Volume 41 — Pennsylvania Superior Court Reports

<p>Appeal, No. 125, April T., 1909, by defendants, from judgment of C. P. No. 4, Allegheny Co., No. 420, Fourth Term, 1907, on verdict for defendants in case of Savings Deposit Bank Company v. J. H. Reynier, Carl W. Wiley, J. J. Sweeney, J. J. Boyce and H. W. Joynes.</p> <p>Trespass to recover the value of a carload of potatoes and hay.</p> <p>Cohen, J., charged as follows:</p> <p>As you have heard, this is a suit brought by the Savings Deposit Bank Company against Reynier and others to recover the value of certain potatoes and hay shipped by a man named O. J. Kean to Mr. Joynes, for which Kean received a bill of lading, which, you are advised by the testimony, he transferred to the plaintiff bank.</p> <p>Reynier and Wiley brought this attachment, and if you can find from the evidence that they knew or should have known, from circumstances in their possession, that the title to this property was not to have passed until the amount of the purchase money was paid, then the defendants are liable to the plaintiffs for the amount of 1191.79.</p> <p>I say to you as a matter of law, that the constable had no power and no authority, after he had attached these goods, to sell them, for the very act of assembly under which these proceedings were had before the alderman, says that the nonresident whose goods are attached here shall have thirty days within which to defend the judgment that has been rendered against him, and that a scire facias (that is, a new proceeding after the original proceeding) shall be issued and that the defendant, besides this remedy, may take an appeal to the court of common pleas. And there was an appeal taken in this case. So that, if the goods were sold in manner and form as indicated by the evidence I say to you they were sold without legal authority; that the requirements of the act of assembly had not yet been sufficiently complied with to justify such, a sale and. that if Mr. Joynes, who took possession of these goods and sold them, knew that Reynier and Wiley had issued this attachment — if he knew, and it is for you from all the evidence to say whether he did — if he knew that before possession passed that the goods had to be paid for; if he had received that notice, he had no legal right to sell those goods.</p> <p>As to Alderman Sweeney in this case. The moment the goods had been attached under and by virtue of his writ of attachment issued, he should have taken no further proceedings except by the issuing of a scire facias, as required by the act of assembly. Nevertheless, I am of opinion that what the alderman did he'did within his jurisdiction as an-aider-man, he did within the line of his duties confided to him by the plaintiffs in that suit, and that, therefore, having received no notice such as was required by the act of assembly of 1772 which has been cited to you, that therefore this action cannot be maintained as against Alderman Sweeney, but that you will consider the case as against all the other defendants and return a verdict, if you find that there was an illegal combination; that each one had done an illegal act and that they had done it conjointly for the purpose of committing a fraud against this bank, — if you find such to be the case, gentlemen, you may find a verdict as a matter of law against all the other defendants, naming them, except Alderman Sweeney.</p> <p>The constable had no right to sell these goods whatsoever in the way in which he sold them. If the goods were perishable — which fact is for you to determine from all the evidence — even though they were, he should have gone into the court of common pleas with a petition stating the case and asking permission to sell the goods. It was his duty to hold these goods for the period of time designated by the act of assembly. He did not do it. Therefore, gentlemen, if you find the facts to be as indicated by me against the other defendants you will render a verdict against them for the total proceeds of the sale of the potatoes and hay, less the charges, to wit, $191.</p> <p>If you-render a judgment against the defendants you must designate them. If you find in favor of the defendants you simply say you find in favor of the defendants.</p> <p>The case is with you.</p> <p>Upon request of counsel for defendants an exception was noted and bill sealed.</p> <p>The jury having asked for further instructions, the court delivered the following additional charge:</p> <p>Gentlemen of the jury: One of the defendants, being the alderman, Sweeney, is not liable in this case because, although he did not follow the legal requirements, nevertheless he cannot be held liable unless he received a notice before suit was brought against him under the act of assembly in 1772, therefore that defendant is out of the question.</p> <p>The other two defendants, who are the plaintiffs in the attachment proceedings before the alderman, Reynier and Wiley, are liable individually, because it appears from the evidence in this case that there is nothing recorded, as the law requires, showing that they are a corporation. Therefore, they are liable individually, these two men, if they had knowledge that O. J. Kean had no title, and if they had no such knowledge they are liable, inasmuch as the goods attached and sold, for which they received the proceeds, were not legally sold because no scire facias was issued and no time was given to the defendants in the writ to appear before the alderman and offer his defense. Therefore Reynier and Wiley are liable individually because they are not incorporated so far as we are concerned, if they had knowledge that this man in Ohio had no title, that he had already passed his title to the bank.. And further, if they had no such knowledge, I say to you, they are liable inasmuch as the goods attached and sold and for which they received the proceeds were not legally sold because no scire facias was issued. I will repeat this so you will understand it.</p> <p>The constable, Boyce, is liable. He had no right to sell these goods, under the provisions of the act of assembly on which this attachment is grounded. He had a right to keep them until the defendant had failed either to take an appeal or to enjoy the benefits given, to him under that act of assembly.</p> <p>As to Mr. Joynes: he is liable if he knew that the goods had been transferred from Kean to the bank. Not other' wise, because he did not enjoy the benefits of that sale. He had no right to sell the goods as a commission man and to take a commission for selling them, So that I have described the relation of each particular defendant in this case to the plaintiff; but if you should find further, from any evidence submitted to you, that there was a design or an undertaking or conspiracy between the whole lot of them to do that which the law prohibited, or to do a thing in an unlawful manner by which the plaintiff would have been injured, then, gentlemen, they are all liable, and even Mr. Sweeney, in that case, whom I have told you is not liable for reasons- given, would be liable if the whole gang of them, or rather, if all the defendants had agreed to co-operate together to do an ununlawful act to the injury of this plaintiff.</p> <p>Verdict and judgment against J. H. Reynier, Carl W. Wiley and J. J. Boyer for $202. Said defendant appealed.</p>

<p>Mines and mining — Coal—Sale of coal in place — Construction of instrument — Abandonment.</p> <p>1. The technical words “grant, bargain and sell" or their equivalent are not necessary to pass the title to coal in place if from language of the whole instrument the intention to sell is apparent.</p> <p>2. A lease or demise of all the coal in a tract of land with a right to mine and take away the same is a sale of the coal in place.</p> <p>3. Whether the instrument be called a lease or deed all of its provisions must be taken into consideration to ascertain the intent of the parties. If from that consideration the intention of the parties is found to have been to make a sale, their contract will be so interpreted. And where this intention is clear the construction of the instrument is not affected by the fact that compensation is stipulated for a fixed price per ton or at a gross sum for the whole price, nor that the compensation is called rent or royalty.</p> <p>4. Wdiere the consideration for the agreement is to be determined by the output of the mine the law implies a covenant on the part of the grantee that he will prosecute the work with reasonable diligence, so that the grantor may receive the compensation which was in view when the agreement was made. That the grantor did not protect himself by a requirement for a minimum production from the mine does not change the character of the instrument.</p> <p>5. Abandonment as to a perfect title can only be affirmed on a state of facts sufficient to raise an estoppel or where possession has been acquired and held under a claim of title by limitation.</p> <p>6. Abandonment is ordinarily a question of intention. There must be an intention to abandon as well as an actual abandonment of property, and where the character of the transaction depends on the intent of the party it is competent for him to testify what his intention was.</p>

<p>Appeal, No. 218, Oct. T., 1908, by defendants, from judgment of C. P. Lehigh Co., April T., 1908, No. 76, on verdict for plaintiff in case of The Rotograph Company v. Hattie Shafer Cressman, executrix of J. Alfred Shafer, now or late trading as Shafer’s Book Store.</p> <p>Assumpsit for goods sold and delivered. Before Trexler, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $306.14. Defendants appealed.</p> <p>Errors assigned were (1, 2) the rulings on evidence, quoted in the opinion of the Superior Court, and (3) binding instructions for plaintiff.</p>

<p>Appeal, No. 46, April T., 1909, by defendant, from judgment of C. P. Butler Co., March T., 1908, No. 24, on verdict for plaintiff in case of James A. McMarlin v. Butler Borough.</p> <p>Trespass to recover damages for land taken in widening a street, and for change of grade of a sidewalk. Before Gal-breath, P. J.</p> <p>From the record it appeared that in July, 1906, the plaintiff and other property.owners filed the following petition:</p> <p>“The petition of the undersigned, being two-thirds of the owners of property representing two-thirds in number of feet of the properties fronting or abutting on Center avenue, from Standard avenue or the end of the street as now paved, to the borough line, a public street or thoroughfare of the borough of Butler, regularly laid out and opened, pray your honorable body to grade, curb with stone or other suitable material and pave with vitrified brick or other suitable material the said part of said street or thoroughfare, between the points above mentioned under the provisions of the act of assembly approved April 23, 1889, and assess the cost 'and expense thereof as provided by said act.</p> <p>“ And we waive any claim for damages done to our several properties, if any, by reason of said improvement.”</p> <p>In making the improvement the borough took a portion of the plaintiff’s lands and changed the grade of the sidewalk.</p> <p>Plaintiff presented this point:</p> <p>The release of damages relating to grading, paving and curbing Center avenue, signed by the plaintiff, only released any damages that might accrue to him for grading the cartway of the street, it has no effect as a release of damages for grading the sidewalk or for grading any part of the plaintiff’s property taken to widen the street, if any such were taken. Answer: That is affirmed. We have explained that to you, gentlemen, in the general charge. [1]</p> <p>Defendant presented these points:</p> <p>1. The plaintiff some time previous to April 16,1907, having signed and joined in a petition to the town council of the borough of Butler, praying that it proceed to grade, pave and curb Center avenue, fronting his property, in which petition was the following waiver: “And we waive any claim for damages done to our several properties, if any, by reason of said improvement,” is now estopped from claiming damage to his property by reason of the grading of said street in conformity to the grade established by the borough engineer and adopted by the town council and no damages can be allowed therefor by the jury. Answer: This point is affirmed so far as it relates to the roadway, the improvement of which was contemplated by the petition and ordinance for the grading, paving and curbing of the street, but as to the grading of the sidewalk and opening of the street beyond the original limits, if such were the case, the point is refused. [2]</p> <p>4. The plaintiff having testified that at the time he signed the petition to council praying that Center avenue be graded, paved and curbed, that he then considered and had knowledge of the fact that Center avenue extension, upon which his property is located, was of the width of fifty feet fronting his said property, but that he did not know the exact location of the said street on the ground, the only question to be determined by the jury in estimating whether or not any of the land of Mr. McMarlin was taken in grading the street, is to be determined by the location of Center avenue extension or Freeport turnpike on the ground fronting his property. Answer: The plaintiff having testified that a neighbor had told him about the time the petition for paving was being circulated that the street in question was a fifty-foot street, but there being no evidence that the said plaintiff made any representation to the town council that such was its width, in order to induce action on their part or otherwise, this point is refused. [3]</p> <p>The court charged in part as follows:</p> <p>[So we say to you, gentlemen, whilst this petition contains a waiver of damages, it was the damages that would accrue by reason of any change of grade necessary in order that the paving of the street proper be distinguished from the sidewalk, and that it was not a waiver of any damage that might result from the change of grade of the sidewalk from its established grade. [4]</p> <p>[Now, taking those up in their order, taking the sidewalk first: Was the sidewalk cut down from its natural grade in such a way as to do damage to the plaintiff? It does not appear here that there was ever any grade established for the sidewalk in that vicinity by any borough authority, and in the absence of such official designation of grade the natural grade of the sidewalk, if such there was, along there prior to the time of the improvement, would govern, and if there has been any substantial change of the grade in such way as to do damage to the plaintiff, he would be entitled to recover damages on that account.] [5]</p> <p>[I believe that he says that there was one stone step at the bottom by which he reached the boardwalk from the street, and that from the boardwalk up to the surface level of his house or lot were, I think he says, five steps at a point nearly in front of the porch; the question for you to consider is whether or not that sidewalk has been cut down in such a way as to do damage or injury to his property. If so, it would be an element of damage to be considered by you.] [6]</p> <p>Verdict and judgment for plaintiff for 1500. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p>Appeal, No. 144, April T., 1909, by defendant, from order of Q. S. Warren Co., Dec. T., 1907, No. 28, imposing an amended sentence in case of Commonwealth v. Pennsylvania Railroad Company.</p> <p>Indictment for nuisance. Before Lindsey, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were in the following form:</p> <p>1. The court erred in rejecting the evidence of the plot or map made by Thomas Struthers, then the owner of the land of the subdivision, called East Warren, but not then made part of the borough of Warren. This map was made May 15, 1885, and duly recorded in the recorder’s office, Warren county, Pennsylvania, in Deed Book No. 86, p. 195.</p> <p>2. The court erred in rejecting the offer by the defendant of the condemnation proceedings in the common pleas of Warren county, No. 72, September Term, 1885, Thomas Struthers v.Buffalo, Pittsburg & Western Railroads. This would show that Thomas Struthers, the then owner, was paid for the land and right of street.</p> <p>3. The court erred in imposing the amended sentence, of November 7, 1908, amending the sentence of September 11, 1908, which had been fully complied with at a large cost to the defendant company. We contend that the second or amended sentence of November 7,1908, was error; it will be recalled that the indictment in this case was to No. 28, December session, 1907, and tried during June session.</p>

<p>Appeal, No. 185, April T., 1909, by defendant, from judgment of C. P. Lawrence Co., June T., 1904, No. 95, on verdict for plaintiff in case of William A. Clark v. Neshannock Stone Company.</p> <p>Trespass to recover, damages for injuries to a dam. Before W. E. Porter, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for defendant and in overruling judgment for defendant non obstante veredicto.</p>

<p>Married women — Husband as agent.</p> <p>1. When in the making of a parol contract both husband and wife join in the negotiation and the work contemplated by and done under the contract involves exclusively the improvement of the estate of the wife, the presumption is that the contract is made on behalf of the wife, and, in the absence of an express stipulation that she shall be liable only jointly with her husband, an action may be maintained against her alone.</p> <p>Practice, C. P. — Pleading—Plea of abatement.</p> <p>2. If a person be omitted as defendant who ought to be joined in an action founded on a joint contract, whether on a specialty or not, the objection can be taken advantage of only by a plea in abatement.</p>

<p>Mortgage — Attorney’s commissions — Discretion of court — Appeals.</p> <p>The action of the common pleas in refusing to strike off the attorney's commission in the assessment of damages in a mortgage foreclosure proceeding, will not be set aside unless this be so plainly erroneous as will amount to abuse of discretion. Such an application is an appeal to the equitable jurisdiction of the court whose duty it is to weigh the testimony, determine the facts and exercise a sound discretion in the premises.</p>

<p>Road law — Boroughs—Original grading — Ordinance.</p> <p>1. It does not necessarily follow because a borough cuts down some of the high points in a country road within the limits of the borough, and cuts them down with reference to a general line of a street suggested by the borough engineer, that a grade is legally established.</p> <p>2. Where a borough repairs a street within its limits, which was a country road, in order to make it more passable and safe, and not for the purpose of reducing it to a permanent fixed grade, the abutting property owners are not relieved subsequently from the payment of an assessment fpr the actual grading of the street.</p> <p>3. In such a case no persuasive effect is to be attached to the fact that competitive bids were invited for making certain cuts and fills at the time the borough repaired the street or road.</p>

<p>Evidence — Witness—Contradiction of party’s own witness.</p> <p>1. Where a party summons a witness in the expectation, from statements made by the witness, that he would testify in a particular manner, and the witness fails to do so, the party may call other witnesses to show that the witness in question had contradicted himself.</p> <p>2. Where, in an action on a life insurance policy, a physician testifies indefinitely as to the time he attended the insured, and as to the reasons for his conclusions, it is for the jury to say whether or not his conclusion was justified, and in any event the question of veracity is for them.</p>

<p>Negligence — Automobiles—Duty of pedestrians — “Stop, look and listen.”</p> <p>1. The rule that a person must stop, look and listen before crossing the tracks of a railroad, does not apply to a pedestrian who is about to cross a street upon which automobiles are operated. Such machines have no prescribed course or direction or time of appearing, and are not to be distinguished from other conveyances in respect to the rights of persons lawfully using the streets. The measure of the duty of a pedestrian under such circumstances is ordinary and reasonable care.</p> <p>2. Where there is doubt as to the inference to be drawn from the facts and the measure of duty is reasonable care, and the degree of that care varies with the circumstances, the question of negligence is for the jury.</p> <p>3. In an action by a motorman against the owner of an automobile to recover damages for personal injuries, the question of defendant's negligence and the plaintiff’s contributory negligence is for the jury, where the evidence tends to show that the plaintiff alighted from his car, and while it was not in motion looked up and down the street, then passed behind the car to cross to the other side of the street and was immediately struck on the leg by defendant’s automobile which was being driven at a high rate of speed within a few inches of the side of the car, and in a narrow space between the car and the curb.</p>

<p>Appeal, No. 23, April T., 1909, by G. G. Rough et ah, from order of Q. S. Lackawanna Co., April Term, 1907, No. 287, sustaining exceptions to report of viewers In re Road in Benton Township.</p> <p>Exceptions to report of road viewers.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order sustaining exceptions to report of viewers.</p>

<p>Master and servant — Trespass—Railroads—Passenger—Assault by trainmen.</p> <p>1. For a willful or intentional trespass by an employee outside of the line of his duty under his employment, the employer is not responsible even though it be committed while the servant was in the course of his employment; but in the latter case its willful and separate character must appear.</p> <p>2. Where two passengers have alighted from a train, and while proceeding along the station platform are pursued by the baggage master and the conductor of the train which they left, and wantonly and maliciously assaulted, they cannot recover damages' from the railroad company for the injuries sustained, inasmuch as the acts of the trainmen were outside of the scope and the range of their employment.</p>

<p>Attorney at law — Professional conduct — Interference with order of support — Assignment of interest in estate.</p> <p>An attorney at law with knowledge of an order of support against his client and of arrearages of payment thereon, loaned his client money from time to time without attempting to control its application, and subsequently took an assignment of the latter’s interest in an estate in payment of or to secure payment of the indebtedness thus incurred. Held, that the acts of the attorney did not amount to a breach of professional duty, or an unlawful interference with the execution of the order of support, or warrant an inference of fraud on his part to defeat the claim of client’s wife.</p>

<p>Appeal, No. 45, April T., 1909, by James J. Purman et al., from decree óf O. C. Greene Co., Sept. T., 1905, No. 2, in partition in Estate of Elizabeth Sanders, deceased.</p> <p>Petition for partition. Before Inghram, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree setting aside the allotment of the purparts, but otherwise confirming the inquest.</p>

<p>Appeal, No. 79, April T., 1909, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1907, No. 135, on verdict for plaintiff in case of Millie Barlick v. Baltimore & Ohio Railroad Company, Operating the Pittsburg & Connellsville Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Van Swearingen, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $1,000, upon which judgment was entered for $500, all above that amount having been remitted.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 146, April T., 1909, by-defendant, from judgment of C. P. Washington Co., Nov. T., 1907, No. 154, in case stated in suit of Commonwealth to use of Chartiers Township School District v. Harry Shapiro.</p> <p>Case stated on appeal from judgment of a justice of the peace. Before Taylor, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Road, law — Appeal from, viewers — Report of viewers — Evidence.</p> <p>1. If a party whose property is assessed for benefits to pay, exclusively, costs and expenses of the construction of an improvement, desires to raise a question as to the legal liability of his property for assessment, or whether a wrong rule has been adopted by the viewers in apportioning the charge, he may be heard on exceptions by the court and by appeal to the appropriate appellate court, but he has no right to a jury trial upon such questions.</p> <p>2. On the trial of an appeal from the award of a road jury, the report of the viewers is not admissible to show the total cost of the improvement in order that the inference may be drawn as to what proportion was charged against the property in question per foot front, where the property in question has been assessed only for its proportionate share of the costs and expenses of the improvement.</p>

<p>Appeal, No. 198, April T., 1909, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1909, No. 233, discharging rule to strike off judgment and set aside execution in case of W. H. Keech Company v. Michael O’Herron.</p> <p>Rule to strike off judgment and set aside execution.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order discharging the rule.</p>

<p>Appeal, No. 57, April T., 1909, by Caroline Doell and Henry Werner, from decree of O. C. Cambria Co. June T., 1907, No. 7,606, refusing issue devisavit vel non in Estate of Wilhelmina Kerchner.</p> <p>Rule to show cause why an issue devisavit vel non should not be awarded. Before O’Connor, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error asigned was decree refusing the issue.</p>

<p>Appeal, No. 48, April T., 1909, by defendants, from judgment of C. P. No. 4, Allegheny Co., Third Term 1907, No. 668, on verdict for plaintiffs in case of E.. C. Stoner and Josiah C. Thaw, doing business as Stoner, Thaw &. Company, Limited, v. B. N. Phillipi, Marshall Henderson and E. L. Sohns.</p> <p>Assumpsit to recover the price of a machine. Before Swearingen, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[The defense as to the making of the contract consists in this: The defendants introduced testimony to show that a corporation was organized, of which these three defendants were stockholders and directors; and that that corporation was organized under the laws of the state of New Jersey, which, for the purpose of the laws of Pennsylvania, is a foreign corporation. The corporation was started some time in the month of April. According to the testimony of the defendants, Mr. Sohns was authorized to make a contract for the building of a machine of this character, and that all his negotiations with the plaintiff and that all the negotiation of the defendants with the plaintiff were in pursuance of that arrangement. In other words, that he was acting and that they were acting at the instance of this corporation, known as the Pittsburg Refreshment Machine Company. And evidence is further introduced, on behalf of defendants, that the corporation was registered in the office of the secretary of the commonwealth of Pennsylvania on June 15, 1906. Now, gentlemen, we have a statute in Pennsylvania which requires that a foreign corporation shall not do business in Pennsylvania until it shall have established an office or offices, and appointed an agent for the transaction of its business in this state; and, that it shall not be lawful for a corporation to do business in this commonwealth until it shall have filed in the office of the secretary of the commonwealth, articles of incorporation, which means the registration of the corporation. So that, under the facts as developed here, the evidence submitted on the part of the defendants themselves, it becomes my duty to say to you that the defense that this contract was made with this corporation is not made out. This corporation, the Pittsburg Refreshment .Machine Company, being a corporation of New Jersey, and not having registered in the office of the secretary of the commonwealth of Pennsylvania until June 15, and it being admitted that the contract was made prior to that date, then, I say to you, that the corporation had no authority to do business in the state of Pennsylvania. And if these defendants were acting for that corporation in making a contract prior to that time, then they became responsible in this regard for the contract. That is the law, as we understand it, and if we have made a mistake in our interpretation of the law, there is a method of correcting it.] [7]</p> <p>[So that, you will then, gentlemen, under the instructions of the court, find a verdict for the plaintiff if you believe the testimony of . the plaintiff that the contract was made prior to June 15, 1906, and according to the testimony of Mr. Sohns, one of the defendants, that is the fact.] [8]</p> <p>Plaintiff presented these points:</p> <p>1, That if the jury find from the evidence that the machine delivered by the plaintiff was in accordance with the order of defendants and that the price charged therefor was a fair and reasonable market price at the time of delivery, the plaintiffs are entitled to recover against any of the defendants who ordered said machine, either individually or as agents or representatives of the Pittsburg Refreshment Machine Company prior to June 15,1906. Answer: Affirmed. [1]</p> <p>2. If the defendants, or any of them, acted as agents or representatives of the Pittsburg Refreshment Machine Company, and as such agents or representatives, ordered the machine in question from the plaintiffs, they are individually liable to plaintiffs for the value thereof, if such order was given prior to June 15, 1906. Answer: Affirmed. [2]</p> <p>Defendant presented these points:</p> <p>1. That if .you find that the defendants were members, incorporators, stockholders and directors of the Pittsburg Refreshment Machine Company and that the Pittsburg Refreshment Machine Company made the contract with the plaintiff for the construction of the machine furnished by the plaintiff, and that the plaintiff knew that said Pittsburg Refreshment Machine Company was a corporation, then you will find a verdict for the defendants. Answer: Refused. [3]</p> <p>2. If you find that the plaintiff manufactured the machine in question for the Pittsburg Refreshment Machine Company and gave credit to the Pittsburg Refreshment Machine Company knowing that it was a corporation, then you will find a verdict for the defendants. Answer: Refused. [4]</p> <p>3. If you find that the original contract was made with E. L. Sohns, acting as the agent of the Pittsburg Refreshment Machine Company, by the plaintiff, and delivered to them after they had registered as a corporation in this state, then you will find a verdict for the defendants. Answer: Refused. [5]</p> <p>4. That under all the evidence you will find a verdict for the defendants. Answer: Refused. [6]</p> <p>Verdict and judgment for plaintiff for $253.70. Defendants appealed.</p> <p>Errors assigned were (1-8) above instructions, quoting them.</p>

<p>Appeal, No. 50, April T., 1909, by Nellie McCarrell, from decree of O. C. Beaver Co., Dec. T., 1907, No. 13, sustaining exceptions to auditor’s report in Estate of Mary A. Carothers, deceased.</p> <p>Exceptions to report of M. J. Patterson, Esq., auditor. Before Holt, P. J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report allowing a claim of D. J. Stephens.</p>

<p>Appeal, No. 186, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 393, on verdict for defendants in case of Edward C. Sutterly v. Cora M. Fleshman, administratrix of James B. Fleshman, deceased, substituted in place of said James B. Fleshman and Maurice H. Power, trading as J. B. Fleshman & Company.</p> <p>Trespass to recover back losses paid in a gambling contract. Before Carr, J.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was' in refusing binding instructions for plaintiff.</p>

<p>Principal and surety — Bond—Voluntary association — Condition of bond.</p> <p>The condition, of a bond was that the principal should duly and faithfully obey all the decisions, orders, prohibitions and regulations of a voluntary association of which he was a member. The bond further provided for a service upon the principal of a copy of any decision, order or regulation of which he was declared to be in default. The principal was expelled from the association in proceedings regularly conducted against him. The surety paid the penalty of the bond and brought an action against the principal to recover the amount thus paid. The principal claimed in this action that a certified copy of the proceedings had not been served upon him as provided in the bond. It appeared, however, that an official notification in writing had been given to him of the action of the board of governors signed by the secretary. Held, that the " notice was sufficient under the terms of the bond, inasmuch as to certify means to testify in writing; to make a declaration about in writing; to make attestation in writing; to give certain information of a fact in writing.</p>

<p>Appeal, No. 33, March T., 1909, by defendant, from judgment of C. P. Lackawanna Co., March T., 1907, No. 839, on verdict for plaintiff in case of John H. Short v. The Delaware & Hudson Company.</p> <p>Assumpsit for loss resulting from the deterioration in value of perishable goods. Before Newcomb, J.</p> <p>The facts are stated in the opinion of the Superior Court:</p> <p>Verdict and judgment for plaintiff for $450.99. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 165, April T., 1909, by-defendant, from order of C. P. Crawford Co., May T.,. 1907, No. Ill, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Cochranton Borough v. Cochranton Telephone Company.</p> <p>Appeal from justice of the peace in an action to recover license fees on telephone poles.</p> <p>Bouton, P. J., filed the following opinion:</p> <p>From the plaintiff’s declaration it appears that on May 8, 1900, the borough of Cochranton passed an ordinance entitled “A general ordinance relating to the entry upon, over or under or the use or occupation of any streets, lane or alley or any part thereof, for the purpose of constructing, maintaining or operating a system or systems of telephone or telegraph lines or electric light lines in the borough of Cochranton, and providing reasonable regulations pertaining to the public convenience and safety,” which said ordinance was numbered 42.</p> <p>The second section of the ordinance provides as follows:</p> <p>“After the passage and publication of this ordinance any corporation, company or firm entering the borough and establishing a line or wires, system or systems, of telephone, telegraph or electric lights therein shall annually pay into the borough treasury a license or tax of a half dollar on each pole so erected, kept and maintained therein, which tax shall be payable annually on or before the first day of August.”</p> <p>Section 8 of said ordinance provides as follows:</p> <p>“Any corporation, company or firm seeking to avail itself of the provisions of this ordinance shall before commencing to build its line, file with the secretary of the council its certificate of acceptance of the provisions and regulations of this ordinance.”</p> <p>Section 9 provides as follows:</p> <p>“No individual shall use any of the streets, lanes or alleys of the borough for the purpose of putting up any private telephone without first applying to council for such privilege, and if the council shall grant such privilege, the poles of such individual so far as they shall be planted in the streets, lanes or alleys of the borough shall be subject to the same rate of tax as provided in section 2, and the like penalties for noncompliance therewith.”</p> <p>It further appears that on or prior to April 1, 1901, David Berringer made application to the burgess of plaintiff borough for the right and privilege of building, setting up, maintaining and operating a telephone line or system in said borough, and signified his willingness to accept, abide and be governed by the provisions of said ordinance No. 42. •</p> <p>Whereupon on April 1, 1901, the said borough passed an ordinance No. 46, which is as follows:</p> <p>“Whereas, David Berringer has made application to the burgess of the borough of Cochranton for the light and privilege of building, setting up and maintaining and operating a telephone line or system in said borough of Cochranton and has signified his willingness to accept, abide by and be governed by the provisions of ordinance No. 42, and has agreed that when said borough shall adopt a fire alarm system to permit the fire alarm wires to run upon all his telephone poles without charge to the borough.</p> <p>“Therefore, be it ordained by the burgess and council of said borough, and it is hereby ordained by the authority of the same that on the filing with the secretary of the council of his acceptance of the provisions of said ordinance No. 42, and also the provisions concerning the fire alarm wires above mentioned, he shall have the right and may proceed at once to build, erect, set up and open said line for business.”</p> <p>On the same day David Berringer accepted in writing the terms and conditions imposed and agreed to abide by and be governed by the provisions of ordinance No. 42, which said written acceptance is as follows:</p> <p>“I, David Berringer above named, do hereby accept and agree to abide by and be governed by the provisions of the said ordinance No. 42, and also the provisions above specified in relation to the fire alarm telegraph.</p> <p>“Further, that I will within three months from the date of the above ordinance, commence the building of said line, and will have it open and ready for business within six months from said date, in default of .which all rights granted me by said ordinance or ordinances shall cease and be utterly null and void.</p> <p>“Witness my hand and seal at Cochranton this first day of April, 1901.</p> <p>“David Berringer [seal].”</p> <p>It further appears that immediately after accepting said provisions the said David Berringer began the erection and construction of a telephone line within said borough, and during the summer of 1901 erected sixty-nine poles in the streets, alleys and lanes of said borough, and completed and put into operation the said telephone line or system, and that said sixty-nine poles have been maintained in said streets, álleys and lanes continuously since their said erection.</p> <p>It further appears that the defendant company is a corporation chartered on or about February 8, 1905, for the purpose of constructing, maintaining and leasing telegraph lines for general telephone business. And that shortly after the chartering of the said defendant company it took over the said line constructed in the said borough of Cochranton by the said David Berringer and assumed the rights, duties, obligations and the privileges of the said David Berringer with reference thereto. And thereafter during the spring of 1906, erected forty-three additional poles in the streets, lanes and alleys of said borough for the purpose of its telephone system or plant, and has since continuously maintained the same.</p> <p>It further appears that for the years 1903, 1904, 1905 and 1906 that the defendant has failed, neglected and refused to pay the annual tax or license fee provided by said ordinance No. 42, which in all amounts to the sum of $187.08.</p> <p>These material allegations of the plaintiff’s declaration are nowhere denied in the affidavit of defense, but it alleges as grounds of defense:</p> <p>1. “That the agreement of David Berringer attached to plaintiff’s statement of claim was personal to said Berringer and not binding upon his successors or assigns, and therefore not binding upon the defendant company.”</p> <p>The second ground of defense is to the effect that there is no necessity for supervision by the borough council of defendant’s poles, for the reason that the low voltage sufficient for telephone purposes is not an element of danger to persons or property, and that there are no other electric wires, which by any possibility could come in contact with the wires of the defendant company.</p> <p>The third ground is that the defendant’s line is under the constant supervision of its employees, and that no complaint has ever been made to the company.</p> <p>The fourth allegation in the affidavit of defense is to the effect that the license fee imposed by the ordinance is not based upon the cost and expense to said borough for inspection, regulation and supervision, and that the annual charge of fifty cents per pole is more than ten times the amount that might have been or could possibly be incident or necessary to such inspection.</p> <p>And fifth, that the plaintiff has not incurred a single dollar of expense for the whole time for which suit is brought, by-reason of its inspection or supervision of the defendant’s lines or poles.</p> <p>The contention that the agreement of David Berringer was a personal one and not binding upon his successors, and hence not binding upon the company, is entirely without merit. When the defendant company took over the lines of Berringer “and assumed the rights, duties, obligations and privileges of the said Berringer with reference thereto” it took the place of Berringer and was as firmly bound by all of the provisions of the ordinance No. 42 as he was: School District of Freeport v. Enterprise Natural Gas Co., 18 Pa. Superior Ct. 73.</p> <p>The defendant seems to have mistaken the effect of these ordinances and acceptance by Berringer. Its defense would be good had permission been given Berringer or the defendant company to enter the streets for the purpose of erecting and maintaining its line and had the borough subsequently under its police power undertaken to impose a license fee or tax to reimburse it for the cost of inspection and supervision. But such is not the case here.</p> <p>When Berringer accepted the provisions of the ordinance he became bound thereby. It was optional with him to accept or refuse, and having accepted its provisions, gone on and erected his line, neither he nor those claiming under him, can now, after having enjoyed the benefits of the contract, be permitted to repudiate it, or heard-to question its validity.</p> <p>In our opinion the case is ruled by Allegheny City v. People’s Natural Gas & Pipeage Co., 172 Pa. 632, and School District of Freeport Borough v. Enterprise Natural Gas Co., 18 Pa. Superior Ct. 73, and further discussion is unnecessary.</p> <p>The affidavit of defense éntirely fails to deny any of the material allegations contained in the plaintiff’s declaration, and the defense sought to be interposed thereby is insufficient to prevent judgment.</p> <p>And now, to wit, December 30, 1908, the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense is made absolute, and upon the filing of the proper statement for liquidation the prothonotary will enter judgment in favor of the plaintiff and against the defendant for the amount of the plaintiff’s claim.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 42, April T., 1909, by defendant, from judgment of C. P. Washington Co., Aug. T., 1907, No. 170, on verdict for plaintiff in case of C. M. Withrow v. Oliver Walker.</p> <p>Trespass for the conversion of a mowing machine. Before Taylor, J.</p> <p>At the trial it appeared that the defendant when he moved on a farm as a tenant, found an old mowing machine on the premises which the plaintiff had previously purchased at an administrator’s sale, but had not removed. The price paid at the sale was $2.00. The defendant sold the machine to a junk dealer for $1.50.</p> <p>The court charged in part as follows:</p> <p>[Mr. Walker, the defendant, admitted on the witness stand that he did sell this machine and received for it $1.50 from a junk dealer who came that way. The measure of damages, under those circumstances, going to the plaintiff would be the fair market value or price of the machine that he so sold, and which was admittedly the property of the plaintiff and in which the defendant had no property, would be the fair market value or price of it at that time, and the evidence on that point is that he purchased it at public vendue or outcry, when he bought it a short time previous, and paid the sum of $2.00 for it.] [2]</p> <p>[Now, gentlemen of the jury, if this was all there was in this case we would say to you that you should find for the plaintiff in the sum of $2.00, or even if this was a slight mistake Mr. Walker had made in selling this machine, the property of another, we would say to you that no further element of damage ought to be considered by the jury, than the $2.00 which Mr. Withrow paid for the machine, if you should find that its fair value; but Mr. Withrow testifies that when he went to get the machine and found it gone from the place he was permitted to leave it, he tells you how he had difficulty, where he had left it when he bought it at the sale where it had been knocked down at public vendue; that he had some difficulty in finding Mr. Walker, the new tenant on this farm, and found him away over in a back field some place on the farm at work, and he testifies he inquired of Walker what had become of that machine of his that was there at the corncrib, and Withrow testifies that Walker, the defendant, began at once to deny that he knew anything about the machine, denied that he sold it, or knew where it was or knew anything about it, and that caused Withrow to search for it at the various junk yards along the river towns and put him to the trouble and expense of tracing where his machine had gone, and he says to the extent that he visited various junk yards and found it in the junk yard of this witness, the junk dealer who was upon the stand here. Withrow swears that he got out a search warrant first for this particular junk yard and when he found the machine he then caused the prosecution of this junk dealer for the larceny of his machine, and when the junk dealer was called to account for committing the offense of the larceny of this machine the junk dealer disclosed at once that he had bought that machine from Mr. Walker, the defendant here, and then for the first time Walker, the defendant, admitted he had sold it to this junk dealer.] [3]</p> <p>[Now, according to the testimony of Mr. Withrow, plaintiff, and his witnesses, he had been at Mr. Walker’s and asked about the machine and, as he testified before, he, Walker, denied that he knew anything about this old machine, when he did, and knew he had sold it to this junk dealer, and he now goes on the stand and swears that he sold that machine to this junk man and the manner in which he sold it. Now, if that is the case, if you believe the story of the plaintiff, and Mr, Walker as he now testifies, why didn’t Mr. Walker tell Mr. Withrow that when he first went there, is a pertinent inquiry for you. Well, he says he did; he says when Withrow came there asking for his machine he told him that he did not know whose the machine was but he sold it to the junk dealer. Now there is a direct contradiction between those two men, and if he did tell him that, what would have been the necessity for Withrow going and suing the junk' dealer, if Walker had told him, when he went up there inquiring about this machine of Withrow’s, that he had sold it, as Walker said he did — what would have been the necessity of Withrow going and making the information against the junk dealer?] [4]</p> <p>[So if Mr. Walker could in the first place have prevented any expenses that Mr. Withrow was necessarily put to in ferreting out where his machine was and who took it, why he ought to have done so, when he knew that he sold it, if he did. Under circumstances of that kind, if you find that to be a fact, you can readily see that a man who kept the truth back when there wasn’t any occasion for it, if he did, and put the other man to the expense of tracing his property that he had disposed of and pocketed the money, then we think a proper element of damage to enter into the case which is declared for fair market value or along with the price of the machine, would be what reasonable expense the owner of his property was put to in finding his machine, tracing it, as though it had been stolen from him, and the supposed thief.] [5]</p> <p>[Now, gentlemen of the jury, there is another machine fairly in this case, the one that was in the old barn, and the uncontradicted evidence is that at the time that Mr. Walker told Mr. Withrow to take that other machine that was in the old barn, that that was a machine that didn’t belong to Mr. Walker then; he admits that he didn’t own it at the time he told Withrow to take it for the one gone from the corncrib, but Withrow swears he had purchased it also from Duvall’s administrator; and no doubt if it had been anybody else than Withrow that did really own the machine there likely would have been a lawsuit over that machine also, because Withrow went and took that machine from the barn, he said he did, because it was his, he bought it from A1 Duvall, the man that was settling up Jake Duvall’s estate.] [6]</p> <p>[Now, gentlemen of the jury, the plaintiff here would be at least entitled to recover the fair market value or price of his machine at the corncrib under the undisputed testimony in the case. Now, whether you allow him any of the damages he has sued for here by way of expenses in tracing it depends on whether the defendant Walker acted frankly when Withrow went up there and asked where his machine was, whether he told where it was or whether he kept it secret and deceived him about his part in the transaction and put Withrow to the expense in finding out really where it was and finally tracing it back to Mr. Walker as the party having disposed of it. It is not testified here in dollars and cents the expense of tracing up the machine, but Withrow testifies to what he did and the places he had to visit and all the kind of trouble he had and the time it took, and it is for you to say, gentlemen of the jury, with these facts, if found by you to be facts, how much damages he ought to be allowed for that. The plaintiff swears that, in the whole, including the price of the machine and the other damages he specifies amount to $40.00. You could find in that amount or you could find in any less amount or in no damage; in case you find he had not reasonably incurred $38.00 worth of expense in finding, or any less amount as damages, what the evidence uncontradicted shows to have been the sale by Mr. Walker of Mr. Withrow’s mowing machine at the corncrib for $1.50. You are the judge of the credibility of the parties and their witnesses.] [7]</p> <p>Verdict and judgment for plaintiff for $16.58. Defendant appealed.</p> <p>Errors assigned amongst others were (3-7) above instructions, quoting them.</p>

<p>Negligence — Death—Names of parties — Damages—Death of wife — Acts of April 15,1851, P. L. 669, and April 26,1855, P. L. 309.</p> <p>1. Where an action is brought by a husband to recover damages for the negligent killing of his wife, and the statement of claim does not set forth the names of the children, the statement may be amended by inserting such names, and this may be done even after the statute of limitations has run.</p> <p>2. Where a wife and mother is killed by the negligent act of another, the damages recovered for her death are distributable among the husband and the several children in such proportions as they would be entitled to take the personal property of the deceased in case of intestacy.</p> <p>3. If the husband dies pending the suit, his administrator may be substituted as plaintiff. In such a case the limit of recovery is not merely the loss of the decedent’s services “as wife and companion to her husband during the time that intervened between her death and that of her husband.”</p> <p>4. The measure of damages are in no way changed by the husband’s death. The loss of the husband and children was complete at the time suit was brought, and must be estimated as of that date.</p>

<p>Appeal, No. 124, April T., 1909, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1903, No. 214, on verdict for plaintiff in case of H. M. Berkley, Cashier, v. E. B. Maurer.</p> <p>Issue to determine the validity of a judgment entered upon a judgment note with the defendant’s name upon it as surety.</p> <p>At the trial the defendant denied that he signed the note.</p> <p>James M. Cover, witness on the stand, was asked this question:</p> <p>“Q. Mr. Cover, leaving out of your knowledge of Mr. Maurer’s handwriting, your personal knowledge of his handwriting, and basing an opinion merely upon a comparison of these papers that have been submitted to you with the note in dispute, what do you say?”</p> <p>Mr. Berkey: Objected to for the reason that the witness having said that he concluded the signature to the note was genuine because of his acquaintanceship with the handwriting of Mr. Maurer, he is incompetent and unable to differentiate between his ability as an acquaintance witness and that of an expert.</p> <p>The Court: The objection is overruled. The witness is permitted to answer the question precisely as it was put. Exception noted to defendant. [1]</p> <p>“A. Well, I think I would have to examine them a little further, then.”</p> <p>Mr. Ruppel; “Q. (Please make the examination.”</p> <p>(Note and papers handed to witness for examination.)</p> <p>"A. Well, there are some things about the signature, some peculiarities about the signature on the note, which differ from every other signature; yet, I should say from the signatures submitted, that the signature on the note was made by E. B. Maurer.”</p> <p>The Court: “ Q. You mean made by the same hand that made the signatures to these other papers submitted? A. Yes, sir.”</p> <p>H. M. Berkley, plaintiff, on the stand.</p> <p>“Q. Mr. Berkley, have you examined the test papers submitted in this case with the signatures of E. B. Maurer? A. I have. Q. Have you made a comparison between the name E. B. Maurer on the test papers and the name E. B. Maurer to the note in suit? A. I made some comparison. Q. In your opinion, who signed the name E. B. Maurer to the note in suit?”</p> <p>Mr. Berkey: I now desire to cross-examine the witness as to his competency to answer the question asked.</p> <p>The Court: We will permit it, as the plaintiff has not gone into any details as to the extent.</p> <p>Mr. Berkey: “Q. You have already testified you have seen Mr. Maurer write his name? A. I saw him write his name once. Q. Where? A. In the First National Bank. Q. Before or after you took this note? A. Oh, that was before. Q. It was the signature on the standard A? A. Yes, sir.”</p> <p>Mr. Berkey: The offer just made by counsel for the plaintiff is objected to, as this witness has testified that he is acquainted with the signature of E. B. Maurer, and being acquainted with that signature by having seen him write, he is not competent to testify in the capacity of an expert. The witness is not competent to testify in more than one capacity, either as a witness familiar with the handwriting in dispute or as an expert, but never in both capacities.</p> <p>The Court: We are of the opinion that the mere fact that the witness is acquainted does not disqualify him from testifying as an expert, if he has established a special experience as provided by the act. The objection here being not to the- question of special experience, we overrule it and note an exception to the defendant. [2]</p> <p>Mr. Ruppel: “Q. In your opinion, who signed the name E. B. Maurer to the note in suit? A. E. B. Maurer, in my opinion, made that signature.”</p> <p>David Barry, witness on the stand:</p> <p>“Q. What is your business? A. Banking. Q. How long have you been engaged in that business? A. Twelve years. Q. In what capacity? A. Cashier. Q. Do you know E. B. Maurer? A. Yes. Q. How long have you known him? A. My acquaintance with Mr. Maurer is limited to the short time that he kept an account in the Cambria National Bank. Q. Have you seen any of his writing? A. I have. Q. What? A. Some of his checks drawn on our bank. Q. Have you seen him write his name? A. Not that I remember. Q. Have you had correspondence with him? A. I don’t recall. Q. Have you those checks? A. Yes, sir. [Witness produces checks.] Q. Where have these checks been since they were made? A. In the Cambria National Bank and afterwards in the First National Bank. Q. Where you have been in charge? A. Yes, sir. Q. They have been in the bank you have been in charge of ever since they were paid? A. Yes, sir. Q. Did Mr. Maurer settle at your bank for these checks? A. He never lifted them; he opened an account and drew those checks against the account; he never called to have the checks surrendered to him. Q. Were there more checks in the bank than these? A. No more. That is, we have no more in our hands now. Q. But have there been more? A. I think not. I think his account was limited to the amount of these checks. Q. Have you examined the note in dispute? A. I have.”</p> <p>Mr. Berkey: I shall ask this question subject to stating to the court that I have already submitted these'checks to Mr. Maurer, and we will follow this later with Mr. Maurer, who will identify these checks.</p> <p>(Witness, withdrawn for the present.)</p> <p>E. B. Maurer, recalled. Direct examination by Mr. Berkey.</p> <p>(Witness shown exhibits 8, 9,10 and 11.)</p> <p>“Q. By whom were the checks signed, now in your hands? A. By myself.”</p> <p>David Barry resumes the stand. Direct examination by Mr. Berkey continued:</p> <p>“Q. From your acquaintance with the handwriting of Mr. Maurer, as found upon the checks, will you state whether or not in your opinion the signature of Mr. Maurer upon the note in dispute is genuine or not? ”</p> <p>Mr. Ruppel: Objected to, for the reason that the witness has not qualified himself to answer this question.</p> <p>The Court: This witness never having seen defendant Maurer sign his name, and having simply paid the checks and recognized the checks that are now identified by Maurer as bearing his signature, we think he is not qualified to answer the question from the standpoint of one acquainted with the handwriting of the defendant; but, upon his testimony as to his twelve years’ service as cashier of the bank, we think he may and we will permit him to testify to the character of the signature upon the note by comparison with the checks that he produced, or any of the other test papers that are in evidence. Exception noted to both plaintiff and defendant, and bill sealed. [3]</p> <p>E. O. Kooser, A witness produced and affirmed upon behalf of defendant. Direct examination by Mr. Berkey:</p> <p>“Q. What is your business? A. Attorney in Somerset. Q. For how many years have you been in that business? A. Since 1892, I think. Q. How long have you known E. B. Maurer, assuming that you know him? A. Probably fifteen years; ten or fifteen years, probably. Q. Have you had any business relations with him? A. I was attorney for him when he was assignee of Robert Pickworth. I don’t know that I had any other; I may have. Q. Are you familiar with his signature? A. Well, I haven’t seen his signature for a long time. Q. Have you seen him write his name? A. I think I have. Q. Have you examined the signature upon the note in dispute? A. Let me see the note in dispute, please. [Note in dispute shown witness.] A. This is the note in dispute. Q. Have you examined it? A. Yes, sir. Q. State whether or not in your opinion the name E. B. Maurer upon the note is his genuine signature?”</p> <p>Mr. Ruppel: Objected to, for the reason that the witness is not qualified to answer.</p> <p>Mr. Berkey: “ Q. Have you seen him write his name? A. He was about the office there a good deal. I think I-have. I have no picture of seeing him with a pen in his hand, that I can recall. I surely think I have seen him write his name about the office. Q. Did you have correspondence with 'him? A. Yes, sir. Q. Has he written letters to you? A. Yes, sir. I drew some papers for him to which- his signature is attached. Q. Some of the standards that were offered by the plaintiff? A. Well, they were petitions in the Pickworth estate,,. I think they were offered as standards, but I really don’t know about that. The body of this paper here, a return of sale in the Robert Pick-worth estate, is in my handwriting. Q. Whose signature is it? A. It is here E. B. Maurer. Q. Was that signed in your presence? A. I can’t say that it was.' I see it is sworn to here before David L. Wynn. Q. You have had letters from him? A. Yes, sir. Q. Do you know his handwriting when you see it? A. Well, I would without swearing point-blank as to whether a man knows his handwriting, which is a little difficult, form my own opinion whether it is or not. I would have an opinion on the subject. I have a decided opinion. Q. Have you in your mind an exemplar of his signature? A. Yes, sir, I have.”</p> <p>Objected to. Objection sustained, and exception noted. [4]</p> <p>Defendant presented this point:</p> <p>3. Evidence of a handwriting expert alone is not sufficient to establish forgery. Answer: As applicable to this case, I decline this point. As I have heretofore said, I submit for your consideration all the evidence admitted on the trial. [5]</p> <p>The court charged the jury in part as follows:</p> <p>[One person only testified to positive knowledge of it, and that is Mr. Maurer. He alone of all the witnesses, pretends to know, to have actual knowledge, of whether this signature was made by him or not.] [6]</p> <p>[The plaintiff, before offering that note in evidence, called upon the stand first Mr. Cover, who testified to you from the two standpoints; first, that he has had an acquaintance with Mr. Maurer running over a period of years, Cover having been a merchant and justice of the peace, I believe, in the neighborhood where Maurer lived. After testifying from his familiarity with Maurer’s handwriting, he stated in his opinion, the signature E. B. Maurer upon the note was the genuine signature of E. B. Maurer. Later he was asked as to his own business put-suits, and testifying that he had been, besides being a merchant, as I have stated to you, register of wills and recorder of deeds of the county; that he had been a cashier for a while in the First National Bank of Bockwood, and more lately, was a Pennsylvania state bank examiner, and that he was familiar with hand-writings and has had special experience with handwritings. Under that form of testimony, he was permitted to answer in the second class as one who was competent to be called an expert in handwriting, and in that light he testified that from comparison with a number of other signatures which had been offered in evidence and had been shown to be genuine signatures of Mr. Maurer, made at different times, covering a long period of years, and under different circumstances, and upon different papers of different forms, that it was his opinion that this is the genuine signature of Mr. Maurer.] [7]</p> <p>[Following Mr. Cover then were put upon the stand a number of gentlemen, all, I believe, who had been connected in one capacity or another, mainly, perhaps, as cashiers in banks or as secretaries of trust companies: Mr. John D. Roberts, of Johns-town; Mr. D. Roberts, of Johnstown; Mr. Philson, of Meyers-dale; Albert Reitz, of Elk Lick; Mr. D. L. Miller, of Confluence, and Mr. E. K. Gallagher, of Somerset; and Mr. Berkley, the plaintiff, was also upon the stand. . . .</p> <p>They were placed upon the stand, and testified in this second class of persons who have had special experience with documents, handwritings and alterations, and to them were submitted these papers which are called standards, first having proven or having it admitted that they bore the genuine signature in each of them, of Mr. Maurer. In various forms of expression, they each testified that they had examined the standards and examined the note, and from such expressions, “I conclude that this signature upon the note was made by the same hand that made the signatures in the standards,” and such expressions as, “I believe the signature was made by Maurer,” and "I think E. B. Maurer wrote the name,” etc.; but whatever the form of answer made by the witness was, it all came to this, that after an examination of those standards upon what they stated was their special experience, they arrived at the opinion that the name on this note, E. B. Maurer, was written by E. B. Maurer, the defendant.] [8]</p> <p>Verdict and judgment for plaintiff for $1,158.13. Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 17, April T., 1909, by defendant, from judgment of C. P. Armstrong Co., Dee. T., 1907, No. 148, on verdict for plaintiff in case of National Cash Register Company v. George Shurber.</p> <p>Replevin to recover a cash register. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 1, March T., 1909, by plaintiff, from order of C. P. York Co., Aug. T., 1907, No. 15, discharging rule for judgment for want of a sufficient affidavit of defense in case of City of York v. Mary J. Beitzel.</p> <p>Scire facias sur municipal claim for the construction of a sidewalk.</p> <p>The material portion of the claim was as follows:</p> <p>Under and by virtue of an act of assembly entitled, “An act •providing when, how, upon what property, and to what extent, liens shall be allowed for taxes, and other municipal improvements, and for the removal of nuisances,” etc, approved June 4, 1901, and all other acts of assembly, and ordinances of said city relating thereto, the city of York files this its claim for 199.14 against the hereinafter described property with the improvements thereon, if any, and sets forth the following specifications of claim:</p> <p>1. The name of the party claimant is the city of York.</p> <p>2. The name of the owner or reputed owner of the property against which this claim is filed is Mary J. Beitzel.</p> <p>3. The property against which this claim is filed is described as follows: All that certain lot or parcel of land situate in the ninth ward of the city of York, York county, Pennsylvania, bounded on the north by Salem road or avenue, on the east by property of Annie B. Byert, on the west by Belvidere avenue, and on the south by a twenty-foot wide alley, being known as Nos. 664, 666, 668, 670 and 672 Salem road or avenue, and having a frontage of 100 feet along said Salem road or avenue, and a depth of 135 feet on Belvidere avenue, more or less. The improvements thereon consist of: There are no improvements.</p> <p>4. The work for which this claim is filed was done under and by virtue of the several acts of assembly governing cities of the third class, to wit: The Act of May 23, 1889, P. L. 277; the Act of May 16, 1891, P. L. 75, and the several supplements to said acts; and an ordinance of the city of York entitled, “An ordinance relating to paving, curbing, repaving, recurbing and repairing sidewalks and gutters,” approved September 15, 1891.</p> <p>5. The work in front of the said property against which this claim is filed was completed on December 11, 1906, as certified by Frank H. Heckert, highway commissioner, who was supervising said work; said certificate being filed with the city clerk of the city of York, on April 9, 1907.</p> <p>6. The kind and character of the work for which this claim is filed is as follows: Furnishing the labor and materials for and laying a four-foot wide brick sidewalk along the Salem road or avenue front, and along the Belvidere avenue side of said above-described lot of ground, according to grades and alignments therefor given by the city engineer of said city. The labor furnished for said sidewalk was as follows:</p> <p>«l« «1* 4* *1* vl*</p> <p>The affidavit of defense was as follows:</p> <p>Mary J. Beitzel, against whose property a municipal lien was filed in the above-named case and scire facias issued thereon to the above-named term, files this her affidavit of defense to the scire facias issued thereon, and being duly affirmed according to law, deposes and says, that she has a just, true, legal, full and complete defense to all that part of the lien described therein as follows: “Furnishing the labor and materials for and laying a four-foot wide brick sidewalk along the Belvidere avenue side of said above-described lot of ground according to grades and alignments therefor given by the city engineer of said city,” for the reason that the said pavement so as aforesaid constructed and the amounts charged for the material furnished and the labor, employed and expended on said construction of said pavement is not upon the property of the said Mary J. Beitzel, but the said pavement is constructed upon the property of the city of York.</p> <p>That the said Mary J. Beitzel owns only a life estate in the said lot described in this municipal lien.</p> <p>That the city councils of the city of York, by ordinance regularly adopted on October 16, 1889, and recorded in city ordinance Docket A, p. 172, adopted Belvidere avenue from Market street southward to College avenue at a uniform width of sixty feet and that from said Market street to Salem avenue the said city of York has opened the said Belvidere avenue for a uniform width of sixty feet and required the laying of pavements and sidewalks for the said width.</p> <p>That the said pavement for which a lien has been filed in the above-named case is laid twenty feet westward of the alignment of said Belvidere avenue as adopted and laid out by said city of York under said ordinance adopted and approved October 16, 1889, and recorded in city ordinance Docket A, p. 172.</p> <p>That the said pavement on Salem avenue and the said pavement on Belvidere avenue, the labor and material for which are charged in the said above-named municipal lien and scire facias thereon, are neither of them constructed according to the ordinance of the said city of York or any ordinance, and the said pavements so constructed on both Salem avenue and Belvidere avenue are not constructed according to the grade and alignment adopted by the said city of York, and therefore the said Mary J. Beitzel, the abutting property owner, is not liable therefor, all of which matters the defendant will prove at trial.</p> <p>The hen is defective and no recovery can be had thereon for the reason that the work and material furnished therefor, and the labor performed and prices paid are not apportioned to the several pavements and the said streets as is necessary for the collection, and the proper defense of the same.</p> <p>The court discharged a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Landlord and tenant — Principal and surety — Bond—Bailment—Distress.</p> <p>A landlord levied for rent in arrear upon the household goods of his tenant, and also upon two hearses and a casket wagon which the tenant held as bailee. Subsequently the tenant became bankrupt and claimed as his exemption the household goods which had been levied upon. Subsequently the tenant’s father, in order to release the household goods, gave a bond to the landlord, the condition of which was that the obligor should pay any difference between the amount the landlord should receive from the trustee in bankruptcy and the amount of rent due. The bond further stated that it was the purpose and intent of the parties that unless the landlord should receive from the trustee his entire rent claim, the obligor should pay the same, or any portion thereof not paid to the landlord from the bankrupt’s estate. The trustee in bankruptcy disclaimed the hearses and casket wagon and thereafter the landlord assigned the bond to the bailors of the hearses and casket wagon, who paid him the full amount of his rent. Prior to this assignment the obligor notified the landlord that he would insist upon the latter exhausting the remedy he had, by a lien upon the property on the premises, including the hearses and wagon. Held, (1) that the fact that the trustee disclaimed the hearses and wagon did not affect the surety’s obligation to pay according to the plain and unmistakable terms of the bond; (2) that the bailors of the hearses and casket wagon had an equity to have the tenant’s own property first applied to payment of the rent; and (3) that as between the equity of the surety and the equity of the bailors of the hearses and casket wagon, the latter equity was superior.</p>

<p>Appeal, No. 24, April T., 1909, by defendant, from judgment of C. P. Armstrong Co., June T., 1907, No. 204, on verdict for plaintiff in case of S. V. Thompson Company v. D. A. Goldman.</p> <p>Assumpsit to recover commissions for the sale of real estate. Before Patton, P. J.</p> <p>The court charged in part as follows:</p> <p>This is what is known in law as an action of assumpsit, brought by S. V. Thompson & Co. against David A. Goldman, to recover the sum of $612.50, with interest from April 16, 1907, being the amount that the plaintiffs claim is due them by reason of their having acted as real estate agent in the sale of Mr. Goldman’s hotel property, known as the Commercial Hotel, in the borough of Ford City. On the part of the plaintiff, they offered in evidence a written contract, dated April 16, 1907, and signed by D. A. Goldman, in which he agrees and says, “I have this day placed in the hands of S. V. Thompson Co., hotel business, described in detail below, for sale, and hereby constitute them my sole agents, with the exclusive right to dispose of the same at the stipulated price of $12,500, or, such sum as may be agreed upon later.</p> <p>“ For their services, I agree to pay them a commission of five per cent, on the sale of the same. And I further agree to give them ten days’ written notice of my intention to withdraw the business from their agency.”</p> <p>Then follows paragraphs, giving all the description of the property. There is no dispute in this case that Mr. Goldman executed this contract with the plaintiff. Mr.. Thompson is called on the witness stand, and he testified that it was in pursuance of that contract that his company proceeded to advertise this property and to hunt for purchasers, and that in pursuance thereof on May 21,1907, the S. V. Thompson Company entered into an agreement with a certain Wilson & Shaffer to sell them this particular property, for the sum of $12,250. So far as that is concerned there is no dispute in the case.</p> <p>The first dispute arises in this way. You will notice the first contract was that Mr. Goldman authorized these people to sell for the sum of $12,500. The agents entered into a contract to sell for $12,250, dropping $250, while the contract called for a sale at $12,500, or such sum as might be agreed upon later. If I recollect the testimony, but it is entirely for the jury to say how this is, the plaintiff testified that when he sold this property to Wilson & Shaffer for $12,250, that Mr. Goldman agreed to that, and consented to that reduction, If I recall the testimony correctly, Mr. Goldman, so far as that is concerned, does not deny that he did agree that they should sell for $12,250. If that is the testimony, then that difference would be brushed away, but if you find that Mr. Goldman denies that, then it would be a question for the jury to determine whether Mr. Thompson is telling the truth or Mr. Goldman is telling the truth as to that particular.</p> <p>The second difference, set up by the defendant, is that Mr. Goldman only authorized these agents to sell the furniture, fixtures and good will of the hotel, and that their agency did not include authority to sell the real estate. [From the reading of the article of agreement, that would seem to be true, and when these men, composing the S. V. Thompson Company came to sell to Wilson & Shaffer, they not only included the furniture, fixtures and good will, but they also included the real estate. Now, that would be a very serious discrepancy if there was nothing else in the way to explain that. Mr. Thompson is called, and also Mr. Hunter, on the part of the plaintiff, and they say that this second agreement was submitted to David Goldman at Pittsburg, when they came to talk this matter over, and that after an examination of it, he said that it was all right, and that he was satisfied with the contract. If that is true, then there evidently was a misunderstanding of the paper, or the paper was not drawn up correctly.] [1] [If this paper was drawn up between the S. Y. Thompson Company on the one side, and Wilson & Shaffer on the other, and if that was submitted to Mr. Goldman, and he, in the presence of Mr. Thompson and Mr. Hunter, said that the agreement was all right, and for them to go ahead with it, and he would stand over it, then Mr. Goldman could not now at this late day, repudiate that contract.] [2] [Mr. Goldman admits that the contract was shown to him, but he said that he did not read it, and paid no attention to it.- Gentlemen of the jury, there is another discrepancy, that you-will have’to decide.-' If you believe that, taking all the surrounding facts and circumstances into consideration, that these two men, Mr. Thompson and Mr. Hunter, showed .this agreement to Mr. Goldman, and he said that it was all right, and he understood it, then he could not at this late day escape from paying his commission by setting up such a difference as that.] [3]</p> <p>A third defense set up by Mr. Goldman is, that this sale was not completed, that although the Thompson Company made an agreement to sell this property to Wilson & Shaffer for $12,500, that Wilson & Shaffer never paid the money. It is an admitted fact that Wilson & Shaffer did not pay the money. Hence, if there was nothing else in the way, the Thompson Company could not recover their commission for something they did not sell, but the contention of the plaintiff is this, they say, and you will notice in this first contract, Mr. Goldman agrees to give them ten days’ written notice of his intention to-withdraw the sale of that property from their agency. Now, it is admitted that Mr. Goldman never did give them any written notice that he withdrew that property from their agency.</p> <p>[Gentlemen of the jury, we instruct you that if you believe that testimony, and it is uncontradicted, that Mr. Goldman never did withdraw this property from their agency, but turned around and on May 7, sold it to Mr. Morrow, and, therefore, put it out of his hands to comply with his contract with the S. V. Thompson Company, then the plaintiff could recover, notwithstanding that the property was not sold to Wilson & Shaffer, because Mr. Goldman, having made a contract of that kind to not withdraw the property from the hands of these men without ten days’ written notice, could not after they had gone to the expense of hunting and finding a purchaser, sell to another man, and thereby deprive them of their commission for their labor.] [4] He could not take advantage of his own wrong, and his own fault, and thereby deprive these men of their commission. If he wanted to do that he should have served written notice on them that he withdrew the property from their agency, and that would have given them ten days in which to complete their sale. [If he had done that Mr. Goldman would not have to pay them their commission, but if he did not withdraw the property from their agency, then they would be entitled to their commission, notwithstanding the fact that they did not complete the sale.] [5]</p> <p>Verdict and judgment for plaintiff for $642.50. Defendant appealed.</p> <p>Errors assigned among others were (1-5) above instructions, quoting them.</p>

Appeal, No. 25, April T., 1909, by plaintiff, from order of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 181, making absolute rule to strike off judgment in case of Nathan Goldstein v. George B. Fritzius and William Nolan. Rule to open or strike off a judgment. The facts are stated in the opinion of the Superior Court. Error assigned among others was the order of the court.

Appeal, No. 215, Oct. T., 1908, by plaintiff, from order of C. P. Bradford Co., May T., 1906, No. 3, making absolute rule to strike off mechanic’s lien in case of I. S. Hart v. Lehigh Valley Railroad Company, Owner, and H. O. Hanson, Contractor. Rule to strike off mechanic’s lien. Before Fanning, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was order making absolute rule to strike off mechanic’s lien.

Appeal, No. 208, April T., 1909, by defendant, from judgment of C. P. Mercer Co., April T., 1906, No. 70, on verdict for plaintiff in case of R. D. McClure v. The Lake Shore & Michigan Southern Railway Company. Trespass to recover damages for the loss of two horses at a grade crossing. Before Williams, P. J. The circumstances of the accident are set forth in the opinion of the Superior Court. Verdict and judgment for plaintiff for $519.60. Defendant appealed.

Appeal, No. 45, Oct. T., 1909, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 5,216, on verdict for plaintiff in case of Julia Geisenberger v. Ike Geisenberger. Assumpsit on a promissory note. Before Brégy, J. The note was as follows: “$1,000 Philadelphia, Pa., Mar. 25, 1902. “Sixty days after date I promise to pay to the order of Miss Julia Geisenberger One Thousand Dollars at Lancaster, Pa. Without defalcation, value received. “No. X. Due.

Appeal, No. 99, Oct. T. 1909, by plaintiff, from order of C. P. No. 1. Phila. Co., Dec. T., 1908, No. 1,564, discharging rule for judgment for want of a sufficient affidavit of defense in case of Northwest Building Loan Association of Philadelphia, Mortgagee, v. Walter A. Godfrey et al., Mortgagors, and Annie M. Godfrey, Real Owner. Scire facias sur building association mortgage.

Appeal, No. 19, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1908, No. 153, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ignatius Rice et al., trading as Rice & Hochster, v. Samuel F. Nirdlinger. Assumpsit against a surety on a bond in foreign attachment proceedings. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 210, Oct. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1905, No. 1,390, M. L. D. making absolute rule to strike off municipal lien for paving in case of City of Philadelphia to use of The Vulcanite Paving Company v. Fairhill Railroad Company. Scire facias on municipal claim for paving. Error assigned was order making absolute rule to strike off the lien.

Appeal, No. 13, March T., 1910, by defendant, from judgment of Q. S. Luzerne Co., April T., 1908, No. 116, on verdict for plaintiff in case of Commonwealth v. Soo Hoo Doo. Indictment for keeping a disorderly house. Before Ferris, P. J. The opinion of the Superior Court states the case. Verdict of guilty, upon which the defendant was sentenced to pay a fine of $250, and undergo an imprisonment for six months.

<p>Appeal, No. 240, Oct. T., 1908, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1893, No. 589, refusing to take off nonsuit in case of Edward W. Smith v. Francis D. Weaver and George Young.</p> <p>Assumpsit upon a bond. Before Wiltbank, J.</p> <p>The terms of the bond are set forth in the opinion of the Superior Court.</p> <p>At the trial the court refused to receive in evidence an affidavit of the surety in the bonds tendered by the plaintiff to the defendant. The evidence showed that the defendant had expressed dissatisfaction with the bonds, and had refused to accept them. There was no evidence that he did this capriciously.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were (1) rejection of the affidavit, and (2) refusal to take off nonsuit.</p>

<p>Appeal, No. 85, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 5,414, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Berg-doll, Guardian of Grover C. A. Bergdoll, v. Lillie H. Pitts.</p> <p>Assumpsit to recover taxes paid by plaintiff on real estate.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Audenried, J., filed the following opinion:</p> <p>The plaintiff foreclosed a mortgage that he held on five lots of ground in the city of Philadelphia and bought in the property at the sheriff’s sale. The price realized by said sale failed to pay the tax claims against the property. In order to protect himself the plaintiff after getting title to the property paid the tax claims against it. Among them were five claims for $73.33 each, assessed against the several lots for the year 1903 in the name of Lillie H. Pitts, who, it is averred, held title thereto from October 11, 1902, to December 22, 1903, her deed therefor being duly registered and recorded. This action was brought to recover from. Lillie H. Pitts the sum of $366.65 thus paid by the plaintiff for 1903’s taxes on his lots.</p> <p>The fact averred by the affidavit that the defendant never owned or held record title to No. 354 North Sixty-second street, one of the properties mentioned in the statement of claim, and that no taxes were assessed thereon against her for the year 1903, constitutes a good defense to the extent of $73.33, the amount claimed in respect to the plaintiff’s payment of taxes on that property.</p> <p>As a defense to the remainder of the plaintiff’s claim the affidavit sets up that although the defendant held the record title to the four other mortgaged properties during the period above mentioned, and although the taxes thereon for 1903 wefe assessed against them in her name, she was never their real owner and never received any income or benefit from them; that their true owner during the time she held their legal title was Robert A. Pitts, who absolutely controlled said properties and collected and enjoyed the rents therefrom; that the plaintiff knew that Robert A. Pitts was the real owner of the four properties and recognized him as such by sending to him the bills for the mortgage interest as it fell due, and acknowledging the receipt of the payments of that interest as made by the said Robert A. Pitts, whom he advised to appropriate the rents of the property to such payments rather than to the payment of taxes for the year 1903, which the plaintiff knew were not then paid.</p> <p>We are of the opinion that the facts thus averred fall short of constituting a sufficient defense to the remainder of the plaintiff’s claim.</p> <p>The party who at law is responsible for the payment of taxes assessed on real estate is its real owner. Prima facie he who holds a deed to the land, which has been registered and recorded, is the real owner. The fact that he is out of possession and that another is enjoying the rents, issues and profits of the property is no reason why its real owner should escape the burden of paying the taxes on it.</p> <p>A bare trustee, who holds the record title to land for another, would not, of course, be liable for the payment of the taxes on it; but it lies on such a person, if he should escape taxation, to show exactly what his relation to the property is and demonstrate that he has no personal interest in it. Failing in this, his responsibility for the taxes becomes fixed.</p> <p>The right of the mortgagee to maintain an action for the recovery of taxes paid by him under such circumstances as those present in this case arises by way of subrogation. He is subrogated to the right of the city to look to the terre-tenant in whose name the taxes were assessed for their payment. Consequently, no defense is valid against him that would not be effective to bar the city’s claim.</p> <p>It would be no defense to the claim of the city for taxes assessed against the holder of the record title of a property to say, “I am a mere naked trustee of this land;” and such a defense could not avail against a claim for reimbursement by the mortgagee who, to protect his interest after buying in the mortgaged property at a foreclosure sale, has paid the taxes owing thereon: Neilson v. Equitable Trust Co., 18 Pa. Superior Ct. 635. There must be given in either case a full explanation of that defendant’s connection with the property. The precise terms of the trust on which he claims to hold the land must be shown. This is required in order that the court may determine whether or not the defendant is as bare of personal interest in the property as he asserts.</p> <p>For the same reason, both in proceedings instituted by the city and in . an action by one standing in the position of this, plaintiff, the defendant who admits that at the time of the assessment of the taxes sued for he was the holder of a deed for the land, which was duly registered and recorded,’ must do more than say, “ I was not the real owner when the taxes were assessed, this other man was.” Whether or not he or the other man really owned the land is to be determined by the court upon the facts of the case. If, as in the matter before us, the affidavit of defense fails to disclose the facts on which such- a conclusion might be predicted, it is insufficient.</p> <p>The averments that the defendant has never received income or other benefits from the property whose title she held, and that the income therefrom was received by Robert A. Pitts are by no means inconsistent with real ownership in the property on her part. It may well be that although the owner she was illegally evicted from the properties by Robert A. Pitts.</p> <p>The fact that the plaintiff knew that the defendant was never the real owner of four of the mortgaged properties is no bar to his present claim, since his knowledge on that subject would not have precluded the right of the city to demand of her payment of the taxes assessed thereon for 1903, and he now stands with respect thereto in the city’s shoes.</p> <p>For the same reason, the plaintiff’s recognition of Robert A. Pitts as the owner of the property by sending him bills for mortgage interest and by receiving interest payments from him amounts to nothing as a defense here.</p> <p>The averment that the plaintiff, having at the time knowledge of the fact that the taxes for 1903 had not yet been paid, advised Robert A. Pitts that he preferred him to appropriate the rents received from the properties to the payment of the mortgage interest instead of the payment of those taxes does not stand in the plaintiff’s way to subrogation to the city’s claim against the defendant. It is not averred that Robert A. Pitts acted on this suggestion by appropriating the income from the mortgaged properties to the payment on the interest on the plaintiff’s mortgage, or that in the absence of the suggestion he would have applied that income to paying those taxes. Even if the plaintiff received the interest on mortgage from Robert A. Pitts, whether as the owner of the mortgaged properties or otherwise, no matter whether the source from which the latter derived the money was the rental of the properties or not, we do not see how that fact can be urged by the defendant against the plaintiff’s subrogation to the city’s right against her. Such interest payments by Robert A. Pitts were in the defendant’s relief, and the plaintiff did her no wrong by taking from him what she otherwise would have paid herself.</p> <p>The plaintiff’s rule for judgment for $293.32, with interest from October 20, 1908, will be made absolute; and judgment will be entered in favor of the plaintiff and against the defendant for $301.14,</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 83, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 5,409, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louis J. Berg-doll v. Lillie H. Pitts.

<p>Appeal, No. 84, Oct. T., 1909, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 5,411, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louis J. Berg-doll, Guardian of Elizabeth B. Bergdoll, v. Lillie H. Pitts.</p>

Appeal, No. 153, Oct. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 610, M. L. D., making absolute rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia to use of Barber Asphalt Paving Company v. Holstein DeHaven. Assumpsit to recover a municipal claim for paving. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 158, Oct. T., 1908, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1909, No. 243, for defendants on case stated in suit of Buffalo,. Rochester & Pittsburg Railway Company v. Supervisors and Treasurer of. Union Township and Commissioners of Clear-field County.</p> <p>Case stated to determine liability for tax.</p> <p>The case stated was not set forth in appellant’s paper-book, but the docket entries, under the caption of the case, were as follows:</p> <p>1. Plaintiff, a corporation duly organized and existing under the laws of the state of New York and regularly doing business in this state, controls and operates a line of railroad running through Union township, Clearfield county, Pennsylvania.</p> <p>2. Plaintiff is the owner of a piece of land along its right of way in said township.</p> <p>3. A local .tax has been assessed against plaintiff, which includes work road tax and cash road tax.</p> <p>4. The work road tax and cash road tax for the years 1907 and 1908, includes a per capita tax of $1.00 for each of these years.</p> <p>5. The plaintiff does not have its principal office or place of business in said township.</p> <p>If, upon these facts, the court is of the opinion that the plaintiff is not liable for the per capita tax, then judgment to be entered for the plaintiff. If the court is of opinion upon these facts, that the plaintiff is liable for the per capita tax, then judgment to be entered for the defendant.</p> <p>On argument list,</p> <p>November 26, 1908, opinion and decree filed.</p> <p>Judgment entered for defendants in the sum of $2.00, for years 1907 and 1908, with costs.</p> <p>Exception noted for plaintiff and bill sealed.</p> <p>Debt, $2.00.</p> <p>Filed and interest from November 26, 1908.</p> <p>Judgment for defendants.</p> <p>Error assigned was. in entering judgment for defendant on the case stated.</p>

<p>Appeal, No. 251, Oct. T., 1908, by-defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1902, No. 2,820, on verdict for plaintiff in case of Dungan, Hood & Company, Incorporated, v. Philadelphia & Reading Railway Company.</p> <p>Assumpsit to recover the value of two bales of goatskins. Before Ferguson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial one of the defendant’s witnesses was asked this question:</p> <p>“Q. Will you state what, if any, agreement you had with them with reference to the delivery of carload lots from their warehouse prior to June, 1902?”</p> <p>Counsel for plaintiff objects and asks for an offer of proof.</p> <p>The Court: What do you propose to show?</p> <p>Mr. Lamb: I offer to prove a verbal contract between the warehouse company as the agent of the shippers to make delivery to the defendant company, that the goods in carload lots should be loaded into the cars by the warehouse company’s employees, and that the latter company, as shippers, should be responsible for any shortage.</p> <p>The Court: Do you propose to follow it up by showing that this was communicated to Dungan, Hood & Co.?</p> <p>Mr. Lamb: No, sir.</p> <p>Objected to. Objection sustained. Exception allowed for defendant.</p> <p>Verdict and judgment for plaintiff for $897.07. Defendant appealed.</p> <p>Errors assigned amongst others were (1) rulings on evidence, quoting the bill of exceptions; (2, 3, 4) answers to various points; (5) that the charge was inadequate.</p>

<p>Appeal, No. 37, Oct. T., 1909, by defendant, from order of C. P. Clearfield Co., Sept. T., 1908, No. 416, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Isaac Stage v. H. Van Smith.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Smith, P. J., filed the following opinion:</p> <p>Plaintiff’s statement claims to recover from the defendant the sum of $1,000, with interest from June 1, 1903. The suit is based upon a common promissory note, dated March 2, 1903, payable ninety days after date, to the order of Isaac Stage, for $1,000, at the Clearfield National Bank, which note it is alleged remained unpaid at the time of the bringing of the suit.</p> <p>The defendant, in his affidavit of defense, admits the making of the note in suit, but alleges a defense to the whole of the plaintiff’s claim in the nature of a set-off, together with the right to recover in addition thereto the sum of $1,775 from the plaintiff. Said affidavit of defense alleges that the defendant, in January, 1901, became the owner of certain contracts, partly for coal and partly in fee, for 185 acres of land in Karthaus township, Clearfield county, Pennsylvania, and that some time in July, 1902, the plaintiff, Isaac Stage, “bought from him and he, the defendant, sold to the plaintiff, a one-half interest in the coal and other minerals covered by the contracts with Barmoy, Miller and Weaver & Burge, and the plaintiff agreed to pay to the defendant therefor at the price or sum of $30.00 per acre for the whole, that is to say, $3,775 for the one-half interest in the 185 acres.” Defendant further avers that he has given credit for the sum of $1,000 on account of the purchase money due from the plaintiff to the defendant on the said undivided interest and that he is ready and willing to convey said undivided interest to the plaintiff upon payment of the balance due;</p> <p>Plaintiff’s counsel urges that this affidavit is insufficient for the reason that it set up in defense an alleged contract for the purchase of real estate, without alleging that the same was in writing and by inference at least from the affidavit that it was an oral contract. The language of the affidavit is vague and indefinite in setting up a valid contract for the sale of real estate, both in the matter of. description of the subject-matter of the contract alleged to have been made as also in the nature and character of the contract as to whether written or oral. If an oral contract, it certainly cannot be sustained, and in our judgment where an affidavit of defense sets up, as this affidavit pretends to do, a defense wholly outside of the contract sued upon, a valid contract or one enforcible in law must be alleged. It will be noticed that the affidavit carefully refrains from saying that it is oral but does not say that it was written, and defendant’s counsel argues that the court has no right to assume from the language used that it was an oral contract. It will be noticed that the words used are “bought from him and he, the defendant, sold to the plaintiff,” and it is claimed that this must be presumed to allege a valid, binding and legal contract. Counsel claims as authority for this position, the case of Smith v. Stevenson, 190 Pa. 48. In that case action was brought for plastering and furnishing the material for fifty-two houses. Defendant’s affidavit of defense admitted the agreement for plastering and furnishing as claimed for, in a bid accepted by the defendants, “Plaintiff agreeing however to take in part payment thereof a property situate,” etc., followed by a definite description of the property in metes and bounds, price and terms of payment. Mr. Justice Green, in his opinion, says: “We cannot know whether the agreement was in writing or in parol, but in order to exclude it from the consideration of the jury we would be bound to infer that it was a verbal agreement, and that there were no circumstances which could or might suffice to take it out of the operation of the statute of frauds. We are not at liberty to make either inference for the purposes of the present contention. The affidavit alleges an agreement, and the subsequent performance of the agreement on part of the defendants. We cannot assume the defendants allege an illegal agreement. The proper inference from the bare averment must be that it was a valid agreement, especially as it is followed by an allegation of performance of its terms by the defendants.” It will be noticed that the defense set up is one growing out. of the same contract or agreement on which the suit was brought and that the subject-matter of the suit on the part of the plaintiff and the subject-matter of the defense are one and the same. The Supreme Court assumes that the defense alleged is based on a legal or valid contract. In the case which we are now considering the defendant alleges an independent contract, one wholly outside of the subject-matter of the suit. He, moreover, sets up the right to recover against the plaintiff a definite sum of money. In such cases it is or should be the universal practice of an affidavit of defense to set out in clear/ distinct terms a valid and enforcible contract and not leave anything either to be assumed or presumed by the court.</p> <p>The practice act of May 25, 1887, requires an affidavit of the defense, and for the want thereof or want of a sufficient affidavit judgment may be moved in court “in accordance with the present practice in actions of debt and assumpsit.” The rules of court of Clearfield county, adopted prior to the passage of said act of 1887, provided for a judgment by default on failure of the defendant to file an affidavit of defense “setting forth the nature and character of the same.” It is said by Justice Shabswood, in Peck v. Jones, 70 Pa. 83, “An affidavit of defense which is required by law or rule of court to set out the nature and character of the same, ought to aver distinctly either upon knowledge or information and belief every fact necessary to constitute a defense. Nothing should be left to mere inference.” So also, an affidavit of defense which alleges fraud in general terms and does not distinctly set forth the facts constituting the fraud, was held insufficient: Matthews v. Long, 3 W. N. C. 512. Where an affidavit seeks to set up as a defense a set-off and does not state the items, time or other particulars to render a valid or tenable claim, it was held insufficient: Louchheim v-. Becker, 3 W. N. C. 449. Where an affidavit of defense refers to a paper, it is held that a copy must be annexed in order that the court may judge of its legal effect: Erie v. Butler, 120 Pa. 374.</p> <p>This affidavit sets up an independent, contract between the parties, alleging not only the right to set off the full amount of the claim of the plaintiff, but asserts the right to recover a balance of 11,775, without alleging that the contract was in writing, or if in writing, without appending a copy thereof to the affidavit. In our judgment it is wholly insufficient as a defense and violates the principles of pleading. The court has a right to assume that it was oral, in the absence of an allegation that it was written. If oral, it cannot be sustained: Sands, Herdic & Co. v. Arthur, 84 Pa. 479; Conrade v. O’Brien, 1 Pa. Superior Ct. 104, and numberless other cases in which the same principle is involved. The plaintiff is entitled to judgment for want of sufficient affidavit of defense.</p> <p>Now, January 15, 1909, judgment is directed to be entered against the defendant, in favor of the plaintiff, in the sum of $1,000, with interest from June 1, 1903, making a total of $1,337.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 40, Oct. T., 1909, by Helen G. Mnletter, from decree of O. C. Phila. Co., Jan. T., 1891, No. 27, dismissing exceptions to adjudication in Estate of Joseph Neumann, deceased. Exceptions to adjudication. Testator gave all of his estate, real and personal, to his widow and daughter for their lives and the life of the survivor of them. On their death $25,000 in five legacies of $5,000 each was given to certain charitable institutions.

<p>Banks and banking — Checks — Mailing check — Indemnity—Evidence — Question for jury.</p> <p>In an action to recover an amount of money represented by a lost check, where the evidence is not conclusive that the defendant properly mailed the check, the plaintiff may show by his own testimony that he never received the check without first proving that he had tendered a bond of indemnity to the defendant.</p>

<p>Execution — Sheriff’s sale — Setting aside of sale — Discretion of court— Revieio.</p> <p>1. The action of the court of common pleas in setting aside a sheriff’s' sale of real estate before acknowledgment of a sheriff’s deed, will not be reversed, where it appears that the property was assessed for taxation at $1,200, that its real value was $800, that the bid at the sale was $200, and that an attorney employed to attend the sale and bid to the sum of $800 had failed to do so because of his misapprehension as to the discharge of a lien upon the property.</p> <p>2. While inadequacy of price is not of itself sufficient to justify the setting aside of a sheriff’s sale, yet when there is great inadequacy, the court may seize upon other circumstances in order to give relief. Its discretion in doing so, if properly exercised, will not be reviewed by the appellate court.</p>

<p>Practice, O. C. — Decree of distribution — Modification of decree — Appeal — Lunacy.</p> <p>Where the orphans’ court has entered a decree in exact accordance with the judgment and opinion of the appellate court, such decree will not be reversed on a second appeal, because there was filed in the orphans’ court, after the-decree was entered, a record from another state showing that one of the distributees had been adjudicated a lunatic. In such a case the appellate court will affirm the decree and direct that the share of the lunatic shall be paid over to the latter’s committee upon proof to the orphans’ court that the committee had entered a proper bond.</p>

<p>Appeal, No. 207, April T., 1909, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 356, on bill in equity and dismissing cross bill in case of John Wagner v. I. K. King.</p> <p>Bill in equity for an injunction to restrain the defendant from interfering with or removing a wall.</p> <p>The defendant filed a cross bill praying for a mandatory injunction to compel the plaintiff to remove the wall and to erect a new wall wholly on his own ground to support defendant’s soil.</p> <p>Frazer, P. J., found the facts to be as follows:</p> <p>1. Plaintiff and defendant are owners of adjoining lots situate on Southern avenue in the borough of Mount Oliver; plaintiff’s lot having a frontage of thirty feet five inches on that avenue and extending back 120 feet to Locust street; defendant’s lot having a frontage of fifty-nine and one-half feet and extending back 120 feet to Locust street.</p> <p>2. During the year 1907, plaintiff erected in his lot a three-story brick dwelling, with storeroom on the first floor, which he occupies with his family and carries on the hardware business, the building having a frontage or width of twenty-seven feet and extending back sixty-three feet.</p> <p>3. About the time the erection of the building was commenced, or shortly thereafter, plaintiff secured defendant’s consent to erect a wall upon defendant’s lot adjoining the division line between their properties for the purpose of retaining in place the soil of defendant’s lot, which was higher than plaintiff’s, and also affording plaintiff the full use as a passageway the three and one-half feet of his lot unbuilt upon. Nothing was said as to the character of the wall, except that it should be of sufficient height to retain “that bank.”</p> <p>4. The wall was erected by plaintiff in the fall of 1907 at a cost of $110. It is about eighty-three and one-half feet in length and is entirely on defendant’s lot.. While the understanding between the parties was that the wall should be built along the division line between the properties, its location is three and three-fourths inches beyond that line at the line of the street and seven and three-fourths inches beyond at the rear end thereof.</p> <p>5. The rear of defendant’s lot adjoining plaintiff’s line is fitted up for a tennis court, and untiLthis summer has been used as such since the summer of 1902 by defendant and his friends.</p> <p>6. The wall at the rear end is not of sufficient height to support the corner of the tennis court adjoining it, and as a result of plaintiff’s excavating his lot to a level with Southern avenue and the want of support along his line, the bank at that point has fallen away, causing quite a depression in the surface, making the same uneven and rendering the court unfit for tennis playing. In erecting the wall plaintiff’s contractor also took down from the side of the court adjoining plaintiff’s lot, the wire netting placed there by defendant for the purpose of preventing balls from being knocked beyond the court.</p> <p>7. At the time plaintiff secured defendant’s consent to erect the wall, it was understood and agreed between them that the wall should belong to defendant and might be used by him or removed whenever the improvement of his lot made such removal necessary.</p> <p>8. The wall as constructed is of sufficient height to retain in place the front part of defendant’s lot, but is not of sufficient height at the rear to support the front portion of the defendant’s court adjoining plaintiff.</p> <p>The court entered the following decree:</p> <p>And now, to wit, April 13, 1909, it appearing to the court that the plaintiff has reconstructed the wall at the rear end thereof, erected by him on defendant’s land, so as to afford sufficient support for the bank of the tennis court, and that said tennis court has been placed in .as good condition as it was before the wall was built, and further, that the plaintiff has filed in court a stipulation or disclaimer in writing that no right or interest is to be acquired by him in the land occupied by the wall and the strip outside of it by user or otherwise, except as covered by the oral consent under which the wall was erected, it is hereby ordered and decreed that the preliminary injunction restraining the defendant from interfering with or removing the wall be continued until such time as the improvement of defendant’s lot may make such removal necessary. It is further ordered and decreed that the cross bill be dismissed and the mandatory injunction as prayed for refused. All costs to be paid by plaintiff.</p> <p>Error assigned, inter alia, was the decree of the court, quoting it.</p>

Appeal, No. 200, Oct. T., 1909, by defendant, from judgment of C. P. Delaware Co., June T., 1908, No. 91, on verdict for plaintiff in case of Nicola Kesara v. The S. & L. Rubber Company. Trespass to recover damages for personal injuries. At the trial the jury returned a verdict for $900.

<p>Appeal, No. 100, Oct. T., 1909, by-defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 4,723, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Presbyterian Ministers’ Fund v. Leon H. Folz.</p> <p>Assumpsit to recover taxes paid by plaintiff to protect his title.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Audenried, J., filed the following opinion:</p> <p>The plaintiff in this case caused the sheriff to sell a property, known as No. 1241 Markoe street, in the city of Philadelphia, under execution on a judgment for $75.90 that it had obtained for an installment due July 1, 1908, on account of a yearly ground rent of $90.00 issuing thereout. The property was sold subject to the ground rent charges. It was bought by Jonathan C. Neff, to whom the sheriff subsequently conveyed it. Its price did not suffice to pay more than the costs of the execution. In buying the property Neff acted for the plaintiff, for which he still holds its title. From 1898 to the middle of 1903, the premises, subject to the payment of the yearly ground rent above referred to, were owned by the defendant herein. The city taxes for the years 1899, 1900, 1901, 1902 and 1903, were assessed against it in his name. These were still owing when the sheriff’s sale took place, and, its proceeds not sufficing to pay them, their lien upon the property-continued undisturbed.</p> <p>Upon acquiring control of the title of the premises in the manner above described, the plaintiff paid the tax claims for the five years that have been mentioned, and brought this action to recover from the defendant the sum of $205.55 that he thus expended.</p> <p>The defendant does not deny the plaintiff’s averments of the foregoing facts. He does not dispute the legal proposition that one, not a mere stranger or volunteer, who, under compulsion, actual, present and potential, pays the debt of another in order to preserve rights or property of his own, being under no legal obligation to make the payment, is entitled to subrogation to the rights and remedies of the creditor against the debtor. He concedes that this principle has been applied in relief of a mortgagee who, having bought in the mortgaged property at the sheriff’s sale in foreclosure proceedings, has ..paid the tax claims which the sale has not discharged; and even in relief of the holder of a ground rent who has bought the property on which his ground rent is charged at the sheriff’s sale under a judgment for arrears thereof, and has been obliged, in order to preserve the property thus acquired, to pay off the undischarged taxes that incumbered it.</p> <p>The defenses set up by the affidavit under consideration are, first, that the payment of the taxes assessed against Folz was a purely voluntary act on the part of the plaintiff, since its ground rent has not been extinguished by merger in the fee, as was the case in Frank v. McCrossin, 33 Pa. Superior Ct. 93, and since on that estate in the land the taxes were not a lien whose discharge was necessary to its preservation; and second, that the application of the doctrine of subrogation to the case before the court will not sustain the plaintiff’s demand, since the right of the city of Philadelphia to recover the taxes above mentioned by personal action against the defendant was, at the time of their payment by the plaintiff, barred by the statute of limitations, and since the right of the plaintiff in the matter can rise no higher than that of the city.</p> <p>We are of opinion that neither of these defenses is sufficient to prevent judgment in favor of the plaintiff.</p> <p>That the defendant’s failure to pay the taxes on the property out of which the plaintiff’s ground rent issued endangered the latter’s rights in the land and made it necessary for their preservation that it should pay what was properly the debt of the former cannot be doubted. Neff is merely the plaintiff’s trustee. The property held by him belongs to the plaintiff as absolutely as it would if its legal title were in the latter. It is difficult to see how the case of one who, as the result of a sheriff’s sale of land for arrears of the ground rent charged upon it, has become the owner of the land as well as of the ground rent charge can be said to differ from that of one who, after a similar sale, holds the land that he has bought thereat clear of the charge of the ground rent that he formerly held upon it, through the merger of the estate that was formerly his in the fee that he acquired by purchase at the sale. The right of the ground rent landlord who, in the course of an effort to collect the arrears of his ground rent, has come to be the owner of the land out of which his ground rent was reserved to pay the taxes assessed against the land and look for reimbursement to the party whose duty it was to pay them, would seem, on the authority of Frank v. McCrossin, 33 Pa. Superior Ct. 93, to be as clear in one case as in the other.</p> <p>It is undoubtedly true that in the case now under consideration the taxes paid by the plaintiff were not a lien on its estate in the property as ground rent landlord, and that a sale of the land under a judgment obtained for them would not divest that estate therein; but it by no means follows that the defendant’s failure to pay them did not jeopardize the plaintiff’s rights in the land. Under sec. 2 of the Act of April 19, 1883, P. L. 9, the receiver of taxes of Philadelphia may collect delinquent taxes by distraint either out of the personal property on the premises or out of the personal or real estate of the delinquent owner wherever the same may be found; and by sec. 3 of the same act he is authorized to distrain and levy upon and sell any goods, chattels or personal property found on any premises on which the taxes are delinquent. By the section last cited it is provided that, when the personal property of a tenant has been levied on for taxes, the amount collected from the tenant by the receiver of taxes, “shall be a lawful deduction from the rent due.” Upon that method of collecting back taxes the legislation of this commonwealth imposes no limitation with respect to the time within which it may be resorted to; and it might be pursued even if the statute of limitations was a bar to the right of the city to maintain a personal action against the delinquent taxpayer, since the statute affects only the remedy to which it refers and leaves the obligation or liability untouched. Under the act of assembly to which reference has been made the officials of the city, at any time after the sale of No. 1241 Markoe street by the sheriff, might have distrained and sold the goods on the property for the taxes that the defendant still owed. The tenant whose goods were thus seized would have had the right to pay the tax claims and defalk against the rent that he had to pay. The statute is broad enough to confer this right on a tenant in fee who holds subject to a ground rent as well as on the mere tenant for years; and, in equity, the right of each to subrogation against his landlord stands on the same foundation. Even, however, if this were not so, it is manifest that the danger of a distraint for taxes on the personal property on the land would seriously threaten the rights of the ground rent landlord, as it might easily conflict with the collection of arrears of ground rent by the'talcing of a distress from the same goods.</p> <p>It is by no means clear that the right of the city of Philadelphia to cover the taxes assessed against the defendant as owner of the Markoe street property, by a personal action, is barred by the statute of limitations. While it was assumed in several cases by the Supreme Court that tax claims may be barred by the statute, no case has been pointed out in which it was held that the claim for the taxes in suit was actually barred. On the contrary, the case of Philadelphia v. Atlantic & Pacific Telegraph Co., 10 Pa. Dist. Rep. 376, is authority for the proposition that such claims are not affected by the statute. Be this, however, as it may, it is certain that the statute operates only on the particular remedy to which it refers, and not on the obligation of him against whom taxes have been assessed to pay them. Hence, as has been pointed out above, they may be collected at any time by any legal means, resort to which is not barred by specific enactment. Such a method of collection is afforded by the Act of April 19, 1883, P. L. 9. It cannot be argued that the plaintiff on paying the taxes owing by the defendant was subrogated merely to the remedy against him that was left to the city, and is consequently obliged to secure reimbursement through distraint and sale. In Commonwealth v. Mahon, 12 Pa. Superior Ct. 616, it was pointed out by the Superior Court that, “Remedies to enforce personal liabilities for taxes, possessed by public authorities might be -unsuitable and inappropriate to be used by an individual.” A distraint by the plaintiff on the defendant’s personal effects' and their sale in pursuance thereof would be vexatious, and, perhaps, result in hardship or oppression. Rather then relegate the plaintiff to a proceeding of that character the law will sustain an action such as the present upon the implied undertaking of the defendant to repay the moneys laid out to relieve him from his liability and its incidental inconveniences.</p> <p>The rule for judgment is made absolute.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Equity — Equity pleading — Demurrer — Corporation — Stockholders— Contribution — Amendment.</p> <p>1. A bill in equity filed by a stockholder of a corporation against other stockholders to compel them to contribute their respective proportionate shares of a judgment recovered against the plaintiff and paid by him for a debt of the company, is defective, if it does not show the number of shares held by each of the parties, and contains no prayer for discovery.</p> <p>2. Such a bill is fatally defective which does not aver in clear terms that the judgment obtained against the plaintiff was for the indebtedness of the corporation. Such an averment cannot be supplied by inference.</p> <p>3. Where a bill clearly demurrable was dismissed without the plaintiff making any application to the court below for leave to amend as provided by equity rule XXXV, he cannot complain in the appellate court of the action of the lower court in sustaining the demurrer without giving him an opportunity to amend his bill.</p>

<p>Appeal, No. 7, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 2,234, M. L. D., for defendant non obstante veredicto in case of Frank C. Snedaker et al., Copartners, trading as Frank C. Snedaker & Company, v. John J. Torpey, Owner or Reputed Owner.</p> <p>Assumpsit to recover balance alleged to be due on a building contract. Before Brégy, P. J..</p> <p>The facts are stated in the opinion of the- Superior Court.</p> <p>At the trial the jury returned a verdict for $250 in favor of the plaintiffs. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Equity — Trusts and trustees — Specific performance.</p> <p>On a bill in equity for specific performance it appeared from the bill that the principal defendant therein, a contractor, had agreed with the plaintiff, a subcontractor, in writing, to convey a particular property to a trustee as security for a deferred payment to become due to plaintiff as a subcontractor. The defendant conveyed the property to a person who was named as a codefendant, without any consideration passing, to hold the same as trustee for plaintiff. The trustee took with full knowledge of the terms of the agreement. The trustee with another person as cotrustee, held a mortgage on the property in question, and without notice to plaintiff, entered judgment on the bond accompanying the mortgage, sold the property at sheriff’s sale, and had his own attorneys bid it in. Before acknowledgment of the sheriff’s deed, plaintiff tendered the amount of the mortgage, with interest and costs, to the mortgagees. The principal defendant defaulted on his contract with the plaintiff. Held, (1) that it was error to sustain a demurrer to the bill; (2) that the plaintiff had a right to the protection of a court of equity against the fraud of the trustee; (3) that the case was within the proviso of the fourth section of the Act of April 22, 1856, P. L. 532; (4) that the plaintiff having an equity in the property had the same standing as the defendant in the execution to tender the amount of .the execution and costs before acknowledgment and delivery of the sheriff’s deed; (5) that the case was not within the Act of June 8,1881, P. L. 84, which declares that a defeasance to an absolute deed must be in writing and be recorded; and (6) that the plaintiff had no adequate remedy at law.</p>

<p>Appeal, No. 117, Oct. T., 1909, by defendant, from judgment of Q. S. Phila. Co., June T., 1907, No. 524, on verdict of guilty in case of Commonwealth v. Helen Williams, alias Helen V. Abrams.</p> <p>Indictment for perjury. Before Carr, J.</p> <p>At the trial it appeared that the defendant was indicted for perjury in swearing before Magistrate Eisenbrown in the case of Commonwealth v. Samuel Abrams charged with desertion and nonsupport, that she was married to him on September 4, 1906, by the Rev. George Lewis Wolfe at Wilmington, Delaware, and also for perjury in then and there swearing that a certain man then and there produced was not Elwood Williams, her first husband.</p> <p>The assistant district attorney in his opening made the following remark: "I will show you that the magistrate dismissed the proceedings wherein she (the defendant) had Abrams arrested for desertion.”</p> <p>The defendant asked .that a juror be withdrawn. Motion overruled. Exception. [1]</p> <p>When the prisoner was on the stand she was asked this question:</p> <p>“Q. You came out of prison in 1901?”</p> <p>Mr. Wain: I admit she was in prison.</p> <p>“A. It is everbody’s turn to get there.”</p> <p>Mr. Gray: Your turn is coming now.</p> <p>Mr. Wain: I object to that remark of the district attorney and I ask for the withdrawal of a juror. I except to the remark.</p> <p>The Court: I will grant you the exception.</p> <p>Mr. Wain: Your honor will not withdraw a juror?</p> <p>The Court: No; it was an improper remark and should not have come now. I grant you an exception. [2]</p> <p>“Q. Do you recall him (Judge Penny?acker) saying this to the jury, ‘This case has been a marvelous exhibition-’ ”</p> <p>Objected to. Objection overruled. Exception noted for defendant by direction of the court.</p> <p>“Q. Do you remember him saying this to the jury: ‘This case (Commonwealth v. Bass & O’Neill) has been a marvelous exhibition of wickedness and depravity and falsity, but, fortunately for you and for the cause of justice, the questions which arise here are very simple.</p> <p>“ ‘The prosecutrix here (the defendant herein) is an abandoned, depraved and untruthful woman. She was living apart from her husband. She was living in a house with the husband of another woman. The house was being used for an unlawful business, by means of which disappointed and unhappy women were deceived into expending their money. She presented the man who was living with her as her husband and she did it so formally as to make that presentation in the shape of sworn papers filed in a case in court, and when she came upon this stand she did not hesitate to deny that this was what she had done. When she discharged from that house the man who had been living upon her bounty for years, they (the defendants) did not hesitate, as his friends, to go to her to persuade her to take him back upon the same terms.’ ”</p> <p>The Witness: When did you have that printed?</p> <p>Objected to by defendant’s counsel.</p> <p>The Witness: I don’t know where it ever came from.</p> <p>Mr. Gray: I will tell you where it came from. It came from one of the papers of March 1, 1900.</p> <p>Mr. Wain: I object to the question. Objection overruled. Exception noted for defendant by direction of the court. [3]</p> <p>The Court: This witness is entitled, if she remembers, to say what was said at that trial. The question is whether you remember or do not remember what the judge did say.</p> <p>Mr. Gray: “Q. I show you the record, February 28, 1900, ' Verdict of not guilty as to Bass & O’Neill.’ State whether or not that verdict was not rendered under the instructions from Judge Pennypacker, when he instructed them, as I have read, that you were not to be believed under any circumstances and a verdict of not guilty should be rendered.</p> <p>Objected to. Objection overruled. Exception noted for defendant by direction of the court. [4]</p> <p>Magistrate Eisenbrown was asked this question:</p> <p>“ Q. That was the reason you discharged the defendant, • because she was a nonresident, and so stated at that time, didn’t you?”</p> <p>Objected to. Objection sustained. Exception noted for defendant by direction of the coui*t. [5]</p> <p>The stenographer, Mr. Clift, was asked this question:</p> <p>”Q. Answer the first question I put to you by reading it off.”</p> <p>Mr. Wain: I object. Objection overruled. Exception noted for defendant by direction of the court. [6-17]</p> <p>The Court: (Magistrate Eisenbrown.)</p> <p>“Q. Did you have him (Prader) arrested? A. With this man’s consent. No, he was not arrested. He came down to the magistrate with him. Before the child was born, that I have denied to protect this man, and that I will bring doctors in the house that will prove he is my child, and I am willing to serve twenty years’ imprisonment for denying it to save the man I have saved for twenty years. After his wife Fannie Abrahams came to the house and said she was going to have me arrested for fornication and bastardy, him and me together, he came on his knees to me and said, ‘The only way you can save me is I have a friend in the same club I am in. He will come and say he is the man who is putting up for you and you are after him for support. Will you come down to a friend of mine by the name of Scott. He will send you there. He has the case now. You go down and meet him. There is $50.00. You give it to Prader and he will give it back to you and say you will settle for him, sign your name, and I will show my wife. You will save me for everything. For God’s sake will you do it?’ I hesitated a long time. At last I did it. Q. You brought suit against the traction company once, did you not? A. I certainly did. Q. Charles Williams brought suit as your husband at the time? A. Never to my knowledge. Q. You swore to the statement of claim in that case, did you not? A. I certainly did swear to a statement of claim that I was injured. Q. And that this man was your husband? A. Never. I was lying sometimes unconscious and not able to speak and had hemorrhages. I never swore to any such thing. Q. Do you remember going before Judge Finletteb in 1888 and testifying that your son Alfred was Roach’s son? A. No, sir. Q. Did you not plead guilty on March 4, 1902, to a bill of indictment, No. 837, September Sessions, 1901, charging you with keeping a disorderly house and keeping a bawdy house? A. Never. I will sue you for everything you are worth in the world. Q. Were you charged, February Sessions, 1900, No. 131, as Helen Williams, alias Madam June, with fortune telling? A. No, I was not. They indicted me certainly, but not that I ever was Madam June. They said I told fortunes. That is the traction company, yes. Q. Please read that transcript and say whether that is the testimony taken-”</p> <p>The Court: Read it aloud?</p> <p>Mr. Wain: Yes.</p> <p>Objected to by the district attorney. Objection sustained. Exception for defendant noted by direction of the court. [18]</p> <p>: “A. He did testify on the subject of the identity. Q. State whether or not he identified a person then present as the man he married on September 4, 1906, to this defendant in Wilmington, Delaware.”</p> <p>Objected to by the district attorney. Objection sustained. Exception for defendant noted by direction of the court. [19]</p> <p>Mr. Wain: I want to make a formal offer of the typewritten notes.</p> <p>The Court: Identified by the witness?</p> <p>Mr. Wain: Yes, of the testimony of Rev. George Louis Wolfe, pages 69 to 80, inclusive.</p> <p>Objected to by the district attorney. Objection sustained. Exception for defendant noted by direction of the court. [20]</p> <p>The learned judge erred in sustaining the commonwealth’s objection to the following question by defendant:</p> <p>Mr. Wain: I also ask the witness if he cannot, by reading these notes and refreshing his memory from these notes, state exactly what the testimony of George Louis Wolfe was on examination in chief and cross-examination, after he was sworn in that case of Commonwealth against Abrams, before Magistrate Eisenbrown.</p> <p>Objected to by the district attorney. Objection sustained. . Exception for defendant noted by direction of the court. [21]</p> <p>Certain letters of Samuel Abrams were presented by defendant.</p> <p>The district attorney: Inasmuch as this is a matter of some importance, I ask that the paper, the signature to which the witness has identified as his, and the paper as to which he says the signature is not his, be impounded by the court, in order that'the commonwealth’s expert may examine them tonight.</p> <p>The Court: Is there any objection to that?</p> <p>Mr. Wain: I do not want them to go out of my possession. I will show them to any expert in the world. They are not offered in evidence. They will be offered in evidence at the proper time.</p> <p>The request of the district attorney that the letters be impounded is granted by the court.</p> <p>An exception for defendant to this ruling of the court is noted by direction of the court. [22]</p> <p>The prisoner on the stand:</p> <p>“ Q. Were you not tried on May 24, 1900, under the name of Helen Williams, alias Madam Drayton, charged with fortune telling, convicted and sentenced to one year in the county prison, which you duly served?”</p> <p>Mr. Wain: I object. Objection overruled. Exception noted for defendant by direction of the court. [23]</p> <p>“Q. Is it not a fact that you were, under the name of Helen Williams, arrested and convicted under a bill of indictment of September Sessions, 1901, No. 837, on which you were tried on April 4, 1902, for keeping a disorderly house? A. Your honor, I beg you to make Gray prove it. I beg you to make him prove the house that I lived in.”</p> <p>Mr. Wain: I object to the question. Objection overruled. Exception noted for defendant by direction of the court. [24]</p> <p>Verdict of guilty, upon which the defendant was sentenced to two years’ imprisonment.</p> <p>Errors assigned among others were (1-33) rulings on evidence, quoting the bill of exceptions, either set forth above, or stated in the opinion of the Superior Court.</p>

<p>Appeals — Assignments of error — Points and answers.</p> <p>1. When an assignment of error is to an answer to a point both the point and the answer must be set forth in the assignment.</p> <p>2. An assignment of error relating to the charge of the court is improper if it assigns a portion of the charge relating to a distinct subject, but does not give the entire portion of the charge relating to that subject.</p>

<p>Appeal, No. 140, Oct. T. 1909, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,445, making absolute rule for judgment for want of a sufficient affidavit of defense in case of B. Mitchell Simpson et al., trading as William A. Simpson & Son, v. Milton W. Kerkeslager.</p> <p>Assumpsit against a receiver in bankruptcy to hold him personally liable for premiums paid for insurance of real estate. Before Ferguson, J.</p> <p>The affidavit of defense averred that on October 20, 1907, he was appointed receiver of the bankrupt firm of Isaac Wilde and George Daymon, trading as Robert Wilde’s Son.</p> <p>That at the time of the first meeting of said creditors as aforesaid, and until July, 1908, the building and machinery contained therein and insured by said.plaintiff was commonly believed to be the property of the bankrupt estate, such belief having been based upon the following statement, as it appeared in the books of the said bankrupt estate:</p> <p>“May 1, 1905.</p> <p>“Isaac Wilde and George C. Daymon, trading as Robert Wilde’s Son, commenced business this day for the manufacture and sale of Carpet Yarns at Leverington avenue and Wilde St., Manayunk, Philadelphia.</p> <p>“All profits and losses to be equally divided between them.</p> <p>“Inventory at the commencement of business as follows:</p> <p>Cash as per Cash Book.................... $ 673.37</p> <p>Real Estate as per Ledger................. 21,000.00</p> <p>Machinery — Personal Property............ 10,000.00</p> <p>Merchandise on Hand.................... 8,685.55</p> <p>Book Accounts.......................... 2,665.09</p> <p>Mortgages............................... 21,500.00</p> <p>Book Accounts......-.................... 47,786.99”</p> <p>It also appeared by “Schedule B, Statement of all Property of the Bankrupt,” forming part of debtors’ schedule, which was signed and sworn to by said George C. Daymon, and filed in the district court aforesaid, the said real estate and machinery contained therein was declared to be the property of said bankrupt estate. A true copy of said schedule, marked exhibit “A,” is hereto annexed and made part hereof.</p> <p>That after several meetings of the creditors of said bankrupt estate, at all of which considerable testimony was presented for the purpose of ascertaining the ownership of the real estate in question, the learned referee, Honorable Alfred Driver, on February 8, 1908, decided that said real estate was owned by Isaac Wilde individually and not by said bankrupt estate. Upon a petition to review the findings of said referee, filed by Brown Brothers, a creditor of said bankrupt estate, the district court in an opinion filed by Honorable Judge Holland on July 8,1908, confirmed the referee’s order in the following:</p> <p>Your petitioner is advised and believes and therefore avers that, in view of the aforesaid entry or statement made in the books of said- bankrupt estate and of the sworn statement appearing in schedule B hereinbefore mentioned, it was his duty as receiver as aforesaid, to regard said real estate as the property of the bankrupt estate, until the ownership -thereof had been judicially determined, and it was his duty in the exercise of his sound judgment to protect said real estate from loss by fire for the benefit of the creditors of said bankrupt estate.</p> <p>Defendant denies that the bankrupt estate of Isaac Wilde and George C. Daymon, trading as Robert Wilde’s Son, for which estate the said defendant was and is receiver, was devoid of assets with which to pay the claim for which the suit was brought, but on the contrary, he received the sum of $900 from the sale of a lot of carpet waste, and on November 7, 1908, he filed his account of said sum in the said district court of the United States, which account is and has, since that time, been before the said referee, Alfred Driver, for audit.</p> <p>Deponent avers that William M. Simpson, one of the above-named plaintiffs, was present at the first meeting of the creditors of Isaac Wilde and George C. Daymon, trading as Robert Wilde’s Son, bankrupt, above particularly mentioned, and subsequently, about a week thereafter, called upon the said receiver to solicit an order for the fire insurance that was required, and to ascertain the manner in- which said policies should be written, so that he had full knowledge of the fact that Milton W. Kerkeslager was appointed receiver and trustee of the said bankrupt’s estate.</p> <p>That as receiver of said bankrupt estate, your deponent, believing it to be his duty to preserve the said bankrupt estate and protect the interests of the creditors thereof, and acting under the express oral direction of the referee, Honorable Alfred Driver, ordered and requested said plaintiff to place fire insurance upon the building and the machinery contained therein, situate on the southwest corner of Leverington avenue and Wilde street, as aforesaid, said insurance policies to be in the name of “Milton W. Kerkeslager, Receiver, Owner.”</p> <p>That pursuant to said order and request, all the policies mentioned in said plaintiff’s statement of claim were written and delivered by said plaintiff to said receiver in the name of said “Milton W. Kerkeslager, Receiver, Owner,” and the premiums therefor were charged to said receiver.</p> <p>The court made absolute-rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Municipalities—Sewer inlet — Contributory negligence— Pushing baby carriage in street.</p> <p>In an action by a woman against a city to recover damages for personal injuries occasioned by a break in the corner of a sewer inlet into which she fell while crossing a street, the plaintiff cannot be charged with contributory negligence as a matter of law, because, at the time of the accident, she was pushing before her a baby carriage with a canopy, which obstructed her view of the break in the street.</p>

<p>Appeal, No. 180, Oct. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., June T,, 1875, No. 1,030, making absolute rule for allowance of debtor’s exemption in case of The Pennsylvania Company for Insurance on Lives and Granting Annuities, Trustee under the Will of William H. Gregg, deceased, v. Henry Naglee Bruner et al., Heirs at Law of Henry Naglee Bruner, deceased.</p> <p>Assumpsit upon an appeal bond.</p> <p>Rule for debtor’s exemption out of a fund raised by a sale under a judgment on an appeal bond.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in making absolute the rule allowing the exemption.</p>

<p>Appeal, No. 10, Oct. T,, 1909, by defendants, from order of C. P. Berks Co., Nov. T., 1908, No. 22, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Clara E, Warrington and James A. Seagreaves, to use of D. Elmer Dampman, v. Ralph IT. Mengel and J. Hain Mengel, doing business as Men-gel & Mengel.</p> <p>Assumpsit for money had and received.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Stevens, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 8, Oct. T., 1909, by Morris Horkheimer, from decree of O. C.' Lancaster- Co., Nov. T., 1906, No. 46, dismissing exceptions to adjudication in Estate of Abraham Hirsh, deceased.</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

Appeal, No. 85, April T., 1910, by J. R. Trimble, from order of Q. S. Beaver Co., June T., 1909, No. 16, revoking a liquor license and refusing a transfer in re Revocation of License of J. R. Trimble. Petition to revoke liquor license. Petition to transfer liquor license.

<p>Statute of limitations — Charge on land — Acts of March 27,1713,1 Sm. L. 76, and April 27, 1855, P. L. 368 — Demand or acknowledgment within twenty-one years — Findings of fact.</p> <p>1. The character and weight of evidence required to rebut the presumption of payment of a charge upon land is under the Act of April 27, 1855, P. L. 368, very different from that required to establish a new claim or cause of action where there has been an absolute bar to recovery under the statute of limitations of March 27,1713,1 Sm. L. 76. Under the act of 1855 all that is necessary to prove to rebut the presumption that a charge on land had been paid is, that within twenty-one years a claim or demand had been made by the claimant, or payment, declaration or acknowledgment of the existence of the claim had been made by the debtor.</p> <p>2. A finding by the orphans' court based upon competent evidence that a claim or demand had been made for the payment of a charge upon land within twenty-one years, and a payment on account or acknowledgment of the existence of the claim had been made by the debtor within the same period, will not be reversed by the appellate court in the absence of manifest error.</p> <p>Courts — Jurisdiction—Supreme Court — Superior Court.</p> <p>3. The Superior Court has no power to review the action of the Supreme Court in directing that an adjudication of the orphans’ court should be open so that additional testimony might be taken.</p>

Appeal, No. 145, April T., 1909, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. .278, on verdict for defendant in case of Stefan Bos v. People’s National Bank of Tarentum. Assumpsit to recover the amount of a bank deposit. Before Swearingen, P. J. The facts are stated in the opinion of the Superior Court. At the trial the court gave binding instructions for defendant.

<p>Easement — Vendor and vendee — Sewer—Equity.</p> <p>Where an owner of land subjects part of it to an open, visible, permanent, and continuous service or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be. This is the general rule founded on the principle that a man shall not derogate from his own grant. Anyone taking the servient tenement, takes it subject to such easement; and if he attempts to interfere with its use, a court of equity has jurisdiction to restrain him, when the facts are undisputed as to the right.</p>

<p>Street railways — Passenger—Ejection from car — Damages—Punitive damages — Compensatory damages.</p> <p>1. Where a passenger in a street car after a controversy with the conductor about the fare leaves the car voluntarily at the request of the conductor, he will not be entitled to punitive damages in an action for wrongful ejection, if it appears that the conductor did nothing, except to give the passenger a push, and subsequently commanded him to leave the car in a violent and ungentlemanly manner.</p> <p>2. Exemplary or punitive damages are allowed only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage, or wanton recklessness.</p> <p>3. Where a passenger seventy-eight years old is wrongfully ejected from a street car, and is compelled to walk a distance of nearly a mile and been subjected to some delay in making a connection to reach his final destination, a verdict in his favor for $100 will be sustained, although the trial judge committed error in instructing the jury that the passenger was entitled to punitive damages. The amount of the verdict shows that the erroneous instruction had no effect upon the jury. The error was therefore harmless.</p>

<p>Wills — Construction—Share of estate — Bequest.</p> <p>1. Where a. sister who is entitled to a distributive share in the estate of her deceased brother, makes her will by which she gives to her nephew “whatever my share of my brother’s estate may be,’’ and thereafter she. is paid $1,000 on account of her share, all of which she retains in bank until her death, with the exception of $40.00, and after her death the remainder of her share in her brother’s estate is paid to her executor, the nephew is entitled to an amount of money equal to his aunt’s .share in that portion of the estate of her brother which the latter’s will, or the law cast upon her at the moment of his death.</p> <p>2. In such a case the fact that when the aunt’s will was made the money representing her share was still in the hands of the brother’s administrator, whereas at the time of her death a part of it had come into her own hands, is immaterial.</p>

<p>Practice, O. C. — Findings of fact — Appeals—Gift.</p> <p>1. Where a daughter claims the ownership of household goods as a gift from her deceased father, a finding of fact by the orphans’ court adverse to the claim will not be reversed on appeal, where it appears that the only evidence in support of the claim was the deposition of a woman ninety-four years old, which was general in character without any identification of the goods, and it also appears that the goods remained in the possession of the decedent until his death, and that the question of the gift had been passed upon in another proceeding in which no appeal had been taken.</p> <p>Executors and administrators — Bond-—Cost of entering bond — Act of June 24, 1895, P. L. 248.</p> <p>2. The Act of June 24, 1895, P. L. 248, allowing an administrator or trustee credit for money paid for entering a bond has no application to the case of a defaulting trustee who was compelled by his own neglect of duty to furnish a bond, or be removed from office.</p>

<p>Appeal, No. 151, Oct. T., 1909, by defendants, from order of C. P. No. 3, March T., 1909, No. 3,941, mailing absolute rule for judgment for want of a sufficient affidavit of defense in case of William Barnett et ah, trading as William Barnett & Sons, v. Charles Fein and William I. Greenfield.</p> <p>Replevin to recover certain machinery.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before McMichael, P. J., and von Moschzisker, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Justice of the. peace — Philadelphia magistrate — Jurisdiction— Amount — Interest—Relinquishment of interest.</p> <p>1. Where the record of a magistrate in Philadelphia county shows that the magistrate granted judgment for $100 with interest and costs, without specifying the amount of interest, and that this was done in the presence of the plaintiff and without any relinquishment of interest by the plaintiff, and subsequently the case is appealed and the court of common pleas on a rule to dismiss, and after depositions taken, finds as a fact that the plaintiff demanded before the magistrate an amount in excess .of the latter’s jurisdiction, the Superior Court on an appeal from an order dismissing the proceedings will not reverse the finding of the lower court, and will sustain the order made by it.</p> <p>2. The rule that a plaintiff in a suit before a justice of the peace cannot make a demand of less than the sum due him, in order to give the magistrate jurisdiction, does not apply to interest, as the plaintiff may relinquish that as it is no part of the cause of action to be litigated; but if he does not relinquish it, and permits the magistrate to enter judgment in his presence for principal and interest, bringing the aggregate amount above the magistrate’s jurisdiction, he will not be able to sustain the .proceedings when removed to the common pleas on appeal. The relinquishment of interest cannot be made for the first time in the , common pleas.</p>

<p>Master and servant — Salesman—Commission on sales — Profits— Case for jury.</p> <p>In an action by a salesman against his employer to recover compensation for services, it appeared that the plaintiff received a salary from the defendant, and had in addition a contract which provided as follows: “It is further agreed that should the total sales for the year exceed $50,000” the defendant should pay the plaintiff “a further remuneration of 5% on such excess, provided, however, that the total sales should show a profit of 20% average, or total profit of $10,000.” Plaintiff testified that the defendant refused to furnish him the cost prices of goods, and from time to time told him to sell at the prices given him, and that if he did so sell he would be safe in having a sufficient margin of profit on such sales to earn his commission. Plaintiff sold goods to the amount of $63,000. The defendant claimed that the profits were to be ascertained by taking the difference between the cost of goods plus the total expense of conducting the business, and the gross receipts. Plaintiff claimed that profits meant the difference between the cost price of the goods and the selling price. There was evidence that the defendant had at times adopted this construction of the contract. Held, that the question as to the meaning of the contract was under all the circumstances a question for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 44, Oct. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1908. No. 1,772, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Edward Barber et al. v„ George Miller.</p> <p>Assumpsit to recover commissions for renting real estate.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Sulzberger, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 13, Feb. T., 1909, by defendants, from order of C. P. Lycoming Co., discharging rule to dismiss certiorari in case of H. B. Earle et al., Citizens and Taxpayers of McNett Township, v. John Ryan et al., Supervisors, and James I. Fields, Town Clerk of McNett Township, and George E. Walker et al.</p> <p>Rule to strike off certiorari. Before Hart, P. J.</p> <p>On April 18,1908, the petition of a number of citizens and electors of McNett township was presented to the supervisors thereof, praying them to lay out and open up a public road in said township. On April 25, 1908, the supervisors reported against laying out the proposed road. On May 4,1908, a number of citizens of the township appealed from the action of the supervisors and asked for the appointment of reviewers. On May 9 and 20, 1908, reviewers were appointed. On June 18, 1908, the reviewers reported and returned to the town clerk the laying out of the public road as prayed for in the original petition to the supervisors; and on the same day the petition for the writ of certiorari was presented to the court of common pleas of Lycoming county; and the writ ordered to be issued. The petitioners for the road denied the right of the court to issue the writ of certiorari.</p> <p>Error assigned was order discharging rule to dismiss certiorari.</p>

<p>Contract — Sales—Affidavit of defense — Royalties.</p> <p>1. In an action to recover royalties under a continuing contract to sell a patented article, an affidavit of defense averring that there had been omitted from the contract by mistake a provision for its termination in a particular manner, is insufficient, if it does not also aver that the defendant had endeavored to terminate the contract in the manner provided for in the clause alleged to have been omitted from the agreement by mistake.</p> <p>2. Where in such a case the contract provides that a certain number of the patented articles should be sold per annum on a royalty of twenty per cent of the selling price to wholesalers, and twenty-five per cent to retailers, the court commits no error in entering judgment for plaintiff for twenty per cent of the lowest schedule price to dealers for the whole number of articles stipulated to be sold in one year, if it appears that no articles had in fact been sold.</p>

<p>Appeal, No. 127, April T., 1909, by defendant, from order of C. P. Venango Co., Aug. T., 1908, No. 51, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Bayliss et al. v. Charles N. Hough, trading as The Charles N. Hough Manufacturing Company.</p> <p>Assumpsit for royalties.</p> <p>Rule for judgment for want of sufficient affidavit of defense.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 76, April T., 1909, by defendant, from decree of C. P. Washington Co., No. 1,708, In Equity, on bill in equity in case of West Washington Borough v. J. G. Fouse et al.</p> <p>Bill in equity for an injunction. Before McIlvaine, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court below entered a decree enjoining the defendant from interfering with the use of the land in controversy as a public street.</p> <p>Errors assigned was the decree of the court.</p>

<p>Bailment — Sale—Change of contract.</p> <p>1. A written contract for the sale of a chattel may be subsequently changed by the parties into a bailment with an alternative for future conversion into a sale on compliance with stipulated conditions.</p> <p>2. The fact that'promissory notes are given for the installments of a rental in a bailment of a chattel, does not change the bailment into a contract.</p>

<p>Appeal, No. 172, April T., 1909, by defendant, from judgment of C. P. Butler Co., Dec. T., 1907, No. 53, on verdict for plaintiff in case of R. W. Stewart v. Glade Mill Mutual Fire Insurance Company.</p> <p>Assumpsit on a contract of fire insurance. Before Gal-breath, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[But, it is contended, that inasmuch as the plaintiff’s farm was within less than 100 feet of an oil well, it could not be insured under the provisions of the defendant company’s constitution; that the defendant company cannot, by an estoppel, be held to have done that which it could not do directly; that no estoppel could arise inasmuch as the constitution of the company provides, in art. 2, sec. 6, “That no policy of this company will be issued to cover the loss on any property within one hundred and fifty feet,” nor “one hundred feet from any drilling or producing oil or gas well.” And it also provides, as set forth in this article, “If at any time after a policy of this company has been issued, the conditions mentioned in this article are found to exist, the executive committee may, after five days’ notice given the holder of such policy, cancel the same.” This provision of the constitution is not a prohibition, but a declaration of the company’s policy not to place insurance on certain classes of property, with the provision that if at any time after a policy is issued, the conditions mentioned are found to exist, the executive committee may, after five days’ notice, cancel the policy. But, whatever the force of the provision of the constitution, that provision contained a self-imposed limitation or restriction which the company making it could waive. The executive committee was the company for the purpose of placing insurance. Its work was final and conclusive and was the act of the company in that respect, and if its action involved a waiver of the self-imposed restriction of the company, we think it must be viewed as a waiver of the company of the constitutional provision. Its act, therefore, in levying an assessment on the plaintiff and sending him notice thereof must be taken as being the act of the company and a waiver of the self-imposed restriction or declaration of policy contained in the constitution of the company, and, if by that act the plaintiff was lured into a position of imagined security to his prejudice, the company cannot be heard to deny its act.] [1]</p> <p>[So, gentlemen, the question is for your disposition or at least the principal inquiry, I think, will be, when you return to your jury room, whether or not, by the sending of this assessment the plaintiff was lured into a position of imagined security, which really did not exist. If he was, then, we think the defendant company is estopped from now saying that he did not have insurance in their company. If they, by their own act, have led him to believe that he was insured in their company, even if that action be the result of a mistake on their part, it was a mistake of their company, and not of the plaintiff, or if by any act they made him believe he was insured in answer to a proposition submitted for insurance and which was in their possession, then, we think, under these circumstances, the company would be estopped from setting up the fact that it had not issued a policy in this case and would be estopped from saying the plaintiff did not have insurance in the defendant company. An estoppel may arise either by silence when there is a duty to speak, which can only be the case where the party sought to be estopped has knowledge or information which calls upon him to speak, or without such knowledge by some positive word or act which tends to encourage or mislead another and does so encourage and mislead him to his injury by luring him into a position of imagined safety or security. Now, the kind of estoppel that is claimed here is of the latter class. That is, if the defendant company by a positive act in sending this notice of assessment to plaintiff, encouraged plaintiff to believe and misled him into believing that he had insurance in the defendant company, although the policy had not yet been received by him.</p> <p>So, gentlemen, if you find that the plaintiff was so misled into a position of imagined security on that account, then, we say to you by virtue of this assessment, the defendant company is now estopped from saying that he did not have insurance, and, in that event, it would be your duty to find a verdict for the plaintiff for the amount of his claim, which is $1,200, which would bear interest from the time of the fire, December 8,1906. If you find, however, that he was not lured into a false position, then, gentlemen, there can be no estoppel.] [2]</p> <p>Defendant presented these points:</p> <p>3. It is in evidence that the application of the plaintiff for insurance with the defendant company was made on November 2, 1906, and the property of the plaintiff was destroyed by fire on the morning of December 8, following; that an assessment having been made by the executive committee, the secretary of the company sent notice of the assessment to the plaintiff on or about November 21, 1906; that this assessment was of two mills upon the face of the policies, and the assessment so sent to plaintiff was for $1.80, which would be two mills upon a policy of $900, being the amount of a former policy in the company held by the plaintiff, but which had expired shortly before November 2, 1906; that the assessment was not made upon the policy in suit but upon the former policy upon the mistaken belief upon the part of the secretary that the former policy was still in force; that the secretary had no knowledge of the plaintiff’s application for a new policy at the time he mailed the assessment to the plaintiff; that after the fire the plaintiff, on the same day of the fire, sent the amount of the assessment to the treasurer of the defendant company, the money reaching the treasurer late that evening, being a Saturday; that the treasurer had no knowledge of the application of the plaintiff for insurance or of the fire until that evening; that it was not until the morning of December 10 that the treasurer had knowledge that the company had not received the application for insurance, when he was leaving home to attend to the business of the company; that when the treasurer returned to his home on December 12, he returned the assessment to the -plaintiff, who then'received it; that the application for insurance, though taken by the agent of the company on November 2, was not sent in to the company until December 10, after the fire, which was the first information the executive committee had that the application had been made; that the agent taking the application mailed it to the secretary of the company on December 10, 1906, and on December 13, it was returned by the secretary to the agent; that under the by-laws' of defendant company the executive committee was not permitted to accept the application or issue the policy; that the by-laws required at least two of the executive committee, .composed of the president, secretary and treasurer, to approve the application, which was never done; that the plaintiff, upon receiving-the assessment without the policy was put upon inquiry as to why the policy had not been issued to him, which inquiry he could readily and speedily have made, but did not make. In addition to this, it has not been shown that the plaintiff relied upon the assessment as an acceptance of his application for insurance and was injured thereby. Under these undisputed facts the defendant company is not es-topped from setting up as a defense in this case that the company never did agree with the plaintiff to accept his application of November 2, for insurance, and never did agree to insure him. Answer: That is refused. [4]</p> <p>5. Under all the facts in this case, there can be no recovery by the plaintiff, and the verdict must be for defendant. Answer: That is refused. [5]</p> <p>Verdict and judgment for plaintiff for $1,338. Defendant appealed;</p> <p>• Errors assigned among others were (1, 2, 3, 4, 5) above instructions, quoting them.</p>

<p>Master and servant — Compensation—Evidence—Case for jury.</p> <p>In an action against an executrix, who was sole legatee of her husband, to recover compensation for services, where the plaintiff testifies positively, although contradicted by the defendant, that immediately after the decedent’s death the defendant promised to pay him the same compensation that he received from the decedent, which was a certain amount per week and a certain stated extra compensation at the end of the year, and the plaintiff’s testimony as to the extra compensation, there being no dispute about the weekly wages, is corroborated to some extent by declarations of the executrix, and by the fact that plaintiff did night work as an extra service, the case is for the jury, and if a verdict and judgment is rendered for plaintiff it is error for the court to set it aside and enter judgment for defendant non obstante veredicto.</p>

Appeal, No. 12, Oct. T., 1909, by defendants, from judgment of C. P. No. 5, Phila. Co., March T., 1907, No. 4,500, on verdict for plaintiffs in case of Louis Kauffman and Louis Harris, trading as Kauffman & Harris, v. Central Railroad of New Jersey. Trespass to recover damages for injuries to a case of shirt waists. Before Ralston, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiffs for $456.75. Defendants appealed.

Appeal, No. 25, Oct. T., 1909, by plaintiff, from decree of C. P. No. 3, Phila. Co., Sept. T., 1907, No. 3,872, dismissing bill in equity in case of Carl Ebert v. William Kaufmann. Bill in equity for an injunction. Moschzisker, J., found the facts to be as follows. 1. William Kaufmann for several years carried on the business of a baker, caterer, confectioner and ice cream dealer at No. 8103 Frankford avenue, in the city of Philadelphia. 2.

<p>Appeal, No. 66, Oct. T., 1909, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,760, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John L. Moore, Trustee of the Estate of Henry E. Sealey & Co., Inc., Bankrupt, v. Third National Bank of Philadelphia.</p> <p>Assumpsit to recover money had and received.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Moschzisker, J., filed the following opinion:</p> <p>On January 16,1908, at 3:45 p. m., a petition was filed, praying that Henry E. Sealey & Co., Inc., be adjudged bankrupt. In due course they were so declared, and John L. Moore, the plaintiff herein, was appointed trustee. On the day that the petition was filed, but before 3 p. m., Henry E. Sealey & Co., deposited in their bank account with the defendant bank sundry checks aggregating $335.03, and received the usual credit in their pass book therefor, which checks were collected in due course on the following day by the bank. On the date of the deposit in question, Henry E. Sealey & Co. were debtors to the bank as indorsers on certain commercial paper, and the bank claims the right to retain the greater part of the deposit to cover this indebtedness. The substantial question in dispute relates to the ownership of a deposit made on the day the petition in bankruptcy was filed but at an earlier hour. The question is, Has the bank the right to retain this deposit as against the trustee of the bankrupt estate?</p> <p>The plaintiff contends that the bank has no such right, and in support of its contention two reasons are assigned: First, that the law will not recognize fractions of a day, and, hence, the act of bankruptcy relates back to the very beginning of the day on which the deposit was made, and the title to the money covered by the deposit was in the trustee and not in the bankrupt. This being so, it is argued the deposit in question cannot be considered in adjusting the mutual credits between the bankrupt and the bank. The second ground is, even assuming that fractions of a day will be recognized, the bank held the checks for collection only and the proceeds thereof were not received by it until the day after the filing of the petition.</p> <p>We have reached the conclusion that the plaintiff’s first contention must be sustained, and, therefore, it becomes unnecessary to consider or discuss the second.</p> <p>Collier on Bankruptcy (6th ed.), 1907, at p. 332, states: “The rule seems to be that fractions of a day will be disregarded. This doctrine is the composite of an ancient controversy. Cases under the present law and its predecessor cited in the footnote will, therefore, lead the investigator into the domain of history. There can now, however, be no question about the rule being as stated.”</p> <p>In Long’s App., 23 Pa. 297, several writs of foreign attachment were issued and served on the same day against a person who was in failing circumstances. The question was whether the creditor owning the first writ should take the whole fund or whether the proceeds of the sale should be distributed pro rata among the several attachments in proportion to the amount of the judgment obtained in each case. It was decided that the money should be distributed pro rata. Mr. Justice Lewis said in considering this question: “It is a principle of the common law, that in judicial and other public proceedings, there are no fractions of a day, and that all transactions of the same day are, in general, regarded as occurring at the same instant of time. ... To prevent gross injustice, the order of events will always be investigated. But neither necessity nor justice requires that one creditor should be aided in seizing all the assets of his debtor, to the entire exclusion of others equally meritorious. For this reason, where judgments are entered on the same day, the law will not inquire into the order of their entry, but all will be regarded as having been entered at the same time, and the money raised by the sale of the debtor’s property will be divided pro rata between them. . . . The presumption is that the debts are all equally just/and if so, the principle of equity requires that they should all participate equally in the remnant of their debtor’s property. So that the introduction of the fractional principle, so far from being justified by unavoidable necessity for the purpose of doing justice, would be productive of the gross injustice of giving a monopoly of the assets to one creditor, to the total exclusion of other claims equally just. Thus the wholesome principle of the common law would be departed from for a purpose which a chancellor would never lend his aid to accomplish.”</p> <p>The rule is well stated by Thayer, P. J., in Simpson v. Mancill, 17 Phila. 265: “It is a general rule that the law will not take notice of a fraction of a day except in cases where it is necessary for the purpose of justice to do so, the reason being, according to Sir Edward Coke, ‘the uncertainty which is always the mother of confusion and contention.....’ There are undoubtedly many cases in which the rule which ignores fractions of a day will not be applied. Where it is necessary in order to prevent a manifest injustice the exact hour or minute at which acts were done may be shown, but the ancient rule laid down that the law will take no notice of fractions of a day unless where it is to prevent a great mischief or inconvenience, 3s still the general rule. ”</p> <p>Is there any reason in the present instance why we should depart from the rule as stated in the above cases? Would injustice be done to anyone by adhering to the rule? It appears that the bank held the note upon which the bankrupt was indorser for some time prior to the filing of the petition in bankruptcy. It in no way changed or altered its position or extended credit in reliance upon the deposit made a few hours before the petition in bankruptcy was filed. We see no reason why the bank should be preferred or why it has any greater equitable claim to the money covered by the deposit than the other creditors of the bankrupt, and therefore we see no reason why the general rule that the law will not take note of a fraction of a day should be departed from for the benefit of the bank.</p> <p>Two rules are before the court: One for judgment for the part of the claim as to which the affidavit of defense is insufficient; the other for judgment generally. The first is marked withdrawn and the second is made absolute.</p> <p>Error assigned, was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Road law — Municipal liens — Contract—Act of June 4, 1901, P. L. 364.</p> <p>1. Where a city ordinance provides for the paving of three blocks of a street, the work to be begun on one block which was ready and to progress as the others were made ready, “ the intent being that the completion of the pavement on each square shall be the completion of the improvement as authorized by ordinance,” the contractor has a right to a lien for the paving of the first block as soon as the block is finished, and he is not deprived of such lien by the fact that before he did the work he required the property owners in the block each separately to agree that they would not interpose any defense to assessments against their property based on the ground that the whole of the three blocks had not been finished.</p> <p>2. Under the Act of June 4, 1901, sec. 10, P. L. 364, where the proper officer of the proper department of the city certifies as to the date of the completion of the paving of the street, the property owner cannot resist the payment of an assessment, on the ground that the lien was not filed “within six months after the completion of the improvement,” where the date of completion stated in the certificate, showed that the lien was filed within the six months.</p>

<p>Appeal, No. 72, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 3,358, for defendant non obstante veredicto in case of James M. Vansant and Addie K, his wife, v. John Mc-Menamy.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>In addition to the facts stated in the opinion of the Superior Court it appeared that the defendant at the time of the accident was constructing a public road in the course of which work he used a stationary upright steam boiler and pump to pump water from a neighboring creek into a water wagon. The boiler had been placed on the side of the road. The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict for James M. Vansant for $200, and for Addie K. Vansant for $300.</p> <p>The court subsequently entered judgment for defendant non obstante veredicto. Plaintiffs appealed.</p> <p>Error assigned was in entering judgment'for defendant non obstante veredicto.</p>

<p>Municipalities — Sewei's—Connection of sewers — Ordinances of the city of Philadelphia — Act of May 16, 1891, P. L. 75.</p> <p>1. The Philadelphia ordinance of March 9, 1867, p. 68, imposing a charge of $7.50 for a permit to connect with the sewer was repealed by the ordinance of March 30, 1889, p. 142, which imposed a charge of $4.00 for such permit, and the latter ordinance was in turn repealed by the ordinance of March 30, 1895, p. 61, providing charges regulated according to various kinds of paving, and imposing a charge of $1.00 for a permit where the street is unpaved.</p> <p>2. The Philadelphia ordinance of March 9, 1867, which imposes a charge of $7.50 for a permit to connect with a sewer, where the party applying had not contributed to the original construction of the sewer, and a charge of $3.00 where the party had contributed to the construction, is invalid either as an exercise of the police power, or of the taxing power, inasmuch as it involves an unfair and-improper classification.</p> <p>3. If a property has been benefited by the construction of a sewer it may be compelled to contribute to such construction by special assessment in the manner provided by the Act of May 16, 1891, P. L. 75, but the city cannot arbitrarily assume that the property has been benefited and exact for such benefit an excessive charge from the owner for the privilege of connecting with the sewer.</p>

<p>Appeal, No. 70, Oct. T./1909, by plaintiff, from judgment of O. P. No. 2, Phila. Co., Sept. T., 1908, No. 4,727, for defendant on case stated in suit of Staten Island Rapid Transit Railway Company v. John Y. Hite and Louis Rafeto, Copartners.</p> <p>Assumpsit to recover demurrage charges on cars. Before WlLTBANK, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Lunacy — Act of May 28, 1907, P. L. 292 — Receiver—Appointment of receiver — Allowance to wife.</p> <p>Under the Act of May 28, 1907, P. L. 292, it is within the sound discretion of the court of common pleas to appoint a temporary receiver of the estate of an insane or feeble-minded person, and to direct that out of an estate of $240, $3.00 a week should be paid to the wife of the lunatic, and $1.75 per week to the poor district responsible for his support in an insane asylum.</p>

<p>Husband and wife — Liability for necessaries — Provision for wife.</p> <p>1. Where a husband has separated from his wife and has started proceedings for a divorce, but in the meantime pays over to her for her maintenance one-half of his income of $6,000 to $7,000, and advertises that he will not be liable for her debts, a furrier with whom the husband and wife had no prior dealings cannot charge the husband for a bill of $225 worth of furs purchased by the wife and delivered to her after the separation.</p> <p>2. The obligation of the husband for necessaries supplied to the wife during coverture arises from the law regarding her as his agent for that purpose; and hence his assent is implied to all contracts of this kind, made through her during cohabitation. If the husband has separated from his wife and has made ample provision for her, the law will presume that the agency has ceased, and whoever deals with the wife does so at his peril.</p>

<p>Appeals — Practice—Jurisdiction of Superior Court — Affidavit of defense — Supplemental affidavit of defense.</p> <p>1. Where the.court below has discharged a rule for judgment for want of a sufficient affidavit of defense and the plaintiff has taken an appeal to the Superior Court, the latter court will not permit the defendant to file a supplemental affidavit of defense, averring certain facts which did not come to his knowledge until after the appeal had been taken, though in fact they happened prior to the institution of the suit.</p> <p>Husband and wife — Agreement of separation — Covenants.</p> <p>2. A valid agreement may be made which provides for the separation of husband and wife, and for a stipulated allowance for her support where the separation is inevitable and immediate, and the validity of such covenants has been established by repeated decisions. They are to be disposed of as contractual covenants without regard to their sentimental source, and are to be enforced and defended against as any other covenant.</p> <p>3. In an action by a wife against her husband to recover a weekly allowance provided for in articles of separation, an affidavit of defense is sufficient which avers that the plaintiff in violation of covenants of the agreement had the defendant arrested for nonsupport, had molested and annoyed him on the street, had threatened him, had circulated untrue stories about him, and had purchased goods and merchandise in his name, and had endeavored to persuade those from whom she had purchased to harass and sue the defendant.</p>

<p>Principal and agent — Liability of agent — Covenants.</p> <p>1. An agent does not become bound personally by the covenants into which he enters on behalf of his principal. When it is sought to compel an agent to perform the covenants of a contract made on behalf of his principal by an action on the contract, it must be shown that he covenanted to be bound individually, or it must be averred and proved that in making the contract he acted without the authority of his principal.</p> <p>Set-off — Contract—Assumpsit—Action ex delicto — Partners.</p> <p>2. The defendant in an action of assumpsit may set off a claim for damages arising out of the breach of an independent contract, but the terms of such contract must be sufficiently averred.</p> <p>3. The defendant in an action of assumpsit cannot set off a claim for damages arising out of an independent transaction for which he would have to bring an action ex delicto.</p> <p>4. Where the plaintiff in an action of assumpsit sues for a debt due him as an individual, the defendant cannot, without the consent of all the parties, set off a claim against a firm of which the plaintiff was a member.</p>

<p>Appeal, No. 126, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1907, No. 291, sustaining demurrer to statement of claim in suit of E. Lowenstein v. J. S. Bache et al., Copartners, trading as J. S. Bache & Company.</p> <p>Assumpsit to recover back money paid under duress.</p> <p>Demurrer to statement of claim. Before McMichael, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the judgment of the court sustaining •demurrer to statement of claim.</p>

<p>Appeal, No. 139, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1903, No. 3,401, on verdict for plaintiff in case of J., S. Strafford Publishing.Company v. N. Stetson & Company.</p> <p>Appeal from judgment of magistrate.</p> <p>The material portion of the contract upon which suit was • brought was as follows:</p> <p>“Philadelphia, Nov. 8, 1902.</p> <p>“The publishers reserve the right to refuse any advertisement of an objectionable character.</p> <p>“Privilege weekly change.</p> <p>“Keith’s New Chestnut Street Theatre.</p> <p>“Insert our advertisement in the Keith’s Chestnut Street Theatre programme for the (no other piano house Ad. but Blasius & Sons) theatrical season of 1902 and 1903, to occupy space of opposite page 4, one page, for which we agree to pay ten dollars per week payable every four weeks.”</p> <p>At the trial the defendant asked one of his own witnesses the following question:</p> <p>“Q. (Contract dated August 27, 1902, between defendant and Joseph T. Maculley for advertising defendant’s business in the theatrical programme of the Academy of Music for the season of 1902 and 1903, shown to witness.) What was the duration of the season named in that contract? ”</p> <p>Objected to. Objection sustained. Exception allowed defendant. [1]</p> <p>“Q. (Similar contracts shown witness for advertising defendant’s business in theatrical programmes for the theatrical season of 1902 and 1903, or thereabouts in the following theaters, namely, Broad Street Theater, Chestnut Street Theater, Chestnut Street Opera House, Park Theater, Walnut Street Theater, Garrick Theater and Girard Avenue Theater, shown to witness), and witness is asked to state the duration of the theatrical season in connection with said contracts.”</p> <p>Objected to. Objection sustained. Exception allowed defendant. [2]</p> <p>Defendant presented these points:</p> <p>2. If you find from the evidence that Keith’s New Chestnut Street Theater was open continuously throughout the years 1902 and 1903, from and after the date of the contract between the plaintiffs and the defendant, and had no “season,” then the contract is void for uncertainty, and you will find a verdict for the defendant. Answer: Refused. [6]</p> <p>3. Under all the evidence in this case the jury is directed to find a verdict for the defendant. Answer: Refused. [7]</p> <p>Verdict and judgment for plaintiff for $53.72. Defendant appealed.</p> <p>Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions; and (6, 7) above instructions, quoting them.</p>

<p>Landlord and tenant — Covenant for quiet enjoyment — Eviction.</p> <p>1. The implied covenant for quiet enjoyment in a lease is broken, where the lessee, without fraud or collusion after a suit has be¡en brought against him by a third person asserting a paramount title, yields possession to such person, and on the trial of an issue between him and the landlord proves that the third person had title paramount.</p> <p>2. Where a lessee is evicted from a portion of the land demised, he may in an action against him by the landlord to recover rent which had accrued after the eviction set up the eviction as a defense, although the deeds of both the lessor and the person having the paramount title to the portion of the land from which the lessee was evicted are of record. In such a case the lessee has a right to rely upon the lessor’s representations as to the location of the demised premises and the covenant of quiet enjoyment, and is under no duty to search the records to ascertain whether the lessor had" good title.</p> <p>Landlord and tenant — Parol evidence — Evidence—Location of land.</p> <p>3. Parol evidence may be given to explain a written lease so far as to give locality and identity to the subject-matter, and apply the contract to it.</p> <p>Principal and agent — Scope of authority — Misrepresentations.</p> <p>4. In determining whether a principal is responsible to third persons for the misrepresentations of his agent, it is the apparent scope of the agent’s authority, and not his actual instructions, that must govern. This rule applies where an agent' of a lessor gives a wrong description of the land to the lessee.</p> <p>Landlord and tenant — Eviction—Rent.</p> <p>5. Where a lessee is evicted from the most valuable portion of the land demised, he cannot subsequently be compelled to pay any portion of a quarter’s rent, .where it appears that distraint had been made for the entire quarter’s rent, and the lessor offers no evidence from which the jury could ascertain the proportionate rental value of the premises retained by the lessee.</p>

<p>Contract — Breach of warranty — Evidence—Measure of damages.</p> <p>1. In an action to recover back money paid for a water filter purchased under a warranty that it would give clear and sparkling water, the defendant will not be permitted to show that other filters furnished to them by other persons did good service.</p> <p>2. Where there has been a breach of a warranty of goods sold, the purchaser may retain the goods warranted, sue in affirmance of the contract and recover as damages the difference between the value of the goods if they had been as warranted and as they actually were on delivery, but he is not bound to do so. He may return or offer to return the goods and sue in rescission of the contract, in which case the measure of his damages is the amount of the purchase money paid.</p> <p>Evidence — Parol evidence — Contract—Confirmation of phone order.</p> <p>3. Where a letter from a purchaser of a filter to the seller states that the letter is to confirm phone orders of a previous date, and requests delivery of the filter at a particular place “ as per your quotation of the 17th,” parol evidence is admissible to show the price quoted over the phone, but not set forth in the letter.</p>

<p>Appeal, No. 209, Oct. T., 1900, by Frank P. Martin, Assignee of J. Elwood Phipps et ah, from decree of O. C. Phila. Co., Jan. T., 1909, No. 249, dismissing petition to pay over legacies in Estate of Thomas E. Bennett, deceased.</p> <p>Petition to pay over legacies.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree directing payment of. the legacies.</p>

<p>Appeal, No. 237, Oct. T., 1908, by plaintiffs, from order of C. P. Franklin Co., April T., 1907, No. 95, refusing to take off nonsuit in case of John M. Miller and George A. Miller, trading as Miller Brothers, Subcontractors, v. Harvey J. Fitz, Contractor, and Mary Dulany Barker, Owner.</p> <p>Scire facias sur mechanic’s lien. Before Gillan, P. J.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned among others was refusal to take off nonsuit.</p>

<p>Appeals — Assignments of error — Final decree — Evidence—Quashing appeal.</p> <p>1. An appeal will be quashed where the assignments of error are to the action of the court in not sustaining exceptions to an adjudication in equity, but the record fails to show any final decree dismissing the exceptions.</p> <p>2. An appeal in an equity case will be quashed where the record does not contain the certificate of the judge as to the correctness of the record as required by rule XXVII, sec. 11.</p>

Appeal, No. 182, Oct. T., 1909, by defendant, from decree of C. P. No. 5, Phila. Co., March T., 1908, No. 4,635, on bill in equity in case of Daniel Meyers v. Frank S. Ritter. Bill in equity for specific performance. Before Staake, J. The opinion of the Superior Court states the case. Errors assigned were in not sustaining various exceptions filed by defendant.

Appeals, Nos. 77 and 86, Oct. T., 1909, by plaintiff and defendant, from judgment of C. P. No. 3,'Phila. Co., June T., 1905, No. 2,155, on verdict for plaintiff in case of Robert D. Perry v. Pennsylvania Railroad Company. Trespass to recover damages for ejection from train and for false arrest. Before McMichael, P. J. ' The facts are stated in the opinion of the Superior Court.

Appeal, No, 175, Oct. T.,1909, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1909, No. 3,581, discharging rdle for judgment for want of a sufficient affidavit of defense in case of Estey Company v. Mrs. George Dick and Columbia Storage Company. Replevin for a piano. The facts appear by the opinion of the Superior Court. Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 69, Oct. T., 1909, by defendant, from judgment of O. P. Wyoming Co., Oct. T., 1907, No. 51, on verdict for plaintiff in case of Mary Thompson v. The Delaware, Lackawanna & Western Railroad Company.</p> <p>Trespass' to recover damages for death of an illegitimate child seven years old. Before Terry, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $779. Defendant appealed.</p> <p>Error assigned was in refusing to give binding instructions for defendant.</p>

<p>Appeal, No. 203, Oct. T., 1909, by defendant, from judgment of C. P. Wyoming Co., June T., 1909, No. 50, on verdict for plaintiff in case of Arch. B. Miller v. Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,200. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 80, Oct. T., 1909, by plaintiff, from order of C. P. No. 4, Phila. Co., Jan. T., 1908, No. 282, discharging rule for judgment for want of a sufficient affidavit of defense in case of Frank Samuel and Silas M. Tomlinson, trading as Frank Samuel, v. Sota and Aznar, trading as Sota & Aznar.</p> <p>Foreign attachment.</p> <p>The defendant filed an affidavit of defense which was as follows:</p> <p>Victor de Ysasi, being duly'sworn according to law, deposes and says that he is .the duly .authorized agent and representative of the United States of the above defendants, Ramon de la Sota and Luis Maria de Aznar, copartners, trading as Sota & Aznar, of London, England, and Bilboa, Spain; that he is familiar with the facts of the above-mentioned suit or claim of Frank Samuel, plaintiff; and that defendants, and each of them, have a full, true and just defense to the whole of plaintiff’s claim, of the following nature:</p> <p>Defendants admit the correctness of plaintiff's two claims of $174, with interest from October 1, 1906, and $602.21, with interest from March 8, 1907, as set forth in plaintiff’s statement of claim, and hereby expressly waive proof of the same at the trial of this cause.</p> <p>As a set-off to plaintiff’s said claims and a counterclaim in favor of defendants, deponent alleges that on September 19, 1906, defendants sold to plaintiff 13,000 to' 15,000 tons of Chavarri’s Garrucha iron ore, tel. quel, (meaning as the ore comes from the mines) at eleven shillings three pence per ton f. o. b. Garrucha, Spain; on a basis of fifty per cent of iron and manganese with three pence scale (meaning that if said ore ran over fifty per cent in iron and manganese, buyer pays seller three pence per unit of such excess, and if ore runs under said fifty per cent seller allows buyer three pence per unit for such deficiency). Shipment of said ore was to be made one cargo in October, one in November and one in December, 1906, steamer to be chartered by sellers in accordance with instructions from buyer and at his . expense, and any dispute under the contract to be settled by arbitration in London, as customary. A copy of said contract of sale is hereto attached marked exhibit “A” and made a part of this affidavit.</p> <p>Chavarri’s Garrucha iron ore, the subject of said contract of sale, was known by plaintiff and defendants at the timé of the execution of said contract to be iron ore mined by one Chavarri at his mines at Garrucha, Spain, and from him purchased by defendants and by them sold to plaintiff. Defendants had, on June 16, 1906, contracted to buy from said Chavarri’s firm Chavarri, Lecoq & Company, 30,000 tons of said Garrucha iron ore at eight shillings five pence per ton f. o. b. Garrucha, with five pence per ton added for loading; the ore to be lifted in approximately equal monthly quantities between July 1, 1906, and February 28, 1907, payment to be made upon delivery of bill of lading. Said 30,000 tons defendants sold to various parties, including plaintiff, selling to plaintiff by said contract of September 19, 1906, approximately the tonnage defendants would be required to lift from said mines in October, November and December, 1906.</p> <p>During the months of October, November and December, 1906, the time for performance of plaintiff’s said contract with defendants, defendants were ready and willing at all times to deliver f. o. b. Garrucha, 13,000 to 15,000 tons of Chavarri’s Garrucha iron ore of the character called for by said contract and were ready in all other respects to perform their part of said contract, but plaintiff’s instructions to defendants to charter vessels were at such low rates that no vessel could be obtained, and plaintiff refused and neglected to charter vessels at the prices that were offered to him by defendants, or to charter them elsewhere. During the months of October, November and December, 1906, defendants frequently notified plaintiff that he would be required to lift the ore under his said contract before the expiration of the year 1906, or the mine owners would cancel the tonnage. At plaintiff’s request defendants negotiated with the said mine owners to postpone delivery of said ore until January and February, 1907, but plaintiff failed and neglected to charter any vessels during said months and failed to lift or accept any of said ore, although duly requested so to do, and in the month of February, 1907, said mine owners finally canceled 13,000 tons of the aforesaid order for said Garrucha ore and refused to deliver same to defendants.</p> <p>Said Garrucha ore, according to analysis, contained 43.83 per cent of units of iron and manganese, which, on the aforesaid fifty per cent basis of said contract of September 19,1906, would have required an allowance by defendants to plaintiff of one shilling six and one-half pence per ton. Defendants would also have been required to pay one and one-half pence per ton as a commission to their representatives in Spain, which, with five pence per ton for loading, would have made the cost to defendants of said ore f. o. b. Garrucha ten shillings six pence per ton. Wherefore defendants have lost as their profit the difference between eleven shillings three pence and ten shillings six pence, or nine pence per ton on 13,000 tons, or $2,379, which they would have made on said contract of September 19, 1906, but for plaintiff’s default. In March, 1907, defendants as required by the aforesaid contract promptly requested plaintiff to name arbitrators in London to whom to submit the aforesaid dispute as was customary, but- plaintiff refused to submit the same to arbitration.</p> <p>Wherefore, there is justly due and payable by plaintiff to defendants the sum of $2,379, with interest from February 27, 1907, less the aforesaid credits of $174, with interest from October 1, 1906, and $602,21, with interest from March 8, 1907, for which balance, together with the costs of this action, defendants will demand a certificate in their favor upon the trial of this cause.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Constitutional law — Courts—Stenographers—Payment of stenographer — Act of May 1, 1907, P. L. 135.</p> <p>The portion of the Act of May 1, 19.07, P. L. 135, which authorizes the placing upon the county of' the burden of paying for typewritten copies of the stenographic reports of trials furnished to the plaintiff and defendant, or their respective counsel, in litigation between private parties in which the public has no direct interest, is not unconstitutional; but no such copies can be furnished, except in pursuance of a special order of the court in each case, unless the case has been appealed to the Supreme or Superior Court. A general order of court directing copies of the notes to be furnished to the plaintiff and defendant in all private cases is invalid, inasmuch as the court cannot divest itself of the discretion which it must exercise in each particular case.</p>

<p>Appeal, No. 14, Oct. T., 1909, by defendant, from judgment of O. P. No. 5, Phila. Co., Sept. T., 1906, No. 3,296, on verdict for plaintiffs in case of Nicholas Zeller et al., trading as Rhode Island Manufacturing Company, v. Herman Haupt.</p> <p>Assumpsit for goods sold and delivered. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $363.20. Defendant appealed.</p> <p>Errors assigned were (1) in directing a verdict for plaintiffs; (2) in refusing motion for judgment n. o. v.; (3-6) exclusion of oral testimony relating to the contemporaneous oral agreement referred to in the opinion of the Superior Court.</p>