Volume 4 — Pennsylvania Superior Court Reports

<p>Criminal law — Banks and banking — Receipt of deposits when insolvent.</p> <p>The three essential elements which the commonwealth must prove beyond a reasonable doubt before the jury can find a defendant banker guilty of receiving deposits when insolvent are: 1. Actual insolvency at the time the money was received; 2. Knowledge of insolvency; 3. Receipt of money as a bank deposit. Sufficient proof of these essentials warrants the submission of the question of the defendant's guilt to the jury.</p> <p>Grand jury — Special or adjourned session — Power of court to call.</p> <p>Under the Act of March 18, 1875, R. L. 28, the Quarter Sessions has authority to make an order requiring the grand jury for the August term to meet prior to the first day of that term ; and the fact that the meeting of the grand jury was coincident with a special or adjourned session did not invalidate the order nor convert such special or adjourned session into a regular term; the omission to publish the order in two newspapers thirty days prior to the meeting of the grand jury was not, standing alone, legal ground for quashing an indictment found by the grand jury at such meeting; and even if such publication was necessary to.give validity to the acts of the grand jury, it is to be presumed on appeal, in the absence of affirmative record evidence to the contrary, that the order was duly published, upon the principle, omnia prsesumuntur rite esse acta.</p> <p>Evidence — Embezzlement—Assignee's inventory as evidence of insolvency.</p> <p>The inventory of the assignee of an insolvent banker made within thirty days of the date of the assignment which was made one week after the deposit is admissible in evidence on the trial of the assignor, a banker, who had been indicted for receiving money on deposit as a banker, when insolvent, knowing himself to be so.</p> <p>Such inventory is not conclusive, but it is a necessary step in the proceedings and tends to show the assets in the hands of the assignee for the paj'ment of debts.</p> <p>Evidence — Limitations on re-examination of witness — Discretion of court.</p> <p>The extent to which a party will be permitted to re-examine his own witnesses is a matter largely within the discretion of the trial judge. While the see-sawing method of examination, is not to be approved of, in the absence of gross irregularity, or.abuse of discretion by the trial judge, the appellate court will not review.</p> <p>Evidence — Value of land adjoining — Time of comparison.</p> <p>Where the point in question is the value of land in 1893, evidence was properly rejected as to the sales of adjoining lands between 1880 and 1890, it was too remote in time to furnish a standard by which to measure the value of the land sold in 1893.</p>

<p>Appeal, No. 90, Nov. T., 1896, by defendant, from judgment and sentence of Q. S. Lancaster Co., June Sess., 1895, No. 30, on verdict of guilty.</p>

<p>Poor law — Husband and wife — Wife's settlement — Desertion of wife.</p> <p>A wife’s settlement follows that of her husband’s. If, therefore, a husband moves from one poor district to ¡mother, where he acquires a legal settlement, an allegation, even if proved, that the wife who remained behind was deserted by the husband, does not suffice to give the wife a settlement in the district of her residence, being the one from which the husband had moved.</p> <p>Poor law — Settlement—Laches of poor district.</p> <p>Where a.n insane married woman becomes a public charge on a poor district and the poor district neglects for two years to make inquiry as to the husband, who was liable to provide for his insane wife, such district is guilty of laches which cannot be visited upon the district where the husband, who had died in the meantime, had acquired a settlement.</p>

Appeal, No. 42, Jan. T., 1897, by defendant, from judgment of C. P. Wyoming Co., Jan. T., 1894, No. 84, on verdict for plaintiff. Ejectment. Before Dunham, P. J. The plaintiff claimed title to the land in question by virtue of purchase by him at a sheriff’s sale thereof on November 11, 1893, by writ of levari facias issued on a judgment for $342.12, taken and entered January 17, 1891, in proceedings of scire facias sur mortgage.

<p>Husband and wife — Tenancy per my et per tout — Estoppel.</p> <p>Where husband and wife are seized of laud per my et per tout the wife is not estopped by reason of an alleged arrangement made by the husband to induce a purchase of the property at a sheriff’s sale on a judgment which was not a lien against the property, there being no evidence of her presence at the interview or of any knowledge of it by her, or of any authority by her given to her husband to act for her in the premises.</p> <p>Ejectment — When adverse title may be set up by alleged ter re-tenants.</p> <p>A judgment on a scire facias quare executionem non against one whose interest in the land was not bound by the lien of the judgment, although summoned as a terre-tenant will not preclude such party from setting up his adverse title in an ejectment brought by the sheriff’s vendee.</p>

<p>Appeal, No. 19, Nov. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1894, No. 82, on verdict for defendant.</p> <p>Appeal from judgment of justice in favor of the plaintiff 1233.74. Before'Livingston, P. J.</p> <p>This suit was upon a promissory note, given by Mrs. E: E. Sprenger, a widow, to George Kircher. Upon the trial of the case, the plaintiff offered the note in evidence and rested. The defense was that the note was given to lift a note of George F. Sprenger, deceased, the late husband of the defendant, and she was not responsible, as he died without leaving any estate.The plaintiff then offered to show, that Mrs. E. E. Sprenger, defendant, as administratrix of the estate of said George F. Sprenger, deceased, had given a large bond, and that said decedent had left personal property. The defense proved he had left no estate by the oral testimony of defendant herself. The plaintiff was called.to show decedent had an estate at the time of his decease, which evidence the court below refused to credit. The court below refused to leave the evidence and credibility, of the witness to the jury, but gave binding instructions to the jury, to render a verdict for defendant.</p> <p>The court directed a verdict for defendant, charging inter alia as follows:</p> <p>So that there is no evidence here at all that any estate was. left by George E. Sprenger. The fact of taking out letters of administration don’t show there was any estate; no inventory was filed, nothing done. They produce no account; they do not produce any witness who shows there was any estate. She tells you that the horses this man, Kircher, speaks of, she mortgaged her own property for the payment of them; they were hers, and she used them in her own business which she has now sold out. [3]</p> <p>Verdict for defendant. Plaintiff appealed.</p> <p>Error assigned, inter alia, was (3) to portion of the judge’s charge, reciting same.</p>

<p>Partnership ownership of real estate — Tenancy in common.</p> <p>Real estate, purchased and used as partnership property, does not constitute the owners tenants in common; after the active prosecution of the business is discontinued, the partnership affairs not having been finally settled, it remains a partnership asset, in the absence of proof of conversion by settlement of the partnership affairs, or otherwise.</p> <p>Partnership — Lease of real estate — Authority to lease.</p> <p>One partner, having been expressly authorized to effect a proposed advantageous lease, of partnership real estate which was partly occupied, to the knowledge of both parties, by a tenant under an unexpired lease, will be held to have authority to buy out the unexpired term and to deduct the sum so paid from the rent collected, provided the sum so paid is reasonable.</p> <p>Practice, Superior Court — Defective assignment.</p> <p>An assignment which designates error in the answer to a point is defective under Rule XYI. and will not be considered where it not only fails to set out the point totidem verbis and as required, but does not even set out the same in substance.</p>

<p>Appeal, No. 18, Nov. T., 1896, by William S. Stevenson, et al., from decree of O. C., Phila. Co., Oct. T., 1887, No. 480, granting leave to mortgage under the Price Act.</p> <p>Petition for leave to mortgage under Price Act. Before Ashman, J.</p> <p>William Stevenson died in 1887 leaving by will real estate in trust for certain life estates with remainder over.</p> <p>The life tenants applied for leave to mortgage under the Price Act. It appears from the evidence taken in support of the petition that the house for a long time rented for $25.00 per month and had been permitted to fall into bad repair; that the character of the neighborhood was changing, and-that an alteration from a dwelling house to a store would advantage the life tenant. That some of the money borrowed was needed to make good the neglect of years in keeping up the property. The remaindermen objected to the allowance of mortgage.</p> <p>Other facts appear in the opinion of the Superior Court.</p> <p>The court below granted the prayer of the petition in an opinion by Ashman, J., reported in 5 Dist. Rep., 5.</p> <p>Error assigned was to the decree of the court below in granting the prayer of the petition.</p>

<p>Contract of suretyship — Fraud—Failure to disclose material conditions.</p> <p>The concealment of a material fact will vitiate a contract of suretyship. When a contract of suretyship is entered into the surety is entitled to know all the material facts concerning it, and if the person for whose benefit the suretyship is contracted conceals any material fact of importance in the determination of the surety to undertake the contract such concealment is a fraud upon the surety and will vitiate the contract.</p>

<p>Appeal, No. 97, Nov. T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 176, on verdict for plaintiff.</p> <p>Trespass for injuries resulting from the depletion of the waters of the Schuylkill and delaying plaintiff’s canal boat. Before Thayer, P. J.</p> <p>The facts sufficiently appear in the opinions of the Superior Court and the court below.</p> <p>The defendant submitted the following points:</p> <p>‘■1. The jury must find for the defendant in this case.” Anstver: Refused. [2]</p> <p>2. Unless the jury find that the plaintiff has suffered loss or damage differing in kind from that which other members of the navigating public in general, whose boats have been traveling or who may have desired to use their boats on the canal at the same periods when he was detained, suffered from the low condition of water in the Fairmount pool, they must find for the defendant. Answer: Refused. [3]</p> <p>3. It was the duty of the Philadelphia & Reading Railroad Company which exercised the franchise of the Schuylkill Navigation Company, not to detain water in the upper pools of its system to an extent inconsistent with the natural and reasonable flow of the stream. If the jury find that the interruption to navigation was the result of an improper detention of the water, and would not have resulted at all if the company had permitted a proper flow down to Fairmount pool, the city should not be held liable for the detentions. Answer: Refused. [4]</p> <p>4. Unless the jury find from the evidence that the quantity of water pumped by the city from the Fairmount pool for other uses than domestic uses occasioned the detentions complained of, they must find for the defendants. Answer: Refused. [5]</p> <p>5. Domestic uses are the necessary uses connected with the ordinary conduct of life in modern times. Uses of this character are domestic uses even if they are conducted in a wholesale manner for the advantage of many inhabitants of the city. Answer: Refused. [6]</p> <p>6. The jury must consider whether the city, by a greater use of the water than it is entitled to make at times when such use might involve obstruction to navigation, diminished the volume of water in the channel below the level to which the navigating public were entitled. If the city did not draw down the water below the level established by the Navigation Company, but only drew off a part of the additional accumulation which the city itself occasioned by raising the dam to hold water for the supply of the inhabitants, no damages can be awarded. Answer: Refused. [7]</p> <p>7. No allowance can be made because of the detention of other boats than plaintiff’s, unless the testimony'fairly traces such detentions as the cause of delay to plaintiff’s boat. Answer : The detention of other boats has nothing whatever to do with the case, except in considering the question whether the detention of the other boats caused the plaintiff’s detention, and whether the detention in both cases was caused by any unlawful use of the water made by the city. If the jury find a verdict for the plaintiff, the damages are, therefore, to be strictly confined to the losses directly suffered by the. plaintiff in consequence of the act of the city. [8]</p> <p>The charge of the court,, by Thayer, P. J., was as follows:</p> <p>This is a very small case when considered in respect to the amount in controversy, which is only about $100. The plaintiff’s claim, I believe, is for the detention of his boat for eight days, which is made up of several items. He claims $8.00 a day for the detention of his boat, and $1.00 a day for feeding his mules, and $3.00 a day for the maintenance of three boatmen during these eight days of detention, which would amount altogether to $12.00 a da}>- fop eight days, which would make $96.00. That is about the extent of the plaintiff’s claim, be}mnd which you would hardly go in allowing damages in this case. So that you see it is a very small case as regards the amount involved, but, in its principles, it is a great case, and one which has in former times engaged the attention and skill of some of the most able lawyers in this city. Two cases similar in all their essential features to this were tried and argued fully, about twenty-five years ago, in the district court of this city and determined there, and after being tried, argued and determined there, were both taken to the Supreme Court of Pennsylvania, and affirmed, the principles upon which this whole controversy turns and upon which this case is now to be decided being then solemnly and finally adjudicated by the Supreme Court of Pennsylvania, and being then so clearly announced that is impossible to mistake them; so that all we have to do in this case is to take for our chart the decision of the Supreme Court of Pennsylvania in those two cases, which, in all their essential features, were exactly like this case, and apply the principles of law which that court laid down to this case. The two cases to which I refer are Phila. v. Collins, 68 Pa. 106, and Phila. v. Gilmartin, 71 Pa. 140. Adjudications of the Supreme .Court are the law of the commonwealth, as much so as any act of assembly. There is no higher law in the commonwealth than the adjudications of the court of last resort of this state. Of course, everybody is bound by them, and we are bound to apply the law which was laid down by that court to all cases in which the law so laid down is applicable. That is our simple duty in this case. Therefore this renders it necessary for me to do little in this case except to distinctly define to you what was decided by the Supreme Court of Pennsylvania in this class of cases, and to ask you to apply in good faith the law laid down by the highest tribunal of the state to the facts which are before you in the present case.</p> <p>The decisions to which I have referred may be reduced to three general propositions which were decided upon solemn argument by the court. The first is that the city of Philadelphia has the right by law and under the several acts of assembly and agreements, which are in evidence in this case, to take any amount of water from the river Schuylkill for drinking and other domestic uses. This use of water by the citizens for domestic purposes cannot be restrained or impaired by legislation, by grant, or by actions for damages, for the right to this use of the water is derived from the law of nature and founded upon the law of paramount necessity. That is the first proposition determined by the Supreme Court, to wit, that the city of Philadelphia can use the water of the Schuylkill river to any extent for strictly domestic purposes without being answerable to anybody for so doing.</p> <p>[The distinction between manufacturing purposes and domestic purposes is a very clear one indeed, and nothing can be plainer than the fact that manufacturing uses do not become domestic uses because the product of the manufacture is used for domestic purposes. That' is, a manufacturing use — for instance, the manufacture of beer — does not become a domestic use of the water because the beer when made is drunk by the citizens of Philadelphia. Such a use is a manufacturing use, and not a domestic use. A domestic use means that use of the water which is made by the citizens in the ordinary conduct and for the ordinary purposes of domestic life. Although the product of manufacturing establishments might be used for domestic purposes, they are, nevertheless, uses for manufacture and not uses for domestic purposes. I am bound to say, therefore, that I regard the argument made by the city’s counsel upon that point as altogether fallacious and unsound.] [9]</p> <p>The second proposition decided by the Supreme Court was this: Outside of the right of the city to use the water for drinking and domestic purposes, the rights of the public for navigation are superior to those of the city under the acts of assembly and her contracts with the Schuylkill Navigation Company. I will repeat: outside of and beyond this right of the city to use the water for drinking and domestic purposes, the rights of the public for the navigation of the stream are superior to those of the city under the acts of assembly and her contracts with the Schuylkill Navigation Company. That is to say, in other words, that the city has no right to destroy or impair the navigation by any use of the water which is not for drinking and domestic purposes, and if they do that, they are responsible to those whom they injure. That is the second point decided by the Supreme Court of Pennsylvania.</p> <p>[The third proposition decided by the Supreme Court was this: The right of the city to draw water from the river for manufacturing purposes is subordinate to the right of navigation, that is, lower, and if by such use of the water she reduces the volume of the stream to such an extent as to obstruct and delay or stop the navigation of the river by boats of the usual draught which have been accustomed to navigate the stream, the city is responsible in damages to the extent of the actual, immediate, and direct loss suffered in consequence, by the owners of boafe who have been injured in this manner by the act of the city.] [10]</p> <p>These three propositions of law, which I have taken some pains to impress upon you as clearly as I can, which were determined. by the Supreme Court of Pennsylvania in the two cases to which I have referred, contain all the rules of law which are necessary for the proper determination of this case. It is altogether unnecessary, therefore, for me to make any further answer to the points presented by the ingenious counsel for the defendant, for the whole law upon the subject applicable to the case is contained in these clear propositions of law laid down by the Supreme Court.</p> <p>I decline, therefore, to add anything further to these instructions, except to say in answer to the defendant’s seventh point, that the detention of other boats has- nothing whatever to do with the case, except in considering the question whether the detention of the other boats caused the plaintiff’s detention, and whether the detention in both cases was caused by any unlawful use of the water made by the city. If the jury find a verdict for the plaintiff, the damages are, therefore, to be strictly confined to the losses directly suffered by the plaintiff in consequence of the act of the city.</p> <p>The plaintiff’s counsel now states that his claim is for twelve days’ detention instead of eight. If there were really twelve days’ detention, and you should find a verdict for the plaintiff, of course you would allow for the twelve days. You will say how the fact is upon the evidence.</p> <p>Verdict and judgment for plaintiff for $72.00. Defendant appealed.</p> <p>Errors assigned were (1) in overruling defendant’s offer to prove “ that no time when the ■ depletion affected navigation by Martin Gallagher, or his boat, had the city drawn the water down to a level as low as that established by the navigation company, that is, the greatest height to which the navigation company raised the dam,” for which refusal he granted an exception; (2-8) refusal of defendant’s points, reciting same; (9-10) portions of the general charge, reciting same.</p>

<p>Jurisdiction, equity — Restraint of trespass.</p> <p>Under the Act of June 16, 1836, P. L. 784, the court has undoubted power to restrain the commission of trespasses where the remedy at law will be inadequate. If the trespass is fugitive and temporary then adequate compensation can be obtained by action at law. and there is no ground to justify the interposition of a court of equity. If, on the other hand, trespasses are constantly recurring and threatening to continue, or if the threatened trespass contemplates a permanent occupation and use of the plaintiff’s property, the rule is different and the jurisdiction is sustained.</p> <p>Practice, equity — Pleading—Demurrer.</p> <p>A demurrer necessarily admits the truth of the facts stated in the bill, so far as they are relevant and well pleaded; but it does not admit the conclusions of law drawn therefrom, although they are also alleged in the bill.</p> <p> Jurisdiction, equity —Restraint of trespass. </p> <p>Where the facts in the case are undisputed and establish a clear and legal right to land in controversy, the court has jurisdiction to restrain the commission of a trespass which threatens a permanent invasion of the premises.</p>

<p>Hawking and peddling — Prohibition of, by act of 1846.</p> <p>The carrying about from house to house of small packages of goods and offering them for sale, constitutes peddling within the purview of the Act of April 17, 1846, P. L. 364, forbidding the sale by any person, as a hawker or peddler, of foreign or domestic goods, wares and merchandise, in the county of Schuylkill: Commonwealth v. Gardner, 133 Pa. 284, followed.</p> <p>Constitutional lUw — Statutes—Peddling—Acts of 1846 and 1854.</p> <p>The prohibition of the Act of April 17, 1846, P. L. 364, being directed not to the right of an owner to sell his goods, but to the manner in which he may sell them, it is not in violation of the constitutional right of acquiring, possessing and protecting property, secured by sec. 1, art. 1 of the constitution of Pennsylvania, but is a valid exercise of the police power of the state.</p> <p>The Act of April 13, 1854, P. L. 328, extends the provisions of the act of April 17,1846 to the county of Lycoming, and the proviso contained in the act of 1854 that the manufacture of tin and copper ware, hats and confectioneries shall not be embraced within the provisions of the act relates only to the manufacture of said articles but not to the hawking and peddling or sale of the same, and is in no way a limitation upon the provisions of the act of 1846.</p>

<p>Vendor and vendee — Practice, C. P. — Question for jury.</p> <p>The action being to recover the amount of unpaid purchase money of a lot of ground, and testimony being conflicting as to the price agreed upon and the amount paid, the question was properly one for the jury.</p> <p>Vendor and vendee — Deed—Consideration—Evidence.</p> <p>Ordinarily the deed is prima facie evidence of the amount of consideration agreed to be paid, but is not conclusive.</p>

<p>Appeal, No. 22, Feb. T., 1897, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1888, No. 571, on verdict for plaintiff.</p> <p>Assumpsit for goods sold and delivered. Before Gordon, P. J.</p> <p>It appeared from the evidence that one Sackett desired to purchase lumber from plaintiff’s decedent; that the decedent, Mr. Speers, refused to furnish the lumber upon Sackett’s credit. Sackett, who desired to begin building on a lot winch he had agreed to purchase from H. S. Knarr, the defendant, informed the defendant of this fact. He, it is alleged, requested Mr. Speers to deliver the lumber to Sackett and promised that he, the defendant, would pay for it. The lumber, it is alleged by plaintiff, and there was evidence tending to establish the fact, ■was delivered upon the defendant’s credit and was bought for use in the construction of the house on land which defendant contracted to sell to Sackett, but for which the latter had not paid the purchase money.</p> <p>The court left the question to the jury as to whether there was an agreement on the part of the defendant to pay for the lumber, leaving it for the jury to determine the meaning of the conversations and messages which constituted the agreement, the court, Gordon, P. J., charging the jury, inter alia, as follows: . . . [If Mr. Speers sold the lumber in this case on the credit of W. G. Sackett, without Mr. Knarr having stated to him or sent him ■word in advance to sell Sackett the lumber and that he would pay for it or would fix it, then any subsequent action of Mr. Speers would not be binding upon Mr. Knarr, because the amount involved exceeds $20.00. It is the duty of the plaintiff to satisfy the jury, by the wreight of the testimony, that he sold this lumber not on the credit of W. C. Sackett but upon the promise made by Mr. Knarr, that if he would deliver Sackett the lumber that he, the defendant, would fix it, meaning thereby that he would pay for it.] [1] ... [It isn’t necessary that we go over all of the testimony in detail, because it is a question of fact for the jury, and you are to pass upon it from the weight of the testimony, the preponderance of the evidence.] [2] . . . [On tbe part of the defendant, you have his testimony taken on the former trial. By reason of the death of Mr. Speers, Mr. Knarr cannot now be a witness, but his testimony taken on the other trial is competent evidence. He denies entirely the story, as told here, as to the contract made; he denies that he made or entered into any undertaking to pay for the lumber in any emergency; he says he did send this man Sackett to mill men, those engaged in furnishing lumber; said to him that he could probably get lumber with which to build his house, but he denies emphatically that he said to Sackett to tell Speers that he would either pay for it or he would fix it. I believe he says he sent him to Speers to get the lumber and told him he would see about it.</p> <p>By Mr. Cole: He doesn’t go that far; he says go-and tell Speers to let you have it; that is all he says.</p> <p>By the Court: No matter which he uses. If he said that he would see about it, it wouldn’t make him liable, unless he agreed to pay for it.] [3] .....</p> <p>Verdict and judgment for- plaintiff for $36.46. Defendant appealed.</p> <p>Errors assigned were (1-3) portions of the judge’s charge; (4) in answering defendant’s point, as follows :</p> <p>“1. The evidence in this case offered by the plaintiff to charge the defendant even if believed, is not sufficient to entitle the plaintiff to recover, as at most it tends to establish a contract of guaranty on the part of Mr. Knarr, and no evidence having been given by Speers of the acceptance of that guaranty, and no proceedings taken to recover from the principal debtor, there can be no recovery here.” Answer: “We decline to so instruct you as we instructed you in our general charge, if you find from the evidence that Knarr refused to obligate himself in any way, as he claims, or that his obligation was but a guaranty or collateral undertaking, there being no evidence of notice of acceptance from Speers to Knarr, the latter would not be liable. But, if you find from the evidence that Knarr did make an agreement, and that it was an original undertaking on his part to pay Speers for the lumber Sackett would get under and in pursuance of the arrangement, and that the lumber was furnished in pursuance and reliance upon it,' no notice was required from Speers to Knarr of the acceptance or delivery of lumber in pursuance of that arrangement. If the evidence shows Knarr agreed to become liable as a primary obligation, he needed no notice, as it was his debt. This is as we stated before, a question of fact for the jury. Arrive at your verdict as you find from the clear weight of the evidence, the contract to be one way or the other.” (5) In submitting to the jury the question as the plaintiff’s right to recover, for the reason that said claim is clearly within the provision of the statute of frauds and perjuries; (6) relates to remarks alleged to have been made by plaintiff’s counsel in his closing argument to the jury. The assignment is not printed, and the facts alluded to therein were not brought upon the record in any way.</p>

<p>Negligence — Street railways — Question for jury.</p> <p>Negligence is always a question for the jury whenever there is a conflict of testimony, or for any cause there is a reasonable doubt as to the facts or as to the inferences to be drawn from them.</p> <p>If the motorman of a railway company saw, or, in the exercise of due care, ought to have seen, the plaintiff on the track and making ineffectual efforts to get off, and by slowing up his car could have avoided the collision, and failed to stop or slow up his car; or if, having regard to the narrowness of the traveled portion of the highway, the amount of travel thereon, the construction of the track, and the form of the rail, the difficulty of getting off the track, the grade, and all the other circumstances, the car was being run at dangerous speed, and in consequence the motorman was unable to check it sufficiently to prevent collision with one who, without negligence, happened to be on the track, and if a collision could have been prevented if the car had been running at proper speed, then the question, whether the motorman exercised care according to the circumstances, was' for the jury; it certainly was not for the court to declare that he did exercise such care.</p> <p>(Contributory negligence — Degree of care — Question for jury.</p> <p>In matters where the question of contributory negligence is involved the measure of duty is ordinary and reasonable cafe, and, when the degree of care varies according to the circumstances, the question of negligence is always for the jury.</p> <p>Practice, Superior Court — Defective assignment.</p> <p>An assignment of error is defective, and offends against Rule XV., which assigns error as follows: “ The Court erred in not affirming the defendant’s second, third, fourth, fifth, seventh and tenth points, which points and answers are as.follows: ” the points and answers thereto being recited under this one assignment.</p> <p>Municipal ordinance— Violation of, does not import negligence per se.</p> <p>A municipal ordinance creates no new civil liability enforceable at common law in favor of one injured by another acting in disobedience of it; hence it cannot be laid down as a rule of law, that when a street car being propelled at higher speed than a reasonable municipal ordinance permits, collides with another vehicle, the company is liable if the owner of the vehicle was not guilty of contributory negligence.</p> <p>Proof of the violation of the ordinance only goes to one of the elements of actionable negligence, and there still remains the question whether it was the cause of the injury.</p>

<p>Actions — Mandamus ■■ Landlord and tenant - Exemption appraisement.</p> <p>A mandamus will not lie to compel a constable, charged with the execution oí a landlord’s warrant, to have an appraisement made of goods elected to be retained by the tenant under the $800 exemption law of April 9, 1849, P. L. 533, except, possibly, in cases where the ordinary remedies would be wholly inadequate. In the case at bar no facts are alleged which make this case exceptional.</p> <p>Practice, O. P — Actions—Mandamus—Parties.</p> <p>Except where the writ of mandamus is sought to enforce a public duty or a duty affecting a particular public interest of the state the proceeding, like an ordinary action, is prosecuted in the name of the party instituting it as plaintiff and not in the name of the commonwealth as formerly.</p> <p>Mandamus — Impropriety of joining separate interests — Practice, G. P.</p> <p>Where the distinct rights of two or more persons areimproperly joined, a writ of mandamus is liable to be either superseded or quashed. There should be several writs according to the several interests.</p>

<p>Appeal No. 5, Jan. T., 1897, by plaintiff, from refusal of C. P. Lackawanna Co., Nov. T., 1893, No. 691, to take off compulsory nonsuit.</p> <p>Assumpsit on policy of insurance. Before Edwabds, J.</p> <p>The Olyphant Lumber Company sold a horse insured in defendant company to the use plaintiff, Patrick McGouldrick, a part of the agreement being that the title to the horse should not pass and the money should be refunded if they could not secure the approval of the insurance company to the transfer of the policy. Several days elapsed before the application for approval of the assignment was made to the company and before the matter could be adjusted the horse died.</p> <p>The court directed a judgment of nonsuit, which it subsequently refused to take off.</p> <p>Errors assigned were (1, 2) refusal to take off compulsory nonsuit; (3) refusing to admit the evidence under the following offer made by plaintiff, which was objected to on the part of defendant: “ The counsel for the plaintiff offer to prove by this witness on the stand that he was present when the arrangements were made between Mr. McGouldrick and Mr. Henwood as the representative of the Olyphant Lumber Company, Limited, that the sale was a conditional sale, the agreement being that the horse was to be sold to Mr. McGouldrick if they could secure the approval of the company to the transfer, if not, it was not to be a sale ; that the horse was to be returned to Mr. Henwood and the money returned to Mr. McGouldrick; ” (4) in refusing to admit the evidence under the following offer of the plaintiff, which was objected to by defendant: “ This offer is for the purpose of showing that as this action stands in the name of the Olyphant Lumber Company, Limited, to the use of Patrick McGouldrick, that Patrick McGouldrick would be entitled to recover either by virtue of the assignment, or if the assignment is not approved, by virtue of the title remaining in the Olyphant Lumber Company of the horse. To be followed by other proofs that this was a conditional sale, and was not to take effect unless the transfer was approved by the company. We offer to recall Mr. Henwood for the same purpose; ” (5) in refusing to allow Patrick McGouldrick, called by the plaintiff, direct examination, to answer the following question: Q. “ What were the conditions of the sale, if any, between you and Mr. Henwood at the time you took the horse?”</p>

<p>Appeal No. 14, Feb. T., 1897, of George A. Gebhart, with the several and separate appeals of Charles M. Renaut, Joseph H. Evans, Theodore Kramer, Jacob C. Bay, Charles R. Hoffman, and Samuel H. Follmer, from judgment and decree of C. P. Lycoming Co., Dec. T., 1894, No. 23, dismissing exceptions to and confirming the report of J. L. Meredith, Esq., auditor, distributing the funds in-the hands of an assignee.</p> <p>Exceptions to auditor’s report. Before Metzger, P. J.</p> <p>The controversy in this case arises out of the claim made by Joseph H. Evans and other plaintiffs, who had recovered judgments against the Mill Work & Mantel Co., Ltd., for wages for labor performed in part during the period of six months immediately preceding the assignment, and who claimed to be entitled to a preference in the fund for distribution to the extent of $200 in each case, and to have their judgments share in the balance of the fund with the other creditors.</p> <p>The auditor, J. L. Meredith, Esq., finds and reports in regard to the facts in this case as follows :</p> <p>Jesse D. Snyder, Joseph H. Evans, Charles R. Hoffman, Jacob C. Bay, George A. Gebhart, Ferdinand Gramlich, Charles M. Renaut, and Elmer E. Brewer, desiring to form a partnership association, under the Act of Assembly of June 2, 1874, P. L. 271, entitled “ An act authorizing the formation of partnership associations in which the capital shall alone be responsible for the debts of the association, except under certain circumstances,” and its supplements, on the 21st day of March, 1892, signed and acknowledged a statement in writing, in proper form, as required by said act, setting forth.: (1) The names of the subscribers as above given, and the amount of capital subscribed for by each, as follows: Jesse D. Snyder, $500; Joseph PI. Evans, $500; Charles R. Hoffman, $500; Jacob C. Bay, $500; George A. Gebhart, $500; Ferdinand Gramlich, $500; Charles M. Renaut, $500, and Elmer E. Brewer, $500. (2) That the total amount of capital is $4,000, whereof $3,000 has been paid into said association and the balance is all to be paid on or before July 1, 1892. (3) That the character of the</p> <p>business to be conducted is “ the manufacture of mantels, general mill work for house and building furnishing, hard-wood trimming and all kinds of ingenious hand work in wood,” and that the place of business was the city of Williamsport, Pa. (4) That the name of said association was “The Mill Work and Mantel Company, Limited.” (5) That the contemplated duration of the association was to be three years and (6) the names of the managers and officers of the association.</p> <p>[This statement or certificate -was duly recorded in the office of the recorder of deeds in Lycoming county on March 17,1892, and thereupon the subscribers thereto commenced the business described therein at their factory on East Third street, in the city of Williamsport.] [2]</p> <p>[The evidence shows that at the date of the recording of said statement, to wit: on March 17,1892, although the same recites that $3,000 of the capital subscribed for had been paid into the association, only $750 thereof had actually been so paid, of which amount $500 had been paid by Jesse D. Snyder on March 7, 1892, and $250 had been paid by Elmer E. Brewer on March 15, 1892.] [1]</p> <p>[On July 1, 1892, the date appointed in the recorded statement for the payment of the remaining tl,000 of the capital subscribed for, there had been paid into the treasury of the association the sum of $3,794.50, which amount, except the sum of $750, paid by Jesse D. Snyder and Elmer E. Brewer prior to the recording of the statement aforesaid, had been paid at various times between March 17 and July 1,1892, and of the entire amount so paid prior to the last named date, $500 had been paid by one David W. Reeder, who, it appears, on or about April 5, 1892, was elected and admitted as a new member of the association upon the same terms and obligations as the original partners.] [3] All the capital, however, subscribed for by the original partners was finally paid into the association as appears from the stock account of the several partners contained in the general ledger of the association on pages 4, 5, 6, 7 and 8, offered in evidence.</p> <p>[On or about July 27, 1892, Elmer E. Brewer retired from the association, selling out his stock or interest in the business to his fellow partners at the par value thereof. As Mr. Brewer had, at that time, paid but $300 on account of the capital subscribed for by him into the treasury of the association, -the several remaining partners paid him that sum in cash for his interest in equal proportions, and subsequently, in the same proportions, paid the balance of the stock subscribed for by him, to wit: $200, into the treasury of the association, thuS increasing the capital of each to the extent of $62.50, and making the entire capital of each of the remaining partners in the association of the value bf $562.50.] [4]</p> <p>Subsequently some further changes were made in the membership by transfer of interests. On June 5, 1893, Jesse D. Snyder sold his interest in the association to Theodore Kramer. On or about February 1, 1894, Ferdinand Gramlich sold his interest therein to Edward Fees, and on or about May 8, 1894, David W. Reeder sold his interest to Samuel H. Follmer.</p> <p>On June 5, 1893, Theodore Kramer was elected a member of the board of directors, and said board thereupon elected him chairman thereof.</p> <p>The minutes do not show that either Mr. Fees or Mr. Follmer were ever formally elected members of the association, but it appears that they were present at meetings and were recognized by tbe other partners as members in the management and conduct of the business.</p> <p>[The admission of David W. Reeder as a new member had the effect of increasing the capital of the association by the amount of $500.] [5] No certificate of this increase of capital with the several changes of membership and transfer of interests appears on the record in the recorder’s office. The only record found in said office relating to said association is that of the original statement made on March 17, 1892.</p> <p>[It further appears that no book designated as a subscription list book was kept by the association.] [6] Stock accounts, however, with the several partners were kept in the general ledger. In these accounts each partner is credited with the amount of capital paid into the association, specifying the date or dates when the same was so paid in.</p> <p>It further appears that at the time of the formation of the association the several partners were employed as mechanics, laborers, etc., in and about their factory, and for their services thus rendered the association agreed to pay them wages at a stipulated price per day, and it was also mutually agreed and understood among them at that time, though this agreement was not specifically spread upon the minutes, that each partner should for a time draw $1.00 per day on account of- his wages, and as the capital of the association was small, would allow the balance of his wages earned to remain in the treasury to facilitate the business until such time as the condition of the business would enable them all to draw their wages in full. This arrangement continued for several months, when it was further agreed among them that each should draw $1.50 per day on account of the wages earned by him, and later on said agreement was still further modified so as to allow each partner to draw 75 per cent' of his wages and allow the balance thereof to remain in the treasury as aforesaid. There is some evidence to show that at a meeting of the association held some time in August, 1893, the above agreement was rescinded, and it was decided that thereafter the partners should draw their wages in full. [No such action, however, appears upon the minutes, and as a matter of fact the prior arrangement to draw only 75 per cent of their wages continued in force until the date of the assignment.] [7]</p> <p>The several accounts of the- partners (marked “ private ”), with the association, appear upon the general ledger offered in evidence, where each partner is charged with the various sums of money paid him from time to time on account of wages, and credited with the amount of wages earned by him monthly.</p> <p>The association having become embarrassed in business on the 3d day of September, 1894, made a general assignment of all its effects to Joseph T. Long for the benefit of creditors. The deed of assignment bearing date September 3, 1894, is drawn in the usual form and executed in the name of the Mill Work & Mantel Company, Limited, by Theodore Kramer, chairman, and Charles R. Hoffman, secretary and treasurer, and is duly recorded in the office of the recorder of deeds in Lycoming county, the date of record being September 4, 1894. The assignee entered upon the duties of his trust, and on January 1, 1895, filed his account in the court of common pleas of Lycoming county as hereinbefore stated. On September 14,1895, your auditor was appointed to make distribution of the balance, to wit: $4,550.95, in the hands of the assignee, as shown by said account. Subsequent to the execution of the deed of assignment aforesaid Joseph H. Evans, George Gebhart, Charles M. Renaut, Jacob C. Bay, Samuel H. Follmer, Charles R. Hoffman and Theodore Kramer, who are members of the Mill Work & Mantel Company, Limited, each brought suit against the said association to recover the balance due them for wages, as shown by the books of the association. The writs of summons in each case were regularly served upon the officers of the association. No defense was made, and in due time judgments were obtained in each case against the association for the respective amounts claimed, which judgments, with the subsequent proceedings had thereon, have been offered in evidence before the auditor and are set forth in the foregoing statement of claims. The plaintiff’s statement of claim as filed in each of these cases, and upon which the judgment was obtained, and which forms part of the record therein, sets forth specifically the amount claimed, the nature and character of the particular services rendered, that the same were rendered in and about the defendant’s business of manufacturing mantels and wood work, etc., at their manufactory on East Third street, in the city of Williamsport, Pa., .and specifying the time when the services were rendered and the price agreed upon to be paid therefor, etc, . ,</p> <p>The plaintiffs in these eases basing their claims for preference upon the provisions of the act of assembly giving a preference to -mechanics, laborers, clerks, etc., for wages not exceeding $200, and invoking the aid of the Act of April 20, 1876, section 2, P. L. 43, for the recovery of the same, which section provides: “ That no voluntary assignment for the benefit of creditors, shall operate so as to hinder, delay or prevent for a longer period than thirty days from the time of such assignment, the collection or enforcement of any of the claims for the wages of labor secured and protected by the act for the better protection of the wages of mechanics, miners, laborers and others, approved the ninth day of April, one thousand eight hundred and seventy-two, and its supplements, and said claimants may, after the expiration of thirty days from the date of such assignment, enforce the collection of their claims in the same manner, and by means of the same remedies that they might have done had no such assignment been made,” issued attachment executions upon the judgments aforesaid, making Joseph T. Long, the assignee, garnishee. Interrogatories in proper form were filed and served upon the garnishee, whereupon the garnishee made answer, admitting the balance in his hands, as shown by his account.</p> <p>Rules were then taken by the plaintiffs in each case upon the garnishee to show cause why judgment should not be entered against him for the amount claimed as preferred and costs, upon the facts admitted in his answers. The court, thereupon, made the following order in each case:</p> <p>“ And now, to wit: September 21, 1895, it appearing to the court that Joseph T. Long, the assignee for the benefit of creditors of Mill Work and Mantel Company Limited, has filed his final account in this court to No. 23, December term, 1894, which account has been confirmed absolutely. And it further appearing to the court that J. L. Meredith, Esq., has been appointed auditor to distribute amongst those entitled thereto, the funds in the hands of the said assignee, the rule heretofore granted in this case, to show cause why judgment should not be entered against the said assignee, garnishee, as aforesaid, upon the facts admitted in his answers to the interrogatories of the plaintiff be and the same hereby is referred to the said auditor for adjudication.”</p> <p>The counsel for the several plaintiffs in the judgments above mentioned claim that these judgments and the proceedings had thereon now come before the auditor with the same force and effect as when heretofore pending before the court, and as the proceedings in all these cases were for the purpose of collecting the amounts claimed as preferred, from the moneys in the hands of the assignee when before the court, they now come before the auditor for adjudication in the same manner — the position being that the judgments recovered against the Mill Work & Mantel Company, Limited, are conclusive adjudications of the facts and matters involved therein, and cannot be attacked before the auditor except for fraud or collusion. They further contend that no fraud or collusion has been shown in the recovery of said judgments, and that they have proceeded regularly under section 2, of the act of April 20,1876, “ to enforce the collection of their claims in the same manner and by means of the same remedies that they might have been, had no such assignments been made,” and therefore are entitled in this proceeding to have the preferences claimed under the act of assembly for wages earned during the six months preceding the assignment, satisfied out of the fund in the hands of the assignee.</p> <p>Max L. Mitchell, Esq., counsel for divers general creditors of the assignors, opposed the allowance of the preferences claimed in said judgments : (1) Because having failed to comply with the act of June 2, 1874, and its supplements, the association, at the date of the assignment, was a general partnership. And (2) Because the judgments, (as he contended) were fraudulent and collusive, and therefore must be disallowed or disregarded until the claims of all the bona fide creditors are satisfied.</p> <p>The auditor, upon the foregoing statement of facts, finds and reports the following conclusions of law:</p> <p>[First — It was competent on the part of the general creditors of the assigned estate, in this proceeding and under the circumstances of this case, to show that in the formation of the association known as the Mill Work & Mantel Company, Limited, the members thereof had not complied with the act of assembly of June 2, 1874, and its supplements. [ [11]</p> <p>[Second — The fact that the subscribers to the capital stock of the association known as the Mill Work & Mantel Company, Limited, asserted in their certificate of association recorded March 17, 1892, that $3,000 of the capital of $4,000 subscribed for, had been paid into the association, whereas in truth and in fact only $750 thereof had, at the time, been paid into the association, together with the fact that they caused no record in the form of amendment to be made in the proper office, showing the increase of the capital by the admission of David W. Reeder into the firm, and the further fact that they kept no proper subscription list book as required by the act of assembly, was a palpable noncompliance with the provisions of the act of June 2, 1874, and therefore said association never became a partnership limited, within the meaning of the said act, but from the date of the recording of said certificate or statement was a general partnership, and became liable to its creditors as such.] [12]</p> <p>[Third — The deed of assignment of September 3,1894, though executed in the name of the Mill Work & Mantel Company, Limited, by the president and the secretary and treasurer must be presumed to have been made with the assent and concurrence of the members of said association, and conveyed to the assignee, Joseph T. Long, the assets of a general partnership.] [13]</p> <p>■ [Fourth — That the fund or balance now in the hands of the assignée, as shown by his account filed, and which the auditor has been appointed to distribute, arises from the assets of the Mill Work & Mantel Company, Limited, as a general partnership association and must be considered and treated as such in this distribution.] [14]</p> <p>[Fifth — -That the judgments obtained by the several labor claimants, who were members of the association held out to the public as the Mill Work & Mantel Company, Limited, against said association, though regular upon their face, are not judgments against the individual members of the Mill Work & Mantel Company, Limited, as a general partnership, and are not entitled to payment either in whole or in part out of the funds now for distribution as against the creditors of the general partnership.] [15]</p> <p>[Sixth — The plaintiffs in said judgments are, therefore excluded from any share in the fund now for distribution in the hands of the assignee.] [16]</p> <p>OPINION OP THE AUDITOR IN SUPPORT OP THE POREGOING</p> <p>CONCLUSIONS.</p> <p>At the outset it is proper to observe that the plaintiffs in the judgments mentioned have no equity in their favor as against the general creditors. To hold that these plaintiffs should be permitted to file and record a false statement, asserting that f3,000 of the capital subscribed for had been paid, when in fact only |750 thereof had actually been paid into the treasury of the association, thus misleading the public and parties who might desire to deal with them, in utter disregard of the act of assembly requiring a truthful statement to be filed, and then after a voluntary assignment has been made and a fund realized for their creditors, which, at most, will only pay them in part, to allow them to come in upon this fund and sweep it away from their creditors, presents anything but a strong appeal to a chancellor and could be justified only upon the most rigid rules of law.</p> <p>It was certainly competent, in order to make a proper distribution of the fund, for the auditor to have a clear understanding of the nature and character thereof, just how it arose, and the manner in which it comes before him for distribution among the creditors. It is either a fund arising from the assets of a limited partnership association or of a general partnership. The mere fact that the deed of assignment was executed in the name of the association, limited, by those who bad been elected officers, does not make the association a limited partnership within the meaning of the act. If the members did not comply strictly with the law the attempt to form a limited partnership was a failure, and conferred upon them no rights or immunities under it. It was not within the power of the members to merely declare themselves a limited partnership except by a strict compliance with the law in its formation. If this be true it seems to the auditor that it was proper to be shown that there was not a compliance with the law. The evidence to show this cannot be construed in any proper sense as a collateral attack upon the judgments of the labor claimants, although the effect might be that no part of the fund could be applied to them in the distribution. Because these plaintiffs brought suit and obtained judgment against the association as a limited concern without objection or defense set up, it does not follow that these judgments must be paid either in full or in part, or by way of preference, out of the assets of a concern holding itself out to the world as a limited association, but which were in fact the assets of a general partnership. It is true, as contended by counsel for these plaintiffs, that the authorities declare that a judgment regular on its face cannot be questioned by creditors before an auditor, except for fraud or collusion affecting them. It is, however, competent for the creditors to adduce evidence showing that the fund for distribution is of such a character that it may not be applied in payment of the particular judgment seeking payment out of it. In other words, the judgment may be regular upon its face and allowed to stand as rendered, and yet it may have no right to share in the particular fund to be distributed. This cannot in any manner affect the validity of the' judgment. The auditor is, therefore, of opinion that the evidence offered was. competent for the purpose of showing the character of-the fund in the hands of the assignee, viz : that it has the quality attached to it arising from the assets of a general partnership, and not from those of a limited one.</p> <p>If this evidence is competent, as the auditor thinks it is, then the Mill Work and Mantel Company, Limited, never became a partnership limited, and the members thereof never became entitled to the protection of the act of 1874 and its supplements. Not only did the members make an untruthful statement in the certificate recorded at the outset as to the amount of capital paid in by them, but they failed to cause any record to be made in the proper office of the increase of their capital by the admission of Mr. Reeder into the firm as a new member. By the admission of Mr. Reeder an important change was made in the condition of the association, both in respect to its capital and membership, and it was essential that the public should have béen informed thereof in the manner pointed out by the act so that creditors and others might determine from the record whether the association in its then condition was entitled to credit, and to what extent credit might be given.</p> <p>Again, the association never kept a subscription list book, as described in the act. The general ledger of the association containing the stock accounts, with the members as above described, was not the kind of book contemplated by the act. Such ledger was'the private book of the association, containing the general business accounts, and was not sucb a book as could be expected “ to be open to inspection by creditors and members of the association at all reasonable times,” and yet the language of the act of 1874 on this subject is imperative that a proper subscription list book for the purpose therein mentioned shall be kept by the associations intended to be protected by it. All that the members of this association have done in order to avail themselves of the privileges and immunities of the act was merely to execute and record a written statement in the form prescribed therein, but which, in an essential particular was not true, and therefore misleading. The act was intended to protect the members of partnership associations from liability beyond the capital subscribed for. And it is necessary that all the essential provisions thereof should be complied with, otherwise such protection will not be given and they will be held liable to creditors as general partners. All our decisions are emphatic on this point. In Maloney v. Bruce, 94 Pa. 249, Mr. Justice Paxson said: “ If parties seek to have all the advantages of a partnership and yet limit their liability as to creditors they must comply strictly with the act.” This principle has been strictly adhered to in numerous subsequent cases, among which may be cited the following: Bement v. Brick Machine Co., 5 W. N. C. 58; Keystone Boot & Shoe Co. v. Schoellkopf’s Sons, 11 W. N. C. 133; Eliot v. Himrod, 108 Pa. 569; Hite Natural Gas Co.’s App., 118 Pa. 436; Hill v. Stetler, 127 Pa. 145; Vanhorn v. Corcoran, 127 Pa. 255; Sheble v. Strong, 128 Pa. 315. If they do not so comply with the act their liability to creditors is not limited, and as they have the advantages of a partnership they are liable as general partners.</p> <p>It is possible that the partners in this case meant to act in good faith and supposed they were complying with the law, but the question of their liability is held to depend not upon their good faith, but upon their acts. In Hill v. Stetler, 127 Pa. 159, the court says: “ Our business is not with their motives (meaning the partners) but with what they did; and our inquiry is whether the association was organized in accordance with the fair interpretation of the act of 1874.”</p> <p>The ground upon which this and similar cases (though brought to charge the members with liability as general partners) seem to be based is, that without a strict compliance with the act, no limited association has been formed, and hence the liability of the members as general partners. ■</p> <p>Mr. Justice Williams in the case just referred to, in commenting upon the particular facts in that case on page 158, says: “ To enter upon business with the credit which the possession of a paid-up capital of $25,000 would give the association when in fact nothing had been paid either in money or property, was an evasion of the law and a fraud upon the public.” And again, on pages 162 and 163, he further says: “ If no capital has been put into the concern, no actual cash with which to begin business, it.has no right to begin business. The subscribers have no right to record the certificate, and to do so is a fraud upon the law and a fraud upon the public. We do not say the entire capital must be paid down. The law does not say so, but seems to contemplate a payment by instalments. What we do say is, that until some part of the capital has been paid in conformity with the certificate, the recording of the certificate is not authorized by that law, and can give no business life to the limp and empty framework of the association.”</p> <p>In the case of Vanhorn v. Corcoran, 127 Pa. 268, Mr. Justice Paxson uses this language: “ Prima facie a firm transacting business is a general partnership. It can only shelter itself behind the act of 1874 and its supplements by showing a strict compliance with the law. It was said in Eliot v. Himrod, 108 Pa. 569: ‘ Each partner is liable unless saved by the statute. If the partners have not complied with the statutory requisites a limited partnership has not been formed.’ To the same effect is Maloney v. Bruce 94 Pa. 249. This is the key to the whole situation. A limited partnership that has not complied with the law of its creation is not a limited partnership at all; it is, however, a partnership in which all the members are liable at common law.” In Sheble v. Strong, 128 Pa. page 322, the court says: “ The question is not one of good faith on the part of the defendants, or of notice to creditors, but whether in their attempt to form a limited partnership, they conformed to the law. If they did not their attempt was abortive. And it is no defense that creditors had actual knowledge of the facts required to be set out in the recorded statement.” Farther on in the same opinion it is said: “ All the cases on the subject sustain the position that a strict compliance with the statutory requirements is essential to the formation of a limited partnership. Where there is no record of such a statement as the statute requires there is no statutory association. Where immunity from liability is claimed under the provisions of the act it is competent for the plaintiff either to point out a fatal defect on the face of the recorded statement, or to prove that an essential requisite, though formally stated, is falsely asserted.” Under these decisions and others to the same effect, which might be cited, the auditor is of opinion that in the case of the Mill Work and Mantel Company, Limited, no limited association has ever been formed, and that the association known by that name was, from the beginning, a general partnership. If he is correct in this opinion, then the acts of such partnership so far as creditors are concerned, were those of a general partnership, and hence the assignment to Long as assignee for the benefit of creditors, passed to him the assets of the general partnership.</p> <p>In the absence of evidence to the contrary, and in view of the fact that the members of the partnership are here claiming part of the money arising from the assigned effects the deed of assignment executed in the name of the association by its president and secretary, must be presumed to have been so executed by and with the assent of the members thereof. And hence these officers are to be treated and considered as their agents in effecting the transfer of the assets to the assignee.</p> <p>The partners, evidently, intended in good faith, to transfer all the firm property in trust for their creditors. And in pursuance of such assignment the property and assets of the firm were actually delivered into the possession of the assignee and he has converted the same into money.</p> <p>Moreover the amount of undisputed claims presented before the auditor being largely in excess of the fund for distribution, shows clearly that at the time of the assignment the firm was insolvent.</p> <p>Under these circumstances it was competent for Mr. Kramer, who signed the deed of assignment as president, and Mr. Hoffman, who signed it as secretary and treasurer, by such deed to convey the assets of the firm as a general partnership to the assignee. It was not necessary for all tire partners to join in executing the deed of assignment in order to pass the assets of such partnership. In the case of Deckard v. Case, 5 Watts, 22, it was held that one partner may transfer the whole stock in trade of the firm; and if possession be delivered, and the transaction be bona fide, it matters not whether the instrument be under seal or otherwise. This was virtually admitted to be the law by Gibson, C. J., in Moddwell v. Keever, 8 W. & S., where on page 64 he says: “ It has been said in Deckard v. Case that one partner may assign the whole joint effects. Perhaps he may, but only as the agent of the firm and by an act done in its name.” Deckard v. Case was followed in James’s Estate, 1 Ch. Co. Rep. 462. See also Trickett on Assignments, pages 5 and 6; Bullitt v. Chartered Fund, 26 Pa. 108; Clark v. Wilson, 19 Pa. 414; McNutt v. Strayharn, 39 Pa. 269.</p> <p>The property of the firm having thus come into the possession of the assignee as the assets of the general partnership, it follows that the fund arising therefrom is of the same character and must be distributed to the creditors of the firm as the creditors of the general partnership. The result 'therefore is that the judgments of these labor claimants, who are members of the firm, having been obtained against the Mill Work and Mantel Company, Limited, cannot share in the distribution, 'either as preferred creditors or otherwise. These claimants being members of the general partnership could not sue themselves and cannot claim any part of the fund in this proceeding as against the general creditors, who are entitled to claim it as derived' from the assets of the general partnership. In this view of the case we do not question the validity of the claimants’ judgments. They stand as the suits were brought against the concern as a limited association while the general creditors stand in entirely different relation in respect to the fund for distribution — the latter being in the same position as if they had sued the partners composing the firm for the purpose of holding them liable as general partners. Even if these general creditors'had sued the concern as a limited association, they would not be estopped from maintaining suit against the partners composing it. This was decided in the case of Sheble v. Strong, supra, where Justice Sterrett, in delivering the opinion of the court, clearly points out the difference' in character and effect between such actions in the following language: “ The two actions are not the same either in form-or effect. In the one the association is made defendant without ■ naming the individuals who compose it, and service of process is made on one of the officers, who are agents of the members only to the extent of their interest in the association. In the other, the persons who compose the general partnership are joined as defendants, and if liable at all as partners each is liable for the entire debt and not merely to the extent of his interest in the partnership, provided all are served with process or voluntarily appear. The measure of liability in each respectively is different. In the one it is general, in the other it is limited to the property of the association, which, of course, includes unpaid stock due by individual members.”</p> <p>It becomes evident, therefore, that the judgments of these claimants may be allowed to stand as they were rendered, and their validity remain unquestioned, but their relation in respect to the fund is such that they can claim no part of it. Those creditors only can claim it who have the right to do so by virtue of their position as creditors of the general partnership.</p> <p>If the claimants in these judgments take nothing from the assignment the fault lies with themselves, in that they failed to organize a limited association by reason of their non-compliance with the law. Upon the facts as proven in this proceeding, and the law applicable thereto, the auditor is of opinion that the money in the hands of the assignee was not attachable at the suit of these labor claimants, and that the court would have refused judgment in each case against the assignee as garnishee, and as the evidence is now presented before the auditor, he must decline to award to them any part of the fund for distribution.</p> <p>The second objection urged to the allowance of these judgments, to wit: that the same are fraudulent and collusive, and were obtained with intent to hinder and delay the creditors in the collection of their claims, appears to the auditor to be without merit. The auditor has carefully considered the evidence offered in relation to this subject, and he fails to see how it can be held to establish any fraud or collusion in the case. The judgments were obtained for the respective amounts due the claimants as shown by the books of the firm, and if the members thereof had in fact formed an association limited by compliance with the law, the claimants in these judgments would be entitled to participate in the distribution in the manner claimed for them.</p> <p>Elmer E. Brewer who, as before stated, was one of the members of the firm at the time it commenced business, also presents a claim amounting with interest to $155.48. This claim is for wages earned by him during the time he was a member of the firm. No suit has been brought upon this claim, and no preference is claimed for it, but the claimant asks to share in common with others in the fund'for distribution.</p> <p>The opinion alreadjr expressed in reference to the claims of the other members of the firm need not be repeated here. It is sufficient to say that Mr. Brewer was one of the subscribers to the capital of the Mill Work and Mantel Company, Limited, and a party to the certificate of association recorded as aforesaid. He can stand in no better position than his fellow partners, and for the reasons given cannot share in the distribution.</p> <p>The auditor further finds that all the claims presented and set forth in the foregoing statement, other than the judgments and claim of Elmer E. Brewer, were valid and subsisting debts against the assignors at the time of the assignment, and are entitled to share in the distribution. It appears, however, that the claim as presented-by William A. Long & Company should be reduced by the sum of $33.08 by way of set-off, for indebtedness due by said firm to the assignors at the time of the assignment. This indebtedness the assignee has not collected, but it seems he has charged himself with the same in bis account as filed. It is but justice, therefore, uirder the circumstances, that the firm of William A. Long & Company should be awarded their proper pro rata share of the fund for distribution, and that the assignee should be given credit for the debt of $33.08 not collected by him. In making the distribution this has been done.</p> <p>In the matter of the claim of the First National. Bank of Williamsport it appears that certain claims and accounts held by the assignors against divers parties were transferred to said bank prior to the assignment, as collateral security for the payment of the notes embraced in the claim presented by said bank. Upon these collaterals various sums of money have since the assignment been realized by the bank. Making due allowance for the several sums so realized, the auditor ascertains the balance due the bank on January 9, 1896, was $2,521.13.</p> <p>From the principle that creditors become, by the assignment,. equitable owners of the assigned estate, it follows that, though after the assignment, partial payments were made from the estate of another person than the assignor, who is liable for the same debt, or from a part of the property of the assignor not embraced in the assignment, or from a part of the property which is embraced in the assignment but in virtue of a lien paramount to it, any dividend to be made from the proceeds of the assigned effects will be made upon the basis of the debt as it existed when the assignment took place, without regard to these subsequent reductions, provided, however, that in no event shall the creditor get more than his whole claim with interest: Trickett on Assignment, page 208, section 185. See also Morris v. Olwine, 22 Pa. 441; Keim’s Appeal, 27 Pa. 42; Miller’s Appeal, 35 Pa. 481; Patten’s Appeal, 45 Pa. 151; Brough’s Estate, 71 Pa. 460; Hess’Estate, 69 Pa. 272; Graeff’s Appeal, 79 Pa. 146; Bair & Shenk’s Appeal, 82 Pa. 113.</p> <p>Under these authorities the auditor decides that the bank is entitled to a dividend in common with other creditors on its entire claim as it existed at the time of the assignment as a basis of distribution.</p> <p>As the fund for distribution is insufficient to pay the claims established against it in full, the auditor has accordingly awarded to the bank its proper pro rata share of the fund upon its entire claim at the time of the assignment, .with interest computed to January 9, 1896.</p> <p>The auditor found a balance for .distribution, after allowing for costs of audit, amounting to $4,225.37, which allows a dividend of 28.84 per cent among the creditors excluding the claims of the several members of the firm who were plaintiffs in the judgments against the limited partnership association.</p> <p>Exceptions, twenty-two in number,- were filed to the report of the auditor which were dismissed by the court below in the following opinion by Metzger, P. J.</p> <p>The most important question raised by the exceptions to the auditor’s report is whether the auditor erred in finding the members who composed the Mill Work and Mantel Company, Limited, general partners. The facts necessary to a proper adjudication of this question have been found by the auditor and of the correctness of his findings we have no doubt. The original members of tbe firm, .who subscribed and acknowledged the certificate required by the act of 1874, complied with all the requisites of said act, so far as relates to the form of the certificate, and no defect is apparent on the face thereof. If, therefore, the facts contained in the certificate had been correctly stated, the organization of the firm as a limited partnership would have been complete. But the evidence clearly shows, and the auditor has so found, that the statement made in the certificate filed as to the amount of the subscription paid in at the time of the filing of the same was in fact a false statement. The amount of the capital subscribed was four thousand dollars, and it is asserted in the certificate that of this sum three thousand dollars had been paid into the association, whereas, in truth and in fact, there had been but seven hundred and fifty dollars paid in at the time of the filing of said certificate; neither was the balance of the subscription, being the sum of one thousand dollars paid in at the time when it was required by the terms of the certificate to be paid. Neither did the association keep a subscription list book as required by the act of assembly. The mere entry in their general ledger of the amounts paid by the respective parties certainly cannot be regarded as a compliance with the provisions of the act of assembly. The act contemplates a subscription list book to be kept open to the inspection of the public, from which it must appear what amount has been subscribed by the respective parties, and what the balance due is from each subscriber on his subscription. The purpose of this is to enable the creditors readily to ascertain from this book what amount each subscriber is left yet liable for on his subscription. Had the three thousand dollars been paid in cash at the time of the recording of the certificate such subscription book might not have been absolutely necessary. It is true there was an instalment of one thousand dollars which was not to be .paid until July 1, 1892, and for this reason such boob should have been kept, yet the omission to do so might not of itself made the parties general partners. The certificate being in due form, if it contained no false statement of any material fact required to be stated by the provisions of the act of assembly, the limited partnership would have been duly organized, and the omission afterwards to keep a subscription list book would not, in our judgment, in such case destroy the organizafcion. It is also undisputed that after the filing of the certificate and the commencement of the business by the firm a new partner was introduced into the firm and the assets thereof were increased five hundred dollars. There were also other changes made in the membership of the firm, several of the original members disposing of their stock to other parties, who, although never formally elected to membership, in fact became members of the association and took part in all meetings of the association held subsequently, voting and participating in all the proceedings at the meetings of said association, and were recognized and treated as partners by the other members thereof.</p> <p>The facts being as we have stated, it seems to us that these parties did not comply with all the requisites of the act of assembly, under which they attempted to effect an organization, and are therefore not entitled to the protection given to an association created by virtue of said act.</p> <p>We do not think it necessary to review the authorities bearing on this question. The auditor has cited most, if not all the authorities that are pertinent, and from an examination of them it seems to us to be perfectly clear that where any essential requisite is falsely stated in the certificate, the organization as a limited partnership under the provisions of the act of 1874 is not complete, and cannot exist, and the parties are not entitled to immunity from liability under the provisions of said act, but remain and continue to be liable as general partners. Certainly the statement filed must, among other things, state the total amount of capital and when and how to be paid. This, therefore, is an essential requisite, and if falsely stated will prevent the parties from being entitled to the benefits of the provisions of said act. In the case in hand it is undisputed that the allegation contained in the statement filed that $3,000 of the capital stock had been paid into the association was false. It seems to us that if there were no other reason for holding these parties to be general partners this of itself would be sufficient. The statement filed was vitiated, and in our judgment could not be made good by a payment or payments made long after the filing of the same. If the organization ever existed as a limited co-partnership it must have come into life and existed the moment the certificate provided for by the act of assembly was filed and recorded. But in this case the parties seem never to have attempted strictly to comply with the provisions of said act, either at the time of the organization or afterwards. They kept no subscription list book, such as is required by the act of assembly, and which in this case was absolutely necessary because of their failure to pay the amount of the capital subscribed. Again, they never filed of record any amended statement, either of the changes made in the membership of the firm or the change made in the capital stock of the association. The act of assembly, after setting forth the essential facts that are to be contained in the statement to be filed, provides that any amendment of the said statement shall be made in like manner. It is argued now that in this case no amendment was made, because these changes the parties had a right to make by the provisions of said act without filing and recording any statement thereof. If this be true then they could change all the parties to the original organization ; they could change the entire capital of the same, or make any other change whatever in the original statement, and yet not be required to put it in the 'form of an amendment and file and record it. This doctrine we cannot subscribe to. Any amendment means any alteration, and surely it is a very material alteration when new parties are introduced into the organization and the capital of the same is either increased or diminished. It certainly is very important that the public dealing with such an organization should know exactly who the parties are that compose it. Credit is probably more frequently given on the faith of the parties who are associated than upon the faith of the capital invested. Because in these associations 'there is no liability beyond the capital subscribed, if the organization is properly effected, and hence the character and business qualifications of the parties composing the association is most important to be known to the public. It is true that under the provisions of the act of 1858, which has reference to limited copartnerships formed under the act of 1886, statements of these changes, although required to be recorded, were declared not to work the destruction or dissolution of the partnership; but the organizations at that time were entirely different from those under the act of 1874. Yet if it were not for the act of 1858, even under the act of 1836, such amendments, if not recorded, would have worked a forfeiture of the rights of the limited partner and made him a general partner. The organization under the act of 1874 is more like a corporation and under it no party is liable beyond the amount of capital subscribed. All its provisions are unknown to common law, and hence the courts have pretty uniformly held that its essential provisions were mandatory, and that a strict compliance with the act ivas necessary to entitle the parties to protection from general liability. It is, however, unnecessary in this case that we should hold that a neglect to make a statement of these changes and file and record them worked the forfeiture of the right to members of the association to claim the provisions of said act, because, as we have stated, the organization was void from its inception, by reason of the false statement of an essential requisite made by the parties in the certificate as filed and recorded. We do, however, in this case hold that the neglect to comply with these essential requisites taken in connection with the fact of their carelessness’ in making the false statement they did when they attempted to effect their organization justifies us in ruling that these parties are not entitled to claim the assets of this firm to be ’those of a limited copartnership. Such utter disregard of the provisions of said act as has been shown in this case cannot by any means known to us be tortured into a substantial compliance with the terms of said act, and a substantial compliance with the act is required by all the decisions of the Supreme Court of this state, so far as we have been able to understand them.</p> <p>The learned auditor was therefore right in finding that the assets of this firm were the assets of a general partnership, and not those of a limited partnership or stock company, under the act of 1874. The fact that the assignment on its face purports to be that of a limited copartnership cannot avail them. If there -was no limited copartnership existing under the act of 1874, then when they attempted to make an assignment of their assets they did not assign the assets of the limited copartnership, because they could not make an assignment as an organization when such an organization had no existence. Hence, if the assignment is valid at all it passed to the assignee the assets as the property of general partners. Its validity is not questioned ; neither could it be, because it was the act of the parties themselves.</p> <p>The auditor then, having properly found that the assets were tlie assets of a general copartnership, it follows that he clearly must be right in holding that the assets in the distribution would have to be applied to the general creditors of the firm. Hence the judgments that these individual partners had obtained against the firm as a limited copartnership could not participate in this distribution. It is not claimed for a moment by these partners that they had any judgment or lien upon any portion of the funds other than the fund of the limited association. They, therefore, were not entitled, although they had judgments against the limited association, to come in on distribution on the fund which has been properly found to be the fund of a general partnership. If they could succeed in having distribution made to their claims, then not only in this case, but in any other case where the partners have failed to comply with the provisions of the act of 1874, under which they have attempted to organize, they can come in and sweep away every dollar of their joint assets, and thereby prevent their creditors from geting any portion of their claim, and we think such a course of proceedings is so inequitable that it ought not to be sustained unless the law compels us to do so.</p> <p>We are very much relieved to be able to conclude that such a proceeding is not only not justified in equity, but that there is no warrant of law to sustain it.</p> <p>We are therefore of opinion that the learned auditor did not err in his finding, and thereupon we dismiss the exceptions filed to his report, and confirm same absolutely.</p> <p>Errors assigned were 1-7 in dismissing exceptions (1 to 7) assigning error in the auditor’s findings of fact, reciting 'same;</p> <p>8-10. Dismissing exceptions to the auditor’s report, alleging error on the part of the auditor in failing to make certain specified findings of fact, as follows: (8) In not finding as a matter of fact that the members of the Mill Work & Mantel Company, Limited, complied in all respects with the requirements of the several acts of assembly of the commonwealth of Pennsylvania relating to the formation and government of partnership associations limited. (9) In not specifically and expressly stating as a separate finding of fact that all claims of the general creditors, introduced before him and allowed to participate in the distribution of tbe funds, were contracted after tbe full amount of the capital stock'of the Mill Work & Mantel Company, Limited, had been paid into the treasury. (10) In not specifically and expressly finding as a separate finding of fact that the assignment of the Mill Work & Mantel Company, Limited, to Joseph T. Long, in trust for the benefit of creditors, was made by the said concern in the capacity of, and under the character of, a partnership association, limited.</p> <p>11-16. In dismissing exceptions to auditor’s report assigning error in the auditor’s conclusions of law, reciting same.</p> <p>17-20. Dismissing exceptions to the auditor’s report, assigning error in not reaching the following conclusions of law as follows : (17) In not concluding as a matter of law that in view of the fact that all of the claims of the general creditors were contracted subsequently to the date when it was admitted that the full capital of the association was paid in in cash, and subsequently to the acts which were alleged to have been a violation of the law of the creation of the Mill Work & Mantel Company, Limited, and in view of the fact that, therefore, they could not have been injured by any of the alleged matters, that they could not complain of the same or allege the same as a reason why as to them the members of the association should be held liable as general partners. (18) In not finding as a matter of law that the general creditors could not raise, and he as auditor in this matter, could not adjudicate the question of whether or not by the acts or omissions of the members of the association, they became liable as general partners. (19) In not finding as a matter of law that inasmuch as the funds before him for distribution were in the hands of a voluntary assignee created, and were the result of the assignment made by the Mill Work & Mantel Company, Limited, in the capacity of a partnership association, limited, formed under the act of 1874, and its several supplements, that therefore it was not competent for the claimants before him as general creditors to raise, nor for him as auditor to adjudicate the question that the said concern was a general partnership, and that the funds in question should be distributed as those of a general partnership.' (20) In not finding as a matter of law that the right of the exceptants to the preference which they claim would have to be adjudicated upon the records of. their judgments and attachment executions, and-that it was not competent for him to inquire into any facts dehors the said records.</p> <p>21. In dismissing the 21st exception that “ the learned auditor erred in not allowing to each of the exceptants the claim for preference made by him.”</p> <p>22. In dismissing the 22d exception : (22) In making no distribution to the judgments recovered by the exceptants against the Mill Work & Mantel Company, Limited, and offered in evidence before him.</p> <p>23. In confirming absolutely the report of the auditor.</p> <p>24. In not distributing to the appellants the $200 claimed by them to be preferred as wages, and a pro rata amount with the other creditors for the balance of their judgments against the assignor.</p>

<p>Appeal, No. 6, Jan. T., 1897, by-plaintiff, from refusal of C. P. Lackawanna Co., Nov. T., 1893, No. 690, to take off judgment of nonsuit.</p> <p>Assumpsit on policy of insurance. Before Edwards, J.</p> <p>The policy of insurance upon which suit in this case was brought was dated June 30, 1892, and was sent to Jacob Helmer, agent of the company at Scranton, to be by him delivered to James Flynn, upon payment of the policy and entrance fee due upon said policy. Flynn was notified that the policy was ready for delivery but did not call for it until July 28, 1892, when he obtained the policy from a brother of the agent, in the office. Later in the same day the horse insured thereby died, having been taken sick early in the morning. The agent’s brother recovered possession of the policy the following day. The entrance fees and dues were paid to one James McCarty, who was not an agent of the company, by a servant of the plaintiff, and the money was left by McCarty at the office of Helmer, in his absence, but was not accepted by him. The plaintiff’s evidence tended to show that the horse was sick at the time the fees were paid to McCarty.</p> <p>There was evidence tending to show that upon inquiry and demand made, Ilelmer assured the plaintiff from time to time that “ it would be all right.” Defendant’s evidence, however, tended to show that the company from the first denied all liability, claiming that the policy had never been properly issued.</p> <p>Section 14 of the conditions and agreements of the policy provides as follows:</p> <p>“ It is understood and agreed that this policy shall not be in force until it has been paid for and delivered to the applicant, which must be while the animal it is intended to cover is in perfect health.” •</p> <p>Condition 18 of the policy of insurance requires suit to be brought within -six months from the date of the death of the animal insured, any statute of limitation to the contrary notwithstanding.</p> <p>The court directed a nonsuit which it subsequently, on motion, refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 124, April T., 1897, by William Goldberg, defendant, from judgment and sentence of Q. S. Mercer Co., June Sess., 1896, No. 6 on verdict of guilty.</p> <p>Indictment for larceny for receiving stolen goods. Before Miller, P. J.</p> <p>The defendants, William McCullough and John Hughey withdrew the plea of not guilty and pleaded guilty as indicted. William Goldberg pleaded not guilty. At the trial McCullough turned state’s evidence.</p> <p>There was evidence of a corroborating character tending to show the guilt of Goldberg. Goldberg denied, however, any knowledge or commission of the crime and introduced evidence tending to contradict the evidence corroborating the testimony of the accomplices, Hughey and McCullough.</p> <p>Verdict of guilty and sentence thereon.</p> <p>Errors assigned were:</p> <p>(1.) In charging the jury as follows, to wit: “ Under the law of this state you are made the judges not only of the facts but of the law; but inasmuch as you are not supposed to be learned in the law it is the duty of the court in any given criminal case to explain the law to you in order to enable you to arrive at a just conclusion. You could disregard anything that the court might say to you as to the law in this case, but you would not likely do that; while you are the judges of the law you would likely take the view of it as expressed by the court as being correct, as it is presumed that the court would know the law better than the jury.”</p> <p>(2.) In charging the jury as follows, to wit: “ A jury embracing twelve citizens as this jury does, is selected without reference to any case which they are called upon to try, and in order to represent, so to speak, the impartial judgment of the community which upon matters of common sense and business is rarely at fault.”</p> <p>(8.) In charging the jury as follows, to wit: First, that “ the courts always consider it their duty to advise a jury to acquit where there is no evidence corroborative of the accomplice ” and following this with the statement that “ there is other evidence in the case, however, to submit to you, and it is for you to determine whether or not that evidence is corroborative of the testimony of John Hughey and William McCullough;” then the learned court below proceeds to cite the testimony of the commonwealth and ends with the statement “I believe, gentlemen, I have referred to about all of the corroborating circumstances.”</p> <p>(4.) In charging the jury as follows,'to wit: Corroboration need not extend to the whole testimony of the accomplice, but it being shown that he, the accomplice, has testified truly in some particulars the jury may infer that he has in others. That is, if you should find from the evidence that the accomplices in this case were corroborated in some particulars that bear upon this ease, then you might infer as is stated in this opinion, that they have testified truly in some matters in which they are not corroborated by other testimony.”</p> <p>(5.) In charging the jury as follows, to wit: In charging the jury that “ An additional fact which the commonwealth asks you to believe corroborates the witnesses Hughey and McCullough, is that the defendant was to meet Hughey and McCullough in Cleveland at a saloon on Broadway, which was either, as one of the witnesses said, No. 96 or No. 69, the witness was not certain which. They state that he was to meet them there on Tuesday afternoon, and in corroboration of that the commonwealth has called witnesses to show that William Goldberg did leave Sharon on Monday morning; that before he left he communicated to two newspaper reporters that he was going first to East Liverpool and thence to Wheeling; but that instead of going to those towns they show that he went to Akron and thence to Cleveland, arriving at Cleveland sometime Tuesday forenoon ; and they say to you that that is corroborative of the statement of Hughey and McCullough that he was to meet them at the latter point; the two witnesses state that he was to meet them at a saloon; and it appears that William Goldberg was in Cleveland on Tuesday, and was at a saloon, not on Broadway, but on Orange street, a street that branches off from Broadway and a short distance from Broadway, and that the number of that saloon was 96. They say that is corroborative of the story told by Hughey and McCullough.”</p> <p>(6.) In not affirming, without qualification, the defendant’s first point, said point and answer being as follows: “ That McCullough and Hughey, the two defendants who have entered the plea of guilty in this case, are what the law calls accomplices, and that the source of their testimony in this case is deemed by the law so corrupt that it is the duty of the jury to acquit the defendant, unless the testimony of such accomplices is corroborated by other evidence in some material matter.” Answer: “We affirm that point, as explained in our general charge.”</p> <p>(7.) In not calling the attention of the jury to the fact that officer Heasly, a witness called by the commonwealth, testified that Mr. Goldberg had told him on Monday morning that he was going to Cleveland, in 'connection with his comments on the testimony of the two newspaper reporters, Gilbert and Hazen, whom be had previously informed that he expected to go to Liverpool and Wheeling.</p> <p>(8.) In not calling the attention of the jury to the testimony of the following named witnesses, who flatly contradicted the evidence of Hughey and McCullough, viz.: David Hays, Calvin Hays, John Holmes, Mrs. Ida Magee, William McCurdy, S. H. Clepper, George Phillips, Joseph Yennig, Mrs. Goldberg and Augustus Hughey.</p> <p>(9.) In his charge to the jury as a whole, in that he did not properly direct the attention of the jury to the testimony of the defendant’s witnesses, and entirely omitted to call the attention of the jury to the array of evidence produced contradicting Hughey and McCullough, and in assuming that they were corroborated by other evidence in the case.</p> <p>(10.) The learned court below greatly prejudiced the defendant’s case by his language and manner in addressing J. G. McDowell, a witness called by the commonwealth, as follows : The Court: “ Why don’t you answer the questions that are put to you?” A. “I try to.” Q. “ The court thinks you are not trying to. The court knows something about this matter, and would like to have you answer the questions put to you.”</p> <p>And again,</p> <p>The Court: “ If you do not answer the questions put to you I will commit you to jail. I know that you can answer the questions, that you were in my office and you know what took place there. You must answer the questions or I will commit you. The court will not be trifled with by a man of your age.”</p> <p>(11.) In overruling defendant’s motion in arrest of judgment and pronouncing sentence upon him, the said motion and the reasons therefor, with the action of the court thereon, being as follows, to wit:</p> <p>“ MOTION IN ABBEST OE JUDGMENT.</p> <p>“ And now, June 2T, 1896, comes the defendant, by his attorneys, and files the following reasons in support of the motion in arrest of judgment in this case, filed on the 12th day of June, 1896.”</p> <p>. “ SEASONS.</p> <p>“ (a.) For the reason that the court of quarter sessions had no jurisdiction to try the defendant on the indictment found in this case and on which his conviction was had; in that said indictment consists of two counts, the first of which charges the defendant with larceny of twenty-four coils of copper wire, and the second count charging him with the crime of receiving the said twenty-four coils of copper wire, knowing the same to have been stolen; the crime charged in the second count being an offense which is triable exclusively in the court of Oyer and Terminer. (5.) For the reason that the verdict rendered by the jury is inconsistent and insensible, (e.) For the reason that there was not sufficient evidence to sustain a verdict of guilty in this case. ( d.) For the reason that the verdict of the jury is irregular and not in accordance with law. And now, August 3, 1896, motion in arrest of judgment overruled. And now, August 3, 1896, at request of defendant’s counsel, exception noted to this action of the court and bill sealed.”</p> <p>(12.) That the learned court below erred in entering judgment against the defendant and imposing the following sentence, to wit:</p> <p>“ And now, December 24,1896, the court sentence the defendant, William Goldberg, to pay a fine of five hundred dollars to the commonwealth, the costs of prosecution, return the property stolen if not already done, and undergo an imprisonment in the Western penitentiary of Pennsylvania, situate in the city and county of Allegheny, for and during the period of one year and three months, there to be kept, fed, clothed and treated as the law directs, and stand committed until the sentence be complied with.”</p>

<p>- Appeal, No. 29, Feb. T., 1897, by plaintiffs, from order of C. P., Northumberland Co., Sept. T., 1896, No. 544, dissolving attachment under Fraudulent Debtor’s Act.</p> <p>Attachment in assumpsit under Fraudulent Debtor’s Act of March 17, 1869. Before McClure, P. J., 17th Judicial District, specially presiding.</p> <p>The attachment issued August 27, 1896. Same day bond filed. On August 31, 1896, a rule was granted to show cause why the attachment should, not be dissolved. On September 10, 1896, affidavit of defense filed. On September 14, 1896, the court, McCltjbe, P. J., dissolved the attachment in the following opinion:</p> <p>[This motion is not too late. The execution of a delivery bond does not effect a dissolution of the attachment, nor will it be a bar to a subsequent motion to dissolve.] [6] 3 Ency. of Plead. & Practice, p. 87. No issue has been raised either by plea or answer by which it can be said that defects in the process have been waived or the defendant estopped from asserting them.</p> <p>[A motion of this land raising pure questions of law does not require an oath to support it.] [7] An affidavit of the defendant thereto could be no more than the qualified belief of a man who may not have, or be entitled to, an opinion on the subject.</p> <p>The conditional part of the plaintiffs’ bond is as follows: “Now the condition of this obligation is such that, if said plaintiffs shall fail to prosecute such attachment with effect, and recover a judgment against the said defendant, and shall pay to the said defendant all legal costs and damages which the said defendant may sustain by reason of the said attachment, then the foregoing obligation is to be void; otherwise the same shall be and remain in full force and virtue.”</p> <p>It will thus be seen that it is in the form required by the act of 1869, with the exception that the word “attachment” is used instead of “ action,” and differs from the amendment of 1887 in that the clause “ or in case such attachments be quashed, dissolved or ended,” and the word “fees ” are omitted, and the clause “ and recover a judgment against the said defendant ” is inserted. Counsel have urged that these are matters of form, not of substance, and the bond good; that the words “ or in ’case such attachment be quashed, dissolved or ended” add nothing to the strength of the instrument, as if either of these 'events happen the attachment is not “prosecuted with effect,’ the condition is broken, and the sureties liable; that the words “ and recover a judgment against the defendant ” are surplus-age in no way affecting the bond; and that fees and costs being identical, the omission of the former is of no consequence.</p> <p>[ The act of 1869 provides an extraordinary remedy for a simple contract creditor. It enables him to seize the goods of his alleged fraudulent debtor, and hold them for execution before the adjudication of his claim. For an act of bankruptcy it takes the property not for the benefit of all the creditors as it should, but for the one who first gets his writ in the hands of the sheriff. The courts have accordingly put a strict construction on all the provisions of the act, holding, for example, in Hoppes v. Houtz, 138 Pa. 34, that the omission of the words “ for the use of the parties interested,” which seem to be but declaratory of the purpose for which the bond is given to the commonwealth, to be fatal; and in Parks v. Watts, 112 Pa. 4, an attachment was quashed because made returnable to the next term when a monthly return day intervened, a departure from the requirements of the act to be sure, but one that could not affect the merits of the cause, or injure the defendant.</p> <p>The act is mandatory that a bond shall be filed by the plaintiff as a prerequisite to the issuance of the writ, and sets forth the conditions to be inserted therein. While it may be true, as contended by plaintiffs’ counsel that the words “ or in case such attachment be quashed, dissolved or ended ” could have been omitted without prejudicing the rights of the defendant, by reason of the previous clause “ if the said plaintiffs shall fail to prosecute such attachment with effect” covering the same ground, evidently the legislature did not think so, for they were inserted for the purpose of supplying the defect in the act of 1869 as developed in Harbert v. Gormley, 115 Pa. 237, and to make it sure that upon the happening of either event the defendant would have a remedy for the wrongs done him by the attachment.] [8]</p> <p>[The inserted clause “and recover a judgment against the defendant ” may be regarded as surplusage, but the omission of the word “ fees ” we think a matter of substance. The introduction of this word in the amended act must have been for some purpose, and the mere fact of its introduction is evidence that the legislature considered it of importance. Costs and fees are different in their nature. Costs are an allowance to a successful party for expenses incurred in conducting his suit, and are in the nature of a penalty on the party failing in the cause; fees are a compensation to an officer for services rendered in its progress: Musser v. Good, 11 S. & R. 247; Ramsey v. Alexander, 5 S. & R. 338; Beale v. Com., 7 Watts, 183.</p> <p>While the distinction between costs and fees is not generally-made, and the latter are usually recoverable under a decree for costs, and if recovered by the party he holds them in trust for the officer (Janes’ Appeal, 87 Pa. 428); nevertheless the distinction does exist, and that distinction seems to be here made by the legislature in prescribing the conditions of the bond. The act of 1869 reads “costs and damages,” but in order to make it perfectly clear that in case the attachment be quashed, dissolved or ended, the officers would get their fees whether they had been previously paid by the defendant, and thus come strictly under the denomination of “ costs,” or not, this clause was by the amendment of 1887 made to read “ costs, fees and damages.” The different nature of costs and fees being thus recognized and the distinction marked, we do not see why the sureties could not take advantage of the omission and defend against the recovery of the latter in an action on this bond.] [9]</p> <p>The proper practice is to comply strictly with the act and have the bond drawn in conformity with its provisions. Any other rule must lead to doubt and conjecture as to whether or not the conditions of the bond will meet every emergency likely to arise. This uncertainty should not be tolerated, and the decisions of the courts are uniformly against it.</p> <p>Want of authority to execute the bond by the attorney in fact for the plaintiffs is not raised by the motion, hence will not be considered. The allegation of fraud in the affidavit seems to meet the requirements of the act, and the description of the property sold the defendant, and for which the debt was contracted is in our judgment sufficient.</p> <p>September 14, 1896, the attachment is dissolved.</p> <p>Errors assigned were (1) the learned court below erred and abused its discretion in granting a rule to show cause why the attachment should not be dissolved, on a mere motion, which does not contain a denial of any material allegation in the plaintiff’s affidavit, made by the defendant’s attorneys without being sworn to; (2) the learned court erred and abused its discretion in granting a rule to show cause why the attachment should not be dissolved on a mere motion which does not contain a denial of the fraud alleged by the plaintiff; (8) the learned court-erred and abused its discretion in dissolving the attachment after the defendant filed an affidavit of defense to the merits of the plaintiffs’ claim; (4) in dissolving the attachment after the defendant filed a bond; (5) in dissolving the attachment after inquiring into the truth of the allegations contained in the affidavit upon which the writ issued; (6-9) portions of the opinion of the court below, reciting same; (10, 11) in dissolving the attachment.</p>

Appeal, No. 26, Feb. T., 1897, by defendant, from judgment and sentence of Q. S. Northumberland Co., Sept. Sess. 1896, No. 33 on verdict of guilty. Warrant of arrest, surcharge of non-support. Before SayIDGE, P. J. The defendant, residing at Reading, Pa., was arrested on a warrant of arrest in Reading, and held for appearance at Northumberland county.

<p>Practice, equity — Preliminary injunction — Injunction affidavits.</p> <p>A mere general affidavit to the truth of the facts is entirely insufficient to support an application for a preliminary injunction made under a bill which was not supported by injunction affidavits or evidence.</p> <p>Such practice does not conform to the amended equity rules adopted January 29, 1894.</p>

<p>Landlord and, tenant — Privity of estate — Assignment of leasehold,.</p> <p>Where a lease contains no stipulation against assignment by the lessee one acquiring the leasehold by assignment is fixed with notice of its covenants and takes the estate of his assignor cum onere; his liability grows out of privity of estate and closes when the privity ceases; while he holds the estate and enjoys its benefits he bears its burdens but he lays down both the estate and its burdens by an assignment, even though his assignment be to a beggar.</p> <p>Landlord and tenant — Assignment of leasehold — Evidence—Fraud.</p> <p>A lessee of a leasehold estate, unfettered as to assignment, having assigned to an insolvent, evidence is inadmissible, as to his knowledge of such insolvency and intent in assigning, for the purpose of showing that the assignment is fraudulent and void as against the lessor seeking, to recover for royalties reserved in the lease.</p>

<p>Execution — Legitimate purpose is satisfaction of debt.</p> <p>The purpose of an execution is to obtain satisfaction not security of a debt, and the employment of an execution for any other purpose than satisfaction is a perversion of its design, and a fraud against third persons.</p> <p>Execution — Postponement on ground of fraud.</p> <p>The ground on which an execution may be postponed to a subsequent levy is that the prior one is not used in good faith for its legal purpose but in fraud of the right of others.</p> <p>An agreement by a senior execution creditor which permits the possession and control of the property to remain with defendant after levy as before, so that private sales were made in contravention of law is a fraud in law, and will postpone such execution to the junior execution of a more vigilant creditor.</p>

<p>Negligence — Defective sidewalk — Question for jury.</p> <p>Where a case presented questions of fact as to the conditions of a foot-walk, and the conduct of the plaintiff and of the officers of the borough: Was the walk safe or out of repair ? Had the borough authorities actual or constructive notice of its alleged defects, and were they negligent in failing to keep it in proper repair? Was the plaintiff injured because of the negligence of the borough officers having charge of the walk and without fault on her part? If so, to what extent, and what was reasonable compensation therefor? There being sufficient evidence to raise these questions the case was properly submitted to the jury.</p> <p>Negligence — Boroughs—Sideioalks—Evidence.</p> <p>In an action against a borough to recover damages for personal injuries caused by a fall on an alleged defective sidewalk, it is proper to admit evidence of the condition of the sidewalk six weeks after the accident, where it appears that there was no change in its condition from the time of the accident to the time of the examination by the witnesses.</p> <p>Practice, C. P. — Improper remarks of counsel — Record—Review.</p> <p>Remarks of counsel which are not only in exceedingly bad taste but which grossly violate professional ethics should not be indulged in nor permitted. When such remarks moreover assume the aspect of a threat they should not be tolerated, and a new trial should be granted as a deserved rebuke to counsel for employing such tactics.</p> <p>In the case at bar the appellate court held that while there was nothing on the record which justified a reversal, the matters objected to deserved notice and rebuke.</p> <p>Negligence — Boroughs—Sidewalks—Notice—Evidence.</p> <p>The case is properly for the jury where there was evidence tending to show that a plank sidewalk on a borough street was rotten and had been patched in places, and that this had been observed by various persons for periods ranging from six weeks to one year preceding the accident.</p>

<p>Courts — Power to call in judges from another district — Constitutional law.</p> <p>There is no question as to the right of the president judge of any court of this commonwealth to call for the services of another judge of any court of common pleas of this commonwealth to try causes or to transact any business which may come before such courts at any regular or adjourned court or in vacation. The presumption is where no record is made, that the visiting judge was called in pursuance of, in conformity with, and for the purposes designated by the several acts of assembly conferring such powers upon the judges of the lower courts.</p> <p>The Act of March 24,1887, P. L. 14, is constitutional; this question was virtually determined in Re Application of Judges, 64 Pa. 33.</p> <p>Constitution of Pa. — Substitution of judges.</p> <p>Another judge learned in the law can be substituted for the president of oyer and terminer and general jail delivery under the power contained in art. V. see. 4, of the constitution of Pennsylvania.</p> <p>Constitutional law — Terms of oyer and terminer — Act of 1881.</p> <p>The Act of June 10, 1881, P. L. 113, is constitutional and can properly be construed to extend a term of criminal court beyond one week.</p> <p>Evidence — Criminal law — Tictim of abortion not an accomplice.</p> <p>A woman upon whom an abortion has been committed is not a particeps eriminis subject to the restrictions and caution which govern and control the testimony of an accomplice.</p> <p>Evidence — Criminal law — .Proof of bias and haired on cross-examination.</p> <p>A party may always put such questions to a witness in cross-examination as tend to show his favor or bias toward the parly calling him. Proof of an attempt to blackmail, in connection with the very case being tried, on the part of a witness is proper to be submitted to the jury as it may affect the witness’ credibility</p>

<p>Appeal, No. 27, Feb. T., 1897, by defendants, from judgment of C. P. Clearfield Co., Sept. T., 1893, No. 343, on verdict for plaintiff.</p> <p>Trespass. Before Gordon, P. J.</p> <p>The action was brought to recover damages sustained by reason of the seizure and sale of certain personal property claimed to be owned by plaintiff by virtue of a landlord’s warrant issued by S. B. Boring and directed to W. S. Blair, constable.</p> <p>On May 8, 1893, the constable made his levy in writing and gave a copy of it to the tenant and told him that unless rent was paid he would proceed to sell according to law. On May 25, the constable gave a written notice that an appraisement would be held on the 30th day of May, on which day an appraisement was made by three appraisers, no one of whom was a freeholder. The sale of the goods was made about June 11 or 12.</p> <p>It further appears from the evidence that the plaintiffs in the case claimed to have become the owners of the goods distrained by virtue of a previous sheriff’s sale, but left them upon the premises in the possession of Schettig the tenant.</p> <p>Verdict and judgment for plaintiffs for $568.77. Defendants appealed.</p> <p>Errors assigned were (1) in answering the defendants’ first point, which point and answer are as follows:</p> <p>“ 1. That under the law and the evidence in this case the plaintiffs are not entitled to recover. Answer: We decline so to instruct you.”</p> <p>(2) in answering the defendants’ second point, which point and answer are as follows:</p> <p>2. That if the jury find from the evidence in the case that actual notice of the distress was given to H. J. Schettig by W. S. Blair, constable, at least six days before appraisement and that the appraisement would be held unless the matter was settled, then you are instructed that such was a sufficient notice as there is nothing in law requiring notice of distress and appraisement to be in writing. Answer: We decline so to instruct you. It is true there seems to be a dearth of authority upon this question as to the character of the notice required, but a reading of the act of assembly would seem to mean that the notice contemplated is a notice in writing. It reads:</p> <p>“ And notice thereof, with the cause of such taking, left at the mansion-house or other most notorious place on the premises charged with the rent distrained for.”</p> <p>Now, it would seem that when the act provides that a notice shall be left on the premises that it contemplates a written notice that can be left there after the party giving it has departed; and we also find it laid down in 16 A. & E. E. of L. page 789 under the head Statutory Notice, — “The rule is well settled, that where a notice is required or authorized by statute, in any legal proceeding, it means written notice.”</p> <p>And to sustain that proposition a number of cases are cited but none of them are Pennsylvania cases. I also find a case in 4 Clark, 181, Trustees of St. Michael’s Church v. The County of Philadelphia; in the syllabus of that case is this sentence: “ Wherever notice is required under a statute, written notice is to be understood.”</p> <p>And it seems to be tbe law that where a notice is required and' the act is entirely silent upon that, as a rule a verbal notice is sufficient; yet, we are of the opinion that in this case the notice contemplated by act of assembly should be in writing and the evidence, the uncontradicted evidence in the case, is that the only notice in writing that was given in this case was that served on the 25th of May, 1893, and there was no other notice, not even a parol notice, given prior to that time, such as would comply with the act even if a parol notice would be sufficient; so we decline to affirm that second point.”</p> <p>3. In answering the defendants’ third point, which point and answer are as follows: (3) If you find that the proceedings under the warrant and distress were regular and legal, then the plaintiff cannot recover, as the goods were hable to levy and distress if they were on the premises whether they belonged to the tenant or to Snyder Brothers. Answer: That is a correct proposition of law; if the proceedings in distress were legal the goods on the premises would be liable to the distress; but we say to you and have already said to you, that in our opinion the proceeding of distress was illegal, that therefore the officer and the person issuing the warrant were not protected by it.</p> <p>4. In answering the defendants’ fourth point, which point and answer are as follows: “ (4) If you find that the sheriff’s sale of Schettig’s goods to Snyder Brothers was fraudulent and intended to hinder and delay other creditors of Schettig, then they would acquire no such title as would enable them to recover in this case, and your verdict should be for the defendants whether the proceeding on the landlord’s warrant was regular or not. Answer : That would follow if there was sufficient evidence in this case to warrant a finding that the sale was fraudulent; because it is true that if the plaintiffs must show that they are the owners of the property and also that the proceeding by distress was illegal, the burden is upon them to show both in this case, but as we have already instructed you in our opinion there is no evidence in this case such as would justify a jury in finding that there was fraud resorted to in this sale, and we therefore are compelled to withdraw that question from your consideration.”</p> <p>5. In charging the jury as follows: “ The evidence here shows the date when this warrant of the justice of the peace was issued when the levy was made. It is claimed on the part of the defendants that the levy was made on. the 18th day of May, 1893, and it is also in evidence that the written notice to the tenant that the appraisement would be made was served upon him on the 25th day of May, 1893, and we say to you that there is not any evidence of prior legal notice of appraisement given in this case. It is true W. S. Blair, constable, testifies to having had conversation with the tenant prior to that time that he would proceed to execute the landlord’s warrant if the money was not paid and that he would make an appraisment unless the matter was fixed up, or words to that effect, but in our opinion of the law, what he said prior to the service of the written notice was not a com'pliance with the act of assembly requiring five days notice of the making of any appraisement. There is no pretense or claim in this case that in any of these prior conversations the time was fixed when the appraisement would be made, and the notice in writing served on the 25th of May, having fixed a time when the appraisement was to be made, it would seem that that was notice which the parties adopted as the notice required by the act of assembly.”</p>

<p>Appeal, No. 16, March T., 1897, by defendants, from judgment of C. P. Perry Co., on verdict for plaintiff..</p> <p>Assumpsit to recover damages for alleged breach of parol contract. Before Lyons, P. J.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>Errors assigned were: (1.) Answer to the second point of defendant: “ 2d. That the time is an essential element in the contract and to observe the time of performance was equally obligatory on the plaintiff and defendants as to the whole contract and if the jury believe that the plaintiff did not attempt to, or did not remove the thirty head of cattle on or before the 20th day of June, 1895, the said plaintiff cannot recover for any loss on said thirty head of cattle. Answer: That would be true if the contract was a divisible contract. But if you find that this contract was an entire contract and the plaintiff was to receive the whole of the fifty-five head of cattle, he was not bound to take the thirty head when the defendants failed to deliver' him the first part of the cattle.”</p> <p>(2.) Answer to the third point of defendant: “ 3d. That the contract alleged by the plaintiff is severable and if the jury believe that the plaintiff did not comply with that part of the contract requiring him to remove the thirty head of cattle on or before the 20th day of June, 1895, then no recovery can be had for the loss on the said thirty head of cattle. Answer: We cannot affirm this point. As to whether this was an entire or divisible contract, or severable contract, depends upon the intentions of the parties at the time it was entered into and we submit the question to you to determine whether it was an entire contract, or whether it was a divisible contract, under all the evidence in the case, and if the contract is found by you to be a divisible, or severable contract, then this point would be correct.”</p> <p>(3.) Answer to the fourth point of defendant: “ 4th. The time being of the essence of the contract, if the jury believe that the plaintiff’s failure to remove the thirty head of cattle at the time alleged, namely, on or before the 20th day of June, 1895, and that the defendants sold them at a loss, and said loss being certainly ascertained, can be set off as against any loss sustained by the plaintiff on the twenty-five head sold on the 3d day of June, 1895, to Aarons. Answer: We say to you, that the answer to this point depends upon whether this was an entire or a severable contract, and if yon find that it was an entire contract then this point would not be correct. If, on the other hand, the contract was a divisible one, then the law is correctly stated in the point.”</p> <p>(4.) Answer to the fifth point of defendant. 44 5th. That the plaintiff having failed to show under the statement that he was ready and willing to take the thirty head of cattle to be removed the 20th of June, 1895, and no averment in the said statement that the said defendants failed to keep and feed said cattle for the plaintiff until the 20th of June, 1895, there can be no recovery for any losses on said thirty head of cattle. Answer: Refused, unless you find that the contract was a severable contract.”</p> <p>(5.) In the following paragraph of the charge: “ The first question, therefore, for you to determine in this case is, what was the contract between these parties ? Did the plaintiff buy all of the fifty-five head of the said cattle? Was the contract an entire one, or was it a divisible contract ? By an entire contract I mean, did the plaintiff agree to purchase the fifty-five head of cattle as one contract for one round consideration, although it was to be determined by the weight of the cattle, and did the defendants agree to sell the whole of the fifty-five head of cattle ? Was that the intention at the time the contract was made between the parties? The plaintiff contends that it was and the defendants have not seriously denied .this contention.”</p> <p>(6.) In the following paragraph of the charge : “Then, on the other hand, take this fact into consideration, that Mr. Loy learned that the cattle had been sold by Snyder to Walter and the price he was to get for them and he did not deny that he asked Mr. SnjMer to increase the contract price of the cattle, when he was there looking at them in May, 1895, that he said to him : 4 You have done well by these cattle, you made money on them and you ought to give me more money,’ how much more I don’t recollect, but the fact is there was something said about that; you recollect how much that was, that the contract at that time was talked over between them. Then again, consider the fact that he wrote a letter to Mr. Snyder on the first day of June, which came on Saturday, the last day of the first week in June, wanting to know when he was going to take these cattle. The letter was written on Saturday, the first day of June, 1895, in which he wanted an immediate answer whether he was going to take the cattle or not; that letter by due course of mail reached its destination; I do not know whether there is a route across the mountain or not, you may know about that, but take into consideration the probability whether or not Mr. Snyder, living in Newville, would receive it, or could by any possibility have received it in time to have replied before Mr. Loy sold these cattle. Mr. Aarons appeared on the scene and purchased these cattle on Monday, I forget the exact hour, you will recollect it, but before night, and they were shipped away in the cars the day before Mr. Snyder came to receive them under his contract. Now what was the motive for making this sale so quickly ? He knew that the time of the contract was claimed by Mr. Snyder and Mr. Walter to be the first week in June. The sale was quick, and he says he got no more money than he was to get from Mr. Snyder. What motive was there in doing that ? Did he "think that by selling the cattle in that way that Mr. Snyder had forfeited the $110 he had paid and he could keep it? Take all these things into consideration. Was he attempting to make a strict construction of a contract and thus reap the benefit of that $110 and keep it in his pocket, or was he acting honestly in accordance with the terms of the contract? Under all these circumstances you will weigh the evidence and look for the motives that actuated the parties one way and the other. Was there any motive for Mr. Snyder not to live up to his contract? Had he sold the cattle to Mr. Walter, as it is alleged he had, and as Mr. Walter testified he had, and that he had been paid the earnest money on account of that contract, and by reason of his failure to get the cattle from Loy he was sued for the money and had to pay it back? Take all these tilings into consideration and determine how the truth of this matter is.”</p> <p>(7.) In the following paragraph of the charge: “ If the contract was, that Mr. Snyder was to take those cattle away during the week in which the first day of June occurred, then he did not comply with the contract on his part and he cannot recover. But if on the other hand, under the evidence in the case you find that the contract was, that these cattle were to be delivered in the first week of June and that Snyder came for the cattle in that time, the latter of which is not disputed, then Mr. Snyder is entitled to recover the loss and damage which he sustained by reason of the failure of the defendants to deliver the cattle at that time, and if the contract was an entire one, and that is a question of intention which you must find from the evidence in the case, if you find that this was an entire contract, that Mr. Snyder bought the entire lot of cattle, although the price was to be measured by their weight at the time of delivery, and the defendants agreed to sell the entire lot of cattle and then failed to comply with their agreement to deliver them in the first week of June, the plaintiff is entitled to recover whatever damages he sustained by reason of the failure to perform the contract, and he would not be obliged to accept the thirty head of cattle which remained there on the terms of the contract. If the contract was an entire one, the defendants must perform their part, and if they failed to do it they could not ask the plaintiff to accept at their hands the remaining cattle which he alleges were inferior in quality and were not to him as valuable and profitable as those that were sold. So that you will consider all the evidence in the case, and if you find, as I have instructed you, that the contract was that the first lot of cattle were to be delivered in the week in which the first day of June occurred, then the plaintiff not having accepted them at that time, taken them away, cannot recover in this action.”</p>

<p>Municipal law — Borough—Contracts—Assent by councils.</p> <p>The validity of a contract with a borough binding the latter to pay an annual water rent for a period of years depends on the assent of the borough councils and without such assent the borough is not bound although the paper is executed with all due formality.</p> <p>A body of this kind should exercise its powers by joint action as a board; loose discussions without any motion or united action are not sufficient.</p> <p>Municipal contract — Assent of councils — Evidence—Parol evidence.</p> <p>Where in order to prove the assent of the borough council to the written contract sued on, the plaintiff can show no resolution or ordinance authorizing the contract but must depend upon parol evidence of what was said and done at the council meeting at which it was signed. She has no reason to complain of the admission of evidence tending to show that assent was given conditionally and that the writing does not embody the whole action of council in the matter, or of the submission of such evidence to the jury to determine what was the agreement which the council made or authorized to be made.</p> <p>Contract subject to vendee's satisfaction — Bight of rejection.</p> <p>When an agreement is to make and deliver an article to the satisfaction of the person for whom it is made, the latter, acting in good faith, and not from mere caprice, may refuse to accept if, for any reason, it is really not satisfactory to him, but such refusal cannot be made before an actual bona fide inspection of the article.</p>

<p>Execution — Special fi. fa. against partnership interest.</p> <p>The Act of April 8, 1878, P. L. 65 authorizing a writ of fieri facias for the sale of the interest of the defendant in a copartnership of which he is a member, did not provide a new remedy but recognized, enlarged and rendered more effective a remedy theretofore existing.</p> <p>Execution — Priority of liens.</p> <p>Where an actual levy has been made on defendant’s interest in a copartnership under an ordinary writ of fieri facias, such levy will prevail over a subsequent levy made under a special writ of fieri facias issued under the act of Ap>ril 8, 1878.</p>

Appeal, No. 21, Jan. T., 1897, by-defendant, from judgment of C. P. Luzerne Co., Oct. T., 1893, No. 893, on verdict for plaintiff. Assumpsit on policy of insurance. Before Lynch, P. J. It appeared from the evidence that plaintiff was the owner of an old frame house purchased by him in 1891 for $100. He insured it with defendant company for $400, and during the term of the policy it was totally destroyed'by fire.

<p>Appeal, No. 146, Nov. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1891, No. 52, in favor of defendant.</p> <p>Attachment ad lev. deb. to satisfy judgment. Before Livingston, P. J.</p> <p>The facts sufficiently appear in the,opinion of the Superior Court.</p> <p>Errors assigned were (1) In those parts of the charge referred to by the plaintiff below in his exceptions thereto. The first exception is to that part of the charge in which the court says: “ Among all the cases cited there is not a single case like the present, not one, in this: that the money deposited in the bank is alleged by the depositor to have been received by him as the agent of companies which lie named and deposited in this bank; that on the same day, whether before or after the attachment was served is not clear, the same agent telegraphed to the man who had given him one of these checks to stop its payment in bank; it was not paid to the bank, and the bank so says, payment was stopped, protest was entered and suit was afterwards brought by the bank in which it had been deposited and from which it had been removed, which was done before the service of the attachment against the party, who paid it again the second time to the agent.”</p> <p>(2) The second exception is to that part of the charge in which the court says : “ Now, gentlemen of the jury, you will have to find, in the first place, from the evidence, remembering it, whether this notice given Kingsley & Son by wire was given them before the service of this attachment on the 3d of September. If it was, then you need not consider anything more in reference to that notice ; because if he ordered the party who gave him the check not to pay it to the bank, then he could not compel the bank to pay it, nor could those who issued the attachment compel the bank to pay it unless it ivas there and unmoved or the order not given to protest it before this attachment was issued. If you find the notice was prior to the service of this attachment upon the bank, then I say you need not consider that any further, because it could not be recovered by him nor the attaching creditor.”</p> <p>(3) The third exception is to that part of the charge in which the court says : “ Then there would be $49.00 and some cents, you will remember the amount, which you would still further have to consider; and it will be for you to say then whether that belongs to him or the party for whom he was acting as agent, whether paid him as his own money or paid him as their agent. He says it was paid him as agent, none of it was his, it belonged to these companies, and he shows you the amount, the bank book shows you who the check was from. He tells you that was for insurance; and if you find that belonged to them and not to him, the attachment should not hold it, because they can follow it wherever they find it, there are earmarks sufficient for them to claim it. In that case your verdict would have to be for defendant, the Tanners’ Fire Insurance Company, which has a claim.”</p> <p>(4) In answer to the first point submitted by the plaintiff: “ 1. If the jury believe that the check of Kingsley & Son for $361 was accepted by the bank, not only for transmission or collection, but as cash, or treated it as such, then they would be warranted in finding that there was in the hands of the bank the sum of $410.58 at the time of the attachment belonging to Samuel Kurtz or to the insurance companies. Answer: That would be true with everything except the $361. If the jury should find that payment of that had been stopped before the service of the attachment, then the attachment would not bind it. The defendant could not recover it, nor could the attaching creditors if he ordered it stopped before the attachment was served.”</p> <p>(5) Answer to the second point submitted by the plaintiff: “ 2. If the jury believe that the bank has credited the defendant with the Kingsley check, has never charged it back and has brought suit as a bona fide holder of the said check against Kingsley, then the bank is estopped from denying or refusing the credit it gave for this check. Answer: That would be subject to the same conditions that I have stated with reference to the first point. Why it was not charged back we cannot tell. They acknowledge receiving notice of protest of nonpayment.”</p> <p>(6) Answer to the third point submitted by plaintiff: “ 3. If the jury believe that the bank on this trial disclaims any right to withhold, or does not withhold, the credit given for this check, then the jury would be warranted in finding the amount of $410.58 in the hands of the bank belonging to the defendant, or to him as agent. Answer: We say it would not, under the evidence of the officers of the bank on the stand. This money has not been paid, the note was protested and has not yet been collected. The jury would not be permitted to find a verdict nor the court to enter a judgment against the garnishee in such case. It is not shown the money is in the bank; it is shown it is not. It is in dispute even if correct and not denied for the attachment.”</p> <p>(7) Answer to the fourth point submitted by plaintiff: “4. If the jury finds this amount to be in the hands of the bank and believe that the insurance companies, claimants, have since the attachment, been paid, then all of the said amount would belong to Samuel Kurtz, and the verdict should be in favor of the plaintiff. Answer: There is no evidence, as I remember, of the payment of the Tanners Insurance Co. claim; there is evidence of the payment of the Lebanon claim and the Phoenix claim; the Phoenix claim is admitted by the other side to be paid, and a statement was produced, you remember, by, a witness showing he owed Lebanon nothing. It was said there was some commissions of his unsettled, for that might leave him, if paid to him, indebted to them, but that was not stated here; and the evidence so far as shown on the stand in his claim was settled, paid.</p> <p>(8) In allowing the following offer of the defendant: “Defendant offers in evidence defendant’s claim for the benefit of the $300 law in this attachment, filed on September 11, 1891, and marked ‘ J. B. L. No. 5.’ ” Objected to by plaintiff. Admitted for the purpose of continuing his claim. Plaintiff excepts. Defendant excepts.</p> <p>(9) In not charging the jury that “ the defendant could not disclaim title in the property, and at the same time file his claim for the exemption; and that if the effect of the disclaimer of title to the whole of a fund and a claim of title to a part of the same fund was to hinder, delay, or put the plaintiff to any additional expense, the defendant would not be entitled to the benefit of the exemption.”</p>

Appeal, No. 37, March T., 1897, by Elizabeth Mease, from decree of C. P. Lebanon Co., June T., 1895, No. 473, dismissing exceptions to the report of auditor and confirming said auditor’s report absolutely. Exceptions to auditor’s report. Before Ehrgood, P. J. The facts sufficiently appear in the opinion of the Superior Court.

<p>LAbel — Privileged communication — Burden of proof.</p> <p>A communication to be privileged, must be made on a proper occasion, from a proper motive and be based upon reasonable or probable cause. The immunity of a privileged communication is an exception, and he who relies upon an exception must prove all the facts necessary to bring himself within it.</p> <p>Libel — Probable cause defined.</p> <p>Probable cause, which will sustain a privileged communication, is a reasonable ground of suspicion supported by circumstances sufficient to warrant a cautious man in believing that the party is guilty of the offense.</p> <p>Knowledge that the plaintiff had neglected to perform certain duties, such .as the collection of certain fees, affords no probable or reasonable ground for belief in the charge that he had violated the law by receiving fees to which he was not entitled, especially when the fees referred to in the charge were the same fees which he was known not to have received.</p> <p>Libel — Duty to prove truth or establish probable cause.</p> <p>A charge that a candidate “ did violate the law and take fees to which he was not entitled” is libelous per se. The plaintiff at the time being a candidate for a public office it was made on a proper occasion and from a proper motive, but responsibility will not be excused where the defendant not only fails to show the truth of the statement but also to establish that it was based on reasonable or probable cause. It is not sufficient to show that defendant had information which led him to believe it was true, the circumstances leading to the belief must be shown, that it may appear whether or not it was well founded.</p> <p>Evidence — Erroneous rejection mired by cross-examination.</p> <p>The appellate court will not reverse for error in rejecting competent testimony where the record shows that the very matters to which the offers relate were subsequently brought out in full by the subsequent cross-examination of the witnesses by whom the offer had been made to prove the rejected testimony in chief.</p>

<p>Appeal, No. 22, March T., 1897, by defendant, from judgment of C. P. Adams Co., Aug. T., 1895, No. 87, on verdict for plaintiff.</p> <p>Assumpsit on a promissory note. Before Swope, P. J.</p> <p>Elias Adler, the representative of the plaintiff, was applied to in 1894 by Adam Braunreuter for a loan. The loan was made, said Adler delivering the money and obtaining note therefor. The following is a copy of note which was given said Alder for the plaintiff:</p> <p>Gettysburg, Pa., Sept. 17, 1894.</p> <p>On demand after date we promise to pay to the order of Mr. Jos. PI. Strause, Manager, Seven hundred and fifty dollars, value received.</p> <p>A. Braunreuter.</p> <p>E. Braunreuter.</p> <p>Adam Braunreuter and Elise Braunreuter were at that time husband and wife. Action of assumpsit was brought upon this note by the plaintiff on May 24,1895, against Adam Braunreuter and Elise Braunreuter. Elise Braunreuter filed an affidavit of defense and pleas of nonassumpsit and coverture to said action. Adam Braunreuter died August 2, 1895, and his estate was not made in any way whatever, a party defendant to the action. The plaintiff proceeded to trial on the issue between himself and Elise Braunreuter, and the jury were sworn to try the issue between Joseph Strause, manager, plaintiff and Elise Braunreuter, defendant, both being living parties to the issue.</p> <p>Upon the trial the defendant offered to go on witness stand to prove facts occurring at the giving of the note in the presence of Elias Adler, the representative of the plaintiff, to establish the fact that the note concerned the business of her husband and no business of hers; that there was no consideration moving to her. That she signed the note as bail for her husband, and she so signed the note at the request or command of her husband in the presence of said Adler, the representative of the plaintiff. The court refused to allow the defendant to so testify as incompetent under section 5, clause E, of act of 1887. To this ruling exception was taken by the defendant. [1]</p> <p>The defendant then called to witness stand, as upon cross-examination, Elias Adler. This witness is alleged to have made many conflicting and contradictory statements. After this witness retired defendant offered to testify to what occurred between her and Adler, confining her testimony to matters testified to by Adler. The court refused to allow defendant to testify. To this ruling exception was taken by the defendant. [2]</p> <p>Defendant asked that the facts be passed upon by the jury, upon the testimony of Adler, whether defendant was security or not upon the note in suit, by reason of the conflicting and contradictory statements of the witness. This was refused by the court and the jury instructed by the court to find for the plaintiff. [3]</p> <p>Verdict and judgment for plaintiff for $773.85. Defendant appealed.</p> <p>Errors assigned were (1) in refusing to allow defendant to testify; (2) after Elias Adler had testified in not permitting defezidant to testify izi rebuttal to all facts testified to by Adler as occurrizig betweezr defezidazzt azzd said Elias Adler; (3) in taking the facts from the jury and directing a verdict for the plaizitiff.</p>

Appeal, No. 41, Jan. T., 1897, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1896, No. 280, on verdict for defendant. Feigned issue to determine tbe right to the proceeds of two policies of insurance. Before Gunster, J. Tire facts sufficiently appear in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 38, Jan. T., 1897, by plaintiffs, from judgment of C. P. Lackawanna Co., April T., 1880, No. 716, on verdict for defendant. Issue framed on application made April 5, 1895, to open a judgment, entered on a judgment note, the note to stand as declaration with pleas of payment, payment with leave, etc., to which was added the plea of the statute of limitations. Before Archbald, P. J. The facts sufficiently appear in the opinion of the Superior Court.

<p>Negligence — Street railways — •Disorderly conduct of passengers — Measure of company's liability — Respondeat superior.</p> <p>A railway company is not liable for an accident which results from sudden noise and disorder on the part of a body of passengers, which disorder in the exercise of sound judgment and discretion, it was not obliged to anticipate or provide against. The doctrine of respondeat superior does not apply.</p> <p>Negligence — Street railways — Riotous conduct of passengers — Proximate cause— Question for jury.</p> <p>The sudden outburst of passengers on a trolley car frightened a well broken horse not afraid of such cars as usually conducted, and the horse ran away and upset the wagon. Held, That the failure or inability of the conductor or motorman to stop the unexpected demonstration was not such proximate cause of the injury as would render the railway company liable, and that it was error to leave to the jury the question whether the company’s employees permitted the passengers to indulge in such conduct as would frighten an ordinarily well broken horse.</p>

<p>Bailment — Contracts to buy at expiration of term of lease.</p> <p>An option to buy at the expiration of the' term of a lease, upon payment of an additional sum, has frequently been held to be proper in contracts of bailment.</p> <p>Contracts — Bailment a question of intention.</p> <p>The courts in determining whether or not the contract was one of bailment, or one of sale with an attempt to retain a lien for the price do not consider what name the parties have given to the contract.</p> <p>Contracts — Lease of chattels — Option to buy — Bailment.</p> <p>Where the writing shows a clear intention to make a contract of bailment and that it was not a pretense but a fact, and where the property is “ rented and let ” “ for the use, lease and hiring of the same ” and the second party agrees to pay a fixed monthly rental and in default of payment to vacate the premises and to deliver up the fixtures, with an option to purchase, after the expiration of the lease, for $100 additional, and where there is nothing in the writing or testimony to warrant the court in doubting the fairness of the amount of the payments as rent; and where the identity and value of the property is preserved so that the bailor may have his own again, the contract is one of bailment and not of sale, and the goods are not subject to execution for the debts of the bailee.</p>

Appeal, No. 34, March T., 1897, by John J. Kutz, executor of Samuel H. Kutz, for himself and others, mortgagees of Isaac R. Lash, from the several orders of C. P., Lebanon Co., tbe first, refusing to set aside writ of fi. fa. issued to No. 1, Sept. T., 1895, on the above judgment, 215 Dee.

<p>Appeal, No. 58, Nov. T., 1895, by defendant, from judgment of C. P. Schuylkill Co., May T., 1885, No. 222, on verdict for plaintiff.</p> <p>Verdict and judgment for plaintiff for $500.18. Defendant appealed.</p>

<p>Negligence — Township liability for defective roads — Degree of care.</p> <p>As a general rule township supervisors are in no wise responsible for the condition of land outside the limits of the road. They are only bound by conditions which create a danger so manifest that it is negligence not to employ the obvious means of guarding against it; and this must be done so effectually that even skittish animals may pass with safety. Where no danger may be anticipated from a cause existing beyond the limits of the roadway no duty in respect to such cause devolves upon the supervisors. They are not bound to anticipate danger to which a frightened horse may expose the driver.</p> <p>Negligence — Highways—Township liability — Proximate cause.</p> <p>If a defect in the'highway be merely coincident with a distinct and unrelated cause, for which the township is not responsible, and without which the injury would not have happened, the latter is to be regarded as the proximate and the former as the remote cause.</p> <p>Practice, O. P. — Negligence—Allegata and probata — Variance.</p> <p>It is error to leave-a question of negligence to a jury where there was nothing in the pleadings to give notice that such a question would be contended for on the part of the plaintiff, and that a failure to perform it would be set up as the negligence complained of.</p> <p>Highway — Danger—Degree of care — Province of court and jury.</p> <p>The liability of a township for its roads is based upon negligence and not danger. All grade crossings are dangerous and it is error to leave to the jury the question of negligence based upon the assumption that a particular crossing was dangerous, and that the township was by law required to provide means of wholly avoiding the danger.</p>

Appeal, No. 26, Jan. T., 1897, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1890, No. 325, on verdict for defendants. Replevin. Before Woodward, J. . The plaintiff, a contractor engaged in the erection of a bridge across the Susquehanna river at Wilkes-Barre, had in use a new derrick or hoisting apparatus which were carried away by a freshet on July 26th -, following the stream on the 27th he found them stopped at a dam lower down.

Appeal, No. 41, March T., 1897, by defendant, from judgment of C. P. York Co., Aug. T., 1896, No. 20, on verdict for plaintiff. ' Trespass sur slander. Before Stewart, J. The facts sufficiently appear in the opinion of the Superior Court. Verdict and judgment for plaintiff for $250. Defendant appealed. JSrrors assigned were (1) in refusing the defendant’s first point, said point and the court’s answer thereto, being as follows : — “ 1.

Appeal, No. 22, Oct. T., 1897, by plaintiff, from judgment of Q. S. Chester Co., Oct. Sess., 1896, - — , setting aside verdict for defendant. Indictment for violation of the pure food law. Before Hemp-hill, J. The defendant kept a grocery in the borough of West Chester and was indicted in the quarter sessions for violation of the Act of June 26, 1895, P. L. 317, and upon trial was convicted upon two counts of the indictment.

<p>Mines and mining — Constitutional law — Bituminous Goal act.</p> <p>The power of the legislature to define and classify coal mines as it has done, and to legislate for each class separately must be regarded as settled on the authority of Durkin v. Kingston Coal Co., 171 Pa. 193. The Bituminous Coal Act of May 15, 1893, P. L. 53, does not offend the constitution in being either local or special legislation, nor in containing more than one subject.</p> <p>Statutes — Constitutional enactments as to sufficiency of title — Act o/1893.</p> <p>The unity of a subject of a statute is to be determined by its paramount purpose rather than by the details through which that purpose is to be accomplished. The subject may have but one object, while the measures necessary for the attainment of that object may necessarily embrace many subordinate subjects, differing in their nature and particular effect, yet all contributing to it, and comprised within the principal subject. Everything which the nature of the subject of a title reasonably suggests as necessary or appropriate for the accomplishment of its expressed purpose, is sufficiently indicated by such title.</p> <p>Mines and mining — Sufficiency of title of bituminous coal act.</p> <p>The title of the Act of May 15, 1893, P. L. 52, meets all the constitution demands as to sufficiency. The objections to its sufficiency are without foundation. It is not necessary that the title should refer specifically to matters legitimately implied from its purpose as indicated by the title. The essential parts of a statute are the declaratory, the directory, the remedial and the vindicatory; and if the title clearly expresses the subject to which the statute is to apply, it is sufficient without expressing in detail the character of the several parts.</p> <p>A penalty is implied in the expression of a purpose to which it is a necessary adjunct.</p> <p>Constitutional prohibition of local legislation — Query as to the effect of police power.</p> <p>It would seem necessary in considering the constitutional prohibition of “ any local or special law” upon the subjects enumerated in art. III. sec. 7, of the constitution, to take into account the provision of art. XVL, sec. 3, that “the exercise of the police power of the state shall never be abridged.</p> <p>It is difficult to regard the latter provision as merely aimed at legislative abridgment of the police power of the state. The broad and unqualified terms of the section relating to the police power would seem to imply that no abridgment in any manner was intended.</p> <p>It is not necessary however, to invoke this construction to preserve the constitutionality of the act in the present case. Smith, J.</p>

<p>Appeal, No. 52, March T., 1897, by plaintiff, from decree of C. P. Lebanon Co., No. 7, Equity Docket, 1893, dismissing bill in equity for want of prosecution.</p> <p>Motion to dismiss bill filed for want of prosecution. Before Ehrgood, P. J.</p> <p>The bill was filed June 21, 1893. On July 1, defendant appeared, delaying answer, howevei, until ruled, and filed answer October 6. The plaintiff delayed replication, the defendant acquiescing by omitting to rule him to reply. On the first Monday of March, 1894, the amendments to the equity rules suspended proceedings until the adoption by the court of an order for the preparation of equity trial and argument lists. Such order was not made until August 29, 1895, when the court adopted special equity rule No. 3, which provided that “ the court shall, at the instance of either party, upon reasonable notice to the other party, not exceeding thirty days, hear the case.” January 6,1896, a replication was filed. March 16, 1896, plaintiff moved the court to hear the case, and to fix the. time and place for so doing, and to make the necessary orders for such hearing. March 30, 1896, the defendant moved to dismiss the bill for want of prosecution; both motions being held under consideration until December following. On December 9, 1896, an order was made dismissing the bill for want of prosecution, and December 10, the court indorsed on the motion to hear a direction for filing as of March 16, 1896, and it was accordingly filed as of that date.</p> <p>It appears that no notice was given to the plaintiff of the motion to dismiss, but he was present and heard under protest.</p> <p>Errors assigned, were (1) sustaining motion to dismiss; (2, 3) dismissing bill.</p>

<p>Evidence — Buies as to admission of parol evidence to vary contract.</p> <p>Parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation though it may vary or change the terms of the writing. The existence oí a contemporaneous parol agreement under the influence of which a contract is signed, may always be shown when the enforcement of the paper is attempted in disregard of the parol stipulation.</p> <p>Evidence — Parol evidence to vary lorilten contract.</p> <p>While a written agreement cannot be set aside on the testimony of one party when contradicted by the testimony of the other party, yet where there, are corroborating circumstances, or circumstances from which inferences may be drawn corroborative of the contemporaneous parol agreement, the question should be submitted to the jury.</p> <p>Question for jury — Parol evidence to vary contract.</p> <p>The question is for the jury where, in an action on a lease, the defendant’s evidence as to a contemporaneous parol agreement, which had not been observed by the lessor, is clear and positive, and which is corroborated in some of its leading aspects.</p>

Appeal, No. 44, Nov. T., 1896, by defendant, from judgment of C. P. Delaware Co., June T., 1895, No. 46, on verdict for plaintiff. Trespass for injuries to liorse and wagon.

Appeal, No. 179, Nov. T., 1896, by defendant, from judgment of C. P. Northampton Co., Oct. T., 1894, No. 82, on verdict for plaintiff. Trespass for damages resulting from defective sewer. Before Scott, J. The plaintiff claimed for damages to his property by reason of an overflow from a city sewer resulting from the flooding of same, superinduced from obstructions negligently permitted to remain therein.

Appeal, No. 20, Jan. T., 1897, by defendants, from judgment of C. P. Luzerne Co., Feb. T., 1894, No. 276, confirming the findings of referee and dismissing exceptions thereto. Assumpsit on book account, Before Lynch, J. The case came up on exceptions to report óf F. W. Wheaton, Esq., referee, who found for the plaintiffs for the amount of their claim $759, with interest from February 1, 1894. The court below dismissed the exceptions to the referee’s report.

Appeal, No. 48, Nov. T., 1895, by plaintiff, from decree of C. P. No. 4, Phila. Held: and that previous to and at the time of the sale of the said lots, the plaintiff by its officers and agents, and by printed handbills and advertisements printed by the said company in the newspapers and by a prospectus, advertising and publishing the sale of the said lots, falsely and fraudulently represented that the following…

Appeal, No. 1, Feb. T., 1897, by C. S. McCormick, from order and decree of O. C. Clinton Co., dismissing exceptions to auditor’s report and confirming said report. Exceptions to auditor’s report. Before Metzger, P. J., specially presiding. Real estate of decedent having been sold for payment of debts the account of the administrator was referred to Jesse Merrill Esq., as auditor to pass upon exceptions filed thereto and to make distribution.

<p>Appeal, No. 39, Feb. T., 1897, by</p> <p>plaintiffs, from order of Q. S., Centre Co., Nov. Sess., 1895, No. 41, affirming appeal from order of removal and discbarging said order of removal.</p> <p>Appeal by Overseers of the Poor of Castanea Township, Clinton County, Pa., from an order of removal, so far as it relates to Charles P. Aikey and Samuel M. Aikey. Before Love, P. J.</p> <p>The facts sufficiently appear in the opinion of the court below, which is as follows: This is an appeal by the overseers of the poor of Castanea township, Clinton county, from an order of removal taken out by the overseers of Liberty township, Centre county, removing Charles Aikey and Samuel Aikey from Liberty township to the poor district of Castanea township. One Clara Wantz was married to one Irvin Aikey about June 27, 1880. They lived together about fourteen months when •Irvin Aikey left his wife. In 1885, some time in February, he' took up with another woman, and married her, without having been divorced from his first wife. Sept. 10, 1888, he obtained a decree in divorce from his first wife, and then on October 11, 1888, remarried the woman he had been living with since 1885.</p> <p>Clara Aikey, it would appear from the record of the justice, married a man by name of Elijah Saxton on or about July 29, 1883. They did not live together a full year.</p> <p>Of course, the marriage of Irvin Aikey in February, 1885, and the marriage of Clara Aikey to Saxton, July, 1883, were void, and are so to be treated in the consideration of this case.</p> <p>Clara Aikey was born at Eagleville, Centre county, and has practically lived there all her life. Irvin Aikey, when he left, lived in Clinton county, part of the time near to where his first wife was living, and most of the time not more than fifteen miles away. The paupers in question in this controversy .were born at Eagleville, Liberty township, one Charles about August 13, 1885, and Samuel about July 27, 1888.</p> <p>Both children were born during the period of lawful wedlock between Irvin Aikey and his first wife. It would, therefore, be presumed that the children were legitimate.</p> <p>The evidence, however, offered by the overseers of Liberty township shows that Mrs. Aikey lived in a state of adultery with Elijah Saxton and shows that Irvin Aikey was living separate and apart from her when the children in question were begotten and born.</p> <p>And while a wife is not competent to prove the non-access of her husband in order to bastardize her offspring, yet she may testify as to her commission of adultery, and in this case the overseers of Liberty township offered the evidence of Mrs. Clara Aikey and proved by her the non-access of her first husband, Irvin Aikey. No objection was taken to the testimony, nor were we asked to exclude it from our consideration. Then Mrs. Ella Aikey, the second wife of Irvin Aikey, testified that from 1885, when they were first married, Mr. Irvin Aikey lived with her every day until his death. Other witnesses testified that they had never seen Irvin Aikey at Eagleville, the residence or home of Clara Aikey, his first wife, after they had finally separated. It is conceded that Irvin Aikey acquired a settlement in Castanea township, Clinton county, in the years 1891 and 1892, which was some three or four years after he had been divorced absolutely from his first wife.</p> <p>If the children were clearly legitimate we think they would acquire a settlement in said township by virtue of their father’s settlement, notwithstanding it was acquired after he had been divorced. But we think under the evidence offered by the overseers of Liberty township they have themselves clearly shown that Irvin Aikey was not the father of the two children in question. That being so, they are illegitimate, and do not acquire a settlement from Irvin Aikey, but their settlement is that of their mother, Clara Aikey, or Saxton, whose settlement was in Liberty township. We are, therefore, of the opinion that the paupers, viz: Charles and Samuel Aikey (named in the testimony taken as Charles and Samuel Saxton) did not have a settlement in Castanea township, and that the appeal from the order of removal should be affirmed.</p> <p>And now, January 5, 1897, the appeal is affirmed and the order of removal discharged at the costs of the poor district of Liberty township.</p> <p>To which the overseers of Liberty township except, and bill sealed.</p> <p>Errors assigned were (1-14) to the rulings and findings of law in the opinion of the court and to the decree by it entered.</p>

<p>Appeal, No. 10, Feb. T., 1897, by defendants, from judgment of C. P., Tioga Co., Nov. T. 1891, No. 145, on verdict for plaintiff.</p> <p>Assumpsit on promissory note. Before Mitchell, P. J.</p> <p>It appeared from tlie evidence that plaintiff’s claim is founded on the following promissory note:</p> <p>“ $583 33. Gaines, Pa., July 15, 1893.</p> <p>“ One year after date, for value received, we, or either of us, promise to pay Faulkner & Co., or order, five hundred and thirty-three dollars and thirty-three cents at the Farmers and Trader’s Bank, of Westfield, Pa., with interest at 6 per cent, per annum; interest payable annually.</p> <p>“E. D. Philips,</p> <p>Andrew Brimegin,</p> <p>“ W. B. Smith,</p> <p>Burt Furman,</p> <p>“ Nort Furman,</p> <p>William Stage,</p> <p>“ Cyrus Furman,</p> <p>Wallace Phoenix,</p> <p>“ W. J. Buchan,</p> <p>Will A. Rexford,</p> <p>his</p> <p>E. G. Beach,</p> <p>“A. (X) Vanderhoof, mark</p> <p>Jeff Morris.</p> <p>“ Witness, J. E. Faulkner.</p> <p>“ Endorsed Faulkner & Co.”</p> <p>The summons and statement of the plaintiff’s claim was served personally on all the defendants except A. Vanderhoof, W. J. Buchan and Cyrus Furman. As to these the sheriff returned “non est inventus.” A general appearance was entered by counsel for all the defendants, and on the same day an affidavit of defense was filed by Cyrus Furman, alleging as defense that the note was a forgery and never signed by him or any person. authorized by him to sign the same. Buchan and Vanderhoof, the other two defendants not served, filed affidavits of defense.</p> <p>Verdict for plaintiff in the sum of $613.69. Motions and reasons for a new trial being filed, on motion in arrest of judgment, were overruled and set aside and it was ordered that judgment be entered on the verdict in favor of the plaintiff and against defendants served and against them only. Defendants appealed.</p> <p>Errors assigned were (1) in admitting in evidence the note sued upon and in overruling the defendants’ objections : “ Defendants’ counsel object to the introduction of the note in evidence for the reason that one Cyrus Furman’s name purports to be signed to the note as one of the makers thereof and that there is an affidavit of defense in the case as to his name; that his name is a forgery to the note, which throws the burden of proof upon tbe plaintiff to prove the signature, certainly of Cyrus Furman, and as we insist the signatures of the execution of the note by all the other signers thereto, for the reason that the name of one Andrew Brimegin appears as signed to said note; there is an affidavit of defense on file to the effect that he subscribed his name to that note on Sunday, and on Sunday delivered it to the original payee; therefore the note is not competent in evidence as, against Brimegin unless that fact is overcome by proof to the satisfaction of the court, and for the further reason that the plaintiff is the First National Bank, of Waverly, which corporation is alleged to have purchased this paper before maturity.' There are several affidavits of defense alleging that this paper was not transferred before maturity for value; that it was not bought by the plaintiff in good faith for a valuable consideration or in substance; that therefore we insist that the several affidavits of defense in this case put the burden of proof upon the plaintiffs in the case to prove all the other signatures to the note and to prove the signatures of all defendants to the note that are contested and to prove the bona tides of transfer; that the affidavits offered charge the plaintiff with knowledge of the several affidavits of defense to this suit before they bought tins note in controversy and the due execution of the note by the defendants.</p> <p>“ Counsel for plaintiff does not offer the note in evidence as against Cyrus Furman, W. J. Buchan and Andrew Vanderhoof, the parties who are not served and are not in court, but only offer it as to the parties served.</p> <p>“ As to the modified offer of the note in evidence the same objection is made as to the original offer, and further say that Cyrus Furman, Andrew Vanderhoof and W. J. Buchan appear named in the praecipe in the case and appear in the statement filed as defendants, and in the summons as defendants in the-case. That Cyrus Furman, while the record shows, was not personally served with a summons in the case, has appeared with counsel in the case and filed an affidavit of defense alleging his name to be a forgery. Counsel insist he is in court and entitled to make answer as if he had been served with a summons, and for the further reason this being a joint and several note and the plaintiff having elected to sue all these defendants jointly, must recover against them jointly or against none. That it is incompetent to commence an action against defendants and then ask to be relieved from the effects of such an action by electing certain defendants to respond, and excuse others.”</p> <p>By the Court: The only question now before the court, is whether the note now offered in evidence is admissible as evidence under the law. We understand from the statement of counsel and it is not disputed by counsel for the defendants, (we have not ourselves examined the record) that there has been no denial made by any of the parties served with the writ in this case; that this note was executed by them as it appears to be on its face. We are clearly of the opinion that all' the suggestions of counsel in relation to other matters (and some of them mentioned in the objection to the offer) now made, relate to questions which do not control the one now before the eourt. In so far as they can affect the case trying they are to be submitted, if properly evidenced in reply to plaintiff’s case prima facie. We think the note must be taken to speak for itself in the absence of any denial of any of the defendants served with the process in this case. As to Cyrus Furman the eourt cannot determine the question of identity from the similarity of the name as signed to the affidavit that has been mentioned and the one in the process in the original writ; we will not undertake to determine that question in this summary way. The note is admitted in evidence and the objections are overruled.</p> <p>(2) In rejecting the evidence offered by defendants to be given by Cyrus Furman, viz : Cyrus Furman called and sworn: “Q. What is your name ? A. Cyrus Furman.”. Note marked plaintiff’s exhibit “ B ” shown the witness Cyras Furman; the note admitted in evidence for tire plaintiff and upon which the action is predicated which note purports to be signed by thirteen makers, more or less, among which names appears the name of Cyrus Furman, and it appearing by the record in this case, that Cyrus Furman is one of the defendants in this case, and has made an affidavit of defense in it in which he has stated he is one of the defendants in this case and in which he thus denied making, or signing the note offered in evidence and has stated if his signature appears there it is a forgery, and the said Cyrus Furman having appeared by counsel in the case and having filed such an affidavit, his attorneys now offer to ask him to examine the note in question and examine the name written Cyrus Fur-man, and say whether or not that is his genuine signature.</p> <p>Counsel for plaintiff object to the testimony offered, for the reason there is no proof in the case that the witness, Cyrus Fur-man, now upon the witness stand, is the Cyrus Furman upon the note, and it also appears by the affidavit filed by this witness that he never saw this note and knows nothing about it, and there is no presumption that this man is the same man that is upon the note.</p> <p>By the Court: “We have allowed already to be given in evidence the note upon which this suit is founded, but the note is not as the record stands and cannot be a charge against the defendant, Cyrus Furman, whoever he may be. It appears by the record he was returned “ not found,” therefore he had no notice of any suit and is not directed to appear, and we are not to assume because some individual by that name has appeared, that it is the individual in question whom the plaintiff seeks to charge. It will be time enough for him to answer when he is summoned to appear and answer the plaintiff in this case. The judgment upon the issue trying by this jury cannot in any manner affect any Cyrus Furman either this or any other because there has been no service upon any Cyrus Furman. The court can not undertake to determine this question of identity in this way.</p> <p>The objections are sustained and the evidence rejected.</p> <p>(3) In rejecting the following offer of evidence: Defendants’ counsel now offer to ask this witness (Cyrus Furman) if he knows and is familiar with the handwriting and signature of Cyrus Furman, the name purporting to be signed to the note in question. The object of this offer and the preceding offer was to show and is to show that the witness on the stand who claims to be a defendant in this case, to prove by the witness on the stand that the name Cyrus Furman subscribed as one of the makers of the note in controversy is a forgery, and to be followed by other proof showing that Cyrus Furman whose name is written to the note in controversy is the witness on the stand and that there is no other Cyrus Furman in the vicinity of Gaines where the note was signed by the other makers, and that he verily believes that the signature to that note was intended to be a forgery of bis name and is in fact a forgery of bis name and signature.</p> <p>To be further followed by proof that this witness and defendant, Cyrus Furman, lived at the time of the purported execution of this note in the vicinity of Gaines, and one of the neighbors and acquaintances of the other parties whose names are subscribed to the note in controversy.</p> <p>Counsel for the plaintiff object for the reason that witness has not stated, and it does not appear to the court that he knows of the Cyrus Furman whose name appears upon the note or that he ever saw the Cyrus Furman upon the note, therefore he would not be competent to testify to his handwriting — and for the reason that it does not appear that the witness upon the stand knows the Cyrus Furman who is alleged to have signed this note and there is no allegation in the case that this is the Cyrus Furman who did sign it. On the contrary the witness upon the stand has sworn that he never saw the note in question, and even if he were the Cyrus Furman named, not being on the record in this case as a defendant he cannot testify to this fact. Further object on the ground that the -Cyrus Furman in this case whose name purports to be on the note does live in the vicinity of Gaines, Cyrus Furman the witness upon the stand now intimates by the offer of counsel that he is the Cyrus Fur-man whose name is intended to be upon the note, not being served with a summons no claim has been made against him in the case, and even if true the note was a forgery as to him, it could not be given in evidence to affect the plaintiffs in this case being innocent purchasers for value before maturity.</p> <p>By the Court: We think we must reject this offer also for •the reason given in rejecting the former offer of a similar character : For under the law in this state the plaintiff is at liberty to proceed to judgment against a particular one of the makers of the instrument sued upon in this case and if not being able to get service upon all may be entitled to judgment against those served and brought into court in response to a service on the writ. We understand the offer to mean that the witness on the stand as has been stated is the person who made the affidavit in which it is stated that he did not sign the instrument, but he cannot himself testify to the identity of the person whose name appears upon the note and an offer to show, that in a certain locality only that no other Cyrus Furnam lives is evidence of a negative character that ought not to be permitted. The objections are sustained and the evidence rejected.</p> <p>(4) In rejecting the evidence contained in the following offer: Andrew Brimegin sworn.</p> <p>Plaintiffs’ exhibit “ B ” shown witness, the note in controversy. Defendants’ counsel offer to show that the witness on the stand who has sworn that his name is Andrew Brimegin, signed the note in controversy and on which this suit is predicated on Sunday — the Lord’s Day — and that on that day delivered to the original payee named in the note and that his name appears subscribed to said note, and that he was served with a summons in this case.</p> <p>(6) In its answer to the defendant’s first point, which is as follows: “ That the plea and affidavits of defense in this case overcome the presumption that the plaintiff acquired ownership of the note in suit before maturity in the ordinary course of business, and for a valuable consideration, and without notice of the facts stated in the affidavits of defense of any facts competent for the makers or either of them to prove as a defense against the payee of said note. Therefore, unless the jury believe from the evidence that the plaintiff purchased the note before maturity thereof, or for a valuable consideration in the ordinary course of business and without notice of the facts stated in the affidavits of defense, or of any facts of defense competent for the makers as against the payee of' said note, the plaintiff cannot recover.</p> <p>“ Under what we have already said to you we must certainly decline to affirm this point made by counsel for the defendants.</p> <p>“ Because it is all based upon matters of record in the files which do not affect the question trying before the jury at all. It relates to facts set out in certain papers called affidavits those ‘alleging certain facts, and alleging also that the persons making those affidavits believe those facts to be true and expect to prove them upon a trial before a jury. When things of that kind are properly stated before the court the effect of an affidavit of defense may be to stop judgment for the time being but it can go no further than that. And as to all these affidavits of the parties in the case none of them are before you. You are tobe governed by the evidence that has been admitted, and that is governed by the statements we have already made. That is the note upon which the plaintiff bases its claim and the assumption that the law makes, that it became the honest purchaser of it before it became due without notice.”</p> <p>(7) In giving binding instructions for plaintiff; (8) in making the order for judgment.</p>

<p>Actions — Trespass—Ejectment of passenger — Damages.</p> <p>If a passenger is wrongfully ejected from a car the right of recovery is unquestioned in view of the trespass upon his rights even if no actual personal injury is suffered. Where the question of a wrongful ejection is one of fact, it is clear that the question must be left to the jury and the question of reasonable compensation is also for them.</p> <p>Appeals — Verdict against the evidence — New trial.</p> <p>That a verdict was against the overwhelming weight of the evidence is a good reason for a new trial, but when passed upon by the court below in considering the motion for a new trial the appellate court will not interfere with the exercise of a sound discretion judiciously exerted.</p> <p>Appeals — Review—Charge of the court.</p> <p>“Where the charge of the trial judge was apparently so satisfactory to both sides that written points were withdrawn, assignments of error alleging sins of omission in the charge will have but slight persuasive weight with the appellate court.</p>

<p>Married loomen — Incapacity to become surety — Effect of divorce a mensa and decree making her a feme sole trader.</p> <p>The disability of a married woman to become an accommodation indorser, guarantor or surety for another exists under the acts of 1887 and 1893. A divorce a mensa et thoro granted the wile with alimony cannot be so construed or applied as to make her anything else than a married woman in her contracts; neither will the wife’s settlement with an absconding husband of her claim for money under such divorce proceedings by accepting land in lieu of money, nor the fact that she has been declared a feme sole trader, change the result.</p> <p>Married women — Statutes—Acts o/1887 and 1892 — Interpretation.</p> <p>The expressed intent of the married woman’s acts of 1887 and 1893 is to enlarge the powers of a married woman to contract and the courts have sought to give full effect to this intent in interpreting these acts; and while the primary intent is not to be restricted by interpretation, plain restrictions are not to be enlarged by the same means.</p>

<p>Judgment — Opening thereof — Usury—•Subterfuge.</p> <p>The law will look through all disguises and subterfuges and will open a judgment which is based on an attempt to make a contract for usury where by the agreement' and the testimony a strong doubt is raised on this ground as to the validity of a judgment.</p>

<p>Evidence — Presumption of legality — Burden of proof.</p> <p>It is a presumption of law that every one has conformed to the law and the burden is upon him who alleges the contrary.</p> <p>Sale — Illegal business — Burden upon Mm alleging illegality.</p> <p>The plaintiff who had sold whisky to defendant, testified that he was a wholesale liquor dealer in Ohio where the contract was made; this was prima facie proof that he was lawfully carrying on that business and the burden was upon defendant to show that he had a right to take, use and not be compelled to pay for the property purchased because plaintiff was carrying on a traffic illegal in the state of Ohio.</p>

Appeal, No. 8, Feb. T., 1897, by defendant, from judgment of C. P. Clearfield Co., Feb. T., 1895, No. 187, on verdict for plaintiff. Feigned issue to test validity of judgment. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff. Defendant appealed.

Appeal, No. 45, March T., 1897, by defendant, from definitive decree of C. P. Cumberland Co., March T., 1896, No. 4, directing specific… Held: inter alia, “ It is not denied by the defendant that the agreement was signed by her, yet she alleges that it was not completed or delivered to said plaintiff, but obtained by said plaintiff by misrepresentation of the facts, and by false statements and deceit.” These allegations are not responsive to the bill and. upon the defendant…

<p>Appeal, No. 30, March T., 1897, by defendant, from judgment of C. P. Cumberland Co., on verdict for plaintiff.</p> <p>Ejectment. Before E. W. Biddle, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The trial judge directed a verdict for plaintiff subject to the reserved question of law whether under all the evidence in the case the entry of judgment, No. 104, Feb. T., 1895, and the subsequent proceedings thereon, by execution and sale, passed a valid title to plaintiff for William G. Senseman’s undivided interest in the land described in the writs.</p> <p>Verdict for plaintiff for the land described in the several writs. Defendant appealed.</p> <p>Frror assigned was the entry of judgment on the verdict.</p>

Appeal, No. 5, March T., 1897, by defendant, from judgment of C. P. Franklin Co., Feb. T., 1896, No. 151, on case stated. Case stated on appeal from justice. Before Stewart, P. J. The case stated was as follows : And now January 27, 1896, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict.

Appeal, No. 34, Feb. T., 1897, by plaintiff, from judgment of C. P. Tioga Co., Sept. T., 1895, No. 557, on verdict .for defendant.

<p>Appeal, No. 15, Jan. T., 1897, by defendant, from order of C. P. Luzerne County, June T., 1898, No. 95, discharging rule to open judgment.</p> <p>Rule to show cause why judgment should not be opened and Mary Hudock let into a defense. Before Lynch, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Error assigned was refusal to open judgment as to Mary Hudock.</p>

<p>Married woman — Promissory note — Moral consideration.</p> <p>A married woman is liable if in fact a debt is hers, although it is contracted in the name of her husband.</p> <p>A married woman’s note given in payment of a debt contracted by her husband, but which she might legally have contracted herself, for materials bought for and used on her own farm is based on a sufficient consideration.</p> <p>Sale — Validity of, when violating act of June 28, 1879.</p> <p>Where goods offered for sale are required, by statute, on pain of a forfeiture or penalty, to be marked or branded in a certain way, the price thereof may be recovered, unless there is also an express prohibition as to the sale.</p> <p>Sales — Certificate of secretary of commonwealth — Condition precedent.</p> <p>As the certificate of the secretary of the commonwealth required by the Fertilizer Act of June 28, 1879, P. L. 180 is only obtainable at the end of each year and relates to the sales for that year, it cannot be deemed a prerequisite or condition precedent to doing business.</p>

<p>Appeal, No. 4, Feb. T., 1897, by defendant, from decree of O. P. Centre Co., Nov. T., 1895, No. 7, dismissing exceptions to the judgment of a justice, confirming the same.</p> <p>Certiorari to justice of the peace.</p> <p>It appears from the record that this was a certiorari to a justice of the peace bringing up the record of the justice in summary proceedings had before him by the sheriff’s vendees to recover possession of premises sold at sheriff’s sale under the provisions of the act of June 16, 1836, and the amendment thereto by act of May 24, 1878.</p> <p>After the testimony was closed and an adjournment had for. noon, and when the justice and jurors met after noon, Lovina B. Downing, one of the defendants, presented to the justice an affidavit of claim of title. ,</p> <p>Other facts sufficiently appear in the opinion of the court.</p> <p>The justice entered judgment for the plaintiffs to which exceptions were filed as follows :</p> <p>The plaintiff in error excepts to the record of the justice and to the proceedings before him as follows, viz:</p> <p>X. The record and notice attached to the justice’s transcript show conclusively that the plaintiffs below failed to give the said Lovina B. Downing and D. O. Downing three months’ notice to vacate the premises in dispute, before instituting proceedings before the justice to recover possession. [1]</p> <p>2. The record showing failure to give preliminary notice to appellant, the justice should have dismissed the proceeding when the notice was offered in evidence by the plaintiff below.</p> <p>3. That the record, as returned by the said justice of the peace, is defective because it does not show that after the said Lovina B. Downing had made affidavit of claim of title herself that the said justice ever did summon the said Lovina B. Downing to appear before him, as provided for by an act of assembly in such case made and provided. [2]</p> <p>4. The record of the justice shows affirmatively thatlie had-no jurisdiction to enter any judgment on said proceeding, inasmuch as the said Lovina B. Downing had filed the affidavit and bond required by sections 114 and 115, act of June 16, 1836, prior to the entry of said judgment, whereby and by virtue of which the jurisdiction of the said justice in said proceeding was ousted and superseded. [3]</p> <p>5. The record shows that after the tender to him of the affidavit and bond referred to he proceeded to decide for himself the question of title to the real estate involved. [4]</p> <p>6. The record shows that after the tender to him of the bond and affidavit referred to he submitted to the jury the question of fact involved, and the jury under his instruction having found for the plaintiffs, he proceeded to enter judgment in the proceeding in favor of the plaintiffs and assessed their damage at $50.00, all of which was clearly beyond his jurisdiction. [5]</p> <p>7. The record shows that having entered judgment as aforesaid in favor of the plaintiffs in the proceeding after a tender of the bond and affidavit by the said Lovina B. Downing, the said justice issued a writ or warrant directing the sheriff to deliver possession of the said premises to the plaintiffs below, and to collect the said costs and damage, all of which was done, as appears by the return of the' sheriff to said warrant. [6]</p> <p>8. The said justice erred in giving judgment against the said Lovina B. Downing for the reasons'he assigns in his record. He had no power -to pass upon the sufficiency of the affidavit, it appearing that it was made in the exact language of the act of assembly in such case made and provided. [7]</p> <p>9. The said record is generally erroneous and incorrect, and shows conclusively that the said justice had no jurisdiction to enter any judgment in the said proceeding. [8]</p> <p>Which were dismissed by the court below and the judgment of the justice confirmed. Defendant appealed.</p> <p>Errors assigned were (1-8) in overruling and in dismissing appellant’s exceptions to the record of the justice, reciting same; (9) in making the following order and decree: “ And now January 15, 1896, the exceptions are overruled and the judgment of the justice is affirmed;” (10) in not sustaining the exceptions to said record and in not reversing the judgment of the justice and awarding restitution of property; (11) in attempting by an opinion filed to find certain facts dehors the record, which he assigns as sufficient reason for refusing to sustain the exceptions to the record of the justice.</p>

<p>Appeal, No. 29, March Term, 1897, by John Weigle, Martin Berkheimer, and Peter Snyder, from decree of O. C. Cumberland Co., sustaining exceptions to auditor’s report in decreeing distribution.</p> <p>Exceptions to auditor’s report. Before E. W. Biddle, P. J.</p> <p>It appeared from the evidence that Hannah J. Heagy died March 8, 1898, testate. Shortly prior to the year 1892, John Weigle became surety for testatrix’s husband on a number of notes aggregating $900. Testatrix held a judgment against her husband for $1,162 upon which she issued execution. On the same day she assigned $900 of her judgment to John Weigle. Subsequently she entered into an agreement of suretyship with the said John Weigle relative to the above debts of her husband. Upon this agreement suit was brought against her executor as .appears by the case of Weigle et al. v. Mercer, 1 Pa. Superior Ct. 490, where the agreement of suretyship is set out in full on page 493; also other facts connected with the history of the case. In that case it was held that the contract or agreement was in effect one of suretyship and that equity will not lend its aid to an effort to mate such an agreement fruitful.</p> <p>In the present case the creditors of the husband claim as legatees under the provisions of the will of the said Hannah J. Heagy, as set out in the opinion of the Superior Court.</p> <p>The auditor allowed these claims to share in the distribution. Exceptions were filed to this report on the part of H. H. Mercer, executor, and by E. G. Heagy, the husband. These exceptions were sustained by the court. Claimants appealed.</p> <p>Error assigned was in sustaining the exceptions of the appellee to the report of the auditor.</p>

<p>Appeal No. 45, Jan. T., 1897, by defendants, from order of C. P. Luzerne Co., Oct. T., 1895, No. 890, dismissing exceptions to auditor’s report and confirming a distribution thereunder.</p> <p>Exceptions to auditor’s report. Before Woodward, P. J.</p> <p>The question arose on distribution of proceeds of sheriff’s sale of real estate of J. H. Edson, one of the defendants. The real estate sold was formerly owned by the father pf defendant Eliphalet Edson, who died in September, 1864. By his will he devised and bequeathed his estate to his wife, Elizabeth Edson, with power of appointment among his children. This power of appointment was duly exercised by the widow among the children and prior to the sheriff’s sale, J. H. Edson, one of the children, by virtue of certain quitclaim deeds had acquired the interests and claims of the other legatees of Eliphalet Edson and Elizabeth Edson upon the real estate sold excepting the interest of his brother, George K. Edson, who was one of the appointees under the will of Elizabeth Edson.</p> <p>At the audit D. M. Osborne and B. D. Carey, contested the right of George K. Edson to come in on the fund and claimed that it should be distributed, first, to the Darling mortgage and, second, pro rata to judgments in full of D. M. Osborne & Co. against J. H. Edson and B. D. Carey who was surety for Edson.</p> <p>The property was finally sold on a judgment bond with confession of judgment given by J. H. Edson, and the auditor to whom the fund was awarded for distribution, awarded to George K. Edson thfe amount of the bequest originally charged upon the land under the will of Elizabeth Edson and the balance to the execution plaintiffs.</p> <p>The provisions of the will and other facts more fully appear in the opinion of the court.</p> <p>Errors assigned were (1) In dismissing the exceptions of D. M. Osborne & Company and B. D. Carey to the findings and report of the auditor, which exceptions are as follows: “1. The learned auditor erred in finding ‘Your auditor therefore concludes generally that the legacy to George K. Edson ’ (in the will of Elizabeth Edson) ‘ was a valid charge upon the lands sold by the sheriff; was a lien upon it at date of sale; that the lien was discharged by the sale; and that the amount due on the legacy at the time should, by reason of priority of lien, be first paid out of the proceeds thereof.’ 2. In not reporting the point of law and request for finding thereon, viz : ‘ That under the will of Eliphalet Edson, George K. Edson took an estate in fee in his father’s estate, the said Eliphalet Edson.’ 3. In not reporting as requested by D. M. Osborne & Co., and B. D. Carey, ‘And in execution of the powers conferred by the will of Eliphalet Edson, Elizabeth Edson, the widow and donee, could not reduce the fee simple estate of George K. Edson into a less estate; could not convert the real estate into a pecuniary legacy.’ 4. In not finding and reporting as requested by D. M. Osborne & Co. and B. D. Carey, ‘ That in the execution of the power Elizabeth Edson was confined to the apportionment of the fee simple estate among the children.’ 5. In not distributing the fund in manner as follows: A. To costs. B. To the Darling mortgage. C. To the Osborne & Company judgments. 6. In distributing $572.60 to George K. Edson. 7. General exceptions.” (2) In confirming the auditor’s report.</p>

<p>Appeal, No. 27, March T., 1897, by plaintiff, from judgment of C. P. Huntingdon Co., Feb. T., 1895, No. 28, on verdict for defendant.</p> <p>Assumpsit on promissory notes. Before Bell, P. J., specially presiding.</p> <p>Suit was brought on two promissory notes, each dated March 26, 1892, one at one year for $66.66, and the other at two years for $66.67. The notes contained the written words “ with interest at Qf0” The allegation of the defense was that this was an alteration.</p> <p>Other facts appear in the opinion of the court.</p> <p>The trial judge directed a verdict for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned, among others, were, (1) In its rulings or instructions to the jury, which ruling or instruction is as follows: “ The alteration in question is the interlineation ‘ with interest at 6 per cent.’ A similar alteration in a similar note has been passed upon by the Supreme Court in Gettysburg National Bank v. Chisolm, 169 Pa. 564, and in that case the Supreme Court decided that before the note was admissible, it was incumbent upon the plaintiff to show that such alteration was made either with the consent of the maker, or prior to his signature.” (4) In overruling the offer of the plaintiff to read the two notes signed by C. M. Gage to the jury, namely, one thereof dated March 26,1892, to the order of E. Bennett & Son, and by them indorsed, payable one year after date at the First National Bank of Huntingdon, Pa., for the sum of $66.66, interest at 6 per cent, without defalcation, value received, indorsed E. Bennett & Son, signed by C. M. Gage. Also, like note to the order of E. Bennett & Son, bearing date March 26, 1892, payable two years after date at the First National Bank at Huntingdon, Pa., for the sum of $66.67, with interest at 6 per cent, indorsed ‘E. Bennett & Son,’ signed ‘C. M. Gage,’ which offer, in connection.with the production of the notes, was as follows: ‘ The plaintiffs having offered the two notes signed by C. M. Gage, and having called the preliminary proof (erroneously stated by the reporter that is contained in the said notes) the plaintiff now offers to read the notes to the jury.”</p> <p>By defendant’s counsel Waite: Defendant renews its objection to the admission of the notes, for the reason that the interlineation has not been sufficiently and affirmatively proven.</p> <p>S. T. Brown for defendant: We rest this case on the fact that there was an interlineation made which has not been explained, and I don’t think it makes a particle of difference about the handwriting or what is said about the handwriting. Gettysburg Bank v. Chisolm rules this case and it rules on the interlineation and not on the handwriting.</p> <p>Ruling of the court thereon is as follows : The alteration in question is the interlineation “ with interest at 6 per cent.” A similar alteration in a similar note has been passed upon by the Supreme Court in Gettysburg National Bank v. Chisolm, 169 Pa. 564, and in that case the Supreme Court decided that Before the note was admissible, it was incumbent upon the plaintiff to show that such alteration was made either with the consent of the maker or prior to his signature. We feel that this case of Gettysburg National Bank v. Chisolm rules the present controversy, inasmuch as the opinion of Mr. Justice Green deciding that case is not based upon the idea that the fact that the alteration is not in the same handwriting as the writing in the body of the note is the material question, and an examination of his opinion in the Gettysburg National Bank v. Chisolm fails to convince us that be attached any importance to the fact that the note then in question, or the alteration in the note then in question was in a somewhat different handwriting from the writing in the body of the note. The plaintiffs have attempted to account for the alteration, but in this, we think they have failed. In the case of C. M. Gage, defendant, they have shown at most only that he will not swear that it was not in, but he does swear that he thinks that the alteration or interlineation was not in the note when he signed it. In the case against Dr. Barnhart, defendant, they have not shown even this — furthermore, the plaintiffs have called their assistant cashier, and have purged themselves of any connection with the alteration; but we think that Kennedy v. The Bank, 18 Pa. 347, is an authority squarely to the effect that such testimony on the part of the plaintiff is insufficient to warrant the admission of the note, and a careful examination of the case of Winters v. Mowrer, 1 Pa. Superior Ct. 47 — has failed to convince us that our present ruling is in conflict with the opinion of the Superior Court in the case of Winters v. Mowrer. True, the present ruling may seem to be in conflict with some expressions of Judge McCarthy in the opinion of Winters v. Mowrer, but we think that case really turned upon the point that plaintiffs had called a witness or possibly two witnesses, who testified that when the note was signed, they thought it was in the same condition it was when produced at the trial; but.in the present case, the most that plaintiffs show is, the witness called by the plaintiff, to wit: the defendant on cross-examination swears that he thinks it was not in this condition; or he swears that he thinks the words ‘ with interest from date ’ were not in the note when he signed it. Taking this view of the law we overrule the offer; and seal a bill for the plaintiff. Verdict accordingly.” (5) In directing a verdict for defendant.</p>

<p>Road law — Jurisdiction, Q. S.</p> <p>Where a road vacated and a road laid out to take its place are partly in a borough and partly in a township, the court of quarter sessions has jurisdiction.</p> <p>Road law — Essentials of report of viewers as to termini.</p> <p>The termini reported by the viewers must correspond with those designated in the petition and order. But mathematical precision is not required in describing them either in the petition or the report. It is sufficient if there be substantial conformity, and if they be described so that the road can be located with reasonable certainty.</p> <p>Appeal — Appeals to the Superior Court — Time of perfecting same.</p> <p>An appeal to the Superior Court must be taken and perfected within three calendar mouths from the day when the judgment, sentence, order or decree appealed from was entered in the court below.</p> <p>This appeal was taken more than eight months after the decree of confirmations of the report of. viewers. A motion was made, subsequent to the confirmation, for leave to file exceptions nunc pro tunc which was refused, and if it be conceded that an appeal lies from such an order, by no latitude of construction can it be held that the whole proceedings are opened for review ; at the very best all that can be assigned for error under such conditions is the refusal of permission to file the specific exceptions going to the jurisdiction of the-court.</p>

<p>Appeal, No. 51, March T., 1897, by John M. McDowell, administrator d. b. n. of Agnes W. Seibert, deceased, from the final decree of O. C.-, Franklin Co., dismissing exceptions to auditor’s report and confirming the same.</p> <p>Exceptions to auditor’s report. Before Stewart, P. J.</p> <p>Samuel Seibert died April, 1874, testate. It appeared from the report of the auditor, appointed to distribute the balance shown by the final account of the executors of Samuel Seibert, deceased, that testator died in April, 1874. That shortly after his death his executors sold all his personal property and real estate except the house occupied by the wife, which had been devised to her for life, with remainder to children after her death. That Agnes W. Seibert, the widow, owned real estate in her own right. She lived in the property devised to her by the testator until her death. The fund for distribution arises on the sale of the testator’s mansion house, in which Agnes W. Seibert lived, sold under power in the will. On or about April 1, 1878, one of the executors of Samuel Seibert told the widow that there were unpaid claims against the estate of Samuel Seibert to the amount of about $1,000, and that unless she advanced the money to pay these claims against her husband’s estate the property in which she was living, which had been devised to her, would have to be sold to pay the testator’s debts. She told this executor if he could borrow the money he could secure it by a lien on her own property. One thousand dollars was borrowed which Mrs. Seibert gave to the executors of Samuel Seibert who charged themselves with $1,000 received from Agnes W. Seibert, in their first account filed in this estate.</p> <p>The administrator of Agnes W. Seibert sought to recover from the estate of Samuel Seibert the sum of $1,000 which Mrs. Seibert borrowed and gave to the executors of her husband. To this claim of the administrator the heirs of Samuel Seibert pleaded the statute of limitations. No proceedings were had in the orphans’ court by the executors in relation to the loan by Mrs. Seibert; no obligation was given her by either of the executors at the time she gave the money, nor was it shown that Mrs. Seibert ever requested any obligation or made a demand for its repayment.</p> <p>About two years after Mrs. Seibert gave the executors the money one of the executors gave her a receipt for $1,000, which purports to be in satisfaction of five years’ rent at the rate of $200 per annum. This receipt in part is as follows: “Said rent having been collected by me from her for the purpose of paying the debts of said decedent, and having been paid to me at or about the expiration of said term.”</p> <p>The auditor found as a conclusion of law that the $1,000 claimed by the estate of Mrs. Seibert had been paid to one of the executors on or about'April 1, 1878; that no proceedings had been taken in relation to the matter, no demand having been shown, no obligation given, no suit brought, nor any steps towards its recovery having been taken prior to June 4, 1894, the statute of limitations is a bar to the recovery of this claim.</p> <p>Exceptions were filed to the report of the auditor which were dismissed by the court.</p> <p>JSrrors assigned among others were (2) In not finding that the widow was induced by false representations to pay the said sum of $1,000 to the executors. (3) In holding that the statute of limitations, was a bar to the claim of the administrator of Agnes W. Seibert. (4) In failing to award to the administrator of Agnes W. Seibert the sum of $1,000. (6) In dismissing exceptions to the auditor’s report and confirming same absolutely.</p>

<p>Sale — Rescission—Replevin—Fraud.</p> <p>A sale may be rescinded and the property retaken by replevin when the vendee was insolvent at the time of purchase, knew himself to be insolvent and intended to cheat and defraud the plaintiff out of his goods, and where the circumstances surrounding the transaction are such as tend to show trick, artifice and false representation.</p> <p>Practice, Superior Gourt — Review—Proper submission under proper instructions.</p> <p>Where a careful review of the testimony fully warrants the verdict rendered after a submission of the whole question in a charge which correctly disposed of the legal questions raised by the points, the appellate court will not reverse.</p>

<p>Appeal, No. 38, Feb. T., 1897, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1895, No. 416, on verdict for defendant.</p> <p>Assumpsit to recover for a deposit of $210.</p> <p>The defendants were doing business under the name of The Bank of DuBois, which closed its doors on March 14, 1895, by reason of insolvency. On the same day the bank closed its doors, and immediately thereafter, nearly all the defendants confessed judgments for large amounts for obligations outside of any bank transactions, which were entered of record, and some of them conveyed part of their property to relatives and other friends.</p> <p>Other facts are sufficiently recited in the opinion of the court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were among others (1) In its answer to plaintiff’s first point. The point and answer thereto are as follows : “ 1. The plaintiff had a legal cause of action against the defendants on tbe day on which he brought this suit against them, to wit: on the 22d of March, 1895, to recover the amount due him from the bank of DuBois. Answer: This point, as an abstract proposition of law, we affirm, but it does not follow that the plaintiff is entitled to recover. If the jury determine, under the evidence, that the claim sued for has been settled or paid since the bringing of the suit, then the defendant could not recover the amount sued for March 22, 1895.” (8) In its answer to plaintiff’s third point. The point and answer thereto are as follows: “3. If the jury believe from the evidence in the cause that the plaintiff was requested, with other creditors of the bank of DuBois, to be present at a meeting which is said to have been held in July, 1895, to hear a proposition that the stockholders or copartners of the bank of DuBois had to submit to its creditors, and if the plaintiff attended said meeting he would not be bound by the action then and there taken by other creditors if he did not participate or take part in the proceedings of said meeting. Ansioer: If the jury find the facts as stated in this point, the fact that he was present at the meeting and took no part might not of itself bind him to the terms of the contract of composition, yet if he were present when the proposition of settlement was submitted to the creditors’ meeting, and adopted without any dissent on bis part and he after-wards accepted the benefit of the terms of settlement there proposed and accepted by the creditors’ meeting, he would be bound by the same and could not recover.” (4) In its answer to plaintiff’s fourth point. The point and answer thereto are as follows : “ 4. The fact that the plaintiff brought this suit on March 22,1895, the evening of the day on which the first meeting of the creditors was held, is evidence that he did not intend to be bound by the action which might be taken by other creditors, or to place the management of his claim against the bank in the custody and control of anyone else than his attorneys. Answer: This point simply involves a question of fact for the jury. The jury must determine the intent of plaintiff from his acts and conduct. And we therefore decline to affirm this point.” (7) In its answer to plaintiff’s seventh point. The point and answer thereto are as follows: “ 7. There is not sufficient evidence in the cause of the plaintiff participating in any meeting of the creditors or of his approval of the proceedings or action taken by any meeting or committee of creditors that would deprive him of the right to prosecute his claim against the defendants to verdict and judgment. Answer: This point involves questions of fact for the jury under the evidence, to be determined by the jury under the rules of law laid down by the court in its general charge, and we decline to affirm the point as stated.” (8) In its answer to plaintiff’s eighth point. The point and answer thereto are as follows: “ 8. The fact that the plaintiff received from Hugh McCullough, receiver of the bank of DuBois, a portion of his claim, would not estop him from prosecuting his action to judgment, as he had a legal right to receive his proportionate share of all the money in the hands of Hugh McCullough as assignee of the defendants or receiver of the bank of DuBois, which the said Hugh McCullough received in trust for the benefit of the creditors of the bank of DuBois. Answer: The evidence in the cause conclusively shows that the receiver had received from the stockholders, of their individual assets, thirty per cent of the fifty per cent paid to plaintiff, under the terms of the composition agreed upon between the stockholders and the creditors at a creditors’ meeting held in July, 1895, which were assets that did not come into his hands by virtue of his authority as receiver! To this fund the plaintiff had no legal claim at the time. .We therefore, under the evidence in the cause, cannot affirm this point.” (9) In its answer to plaintiff’s ninth point. The point and answer thereto are as follows: “ 9. The defendants had it not in their power under the laws of tins state when they transferred property or paid money to Hugh McCullough as trustee for the creditors of the bank of DuBois, to give any preference to creditors who might sign a release of the copartners from liability. The said property and money so placed in the hands of Hugh McCollough inured to the benefit of all of the creditors of the bank of DuBois and was an assignment for the benefit of creditors under the laws of this state. Answer : If this point assumes that the agreement of composition submitted to the creditors’ meeting held in July, 1895, and accepted by said creditors’ meeting without any dissent, was an assignment for the benefit of creditors, we decline to affirm the point.” (10) In its answer to plaintiff’s tenth point. The point and answer thereto are as follows: “ 10. The stipulation in the transfers of property of the defendants to Hugh McCullough in trust for the creditors of the bank of DuBois, that it was only for the benefit of such creditors of the bank as might release the stockholders from further liability, was void under the laws of this state, and such transfer and assignment of money or property inured to the benefit of all the creditors, pro rata, without preference, and the plaintiff was entitled to his share thereof, without being bound to release the defendants from further liability, and without depriving him of the right to recover from the defendants the balance due him. Answer: We decline to affirm this point.” (11) In its answer' to plaintiff’s eleventh point. The point and answer thereto are as follows: “11. It appearing from the petition offered in' evidence by the defendants, wherein the plaintiff petitioned the court for a rule on Hugh McCullough to show cause why he should not pay the plaintiff 50 per cent of his claim against the bank out of the moneys and the proceeds of property placed in his hands by defendants for the benefit of the creditors of the bank of DuBois, that plaintiff expressly denied that he had entered into any combination or was represented by any committee of creditors, or was bound by their action, but claiming the said percentage under his legal rights as an individual creditor, and no answer having been filed to said petition, and the rule having been made absolute by the court, and the decree unappealed from, it is thereby judicially declared that the plaintiff received said payment in accordance with his petition, and his receipt of said payment does not estop him from prosecuting his claim to verdict and judgment in this case for the balance due to him by defendants. Answei': Whether or not the facts stated in this point of themselves would operate as an estoppel it is not our province to determine, as the facts stated therein must be considered by the jury in connection with the other facts in the case, which if found by the jury and taken together may constitute an estoppel to plaintiff’s right to recover. We therefore cannot affirm this point.” (12) In its answer to plaintiff’s twelfth point. The point and answer thereto are as follows: “ 12. From the undisputed evidence in this case the defendants were indebted to the plaintiff, when defendants’ bank closed its doors and ceased to do business, by reason of the inability of the defendants’ bank to meet its obligations and to pay its depositors, in the sum of two hundred dollars ($200), and the plaintiff is entitled to your verdict for said sum, with interest from March 14, 1895, after deducting therefrom the sum of one hundred dollars ($100), paid on account of said claim June 10,1896. Answer: We refuse to affirm this point.” (13) In the following portion of the charge to the jury: “We say to you the money raised under that agreement and put into the hands of the receiver did not operate in law as an assignment for the benefit of partnership ereditors. It was a fund separate and distinct from that which would come into the hands of the receiver by virtue of his appointment.” (14) In the following portion of the general charge: “ So, the question then comes down, did the plaintiff have knowledge of this contract of composition between these creditors, and, having that knowledge, did he avail himself of the benefits of it and appropriate the proceeds on account of his claim? If he did, then he is precluded from recovering against these stockholders, who raised that money, in this action. You are to determine that question. We submit that question of fact to you and you are to determine it from the facts, from the weight of evidence.” (16) In the following portions of the general charge: “ And, if you find from the evidence that the plaintiff was at the meetings and knew the nature of the compromise proposition submitted, and in pursuance of that proposition of composition among the creditors, and accepted by them, that a large sum of money, $22,000 in cash and $9,000 realized out of real estate converted, or out of a portion of the real estate so conveyed, and that he accepted a portion of that fund which had been raised by virtue of this proposition of composition and knew of it, as we stated before, by himself, from his communication with other parties, in the testimony of Mr. Arnold or others, or that his counsel had knowledge and accepted the results of that agreement of compromise, then he is bound by it and he is precluded from pursuing this suit against these individual stockholders, and it would be your duty then to render a’ verdict for the defendants. If, however, you can find under the evidence that he had no knowledge of this settlement, that he was ignorant of it, then he would not be bound by it, if he wasn’t a party to it; that is, the proposition is, that where aman has knowledge and accepts the benefits of a contract, he thereby becomes a party to it and he cannot accept the benefits of it and repudiate the contract, as has been stated by our Supreme Court and others. And, therefore, if you find under the evidence that he had knowledge of the proposition, which is a binding contract and ample consideration for it in this case as any others, then he would be bound by it.” (17) In its answer to defendant’s second point. The point and answer thereto are as follows: “ 2. That as it appears by the undisputed testimony in the cause that a settlement was agreed on between the defendants and Austin Blakeslee, William Osburn and William Cannon, a committee appointed by creditors of said bank of DuBois, at a public meeting of the creditors; and it also appearing .by the undisputed testimony that the defendants in pursuance of said settlement conveyed a large amount of real estate and paid in cash to Hugh McCullough, receiver of said bank, $22,000 ; and that the said receiver was authorized and directed by the court to carry out said settlement, and did so; and it further appearing from the plaintiff’s petition filed to No. 2, May term, 1895, and from other uncontradicted testimony, that he knew that a portion of the money then being distributed by the receiver was from the cash and real estate received by the receiver under the settlement, and having obtained the order of the court upon the receiver to pay him his pro rata share of the proceeds arising from said settlement and received the same, he has thereby ratified the action of the committee and is estopped from denying that the defendants shall be.discharged from further liability even if he was not actively participating in any of the meetings at which the creditors appointed said committee or voted upon the proposition recommended and accepted by the committee, and their verdict must be for the defendants. Answer: If the jury find the facts as stated in this point, it is affirmed. For further answer refer to our general charge.” (18) In its answer to defendant’s third point. The point and answer thereto are as follows : “ 3. It appearing from the undisputed evidence in the cause that at a meeting held of a large number of the creditors of the defendant bank, a committee consisting of Austin Blakeslee, William Osburn and W. H. Cannon was appointed, and was authorized to act for the best interests of all the creditors and do whatever-they deemed best in that behalf; that the committee did make a settlement, by which, in consideration of the payment of $22,000 and the conveyance of a large amount of real estate to Hugh McCullough, receiver, the defendants were to be released and discharged from further liability, and it further appearing by the undisputed evidence that plaintiff asked for and received his pro rata share of the funds in the receiver’s hands arising from this cash fund so paid, and from the sale of a portion of the real estate so conveyed to the receiver under the settlement with the committee aforesaid, he has thereby ratified the previous action of the committee and is bound by their action and the terms of the settlement made by them, even if he was not present or participating in any of the meetings, and the verdict must be for the defendants. Answer: If the jury find that the plaintiff knew of the composition of settlement made with the defendants and he availed himself of the benefits thereof, as stated in the point, then he cannot recover.”</p>

<p>Mortgage — Defective acknowledgment — Act o/T878.</p> <p>A court of equity will not reform a defect in the acknowledgment o£ a mortgage under the provisions of the Act of May 25, 1878, P. L. 149, when the rights of third parties without noticedmve intervened, it being well settled that the defective registry of a deed is a nullity which a purchaser is not bound to notice.</p> <p>Statutes — Defective acknowledgment — Notice—Act of 1891.</p> <p>The Act of May 12, 1891, P. L. 53, is not retroactive so as to vitalize a defective acknowledgment to a mortgage which as it stood was not a recordable instrument, and therefore a nullity which a purchaser was not bound to notice.</p>

<p>Appeal, No. 68, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1896, No. 396, for want of a sufficient affidavit of defense.</p> <p>Assumpsit for $823.06 balance due on book account.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below entered judgment for $823.06 for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was in making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 39, March T., 1897, by Daniel N. Stephey, from the definitive decree of O. C. Franklin Co., affirming exceptions to auditor’s report. Exceptions to auditor’s report. Before Stewart, P. J. It appears from the report of the auditor that the' question arose on the distribution of the estate of Daniel Mickley who died testate on the 29th day of May, A. D. 1895, in relation to the share passing to the children of Elizabeth Stephey, daughter of the decedent.

Appeal, No. 38, March T., 1897, by T. T. Shirk, from definitive decree of C. P. Blair Co., June T., 1896, No. 54, overruling exceptions to and confirming report of the auditor appointed to distribute funds in hands of the assignee for the benefit of creditors of Winfield S. Love. Exceptions to auditor’s report. Before Bell, P. J. Winfield S. Love executed a deed of assignment for creditors to C. O. Templeton on June 24, 1895.

<p>Assignee's sale — Proceedings for summary possession — Act c/1876.</p> <p>Ail order for a resale of property sold by an assignee for creditors having been made, it is no defense to a summary action by the assignee’s vendee to recover possession under the Act of February 17, 1876, P. L. 4, for the terre-tenant to set up an alleged equitable title based upon possession secured under the former sale which had been set aside, on which it was alleged that a part of the purchase money paid by terre-tenant had not been returned.</p>

<p>Poor law — Findings of court beloio.</p> <p>Where the findings of fact of the court of quarter sessions in the matter of removal of a pauper are fully warranted by the evidence, such findings and the decision of the court based thereon will not be disturbed by the appellate court.</p>

<p>Appeal, No. 35, March T., 1897, by defendants, from findings and decree of Q. S. Juniata County, December Sess., 1895, No. 1, upon appeal from the order of removal of Mahala Carter and children.</p> <p>Appeal from order of removal of Mahala Carter and children. Before Lyons, P. J.</p> <p>An order of removal was had by the Overseers of Fermanagh Township Poor District to remove Mahala Carter, wife of Oliver Carter and her three children, Eva, Herbert and John to the poor district of Milford township. From this order of removal the Milford township overseers appealed.</p> <p>The court found that Oliver Carter had a settlement in Milford township at the time of his birth and that he never gained a settlement elsewhere; that his wife Mahala therefore had a settlement in said Milford township ; that of the three children of Mahala one only, Herbert, was a son of Oliver. The order of removal was confirmed as to Mahala and Herbert Carter and discharged as to Eva and John.</p> <p>Counsel for Fermanagh township presented points of fact and law, some of which were affirmed and some refused.</p> <p>The only exception was as follows : “ And now, September 12, 1896, counsel for Milford township excepts to the findings of facts, answers to points and decree, and at his instance this bill is sealed.”</p> <p>Errors assigned were to the answers to points and to decree of the court holding that Mahala and Herbert Carter had a legal settlement in Milford township, and in not discharging the order of removal.</p>

Appeal, No. 31, Nov. T., 1896, by defendants, from judgment of C. P. Delaware Co., Sept. T., 1895, No. 227 in favor of plaintiff on case stated. Case stated. Before Clayton, P. J. The facts are sufficiently indicated by the opinion of the court. Judgment entered on case stated in favor of the plaintiff for $100. Defendant appealed. Mrror assigned was entry of judgment on case stated in favor of plaintiff.

Appeals, Nos. 69, 70 and 71, April T., 1897, by defendant, from judgments of Q. S. Allegheny Co., June Sess., 1896, Nos. 152, 230 and 231, on verdicts of guilty. Before Indictment for forgery. The eases appear to have been argued together. The defendant was indicted on three separate bills for forging or altering certain promissory notes drawn by the firm of which he was a member and indorsed by William Ahlers.

<p>Practice — Superior Court — Appeals—Charge of the court — Absence of points.</p> <p>Where a charge, in its general terms, was well adapted to the issues raised, and where the contention is unwarranted that only one side was presented, it is too late to complain, on appeal, of one omission in the charge concerning particular phases of the evidence, when no points were presented calling for specific instructions or asking the court to rule upon the testimony as a whole.</p>

Appeal, No. 20, March T., 1896, bjr defendants, from order of Q. S. Juniata Co., Sept. Sess., 1895, No. 9, dismissing appeal in the court below and confirming order of removal. Appeal by overseers of the poor of Monroe township from decree dismissing appeal in the court below confirming order of removal.

Appeal, No. 169, November T., 1896, by plaintiff, from judgment of C. P. Northampton Co-., April T., 1895, No. 23, on point reserved non obstante veredicto. Assumpsit by foreign attachment to recover commissions. Before Scott, J. The plaintiff, a flour commission broker, had for several years prior to October 16,'1894, been selling flour for George H. Christian, a miller residing in Minneapolis. During the months preceding, the plaintiff sent to George PI.

Appeal, No. 33, Jan. T., 1897, by defendants, from judgment of C. P. Bradford Co., Sept. T., 1896, No. 68, for want of a sufficient affidavit of defense. Assumpsit on surety bond. Before Dunham, P. J., of the 45th judicial district, specially presiding.

<p>Insurance — Effect of draft given in settlement.</p> <p>A draft given, in the settlement of an insurance claim on which payment was subsequently refused is not such a conclusive and final payment as will preclude a valid defense by the company in a suit on the policy.</p> <p>Insurance — Fraud—Sufficiency of affidavit of defense.</p> <p>An affidavit of defense in a suit to recover on a draft given in settlement of a fire loss, is sufficient which positively avers fraud in making up proof of loss and fraudulent misstatement as to amount and value of goods destroyed, and that the draft was so issued under belief that the facts contained in the proof of loss were true as therein stated, whereas they were not true but false and fraudulent.</p>

<p>Road law — Assessment of benefits — Opening streets.</p> <p>No assessment for benefits resulting'from the opening of a street can be legally imposed upon properties not abutting upon the line of the street which is the subject of the improvement.</p> <p>Front street, in the borough of Verona, extended for a certain distance southerly from South street in said borough, terminating, however, as a cul de sac, it was extended by proceedings under the Act of May 16,1891, F. L. 76, and the jury assessed benefits against certain owners of properties fronting on said Front street, but not on the newly extended portion thereof. i7eM,>that such assessments are illegal, as the properties do not adjoin directly upon the improvement.</p>

<p>Judgment — Discretion as to opening — -Appeals—Review. '</p> <p>Where an answer to a petition to open judgment is fully responsive, and the allegations of the defendant are fully met and explained by the oath of the plaintiff, the discretion of the court in refusing to open judgment is fully vindicated and will not be reviewed by the appellate court.</p>

<p>Appeal, No. 43, March T., 1897, by David B. Nace, executor, from decree of O. C. Fulton Co., confirming, report of the auditor in distributing balance in the hands of administratrices of the estate of Janies Cooper, deceased.</p> <p>Exceptions to auditor’s report. Before Swope, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Errors assigned were (1) in confirming report of the auditor. (2) In holding that Sarah J. Cooper was entitled to a preference in the distribution to the amount of $355. (3) In not directing that the balance in the hands of the accountants, after paying the costs of the audit, should be distributed pro rata to the claim of Daniel Logan’s executor and Sarah J. Cooper.</p>

<p>Appeal, No. 53, March T., 1897, by Sarah J. Cooper and Jennie E. Cooper, from decree of O. C., Fulton Co., confirming report of auditor in distributing balance in the hands of Sarah J. Cooper and Jennie E. Cooper, administratrices of the estate of James Cooper, deceased.</p> <p>Exceptions to auditor’s report. Before Swope, P. J.</p> <p>In addition to the facts which appear in the opinion of the preceding case, appeal by David B. Nace, Executor, the following facts may be stated from the report of the auditor. It appears that at the time of the decease of J ames Cooper he was indebted to Andrew Fisher, and judgment was entered on single bill for purchase money of land. On this judgment-the administratrices of Cooper, on April 8, 1887, paid the administrator of Fisher the sum of $329.84, which left the amount due on the Fisher estate on that judgment, $1,000. In addition to the amount paid April 3, 1887, to wit, $329.84, Mrs. Sarah Cooper, as administratrix, paid on same judgment between March 29, 1888, and November 7, 1895, the sum of $395. She also paid to Mrs. Fisher, on dower lien between February 2, 1888, and March 2, 1895, the sum of $420. It thus appears that the administratrices actually paid out on the debts of the estate the sum of $1,144.84, for which they have had no credit anywhere in their account filed. The auditor allowed Mrs. Cooper a pro rata on the $395.</p> <p>Errors assigned were (1) In confirming report of the auditor ; (2) in holding that the administratrices were not entitled to credit for the the sum of $395.84 paid on the judgment April 3, 1887, as against the balance appearing due on the account which they filed, and in dismissing their second exception to the report of the auditor; (3) in dismissing the third exception of the appellants and in refusing to- allow credit for all sums paid out by them in the estate; (4) in not holding that the entire balance due on their account as administratrices in March, 1888, had been paid out by them, or for them, before Daniel Logan made application for the appointment of the auditor, and that at the time there was no money in their hands for distribution.</p>

<p>Master and servant — Defective machinery — Knowledge of the defect by p lainiiff— Binding instructions.</p> <p>In an action for injury resulting to an employee arising from the defective condition of the machine or apparatus about which the plaintiff was working, where the uncontradicted evidence shows that the plaintiff knew or ought to have known that it was defective and dangerous, and failed to report the condition of said apparatus to the defendant’s superintendent, the defendant is entitled to binding instructions.</p>

<p>Judgment — Set-off—Legal and equitable set-off.</p> <p>A judgment was obtained against a constable for an illegal distraint and the landlord permitted to intervene as defendant. This judgment was subsequently assigned by the plaintiff’s estate, subject to an allotment of it as exemption claimed by plaintiff’s widow. The landlord petitioned for leave to set off against the judgment a subsequent judgment obtained by him against the plaintiff’s estate. Held, That neither law nor equity will justify the court in ordering the set-off of judgment prayed for.</p>

<p>Appeal No. 143, April T., 1897, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1895, No. 59, on verdict for plaintiff.</p> <p>Trespass for injuries resulting in death of plaintiff’s son. Before Barker, P. J., of the 47th judicial district, specially presiding.</p> <p>Plaintiff’s son, a boy of six years and four months old, was run over and killed by a car of defendant’s railway. It appeared from the evidence that the car was running at a speed of from ■seven to eight miles an hour, that the motorman noticed, before he reached them, some six or seven children near the street car track ahead of him and turned off his current, stopping the car in half its length. Alighting from the car he then found it had struck a little girl in the head, and that plaintiff’s son had been run over and received injuries from which he died the next morning.</p> <p>Other facts appear in the opinion of the court.</p> <p>The trial judge left the question to the jury as to defendant’s negligence arising from the speed of the car and its conduct by the motorman.</p> <p>Yerdict and judgment for plaintiff for cts. Plaintiff appealed.</p> <p>Errors assigned were (1) in charging the jury as follows : “ It is not necessary for the purposes of this case, to go into any lengthy explanation of negligence, because it seems that the negligence alleged in this case is the fast running of a car, and possibly the unskillfulness of the person having the car in-charge.” (2) In charging the jury as follows: “ Now it was with some hesitation that we entered into the defendant’s side of this case, because the only evidence we had of the rate of speed on the part of the plaintiff was. that one witness said that the car was running pretty fast, and the other one, who was approaching it — who was going in the opposite direction and could see it approaching him — made a somewhat similar expression — that it was running pretty fast, or something of that kind.” (3) In charging the jury as follows: “ Well, as we have suggested, it is necessary that these cars should run pretty fast, otherwise they would be useless, but we concluded that we would hear the defendant’s testimony as to how fast it was running and then let you determine whether or not it was an unreasonable rate of speed considering the locality and other circumstances of the case.” (4) In charging the jury as follows : “You must say whether that was an unreasonable rate of speed, such as would be dangerous, considering the likelihood of people to get on the track there, and all the other circumstances, and if you conclude that it was not an unreasonable rate of speed, that would end the case and you should find a verdict for the defendant.” (5) In charging the jury as follows: “ It is entirely clear to us that if this boy had been a grown person, he couldn’t recover here. There is no question at all in our mind, under the law —and indeed it couldn’t be contemplated — that if a grown person would start to run across the track, or get upon the car in the manner that Mrs. McCaffrey testified that this boy did, he couldn’t recover a cent of damages if he was injured, or anybody else, if he was caught, and why? Because it would be his own fault, and the law is, that where a person contributes to the cause of injury he cannot recover.” (6) In charging the jury as follows: “ The law bas not laid down the precise period in the age of a child when this occurs, although some judges have undertaken to place it at about the age of this child— about six years — -when its reasoning powers are - developed so that it can be held to a strict responsibility for its acts.</p> <p>But the law is, in regard to children, that unless they are so small and of such tender years that it is apparent to the jury that they can have no responsibility, they must be held to such responsibility in the exercise of discretion as their age would warrant. The jury is permitted to say whether children are of that age and mental capacity, that they are able to judge of the consequences of their acts, and if they are, they are held to a degree of responsibility proportionate to their age and mental capacity.” (7) In charging the jury as follows : “ If you believe from the testimony of these two witnesses that these children made a break for the car and got under it, or, as the young man who says he was on the front of the car, testifies, they were playing there — chasing each other — and in the excitement of their play they rushed in front of this car so suddenly that the car couldn’t have been stopped, regardless of the rate of speed it was running at, of course, the rate of speed wouldn’t have anything to do with the case. If they rushed under, either in play or in an attempt to cross, or in an effort to get on the car as one of the witnesses thinks, then it wouldn’t make any difference about the speed of the car, if they did this so suddenly that the car couldn’t be stopped and the child’s life saved. Now I don’t know of any other instruction we can give-you except as to the measure of damages in cases of this kind.” (8) In charging the jury as follows: “ There is no evidence here of any medical attendance being paid for, or any expense for burial, and therefore they would not be elements of expense.” (9) The charge as a whole was misleading and inadequate to the case.</p>

<p>Execution — Postponement by interference with writ.</p> <p>A notice or letter to a sheriff directing him *■ to indorse on a testatum writ of fi. fa. the date of receipt of same and I will furnish you with a description of property upon which levy is to be made at an early date,” does not involve such interference by word or act with the execution of the writ as will postpone it to a subsequent writ of execution, the levy being made within the life of the writ.</p>

<p>Appeal, No. 92, Nov. T., 1896, by</p> <p>plaintiff, from judgment of C. P. Montgomery Co., March T., 1893, No. 79, on verdict for plaintiff.</p> <p>Assumpsit to recover moneys deposited in defendant’s bank. Before Swartz, P. J.</p> <p>It appears from the evidence that this was an action to recover such part of fifteen checks given by various persons and corporations to the order of the plaintiff and by him indorsed, “For deposit only to the credit of Win. Rennyson” and actually deposited with the defendant, The People’s National Bank of' Norristown from June 14, 1890, to April 18, 1891, which the defendant collected and failed to credit to the account of the appellant. The checks were for sums aggregating $1,159.06 all of which were collected, by the defendant and of which only $183.40 were credited to the account of the appellant.</p> <p>Demands were made for each of the sums mentioned in the checks, and payment being refused suit was instituted for the same and interest was claimed from the date of the demand and notary’s costs therefor.</p> <p>It appears that the plaintiff, at the time of these transactions, was a member of the Montgomery county bar, engaged in manufacturing, owner of the Times building in Norristown, and a leading stockholder and the chairman of the Daily Times, Limited, a Norristown newspaper joint stock company. The plaintiff was a regular depositor with the defendant, and personally made up the deposits for his account and with a rubber stamp marked the checks to his order for the same, with the inscription in blue ink, “ For deposit only to the credit of Wm. Rennyson,” and signed his name thereto. He kept a “stub” account of the deposits and of the state of the bank account. He had a separate account with the defendant kept for the Daily Times, Limited. He made deposits to its credit with a rubber stamp with inscription in red ink, “For deposit only to the credit of the Daily Times, Limited,” and signed “William Rennyson, Chairman.” The deposits by this company were made up by an employee, usually one R. S. Poinsett, its bookkeeper, who generally carried its deposits and those of the appellant to the defendant bank.</p> <p>Early in May, 1891, R. S. Poinsett absconded and shortly afterwards the plaintiff discovered that the balance of the credit in his personal account with the appellee was short $975.66, and investigation showed the failure of the defendant to give credit for the proceeds of the fifteen cheeks to that amount, and that the deposit slips which he had made out were missing, and that the deposits had been accompanied by other slips. The plain directions indorsed upon the checks were unaltered.</p> <p>The refusal of the appellee to pay the $976.66 was based upon 'the allegation that a check for $50.00 dated November 24, 1890, and that day deposited with it indorsed “For deposit only to the credit of Wm. Rennyson,” signed “ William Rennyson,” was cashed, the money being handed to whomsoever was the messenger; that of a check for $138.40 deposited February 25, 1891, indorsed, “For deposit only to the credit of Wm. Rennyson,” signed. “ William Rennyson,” $50.00 was paid in cash to the messenger, and later in the day $25.00 was returned and credited to the account of the plaintiff; and that the proceeds of the remainder of the fifteen checks were deposited to the credit of the Daily Times, Limited.</p> <p>There was evidence tending to show that the account of the Daily Times, Limited, was really the account of the appellant, and that William Rennyson, the plaintiff, was the owner thereof, although this was denied by the plaintiff, who produced evidence that two shares of #50.00 each were held by trustees for two minor sons of his respectively.</p> <p>The testimony, however, showed that William Rennyson not only acted as chairman, but attended to the money affairs, and there was no evidence showing that a complete organization was kept up by a duly constituted treasurer and secretary.</p> <p>Evidence was offered with intention to show that plaintiff had suffered loss by reason of Poinsett’s declaration based upon the error in crediting the deposits.</p> <p>The money erroneously deposited to the account of the Daily Times, Limited, was drawn out from time to time, and checks signed by the plaintiff as chairman.</p> <p>Verdict and judgment for plaintiff for $112.02. Plaintiff appealed.</p> <p>Errors assigned among others were (5) In charging the jury as follows: “ The important question is, when Mr. Rennyson as William Rennyson, chairman, drew out that money did he draw it out as his money ? Did it pass into his hands as his individual money, and did he so receive it? If he did, then it the bank, is called upon to pay it a second time by your verdict; William Rennyson as an individual has twice received the proceeds of the checks that were collected by the bank. If, on the other hand, this is a different concern, then, although that different concern may have drawn out the money, that is not chargeable against William Rennyson. If, as an illustration, I send my checks to bank and the bank by some mistake deposits them to the credit of your foreman, and afterwards the foreman draws out the money, the bank cannot say to me ‘ go to the foreman and get your money from him. It was your money. You go to the foreman and get it.’ I would answer, ‘No, I directed you to deposit that money in my account. If you deposited it in the account of anybody else you as a bank go and collect it from that person and hand it over to me. The bank could not say to me I should go and get it. I would say to the bank, ‘you are the party to collect the money for me. You are the party to pay the money over upon my order, because that is the arrangement I made with you when I became a depositor at your bank.’ ” (6) In charging the jury as follows: “A man may call his business any business he pleases. I may engage in business and take any name I see fit, 'and yet I may be the only person that is interested in it. All profits go into my pocket, I sustain all the losses, and I am the only person responsible in-that business, although the name itself may not indicate that I have anything whatever to do with it. So here, if the Daily Times, Limited, although it did not contain the name of William Rennyson, was really William Rennyson, then for all purposes in this case a payment to the Daily Times, Limited, was a payment to William Rennyson.” (7) In charging the jury as follows: “Now, it is not so much the form that may be shown as the actual substance of the thing. It may be true, and the testimony, if you believe it, seems to indicate that Mr. Rennyson gave a small interest in this partnership association to two of his sons; that originally their shares belonged to other parties, but by a sheriff’s sale and by other parties going out they finally reached his two children. If this was simply a form for keeping up appearances, and this partnership association had really no substance about it, if William Rennyson really was the whole concern, and all that he did so far as observing the act of 1874 in relation to partnership associations is concerned, was a mere formal matter without any meaning to it, then although he may show to you that he did give to his boys a very small interest in this concern, yet if in fact you find that was only a formal matter, that was only for appearance, and that in fact and in truth William Rennyson was the whole thing, that he held himself out as responsible for the debts of the concern that may have been contracted, that he was the man that would pay the losses and receive the profits, that he controlled it in every respect just as he would if it was his individual business, and it had in actual practice no other form or substance than that he was the man and the only man connected with it, then it seems to me, no matter what the form may have been, if he really was the Daily Times, Limited, 'and received the money from the bank by drawing it out when it had been deposited in the Daily Times, Limited, account, then he received this money that was diverted or placed in an improper account through the carelessness of one of the officers of the bank.” (8) In charging the jury as follows: “What else is there? Mr. Eennyson says this was a bona fide partnership association, that he was the chairman, that the managers were selected and he was chosen to that position. When he was asked who was treasurer, after some hesitation he said he-managed the moneys. I do not know that he was asked who was secretary. This act of assembly requires that there shall be managers chosen, and one'of the managers shall be the chairman and one other of the managers shall be the treasurer and secretary, or the same manager may hold both positions of treasurer and secretary. I only call your attention to this because you may find under this testimony that while certain forms were observed in respect to the partnership association, that in fact and in truth William Eennyson was none other than the Daity Times, Limited. That is a matter for you, and you are to determine the facts in this case.” (11) In overruling the objection by the plaintiff to the question : “Q. Who constituted it (the Daily Times, Limited) at this period? ” (12) In overruling the objection by the plaintiff “ to the witness testifying to any disposition of the money other than the disposition in accordance with the indorsement upon the back of the checks.” (13) In overruling the objection by the plaintiff to the question to the witness Evans, as follows: “ Q. If the court pleases, to cover that question, after all these moneys that were deposited in the account of the Daily Times, Limited — what became of the moneys after they were deposited there ? Ans: The moneys thus deposited to the credit of the Daily Times, Limited, were drawn out at different times. They were drawn out over the signature of William Eennyson, chairman, William Eennyson’signed by himself and chairman printed.” (14) In allowing the defendant’s offer “ to prove that William Eennyson at the time named came to the bank and told the officers of the bank that he was the owner of the Daily Times, Limited, that no one else had any interest in it but himself.” (15) In allowing the offer by the defendant of the agreement of sale of the Daily Times, Limited, to Irvin P. Wanger. (16) In striking out the testimony of the plaintiff, as follows:</p> <p>The Court: I will allow you to show any loss or embezzlement by an employee that you can trace to the diversion by the bank, but it must be connected with that diversion.</p> <p>Witness resumed: “ The Times, Limited, Company was kept distinctly separate in its business transactions from every other business that I had connection with, and it was running very close. The entire proceeds of the Daily Times, Limited, as it came in was abstracted by Poinsett, and the moneys from the bank belonging to my individual account were put into the Daily Times, Limited, account in order to make up that loss.”</p> <p>Mr. Larzelere: I move that be stricken out.</p> <p>The Court: Yes, unless you can show some amount of money that came into the hands of your employees, or was in your safe or in your drawer, and that that money was taken, it is useless to go on any further.</p> <p>The witness : “ Then, I would take the sums of money that came into the Times Limited Company’s drawer. They were taken almost to a cent, and the deposit was made up by diverting funds.”</p> <p>Objected to.</p> <p>Mr. Larzelere: I ask that on my motion to strike out his previous testimony we have a ruling.</p> <p>The Court: If there is no amount mentioned it cannot amount to anything to say that everything was tfaken. We do not know whether it was one cent, or $500, or $1,000. There is nothing to strike out, because there is no testimony here that amounts to anything. It is not responsive to the question that was put to him, and therefore if you insist on it, although I do not see how it hurt you, the answer not being responsive to the question, and not coming up to the requirement of the ruling of the court as made, it is stricken out.</p> <p>Plaintiff excepts. Bill sealed.</p> <p>(17) In allowing the motion of the defendant “that all the evidence relating to any embezzlement made from the Daily Times, Limited, by any of its employees be stricken out of this case.”</p>

Appeal, No. 48, March T., 1897, by petitioner, from decree of Q. S. Cumberland Co., refusing a distiller’s license. Petition for distiller’s license under the provisions of the Act of Assembly approved June 9, 1891, P. L. 257.