Volume 42 — Pennsylvania Superior Court Reports

<p>Vendor and vendee — Covenants—Default of grantee — Contract.</p> <p>1. The clause of forfeiture or termination of the estate, upon the failure of a purchaser or lessee to pay purchase money or rent at the time by the contract required, is presumed to be for the benefit of the grantor or lessor, and as against him no default of the grantee or lessee can release the latter from his covenant to pay, unless the intent of both parties to that effect be made to appear by clear, precise and unequivocal language.</p> <p>2. Covenants that the contract shall become void, or that the estate shall cease and terminate, on failure by the grantee or lessee to pay at the time specified, are not self-operating and do not make the contract void except at the option of the grantor or less.or.</p> <p>3. Where a written contract for the purchase of land at a specified price payable in installments provides that in case of default in payment of any one or more of the installments “all rights of the” purchaser “and all his right, title, interest and claim in said described premises shall become null'and void . . . .” and all “moneys theretofore paid as well as the premises shall in such event belong to” the vendor “as liquidated damages for the time said property was under the control of” the purchaser, the "vendor has the right to elect either to assert and enforce the forfeiture, or to insist upon the performance of the contract.</p> <p>Contracts — Deeds—Foreign law — Evidence.</p> <p>4. The laws of a foreign country or another state of the union must be proved as facts, and, in the absence of allegation or evidence to the contrary, must be presumed to be same as that of the forum.</p>

<p>Affidavit of defense — Practice, C. P. — Set-off—Rent—•Married woman.</p> <p>In an action of assumpsit an affidavit of defense is sufficient which avers, in order to establish a set-off, that the plaintiff was a married woman, that her husband had absconded and was living in another state, that for a period of months stated, plaintiff had used and occupied a house which the defendant had bought in foreclosure proceedings against plaintiff’s husband; that the rental claimed was a reasonable one according to rents paid for similar adjoining houses, that plaintiff had paid a portion of said rentals, but that the remainder was still due, and that defendant was entitled to set it off as against plaintiff’s claim.</p>

<p>Appeal, No. 96, Oct. T., 1909, by defendant, from judgment of 0. P. No. 2, Phila. Co., June T., 1907, No. 2,075, on verdict for plaintiff in case of John J. DeKyne v. George Smith.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented the following points:</p> <p>1. If the plaintiff, having seen the defendant’s wagon approaching the crossing while still five yards distant from him, saw, or by the exercise of reasonable care could have seen the track or tracks in the bed of the street and had knowledge that “ when the forepart of the wagon struck the railroad tracks and the horses turned, naturally anybody knows that a wagon would skid around,” he, the plaintiff, is chargeable with such knowledge, and if, by stepping backwards a reasonable distance under the circumstances, he could have put himself in a position of safety and avoided contact with the wagon of the defendant and failed to do so, the verdict should be in favor of the defendant. Answer: Refused. [1] '</p> <p>4. That under all the evidence in this case the verdict should be for the defendant. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $350. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Master and servant — Contract of employment — Suit for salary — Evidence.</p> <p>In an action for salary it appeared that the plaintiff had been employed by a contract in writing by a firm who were the general agents of an insurance company. The defendants were the successors of these agents. There was evidence that the plaintiff acted as cashier and auditor for defendants, but there was no evidence that the terms of the contract between them were other than that it was a contract of hire at the will of the new employers. The defendants did not discharge him, but he was dismissed by the president of the insurance company. Held, that a nonsuit was properly entered.</p>

<p>Sale — Contract—Warranty—Fraud—Affidavit of defense.</p> <p>1. In an action on a promissory note where it appears that the note was given to secure part of the purchase money of the business, an affidavit of defense is sufficient which sets forth an express warranty made by the plaintiff as to the value of the business, that such warranty was false and fraudulently made, setting forth facts to sustain the charge of fraud, that there never was any such business as warranted, and that the difference between the value of the business warranted and such as it really was, was equal to or greater than the amount of the note.</p> <p>2. In such a case a partial payment made some months after the purchase of the business, is not made so late as to deprive the defendant of the right to set up the fraud and the breach of warranty as a defense in an action on the note. The defendant was not obliged to at once hire experts and go to work on the books of the plaintiff to verify their accuracy. He might properly rely upon his warranty and devote his energy to preserving or increasing the business he thought he had bought.</p>

<p>Husband and wife — Estate by entireties.</p> <p>1. A deed dated March 30, 1907, conveying land to a husband and wife, naming them as such, “as tenants in common,” vests in the husband and wife an estate by entireties, and not an estate as joint tenants or tenants in common.</p> <p>2. There is nothing in the married women acts of 1848, 1887 and 1893, which changes the common-law rule that a devise or grant of real estate to a husband and wife gives a title by entireties.</p>

<p>Appeal, No. 26, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., 'Feb. T., 1909, No. 139, on verdict of guilty in case of Commonwealth v. William W. Ramsey.</p> <p>Indictment for bribery. Before Frazier, P. J.</p> <p>At the trial the following requests were made:</p> <p>If the court please, the defendant objects to being called for trial, upon this indictment, being indictment of the Commonwealth against William- W. Ramsey at No. 139, February Term, 1909, for the reason that it is a district attorney’s bill of indictment found without any previous information, hearing, commitment or binding over and manifestly and obviously not justified nor required by any necessity of any kind whatever.</p> <p>Objection overruled. To which ruling of the court counsel for defendant requests an exception. Exception allowed and bill sealed. [1]</p> <p>There being two juries out and two in the box, and this being a case of great importance, the defendant requests the privilege of selecting his jury from a full panel.</p> <p>Mr. Blakeley: The charge being one of misdemeanor and a case of no greater importance than misdemeanors are generally, of this character and kind, the district attorney feels he must oppose the application.</p> <p>Application refused. To which ruling of the court counsel for defendant requests an exception. Exception allowed and bill sealed. [2]</p> <p>Counsel for defendant moves to quash the indictment in this case for the following reasons:</p> <p>1. The bill of indictment in this case is a district attorney’s bill of indictment not supported by nor found in pursuance of any previous information, hearing and binding over.</p> <p>2. Said district attorney’s bill was presented to and found by the grand jury without any reason, necessity or excuse therefor without being justified by some pressing or adequate necessity, and especially without any of the emergencies, exigencies or reasons therefor necessary to sustain its legality.</p> <p>3. The said district attorney’s bill is oppressive and unjust and none of the reasons or conditions justifying such an extraordinary and exceptional exercise of official authority existed.</p> <p>4. Because upon the-day of December, 1908, an information was regularly made and sworn to by one Tensard De Wolfe, praying for a warrant against this defendant for the same offense or crime charged in the said district attorney’s bill of indictment, upon which information a warrant was issued, and this defendant was arrested and gave bail for a hearing before F. J. Brady, a police magistrate of the city of Pittsburg. Subsequently, to wit, on December 24, 1908, this defendant, appearing before' said Brady, was given a hearing upon the charges mentioned and contained in said information, and he, the said Brady, bound the said defendant over to answer said charges before this court.</p> <p>5. On January 4, 1909, the district attorney of this county presented his bill of indictment based upon said information so made as aforesaid, and with the said Tensard De Wolfe as prosecutor, before the grand jury then inquiring for the county of Allegheny, and said grand jury returned a true bill of indictment on January 4, 1909, against this defendant for the same offense or crime mentioned and charged in the district attorney’s bill, which said indictment was found regularly and properly upon January 4, 1909, and which charges the same offense as does the district attorney’s bill at this number and term, and has remained in the office of the said district attorney from thence hitherto, and upon which said bill of indictment found upon January 4, 1909, the defendant has been ready for trial and could have been called for trial by the district attorney at any time since said date, and which said bill of indictment so found upon January 4, 1909, so remains and is among the indictments in the said district attorney’s office untried and in full force and virtue, as by an inspection of the records of this court will more fully and at large appear. Therefore, said defendant says that the district attorney’s bill of indictment in this case is illegal, null and void.</p> <p>6. The finding of said district attorney’s bill of indictment is apparently to the prejudice of said defendant among other things is this: That it deprives the said defendant of a prosecutor to whom he can look for damages and recompense in case this prosecution is malicious and without probable cause.</p> <p>Motion overruled. Exception. [3]</p> <p>Counsel for defendant now requests the court to instruct the district attorney to state upon the record the reason why this extraordinary power was exercised by him in this case.</p> <p>The Court: The court declines to comply with that request. [4]</p> <p>Mr. Burleigh: Counsel for defendant now requests the district attorney to state any reason which justifies the exercise by him in this case of this extraordinary power.</p> <p>Mr. Blakeley: The district attorney refuses at this time to give any answer to counsel for defendant as they are not entitled to same under the law. [5]</p> <p>Mr. -Burleigh: Counsel for defendant now requests the district attorney to try the defendant upon the indictment found by the grand jury of this county upon January 4, 1909, at No. ——-, January Sessions, 1909, which indictment was based upon a previous information duly and regularly made under oath and a hearing and a binding over to answer the said indictment being for the same offense or crime alleged or set forth in the district attorney’s bill now under discussion.</p> <p>Mr. Blakeley: The defendant is called to answer the present bill at No. 139, February Sessions, and a plea is asked for from him upon that bill at this time. [6]</p> <p>A. A. Vilsack was asked this question:</p> <p>“Q. Didn’t you tell Mr. Ramsey that Klein wanted $15,000 for the passage of this ordinance through councils, and if it did not pass through councils he would get the $15,000 back? ”</p> <p>Mr. Burleigh: Objected to as grossly leading.</p> <p>The Court: Under the circumstances, we will permit the question.</p> <p>Objection overruled. To which ruling of the court counsel for defendant request an exception. Exception allowed and bill sealed. [7]</p> <p>“Q. Why didn’t you say a minute ago that he was there at that conversation?”</p> <p>Mr. Burleigh: Wait one minute. I suppose this is all taken under my objection as to the question of its being leading.</p> <p>Mr. Blakeley: It is intended to be leading, if your honor please. I think at this time I have the right to ask leading questions of this witness.</p> <p>Mr. Ferguson: That might be if this man was conceived to be on trial here himself, but he is called for the commonwealth and he has not shown any reluctance. Of course we have no concern with the ruling of your honor as to the question of the witness testifying, but it is apparent that he is willing to testify, and I don’t think that the district attorney should be permitted to put in the shape of leading questions whát may be his conclusion from something that he knows from the witness or otherwise, and do it under the guise of cross-examining the witness. If there is anything that has been overlooked in the ordinary way, we will not object if the attention of the witness is called to it; but to make it entirely a cross-examination, we object.</p> <p>The Court: We will not permit the district attorney to make it entirely a cross-examination, but we will allow him some latitude.</p> <p>Objection overruled. Exception. [8]</p> <p>Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1-8) various rulings as above, quoting the bill of exceptions.</p>

<p>Appeal, No. 24, April T., 1910, by defendants, from judgment of Q. S. Allegheny Co., Feb. T., 1909, No. 136, on verdict of guilty in case of Commonwealth v. J. C. Wasson.</p> <p>Indictment for conspiracy. Before Frazer, P. J.</p> <p>At the trial the following motions were made:</p> <p>Mr. Burleigh: Before the challenging begins in this case, if the court please, the defendants object to any jurors who were impaneled and sworn in the case of Commonwealth against William W. Ramsey or the case of the Commonwealth against John F. Klein, for the reason that they of necessity have an opinion in this case and could not give the defendants, or either of them, a fair trial under the evidence.</p> <p>The challenge is overruled. To which ruling of the court, counsel for defendants request an exception. Exception allowed and bill sealed. [4]</p> <p>Mr. Burleigh: If the court please, counsel for all the defendants now move to strike o'ut the entire testimony of Robert Wilson upon the stand, for the following reasons:</p> <p>1. The testimony in this case now shows that the defendants were not, and could not have been, guilty of any conspiracy under the common law or under the statutes of the commonwealth of Pennsylvania.</p> <p>2. That no unlawful act was intended or proposed, but the whole of the alleged unlawful act was a subterfuge and a pure invention.</p> <p>3. That no crime was intended or contemplated, or was possible.</p> <p>4. That no crime was even attempted or intended to be attempted.</p> <p>5. That no person and no body corporate, and especially the municipal corporation of the city of Pittsburg, was not intended to be defrauded, and could not have been defrauded.</p> <p>6. The whole of the testimony heretofore given is now shown to be a fabrication and invention and a subterfuge, in order simply to obtain information in regard to an entirely different transaction, viz.: the selection of the six national banks for city depositories, for a term of four years from February 1, 1909.</p> <p>7. The testimony proves at most that the defendants were willing to do an unlawful act that was never intended to be done and was not in contemplation.</p> <p>The Court: It seems to me that if there was a conspiracy here, it was complete upon the agreement of the parties to commit the offense charged, without regard to whether there was any overt act to carry it out, or whether there was an intention on the part of the witness for the commonwealth to do as charged in the indictment. The motion to strike out is refused.</p> <p>Exception noted and bill sealed for defendants. [5] ■</p> <p>Defendants presented these points:</p> <p>7. That inasmuch as it appears by all of the evidence produced by the commonwealth that the entire scheme concerning which the conspiracy in this case is alleged was one never intended to be carried into effect, and which never could have been carried into effect, and was a mere fake scheme devised by the detectives in the case to test the willingness of the defendants to commit an unlawful act, there can be no conviction of the defendants or any of them. Answer: Refused. [6]</p> <p>8. That there is no sufficient evidence in the case to warrant the jury in convicting the defendants, or any of them, of a conspiracy to carry out the scheme suggested and devised by the detectives. Answer: Refused. [7]</p> <p>9. That, under the pleadings and evidence, the jury ought to acquit the defendants. Answer: Refused. [8]</p> <p>11. That the evidence of an accomplice, coming as it does from a polluted source, should be received with great caution, and closely and doubtingly examined by the jury; and in considering such testimony the evidence of the good character .and reputation of the defendants is of special importance for the consideration of the jury. Answer: As that request is written, we cannot affirm it as a whole, but as a general proposition it is correct. You will first determine, as I said in the general charge, whether the detectives who testified in the case were accomplices, and if they were accomplices, then you will treat their testimony as that of accomplices and weigh it as such, and if they were not accomplices, you will treat it as you treat the testimony of other witnesses; considering, of course, in the final determination, the evidence in regard to good character. [9]</p> <p>The court charged in part as follows:</p> <p>[It has been argued to you that they were guilty of an offense — assuming their testimony to be true — that they were guilty of bribery, and they ought not to be believed; that the law does not sanction acts of that kind. The law does sanction acts of that kind, and in regard to that, I want to read you what our Supreme Court has said in reference to the testimony of witnesses acting as the witnesses for the commonwealth acted in this case. . . . Apply that to this case. If these detectives were acting in good faith in this matter; if they came here for the purpose of detecting corruption in councils; if they were ascertaining whether there was corruption in councils; if their purpose was detecting crime and dishonest acts upon the part of councilmen, then I say to you they ought not to be regarded as accomplices or coconspirators.] [18]</p> <p>[The Court: Gentlemen of the jury, I have received from you a communication asking for instructions as to the bearing of the testimony of certain witnesses upon the part of the commonwealth. If you will indicate to me upon just what portion of the testimony you desire any further instructions, I will be very glad to give it to you.</p> <p>The Foreman: The first three witnesses of the commonwealth.</p> <p>The Court: Wilson, Jones and Hufiling?</p> <p>The Foreman: Yes, sir.</p> <p>The Court: In what respect?</p> <p>The Foreman: The strength of their evidence.</p> <p>The Eighth Juror: Its credibility.</p> <p>The Court: That is entirely for you gentlemen to determine. The value of their testimony depends upon whether or not they were acting in good faith. As I understand the law, if these three detectives came here and went to the two hotels for the purpose of ascertaining whether or not members of councils were guilty of corrupt practices, and invented the scheme of wood paving, the scheme for putting a wooden pavement upon the streets of the city, for the purpose of detecting crime or dishonest practices in councils, then you will treat their testimony just as you would that of any other witness, give it the credit that you think it is entitled to receive, weighing it, as you would the testimony of any other witness. If, however, they were not acting in good faith; that is, if they were not honestly endeavoring to ascertain whether there were corrupt practices amongst councilmen, but were there for the purpose of inducing councilmen to join with them in having ordinances passed for the purpose of defrauding the city, or for other corrupt and dishonest purposes, then they would become accomplices of the three defendants, and you should weigh their testimony and treat it as you do that of an accomplice.] [19]</p> <p>[I gather from the testimony that either the law or a rule of councils requires resolutions for repaving to be first presented in councils, referred to the finance committee and the finance committee acts upon them, and if they approve the resolution they return it to councils; if passed by councils, it is then referred to the director of public works for estimates. That, I believe, was done in this case; the resolution was presented by the defendant Klein, was referred to the finance committee of which the defendant Wasson is chairman, returned to councils, passed by both branches of councils, and then certified to the director of the department of public works, who made an estimate, and that is as far as the matter has gone; before anything further can be done the money intended for repaving the street must be provided by councils.] [24]</p> <p>[On the 16th, about 1 o’clock, Wasson again came to the room of Wilson, and there, among other things, they discussed as to whether Ramsey was a proper man to participate in the matter, Wilson saying that he had understood that Ramsey had been, drinking at one of the clubs in the city, and that Was-son said he didn't think so, and then Wilson says they began to talk about the bank deal, about the ordinance designating the bank depositories, and Wilson says Wasson informed him that money was paid by the different banks to be selected as depositories, and that the money was pooled and paid out after-wards to members of councils; that it was put in a safe deposit vault by one of the members of councils and remained there some time — I believe he said a month — and after that it was taken out and distributed.] [25]</p> <p>[All the members of the committee and the city clerk and his stenographer testify to that fact, while Director Lang says that he remembers both Brand and Klein being at the committee meeting, but whether they left the room or not he does not know; that he would not say they did or did not; that he was present in the interest of certain employees in his department; that he was interested in the meeting of the committee, and that they could have gone out and come in without his noticing. If the two defendants were at the City Hall during that entire evening, were not out. of City Hall, of course they did not get the money as testified to by the witnesses upon the ■ part of the commonwealth, and if they did not get the money, if the men who were in the Hotel Duquesne testified falsely in that matter, they testified falsely to a material fact in this case, and it discredits their testimony to such extent as you think it should. While, on the other hand, if Brand and Klein were at the Hotel Duquesne and got money from Jones, and now say they did not get it, the fact of their denying it discredits their testimony, if they have sworn falsely in regard to the matter; and it is a matter that you may consider very carefully in determining the value you will give the balance of their testimony.] [26]</p> <p>Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned among others were (4, 5) rulings as above, quoting the bill of exceptions; (6-9, 18, 19, 24, 25, 26) above instructions, quoting them.</p>

<p>Appeal, No. 22, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Feb. T., 1909, No. 136, on verdict of guilty in case of Commonwealth v. John F. Klein.</p>

<p>Appeal. No. 23, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Feb. T.’, 1909, No. 136, on verdict of guilty in case of Commonwealth v. William Brand.</p>

<p>Bribery — Councilmen—Evidence—Accomplice—Acts of March 31, 1860, sec. 49, P. L. 382, May 23, 1874, P. L. 230.</p> <p>1. The proviso in sec. 49 of the Act of March 31, 1860, P. L. 382, to the effect “that the accused shall not be convicted on the testimony of an accomplice unless the same be corroborated by other evidence, or the circumstances of the case” has no application to an indictment against a councilman under the Act of May 23, 1874, P. L. 230, for accepting bribes.</p> <p>Criminal law — Bribery—Accomplice—Evidence.</p> <p>2. No common law rule forbids a conviction upon the uncorroborated testimony of an accomplice, if his evidence satisfies the jury of the guilt of the accused beyond a reasonable doubt. It is the duty, however, of the trial judge to caution the jury as to the danger of convicting on the uncorroborated evidence of an accomplice.</p> <p>Criminal law — Bribery—Evidence—Pendency of ordinance.</p> <p>3. On the trial of an indictment against a councilman for accepting a bribe for his vote on a particular ordinance, where there is testimony that the defendant declared that councils would pass the ordinance over the mayor’s veto, it is proper to admit evidence as to the pend-ency of the ordinance, and that it was in fact passed over the mayor’s veto.</p> <p>Evidence — Competent and incompetent evidence — Review.</p> <p>4. The admission of incompetent evidence may not be a cause for reversal if it is rendered competent by other evidence at a later stage of the trial.</p> <p>Criminal law — Bribery—Accomplice—Evidence.</p> <p>5. On the trial of an indictment for bribery a witness was offered by the commonwealth for giving the bribe which the defendant was charged with accepting. He was called as a witness, but did not testify until after his claim of privilege not to be required to give evidence that would criminate him, had been overruled by the court. No restriction was put upon his cross-examination for the purpose of ascertaining whether any inducement or promise had been held out to him or made. He was asked whether he expected to be tried or to plead. He answered that he would be guided by the advice of his counsel. Held, that under the circumstances this was as far as the witness ought to be required to go in revealing what was his intention or expectation.</p> <p>Evidence — Witness—Memorandum—Refreshing memory.</p> <p>6. A memorandum made by a witness immediately after his interview with a party in the case, may be used by him to refresh his memory, but he cannot use it for the purpose of reading to the jury what he had written.</p> <p>Criminal law — Bribery—Evidence.</p> <p>7. On the trial of an indictment for bribery where a witness who had been employed as a detective .to investigate the conduct of the defendant, testifies as to similar investigations which he had made, it is not reversible error for the court to refuse to permit him to be asked whether he had detectives following the defendant immediately before the trial, and whether he had not claimed to have paid the defendant a sum of money for the purpose of influencing his conduct.</p> <p>8. On the trial of an indictment for bribery a witness for the commonwealth may be permitted to testify that the defendant had declared that he was not innocent, but that there were others just as guilty as himself, and that he did not intend to be a goat for any person.</p> <p>9. In such a case where the indictment charges the acceptance of the bribe for a vote in favor of a particular bank as a depository of public money, evidence that other banks which had been named as depositories had not paid any money to the defendant, is irrelevant.</p>

<p>Tax sales — Purchase by commissioners — Redemption — Acts of March 13, 1815, 6 Sm. L. 299, April 29, 1844, P. I¡. 486, March 22, 1850, P. L. 305, May 13, 1879, P. L. 55, June 3, 1885, P. L. 71, July 8, 1885, P. L. 268 and May 9, 1889, P. L. 141 — Statutes—Repeal—Seated and unseated lands.</p> <p>1. The Act of July 8, 1885, P. L. 268, entitled “An Act relative to the purchase of lands by county commissioners at sales thereof for arrearages of taxes,” applies to both seated and unseated lands.</p> <p>2. The Act of July 8, 1885, P. L. 268, repeals the Act of March 13, 1815, 6 Sm. L. 299, entitled “An Act to amend the act entitled ‘An act directing the mode of selling unseated lands for taxes, and for other purposes.’ ”</p> <p>3. Under the Act of May 9, 1889, P. L. 141, which amended the third section of the Act of July 8, 1885, P. L. 268, the right of redemption of lands sold for taxes and bought by the county commissioners remains in the real owner for the period of two years only after the sale.</p> <p>4. Where the commissioners have placed the lands purchased by them upon the assessment lists, and permit them to be assessed for taxes and sold by the treasurer, such action may be irregular and possibly not vest a good title in the purchaser, but it does not enure to the benefit of the original owner if he has permitted more than two years from the date of the sale to the commissioners to elapse without having made any effort to redeem the land.</p>

<p>Appeal, No. 222, Oct. T., 1908, by M. F. Hildebrand and J. Ross Hildebrand, from decree of O. C. Lancaster Co., Feb. T., 1908, No. 8, dismissing exceptions to adjudication in Estate of Jacob Hildebrand.</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 226, Oct. T., 1909, by Ada E. Mallalieu, from decree of O. C. Chester Co., dismissing exceptions to adjudication in Estate of Howard Martin Mallalieu, deceased.</p> <p>Exceptions to report of Gibbons Gray Conwell, Esq., auditor.</p> <p>The auditor stated the facts to be as follows:</p> <p>Howard Martin Mallalieu, the decedent, died on March 28, 1907, intestate, unmarried and without issue, leaving to survive him as his sole heir at law, his mother, said Mattie J. Shoemaker.</p> <p>His estate is all personal property and consisted of a policy of life insurance in the Brotherhood of Locomotive Engineers for $1,500, which was paid directly to his mother, said Mattie J. Shoemaker, and does not appear in the account of the administrators; $600 in the Reading Railway Relief Association; $950 being the aggregate of deposits in two Philadelphia Trust Companies, and $50 cash in the house, and the possible results of a suit for damages against the Philadelphia & Reading Railway Company, which last amounted to nothing, as no suit was brought.</p> <p>The balance shown by the administrators’ account amounting to $1,375.43 for distribution here is the net amount derived from the $600, $950 and $50 items above mentioned.</p> <p>When the decedent was four or five years of age, his father died, and from that time he was brought up by his two paternal maiden aunts, Grace Mallalieu, who died before the decedent, and Ada E. Mallalieu, the claimant here, being more particularly cared for by Grace. He was supported by them until he was eighteen years of age, when he went to work on the railroad, and from that time until he was killed in an accident thereon, March 28, 1907, when he was twenty-three years of age, he paid his board to the two until the death of Grace, and to Ada thereafter. At the time of his death, he was a locomotive engineer on the Reading Railroad and his death was caused by his engine falling off a trestle and turning over.</p> <p>Decedent left no debts so far as is known; all expenses of his funeral and administration of his estate have been paid and there is no claim presented against the fund for distribution, excepting that made by his aunt, the above named Ada E. Mallalieu, viz.:</p> <p>She, through her attorney, Thomas W. Pierce, Esq., claims to be paid by the administrators one-half of the entire estate including the $1,500 life insurance above mentioned; and bases her claim upon an alleged parol contract, to which she was not a party, made between George W. Mallalieu, brother of claimant, and said Mattie J. Shoemaker. The contract, if made, consisted of an oral proposition made by George to Mrs. Shoemaker and accepted by her, to the effect that under the circumstances, Ada ought to have some portion of the estate, and that he would take out letters together with Mrs. Shoemaker, assist her to administer and do what he could to recover damages from the railway company for the death of decedent, all without compensation, if she would surrender to Ada half the estate.</p> <p>The auditor disallowed the claim.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Mechanics’ lien — Affidavit of claimant — Act of June 4, 1901, sec. 21, P. L. 431.</p> <p>The requirement of twenty-first section of the mechanic’s lien Act of June 4, 1901, P. L. 431, that the claimant shall within one month after filing the claim file of record in the proceedings an affidavit setting forth the fact and manner of service of notice upon the owner of the filing of the claim, is a prerequisite to the validity of the lien. If it is not complied with the lien will be stricken off. ■</p>

Appeal, No. 103, Oct. T:, 1909, by plaintiff, from order of C. P. Schuylkill Co., July T., 1908, No. 260, discharging rule for judgment for want of a sufficient affidavit of defense in case of E. Edward Reed, administrator of the Estate of Elias E. Reed, deceased v. Mary M. Knecht. Scire facias sur mortgage. Rule for judgment for want of a sufficient affidavit of defense. Bechtel, J., filed the following opinion.

Appeal, No. 172, Oct. T., 1909, by defendant, from order of C. P. Northampton Co., Dec. T., 1909, No. 25, discharging rule for allowance of ah… Held: “An appeal nunc pro tunc will be refused where the petition and affidavit aver a direct defense but fail to state the nature of it and the plaintiff denies that defendant has any defense, nor will mistake of counsel in construing the statute justify such appeal.” In Zeigler’s Petition, 207 Pa. 131, Mr. Justice Potter, after…

<p>Appeal, No. 25, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., March T., 1909, No. 533, on verdict of guilty in case of Commonwealth v. H. M. Bolger.</p> <p>Indictment for bribery. Before Kennedy, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned were as follows:</p> <p>1. The court erred in refusing to quash the indictment upon motion of defendant’s counsel.</p> <p>2. The court erred in refusing defendant’s offer to show by defendant that upon March 15, 1909, having been subpoenaed by the commonwealth he appeared before the grand jury in the course of its investigation which led to the indictment; that upon March 19, following his appearance the presentment in this case was handed to the court; that said presentment recommended the indictment of the defendant who had testified before the same grand jury on March 15; that the deliberations of said grand jury extended from March 15 up to and including March 22, 1909, upon which date a true bill was found against the defendant, and that the examination of the defendant when he appeared before the grand jury was confined to the circumstances involving the charge upon which the indictment was founded.</p> <p>3. The court erred in recalling the jury upon April 24, 1909, and having recalled the same, in entering upon a review of part of the testimony.</p> <p>4. The court erred in recalling the jury in answer to its note and in reading to it only the testimony of the witness Ramsey, omitting contradictory testimony of witness Vilsack and defendant Bolger.</p> <p>5. The court erred in not confining its instructions to the particular matter indicated by the jury in its note to the court.</p>

<p>Appeal, No. 245, Oct. T., 1908, by defendants, from judgment of C. P. Blair Co., Oct. T., 1908, No. 283, on verdict for plaintiff in case of Pauline Hinderman v. Andrew S. Fisher and Lillie L. Fisher.</p> <p>Ejectment for a lot of land in the city of Altoona. Before Bell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1-7) various rulings on evidence set forth in the opinion of the Superior Court, and (8) in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 14, March T., 1910, by defendant, from judgment of Q. S. Lackawanna Co., Oct. T., 1907, No. 19, on verdict of guilty in case of Commonwealth v. Carl Howe.</p> <p>Indictment for rape. Before Newcomb, J.</p> <p>The facts appear by the opinion of the Superior Court, and by the previous reports in 35 Pa. Superior Ct. 554, and 38 Pa. Superior Ct. 208.</p> <p>The court charged in part as follows:</p> <p>■ [It may be that the girl was enamored of the defendant; it may be she was fond of him and willing to practice deception on her father for the sake of meeting the defendant. Be that as it may, if he took advantage of such opportunity as her situation and willingness might afford-and had clandestine meetings with her, and thus gained her consent, and had connection with her between September 9, 1905, and December 2, 1907, he would be guilty, and if you are so satisfied beyond reasonable doubt he should be found guilty.</p> <p>Mr. O’Brien: You mean 1906, you said 1907.</p> <p>The Court (resuming): I said between September 9, 1905, and December 2, 1907. You will understand I made a mistake, and that is December, 1906. That is so because under the law a woman-child of that age has no consent to give. If you get the impression from the defendant’s argument that the girl is not within the protection of the statute under which the case arises, if she readily consented without resistance, it would be misleading. The mere fact that the girl readily yielded to the defendant’s advances does not in itself affect the question of his guilt. You can see how that is: The statute itsélf is based upon the presumption that a girl of that age is not capable of resisting such advances; and, therefore, is likely readily to yield consent. The infirm mind of a girl of that age is assumed by the people in enacting such a law, which is the very reason which underlies this statute.] [1]</p> <p>[The marked issue in the case is, who tells the truth. I apprehend your verdict will depend upon whether you believe the girl. It would seem to me you will have to determine as between her and the defendant which is to be believed. I can see no escape from that issue.] [15]</p> <p>[There is evidence, which if believed, would prove the unlawful intimacy earlier than September 9, 1905, and later than December 2, 1906. That, you will see, is a period of nearly fifteen months. That may be called the period covered by the indictment, as it is within that period that the defendant’s guilt is to be found if he be guilty. The evidence of his relations with the girl before and after that date is to be considered only as it may tend to show what their relations were during the fifteen months, or thereabouts, coyered by the indictment. You can see how that is: If there were a period of intimacy it must have had a beginning; if the commonwealth’s case is sound, if it is sustained by the evidence, it can be found that as early as May, 1905, the girl was led astray by the defendant when she was a few months past fourteen years of age, and from that time his unlawful relations continued with her until May, 1907, a period of two years, when they are claimed to have been discovered, except for interruptions such as occurred in midwinter and while the defendant was at Ocean Grove. If you find in favor of the commonwealth as to the beginning of the unlawful relations, it might tend to throw light on the question of their relations thereafter. So, too, if you should find that the defendant was criminally intimate with the girl in December, 1906, after she became sixteen years of age, and later, in 1907, it might under all the evidence aid you in determining what was going on between them during the fourteen to fifteen months before December, 1906.] [16]</p> <p>[In that connection the defendant has a right to have the evidence as to his previous good reputation for chastity considered. It is for you to say whether he has proven such previous good reputation by the testimony of these witnesses. If he has, if you are satisfied that he had that kind of a reputation before the time of his relations with this girl, then that is a fact that he is entitled to have considered by you, and it is for you to say whether that in itself operates to create a reasonable doubt, if you find that he had such reputation.] [17]</p> <p>[If there be no doubt in your mind you will convict the defendant. If guilty, he should be convicted as charged in the second count of the indictment, unless the girl is found by the jury to have been of bad repute. By that is meant bad repute prior to the time of any unlawful relations that she might have had with the defendant.] [18]</p> <p>[He must prove such repute before the time of any unlawful relations that he may have had with her. If the commonwealth’s case is true, the girl might well have become of bad repute by reason of her relations with him. If it became bad merely by reason of. that, the defendant could not avail himself of it, for it would be permitting him to take advantage of his own wrong.] [19]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned among others were (15-19) above instructions, quoting them; (23) in answering and affirming a number of points together, instead of reading and answering them one by one.</p>

<p>Negligence — Townships—Defective bridge — Contributory negligence— Question for jury.</p> <p>1. In an action against a township to recover damages for personal injuries caused by a fall through a bridge, the case is for the jury where the evidence tends to show that although the bridge was properly planned, it was negligently constructed.</p> <p>2. In an action to recover damages for personal injuries, where the plaintiff’s own testimony is to some extent contradictory, it is the province of the jury to reconcile the conflicting statements.</p>

Appeal, No. 92, Oct. T., 1909, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1907, No. 213, on verdict for plaintiffs in case of Charles H. Miller and Charles Horace Miller, by his next friend, Charles H. Miller, v. Philadelphia & West Chester Traction Company. . Trespass to recover damages for personal injuries to a boy eleven years old. Before Broomall, J. . The facts are stated in the opinion of the Superior Court. ..

Appeal, No. 92, April T., 1910, by Frederick Ward, from judgment of Q. S. Washington Co., May T., 1909, No. 128, on verdict of guilty in case of Commonwealth v. C. H. Drum and Frederick Ward. ' Indictment for conspiracy. Before Taylor, J. At the trial A. B. Hay was asked this question: “ Q. Mr. Hay, you are a member of the Allegheny county bar? A. Yes, sir. Q. And have been for how many years? A. Forty-one years. Q. I believe you are at present county solicitor?

Appeal, No. 23, Oct. T., 1909, by plaintiff, from judgment of O. P. No. 1, Phila. Co., June T., 1907, No. 5,934, for defendant non obstante veredicto in case of C. Schmidt & Sons Brewing Company v. Philadelphia Rapid Transit Company. Trespass to recover damages for injuries to an auto truck. Before Brégy, P. J. At the trial the jury returned a verdict for plaintiff for 1138.90. The court subsequently entered judgment for defendant non obstante veredicto.

<p>Appeals — Certiorari—Habeas corpus — Parent and child — Custody of children.</p> <p>An appeal from an order in habeas corpus proceedings relating to the custody of a child, has only the effect of a certiorari, and the appellate court cannot, on such an appeal, consider either the evidence or the opinion of the court below. The record alone can be considered.</p>

Appeal, No. 262, Oct. T., 1909, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 676, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Longstreth v. John Gordon Gray. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of .the Superior Court.

Appeal, No. 249, Oct. T., 1909, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1909, No. 4,264, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Walter D. Young, trading as W. D. Young & Co., v. Miller & Miller Lumber Company. Assumpsit for goods sold and delivered. Tbe facts appear by the opinion of the Superior Court.

<p>Appeal, No. 187, Oct. T., 1909, by defendant, from judgment of 0. P. Lancaster Co., Aug. T., 1908, No. 89, on verdict for plaintiff in case of James T. Ewing, doing business under the firm name of James T. Ewing & Company, v. F. C. Musser.</p> <p>Trespass for conversion. Before Hassler, J.</p> <p>From the record it appeared that on June 1,1908, the plaintiff received a telegram, at his home or place of business, in Kansas City, Mo., from EL K. Alwine, of which the following is a copy: “Ship me Tuesday two loads heifers Lancaster care Musser average eight fifty draw Middletown,” to which the plaintiff replied by telegram, “Message received market higher your kind cost about four seventy-five answer.” On June 3, 1908, he received the answer, “Fill order to-morrow on market.” The Musser referred to in the first telegram is F. C. Musser, the defendant. The words “Draw Middle-town” used in the first telegram mean, draw on H. K. Alwine at Middletown, Pa., for the price of the cattle. In pursuance of these telegrams the plaintiff, on June 4, 1908, shipped a car load of heifers as directed, receiving from the railroad company a receipt and bill of lading. He attached the bill of lading to a draft upon Alwine at Middletown for the price of the heifers, and deposited it in a bank at Kansas City, Mo., for collection. The heifers reached Lancaster, Pa., on June 7, 1908, and were taken possession of by the defendant, who subsequently sold them for $1,100.11, which amount he now has in his possession. It is the custom of the stock yards at which F. C. Musser did business for the person in whose care cattle are shipped to sell them, as soon as can be done advantageously, after their receipt. The draft was not paid and duly protested, and returned with the bill of lading to the plaintiff. The plaintiff prior to this transaction had shipped other car loads of cattle to H. K. Alwine, care of the defendant, and attached a bill of lading to the draft, sent them in due course of business, and all of such drafts were paid. The plaintiff contended that this was a sale to H. K. Alwine for cash, and that the title of the cattle did not pass until their price was paid.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,100.11. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Contract — Sale—Delivery—Payment of price — Title.</p> <p>Where a person sells three cows and three calves for $113 and receives $3.00 at the time of the sale, and the purchaser directs the seller to keep the cows until he is notified to deliver them at a place designated, and the understanding :is that the balance of the purchase money is to be paid upon the delivery of the cows, the title to the cows does not pass until delivery, and if one of the cows dies in the meantime, the loss is that of the seller and not of the purchaser.</p>

<p>Appeal, No. 137, Oct. T., 1909, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1908, No. 239, on verdict for defendant in case of Pennsylvania Railroad Company v. Bulah Shaft Coal Company.</p> <p>Appeal from judgment of justice of the peace. Before Smith, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 5, Oct. T., 1909, by plaintiff, from decree of O. C. Lancaster Co., April T., 1903, No. 87, to pay over money in case of Amanda Hildebrant v. Mary M. Hildebrant.</p> <p>Petition to pay over money.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the following decree:</p> <p>It is now ordered that Barr Spangler and William H. Hildebrant, executors of the will of Martin Hildebrant, deceased, pay to Mary M. Hildebrant, administratrix of the estate of Harry K. Hildebrant, deceased, $30.00 quarterly from April 1, 1908, and continue so to pay as long as Amanda Hildebrant, the widow of Martin Hildebrant, shall live.</p>

<p>Public officers — Poor directors — Power to remove..</p> <p>Where poor directors are given power to employ, “and at pleasure remove,” stewards, matrons and other attendants, they may remove without assigning any reason therefor a workman; and it is immaterial that the removal may have been brought about by two out of the three members of the board corruptly conspiring together to make removals and to divide appointments between them and each to vote for any person that the other might name for the position vacated without knowing who would be named. In such a case the person removed could not recover from the county for wages after his removal, although the person appointed in his place might recover for wages earned, if he was in no way connected with the illegal conspiracy.</p>

<p>Appeal, No. 147, Oct. T., 1909, by defendant, from judgment of C. P. Montgomery Co., March T., 1908, No. 33, on verdict for plaintiff in case of Lower Merion Township v. Henry Becker.</p> <p>Appeal from judgment of justice of the peace.</p> <p>Swartz, P. J., filed the following opinion:</p> <p>After hearing the evidence we instructed the jury to render a verdict in favor of the plaintiff township.</p> <p>Lower Merion is a township of the first class. The act providing for the classification of townships, passed April 28, 1899, P. L. 104, gave the township commissioners the power to establish a system of sewers and to require connection to be made with such sewers when necessary to the public health. The Act of May 24, 1901, P. L. 294, amended this provision by declaring, “From time to time to establish and construct a system of sewers and drainage as far as practicable along and within the lines of such of the public roads of the township as may to the commissioners seem advisable, and to permit, and when necessary for public health, to require adjoining and adjacent property owners to connect with and use the same.”</p> <p>The Act of April 19, 1905, P. L. 221, empowered the commissioners to prescribe fines and penalties, not exceeding $50.00 in any instance, for the violation of township ordinances, to be collected by suit in the name of the township, as debts in like amount may be sued for under existing laws.</p> <p>In the years 1903 and 1904, the township constructed a system of sewers to carry off the domestic drainage. An ordinance of the township was duly passed, in 1903, making it the duty of every owner of land abutting on the street in which a sewer is laid, to connect with said sewer all buildings on his land requiring drainage, if situated within 200 feet of the sewer.-</p> <p>The defendant is the owner of two properties in said township, one fronting on Montgomery avenue, in the village of Bryn Mawr; the other on Lancaster avenue in the village of Ardmore. There is a dwelling house on each tract or lot, less than 100 feet from the sewer in the abutting highway. Each house has domestic drainage from the water-closets, bathtubs and kitchen sinks.</p> <p>The commissioners enacted an ordinance prescribing a penalty of $50.00 on any property owner who should fail to connect his property with sewer, after sixty days’ notice. On December 12, 1906, the commissioners caused notices to be served on the defendant requiring him to connect his house drainage with the sewers along his properties. A copy of the ordinance of August 1, 1906, accompanied the notice. This ordinance apprised the defendant that the penalty of $50.00 would follow if no connection was made.</p> <p>The defendant, with others, was notified that a meeting would be held at the commissioners’ office, of all persons who were requested to connect with the sewer. This meeting was held in June, 1907, to enable the persons in default to show cause, if any they had, why the connections should not be made. The defendant declined to appear.</p> <p>On September 4, 1907, the commissioners met and by resolution determined that in their judgment, it was necessary for the public health that the defendant’s buildings should be connected with the sewers. The township solicitor was instructed to proceed against the defendant for the collection of the penalty prescribed by the ordinance of August 1, 1906. This order applied to each case where the notice was given. Suit was not brought until November 21, 1907. Again the defendant did not appear to make any defense. No complaint • is made as to the regularity of the proceedings. The defendant applied to the court for an appeal and in his application for the allowance of the appeal sets forth reasons that should have been presented to the justice at the hearing. If the facts alleged constituted a defense, the justice should have passed upon them. The appeal was improvidently allowed, so far as any issue of fact arises.</p> <p>At the trial of the case before the court and jury, the plaintiff township showed that the defendant’s properties abutted on the principal highways of the township, that the properties were situated, the one, in the village of Bryn Mawr, the other in the village of Ardmore. Lower Merion township is thickly populated, especially so in and about Bryn Mawr and Ardmore. The properties are urban and the residents seek these neighborhoods for homes with healthful surroundings. Practically all the residents along these principal thoroughfares connected their house drainage with the sewers provided by the township. The defendant runs his house drainage into cesspools and at times pumps the contents therefrom to water his garden or lawns. The houses along these highways are numerous, although some of the owners have grounds of considerable extent and these suburban homes are the admiration of visitors from our county and other distant parts. One of the defendant’s properties contains about seven acres, but this is not agricultural ground. The land is far too expensive to be used for that purpose. The sewage from his house is just as objectionable to the health of his neighbors as the sewage of any house along the street, if allowed to percolate from the cesspools. If there is no hecessity for the defendant’s connection then all the property owners along the highways have no use for the sewers, for they can all discharge their drainage into cesspools. The legislature recognized the necessity when it provided for sewer systems in townships of the first class. The people in Lower Merion recognized the necessity when they incurred the .big expense of constructing these sewers and connecting with them. Blouse sewage is a dangerous element in all thickly settled communities. It is the duty of eveiy municipality to make police regulations to protect the public health, and private property rights are held subject to such reasonable regulations. The authorities are not compelled to wait until a nuisance, per se, is established upon the property of an urban resident. It is their duty to formulate regulations that will prevent such an occurrence. The resident who would have the benefits of the surroundings in Bryn Mawr must conform to the necessary regulations that make the neighborhood so desirable. If it be said that we are going beyond the evidence submitted, we answer that there is enough testimony before us to draw the conclusions we have indicated. The conditions are not special to Bryn Mawr and Ardmore but they apply to every community in a first-class township where there are large villages and closely built-up sections used for suburban homes.</p> <p>The sole question before us, is, whether the court or jury can say, that under the conditions established and uncontradicted, the commissioners were in error when they determined under their judgment and discretion, that it was necessary for the public health that the defendant should connect his buildings with the sewer provided by the township.</p> <p>We must bear in mind that we are not dealing with an arbitrary action of the township commissioners. They have legislative authority for all that they required the defendant to do. The legislature determined that sewers were necessary in townships of the first class, otherwise it would not have provided for their construction. It also declared that in certain instances, it might be necessary to compel owners of houses to make connections. It vested in the commissioners the right to determine when such necessity arose, and provided the penalty by which the ordinance of the commissioners should be enforced. Even if the ordinance requiring all owners, within 200 feet of the sewer to make connections is too drastic, the defendant cannot complain, for it was not enforced against him until he was afforded a hearing and until the commissioners considered his property specifically and determined that the connection was necessary for the public health.</p> <p>The ordinance, as interpreted by the commissioners, is certainly reasonable. It was not only the right of the commissioners, but their duty to enforce the connection if the public health, in their judgment, demanded it.</p> <p>We allowed the defendant to show that the discretion vested in the commissioners was abused when they required him to connect with the sewers. lie failed to show any abuse of discretion. On the contrary, all that he submitted, in our opinion, strengthened the judgment of the commissioners.</p> <p>In Fisher v. Harrisburg, 2 Grant, 291, the court said, “Where the municipal legislature has authority to act, it must be governed, not by our, but by its own discretion; and we shall not be hasty in convicting them of being unreasonable in the exercise of it.” Again, in Phila. v. Brabender, 201 Pa. 574, the court say, “The limitations of the powers conferred upon municipal corporations are, that they must be exercised in a reasonable, lawful, and constitutional manner. If their limitations are not transgressed courts cannot interfere with the ordinances of the municipality, for to the mayor and council must be left a reasonable discretion, and for the proper and wholesome exercise thereof, they are accountable not to the courts, but to the people:” O’Maley v. Freeport, 96 Pa. 24; Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355.</p> <p>Courts will give a liberal construction to health and sanitary regulations of a municipality. “ One of the chief purposes for the institution of municipal government is the conservation of the public health and safety. No more important obligation is confided to municipal corporations. The nature of the ordinances they shall adopt for this purpose is largely a matter within the discretion of the local authorities. Unless they are clearly unreasonable and arbitrary, or demonstrably violative of some constitutional provision intended to protect the liberty of the individual or property rights, they will be sustained:” McQuillin on Municipal Ordinances, p. 681. If it be said that the action of the commissioners interferes with the property rights of the defendant, we answer every'man holds his property subject to the police power — -a power in the exercise of which a man’s property may even be taken away from him. The police power is founded upon the maxim, “so use your own property as not to injure the rights of another.” Private interests must be subservient to the general interest of the community.</p> <p>The Act of our legislature approved May 21, 1901, P. L. 265, empowered the authorities of any borough to compel the owners of properties abutting on a public sewer to make connection with such sewer. There is no proviso in the act that the municipal authorities must first determine whether the public health demands such connection. An act similar to this was held valid in Commonwealth v. Roberts, 155 Mass. 281. The act of 1901 shows the trend of public opinion. It is a declaration by the legislature that house sewage is a menace to the public health and should be discharged into a public sewer, whether the abutting owner approves or disapproves of such action. If the vesting of an unrestricted power in the municipality to compel all abutting owners to connect with a sewer is not violative of the rights of property, then a power which cannot be exercised without a hearing of the owner and without a deliberative judgment of the commissioners that the public health demands such connection, cannot be disturbed unless there is evidence that the exercise of the power was attended with fraud, misconduct, or abuse of discretion.</p> <p>It is said the jury should have determined whether the property of the defendant was in such condition as to require connection for the protection of the public health. There were no facts in dispute. If the jury must review the judgment of the commissioners in every case, then the jury may find that in one case the connection is necessary, and the next jury, in an exactly similar case, may say there is no necessity for a connection. There would be no uniformity in the operations of the sewer system, and the commissioners would be at a loss in determining whether there should or should not be a connection in a given case. The standard of necessity would naturally shift with each successive jury. What is a reasonable exercise of the police power is a matter for the court: Kneedler v. Norristown, 100 Pa. 368. "Under our constitutional system the judiciary determines what are the subjects and objects upon which the police power is to be exercised and the reasonableness of that exercised: Mc-Quillin on Municipal Ordinances, p. 668. Even the court is confined to the inquiry whether the local government has kept within the limits that binds its jurisdiction as they are defined by the constitution and the laws of the state but, subject to these restrictions, the local government may determine what is best calculated to promote the security, the comfort and convenience of the inhabitants: Livingston y. Wolf, 136 Pa. 519.</p> <p>We repeat that the plaintiff township does not attempt to enforce the ordinance literally or in its severest terms. It did not arbitrarily compel all abutters to connect with the sewers. It determined, after hearing and deliberation, that it was necessary for the public health that the defendant should make the connections. This was a direction in strict compliance with the Act of assembly of May 24, 1901, P. L. 294, which says, “the commissioners shall permit connections and where necessary for public health, require adjoining and adjacent property owners to connect with and use the sewers.”</p> <p>Who was to determine whether the connection' was necessary for the public health? Not the legislature, but the commissioners to whom the question was referred. How can the court say that the maintenance of three cesspools on the defendant’s lot is not a menace to public health? Especially so, where the defendant admits that at times the contents of the three pools are pumped upon the surface of his lot.</p> <p>We think no good cause was shown for the allowance of the appeal, and when the appeal reached the common pleas; no cause was shown to set aside the judgment of the commissioners, or the judgment of the justice who imposed the penalty.</p> <p>And now, June 7, 1909, the motion for judgment non obstante veredicto is overruled, and it is ordered that judgment be entered upon the verdict of the jury.</p> <p>Error assigned was in directing a verdict of f 100 for the plaintiff.</p>

<p>Appeal, No. 2, Oct. T., 1909, by Isenberg Milling Company, from decree of C. P. Huntingdon Co., Feb. T., 1907, No. 8, overruling exceptions to auditor’s report in case of W. H. Boggs v. Annie L. Walton and T. R. Walton.</p> <p>Exceptions to report of Howard L. Henderson, Esq., auditor appointed to distribute proceeds of sheriff’s sale.</p> <p>From the record it appeared that W. H. Boggs entered a judgment against Annie L. Walton and Thomas R. Walton on June 5, 1903. On December 7, 1906, he issued a fi. fa. and levied upon the horses, wagons and other articles in a livery stable in which Annie L. Walton claimed to have an interest. Subsequently the court opened the judgment and pending an appeal the execution was stayed. After the stay of the execution the plaintiff and the defendants on February 7, 1907, entered into an agreement in writing by which the sheriff was authorized to sell the property and hold the proceeds until the appeal was determined. Prior to this time on January 26, 1907, the Isenberg Milling Company had obtained judgment against Annie L. Walton and Thomas R. Walton. On this judgment they issued execution on Februaiy 14, 1907. On February 23, 1907, the Isenberg Milling Company and W. H. Boggs entered into an agreement by which the sale was to be conducted by the sheriff under the original agreement of February 7, but the Milling Company reserved the right to raise the question whether the agreement of February 7 was a postponement or abandonment of the lien of the senior writ. The sale was held on February 23,1907, and Howard L. Henderson, Esq., was appointed auditor to make distribution. He reported that no fraud had been committed upon the rights- of the junior execution creditor and accordingly awarded the fund to the senior writ.</p> <p>Exceptions to the auditor’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Execution — Debtors exemption — Dispute as to title — Fraud.</p> <p>1. Where the defendant in an execution seeks to have the inquisition set aside on the ground that she had a life estate only in the land levied upon, and the court decides that she has a fee, and it appears that the deed construed by the court was made before the debt for which the judgment was recovered was contracted, the plaintiff in the execution cannot resist a claim by the defendant for the debtor’s exemption, on the ground that the defendant in the former proceedings had attempted to conceal her property and defraud the plaintiff.</p> <p>2. Where the defendant in an execution claims the benefit of the debtor’s exemption, the burden is always on the plaintiff to show that the exemption ought not to be allowed.</p>

<p>Public officers — Sheriff—Compensation—Act of March 31, 1876, P. L. 13.</p> <p>1. Under the Act of March 31, 1876, P. L. 13, regulating the salaries of county officers and the payment thereof in counties exceeding 150,000 inhabitants, an officer is entitled to be paid his salary for each year out of the fees earned during his term of office, and the act permits the application of the excess of fees in a subsequent year to a deficit in a preceding year.</p> <p>. 2. Where-there is a deficiency in the payment of the sheriff’s salary for a particular year, the county controller may show such deficiency in his report, but he has no power to report that the county owed the ■ sheriff such deficiency, for as a matter of fact the county at the time owes the sheriff nothing. If deficiencies occur in two successive years, but there is an excess in the third year, such excess may be applied to make up the deficiencies of the two previous years; and the sheriff cannot be deprived of the right to such an application of the excess on the theory that the reports of the county controller for the two previous years were conclusive, inasmuch as he had taken no appeal from them. The county controller had no authority to report that the county owed the sheriff anything, and his omission to do so was no ground for an appeal by the sheriff.</p>

<p>Appeal, No. 146, Oct. T., 1909, by plaintiff, from decree of C. P. No. 5, Phila. Co., March T., 1909, No. 40, refusing divorce in case of Charles J. Hexamer v. Annie J. Hexamer.</p> <p>Libel for divorce.</p> <p>Martin, P. J., filed the following opinion:</p> <p>The libel in this case alleges that respondent, by cruel and barbarous treatment and indignities to his person, has rendered the condition of libelant intolerable and his life burdensome. There was a further allegation that respondent had given herself up to adulterous practices and been guilty of adultery with divers persons, but the libel was amended, and these charges withdrawn.</p> <p>It appears by the testimony taken before the master that libelant and respondent were married on January 7,1891, and have a daughter nine years of age.</p> <p>They resided together until November 11, 1908, when libelant refused to continue to live with respondent.</p> <p>The libel was filed December 15, 1908. Respondent answered denying the charges.</p> <p>The alleged acts of cruelty and the indignities described by libelant, were that on the wedding night and for two months thereafter, he was denied intercourse, respondent having a morbid fear of childbirth. For that reason he “used a preventitive” which was “disagreeable and nerve-racking” to him. Respondent informed him before marriage that she was an excellent cook. He subsequently ascertained that she knew nothing about housekeeping or cooking. A month after the marriage she prepared some fried calves’ liver for supper that had the consistency of sole leather. When libelant declined to eat, and said he could not digest it, she slapped his face and screeched “digest that.”</p> <p>Several weeks subsequently when libelant said to her, “If your mother is like you, I don’t wonder your father goes out so much and gets boozed,” she screamed, “ You nasty beast, I will leave you,” went to her room, where he followed, and as she was putting on her hat called him a “Dutch beast,” endeavored to thrust the hat pixr in him, and said, “That should be the end of you.” He got her by the wxist and she simmered down.</p> <p>The first summer they were married, on a Sunday morning during a visit to his parents at Atlantic City, she refused to come to breakfast. He asked her, “Are you in a better humor now?” Without replying she flew at him and struck him twice in the face with her clenched fist.</p> <p>In 1895 she complained that he was too fat, that she was ashamed to go out with him. He took treatment, but in effecting a reduction of forty-five pounds impaired his digestion and contracted chronic diarrhea. His physician advised a trip abroad “alone.” When he informed respondent she said, “Do you think I am going to let you go off alone and have fun, and stay here in slow Philadelphia?” They went through Syria. During the journey respondent fell violently in love with a dragoman, and was with him from morning until night, ridixxg well in front of the party. When ascending Mount Tabor libelant was detained by a monk pointing out historical places on the plain below. Respondent and the dragoman had gone ahead, but on arrival at the meeting place, they were not there. Libelant waited an hour, and fearful that they had been attacked by hyenas sent servants to search for them. They were unsuccessful. Later respondent appeared, with the dragoman leading the horses, “radiant, her hair in disorder.” Libelaxxt said “This is outrageous; you know how sick I am, and how every little excitement makes me worse.” She sneered and said before the whole party, “Oh, tommy rot.” Libelant having been advised by a member of the party that it would be wise to take his wife back to her mother, and to keep an eye on .her. She said when he told her, “Don’t listen to that meddlesome old fool.”</p> <p>Distress caused libelant to have acute diarrhea. He was compelled to frequently leave his tent in the night at the risk of being attacked by wild beasts, or shot by guards. This afforded amusement to respondent, who remarked in the presence of others, “That will take the conceit out of you.” When the dragoman left, she wept. Libelant said to her, “Poor foolish child.” She thinking it sarcasm struck him in the face. She was in a frightful humor the next few days and treated libelant “like a dog,” and applied opprobrious epithets to him, calling him “confounded Dutchman,” “foolish jackass” and “blithering idiot.”</p> <p>In 1899 she became pregnant. Libelant endeavored to convince her it was the result of an accident. She said he was a “brute” to cause her to have a child. Three weeks before the birth she remarked that she did not want the “darn kid” and when it came she was going to put it in the third story because she was not going to be bothered with it. When the child was born she insisted that libelant-should move to the third floor; for over a year allowed no sexual intercourse, and insisted upon retiring to her room at half past seven in the evening. When the child was three years old, she being in a frightful humor one evening at the table, libelant said in order to exist and support her and the child he required one meal a day, and as he could not get it at home, he would go to a restaurant. He put on his coat and hat; when he got to the door of the vestibule she rushed after him and knocked his hat off his head, started to pound him in the face and tried to tear luis coat off.</p> <p>Libelant .became acquainted with a leading German actor whom he introduced to respondent. She fell violently in love with him, and insisted on seeing him whenever he played a new part. One night while suffering from a sprained ankle she insisted upon libelant taking her to the theater, and after the play to the café of the Schiller Hotel. There she met her “friends,” among whom was the actor. At his last appearance she insisted upon attending the performance, and after the theater going to the Schiller café. Libelant was unable to get her away until two o’clock in the morning. She was wild because the actor was not re-engaged, and blamed libelant. A friend asked him if he was aware that his wife met the' actor at the Schiller café almost every Saturday afternoon. When he spoke to her she admitted it, and insisted that she always had a friend or two with her when there.</p> <p>In the autumn of 1907, libelant engaged a tutor to deliver a course of lectures to the German Society on the German dramatists. He introduced him to respondent and invited him to his house. Respondent fell violently in love with him and he with her. If libelant and his wife went to the theater the tutor would have the seat alongside of her and talk and whisper to her continuously. If they went to an entertainment, he would be there at her side. He waited outside the ladies’ toilet for her. In the theater she would leave her child, sending it to libelant’s mother, and sit with the tutor. The talk and scandal became so decided that libelant rebuked her repeatedly, and she would answer, “Don’t be a jealous old fool.”</p> <p>In the early part of 1908, she told libelant that she had never loved him, but married to please her parents, that she would have nothing more to do with him, and that he should keep a mistress or go to a bad house. She frequently taunted him by asking if he had been somewhere for the purpose of prostitution, and when he said “No,” would say it was because he was too much of a coward, and afraid of catching some bad disease' — would sneer at him, and say she supposed he wanted to be as pure as an angel.</p> <p>In March of 1908 libelant was invited to be guest of honor at the Robert Emmett celebration and requested to bring respondent. She would not go because she had promised the tutor to hear him lecture. When libelant stated, “It seems that I have not even a wife to represent me before the people as such,” she replied, “Go to grass,” and attended the tutor’s lecture alone.</p> <p>On March 27, 1908, Professor Kruger lectured before the German Society. Libelant said to her, “As a special favor, won't you please, if you do not care to sit with me, at least sit with someone else than the tutor when we have the supper which will be given in honor of Professor Kruger after the lecture? ” She sat between a friend of libelant and the German consul. The tutor, who sat at the table opposite, became frightfully jealous as she started cutting up with these two gentlemen, pushed his plate away, got up and left the room. She rushed after him. As she passed libelant’s chair he caught her by the arm and whispered, “Go back to your place, don’t disgrace us both before all the people,” and held her until she came to her senses, when she returned to her place.</p> <p>On April 12, 1908, libelant engaged Professor Goebel of Harvard University to deliver a lecture on Faust. Respondent and the tutor were furious that the latter had not been engaged to make the address. After the lecture libelant gave a luncheon in honor of the lecturer. Respondent refused to sit with libelant at the place of honor, between the lecturer and libelant, but sat at the side of the table with the tutor. She requested the libelant to allow the tutor to speak. When libelant called on the tutor he said, libelant, who was the presiding officer, was but a fly of a day, that the trapdoor would soon close over him, and that a man more capable than he would take his place. Respondent wildly applauded, clapping her hands, cheered and cried, “Go on; that is right, give it to him,” in the presence of the people at the dinner.</p> <p>Libelant wrote to the tutor, “I forbid any further intercourse with you.” The tutor replied inclosing a letter written by respondent to him. Libelant then wrote to the tutor that his explanation was satisfactory.</p> <p>The intimacy between the respondent and the tutor was the subject of general scandal among friends and acquaintances.</p> <p>On May 9, 1908, libelant desired to have a birthday party at his home, but respondent said she had promised the tutor to hear him lecture at the German Club, libelant abandoned the birthday celebration and accompanied her.</p> <p>On May 14, 1908, libelant moved his family to Oak Lane. During the evening, in the course of conversation with respondent, he told -her for God’s sake to break off with this man, that now was her chance, they had moved to the country for the summer. She wept and said she could not. He said, “I wish to say this to you, and mind it well; if I catch that man in my house, I will leave you. I will no longer be held up to the public and my friends in ridicule. My friends are already beginning to cut me.”</p> <p>On May 27, 1908, libelant and respondent attended a gathering of the ladies of the German Society at Schutzen Park. Libelant was obliged to leave to go to town and directed respondent to go home with her daughter, which she promised to do, but instead, stayed quite late with her daughter at the park, and the tutor took them home, and sat on the porch for a long while. Libelant learned of this from the child, and when respondent was charged with it, she admitted it. Libelant then told herthat he was going to leave her, and he went to the Lorraine Hotel. Some days afterward respondent came to his office and said if he would come back she would promise to behave herself, but if he did not, he would never see his little daughter again. He returned and learned from the daughter that the tutor had been at the house on the Sunday that he was at the Lorraine. Two days after returning home libelant and respondent visited a German man-of-war lying in the river, as the guests of the captain. The tutor was on board. She. withdrew from libelant to talk with the tutor. The following Sunday when they visited the Young Mannerchor the tutor was there, and respondent again joined him.</p> <p>On June 8, 1908, libelant and respondent went to a celebration of the German-American Alliance at Washington Park. In the afternoon libelant attended a banquet on the man-of-war, and requested respondent to take the child home, which she promised to do shortly. After libelant left the tutor arrived and rode with respondent on the front seat of an automobile, and' tickled her “all the way home.” After other guests had left the tutor remained.</p> <p>Libelant intending to take respondent to the theater asked her after she retired on the previous night whether she intended to meet the tutor at the theater. She said, “Yes, she supposed so.” Libelant said, “That man will have to stop, I shall write him to-morrow never to come to my house again.” Respondent got up in bed and hissed, “You are the meanest white man on earth.” Libelant lost control of himself and shook her. Libelant wrote to the tutor and told him it would give rise to talk among the neighbors, and requested him not to call on his wife in his absence.</p> <p>On June 13, libelant visited Providence for a few days. On his return he learned that the tutor had been at the house.</p> <p>On June 21 he visited Schenectady, and stayed over Sunday. On returning he ascertained that the tutor had visited the house.</p> <p>On September 8, libelant and respondent went to the German Theater. The tutor secured a seat alongside of her, and whispered to her during the evening.</p> <p>On Tuesday, November 10, libelant being required to visit Chester, informed respondent that he would be home very late, in all probability stay at the hotel, and' go to his office directly in the morning. He arrived in Philadelphia about ten o’clock in the evening, and returned home. As he entered the house respondent came out of the sitting room; and when he kissed her, repulsed him and said that the tutor was in there; that she had asked him to come, and that it was time there should be an explanation between him and libelant. The tutor asked libelant what he had against him, and why he did not wish him to come to his house, to which libelant replied, because he had stolen the affections of his wife and made her so crazy that he could not live with her; that he had left her and had only returned for the child’s sake. The tutor stated that he had received a letter from respondent in which she placed herself under his protection, stating that libelant had laid hands on her. When libelant asked her if she had done this, she said, “Yes, why not?” Libelant burst into tears and said, “This means divorce; now both of you get out, get out at once; take her with you.” The tutor said, “For God’s sake be reasonable; think of your child; give me your hand.” The libelant said, “No, begone, get out, get out, or I will kill you,” and said to respondent, “You let him in, show him out.” At the door the tutor said, “Let me have your hand,” and libelant said, “No, never, from what you have done to me,” and he said, “At least say good-by to me,” and the libelant said, “Good-by,” and closed the door. In the room were eatables on the table, two empty champagne glasses, and an empty quart bottle of champagne, and the cushions of the broad sleeping couch were in a disorder.</p> <p>Libelant did not say a word to respondent, but the next morning left the house, and has lived with his parents ever since, but supports respondent.</p> <p>Other witnesses testified to conduct of similar character, exhibitions of ungovernable temper, wearing “low cut dresses when he told her he disliked them,” smoking cigarettes at family dinners, remarks that she would not live an hour of her married life over, and preferred small men to large ones (her husband being large and the tutor small), sitting with her back to libelant; and saying to a casual acquaintance who asked if his daughter was his only child that she “will remain so.”</p> <p>It was testified that at some of the festivities of the German Society, when the tutor came with an orchid in his buttonhole, in a few minutes she had the flower and wore it.</p> <p>The testimony is thus elaborately reviewed because it is the duty of the court to make a careful examination' of the evidence in order to ascertain whether it does in very truth establish the statutory grounds for a divorce: Shoemaker v. Shoemaker, 25 Pa. Superior Ct. 183, 185.</p> <p>By the terms of the Act of June 25, 1895,- P. L. 308, it is made a cause for divorce “where a wife shall have, by cruel and barbarous treatment or indignities to his person, rendered the condition of her husband intolerable or life burdensome.”</p> <p>In determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife toward her husband during the period of the alleged ill treatment should be considered: Barnsdall v. Barnsdall, 171 Pa. 625, 632; and if by other means she makes her husband’s life burdensome or intolerable, as by obstinate silence, laziness, or willful neglect of household duties, they do not fall within the meaning of the act: Harris’s App., 2 W. N. C. 331.</p> <p>The case is presented of a woman possessed of a frivolous disposition with a penchant for flirting, who fails to realize the dignity and becoming decorum demanded of a matron occupying the social position in which her husband had placed her; and who, by her levity, has occasioned him chagrin, mortification and sorrow. Whether or not a reference of the parties to the domestic forum for the adjustment of their differences, recommending to the aggressor the improvement of her manners, and to the aggrieved the remedy of decent resistance or prudent conciliation, Butler v. Butler, 1 Parsons, 329-345, is adequate in this case, it is plain by reference to the authorities, no matter how much the court may sympathize with libelant in, his unhappy domestic relationship, that the acts complained of while proof of conduct unbecoming a wife do not support the charge of cruel and barbarous treatment or indignities to the person.</p> <p>The acts of alleged cruelty were isolated occurrences happening years before the filing, of the libel. They did not place libelant in bodily fear, or prevent cohabitation.</p> <p>The acts assigned by libelant for withdrawing from respondent’s society was the predilection shown by her for the tutor, permitting him to visit her and accepting his attentions in disregard of libelant’s prohibition; thereby arousinglibelant’s jealousy and creating in his mind the belief that her conduct rendered him an object of ridicule and scorn among their acquaintances.</p> <p>In McMahen v. McMalien, 186 Pa. 485, the Supreme Court adopted the definition in 1 Bishop on Marriage and Divorce taken from the leading case of Evans v. Evans, 1 Hagg. Con.-35: “ Cruelty, therefore, is such conduct in one of the married parties as renders further cohabitation dangerous to the physical safety of the other, or creates in the other such reasonable apprehension of bodily harm as materially to interfere with the discharge of marital duties; ” and the acts or conduct of the wife toward her husband that will entitle the latter to a divorce, must be not only such as to render his condition intolerable and life burdensome, but such as amount to cruel and barbarous treatment. Both of these statutory elements must concur': Schulze v. Schulze, 33 Pa. Superior Ct. 325.</p> <p>It was said in Olsen v. Olsen, 27 Pa. Superior Ct. 128, 132, “Courts ought never to sever the marriage contract, but where the application is made in sincerity and truth for the causes set forth and no other, and fully sustained by the testimony: Angier v. Angier, 63 Pa. 450. The marriage relation should never be dissolved without clear proof of imperious reasons: Richards v. Richards, 37 Pa. 225. Divorce ought never to be decreed without clear and satisfactory evidence of the wrong which the law treats as justifying cause for divorce.”</p> <p>It may be said of this case, as in Hahn v. Bealor, 132 Pa. 242, 256, “It exhibits a state of domestic infelicity, but it does not present a case of cruel and barbarous treatment by the wife of the husband, which rendered his condition intolerable and life burdensome.”</p> <p>That it was bad, shamelessly bad, must be conceded. That it was such as to call for the abhorrence of every right-minded man, appears plainly from the evidence. But it is not all bad conduct of a wife which entitles a husband to a divorce. Causes sufficient for that are such only as are defined in the acts of assembly. Strong, J., in Gordon v. Gordon, 48 Pa. 226, 234-235.</p> <p>It was said in Richards v. Richards, 37 Pa. 225, and reiterated in Middleton v. Middleton, 187 Pa. 612, “Never ought divorces to be easily obtained, for marriage is the most sacred of human relations, and should never be dissolved without clear proof of imperious reasons:” Rochelle v. Rochelle, 28 Pa. C. C. Rep. 458, 460.</p> <p>The libel is dismissed.</p> <p>Error assigned was the decree of the court refusing the divorce.</p>

<p>Boroughs — Hawkers and peddlers — License—Ordinance—Classification.</p> <p>1. A borough ordinance prohibiting any person without a license “to sell or offer for sale at retail upon the streets of the borough, or from house to house, any goods, wares or merchandise of any kind, or of any meat, fish, groceries, provisions, or foods of any kind, except milk,” is a valid exercise of the municipal power.</p> <p>2. The exception of milk in such an ordinance is not an improper classification.</p> <p>3. Where a butcher not only sells from his shop, but also sells from house to house, the payment of the mercantile tax for the business conducted at the shop, will not protect him from the penalty provided by a borough ordinance prohibiting any person from selling from house to house without a license.</p> <p>4. If the evidence is conflicting as to whether he merely makes deliveries with his wagon and takes orders, or whether he in fact sells from house to house, the case is for the jury.</p>

<p>Promissory notes — Defenses—Notice—Evidence.</p> <p>Where several promissory notes are given to secure the deferred payments on a machine guaranteed by the seller, and three of the notes are discounted by a bank, the third subsequently to the payment of the first, the maker cannot defend in a suit by the bank on the third note, because the bank prior to the discounting of any of the notes had through its president, inspected the contract for the purchase of the machine showing the guaranty and the right of the purchaser to defend against the payee for a breach of the guaranty, and providing that the notes were to be “with discount.”</p>

<p>Appeal, No. 170, Oct. T., 1900, by defendant, from judgment of C. P. Chester Co., April T., 1908, No. 18, on verdict for plaintiff in case of William T. Yerkes v. Julia F. Osborne.</p> <p>Assumpsit to recover commissions on the sale of real estate. Before Hemphill, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $113.93. Defendant appealed.</p>

<p>Road law — Township—Public officers — Act of April 12, 1905, P. L. 142 — Constitutional law.</p> <p>1. The purpose of the Act of April 12, 1905, P. L. 142, was to make the name of the officers of all of the townships of the second class “supervisors” whatever may have been the name of the official exercising the function of the officers commonly known as the supervisors of highways in the various counties.</p> <p>2. The Act of April 12, 1905, P. L. 142, sec. 14, is not a revival, amendment, extension, or conferring of the provisions of another act within the prohibition of sec. 6 of art. Ill of the constitution of Pennsylvania.</p> <p>3. Under the Act of May 6, 1852, P. L. 622, the road supervisors in Bradford county have the right to lay out, change and vacate highways, and this right has not been abridged by the Act of April 12, 1905, P. L. 142.</p>

<p>Negligence — Master and servant — Safety appliances — Safe place to work — Contributory negligence — Custom.</p> <p>1. A servant is not required to act on his own judgment against that of his employer, and if the latter give him positive instructions to go on with a particular task he may recover for any injury received if the work is not imminently dangerous.</p> <p>2. Where a workman employed in a quarry, in hurriedly attempting to cross a track to avoid an approaching car, is directed by the foreman to stop and remove a stone on the track, with the assurance from the foreman that there is plenty of time for him to do so and get away, but is injured in the act, he cannot be charged with contributory negligence.</p> <p>3. Where the plaintiff in an accident case alleges that his injuries were caused by the failure of the defendant to use proper safety appliances, he must prove that the appliances used were not as well adapted to securing the safety of the operatives as the plans in use elsewhere. He cannot simply show that the method adopted by the defendant was not the same as generally used.</p>

<p>Negligence — Street raihoays — “Stop, look and listen” — Right angle collision.</p> <p>1. A traveler about to cross a street at a regular crossing is not bound to wait simply because a street car is in sight. Where the car is at such a distance from the traveler that he has sufficient time to cross, if the car is moving at the usual speed, he ought not to be charged with negligence as a matter of law if he proceeds.</p> <p>2. Where the driver of a wagon in approaching a crossing looks, after he has cleared the house line, and sees a car three hundred feet away, and again looks as his team reaches the track and sees the car two hundred feet away, and he proceeds and the wagon is struck, the question of the driver’s contributory negligence is for the jury.</p> <p>Evidence — Conflicting testimony — Number of witnesses — Case for jury. *</p> <p>3. Where a witness makes a clear and direct averment of a fact, and this averment is positively contradicted by four other witnesses, the averment of the single witness must be submitted to the jury notwithstanding the preponderance of the contradictory evidence.</p>

<p>Appeal, No. 197, Oct. T., 1909, by plaintiffs, from judgment of C. P. Huntingdon Co., Sept. T., 1905, No. 16, on verdict for defendants in case of Harry Kyper and A. S. Welch v. W. T. Sheaffer et al.</p> <p>Trespass for alleged wrongful use of a lane. Before Woods, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1-25) various rulings on evidence and instructions fully stated in the opinion of the Superior Court.</p>

<p>Appeals — Assignments of error — Points—Practice (Superior Court).</p> <p>1. An assignment of error to the answer of a point violates rule 15, where the assignment quotes neither the point nor the answer.</p> <p>2. Assignments of error violate rule 14, if they embrace more than one point, refer to more than one bill of exceptions, and raise more than one distinct question.</p> <p>Criminal law — Larceny—False pretenses — Possession—Right to Property — Money.</p> <p>3. If by any trick or artifice, the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with, not only the possession of the goods but the right of property in them also, the offense of the party obtaining them will not be larceny, but the offense of obtaining goods by false pretenses.</p> <p>4. A conviction for larceny will be sustained, where the evidence shows that the prisoner after meeting by chance the prosecutor, an ignorant foreigner, pretended to find a fifty dollar bill, which was in fact a Confederate bill and worthless, that he offered to divide the find with the prosecutor, and that the prosecutor being ignorant of the character of the bill, gave to the prisoner twenty-five dollars in current money, and took the Confederate bill in exchange for his share.</p>

<p>Appeal, No. 156, Oct. T., 1909, by-defendants, from decree of C. P. Bedford Co., Jan. T., 1909, No. 23, on petition in insolvency in case of George B. Hoover v. John A. Ober.</p> <p>Petition in insolvency.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the decree declaring John A. Ober insolvent and appointing H. B. Cessna, receiver.</p>

Appeal, No. 161, Oct. T., 1909, by plaintiff, from judgment of C. P. Carbon Co., June T., 1908, No. 19, for defendants non obstante veredicto… Held: Nichols v. Luce, 41 Mass. 102. One of the definitions of easement in Bouvier’s Dictionary is: “A privilege which the owner of one adjacent tenement hath of another existing in respect to their several tenements, by which that owner against whose tenement the privilege exists, is obliged to suffer or not to do something-on or in…

<p>Negligence — Street railway companies — Traumatic tuberculosis— Expert testimony — Evidence.</p> <p>1. In an action to recover damages for personal injuries the plaintiff may show in a proper way that traumatic tuberculosis resulted directly from the personal injury which he had sustained.</p> <p>2. Where the evidence shows the infliction of the injury and its character, the existence of a bruise on the plaintiff’s left side followed by pleurisy, continuing cough, expectoration in which there was tubercular bacilli, loss of weight all within a period of eight months after the injury, the absence of any other reasonable proximate cause, and two eminent physicians testify as to the definite relation between the injury and the tuberculosis of the plaintiff, and other eminent physicians called by the defendant admit that there had been cases, although few in number, where trauma had been, the direct cause of tuberculosis, the question whether the injury was the cause of the tuberculosis of the plaintiff, is a question which should be submitted to the jury.</p>

<p>Appeal, No. 46, April T., 1910, by-defendant, from judgment of C. P. Allegheny Co., June T., 1907, No. 50, on verdict of guilty in case of Commonwealth v. Charles R. Richardson.</p> <p>Indictment for conspiracy to bribe and corrupt a councilman. Before Frazer, P. J.</p> <p>At the trial a motion was made to quash the indictment for the following reasons:</p> <p>1. The indictment in this, case charges an offense not known to the law of this commonwealth.</p> <p>2. The act of this commonwealth, which is a .part of the penal code, and which was approved April 29", 1874, P. L. 115, provides specifically for the offense of attempted bribery of city councilmen by one or more persons, acting in concert as well as otherwise; defines this offense; names it corrupt solicitation; fixes the penalty, and further provides fully and entirely for every element of the offense and its conviction and punishment; and, therefore, all indictments for the said offense must be exclusively under said act, and for the said offense of corrupt solicitation, and not otherwise.</p> <p>3. Because the defendants, or either of them, if guilty according to the facts set forth in the said indictment, are guilty only of corrupt solicitation; a remedy has been by the law of this commonwealth provided for that offense by the said act of April 29, 1874, and this remedy and the provisions of this act must be strictly and exclusively pursued.</p> <p>4. Because our penal code provides fully and specifically for the definition, name, punishment and all other matters connected with or concerning the offense purported to be set forth in this indictment, the common law as to that offense is abrogated and nullified, and the provisions of the said penal code must be strictly and exclusively followed, and the indictment must be under the provisions of said penal code and for the offense of corrupt solicitation. Therefore, an indictment for common-law conspiracy will not lie, because of sec. 183 of the penal code, which provides, “in all cases where a remedy is provided, or duty enjoined, or anything directed to be.done, by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such act or acts into effect.” Neither will an indictment lie for conspiracy under the sections of said penal code relating to conspiracy, because the said sections of said code relating to conspiracy do not embrace or comprehend such a case as this.</p> <p>5. This indictment is drawn under our penal code, uses the phraseology thereof and of the said act of April 29, 1874, and concludes “contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.” And now, June 20, 1907, after argument by counsel, and upon consideration, the foregoing motion to quash is overruled, and at defendants’ instance bill sealed. [1]</p> <p>The court admitted under objection and exception a transcript of the testimony of the defendant, Richardson, given in the case of Commonwealth v. William A. Martin on the trial of an indictment for bribery. [2-4]</p> <p>The court also permitted under objection and exception the cross-examination of defendant as to his testimony in the prior case. [1-14]</p> <p>The court refused binding instructions for defendant. [15] Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) refusal to quash the indictment; (2-14) rulings on evidence and (15) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 36, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 585, on verdict of guilty in case of Commonwealth v. Charles S. Cameron.</p> <p>Indictment under sec. 9 of the Act of May 23, 1874, P. L. 230, for offering a bribe to a councilman.</p> <p>At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.</p> <p>The court subsequently overruled a motion in arrest of judgment, Van Swearingen, J., specially presiding, filing an opinion in which he stated the facts to be as follows:</p> <p>In the summer of 1906 an ordinance was introduced into the select branch of councils of the city of Pittsburg, providing for the granting of a franchise to the Pittsburg & Tube City Railroad Company to build its line of steam railroad through portions of the city of Pittsburg, beginning at Fourth avenue and Try street and extending thence eastwardly in Allegheny county to the city of McKeesport. Upon the ordinance being introduced into councils it was referred in the ordinary course of business to the joint committee of councils on corporations. This joint committee was composed of twenty-three members, including the chairman of each branch of councils. One of the members of the common branch of councils and a member of the joint committee on corporations was W. A. Martin. About the time this ordinance was introduced into councils and referred to the joint committee on corporations, a meeting was brought about between the said W. A. Martin and the president of the said railroad company, Charles S. Cameron. At that meeting Martin was asked his opinion relative to said ordinance, and as a result of the conference, Cameron suggested that he would give Martin the sum of $50,000 if Martin would use his influence in helping to get the ordinance passed through councils. Martin did not accept that proposition at that time, but asked for a week in which to consider it. Later, Martin went back to Cameron and told him he would take $60,000, and use his influence to secure the passage of the ordinance. This proposition was accepted by Cameron, who agreed to give Martin the $60,000 when the ordinance should have passed councils and been approved by the mayor of the city. Negotiations were had from time to time, and some dissatisfaction arose relative to the matter, and in the course of these negotiations Cameron offered to give Martin $70,000 for his influence in securing the passage and approval of the ordinance, and agreed that if councils passed the ordinance and it was vetoed by the mayor and Martin then secured the passage of the ordinance over the veto of the mayor, Cameron would give him $80,000 for his efforts in that behalf. All these facts were established at the trial.</p> <p>Cameron was indicted under the ninth section of the Act of May 23, 1874, P. L. 230, relative to cities in this state, which reads as follows: “Any person who shall, directly or indirectly, offer, give or promise, any money or thing of value, testimonial, privilege or personal advantage, to any member of councils to influence him in the performance of any of his public or official duties, shall be guilty of bribery and be punished in such manner as that offense is by law punishable.”</p> <p>When the case was called for trial the defendant entered the following plea in bar of the prosecution: “And Now, January 11, 1909, comes Charles S. Cameron, a citizen of the United States and of the Commonwealth of Pennsylvania, in his own proper person, into court here, and having heard the said indictment read, and protesting that he is not guilty, says, that the said Commonwealth ought not further to prosecute the said indictment against him, Charles S. Cameron, because he says that heretofore, to wit, on the sixteenth day of December, 1906, in a certain prosecution by the Commonwealth of Pennsylvania, against W. A. Martin, on a charge of corrupt solicitation of members of the Councils of the city of Pittsburg, which said charge was being heard by Police Magistrate Prank J. Brady, this defendant was duly subpoenaed by the Commonwealth, and was called as a witness to testify in the said case; that upon being sworn and interrogated, this defendant declined to answer the questions put to him, because said answers would tend to incriminate himself, and in this refusal defendant persisted; whereupon the Commonwealth caused information to be made against this defendant for contempt and obstructing public justice, by reason of his said refusal to testify; that an indictment was found on said information at No. 49, December Sessions, 1906, of this Honorable Court; that this defendant was tried on said indictment and found guilty thereof, the trial court ruling that by reason Of the character of the charge in which he was called to testify being bribery, and the constitutional provisions of this Commonwealth relating thereto, this defendant was not exempt from giving evidence tending to incriminate himself; that thereafter, and by reason of the judgment so rendered against this defendant, he was called again as a witness in the case of the Commonwealth v. Flaherty and Millholland, before said Police Magistrate Frank J. Brady, on a charge of conspiracy to bribe, and so thereupon was again asked by the Commonwealth certain questions tending to incriminate himself, and this defendant then and there asserted and claimed his privilege under the bill of rights and the Constitution of this Commonwealth, by refusing to give evidence incriminating himself, but defendant was then and there compelled to answer and did answer certain questions which incriminated himself in the criminal charges then and there being heard. Wherefore this defendant saith, that, because of the aforesaid action of the Commonwealth in compelling him to so testify as aforesaid to matters and things incriminating himself in the present charge of which he stands indicted, he thereby, under the Constitution of this Commonwealth and the Constitution of the United States, became then and there immune and exempt from indictment and prosecution for the corrupt solicitation charged in this present indictment, which is the same charge whereof he was compelled to incriminate himself. For a further special plea defendant saith, that section 32, article III, of the Constitution of Pennsylvania, unless it be held and construed to grant and secure to this defendant full and absolute immunity from prosecution for the matters and things whereof the defendant was compelled to incriminate himself under-said constitutional provision, is in conflict with and violative of defendant’s rights as a citizen of the United States and a citizen of this Commonwealth, under the Fourteenth Amendment of the Constitution of the United States, as not being due process of law as therein secured and guaranteed. Wherefore defendant prays judgment that he may be discharged.”</p> <p>To this plea of the defendant the commonwealth demurred. We sustained the demurrer, and the defendant was convicted by the jury. None of the testimony given by the defendant before the police magistrate was used against him, and no reference thereto was made in any manner whatever upon the trial. The conviction of the defendant was had upon testimony wholly distinct and apart therefrom. The matter is now before us on motions for a new trial and in arrest of judgment, both motions being grounded in substance on the refusal of the court to sustain the defendant’s plea in bar.</p> <p>Errors assigned, among others were in sustaining the commonwealth’s demurrer to the special plea in denying motion in arrest of judgment and in imposing the sentence quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 133, Oct. T., 1909, by defendant, from judgment of Q. S. Phila. Co., Nov. T., 1908, No. 12, on verdict of guilty in case of Commonwealth v. Albert E. Keuhne.</p> <p>Indictment for embezzlement.</p> <p>At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.</p> <p>On motion to arrest judgment Martin, P. J., filed the following opinion:</p> <p>The defendant was indicted on November 2, 1908, for fraudulent embezzlement of money belonging to the “German Daily Gazette Publishing Company,” a body corporate, by whom he was employed.</p> <p>It was proved that he appropriated the money during the year 1905. The verdict was “Guilty.”</p> <p>A motion in arrest of judgment was made upon the ground that the prosecution was barred by the statute of limitations.</p> <p>Defendant was indicted under the Act of June 12, 1878, P. L. 196, which enacts that, “If, any person being an officer, director, superintendent, manager, receiver, employee, agent, attorney, broker, or member of any bank or other body corporate, or public company, municipal or quasi municipal corporation, shall fraudulently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such bank, body corporate or company, municipal or quasi municipal corporation .... he shall be guilty of a misdemeanor.”</p> <p>Section 6 provides that indictments may be commenced and prosecuted at any time within four years from the time the alleged offense shall have been committed.</p> <p>It was claimed on behalf of defendant that this act is not sufficiently comprehensive to include an employee of a corporation other than one of a public, municipal or quasi municipal character, except a bank; that the words “or other body corporate” should be restricted under the doctrine of noscitur a sociis, or ejusdem generis, and that “public company,” “municipal or quasi municipal corporations” appearing in the act indicates the genus to which the legislature intended the act to apply.</p> <p>It was said by Coleridge, J., in Pocock v. Pickering, 21 L. J. Q. B. 365, 368, referring to the duty of the court in construing an act: “ Our first business, I conceive, is to examine the words themselves which are used; and if in these there be no ambiguity it is seldom desirable to go further.”</p> <p>“It is better always to adhere to a plain common sense interpretation of the words of a statute than to apply to them refined and technical rules of grammatical construction:” Gyger’s Est., 65 Pa. 311, 312, Sharswood, J.</p> <p>It has been held that the rule of construction which is called the ejusdem generis doctrine, or sometimes the doctrine of noscitur a sociis, is one which ought to be applied with great caution; because it implies a departure from the natural meaning of words in order to give them a meaning which may or may not be the intention of the legislature: Smelting Company v. Inland Revenue Commissioners, 66 L. J. Q. B. 137, 140.</p> <p>In Salomon v. Salomon, 66 L. J. Ch. 35, 44, the court said: “ 'Intention of the legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.”</p> <p>It was further claimed that if the act of 1878 did not include the offense the indictment must rest upon sec. 107 of the Act of March 31, 1860, P. L. 382, which enacts that “if any clerk, servant, or other person in the employ of any other, shall by virtue of such employment receive and take into his possession any chattel, money, or valuable security, which is or may be the subject of larceny, for or in the name or on account of his master, or employer, and shall fraudulently embezzle the same or any part thereof, every such offended shall be deemed to have feloniously stolen the same from his master or employer;” and that the period of limitation provided by sec. 77 of the procedure Act of March 31, 1860, P. L. 427, applicable to the case is two years next after the misdemeanor was committed.</p> <p>It is provided, however, in this latter act that indictments for misdemeanors committed by any officer of a bank, or other corporation, may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed.</p> <p>“When an act is expressed in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents. To go elsewhere in search of conjecture in order to restrain or extinguish it, is to endeavor to elude it:” Jackson v. Lewis, 17 John. 475, 477.</p> <p>Neither is it true as it has been sometimes put, that the court, in the exposition of penal statutes are to narrow the construction. “We are to look to the words in the first instance,” said Buller, J., in R. v. Hodnett, 1 T. R. 96, “and where they are plain, we are to decide on them. If they be doubtful, we have then to have recourse to the subject-matter.”</p> <p>In construing penal statutes, we must not, by refining, defeat the obvious intention of the legislature: Potter’s Dwarris on Statutes, 247.</p> <p>While every provision affecting a criminal offense involving liberty is subject to the strictest interpretation, this principle is not to be so applied as to narrow the words of a statute to the exclusion of cases which those words in their ordinary acceptance, or in that sense in which the legislature has obviously used them, would comprehend: Potter’s Dwarris on Statutes, 964.</p> <p>In U. S. v. Goldenberg, 168 U. S. 95, 102, it was said: “The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator.</p> <p>“It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.</p> <p>“In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief:” In re Mayfair Property Co., 67 L. J. Ch. 337, 340.</p> <p>Section 1 of the Act of June 12, 1878, P. L. 196, supra, is a transcript of sec. 110 of the Act of March 31, 1860, P. L. 382, which was in turn sec. 4 of the Act of April 15, 1858, P. L. 270. This clause of the act of 1858 reads: “If any person being an officer, director or member of any body corporate or public company, shall fraudulently take, convert, or apply to his own use, or the use of any other person, any of the money or other property of such body corporate or public company he shall be guilty of a misdemeanor.”</p> <p>Section 116 of the act of 1860 extends the act to “ any bank.”</p> <p>In 1876, it was decided that the provisions of the act of 1860 did not include a school district, as it is only a quasi corporation: Com. v. Beamish, 81 Pa. 389.</p> <p>In the act of 1878, there was added the words “superintendent, manager, receiver, employee, agent, attorney, broker,” —“member of any bank or other body corporate or public company,” and “municipal or quasi municipal corporation.”</p> <p>While “any body corporate” used in the act of 1858, may be comprehensive enough to include a public company, to hold that the words “any body corporate or public company” describe only a “public company” is to strike from the statute the words “any body corporate” as surplusage and decide that the legislature did not intend to employ terms as broad as it used.</p> <p>The subsequent legislation extended the provisions of the act to other subjects, and there is no indication of an intention to limit or restrict the scope of the original enactment.</p> <p>Defendant was an employee of a body corporate within the purview of the act of June 13, 1878; and the indictment was commenced and prosecuted within the statutory period.</p> <p>The motion in arrest of judgment is overruled.</p> <p>Errors assigned were in refusing binding instructions for defendant; in refusing arrest of judgment; in finding that the defendant was an employee of a body corporate within the meaning of the act of June 13, 1878; and that the indictment was commenced and prosecuted within the statutory period.</p>

<p>Appeal, No. 281, Oct. T., 1909, by John T. Sinnott, executor and trustee under will of Mary A. Conover, deceased, from order of Q. S. Phila. Co., Aug. T., 1907, Docket No. 55, p. 208, sustaining exceptions to report of jury of view In re Boulevard from Second Street to Rhawn Street.</p> <p>Exceptions to report of jury of view.</p> <p>The exceptions were, inter alia, as follows:</p> <p>The Land Title & Trust Company, substituted trustee under the will of Amanda James, deceased, excepts to the report of the jury of view in this case, filed April 17, 1909, for the following reasons:</p> <p>1. Because the jury failed to determine to whom the damages of $13,513, which they found had been caused to the “property marked on plan as belonging to Mary A. Conover and Annie E. James,” should be paid, as required by law.</p> <p>2. Because the jury reported that. said property was “claimed by Eli K. Price, Esq., on behalf of the Land Title & Trust Company, adm. c. t. a., substituted trustees under the will of Amanda James, deceased; also claimed by E. 0. Michener, Esq., and E. Spencer Miller, Esq., on behalf of John T. Sinnott, trustee under the will of Mary A. Conover, one-half, and the other half to Anna M. Cooper, M. Adelaide Jacoby and Henrietta Cooper, legatees and devisees under the will of Annie E. James,” without finding to which of the adverse claimants or their counsel the said damages should be paid.</p> <p>3. Because the jury did not award said damages to the Land Title & Trust Company, substituted trustee under the will of Amanda James, deceased, in accordance with the evidence of title presented to the jury, by which it appeared that the said property, which the jury found to have been damaged to the extent of $13,513, was vested in fee in Levi Nice by deed from Thomas Kimber, dated May 8, 1848, and recorded in Philadelphia in deed book A. W. M. No. 70, pp. Ill et seq., that the said Levi Nice died April 2, 1865, leaving a will proved in Philadelphia on March 12, 1866, and registered in will book No. 57, pp. 178 et seq., whereby he, inter alia, devised said property to his grandnieces, Mary A. Conover and Anna N. James, for their lives and the life of the survivor with remainder to the Infidel Society in Philadelphia, thereafter to be incorporated, in fee; that the Supreme Court of Pennsylvania in the case of Zeisweiss v. James, et ah, reported in 63 Pa. 465, decided that, the devise to the Infidel Society being void, the said remainder after the termination of the life estates of the said grandnieces, “descended t6 Amanda James, the niece of the testator,” as “his heir at law under the Intestate Act,” that the said Amanda James died December 23, 1889, leaving a will and codicils thereto proved in Philadelphia, December 27, 1889, and registered in will book No. 148, pp. 434 et seq., whereof she appointed Israel H. Johnson and Anson H. Hamilton executors and trustees, to whom letters testamentary were duly granted, and that upon their subsequent discharge the said the Land Title & Trust Company was on June 9, 1894, appointed by the orphans’ court for the county of Philadelphia substituted trustee under said will and codicils of Amanda James, deceased, whereupon the said property vested in it as such trustee in fee by the terms of said will and codicils.</p> <p>The court in an opinion by Magill, J., sustained the exceptions and awarded the fund to the Land Title & Trust Company, administrator d. b. n. c. t. a.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Infante—Care of parents — Contributory negligence — ■ Case for jury.</p> <p>1. Where a parent permits a child of tender age to go on to the street, he is bound to observe reasonable care in guarding the child, dependent on the circumstances. What is a reasonable care is a question for the jury, and in passing upon such question the jury may consider the occupation and financial ability of the parent, the place of residence, the size of the family and the conditions surrounding the home.</p> <p>2. The question of the contributory negligence of the parents is for the jury where the evidence shows that the father was a tailor working in an upstairs back room, that the mother was attending to a baby in another part of the house, that a daughter between four and five years of age was with the housemaid on the ground floor; that the little girl slipped out into the street without the knowledge of either parent to go to a candy shop, and on her return was struck by a street car, and that only about five minutes had elapsed after the mother last saw the child and the arrival to her of the news of the accident.</p>

<p>Appeal, No. 43, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 1,764, on verdict for plaintiff in case of Keystone Wrapping Machine Company v. Charles H. Bromeier.</p> <p>Assumpsit on stock subscription. Before Sharer, J.</p> <p>At the trial the plaintiff offered in evidence the stock subscription which was as follows:</p> <p>“Keystone Wrapping Machine Company.</p> <p>“Incorporated</p> <p>“ Capital Stock $500,000.00. Par Value of Shares $25.00 Each</p> <p>“Main Office, 32-33 Schmidt Building, Pittsburg, Pa.</p> <p>“J. H. Felmlee, President, Order No...........</p> <p>“J. C. Thoburn, Secretary, Shares 50.</p> <p>“U. G. Vogan, Treasurer. Amount 937.50</p> <p>“June 30th, 1903.</p> <p>“I, C. H. Bromeier hereby subscribe for fifty shares of the fully paid and non-assessable capital stock of the Keystone Wrapping Machine Company, at the price of eighteen and seventy-five 100 Bollara per share, for which I agree to pay as follows: Dollars being fifty per cent with this subscription, and the balance in two equal installments, two and four months from date.</p> <p>“Name C. H. Bromeier.</p> <p>“Address 204 Fifth Ave.</p> <p>“Lawrence, Johnson & Co.,</p> <p>“Financial Agents,</p> <p>“32-33 Schmidt Bldg., Pittsburg, Pa.</p> <p>“Note — Make all checks payable to Keystone Wrapping Machine Co.”</p> <p>Objected to as incompetent, irrelevant and immaterial, for the following reasons: First, because it does not show to whom it was made. Second, because it does not show what amount of money, if any, was to be paid, nor the terms of payment. Third, because if it is a subscription, it must be completely in writing, and cannot be added to by parole evidence. Fourth, because it does not agree with the copy sued on and attached to the statement. Fifth, because it is an illegal and ultra vires contract, being a sale of the original stock of the corporation for less than par value.</p> <p>Objection overruled.</p> <p>To which ruling defendant’s counsel excepts, and at his request exception is noted, and bill sealed. [4]</p> <p>Verdict and judgment for plaintiff for $1,176.55. Defendant appealed.</p> <p>Errors assigned amongst others were (1) binding instructions for plaintiff and (4) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 56, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1904, No. 393, on verdict for defendant in case of Kenneth M. Blakiston, trading as P. Blakiston’s Son & Co. v. Davies, Turner & Company.</p> <p>' Appeal from judgment of magistrate. Before McMichael, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p>

<p>Contract — Delivery of stock — Corporation—Breach of contract — Defenses.</p> <p>1. In an action to recover money paid by plaintiff to defendant under an alleged contract by which the defendant was to deliver stock in a particular company then in process of formation, and the defendant denies the testimony of the plaintiff in support of the statement, and avers that the money paid had been paid to the defendant as an officer or agent of the company, and as a part of plaintiff’s stock subscription, the question of defendant’s liability is, under the conflicting testimony, a question for the jury.</p> <p>2. In such a case the fact that no stock was ever issued by the company, and that this was through no fault of the defendant, or the fact that the defendant expended the money for the company’s benefit, or both facts combined, does not constitute a defense.</p> <p>Trial — Evidence—Offers—Practice, C. P.</p> <p>3. It is always the duty of a party making an offer when its admissibility is challenged to state the purpose in such manner that court may perceive its relevancy.</p>

<p>Mechanics’ lien — Striking off lien — Matters dehors the record — Act of June 4, 1901, sec. 23, P. L. 431.</p> <p>1. Under the Act of June 4, 1901, sec. 23, P. Ij. 431, the courts of common pleas have jurisdiction to strike off a mechanic’s lien even for matters dehors the record, when the conditions called for in the section are present.</p> <p>2. A single lien filed against two structures will be stricken off; and the fact that the structure liened was in reality a double structure may be shown by matter dehors the record.</p>

Appeal, No. 13, Oct. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1905, No. 1,357, on verdict for plaintiff in case of Charlotte Rothacker v. Philadelphia. Trespass to recover damages for personal injuries. Before Staake, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,500. Defendant appealed.

Appeal, No. 233, Oct. T., 1908, by plaintiff, from order of C. P. Franklin Co., April T., 1908, No. 19, discharging rule for judgment for want of a sufficient affidavit of defense in case of the Collings Tailor Company v. W. 0. Appenzellar and E. 0. Smiley, receiver of the Chambers-burg Woolen Company. Replevin to recover goods sold and delivered to the Chambersburg Woolen Company. Rule for judgment for want of a sufficient affidavit of dc^ fense.

Appeal, No. 201, Oct. T., 1909, by defendant, from judgment of Q. S. Franklin Co., April Sessions, 1909, No. 33, on verdict of guilty in case of Commonwealth v. Wilson Female College. Indictment for nuisance. Before Gillan, P. J. The opinion of the Superior Court states the facts. The court gave binding instructions for the commonwealth. Verdict of guilty upon which judgment of sentence was passed. Error assigned was in giving binding instructions for the commonwealth.

Appeal, No. 236, Oct. T., 1908, by defendant, from order of Q. S. Bedford Co., overruling exceptions to report of viewers in case of F. O. Reighard v. Bedford County. Exceptions to report of viewers. Before Woods, P. J. The opinion of the Superior Court states the case. Error assigned was the order of the court overruling exceptions to report of viewers.

Appeal, No. 219, Oct, T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1909, No. 771, discharging rule for judgment for want of a sufficient affidavit of' defense, in case of Sig. M. Herrman, executor of the estate of William H. Green, deceased, v. Arthur C. Bredo. Assumpsit on a promissory note for $500. The averments of the affidavit of defense are stated in the opinion of the Superior Court.

Appeal, No. 225, Oct. T., 1908, by defendant, from judgment of C. P. Bedford Co., Sept. T., 1908, No. 137, on verdict for plaintiff non obstante veredicto in case of H. Frank Gump et al., trading as H. Frank Gump & Sons, v. W. W. McDaniel. Sheriff’s interpleader to determine the ownership of a traction engine. Before Shull, P. J., specially presiding. The facts are stated in the opinion of the Superior Court. Plaintiff presented the following points: 4.

<p>Appeal, No. 229, Oct. T., 1909, by defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1904, No. 823, for plaintiff on case tried by the court without a jury in suit of Heber M. Lamon v. Annie Rodgers, Francis Rodgers, Joseph Rodgers, Margaret Rodgers, Joseph McKee and Annie, his wife.</p> <p>Ejectment for land 224 West Thompson street, Philadelphia.</p> <p>The case was tried by Ferguson, J., without a jury under the Act of April 22, 1874, P. L. 109.</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 tried by the court without a jury.</p>

Appeal, No. 52, Oct. T., 1909, by defendants, from judgment of C. P. Clearfield Co., May T., 1908, No. 180, on verdict for plaintiff in case of Jennie Wise v. A. F. Martin, administrator. Assumpsit to recover compensation for nursing decedent. Before Ormerod, P. J., specially presiding. The facts are stated in the opinion of the Superior Court.

<p>Statute of frauds — Promise to pay the debt of another — Evidence.</p> <p>1. An oral promise made by the owner of a building under construction to a material man to pay for material furnished in case the contractor made default in such payment, is void under the statute of frauds.</p> <p>2. The evidence to prove a promise by one person to pay the debt of another as a new and original undertaking, and not a contract of suretyship, must be clear, precise and indubitable.</p> <p>3. An owner of a building under construction cannot be held liable to a material man for material furnished where the evidence shows that the p'arties only contemplated that the owner would endeavor to pay the material man out of such sums of money as he might owe the contractor in case the latter completed the building in accordance with the contract.</p>

<p>Appeal, No. 107, Oct. T., 1909, by plaintiff, from decree of C. P. Potter Co., March T., 1909, No. 1, dismissing bill in equity in case of Potter Gas Company v. Fred Dunshie Collector of Sharon Twp. and Sharon School Dist., the Township of Sharon, the School District of Sharon Twp., C. D. Austin et al.</p> <p>Bill in equity for an injunction. Before Ormerod, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 62, Oct. T., 1909, by plaintiffs, from judgment of C. P. Chester Co., Jan. T., 1909, No. 88, for defendant non obstante veredicto in case of John Fahey et al. v. Kennett Square Borough. Trespass for diversion of water from a stream. At the trial the jury returned a verdict for plaintiffs for $1.00.

<p>Appeal, No. 183, Oct. T., 1909, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1909, No. 10, on demurrer to statement of claim in case of Passmore Greenfield v. David M. Golder.</p> <p>Trespass against the sheriff for an alleged wrongful levy and sale. Before Butler, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in sustaining demurrer to statement of claim.</p>

<p>Negligence — Street railways — Damages—Traumatic tuberculosis — Evidence.</p> <p>In an action against a street railway company to recover damages for personal injuries, where the plaintiff claims as an element of damages the development of traumatic tuberculosis from the injury received at the time of the accident, the trial judge commits no error in directing the jury not to take into consideration the tuberculosis of the plaintiff, where no evidence was offered of external injuries or internal lesion, and the physicians called by the plaintiff could not testify that the tuberculosis of which the plaintiff was suffering at the time of the trial was the result of the accident.</p>

<p>Statutes — Repeal—Rules of construction — Grandparents and Grandchildren — Support—Poor law — Acts of June 15, 1836, P. L. 54, and April 6, 1905, P. L, 112.</p> <p>1. The legislature is presumed to know the law and to be consistent.</p> <p>2. A repealing clause in a statute, because of repugnancy, has no greater effect than an implied repeal because of repugnancy.</p> <p>3. To justify a repeal, whether because of a repealing clause or by implication on the ground of repugnancy, that repugnancy must be real and substantial and not fanciful and visionary.</p> <p>4. Repeal by implication is not favored.</p> <p>5. In the construction and enforcement of statutes, they are to be applied and enforced in the inverse order of their enactment.</p> <p>6. Section 28 of the Act of June 13, 1836, P. L. 541, making grandparents liable for the support of their grandchildren is not repealed by sec. 4 of the Act of April 6, 1905, P. L. 112.</p>

<p>Church law — Affidavit of defense — Contract.</p> <p>In an action by an architect against a bishop of the Roman Catholic Church, trustee of a congregation, for services rendered, an affidavit of defense is sufficient to prevent judgment, which avers that the congregation in question was a corporation, and that the clergyman mentioned in the statement of claim as having ordered the work, had no authority to bind the defendants, and had not been authorized by them to pledge the credit of the congregation in question.</p>

<p>Appeal, No. 32, March T., 1910, by defendant, from order of C. P. Luzerne Co., May T., 1907, No. 106, refusing to strike off cautionary judgment in case of F. J. Monahan v. William H. Auman, Jr.</p> <p>Rule to strike off cautionary judgment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order refusing to strike off the cautionary judgment.</p>

<p>Justice of the peace — Certiorari—Appeals—Jurisdiction—Records— Depositions.</p> <p>No appeal lies from an order of the Common Pleas affirming the judgment of a justice of the peace on certiorari, where the record proper shows that the justice had jurisdiction of the parties and the cause of action, under the Act of March 20, 1810, P. L. 208.</p> <p>Depositions taken to show want of jurisdiction of the justice, are not a part of the record.</p>

Appeal, No. 37, March T., 1910, by plaintiff, from order of C. P. Lackawanna Co., Sept. T., 1910, No. 1,464, quashing writ of ejectment in case of William Utley v. James A. Cobb. Rule to quash writ of ejectment. Newcomb, J., filed the following opinion: The regularity of the writ is attacked because it was issued more than six months after plaintiff had been ruled to bring his action.

<p>Appeals — Interlocutory order — Granting new trial — Practice.</p> <p>An order granting a new trial upon the ground that the verdict was against the weight of the evidence is not a final judgment from which an appeal lies.</p>

<p>Criminal law — Indictnient—Larceny—Larceny by bailee — Receiving stolen goods — Practice, Q. S.</p> <p>1. Counts charging larceny by bailee, larceny, and receiving stolen goods, may all be joined in one indictment, and a conviction on a count charging larceny by bailee will be sustained although the jury rendered a verdict of acquittal on the other two counts.</p> <p>Appeals — Assignments of error — Paper-books.</p> <p>2. Where on an appeal in a criminal case the charge and the evidence are not printed in the appellant’s paper-book, assignments, of error relating to the charge of the court will not be considered if the appellate court cannot dispose of the case on the merits, without having the charge and the evidence before it.</p>

<p>Appeal, No. 257, Oct. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 5,235, making absoluté rule for judgment against garnishees in case of Saunders I. Jones and Lawrence Jones, copartners, trading as Paul Jones & Co. v. Joseph W. Keesey, defendant, and Schalcher & Company.</p> <p>Attachment execution.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment against garnishees.</p>

Appeal, No. 258, Oct. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 5,235, making absolute rule for judgment against garnishees in case of Andrew Forbes, trading as Andrew Forbes & Company, v. Joseph W. Keesey, defendant, and Schalcher & Company, garnishees.

<p>Liquor law — Appeals—Certiorari—Record—Selling to persons of known intemperate habits.</p> <p>1. On an appeal from an order of the Quarter Sessions refusing a liquor license, the appellate court can consider only the record. The conclusion of the court below as to facts cannot be reviewed.</p> <p>2. Where an order refusing a liquor license states that the grounds for refusal are set forth in an opinion filed with the order and made part thereof, and the opinion shows that the ground of the refusal was based on a finding after a hearing that the applicant had sold liquor to persons of known intemperate habits, the order of the lower court will be affirmed.</p>

<p>Appeal, No. 224, Oct. T., 1908, by plaintiff, from decree of O. C. Lancaster Co., May T., 1908, No. 10, dismissing exceptions to adjudication in Estate of Joseph Eaby, 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>

<p>Appeal, No. 27, Oct. T., 1909, by defendant, from judgment of Q. S. Blair Co., Oct. T., 1908, No. 35, on verdict of guilty in case of Commonwealth v. George McClellan.</p> <p>Indictment for larceny and for receiving stolen goods. Before Bell, '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 (1-13) various rulings on evidence and instructions set forth at length in the opinion of the Superior Court.</p>

<p>Appeal, No. 53, Oct. T., 1909, by de fendant, from judgment of C. P. Schuylkill Co., July T., 1908, No. 116, on verdict for plaintiff in case of William Blew v. Ryan Township.</p> <p>Assumpsit for removing a tree and shoveling snow from a highway. Before Bechtel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Carl Winkle, a witness for defendant, was asked this question: “Q. How long, in your judgment, would it take to make two cuts in that tree, one at the stump as it now appears, and another eight or ten feet away, the tree being a chestnut tree and having a hollow of ten or twelve inehes, the tree having fallen down across the road, which you know the location; taking all those things into consideration, about how long do you think it would take to make the two cuts? ”</p> <p>Objection.</p> <p>“ Q. Let me add to it. What would it be worth, taking it as I have described it, to make two cuts in a tree of that kind, as I have already described it, you having seen the location on the ground, seen the stump, it being a chestnut tree with a hollow, and falling across the road — how much would it be worth to make the two cuts, taking out a log seven or eight or ten feet long, and rolling it out of the way, to the side of the road?”</p> <p>Objected to. Objection sustained. [5]</p> <p>Verdict and judgment for plaintiff for $14.96. Defendant appealed.</p> <p>Errors assigned were (4) refusal of binding instructions for defendant and (5) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 202, Oct. T., 1909, by defendant, from decree 'of C. P. Schuylkill Co., Jan. T., 1907, No. 4, on bill in equity in case of Alexander A. Gorman and Mollie M. Gorman v. Catherine McDermott.</p> <p>Bill in equity for an injunction.</p> <p>The case was heard on bill and answer. Before Bechtel, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree awarding an injunction.</p>

<p>Poor law — Order of removal — Costs—Act of June 13, 1836, P. L. 539.</p> <p>Under the poor law Act of June 13, 1836, P. L. 539, an order of removal may be made where any pauper is likely to become chargeable to a district which is not liable for the support of the pauper, and it is not necessary to justify such order that a previous order of relief should have been granted. In such a case the costs may be imposed upon the district of the pauper’s last settlement and to which he has been removed.</p>

Appeal, No. 206, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March. Term, 1907,'No. 2,764, on verdict for plaintiff in case of John McCarthy v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before WlLTBANK, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for John McCarthy for $50.00 and for Joseph McCarthy for $52.00. Plaintiff appealed.

<p>Railroads — Fire from sparks — Negligence—Evidence—Case for jury.</p> <p>1. In an action against a railroad company to recover damages for the destruction of buildings by fire alleged to have been caused by some sparks from an engine, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the day on which the fire occurred was warm and dry, with a light wind blowing from the railroad towards the buildings; that there was no fire in the buildings at the time; that shortly after a particular engine, whose number was designated, had passed, the fire broke out; that this engine had for several days before given out large sparks; that just before the fire the engine was puffing and moving with a strain, although it had a light load and an easy grade; and that this method of operating the engine resulted in the emission of sparks, although it was equipped with a spark arrester and spark guard.</p> <p>2. When the plaintiff can show by evidence, direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his building, but that they were emitted by reason of defendant’s negligence, it is sufficient to put the case to the jury for the purpose of showing negligence, and it is not a presumption of law that the defendant is called upon to meet, but affirmative evidence showing negligence. This can only be met by other evidence, and when such is introduced for the purpose, there is a conflict of evidence, and that necessarily sends the case to the jury.</p>

<p>Railroads — Fire from sparks — Evidence—Negligence—Case for jury.</p> <p>1. Recovery may be had from a railroad company for the destruction of property by fire from sparks, on circumstantial evidence only, and where it is not shown by direct testimony that any particular engine emitted the sparks, nor that any of the engines were defectively constructed.</p> <p>2. In an action against a railroad company to recover damages for injuries to woodland alleged to have been caused by three fires from sparks within a couple of weeks, the case is for the jury where the evidence shows that defendant permitted an accumulation of dry combustible brush and other material on its right of way, and the witnesses for the plaintiff testify that on the occasion of each fire they were in close view of the premises, immediately preceding the passing of engines and that there was no fire within their range of vision; but that within a few minutes after the passing of an engine the fire was seen in close proximity to the railroad tracks from whence it was communicated to the woodland.</p>

<p>Ejectment — Evidence—Articles of agreement.</p> <p>1. Where in an action of trespass it appears that the plaintiff’s title had its inception in an article of agreement, and no question is raised as to the title of the vendors at the date of the agreement, and there is no dispute as to the execution and delivery of the agreement, such .paper is properly admitted in evidence.</p> <p>Deeds — Recitals—Parties—Partnership.</p> <p>2. In an action of trespass where a deed in the plaintiff’s line of title shows a conveyance from a man and wife to a grantee having a name,, which is in form a partnership name, a recital in a deed.from the same husband and wife to the plaintiffs to the effect that the wife was the sole and only person interested in the alleged partnership, and that she traded and did business by that name, is admissible to show that the conveyance to the supposed partnership was in fact only a conveyance to the wife. If the defendant in the ejectment is a purchaser at a treasurer’s sale he is in privity in title with the record owner and is therefore bound by the recital.</p> <p>3. In such a case another reason for admitting the deed in evidence is that^the deed to a grantee which was a mere partnership name or 'fictitious name, vested no legal title in the grantee, but it remained in the grantors, and .when they subsequently executed the deed to the plaintiffs, the latter became vested with a legal title.)</p> <p>Taxation — Tax- on lands — Statements to treasurer — Evidence—Party dead.</p> <p>4. In an action of trespass a conversation between plaintiff, the owner of the land and treasurer as to the unpaid taxes on the land, is admissible in evidence. If the plaintiff makes an honest effort to ascertain what taxes are unpaid on the land and to pay the same, mistaken statements by the treasurer cannot affect his rights in the land. In such, a case the fact that the treasurer was dead at the time of the trial will not render the plaintiff an incompetent witness.</p>

<p>Appeal, No. 118, Oct. T., 1909, by Thompson Hudson, from order of Q. S. Chester Co., Jan. T., 1909, No. Ill, refusing to set aside finding of grand jury as to costs in case of Commonwealth v. Frank Gaines and Harvey Bond.</p> <p>Hearing on objections to the payment of costs imposed by a grand jury.</p> <p>At the hearing when Joshua Hibberd, foreman of the grand jury, was on the stand he was asked this question:</p> <p>“Q. When Mr. Paxson testified that one of the inducing facts for the action of the grand jury was the disgust-”</p> <p>Mr. Gawthrop: I object to that question. There is no such testimony in the case. Exception. [1]</p> <p>“Q. Was the previous record or action of Squire Thompson Hudson discussed before the grand jury?”</p> <p>Mr. Gawthrop: We object to that.</p> <p>Judge Hemphill: We will not go into what occurred before the members of the grand jury.</p> <p>Mr. Pennypacker: “Q. Was the previous record or actions of Squire Hudson discussed before the grand jury?”</p> <p>Mr. Gawthrop: We object to that. Exception. [2]</p> <p>“Q. Were there any statements made by the members of the grand jury of facts and circumstances other than those that occurred in the case before you?”</p> <p>Mr. Gawthrop: That is objected to. Exception. [3]</p> <p>Objection sustained.</p> <p>“Q. The district attorney has already testified that he it was who wrote the name of Thompson Hudson upon the back of that indictment. Was that writing so made by the district attorney .at the direction of the grand jury?”</p> <p>Mr. MacElree: I object to that. Exception. [4]</p> <p>Mr. Pennypacker: I offer in evidence the communication of Frank S. Paxson to the “Daily Local News,” printed in their issue of February 16, 1909, and identified by Mr. Paxson.</p> <p>The communication of Frank S. Paxson, secretary of the grand jury, printed in the “ Daily Local News ” issued on February 16, 1909, which was excluded by the court, is as follows:</p> <p>“ ‘ Coatesville, Feb. 16, 1909.</p> <p>“‘Editor News:</p> <p>“‘In last week’s issue of The Oxford Press, the following false and undignified criticism of the recent Grand Jury appeared:</p> <p>“ ‘The Grand Jury in their eagerness to punish Squire Thompson Hudson of Hopewell, for pestering them with so many trivial cases, put the costs on him in an ignored case. They could not impose the costs on him as a magistrate, so they attempted to mulct him as a prosecuting witness. But when the Court came to look into the case, it was discovered -that the Squire was not the prosecuting witness at all, and he of course escaped from paying the costs. It now looks as if one of the Grand Jurors in his eagerness to punish the Squire, signed his name to one of the complaints. The Squire was very angry when he found that an attempt had been made to trick him into paying the costs and he threatens to bring suit, it is said, to punish the alleged joker. The Squire did not have the costs to pay after all, and the joke is on the other fellow. Those who know the Squire remarked at the time that they did not believe he would allow himself to be caught by any such trick, and they guessed right.’</p> <p>“The above criticism was from the West Chester Correspondent of The Press, and I trust, Mr. Editor, you will find room in the columns of your paper for the following:</p> <p>“The Grand Jury in placing the costs in one case on Thompson Hudson, who happens to be a Justice of the Peace in the lower end of the County, and also was a witness before that body, in the case in question, did so believe and indeed they were instructed they had a right to do so by an officer of the Court. No doubt this Grand Jury was, and I learn many others before them have been, disgusted with some of the cases sent up to them from the Justice in question, placed the costs on him, thinking it would act as a deterrent in the future. They were not, as the correspondent says, eager to punish him. However, to be brief, the article is excepted to in general and particularly that portion of it that says: ‘It now looks as if one of the Grand Jurors in his eagerness to punish the ’Squire signed his name to one of the complaints.’ Now it seems to me this is an unwarranted assumption upon the part of the correspondent, and reflects very seriously upon the members as individuals as well as a body, as he fails to state who that one member was.</p> <p>“As a member of the recent Grand Jury, and secretary of that body, I am in a position to emphatically deny the statement that Hudson, or any other person’s name was attached to any bill of indictment by any member of the Grand Jury. All names were on the bills when handed to us by the District Attorney. If Mr. Hudson, the West Chester correspondent of The Press, has or thinks he has evidence of any member of the Grand Jury tampering in any way or placing any names on bills of indictment it is that person’s duty as a good citizen to name the offender and produce any evidence of his guilt he may possess.</p> <p>“The insinuation in the Press article is slanderous on each member of the recent Grand Jury and to some it seems almost criminal to have such a false statement sent broadcast over the county. I am making this statement, Mr. Editor, without having seen the other -members of the Grand Jury, believing they will substantiate it and uphold my action in thus answering the West Chester correspondent of The Oxford Press.</p> <p>“Yours respectfully,</p> <p>“Frank S. Paxson,</p> <p>“Secretary of the late Grand Jury.”</p> <p>Judge Hemphill: That is the expression of an individual that happened to be on the grand jury. The grand jury speaks through its foreman as a body, and not as an individual.</p> <p>Mr. Pennypacker: In that communication he says: “No doubt this Grand Jury was, and I learn, many others before them have been, disgusted with some of the cases sent up to them from the Justice in question.”</p> <p>Judge Hemphill: What bearing has that?</p> <p>Mr. Pennypacker: Only to show the feeling of the grand jury towards Thompson Hudson.</p> <p>Mr. Gawthrop: We object to that. It is a newspaper report and we do not know that it is accurate. Exception.</p> <p>Errors assigned were (1-5) rulings on evidence; (6) in refusing to set aside findings of grand jury as to costs.</p>

<p>Appeal, No. 73, Oct. T., 1909, by defendant, from judgment of C. P. Chester Co., Jan. T., 1909, No. 78, on verdict for plaintiff in case of Frank L. Speakman v. Philadelphia & West Chester Traction Company.</p> <p>Trespass to recover damages for personal, injuries. Before Hemphill, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,455. Defendant appealed.</p> <p>Error assigned among others was (2) in refusing binding instructions for defendant.</p>

<p>Res adjudícala, — Record—Cause of action — Case for jury — Pleading— Trial on merits.</p> <p>1. An action to recover damages for bodily injuries inflicted upon the plaintiff by the defendant’s employees in ejecting her from and tearing down a house she occupied as the defendant’s tenant, is not res adjudicata as a matter of law by reason of a prior, action by the plaintiff against the defendant to recover damages for injuries to furniture and effects caused by the tearing down of a house, where the record of the prior action shows a settlement and discontinuance, and the plaintiff denies the authority of her attorney to make such a settlement; such a case is for the jury.</p> <p>2. After a defendant has pleaded the general issue and gone to trial on the merits, it is too late for him to set up for the first time the pend-ency of a prior action to defeat the action on trial.</p>

<p>Appeal, No. 169, Oct. T., 1909, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1907, No. 17, on verdict for plaintiff in case of Charles A. Yuille v. Pennsylvania Railroad Company.</p> <p>Assumpsit to recover damages for injuries to an automobile. Before Woods, P. J.</p> <p>At the trial the court charged as follows:</p> <p>This is an action of assumpsit brought by Chas. A. Vuille against the Pennsylvania Railroad Company to recover for damages which he alleges he sustained by reason of the defendant company injuring or damaging a certain automobile that was in their charge at a certain time, shipped for delivery to Huntingdon, Pa., over their road. He testifies to you that he shipped or had shipped an automobile from a place in Florida over the Florida East Coast Railroad, to be delivered by them to their connecting line and finally delivered to him at the station at Huntingdon, Pa. [The evidence shows that it was in good repair when it was put in the car in Florida. Then the evidence shows that when it reached Baltimore, in-charge of the Northern Central Railroad Company, it was without any card showing where it was to go or to whom it was'Consigned or directed, and that when it came to the station in Baltimore that it was damaged; the railroad employees testify to you that one of the lamps was off and on the floor and that the machine was all covered with dust and that other parts of the automobile were injured. You will determine from the evidence what the injury was and what the value of the automobile was at that time.] [3] Then the evidence shows that when it was received here in this town it was in a very dilapidated condition, that the acetylene lamps were broken and that the body was damaged considerably and the other parts of. the automobile were damaged so that the plaintiff lays his damages at about $1,200; that he sold the machine for $350 and that he paid $166 or thereabouts for repairs; that he was not able to use it and shipped it to Chicago and that they there repaired it and sold it for $350. This is the testimony upon which the plaintiff asks you to say that he was damaged and asks you to render a verdict for the amount that you think he was damaged.</p> <p>[It is incumbent upon the defendant to show that they were not guilty of negligence or that they did not do this damage to the machine.] [4] They have called a number of witnesses and they testify that when the machine was received at Baltimore it was in a dilapidated condition, that the lamp was hurt and the body hurt in other ways and some damage done to the machine. They testify there was nothing on it by which they could know where it was to go and that they then stored it in one of their warehouses and kept it until they found where it was to go and that they then put it in a car by itself and that they blocked the wheels and it came to Huntingdon, and that the wheels were blocked when it arrived here. They testify that nothing occurred on the Northern Central Railroad or Pennsylvania Railroad leading up to Huntingdon by which any damage could have occurred to that machine, and that when the machine got here they found it was blocked in the car and that it was. apparently in the same condition that it was when it left Baltimore.</p> <p>[Now, gentlemen of the jury, we say to you it is a question for you to determine whether the damage that was inflicted on this machine was done by the Pennsylvania Railroad Company. If'it was, then the plaintiff would be entitled to recover just what damage resulted to the automobile while in charge of the Pennsylvania Railroad Company.] [5] You have heard the positive testimony on the part of the railroad employees and you have heard the testimony on the part of the plaintiff. Now, which evidence appeals to you as reasonable men to be proper? One of the railroad employees tells you that it would be impossible for the machine if it was blocked in the car to jump out of that blocking and then get back in again in transit. You' are to consider all this evidence, gentlemen of the jury, in arriving at your verdict.</p> <p>You are not to take into consideration the facts that one of these parties is a private individual and the other a railroad company. Decide this case as if it was between two private individuals and had no reference to a corporation. The laws are passed for the protection of individuals and corporations alike. We cannot get along without individuals or without corporations; hence the law says such cases must be decided as though between two individuals.</p> <p>[If you find that the Pennsylvania Railroad Company, the defendant in this case, damaged this machine while in their possession — in their charge — then what damage did they inflict taking into consideration the condition of the machine when they received it, and that should be your verdict, if you find plaintiff is entitled to any damages whatever.]</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned were (1) in refusing binding instructions for defendant; (3) in overruling motion for judgment for defendant non obstante veredicto; (3-6) above instructions, quoting them.</p>

Appeal, No. 31, March T., 1910, by defendant, from order of C. P. Luzerne Co., Oct. T., 1907, No. 1,153, discharging rule to open judgment in case of James H. Murray, or Jas. C. Murray, Trustee, v. William H. Auman. Rule to open judgment. Before Ferris, J. The opinion of the Superior Court states the case. Error assigned was order discharging rule to open judgment.

<p>Corporations — Foreign corporations — Registration—Doing business.</p> <p>1. A foreign corporation which merely files an order for goods and delivers the same in Pennsylvania, without maintaining an office in this state or transferring any portion of its capital to this state, or prosecuting its ordinary business here, may maintain an action of replevin without having previously registered in compliance with the Act of April 22, 1874, P. L. 108.</p> <p>Bailment — Lease of chattel — Action.</p> <p>2. In an action of replevin to recover a chattel leased under a bailment, where it appears that the defendant has failed to pay the rental provided by the contract, the defendant cannot set up as a defense that the chattel was not what it was warranted to be.</p> <p>Replevin — Set-off—Action.</p> <p>3. A set-off is not admissible in an action of replevin.</p>

<p>Appeal, No. 31, Oct. T., 1910, by defendant, from judgment of Q. S. Huntingdon Co., Dec. T., 1909, No. 7, on verdict of guilty in case of Commonwealth v. Louis Rossi.</p> <p>Indictment for selling liquor without a license. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court charged in part as follows:</p> <p>There is no license granted to anyone to sell liquors in the borough of Mount Union.</p> <p>This defendant, the evidence shows, resided .last summer and for the last year or two, in the borough of Mount Union. The commonwealth offers a number of witnesses. One of them, Oliver Christ, testifies that some time during the month of last July he went to the defendant and paid him $2.00, for which he was to receive two kegs of beer. He tells you how he paid it; and that in a day or two another person by the name of Tony somebody, you will remember, delivered the beer to him. Mr. Paule Shugarts says that he was along with Mr. Christ when he paid the defendant the $2.00 and ordered the two kegs of beer; and he tells you he paid it. One, Mr. Condross, says that he got $8.00 worth of beer and that he paid the defendant for it and that it was delivered in two or three days by this man Tony. Mr. Charles Deeters testifies that he went there at one time (and the defendant set out four bottles of beer; that he drank two and the defendant drank two; that no consideration passed; that he went back again a little later and the defendant handed out two bottles of beer, and he laid down ten cents and walked out; that the defendant had walked into another room. Gentlemen of the jury, this is in brief the evidence on the part of the commonwealth.</p> <p>Mr. Wunder takes the stand and testifies that the defendant is the agent and has been acting as agent for the Oswald Brewing Company, doing business in Altoona, and that the defendant, Louis Rossi, simply took the orders; that the beer was then sent on the orders given to the brewing company by Rossi to the parties whose names appeared on the orders. He also testifies that Tony is in the employ of the brewing company, acting as the brewing company’s agent. Mr. Wunder also testifies that each consignment of beer is marked for one Hamilton and across the face of the label or tag is written the name of the person who actually paid for and was to receive the beer. [On rebuttal Mr. Christ testifies that when he received his beer his name was not on it, that Mr. Hamilton’s name was the only name on it and in this he contradicts the testimony on the part of the defendant.] [2]</p> <p>Now, gentlemen of the jury, as has been said by our Supreme Court, “The devices to evade this law are so numerous and so adroit, and the consequence of its violation are so serious to the welfare and good order of the community generally, that we think it is the duty of the courts to enforce the law rigidly. It is needed that all those who engage in this traffic in violation of law should know that the way of the transgressor is hard.” This is quoted from a decision of the Supreme Court in a recent opinion by Judge Oklady of the Superior Court.</p> <p>Now, gentlemen of the jury, if you believe the testimony on the part of the commonwealth that these orders were given to Louis Rossi, and Louis Rossi was the agent for the brewery, and that Tony was acting independently of Louis Rossi and delivered the beer independently of Louis Rossi, then we say the defendant could not be found guilty from these sales. [But if you believe that this order was given to Rossi and Tony was acting as his agent and the goods were shipped to Hamilton and not consigned to the witness Christ then he would be guilty on that sale.] [3] [There is no evidence here to show that the beer delivered this man Condross was an illegal sale unless you believe that Tony was acting as the agent of Louis Rossi and delivered it to Condross as the agent of Rossi and not as the agent of the brewing company.] [4]</p> <p>[Now, gentlemen of the jury, you are to scan all the evidence very closely, the evidence of Charles Deeters, who testifies that he went in there and paid this ten cents for the beer-</p> <p>Mr. Petriken: It seems to me that the court should not use the word “paid”; that word was not used in the testimony.</p> <p>The Court: Gentlemen of the jury, I say to you that, it was in law a payment, if you believe there was an arrangement made between the defendant and Deeters for Deeters to get the beer in this way. If you believe there was an arrangement made between the defendant and Deeters that Deeters was to get this beer and pay for it, then it was a payment, whether Rossi was there or was not there. As we have already quoted, “The devices to evade this law are so numerous and so adroit, and the consequences of its violation are so serious to the welfare and good order of the community generally, that we think it the duty of the court to enforce the law rigidly;” and in charging you that way we are simply enforcing the law as directed by the higher courts. The whole United States to-day seems to think that all those who engage in this liquor traffic should know that the way of the transgressor is hard. Thése things are brought on themselves by those who engage in the liquor traffic if they do what is in violation of law; and, if you believe that an arrangement was made with Charles Deeters for the purchase of this beef and that this defendant took this ten cents for the beer after Deeters had gone out, you should find the defendant guilty.] [5]</p> <p>If you find the defendant guilty you say nothing about the costs. If you acquit the defendant you must make some disposition of the costs. The prosecutor is an officer of the law and you cannot place any of the costs upon him, but you can place the costs upon the defendant or upon the county of Huntingdon. [But before you acquit him, gentlemen of the jury, we say to you, you must scan this evidence carefully and if there was an effort to evade the law, you will find him guilty.] [6] If you have any reasonable doubt about this defendant’s guilt that doubt is for the benefit of the defendant, to work his acquittal; but that, doubt must arise fairly from the evidence.</p> <p>Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1) the entire charge of the court; (2-6) portions of charge as .above, quoting them, and (7) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 14, Feb. T., 1910, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1908, No. 338, on verdict for plaintiff in ease of Robert A. Sebring, Executor of the last Will and Testament of Francis T. Wilson, v. J. Hile Weaver.</p> <p>Assumpsit for services.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $380.24. Defendant appealed.</p> <p>Errors assigned were various rulings on' evidence, instructions and refusal to withdraw a juror.</p>

<p>Appeal, No. 163, April T., 1910, by defendant, from decree of C. P. Crawford Co., Sept. T., 1909, No. 4, on bill in equity in case of Penn Furniture Company v. Liberty Mutual Fire Insurance Company.</p> <p>Bill in equity to reform an insurance policy.</p> <p>The statement of the question involved was as follows:</p> <p>An insurance company issued its policy of insurance containing an eighty per cent re'duced rate average coinsurance clause. The insured declined to accept the policy containing said clause. The insurer thereupon canceled the eighty per cent clause when the insured accepted the policy and paid the premium. At expiration of the term of the policy the insurer issued a new policy •to the insured for a like 'term, amount and premium, containing the eigthy per cent reduced rate average coinsurance clause. The. insured received the second policy August 7, 1908, and paid the premium, $40.00, on December 24, 1908. On March 7, 1909, a loss by fire occurred. On April 7, 1909, proofs of loss were executed by the insured’s manager, who .was also secretary of the company, and were filed with the insurer. In the proofs of loss the insured claimed the sum of $473.14, the proportionate amount of the insurer’s share of the loss under the eighty per cent coinsurance clause in the policy. Some time after these proofs were filed the insured 'first requested the insurer to reform the policy by eliminating the eighty per cent coinsurance clause, and demanded payment on the basis of a full rate policy.</p> <p>1. Did the insured by its laches ratify the contract?</p> <p>2. Is the second policy a new and distinct contract between the parties?</p> <p>3. Should the policy be reformed?</p> <p>Error' assigned was decree refusing the bill.</p>

Appeal, No. 47, April T., 1910, by plaintiff, from order of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 907, dismissing exceptions to taxation of costs in suit of John G. Trimble v. Reserve Township. Exceptions to taxation of costs. Error assigned was in dismissing the -exceptions.

Appeal, No. 128, April T., 1910, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1909, No. 810, overruling motion to dismiss bill in equity in case of Thomas M. Hughes and Frank Hughes v. Samuel Cooper. Bill in equity for an injunction. Before MacFarlane, J. The opinion of the Superior Court states the case. Error assigned was in the following form: “The court erred in overruling the motion to dismiss the bill and dissolve the injunction.”

<p>Appeal, No. 221, Oct. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1907, No. 2,276, refusing to take off nonsuit in case of Robert J. Peoples, Andrew Peoples and David Peoples, co-partners, trading as Peoples Brothers.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 24, March T., 1910, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1909, No. 104, on verdict of guilty in case of Commonwealth v. Edward Griffin et al.</p> <p>Indictment for burglary and larceny. Before Halsey, J.</p> <p>The court admitted under objection and exception evidence as to other offenses committed in the same neighborhood and about the same time. Testimony was admitted for the purpose of establishing identity, showing the willful and not accidental character of the act, to show a motive and guilty knowledge, and to rebut any inference of mistake.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were rulings on evidence and the portion of the charge quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 9, Feb. T., 1910, by plaintiff, from judgment of C. P. Lycoming Co., Dec. T., 2908, No. 360, on verdict for plaintiff in case of Raymond Brothers Impact Pulverizing Company v. The Pennsylvania Black Filler & Paint Company.</p> <p>Assumpsit to recover balance alleged to be due for machinery. Before Ormerod, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $220. Plaintiff appealed.</p> <p>Error assigned among others was in overruling plaintiff’s motion for judgment non obstante verdicto.</p>

<p>Contract — Construction—Work to be satisfactory to another.</p> <p>1. Where one party contracts to perform certain work to the satisfaction of another it is to the judgment of the latter he submits the question whether or not the work has been done according to the contract. The judgment, however, contemplated by the rule must be reached honestly and in good faith. It cannot be the result of mere whim or caprice, or a subterfuge to avoid the payment of money really due; much less can it be the offspring of any collusion or fraud.</p> <p>2. Where a contractor agrees to plaster fifty-four houses to the satisfaction of the owner and his guarantor, and the latter receives from the owner money sufficient to pay the plasterer, and payments are made from time to time without any expression of disapproval of the work, and the last payment is refused by the guarantor on the ground of insufficiency of funds, the case is for the jury to determine whether or not the dissatisfaction with the work shown by the guarantor at thé trial is not a mere subterfuge to relieve the guarantor from the obligation to pay.</p>

<p>Negligence — Principal and agent — Evidence as to agency — Cleaning streets — Flushing pavement — Fright of horse.</p> <p>1. In an action against a firm of contractors for cleaning city streets, to recover for the death, of a horse frightened by the sudden flushing of a street, the agency of the workman who flooded the street, with the defendants, may be shown by proof of his garb, that he was in possession of the usual and appropriate tools, and that both uniform and tools were openly and visibly marked with the names of the defendants. When such evidence is produced it is not reversible error to admit in evidence the declaration of the workman that he was in fact an employee of the defendants.</p> <p>2. Where a workman employed by contractors engaged in cleaning the public streets, flushes a street, and as a result a horse is frightened, runs away and is killed, the owners of the horse before they can recover from the contractors, must show that the manner in which the workman used the water was unusual and extraordinary.</p> <p>3. The use of the water was a matter of right and in the line of the duty of the workman and his employers towards the city and the public.</p>

<p>Landlord and tenant — Bent—Acknowledgment of indebtedness— Affidavit of defense.</p> <p>Where a tenant acknowledges in writing that he owes a certain amount for rent to his landlord, he cannot afterwards set up as a defense to the payment of this amount that prior to the date of the acknowledgment he had been evicted, and that the landlord had entered into an oral agreement to execute a new lease on the same terms as the original lease. /</p>

<p>Receivers — Banks and banking — Products.</p> <p>Where a receiver has an account as receiver and his personal account in the same bank, and an attachment execution issues against the moneys in his personal account, and it appears that he had deposited two checks belonging to the receivership in his personal account, and it also appears that the amount of the first check had been withdrawn prior to the attachment, and there is testimony that the second check had been deposited in the personal account to pay back, advances previously made out of the receiver’s own moneys to the receivership, the attachment will hold all of the moneys in the receiver’s personal account. The doctrine of following trust funds wrongfully converted by a trustee is not applicable to the facts of such a case.</p>

<p>Contracts — Ctistom.—Parol testimony — Charge—Harmless error.</p> <p>1. Where a written contract deals with a particular subject the contract is the law governing the parties as to the particular subject, and parol testimony of a trade custom is inadmissible to vary the terms of the contract. The admission of such testimony becomes harmless error if the court in its general charge and in an answer to a point eliminates from the consideration of the jury all such testimony.</p> <p>2. Where a lumbering contract provides that the contractors shall cut and remove the lumber at one continuous operation, and there is nothing in the contract which compels the contractors to keep their mill upon the land of the owner until the manufacture of the timber upon the whole tract had been finished, the fact that the contractors moved their mill from the owner’s land to another tract for their convenience, will not affect their rights under the contract, provided there is no break in the continouus operation of lumbering.</p>

<p>Appeal, No. 41, March T., 1910, by defendants, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 169, on verdict for plaintiff in case of the Northern Coal & Iron Company v. D. W. Burr et al.</p> <p>Trespass for an alleged wrongful taking of coal. Before Newcomb, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $2.00. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions.</p>