Volume 40 — Pennsylvania Superior Court Reports

Appeal, No. 29, April T., 1909, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1906, No. 145, on verdict for plaintiff in case of W. L. Moyer v. John J. Phillips. Assumpsit to recover a balance alleged to be due on a building contract. Before Holt, P. J. The opinion of the Superior Court states the case. Error assigned was in refusing a new trial.

<p>Parent and child — Illegitimates—Legitimation by marriage — Cohabitation — Act of May 14,1857. P, L. 507-</p> <p>1- Where a child is born out of lawful wedlock, the mere fact that the parents were subsequently duly married, will not legitimate such a child, if the marriage was not followed by cohabitation.</p> <p>2, The object of the Act of May 14, 1857, P. L. 507, was intended not only to legitimate offspring otherwise illegitimate but to establish the family relation, so that the public would be relieved from the burden of the care of children for whom no legitimate caretakers had been provided.</p>

<p>Appeal, No. 154, April T., 1909, by Susie I. Wylie, from decree of O. C. Allegheny Co., May T., 1908, No. 99, dismissing exceptions to adjudication in Estate of Mary Sollinger, deceased. ■</p> <p>Exceptions to adjudication.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 1, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1906, No. 931, on verdict for plaintiff in case of William Foehr v. New York Short Line Railroad Company.</p> <p>Trespass to recover damages for injuries alleged to have been sustained by the obstruction of a private road by reason of the building of a railroad bridge. Before Kinsey, J.</p> <p>At the trial when plaintiff was on the stand he was asked this question:</p> <p>“Q. How much of your produce were you able to get out in that summer compared with the total bulk?”</p> <p>Mr. Lamb: I object on the ground that although he has shown that he could not get out with a heavy wagon he has also shown that he could get out with the light wagon.</p> <p>Defendant's objection overruled. Exception for defendant. [1]</p> <p>Mr. Hepburn: “ Q. How much of your produce were you able to get out in that summer compared with the total bulk? A. Why, I could only get out about half, sometimes not that, because I could not get through with my big truck wagon to haul my loads that I wanted to haul to the city. Q. Now, what was the produce you could not get out? A. That was hay. Q. How much of that were you unable to get out, how much hay? A: Well, I had about twenty or twenty-one ton; that is, I count on the sand being so deep and I had to have leaders every time to pull the guts out to get out, and I just stopped hauling because it did not pay me to haul it out, and I got away with about twelve ton, and seven or eight ton I had to leave there. Q. What became of that seven or eight tons? A. Well, some of it molded and the roof was bad and it got bad and I lost some of it. Q. How much did you lose? A. Well, about four ton. Q. About four tons? A. Yes, sir. Q. And its value was how much a ton?”</p> <p>Objected to by counsel for defendant.</p> <p>Mr. Lamb: To save my continual objections, I think if your honor will allow me — you see the evident purpose is to show how many crops he was unable to get out and what he would have obtained for these crops, so if your honor will allow me to enter a general objection to this line of questioning it will save my objections.</p> <p>The Court: Enter a general objection by counsel for the defendant to this line of questioning. Also his objection overruled and exception for the defendant. [2]</p> <p>Mr. Lamb: If the court please, I move to strike out the testimony of Mr. Foehr so far as it relates to the quantity of crops that he lost and the prices that he would have obtained for them had he sold them, on the ground that that is not the measure of damages, and that it has been shown by his own testimony that he could have gotten out through that railroad with a lighter wagon.</p> <p>The Court: Just make your reason a little clearer, will you, counsel?</p> <p>Mr. Lamb: I said that the measure of damage in a case of this kind, supposing that his road had been obstructed, would have been the cost of removing such an obstruction or if he could have used it in another way as he stated before with a lighter wagon, would have been the expense of hiring another wagon so that he could have used two and carried the same quantity of truck to market that he said he was deprived of, because he could not carry it in a particular kind of wagon. The rule of law is, that a man must minimize his damage. He must do that. He can minimize his damages and he cannot sit down and recover here for one-half of the crop which he said himself he could not use, because he could not get through with the market wagon, but he did get through there with an ordinary wagon, and so, I say, it is an improper measure of damages when he is allowed to put in evidence not the extra expense to which he was put to, but the loss of crops which he did not take to market.</p> <p>The Court: In cross-examination, he replied to your questions that he could only take — or at least it was his cross-examination in chief, first he could only get half of his crops out by reason of the size of the wagon that he was obliged to use on account of obstructions in the roadway. In cross-examination upon that statement he said to you when you asked him why, then, he did not engage another wagon of the same size, so as to take the other half, he was prevented from taking out, he said he was unable to get such a wagon, and you asked him why he did not hire, as I recollect the testimony, another wagon, and he said he could not hire “none.” That is the way he put it as I remember that, “none.” Now, isn’t that a question for this jury to pass on, whether he was derelict in his effort to reduce these damages. Of course, as a principle of law, and I will so say to the jury, he was bound to do all that was possible to avoid and lessen these damages, everything in reason. There is no question about that. That is a very simple principle of law in this case of which there can be no question. The question will come whether or not he could have done something to have saved the crop that was rotting in the ground. I shall permit the whole case on the evidence to go to the jury. I refuse your motion to strike out. Exception for defendant. [3]</p> <p>Defendant presented these points:</p> <p>1. The evidence in this case shows that the plaintiff was granted by deed the use of a roadway as then laid out about fifty feet in width leading from his land to the Krewstown road. That where the bridge was erected over the defendant's railroad, the roadway was along the northerly side of the Penny-pack creek, the only visible indication of a roadway at that point being a wagon road of about ten or twelve feet in width; the southerly side of this wagon road being about five or six feet from an old stone wall along the creek. The said roadway being of varying widths at other points. Where there are material and visible boundaries of the roadway on the ground they will control in such a grant as this over the width in feet mentioned in the deed. Answer: Portions of this point I would affirm, but as it is drawn here it involves too many questions of fact which belong exclusively to you for judgment, and as a whole I refuse it. [4]</p> <p>5. There is no evidence in this case from which the jury can find that any part of the permanent structure of the pier is built upon the traveled roadway, the use of which was granted to the defendant. Answer: Refused; that is a fact, for you, gentlemen. [5]</p> <p>7. The evidence in this case shows that the bridge over the road in question was constructed for the defendant partly by the Smith Construction Company and partly by H. S. Kerbaugh, Incorporated, under certain contracts, and the specifications therein set out, under the supervision of the engineers of the defendant company; the said contracts providing that the contractors should be responsible for any damages that might be done by them during the performance of the work to the property adjacent thereto in consequence of their unskillfulness or negligence, and that whenever any public or private roads should be interfered with the contractor should keep a temporary road, during such interference, at all times unobstructed and safe for travel. Under the terms of these contracts the defendant company is not responsible for any wrongful. acts of the contractors, or for any obstruction of plaintiff’s roadway by them during the construction of the said bridge caused by the manner in which they did the said work. Answer: That I refuse. The chief engineer of the defendant company was there supervising the whole of this work. [6]</p> <p>8. Because of the contracts offered in evidence the defendants are not responsible for the acts of the contractors in depositing dirt, stones, or material in the right of way claimed by the plaintiff, or for allowing engines or machinery to remain thereon. Answer: Refused. [7]</p> <p>9. Even if the jury should find that there has been at times unreasonable obstructions of the plaintiff’s roadway for which the defendants are responsible, he can only recover nominal damages therefor; unless he shows an actual loss resulting to him by reason of these obstructions; and then only to the amount of such actual loss shown by the evidence. This is not a case for the imposition of exemplary or vindictive damages. Answer: Refused. [8]</p> <p>13. Under all the evidence in this cause your verdict should be for the defendant. Answer: The last point I decline to read and refuse. [9]</p> <p>Verdict and judgment for plaintiff for $1,100. Defendant appealed.</p> <p>Errors assigned were (1-3, 10) rulings on evidence, quoting the bill of exceptions; (4-9) above instructions, quoting them, and (11) in overruling defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 154, April T., 1909, by Annie B. Stevens, from decree of O. C. Allegheny Co., May T., 1908, No. 99, dismissing exceptions to adjudication in Estate of Mary Sollinger, deceased.</p>

<p>Carriers — Common carriers — Delivery of goods — Condition of goods— Evidence.</p> <p>1. When a shipper proves that goods had been delivered to the carrier in good condition and arrived at their destination in a damaged condition, such change in condition is evidence from which a jury may be permitted to infer that the injury arose from the negligence of the carrier, unless that change in condition is one which results from the operation of a natural law inherent in the property or is of a character not reasonably giving rise to a presumption of negligence on the part of the carrier. The owner in order to obtain the benefit of this presumption must, however, prove that the goods were in good condition when delivered to the carrier; for there is no presumption in the absence of evidence, that they were in such condition.</p> <p>2. In an action to recover damages for injuries to a marble monument, it appeared that the monument weighed 3,200 pounds and was inclosed in a heavy wooden case. It was imported, and was stored for two weeks in a warehouse. It was then hauled on a truck two or three miles over the streets of a city, and delivered to the carrier. The evidence showed that the injury was caused by permitting the monument to rest upon the face and not upon the back. The shipping receipt contained the following words: “ The property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown).” Plaintiff stated that on one side of the case were words indicating the manner in which the case should be carried. These words were not in the English language. The truckman who acted as the agent of the plaintiff testified that the case was removed from the truck without turning it over, and that the side upon which it had rested while on the truck remained down when it was placed in the car. Held, (1) that the evidence was not sufficient to show that the monument was in good condition when delivered to the carrier, and (2) that no presumption arose from the terms of the shipping receipt that the property had been delivered by the plaintiff to the carrier in good condition.</p>

<p>Will — Power of appointment — Appointment to children — Adoption of child — Invalid appointment.</p> <p>1. Where a testator gives his estate to a trustee to pay the income therefrom to his sons and daughter and “from and after the death of either of my sons or daughter and until the death of all of them to pay the income which he or she would, if living, have received to such person or persons of kin, to such son or daughter as he or she may by will have appointed, and in default of such appointment to the child or children of such son or daughter,” and one of the sons on dying appoints the income among his children, including among them an adopted child not of the kin nor blood of the donor, such appointment to the adopted child is invalid, and the adopted child will take nothing thereby; but the invalid appointment will not invalidate the other appointments to the children so as to make a complete default of appointment of all of the income. Even if there should be a total default the adopted child would not be entitled to assert any rights to a portion of the income under the alternative provision in the will of the donor, inasmuch as she is not a child of her adopted father within the meaning of the will of the latter’s father.</p> <p>2. In such a case the amount of the income invalidly appointed will be equally divided among the son’s own children.</p> <p>3. The words “kin” and “kindred” when used in a will, are limited in legal meaning, as in common use, to those related by blood.</p>

<p>Appeal, No. 99, Jan. T., 190*8, by Helen Freeman Brewster, from decree of O. C. Phila. Co., Jan. T., 1881, No. 228, dismissing exceptions to adjudication in estate of Henry G. Freeman, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the report of Freeman’s Estate (No. 1), ante, p. 31.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 19, Feb. T., 1909, by plaintiff, from judgment of C. P. Clinton Co., Jan. T., 1907, No. 57, on verdict for defendant in case of Amasa B. Win-Chester v. M. B. Rich.</p> <p>Appeal from judgment of a justice of the peace. Before Hall, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Under the instruction of the court the jury returned a verdict for the defendant. Plaintiff appealed.</p> <p>Error assigned among others was in giving binding instructions for defendant.</p>

<p>Boroughs' — License—Theater—Police power — Acts of April 3, 1851, P. L. 320, and May 5, 1876, P. L. 112.</p> <p>1. Under the Acts of April 3, 1851, P. L. 320, and May 5, 1876, P. L. 112, giving boroughs the power to regulate, license or prohibit theatrical exhibitions, a borough has the power to impose a license fee of $3.00 per day upon theatrical exhibitions.</p> <p>2. The amount which a borough may ordain shall be paid for a license to give a theatrical performance is not limited to the sum which will reimburse it for the pay of the police officers which it especially delegates to watch the actors during the performance.</p>

<p>Wills — Probate—Undue influence — Death of party — Practice, O. P.— Evidence.</p> <p>1. On an appeal from a judgment on a verdict sustaining a will, the appellants have no standing to complain of the action of the court in submitting the case to the jury, because one of the contestants was dead at the time of the trial and his representatives had not been substituted of record.</p> <p>2. On the trial of an issue devisavit vel non where undue influence is alleged, it is not error to refuse to admit in evidence the will of the husband of the decedent, which gave to the latter a power which the contestants alleged was not properly exercised.</p> <p>3. In such a case evidence that the decedent had executed a deed of land to the beneficiary, and that the latter was present when -the decedent drew a certain sum of money from bank, is not sufficient to establish undue influence, where there is nothing to indicate that the conveyance was not a free and voluntary act of the decedent, and there is nothing to show what she did with the money which she had withdrawn from the bank; nor in such a case is it permissible to show that a priest who was alleged to have unduly influenced decedent, had been withdrawn from a church on charges that he had induced people to make and alter wills.</p> <p>Practice, C. P. — Trial—Mistake—Correction of mistake.</p> <p>4. Where counsel object to certain words used by the trial judge in his charge, and the latter immediately renews the instructions omitting the words objected to, and stating the law correctly, the use of such words, even though erroneous, is not a ground for reversing the judgment.</p>

<p>Negligence — Street railways — Car and wagon — Head on collision — Contributory negligence.</p> <p>Where a driver of a wagon goes, onto a street railway track because of obstruction on both sides, and a car in front of him and coming in his direction, stops at a crossing fifty feet from him, and the motorman notwithstanding signals starts his car abruptly and with full force, and runs the wagon down before it can leave the track, the railway company is liable for the resulting injuries to the driver.</p>

<p>Appeal, No. 83, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 1,141, on verdict for plaintiff in case of William C. O’Reilly v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for injuries to a horse. Before Frazer, P. J.</p> <p>At the trial it appeared that the action was brought to recover damages for injury to a horse sustained on April 4, 1905, in a collision with a freight car which was being pushed in front ' of an engine along railroad street in the city of Pittsburg at the crossing of Twenty-fifth street.</p> <p>The court charged in part as follows:</p> <p>[As a general rule it is negligence upon the part of a railroad company to push a car in front of an engine, especially upon tracks built upon the streets of a city or a town, or places where there is likely to be persons on the track. It would not be negligence in shifting in the yards of the company; but outside of that, in streets that are used by the public generally, it would be negligence upon the part of the railroad company operating a car in that way.</p> <p>Now it does not appear whether this was a usual place for shifting cars or not, or whether it was the main tracks of the Allegheny Valley Railroad. If it was a regular place for shifting cars, I leave it to you to say whether it would be negligence under those circumstances to put a car in front of an engine and push it along the street for the purpose of shifting. If it was negligence under the circumstances, then the plaintiff would be entitled to recover here, unless the driver was guilty of contributory negligence, unless he ought not, under the circumstances, to have driven on the track.] [1]</p> <p>Verdict and judgment for plaintiff for $408.02. Defendant appealed.</p> <p>Error assigned was portion of charge above quoted.</p>

Appeal, No. 139, April T., 1909, by Robert F. Clever, from order of Q. S. Allegheny Co., Nov. T., 1907, No. 2, dismissing exceptions to report of jury of view In re Public Road in Kennedy Township. Exceptions to report, of jury of view. Error assigned was in dismissing exceptions to report of jury of view.

<p>Liquor law — Brewer’s license — Evidence—Record—Appeal.</p> <p>On an appeal from, an order of court refusing a brewing company’s application for a license, the evidence is not before the appellate court, and it cannot decide the case on its merits; but if it appears that the court of quarter sessions in the exercise of its discretion considered the number of petitioners for and remonstrances against the license, and the character of the remonstrants and petitioners, and other evidence, the appellate court will not reverse an order refusing the license.</p>

Appeal, No. 204, April T., 1909, by plaintiff, from judgment of C. P. Somerset Co., Dec. T., 1906, No. 249, on verdict for defendant in case of Augustino Canónico v. Joseph Lucente et al. Ejectment for a lot of ground in Summit township. Before Kooser, P. J. At the trial title was conceded to have been in Wm.

<p>Will — Construction—Devise to wife — Life estate — ■Fee simple.</p> <p>Where a testator gives and bequeaths to his wife the residue of his “ personal property and real estate absolutely, to have and to hold the same for her own use and benefit, so long as she shall remain unmarried, and if she shall marry again, then she shall be restricted to such estate therein as she would have been entitled to if I died without a will,” and the widow dies without having married, she dies seized of an estate in fee simple in the real estate.</p>

<p>Appeals — Assignments of error — Evidence.</p> <p>The appellate court will not consider assignments of error to the admission of evidence where such evidence is not set forth in the assignment.</p>

<p>Appeal, No. 194, Oct. T., 1908, by plaintiff, from judgment of C. P. Del. Co., Sept. T., 1906, No. 164, on verdict for plaintiff in case of Chester National Bank v. Southern Pipe Line Company.</p> <p>Trespass to recover damages for the burning of a mill. Before Johnson, P. J.</p> <p>From the record it appeared that on April 25, 1906, a leak occurred in defendant's pipe line, and that large quantities of oil escaped and flowed over land and water intervening between the pipe line and plaintiff's mill. A crowd assembled, and one of the men, a stranger, struck a match to light a cigar and threw the lighted match on the ground. As a result the oil took fire and the flames were communicated to the mill and destroyed it. The relative situation of the mill and the pipe line and other circumstances connected with the accident are set forth in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[The destruction of -this mill must have been the natural consequence, the natural and probable consequence of the break in that pipe, and there must have been no independent and intervening cause without the happening of which this fire would not have occurred.</p> <p>Now, was there an independent, intervening cause which, if absent, there would have been no fire? If there was, this plaintiff cannot recover for the loss of that mill. Now> the intervening cause that is set up here by the defendant is this boy or young man, Bryan, and it is contended by the defendant that they had no control over Bryan, had nothing whatever to do with him, and that without him, his appearing upon the scene and lighting this match and throwing it upon the ground, this mill would not have been burned, and their contention is that that is an independent, intervening cause over which they had no control and which they could not foresee, and, therefore, they are not liable. The defendant further contends that there was another independent intervening cause, and if it had been absent there would have been no burning of the mill, and that was this stream, and you will say to what extent the current of that stream, whether it carried the oil down in front of the mill and thus contributed to its burning — whether without that there would have been no burning of the mill, and whether that was an intervening, independent cause which the defendant could not reasonably and is not called upon to foresee.</p> <p>This is the great point in this case so far as the mill and machinery is concerned. We will go to the lot afterwards. If you find from all the evidence in this case that this oil flowed out of the pipe — that is not denied — and that the burning of this mill was the natural and probable consequence of that act, and that there was no intervening cause except natural causes — no intervening cause without the happening of which it would not have occurred — -then this plaintiff cannot recover so far as the mill is concerned; but if you find that it was the natural and probable consequence of that break in the pipe and the flow of the oil from it, and that there was no intervening cause without which the burning would not have taken place, then they are liable, under this act, and must pay whatever damage this plaintiff suffered.] [1]</p> <p>[If you find that this breaking of this pipe, that the burning of this mill was the natural and probable consequence of that break in the pipe, and the flow of the oil, and there was no intervening cause between this break and the fire, without the happening of which the fire would not have taken place, then award to the plaintiff whatever the value of the property burned, that is, the mill and machinery, will be. If you do not find that — find that this was not — we repeat it, because these terms are probably new to you — not the natural and probable consequences, that is, the burning — find there was an intervening cause, without the happening of which there would have been no fire, then they are not entitled.] [2]</p> <p>[There is no doubt the pipe leaked; there is no doubt it ran down the road; no doubt that the boy fired it by throwing a match into it; no doubt that it burned the mill, and the only question is, so far as this verdict is concerned, and recovery for the burning of the mill — was there an intervening, independent cause without the happening of which there would have been no fire? If there was, this plaintiff cannot recover. If there was not, in the judgment of the jury, and it was the natural and probable consequence, the burning was the natural and probable consequence of this break, then you may find for the plaintiff.] [3]</p> <p>Plaintiff presented these points:</p> <p>5. If the jury find that the fire which damaged the plaintiff’s property was caused by a stranger negligently or accidentally striking a match on the highway, at a time and place when oil was escaping from the defendant’s pipe, and flowing in such quantities as to make a conflagration from such cause possible or probable, and that the presence of oil on the highway was due to the negligence of the defendant, and that this negligence of the defendant in permitting the escape of the oil, concurring with the act of the match lighter, was necessary to and did cause the conflagration, then the defendant is responsible for the damages thus caused. Answer: That is affirmed; unless you find that this burning was not the natural and probable cause, and there was no independent intervening cause without which this fire would not have happened. [4]</p> <p>7. If the jury find that the fire was caused by a stranger negligently or accidentally striking a match on the highway, at a time and place when and where oil was escaping from the defendant’s pipe and flowing along the highway and into the creek in such quantities as to make an accidental conflagration from such cause, and the destruction thereby of the plaintiff’s property possible or probable, and that in consequence of such fire the plaintiff’s mill was consumed, and that the escape of the oil, concurring with the act of the match lighter, was necessary to and did cause the conflagration, then the defendant is responsible for the plaintiff’s damage, even although the oil did not escape through the defendant’s neglect. Answer: That is affirmed, with the remarks that we have repeated over and over again relative to the natural and probable consequence and the intervening cause. [5]</p> <p>8. The escaping oil was the proximate cause of the injuries complained of in this case, if they were its natural and probable consequences, and as such ought to have been foreseen by the defendant as likely to result from the escape of its oil. Answer: We decline to say that it was the proximate cause; but we submit to the jury the question whether it was or not. [6]</p> <p>Verdict and judgment for plaintiff for $300. Plaintiff appealed.</p> <p>Errors assigned among others were (1-6) above instructions, quoting them.</p>

<p>Evidence — Writings—Minutes of township supervisors — Parol evidence.</p> <p>1. The minutes of township supervisors duly entered in the minute book of the township clerk and allowed to remain without question for a considerable period of time, are conclusive of the fact that a meeting therein described was held, and cannot, in the absence of any allegation or proof of fraud, be contradicted by parol evidence on the trial of a collateral issue.</p> <p>Practice, C. P. — Trial—Withdrawal of testimony.</p> <p>2. It is reversible error for a trial judge after having excluded certain testimony and directed the jury to disregard it, to refer to such testimony again in answering a point.</p>

<p>Railroads — Widening road — Consolidation and merger — Acts of February 19, 1849, P. L. 79, and March 17, 1869, P. L. 12.</p> <p>1. The Act of March 17, 1869, P. L. 12, relating to the widening and straightening of railroads applies to a railroad company formed by the merger and consolidation of two railroad companies having powers conferred upon railroad companies by the Act of February, 19, 1849, P. L. 79.</p> <p>2. Where a railroad company is formed by the consolidation and merger of two other companies, a private suit cannot attack the validity of a special act incorporating one of the companies, because of a deficiency in the title of the act. Such a question can only be raised by the commonwealth in a direct proceeding for that purpose.</p>

<p>Appeal, No. 9, March T., 1909, by plaintiffs, from decree of C. P. Cumberland Co., March T., 1907, No. 3, dismissing bill in equity in case of Anna M. Martin et al., children and heirs at law of Reuben Martin, deceased, v. The Philadelphia, Harrisburg, & Pittsburg Railroad Company.</p>

<p>Negligence — Street railways — Getting on car — Sudden start of car — Case for jury.</p> <p>1. In an action by a woman against a street railway company to recover damages for personal injuries sustained while getting on a car, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained where the plaintiff and her two witnesses testify in effect that the car had stopped at a street whore she was standing, at a place where cars usually stop; that the plaintiff was there waiting to become a passenger on that car; and that when she took hold of the hand rail the conductor suddenly started the car, and she was thrown to the ground and injured.</p> <p>2. If a proposed passenger takes a stand at a point where a street car usually stops for passengers, and the car stops there, it is the duty of the conductor to give the passenger a reasonable time to get on the car safely.</p> <p>3. Where three witnesses testify that a street car stopped and six witnesses testify that it did not stop, and the trial judge calls the attention of the jury to the testimony of all of these witnesses, it is not necessary for the trial judge to go further and enumerate the exact number of witnesses arrayed on the two sides against each other.</p> <p>Practice, C. P.- — Trial—Improper remarks of counsel.</p> <p>4. The appellate court will not reverse a judgment on a verdict for plaintiff in an accident case because the trial court refused to withdraw a juror and continue the case after counsel for the plaintiff had said to the jury: “ How much would you take to be in the same condition as the plaintiff?”</p>

<p>Criminal law — Conspiracy—Corporations—Illegal dividends — Statute of limitations.</p> <p>1. The officers of a corporation may be convicted of conspiracy to declare illegal dividends, where it appears that during the period of the payment of such dividends, the expenses of the corporation were more than double the dividends paid, and that the total receipts from sales were less than the dividends, and that the latter were paid out of the sales of the stock of the company. Where the commonwealth alleges a continuing conspiracy, evidence of acts which might otherwise be barred by the statute of limitations is admissible as tending to show the scheme and plan of the alleged conspirators.</p> <p>2. A conspiracy formed by certain persons may be considered as adopted by others who come into the transaction at a later stage of the performance.</p> <p>3. On the trial of a conspiracy of the officers of two corporations to create a lease of the lands of one of the corporations to the other corporation at an exorbitant and excessive rate to the injury of the stockholders of the second corporation, a deed of the lands to the lessor company is admissible in evidence to show the value of the property. In such a case the consideration named in the deed is prima facie evidence of value, and in the absence of testimony showing the contrary, it may be presumed to represent the value of the property.</p> <p>Practice, C. P. — Trial—Evidence—Failure to follow up offer — Motion to strike out.</p> <p>4. Where in a criminal trial evidence is admitted upon condition that the commonwealth follows it up with certain other evidence, and the commonwealth fails to make good its offer, it is the duty of the defendant to move the court to strike out the evidence admitted, and withdraw it from the consideration of the jury. Where such a motion is not made, the objection to the testimony will be considered as waived.</p> <p>Criminal law — Conspiracy—Declarations—Coconspirators.</p> <p>5. To make the declarations of an alleged conspirator admissible in evidence against his coconspirators, there must be preliminary proof of the joint purpose a,nd'action, not necessarily conclusive, but sufficient to submit to the jury on that fact; and the declarations so admissible must have been made during the pendency of the conspiracy.</p> <p>Criminal law — Conspiracy—Improper remarks of district attorney— Comment on failure of defendants to testify — Pleading.</p> <p>6. Where on the trial of several defendants for conspiracy, the district attorney says to the jury that only two óf the defendants had taken the witness stand, and one of the defendants who was acquitted objects to the remark, and requests that a juror be withdrawn, and this request is refused and none of the other defendants make any such objection or request, the two defendants who went upon the stand and were convicted cannot, upon appeal, complain of the words of the district attorney, or of the action of the court in refusing to withdraw a juror and continue the case.</p> <p>7. A prisoner convicted of conspiracy cannot after his conviction ask the court to strike off a plea of not guilty, on the ground that he had never entered such a plea, where the record shows that the prisoner with his counsel was present when, by direction of the court and without objection by anyone, the plea of not guilty was entered for all of the defendants present, and that the prisoner and his counsel remained in court and participated in the trial without raising any question as to the plea.</p>

<p>Appeals — Assignments of error — Decree—Opinion of court — Amendment.</p> <p>1. Where an assignment of error to a decree of the orphans’ court does not recite the decree in so many words but only the opinion of the court allowing the decree, a second assignment of error in proper form and reciting the decree, if promptly printed in the appellant’s paper-book and presented at the argument, will be allowed to be filed as in the nature of an amendment to the original assignment.</p> <p>Marriage — Marriage license — Annulment of license — Orphans’ court jurisdiction.</p> <p>2. The orphans’ court has po jurisdiction to annul a marriage license after the marriage has been consummated.</p>

<p>Guardian and ward — Investment of funds — Surcharge—Testamentary guardian.</p> <p>Where a testator appoints his brother who is not an active business man guardian of his son and authorizes him “to invest such money belonging to my boy that may come into his hands, in such manner as will, in his opinion, be for the interests of the boy,” and the guardian in good faith deposits the money in a bank on an open account at four per cent interest, he cannot be held liable for the loss of the money resulting from the failure of the bank.</p>

<p>Negligence — Street railways — Infant—Death—Contributory negligence of parent.</p> <p>1. In an action against a street railway company to recover for the death of a child between three and four years old by being run down by an electric car, the mother cannot be charged with contributory negligence in permitting the child to go on the street, where it appears that the child escaped her while she was preparing a meal, that she did not permit her children to go on the street, that she kept the front door closed, and that as soon as she missed the child she started immediately to look for her.</p> <p>2. A jury is justified in finding that a motorman was guilty of negligence in running over a small child where several witnesses testify that before the accident happened they had called to the motorman when the car was from 100 to 200 feet from the child, indicating the danger of the child as she walked slowly across the street quite a distance ahead of the car, but that no attention was paid to the signal by the motorman, who was standing by the brakes with his back turned towards the front of the car engaged in conversation with persons inside the car, and that the car ran from thirty to thirty-five feet after the child was struck.</p>

<p>Appeal, No. 186, April T., 1909, by defendant, from judgment of C. P. Washington Co., Nov. T., 1907, No. 110, on verdict for plaintiff in case of Woodward & Gallagher to use of J. K. Gallagher v. Pittsburg Underwriters.</p> <p>Assumpsit on a policy of fire insurance. Before McIlvaine, J.</p> <p>Verdict and judgment for plaintiff for $850. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for plaintiff.</p>

<p>Appeal, No. 15, March T., 1909, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1906, No. 282, on verdict for plaintiff in case of Mary McDonald v. Mary Ann McAndrew.</p> <p>Ejectment for a lot of land in the city of Scranton. Before Newcomb, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>At the trial the court charged in part as follows:</p> <p>[The plaintiff depends upon the testimony of Mr. Lynn as to what happened at the time of the deed, and seeks to corroborate his testimony by that of herself and her husband as to some alleged admissions claimed to have been made by Mrs. McAndrew since the deed was made. The pinch in the case is, as I have suggested, whether the evidence is clear, precise, certain, convincing and indubitable. Remember that Mr. Lynn is the only witness that undertakes to speak as to what happened at the time when the deed was brought up there, having been prepared by the attorney, and the aider-man was called in for the purpose of taking the acknowledgment. Does the plaintiff to your satisfaction bring the parties together at that time and show that a promise was then and there made when the parties to the deed, namely, Mrs. Lynott and her daughter, Mrs. McAndrew, were together in the room where the deed is said to have been signed and evidently was signed and was witnessed by Mr. Lynn? Are you satisfied of that? It seems to me that that is a debatable question. Mr. Lynn himself says in that connection that he took Mrs. McAndrew out in another room and there questioned her with regard to some alleged previous understanding or promise as to what she would do with lot 17, and, as I understand, that after that interview in that room he came back in where the transaction was being consummated and said, “It is all right.” That in itself may seem doubtful as tending to show that there was any promise then and there made by Mrs. McAndrew to Mrs. Lynott. I take it that the theory of the plaintiff is and the claim of Mr. Lynn is that the negotiations had been going on for some time before that and it had finally culminated in the offer on the one side and the assurance on the other, the offer being made by Mrs. Lynott, “I will make this deed to you upon condition that you will when Mary [the niece, Mary Franklin] becomes of age convey 17 to her,” and that the offer was accepted by the assurance on the part of Mrs. McAndrew that she would do that. Mr. Lynn takes the position as I understand him, but, of course, that is for you and not for me, that when it came time to consummate the thing, for his further personal assurance he took the cousin, Mrs. McAndrew, out into the other room and asked her if she would do that. Of course that might be. If the evidence satisfies you and fully and indubitably convinces you that that is what happened, then of course it would be such a connection between the making of the deed and the promise that it would not affect the continuity of the transaction and it could be said by the jury to form one transaction.] [1]</p> <p>Defendant presented these points:</p> <p>1. Under all the evidence in this case, the verdict must be for the defendant. Answer: I am not prepared at this time to say that, and the request is therefore refused. [2]</p> <p>3. In this case the jury must find some fraudulent act on the part of the defendant through which the title has been obtained, and the evidence of such fraudulent act must be clear, precise and convincing in order to find for the plaintiff. Answer: That is affirmed with the same qualification that it would be a fraudulent act if the defendant procured an estate from her mother upon the assurance that she would do a certain thing with part of it and afterwards faithlessly broke the promise, that would be a fraudulent act. [3]</p> <p>Verdict and judgment for plaintiff for the land in dispute. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Criminal law — Evidence—Banks and banking — Schedule and books of bankrupt.</p> <p>1. Upon the trial of an indictment drawn under the Act of May 9, 1889, P. L. 145, charging the receiving of deposits by an insolvent banker, with knowledge that he is at the time insolvent, schedules filed by the defendant in involuntary bankruptcy, and testimony of an expert accountant based upon an examination of his banking books that he had turned over to the trustee in bankruptcy, are admissible against him.</p> <p>2. The provision of sec. 860 of the revised statutes of the United States, providing that no pleading or evidence in a judicial proceeding shall be used against a party “in any court of the United States in any criminal proceeding,” applies only to criminal proceedings in federal courts.</p> <p>3. The proviso in clause 9 of sec. 7 of the federal bankruptcy act of 1898, to the effect that no testimony given by a party in bankruptcy proceedings shall be offered in evidence against him in any criminal proceeding, applies only to testimony given by the bankrupt upon his examination, and not to the schedules referred to in the earlier parts of the section.</p> <p>4. In the absence of statutory regulation of the subject testimony and written statements voluntarily given or made by a party or witness in a judicial proceeding are as admissions and confessions competent against him on the trial of any issue in a criminal case to which they are pertinent; and schedules and books offered by a bankrupt under the provisions of the federal act are to be considered as voluntarily offered.</p> <p>5. An order of reference under the seal of the United States district court and forwarded by the clerk to the referee in bankruptcy is admissible in a criminal proceeding in a state court, if there is no other objection to it except that it was a “piece of testimony growing out of the bankruptcy proceedings.”</p>

<p>Appeal, No. 163, April T., 1909, by Charles A. Ensign, from judgment of Q. S. Erie Co., Sept. T., 1908, No. 39, on verdict of guilty in case in Commonwealth v. William A. Ensign and Charles A. Ensign.</p>

<p>Appeal, No. 88, April T., 1909, by defendant, from judgment of C. P. Westmoreland Co., May T., 1905, No. 150, on verdict for plaintiff in case of G. W. Kiser v. H. S. Kerbaugh, Incorporated.</p> <p>Trespass to recover damages for injuries to a building caused by the explosion of dynamite. Before Van Swearingen, J., specially presiding.</p> <p>The court charged in part as follows:</p> <p>[Several grounds of recovery are laid in the plaintiff’s declaration, but the case has resolved itself into a question as to whether these dynamite and powder magazines constituted a private nuisance. You are asked to say that they did, and it is upon this ground that we submit the case for your consideration.</p> <p>A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. Any unwarrantable, unreasonable or unlawful use by a person of his own property to the injury of another comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use. The rule is of universal application that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of a lawful trade. A nuisance has also been defined as that which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupancy physically uncomfortable to him. And if you find from the evidence in this case that these dynamite and powder magazines constituted a nuisance, then the defendant is liable for the injury suffered by plaintiff. In determining whether or not -the magazines constituted a nuisance, you should take into consideration the location of the magazines; the quantities of dynamite and powder kept therein; the proximity of other buildings and dwelling houses; the explosive and dangerous qualities of dynamite and powder; the character and needs of the defendant’s business; the density of the population of the neighboring territory and all the surrounding circumstances of the case.</p> <p>If, after taking all these matters into consideration, you should determine that these magazines did not constitute a nuisance at the time of the explosion, then you should return a verdict for defendant. But if you find that the maintaining of the magazines did constitute a nuisance, then you should ascertain the amount of the injuries suffered by plaintiff and return a verdict in his favor for that amount.</p> <p>■ You are not to take into consideration the method used by defendant in preparing the dynamite for use. You are not to determine whether there was negligence on the part of the defendant in its treatment and handling of the dynamite. We submit the case to you simply for your determination of the one fact as to whether the mere maintenance of these dynamite and powder magazines under all the circumstances of this case, constituted a nuisance.] [1]</p> <p>Defendant presented these points:</p> <p>1. That the defendant was engaged in a lawful business and in carrying on that work was in the rightful possession of explosives, to wit: dynamite and powder in quantities sufficient for the current needs of the work in which the defendant was engaged, one-half mile from plaintiff’s residence, and that their possession at the place shown by the testimony of such quantities as have been testified to .was not unlawful, and the defendant cannot be held responsible in this action, unless the plaintiff affirmatively shows negligence on the part of the defendant. Answer: This point is refused. [3]</p> <p>2. That the dynamite and powder magazines of defendant were located one-half mile or more from the dwelling house of plaintiff which was alleged to have been injured, and that their location as described by the testimony was not a violation of the law and was not a nuisance in that this plaintiff can recover by merely showing the explosion without affirmatively proving negligence of duty on the part of the defendant which caused the explosion. Answer: That point is refused. [4]</p> <p>Verdict and judgment for plaintiff for $615. Defendant appealed.</p> <p>Errors assigned amongst others were (3,4) above instructions, quoting them.</p>

<p>Appeal, No. 158, April T., 1909, by defendants, from judgment of C. P. No. 1, Allegheny Co., June T., 1905, No. 102, on verdict for plaintiff in case of George M. Reece v. Sadie F. Rodgers and William J. Morris.</p> <p>Trespass to recover damages for an alleged illegal distress in sale. Before Brown, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>At the trial the plaintiff presented the following points:</p> <p>1. The goods levied on in this case having been in the custody of the sheriff by virtue of the fieri facias issued at No. 10, April Term, 1905, the plaintiff has no right of action and is not entitled to maintain this suit, and therefore cannot recover. Answer: Refused. Exception and bill sealed for defendants. [3]</p> <p>2. That the plaintiff, if entitled to recover anything, is only entitled to recover nominal damages. Answer: Refused. Exception and bill sealed for defendants. [4]</p> <p>3. That under all the pleadings and the evidence in this case, the verdict must be for the defendants. Answer: Refused. Exception and bill sealed for defendants. [5]</p> <p>The court charged in part as follows:</p> <p>[In violation of these statutory provisions for the protection of her rent, and in violation of plaintiff’s rights, Mrs. Rodgers and Mr. Morris, the constable, by virtue of the landlord’s warrant unlawfully sold Mr. Reece’s property on March 3, 1905. This sale being illegal, the defendants are responsible for the resulting damages.] [6]</p> <p>[Are they responsible to the plaintiff in this action, or is his remedy limited solely to an action against the sheriff and his bondsmen for the sheriff’s failure to return to him the property, the subject-matter of dispute in this action? It clearly appears that the property — although not sold by the sheriff— was included in the levy made by him under the Garland execution. Not having been sold- — and the life of the Garland execution, and of another execution, having expired by the sheriff’s return of sale and distribution of March 9, 1905 — by operation of law the unsold property (the property in the present action) passed from the custody of the law to Reece;’ and the sheriff having failed to restore it to him, he had the right to sue the sheriff and his bondsmen — but that was not his only remedy. He had a choice of remedies, among them, the right to sue Mrs. Rodgers and Mr. Morris, for they by the illegal sale on the landlord’s warrant were the direct cause of the injury. As this ground alone entitles plaintiff to a recovcry, it is unnecessary to have you pass upon the other ground presented.] [7]</p> <p>The record showed the following:</p> <p>"At 2:40 p. M. the jury returned with a verdict for the plaintiff, finding the value of the goods at $1,174 with interest, and $500 damages, and were directed by the court to return to the court room with a verdict leaving out the last item.</p> <p>“At 2:45 p. m. the jury returned to the court room, having been sent for by the court.</p> <p>The Court: Gentlemen, when you came in before there was one thing that escaped me. I forgot to ask you whether by your verdict you meant to return a verdict against the defendants for the sum of $500, or whether you meant to return a verdict in the sum of $1,174 with interest at six per cent.</p> <p>A Juror: And the additional damages added, $500 added for the license.</p> <p>The Court: You haven’t a thing to do with that. They didn’t sell the license.</p> <p>A Juror: He lost the use of it.</p> <p>The Court: No, that was not the case. You were limited simply to the value of the property sold on that landlord’s warrant. You don’t need to say anything about the value of the property. You simply render a verdict for the value of the property actually sold on the landlord’s warrant, with compensation, at your discretion, for delay in payment not exceeding six per cent. So to the amount that you intended to render against the defendants, $1,174, you may add interest at six per cent. Those two amounts are the amount of your verdict, and you will render a verdict for a lump sum. Those two amounts added together is the amount you want to find, striking out the last item.</p> <p>Bill of exceptions sealed for defendants and plaintiff to the additional instructions of the court. [8]</p> <p>Verdict and judgment for plaintiff for $1,174, with interest at six per cent, $260.24, making a total of $1,434.24.</p> <p>Errors assigned were (1) refusal of nonsuit; (2) refusal of motion for severance; (3-8) above instructions, quoting them.</p>

<p>Appeal, No. 137, April T., 1909, by plaintiffs, from judgment of C. P. Indiana Co., Dec. T., 1908, No. 49, on case stated in suit of Elizabeth Jane Sloan et al. v. Rebecca S. Hoyt.</p> <p>Case stated to determine the ownership of a portion of a fund awarded as damages for taking of land for railroad purposes. Before Telford, P. J.</p> <p>In addition to the facts stated in the opinion of the Superior Court it appeared that the land in question descended to Martha Sloan from her father, Thomas N. Sloan.</p> <p>The court entered judgment in favor of the defendant.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 226, April T., 1908, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1898, No. 91, on verdict for plaintiff in case of S. A. Krider v. Albert S. Hartzell, Administrator of M. H. Hartzell, deceased.</p> <p>Trespass against the sheriff to recover for goods alleged to have been unlawfully sold. Before Gillan, P. J., specially presiding.</p> <p>The opinion of the Superior Court states the facts of the case.</p> <p>When the Rev. J. W. Hutchinson, a witness for the plaintiff, was on the stand, he was asked this question:</p> <p>“Q. Mr. Hutchinson, you are a Lutheran minister? A. Yes, sir. Q. Where do you live now? A. Milroy, Mifflin county. Q. You were located in Jennertown, this county, at one time? A. Yes, sir. Q. Do you know Rev. Samuel Krider? A. Yes, sir. Q. How long have you known him? A. Thirty-five or forty years. Q.-Do you know Mrs. Krider? A. I have known her since I was a little boy. Q. Were you present at any time when there was a conversation between Mr. and Mrs. Krider, relative to the indebtedness of Mr. Krider to his wife and the giving of a note?”</p> <p>Mr. Berkey: Objected to as incompetent, irrelevant and immaterial. The date has not been fixed. It may have been very remote, and certainly the offer is indefinite.</p> <p>Mr. Ruppel: We propose to prove by the witness on the stand that he was present at a number of conversations between Mr. and Mrs. Samuel Krider relative to the indebtedness of Samuel Krider to his wife; that Mrs. Krider frequently spoke of wanting a note from her husband, and that the witness advised that a note be given for the indebtedness of Krider to his wife; that these conversations extended over a period of probably twenty years, the last we think shortly before the $1,000 note was given at Hooversville.</p> <p>Mr. Berkey: This offer is objected to as incompetent, irrelevant and immaterial. The offer is indefinite.</p> <p>The Court: The question we are trying is the bona fides of the alleged sale made by Samuel Krider to his son. In order to establish that sale, it appearing that the alleged indebtedness which he owed to his wife was used in that transaction, it became necessary for the plaintiff to establish that the wife had a separate estate. It appearing that she received that money, much of it, at least fourteen or fifteen years before the alleged note was given by her husband to secure that indebtedness, and the question being one of fraud, it is competent for the plaintiff to show anything which may explain the delay in her taking the note from her husband. Therefore, the objection is overruled, the evidence is admitted and a bill is sealed for the defendant. [3]</p> <p>Mr. Ruppel: "Q. Mr. Hutchinson, you hear the question. Go on in your own way and state what you know in regard to this matter. A. With respect to the note? Q. Yes, the giving of the note. A. Having been acquainted with Mrs. Krider from my infancy, we were raised close together, we were very intimate in a social way, and she had spoken to me very frequently about her husband giving her a note for the money that she had given to him, as I well knew she had received the money from her parents, with whom I was acquainted — even her grandparents. I would say, 'Yes, I think that would be proper; that would be right.’ Time was passing along, so two or three months, or probably two or three years that would be up again, and she would refer to this. Well, I would repeat about the same, that I would think that would be proper; you didn’t know what might happen; it was her money, and I thought he ought to give her a note. This continued along for a period of years until shortly after I think Mr. Krider had gone into business at Hooversville, and Mrs. Krider appeared to be very anxious about having a note. I guess I laid a little more stress then on the importance of Mr. Krider giving a note than I had done previous to that, and finally learned that Mr. Krider had given his wife a note. Q. You say you knew her father? A. Yes, sir. Q. Do you know whether he left an estate? A. Yes, sir. Q. Have you personal knowledge as to about what the share of Mrs. Krider was in that estate? A. Not definitely. Just in a general way. I thought it was from $1,200 to $1,500.”</p> <p>Objected to.</p> <p>The Court: That is capable of direct proof.</p> <p>Mr. Ruppel: “Q. As I understand, you didn’t speak to Mr. Krider about this matter at all. A. Yes, sir, they were both together. Q. They were always together at these conversations ? A. Yes, sir, she would appeal to me to know if I didn’t think he ought to, and I saidl thought he ought to. I told Mr. Krider so.”</p> <p>Plaintiff presented this point:</p> <p>3. That the undisputed evidence in this case shows that S. Krider received over $1,000 of his wife’s money out of the estate of her father, Samuel Royer, and money coming to her from her aunt. That said Samuel Krider received said moneys of his wife as a loan, and although a note was not given by him to his wife for said sums until June 12, 1897, it constitutes a valid debt of Samuel Krider to his wife.</p> <p>If the said Samuel Krider received the moneys of his wife as a loan, and the presumption of the law is that it was a loan, he had a right to give her a note and prefer her to other creditors. [2]</p> <p>Verdict and judgment for plaintiff for $1,200. Defendant appealed.</p> <p>Errors assigned were (1) portion of charge, quoted in the opinion of the Superior Court; (2) answer to point as above; (3) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 1, March T., 1909, by defendant, from order of C. P. Lackawanna Co., Jan. T., 1902, No. 338, dismissing exceptions to report of referee in case of Mary Jane Holland and Joseph Holland v. Mary Hayes.</p> <p>Exceptions to report of referee, William W. Lathrope, Esq.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The plaintiffs filed the following exceptions to the report' of the referee:</p> <p>5. The learned referee erred in his eleventh finding of fact, which is as follows:</p> <p>“The northeasterly line of said lot No. 4, block No. 98, is properly located on the line of the southwest wall of the present foundation of defendant’s barn.”</p> <p>The Court: The exceptions to the report of the referee are overruled and we direct judgment to be entered in accordance with the recommendation of the referee. [5]</p> <p>6. The learned referee erred in part of his answer to the plaintiffs’ fourth request for finding of fact, which portion of said answer is as follows:</p> <p>“The southwest wall of the defendant’s barn and the part of the old fence left standing until 1901 constitute in my view the division line as substantially recognized by both parties until 1901.” [6]</p> <p>31. Request: The disconnected portion of the fence erected and maintained by the defendant for her own convenience on her own land from near the rear of her front house to near the rear of her barn, cannot in any sense form a consentable line to define the boundary between her lot and the lot of the plaintiffs. Answer: If the fact assumed in this proposition were true and there were no other material facts in the case, the proposition would be correct, but in my opinion the defendant by her acts and declarations made this fence and the southwesterly wall of her barn a consentable line between her lot and the lot of the plaintiffs.</p> <p>Exception: The referee erred in refusing to affirm defendant’s eighth proposition for conclusion of law. [9]</p> <p>28. Request: The fact that Joel Amsden at the instance of the plaintiff may have driven iron pins in the ground on or near the lot lines of the plaintiffs’ possession in block 98 in the year 1867 (about three years after the Lackawanna Iron and Coal Company had by contracts sold to the plaintiff’s lot No. 4 and to Catharine Roland, one of the defendant’s predecessors in title, lot No. 3 in said block) cannot affect the right of the defendant to claim and retain possession of the whole of said lot No. 3 as owner thereof up to the true division line between said lots 3 and 4 and according to the Lackawanna Iron and Coal Company’s plot of Scranton, especially in view of the fact that the evidence fails to show that Catharine Roland, William McCoy, or the defendant had any knowledge or information of the existence or location of said pins.</p> <p>Ruling of the referee: This is affirmed, with this qualification, to wit, that the location of said line between said lots 3 and 4 by Joel Amsden, the surveyor of the Lackawanna Iron and Coal Company, must govern rather than the plot of the said company.</p> <p>Exception: The referee erred in his qualification affirming the defendant’s fourth proposition for conclusion of law, which qualification is as follows: ,</p> <p>“The location of said line between said lots 3 and 4 by Joel Amsden, the surveyor of the Lackawanna Iron and Coal Company, must govern rather than the plot of said company.” [10]</p> <p>Errors assigned were in overruling fifth, sixth, twenty-eighth and thirty-first exceptions.</p>

<p>Appeal, No. 90, April T., 1909, by S. C. Jamison et al., members of the Central Board of Education of the City of Pittsburg, from decree of C. P. No. 4, Allegheny Co., No. 649, Third Term, 1907, in proceedings for contempt in case of George C. Palmer et al., trading as Palmer & Hornbostel, and Emlyn Stewardson et al., trading as Cope & Stewardson, and Cass Gilbert v. The Central Board of Education of the City of Pittsburg.</p> <p>Petition for an attachment for contempt.</p> <p>Swearingen, P. J., found the facts to be as follows:</p> <p>1. As heretofore found in the record of the above-stated case nine designs had been submitted for the competition in accordance with the method adopted by the Central Board of Education at its meeting May 8, 1906. Of these, the design of Rutan & Russell, No. 9, had been recommended for adoption in accordance with said programme of competition, and on December 11, 1906, the Central Board of Education refused to adopt the report of the building committee. A motion was made to reconsider said vote, which motion was laid upon the table. Nothing further was done with that competition.</p> <p>On June 4,' 1907, the new building committee reported to the central board that it had selected F. J. Osterling as the architect and recommended his design. This report at that time failed for want of a majority. In making choice of F. J. Osterling as architect the building committee and the board abandoned the plan of competition which had theretofore been adopted, and were proceeding under another and different method altogether.</p> <p>Thereupon the bill in this case was filed, in which the plaintiffs prayed for an injunction to restrain the Central Board of Education from choosing an architect otherwise than by the plan of competition formerly provided. The case proceeded to final hearing and the decree was entered January 2,1908, in which the injunction prayed for was granted. From this decree an appeal was taken to the Supreme Court of Pennsylvania and on April 30, 1908, a remitittur from the Supreme Court was filed showing that the decree of the lower court had been affirmed and the appeal dismissed.</p> <p>The respondents, to wit: S. C. Jamison, President; Bart Fleming, M. G. Hayes, Evan Jones, P. B. Kearns, Edward Kenna, E. J. Kirby, R. P. Lougeay, T. E. Metcalf, W. S. Mc-Cutcheon, Wm. B. McHugh, J. M. Patton, Peter J. Pfaadt, Dr. J. W. Phillips, Dr. J. P. Saling, Eugene Schwartzwaelder, P. F. Toole, J. P. Woods, W. PI. Ziefel, Frederick Bruckman, P. Fitzgerald, F. V. Martin and John' L. Freker, expressly admit in their answer that “they have had full notice of the decree of your honorable court and the affirmation of that decree by the Supreme Court of Pennsylvania.”</p> <p>2. On May 12, 1908, the special committee of the Central Board of Education, which had been appointed to select plans and an architect for a new high school building, met. The following members were present: Messrs. Foley, Jamison, Jones, Kirby, McHugh, Phillips, Reinecke and Saling. It was resolved to report to the central board that disposition be made of the design presented by Rutan & Russell. A motion to hear an explanation of the designs from Prof. Warren P. Laird, the advisor, was lost.</p> <p>On May 14, 1908, the Central Board of Education met, and finally rejected the designs submitted by Rutan & Russell, which had been recommended to the board on December 11, 1906.</p> <p>On May 21, 1908, the said building committee again met, with Dr. J. P. Saling in the chair. The following members were present: Messrs. Easton, Foley, Jones, Kirby, Phillips, Reinecke and Saling. The committee took up the design No, 7. The envelope was opened and it was found that Cass Gilbert was the author of design No. 7 and thereupon the committee unanimously adopted a report to the central board that the design next in merit was that of Mr. Cass Gilbert, which was submitted for the approval of the board, and recommended his. election as architect. This meeting of the building committee was in session about two hours.</p> <p>On May 22, this report was submitted to the central board and by a vote of ten ayes to twenty-six nays the report was not adopted. Of the members of the building committee who had recommended the adoption of the design of Cass Gilbert and the choice of him as architect, Jones, Kirby, McHugh, Phillips and Saling voted in the negative when the report came before the board.</p> <p>A motion was then made that a recess of twenty minutes be taken and that the committee meet and make another recommendation. Thereupon the building committee again met with Messrs. Easton, Foley, Jones, Jamison, Kirby, McHugh, Phillips and Saling present. A motion was made and agreed to take up the design next in order of merit. None of the remaining designs were even present before the committee. A protest was made by Mr. Easton and Mr. Foley against proceeding having the designs, to which no attention was paid. Thereupon design No. 2 was taken up and the same report was recommended to the board as had been made upon the design submitted by Cass Gilbert, except that the name of Cass Gilbert was stricken out and the name of Edward Stotz, who was found to be the author of No. 2, was substituted.</p> <p>Forthwith that report was made to the central board, which had reconvened after an intermission of twenty minutes, and the design of Edward Stotz was not adopted, a majority of the members of the building committee again voting in the negative.</p> <p>Again a suggestion was made by Mr. Foley that Prof. Warren P. Laird be requested to attend to aid the committee in conducting the competition, which was declared out of order, and the board again adjourned for fifteen minutes that the committee might select another plan.</p> <p>The committee then did meet and took up another design and made the same report as it had made in the previous cases, substituting the name of another architect in place of the names of those previously rejected. The central board reconvened at the end of the recess of fifteen minutes and rejected that report. In like manner the board and the committee disposed of the designs of all the remaining architects, the committee meeting during the intermissions which at first were for twenty minutes, afterwards for fifteen minutes and once for ten minutes, by substantially the same vote. Occasionally the votes differed, but the respondents were always found voting in the negative.</p> <p>4. Professor Warren P. Laird who had been selected as the professional adviser of the committee was not present at any of these meetings of either the central board or the building committee from May 12 to May 22, both inclusive. His presence was requested on several occasions, both in committee and in the central board, but the request was always' refused by the majority of the committee and of the board.</p> <p>The said general board met on the evening of May 8, 1908, at about 8 o’clock p. m. and finally adjourned at about 10:45 o’clock p. m. During that period of about two hours and forty-five minutes, six designs were disposed of by the building committee and seven by the board itself. The evidence does not show that any consideration was given to any of these designs other than that of the most perfunctory kind. They were each in turn taken up by the building committee and reported to the board with a recommendation of adoption as quickly as possible, and each in turn was rejected by the board in a like perfunctory manner, and all the members of the building committee which recommended each of these designs, except Easton, Foley and Reinecke, voted for their rejection when the designs came before the board.</p> <p>5. On May 26, 1908, the Central Board of Education again met and took up the plans of J. F. Osterling, whose consideration had been suspended by the filing of the bill in this case June 11, 1907. By the following vote said plans were adopted and Mr. Osterling elected architect, viz.:</p> <p>Ayes: S. C. Jamison, Bart Fleming, M. G. Hayes, Evan Jones, P. B. Kearns, Edward Kenna, E. J. Kirby, R. P. Lougeay, T. E. Metcalf, W. S. McCutcheon, Wm. B. McHugh, J. M. Patton, Peter J. Pfaadt, Dr. J. W. Phillips, Dr. J. P. Saling, Eugene Schwartzwaelder, P. F. Toole, J. P. Woods, W. H. Ziefel, Frederick Bruckman, P. Fitzgerald, F. V. Martin and John L. Freker.</p> <p>Nays: Beatty, Force, Gillespie, Glazier, Johnson, McPherson, Neely, Reif, Shaw, Easton and Shooke.</p> <p>Not voting: Mr. Stauffer.</p> <p>The court entered a decree fining each of the members of the board who voted in disobedience of the injunction order in the sum of $100.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 14, April T., 1909, by defendant, from judgment of O. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 416, on verdict for plaintiff in case of R. H. Cunningham v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for the loss of cement. Before Cohen, J.</p> <p>The facts are stated in the opinion of the Superior Court and the charge of the court, which was in part as follows:</p> <p>[The bill of lading, offered in evidence, contains a provision that in case of flood the company shall not be liable for loss.</p> <p>“No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control, or by floods or by fire.” Now they set up as a defense in this case this: they say, “Yes we did receive these goods, but by reason of the flood the goods were destroyed or the goods we^e not delivered.” The defendant claims that the burden, therefore, is on the plaintiff to show negligence on the part of the defendant company, and the plaintiff has undertaken voluntarily that burden and has attempted to prove to you that although the defendant company would be released in the case of a flood, yet that does not relieve them from the duty of saving the goods from a flood if they possibly can, and, as a matter of law, I say to you that if the defendant had notice from the elemental conditions surrounding it, from the rising of the.river and the falling of the rain, from the experience of its agents, if they had any, according to the evidence, they had a right to use it and every precaution which was absolutely necessary to save these goods from the flood if it could be done. [1]</p> <p>[There is one very peculiar feature about this case. We have no information whether the goods were absolutely ruined, partially ruined or not. All we know is that the goods were not delivered. And if they were not delivered, through any fault of the defendant, the defendant is liable to the plaintiff in the value of the goods as indicated and uncontradicted. But if the failure to deliver was not on account of any fault whatsoever on the part of the railroad company, — if they did all, under the exigencies of the occasion, which they possibly could do to save those goods from the flood, they are not liable, even though the goods were ruined by the flood, and it becomes then your duty to simply ascertain whether the loss of these goods, or the nondelivery of these goods, was caused by any neglect on the part of the railroad company. If not, and the goods were destroyed by the flood, your verdict should be for the defendant. But if the goods could have been saved from ruin by the efforts and by the care of the defendant company, they were bound to exercise that care to save them from the flood, and if they did not and they could have, then the plaintiff is entitled to the damage which he has sustained. [2]</p> <p>[It has been shown to you that the company, in the exercise of prudence, raised their tracks three feet to avoid the result of floods, which they had learned from experience in the past. But yet, you have been told, too, that subsequent to that, it was their habit, notwithstanding the tracks had been raised, to remove the goods from that dangerous location in the presence of a flood or a coming flood, which was evidently the railroad company’s duty in this case. If they could have saved these goods from being destroyed or from being ruined it was their duty to do it, although there was no liability on them or their part under the bill of lading in cases of flood.] [3]</p> <p>[The defendant had a right to apprehend the flood, and they had a right to strengthen themselves from the best and most practical sources obtainable to instruct them as to the necessities of the occasion. It has been demonstrated to you that the best evidence is attainable from the weather bureau, as to the condition of the river which produced that flood and as to the possibility or probability of its coming up on their tracks. Is there any evidence before you that they solicited information from any source whatsoever so as to guide them in the duties that they owed to the plaintiff and to all their other shippers. If there is any such evidence, you will assimilate it, gentlemen of the jury, with the other evidence. I have no recollection of such. I have no recollection that they produce any testimony going to show that they sought from given sources what the probabilities would be with reference to this flood.] [4]</p> <p>[But if the goods could have been saved from ruin by the efforts and by the care of the defendant company, they were bound to exercise that care to save them from the flood, and if they did not and they could have, then the plaintiff is entitled to the damage which he has sustained, namely, the value of the cement, which is $222 and interest, making a total sum which counsel will give you. If you find for the plaintiff, find for that sum, including the interest, not so much money and interest, but just one sum, including the interest.] [5]</p> <p>Verdict and judgment for plaintiff for $236.98. Defendant appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them; (6-8) admission of evidence quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 152, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., April Term, 1906, No. 13, on verdict for plaintiff in case of Stanislaus Safranski v. John Seman.</p> <p>Trespass to recover damages for death of child. Before Shaper, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $288. Defendant appealed.</p> <p>Error assigned was refusal to enter judgment for defendant non obstante veredicto.</p>

<p>Negligence — Railroads—Grade crossings — “Stop, look and listen”— Question for jury.</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, it appeared that at the time of the accident the deceased was driving alone a two-horse wagon, and that upon approaching a grade crossing he stopped, looked and listened at the usual and ordinary place for stopping. The evidence was conflicting as to what occurred afterwards. There were three tracks at the crossing, and a side track upon which cars were standing. The place where the deceased stopped was eight or ten feet lower than the railroad tracks. There was evidence that if the deceased had stopped at the edge of the track he could have seen 500 feet. The horses had cleared two tracks before the wagon was struck. The evidence tended to show that no whistle was sounded as the train approached the crossing. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Equity — Mandatory injunction — Preliminary hearing — Temporary stand — Obstruction of light and view — Parades—Parties.</p> <p>1. A preliminary injunction may be made mandatory, but the writ is only granted where the right is clear, where irreparable injury is likely to result or where the status quo between the parties should be restored. Such status is the last actual, peaceable, uncontested status which preceded the controversy.</p> <p>2. Where the plaintiff in a bill in equity occupies with his family the second story front rooms of a building facing with its windows on a street upon which there are to be a number of parades and exhibitions for a period extending over a week, such person is entitled to a mandatory injunction to compel the immediate removal of the upper portions of a stand obstructing his view, erected without his consent and against his express orders in his absence, although with the consent of the occupant of the first floor.</p> <p>3. A decree on a bill in equity will not be reversed because of the omission of a party in interest as a defendant, where the interest of such party was unknown to the plaintiff, but is disclosed by the answer, and such party had notice of the proceeding, was called as a witness, and so far as shown had not objected.</p>

<p>Railroads — Bridges — Defective construction of bridge — Overflow of land — Negligence—Evidence—Damages.</p> <p>1. A presumption of care arises in favor of a railroad company in constructing a bridge in the exercise of its franchise as a public corporation. It does not follow that a landowner is entitled to recover from a railroad company merely from the fact that a stream is obstructed in the construction of a bridge by the formation of a dam and the consequent overflow of his land. All that the company is bound to do is to anticipate and provide for the magnitude of ordinary floods with their usual ice and drift. It is not bound to foresee what is extraordinary.</p> <p>2. In such a case the railroad company is bound to take notice of the size of the stream, the height of its banks and the extent of the watershed and to exercise the requisite skill to adopt plans necessary to avoid obstruction to the flow of the stream in ordinary conditions, and the untoward consequences of the formation of a dam by the accumulation of ice or drift in ordinary freshets.</p> <p>3. Where there is evidence tending to show that the effect of the obstruction at a railroad bridge was to change the course of the current and give it a direction below the bridge, a landowner may recover for any injury caused by the overflow resulting from a change of the course of the stream caused by the presence of ice and drift above the bridge, but he cannot recover for an injury caused by any other water flowing from the channel below the bridge.</p> <p>4. Where an injury to land from an overflow of a stream caused by the negligent construction of a railroad bridge is irreparable, depreciation in value of the property is the measure of damages. If the injury be remediable but the costs of repair would be greater than the diminution in the market value, the latter is the correct measure of damages. Compensation for the loss is that to which the plaintiff is entitled.</p> <p>5. Where in such a case witnesses for the plaintiff familiar with the situation and the value of land in the vicinity based their estimate of value on that knowledge, it is immaterial that they were not questioned as to the value of the land before and after the injury.</p> <p>6. A witness who had lived within two and one-half miles of land injured by a flood, for a period of forty years, had driven by it frequently and had seen it right after the flood, is competent to express an opinion as to the extent of the plaintiff’s injury; but witnesses who had not seen the land before the flood and did not have any knowledge of the condition of the soil are not qualified to speak in regard to its fertility.</p> <p>7. Where a witness testifies that he is acquainted with farm values in the vicinity, and that the market value of plaintiff’s land was a sum stated by him, he may be asked on cross-examination whether he did not know of a sale of similar land in the neighborhood at a much higher price.</p>

<p>Appeal, No. 173, April T., 1909, by H. C. Sayers, Jr., from decree of O. C. Greene Co., May T., 1906, No. 2, overruling exceptions to auditor’s report in Estate of-Solomon Hickman, deceased.</p> <p>Exceptions to report of Walter O. Montgomery, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 196, April T., 1909, by plaintiff, from order of C. P. Washington Co., Aug. T., 1908, No. 154, dismissing libel in divorce in case of Florence McClain v. Jesse McClain.</p> <p>Libel for divorce. Before Taylor, J.</p> <p>From the record it appeared that the libelant and respondent were first cousins, and were married on January 28, 1908. The libelant testified that she never lived with her husband nor cohabited with him.</p> <p>Error assigned was order dismissing libel.</p>

<p>Appeal, No. 35, April T., 1909, by-defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 89, on verdict for plaintiff in case of Anna M. Walthour v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Ford, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented the following points:</p> <p>3. If the jury believe the testimony that the train in question stopped long enough to allow other passengers to get on and off the train in safety, and that while it was so stopped other passengers actually did get off and a number of other passengers actually did get on, then it follows that it stopped long enough for the plaintiff to get off, and the verdict must be for the defendant. Answer: This point is refused. The question of whether the train stopped long enough to permit the plaintiff to depart from the train, is a question for you under the evidence, and under the instructions I have given you. [1]</p> <p>4. If the jury find that the -plaintiff's ticket did not read to Shadyside, and that defendant did not know she expected to get off there, or did not know that she was in the act of getting off, then the defendant cannot be charged with negligence in starting the train before the plaintiff had alighted, and the verdict must be for the defendant. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $1,350. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 34, April T., 1909, by defendant, from judgment of C. P. Jefferson Co., Nov. T., 1907, No. 76, on verdict for plaintiff in case of G. W. Fuller v. Ed Mulhollan.</p> <p>Assumpsit on a promissory note. Before Reed, P. J.</p> <p>At the trial it appeared that the note was given in partial payment of certain coal lands sold by the plaintiff to the defendant. The defendant alleged that he proceeded to work the mines and found that a portion of the coal had been previously mined out by the Standard Coal Company.</p> <p>The defendant presented this point:</p> <p>1. If the jury believe from the evidence that at the time the contract was signed, the plaintiff, Fuller, stated that no coal had been taken out of the premises described in the article of agreement, except what had been taken out by Womeldurf, and they further find that said statement was not true, but that a portion of said coal had been taken out, and that said statement was the inducing cause of the signing of said contract by Mulhollan and the note in suit, and that he would not have signed it without said statement, then the defendant is entitled tó recoup or set off against the plaintiff’s claim in this case, the value of the coal in place that had been removed at that time, other than that taken out by Womeldurf, and if it exceeds the amount of the note in suit, the defendant is entitled to a certificate in his favor for such excess. Answer: We add, “the damages which he has sustained by reason of these representations made by the plaintiff to him which subsequently turned out to be untrue;” and to that extent we affirm this point. The point itself states the measure of damages to be "“the value of the coal in place which had been removed at that time,” other than that taken out by Womeldurf, “and if it exceeds the amount of the note in suit, the defendant is entitled to a certificate in his favor for such excess.” The contention of the defendant in this respect is that if there were 89-100 of an acre of coal taken out, and it appears from the testimony offered here on the part of the defendant that an acre containing a vein of coal of the heighth of the vein that is testified to here would contain about 8,066 tons, or that the 89-100 acres which if is alleged was mined out by the Standard Coal Company contained 6,500 tons, or that there was probably taken out 6,000 tons. This estimate seems to be based on the supposition that the excavations made by the Standard Coal Company contained solid coal — that it was all coal that was taken out; and you will bear in mind the testimony of some witnesses called here by the plaintiff, who testified that there were clay veins in at -least some of this coal and that about only one-third of it was coal, and as to what part of the coal that related to. Then the defendant further contends that that coal in place was worth from twenty to twenty-five cents per ton, which would amount to from $1,200 to $1,500, and that if you are satisfied that this quantity of coal was taken out and that this was a fair price for it, their damages would be from $1,200 to $1,500. I am unable to agree with the defendant as to the measure of damages in this case. I do not think that would be an accurate measure or standard for measuring the damages in this case. But I instruct you that the standard of measurement in this case would be the relative value which the part taken away, or that part taken away, by the Standard Coal Company would bear to the total quantity of coal in the land. The testimony here — and it seems to be undisputed — is that there was 5 23-100 acres of coal within the limits of the lease as contended for by the defendant; that 1 41-100 of an acre had been taken out by Womeldurf; and that 89-100 of an acre was taken out by the Standard Coal Company. If there were originally 5 23-100 acres, and 1 41-100 acres of that had been taken out by Womeldurf, that left 3 4-5 acres of coal remaining, for which the defendant paid, according to the price agreed upon between him and the plaintiff, $1,500. Now if there was 89-100 of an acre of that coal taken away by the Standard Coal Company, then the measure of the defendant’s damages would be whatever that portion, 89-100 of an acre, would bear to the 3 4-5 acres which it is contended was sold to the plaintiff by the defendant; But in the consideration of this question either party would have the right — and if such testimony has been introduced here it would be your duty to consider it — of recovery for the peculiar advantages or disadvantages of the part lost with reference to the whole quantity sold. You will understand that what is meant, gentlemen, by that is this: That where a man buys, say 3 4-5 acres of coal and discovers after he has put in his operations that he only had 2 T-5 acres, or that he got an acre less than he ought to have gotten according to the statements that were made, that the loss of that acre might be considerably more than its proportion to the remaining acreage; because a man sometimes would pay considerably more in proportion for the larger acreage than he would for the smaller acreage. And therefore you may take into consideration the peculiar advantages or disadvantages to the defendant by reason of the loss of a part of his purchase, in addition to the proportion which it would bear to the whole according to the price agreed upon between the parties. [1]</p> <p>Verdict and judgment for plaintiff for $166.70. Defendant appealed.</p> <p>Error assigned among others was (1) above instruction, quoting it.</p>

<p>Appeal, No. 151, April T., 1909, by defendant, from decree of O. C. Allegheny Co., April T., 1908, No. 3, dismissing exceptions to adjudication in Estate of James G. Pontefract, deceased.</p> <p>Exceptions to adjudication. Before Over, J.</p> <p>The auditing judge found the facts to be as follows:</p> <p>John J. Lyons, who presented a claim against this estate, had been employed by the decedent in his business for about sixteen years prior to October 1, 1903, when they entered into a written contract, upon which the claim is founded, the material parts of Which are as follows:</p> <p>“Whereas, the said party of the first part is now conducting business in the City of Pittsburgh, Pennsylvania, under the name and style of Joseph S. Finch & Company, and desires to employ the said party of the second part, and upon the terms hereinafter stated, to which said party of the second part agrees.</p> <p>“Now this agreement witnesseth: That the said party of the first part does hereby hire and employ said party of the second part, as a salesman and confidential clerk, in the business now conducted by said party of the first part, for the period of five years from the date hereof, provided, however, ■ that said employment be terminated on the death of either of the parties hereto, within that period. And provided further that if the said party of the first part should sell or discontinue his said business within said period, then the employment of the said party of the second part shall cease and determine. Said party of the second part shall faithfully perform such services as salesman and confidential clerk as may be prescribed by the said party of the first part. In consideration of the second part, said party of the first part agrees to pay him as compensation therefor a salary to be computed at the rate of four thousand ($4,000.00) dollars per annum, payable monthly, and in addition thereto to pay him as a commission, a sum equivalent to fifteen centum (15%) of the net profits of said party of the first part arising during the term of his employment, from the manufacture, sale and storage of whisky, in excess of the sum of Twenty-five thousand ($25,000) dollars per annum. It is agreed that the profits of said Finch & Company arising as aforesaid, shall be ascertained by said party of the first part on July 1st of each year during the period of said employment.”</p> <p>Under this contract a settlement was made as of July 1,1904, by which Lyons received $2,275.67 as his commissions, being fifteen per centum of the profits out of the business for the entire preceding year, after deducting $25,000, as provided in the agreement; and a settlement was also made as of July 1,1905, by which he, received $10,411.43, as his commissions under the agreement, computed on the profits for the preceding year, and in addition to these amounts was paid a monthly salary of $333.33-J-, including the month of July.</p> <p>By agreement dated July 27,1905, to take effect on August 1, 1905, James G. Pontefract, the decedent, leased his distillery property, including the bonded warehouses connected with the same, and all trade-marks and trade-names, to Willis.S. and R. G. Johnson, for a period of twenty years, with option to purchase, and at the same time sold to said parties the personal property used in connection with the business, and the entire stock on hand, including 8,122 barrels of whisky in the bonded warehouses, being all the whisky then owned by decedent, except thirteen barrels which were invoiced to decedent at the same price as those sold to Johnsons, and on August 1, 1905, discontinued the distilling business.</p> <p>The price received for said whisky was ten cents per gallon less than the manufacture and wholesale market price, which price was made as an inducement to said Johnsons in connection with the leasing of the distillery and purchase of the business, and the sale was made in connection with the transfer of the business to Johnsons, and would not have been made at that price except in connection with the leasing of the distillery plant.</p> <p>Profits amounting to $3,100 were realized from the sales of whisky in the ordinary course of the business during the month of July, 1905, and $50,648.59 from sales of whisky to John-sons, and accrued storage 'for the month of July, 1905.</p> <p>The claimant contends that he is entitled to receive from the estate $7,749.79, with interest thereon from August 1, 1905, being a sum equivalent to fifteen per cent on $51,665.26, being the profit realized from the sale to the said Johnsons, and the storage of whisky for the month of July, 1905, after deducting therefrom one-twelfth of $25,000, viz.: $2,083.33.</p> <p>The auditing judge disallowed the claim. '</p> <p>Exceptions to adjudication with the exception-of one, were dismissed in an opinion by Hawkins, P. J., who entered the following decree:</p> <p>And now, to wit, December 31, 1908, this cause came on to be heard, upon exceptions to decree of auditing judge, and was argued by counsel, and upon consideration thereof, it is or. dered, adjudged and decreed that all the exceptions be dismissed except the second, which is sustained, and the decree of distribution is hereby amended by reducing the amount distributed to the heirs by the sum of $183.76, or one-third each, and it is ordered and decreed that said sum of $183.76 be now paid to John J. Lyons, being in full of his claim as per calculation hereto attached, unless an appeal be taken here-from within twenty days.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Road laxo — Appeals—Borough—Power of borough attorney■ — Practice, C. P.</p> <p>Where an attorney at law signing himself as an attorney for a borough, files a prtecipe in which he directs the jjrothonotary to enter an appeal from an award of road viewers, on the part of the borough, the paper may be regarded as an appeal by the borough, if no question is raised as to the attorney’s authority; but if a property owner files a petition for a rule to strike off the appeal and specifically alleges therein that the attorney had no authority to appeal on behalf of the borough, and such an averment is not denied by an answer to the petition, the court will take the averment as true and will make absolute the rule to strike off the appeal.</p>

<p>Appeal, No. 193, April T., 1909, by defendant, from order of C. P. Lawrence Co., Dec. T., 1907, No. 10, discharging rule to strike off judgment in case of Roy A. Long v. Edward M. Hamilton.</p> <p>Rule to strike off judgment. Before William E. Porter, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to strike off judgment.</p>

<p>Corporations — Directors—Illegal sale of stock — Statute of limitations.</p> <p>In an action by a stockholder against directors of a corporation to recover a share of profits on stock illegally sold by the directors to themselves at par, and thereafter sold at an advance, the statute of limitations is not a bar where it appears that the suit was brought on March 22, 1907, that the certificates were dated March 13,1901, and that the stock was not actually delivered to the defendants or paid for by them until April 2,1901.</p>

<p>Decedents' estates — Claim against — Set-off—Judgment—Check—Evidence.</p> <p>Where a woman presents a judgment note for $2,000 as a claim against a decedent’s estate, and the note is undisputed, but the executors offer to set off a check paid by the decedent to the claimant shortly before his death, it is reversible error for the court to find from certain statements made by the claimant as a witness, that the check should be applied toward the payment of the judgment, where it appears that such statements were made under a misapprehension resulting from the claimant’s imperfect knowledge of English, and her other testimony shows conclusively that the check was received by her as a repayment of money which the decedent held for her as an investment, and that the check had nothing whatever to do with the judgment.</p>

<p>Road law — Vacation of road — View—Review—Act of June 13, 1836, P. L. 551, secs. 18, 19 and 25 — Continuance.</p> <p>1. There may be a review of a proceeding to vacate a road laid out and confirmed, but not opened, upon a petition of less than a majority of the original petitioners of the road. The requirement of a majority of the original petitioners for the road to give the court jurisdiction to appoint viewers for its vacation has no application whatever to the appointment of reviewers.</p> <p>2. In a road proceeding the court has the power during a September term before an order for a review has expired, to extend the time for the report of the reviewers to the November term.</p>

<p>Appeals, Nos. 189, 190 and 191, April T., 1909 by defendants, from judgment of C. P. Westmoreland Co., Aug., T., 1908, Nos. 948, 949 and 951, on verdict for plaintiff in case of Samuel Lapcevic v. Lebanon Mutual Insurance Company, Ohio German Fire Insurance Company and Concordia Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Doty, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were (1-3) instructions quoted in full in the opinion of the Superior Court.</p>

<p>Contract — Illegal contract — Promissory note — Consideration—Surety— Judgment note.</p> <p>1. Where one of two partners in the business of conducting a licensed hotel, sells his interest to his copartner in whose name the license had been taken out, and takes a judgment note of his copartner with a surety in payment therefor, the surety cannot claim exemption of liability on the note because of an illegal combination between the partners in obtaining a license.</p> <p>Judgment — Revival—Scire facias to revive — Defense—Partners.</p> <p>2. On a scire facias to revive a judgment entered on a judgment note, a set-off cannot be set up which involves an inquiry into an alleged partnership between the parties to the note upon which the judgment was entered.</p> <p>3. The only defense in the trial of a scire facias on a judgment is a denial of the existence of the judgment, or proof of the subsequent satisfaction for the discharge thereof. Under no circumstances can the merits of the original judgment be inquired into.</p>

<p>Appeal, No. 210, April T., 1908, by plaintiff, from decree of C. P. Somerset Co., No. 11, Equity Docket, 1906, dismissing bill in equity in case of Meyersdale Borough v. C. E. Deal.</p> <p>Bill in equity to restrain the obstruction of an alleged public alley. Before Kooser, P. J.</p> <p>The case turned on the question whether an alley known as “ Land Line Alley” was or was not a public alley.</p> <p>The court found as a fact in a lengthy opinion that the alley was not a public alley. The court dismissed the bill.</p> <p>Errors assigned were in overruling exceptions to various findings and in dismissing the bill.</p>

<p>Will — Devise—Boundaries—Division of town lot.</p> <p>Testator owned a town lot about fifty-eight feet wide. On the southern part of the lot he had erected a brick wareroom eighteen feet wide. On the northern part of the lot covering the remainder of the width, except four feet, he had erected a frame building. The intervening four feet was used as a hallway for both buildings during testator's lifetime. By his will he devised to his son W. “the wareroom and lot of ground covered by the same situate on High street, fronting twenty feet on said street.” He described the northern boundary of this devise as “north by lots, hereinafter devised to my son H.” He devised to his son H. thb lot on High street situated between the lot devised to his son W., and that owned by another person “being from thirty-five to forty-five feet front on High street.” Held, that W. took a lot twenty feet wide, and not merely the ground eighteen feet wide covered by the wareroom.</p>

<p>School law — High schools — Grade of school — Payment for tuition in high school — Acts of May 8,1854, sec. 23, P. L. 617, May 26, 1893, P. L. 146, June 28, 1895, P. L. 413, and March 16, 1905, P. L. 40. — Constitutional law — Bill of rights — Local act — Title of statute.</p> <p>1. Apart from the Acts of May 26, 1893, P. L. 146, and June 28,1895, P. L. 413, a school district has the right to establish a high school under the powers conferred upon it by the General School Law of May 8,1854, P. L. 617, which provides that “the directors and controllers of the respective districts shall have power to establish schools of different grades, and to determine into which school each pupil shall be admitted.” High schools created under this act are high schools within the meaning of the Act of March 16, 1905, P. L. 40, which provides that “children residing in school districts in which no public high school is maintained may attend a high school in some other district located near their homes,” with the consent of the directors of such district and payment of cost of tuition.</p> <p>2. The Act of March 16, 1905, P. L. 40, relating to the tuition of children in high schools outside of districts in which the children reside, is constitutional. It does not offerid against the bill of rights as interfering with property or the right to contract; nor does it violate sec. 1, of art. X, of the constitution; relating to the maintenance and support of a system of public schools; nor is it contrary to sec. 7, art. Ill, of the constitution as a local or special act; nor does it infringe upon art. Ill, sec. 3, of the constitution as being defective in title in not indicating by whom the tuition of nonresident pupils in high schools is to be paid.</p>

<p>Appeal, No. 74, March T., 1909, by defendants, from order of C. P. Luzerne Co., Oct. T., 1908, No. 1,187, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth ex rel. Kingston Township v. James D. Perrego and the American Bonding and Trust Company of Baltimore.</p> <p>Assumpsit on a bond of suretyship.</p> <p>The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Negligence — Master and servant — Infant—Dangerous machine.</p> <p>Where a boy under fifteen years of age employed in a factory is instructed by the superintendent after he had worked for several days at a particular machine, to take another machine and do some other work, and he is not instructed what machine to take, or told how to work the one which he chose, and he is injured, the employer may be held liable for the injury, although the boy's testimony as to what occurred was denied by the defendant.</p>

<p>Appeal, No. 200, April T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 138, on verdict for plaintiff in case of Joseph Manola, by his father and next friend, Lewis Manola, v. Enterprise Stamping Company.</p>

<p>Mechanic’s lien — Notice by subcontractor — Contract—Plans and specifications — Act of June 4, 1901, P. L. 431.</p> <p>Where a contract between a contractor and subcontractor does not make the plans and specifications of the building contract a part of it, nor provide that a copy of such plans and specifications shall be attached to the contract of the subcontractor, it is not necessary for the latter to attach a copy of such plans and specifications to the notice to the owner of an intention to file a lien; and this is especially so when it appeared by the contract and by the defendants affidavit of defense that the owner had in his possession, during all the time, the plans and specifications in question.</p>

<p>Appeal, No. 26, March T., 1909, by defendant, from judgment of C. P. Luzerne Co., March T., 1906, No. 383, on verdict for plaintiff in case of H. F. Rice to use of Jonathan Lemon v. Lake Township.</p> <p>Assumpsit to recover the price of a road scraper. Before Halsey, J.</p> <p>The facts are stated in the opinion of the Superior Court. •</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $11.20. Defendant appealed.</p> <p>Error assigned amongst others was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 45, March T., 1909, by R. R. Jones et al., from order of Q. S. Luzerne! Co., dismissing petition to appoint viewers In re Acquisition by the County of Toll Bridge at Nanticoke, Pa.</p> <p>Petition to appoint viewers to assess damages for the freeing of a bridge. Before Fuller, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>The court in an opinion by Fuller, J., dismissed the petition.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 188, April T., 1909, by defendant, from order of Q. S. Allegheny Co., March T., 1909, No. 23, imposing fine and imprisonment for contempt of court in case of Commonwealth v. John F. Klein.</p> <p>Attachment for contempt. Before Davis, P. J.</p> <p>From the record it appeared that on March 12, 1909, the following suggestion was made to the court of quarter sessions:</p> <p>W. A. Blakeley, district attorney of Allegheny county, respectfully represents:</p> <p>1. That at the February Sessions, 1909, of the court of quarter sessions of Allegheny county, certain indictments were tried, charging the defendants, inter alia, with bribery, corrupt solicitation and conspiracy to defraud the city of Pittsburg. That these trials resulted in the conviction of W. W. Ramsey of corrupt solicitation and bribery, and John F. Klein of bribery, and John F. Klein, William Brand and J. C. Wasson of conspiracy, and a plea of nolle contendere to the crime of corrupt solicitation and bribery was entered by one A. A. Vilsack.</p> <p>2. That at the trial of said causes, the testimony indicated that money had been paid by banks in the city of Pittsburg, in addition to the bank named in said indictments, for their selection as city depositories, and that open and extensive bribery and corruption had been practiced in the passage of the ordinance relating to the selection of bank depositories, as well as ordinances relating to many other matters which had been before and received the consideration of council. That testimony was also given to indicate that in and about the influencing of members of council to obtain their vote for the passage of the bank depository ordinance, moneys, in various amounts, were paid to eighty-eight councilmen, and further, that other moneys were paid to councilmen for their votes and support of a certain filtration deal.</p> <p>3. That it has been publicly asserted in the public prints of the city of Pittsburg and elsewhere, that bribery had been resorted to in securing the passage of ordinances vacating streets in said city, to wit: ordinance relating to the vacation of South Seventh street, the vacation of Home street, the vacation of Auburn street, the exoneration of certain persons from sewer assessment, of water rents, the vacation of land on the north side of Rose street, the purchase from Chas. O. Lappe of certain property, and the passage of two ordinances providing for the improvements of Rose street.</p> <p>4. It has further been publicly asserted and is common talk upon the streets and in business houses in said city that bribery and corruption was used to secure the passage of divers other ordinances and to prevent the passage of divers other ordinances.</p> <p>5. That the mayor of the city of Pittsburg, Honorable George W. Guthrie, has publicly asserted that he is in possession of evidence relating to councilmanic graft and corruption in the city of Pittsburg.</p> <p>6. That the district attorney of Allegheny county has no power to summon witnesses before the grand jury, or to investigate the same by placing witnesses in possession of information in regard to said alleged bribery and corruption, under oath, nor has he legal authority to submit the matters to the grand jury for their investigation, the said matters pointing to general corruption and bribery and not to the guilt of any one particular person.</p> <p>7. That the said W. A. Blakeley, district attorney, believes the above matters are public notoriety and are of such a nature, if true, as to affect the body corporate at large rather than any individual, and recognizing his inability under the law to satisfactorily and thoroughly investigate the said public matters, he deems it his duty to submit this suggestion to the court in order that the court, if convinced that the matter is of public notoriety and import and affects the public rather than the individual, may make such order in the premises with reference to submitting the matter to the grand jury as to it shall seem best and proper, both under the circumstances and the law.</p> <p>The court made the following offer:</p> <p>And now, to wit: March 12, 1909, the within petition presented in open court and upon due consideration thereof, it is ordered and directed that the said petition or suggestions be filed, and the district attorney be authorized to proceed with the investigation prayed for, and also be empowered to issue such subpoenas or processes as may be necessary to compel and procure the attendance of such witnesses who may in the judgment of the district attorney be competent to give evidence relevant to matters under investigation.</p> <p>Subsequently the following subpoena was -issued and served on John F. Klein:</p> <p>“Allegheny County, ss: Harry M. Merit.</p> <p>“ The Commonwealth of Pennsylvania. To Vm, Velte, G. W. Heppenstall, Harry P. Dilworth and John F. Klein, greeting:</p> <p>“We command you, that laying aside all business and excuses whatsoever, j^ou and each of you be and appear in your proper person before our Grand Jury, at Pittsburg, there to be held for the county aforesaid forthwith on the 16th day of March, a. d. 1909, at 9:30 o’clock a. m., to testify all and singular those things which you shall know in a certain investigation of charges of bribery and corrupt solicitation of councilmen in the City of Pittsburg in our said Court depending, and then and there to be tried between the Commonwealth and a person or persons unknown, defendant on the part of the Commonwealth. And herein fail not, under the penalty of one hundred pounds.”</p> <p>Klein refused to appear before the grand jury on the ground apparently that he was not obliged to testify to matters which would incriminate himself. An attachment was issued against him, and he was adjudged guilty of contempt of court and sentenced to pay a fine of $100, and undergo an imprisonment of thirty days.</p> <p>Subsequently on a writ of habeas corpus from the Superior Court, Klein was permitted to enter bail in the sum of $2,500, pending the hearing of the appeal.</p> <p>Errors assigned were the issuance of the subpoena, the issuance of the attachment, the conviction for contempt, and the sentence to fine and imprisonment.</p>

<p>Principal and surety — Bond—Stay of execution — Laches.</p> <p>1. Where a person becomes surety before a justice of the peace on a bond for a stay of execution, he cannot after a delay of nine months from the time when judgment was entered against him, on an appeal then taken from such judgment be heard to aver that he was misled by the misrepresentations of the justice, where he offers no proof of any facts from which it could be inferred that the justice was in any way the agent of the plaintiff.</p> <p>Corporations — Foreign corporations doing business.</p> <p>2. An affidavit of defense in an action in which plaintiff was a foreign corporation is insufficient which merely avers, without the statement of any facts, that the plaintiff was a foreign corporation doing business illegally in this state.</p> <p>Principal and surety — Stay of execution — Bankruptcy.</p> <p>3. The surety on a bond for stay of execution cannot allege as a defense to his liability that the original debtor had become a bankrupt within four months after the date of the rendition of the original judgment against him, and under which the bond had been given to stay the execution.</p>

<p>Appeal, No. 161, April T., 1909, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 1,004, on verdict for plaintiff in case of Francis Henry Wade v. Pittsburg Machine Tool Company.</p> <p>Assumpsit to recover money paid for repairs. Before Frazer, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Plaintiff presented these points:</p> <p>1. The verdict of the jury should be for the plaintiff. Answer: Refused. To which answer counsel for plaintiff except. [1]</p> <p>3. The tenant is bound to make the repairs ordered by the department of public works, and if he refuses to do so the landlord may make same and recover the amount from the tenant. Answer: Refused. To which answer counsel for plaintiff except. [2]</p> <p>The court charged the jury in part as follows:</p> <p>[Now, under this agreement we say to you as a matter of law that it was the duty of the defendant to make certain repairs to the house, that is, he was obliged to make necessary repairs, and by “necessary repairs” we do not mean only such repairs as would keep the building in tenantable condition for the use of this defendant, but it means more than that: it means such repairs as may be necessary to protect the house from waste and ruin. A man might permit the gutters and spouting of a house to get out of repair and allow the water to fall down upon the outside of the house, without inconvenience to himself, and by so doing the house may be considerably injured. Now, it is repairs of that kind that the tenant must make under a clause of this kind.] [3]</p> <p>[Now, in this case the questions involved here are questions strictly, it seems to me, for the jury: that is, whether a repair is necessary, is, under the circumstances, a question for the jury to determine. All questions of law are determined by the court; but questions of fact are solely for the jury, and this a question of fact, and you gentlemen must determine that question of fact from the testimony of the different witnesses.</p> <p>[Before verdict rendered counsel for plaintiff and defendant respectively except to the charge of the court and request that the stenographer’s notes thereof be reduced to writing and filed.] [4]</p> <p>[The plaintiff’s contention is that upon receiving notice from the authorities of the city of Allegheny to the effect that the property needed some repairs, he gave notice to the defendant, to the proper officer of the defendant company, Mr. Curtis, that these repairs had been required by the city, and asked him to make them, and also stated if he did not make the repairs, that is, if the defendant did not make the repairs, the landlord would make them and at the expense of the tenant. The tenant not having made the repairs, the landlord went upon the premises, or sent a tinner there, and repaired some spouting and some gutters upon the house, and for that he incurred an expense of $119.17. This was in November, 1904. A little later, in the spring, in March, 1905, he again sent the tinner to the house, and at that time some repairs were made in the roof. I believe he testified that there was some 125 large slate put on the roof and some smaller ones, I do not recall, twenty-five or thirty smaller ones, and for that a charge is made of $23.65, the two items together making the amount of the plaintiff’s claim of $142.82.</p> <p>Now, you gentlemen must determine from the evidence whether these repairs, whether the doing of either or both, the making of either or both of these repairs, was reasonably necessary for the protection of the house, for the protection of the property; and if they were, then, as I said a moment ago, as a matter of law, the defendant was liable for this, and he ought to have made them, and if he did not make them, then the plaintiff had the right to have them made and to charge the cost to the tenant.</p> <p>Now, you will take up both of these items, consider them with the testimony, and if you find that the spouting was necessary, you will render a verdict in favor of the plaintiff for that amount; and if you find the roofing was necessary, then he would be entitled to recover both of these items. If you find that either of them was not necessary, then, of course, the plaintiff would not be entitled to recover for that particular item.] [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

<p>Appeal, No. 43, Oct. T., 1909, by defendant, from judgment of Q. S. Lehigh Co., June Sessions, 1908, No. 23, on verdict of guilty in case of Commonwealth v. A. E. Swartz.</p> <p>Indictment for conspiracy. Before Trexler, P. J.</p> <p>At the trial it appeared that A. E. Swartz, the defendant, had been surety for one Elmer Frey, or Elmer Freeman. There was evidence that Swartz had employed one William Lawson by payments of money to impersonate and take Frey’s place at the trial, and that Frey impersonating Lawson was convicted and served a term of imprisonment. Other facts appear by the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which the prisoner was sentenced to pay $500, and -undergo an imprisonment for one year.</p> <p>Errors assigned were in the following form:</p> <p>1. The court erred in overruling the objection, by the defendant, to the offer of the district attorney for the commonwealth of the photograph as follows, to wit:</p> <p>Mr. Gemerd: I ask that this photograph be offered in evidence.</p> <p>The Court: It will be received for the present, but won't go to the jury yet.</p> <p>Mr. Dewalt: The defense objects.</p> <p>The Court: The defense objects to the admission of the photograph, the objection is overrúled; and for them a bill is sealed.</p> <p>2. The court erred in overruling the objection to the question put to Jonathan Frederick, a witness for the commonwealth, as follows, to wit:</p> <p>“Q. Who is that individual (showing photograph to witness)? A. Well, he looks to me — ”</p> <p>Mr. Dewalt: We object to this as incompetent and irrelevant.</p> <p>The Court: Objection overruled, bill sealed for the defendant.</p> <p>“Q. Who is that? A. He resembles the Elmer Fry, alias Elmer Freeman, who was tried in this court for perjury.''</p> <p>3. The court erred in overruling the objection to the questions put to A. E. Swartz, the defendant, by the district attorney on cross-examination as follows, to wit:</p> <p>“Q. Did he make any request of you for money, Mr. Swartz, after he went back to Wilkes-Barre?”</p> <p>Mr. Dewalt: This is objected to as not cross-examination.</p> <p>The Court: Objection overruled; bill sealed for the defendant.</p> <p>“Q. April the 18th, he sent a letter for money; prior to that time, Mr. Swartz, did you receive any mail from him? A. No, sir.”</p> <p>4. The court erred in overruling the defendant's objection to the questions to A. E. Swartz, defendant, on cross-examination by the district attorney, and in requiring the production of a letter in the hands of the defendant as follows, to wit:</p> <p>“Q. Well, you say you received letters from him? A. I received one from Boswell. Q. What does that letter say? ”</p> <p>Mr. Dewalt: This is objected to.</p> <p>The Court: The objection is sustained for the reason that if the defendant has the letter in his possession the commonwealth can have it.</p> <p>Mr. Dewalt: You will not surrender any documents in your possession until you are advised to do so by your counsel.</p> <p>The Court: The defendant says he has the letter in his possession; the court advised him to give the letter to the attorney of the commonwealth. To this advice of the court the defendant's attorney excepts, and for him a bill is sealed.</p> <p>• The letter was then given to the district attorney who read it to the witness.</p> <p>5. The court erred in overruling the motion of the defendant to strike from the record certain testimony as follows, to wit:</p> <p>Mr. Dewalt: Counsel for defendant moves at this time that all testimony in regard to a letter alleged to have been sent from Lawson to Swartz be stricken from the record as incompetent and irrelevant, as there is no proof in the commonwealth's case, the commonwealth not having shown that there was any response to that letter from Swartz, nor any act in consequence of such correspondence.</p> <p>The Court: Swartz was interrogated about the registered letter received and gave his explanation of the same, and the matter was presented without objection at the time. The objection is overruled, bill sealed for the defendant.</p> <p>6. The court erred in admitting in evidence the alleged photograph of Elmer Fry; and the letter of April 18, 1908, given by the defendant under the advice of the court. ,</p>

<p>Appeal, No. 153, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1904, No. 149, on verdict for plaintiff in case of H. N. Greiner, now to use of The Elizabethtown National Bank, v. Central Mutual Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Landis, P. J.,</p> <p>At the trial the defendant set up as a defense certain alleged misrepresentations as to the ownership of the property, and as to a previous fire.</p> <p>When Joseph Krause, the secretary of the defendant company at the time the policy was issued, testified as to such misrepresentation and in order to refresh his memory a paper designated as a daily report was produced and presented to the witness as follows:</p> <p>“ Q. Witness shown paper marked 'C. I. L. No. 32 ’ and asked whether or not that is the paper on which he reduced Greiner’s answer to writing.”</p> <p>Mr. Hensel: Objected to as immaterial.</p> <p>The Court: That is disallowed because if that is so then it is an application and is not attached to the policy.</p> <p>Defendant excepts. Bill of exceptions signed and sealed.</p> <p>The paper “C. I. L. No. 32” is as follows:</p> <p>“Daily Report from Elizabethtown, Pa., Agency: Policy No. 290291. Owner of Property. H. N. Greiner. Cancelled.</p> <p>“to</p> <p>“CENTRAL MUTUAL EIRE INSURANCE COMPANY</p> <p>“Principal office at No. 220, North Duke Street, Lancaster, Pa.</p> <p>“Residence of insured, Elizabethtown, Pa.</p> <p>“Commencement of Risk, February 4, 1904.</p> <p>“Term, Expiration, Perpetual.</p> <p>“Amount insured, $1000.</p> <p>“Rate.</p> <p>“Amount of Premium, $3.00.</p> <p>“Report every policy, Renewal, Certificate, Endorsement or</p> <p>“Entry, on the date it is made.</p> <p>“In the Sum of One Thousand Dollars as follows:</p> <p>“$900. On fixed and movable machinery and parts thereof, shafting, belting, pulleys and hangers, tools, implements, sewing machines, fixtures and furniture, and office furniture.</p> <p>“$100. On stock of shirts, trimmings, boxes, materials and supplies.</p> <p>“All while contained in two-story frame shingle roof building with basement and brick engine and boiler-house attached, occupied for shirt factory.</p> <p>“ Situated on north side of Bainbridge Street, Elizabethtown, Pa. Other concurrent insurance permitted.</p> <p>“Fire February 25, 1904.</p> <p>“AGENTS WILL PLEASE ANSWER ALL THESE QUESTIONS.</p> <p>“1. Material of building? Frame. Of roof? Shingle.</p> <p>■ “2. When built? A few years. Is it in good repair? Good repair.</p> <p>“3. How many stories high? Two story and basement.</p> <p>“4. Heating and lighting? Steam heat, electric light.</p> <p>“5. Size? .... x ....</p> <p>“6. Does it stand on leased land? No. When will lease expire?</p> <p>“7. Are stoves, pipes, flues and chimneys secure? Yes.</p> <p>“8. Have you personally inspected the risk?... .When?....</p> <p>“9. How far is risk from agency? In agency.</p> <p>“ 10. What is the present cash value of building?</p> <p>“11. What is the present cash value of stock?</p> <p>“12. Is the property encumbered? If so, how? Amount?</p> <p>“13. How long has the assured resided in your place? A number of years.</p> <p>“ 14. Is assured doing a profitable business? Yes.</p> <p>“ 15. Does the assured keep merchandise and cash account?</p> <p>“16. Do you fully recommend both risk and assured? Yes.</p> <p>“ Occupancy: Basement, first story, second story, third story, fourth story. Shirt factory.</p> <p>“ Other insurance, State Companies, amount and rates, and if concurrent: $1500, Lawn; $1200, Safety; $1000, Commercial.</p> <p>“This Company has on or in the same building.</p> <p>“Pol. No.....for $. .. . Pol. No.....for $.... And at risk within 100 feet. Pol. No.....for $.... Pol. No.....for $.... Pol. No.....for $... .</p> <p>“EXPOSURES WITHIN a RADIUS OF 100 FEET.</p> <p>“North. South. East. West. Vacant.</p> <p>“Please make diagram stating character and purpose of buildings within radius of 500 feet. Red for bricks or stone. Blue for frames.</p> <p>“Jos. Krause, Agent.</p> <p>“ DO NOT WRITE BELOW THIS LINE.</p> <p>“At the foot, separated by a heavy black line, of the front or outside of the paper is the following obligation :</p> <p>“Policy No. 290291. Feb. 4, 1904.</p> <p>“For value received, and in consideration of a Policy of Insurance issued to me by the Central Mutual Fire Insurance Company, of even date I promise to pay to the said Company such sum or sums of money, and at such time or times as may be required by the Board of Directors for the purpose of paying losses and the necessary expenses of said Company, payable within thirty (30) days after notice at the Company’s office at Lancaster, Pa., or to any authorized agent. If not paid at the expiration of said notice, 10 per cent, may be added for costs of collection; or, at its option, the Company may declare the aforesaid Policy void without further notice to me.</p> <p>“ H. N. Greiner.</p> <p>“Witness: H. F. Shultz.”</p> <p>Verdict and judgment for plaintiff for $1,173.25. Defendant appealed.</p> <p>Error assigned was ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 155, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1904, No. 151, on verdict for plaintiff in case of H. N. Greiner to use of The Elizabethtown National Bank v. The Safety Mutual Fire Insurance Company.</p> <p>Assumpsit upon a policy of fire insurance. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the defendant offered in evidence the original application.</p> <p>Mr. Hensel: That is objected to upon the ground'that an exact copy of it is not attached to the policy as it requires.</p> <p>Disallowed. Defendant excepts. Bill of exceptions signed and séaled. [1]</p> <p>Defendant desires to renew the application, offering it in evidence for the purpose of proving subsequently that said application was false in two particulars, both of which are exactly and correctly set forth in the application annexed to the policy — Question 3, By whom and for what purpose occupied? State fully. A. Applicant. Shirt factory.”</p> <p>And Question 9, “Have you ever suffered loss of property by fire? A. No.”</p> <p>To be followed by proof that both these answers were false, and the application would therefore vitiate and void the policy.</p> <p>Mr. Hensel: That is objected to for the reason that appears from an inspection of the purported copy of the application affixed to the policy, and the paper offered as the original application; that the copy affixed to the policy is not a correct copy as signed by the applicant and required by the act of assembly.</p> <p>The Court: Disallowed. We think it forms no part of the policy and therefore cannot be used.</p> <p>Defendant excepts. Bill of exceptions signed and sealed. [2]</p> <p>Verdict and judgment for plaintiff for SI,235. Defendant appealed.</p> <p>Errors assigned were (1, 2) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 154, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1904, No. 150, on verdict for plaintiff in case of H. N. Greiner, now to use of The Elizabethtown National Bank, v. The Commercial Mutual Fire Insurance Company of Lebanon, Pa.</p>

<p>Appeal, No. 178, April T., 1909, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 554, for defendant on case tried by the court without a jury in suit of Ada B. Mikesell v. George A. Mikesell.</p> <p>Feigned issue and interpleader to determine right to death benefits.</p> <p>The case was tried by Cohen, J., under the Act of April 22, 1874, P. L. 108.</p> <p>The court entered judgment for defendant on feigned issue.</p> <p>Error assigned was in entering judgment for defendant on the feigned issue.</p>

<p>Deed, — Husband and wife — Acknowledgment—Defective , acknowledgment — Act of February 24, 1770, sec. 2, 1 Sm. L. 307.</p> <p>The certificate of acknowledgment of a deed of a wife's real estate recited that there came before the notary “the above named .... and acknowledged the foregoing indenture to be their act and deed and desired the same to be recorded as such.'' The certificate also recited that the wife had been “examined separate and apart from her said husband .... without any coercion or compulsion of her said husband. ” Held, that the certificate showed on its face that the husband had acknowledged the deed, and that the deed passed a good title as to his interest in the property conveyed.</p>

<p>Practice, C. P. — New trial — Laches—Equitable relief.</p> <p>1. Where a court sets aside a verdict and judgment and grants a new trial, it is in the exercise of equitable power, although it may be applied in a case tried on the law side of the court.</p> <p>2. The court below will not be reversed for the refusal to set aside a verdict and grant a new trial, except for manifest error, or abuse of discretion.</p> <p>3. The defendant in an action of trespass for assault and battery will not be granted a new trial seven months after judgment was entered against him, where he alleges in his application that the plaintiff and his witness swore falsely to a material fact, but the court finds upon investigation that it would not have taken more than a day to ascertain the falseness of the testimony immediately after the judgment was entered.</p>

Appeal, No. 82, April T., 1909, by defendant, from order of C. P. Somerset Co., May T., 1903, No. 61, discharging rule to open judgment in case of E. R. Floto, Cashier, use of M. Christner use of C. W. Walker, v. Wilson Christner. Rule to open judgment. Kooser, P. J., filed the following opinion: The judgment note upon which said judgment was entered was executed February 3, 1903, payable in “five” — (conceded to be five days).

Appeal, No. 179, April T., 1909, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. Term, 1904, No. 284, on verdict for plaintiff in case of Forcite Powder Company to use of Eastern Dynamite Company v. W. E. Howley. Assumpsit on a promissory note.

<p>Appeal, No. 12, March T., 1909, by-defendant, John H. Sanderson, from judgment of Q. S. Dauphin Co., Sept. T., 1907, No. 239, on verdict of guilty in case of Commonwealth v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.</p> <p>Indictment for conspiracy for cheating and defrauding the state. Before Kunkel, P. J.</p> <p>The indictment charged John H. Sanderson, as a contractor for the furnishing of the Capitol Building at Harrisburg, sent a false or fraudulent bill or invoice for sofas and tables to the state knowing it to be false and fraudulent; that Joseph M. Huston, architect retained by the board of commissioners of public grounds and buildings, James M. Shumaker, superintendent of public grounds and buildings, William P. Snyder, auditor general of the state, and William L. Mathues, state treasurer, in their respective official capacities, approved and passed this bill or invoice knowing it to be false and fraudulent.</p> <p>Under the Act of March 26, 1895, P. L. 22, the governor, auditor general and state treasurer, were constituted the board of commissions of public grounds and buildings. This board had under the act entire control and supervision of public grounds and buildings and the furnishing and refurnishing of the buildings. The contract for furnishing the Capitol was awarded to John H. Sanderson on June 7, 1904.</p> <p>The first count of the indictment after reciting the award of the contract to Sanderson and the duties of the architect and the public officials indicted continued as follows:</p> <p>“ On the said twenty-eighth day of March, in the year of our Lord one thousand nine hundred and six at the County of Dauphin aforesaid, and within the jurisdiction of this Court, with force and arms, etc., did unlawfully, fraudulently, falsely and maliciously conspire, combine, confederate and agree together, between and amongst themselves, and with divers other persons whose names are as yet to the Grand Inquest aforesaid unknown, to unlawfully and fraudulently cheat and defraud the said Commonwealth of Pennsylvania of its moneys, goods, chattels and property, to wit, of the sum of Nineteen Thousand, Three Hundred and Eight Dollars and Forty Cents ($19,308.40) lawful money of the United States of America, by means of a certain false and fraudulent claim, invoice or bill on account of the said contract of the said John H. Sanderson with the said Commonwealth of Pennsylvania, and by means of certain false, fraudulent and collusive certificates to said claim, invoice or bill on account of said contract;</p> <p>“And in furtherance and execution of said conspiracy, combination, confederation and. agreement, the said John H. Sanderson, contractor as aforesaid, falsely, fraudulently and by collusion with the said Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues, and divers other persons whose names are as yet unknown, then and there prepared and presented for payment, or caused to be prepared and presented for payment, a certain false and fraudulent claim, invoice or bill on account of his said contract, for the total sum of Fifty-three Thousand, Three Hundred and Eighteen Dollars and Sixty Cents ($53,318.60), purporting to be a claim invoice or bill on account of his said contract in manner and form as follows:</p> <p>*}« »$€</p> <p>“And falsely and fraudulently attached to said bill or invoice an affidavit to the effect that said bill was correct as to feet, quantities and prices, according'to contract and plans approved by said board of public grounds and buildings;</p> <p>“Which said claim, invoice or bill on account of the said contract of the said John H. Sanderson' with the said Commonwealth of Pennsylvania for furniture for said new State Capitol Building purporting to have been furnished under Item No. 24 of said Special Schedule of said contract, being the item for ‘Decorating and painting, Series F,’ at Two Dollars and Fifty-two Cents ($2.52), net, per foot, but charged for under Item No. 22 of said Special Schedule of said contract, being the item for ‘Designed Furniture; fittings, furnishings and decorations' of either wood-work, stone, marble, bronze, mosaic, glass and upholstery, Series F/ at Eighteen Dollars and Forty Cents ($18.40), net per foot, was false and fraudulent, inter alia, in that the said</p> <p>65 Special designed sofas, Series F, 1,318* ft. @ $18.40, net, per ft.,........... $24,260 40</p> <p>80 Special designed oblong tables, Series F, 671 ft., @ $18.40, net, per ft.,...... 12,346 40*</p> <p>24 Special designed oval tables, Series F, 246* ft., @ $18.40, net, per ft.,..... 4,531 00</p> <p>50 Special designed round tables, Series F, 198* ft. @ $18.40, net, per ft.,....... 3,652 40</p> <p>7 Special designed square tables, Series F, 31 ft., @ $18.40, net, per ft.,........ 570 40</p> <p>147 Special designed clothes trees, Series F, 220* ft. @ $18.40, net, per ft.,..... 4,057 20</p> <p>in all,....................... $49,417 80</p> <p>so as aforesaid charged in said claim, invoice or bill on account of said contract as being furnished under said Item No. 22, at said rate of Eighteen Dollars and Forty Cents ($18.40), net, per foot, could not in truth and in fact, be lawfully ordered, furnished, received, certified to or paid for under said Item No. 22, in said Special Schedule of said contract, but could only be lawfully ordered, furnished, charged, received, certified to or paid as follows:</p> <p>“Said sofas under Item No. 25 in said Special Schedule of said contract, being the item for ‘Designed sofas, seating, etc., either upholstered wood, metal or stone, Series F/ at twelve Dollars and Ninety Cents ($12.90), net, per foot;</p> <p>“Said oblong tables, oval tables, round tables and square tables under Item No. 27 of said Special Schedule of said contract, being the item for ‘Designed Special Desks and Tables, Series F/ at Ten Dollars and Eighty Cents ($10.80), net, per foot;</p> <p>“ Said clothes trees under Item No. 4 of said Special Schedule of said contract, being the item for ‘Clothes trees (Mahogany)/ at Five Dollars and Fifty-five Cents ($5.55), net, each, under which said items said furniture, if the same contained the number of feet set forth in said claim, invoice or bill on account, could, in no event, be billed at more than the following amounts:</p> <p>65 Special designed sofas, Series F,......... $17,008 65</p> <p>80 Special designed oblong tables, Series F,. 7,246 80</p> <p>24 Special designed oval tables, Series F,. . 2,659 50</p> <p>50 Special designed round tables, Series F,. . 2,143 80</p> <p>7 Special designed square tables, Series F,. . 334 80</p> <p>147 Special designed clothes trees,......... 715 85</p> <p>in all,.................... $30,109 40</p> <p>or Nineteen Thousand, Three Hundred and Eight Dollars and Forty Cents ($19,308.40) less than the amount at which said articles of furniture were so, as aforesaid, falsely and fraudulently billed; but in truth and in fact said sofas, oblong tables, oval tables, round tables, square tables and clothes trees did not contain Two Thousand, Six Hundred and Eighty-five and Three-fourths (2,685|) feet, as set forth in said claim, invoice or bill on account; the said John H. Sanderson then and there well knowing that the said claim, invoice or bill on account of his said contract was false and fraudulent;</p> <p>“ And thereupon the said Joseph M. Huston, Architect and Agent, as aforesaid, employed and appointed as aforesaid by the said Board of Commissioners of Public Grounds and Buildings of the said Commonwealth of Pennsylvania, falsely, fraudulently and by collusion with the said John H. Sanderson, James M. Shumaker, William P. Snyder and William L. Mathues, and other persons whose names are as yet unknown, then and there approved said fraudulent bill, then and there well knowing that the same was false and fraudulent, and fraudulently certified that the said John H. Sanderson was entitled to payment for, inter alia, the sum of Forty-nine Thousand, Four Hundred and Seventeen Dollars and Eighty Cents ($49,417.80), for furnishing said above described furniture, under said Item No. 24, whereas, in truth and in fact, the said John H. Sander-son was not entitled to payment of said sum of Forty-nine Thousand, Four Hundred and Seventeen Dollars and Eighty Cents ($49,417.80);</p> <p>“And thereupon, the said James M. Shumaker, Superintendent of Public Grounds and Buildings of the said Commonwealth of Pennsylvania, as aforesaid, falsely, fraudulently and by collusion with the said John H. Sanderson, Joseph M. Huston, William P. Snyder, and William L. Mathues, and other persons whose names are as yet unknown, certified, inter alia, that the said fraudulent claim, invoice or bill on account of said contract was correct and true, that the quantities and prices therein mentioned were correct and according to contract and plans approved by the said Board of Commissioners of Public Grounds and Buildings, whereas, in truth and in fact, the said claim, invoice or bill on account of said contract was not correct and true, and the quantities and prices therein specified were not correct and according to contract and plans approved by said Board of Commissioners of Public Grounds and Buildings, the said James M. Shumaker then and there well knowing that the said claim, invoice or bill on account of said contract was not correct and true, and that the quantities and prices therein specified were not correct and according to contract and plans approved by the said Board of Commissioners of Public Grounds and Buildings, and he, the said James M. Shumaker, Superintendent of Public Grounds and Buildings, as aforesaid, thereupon, falsely, fraudulently and by collusion with the said William P. Snyder and William L. Mathues, then and there members of said Board of .Commissioners of Public Grounds and Buildings, presented said false and fraudulent claim, invoice or bill on account of said contract to the said Board of Commissioners of Public Grounds and Buildings, and falsely and fraudulently secured the approval of said Board thereto;</p> <p>“Whereupon, the said false and fraudulent claim, invoice or bill on account of said contract covering, inter alia, the said items for Forty-nine Thousand, Four Hundred and Seventeen Dollars and Eighty Cents ($49,417.80), for said furniture, having been presented to the said William P. Snyder, Auditor General of the said Commonwealth of Pennsylvania, as aforesaid, he, the said William P. Snyder, his duty in the premises wholly disregarding, and without having audited, examined and adjusted said false and fraudulent claim, invoice or bill on account of said contract, did falsely, fraudulently and by collusion with the said John H. Sanderson, Joseph M. Huston, James M. Shumaker and William L. Mathues, and other persons whose names are as yet unknown, sign and settle said false and fraudulent claim, invoice or bill on account of said contract, and submit the same to the said William L. Mathues, State Treasurer as aforesaid, for his approval, he, the. said William P. Snyder, then and there well knowing the said claim, invoice or bill on account of said contract and the said approval and certificates to be false and fraudulent;</p> <p>“Whereupon the said William L. Mathues, State Treasurer as aforesaid, his duty in the premises wholly disregarding, and without examining and revising the same, did falsely, fraudulently and by collusion with the said John H. Sanderson, Joseph M. Huston, James M. Shumaker, and William P. Snyder, and other persons whose names are as yet unknown, by E. C. Dewey, his Assistant Cashier, then and there acting under the authority and direction of him, the said William L. Mathues, approve the same, he, the said William L. Mathues, State Treasurer as aforesaid, then and there well knowing the said claim, invoice or bill on account of said contract, and the said approval and certificates to be false and fraudulent;</p> <p>“Whereupon the said William P. Snyder, Auditor General of the said Commonwealth of Pennsylvania, as aforesaid, then and there well knowing that the said claim, invoice or bill on account of said contract was false and fraudulent, did, unlawfully, falsely, fraudulently, and by collusion with the said John H. Sanderson, Joseph M. Huston, James M. Shumaker, and William L. Mathues, and other persons whose names are as yet unknown, draw a warrant upon the said State Treasurer of the said Commonwealth of Pennsylvania, under date of April 13, 1906, being Warrant No. 13,209, in full payment of said false and fraudulent claim, invoice or bill on account of said contract, directing the said State Treasurer to pay to the said John H. Sanderson, or his order, the sum of Fifty-three Thousand, Three Hundred and Eighteen Dollars and Sixty Cents ($53,318.60), said warrant being in full payment, inter alia, for the said furniture, he, the said William P. Snyder, Auditor General as aforesaid, then and there knowingly, falsely and fraudulently certifying that the said false and fraudulent account for the same had been settled agreeably to law; which said warrant the said William L. Mathues, State Treasurer as aforesaid, falsely, fraudulently and by collusion with the said John H. Sanderson, Joseph M. Huston, James M. Shumaker and William P. Snyder, and other persons whose names are as yet unknown, honored, and paid the amount thereof to the said John H. Sanderson, or his order, then and there well knowing that the said warrant was in payment of a false and fraudulent claim, invoice or bill on account of said contract.</p> <p>“Whereby, the said Commonwealth of Pennsylvania was cheated and defrauded, as aforesaid, of the sum of Nineteen Thousand, Three Hundred and Eight Dollars and Forty Cents ($19,308.40), then and there the property of the said Commonwealth of Pennsylvania, contrary to the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>The second count was similar in its averments to the first, but concluded as follows:</p> <p>“Whereby, The Commonwealth of Pennsylvania and the people thereof were cheated and defrauded, as aforesaid, of the sum of Nineteen Thousand, Three Hundred and Eight Dollars and Forty Cents ($19,308.40), then and there the property of the said Commonwealth of Pennsylvania and the people thereof, to the great damage of the said Commonwealth of Pennsylvania and the people thereof, and to the evil example of all others in like cases offending, and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>At the trial the commonwealth made this offer:</p> <p>Mr. Cunningham: The commonwealth proposes to prove by the witness upon the stand that prior to June or July, 1905, the architect issued a general form of architect’s certificate without specifying item numbers, measurements or weights; that having received the instructions testified to by the witness upon the stand subsequent to that time, he filled in from the bill of the defendant, John H. Sanderson, the item number and alleged measurements of the furniture; that this was done without any attempt upon the part of the architect to verify either item numbers or measurements, but simply in accordance with the instructions of the auditor general to the end as stated by the auditor general that he might identify the certificate with the bill in question. This testimony is offered in connection with the testimony as to the adoption of the resolution of January 10,1905, by the board of public grounds and buildings directing that payments should be made in part or fully on account of this contract upon the certificate of the architect alone, for the purpose of showing that the auditor general undertook to prescribe to the architect the form those certificates should take and knowing that the architect did not undertake to certify in any way either as to the correctness of the item or measurements in the bill.</p> <p>Mr. Rothermel: That doesn’t show the conspiracy alleged in the indictment and has no bearing on it. (Discussion.)</p> <p>Mr. Cunningham: If the court please, adopting the suggestion as to the better order of proof, we ask leave to withdraw the witness for the present. As I recall it, we were inquiring of you last week relative to the matter of an alleged change in the form of the certificate of the architect attached to the bills of Mr. Sanderson, under the special furniture schedule. Do you recall what was asked you about that matter?</p> <p>Mr. Lewis: Yes, sir.</p> <p>Mr. Cunningham: I propose to pursue that inquiry now. The proposition of the commonwealth, as I recall it, was to show that about the middle of the year 1905, the auditor general, Mr. Snyder, requested the architect to change the form of his certificate. Objection was made at that time upon the ground that the commonwealth had not established the falsity of the bill upon which the indictment was based, to such an extent as to admit acts of defendants. Having established that, as we contend, we now propose to pursue the inquiry that was abandoned at that time because the objection was sustained by the court.</p> <p>Mr. Rothermel: I raise the same objection that I made before.</p> <p>Mr. Cunningham: The offer is to prove by the witness on the stand that prior to July, 1905, architect’s certificates were issued in the ordinary form of an architect’s certificate simply without setting forth in the certificate itself either item numbers or weights or measurements of the articles mentioned in the invoice to which certificates were attached; that about July, 1905, Auditor General Snyder requested the witness to insert in subsequent architect’s certificates the item number and weights and measurements of the articles mentioned in the invoice and instructed the witness to copy said item numbers, weights and measurements from the footings of the invoices, stating that he desired such information for the purpose of identifying the architect’s certificates with the bills, in order to enable him to check up in his office.</p> <p>This offer is made for the purpose of showing that Auditor General Snyder knew that architect’s certificates issued subsequent to that time did not purport to be a certificate of the architect; that the item numbers, weights or measurements in the invoices to which the same were attached were correct, but that said certificates were mere transcripts from the footings of the invoices themselves; to show that he was in duty bound with that knowledge to make his own investigations of the correctness of this bill and could not rely upon the architect’s certificates inasmuch as he dictated the form of that certificate and how it should be made up by merely copying from the bill.</p> <p>Mr. Scarlet: Also for the purpose of showing fabrication of evidence upon the part of Mr. Snyder as to the architect’s certificate in question.</p> <p>Mr. Bergner: We object to this offer for the reason that it does not prove or tend to prove the purpose for which it is offered, and for the further reason that it is not proposed to show that Auditor General Snyder ever ordered Mr. Lewis or Mr. Huston or anyone associated with him not to measure or weigh.</p> <p>Mr. Gilbert: For the further reason that the offer is not only inconsistent with but plainly contradicted by the testimony, both oral and written, which the commonwealth has already submitted in this case, and for the further reason that it is incompetent, irrelevant, immaterial and inadmissible.</p> <p>Mr. Rothermel: I object on the ground stated by the other counsel and also on the ground of irrelevancy.</p> <p>Mr. Cunningham: I propose to prove also by this witness on the stand that Auditor General Snyder prescribed in writing the form in which the architect’s pink certificate should be made at or about the middle of the year 1905. (Discussion.)</p> <p>Mr. Bergner: We object because there is nothing here to show that he did know the architect’s certificates were not correct, and because it is not offered to show that he directed the certificate to be made without measuring and without weighing. (Discussion.)</p> <p>The Court: We think the evidence is admissible. The question of its weight is for the jury. Whether it has any weight or not, they will have to say. The objections are overruled. The offer is admitted and exceptions noted' to the several defendants.</p> <p>Exceptions to defendants. [34]</p> <p>Mr. Cunningham: The commonwealth now proposes to prove by the witness on the stand that about April, 1906, Auditor General Snyder notified Huston, the architect, that two certificates on bills approved April 10, 1906, were not signed; that he, Mr. Snyder, would bring them to Philadelphia and would be at No. 900 Arcade Building to get the architect’s signature to said certificates; that as a matter of fact, the auditor general subsequent to said notification, which notification was made by letter, brought two warrants to Philadelphia drawn on bills for which no architect’s certificate had been issued and requested the witness and architect Huston to bring architect’s certificates for those warrants over to No. 900 Arcade Building, Philadelphia; that in pursuance of this request the witness and architect Huston went over to Room 900 Arcade building, where two architect’s certificates were issued corresponding in amount to amounts of the said warrants. This is offered for the purpose of showing that warrants were drawn before any architect’s certificates were issued and that architect’s certificates were issued corresponding in amount to those warrants at the request of the auditor general for the purpose of showing the knowledge upon the part of the auditor general that said architect’s certificates did not purport to be certificates as to the correctness of the invoices upon which the warrants had been prepared, and showing the irregular course of issuing the warrants.</p> <p>Mr. Rothermel: Which architect’s certificates?</p> <p>Mr. Cunningham: These two that I am talking about in the offer.</p> <p>Mr. Rothermel: I fail to see that that proves it, fail to see that a desire to have an additional certificate to the certificate already on the bill is any evidence that the second certificate did not amount to anything, or that he understood it didn’t amount to anything. Upon what theory is that offered? It shows extraordinary care upon the part of the auditor general that he desired to have a particular form of certificate. Upon what theory can the conclusion be drawn that the commonwealth asks for from the evidence of that character?</p> <p>Mr. Schaffer: I do not represent the particular defendant that this is intended to connect by, but an examination of the latter will show that the certificates were attached, and the only thing that was required was the signature. Instead of substantiating the offer made it only indicates that there had been an inadvertent omission to sign the certificate which was already there.</p> <p>Mr. Cunningham: But, Mr. Schaffer, the offer is to show that the letter is not true; as a matter of fact, there had been no certificates issued.</p> <p>The Court: What letter are you speaking of now?</p> <p>Mr. Cunningham: The letter of Auditor General Snyder.</p> <p>The Court: That is not in the case yet.</p> <p>Mr. Cunningham: I propose to show that the notice was given by letter.</p> <p>Mr. Rothermel: Do you mean to stale that the bills did not have the black certificate on them?</p> <p>Mr. Cunningham: I cannot state that positively, whether they had or not.</p> <p>Mr. Rothermel: I think that is very important.</p> <p>Mr. Bergner: It is dated in 1906.</p> <p>Mr. Cunningham: I cannot state that positively because I don’t know. The purpose is to show the carrying of those warrants down there and the issuing of warrants before any architect’s certificate was issued.</p> <p>Mr. Rothermel: My objection is that this bill had on it a cer- ■ tificate and that certificate was the certificate of the architect. (Discussion.)</p> <p>Mr. Bergner: Objected to as incompetent, irrelevant, arid in no way affecting the defendant Shumaker. With respect to Snyder and Mathues, this proposed testimony is objected to for the reason that it does not propose to show that certificates were not already upon the bills referred to in this letter. It is not proposed to show that these certificates were not duplicate approvals which had not been signed, and does not purport to show that the bills had not already been approved by the architect at the time the warrants proposed in the offer of the commonwealth to be proven by this witness had issued. Further, it is irrelevant, immaterial and inadriiissible.</p> <p>The Court: As we understand, this' letter, which purports to be a letter of the defendant Snyder, declares that these two bills had not been approved by the architect.</p> <p>Mr. Bergner: That the certificates had not been signed.</p> <p>The Court: That the certificates had.not been signed. The letter itself declares that. So far as this offer affects the other defendants, it cannot affect them unless it be shown by an act or circumstances in furtherance of a fabrication or agreement or conspiracy between Snyder and them. The objections are overruled, offer admitted, exceptions to the several .defendants.</p> <p>Mr. Bergner: I desire to add to my objection this on behalf of Snyder: That it being part of the history of this case that all bills presented to the board of public grounds and buildings, or to the auditor general, have duplicate approvals signed by Mr. Huston; that this evidence is immaterial and irrelevant unless it is proposed to show that the bills in question here did not bear the approval of Huston, and further unless it, is proposed, to show that these two certificates, which it is stated in that letter were not signed, were not duplicate certificates.</p> <p>The Court: The objections are overruled, offer received.</p> <p>Exception to the several defendants. [35].</p> <p>The Court: It is received so far as it affects Snyder, and cannot affect the other defendants unless it should be found to have been done in furtherance of an agreement or conspiracy between Snyder and the others.</p> <p>Mr. Cunningham: The offer is to prove by the.witness on the stand that prior to July, 1905, architect’s certificates were issued in the ordinary form of an architect’s certificate simply without setting forth in the certificate itself either item numbers or weights or measurements of the articles mentioned in the invoice to which certificates were attached; that about July, 1905, Auditor General Snyder requested the witness to insert in subsequent architect’s certificates the item numbers and weights and measurements of the articles mentioned in the invoice and instructed the witness to copy said item numbers, weights and measurements from the footings of the invoices, stating that he desired such information for the purpose of identifying the architect’s certificates with the bills, in order to enable him to check up in his office. This offer is made for the purpose of showing that Auditor General Snyder knew that architect’s certificates issued subsequent to that time did not purport to be a certificate of the architect; that the item numbers, weights or measurements in the invoice to which the same were attached were correct, but that said certificates were mere transcripts from the footings of the invoices themselves; to show that he was in duty bound with that knowledge' to make his own investigations of the correctness of this bill and could not rely upon the architect’s certificates inasmuch as he dictated the form of that certificate and how it should be made up by merely copying from the bill.</p> <p>Objection overruled. Exception. [37]</p> <p>The evidence given under this assignment of error was the same as that given under the thirty-fifth assignment of error.</p> <p>“ Q. Commonwealth’s exhibit No. 128 shown witness. I will ask you whether or not that is the book referred to in the letter and sent along with the letter? A. It is.”</p> <p>Mr. Cunningham: The purpose is to show the contract made by the board and the architect, Joseph M. Huston. The purpose is to show that it was not his duty to certify as to the correctness of measurements or weights, and that the defendants, Snyder and Mathues, being the successors of the members of the board who made this contract with Huston, were bound to take notice of the contract with Huston and cannot now contend that they had a right to rely upon the certificates of the architect as to weights and measures. (Discussion.)</p> <p>Mr. Scarlet: The purpose of the offer is also to corroborate the witness.</p> <p>Mr. Rothermel: I think on reflection I will withdraw my objection.</p> <p>The Court: The objection having been withdrawn, the offer is received.</p> <p>Mr. Schaffer: On behalf of Mr. Mathues and Mr. Snyder we object to this testimony as incompetent, irrelevant and immaterial. They were not members of the board at the time this contract was entered into, and this being a criminal proceeding, what they knew and what they ought to have known are radically different things. Further, if it pleases the court, it occurs to me that that book, read into this contract, shows that his duties were more than is here set up.</p> <p>The Court: We understand this testimony is offered to corroborate the witness as to his testimony delivered last week, wherein he stated that neither he nor his associate, Huston, were responsible for weights or measurements, so far as it may corroborate that testimony. The objection is overruled, offer admitted and exceptions granted to Snyder, Mathues and Shumaker.</p> <p>Exceptions to defendants Snyder, Mathues and Shumaker. [38]</p> <p>John C. Delaney called on behalf of the commonwealth, duly sworn; direct examination by Mr. Cunningham:</p> <p>Mr. Cunningham: This witness is called for the purpose of identifying his signature to the certified schedule of 1898-99, filed in the auditor general’s department under the act of 1895. Inasmuch as the special furniture schedule of 1904-05, upon which the contract in question in this case was awarded to John H. Sanderson, one of the defendants, by the commonwealth of Pennsylvania, through its proper officers, contains the following item, designated as item No. 25: “Designed sofas, seating, etc., either upholstered, wood, metal or stone, Series F, per foot $15-14%,” or $12.90 net, per foot, but is ambiguous in so far as said item for sofas is concerned in that it is not specified whether the phrase “per foot” is used to describe linear feet, square feet, or cubic feet, or any specified method of measurement, the commonwealth now proposes to prove that the signed schedule for the years 1898 and 1899, at page 37 thereof, contained the following item designated as item No. 7, thereof, “leather covered sofas (mahogany West Indian) per foot $35-38% off,” or $21.70 net, per foot, that the contract was duly awarded on said item in said schedule by the proper officers of the commonwealth of Pennsylvania to the said John H.' Sander-son to furnish sofas under said item for the current year at his said bid of thirty-eight per cent, off the maximum price of $35.00 per foot; that the said John H. Sanderson in the performance of said contract, furnished and billed under date of April 29,1899, a certain sofa for the department of agriculture under the following description in the invoice therefor: “One leather sofa, 6 ft. 9 long, $35 per foot-38%, $146.47,” and that under said date of April 29, 1899, the said John H. Sanderson furnished and billed to the said commonwealth of Pennsylvania for the room of the speaker of the house a certain other sofa described and designated in the invoice therefor as follows: “One leather covered sofa, 6 ft. 6, $35 per foot-38%, $141.05,” and that the said John H. Sanderson furnished and billed under the said date of April 29, 1899, to the commonwealth of Pennsylvania, for the department of the lieutenant governor, a certain other sofa designated and described in the invoice therefor as follows: “One sofa 6 ft. 6 inches, $35-38%-$21.70, $141.05;” and that the said John H. Sanderson furnished and invoiced under said date of April 29,1899, to the commonwealth of Pennsylvania and for the department of the auditor general a certain other piece of furniture designated and described in the invoice therefor as follows: “ One drophead lounge 6 ft. 6 inches, $35-38%-$21.70, $141.05;” and that the said John H. Sanderson in the performance of said contract also furnished and billed under said date of April 20,1899, two sofas for the executive mansion under the following description in the invoices therefor: “Two 5 ft. white enamel and bronze sofas, $35 per foot-38%-$217,” and that the said John H. Sanderson, under said date of April 29,1899, furnished and billed another article of furniture described in the invoice therefor as follows: “ One oak drop arm couch, 6 feet, 6 inches, $35 per foot-38%-$21.70 —$141.05,” and that the said John H. Sanderson collected from the said commonwealth of Pennsylvania the above mentioned sums of money for said sofas at the rate as aforesaid of $21.40 not for each linear or running foot in the length of said sofas.</p> <p>The commonwealth offers to prove these facts for the purpose of showing the construction and interpretation heretofore placed by the said John H. Sanderson and by the commonwealth of Pennsylvania, acting through its proper officers, upon the phrase “per foot” in so far as the use of said phrase is concerned in the manner of the furnishings of sofas by the said John H. Sanderson to the said commonwealth of Pennsylvania upon a contract to furnish the same at a stipulated price “per foot,” and for the further purpose of establishing the standard and method of measurement by which the correctness or falsity of the measurement of sofas, given in the invoice, upon which the indictment in this case is based, are to be tested and decided, and for the further purpose of showing the practice and course of dealing of the parties under a prior contract for the purchase and sale of sofas at a specified price “per foot.” (Argument.)</p> <p>Mr. Rothermel: I object to the offer as irrelevant.</p> <p>The Court: The objection is overruled, and the offer is received so far as it may affect the defendant Sanderson alone. Exception for the defendant. [39]</p> <p>Mr. Hensel: May it please the court, on page 461 of the notes of testimony the commonwealth offered in evidence the certified schedule of 1898-99, being commonwealth’s exhibit No. 88, particularly the pages marked 89 and 90, followed by the identification of the book by witnesses Cameron, Stott and Kroehl; and subsequently, on page 469 of the notes of testimony, the commonwealth renewed the offer (commonwealth’s exhibit No. 88); and subsequently the court admitted the certified schedule of 1898-99, particularly page 37 thereof, being commonwealth’s exhibit No. 89; followed by certain warrants to John H. Sanderson and paid to him under the contract to furnish sofas under said furniture schedule. Counsel for John H. Sanderson moved to strike out of said testimony and to withdraw from the jury said exhibit No. 89 and the warrants, upon the ground that an examination of such schedule showed:</p> <p>1. That the sofas — the first two in item No. 7 of said schedule — were leather covered sofas, mahogany, West Indian; and further, that all the furniture comprehended in the said schedule and upon which bids were received and the contract awarded, were “as per designs and specifications submitted;” and that the exhibit of the commonwealth, No. 89, did not contain and were not accompanied by any designs and specifications.</p> <p>The Court: Motion is overruled, exception to the defendant Sanderson. [45]</p> <p>Mr. Cunningham: The former offer is withdrawn, and the commonwealth now proposes to prove by the witness on the stand that Joseph M. Huston, architect, when about to depart upon a trip to Europe, left with the witness, who was in his office in a clerical capacity, a number of signed architect’s certificates, leaving the body of certificates blank, and simply signing his name on the line followed by the word “Architect.” During the absence of Joseph M. Huston in Europe, John H. Sander-son, one of the defendants now on trial, came to the office of Joseph M. Huston in Philadelphia, where the witness was employed, presented the bill that has been offered and received in evidence as commonwealth’s exhibit No. 46, and requested an architect’s certificate upon that bill; that the witness informed John H. Sanderson that his brother was in Europe, that Sanderson insisted upon obtaining the certificate, stating in substance that if there was anything wrong with the bill it would be checked up by the superintendent of public grounds and buildings and by the auditor general before any payments were made on account of the bill. Thereupon the witness took one of the blank certificates left in his possession, being the certificate offered and received in evidence as commonwealth’s exhibit No. 44, and filled out the body of said certificate, using as his guide in filling the same out the last line upon the bill on the invoice, reading: “Item 24, 2,897f feet at $20, less 8 per cent., equals $18.40, total $53,318.60.”</p> <p>The Court: What is the purpose?</p> <p>Mr. Cunningham: The purpose is to show that John H. Sanderson, one of the defendants now on trial, procured from this witness, in the absence of the architect, the certificate that has been admitted in evidence; that said certificate was given without any examination upon the part of the witness, or Joseph M. Huston, of the correctness of the bill either as to item numbers, or terms therein, and that it was obtained upon the assurance by the defendant that if there were any errors in the bill they would be checked up by the superintendent of public grounds and buildings.</p> <p>The Court: What is the purpose? What conclusion do you draw from the proof which you now offer to present?</p> <p>Mr. Cunningham: That it is evidence of conspiracy or of collusion.</p> <p>The Court: That the signature was obtained by Sanderson?</p> <p>Mr. Cunningham: The certificate was obtained by Sanderson upon the representation that the bill would be corrected by state officers if there was anything wrong with it.</p> <p>Mr. Rothermel: My objection is it is not competent to prove that at this time. Until it is shown there was an executed conspiracy in the manner and form as stated in the indictment, all this evidence would be irrelevant. The procuring of an honest certificate would not be wrong in any particular, and if the bill was right an honest certificate could not possibly be evidence of any ldnd.</p> <p>The Court: It amounts to nothing if the bill is not fraudulent.</p> <p>Mr. Gilbert: I would like to offer an objection on behalf of Messrs. Snyder and Mathues. I object to the admission of this testimony on the ground that it is irrelevant, incompetent and inadmissible.</p> <p>Mr. Bergner: On behalf of James M. Shumaker, we offer the objection that the proposed testimony is immaterial, irrelevant, inadmissible, incompetent, and that there is no offer to prove that James M. Shumaker was in any way connected with or had knowledge of the matters set forth in the offer of the commonwealth.</p> <p>The Court: Of course, the evidence offered cannot affect the defendants Mathues, Snyder and Shumaker, unless it be shown that it was in furtherance of a conspiracy — unless a confederation of agreement be shown between Sanderson and the other defendants. But we think it is competent as against Sander-son. The objection is, therefore, overruled, and the offer admitted, and exceptions allowed to the several defendants. [52]</p> <p>Defendant presented these points:</p> <p>1. That by the terms of the contract entered into between the board of commissioners of public grounds and buildings and John H. Sanderson, John H. Sanderson had the right to charge— for the articles furnished under the invoice alleged to be false and fraudulent in the indictment — under item 22 of the schedule. Answer: Refused. [1]</p> <p>2. That by the terms of the contract entered into between the board of commissioners of public grounds and buildings and John H. Sanderson, John H. Sanderson had the right to charge— for the articles furnished under the invoice alleged to be false and fraudulent in the indictment — by the surface foot of finished surface. Answer: Refused. [2]</p> <p>3. That by the terms of the contract entered into between the board of commissioners of public grounds and buildings and John H. Sanderson, John H. Sanderson had the right to charge — for the articles furnished under the invoice alleged to be false and fraudulent in the indictment — by the surface foot of finished surface under item 22 at $18.40 for each foot of finished surface. Answer: Refused. [3]</p> <p>4. That there is no evidence in the case tending to show that there was fraud or collusion in the awarding of the contract; and that John H. Sanderson was entitled to receive from the state the prices for which he contracted to furnish the goods, whether the prices at which the goods were charged by Sander-son and paid for by the state were very high or not. Answer: Refused. [4]</p> <p>5. That the value of the goods furnished by Sanderson to the state and paid for by it, cannot be taken into consideration by the jury in determining the guilt or innocence of any of the defendants of the charges contained in the indictment. Answer: Refused.</p> <p>This must be refused. However, we say that the value of the goods is only to be considered by the jury upon the question whether the term “per foot” used in the schedule was intended to mean square or surface foot as claimed by the defendant Sanderson. As to him only is it to be considered, not as to the other defendants, whom we do not understand now make such claim as a defense. [5]</p> <p>10. That under the evidence, the jury must find a verdict of “not guilty” as to all the defendants. Answer: Refused. [6]</p> <p>11. That under the evidence, the jury must find a verdict of “not guilty” as to John H. Sanderson. Answer: Refused. [7]</p> <p>14. That if the jury believes that the contract, evidenced by the schedule, plans and specifications, under which Sanderson bid and under which the contract was awarded to him, was, in using the term “per foot” ambiguous and that the term might with equal propriety be applied to Wo or more systems of foot measurement, Sanderson, the contractor, would have the right to select that measurement which he might regard as serving him best. Answer: This we say is true if such selection did not result in an unconscionable, extortionate, and unjust charge. [8]</p> <p>20. The only item in the schedule which was therein expressly prescribed to be furnished by the lineal foot was item 1, covering bookcases and wardrobes; and it was not prescribed in the schedüle that any designed furniture should be measured and paid for by the lineal foot. Answer: It is not prescribed in terms in the schedule that any designed furniture should be measured by the lineal foot, but the term used in the schedule is “per foot.” What that means is for the jury to determine so far as it is necessary to do so to enable it to ascertain whether or not the bills offered in evidence were false or not. [9]</p> <p>22. The contractor, Sanderson, one of the defendants, had a contract to furnish designed furniture, and other fittings, furnishings and decorations, at an average or unit price, “per foot.” If at the time he made the contract he understood, and the members of the board of public grounds and buildings and their architect, representing the state, understood this to mean per square surface foot, and if he was instructed by the architect and advised by the board of public grounds and buildings that it meant per square or surface foot, and if acting upon that understanding and instruction he charged and was paid ppr square foot, such charge was not fraudulent and the fact that in certain bills he reduced his charges below the maximum he might have legally charged, is in itself no evidence of fraud. Answer: This is affirmed, but the jury are to take into consideration the fact that he charged less than he claims now he had a right to charge, in determining the honesty of his belief that the term “per foot” meant square foot. [10]</p> <p>The court charged in part as follows:</p> <p>[The commonwealth contends that the sofas and the tables for which the bill in the present case was rendered were properly chargeable, the sofas under item 25, and the tables under item 27, and not under item 22, under which they were billed. The question, therefore, arises upon the construction of this schedule and contract. Are designed sofas properly chargeable under item 22, or should they be charged under item 25? Are designed tables properly chargeable under item 22, or should they be charged under item 27? Now this has been submitted to us by the defense as a question of law. The construction of writings is usually for the consideration of the court. We, therefore, say to you that we think the proper construction of this schedule and contract under which sofas and tables were furnished in this bill in the indictment by the defendant Sanderson were incorrectly charged under item 22, that the sofas ought to have been charged under item 25, and the tables were properly chargeable under item 27. In this respect this bill, this invoice, is false.] [11]</p> <p>[It may be observed that the construction which we are asked to place upon this schedule by counsel for the defendants, namely, to construe it so as to permit the contractor Sanderson to charge for sofas and tables under item 22 would substantially and practically nullify the very purpose which this contract was intended to accomplish.] [12]</p> <p>[It may be observed that the construction which we are asked to place upon this schedule by counsel for the defendants, namely, to construe it so as to permit the contractor, Sander-son, to charge for sofas and tables under item 22 would substantially and practically nullify the very purpose which this contract was intended to accomplish. The constitutional provisions which the act of 1895 was intended to carry into effect, and the act of 1895 which provides for the letting of contracts for the furnishing of supplies to the state by the board of public grounds and buildings, and the contract let by virtue of the authority contained in the act of 1895, evidently were intended to secure to the state a fixed and certain price for the articles which she contracted to purchase, and the lowest price; and it is a familiar rule of construction that a writing or an agreement should be construed to carry into effect its purpose. Therefore we say to you inasmuch as it was intended by the contract entered into between the state and the defendant contractor for supplies to be furnished to secure to the state a fixed and certain price for the articles purchased, and the lowest price, that this contract should be, construed to carry out and effect that purpose, and that the construction we have placed upon it, we think, is consonant with the purpose for which the contract was made.] [13]</p> <p>[To permit a contractor to exercise the option of supplying under his contract to the state articles at one price, at a higher price, or at a lower price, as would be the case if we acceded to the contention of the defense as to the construction of this contract, would, as we say, practically nullify the purpose for which the contract was made.] [14]</p> <p>[Besides, we do not think there is any ambiguity in this contract'with respect to the item number under which sofas or tables should be furnished. Item 25 expressly declares for designed sofas, seating, etc. Item 27 expressly declares for designed special tables. So we think it would be a violation of the language of the contract to say where the item specifically provided for an article, naming it, that it should be billed under an item which declares for designed furniture. Where the specific article is named, we think the article should be billed under the item naming it, and not under the general term which might include it. Therefore, we say, gentlemen of the jury, that so far as this bill contained in this indictment is concerned, it is false in that the charge for sofas and for tables are improperly made under item 22 of the schedule.] [15]</p> <p>[Besides, we do not think there is any ambiguity in this contract with respect to the item number under which sofas or tables should be furnished. Item 25 expressly declares for designed sofas, seating, etc. Item 27 expressly declares for designed special tables. So we think it would be a violation of the language of the contract to say where the item specifically provided for an article, naming it, that it should be billed under an item which declares for designed furniture.] [16]</p> <p>[Where the specific article is named, we think the article should be billed under the item naming it, and not under the general term which might include it. Therefore, we say, gentlemen of the jury, that so far as this bill contained in this indictment is concerned, it is false in that the charges for sofas and for tables are improperly made under item 22 of the schedule.] [17]</p> <p>[If these clothes trees are designed clothes trees we say it may be that they are properly billed and charged for under item 22, but it is of no special consequence for the purposes of this case, because if you find that the bill is false in item numbers as to any of the articles of furniture, it is sufficient.] [18]</p> <p>[The commonwealth also charges that this bill is false in measurements, that the measurements set opposite the articles in the bill are false. That depends, gentlemen of the jury, altogether upon the construction of this contract, and we think its construction with respect to measurements is a question which you will have to determine in the light of the evidence which you have heard respecting it.] [19] •</p> <p>[The first item in this schedule calls for “bookcases and wardrobes, mahogany, Series P, per lineal foot.” There the kind of foot is mentioned. The term thereafter throughout the entire schedule is “per foot.” It is suggested on the part of the defendants that inasmuch as “per lineal foot” is mentioned in the first item, that the term “per foot” thereafter mentioned must be something other than lineal foot. Is not just the contrary the conclusion to be reached? The schedule mentioning in the first item “per lineal foot,” is it not fair to presume that the per foot mentioned thereafter was the lineal foot unless declared to be otherwise expressly or shown to be otherwise by the articles to which it was to be applied? But however that may be, you will consider what the term “per foot” means. The defense contends that it means the square foot, the surface foot. You will have to determine how that is.] [20]</p> <p>In determining what the term “per foot” means, you will recall the evidence submitted on the part of the commonwealth respecting the schedule for 1898 and 1899, where the same term was used — “per foot” — with respect to furniture, and that under that schedule the defendant Sanderson was a bidder, received the contract and supplied furniture under that contract, and that he was paid for it by the lineal foot. That piece of testimony is proper for your consideration, gentlemen of the jury because that was a contract between the defendant Sander-son and the state, between the same parties who are parties to this contract, the construction of which we are considering, and you will determine how far that shows what the parties understood at that time, and how far their understanding at that time can throw light upon what was understood by them when they used the term “per foot” in the present schedule.] [21]</p> <p>[An important piece of testimony to be considered in this connection is that of the cash price value of the articles furnished under the Sanderson bill. That was offered in evidence and received in evidence only for the purpose of enabling you to determine whether the term “ per foot ” meant square foot under the contract, as alleged by the defendant Sanderson. And it has effect in this way: If you find that the application of the measurement to the furniture would bring the price of the furniture so far above its actual cash value or market value, that that price would be unjust and extortionate and unconscionable, it would be for you to say whether the parties ever intended that that kind of measurement should be applied to furniture. We say that evidence was offered for that purpose.] [22]</p> <p>[You will take the schedule of 1898 and 1899, the contract with Sanderson under it, his supply of furniture by the lineal foot and his receipts of payment for furniture supplied by the lineal foot, the Abbey contract, the letter of Houston to Sander-son directing that the wainscoting and painting should be billed under item 22 and should be paid for or charged by the square foot, and the difference between the actual cash value of the furniture supplied and the price which it would reach by measuring it by the square foot — taking all these matters into consideration you will determine whether the parties intended the term “per foot” to mean square foot.] [23]</p> <p>[In considering the Abbey contract and the letter from Houston to Sanderson with respect to the wainscoting and painting, you will, of course, take into account the character of the work referred to — mural art painting. Is that a flat surface? Wall decoration, wainscoting and painting — is that a flat surface? Does the fact that under the'Abbey contract that work was to be paid for by the square foot, and under the Houston letter certain wainscoting and painting were to be paid for by the square foot, does that help you in determining whether or not the square foot measurement was to be applied to furniture? As we said in the beginning, the first item in this schedule uses the term “lineal foot” with respect to wardrobes and bookcases. When a flat surface comes to be measured, as, for instance, painting and wainscoting and mural art decorations and the like, it might be the very character of the work would take the case out of the measurement by lineal foot and bring it within the measurement of square foot. But these are matters for you.] [24]</p> <p>[It is admitted that the totals of the bills do not show square feet, but that the defendant Sanderson accounts for by saying that he reduced the bills and that then afterwards the reduced amount was distributed to the various articles, apportioned to the various articles, in the bills. In that way he accounts for the fact that the bills do not show, so far as the measurements set opposite the articles are concerned, whether these measurements were reached by the application of the square foot or lineal foot or any other measurement.] [25]</p> <p>[Therefore we say you are to look into the question whether Sanderson, the contractor, knew this bill to be false and presented it intending to cheat and defraud the commonwealth.</p> <p>In considering that question, you will again refer to the schedule of 1898 and 1899, to which we have already called your attention, where he, Sanderson, supplied the state with furniture under a schedule which called for it by the term “per foot ” and furnished it at the lineal foot. What reason had he, if any, for thinking that “per foot” in the present schedule meant anything different from the term “ per foot ” in the schedule of 1898 and 1899? Had he any reason to believe that the term “per foot” in the present schedule meant square foot, when it meant and he so treated it as meaning lineal foot in the contract of 1898 and 1899? You will consider that. Did he believe that the honest interpretation of the term “per foot” put upon item 24 in the Abbey contract and mentioned in the letter of Huston to him with respect to wainscoting and painting, did he honestly believe, that that measurement applied to furniture? If he knew the amount or price of the furniture which would be reached by making a calculation by the square foot as compared with its actual market value, was exceedingly great, was there anything in that to throw light upon the question whether he honestly believed that the term “per foot” meant square foot in this contract? These are questions which you are to consider.] [26]</p> <p>[Therefore, we say you are to look into the question whether Sanderson, the contractor, knew this bill to be false and presented it intending to cheat and defraud the commonwealth.</p> <p>In considering that question, you will again refer to the schedule of 1898 and 1899, to which we have already called your attention, where he, Sanderson, supplied the state with furniture under a schedule which called for it by the term “per foot” and furnished it at the lineal foot. What reason had he, if any, for thinking that “per foot” in the present schedule meant anything different from the term “ per foot ” in the schedule of 1898 and 1899? Had he any reason to believe that the term “per foot” in the present schedule meant square foot, when it meant and he so treated it as meaning lineal foot in the contract of 1898 and 1899? You will consider that. Did he believe that the honest interpretation of the term “per foot” put upon item 24 in the Abbey contract and mentioned in the letter of Huston to him with respect to wainscoting and painting, did he honestly believe, that that measurement applied to furniture?] [28]</p> <p>[If he knew the amount or price of the furniture which would be reached by making a calculation by the square foot as compared with its actual market value, was exceedingly great, was there anything in that to throw light upon the question whether he honestly believed that the term “per foot” meant square feet in this contract? Those are questions which you are to consider.] [29]</p> <p>[As to the question of the honesty of his belief as to item numbers in the bill; in that connection you will consider also if you find it to be a fact upon examining this bill and the five or six other bills that have been offered in evidence, if you find it to be a fact, the lack of uniformity in charging the articles furnishecl in this bill under the same item. You will examine the other bills and see whether the same articles in the one bill — in the present bill — and in the other bills are charged also under the same item. So far as we recall, but it is a matter entirely for you, in some of the previous bills the designed sofas are billed under item 25. You will look at it. If he honestly believed that the sofas were properly billed in the bill set forth in this indictment under item 22, why did he bill sofas in the other bills under item 25, which calls specifically for specially designed sofas and so in respect to the other articles of furniture? How far does that throw light upon the honesty of his belief that he was charging in this bill under the right item number.] [30]</p> <p>[You will observe, gentlemen of the jury, that there are five persons charged in this indictment. Huston, Sanderson, Snyder, Mathues and Shumaker. Only four of these defendants are now on trial before you. Huston was granted what in law is called a severance; he is not on trial now before you, and you have no power to render a verdict against him, but it is your duty to consider his conduct in relation to the bill set forth in this indictment so as to determine whether or not any one or more of the defendants who are on trial were parties to the conspiracy with him, charged in this indictment. Did Huston know that this bill was false? If you find it to be false, did he know it was false? You will have to determine that question from the evidence. You will recall the evidence with respect to the preparation of the schedule — it is a matter entirely for you — that he prepared and furnished the special schedule items from 21 to 41. Having furnished these items and having prepared this schedule, did he know that this bill in question was false? You will find upon examining this bill and the papers attached to it, that Huston approved it. As we recall it, it is marked “Approved, J. M. Huston.” The date of the bill is March 28, 1906. The testimony shows that it was not paid until some time about the 15th or the 12th of April, about the middle of April. You will recall the evidence. His approval appears upon it. Whatever that approval may mean, there was some dispute here as to whether that approval, or any of his approvals, in his formal certificates meant anything more than an approval of the furniture as being in conformity with the drawings and designs. But however that may be you will have to determine the significance of the approval in ink which he signed. It is admitted that the formal certificate attached to the bill, though it appears to be his, was not his, that it was filled in over his signature by either Lewis or his brother; that he, J. M. Huston, was in Europe at that time, but he returned some time in the beginning of April, and you will determine whether or not he approved the bill in question before it was paid; how far that act of his, how far his attitude in relation to the bill in question aided and contributed to its payment — its passage and its payment. If his act contributed to its (the bill’s) payment, then you will determine whether he knew it to be false, and whether he intended thereby to cheat and defraud the state. In this connection you will remember the testimony of Lewis. Lewis testified that neither Huston nor he — and they were associated together — had anything to do or were responsible for the measurements, or for the item numbers in the bills; that the measurements and the item numbers in the bills were suggested by the defendant Snyder and at his suggestion were taken from the footings of the bills rendered by the defendant Sanderson and put in the certificate.] [31]</p> <p>Verdict of guilty, upon which the court sentenced the defendant to pay a fine of $500, the costs of prosecution and to undergo imprisonment in the pentitentiary by separate or solitary confinement at labor for two/years.</p> <p>Errors assigned among others were (1-31) above instructions, quoting them; (34, 35, 37, 38, 45, 52) rulings on evidence, quoting the bill of exceptions.</p>

<p>Criminal law — Conspiracy—Public officers — Auditor general — State contract.</p> <p>1. When two or more persons pursue by their acts the same object, often by the same means, one performing one part of an act, the other another part of the same act, with a view to complete it, and with a view to attaining the object which they are pursuing, the acts of each must necessarily be proved separately, and where there is a charge of conspiracy the acts of each, with regard to the subject-matter of the charge, are always evidence against that particular defendant.</p> <p>2. On the trial of an indictment against a contractor, an architect, the auditor general and two other state officers, for conspiracy, in a matter of a contract for supplying furniture for the State Capitol, the commonwealth may offer evidence as against the auditor general that the latter had drawn particular warrants for the contractor before the architect had furnished any certificates and had taken such warrants to the office of the architect and had procured certificates from him for amounts corresponding to the warrants; and this is the case although the architect had secured a severance and was not on trial with the other defendants.</p> <p>3. In such a case the commonwealth may also show that the architect had signed certificates in blank which could be used by the defendants while he was absent in Europe.</p> <p>4. On the trial of such an indictment where the auditor general contends all through the trial that he as a member of the board of commissioners of public grounds and buildings, and, also, as auditor general, relied upon the certificate of the architect as to the correctness of the bills rendered by the contractor for furniture supplied, evidence is admissible to show the manner in which the auditor general had dealt with the certificates of the architect, had directed the change in the form thereof, and how he had dealt with the architect in reference to such certificates. All such evidence is for the jury to determine whether the defendant was acting in good faith or not.</p> <p>5. On the trial of such indictment where it appears that one of the items in a schedule of the contract, is drawn in terms so general that if it stood alone it might be held to cover almost anything used in the furnishing of the building, and pther items provide for “designed sofas, seating,” and “designed special desks and tables,” at a lower price, evidence is admissible against the auditor general to show that a certain invoice for desks and tables had been certified, settled, and paid at the higher amount specified in the general item, while in previous invoices sofas and tables had been charged for at the lower amounts specified in the particular items. A book prepared under the direction of the auditor general, and kept in his office, is properly admitted in evidence, where entries in it show the price of sofas and tables fixed at the higher amounts specified in the general item.</p> <p>6. Where the auditor general and the state treasurer as members of the board of compaissioners of public grounds and buildings adopted a resolution, directing the auditor general to make payments upon the furnishing contract upon certificates of the architect, and thereafter payment of bills was made without the approval of the board of commissioners, and without any resolution authorizing such payment, evidence is admissible showing the amount of bills rendered by the contractor immediately prior to the date of the resolution and paid immediately after without the authority of the board of commissioners.</p> <p>7. In accordance with a resolution of the board of commissioners passed at the instance of the governor, a state official was instructed to try to induce the contractor to lower his bill. Such official testified that when he submitted the matter to the contractor the latter said: “I don’t see why they should require me to cut down my bill, because I have got to put up a big wad for other people.” This evidence was offered against the contractor alone, and against him only was it admitted, the trial judge warning the jury that it was received only as it affected the contractor. Held, that the auditor general had no ground to complain of the admission of the testimony.</p> <p>8. On the trial of such an indictment there is no error in refusing to permit the governor to state what the architect was “employed to do,” inasmuch as the architect’s employment was all in writing, and there was no offer to show any other contract, or that anything had been omitted by mistake from the written contract, or that there had been a parol contemporaneous contract which modified the written contract. The answer to the question would have been merely the governor’s interpretation of the meaning of the written contract.</p> <p>9. On the trial for such a conspiracy where it is shown that the contractor’s charges for furniture were extortionate and unjust, and at rates not authorized by the contract, the market value of the furniture may be shown as against the contractor alone, and if the jury is carefully instructed as to the bearing of such evidence, the auditor general cannot complain of its admission as being injurious to himself.</p> <p>10. Where the acts of parties show that they are evidently acting in concert in pursuance of a common design and for the accomplishment of a common purpose, the jury may be permitted to infer that such concerted action is the result of an agreement between the parties so acting.</p>

<p>Appeal, No. 14, March T., 1909, by defendant, from judgment of Q. S. Dauphin Co., Sept. T., 1907, No. 239, on verdict of guilty in case of Commonwealth v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.</p>

<p>Appeal, No. 15, March T., 1909, by defendant, from judgment of Q. S. Dauphin Co., Sept. T., 1907, No. 239, on verdict of guilty in case of Commonwealth v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.</p>

<p>Wills — Conversion—Power of sale — Blending real and personal property.</p> <p>1. The presumption of law is against the fiction of conversion but this presumption is repelled (a) where there is a positive direction to sell, or (b) where a sale is necessary to carry out the provisions of the will, or (c) where the testator has so blended his real and personal property as to unmistakably show an intention to raise a fund out of both real and personal estate which he bequeaths as money. In the first case conversion results from the direct command of the testator. In the other two cases it is implied from the intention of the testator.</p> <p>2. Where a testator authorizes and empowers his executors to sell and execute deeds for real estate and to sell personal property, and directs the proceeds of his real and personal property to be reinvested, and that the residue of the estate shall be distributed, one-half to a nephew, and the other half to a charitable trust, the testator will be deemed to have converted into personalty a city lot of which he died seized. '</p> <p>Taxation — Collateral inheritance tax — Nonresident—Conversion—Real estate.</p> <p>3. Where the will of a nonresident converts real estate situated in Pennsylvania, into personal property, such real estate is not subject to a Pennsylvania collateral tax.</p>

<p>Appeal, No. 3, April T., 1909, by defendant, from judgment of C. P. Warren Co., Dec. T., 1906, No. 52, on verdict for plaintiff in case of Anthony Muntz v. Clarence W. Whitcomb.</p> <p>Ejectment for thirty-eight acres of land in Corydon township. Before Lindsey, P. J.</p> <p>At the trial it appeared that the defendant, Clarence W. Whitcomb, on June 16,1902, executed and delivered a deed for the land in question, to the plaintiff, Anthony Muntz. Whit-comb had an interest in the land under a deed dated January 21, 1889, from Charles Whitcomb and wife, his parents, to himself. Defendant’s mother survived her husband and died on November 23, 1906.</p> <p>Mr. Ball: Counsel for plaintiff offers in evidence the deed, together with the record thereof, from Charles Whitcomb and Laura J. Whitcomb, to Clarence W. Whitcomb, bearing date January 21, 1889, acknowledged January 21, 1889, consideration recited $1,500. Recorded November 29, 1892.</p> <p>Mr. Arird: What is the purpose?</p> <p>Mr. Ball: Offered for the purpose of showing title in the plaintiff and that the deed is from the common source of title.</p> <p>Objected to for the purpose stated and objected to as incompetent and irrelevant, and objected to as showing title in the plaintiff. [1]</p> <p>Mr. Ball: Counsel for plaintiff also offers in evidence a deed, and the record thereof, from Clarence W. Whitcomb to Anthony Muntz, bearing date June 16,1902, acknowledged the same day, consideration recited $1,500, recorded the same day, in deed book 89, p. 795.</p> <p>Mr. Arird: We ask the purpose.</p> <p>Mr. Ball: Offered as an instrument in the line of title, for the purpose of showing title in the plaintiff.</p> <p>Objected to as incompetent and irrelevant.</p> <p>The Court: Objection overruled for the present and exception sealed for defendant. [2]</p> <p>Mr. Arird: We offer to show by this witness and others, the declarations and acts of the grantee at the time of the execution of the deed and before the execution of the deed from Clarence W. Whitcomb to Anthony Muntz, tending to show misrepresentations and fraud by the grantee in procuring the execution of the deed. To be followed with proof that prior to the execution of the deed that Anthony Muntz stated to the defendant that he would pay not only the consideration mentioned in the deed, but he would pay the excess value mentioned in the deed of about $1,200. Further, that he would pay a judgment entered in the court of common pleas of Warren county, No. 211, December Term, 1900, wherein Anthony Muntz was plaintiff, and Clarence W. Whitcomb was defendant, for the sum of $116.48, and that he would pay other indebtedness of Clarence W. Whitcomb, and that since the execution and delivery of the deed he has neglected and refused to pay these and that Clarence Whitcomb, the witness and defendant, would not have executed the deed if it had not been for the acts and declarations made by Anthony Muntz to the defendant. This for the purpose of showing fraud on the part of the grantee.</p> <p>And further to be followed by evidence showing thp value of the property transferred was largely in excess of the value mentioned in the deed.</p> <p>Objected to for the reason that the offer does not show anything that constitutes fraud and as incompetent and irrelevant.</p> <p>The Court: Objection sustained and exception sealed for defendant. [3]</p> <p>Mr. Arird: We propose to show the instrument in writing, offered by the plaintiff, was not delivered to Clarence W. Whit-comb, but was found after the death of Charles Whitcomb, his father. This for the purpose of showing that the title was not in the defendant but simply the right of possession as trustee in trust for others.</p> <p>Objected to as incompetent, the offer not showing that Anthony Muntz, the grantor in the deed, knew or was informed at the time of his purchase of the alleged nondelivery of the deed from Charles Whitcomb and Laura J. Whitcomb to Clarence W. Whitcomb, and for the reason that the defendant is estopped from such showing by the recital in the deed, and generally as incompetent and irrelevant.</p> <p>The Court: Objection sustained and exception sealed for defendant.</p> <p>Mr. Arird: I will make the same proposition with the addition that Anthony Muntz, the plaintiff, knew that the deed was not delivered at the time of Charles Whitcomb's death. For the purpose of showing that this defendant simply had a right of possession as trustee in trust for others. [4]</p> <p>Plaintiff presented these points:</p> <p>1. The rule in Shelley’s case applies to the deed from Charles Whitcomb and Laura J. Whitcomb to Clarence W. Whitcomb, and said Clarence W. Whitcomb took a title under said deed in fee simple to the lands described therein, subject to the life estates of the grantors, said Charles Whitcomb and Laura J. Whitcomb, reserved to them in said deed. Ansiver: This point is affirmed. [5]</p> <p>2. Under all the evidence in the case the verdict of the jury must be for the plaintiff for the land described in the writ. Answer: This point is affirmed. We therefore instruct you, gentlemen, that under the facts and the law in the case your verdict should be rendered for the plaintiff. There is no question of fact for you to pass upon and you therefore can render your verdict in your seats, and the prothonotary will take your verdict for the plaintiff. [6]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5, 6) above instructions.</p>

<p>Interpleader — Petitioner for issue — IndeperuLent liability.</p> <p>1. The petitioner for an interpleader and an issue thereon must be free from any independent liability to either of the parties claiming the fund. If he has expressly acknowledged the title and right of one of them and agreed to hold the property for him, he is not an indifferent stakeholder.</p> <p>2. In an action upon a written contract it appeared that the plaintiff was the vendee of certain real estate, and that the defendants were the agents of the vendors for the management of real estate. On the real estate sold there was a municipal lien which could not be satisfied. The plaintiff, the vendors and the defendants entered into the contract in suit by which the vendors bound themselves to pay the lien in question when it became possible to pay it. It was also agreed that the defendants should hold funds of the vendors to satisfy the lien, and that when it became payable the defendants were forthwith to apply so much of the funds of the vendors in their hands as might be necessary to fully pay and satisfy the lien. The agreement was under seal. After the lien became due and payable the vendors notified the defendants that they had a counterclaim against the plaintiff growing out of a transaction in regard to another piece of real estate. The defendants applied for an interpleader which was refused, filed a demurrer which was overruled, and a judgment was entered against them for want of a sufficient affidavit of defense. Held, (1) that the application for the interpleader was properly refused, as there was a direct obligation by the defendants to pay the plaintiff if the lien was not satisfied; (2) that there was sufficient consideration to support the agreement as the plaintiff took the title relying upon the promise of the defendants to satisfy the lien; (3) that the set up of the counterclaim of the vendors in the affidavit of defense was insufficient to prevent judgment against the defendants.</p>

<p>Mines and mining — Deposit of culm — Pollution of stream — Waters.</p> <p>1. The proprietor of a mining operation has no right to discharge culm and other refuse of the mine into a stream or to leave it where it could be carried by ordinary floods onto the land of other persons. If he does so dispose of it he renders himself liable for any damage resulting therefrom to such owner.</p> <p>2. In an action to recover such damages where there is evidence that the culm in very large quantities was deposited on plaintiff’s land from the defendant’s mine, the plaintiff’s case is for the jury, although there may be evidence that culm from the mines of other owners was also deposited upon plaintiff’s land. In such a case it is for the jury to determine to what extent the culm deposited by the defendant in the stream, damaged the plaintiff’s land.</p>

<p>Appeal, No. 175, April T., 1909, by-defendant, from judgment of Q. S. Washington Co., Feb. T., 1908, No. 18, on verdict of guilty in case of Commonwealth v. William L. Lenhart.</p> <p>Indictment for conspiracy to defraud a bank. Before Taylor, J.</p> <p>At the trial it appeared that the defendants were O. F. Piper, cashier of the People's Bank of California, Pa., and W. L. Len-hart, one of the depositors of the bank.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The commonwealth made the following offer:</p> <p>Commonwealth offers to have exhibits “A-l” and “B-l” now shown witness identified by him, and have him explain where they were found, to whose order they are made payable and how indorsed and the amounts that they represent; to be followed by evidence that the person whose name is indorsed thereon received no money thereupon, that the money was paid to W. L. Lenhart, and that they do not appear on the books of the bank. This for the purpose of showing a corrupt understanding existing between W. L. Lenhart and O. F. Piper by reason of which his transactions with the bank were not to appear upon the books of the bank; for the further purpose of showing that in his transactions with the bank he used the name of M. L. Burd and the other persons in order that the magnitude of his transactions with the bank might not be known to the board of directors.</p> <p>The evidence is objected to, first, for the reason that there is no proof nor offer to prove that O. F. Piper did not receive the full amount of the face value of these checks at the time the checks were issued, and no proof or offer to prove that they were issued at the request of the defendant, W. L. Lenhart; and third, there is no proof nor offer to prove that the People’s Bank of California was defrauded out of a single penny on account of either of these checks; and generally as irrelevant and incompetent.</p> <p>The Court: Objection overruled, offer admitted and bill sealed for defendant. [19] Answer: “A-l,” cashier’s check dated May 31, 1907, $2,000. “B-l,” cashier’s check dated May 22, 1907, $2,000.</p> <p>“ Q. Mr. McClain, do you have the total or aggregate amount of the cashier’s checks made payable to M. L. Burd included in the exhibits you have read which did not appear upon the books of the bank? A. There are seventy-six cashier’s checks issued, but some of them arc payable to others beside M. L. Burd; I don’t have the total separated.”</p> <p>The commonwealth offers to prove by the witness on the stand that by a falsification of the books of the bank $1,345 was taken from the account of the East Pike Run school district, and of this amount a cashier’s check for $800 was given to W. L. Lenhart and his personal account credited with $545, making up the amount of the falsification of the East Pike Run school district’s account. This for the purpose of showing a conspiracy between O. F. Piper and W. L. Lenhart by virtue of which Lenhart received the proceeds resulting from the .falsification of the books.</p> <p>The evidence is objected to on behalf of the defendant for the reason that there is no proof nor offer to prove that W. L. Lenhart ever had any knowledge that any money obtained by him from the People’s Bank of California was taken from the account of the East Pike Run school district; second, for the reason that there is no evidence so far introduced which even tends to show a conspiracy between W. L. Lenhart and O. F. Piper to defraud the People’s Bank out of any money whatever; third, for the reason that no notice of this item was furnished to the defendant by the commonwealth in its bill of particulars or supplemental bill of particulars; and fourth, as generally irrelevant and incompetent.</p> <p>The district attorney states it is referred to in the indictment which was marked as a bill of particulars.</p> <p>The Court: Do I understand counsel to say that this is included in one of the counts of the indictment against Piper?</p> <p>Mr. Underwood: In the large indictment.</p> <p>The Court: And which was marked for bill of particulars?</p> <p>Mr. Underwood: For bill of particulars.</p> <p>The Court: Objection overruled, offer admitted and bill sealed for defendant.</p> <p>Mr Irwin: We would like to have that pointed out in the bill of particulars, your honor.</p> <p>Mr. Acheson: It is not mentioned specifically in the bill of particulars.</p> <p>Mr. Underwood: It is mentioned in the large indictment as one of the falsifications of the books, and that large indictment is marked for bill of particulars.</p> <p>Mr. Irwin: There is no charge of falsification of the books against W. L. Lenhart now on trial.</p> <p>Mr. Acheson: But the large indictment against O. F. Piper containing about 200 counts is marked in the tenth paragraph or in one of the paragraphs of this bill of particulars, as a part of the bill of particulars, and that indictment charges the falsification of the books and false entries made by O. E. Piper.</p> <p>Mr. Underwood: The twenty-fifth and twenty-sixth counts.</p> <p>(Show same to defendant’s counsel.)</p> <p>Mr. Underwood: Under the tenth paragraph of the bill of particulars, the defendant, W. L. Lenhart, having been notified as follows: “That pursuant to and in accordance with the said false, fraudulent and malicious combination, conspiracy, confederation and agreement, the said O. F. Piper did unlawfully, fraudulently and falsely make the false entries and do the divers other false, fraudulent and illegal acts, things and transactions enumerated and mentioned in the bill of particulars furnished in the case of the Commonwealth against O. F. Piper at No. 109, February Term, referring to the first 190 counts in the indictment against the said O. F. Piper at the said number and term, which said unlawful and fraudulent transactions were done with the knowledge and consent and by the aid and counsel of the said William L. Lenhart, for the purpose of falsifying the records of the said People’s Bank of California, Pa., and concealing and covering up proof of the unlawful payment of large sums of money to him, the said William L. Lenhart, by the said O. F. Piper, cashier of said bank.” Now, there is notice to them that he is claimed to be a party to every one of those transactions, — it is proposed to prove by the witness on the stand that the $1,345 mentioned in the twenty-fifth and twenty-sixth counts of the indictment against O. F. Piper, made part of the bill of particulars by paragraph 10 of the bill of particulars furnished W. L. Lenhart, became the property of the said W. L. Lenhart by a credit to his individual account of $545 and the issuing of a draft for $800, the balance of the amount, to the said W. L. Lenhart. This for the purpose of showing a conspiracy between O. F. Piper and W. L. Lenhart to defraud the People’s Bank of California.</p> <p>The evidence is objected to first, for the reason that there is no proof nor offer to prove that the People’s Bank of California did not receive the said sum of $1,345 at the-time that Lenhart’s account was credited with $545 and that the $800 draft was issued, to him; second, there is no proof nor offer to prove that by means of the issuing to him of the $800 draft and the crediting of his account with $545 he, the said W. L. Lenhart, unlawfully obtained any money from the People’s Bank of California; and third, for the reason that the evidence is not embraced in the bill of particulars furnished; while said bill of particulars refers to and attempts to make part of it the indictment against O. F. Piper, the twenty-fifth and twenty-sixth counts of that indictment do not allege that any credit was to the account of W. L. Lenhart nor that any draft was passed to him, to cover up which the said alleged false entries were made; and generally as irrelevant and incompetent.</p> <p>The Court: Supposing they have shown that there was.an unlawful combination—</p> <p>Mr. Irwin: But they have not; and that is another objection we offer; and we submit there ought to be some evidence of that before this all goes before the jury, because if it goes into the jury box it is bound to make a lodgment there.</p> <p>The Court: They have shown that there is something over 600 checks, a lot of drafts and other things, — dealings between Piper and Lenhart, — that did not go on the bank books at all.</p> <p>Mr. Irwin: They have not shown that a single one of them was not paid.</p> <p>The Court: Can you say that the court'could not admit this testimony in view of what has already passed? The objection is overruled, the offer admitted and bill sealed for the defendant.</p> <p>Check marked exhibit “ E-3. ’ ’ Sheet from bank book marked exhibit “F-3.”</p> <p>Witness shown exhibits “T-2,” “E-3” and “F-3.”</p> <p>“ Q. Mr. McClain, the falsification in the column for individual deposits of $1,345 of date October 4, 1907, is on what book of the bank? A. That is on the general ledger. Q. And just explain what that falsification of the record was, the amount and from whose account taken? ”</p> <p>Offer asked for.</p> <p>The commonwealth offers to have the witness explain from the general ledger from whose individual account on the individual ledger the $1,345 was abstracted.</p> <p>Mr. Irwin: And that it was taken from the account of the East Pike Run school district?</p> <p>Mr. Underwood: I think that is what it will show.</p> <p>Mr. Irwin: Well, the offer ought to include that.</p> <p>The evidence is objected to first, as irrelevant.and incompetent; second, there is no proof or offer to prove that W. L. Lenhart had any knowledge of the alleged illegal transaction; and third, there is no notice to the defendant in the commonwealth’s. bill of particulars that that alleged false entry was made by transferring that amount from some other account in the bank; and generally as incompetent and irrelevant.</p> <p>The Court: Objection overruled and offer admitted and bill sealed for the defendant. It is substantially the same offer as before. [20]</p> <p>“ Q. And just explain what that falsification of the record was, the amount and from whose account taken? A. The amount was charged in the individual ledger on the sheet of the East Pike Run Township School, $1,345, and deducted from their balance. This entry is not dated but follows another entry dated August 13, 1907, that was the last part of the transaction. I am starting in wrong, I think. On November 8,1906, a draft on the People’s National Bank of Pittsburg, for $800, was issued to W. L. Lenhart. This draft was not put through the work nor deducted from our balance, — or the People’s Bank balance in Pittsburg. On November 9,1906, the account of W. L. Lenhart was credited $545 to make good an overdraft of $515.71. This did not come through the daybook or regular book of a bank, consequently the books were out of balance, the $800 on the eighth and the $545 on November 9, 1906. On March 7, this amount was taken from the general ledger by decreasing the account called individual deposits, March 7. This amount was again restored to individual deposits by increasing that account on October 3, $1,345, and at the same time offsetting that by increasing the time loans $1,345. I might say the final resting place of the deduction was in the account of the East Pike Run school district, as their account at the time of closing was short $1,345 from the amount they should have had. Q. What is that, Mr. Piper? A. That is a sheet from the individual ledger showing the account of the East Pike Run school district. Q. And what falsification do you find of that account and of what date? ”</p> <p>This evidence is objected to for the reason that there is no notice in the bill of particulars of any falsification of the account of the East Pike Run school district.</p> <p>The Court: Objection overruled and bill sealed for the defendant.</p> <p>“ A. It is a charge of $1,345 against the East Pike Run school district. Q. And that was a falsification, was it? A. It was. There was never no charge due them. Q. And what was done with that money taken from the account, that $1,345? ”</p> <p>(Witness shown exhibit “T-2” and also exhibit “Er3”.)</p> <p>" A. On November 8,1906,1 issued to W. L. Lenhart a draft on the People’s National Bank of Pittsburg for $800 on which he gave me a check for $800, and I was to hold the check up until he could tell me when to present it; the time never arrived on which he had money to meet it, or he never informed me of such a fact, and later I cashed some checks which made his account overdrawn, and I purported to give him a credit of $545 which I did on his individual account, and in May or June, or the time we straightened all this stuff up, among the notes he gave me was one for $1,345. Q. When he gave you that note for $1,345 did you explain to him why it was necessary? A. Yes, that was figured in; it was to cover the $800 check and $545 deposit or credit I had given him.” [21]</p> <p>Defendant presented these points:</p> <p>3. If the jury find that William L. Lenhart borrowed the money from the bank in good faith, with the intention on his part to repay it, the verdict should be for the defendant.</p> <p>Affirmed if the jury further find from all the evidence in the case that the money obtained by the said Lenhart from said bank through the cashier Piper, was procured by lawful methods on his part and that he had no knowledge, understanding or agreement previous to his procurement of it, or when he did procure the money of the cashier Piper’s furnishing it to him by the use of unlawful means withheld from the bank to its injury or the violation of the laws of the state banking department. [1]</p> <p>4. If the jury find that O. F. Piper, cashier, loaned the money to William L. Lenhart in good faith, with the intention and understanding on the part of Piper that it should be repaid, the verdict should be for the defendant.</p> <p>This point is affirmed if the jury further find from the evidence in the case that in the admitted dealings between the cashier Piper and the customer W. L. Lenhart they had not corruptly agreed together, or understood each other that the money the cashier furnished the customer, the said Lenhart, for which he applied was not furnished to the prejudice of the bank, or in violation of the banking laws. [2]</p> <p>6. Before the jury can convict the defendant they must be satisfied from the evidence, beyond a reasonable doubt, that at the time the defendant, W. L. Lenhart, obtained the money from O. F. Piper that O. F. Piper in furnishing that money to William L. Lenhart intended to cheat and defraud the bank, and that William L. Lenhart knew that O. F. Piper in furnishing that money to him intended to cheat and defraud the bank. And they must further find that when William L. Lenhart received that money he received it with the intention of defrauding the bank, and that O. F. Piper at the time knew that William L. Lenhart intended to defraud the bank.</p> <p>Before the jury can convict they must find from all the evidence in the case that there was either an agreement, or a course of dealing between the parties charged known to each other with the use of the bank’s money to do an unlawful thing or to do a lawful thing in an unlawful manner; with this statement the point is affirmed. [3]</p> <p>7. That the testimony of O. F. Piper, he being indicted as an accomplice and having plead guilty to the embezzlement of the funds of the bank and having falsified the books of the bank, should be received with caution by the jury.</p> <p>If an accomplice testifies truthfully, as you believe, you have the right to consider his testimony carefully. Affirmed. [4]</p> <p>2. That the supplying or writing of the name of M. L. Burd or H. C. Fox on checks made to their order, but belonging to William L. Lenhart, without any intention to defraud or injure the said M. L. Burd or H. C. Fox, they having no ownership or interest in the said check, where said checks were issued by O. F. Piper knowing that they were to the credit of W. L. Len-hart, and that M. L. Burd or H. C. Fox had no interest whatever in the funds, does not constitute forgery.</p> <p>Affirmed, but if the jury find from all the evidence in the case that the use of said names as admitted was agreed between Piper the cashier and W. L. Lenhart to be used for the purpose of preventing banks, including the People’s Bank of California, Pa., from knowing or learning the extent of Lenhart’s dealings with said bank or banks for the purpose and to the injury of the said People’s Bank of California, Pa., or in violation of the state banking department laws, it was an unlawful agreement and for a corrupt purpose. [5]</p> <p>The court charged in part as follows:</p> <p>[In other words, we will tell this jury, that if they find Lenhart and Piper, by an agreement expressed or implied, used the money of this bank and kept their transactions off the books, in secret pouches or places hidden from the directors, then that was an understanding and agreement between them that was a conspiracy, by an agreement to do an unlawful thing, and the offense, the gist of the offense of conspiracy, would then be shown in a corrupt combination between Lenhart and Piper.] [6]</p> <p>Verdict of guilty, upon which the defendant Lenhart was sentenced to pay a fine of $500 and undergo an imprisonment of two years.</p> <p>Errors assigned among others were (1-17) various instructions; (18) that the charge was inadequate; (19-21) rulings on evidence, quoting the bill of exceptions.</p>

<p>Malicious prosecution — Malice—Want of probable cause — Evidence— Case for jury.</p> <p>In an action to recover damages for malicious prosecution the case is for the jury where the evidence for the plaintiff although contradicted in its essentials by the evidence of the defendant, tends to show that the plaintiff was not guilty of the offense charged against him, that when he was brought before the magistrate by the constable who arrested him, no witnesses were called against him, and that he was discharged without a hearing.</p>

Appeal, No, 20, April T., 1909, by defendant, from judgment of C. P. Armstrong Co., June T., 1907, No. 25, on verdict for plaintiff in case of Jeff. Hill v. Freeport Waterworks Company. Trespass to recover damages for injuries to real estate. Be-Patton, P. J. The facts are stated in the opinion of the Superior Court. The court refused binding instructions for defendant. Verdict and judgment for plaintiff for $45.00. Defendant appealed.

<p>Executors and administrators — Appeals—Decree of distribution.</p> <p>1. An executor in his official character has no standing to maintain an appeal from a decree distributing the fund in his hands.</p> <p>Husband and wife — Marriage—Proof of marriage — Presumption— Widow’s exemption.</p> <p>2. Where a woman claiming the widow’s exemption from the estate of a decedent, had been formally married to the decedent, and swears that she has never been married to any other man, the fact that she had cohabited with another man, had been reputed his wife, and had borne an illegitimate child to him, raises no such conclusive presumption of her marriage to such man, as will invalidate her marriage with the decedent; and if it appears that she had maintained the family relation with the decedent until he became so ill that he had to be removed to a hospital, she will be entitled to her exemption.</p>

<p>Negligence — Natural gas company — Explosion of gas — Evidence—Contributory negligence — Case for fury.</p> <p>1. In an action against a natural gas company to recover damages for injuries arising from an explosion of gas in plaintiff’s cellar, the case is for the jury where there is evidence tending to show that the gas could only have come from one of defendant’s gas lines, and that it could have escaped from a break in such line.</p> <p>2. In such a case the plaintiff’s contributory negligence is also for the jury where the evidence shows that the plaintiff lighted a match in the cellar; that the service pipes in the cellar were in a good condition; that there was a large amount of cubic air therein; that there were five open windows, an open cellar door and an outside door full of cracks; that there was an open gaslight burning in the cellar a few feet from the point of explosion; and that plaintiff’s method of ascertaining the source of the leak was a proper one according to expert testimony.</p> <p>3. In such a case an employee of the defendant is not competent to express an opinion that it was impossible for gas to escape from defendant’s line into plaintiff’s cellar, where he gives no facts upon which such an opinion may be stated.</p>

<p>Appeal, No. 34, April T., 1908, by plaintiff, from judgment of C. P. Jefferson Co., Jan. T., 1904, No. 3, on verdict for defendants in case of Samuel B. Arthurs v. Annie L. Wilson et al.</p> <p>Trespass vi et armis to recover damages for an alleged illegal taking of lime from the property of the defendants. Before Reed, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) the instructions quoted in full in the opinion of the Superior Court.</p>

<p>Road law — Personal action against owner — Assessment—Act of April 4, 1907, P. L. 40.</p> <p>1. The Act of April 4, 1907, P. L. 40, providing “that hereafter all municipalities of the commonwealth of Pennsylvania may proceed for the recovery or collection of any municipal claim or claims whatsoever by lien or by an action of assumpsit,” has no retroactive effect, and does not apply to the cases in which a road improvement had been completed and benefits assessed prior to the enactment of that statute.</p> <p>2. A statute must always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature.</p> <p>3. The Act of April 4, 1907, P. L. 40, imposes upon the owner of property a personal liability to which he was not subject before, and therefore affects rights and not merely the remedy.</p>

<p>Appeal, No. 201, April T., 1909, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1908, No. 617, overruling demurrer to statement in case of Bafnesboro Borough v. H. G. Lampman, Jr.</p>

<p>Land law — Consentable line — Adverse possession — Estoppel.</p> <p>A consentable line may be established by parole, which will, under certain circumstances, bind the parties to an assent thereto. In order, however, to make such a line binding, it is necessary that there should be first, a dispute; second, the establishment of a line settling the dispute; third, the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith. If the parties to such consentable line take possession to the line and hold such possession for twenty-one years, the title becomes complete by adverse possession. Where such a line has been clearly established and the parties on each side take possession or surrender possession already held up to that line it becomes binding under the application of the doctrine of estoppel.</p>

<p>Contract — Sale of goods — Construction of contract — Discount.</p> <p>1. In an action to recover for goods sold and delivered, it appeared that plaintiff’s offer accepted by the defendant was as follows: “We hereby agree to furnish and ship to Philadelphia 18,000 sq. ft. of 2" Hexagon white floor tile. Price twenty-two (.22) cents sq. ft. packages thirty cents (.30) f. o. b. Trenton; 15%, 5% for cash 30 days, with 10 days’ grace "allowed for bill to be audited, passed and paid by the city authorities of Phila.” Held, that the fifteen per cent referred to was a discount from the gross price, and not merely a part of the discount for cash.</p> <p>2. The meaning of the offer was, price twenty-two cents square foot, less fifteen per cent; five per cent of the net bill off for cash thirty days, with ten days’ grace, etc.</p>

<p>Appeal, No. 51, April T., 1909, by-defendants, from judgment of C. P. Westmoreland Co., May T., 1907, No. 337, on verdict for plaintiffs in case of Blose & Mellon, a copartnership, v. Ohio German Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Doty, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendants presented this point:</p> <p>-1. Under the law and all the evidence the verdict should be for the defendants. Answer: We cannot affirm this proposition because we conceive that the case necessarily turns on the question of fact which has been submitted to you for your determination. [1]</p> <p>The court charged in part as follows:</p> <p>[It is not provided that the fires in the boilers should be extinguished and, therefore, the mere fact that these remained, or that lard remained in the kettle or smoke in the smokehouse, would not necessarily make this policy void, because these matters must have, been in contemplation of the parties at the' time.] [2]</p> <p>[All that is provided is that the plant shall not operate and we understand by that is meant that they shall not go on carrying out the purpose of the establishment in the manufacturing of sausage, slaughtering live stock and making and curing ham or manufacturing lard.] [3]</p> <p>[We do not regard the mere fact that the electric light plant ran as within the strict terms of this provision; nor do we regard as invalidating the policy the fact that the cold storage plant was in operation, because it being a packing house for the preparation of meat products for the market it must necessarily have been in contemplation of the parties at that time that the usual means employed for the preservation of such products would be continued during the whole period, therefore the parties simply provided that they should cease manufacturing after ten o’clock at night.] [4]</p> <p>Verdict and judgment for plaintiffs for $1,000. Defendants appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 23, April T., 1909, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1909, No. 23, on verdict for plaintiff in case of Justus Volk v. A. K. Beatty.</p> <p>Assumpsit to recover amount claimed to be due on a building contract. Before O’Connor, P. J.</p> <p>At the trial the plaintiff alleged as a defense that there had been a contemporaneous parol agreement that the house should be finished before cold weather, and that it had not been so finished.</p> <p>The defendant presented this point:</p> <p>1. That if the jury shall find from the evidence that the plaintiff had contracted to finish the house by the time cold weather came in the fall of 1904, ready for occupancy by defendant’s family, and that he was to do the work and use the material called for in the specifications; and if they should further find that plaintiff did not prosecute the work with reasonable diligence and did not do the work in the manner provided for and used defective and inferior material, against the protests of the defendant, and when the time came that the house was to be ready for occupancy it was barely half completed, defendant had a right to rescind and have the work completed by other parties. Answer: We think we have fully covered the point in our general charge and, because of the assumption of certain facts in it which are for the jury, we feel it is not proper to affirm it as drawn.</p> <p>Verdict and judgment for plaintiff for $1,023.30.</p> <p>On motion for a new trial O’Connor, P. J., filed the following opinion:</p> <p>Upon the trial of this cause defendant asserted that he had discovered then for the first time that the specifications filed with the plaintiff’s statement as part of the contract upon which plaintiff was seeking to recover were substituted, and were not the specifications upon which the plaintiff bid and which were made a part of the contract between the parties. It was further urged on behalf of the defendant that he was unable to secure the attendance of one Clark as a witness, for the reason that he was then beyond the court’s jurisdiction. The trial of the cause proceeded to verdict, which was in favor of plaintiff, but counsel for defendant was assured by the court that if it were made to appear that deception had been practiced by plaintiff, as asserted, or that defendant had been hampered upon the trial in obtaining justice by reason of the absence of a material witness, the court could and would grant a new trial.</p> <p>A motion for a new trial was entered and by virtue of a rule issued out of this court the evidence of the absent witness Clark was taken. From his testimony it is clear he first modified the specifications drawn by Volk, the plaintiff, before bidding and assumed that Mr. Volk bid upon the specifications as changed by the witness, but he states in positive terms that he does not know that Mr. Volk, the plaintiff, bid upon these specifications, thus leaving Mr. Volk, who swore he never saw the changes, uncontradicted in this particular. The testimony of Clark in other particulars does not seem so strongly favorable to defendant as that of witnesses upon the trial and relates to facts which were submitted to the jury so sufficiently favorable to defendant as to leave him without grounds for complaint in this behalf.</p> <p>Upon argument of the motion for a new trial counsel for plaintiff suggested that he was not averse to an order sustaining the motion, for the stated reason that he expected to be able to secure a verdict more favorable to his client in such an event. This statement, of itself, would not be sufficient warrant to sustain the motion. In the absence of an express agreement there should exist some sufficient grounds to sustain the court’s decision,' but in the case at bar we can discover no such grounds underlying defendant’s contention. In fact, no legal ground whatever for granting a new trial in this cause presents itself, or has been presented, and we are constrained, therefore, to enter the following order:</p> <p>And now, May 9, 1908, motion for new trial is overruled and judgment is directed to be entered against the defendant and in favor of the plaintiff upon the verdict for the amount thereof, with interest and costs, according to the prevailing practice.</p> <p>Errors assigned were (1) answer to above point, quoting it; (2) in not sustaining the motion of defendant’s counsel to continue the cause on the ground that the specifications as filed are not the true specifications, but that the true or correct specifications are now in court, specifying that genuine A-No. 1 Bangor slate, sheathing, and building paper were to be used. Answer: We will proceed with the case as we have it and let this matter be taken up on a motion for a new trial if there is a verdict for the plaintiff; (3) in not sustaining defendant’s motion for a new trial.</p>

<p>Landlord and tenant — Execution—Goods of stranger.</p> <p>1. A landlord who enters judgment by virtue of a warrant of attorney contained in a lease cannot, under a fieri facias on such judgment, levy upon and sell the goods of a stranger found on the demised premises.</p> <p>Practice, C. P. — Raising question of law — Motion for judgment n. o. v.— Appeals.</p> <p>2. A legal principle not cited in the argument at the trial against a point for binding directions in favor of the defendant, may, all the same, be brought forward in argument in opposition to a motion for judgment in defendant’s favor non obstante veredicto. To hold otherwise would be contrary to the spirit as well as the letter of the Act of April 22, 1905, P. L. 286, one purpose of which was to give opportunity for more deliberate review and consideration of the facts and the law applicable to them than ordinarily can be had on the trial.</p>

Appeal, No. 187, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1908, No. 127, reversing summary conviction by a justice of the peace in case of Thomas Walker v. Commonwealth. Certiorari to judgment of justice of the peace.

<p>Trespass — Trespass quare clausum fregit — Landlord and tenant — Telephone companies.</p> <p>1. The owner of real estate which is in exclusive possession of a tenant, may maintain an action of trespass against a telephone company for an ■injury to his reversion such as the destruction of trees.</p> <p>2. In an action of trespass against a telephone company it cannot be alleged as a defense merely at the suggestion of counsel and without filing any plea of abatement, that subsequent to the institution of the suit the defendant company had merged in another company thereby terminating its corporate existence.</p>

<p>Trespass — Parties—Joint action — Tort.</p> <p>Where five persons own undivided interests in real estate at a time when a trespass is committed thereon, and subsequently three of the persons convey their interests to one of the other two owners, and thereafter a second trespass is committed upon the land, the five original owners cannot be joined as parties plaintiff in an action to recover damages for the second trespass.</p>