable cause to come with, or follow him to this country, or of any other fact which would be valid ground for the presumption of an intention on her part to desert willfully and maliciously persisted in for two years.</p>

Appeal, No. 42, Oct. T., 1908, by Hannah Jennings Rogers, from decree of O. C. Phila. Co., July T., 1885, No. 20, ordering executrix to pay in estate of Richard Jennings, deceased. Petition for order to pay. The opinion of the Superior Court states the case. Error assigned was the order of the court.

Appeal, No. 49, Oct. T., 1908, by defendant, from order of C. P. Schuylkill Co., Sept. T.,-1907, No. 308, affirming judgment of justice of the peace in case of R. W. Wyatt v. Adam Szymanski. Certiorari to judgment of justice of the peace. The opinion of the Superior Court states the case. Error assigned was in affirming the judgment of the justice of the peace.

Appeal, No. 204, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 3,995, M. L. D., making absolute rule to strike off liens in case of City of Philadelphia v. Philadelphia & Reading Railroad Company. Rule to strike off municipal liens for water pipe assessed against defendant’s right of way. Error assigned was order making absolute rule to strike off liens.

<p>Appeal, No. 205, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 3,997, M. L. D., making absolute rule to strike off liens in case of City of Philadelphia v. Philadelphia & Reading Railroad Company.</p>

<p>Insurance — Fire insurance — Double insurance — Pro rating.</p> <p>1. Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and same interest. If there be double insurance, either simultaneously or by successive policies in which priority of insurance is not provided for, all are insurers, and liable pro rata. All the policies are considered as making but one policy, and, therefore, any one insurer who pays more than his portion, may claim a contribution from others who are liable.</p> <p>2. Where the insured has a policy covering several parcels of property, and also has specific insurance covering one of said parcels, the latter insurance must be entirely exhausted before the other policies can be called upon for contribution to the loss. Such character of policies do not pro rate in anyway with each other. This is because the two classes of policies are not on the same subject risk, and interest.</p>

<p>Attorney at law — Fees—Receivers.</p> <p>Where an attorney for some of the creditors of an insolvent corporation files exceptions to the report of auditors on the receiver’s account, and succeeds in reducing by a large amount the fees which the auditors allowed to themselves and the receiver, such attorney is not entitled to any fee out of the fund, although his efforts on behalf of his own clients have enured to the benefit of all of the other creditors.</p>

<p>Appeal, No. 174, Oct. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 610, discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia to use of Barber Asphalt Paving Company v. Holstein DeHaven.</p> <p>Assumpsit to recover a paving assessment.</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 order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Master and servant — Contract of employment — Evidence—Corporation.</p> <p>1. In an action against a corporation to recover salary as manager, where the evidence shows that the plaintiff had acted as manager of the business before it was incorporated, the written contract of employment between the prior owner of the business and the plaintiff, is not admissible, if there is nothing to show that the plaintiff worked under this contract as manager for the corporation.</p> <p>Evidence — Expert—Books-—Business profits.</p> <p>2. A court cannot properly exercise its discretion as to whether or not expert testimony should be received to show the profits and losses of a business, without the books and invoices being produced and offered in evidence.</p>

<p>Divorce — Cruel and barbarous treatment — Evidence.</p> <p>1. A wife’s refusal to have sexual intercourse with her husband is not legal cruelty and is not a ground for divorce.</p> <p>2. A husband’s suit for divorce against his wife on the ground of cruel and barbarous treatment will be dismissed, where the evidence shows that the wife was irritable, nagging, bad tempered, and lacking in affection for her husband, that she made indefinite threats, but did not carry them out, and never offered him physical violence.</p> <p>3. The acts or conduct of the wife towards her husband that will entitle the latter to a divorce on the ground of cruel and barbarous treatment must be not only such as render his condition intolerable or life burdensome, but such as amount to legal cruelty.</p>

<p>Bills of exchange — Negotiable paper — Fraud—Prima facie case — Burden of proof — Evidence—Transactions between other parties.</p> <p>1. In a suit against an acceptor of bills of exchange, where the evidence shows that the acceptor signed his name on the notes knowing that they were some sort of an obligation for payment, and there is no evidence of fraud so as to impeach the title of an innocent holder for value before maturity, the offering of the bills with indorsements makes out a prima facie case, entitling the holder to a recovery.</p> <p>2. Nothing but clear evidence of knowledge or notice, fraud or mala fides, can impeach the prima facie title of a holder of negotiable paper taken before maturity. It is of the utmost importance to the commerce of the country that it should be sternly adhered to, however hard may be its operation in particular cases.</p> <p>3. In an action upon negotiable paper where the maker alleges improper methods resorted to by the payee in securing the paper, it is proper to exclude evidence tending to show similar, but independent transactions between the payee and other parties.</p>

<p>Newspapers — Names of proprietors and editors — Act of May 2, 1907, P. L. 157.</p> <p>1. The Act of May 2, 1907, P. L. 157, is a valid exercise of the police power of the state, and is applicable to a weekly newspaper.</p> <p>2. Printing at the top of the reading matter of a newspaper the words: “Clearfield Republican, John F. Short, Editor. Clearfield Republican Publishing Company, Publishers,” is not a sufficient compliance with the act of 1907. In such a case if the company is a partnership, the names of the partners should be given, if a limited partnership, the names of the partners, officers and managers, and if a corporation, the names of the president, treasurer and secretary.</p>

<p>Appeal, No. 38, Oct. T., 1908, by L. E. Ryder, from decree of C. P. Lancaster Co., Equity Docket, No. 4, p. 183, dismissing exceptions to auditor’s report in case of Annie H. Groff v. City Saving Fund and Trust Company of Lancaster.</p> <p>Motion to quash appeal.</p>

<p>Appeal, No. 176, Oct. T., 1908, by defendant, from decree of C. P. Lancaster Co., Equity Docket, No. 4, page 367, on bill in equity in case of Maris E. Eisenberger v. William V. Eisenberger.</p> <p>Bill in equity for specific performance.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree awarding specific performance.</p>

<p>Game law — Killing deer — Justice of the peace — Information—Record— Acis of June 4, 1897, P. L. 123, and April 22, 1905, P. L. 248.</p> <p>1. A conviction before a justice of the peace of having unlawfully killed deer will not be reversed because the information did not charge that the deer was killed in Pennsylvania, where it appears that the information was headed “The Commonwealth of Penna., County of Chester, ss.,” and charged the defendant with having in his possession in the county of Chester, divers parts of a deer after the same had been unlawfully killed, and it also appears that the justice found as a fact that the deer had been unlawfully killed in the county of - Chester at a date named.</p> <p>Pleading — Autrefois acquit — Justice of the peace — Record.</p> <p>2. Where a defendant relies on a former acquittal, the plea must set out the former record and show the identity of the offense and 'persons by proper averments.</p> <p>3. A plea of former acquittal entered before a justice of the peace must fail if it is not sustained by the production of the record of the judgment of the justice who is alleged to have previously acquitted the defendant.</p>

Appeal, No. 107, Oct. T., 1908, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 5,087, entering judgment against garnishee on answers in case of Nicholas J. Schmucker and Winfield S. Keck, copartners, trading as Schmucker, Keck & Co., v. Amelia E. Lawler et al. Rule for judgment against garnishee in attachment execution on answers. The opinion of the Superior Court states the case.

Appeal, No. 217, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1908; No. 340, discharging rule for judgment for want of a sufficient affidavit of defense in case of Folsom Real Estate Company v. Joseph M. Esmark and Albert Esmark. Rule for judgment for-want of a sufficient affidavit of defense. The facts appear by the opin: of the Superior Court.

Appeal, No. 195, Oct. T., 1908, by A. B. Mettler, from decree of O. C. Northumberland Co., May T., 1906, No. 7, overruling exceptions to auditor’s report in Estate of Francis A. Kline, deceased. Exceptions to report of C. B. Witmer, Esq., auditor. The opinion of the Superior Court states the facts. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Appeal, No. 152, Oct. T., 1908, by-defendant, from judgment of C. P. Berks Co., June T., 1906, No. 63, on verdict for plaintiff in case of John A. Hartman v. Reading Wood Pulley Company.</p> <p>Trespass to recover damages for personal injuries. Before Endlich, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,500, with interest from April 19, 1907.,</p> <p>Error assigned was in refusing binding instructions for defendant, and in discharging rule for judgment in favor of defendant non obstante veredicto upon the whole record.</p>

<p>Appeal, No. 142, Oct. T., 1908, by defendant, from judgment of C. P. Berks Co., Feb. T., 1906, No. 74, on verdict for plaintiff in case of Heber Y. Yost, Trustee, v. The Anchor Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Endlich, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for 81,076.86. Defendant appealed.</p> <p>Error assigned among others was in submitting the case to the jury.</p>

<p>Constitutional law — Special legislation — Municipalities—License fees —Telegraph companies — Act of April 17, 1905, P. L. 183.</p> <p>1. The Act of April 17, 1905, P. L. 183, entitled: “An Act Providing for the determination by the Court of Common Pleas of the proper county of all disputes as to the reasonableness of the amount of license fees between municipal corporations and. telegraph and telephone, or light or power companies,” is not unconstitutional as special legislation because it does not include electric street railway companies within its provisions. Electric street railway companies are nothing but “street passenger railways,” and such companies are by the constitution itself put into a separate class.</p> <p>2. The findings of fact by the court below in a proceeding under the Act of April 17, 1905, P. L. 183, to determine the reasonableness of a license fee imposed by a borough on a telegraph company when sustained by sufficient evidence, will not be reversed by the appellate court.</p>

<p>Sales — Executed sales — Warranty—Evidence.</p> <p>1. There is no implied warranty in executed sales, except that of title, nor is there any in cases where the sale is made upon inspection of a buyer.</p> <p>•2. Although to constitute a warranty no particular form of words is required, the naked averment of a fact without more, is not a warranty. In connection with other circumstances it certainly may be taken into consideration, but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation. Should he have used expressions partly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee has gratuitously relied on it.</p> <p>3. In an action to recover the price of cows sold by the plaintiff to the defendant, it appeared that the sale was made at public auction. Immediately prior to the sale defendant examined the cows personally and by his veterinarian. The latter asked the plaintiff whether he would submit the cows to the tuberculin test, which the plaintiff refused. There was evidence that the plaintiff stated that he intended to sell the cows as being sound cows, and that he had never had any suspicion of their having tuberculosis. After the, sale the defendant had the cows examined by tuberculin test, and some of them were found to be affected with tuberculosis. At the trial the court submitted the question of warranty to the jury. Held, that a verdict and judgment in favor of plaintiff for the full amount of his claim should be sustained.</p>

Appeal, No. 129, Oct. T., 1908, by plaintiff, from order of C. P. Lehigh Co., Jan. T., 1908, No. 51, refusing to take off nonsuit in case of Charles G. Hause v. The Lehigh Valley Transit Company. Trespass to recover damages to an automobile. Before Heydt, P. J., specially presiding. In addition to the facts stated in the opinion of the Superior Court it appeared that the accident happened between three and four o'clock on August 24, 1907.

<p>Appeal, No. 130, Oct. T., 1908, by plaintiff, from order of 0. P. Lehigh Co., Jan. T., 1908, No. 52, refusing to take off nonsuit in case of J. Edward Durham v. Martin H. Strauss.</p> <p>Trespass to recover damages to an automobile. Before Trexler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Insurance — Live stock insurance — Policy—Attaching by-laws to policy— Act of May 11, 1881, P. L. 20.</p> <p>1. An application by a member of a mutual live stock insurance company for insurance of an animal, and the indorsement of the application “approved,” without anything to indicate the amount of the insurance, is not a policy of insurance within the meaning of the Act of May 11, 1881, P. L. 20, even if that act applied to live stock insurance.</p> <p>2. The Act of May 11, 1881, P. L. 20, requiring the application and by-laws to be attached to a policy of insurance in order to make such papers admissible in evidence, has no application to policies of insurance issued by a live stock insurance company.</p>

<p>Appeal, No. 201, Oct. T., 1908, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1907, No. 2, for defendant on the whole record in case of Stacy G. Glauser and Edwin D. Glauser, trading as Stacy G. Glauser & Son, v. Glenn M. Scofield, owner or reputed owner, and the Scofield Company, contractors.</p> <p>Scire facias sur mechanic’s lien. Before Johnson, P. J.</p> <p>The facts are stated in the opinion ofi'the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff on the whole record.</p>

Appeal, No. 167, Oct. T., 1908, by-defendant, from judgment of C. P. Northampton Co., Nov. T., 1907, No. 19, on verdict for plaintiff in case of James Kennedy v. Henry M. Schwab. Ejectment for a strip of land in Easton, Pennsylvania. Before Stewart, J. Verdict and judgment for plaintiff. Errors assigned were (1, 2) in admitting in evidence the deeds referred to in the opinion of the Superior Court, and (3) in refusing binding instructions for defendant.

<p>Taxation — Charitable corporation — Farm, land.</p> <p>A charitable corporation organized to promote the education of Indian and negro children and to train teachers for that service, is subject to taxation for land owned by it and used solely for tillage and pasturage in order to provide food for the inmates of the institution, if it appears that the endowment of the corporation is such that the food supplied by the farm could be procured from other sources of income.</p>