Volume 39 — Pennsylvania Superior Court Reports

<p>Municipalities — Ordinance—Motives of members of council — Evidence.</p> <p>1. The legality of the acts of legislative or corporate bodies cannot be tested by the motives of individual members or the adventitious circumstances they may lay hold of to carry their measures.</p> <p>Appeals — Assignments of error — Evidence.</p> <p>2. Where the admission of a paper in evidence is assigned as error, but the paper is not printed in appellant's paper-book, the assignment will be disregarded.</p> <p>3. Where an assignment of error to the admission of testimony fails to include in the assignment the testimony admitted, the assignment will not be considered.</p> <p>Boroughs — Ordinances—License fee — Openings in streets.</p> <p>4. The tribunal having jurisdiction to decide whether or not, under an agreed or duly ascertained state of facts, there being no conflict of evidence as to essential facts, an ordinance is unreasonable, is the court.</p> <p>5. An ordinance imposing a license fee for a permit to make an opening in a street amounting to $3.00 for each opening not exceeding three feet wide and thirty feet long and for any additional opening in width or length at the same time and place, five cents per square foot, is unreasonable and void where it appears that the borough expended nothing for supervision and inspection until three years after certain excavations sought to be charged for had been made, that it then employed a clerk to make out permits, and an assistant engineer, and the evidence for the company sought to be charged shows that the work of refilling had been carefully done, that defects had been promptly repaired, and that the permit charges claimed were greatly in excess of the actual cost of making, refilling and repairing the street openings made by the company.</p>

<p>Appeal, No. 106, Oct. T., 1908, by plaintiffs, from judgment of C. P. Montgomery Co., March T., 1907, No. 132, on verdict for defendant, in case of Spring City Brick Company v. Henry Martin Brick Machine Manufacturing Company, Incorporated.</p> <p>Assumpsit for breach of warranty for the sale of a machine.</p> <p>Weand, J., charged as follows:</p> <p>The Spring City Brick Company is a corporation doing business at Spring City, in this state, in the manufacture of bricks. The Henry Martin Brick Machine Manufacturing Company is a corporation that deals in what is known as a dryer, the object of which is to dry bricks speedily. Two suits were brought: one by the Spring City Brick Company against the Henry Martin Brick Machine Manufacturing Company, and .the other by the Henry Martin Brick Machine Manufacturing Company against the Spring City Brick Company; but both cases have been tried as one, and therefore you will only be required to render a verdict in the one case. In order to thoroughly and intelligently understand what the issue here is we must first know the history of the case.</p> <p>It appears that Mr. Boyer, who is the president of the brick company, saw an advertisement of the Martin company in relation to the dryer. A correspondence was opened between the parties, which resulted in Mr. Martin and Mr. Boyer, representing the different parties, getting together. As a result of their meeting Mr. Boyer was invited to go to Egg Harbor, New Jersey, where one of the Martin company's dryers had been erected and was in operation. He was also invited to go to Haverstraw, New York, where another had been erected and was in operation. Mr. Boyer visited both of these places and had a meeting with Mr. Martin in New York. At that meeting, as I understand it, the subject and the price of this dryer was discussed between them. The Martin company proposed to erect a dryer of a certain capacity, complete in all its parts, for the sum of $6,000. This, of course, would include the erection • of a building and everything appertaining to the dryer. Either at that meeting or at a subsequent one Mr. Boyer stated that in this calculation of $6,000 there was included the cost of necessary steam pipe, which he said he could buy and sell cheaper than the Martin company had placed it at. He also asked them whether they did not have to employ a local steam fitter or plumber to erect the plant, and stated that he was in that business, and that he might as well do it. It was then arranged that Mr. Boyer, on behalf of the brick company, should do the plumbing, should supply the necessary piping, and erect the building; and in consquence there was a reduction made in the price from $6,000 to $2,100.</p> <p>The parties appear to have had other meetings, but the result of the whole arrangement was, that at a meeting held in Philadelphia at the Windsor Hotel, Mr. Boyer, on behalf of the brick company, and Mr. Martin on behalf of the dryer company entered into a written contract for the performance of certain things on their respective parts. This contract required that a certain amount of money should be paid down at a certain time. [The dryer company delivered on the ground, as specified in the contract, the necessary parts of this dryer, as set forth in the contract. Mr. Boyer, on behalf of the brick company, proceeded to erect the building and put the parts together, he supplying the piping, valves, and so forth, according to his part of the arrangement.] [1] The brick company paid the stipulated sum of $1,050 which the contract required them to pay on delivery of these parts. The plant was now put in operation. After a certain time the brick company paid another installment of $500 on the contract and gave their note for the balance, which was $630.</p> <p>On February 28, 1907, the Spring City Brick Company brought suit against the Henry Martin Brick Machine Manufacturing Company, and on the same day the Henry Martin Brick Machine Manufacturing Company brought suit against the Spring City Brick Company. The suit of the brick company against the Martin company was for damages, which the brick company alleged that they had sustained by reason of false representations made by the Martin company with reference to the ability of the dryer to perform certain work. The suit of the dryer company was on the note which represented the balance due under the contract. It is claimed by the brick company that the Martins made false representations in this, that they represented to Mr. Boyer that this dryer would dry 32,000 bricks in from ten to twelve hours; and it is now claimed in the suit of the brick company that the dryer people failed to do this amount of work, and that this contract was entered into upon the faith of those representations, and they seek now in this suit to recover back what they say they have sustained in the way of loss by reason of those false representations.</p> <p>In order to determine what the contract was between these two parties it is necessary to refer to that which is written. When parties meet together and reduce their contracts to writing, the writing is viewed by the law as the evidence of what the agreement was which was made between the parties, and that whatever is not part of the written agreement is no portion of the contract. "That which is not found in the writing is presumed to have been abandoned by one party or the other, unless it appears by clear, precise, convincing and satisfactory proof that the part which it is alleged is not in the contract was not in it because of some fraud or by accident left out, or by mistake of the parties was not incorporated therein. It is true that there are contracts oftentimes made by parties where the conversation that took place between the parties at the time they were entering into the contract may be admitted for the purpose of explaining something in the contract which of itself is left doubtful. It is true, as the courts have said, that parol evidence is admissible to show a contemporaneous agreement which induced the execution of the written obligation.” The law says that the written agreement is the contract between the parties, and that when any person seeks to change a contract in writing he must do so by clear, precise and indubitable proof; and by that kind of measure of proof is meant that the sources from which the testimony comes must be credible, the statements of the witnesses must be clear and distinct as to what was said and done, and all together it must be of a character to convince the minds of the jury that the part claimed to have been omitted either by fraud, accident or mistake of the parties, or if not so kept out of the contract, that the party who complains of the omission was induced to sign the contract by a contemporaneous agreement made at the time the contract was signed.</p> <p>[Now, therefore, we first turn to this contract to see what was written therein; and in reading it we find that there was no express agreement that this dryer, either if sold as a whole or if sold in parts, was guaranteed to do any specific work; and therefore unless the brick company convince you by evidence that the law says must be clear, precise, convincing and indubitable that the Martins made an agreement, upon which Mr. Boyer relied, that it was to do a certain amount of work, the brick company has no case.] [2]</p> <p>[We now turn to the testimony relied upon by the brick company to convince you that this agreement was made. It is •said by Mr. Boyer that at these various interviews Mr. Martin always said and guaranteed that the dryer would dry 32,000 bricks in from ten to twelve hours. You have seen him upon the stand and you have heard his testimony upon that point. The only corroborating testimony that he has is that of a Mr. Curren, who states that at a meeting between Mr. Martin and Mr. Boyer, at Mr. Boj'er’s office, as he entered the office he overheard a conversation between them to the effect that the dryer was to dry 32,000 bricks in the time specified. These are the two witnesses upon whom the plaintiffs must rest their case.] [3] And if they have convinced you according to the measure of proof as I have laid it down to you, that that statement was made, then they have progressed in the first step towards a recovery.</p> <p>Now, no matter what might have taken place at the first or the second interview, the question is, was that the agreement that induced the signing of the contract up to the time when it was signed? Mr. Boyer says it was up to that time. Mr. Currents testimony relates to the interview in Norristown, and you will remember that the contract was signed in Philadelphia; and therefore the conversation which Curren overheard was not the last conversation between them; but still it can be used to corroborate Mr. Boyer and to show that these assertions had been made by the Martins. Now I charge you that unless the brick company have established to you by the weight of the testimony that that was the contract or agreement, your verdict would have to be in favor of the Martins for the amount of their note with interest. It is a rule of law that the plaintiff must convince the jury by the weight of the testimony. If it stands evenly balanced, or if the jury, are in doubt as to which way it inclines, it must be for the defendant, because then the plaintiff has not established it by the weight of the testimony.</p> <p>On the part of the Martins this conversation and agreement is denied. Mr. Martin states it most positively that he never agreed to that at any time in the manner stated by Mr. Boyer. While the Martins do not deny that they would stand by an agreement that their machine under certain circumstances would do a certain amount of work, they contend that under this agreement no such understanding was had. You have, therefore, the testimony of the defendants in flat contradiction of that of the plaintiffs, and it is for you to say which side you will believe. It is said on the part of the defendants that where they contract to deliver a dryer, put up and arranged according to their system and their blue prints and plans, for which they are responsible, there is charged as the price of that machine a certain amount to indemnify them against mistakes of their men or against accident, and because they are in business for profit and therefore expect to make something out of their contract; but they contend that where they only sell the material parts and the buyer of these parts undertakes himself to supply the workmen to erect the parts and put them together, they never would guarantee in the manner stated by Mr. Boyer; and [this very contract in certain parts provides: “ It is also agreed that the party of the second part will furnish the foundations for the material, put up the entire building, dig trenches, and furnish well for return hot water, and that the party of the first part shall not be liable for any part of the material not working properly furnished by the party of the second part. The party of the second part shall be responsible for any damage or loss by fire after it reaches Norristown.” So you will see by this agreement that the brick company had assumed a certain responsibility, which, if it had been for the sale of the entire dryer to be put up by the Martin company, they would have to assume; and they argue to you that it is unreasonable to suppose that they would guarantee this part of the work when somebody else had assumed the responsibility of putting it together and supplying the parts.] [4]</p> <p>Therefore, your first question is, what was the contract between the parties? [If you find that there was no agreement as testified to by Mr. Boyer, then you can stop right there and render, a verdict for the dryer company for the amount of their note with interest.] [5] Assuming, for the sake of the instructions to be given you that the jury find in favor of the brick company up to that point, then your next query will be, did the machine do its work properly? It is claimed by the brick company, and testified to by Mr. Boyer and the rest of their witnesses who were concerned in its operation, that it did not dry the 32,000 bricks in the specified time. They all agree that so far as that was concerned it was a failure. Is there any evidence to contradict that? If there is, you will take that into consideration. If you find that it did not do that amount of work, then you will proceed to another question before the plaintiffs are entitled to recover. [If it did not do the work, why not? Because if the failure to do the work properly was the fault of the construction of the machine, then the fault is not with the dryer company but is with the brick company, which undertook to put it together.] [6] It is claimed by the defendants that'the reason why this machine did not do the work, if it did not, was because Mr. Boyer departed from the blue prints and put this machine together in a manner to suit himself. If that is the case, if he failed to follow the blue prints as furnished by the dryer company, and adopted a system of his own, and that was the reason of the failure, the brick company must suffer, and not the dryer company.</p> <p>You have heard the testimony of a number of witnesses upon this question: Mr. Mehaffey says he was the man that was sent by the dryer company to superintend the construction of it, Mr. Boyer to do the work. He says that when he went there it had been partly erected. He says that he told Mr. Boyer that it was not according to the plans and blue prints. The blue prints were there, he says. Then he tells you why it was not the difficulty with the foundations that the ground was uneven, and so forth, and that the cupola was not right; and he declares that Mr. Boyer said that as done it was better than the blue prints. He says that the plans contemplated steam to be introduced in a certain way, and that this was not done. This man, although the employee of the dryer company, after-wards entered the employ of the brick company to manage it, and he worked there for some time; and he tells you why at one time it would not work. He says that he tried it one night but they ran short of coal and that therefore it could not be tried thoroughly; and [he tells you that what the real trouble was, according to his opinion — it is for you to judge, of course, whether it is correct or not — was the trouble with the labor and getting the bricks out to the kiln, and in this he is corroborated by other testimony, going to show that the complaint which the brick company made was because of the difficulty of getting men to operate the plant and of the difficulty of getting the bricks from the dryer to the kiln. Mehaffey says that they did not have force enough, and so forth, and that was the reason why, if the 32,000 bricks had been burned, they could not have been gotten out.] [7]</p> <p>It is also claimed by the defendants, by several witnesses, that there was a faulty construction in the manner in which the building itself was erected; that in order to preserve a high, even temperature it was necessary that the building should be inclosed in a certain way, but that this building was not so erected; that there were openings along the bottom which al lowed the air to get in. [It is also said that the foundations were not properly constructed in order to carry off the moisture which was driven from the bricks by the steam; if this was so, whose fault was it? If it was the fault of incompetent men of incompetent construction of the brick company, they must bear the loss.] [8] [You will recall the testimony of Mr. Grob, the German who operated the plant at Egg Harbor, and he says to you that when Mr. Boyer came to examine the plant at Egg Harbor, he, Grob, showed him all over and explained to him how it should be operated; and there was one caution which he particularly gave to him: “Be sure to follow the blue prints. I made that mistake and it took us some time to correct it.” That was the caution which he then gave to Mr. Boyer before the contract was signed.] [9] [It is claimed by the witnesses who saw this dryer put up, and by both of them, that Mr. Boyer said he had ideas of his own; and if he had, and if they were different from the ideas as expressed in the blue prints, and he followed them, then it was his misfortune and not the fault of the dryer company.] [10]</p> <p>It is also said that Mr. Callaway, who was sent there by the dryer company, condemned this machine and expressed surprise that the dryer company would put it up. That was very strong language to use. He is not here to explain what he meant. But Callaway had been employed by the dryer company to erect their dryer according to their system and their plans and their blue prints, and when he came there and saw the manner in which it was constructed he then used that language. If it was in his mind at that time that the dryer company had done this work in that way then his language can be explained, or can the jury find that although he was in the employ of the dryer company he would just on that condemn their whole work? It is unfortunate that he is not here, but it is for the jury to place such construction upon his language as they may think proper, if they think that what he said there ought to bind the defendant company.</p> <p>I can say to you that if you find that this dryer did not work, although guaranteed, because it was improperly constructed, and if you find that Mr. Boyer said that he had ideas of his own, if you find that it was constructed according to his ideas and not according to the blue prints, and that that was the cause of the failure, -then the brick company must suffer and not the dryer company. It is said on behalf of the dryer company that Mr. Boyer requested the privilege of supplying the piping, doing the plumbing work and erecting the building, and their contract no longer was for the erection of the dryer, but merely for the sale of certain parts of the dryer, and that because they only sold those parts the price was reduced, and they had no responsibility for the work which they were not required to do. If we turn to the contract itself it may throw some light upon this subject. [The contract says that the dryer company agreed to Mr. Boyer the hereinafter described materials — not a dryer — but the hereinafter described materials for the construction of one latest improved Martin patent steam dryer, having a holding' capacity of 32,000 wire cut bricks, calculated on the basis of nine bricks to each palette.” What was that material tobe? Then they go on to describe what it is: “Forty complete cast-iron racks” and so forth, and describe all the parts constituting the material which they agreed to deliver, and it is admitted by the brick company that every article mentioned in this contract was delivered. When this contract says that it is a contract for materials for the construction of a thing, and then provides that the person who buys it is to construct it, it is a question for the jury as to what was sold.] [11] Generally the court is required to construe written contracts, but in many cases the question can be referred to the jury; and I now refer it to you, as to whether or not under that contract the dryer company agreed to furnish a dryer taken as a whole to do the work or whether they merely contracted to serve certain materials, the brick company to furnish the other and to construct it according to the plans and specifications of the dryer company.</p> <p>[If they only contracted to serve parts, we can come back to the question, would they have guaranteed the thing to do certain work when the brick company itself was to put it up?] [12]</p> <p>It is said by the defendant company that no complaint was ever made about this machine not doing its work until this suit was brought, and they have introduced the testimony of one, even two witnesses — two, I think — that Mr. Boyer agreed that the dryer had done the work. At the meeting in Lancaster Mr. James P. Martin testified that Mr. Boyer said that, “So far as the dryer is concerned, there is no fault, it is a good dryer; but the handling is too hard and the labor question is what troubles us.” On the part of the other Martin they all said that there was no complaint until the suit was brought, except the complaint about the incompetency of their labor and the difficulty of their getting labor, because of the difficulty of removing the bricks from the dryer to the kiln, and, I suppose, because of the hard work owing to the temperature. Mr. Shaar was sent to Spring City as late as June and July with a statement. He says Mr. Boyer made no complaint at that time about the dryer. Mehaffey says there was no complaint made whilst he was in the employ of the brick company as to the dryer not being all right, but it was as to the labor question and the difficulty of removing the bricks.</p> <p>If you find this to be the case, the next question is, why does the brick company take this position? If it was not because of the work of the dryer itself, but merely because they found that the system which they had bought required too much labor to remove the bricks, then that is no fault of the dryer company, because Mr. Boyer on his visits to Egg Harbor and Haverstraw had full opportunity of seeing what labor would be required and what the difficulty was; and therefore if their position to-day arose from the mere fact that it cost them too much or that they could not get hands to do the work, that was no fault of the dryer company. It is said by the plaintiffs, however, that they did complain, that they wrote a letter in July to the dryer company in which they complained of this machine. You will recall the expression used: “They have had considerable trouble in getting dry brick enough to keep the plant moving.” Was that the fault of the dryer, or the fault of the temperature, or the engineer who had it in charge, or because they did not have labor enough?</p> <p>You will remember the conversation that Mr. Grob had with Mr. Degan, I think it was one of the employees of the brick company, in which he complained that they had some man who had been accustomed to the old system of doing things. What importance can you attach to that as bearing upon the question as to whether that complaint really was that the dryer would not do the work, or whether it was because of the difficulty of getting the bricks out, that they could not get enough, or because the labor question entered into it?</p> <p>Now we come to another point in the case which may have great significance. [This dryer was delivered in April, if I recall it. The first complaint, if it was a complaint, was this letter dated in July. Mr. Boyer says, and his witnesses, that at no time did the dryer work satisfactorily. They had it, then, part of April, May, June, and part of July, and therefore they had an opportunity to give it a fair test.] [13] Yet we find that on July 29 the brick company sent a note, the balance due as per statement, showing that there was due then $1,126.71. On July 31 the dryer company acknowledged the receipt of that letter. On October 16 the brick company wrote the dryer company that the note was about falling due, and asking for a renewal by payment of $600 on account. On October 17 the dryer company wrote back accepting the note, and on October 30 the brick company sent a new note and paid $500 on account</p> <p>[The question now for you to consider is, whether this conduct was consistent with the theory that the brick company was dissatisfied with the dryer. They had had months to investigate the matter. According to their own witnesses they knew that it was a failure, and yet they themselves sent to the dryer company a written statement acknowledging their indebtedness and paying $500 on account and giving a new note for the balance. What construction do you place upon that act? Would an ordinary business man, if he knew on October 30 that he was not indebted to these people, that he had been wronged by fraudulent representations, and had been induced to buy an article which proved an entire failure, yet at that time make out a statement which, in so many words, said: “We owe you so much, and we pay you $500 on account, and agree by this to pay you $630 more?” This is a very important question for you to take into consideration as bearing on the faith of the brick company when it declares that the machine had been a failure and that they had expressed their dissatisfaction with it. If you find from their conduct that up to that time they had admitted, by the payments or by their failure to complain as to the working of the machine, you will be justified in finding, that they were satisfied with it and that the defense is based upon good grounds.] [14]</p> <p>If you find a verdict for the brick company, then they will be entitled to whatever loss they have sustained. They claim that they have paid $1,550, that they have erected a building which is of no use to them in order to accommodate this dryer that they have spent a certain amount for it, and that by reason of the failure of this machine to work they lost $237.52 on a contract, and they ask you to compel the dryer company to pay them back this amount of money. If they have been deceived in the amount they state and you find that the dryer company guaranteed this machine to do this amount of work and that if it did not do it through no fault of the brick company, then they would be entitled to a verdict at your hands. [But if, on the contrary, you find that there was no guarantee, or that if there was the machine failed because it was improperly constructed or improperly managed, then your verdict would have to be in favor of the dryer company for the amount of their note with interest.] [15] [But if you find a verdict for the plaintiffs you cannot, in any event allow, them the $500 which was paid in October, because then they knew, or say they knew, that it was a failure, and if then they paid any amount of money voluntarily it was at their own risk and they cannot recover it back.] [16]</p> <p>The defendants, the Martins, have asked me to charge you upon certain points of law.</p> <p>3. If the jury find from the evidence that the Martin company did guarantee the dryer to dry 32,000 brick per. day, and that the dryer would not by proper handling do as guaranteed, then the plaintiffs are not entitled to recover unless you find from the evidence that the plaintiffs made known to the Martin company the failure of the machine to do as guaranteed and gave them an opportunity to alter or adjust the machine so as to give the guaranteed results. Answer: I so instruct you: If the jury find that the machine did not do its work as guaranteed it was the duty of the brick company to notify the dryer company to that effect in order to enable them to remedy any defects which might exist therein. [17]</p> <p>5. If there was a guarantee as alleged by plaintiffs, it was the duty of the plaintiffs to promptly notify the Martin company of any failure of the machine to do as guaranteed. Answer: This is true. [18]</p> <p>Verdict and judgment for defendants for $663.66. Plaintiffs appealed.</p> <p>Errors assigned were (1-18) above instructions, quoting them, and (19) that the charge was inadequate.</p>

<p>Affidavit of defense — Evasive affidavit — Practice, C. P. — Contract.</p> <p>In an action by one corporation against another for labor performed and materials furnished in performing certain electrical work and installing a motor, an affidavit of defense is insufficient to prevent judgment which is evasive and equivocal as to the extent to which the president of the defendant company directed the work and also as to the existence of an alleged guaranty, and as to who made the guaranty on behalf of the plaintiff.</p>

<p>Appeal, No. 109, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1907, No. 5,882, sustaining demurrer to statement in case of Charles Motley Clark v. M. Hawley McLanahan, trading as Whiteside & McLanahan, Agent, T. Nelson Davis, trading as Davis & Harvey, Bailee, and Humphrey Schreiber, Constable.</p> <p>Petition for goods distrained.</p> <p>The case is stated in the opinion of the Superior Court.</p> <p>Error assigned was order sustaining the demurrer.</p>

<p>Appeal, No. 123, Oct. T., 1908, by John M. Whitlock, from order of Q. S. Phila. Co., March Sessions, 1908, No. 1,811, granting petition of Jacob Staehle, Receiver, and Edward H. Curtis, Jr., for transfer of a liquor license In the Matter of the Retail Liquor License granted to John M. Whitlock.</p> <p>Petition for transfer of a retail liquor license.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order granting the transfer.</p>

<p>Negligence — Master and servant — Dangerous appliances — Evidence.</p> <p>In an action by an engineer and fireman of a factory against his employer, no recovery can be had by the plaintiff where it appears that the plaintiff was in the habit of removing ashes through an opening in the wall, that in doing so he stepped upon two boxes, one superimposed upon the other placed there by his predecessor, that the top box was not fastened to the lower box, and sometimes moved sideways, that plaintiff had complained to the superintendent who had promised to make steps, but failed to do so, that at the time of the accident plaintiff stepped upon the upper box and fell, receiving the injuries complained of, that it was no part of plaintiff's duty to use the opening in the wall for the removal of ashes, and that there was another way which he could have used with practically no loss of time.</p>

<p>Appeal, No. 219,</p> <p>Oct. T., 1907, by defendant, from judgment of C. P. Northampton Co., April T., 1906, No. 14, on verdict for plaintiff in case of O. H, Hoffman v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Assumpsit to recover damages for injuries caused by the delay of a machine. Before Scott, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[Now, there is a provision in this contract that no road shall be responsible, in effect, for acts committed upon some other railroad or by any of the agents of the other railroads and they have exempted themselves from liability for such acts by the contract here: and such contract is a valid contract. But you may take it from me as an instruction that that exemption of liability for the acts of such agency does not exempt the D., L. & W. R. R. Co. from the act of the agent or the representative of the Lehigh Valley R. R. Co. that undertakes to route and rate this property through to its point of destination, if you find from the evidence here that there was such a special arrangement made by the D., L. & W. Company with the Lehigh Valley R. R. Co. It is testified to, as I remember it, by Mr. McMillan, the witness called by the defendant, one of the principal representatives in the office of the D., L. & W. R. R. Co. It is suggested by the testimony of Mr. Mattes, the representative of the Lehigh Valley R. R. Co., only I don’t recall that in his testimony he says there was any arrangement or special agreement to that effect, but that it was the practice; that is what they would do in such cases. As I remember Mr. McMillan’s testimony, he says it was an arrangement that they had with the Lehigh Valley R. R. Co. So that if you find there was a special arrangement of that sort by which in the office of the Lehigh Valley R. R. Co. at Thirteenth street there was somebody constituted, or the road itself was constituted the special agent of this defendant company to rate and route through freight to its point of destination on their behalf because they had no such rates or routes on their local line and to other points where they didn’t have, then the act of rating and routing this property as far as Baltimore or to Petersburg, Va., was the act of the D., L. & W. R. R. Co. through its own agent for that particular purpose, although the man who did it and the hand that executed the waybill was in the employ of the Lehigh Valley R. R. Co.: and there is no exemption for that condition provided in this waybill.] [15]</p> <p>[If you find that the original neglect or breach of duty upon the part of the D., L. & W. R. R. Co., if you find it to have existed at all, was still operating and was the proximate cause of its going to Petersburg, Va., irrespective of the fact that there intervened this inquiry to the Lehigh Valley R. R. Co. and the message from its agent to Baltimore, then you may consider the D., L. & W. responsible.] [16]</p> <p>[Now, there are four elements of damages to which the plaintiff points your attention. One of them is the actual value of the machine, $241, which was the contract price. He did not receive that machine. He ordered a new engine to take its place, but he says to you and, of course, the Messinger Manufacturing Company, by delivery f. o. b. on board cars at Tatamy, had delivered the property, so far as they were concerned, to Mr. Hoffman at Petersburg, W. Va., and therefore, Mr. Hoffman would legally be required to pay for that machine unless in some way he was absolved. He asserts that it has not been paid for yet and the time of payment was postponed until the settlement of this suit. If you believe that, then Mr. Hoffman would be entitled to recover the contract price of that machine, $241.] [17]</p> <p>[He points to the loss of manure, which he says amounted to 450 loads, the price of which was $2.00 a load, and he undertakes to satisfy you that there was a loss of 450 tons of manure from the fact that it wasn’t possible to feed these cattle under any arrangements that he had made, of which the defendant had notice, by reason of the fact that he could not feed them within shelter. You will remember what has been said upon that score and that, in order to estimate the actual amount of manure that he may have lost, he took one cow for a certain period of time, ascertained its product and then multiplied that by the number of cows he had upon the place, and proves to you the market price of a load of manure. Now, you will say whether or not that is such a standard of computation that will enable you to say with a reasonable degree of certainty that there was a loss in consequence of that and of how much.] [18]</p> <p>[The other item of loss you have also heard discussed, being for the difference in the feeding value of shredded fodder and com; and with respect to that time, he must also be able to point you to some exact and definite fixed standard by which you can calculate the amount approximately of the loss. He asserts that he had consumed during this period of time, these four months and a half, 1,500 shocks of corn. There were 900 there upon the place that he had. You will remember how it was described, 900 and 500 and about 100. The witness that he produced here said it was about 1,400, making it up of 900 and 400 that were on hand, or that he bought about 400 instead of 500, making a difference between the witnesses of 100, 1,500 shocks and 1,400 shocks. But he undertakes to give you the difference in the market value between so many shocks of fodder at such a value as $6.00 for the shredded fodder and $2.50 for the unshredded, making a difference of $3.50 in the market price of 1,500 stacks of fodder; 431 tons is what he claims it would be by the calculation, the arithmetical calculation that he has made, making by his proven calculation $1,508.60. Now, you have heard what took place in the discussion of his testimony, what has been said by both counsel respecting the fact that when he was called as a witness upon the first occasion here in this case that amount was made $700 or $750 instead of $1,500 and that in the affidavit the statement of claim which he originally made and filed in court a year or more ago the same amount was therein stated. It is suggested to you that the difference arose from a mistake in arithmetical calculation simply. These are considerations for you and you will be able to say, if you find that the plaintiff is entitled to recover, just how much he is entitled to recover under this evidence and under such instructions as I have given you, to which he would be entitled to have interest added from about • May 1, 1902.] [19]</p> <p>The jury returned a verdict as follows:</p> <p>Horse-power................................$ 241 00</p> <p>Expense of sending team to Keyser............ 55 00</p> <p>Loss on fodder.............................. 510 00</p> <p>Loss on manure............................. 285 00</p> <p>$1,091 00</p> <p>Interest from April 15, 1902.................. 357 85</p> <p>$1,448 85</p> <p>Judgment was entered on the verdict. Defendant appealed.</p> <p>Errors assigned among others were (15-19) above instructions, quoting them.</p>

<p>Easement — Right of way — Obstruction—Nuisance—Prescription■—Deed —Injunction—Equity.</p> <p>A person upon whose land an easement of a right of way for the benefit of adjoining land has been established for sixty years either by deed or by prescription, has no right to obstruct and close up the right of way merely because the adjoining owner maintains an ash and garbage pile and other things along or near the right of way amounting in the opinion of the servient owner to a nuisance; and if he attempts to do so the obstruction which he puts up will constitute a nuisance to the right of way which a court of equity may abate by injunction.</p>

<p>Assignment for the benefit of creditors — Contract of assignee — Additional liability of assignee — Evidence.</p> <p>1. In an action against the assignees for the benefit of creditors of a contractor to hold them personally liable‘for labor and material furnished in completing a building operation, a verdict and judgment for the plaintiff will be sustained where the evidence for the plaintiffs, although contradicted, tends to show that in giving the order for the labor and material nothing was said by the defendants as to their contracting in their representative capacity only, and that the plaintiffs understood that they were dealing with the defendants in their individual capacity.</p> <p>2. Assignees for the benefit of creditors are of the class of trustees who are personally liable on their contracts.</p> <p>3. Where there is evidence partly written and partly oral that the assignees for the benefit of creditors made a contract in their representative, and not their individual, capacity, such evidence is for the jury, and the court cannot say as a matter of law that the contract was only binding upon the assignees in their representative capacity.</p> <p>4. When matters of fact, depending on oral testimony, are connected with and necessary to a proper understanding of the written evidence, the court is not bound to construe the latter as though it stood alone, and an admixture of oral and written evidence draws the whole to the jury.</p>

<p>Appeal, No. 14, April T., 1908, by defendants, from decree of C. P. Somerset Co., Equity Docket 1905, No. 6, on bill in equity in case of Maggie May Baer v. Wilmoth & Leith.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree of the court in favor of the plaintiff.</p>

<p>Appeal, No. 231, Oct. T., 1907, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 5,155, dismissing bill in equity in case of J. Lentz Garrett v. The Philadelphia Lawn Mower Company, John W. Graham and Alexander B. Geary, Executor of the last Will and Testament of William G. Vernon, deceased.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 55, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. C., Sept. T., 1903, No. 664, on verdict for plaintiff in case of Ella M. Fay v. The Lester Piano Company.</p> <p>Assumpsit to recover a balance alleged to be due on a building contract. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Superior Court and in the report of the former appeal, 32 Pa. Superior Ct. 437.</p> <p>Verdict and judgment for plaintiff for 11,465. Defendant appealed.</p>

<p>Orphans’ court practice — Bill of review — Laches.</p> <p>A petition for a bill of review filed more than a year after the confirmation of an executor’s account, will be dismissed where the answer filed to the bill denies the allegations therein, and where it appears from the proofs that the petitioner signed a certificate as to the correctness of the account, and his denial of his signature is met with overwhelming proof of its validity, and there is nothing in the evidence to sustain the allegations of fraud set forth in the petition.</p>

<p>Trespass — Pleading—Statement of claim, — Demurrer.</p> <p>1. In an action of trespass to recover damages for injuries to real estate, the statement of claim is not demurrable, if it avers occupancy of premises by plaintiff’s tenant, and also the fact that the premises had appurtenant thereto a certain construction and necessary appliances thereunto belonging of which plaintiff and the tenant long had peaceable use and quiet enjoyment, and the fact that defendant wrongfully, maliciously and injuriously deprived plaintiff’s premises of the use of the construction and appliances, to the injury of her reversionary estate,</p> <p>Practice, C. P. — Judgment non obstante veredicto — Act of April 22, 1905, P. L. 286.</p> <p>2. Unless the amount of damages in an action of tort is agreed upon, or is admitted by the defendant, or is so clearly established by undisputed evidence that the court could give binding directions upon that matter, the court is not in a position on a motion for judgment for plaintiff non obstante veredicto, to determine what judgment, in its entirety, should be entered on the evidence, and hence is not in position to enter a judgment contrary to a verdict in favor of the defendant. There is nothing in the Act of April 22, 1905, P. L. 286, that contemplates the entering of an interlocutory judgment non obstante veredicto in favor of the plaintiff in an action of tort, to be followed by a writ of inquiry to assess the damages.</p> <p>3. Where in an action of tort the court entered judgment for plaintiff non obstante veredicto but for no specific amount of damages, the appellate court in reversing will direct that judgment shall be entered for the defendant on the verdict without prejudice, however, to the right of the plaintiff to appeal from such judgment.</p>

<p>Contract — Sale—Breach—Measure of damages.</p> <p>In an action to recover the price of a carload of Pecan nuts ordered in Texas and shipped to Philadelphia, it appeared that before the nuts were shipped from Texas, defendant attempted to repudiate the contract, but to this the plaintiff refused to consent. At the time the goods were shipped, the nuts had fallen so much in price in Texas that only a nominal sum could have been realized from their sale. When the car arrived in Philadelphia, it was opened by defendant, and after inspection of the nuts, they refused to take them on the ground that they were not up to the quality contracted for. The plaintiff’s agent sold the goods in Philadelphia. Held (I), that the verdict of the jury in favor of the plaintiff established that the quality of the nuts was up to the contract standard, and that the defendant’s breach was without justification; and (2) that the measure of damages was the difference between the contract price and the fair market value of the goods at Philadelphia at the time of the breach.</p>

<p>Appeal, No. 76, April T., 1909, by plaintiff, from order of C. P. Lackawanna Co., May T., 1908, No. 16, sustaining demurrer to statement of claim in case of Commonwealth ex rel. to use of John T. Dyer Quarry Company v. The O’Connell Construction Company and The Title Guaranty & Trust Company of Scranton, Pa.</p> <p>Assumpsit on a bond.</p> <p>Newcomb, J., filed the following opinion:</p> <p>The construction company, defendant, gave bond to the commonwealth with the Title Guaranty Company, codefendant, as surety. It was conditioned for the due performance, by the principal, of its contract with the state for the construction of a road in Chester county, under the provisions of a statute. It was also conditioned to indemnify the state against liability for material furnished to the contractor. A copy of the bond is made part of plaintiff's declaration. The only cause of action attempted to be therein averred is that plaintiff company “furnished material for use in the said construction for which it has not been paid, there being a balance due at this time of $365.09, the items of which are set forth particularly in a statement attached hereto,” etc.</p> <p>As against the construction company alone this, at best, suggests a liability without distinctly showing it. As against the two defendants it may be assumed that the attempt was to deduce a joint liability from the obligation of the bond-. But, to that instrument this plaintiff is neither a legal nor equitable party. Aside from that, liability on the bond can arise only from breach of its conditions.</p> <p>For the sake of illustration it may be assumed that the claim is for materials furnished at the instance of the principal in the bond for use in the performance of its contract, to secure which the bond was given. That would make the contractor liable, and failure or refusal to pay “a balance due,” would be a breach of its contract with plaintiff; but not a breach of any condition of the bond. Breach of the bond arising from that source can occur only in case the commonwealth becomes liable for the materials so furnished. And that liability can be enforced only at the suit of the commonwealth. The mere circumstance that the commonwealth is named in the caption as the legal plaintiff in this action does not tend to show that it is asserting a breach.</p> <p>The declaration is radically defective and the demurrer is sustained.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Concealing birth of bastard child — Misdemeanor—Act of March 31, 1860, secs. 89 and 180, P. L. 382 — Charge.</p> <p>1. A person who aids and abets a woman in concealing “the death of any issue of her body, male or female, which, if it were born alive, would by law be a bastard, so that it'may not come to light, whether it was bom dead or alive,” is guilty of a misdemeanor under secs. 89 and 180 of the Act of March 31, 1860, P. L. 382.</p> <p>2. In such a case where there is positive evidence of the innocence of the defendant, a conviction will be set aside where the charge as a whole does not offer a calm, judicial' amd impartial presentation of the case to the jury, and minimizes the effect of evidence that the prisoner was a man with a good reputation for chastity.</p>

<p>Criminal law — Concealment of birth of bastard child — Evidence.</p> <p>On an indictment against a woman for concealing the birth of a bastard child, a conviction will be sustained where the evidence shows that the prisoner wrapped the child in paper and placed it in a suit case with clothing, that she succeeded in concealing the body in this way for two days after the birth, that she intended to carry the child away and bury it, and did not disclose where it was, until the doctor threatened to call in an officer.</p>

<p>Rules of court — Procedure—Pending litigation — Orphans’ court — Construction of rules.</p> <p>1. A rule of court which relates only to procedure and in no way affects rights of the parties, is applicable to future procedure in pending litigation.</p> <p>2. On a question of the construction or application of its own rules, a court can be reversed only for manifest and material error.</p> <p>Orphans’ court practice — Register of wills — Appeals—Petition for citation — Rules of court — Procedure—Pending litigation.</p> <p>3. A rule of the orphans’ court, which provides that after an appeal has been taken from the register of wills, the appellant shall file in the orphans’ court a petition for citation setting forth the facts and circumstances of the case, applies to an appeal pending at the time of the adoption of the rule; and if the appellant has had sufficient time and opportunity to comply with the rule, and has failed to do so, his appeal will be dismissed.</p>

<p>Executors and administrators — Grant of letters — Renunciation.</p> <p>1. An oral renunciation of a right to administer, when acted upon may so far estop him who makes it that at his instance, letters granted in pursuance thereof will not be revoked except as a matter of discretion.</p> <p>2. A son of an intestate has no standing to demand that letters of administration granted to his sister shall be revoked, where it appears that he knew of his sister’s application for letters, and that although she proposed to him that notwithstanding her pending application, he should take out letters, yet he not only declared to her that he would not do so, but expressed to her his assent to her going on with her application and taking out letters under it, and thereafter made no objection thereto until after letters were granted to her, and her bond was approved, although he had ample opportunity in the meantime to do so. In such a case the renunciation may be inferred from the mere oral declarations of the son.</p>

Appeal, No. 211, Oct. T., 1907, by plaintiff, from order of C. P. Centre Co., May T., 1907, No. 28, reversing judgment of justice of the peace in case of Commonwealth ex rel. Reuben Lucas v. Burdine Butler. Certiorari to justice of the peace. Before Orvis, P. J. Errors assigned were in the following form: 1.

Appeal, No. 220, Oct. T., 1907, by defendant, from judgment of C. P. Northampton Co., April T., 1906, No. 21, on- verdict for plaintiff in case of Isaac Cope v. Bangor & Portland Traction Company. Assumpsit for the breach of a construction contract. Before Stewart, J. The facts appear by the opinion of the Superior Court. When A. S. Hunt was on the stand the following question was asked the witness.

<p>Statute of limitations — Overpayment—Evidence as to acknowledgment of debt — Promise to pay.</p> <p>In an action to recover moneys paid in excess of an amount due upon a promissory note, where it appears that the note was paid more than six years prior to the institution of the suit, the statute of limitations is a good plea, and if the evidence shows that the defendant never unconditionally acknowledged that there had been an overpayment, but always said that if such an overpayment had been made, he would repay the amount of it, the court should say as a matter of law that the evidence is insufficient to toll the statute of limitations.</p>

Appeal, No. 34, March T., 1909, by John J. Howley, from decree of O. C. Lackawanna Co., No. 513, of 1905, dismissing exceptions to adjudication in Estate of Andrew Campbell, deceased. Exceptions to adjudication. Before Sando, P. J. The opinion of the Superior Court states the case. Error assigned was decree dismissing exceptions to adjudication.

<p>Appeal, No. 35, March T., 1909, by defendant, from judgment of C. P. Luzerne Co., May T., 1907, No. 106, on verdict for plaintiff in case of F. J. Monahan v. William H. Auman, Jr.</p> <p>Assumpsit to recover for necessaries furnished defendant’s wife and children. Before Halsey, J,</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial when the defendant was on the stand he was asked this question:</p> <p>"Q. Mr. Auman, from the time you left Wilkes-Barre here and went to Philadelphia up until March, the time this suit was entered, about how much did you make a year, average?”</p> <p>Plaintiff’s counsel: Object to that as not being material.</p> <p>The Court: Objection sustained.</p> <p>Defendant’s counsel: Expect to follow this with evidence that the defendant sent to his wife each month a good share of the defendant’s earnings up to the present time. Our defense here, if your honor please, is that there was no desertion. Give us the benefit of an exception and sealed bill.</p> <p>The Court: Yes, sir. Exception noted for defendant and bill sealed. [10]</p> <p>Defendant presented the following points:</p> <p>1. If the jury believes the evidence of the defendant that he offered his wife a home in Philadelphia, and she refused to live with him, without reasonable and legal cause, your verdict must be for the defendant. Answer: Refused. [1]</p> <p>2. If the jury believes that the defendant’s wife refused to return to him, and such refusal was not based upon such a cause as would entitle her to a divorce, then your verdict must be for the defendant. Answer: Refused. [2]</p> <p>3. If the jury believes that the conduct of the defendant was not such as endangered his wife’s life, and of the offer of such indignities to her person, as to render her condition intolerable, and life burdensome, she would not have a just cause under the laws for refusing to live with her husband, and your verdict must be for the defendant. Refused. [3]</p> <p>The court charged in part as follows:</p> <p>[Well, now, she had to be supported, and she went into her father’s family, to be maintained, to be fed and clothed. Now the issue here is, was she there by virtue of a relation under the law, which justifies a recovery here for her maintenance against the husband. In our judgment she was, and we so direct you.] [11]</p> <p>Errors assigned were (1, 2, 3, 11) above instructions, quoting them, and (10) rulings on evidence, quoting the bill of exceptions.</p>

<p>Judgment — Opening judgment — Signatures of note — Husband and wife — Evidence—Principal and surety.</p> <p>1. A judgment entered against a married woman on a judgment note will be opened where the testimony of the only subscribing witness called is to the effect that the note had been executed at a particular time and place, and this testimony is contradicted by that of the defendant’s husband, son, daughter and family physician, to the effect that the defendant was at her home in another town sick in bed on the day stated by the subscribing witness, and had been sick at home for a considerable 'period prior to that day.</p> <p>2. Where a wholesale liquor dealer furnishes liquor to a licensed hotel keeper, and receives from the latter’s wife a judgment note containing the provision that “this note is given to secure anything which I may now, or at any time hereafter be owing to ” the payees, and the latter knew that the wife had no interest in the business, although the sales were charged to her and her husband, a judgment entered on the note will be opened so as to determine whether or not the note was given by the wife as security for her husband’s debt. •</p> <p>3. The Act of June 8, 1893, P. L. 344, forbidding a married woman to become surety for another, is not to be evaded by connivance with the payee of an obligation, and where the object of such an instrument is to give credit to another, it is not binding on the maker who was a married woman, notwithstanding it may appear on its face to be her contract for the payment of money. The form of the obligation is not decisive in such a case.</p> <p>Trial — Evidence—Cross-examination.</p> <p>4. To permit a plaintiff to introduce his case on cross-examination, is irregular and often unfair to the opposite party. Where evidence is so introduced, it is to be treated as testimony presented as if the witness had been examined in chief.</p>

<p>Affidavit of defense — Practice, C. P. — Promissory notes — Payment.</p> <p>In an action on a promissory note an affidavit of defense is not sufficient to prevent judgment which merely alleges that the full sum due from the defendant to the plaintiff was paid to an alleged agent of the plaintiff “in checks, cash and notes,” without giving the amounts, dates, places of the alleged payments, or any circumstances relating thereto, and which does not allege that the checks and notes were ever accepted by the plaintiff or paid by the defendant.</p>

<p>Appeal, No. 141, Oct. T., 1908, by defendant, from judgment of Q. S. Phila. Co., MayT., 1908, No. 164, on verdict of guilty in case of Commonwealth v. David M. Pascoe.</p> <p>Indictment for criminal libel.</p> <p>At the trial the prosecution offered in evidence a copy of the “ Germantown Telegraph,” published under date of February 7, 1908. The article is as follows: “Arnold and Andre. Two figures stood out in the great struggle of the colonies for liberty, and whenever a cause is betrayed, even to this day, the name of Benedict Arnold rises to the lips of every American citizen as a type of all that is dark, reproachful and villainous. For Andre there is, and always has been, a feeling of sympathy, and even regard — regard for the bright qualities of his mind and person, and sympathy that he should have been enmeshed in the toils of the traitor Arnold. And this is the feeling to-day in the Twenty-second Ward. An undercurrent of sympathy for John W. Davidson, but a bitter detestation for the course of Sheriff Wilson H. Brown. Elected triumphantly on the City Party ticket, on a platform of hostility to the ring, pledging himself over and over again to the best interests of the city, he has now gone boots, saddle and bridle into the camp of the bosses. The pledges that he made have been broken, the regard of his friends is shattered and his own self-respect must be grovelling in the dust. Cold and inscrutable, even his best friends cannot explain his course, and have no apologies for it. Snivelling at the feet of the now dominant bosses, he asks admittance to their councils, and so persistent and pressing are his attentions that a well-known city leader is declared to have said: ' Sheriff Brown would now give his guts to the Organization if he could.’ This despicable desertion of the reform movement by the present sheriff of the county is intensified and magnified by reverting to his letter of acceptance when that nomination was tendered him. 'Lest we forget,’ the following extracts will serve to demonstrate, in the light of recent events, how thoroughly and suddenly convinced Wilson H. Brown seems to have become of the 'sterling honesty’ and the 'filial devotion to public interests’ of the men whom he so roundly, denounced when asking the people for their suffrage. Here is a portion of his letter:</p> <p>“ 'The people of Philadelphia have witnessed a great uprising against the corrupt political machine which has defied the people’s wih, plundered the public treasury, seized valuable franchises without compensation and plunged the city into a great burden of debt to pay enormous profits to political contractors. Extravagance, corruption and graft have penetrated almost every municipal department. The platform adopted by the convention contains a masterly statement of the great principles upon which the City Party is founded, and forms the basis of a creed upon which all good citizens can unite for the honor of Philadelphia. I give that platform of principles my earnest and hearty approval and indorsement. I pledge myself to regard this public office as a public trust, to be exercised in strict accordance with the high standard of principles set forth in the platform of the City Party, and by every act within my power to advance and enforce those principles. Let us all renew our devotion to the great cause of redeeming the city of Philadelphia from the evils which have disgraced it and uplift every department and office of its government to the highest standard of excellence, and to establish it firmly and forever as the greatest and best of American cities.’</p> <p>“ Can any honest voter, desiring to serve the interests of the people of this community, cast his ballot for a candidate whose chief sponsor is a man of such flexible principles? A traitor to his party, a traitor to the reform cause, a Benedict Arnold to this community, Wilson H. Brown’s active advocacy of any man or measure will bring nothing but defeat and disaster upon both. We have as a candidate for Select Council in this ward a man of the highest type. A Republican in national politics, a man of large public experience — in fact, the type of a man who truly represents the highest character and citizenship of the community. He would have been the nominee to-day of the Republican Party had he been willing to have pledged himself to do certain things inconsistent with his dignity. But Bayard Henry would make no pledges of any kind. His duty was to his ward and city, and he declined the shackles which were offered him. A big man, he took his part for four years in the Senate of Pennsylvania, and Germantown was never more worthily represented there. He knows the ward, he knows its people. Identified with our institutions, his hand and purse have ever been ready to help along any good cause. The issue of the present campaign is plain. Our candidate is a man of the highest type, who is making a sacrifice to accept the office, a man who is actuated by a high sense of civic duty, a man strong enough to procure what the ward needs in the way of improvements, and to get them, not by subserviently praying and dickering with the bosses, but a man who will demand them as a right and see that we get them. The candidate of the opposition is a man who has always 'gone along,’ and he can be depended upon to still go along, and do the bidding of the bosses. Unfortunately, across his candidacy is cast the shadow of the man who is a traitor to himself, his cause and his party — a man who knows better but does not dare defy his masters; a man who has done many things vitally injurious to the cause of good government by his vacillating course; a man distrusted and detested by all parties and factions — the Benedict Arnold of the Twenty-second Ward.”</p> <p>Verdict of guilty, upon which the prisoner was sentenced to pay a fine of $200 and undergo an imprisonment for the term of six months.</p> <p>Errors assigned were refusal of motion to quash the array of petit jurors, and various instructions.</p>

<p>Criminal law — Assault and battery — Felonious assault — Cutting and wounding — Indictment—Charge.</p> <p>1. An indictment contained three counts, one charging felonious assault and battery, a second, cutting, stabbing and wounding, and a third, assault and battery. At the trial the defendant denied that he used a knife, and claimed that a cut in the arm of the prosecutor had been made by the breaking of a beer glass. His testimony was not in any way corroborated, and he would not say whether the glass which he said that he held had been broken. No other witness saw a glass in his hand. The court instructed the jury that they should disregard the first count “leaving the other two counts, namely, aggravated assault and battery and simple assault and battery.” The court also charged “the theory has been suggested, but it is proper that I should state to you that I am unable to discover from the testimony in this case, any substantial support of that theory, that this wound was inflicted by a glass. You have seen the wound and you can draw your own conclusions from the appearance of it, whether it was inflicted with a knife, or with a glass. ... Of course it is for you to say.” Held (1), that the jury must have understood the words “aggravated assault and battery,” as meaning the offense charged in the second count, and that therefore their use could not have harmed the prisoner, and (2) that the court’s expression of opinion on the evidence was not improper.</p> <p>Criminal law — Assault and battery — Settlement of case by licensed saloon keeper.</p> <p>2. A settlement with a prosecutor by a licensed saloon keeper in whose saloon the assault occurred is not a valid settlement authorized by the Act of March 31, 1860, sec. 9, P. L. 4 7.</p>

<p>Appeal, No. 111, Oct. T., 1908, by plaintiff, from judgment of C. P. Huntingdon Co., Feb. T., 1906, No. 3, on verdict for defendant in case of Henrietta Morrison v. D. C. Nipple.</p> <p>Trespass for a wrongful sale of plaintiff’s goods.</p> <p>Shull, P. J., specially presiding, stated the facts to be as follows:</p> <p>The facts are, that a judgment was entered in the common pleas of Mifflin county in favor of Annie W. Hayes against B. E. Morrison, J. T. Caldwell and D. C. Nipple, upon which a fi. fa. was issued. The sheriff levied upon the personal property upon the premises occupied by B. E. Morrison and advertised the same for sale. Henrietta Morrison, the wife, claimed the household goods, notice of which she gave in writing to the sheriff. No rule was entered to show cause why an issue should not be framed to determime the ownership of the goods levied upon. D. C. Nipple, one of the sureties, gave bond of indemnity to the sheriff, to save and keep him harmless against suits, actions, etc., “on account of the levy upon and selling by the direction of the said Annie W. Hayes under said writ.” The property of claimant was sold by the sheriff on July 14, 1905, D. C. Nipple became the purchaser of the entirety, and the sheriff delivered possession of the same to the purchaser. The goods remained upon the premises, which were the lands of D. C. Nipple. The defendant in the execution and his wife, who were the tenants of the premises, retained possession of the premises until July 31, 1905, when they returned the key and removed from the premises, leaving the goods.</p> <p>Verdict for plaintiff for $712.50. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned amongst others was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 179, Oct. T., 1908, by Mary Lefever et al., from decree of O. C. Lancaster Co., March Term, 1907, No. 9, dismissing exceptions to adjudication in Estate of John Lefever, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal, No. 216, Oct. T., 1908, by George M. Cosier et al., from order of Q. S. Monroe Co., dismissing exceptions to auditor’s report In the Matter of the Nomination Account of Eugene Kinney, a candidate for office.</p> <p>Exceptions to report of A. R. Brittain Esq., auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 225, Oct. T., 1907, by defendant, from judgment of C. P. Bucks Co., May T., 1906, No. 13, on verdict for plaintiff in case of Eliza C. Ambler v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s daughter. Before Stout, P. J.</p> <p>The facts appear by the opinion of the Superior Court. See also Powell v. Philadelphia & Reading Railway Company, 220 Pa. 638, which involved injuries to another person at the same time and place.</p> <p>Verdict and judgment for plaintiff for $1,195. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 15, Oct. T., 1908, by plaintiff, from decree of C. P. Chester Co., No. 482, In Equity, dismissing bill in equity in case of Philip Sharpless v. Arthur E. Willauer.</p> <p>Bill in equity for an injunction to restraining the closing of an alleged private street. Before Hemphill, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in sustaining the demurrer and dismissing the bill.</p>

<p>Contract — Parent and child — Parol contract as to land — Statute of frauds —Evidence.</p> <p>1. In an action of ejectment for a certain timber tract of thirty-two acres, it appeared that the plaintiff claimed the tract under a parol contract with his deceased father, and that the defendant, a brother of the plaintiff, claimed the tract by a deed from the father, subsequent in date to the parol contract. The plaintiff produced a number of witnesses, most of whom as members of the family, were adverse to his right, and these witnesses testified that the plaintiff about the time he graduated from a commercial college, had an offer of a position at a good salary, and that he wished to take it, but that at his father’s request, he gave it up, and went to live with his parents at his father’s farm under an agreement by which he was to have the farm and the timber tract in question as his own property, and that he was to support his father and mother during their lives. There was also proof that the plaintiff went upon the farm, took absolute control of it, including the timber tract, made valuable improvements upon the premises, including a number of new constructions, and that he had paid the taxes which, after he had taken possession, were assessed in his name. It was also shown that the father had made numerous declarations relating to the parol contract, and to the effect that his son owned the land; and there was proof that he had made a will by which he had devised all the land situate in the township in which the farm and timber tract was situated, to plaintiff. Held, that the evidence was sufficient to support a verdict and judgment in favor of the plaintiff.</p> <p>2. In such a case evidence as to the declarations of the father made in the absence of plaintiff fifteen years after the testimony established that a parol agreement had been made and executed by the entry of the plaintiff into possession of the land, and a like period after the father had executed his will in pursuance of the agreement, was properly excluded.</p>

<p>Appeal. No. 93, Oct. T., 1908, by defendants, from order of C. P. No. 2, Phila. Co., Nov. T., 1909, No. 23, making absolute rule for judgment on answer of garnishee in case of Louis Wiener to use of J. R. Pringle v. The American Insurance Company of Boston and New Hampshire Fire Insurance Company.</p> <p>Rule for judgment on answers of garnishee.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment.</p>

<p>Railroads — Carriers—Passengers—False arrest — Conductor.</p> <p>1. In an action by a passenger against a railroad company to recover damages for false arrest, there is no case for the jury where the evidence shows that a conductor of a passenger train of defendant telephoned to the dispatcher at the terminal ahead, that he had a disorderly crowd aboard, that he was informed by the dispatcher that the police would be at the terminal station, but were not to arrest anyone for anything that occurred on the train, that the police were so instructed, that the conductor when he alighted from the train at the terminal was asked by an officer to point out the crowd that had been disorderly, that the conductor did as requested, and that in consequence the plaintiff was arrested.</p> <p>2. In such a case the company is not liable because the evidence did not show that the conductor actually participated in, or caused the arrest of the plaintiff; but even if it should be conceded that the conductor caused the arrest still the company was not liable, because the conductor acted beyond the scope of his authority.</p>

<p>Appeal, No. 20, March T., 1909, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1907, No. 230, on verdict for defendant in case of Elma Jenkins v. A. O. Courtright.</p> <p>Interpleader to determine the ownership of a horse. Before Carpenter, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>The court charged, inter alia, as follows:</p> <p>[Now, as I have said before, if he (meaning the husband) owed her $500 he had a right to do this, notwithstanding he may have owed some one else at the time; but if, on the other hand, he did not owe her the $150 which she mentioned, and if that was loaned to him about the holidays of 1906, some five or six months after this judgment was confessed, then the indebtedness at that time was only about $350 and he would have no right to give her a judgment of $500, and the judgment for that reason, if you find that that is the case, would be fraudulent; and they would have no right to proceed upon it and sell this property, and the plaintiff therefore would have no right to recover.] [1]</p> <p>[The burden is upon her to show by clear and satisfactory evidence that such was the case; that she earned this money either by sewing or by taking in boarders, or both, and that she loaned it to her husband as she testifies, and if she did, as I have said, she would be entitled to a judgment against him; but, as I stated before, if it was for a larger amount than he owed her, that is, for $150 more, then she would have no right to recover.] [2]</p> <p>Defendant presented this point:</p> <p>It will be presumed the wife purchased the horses with money belonging to her husband, unless she proves it was with funds belonging entirely and separately to her, and this proof must be very clear and satisfactory, sufficient to expel all adverse presumptions and must expel all reasonable suspicion and be almost beyond a reasonable doubt, and unless she has so proved her title to the satisfaction of the jury, the verdict should be for the defendant. Answer: I will affirm that, with the suggestion that it might be a little overdrawn when it states that it should “expel all reasonable suspicion.” The burden is upon the plaintiff to show her title by clear and satisfactory evidence, but I should not quite like to say that it must be “beyond all suspicion.” [3]</p> <p>Verdict and judgment for defendant for $160. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Municipalities — Sewers—Assessment of damages — Act of May 16,1891, P.L. 75.</p> <p>Under the Act of May 16,1891, P. L. 75, the only remedy of an owner who is assessed for benefits to pay the cost of the construction of a sewer exclusively, is to file exceptions to report of viewers. He is not entitled to an appeal. If, however, he takes an appeal, and subsequently with the consent of the municipality, and by leave of court an issue is framed between himself and the city, to try the single question of whether or not the owner’s property is benefited by the construction of the sewer, the court commits no error in confining the trial of the issue to the single question specified. If in such a case the jury finds that the owner’s property was benefited three times more than the assessment levied by the viewers, and the city files a remittitur for all of the verdict above the actual cost of the construction, the owner cannot object to a judgment entered for the latter amount.</p>

<p>Appeal, No. 136, Oct. T., 1908, by-defendant, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 2,777, making absolute rule for judgment for want of a sufficient affidavit of defense in case of De Cou Brothers Company v. Samuel Englander.</p> <p>Assumpsit on a guaranty.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 68, Oct. T., 1908, by-Jacob G. Fett, Administrator d. b. n. c. t. a. of Henry F. Fett, deceased, from decree of O. C. Berks Co., Oct. T., 1907, No. 20, dismissing exceptions to adjudication in Estate of Margarette Fett, deceased.</p> <p>Exceptions to adjudication. Before Bland, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

Appeal, No. 14, Feb. T., 1909, by plaintiffs, from order of C. P. Lycoming Co., Sept. T., 1906, No. 89, sustaining defendant's appeal from taxation of costs and disallowing costs of printing plaintiffs' paper-book on appeal in case of P. Duff & Sons v. F. B. Thrall, surviving partner of F. B. Thrall & Company. Appeal from taxation of costs. The opinion of the Superior Court states the case. Error assigned was order sustaining the appeal from taxation of costs.

Appeal, No. 230, Oct. T., 1907, by plaintiffs, from judgment of C. P. Schuylkill Co., Jan. T., 1903, No. 175, on verdict for defendant in case of Commonwealth ex rel. H. J. Baker and H. P. Baker, trading as Baker Brothers, v. Edward S. Hyde.

Appeal, No. 225, Oct. T., 1908, by plaintiff, from order of C. P. Montgomery Co., Oct. T., 1908, No. 169, discharging rule for judgment for want of a sufficient affidavit of defense in case of D. F. Templeton, Jr., v. H. Calvin Williams. Rule for judgment for want of a sufficient affidavit of defense. Swartz, P. J., filed the following opinion: This is an action to recover penalties for the alleged taking of illegal fees by a justice of the peace.

Appeal, No. 72, March T., 1909, by plaintiff, from decree of C. P. Susquehanna Co., Aug. T., 1908, No. 45, dissolving preliminary… Held: “The court are of the opinion that a town having in its town house rooms which it had authority to construct as part of such building, and not having occasion to use them for the time being, is not obliged to keep them unoccupied, but may derive a revenue from them by renting them, or may allow them to be used gratuitously; such a…

<p>Appeal, No. 59, April T., 1905, by-defendant, from judgment on verdict for plaintiff in case of Catherine F. Warner v. Lehigh Valley Railroad Company.</p> <p>Motion to quash appeal.</p>

Appeal, No. 211, Oct. T., 1908, by-Ada Moore Scarlett, from decree of O. C. Chester Co., in partition proceedings in Estate of Taylor Scarlett, deceased. Petition for partition.

<p>Appeal, No. 170, Oct. T., 1908, by-Andrew Robertson et al., from order of Q. S. Schuylkill Co., dismissing petition for audit of account of Harry 0. Bechtel, candidate for Judge of Schuylkill County.</p> <p>Audit of account of Harry L. Bechtel, candidate for judge. Before Mare, P. J., and Shay, J.</p> <p>At the audit the judges permitted the accountant to file receipts omitted from the account which should, have accompanied it. (8) They also permitted the accountant to file the names of certain canvassers which had been inadvertently omitted from the account, although the sums paid to them had been set forth therein.</p> <p>The petitioners made requests as follows:</p> <p>“ (a) That the payment of $700 to J. H. Nichter as set out in the account was illegal.</p> <p>“ (b) That the payment of $200 to H. T. Bechtel as set out in the account was an illegal payment.”</p> <p>To these requests, we answer as- follows, that the account on second line reads as follows, under one column headed “date paid,” second column, “to whom paid or promised,” third column bearing the word “amount.”</p> <p>“October, 30th, 1907. J. H. Nichter, as per receipt, $700.”</p> <p>Accompanying the account is the following receipt:</p> <p>“Pottsville, Pa., October 30,1907.</p> <p>“Received of H. O. Bechtel the sum of seven hundred dollars in sums as follows: First, two hundred dollars. Second, two hundred dollars, and the third time, three hundred dollars, this money to be expended strictly in accordance with the Act of Assembly approved the 5th day of March, 1906, and especially the 4th section of said Act, for. the purpose of canvassing the ‘dissemination of information to the public’ by employing canvassers to canvass the different election districts to explain and answer any charges, assertions or statements affecting or intended to affect me as a candidate for- Judge, and to canvass among the electors or voters for the purpose of bringing or causing them to come to the polls, and to pay part of the expenses of the meetings held in my interest. And it is expressly understood and agreed that no one person shall be paid a sum exceeding in amount the sum of ten dollars.</p> <p>“J. H. Nichteb.”</p> <p>The account refers to this receipt as explanatory of the uses to be made of the money given to the party mentioned in the account. The evidence of J. H. Nichter, who was called by the petitioners, further explains the use to which the money was appropriated, showing that at different times a part of it was paid to Charles J. Carroll for salary and traveling expenses, canvassing in the interest of H. 0. Bechtel; a part to S. Hogan; a part’to P. P. Pulaski; and to other parties, who were employed as canvassers, and receipts signed by the different parties, giving dates, the amount paid at the different times and the purposes for which the money was used are given in evidence.</p> <p>The same state of facts exists as to the disbursement of $200 to H. T. Bechtel, which is the first credit set forth in the account, which gives the date, the name, the amount and says as per receipt, which receipt accompanies the account and sets forth the purposes for which the money was to be used. This receipt is further explained by H. T. Bechtel, a witness called by the petitioners. The purposes for which this money was disbursed, as set forth either in the receipts or in the evidence, cannot be claimed to be illegal; and the manner of setting forth these credits by giving the date, to whom paid, the amount paid, and the purpose as set forth in the receipts, does not stamp the payments as illegal; and we therefore decline to affirm these requests. [2, 3]</p> <p>J. H. Nichter, was asked this question:</p> <p>“Q. Did you furnish any liquor during the campaign, in the interests of H. 0. Bechtel? ”</p> <p>Mr. Reilly: Objected to.</p> <p>Mr. Schalck: We want an offer.</p> <p>Mr. Farquhar: We want to offer to show by this witness that he furnished liquors for the election, for the benefit of H. 0. Bechtel.</p> <p>Mr. Schalck: For what purpose?</p> <p>Mr. Farquhar: For the purpose of showing the incorrectness of this account as furnished by him.</p> <p>Mr. Schalek: It is objected to, that the proposed inquiry is incompetent, irrelevant and immaterial. The court is here to audit the account of the accountant here. It is on petition of these gentlemen that the accountant has been ordered for audit, and the court is simply to audit this account. There is nothing in the account of this accountant that has reference to these matters, and what Mr. Nichter did or did not do in that direction, if he did anything, is wholly immaterial, irrelevant and incompetent, for it is not alleged, and cannot be proven, that what he did was by the direction or order of the accountant, or with his knowledge or consent. An accountant or candidate is not to be affected by what his friends may do, or others may do, without his knowledge or consent; he only is responsible for that which he himself does or directs or orders to be done.</p> <p>Judge Marr: There is nothing in the offer, as I understand it, that proposes to connect the accountant with this dispensing of liquor, is there?</p> <p>Mr Farquhar: No. We have shown by the witness that this money was furnished to him in advance of his giving a receipt for it; all of it was furnished him in advance of the giving of the receipt. The act of the legislature requires that for every disbursement they shall give the date, name of the party to whom it is given, and the purpose for which it is given. He has received, he admits, $700 from H. 0. Bechtel, and has undertaken to show how he disposed of it. We may show by this witness that, having been the agent of H. 0. Bechtel, his receipts are not true; that in addition to these matters he dispensed liquor of various kinds, a valuable consideration, for and on behalf of H. O. Bechtel.</p> <p>Judge Marr: By his direction?</p> <p>Mr. Farquhar: We cannot show directly by his direction, but we can show that he has placed the money in his hands; he has made him his agent, not by any receipt given at the time he gave him the money, but after all the money is given, after the expenses have been paid, then he comes to him and tells him he has to get up his account and he wants a receipt, and then the receipt-is gotten up. May we not show what this man actually did do in the canvass which he made for H. 0. Bechtel, and what amount he gave out in money and in liquor? H. 0. Bechtel has made him his agent.</p> <p>Judge Mark: Both my colleague and myself have given the questions which we thought would arise in this case considerable thought and examination, and the different authorities upon this matter, so that when the questions would come up, we could meet them with some knowledge in reference to how these questions had been ruled by other courts, or questions of a similar character. We both feel that the objection to this question here is well taken, unless counsel first show that the acts complained of as having been committed by the witness upon the stand were done with the knowledge or consent of the candidate. It does seem to me that to hold contrary would be placing a very great hardship upon every man who is a candidate for office. It is very questionable in my mind whether the legislature, in this act of assembly which is passed and on which this controversy is now waged, ever intended to place the construction upon it as claimed by counsel who raised this question, and as there is nothing to connect the candidate, either directly or indirectly, as I look upon it, with any improper expenditure of money, we think the objection ought to be sustained. It seems to me that to sustain evidence of that kind might put a candidate in a very serious position, if some party would profess friendship for him and pretend to act in good faith as his representative, in assisting him in his canvass, and at the same time might be betraying him by committing illegal acts, and then to hold the candidate responsible for those illegal acts would be a hardship. That is one of the conclusions, it seems to me, that would necessarily follow from the line of argument which has been urged by counsel who demand the admission of this testimony. We-would prefer that a higher court should say that a- rule of this kind, or a burden of this kind, I should say, shall be placed upon a candidate, than myself or even my colleague, as I understand it. The objection is sustained.</p> <p>Petitioners except. Bill sealed. [4]</p> <p>C. W. Lutz was asked this question:</p> <p>“ Q. Did you have a conversation with Judge Koch there? A. Yes, sir.”</p> <p>Mr. Reilly: Objected to as incompetent, immaterial and irrelevant; and, further, that counsel for the petitioners have no right, under the rules of evidence, to cross-examine their own witness.</p> <p>Judge Make: The mere question is, did he meet Judge Koch? He has answered that question, and we will allow it to stand.</p> <p>Mr. Schalck: We want a purpose.</p> <p>Mr. Smith: We propose to show that the statements of the witness, previously made, are in contradiction of what he has testified to, and it is a surprise to'counsel for petitioners; and we claim the right now to show that by the further examination of the witness.</p> <p>Mr. Farquhar: We may cross-examine our witness where we allege surprise.</p> <p>Judge Maee: You have a statement on record that you are surprised at the answers of this witness. That may be true, nobody is contradicting it; but I do not think the mere fact that you are surprised would justify the introduction of testimony or conversations between him and Judge Koch at a time when the party whose account is here being contested was absent. We think we will sustain the objection.</p> <p>Mr. Smith: We propose to prove by the witness on the stand, in addition to the facts alleged in the offer already made, that he communicated to Judge Koch, on or about August 21, 1907, the fact that he had been offered by H. 0. Bechtel the sum of $175 to quit the “Frackville Star,” that was then about to publish a special political edition bearing particularly on the candidacy of H. 0. Bechtel for judge. We propose further to show that later the witness on the stand wrote to U. G. Mengel, the proprietor of that paper, that he had been bought, and that he severed his connection with the “ Frackville Star ”; to be followed by further evidence of the fact that the witness on the stand declared, at a later time than the conversation with Judge Koch, that he had been paid $175 by H. 0. Bechtel for the same purpose.</p> <p>Mr. Schalck: For what purpose?</p> <p>Mr. Smith: For the purpose of inducing him to leave the “Frackville Star.” All of which is offered for the purpose of showing the expenditure of money by H. 0. Bechtel in violation of the act of assembly, and for the purpose of showing expenditure of money by H. 0. Bechtel that is not accounted for in the account filed; and for the further purpose of refreshing the witness’s memory as to the transaction, as to the facts.</p> <p>Mr. Reilly: It is objected to as incompetent, irrelevant and immaterial. The witness having already been examined by counsel for the petitioners, and having testified in his examination in chief that he did not have any conversation with H. 0. Bechtel, the candidate for judge, whose account is now being audited, or receive from him any money during the campaign, the petitioners cannot now contradict their own witness by offering to give in evidence any declarations to the contrary, that the witness may have made out of court to another person, in the absence of or when H. 0. Bechtel, the candidate, was not present. It is further objected to, that the offer does not state or propose to prove that any moneys so alleged to have been paid as stated in the offer, were paid for the purpose of influencing either the witness or any other person, or of the election of H. 0. Bechtel as a candidate, in any way.</p> <p>Mr. Schalck: And that the alleged declarations of this witness to the parties here referred to in the question, are wholly incompetent and irrelevant, and do not prove or tend to prove what is charged against the accountant in this case.</p> <p>Objection sustained.</p> <p>Petitioners except. Bill sealed. [5]</p> <p>“Q. Since reading this letter, state whether or not it does not refresh your recollection as to the fact whether or not you received money to quit your position on the ‘Frackville Star.”’</p> <p>Mr. Reilly: Objected to, unless it is proposed to show or prove it was from the candidate; and it is further objected, that that subject has already been inquired of, and counsel for the accountant object to this constant repetition, cross-examining their own witness on the same subject. I object to a repeated examination of their own witness on the same subject-matter, and appeal to the court to limit it.</p> <p>Mr. O. P. Bechtel: We also add to the objection, that it is not proposed to show that any money was paid to influence his vote or to induce him to support this candidate, or to make any other interests for this candidate, unlawfully.</p> <p>Mr. Smith: The offer was to show money expended in the political campaign and that was required to be entered into the account, and we offered to show that the money was not entered into the account. But the question before the court now is as to the right to cross-examine our own witness.</p> <p>Question read.</p> <p>Mr. Reilly: My objection was that the question does not state it was from this candidate, and the witness has testified he has not received any money from this candidate, and it is immaterial and irrelevant whether he received any money from anybody else.</p> <p>Objection sustained.</p> <p>Petitioners except. Bill sealed. [6]</p> <p>John F. McGinty was asked this question:</p> <p>“ Q. State whether you have had any interviews with H. 0. Bechtel during the campaign? A. I did, yes. Q. State whether in pursuance of those interviews you used money and liquor in the campaign? ”</p> <p>Mr. Reilly: Objected to as incompetent, immaterial and irrelevant, that they must first prove that the money or liquors so used were used unlawfully and with knowledge and consent or by the direction of the candidate.</p> <p>Judge Marr: We sustain the objection.</p> <p>Petitioners except. Bill sealed. [7]</p> <p>The court made the following order:</p> <p>And now, July 27, 1908, it is herewith decided that the account in this case is not false in any manner, that no illegal expenses have been incurred, that the petition be dismissed and the costs of these proceedings be paid by the petitioners.</p> <p>Errors assigned were (1) the order of the court; (2, 3) refusal of petitioners’ requests; (4-7) rulings on evidence, and (8, 9) allowance of amendments.</p>

<p>Sale — Delivery of possession — Fraud.</p> <p>1. Delivery of possession is indispensable to transfer a title to chattels by the act of the owner that shall be valid against creditors.</p> <p>2. A licensed saloonkeeper occupied with his family the portion of the licensed premises not used for saloon purposes. He sold to a man who was about to marry his daughter, the household goods, the bar and bar fixtures and appliances. After the marriage the son-in-law went to live with his wife’s father, but continued in another business in which he was engaged before he was married. The father continued to conduct the saloon with his name on the window with no change in the lease or in the conduct of the saloon, or of the household affairs for two or three months. .An execution was issued on a judgment against the father, and the chattels in the licensed premises were levied upon. Subsequently the license was transferred to the son-in-law, and he took charge of the saloon. Held, that there was no such delivery of possession, as would make the alleged sale valid as against the creditors of the vendor.</p> <p>Appeals — Record—Presumption of regularity.</p> <p>3. Where error does not appear upon the record or it cannot be determined from the record whether error existed or not the appellate court will not reverse but will presume that everything was regular in the court below.</p>

'Appeal, No. 22, March T., 1909, by John L. Devlin, from order of C. P. Luzerne Co., Dec. T., 1905, No. 136, surcharging tax collector in the Matter of John L. Devlin’s Accounts. Appeal from report of township auditor on the accounts of John L. Devlin, tax collector. Ferris, J., filed the following opinion: The petition upon which this rule was granted contains the following averments: 1.

<p>Appeal, No. 27, March T., 1909, by John Luton, from order of C. P. Luzerne Co., March T., 1903, No. 186, discharging rule to open judgment in case of Mulherin and Judge v. Ann Roach and Barr.</p> <p>Rule to open judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was rule to open judgment.</p>

Appeal, No. 43, March T., 1909, by defendant, from order of C. P. Lackawanna Co., May T., 1903, No. 723, discharging rule to strike off judgment in case of City of Scranton v. Robert P. Koehler. Rule to strike off judgment. The opinion of the Superior Court and former report in 36 Pa. Superior Ct. 95, states the case. Error assigned was order discharging rule to strike off judgment.

<p>Appeal, No. 69, March T., 1909, by John Dolan, from order of Q. S. Lackawanna Co., Dec. T., 1907, No. 207, dividing election district In re Erection of Polling Place in Fell Township.</p> <p>Petition for appointment of commissioners to divide election district. Before Edwards, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order dismissing exceptions and confirming report of commissioners.</p>

Appeal, No. 216, Oct. T., 1907, b.y defendant, from judgment of C. P. Blair Co., Oct. T., 1905, No. 110, on verdict for plaintiff in case of Robert McKinley Lister, by his father and next friend, Francis O. Lister, v. Pennsylvania Telephone Company. Motion for nonsuit. The opinion of the Superior Court states the case.

Appeal, No. 18, March T., 1909, by C. Vernon Rettew, Administrator of the Estate of Florence R. Rettew, deceased, from decree of O. C. Cumberland Co., sustaining exceptions to report of auditor in Estate of Christian Long, deceased. Exceptions to report of J. M. Rhey, Esq., auditor. The facts are stated in the opinion of the Superior Court. Error assigned was decree sustaining exceptions to report of auditor.

<p>Appeal, No. 21, March T., 1909, by plaintiff, from order of Q. S. Cumberland Co., Docket No. 30, dismissing petition for appointment of viewers in case of Rebecca Jamison v. Cumberland County.</p> <p>Petition for appointment of viewers</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order dismissing petition.</p>

<p>Food, law — Adulteration—Evaporated peaches — External application of sulphur dioxide — Act of June 1, 1907, P. L. 386 — Constitutional law.</p> <p>1. The first proviso of subsection 5 of sec. 5 of the Act of June 1,1907, P. L. 386, violates sec. 6, art. Ill, of the Pennsylvania constitution relating to the amendment and extension of laws inasmuch as it attempts to introduce into the statute and make operative as a part of it an act of congress by a mere reference to its title, and also the rules and regulations that might be, from time to time, promulgated by the proper department of the federal government for the enforcement thereof. The unconstitutionality of the first proviso necessarily results in the unconstitutionality of the whole of the fifth subsection of sec. 5 of the act, because if the enacting portion of the clause were allowed to stand, persons would be drawn within the penalties provided by the statute who, the legislature declare by the terms of the proviso, should not be subject to such penalties.</p> <p>2. The unconstitutionality of subsection 5 of sec. 5 of the act of 1907, does not affect the validity and constitutionality of the other subsections of sec. 5, or of any other part of the act.</p> <p>3. A part of a statute may be unconstitutional and the remainder constitutional, and that which is constitutional will stand unless its provisions are so connected and dependent on each other in subject-matter that it must be presumed the legislature would not have enacted one without the other.</p> <p>4. Even if the enacting clause of subsection 5 of the act of 1907 were to stand, a person could not be convicted of violating, if it appears that he had complied with the provisions of sec. 8 of the act by producing a guaranty against adulteration signed by the person residing in the United States from whom the article was purchased.</p>

<p>Appeal, No. 43, Oct. T., 1908, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 4,892, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry M. Du Bois, Executor of the Last Will and Testament of Eliza L. B. Wagner, deceased, v. Harry H. Sturch.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment ffir want of a sufficient affidavit of defense.</p>

<p>Negligence — Automobiles—Fright of horse — Duty as to use of highways.</p> <p>1. For the purpose of avoiding collision and accident, all travelers on a public highway should observe due care in accommodating themselves to each other. Their rights are mutual and co-ordinate, and it is the duty of each so to exercise his right of passage as not to cause injury to another, having a like right. Each is under the obligation to exercise ordinary care, and each has the right to expect that such ordinary care will be exercised by the other, and to rely upon this in determining his own manner of using the road. The mere fact that a horse, which had previously been gentle and easily controlled, shows signs of being unruly when driven in view of an automobile, does not impose upon the owner the duty to refrain from using him on the highway with ordinary care.</p> <p>2. If the operator of an automobile knows, or by the exercise of ordinary care may know, that the movement or noise of his machine will render an animal unmanageable, he must use all the care and caution which a careful and prudent driver should exercise under the same circumstances. He has the right to assume, and to act upon the assumption, that every person whom he meets will also exercise ordinary care and caution according to the circumstances and will not negligently or recklessly expose himself to danger, but rather make an attempt to avoid it, But when an operator has had time to realize, or by exercise of a proper lookout should have realized, that a person whom he meets is in a perilous position, or in a position of disadvantage, and therefore seemingly unable to avoid the coming automobile, he must exercise increased exertion to avoid a collision, or what is equivalent, the fright of a horse induced by an automobile.</p> <p>3. In an action to recover damages for personal injuries sustained as the result of a fright of a horse by an automobile, plaintiff, who was about seventy years of age, testified that while driving on a dark evening, he met the defendant coming from the opposite direction on a public road in an automobile; that the defendant had no lights on his automobile, and that he, the plaintiff, was unable to notice its approach until it was almost on him; that he was driving a perfectly tractable and gentle horse on the proper side of the road; and when the automobile was about twenty-five steps away he recognized it, and rising in his buggy, held up his hand as a signal to the driver of the car to stop, and called out: “Hold on, wait, stranger, until I get out and hold my horse.” The machine was either slowed down or stopped in obedience to this signal, and then the plaintiff attempted to get out of his buggy, in order to go to the head of the horse; and when in this situation, the machine was suddenly started and approached the buggy with considerable noise, which caused the horse to shy and run against the fence, so that the plaintiff was thrown out over the wheel, and quite seriously injured. This testimony was contradicted by the defendant and other persons who were in the automobile. Held, that the case was for the jury, and that a verdict and .judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 16, April T., 1909, by J. Welford Holmes et al., from order of C. P. No. 1, Allegheny Co., Sept. T., 1907, No. 8-4, refusing application for Charter of Iron City Lodge No. 17, Improved Benevolent & Protective Order of Elks of the World.</p> <p>Exceptions to application for charter.</p> <p>The court filed the following opinion:</p> <p>The purposes of the proposed corporation are proper, the organization is composed of worthy citizens of this county, and the charter should be granted unless the exceptions are well taken.</p> <p>They are filed by Pittsburg Lodge No. 11, Benevolent & Protective Order of Elks, a corporation incorporated by the court of common pleas No. 2, of this county in the year 1891, the lodge itself having existed since 1878, and they are in short that the application is made with intent to produce confusion in the public mind in respect to the identity of the proposed corporation and that of the exceptant and is a fraud upon the exceptant; and, secondly, that the effect of granting the charter would be to produce confusion in the public mind in respect to identity with consequent injury to the exceptant.</p> <p>A third exception is that the application is contained upon more than one sheet of paper. With reference to this exception it is to be regretted that the practice of the courts of this county has been relaxed, and the rule laid down by Chief Justice Lowrie In re Alexander Presbyterian Church, 30 Pa. 154, would be a wholesome addition to our rules of court. The writer of this opinion endeavored to enforce that practice but found that it was not uniform and has felt obliged to content himself with recommending that it be followed. This exception is not sustained.</p> <p>The date of the organization of the order of which the applicant lodge is a part does not appear, although the lodge itself was organized in 1902. It was charged in the testimony with being an imitation, and we may safely assume that had it antedated that of the exceptant the fact would have appeared. It is a palpable imitation of the other organization not only in name but in the denomination of its officers, in the insignia and emblems of the order, and it is apparent that an effort has been made to approach as nearly as possible without transgressing the line bounding the rights of the exceptant. It is to be regretted that with nearly the whole animal kingdom to choose from the applicants did not select some name not already preempted. With the enormous growth of social and fraternal organizations the time seems to be not far distant when the roll of names will be exhausted, but it is not yet at hand.</p> <p>The distinguishing as well as the common appellation of the exceptants is “Elk.” The members are known as Elks, their clubhouse as “Elk’s Lodge.” Its members wear a small metal elk’s head, and the device B. P. O. E. is used to indicate the name of the order. It is a fraternal order, and one of its principal purposes is beneficial in the aiding of sick members and the widows and children of those deceased.</p> <p>The applicants’ organization is in these respects identical except that the device was described by counsel as having a small I. before and a small W. after the B. P. O. E., and their house is known as “Elk’s Rest.” They have, of course, a perfect right to have the same purposes, and the testimony as to the other matters is important in showing that they aid in creating the confusion which exists.</p> <p>The exceptant’s constitution confines the membership to persons of the white race. There is no such limitation in that of the applicant, and thus far all of its members are of the negro race. This fact, if known by the public, would prevent confusion as to which order a member belonged, but the ground of the objection made is not that the exceptant would lose members or business. It is that confusion will result, in fact has already resulted.</p> <p>There is no doubt that confusion has arisen. Telephone calls to the wrong house, letters delivered to the exceptant’s place intended for that of the applicant, a case of whisky, which both parties repudiate, was delivered with the bill to exceptant’s clubhouse, and a large number of colored men have sought admission to the white men’s building.</p> <p>“But even without this, the authorities have settled that the exclusive right of a corporation to its name is one that of itself carries the presumption of injury by interference and will therefore be protected:” Mitchell, C. J., in American Clay Manufacturing Company v. American Clay Mfg. Co. of N. J., 198 Pa. 189. Although that was a case of a manufacturing corporation, it recognizes the right in a name. A beneficial society in a sense does business, and while it is not likely, as already said, that it will lose members the confusion in the minds of the public leading to mistakes in charging and delivering of goods, in the delivery of letters and in other ways will indoubtedly lead to financial loss. It was settled in that case that the intention was immaterial and cases were quoted and approved which held that the use of names not in all respects identical was an infringement upon the rights of those first to use them.</p> <p>There are many cases in this state refusing incorporation under somewhat similar circumstances as this, but it is only necessary to quote a few. In First Presbyterian Church of Harrisburg, 2 Grant, 240, the application for a charter in that name was refused because the chief justice knew of the existence of The English Presbyterian Church of Harrisburg "and he thought that each would be known as the Presbyterian Church of Harrisburg, leading to confusion. While this case would probably not now be so decided, the underlying idea has governed the courts. A charter to the “Grand Lodge of the Independent Order Sons of Progress” was refused on exceptions filed by the “Grand Lodge of the Order Sons of Progress,” Judge Arnold disposing of the case in the brief sentences, “But the word ‘Independent' is simply descriptive. The true name is Sons of Progress: ” 14 W. N. C. 31. So here the word “Improved” is simply descriptive, and the names of the two organizations are practically identical. In Polish National Catholic Church of St. Francis, 31 Pa. Superior Ct. 87, and Philadelphia Lying-In Charity v. Maternity Hospital, 29 Pa. Superior Ct. 420, the Superior Court would not interfere with the discretion of the lower court but approved the refusal of the charters. In the first case the objecting corporation's name was the St. Francis Roman Catholic Church, that of the applicant the Polish National Catholic Church of St. Francis. In the other the proposed name was “The Central Maternity and Hospital for Women,” and that of the exceptant, “The Maternity Hospital.” The court said, “The similarity of the name to that of another corporation having its hospital in the vicinity was a matter eminently proper for consideration by the court to whose sound legal discretion the application was addressed.”</p> <p>“St. Francis” were the prominent distinguishing words in each of the churches, and Benevolent & Protective Order of Elks are such here.</p> <p>We have considered the able argument and briefs of counsel with care but think we have demonstrated by the decisions of our own state that our refusal of the charter is based upon sound legal discretion.</p> <p>The application is refused.</p> <p>Error assigned was decree refusing the charter.</p>

Appeal, No. 6, April T., 1909, by Sadie V. Simpson, from decree of O. C. Somerset Co., dismissing exceptions to auditor’s report in Estate of Isaac Simpson, deceased. Exceptions to auditor’s report.

<p>Appeal, No. 52, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 4,272, for defendant on case stated in suit of Charles H. Supper v. John Stauss.</p> <p>Case stated in trespass to determine the right of the plaintiff to receive and vote the republican ballot at a primary election.</p> <p>The case stated concluded as follows:</p> <p>It is agreed that if the court shall be of the opinion on the facts stated that the affidavit which the plaintiff offered to make complied with the requirement of the uniform primaries act and entitled the plaintiff to the ballot of the republican party at the primary election aforesaid, and that the defendant wrongfully refused to permit the said affidavit to be made, judgment shall be entered by the court for the plaintiff and against the defendant for damages in the sum of $1.00; otherwise judgment to be entered for the defendant.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court in an opinion by Audenried, J., entered judgment for defendant.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Insurance — Accident insurance — Warranty—Waiver—Acceptance of assessment — Principal and agent — Notice.</p> <p>1. Where an accident insurance company has full knowledge through • its agents of an alleged false warranty made by an insured in his application, and after an accident continues to collect assessments from the insured for several months, it cannot in a suit on the policy set up the alleged false warranty as a defense. In such a case the jury may find that the company had waived the condition or limitation in the policy as to which the warranty was made.</p> <p>2. Notice to an agent when it is the duty of the agent to act upon such notice, or to communicate it to his principal, in the proper discharge of his duty as agent is notice to the principal, and applies to agents of corporations, as well as to others.</p>

<p>Election law — Criminal law — Indictment—Unlawful voting — Wrongful use of tax receipt — Evidence.</p> <p>1. Where a person is indicted, and the indictment contains three counts, the first founded on the Act of July 14,1897, P. L. 261, for voting when not qualified, the second on sec. 125 of the Act of July 2,1839, P. L. 519, for fraudulently using a false tax receipt, and a third on the Act of July 15, 1897, P. L. 276, for voting on a tax receipt obtained within less than thirty days prior to the election, and there is evidence to sustain the charges contained in the first two counts, a sentence upon a verdict of guilty will be upheld by the appellate court. It is sufficient if there is one count in the indictment which will sustain the sentence.</p> <p>Appeals — Errors—Evidence.</p> <p>2. An appellant must not only establish the existence of an error in the proceedings below, but that the error of which he complains has tended to his injury, and as a general rule it is not sufficient to show that an important question either in form or substance has been put to the witness, but it must appear that an answer was received which tended to injure the case of the appellant.</p>

Appeal, No. 110, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1905, No. 3,688, refusing writ of mandamus in case of Evan G. Badger v. Aeolian Council No. 17 Junior Order of United American Mechanics et al. Petition for mandamus. By agreement the case was tried by the court without a jury under a provision of the Act of May 22, 1874, P. L. 109. The facts are stated in the opinion of the Superior Court.

<p>Constitutional law — Police power — Game laws — Act of May 31, 1907, P. L. 329.</p> <p>The Act of May 31, 1907, P. L. 329, entitled, “An Act prohibiting the use of automatic guns for the killing of game or wild birds within this Commonwealth, and prescribing a penalty for violation of its provisions,” is constitutional. It is not an unreasonable exercise of the police power by the legislature, nor does it arbitrarily interfere with private property, nor unjustly discriminate against the maker of a particular kind of gun.</p>

Appeal, No. 219, Oct. T., 1908, by plaintiff, from order of C. P. Carbon Co., Jan. T., 1906, No. 9, refusing to take off nonsuit in case of Bessie Geddes v. Lehigh Coal & Navigation Company. Assumpsit for death benefits. Before Heydt, P. J. The opinion of the Superior Court- states the case. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 127, Oct. T., 1908, by the Pennsylvania Trust Company, Administrator of Franklin H. Weaver, deceased, from decree of O. C. Berks Co., dismissing exceptions to adjudication in Estate of Franklin Weaver, deceased.</p> <p>Exceptions to adjudication. Before Bland, P. J.</p> <p>Testator directed as follows:</p> <p>■ “ 7. I give, devise and bequeath to my nephew Franklin H. Weaver the sum of $1,000 to be paid to him on his arriving at the age of (25) twenty-five years, provided he in the judgment of my executor, then is responsible and competent to be entrusted with the same otherwise this bequest shall remain in the hands of my executor in trust and the interest thereof to be paid to him annually during his lifetime and after his death the principal shall be paid to his children share and share alike.</p> <p>“12. And I hereby further charge and subject my two properties Nos. 947 and 949 Franklin Street Reading Penna. with and the payment of the balance of whatever may remain unpaid of all the cash bequests by me hereinbefore made together with my funeral expenses and expenses of setting up my estate and all my just debts and I direct and order my executor hereinafter named to so pay the same, and the residue of the properties Nos. 947 and 949 Franklin Street Reading Penna. I give devise and bequeath to my brother Ebenezer P. Weaver and to his heirs and assigns forever.”</p> <p>The nephew died at the age of fourteen. The court awarded the fund represented by the legacy to Ebenezer P. Weaver.</p> <p>On exceptions, Bland, P. J., filed the following opinion:</p> <p>In the matter of the exceptions of the Pennsylvania Trust Company, administrator of Franklin H. Weaver, deceased, to an adjudication filed September 19, 1907, distributing a fund of $1,300, charged on certain real estate by the will of said Franklin Weaver, and paid into court for distribution to the person or persons entitled thereto.</p> <p>The learned counsel for the exceptant contends, that in the opinion heretofore filed, the court did not consider the effect of the gift to the children of Franklin H. Weaver, in the contingency mentioned in the seventh paragraph of the will: ‘' provided he in the judgment of my executor, then is responsible and competent to be entrusted with the same otherwise this bequest shall remain in the hands of my executor in trust and the interest thereof to be paid to him annually during his lifetime and after his death the principal shall be paid to his children share and share alike.” His having children, is as much a fact personal to the legatee, as his attainment of the age of twenty-five years; and is, therefore, as clearly within the rule of Poulet v. Poulet, 1 Vernon, 204, as death under the prescribed age. As Franklin H. Weaver died childless, at fourteen years of age, both personal conditions failed; and as there is no gift over, there is an intestacy, if the legacy did not sink in the land devised. But the law will not hold a man who has made a will, to have died intestate, without an unavoidable necessity so to do; and if there is any rule of law upon which his will may be held to operate upon his whole estate, it will be held to do so. We have such a rule, old and firmly established; and we are bound to follow it. The rule of Poulet v. Poulet, 1 Vernon, 204, evidently exists in the state of New York; as appears by the case of Traver v. Schell, 20 N. Y. 89, where Johnson, Ch. J., said: “And in regard to legacies charged on real estate, the rule is the same, where it appears that the postponement is based upon the condition of the estate and the convenience of the party who is to pay, and not upon the situation and circumstances of the legatee.”</p> <p>[It is my opinion, that as Franklin H. Weaver died under the age of twenty-five years and without ever having had a child, the legacy of SI,000 never vested, indefeasibly, in anyone; and at his decease, sunk into the land on which it was charged.</p> <p>■ The exceptions are, accordingly, dismissed, and the distribution excepted to, is confirmed absolutely.]</p> <p>Error assigned was the decree of the court.</p>

<p>Taxation — Farm land — Mansion house — Township lines — Act of ■ July 11, 1842, P. L. 321.</p> <p>Where an owner of a farm divided by township lines, builds a new dwelling house across the township line from his old house, and removes his family to the new house, but does not divide the land in any way, and does not conduct a new business thereon, but installs a farmer in the old house, who farms the land on shares as a tenant under some control of the owner, the whole farm becomes taxable in the township in which the new house is situated.</p>

Appeal, No. 202, Oct. T., 1908, by plaintiff, from judgment of C. P. Bradford Co., May T., 1906, No. 470, on verdict for defendant in case of Singer Sewing Machine Company v. Grant R. Follett. Appeal from judgment of justice of the peace. Before Fanning, P. J. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in refusing binding instructions for plaintiff.

<p>Judgment — Opening of — Forgery—Estoppel—Evidence.</p> <p>1. If a person stands by and consents, either by words or impliedly, to his name being signed to a note and to the delivery of that note for value to one who believes the signature to be genuine, such person cannot thereafter escape liability on the ground that he did not sign the note nor give prior authority to someone to sign it for him.</p> <p>2. Where the defendant in a confessed judgment petitions the court to open the judgment on the ground that his signature to the note was a forgery, and the plaintiff in answer avers that she expected to prove at the trial that the defendant signed the note, the plaintiff is not estopped from proving at the trial that while defendant did not sign the note himself, he permitted the note to be delivered knowing that his name had been signed by another person.</p>

<p>Appeal, No. 119, Oct. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., June T. 1906, No. 5,141, on verdict for plaintiff in case of Maggie G. Murray v. The Real Estate Title Insurance & Trust Company of Philadelphia.</p> <p>Assumpsit on a check. Before Martin, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Defendant presented this point:</p> <p>10. Under the law and the evidence, the delay of the plaintiff to notify defendant of the alleged forgery was such as to discharge the defendant from liability, and your verdict should be for the defendant. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $1,076.25. Defendant appealed.</p> <p>Error assigned among others was (2) above instruction, quoting it.</p>

<p>Guardian and ward — Investing funds — Deposit in bank — Surcharge.</p> <p>1. A guardian of three wards who opens a bank account in his name as guardian, in a bank of which he is a director, and where he has his own and his firm’s accounts, such account bearing interest on balances at four per cent and subject to check without notice, cannot be surcharged with a loss by failure of the bank, because he kept $1,200 of his wards’ moneys in the bank for eight months, without otherwise investing it.</p> <p>2. In such a case the guardian is all the more excused for failing to invest, if it appears that'he did not mingle any of the trust moneys with his own, kept accurate accounts of the trust fund, was diligent in making investment of their moneys, and is not shown to have known of any investment for the fund that was lost, or to have known that the bank was insolvent.</p> <p>3. All that a court of equity requires of trustees is common skill, prudence and caution. Executors, administrators or guardians are not liable beyond what they receive, unless in case of gross negligence; when they act as others do with their own goods and in good faith, they are not liable.</p>

<p>Decedents’ estates — Claims against — Promissory note — Payment—Findings of fact.</p> <p>A finding of fact by the orphans’ court that a note of the decedent presented at the audit ten years after the date of the note, had not been paid, will not be reversed where such finding is based on competent evidence, and there is no manifest error.</p>

<p>Appeal, No. 188, Oct. T., 1908, by plaintiff, from order of Q. S. Lancaster Co., April T., 1908, No. 21, sustaining demurrer to adjudication in case of Commonwealth v. Amos R. Herr et al., the Board of School Directors of the School District of Mount Joy Township.</p> <p>Indictment against school directors for failure to enforce the Act of June 27, 1895, P. L. 395, relating to the garb of school teachers. Before Landis, P. J.</p> <p>Demurrer to indictment.</p> <p>The case turned on the constitutionality of the act of June 27, 1895.</p> <p>The court entered judgment for the defendants on the demurrer.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 31, April T., 1909, by defendants, from decree of C. P. Warren Co., March T., 1908, No. 41, on bill in equity in case of F. H. Rockwell & Company v. Warren County and C. S. Keefer, Treasurer.</p> <p>Bill in equity for an injunction. Before Lindsey, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was decree awarding injunction,</p>

<p>Criminal law — Charge—Expression of opinion by judge.</p> <p>1. It is not error for a judge in his charge to the jury to express his opinion upon the facts, if it is done fairly, and in some cases it may be his duty to do so, provided he does not give directions or interfere with the province of the jury.</p> <p>Criminal law — Larceny—Evidence—Collateral offense.</p> <p>2. Where on the trial of an indictment for larceny from the person, the evidence clearly shows that the defendant and another man robbed an old man of his watch in a saloon, evidence is properly admitted that previously in the same day the two men who were apparently strangers had acted together in crowds so that they aroused the suspicion of the police as pickpockets; but the court must carefully instruct the jury that such evidence must not be considered by them as showing an independent offense,</p>

<p>Receivers — Set-off—Contract—Affidavit of defense.</p> <p>1. A receiver can acquire no greater interest than his insolvent had in the estate; and choses in action pass to the receiver, subject to equitable right to set off existing debts at the time of his appointment.</p> <p>2. Damages arising ex contractu from any bargain, may be set off under the defalcation Act of 1705, 1 Sm. L. 57, whenever they are capable of liquidation by any known legal standard.</p>

Appeal, No. 42, March T., 1909, by defendant, from judgment of C. P. Luzerne Co., May T., 1906, No. 147, on verdict for plaintiff in case of Joshua D. Cooper v. The School District of Plymouth Borough. Assumpsit for material and labor furnished to a school building. Before Fuller, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $345. Defendant, appealed. Error assigned was in giving binding instructions for plaintiff.

<p>Res adfudicata — Quarter sessions — Equity—Municipalities—Annexation of land.</p> <p>An order of the quarter sessions by which territory is annexed to a city, unappealed from, is a final judgment and cannot be attacked in a collateral proceeding in equity.</p>

Appeal, No. 89, April T., 1909, by plaintiff, from order of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 159£, allowing alimony and counsel fees in case of Augustus Hartje v. Mary Scott Hartje. Petition for allowance to wife, respondent, for alimony, counsel fees-and expenses. Error assigned was order on the petition.

<p>Appeal, No. 15, April T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 89, on verdict for plaintiff in case of Keystone Coal & Coke Company v. Pickands-Magee Company.</p> <p>Assumpsit for balance of purchase money. Before Swearingen, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict and judgment for plaintiff for $1,481.67. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 6, March T., 1910, by defendant, from judgment of Q. S. Lackawanna Co., Dec. T., 1908, No. 213, on verdict of guilty in case of Commonwealth v. George Nowyokot. Indictment for violating election law. Before Heydt, J. The facts appear by the opinion of the Superior Court. Errors assigned were as follows: 1.

Appeal, No. 28, April T., 1909, by defendant, from judgment of C. P. Fayette Co., June T., 1907, No. 221, on verdict for plaintiff in case of A. W. Cottom v. J. W. Wiley. Assumpsit for services. Before Van Swearingen, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $1,169.58. Defendant appealed. Error assigned was in admitting the papers referred to in the opinion of the Superior Court.

Appeal, No. 169, April T., 1909, by defendant, from judgment of Q. S. Washington Co., Feb. T., 1909, No. 1, on verdict of guilty in case of Commonwealth v. George Hecirrionic. Indictment for selling liquor without a license. Before Mc-Ilvaine, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty, upon which judgment of sentence was passed.

<p>Taxation — Mercantile tax — Clubs—Sale of cigars — Restaurant—Pool room — Acts of May 2, 1899, P. L. 184, April 25, 1907, P. L. 117, and May 25, 1907, P. L. 244.</p> <p>Asocial club is not required under the Act of May 2,1899, P. L. 184, to pay a mercantile tax, as vendor of goods, wares and merchandise, be-causes it purchases cigars and distributes them among its members in the manner customary in such clubs; nor is it required to pay a tax under the Act of April 25, 1907, P. L. 117, because it carries on a restaurant; nor to pay a tax under the Act of May 25,1907, P. L. 244, as a keeper of a billiard or pool room for purposes of profit.</p>

Appeal, No. 23, Oct. T., 1908, by defendant, from order of C. P. Northumberland Co., Dec. T., 1907, No. 15, making absolute rule for judgment for want of a sufficient affidavit of defense in case of E. B. Zimmerman and Margaret J. Zimmerman,, trading as The Shamokin Wagon Works, v. The Ohio German Fire Insurance Company of Toledo, Ohio. Assumpsit on a policy of fire insurance. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 173, Oct. T., 1908, by plaintiff, from judgment of C. P. Blair Co., Oct. T., 1907, No. 179, reversing judgment of justice of the peace in case of Commonwealth v. C. M. Kephart. Appeal from summary conviction. Before Bell, P. J. The opinion of the Superior Court states the case. Error assigned was judgment reversing judgment of the justice of the peace.

Appeal, No. 54, Oct. T., 1908, by defendant, from judgment of C. P. Lehigh Co., Sept. T., 1907, No. 100, on case stated in suit of City of Allentown v. The Le-high Valley Transit Company. Case stated to determine liability of defendant to keep a street in repair. Before Heydt, P. J., specially presiding. The opinion of the Superior Court states the case. Error assigned was in entering judgment for plaintiff on case stated.

Appeal, No. 65, March T., 1909, by defendant, from order of Q. S. Lackawanna Co., Oct. T., 1908, No. 769, affirming judgment of justice of the peace in case of City of Scranton v. Charles B. Engel. Appeal from judgment of justice of the peace on a summary conviction. ' The opinion of the Superior Court states the case. Error assigned was in affirming the judgment.

Appeal, No. 19, March T., 1909, by plaintiff, from decree of C. P. York Co., Aug. T., 1908, No. 3, In Equity, dismissing bill in equity in case of Frank P. Miller Paper Company v. The York Coated Paper Company and J. Herbert Thomas et al. Bill in equity to enforce alleged liability of directors for corporate debts. Before Wanner, J. • The opinion of the Superior Court states the case. Error assigned was decree dismissing the bill.

<p>Appeal, No. 124, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 2,631, on verdict for plaintiff in case of Charles Nemcof v. The Baltimore & Ohio Railroad Company.</p> <p>Assumpsit to recover for the nondelivery of goods. Before Kinsey, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $458.50. Defendant appealed.</p> <p>Errors assigned were (1, 2) refusal of binding instructions for defendant, and (3) ruling on evidence, quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 70, Oct. T„ 1908, by defendant, from judgment of C. P. Bucks Co., April T., 1907, No. 7, on verdict-for plaintiff in case of Jonathan W. Gillam v.. Robert M. Hogue.</p> <p>Trespass to recover damages for injuries to a horse. Before ■ Stout, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. •</p> <p>Verdict and judgment for plaintiff for $245. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for de- • fendant.</p>

<p>Appeal, No. 182, Oct. T., 1908, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1908, No. 924, M. L. D., making absolute rule to strike off lien in case of Frank D. Cox, trading as C. A. Cox’s Sons, v. Samuel B. Croft, owner or reputed owner, and Peter J. Foley, contractor.</p> <p>Rule to strike off mechanic’s lien.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule to strike off mechanic's lien.</p>

Appeal, No. 22, Oct. T., 1908, by defendant, from order of C. P. Northumberland Co., Dec. T., 1907, No. 69, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Shamokin Manufacturing Company v. The Ohio German Fire Insurance Company of Toledo, Ohio. Assumpsit on a policy of fire insurance. The facts are stated in the opinion of the Superior Court.

<p>Negligence — Explosion of dynamite — Lease of plant.</p> <p>1. In an action against a corporation to recover damages for injuries sustained by an explosion of dynamite on a plant owned by the defendant, the latter alleged that at the time of the accident it had nothing to do with operating the plant, but that it was in the hands of, and was being conducted by, a lessee as an independent operator. Plaintiff offered evidence tending to show the defendant had retained a superintendent on the ground, that such superintendent had sold goods and shipped them in boxes of the defendant marked and stamped with its name; that the chief executive officer of the defendant had declared that the company was operating the plant; that the defendant under the terms of the written lease furnished all of the material used in the plant; that the alleged lessee had no right to sell the product to any other person than the defendant; and that after the explosion the defendant fixed a price of certain pipe which, had been connected with the plant, and sold it to a witness, receiving the .money therefor. Held, that it was a question for the jury to determine whether or not the defendant was in reality operating the plant at the time of the accident.</p> <p>2. In such a case where it appears that the plaintiff was a stranger to the operator, living some distance away, and in no manner connected with the business, a verdict and judgment in his favor will be sustained where there is evidence that the boxes in which the dynamite cartridges were stored were carelessly nailed, and that after being nailed they were pitched or tossed a distance of from two to five feet upon a pile; that workmen walked over the floor where dynamite was scattered wearing ordinary leather shoes with iron nails in the soles and heels, and that these conditions were actually present and observed a few minutes before the explosion; and that these methods, from the testimony of experts, were dangerous methods of handling high explosives.</p>

<p>Appeal, No. 213, Oct. T., 1908, by Lillie H. Kautz, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Annie E. Worth, deceased.</p> <p>Exceptions to report of W. S. Harris, Esq., auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Public officers — Poor laws — Directors of the poor — Compensation—Acts of April 4, 1831, P. L. 422, April 25, 1850, P. L. 569, March 31, 1876, P. L. 13, and July 2, 1895, P. L. 424 — Traveling expenses — Acts of April 6,1864, P. L. 285, and May 13,1889, P. L. 200.</p> <p>1. “The Directors of the Poor and of the House of Employment for the County of Schuylkill,” created by the Act of April 4,1831, P. L. 422, are not county officers and their compensation is not affected nor changed by the Act of July 2, 1895, P. L. 424, which fixes the salaries of county directors of the poor in counties containing over 150,000 inhabitants.</p> <p>2. Section 17 of the Act of April 25,1850, P. L. 569, which repealed so much of sec. 3 of the act of April 4, 1831, as authorized the directors to appoint a treasurer, did not in any way affect the distinct and separate corporate existence of “The Directors of the Poor and of the House of Employment for the County of Schuylkill,” or change the nature of that office.</p> <p>3. The directors of the poor and of the house of employment for the county of Schuylkill, are entitled each to receive a compensation of $2.00 a day for each day necessarily spent in the performance of the duties of his office, and $20.00 a year to defray the expenses of his necessary attendance upon the duties of his office.</p> <p>4. The Act of May 13, 1889, P. L. 200, does not apply to a poor director compensated as are the poor directors of Schuylkill county under a local law, even though his per diem compensation may in some years amount in the aggregate to $150.</p> <p>5. The right of poor directors to an allowance for traveling expenses cannot rest upon usage or custom.</p>

<p>Appeal, No. 63, Oct. T., 1908, by plaintiff, from order of C. P. Schuylkill Co., May T., 1900, No. 294, modifying an order of subrogation in case of Commonwealth ex rel. Schuylkill County, to use of Ellen Buckley, v. Thomas Horan et al.</p> <p>Rule to modify order of subrogation.</p> <p>In addition to the facts stated in the opinion of the Superior Court the following orders of the court below appeared in the record:</p> <p>“ And now, September 16, 1907, the foregoing petition, affidavit and certificate being read in open court, on motion of Edward J. Maginnis, attorney for Ellen A. Buckley, it is ordered and directed that damages be assessed on the bond and judgment entered to No. 421, May Term, 1900, revived to No. 265, May Term, 1905, and No. 280, July Term, 1906, in the sum of $608.71, with interest thereon from November 1, 1905, in the name of the Commonwealth of Pennsylvania ex rel. the County of Schuylkill, and that the said Ellen A. Buckley be subrogated on the record to the rights of the county of Schuylkill in the said bond and liquidated judgment without prejudice to the rights or equities of the other sureties or terretenants. By the Court,” by making the following decree (entered to No. 421, May Term, 1900):</p> <p>"And now, September 23, 1907, on motion of M. A. Kilker ' and George M. Roads, attorneys for the school district of the borough of Girardville, the court hereby grants a rule upon Ellen A. Buckley, the petitioner in a certain petition dated September 14, 1907, and filed of record in said case on September 16, 1907, to show cause why the order of this court dated September 16, 1907, ordering and directing that damages be assessed on the bond and judgment entered to No. 421, May Term, 1900, revived to No. 265, May Term, 1905, and No. 280, July Term, 1906, in the sum of § 608.70, and that the said Ellen A. Buckley be subrogated on the record to the rights of the county of Schuylkill in said bond and liquidated judgment without prejudice to the rights and equities of the. other sureties or terre-tenants, should not be modified by striking out from the said order the judgment of the school district of the borough of Girardville against Thomas Horan et al., and numbered respectively 265, May Term, 1905, and 280, July Term, 1906.</p> <p>“ Returnable, Monday, September 30, 1907. By the Court.</p> <p>“ October 15, 1907. Exceptions to rule granted September 23, 1907, filed.</p> <p>“ And now, September 30,1907, it is directed that the within exceptions be filed. By the Court.</p> <p>“ Now, October 28,1907, reserving the right to file a written opinion if it becomes necessary the rule is made absolute and the order of subrogation is modified as prayed for in said rule.”</p> <p>Error assigned was the order of the court modifying the order of subrogation.</p>

<p>Landlord and tenant — Parol lease — Yearly lease — Monthly lease — Conflicting evidence.</p> <p>1. In a proceeding to recover possession of leased premises under the Act of December 14,1863, P. L. (1864) 1125, where thirty days’ notice only was given by the landlord, it is incumbent upon the latter to bring himself within the provisions of the Act of March 31, 1905, P. L. 87, by showing that the lease under which the tenant held was for “ a time less than one year, or by the month, or for an indeterminable time. ”</p> <p>2. In such a case where it appears that there was no written lease, but merely a parol one, and the evidence is contradictory as to whether the tenant entered under an agreement for a yearly lease, or for a monthly lease, the question of the terms of the lease as agreed upon by the parties, is for the jury under the proper instructions of the court.</p> <p>3. In determining whether the tenant entered into an agreement for a yearly lease, the fact that she assented to an increase of rent during the first year is pertinent as tending to sustain the landlord’s contention that the tenant entered and was then holding as a tenant by the month, but it does not in and of itself change the nature of the tenancy.</p> <p>4. A tenancy at will may become a tenancy from year to year if it appears that the tenant without objection by the landlord makes a number of valuable improvements on the premises for business purposes, remains in possession for more than three years, pays the stipulated rent, and when an increase is demanded, pays it, and the landlord accepts it without notice to remove or other action indicating an intention to hold the tenant as strictly a tenant at will.</p>

<p>Appeal, No. 208, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 3,680, in case of Robert W. Ramsden v. Simplex Foundation Company.</p> <p>Appeal from judgment of justice of the peace. Before Ferguson, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>At the trial defendant made the following offer: •</p> <p>I offer to prove by this witness that at the time the lease was signed the plaintiff represented to him that he knew of his own knowledge and was sure that a ground siding could be put in the property; that he would see that such a siding was put in; that the siding connecting this property with the adjoining property was under his control; that he would see that that siding was lowered two feet or a greater distance, if necessary, in order that this siding might be put in; that he at that time knew that those facts could not be sustained; that on the faith of those representations this witness signed the agreement, »after saying that he had no knowledge himself about the siding and that if the plaintiff was sure that it could be done, that he would sign the lease.</p> <p>Objected to as contradicting a written instrument. Objection overruled. Exception for plaintiff. [1]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was (1) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 12, March T., 1908, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1905, No. 102, on verdict for plaintiff in case of Helen Gordon Clunn v. Williamsport & North Branch Railroad Company, Lessee of Eaglesmere Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Hart, P. J.</p> <p>■ At the trial plaintiff presented these points:</p> <p>1. That the defendant company is bound to keep its stations and premises in proper and safe condition at all times for the use of the patrons of its road; and, generally, that defendant company is bound, as to its passengers or persons upon its premises by invitation, to see to it that its premises are in such condition in all respects that a person, in the exercise of ordinary care, can leave the premises without injury. Answer: This point is affirmed. [2],</p> <p>2. That if the jury find from the evidence in this case that the plaintiff, Helen G. Clunn, was on September 5, 1905, a passenger on defendant’s railroad, and alighted at defendant’s station, at Eaglesmere, and that whilst making a way along the station platform, without any negligence on her part, suffered personal injury in consequence of falling over a portable step or stool, negligently placed or left on said platform by the defendant company, then, the plaintiff is entitled to recovery for such injury. Answer: This point is affirmed. [3]</p> <p>Errors assigned were (1, 2) above instructions, quoting them and (3) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 11, Feb. T., 1909, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1907, No. 276, on verdict for plaintiff in case of Joseph Miller v. Montgomery Borough.</p> <p>Trespass to recover damages for injuries sustained by a fall on a defective sidewalk. Before Hart, P. J.</p> <p>At the trial defendant presented these points:</p> <p>4. If the jury find from the evidence that plaintiff knew of the defect in the sidewalk, and that he could have avoided it by walking in the street, or around the square, and that he voluntarily chose to take the risk of walking on the sidewalk in its defective condition, he was guilty of contributory negligence, and your verdict should be for the defendant. Answer: Affirmed, if you find that an ordinarily prudent person would have taken a different route to his destination than that taken by the plaintiff, under the circumstances. [1]</p> <p>9. Plaintiff having testified that he considered the sidewalk, at the place of the accident, dangerous; and that he could have safely passed it by walking in the street, which was safe but muddy, but that he took the risk, he was.guilty of contributory negligence and your verdict should be for the defendant. Answer: This point is refused, and we say to you that if you find that an ordinary prudent man would have done so under the circumstances, then, of course, it was the duty of this plaintiff to have avoided this place at that time; and if you find that an ordinary prudent person would have so done and that the plaintiff did not, then, of course, he would have been guilty of contributory negligence and could not have recovered in this case. [2]</p> <p>10. That under all the evidence in this case your verdict should be for defendant. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Practice, C. P. — Nonsuit—Evidence—Striking out evidence.</p> <p>1. Where the trial court strikes out a large part of the evidence, and then enters a nonsuit, the appellate court in reviewing the case will consider the evidence as if it had not been stricken off.</p> <p>Waters — Road law — Supervisors—Culverts—Natural water course— Negligence — Sewers.</p> <p>2. An action will lie against private and municipal corporations and natural persons to recover damages resulting from a negligent or intentional obstruction of a natural stream of water flowing within its own banks.</p> <p>3. Where township supervisors obstruct a natural live stream of water which flows across a highway, so that ordinary floods damage an abutting owner’s property as a result of sueh obstruction, without fault of the owner, the latter is entitled to recover damages for the injuries to his land in an action of trespass, based on the negligence of the supervisors.</p> <p>4. Th,e rule that no damage can be recovered from a municipality for injuries resulting from a failure of judgment on the part of the officers of the municipality in constructing a sewer to carry off surface water, does not apply to the construction of the culvert or drain to carry a highway over a natural live stream of water.</p>

<p>Judgment — Opening judgment — Petition—Demurrer—Fraud.</p> <p>1. A petition to open a judgment is not demurrable if it alleges failure of consideration, the age, infirmity, and weak-mindedness of the maker, that the maker did not understand the force of it, and that the note was a fraud upon the maker, although the petition does not set forth specific facts showing actual fraud.</p> <p>2. An order making absolute a rule to open a judgment will not be reversed, where the opinion of the court below shows such consideration and balancing of the testimony as to raise in the mind of the judge a clear conviction of the importance, if not necessity, of submitting the disputed question involved to a jury; and this is the case although on a subsequent trial of the cause the judge is convinced that the allegation of fraud is not sustained and withholds the consideration of it from the jury.</p> <p>Judgment — Opening judgment — Mental weakness — Issue—Consideration — Seal.</p> <p>3. On the trial of an issue to determine the validity of a judgment entered upon a note under seal, where the defense is the mental incapacity of the maker and failure of consideration, evidence of the defendant's lack of memory at the time the note was made, her failure to understand business propositions which were propounded to her and other things of like character and particularly her condition after a stroke, is for the jury.</p> <p>4. In such a ease the burden is cast upon the representative of the defendant, the maker, to show that the decedent was so weak-minded, arising from her bodily infirmities, that she was unable to understand the effect of the signing of the note, upon which the judgment was entered, and it is incumbent upon the defense to show that her lack of understanding depended entirely upon her weak-mindedness.</p> <p>5. In an action upon a bond or note under seal, want of consideration is no defense.</p> <p>6. On the trial of an issue to determine the validity of a judgment entered upon a judgment note under seal, where the issue as originally framed involved questions of fraud, undue influence, failure of consideration, and mental incapacity of the maker, and the court and jury eliminate the questions of fraud and undue influence, and the seal eliminates the question as to consideration, the court must confine the consideration of the jury to the question of mental incapacity of the maker arising from her bodily infirmities, and whether her lack of understanding depended entirely upon such mental incapacity.</p> <p>7. In such a case it is reversible error for the court to use such language that the jury might infer that, notwithstanding the seal, they could find for the defendant, if nothing passed in the way of actual consideration at the time of the execution of the note,</p>

<p>Railroads — Real estate — Adverse possession — Title.</p> <p>1. Title to land purchased by a railroad company for railroad purposes, adjoining its right of wa3q but not actuary occupied by its tracks, may be acquired by twenty-one years’ adverse possession; and it is immaterial that the company may have intended to lay tracks on such land, if in fact such intention was never carried into practical effect.</p> <p>2. The purchaser from a trespasser may tack the latter's adverse possession to his own so as to give title by the statute of limitations.</p>

<p>Appeal, No. 85, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1903, No. 2,352, on verdict for plaintiffs in case of Leopold Spitzel et al., trading as Sanford Spitzel, Copartners, trading as Leopold Spitzel & Bros.</p> <p>Assumpsit against the indorser of a promissory note. Before Moschzisker, J.</p> <p>Verdict and judgment for plaintiffs for $906.58. Defendant appealed.</p> <p>■ Errors assigned were the instructions quoted in the opinion of the Superior Court.</p>

Appeal, No. 156, Oct. T., 1908, by defendant, from decree of C. P. Lehigh Co., Jan. T., 1907, No. 1, on bill in equity in case of Lewis L. Schuler v. Peter A. Schuler. Bill in equity for an injunction. Trexler, P. J., filed the following opinion: Lewis L. Schuler and his brother, Peter A. Schuler, are the owners of adjoining lands in Lower Milford township, Lehigh county.

<p>Actions — Joint and several liability — Beneficial associations.</p> <p>1. Whenever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of joinder are not necessary for-the purpose, but, on the other hand, there should be words of severance in order to produce a several responsibility or a several right. Whether the liability incurred is joint or several, or such that it is either joint or several at the election of the other controlling party, depends upon the terms of the contract, if they are express.</p> <p>2. Where three officers of a beneficial society make out a check to their own individual order for death benefits due the wife of a deceased member, and all three indorse it, and two collect the proceeds and never pay them to the beneficiary, the third indorser is liable for the amount of the check to the beneficiary.</p>

Appeal, No. 20, March T., 1909, by-defendant, from order of C. P. York Co., Oct. T., 1908, No. 29, discharging rule to open judgment in case of Charles W. Hershey v. S. L. Johns. Rule to open judgment.. The opinion of the Superior Court states the case. Error assigned was order discharging rule to open judgment.

Appeal, No. 250, Oct. T., 1908,.by defendant, from judgment of Q. S. Phila. Co., Feb. T., 1908, No. 288, on verdict of guilty in case of Commonwealth v. Horace H. Missimer et al. Indictment for conspiracy. Before Wiltbank, J. The facts are stated in the opinion of the Superior Court. See Commonwealth v. Donnelly, 40 Pa. Superior Ct. 116. ’ Verdict of guilty, upon which judgment of sentence was passed.

Appeal, No. 166, May T., 1909, by defendant, from order of C. P. Jefferson Co., making absolute rule for judgment for want of a sufficient affidavit of defense in case of Punxsutawney Borough v. Edward A. Carmalt. . Assumpsit for cost of curbing. Before Reed, P. J. The opinion of the Superior Court states the case. Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Divorce — Indignities to person — Evidence.</p> <p>A wife will be granted a divorce on account of indignities to her person rendering her condition intolerable and her life burdensome where the uncontradicted evidence establishes that she was knocked down several times by her husband, and choked and kicked in the stomach; pinched until marks were left upon her body, called vile, indecent and vulgar names, charged with being a whore' and with running after other men, locked out of the house, deprived of fuel and other necessaries, turned out of her room without a home or shelter, and the woman with whom she roomed notified that he would pay no more rent, thus depriving her of a place to live, a shelter or a home. •</p>