Volume 46 — Pennsylvania Superior Court Reports

<p>Public officers — School directors — Contract for supplies — Treasurer of school district — Illegal contract — Act of March 81,1860, P. L. 882, sec. 66.</p> <p>A treasurer of a school district will not be allowed credit for moneys paid to a school director for supplies of coal and wood for the district, although the vouchers for such supplies were issued by the officers of the school board, if it appears that the treasurer had full knowledge that such vouchers were issued in pursuance of an illegal transaction.</p>

<p>Mechanics’ liens — Building contract — Stipulation against liens — Acts of June 4,1901, P. L. Ifil, and April 24,1903, P. L. 297 — Waiver.</p> <p>1. Under the Act of April 24, 1903, P. L. 297, a stipulation against liens may be created by a contract subsequent to the original building contract provided that the subsequent contract was filed in the prothonotary’s court prior to the commencement of the work on the ground, or within ten days after the execution of the principal contract; and such a contract may be effective if filed in the prothonotary’s office, although the original contract was not filed.</p> <p>2. An agreement between a contractor and a builder containing a stipulation against mechanics’ liens by anyone, filed in the prothonotary’s office, is in no way affected, in so far as it prevents subcontractors from filing liens, by a subsequent agreement entered into between the owner and the contractor, giving to the latter a conditional and qualified right of lien to secure payment only of the contract price.</p> <p>3. The act relating to the filing in the prothonotary’s office of a contract containing a stipulation against mechanics’ liens does not require a description of the property to be set forth in the contract. Where a subcontractor has filed his lien describing the property in detail both as to location of land and description of buildings, he will not be heard to object that the property was not sufficiently described in the contract.</p> <p>4. Sections 17 and 19 of the Act of June 4, 1901, P, L. 431, apply to cases in which there has been no contract in which it was provided that no hen should be filed.</p> <p>5. Where a subcontractor in a scire facias sur mechanic’s hen avers that the owner and contractor filed a stipulation against mechanics’ hens in the prothonotary’s office, and on the following day entered into an agreement by which the contractor was given the right of hen to secure payment of the contract price, but without in other ways affecting the stipulations previously filed, and it is averred on information and behef that the second contract was made to defraud subcontractors, and this averment is denied by the owner, the court has no authority to enter judgment against the owner on the whole record under sec. 52 of the Act of June 4, 1901, P. L. 431.</p>

<p>Boroughs — Incorporation—Appeals—Discretion of court — First-class townships — Farm lands — Notice.</p> <p>1. An appeal from a decree of the quarter sessions creating a borough is to be disposed of as if the writ were a certiorari and the Act of May 9, 1889, P. L. 158, does not change its essential nature. Unless it is made, to appear that there is some illegality in the proceedings disclosed by the record or that the court has been guilty of a clear abuse of a discretion which it is called upon to exercise, the decree ought not to be set aside.</p> <p>2. The legislation classifying townships did not have for an object such a radical change in the law as would prevent the formation of a borough out of a portion of a first-class township.</p> <p>3. Lands used exclusively for farming and not properly belonging to the village are properly excluded from the limits of a proposed new borough, but the question whether land alleged to be used for farming purposes should be included is one of fact for the court having control of the proceeding to determine.</p> <p>4. On appeal from a decree incorporating a borough the fact that it does not appear that advertisement was made as required by the statute is not fatal where the record shows that proof of publication was offered and the decree finds that the proceedings were regular, particularly where no objection was made to the sufficiency of the notice in the court below and all parties were present in court.</p>

<p>Argued with In re Millbourne (No. 1), ante p. 19. Appeal, No. 000, Oct. T., 1910, by the Upper Darby School District et al., from decree of Q. S. Delaware Co., Mise. Q. S. 345, incorporating the borough of Millbourne.</p>

<p>Malicious prosecution — Want of probable cause — Acquittal—Evidence —Burden of proof.</p> <p>1. An acquittal or lawful discharge of the defendant in a criminal case is prima facie evidence of want of probable cause in an action of malicious prosecution, and such evidence is sufficient to carry the case to the jury.</p> <p>2. The burden of showing probable cause is not placed on the defendant where the plaintiff was acquitted or discharged in the criminal proceeding, if it appears in the testimony of the plaintiff that there was probable cause.</p> <p>3. In an action for malicious prosecution, the case is for the jury, where it appears that the plaintiff was acquitted of a charge of larceny brought against him by the defendant, and the evidence for the plaintiff although in some respects contradicted tends to show that the controversy arose over some straw in which both parties claimed an interest, and which was in the rightful possession of the plaintiff, that the defendant had refused to take the advice of an attorney who told him that the case was not a criminal one, and that the defendant had said that he would have the plaintiff arrested anyhow, and that he would make him “smoke.”</p> <p>4. Though a person is arrested on a legal warrant, if one of the objects of the prosecution is to enforce the settlement of a civil claim, such arrest is false imprisonment.</p>

<p>Contract — Sale—Warranty—Horse—■Exhibition of horse in presence of fury — Evidence.</p> <p>1. In an action to recover back the purchase money of a race horse bought under a warrant of soundness, the appellate court will not review the discretion of the trial judge refusing to allow an exhibition of a horse in the presence of the jury on a street in front of the courthouse, so as to determine whether or not he was a “roarer,” where it appears that the conditions of weather, season and place were entirely different from those existing when the defect was discovered.</p> <p>Practice, C. P. — Trial—Verdict—Reformation of verdict — Jury—Discretion of court.</p> <p>2. Where the jury returns a sealed verdict overnight in favor of plaintiff without naming the amount, and on the following morning the court sends the jury back to find the amount with interest, and the jury returns with the amount calculated, such amount is properly entered as the verdict, if it appears from an examination of the jury by the court, that the jury had determined on the night before the exact manner in which the amount of the verdict was to be computed, and that they had during their separation not redistsussed the amount of damages in the light of anything that had in the meantime happened.</p>

<p>Corporations — Stock—Subscription—Statute of limitations.</p> <p>An action must be brought against a stockholder of an insolvent corporation on a subscription for unpaid capital stock within six years of the insolvency of the company. Otherwise it will be barred by the statute of limitations. The right of action arises upon the insolvency, and not upon an assessment or call made after the insolvency has fixed the rights of all parties concerned. In such a case the lex fori and not the law of the domicile of the corporation controls.</p>

<p>Land law — Boundaries—Surveys—Monuments—Calls—Courses and distances.</p> <p>1. The most persuasive evidence of the original location of a survey are the monuments made upon the ground by the surveyor for that survey, such as the marking of trees for corners and lines, or the adoption of natural monuments, such as streams crossing the lines of a survey. These monuments prevail, where satisfactorily shown to exist, against calls for older surveys, which rank next in value. Calls for comers, such as posts, stones, etc., are of little value, particularly as the survey becomes old, for the reason that there is no way of complete identification or of the determination as to their age or the time at which they were made. Calls for older and well-marked surveys rank next in value. Courses and distances are of still less value, and are to be resorted to only when monuments and calls fail, and are to be disregarded, when they contradict the monuments and calls.</p> <p>2. A judgment on a verdict for plaintiff in a case involving the location of a survey will not be reversed because the trial judge somewhat magnifies the difficulties under which the jury will labor in determining the location of the land, if it appears that the question was left finally, entirely and fairly to the jury.</p> <p>3. Where there is a conflict of testimony as to the location of a survey, the question of its location is for the jury.</p> <p>Practice, C. P. — Trial—{Verdict—Jury—Reformation of verdict.</p> <p>4. Where a jury practically find a verdict in favor of the plaintiff, although not stated in the proper form, seal their verdict and separate, and after an interval of four days by reason of intervening holidays, meet again, and upon the opening of the verdict the court instructs them either to find for the plaintiff for a sum stated, or if they find for the defendant, so to state it, and the jury return with a verdict for defendant, it is the duty of the court to refuse such verdict. If it fails to do so, the' judgment on the verdict will be reversed by the appellate court and a new trial ordered.</p>

<p>Appeal, No. 240, Oct. T., 1910, by plaintiff, from judgment of C. P. Schuylkill Co., March Term, 1910, No. 271, for defendant on case stated in suit of Francis S. Freiler v. Schuylkill County.</p> <p>Case stated to determine fee of justice of the peace. Before Shay, P. J.</p> <p>The case stated was as follows:</p> <p>Francis S. Freiler, the plaintiff above named, is a justice of the peace, residing and having his office in the first ward of the borough of Pottsville, in said county, and was duly elected at a general election held in February, 1907, and duly commissioned according to law to hold said office by virtue of said election for the term of five years from the first Monday of May, 1907. Under the provisions of an act of the general assembly, entitled, “An Act to regulate and establish the fees to be charged by Justices of the Peace, Aldermen and Magistrates in this Commonwealth,” approved April 23, 1909, P. L. 160, plaintiff charged the sum of $4.90, as fees in a certain prosecution heard and returned by him in June, 1909, in the case of Com. v. Simon Pusioset et al., No. 939, June Term, 1909, court of quarter sessions of said county, and on January 26, 1910, plaintiff presented a transcript thereof showing the items making up said charge (a copy of which is hereto attached) to the board of commissioners and controller of said county, defendant, demanding payment of said fees.</p> <p>If the court be of the opinion that the plaintiff is authorized to charge and entitled to receive, the fees prescribed by the said act of April 23, 1909, above cited, then judgment to be entered for the plaintiff, but if not, then judgment to be entered for the defendant, and either party reserving the right to sue out a writ of error therein.</p> <p>Error assigned was judgment in favor of the defendant.</p>

<p>Appeal, No. 250, Oct. T., 1910, by defendant, from judgment of C. P. Montgomery Co., June T., 1909, No. 5, on verdict for plaintiff in case of Mary Agnes Gaughens v. Lower Merion Township.</p> <p>Trespass to recover damages for personal injuries sustained by a fall on an icy sidewalk. Before Weand, J.</p> <p>Verdict and judgment for plaintiff for $1,225. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 254, March T., 1911, by defendants, from judgment of Q. S. Phila. Co., May Sessions, 1910, No. 566, on verdict of guilty in case of Commonwealth v. George W. Ellis. Indictment for selling eggs unfit for food.

<p>Appeal, No. 225, Oct. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., June Term, 1910, No. 324, discharging rule for judgment for want of.a sufficient affidavit of defense in case of Charles A. Calehuff v. William E. Driver and Kate Driver, his wife.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The affidavit of defense of William E. Driver was as follows:</p> <p>That the defendant, William E. Driver, was employed by the plaintiff, William A. Calehuff, as chauffeur, and paid a certain wage, and while in his .employ the plaintiff requested the defendant, William E. Driver, to sell certain devices and solicit certain business for and on behalf of plaintiff, and before his employment the plaintiff requested the defendant to solicit certain business for the plaintiff, and to sell certain machines and films for and on his behalf, and he then and there did agree to pay the defendant, William E. Driver, ten per cent commission on sales of machines, and $5.00 per week on each customer procured by the defendant for the plaintiff, and in pursuance of said arrangement and agreement, said defendant procured one Evans, proprietor of the moving picture show at Sixth and Venango streets, to purchase from the plaintiff a certain moving picture machine, to the value of $250; and that the said Charles A. Calehuff, through the defendant, William E. Driver, sold to-said Evans said moving picture machine, and supplied the said Evans with films for a period of three months, and it then and there became the duty of the said plaintiff, for and on account of the said sales by the defendant, William E. Driver, indebted to the said William E. Driver, defendant, in the sum of $90.00.</p> <p>And then and there said plaintiff, as aforesaid, did agree to and with said defendant that he, the said defendant, William E. Driver, might take the same out in trade; that is to say, he could purchase and loan films from the plaintiff to the amount of $90.00.</p> <p>In addition thereto, in pursuance of his employment, the defendant, William E. Driver, sold to one George Roth, proprietor of “The Owl” Palace, Fifth and Somerset streets, one machine to the value of $250, upon which the defendant was entitled to a commission of ten per cent, and for and on behalf of the plaintiff aforesaid, and in pursuance of the aforesaid agreement, furnished film service to the said George Roth for a period of thirty-five weeks, the defendant was to receive $5.00 per week, making a total of $200, making a total set-off of $290, all of which sum is wholly due to the defendant by the plaintiff, and which the defendant claims as a set-off against the amount as set forth in the statement of plaintiff’s claim, and at the time of trial in the above case, he will ask for a certificate to the amount of $46.37.</p> <p>Defendant further avers that the said Kate Driver, his wife, never had anything to do with the management* control or operation of said business, except that the bank account was kept in her name.</p> <p>Your defendant is unable to ascertain the exact dates of the sales, as the same were entered in the books of the plaintiff, which are still in his possession, all of which your defendant believes and expects to be able to prove at the time of trial in the above case.</p> <p>The affidavit of defense of Kate Driver was as follows:</p> <p>That it is true that she is the wife of William E. Driver, who is one of the codefendants in the above cause of action, with her.</p> <p>That it is not true that she is engaged in the moving picture business, and that she did not purchase from Charles A. Calehuff, plaintiff, or from any other person, the articles set forth in the statement of plaintiff’s claim, but in truth and in fact she had no business relations whatsoever with the above-named Charles A. Calehuff, excepting that she made out checks to pay some of the bills for the moving picture place, for and on behalf of the said William E. Driver.</p> <p>That she is not interested in the profits of the said business, and has no control of the same, and that she is nowise indebted for the goods, as set forth in the plaintiff’s statement of claim, nor did she ever agree or become responsible for the same.</p> <p>, The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 235, Oct. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., March Term, 1910, No. 4,560, discharging rule for judgment for want of a sufficient affidavit of defense in case of National Deposit Bank of Philadelphia v. Lionel J. Mawson.</p> <p>Assumpsit on promissory notes.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Contract — Theater—Advertising drop curtain — Moving pictures.</p> <p>Where the proprietor of a theater agrees with the owner of an advertising drop curtain to install the curtain in his theater for a period of five years and to use the same during all intermissions at all performances in consideration of a payment to him of a stated sum for each season, and covenants to return the curtain at the end of the contract, a change in the use of the theater from legitimate theatrical performances to a cheap moving picture and vaudeville show without any intermissions, will end the contract, relieve the owner of the curtain from the money payments he had assumed, and entitle him to a return of the curtain.</p>

<p>Appeals — Assignments of error — Exceptions to auditor’s report— Statement of question involved.</p> <p>1. A single assignment of error to the action of the court below in dismissing nineteen exceptions to an auditor’s findings of fact and conclusions of law violates rule XIX which requires that “each error relied on must be assigned particularly, and by itself.”</p> <p>2. A statement of the question involved, which covers a whole page of the appellant’s paper-book violates the rule of court.</p>

<p>Appeals — Habeas corpus — Actual controversy — Appellate jurisdiction.</p> <p>An appeal from an order dismissing a writ of habeas corpus and continuing the relator in custody, taken several months after the relator had been actually released, involves no question growing out of the existence of an actual controversy, and will be dismissed by the appellate court.</p>

Appeal, No. 277, Oct. T., 1909, by defendant, from order of C. P. No. 3, Phila. Co., June Term, 1909, No. 2,259, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Gilbert P. Parker, trading as the Northwest Storage and Trust Company, v. John Y. Shoemaker. Assumpsit for hauling, cleaning and storing property. From the record it appeared that the amount of the claim was for $58.25.

<p>Appeal, No. 278, Oct. T., 1910, by defendant, from order of C. P. No. 4, Phila. Co., Sept. Term, 1909, No. 1,024, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John C. Morrison v. W. George Whitfield.</p> <p>Assumpsit by indorsee on promissory note.</p> <p>The defendant averred in his affidavit of defense:</p> <p>That the note sued upon is a renewal of one given by defendant to the payee, Julius Hoffman, trading as Hoffman Brothers, as part consideration for a bowling alley purchased by defendant from Hoffman.</p> <p>That there was no consideration given by Hoffman to defendant for said note because he sold defendant something which he did not own, and defendant was obliged to surrender it to the proper and lawful owner.</p> <p>That the said Hoffman gave said note to the plaintiff for an antecedent debt, and received nothing of value for the same at the time he' accepted said note and is not an innocent holder for value.</p> <p>That deponent avers and believes and expects to be able to prove that at the time he,' the plaintiff, took said note from Hoffman he was fully aware of the fact that deponent did not receive any consideration for the note in suit, and knew all the facts above stated as to the circumstances under which deponent gave said notes.</p> <p>That deponent is not indebted to the plaintiff for or on account of said note or any other cause or thing.</p> <p>All of which deponent believes and expects to be able to prove upon trial.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 261, Oct. T., 1910, by defendant, from order of C. P. No. 3, Phila. Co., Dec. Term, 1909, No. 3,564, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Clifton C. Hallowell v. Arthur E. Paige. Assumpsit for loans and wages. The opinion of the Superior Court sets forth the material averments of the affidavit of defense. The court made absolute the rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 51, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 2,974, on verdict for plaintiff in case of Frederick W. Koester v. City of Philadelphia. Assumpsit to recover salary alleged to be due plaintiff as lieutenant of police. At the trial the jury returned a verdict for plaintiff for $705.02.

<p>Landlord and tenant — Abandonment of premises — Eviction—Affidavit of defense.</p> <p>In an action to recover for rent for the second floor of a building for a dance hall, the first floor of which is used for a moving picture show, an affidavit of defense is insufficient which avers that the city authorities had served a notice on the plaintiff that the demised premises were being used in an illegal way, that the plaintiff paid no attention to such notice; that legal proceedings were begun by the city against the plaintiff, but without any averment that they resulted in a judgment; that notice of these proceedings was given to defendant with a warning by a building inspector to vacate the premises, but without any averment of authority in the inspector to enforce his warning, and without any averment of notice of such warning to the plaintiff; and that by reason of such matters the defendant abandoned the premises.</p>

Appeal, No. 37, Oct. T., 1910, by defendant, from order of C. P. No. 5, Phila. Co., Sept. Term, 1909, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Edward W. Potter, agent, v. John P. Moscony. Assumpsit for rent. The material averments of the affidavit of defense are set forth in the opinion of the Superior Court. The court made absolute rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 79, Oct. T., 1910, by defendant, from certain orders of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 2,533, making absolute and discharging certain rules in case of American Soda Fountain Company v. G. Corson Taggart. Replevin for soda fountain. Rule for judgment for want of a sufficient affidavit of defense. Rule to open judgment. Rule on sheriff’s jury to consider certain evidence. Rule to make an order to charge a jury to inquire into damages.

<p>Appeal, No. 138, Oct. T., 1910, by plaintiff, from order of C. P. No. 4, Phila. Co., Sept. Term, 1908, No. 56, making absolute rule to quash writ of foreign attachment in case of James Pollock, trading as James Pollock & Son v. Chelsea Fiber Mills.</p> <p>Rule to quash foreign attachment.</p> <p>The opinion *of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule to quash foreign attachment.</p>

<p>Appeal, No. 144, Oct. T., 1910, by plaintiff, from decree of C. P. No. 1, Phila. Co., June Term, 1907, No. 324, dismissing libel for divorce in case of Colden R. Ferreira v. Katherine Ferreira.</p> <p>Libel in divorce.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree dismissing libel in divorce.</p>

Appeal, No. 178, Oct. T., 1910, by plaintiff, from order of C. P. No. 5, Phila. Co., March Term, 1909, No. 5,096, discharging rule for judgment for want of a sufficient affidavit of defense in case of George Meerbach v. Metropolitan Life Insurance Company. Assumpsit on a policy of life insurance. The facts are stated in the opinion of the Superior Court. Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 96, Oct. T., 1910, by Rebecca Russell, executrix from decree of O. C. Phila. Co., April T., 1909, No. 490, dismissing exceptions to adjudication in estate of Robert Russell, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 15, Oct. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., Sept. Term, 1909, No. 2,615, making absolute rule for judgment for want of a sufficient affidavit of defense in case of F. Russell Stuckert v. Utley Wedge. Assumpsit to recover the sum of $300 for services as an architect.

Appeal, No. 190, Ocf. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 5,193, on verdict for plaintiff in case of Linda M. Van Winckler et al., v. William Morris. Trespass to recover damages for personal injury. Before Kinsey, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for Linda M. Van Winckler for $1,500, and Herbert Van Winckler for $500. Defendant appealed.

Appeal, No. 199, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1908, No. 5,417, on verdict for plaintiff in case of Charles McCarron, by his father, John J. McCarron, v. City of Philadelphia. Trespass to recover damages for personal injuries to a child four years old. Carr, J., stated the facts to be as follows: This was a suit brought to recover damages for injuries suffered by Charles McCarron, a minor.

Appeal, No. 44, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1907, No. 3,680, on verdict for plaintiff in case of American Fruit Machinery Co. v. Edward E. Hanscom, et al., trading as Hanscom Brothers. Assumpsit for the price of potato paring machine. Before Magill, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $211.91. Defendants appealed.

Appeal, No. 184, Oct. T., 1910, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 311, M. L. D., making absolute rule to amend lien and making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louis A. Nagle, trading as Louis A. Nagle & Company, v. Annie M. Garrigues, owner, and Martin L. Herman, contractor. Rule to amend mechanic’s lien, and rule for judgment for want of a sufficient affidavit of defense.

<p>Evidence — Written instruments — Notice to produce — Secondary evidence — Check—Stub of check.</p> <p>1. A copy of a paper cannot bo admitted in evidence where the original is in the possession of the opposite party, unless there has been preliminary proof of a notice to produce the original.</p> <p>2. In an action to recover the amount of an alleged loan made by a decedent the fact of the loan cannot be established by memoranda made on the stubs in the check book of the decedent, on the theory that such memoranda were to be treated as entries in a book of original entries.</p>

Appeal, No. 204, Oct. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1910, No. 280, discharging rule for judgment for want of a sufficient affidavit of defense in case of Sloss-Sheffield Steel & Iron Co. v. Tacony Iron Co. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

Appeal, No. 247, Oct. T., 1910, by defendant from judgment of Q. S. Phila. Co., Feb. T., 1910, No. 469, on verdict of guilty in case of Commonwealth v. Joseph Fox. Indictment for assault and battery. The opinion of the Superior Court states the case. Error assigned was refusal of the trial judge to withdraw a juror and continue the case.

<p>Appeal, No. 16, March T., 1911, by defendant, from judgment of Q. S. Dauphin Co., Sept. Sessions, 1907, No. 240, on verdict of guilty in case of Commonwealth v. Joseph M. Huston et al.</p> <p>Indictment for conspiracy.</p> <p>The facts are stated in the opinion of the Superior Court. See also Com. v. Sanderson, 40 Pa. Superior Ct. 416, and Com. v. Snyder, 40 Pa. Superior Ct. 485.</p> <p>At the trial the commonwealth made the following offer:</p> <p>The commonwealth offers to identify and put in evidence as exhibits in this case four desks furnished to the commonwealth under the bill set forth in the indictment and now in evidence as commonwealth’s exhibit “ H-16,” charged in said bill as follows:</p> <p>“1, Page 60, room 169, 1 desk 20 feet, at $18.40 per foot, $368.00; 2, Page 13, room 116, 1 desk 15 feet, at $18.40 per foot, $276.00; 3, Page 219, room 310, 1 desk 16% feet, at $18.40 per foot, $303.60; 4, Page 91, room 511, 1 desk 7% feet, at $18.40 per foot, $138.00; and to prove by G. L. Holton, Superintendent of the factory of the Derby Desk Company, by which company said desks were made, that Desk No. 4, above mentioned is three inches longer than Desk No. 3, and that Desks Nos. 1 and 2, above mentioned, are each 5% feet long — it appearing from the bill in evidence that Desk No. 4, is charged as containing 1% feet, whereas Desk No. 3, is charged as containing 16% feet; and that Desks Nos. 1 and 2 are charged as containing 20 feet and 15 feet respectively.”</p> <p>This offer is made for the purpose of illustrating the testimony of the commonwealth and demonstrating that said bill is false as to measurements. In connection with this offer the commonwealth purposes to prove by the said G. L. Holton that Desk No. 2, above mentioned, and thirty-three other desks in said bill, are not specially designed desks made in accordance with designs and specifications prepared by the defendant, Huston, and approved by the superintendent of the public grounds and buildings, and the board of public grounds and buildings, but are stock articles supplied from the catalogue of the said Derby Desk Company, without any reference to Huston’s designs or specifications. For the purpose of showing that said bill and Huston’s approval thereof are false and fraudulent, and for the purpose of showing Huston’s intent to defraud.</p> <p>Mr. Graham: The defendant objects to the offer of the commonwealth just made.</p> <p>The Court: The objection is overruled, the offer is received. Exception for defendant. [5]</p> <p>Mr. Cunningham: If the court please, we offer in evidence that portion of the page of the catalogue identified by the witness showing the design of the class B. roll-top desk in question under this bill.</p> <p>Mr. Graham: That is admitted subject to our objection and exception of course.</p> <p>The Court: Received subject to the former objection:</p> <p>Mr. Cunningham: The commonwealth now proposes to prove by the witness on the stand, G. L. Holton, that with reference to the class A. and class C desks covered by the bill in question, none of them were manufactured from designs or specifications prepared by the defendant Huston, the class A desks having been manufactured from a design prepared jointly by the witness Holton and John H. Sanderson by talcing catalogue desks and making certain combinations and changes on the same; the class C desks having also been manufactured from designs prepared jointly by the witness Holton and Sanderson; and that with reference to the manufacture of class A and class C desks, the witness had no knowledge of any plans or specifications prepared by the defendant Huston, and none of said desks were in fact manufactured in accordance with or from any plans or specifications prepared by the defendant Huston.</p> <p>Mr. Graham: I object to it first, because it does not say when they made this design.</p> <p>Second, it says that it was made from a design, prepared by the witness and John H. Sanderson.</p> <p>Third, it does not state that Sanderson had not access to the Huston designs.</p> <p>Generally, it is irrelevant and immaterial.</p> <p>Mr. Cunningham: I amend the offer, if the court please, by saying that the offer is to prove that these designs were prepared by Sanderson and Holton when the order was given by Sanderson to Holton in 1905.</p> <p>Mr. Graham: You see that is after the specifications and designs of Huston were made and in existence and had been approved by the board.</p> <p>The Court: The objection is overruled, the offer is received and exception noted for the defendant. [6]</p> <p>Henry C. Mercer, recalled, testified as follows:</p> <p>Mr. Cunningham: The commonwealth proposes to prove by Henry C. Mercer, the witness on the stand] that he, Mercer, being the only manufacturer of Moravian tiling in America, entered into an arrangement with the defendant, Joseph M. Huston, to supply the Moravian tiling for the main floor of the capitol building at $1.03 per square foot. That while said arrangement was in force and after the schedule of 1904-1905 had been approved, but before the last day for bidding thereon had arrived, Huston sent a copy of said schedule to the witness, accompanied by the following letter:</p> <p>“My dear Mr. Mercer:</p> <p>“I sent to you under separate cover a schedule for the next year’s supplies for the State, and on page turned down and marked you will see the reason for my note of the other day. As something must be bid off the maximum I do not want you to quote any lower. This is intended to pay for the extra floor I want, i. e., the Governor’s Executive Reception Room where Miss Oakley paints and other hearths, etc. I am glad to hear that you are getting on so well and when the time arrives will be delighted to go up to see you. The Governor was much pleased when I told Mm of the tile work and the subjects incorporated.</p> <p>“With Mndest regards, I am, “Yours truly,</p> <p>“J. M. Huston.”</p> <p>That Mr. Mercer never knew John H. Sanderson in the transaction and never gave him any quotation on Moravian tiles, and never communicated with Sanderson or received any communication from him.</p> <p>The offer of this testimony is made in connection with the testimony already in, showing that Sanderson bid twenty-five per cent off the maximum price of 13.00 per foot on Item No. 41 in the schedule, being the item for Moravian tiles; for the purpose of showing collusion between Huston and Sand'erson, and that Huston attempted to marke an arrangement with Mercer that would prevent bona fide competitive bidding on this item of the schedule, and for the purpose of showing that Huston was a party to the attempted conspiracy between Sanderson and others to defraud the commonwealth.</p> <p>Mr. Graham: This offer is objected to as irrelevant, immaterial and not pertinent to the issue. It is also objected to because the letter quotes “a note or letter of the other day,” and we object to this letter being put in evidence without the production of the letter that is quoted, which is said to be explanatory.</p> <p>Mr. Cunningham: To which objection counsel for the commonwealth makes the further offer to prove that diligent search has been made for the note referred to in the letter now offered in evidence, after which search the same has not been found; and that the witness, Mr. Mercer, now has no recollection of the note referred to or of its contents.</p> <p>Mr. Graham: Counsel for defendant reply that the added statement does not overcome the force of the objection that has been made, but on the contrary shows how a fragment of the correspondence on the subject is offered. The fragment ought not to be admitted unless the entire paper is produced.</p> <p>The Court: When we adjourned this morning there was an offer pending with objections to it. I think we will have to overrule the objections to the offer and admit it, giving an exception to the defendant. [7]</p> <p>The court charged in part as follows:</p> <p>[You will take the certificate and read it. Does it mean that he was certifying that the amount of this particular bill and the amounts in the other bills to which the certificates are attached — does he mean that John H. Sanderson, the contractor, was entitled to those amounts? You will read the certificates and determine. Are they open to interpretation? Is there any ambiguity about them? Can they be misunderstood? That is for you to determine.] [1]</p> <p>[The Court: Gentlemen of the jury :.We understand you desire further instructions in the case. Is that true? Upon what question?</p> <p>(Note handed to Court by foreman.)</p> <p>The Court: The first question you ask, gentlemen of the jury, is: Has this contract signed by Huston placed him, said Huston, under all the responsibility for whatever was furnished in the capitol?</p> <p>If you mean by that, was he responsible for what he certified in his certificate, we say that he was responsible for what he meant by that certificate. In the general charge we undertook to say to you it was for you to determine from all the evidence in the case what he honestly meant by that certificate; whether he meant to certify that John H. Sanderson was entitled to the particular amount of the bill inserted in the certificate which would include the measurement and the price, because the amount is made up of measurements and prices, whether he intended to certify that, or whether he merely intended to certify that the articles furnished were in accordance with his plans and specifications; and we said you were to determine that from all the evidence in the case. We called your attention to the certificate, which, as you will recall, reads: “I certify that John H. Sanderson is entitled” in that particular certificate attached to the bill set forth in this indictment, “certify that John H. Sanderson is entitled to sixty-one thousand and some hundred dollars.” Did he mean what that says, or, as suggested by the defense, did he mean and intend that that certificate should signify merely that the articles in the bill, that bill and the other bills offered in evidence, were in accordance with his plans and specifications? If he meant to certify that the amount was due, if he meant to certify that John H. Sanderson was entitled to the amount set forth in the certificate, and he knew that amount was false, and he certified it pursuant to an understanding he had with the other parties named in the indictment, it would amount to a conspiracy. If, on the other hand, he merely meant to certify, as suggested by the defense, that the articles in that bill and in the others conformed to his plans and specifications, and intended nothing more, then we say to you he would not be guilty of fraud; and that is the question you are to determine. Read the certificate, see the language used there, and determine what he meant by that, together with all the other evidence in the case. What a person means is generally determined by what he says or frequently by his conduct, and you are to determine from the certificate itself, from the language used, and from all the circumstances in the case, and from all the evidence relating thereto, whether he meant that Sanderson was entitled to that particular amount mentioned in the bill set forth in this indictment and in the other bills — the amounts in the other bills — whether he meant that, or whether he meant to certify merely that the articles in the bills conformed to his plans and specifications. If he meant the former, and knew the bill was false and certified it pursuant to an understanding or an agreement with the other parties named in this bill, the offense set forth in this indictment would be made out. If he merely meant to certify, although his language was general, and honestly intended to certify that the articles conformed to his plans and specifications, then we say he could not be convicted of fraud. So you will determine what he meant, from what he said and the other circumstances in the case. What does the certificate mean? Does it mean what it seems to declare, or does it mean, as contended by the defense, only that he certified to the articles being in conformity with the plans and specifications? I think that answers your question; doesn’t it, gentlemen; that is what you mean?</p> <p>You ask further: Explain more fully with regard to the testimony of all the architects.</p> <p>You will recall the architects were called to testify on behalf of the defense — those in behalf of the defense— that the certificate used was the one in the usual form issued, and that it was in accordance with the usages and practices of the profession of architects, and they also testified when the resolution of the board of commissioners of public grounds and buildings employing or appointing the defendant as architect and the correspondence notifying him of his appointment, and his letter accepting it — when those documents were read to them, they said that in their judgment they would say he had nothing more to do than to certify that the articles were in accordance with his plans and specifications. But we said in the general charge, gentlemen, that the question is not what interpretation is now to be put upon these documents with respect to what the scope of his employment was, but you are to determine what he understood it to be, what the parties to that contract with the board of commissioners of public grounds and buildings understood it to be, what he understood it to be, and that you are to determine from what he did under it. And in that connection you are to consider the evidence relating to what he actually did. What he actually did would show what he understood was his employment; and if he understood that he was to measure and be responsible for the amount paid on account of this contract with the contractor, if he understood that and certified the amounts, intending to certify the amounts as being due and payable on the contract and knew them to be false, and did so pursuant to an understanding with the other parties in the indictment, then the crime of conspiracy would be made out. On the other hand the architects for the commonwealth testified practically the same thing. One of them at least said that under the contract of employment, as shown by the resolution of the board and the correspondence between the board and the défendant, that his employment was only to prepare plans and specifications and detail drawings, but they testified also without regard to what the defendant himself did as showing what he understood the contract and his duties to be under it. So you see, so far as the testimony of the architects is concerned, you are to determine how much weight is to be given to it, having in mind that they were testifying to the contract as it appeared from the resolution and from the correspondence between the board of public grounds and buildings and the defendant, not what it was, taking into consideration the conduct and the acts of the defendant himself under it.</p> <p>What I haye said answers your inquiries and you may retire and consider the case further. Are there any further matters that you desire instruction upon?</p> <p>We are asked by the defendant’s counsel in this connection to say to you that under the contract, as appears by the resolution of the board and by the correspondence between the board and the defendant, he was not bound to do anything more than prepare the plans and specifications and detail drawings. That is true, but we again say to you, gentlemen of the jury, the question for you is not what the construction of that contract is now, as we read it aside and apart from what the defendant understood it to be, but the question for you to determine is what he understood it to be, what he understood his duties to be, from what he did and from how he acted respecting it.</p> <p>You may retire, gentlemen, and consider of your verdict.] Exception [3].</p> <p>The court also charged as follows:</p> <p>[Then there is another circumstance you will have to consider in that connection as to what the defendant considered to be his duty, and what he meant by his certificate, and that is the testimony of the witness, Holton. He testified, you remember, that no designs or plans and specifications were furnished to him by Huston. You will determine what light that sheds upon the suggestion of the defense that the defendant believed he was certifying and intended only to certify by these certificates, that the articles conformed to his plans and specifications. Could he honestly believe he was certifying that the articles conformed to his plans and specifications when he did not furnish any plans and specifications? You will consider that in connection with the question whether or not that is what he intended his certificate to mean, whether he meant to certify that the defendant, Sanderson, was entitled to the particular amount of the bill to which the certificate is attached, or whether he merely intended to certify that the articles contained in the bill conformed to his plans and specifications.] [4]</p> <p>When the jury returned the proceedings were as follows:</p> <p>The Clerk: Gentlemen, have you agreed upon a verdict?</p> <p>The Foreman: We have.</p> <p>The Court: Gentlemen, do you mean by this that you find the defendant guilty of the conspiracy charged in the indictment?</p> <p>The Foreman: No, sir.</p> <p>The Court: You must determine — the question for you to determine is whether he is guilty of the conspiracy charged in the indictment. You mean by this, you find him guilty of the charge contained in this indictment?</p> <p>The Foreman: It is changed, don’t you see?</p> <p>The Court: You say the defendant is guilty of defrauding the commonwealth. We ask you whether you mean by that, whether you find him guilty of the charge contained in this indictment. Is that what you mean?</p> <p>The Foreman: We let the conspiracy off, we agreed to let the conspiracy off.</p> <p>The Court: The question to determine is, whether he was guilty of the conspiracy.</p> <p>The Foreman: That is what we would not agree.</p> <p>The Court: Have you considered that?</p> <p>The Foreman: Yes, sir; and we agreed that there was no conspiracy; we have agréed on that.</p> <p>The Court: The question for you to determine is, whether the defendant is guilty of the conspiracy charged in the indictment, being party to the conspiracy charged in the indictment to defraud the commonwealth. That is what you mean?</p> <p>The Foreman: They all agreed; that is the only way they would agree.</p> <p>The Court: We will have to send you back, and you will have to determine the question before you. This indictment charges the defendant with having conspired with the other persons named in the indictment with the conspiracy to cheat and defraud the state by means of the false bill set forth therein. That is the question you are called upon and you are sworn to determine. If you have not considered that or reached a determination upon that, you may retire and consider that question. The charge is that of conspiracy, with having acted in concert with the other persons named in the indictment to cheat and defraud the commonwealth, in the manner set forth pursuant to an understanding between him and the others.</p> <p>Mr. Graham: If they are not guilty of the conspiracy they are not guilty of anything.</p> <p>The Court: If he is not guilty of the conspiracy, if he is not guilty of the charge in the indictment, then you say so by your verdict. If he is guilty, if you are satisfied beyond a reasonable doubt that he is guilty of conspiring with the others to cheat and defraud the commonwealth by means of the false bill set forth therein, you say so by your verdict. Suppose you retire and consider that. You understand the charge is that the defendant passed this bill, that he passed this bill set forth in the indictment, knowing that it was false, with intent to cheat and defraud the commonwealth, and did so pursuant to an existing understanding between him and the other persons named in the indictment, who also approved and certified and caused the bill to be paid. [11]</p> <p>Mr. Graham: Whereas the foreman in behalf of the jury announced that they had agreed that the defendant was not guilty of conspiracy, I ask that that be recorded as the verdict of the jury, and the jury be dismissed from further consideration of the case. Answer: Refused. [12, 13.]</p> <p>Verdict of guilty upon which the prisoner was sentenced to pay a fine of $500 and undergo an imprisonment of not less than six calendar months nor more than two years.</p> <p>Errors assigned were (1, 3, 4) above instructions; (2) that the charge was inadequate; (5-7) rulings on evidence quoting the bill of exceptions; (8) in admitting the quantities plans; (9) in admitting the certificates for $50,000 and $75,000 quoted in the opinion of the Superior Court; (10) in refusing binding instructions for defendant; (11-13) rulings as to the verdict.</p>

<p>Criminal law — Larceny—Indictment—Bill of particulars.</p> <p>An indictment charging the prisoner with the larceny of “fourteen dollars lawful money of the United States, the notes and coins composing said sum being to the inquest aforesaid as yet unknown,” etc., is a sufficient description of the property. If the defendant requires a more specific description of the property he is charged with stealing, in order to make a proper defense, he may ask for a bill of particulars.</p>

<p>Equity — Equity pleading — Bill for cancellation of deed — Fraud.</p> <p>1. A complainant in a bill in equity can be afforded such relief only as he is entitled to under the allegations of the bill.</p> <p>2. Where a bill in equity for the cancellation of a deed charges fraud and the proofs fail to show any fraud, the court should dismiss the bill and not decree that the defendant should account, because he admitted in his answer that the property in question was conveyed as collateral security for a debt.</p>

Appeal, No. 262, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1906, No. 639, in case of Lois Caldwell Nace v. Neff College of Oratory, Inc. Assumpsit for the return of tuition money. Before Ralston, J. At the trial the plaintiff offered to read the deposition of B. W. Peck taken at McConnellsburg, Pa., on behalf of the plaintiff.

<p>Negligence — Railroads—Evidence.</p> <p>An action against a railroad company to recover damages for personal injuries cannot be maintained, where it appears that the plaintiff, an employee of a city contractor, while standing ten feet from the tracks of the railroad and under a bridge, was struck by a poker about ten feet long and about one and one-half inches thick, which fell upon him as an engine was passing, and there is no evidence whatever to show that the poker fell from or was thrown from the engine, and it appears that it might have dropped through the floor of the bridge.</p>

<p>Appeal, No. 154, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 4,512, in case of Elizabeth Clark, administratrix in the estate of Frank P. Clark, and Elizabeth Clark v. City of Philadelphia.'</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J.</p> <p>The circumstances of the accident are set forth in the opinion of the Superior Court.</p> <p>Verdict and judgment for Elizabeth Clark for $750 and for the estate of Frank P. Clark for $250. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 239, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 3,292, for defendant non obstante veredicto in case of Barzillai Ridgway et al., trading as B. Ridgway & Son, v. Baizley Iron Works, Inc.</p> <p>Assumpsit to recover the purchase price of a lot of curbstones. Before Staake, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial there was a verdict for plaintiff for $186.02. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Promissory notes — Renewal notes — Pavement-—Special agreement— Evidence.</p> <p>1. Renewal notes are not an absolute payment of the original notes so as to entirely wipe them out, unless there is a special agreement to that effect.</p> <p>2. In a suit .by the endorsee against the maker of two promissory notes there is not sufficient evidence of payment by renewal notes as a defense, where such renewal notes are alleged by the defendant to have been merely “given” by him to a third party, and the plaintiff absolutely denies that he ever authorized such third party to take any renewal notes in payment, or otherwise, of the original notes, and the third party himself called by the defendant, testifies without contradiction that he had no authority whatsoever from the plaintiff to take any renewal notes, but that he did so solely on his own risk merely “to tide over” the original notes, and not in payment or satisfaction thereof.</p>

<p>Appeal, No. 85, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 2,174, for defendant non obstante veredicto in case of John Jones Johnson v. State Board of Veterinary Medical Examiners et al.</p> <p>Petition for mandamus. Before Martin, P. J.</p> <p>At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto, Staake, J., filing the following opinion:</p> <p>There is no evidence that the state board practiced any arbitrary exercise of authority in refusing to register the plaintiff, or that the reasons which controlled the board in refusing to register him were “unsubstantial.” The record does not affirmatively establish that the witnesses heard at the trial of the cause were the same witnesses or the testimony given by them was the same testimony heard by the state board. We are of opinion that the same witnesses and, so far as possible, the same testimony should have been submitted to the jury. There is no error in the charge of the learned trial judge, who clearly stated the only question for the jury to determine was: ‘ ‘ Has the state board acted in good faith? ’ ’ The question being ‘ ‘not what the witnesses testified here, but whether Johnson proved by witnesses before the board by proper and competent evidence to the satisfaction of the board, that he was entitled to register — that he had assumed the title of veterinary surgeon or analogous title for five years before April 11, 1889. Under the law he was required to prove that fact to the satisfaction of the board.”</p> <p>For five years before April 11, 1889, that is, from April 11, 1884, means during that entire period of five years and not during a fractional part of the period of five years. The plaintiff himself testified that in 1879 he “started a little milk business to help” him “out,” and being asked, “How long were you in the milk business? ” answered, “I was in the milk business from 1879 to 1890.” From 1879 to 1890 covered from 1884 to 1889, the period during which the plaintiff claimed he had assumed the title of veterinary surgeon or analogous title without being entitled to the degree of veterinary surgeon or analogous title. The application of the plaintiff to the board for registration is to secure the right to continue to use a title he had assumed during the period from April, 1884, to April, 1889. If he has an alleged property right in the title of “Doctor Johnson” or of “ Jonesy Johnson, the horse doctor,” during that period, the constitutionality of the law, which seeks to deprive him of such property right, must be raised in the proceeding under or through which any lawful or alleged authority seeks to interfere with or deprive him of the exercise and enjoyment of that right.</p> <p>The petitioner, so far as the present proceeding is concerned, is the mover. Having the right since April 1Í, 1889, to have record evidence of his alleged right by registry in the prothonotary’s office, and later by registry with and certificate from the state board, he takes no action until November 24, 1905, to secure such record evidence, when he files an imperfect petition with the state board, followed by a second petition on December 28, 1905, his right to apply terminating January 1, 1906.</p> <p>It is the plaintiff who sets in motion the proceeding under the Act of April 18, 1905, P. L. 209, under the requirements of which he must evidence:</p> <p>1. That he had assumed the title of veterinary surgeon or analogous title and had been engaged in the practice of veterinary medicine and surgery prior to the passage of the Acts approved April 11, 1889, P. L. 28, and April 29, 1891, P. L. 36.</p> <p>2. That under the provisions of these acts he was entitled as such practitioner to register in the office of the prothonotary of the county in which he then resided.</p> <p>3. That he had failed to register within the time provided by said acts.</p> <p>4. That by “proper and competent evidence he could” prove to the satisfaction of the state board that he was entitled to be registered as a practitioner under the provisions of said acts of assembly of April 11, 1889, and April 29, 1891.</p> <p>It is only when the state board so finds, that the applicant is entitled to register with the state board and thereafter to renew his registration in accordance with the provisions of the act.</p> <p>If the' applicant possessed the property in his profession since 1872, why does he require this registry and certificate from the state board? He has all he had prior to April 11, 1889, but he in November, 1905, asked for something more and asked the state board to give him that something in the shape of the now coveted registry and certificate. There was no evidence submitted to the jury that the plaintiff had ever been engaged in the practice of “veterinary .... surgery,” although the act reads: “Any person who had assumed the title of veterinary surgeon or analogous title and who had been engaged in the practice of veterinary medicine and surgery.” If the act of April 18, 1905, is unconstitutional because it requires one who seeks its benefits “by proper and competent evidence to prove to the satisfaction of the state board” that he is entitled to them, the plaintiff is surely not entitled to such benefits. If it or any act authorizes an interference with the plaintiff’s assumption since 1872 of the title of “veterinary surgeon or analogous title,” which title he rightfully assumed and still assumes, the question of the unconstitutionality of such act must be determined in some other procedure.</p> <p>There is no evidence to warrant or support the verdict that the members of the state board acted from mere caprice, arbitrarily and for reasons which were unsubstantial and unjustifiable in refusing to grant the registry to the plaintiff. The motion for judgment non obstante veredicto should be granted.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 68, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 1,951, on verdict for plaintiff in case of William Hill v. John J. Torpey and James A. O’Connell, now or late trading as Marion Hosiery Mills, O’Connell & Torpey.</p> <p>Assumpsit for twelve months’ rent. Before Sulzbebgee, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $900. Defendant appealed.</p> <p>Errors assigned were (1) admission in evidence of lease to Buckhalter and O’Connell; (2) in the action of the judge in examining the defendant as to the nature and character of his business; (3-10) various instructions by which the judge submitted the case to the jury.</p>

<p>Divorce — Domicile—Residence—Intention.</p> <p>1. The expressed intention of a woman before marriage that her husband’s domicile shall not be hers, even though assented to by him will not prevent her from acquiring at marriage the domicile of her husband in another state, and if she goes with her husband to the state of his domicile, and there cohabits with him, and subsequently returns to Pennsylvania, she will have no standing in a suit for divorce until she has maintained an actual bona fide residence in Pennsylvania for the statutory period of one year from the date of her return to the state.</p> <p>Divorce — Amendment—Residence—Domicile.</p> <p>2. Where a libel in divorce by a wife alleging cruel and barbarous treatment is filed before the expiration of one year from the date mentioned as the beginning of the wife’s legal residence in Pennsylvania, and an amendment is filed alleging an earlier date, the date of filing the amendment cannot be considered as the true date in computing the year’s residence of the libelant.</p> <p>3. The words of the statute are plain, and not open to a construction which would make the date of an amendment of the libel, instead of the date of filing the libel, the period prior to which the year’s residence is to be computed.</p>

Appeal, No. 45, Oct. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1909, No. 3,083, discharging rule for judgment for want of a sufficient affidavit of defense in case of Southwark Mills Company v. Morris Slepin and Joseph F. Dittman, co-partners, trading as Slepin & Dittman. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense.

<p>Practice, C. P. — Pleading—Statement of claim — Affidavit of defense.</p> <p>1. An affidavit of defense is not required of the defendant where the action sounds in tort, or where it arises on an implied contract growing out of a duty resting upon the defendant.</p> <p>2. In an action by a steamship company against a teamster employed by the plaintiff to transport goods an affidavit of defense is not required where the statement of claim avers that certain goods were delivered to the defendant for transportation, and that the latter had never delivered the goods and had never paid nor caused to be paid the balance of the same, and that by reason of such neglect, and of the loss or conversion of the goods by the defendant the latter became liable to the plaintiff for the same for which the suit was brought.</p> <p>3. In such a case where the statement further averred that it was the custom of the defendant to present weekly or monthly statements of his drayage for the purpose of receiving compensation therefor, but that he had not included the goods in question in any such statement, an affidavit of defense is sufficient which denies any custom of the kind alleged, and avers that the receipts which have been given to the defendant for the goods which he had delivered had all been surrendered to the plaintiff when the defendant received his pay.</p> <p>4. The Act of April 18, 1874, P. L. 64, authorizing a writ of error where judgment is refused for want of a sufficient affidavit of defense, is only intended to reach clear cases of error in law and thus prevent the delay of a trial.</p>

<p>Contract — Sale—Breach—Damages for nondelivery.</p> <p>1. Ordinarily the measure of damages for nondelivery by the vendor of goods sold, is the difference between the contract price or so much thereof as remains unpaid, and the market value of the goods at the time and place appointed for delivery, and in the absence of proof of the market value at the time and place of delivery, the vendee fails to show any damages at all; but the vendee cannot wait over six months after the breach and then go into the market and claim the difference in the price then paid and the contract price as damages; nor can the vendee claim as the basis of damages purchases made by his own vendees to supply the goods which he could not deliver on account of the plaintiff’s breach of contract.</p> <p>2. A purchaser of goods cannot claim as an element of damages for the nondelivery of goods loss of anticipated profits where it does not appear that the seller had any knowledge at the date of the contract of any contracts between the purchaser and his customers. Merely knowing that the purchaser was a dealer and that the goods were purchased to be resold to customers who were unknown to the seller, is not sufficient to make the plaintiff liable for loss of profits.</p>

<p>Municipalities — Municipal contracts — Principal and surety — Subcontractor under surety.</p> <p>1. Where an ordinance of a city requires a public contractor to enter a bond with sureties to protect all persons supplying him with labor and materials “either as a subcontractor or otherwise,” a subcontractor under a contractor employed by the surety in the bond, who had been obliged to take oyer and complete the work, is entitled to the protection of the bond.</p> <p>2. The word “otherwise” as used in the bond is not to be rejected as meaningless, but it is to be considered as relating to a provision that would become effective in the event of a subcontractor failing to do his part of the same kind of work.</p> <p>3. Surety companies who go upon bonds for a consideration, are not entitled to the benefit of the rules of construction applicable to ordinary bonds of suretyship. Any doubtful language in such bonds will be construed most strongly against the surety and in favor of the indemnity which the assured had reasonable ground to expect.</p>

<p>Appeal, No. 189, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Phila.' Co., March T., 1907, No. 1,944, on verdict for plaintiff in case of Andersen Coal Mining Company v. Sloan, Howell & Company.</p> <p>Assumpsit on a guaranty. Before Davis, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>The plaintiff in this case, the Andersen Coal Mining Company, brings its action to recover the sum of 1739.90, with interest thereon from December 20, 1905, for coal sold and delivered on December 14, and December 20, 1905, to the Hughs-Hatch Coal Company. The plaintiff claims that the coal was sold and delivered to the Hughs-Hatch Coal Company on the express guaranty of Sloan, Howell & Company, the defendant in this case. This guaranty, the plaintiff claims, was contained in a letter from Sloan, Howell & Company, to the plaintiff which was dated December 7, 1905. It has already been read to you, but I shall read it. It was written on the letter sheet of Sloan, Howell & Company, incorporated, the defendant, addressed to the Andersen Coal Mining Company, the plaintiff, and reads as follows:</p> <p>“Gentlemen, I am sending you herewith order for 500 tons of coal for delivery at Perth Amboy, New Jersey, as per your quotation made December 6.</p> <p>“Notice this coal is to be consigned to Dupont, account of Whitney & Kammerer, and same to be charged to Hughs-Hatch Coal Co. These people are known by us and are perfectly good. We will guarantee this account.</p> <p>“Trusting this initial order will receive your prompt attention, and it may result in continuous business relations between us, we remain,</p> <p>“Yours very truly,</p> <p>“B. N. Cole.</p> <p>“Sales Mgr.”</p> <p>That is the note or letter upon which this suit is brought. That letter was a result of some conversation over the telephone between Mr. Ellicott, who was the manager of the plaintiff company in New York, and Mr. Cole, who held himself out to be the sales manager of Sloan, Howell & Company, the defendant. Mr. Ellicott testified that Sloan, Howell & Company, through Mr. Cole, called him up, after some correspondence in regard to 500 tons of coal. The price, according to the testimony of Mr. Ellicott, was $1.40, at which it was sold to Sloan, Howell & Company, the defendant. Quoting Mr. Ellicott, “They asked us to bill direct to the Hughs-Hatch Coal Company at that particular time. I told them we did not know the Hughs-Hatch Coal Company, and that we would bill it to them or would bill it to the HughsHatch Coal Company if they desired, with the understanding that they should guarantee the account, which they agreed to do, and they wrote us on, I think, December 7, 1905, guaranteeing the payment of the account and asking us to bill the coal to the Hughs-Hatch Coal Company at $1.45, and credit them with the difference of five cents a ton as their share of the profits.” That was the conversation leading up to the letter of December 7, 1905, which I have read to you. Upon receipt of that letter, according to the testimony, the coal was shipped in accordance with the instructions set forth therein. Mr. Andersen, the president of the company, testified in corroboration of Mr. Ellicott, that they had shipped the coal to Hughs-Hatch Company, as requested by Sloan, Howell & Company, the defendant, and on February 1, he sent a statement of the account to Hughs-Hatch Coal Company, and subsequently drew upon them. In fact, according to his testimony, there were two drafts sent. He also testified that he came to Philadelphia in person, to ascertain why the drafts were returned, as they had been returned; that he went to the office of Hughs-Hatch Coal Company, or the Land Title Building where they were supposed to have their office, and they were not there.</p> <p>[I may be anticipating somewhat in quoting the testimony of Mr. Andersen at this time upon those points, so I will say to you, that under the evidence in this case the questions for you to determine are, first, did the agent, Cole, have authority to make the contract guaranteeing the payment of the account? Second, if he did not have express authority to guarantee the account, did Sloan, Howell & Company, the defendant, disavow such authority and repudiate the contract? Or did they by any act ratify and confirm the act of their agent, Cole? In other words, did they fail to disavow the act of their agent in guaranteeing this account?] [3] Then another question for you to determine is, did the plaintiff proceed with due diligence to collect the account from the Hughs-Hatch Coal Company before proceeding against the defendant Sloan, Howell & Company in this action? [The plaintiff is obliged to prove authority in the agent to make the contract, or that the contract, having been made, was subsequently ratified by the defendant company. Such ratification may be express, or it may be implied from a failure to disavow any act of the agent after notice of the act of the agent. There is no evidence in this case of express authority in the agent to make a contract guaranteeing the payment of an account. So that brings you to the consideration of the question, the agent not having express authority to make such a contract, did the defendant, by their actions, fail to disavow such a guaranty, and thereby ratify the action of their agent in making the guaranty? That brings you to a consideration of the evidence as to whether there was a failure to disavow or whether you believe Sloan, Howell & Company, by their action and conduct, ratified the act of their agent in guaranteeing that account. That is, I might say, the most important question for you to determine under the evidence.] [4]. On February 9, the plaintiff company wrote to Sloan, Howell & Company, the defendant, a letter, in which they said: “On December 7th, 1905, you placed an order with us for 500 tons of bituminous coal to be shipped to Dupont for account of Whitney & Kemmerer and you requested us to bill same to the Hughs-Hatch Coal Co., of Philadelphia, which we did. The Hughs-Hatch Coal Co. have not paid our bill, do not answer our letters or telegrams and a draft on them was returned for want of address. Will you kindly advise us of the street address of the Hughs-Hatch Coal Co., and get after them and see that they pay their bill? In the event of their failure to do so we have no alternative but to look to you for the payment of same.” That brings us to the letter of February 10, 1906, which counsel for defendant argues was a disclaimer of any responsibility under a guaranty, and in that letter, which was sent by Sloan, Howell & Company to the Andersen Coal Mining Company, they say, “We have your favor of the 9th inst. regarding the account of the Hughs-Hatch Coal Co. These people are located in the Land Title Building, Phila. On taking the matter up with them on the phone this morning, these people claim the coal was sent by error of someone, to Perth Amboy, instead of South Amboy, N. J., where it was intended. Mr. B. N. Cole, our former sales manager, left our employ on Jan. 31st, and we are therefore unable to get at the full facts in the case. However, we have urged the Hatch Company to make prompt settlement with you and they promise to take some definite stand by Wednesday morning next the 17th inst., which we will follow up closely. However, we must disclaim any responsibility for this account, inasmuch as you billed the coal direct and although we are perfectly willing to aid you in obtaining prompt settlement from the Hughs-Hatch Coal Co., we beg to advise that you must look to them for settlement of your account.”</p> <p>Now, gentlemen, it is a question of fact for you to determine, whether that was a repudiation or a disclaimer of the act of Cole in guaranteeing this account. You will notice there is no mention of Cole’s act in that letter; they disclaim any responsibility for the account. That letter was followed by a letter of February 13, 1906, in which the president of the plaintiff company insists upon payment of the account, and he informs the defendant company that the plaintiff will look to the defendant in this action for the amount of the indebtedness. Subsequently, the plaintiff company sent a draft to Sloan, Howell & Company, the defendant, for the amount of this claim, and on March 2, 1906, the defendant company wrote to the Andersen Coal Mining Company in reference to that draft, a letter, in which they said, “In reply to your letter of the 27th inst., your draft was presented yesterday, which we refused pending our negotiations with the HughsHatch Coal Company. We have an appointment with Mr. Hatch to-morrow (Saturday) morning, when we hope to be able to give you some definite information regarding this account. We have been working very hard with Hatch trying to get settlement out of him and had an interview with him last Saturday. He has been out of town all this week and, expecting him from day to day, we have called at his office every morning this week; however, he will be in town to-morrow and we are taking our former sales manager (Mr. B. 'N. Cole), who handled this transaction with us, in the hope of arriving at some definite and prompt settlement.</p> <p>“You can readily understand that we have no claim whatever against the Hatch people should it come to a suit, inasmuch as you billed the coal direct, so we would request that you handle this matter in your name (with our help), until we are able to bring the matter to some climax. This we are doing all in our power to do and we trust you will bear with us until we can have a definite understanding with Mr. Hatch. He claims to be withholding payment pending the adjustment of some error in shipment, which, however, is neither your fault nor ours. However, he wants a 25c. reduction which we are not willing to stand and he, in turn, will not pay anything even on account, until this is settled. We are going to work this out to-morrow and we trust you will bear with us a little longer until we are able to bring him to time. He is a very hard man to catch, hence the delay in answering your correspondence. We will keep you fully advised of conditions and hope to receive his check to-morrow, which we would, of course, immediately forward to you.”</p> <p>[That, gentlemen, is briefly, the correspondence relating to the knowledge which the defendant had of this transaction. As I say, this question of ratification by a failure to disavow, is one for you under all the evidence. You will determine when the defendant company discovered, or might have discovered, the act of their agent, without their authority, in making this contract, and the actions of the defendant company after such discovery. It is for you to say whether, in view of this evidence, the correspondence, the testimony of the plaintiff, and the testimony of the defendant which has been offered in evidence —whether you believe the defendant company had knowledge of the contract of this agent and failed to disavow his act and repudiate the contract. And if you so believe, you would be justified in deciding that such failure to disavow amounted to a ratification of the act of the agent.] [5]</p> <p>Now as to the third question — did the plaintiff proceed with due diligence to collect from the Hughs-Hatch Coal Company, before proceeding against the defendant company here? The plaintiff was bound to proceed with due diligence to recover from the principal debtor in order to hold the guarantor liable, but what amounts to due diligence is a question of fact for you in this case. And there is considerable correspondence between the plaintiff and the defendant bearing upon the question of the collection of this account. I have already referred to the testimony' of the president of the plaintiff company, Mr. Andersen, wherein he said that he sent statements to the HughsHatch Coal Company; that he sent two drafts to their office in Philadelphia; that he came over here personally to make an investigation, and he then got into correspondence with the defendant in this case. .Counsel for defendant has made some reference in his address to you as to whether this coal was ever received by the HughsHatch Coal Company. [And right here, I may say that it appears that this claim of the Andersen Coal Mining Company, the plaintiff, was assigned to Mr. Parett, representing Sloan, Howell & Company, and in their effort to recover the amount of this bill or account, they issued an attachment, and began two actions in the courts of common pleas of this county. In one of those actions, Mr. Parett, the assignee of this claim, swears in his statement of claim, “That Sloan, Howell & Co., a corporation duly organized under the laws of Pennsylvania, with power to act as sales agents, sold to John E. Hatch, the defendant, on or about December, 1905, five hundred tons of bituminous coal, and said defendant agreed to pay for the same the sum of one dollar and forty-five cents per gross ton, f. o. b., to said Sloan, Howell & Co., subject to the railroad weights at place of delivery. And the said coal was delivered by Sloan, Howell & Co. to the consignee, and upon being weighed in accordance with the custom of the trade,” etc. The rest is not material, but I merely refer to that, the records being in evidence — that the assignee of this claim swore that the coal had been delivered at Perth Amboy, or wherever it was consigned — that the coal had been delivered to the Hughs-Hatch Coal Company or to John E. Hatch, that suit being against John E. Hatch. There is no evidence to show that it was for any other claim than the one in question.] [6]</p> <p>Verdict and judgment for plaintiff for $957.27. Defendant appealed.</p> <p>Errors assigned-were (1, 3-6) above instructions, quoting them, and (15) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 20, April T., 1911, by Francis J. Farley, a resident and qualified elector of the borough of McKees Rocks, from order of Q. S. Allegheny Co., March T., 1910, No. 1,385, granting an amendment of a petition for a retail liquor license In re Petition for Retail Liquor License by O. L. Kirsch and F. J. Kirsch, No. 345 Helen Street, Borough of McKees Rocks.</p> <p>Petition to amend an original petition for a liquor license.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order granting the amendment.</p>

<p>Appeal, No. 68, April T., 1911, by defendant, from judgment of Q. S. Washington Co., May T., 1910, No. 142, on verdict of guilty in case of Commonwealth v. O. A. Yolton and E. G. Dudley.</p> <p>Indictment for selling liquor without a license and for conspiracy. Before McIlvaine, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>At the trial when Linn Brookman was on the stand the following offer was made:</p> <p>The commonwealth offers to prove by the witness on the stand that on one occasion he went to the drug store of E. G. Dudley, one of the defendants; he was there waited upon by a girl employed in the drug store who refused to sell him any liquor, told him that Dr. Yolton was not there; that subsequently a boy employed in this drug store came to the house of the witness and directed him to go back to the drug store; that he returned to the drugstore, was informed by the girl there who had refused him liquor a short time before that she had had a telephone conversation with Dr. Yolton and that Dr. Yolton had told her it would be all right for to give the witness the whisky, if he left the money with her and left twenty-five cents for a prescription; that the witness left the twenty-five cents for the prescription and the money for the liquor, which he secured. For the purpose in connection with other evidence to be offered in the case of showing a conspiracy on the part of these two defendantas to violate the liquor laws.</p> <p>The Court: Objection overruled and offer admitted and bill sealed for the defendants. [3].</p> <p>The court charged in part as follows:</p> <p>Now, that brings us to the acts that were done by these different parties, because there are two Mr. Dudleys and there are two Mr. Yoltons; there is “druggist” Dudley, and there is Q. A. Yolton “the physician”; but O. A. Yolton is also an individual and E. G. Dudley is also an individual; and the question is (when they did the acts here complained of) whether they were done in their capacity as druggist and physician, or whether they were done in their capacity as individuals, because a druggist does not lose his individuality, and neither does a physician lose his individuality simply because he happens to be a druggist or a physician, and he may do things as an individual that cannot be claimed were done as a physician. [4].</p> <p>Defendants presented these points:</p> <p>2. Where a witness goes on the stand and testifies that he obtained a prescription from Dr. Yolton and had the prescription filled at the drug store of Mr. Dudley, and there being no evidence to show for what purpose the liquor was obtained, or what use was made of it by the witness, the presumption is that he obtained the liquor and used it legitimately. Answer: This point is refused as the court is asked to say that “ there being no evidence to show for what purpose the liquor was obtained or what use was made of it by the witness,” this court cannot say under the testimony in this case, it is for the jury to say from the testimony for what purpose Yolton gave these prescriptions. [5].</p> <p>4. Unless the jury find that a corrupt understanding existed between Dudley and Yolton, then the jury must acquit Dudley on the first three counts. Answer: Refused. This point could be affirmed as to the first count but it would be misleading to affirm it as drawn. [6].</p> <p>Errors assigned were (1) refusal to quash the indictment; (2) refusal to quash the fourth count of the indictment; (3) ruling on evidence, quoting the bill of exceptions; (4-6) above instructions, quoting them; (7) in passing sentence on the verdict of the jury as to the second count of the indictment because the verdict of the jury as written does not find the indictments guilty on the second count; and (8) in entering judgment and passing sentence on the verdict of the jury.</p>

<p>Municipalities — Water supply — Regulation—Stopping supply — Acts of May 33,1889, P. L. 377, and June 4,1901, P. L. 364-</p> <p>1. The supplying of water and gas by a city is not a municipal duty, and if it assumes the performance of that function it acts under authority merely, as a business corporation and not under municipal obligation. The municipality may, however, by ordinance make reasonable rules and regulations to insure the payment of bills, among others, that of stopping the supply unless all arrearages are paid, whether owing by the tenant in possession or his predecessors.</p> <p>2. Where a person purchases a property in a city of the third class, at a sheriff’s sale, and pays for the same a sum exceeding the aggregate amount of the liens and claims which the city holds against the property, and a claim for water rent which had accrued under a previous ownership, is not paid out of the proceeds, and the purchaser refuses to pay the same, the city may compel payment by cutting off the supply of water from the premises in accordance with an existing regulation established by ordinance.</p> <p>3. The Act of June 4, 1901, P. L. 364, relating to the municipal liens upon real estate does not take from a municipality the remedy of cutting off water supply from property in order to enforce the payment of water rent.</p>

<p>Appeal, No. 9, Oct. T., 1910, by Manayunk Trust Company, trustee, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 872, on verdict for plaintiff in case of James R. Davis v. James A. Davis, defendant, and Manayunk Trust Company, trustee under will of William H. H. Davis, deceased, garnishee.</p> <p>Attachment execution.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $197.91.</p> <p>Error assigned was in directing a verdict' for the plaintiff.</p>

<p>Corporations — Stock—Full paid stock — Rights of a bona fide purchaser.</p> <p>1. A bona fide purchaser for value and without notice, of the stock issued by a corporation as paid up, cannot be held liable on such stock in any way either to the corporation, corporate creditors or other persons even though the stock was not actually paid up as represented.</p> <p>2. Where a person, in open market, in good faith and without notice, purchases certificates, such stock is to be deemed “paid up” in his hands, and he is protected as a bona fide purchaser, even though there is nothing on the face of the certificates stating that they are paid up.</p> <p>Corporations — Stockholders—Assessments—Defenses—Foreign corporations — Conflict of laws.</p> <p>3. In an action by a receiver of a foreign corporation against a stockholder, a resident of Pennsylvania, to recover an assessment authorized by a decree of a court having jurisdiction of the affairs of the corporation, the defendant cannot question the findings of insolvency, and the foundations of the assessments, but he can set up any defense which is personal to himself in which are involved his rights as a bona fide holder of the stock.</p>

<p>Railroad, — Construction of road — Damages—Waters—Sewers.</p> <p>1. Where a railroad company acquires the right to construct its line at the natural grade of the surface, or above, or below the same, it has the right to interfere with the natural flow of the water resulting from rains or melting snow, and for any injury from the exercise of this right as the necessary consequence of the construction and maintenance of the road, a landowner cannot recover in the absence of anything to show that the railroad company had been guilty of some unlawful act or of negligence in the construction and maintenance of its line.</p> <p>2. The owner of a city lot is not liable in damages for the natural flow of surface water from his lot into the cellars of the houses on the adjoining lots even though the water might be drained away by connection with the city sewer.</p> <p>3. A railroad company is not required to pave the entire surface of its right of way and make it waterproof so that cellars abutting upon it may not become damp.</p>

<p>Criminal law — Health law — Selling oleomargarine without license.</p> <p>On the trial of an indictment for selling oleomargarine without a license a conviction will be sustained where the evidence shows that the defendant took orders in the place where he resided, from various parties for oleomargarine in quantities ranging from five to ten pounds to each individual; that he sent these orders to a dealer in another state; that the dealer put up the orders in separate packages writing the names of the respective purchasers on the packages, that the packages were placed in wooden boxes, shipped to the defendant, who delivered them to the different purchasers; that the defendant paid the dealer twenty cents a pound for the oleomargarine, and received from his customers twenty-two cents a pound, and that the difference was used for freight and charges', and this was known to the customers.</p>

<p>Criminal law — Sale of diseased animals — State Live Stock Sanitary Board — Act of May 21,1895, P. L. 91.</p> <p>1. The Act of May 21, 1895, P. L. 91, entitled “An Act to establish the State Live Stock Sanitary Board of Pennsylvania, and to provide for the control and suppression of dangerous, contagious or infectious diseases of animals,” does not authorize an officer and agent of the board to establish a quarantine of cattle, nor can the board delegate to its agents or employees the authority to declare and enforce a quarantine of cattle.</p> <p>2. The act of 1895 did not invest the board with power to make a regulation which would deprive an owner of quarantined cattle of the right to sell or transfer his title to another who was willing to pay the price agreed upon and take the chances of the cattle being restored to health, or being lawfully relieved from quarantine. The mere sale of the cattle, so long as they remained physically confined, did not involve a violation of any regulation which the statute authorized the board to make.</p>

<p>Appeal, No. 56, Oct. T., 1910, by defendant, from order of Q. S. Phila. Co., Feb. T., 1910, committing defendant to prison in case of Commonwealth v. Henry Quigg.</p> <p>Petition for attachment.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order of commitment.</p>

Appeal, No. 28, March T., 1911, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1910, No. V/% on verdict of guilty in case of… Held: “The mere fact that testimony was given by a witness in the judicial proceedings against a person charged with the offense of bribery is not a conclusive bar against the use of that testimony against a witness in a subsequent judicial proceeding against him. It is only a bar where it was given under some sort of compulsion.

Appeal, No. 14, March T., 1911, by plaintiff, from order of C. P. Snyder Co., Oct. T., 1909, No. 56, refusing to take off nonsuit in case of F. J. Wilkinson v. N. B. Stettler. Assumpsit to recover back the purchase money of a horse. Before McClure, P.. J. At the trial the court entered a compulsory nonsuit which it subsequently refused, to.take off.

Appeal, No. 62, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1909, No. 296, .for plaintiff on demurrer in case of Nancy A. Reed v. Alta Friendly Society. Assumpsit for benefits. Demurrer to statement of claim. The opinion of the Superior Court states the case. The court in an opinion by Ralston, J., overruled the demurrer. Error assigned was the judgment of the court.

Appeal, No. 32, March T., 1911, by defendant, from judgment of Q. S. Luzerne Co.; Sept. T., 1910, No. 451, on verdict of guilty in case of Commonwealth v. Thomas McCue. Indictment for perjury. Before Fuller, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty, upon which the prisoner was sentenced to pay a fine of $100, and undergo imprisonment in the penitentiary for not less than one year, nor more than seven years.

<p>Insolvency — Preferences—Trust funds.</p> <p>1. A person claiming to be a trust creditor must, in order to establish his right to a preference, trace the trust money into some specific property, fund, security, or account of the insolvent, which has passed into the hands of the receiver or assignee, and the proceeds of which are to be distributed. He must identify the fund out of which he demands to be preferred in distribution either as the original trust property or as the product of it.</p> <p>2. Where a trust company deposits in a national bank for collection a certificate of deposit which it held as counter indemnity for liability on an executor’s bond, and the bank passes the proceeds of the certificate to the trust company’s account, and thereafter the trust company reduces the account below the amount represented by the certificate, and finally on the insolvency of the trust company, the bank applies the whole balance as a set-off to its own claim against the trust company, the executor cannot claim a preference over general creditors in the distribution of the assets of the insolvent trust company.</p>

<p>Promissory notes — Negotiability—Contingency.</p> <p>1. A written promise to pay which depends upon a contingency does not become a negotiable instrument if the contingency does in fact afterwards happen upon which the promise is to become absolute. Its character as a negotiable note cannot depend upon future events.</p> <p>2. While the Act of May 16, 1901, P. L. 194, provides that a promissory note shall not lose its negotiability merely because it includes a statement of the transaction out of which it arises, the provision of the statute only applies where there is “an unqualified order or promise to pay.”</p> <p>3. Where an instrument in writing dated February 23, 1906, starts out with an order for goods at a price named to be shipped f. o. b. to a city in another state four months afterwards, and concludes with a specific promise to pay the price named at a designated place in 180 days after the date of the instrument, the paper is not a negotiable promissory note, inasmuch as it does not create a liability independent of, or unaffected by, the written offer, to purchase the goods.</p>

<p>Appeal, No. 195, Oct. T., 1910, by defendant, from decree of C. P. Clearfield Co., Sept. T., 1910, No. 3,-awarding injunction in case of J. F. McFarland et al. v. Charles M. Heverly.</p> <p>Bill in equity for an injunction.</p> <p>Smith, P. J., filed an opinion which was in part as follows:</p> <p>The principal question on which this case turns is the force and effect of the deed of August 16, 1844,. from Hard-man Philips to Edward N. Tipton, Jesse Hoover and Benjamin Hartman, Jr., trustees, etc. The grantees in that deed are described as “the trustees of the Baptist Meeting House lot and buildings of Beccaria Township, in the County of Clearfield, in Pennsylvania, farmers.” The deed is undoubtedly a fee simple deed. The consideration is nominal. The habendum is to them and their successors and executors. Nowhere in the deed are the cestuis que trust named. Neither are the uses and purposes for which the property is vested in these three men, as trustees, named. Clearly, therefore, the uses and purposes for which the conveyance was made to them as trustees were the uses and purposes which existed prior to this deed. These uses and purposes are clearly shown by the evidence, namely, first, the religious uses of the Baptist congregation at that place, now Utahville, and, second, the burial uses of that community. That it had been thus dedicated prior to the making of this deed is clearly shown by all the facts and circumstances in evidence. First, a church had been built on that property for at least twenty-two years. Second, burials had taken place, of people regardless of religious affiliations, for many years prior to that date. Third, the nominal consideration of the deed is indicative of the intent of the grantor. Fourth, the absence of any declaration of uses, although the deed is to three men as trustees of a certain church and a particular denomination, indicates that there were other uses than the uses of that particular congregation. Fifth, the amount of land deeded to these men was greatly in excess of that which was needed for church purposes alone. Sixth, the continued use after the deed, openly, notoriously and continuously, without any objection on the part of the congregation, by people in that vicinity of all denominations and faiths, as a burial ground, indicates that they were doing so under some claim of right, presumably dedication by the former owner for that purpose. Seventh, it was the only burial ground in that vicinity. Eighth, the-absence of any evidence to indicate that the congregation assumed the control and regulation of this graveyard until a very recent date, is strong evidence going to show that people were burying there under a claim of right and by virtue of a dedication of the former owner. For these reasons we think it is conclusively established that there was a dedication of this ground for burial purposes long prior to the deed and that the absence of any designation of the uses in the deed itself was probably for that reason. It follows, then, that the deed itself conveyed only the naked legal title, subject to the former uses to which the land had been devoted.</p> <p>A dedication may be by parole and may be without a conveyance of any kind. 6 Cyc. 714. It seems to us equally clear that the abandonment of the lot for religious or church purposes left the whole tract subject to the burial uses of the community: Gumbert’s App., 110 Pa. 496. Even though the whole two acres, by reason of the abandonment for religious uses, cannot now be used by the community as a burial ground, it does not follow under the testimony in this case that the defendant had any right there. The grantees in the deed of 1844, were trustees of a particular house, lot and building in Beccarria township. The religious uses were of course of the Baptist faith, but it does not follow that their congregation five miles away are the legitimate successors of a congregation which has dwindled away and become nonexistent. The testimony clearly shows the abandonment of this church site by the Baptist people long years ago. The congregation at Cambria Mills and Mountaindale are in a separate and distinct community, five miles from Utahville, and in fact in another county. They call themselves the Mountaindale Baptist Church or Congregation. No person having any interest in the maintenance of the cemetery at Utahville nor in the maintenance of a church there on this ground had any voice in the election of the trustees who attempted to convey the property in 1907. The minutes and testimony do not carry out the theory that even the name of Mount Pleasant Baptist Association is maintained at Mountaindale or Cambria Mills. The certificates of burial issued from 1895 to 1906, show that they were granted under the rules and regulations of the "Trustees of the Baptist Church at Mountaindale, Penna.” The attempt by the Mountaindale congregation, through its trustees, to sell the two acres of ground at Utahville, on the theory that it (the Mountaindale church) had the title and that the trustees of the Mountaindale church were the legal successors of the trustees named in the deed, must fail for an additional reason. If we are right in our conclusion that the grant in fee, vested by the deed of 1844, was affected with a trust for religious and burial uses, then no sale could be made without a petition to the court and notice to the parties affected, under the provisions of the Price Act of April 18, 1853, P. L. 503. It follows, therefore, that Heverly got no title.</p> <p>We believe with Judge Woodward, as expressed in Brown v. Lutheran Church, 23 Pa. 495, 500, in which he says: “The sentiment is sound and has the sanction of mankind in all ages which regards the resting place of the dead as hallowed ground — hot subject to the laws of ordinary property nor liable to be devoted to common uses.” Burial uses are permanent in character and where ground has been used for the interment of a body, it is forever appropriated to that body: Brendle v. German Reformed Congregation, 33 Pa. 415, 422. Mr. Justice Sharswood, in Yard’s App., 64 Pa. 95, 98, quotes with approval Lewis on Perpetuities, 689, to the effect that “land dedicated to the service of charity and religion are practically inalienable.” How much more so then must be land dedicated to burial purposes, the use of which must- necessarily be permanent in character and the disturbance of which is regarded as desecration. The attempt to sell on the part of the Mountaindale church trustees was a conversion from the uses to which the lot had been dedicated and could never have received the sanction of a court under the Price act. The motives which actuated the Mountaindale church, as well as those which actuated the purchaser, are not to be commended and should not receive the sanction of any court. They were purely mercenary on the part of the church and were violative of the clearly vested rights of the plaintiffs and many others having their dead buried therein. We are clear, therefore, that Heverly got no title and had no rights exclusive or superior to that of any of the plaintiffs. His actions after assuming control indicate a mercenary character hard to understand. He certainly knew that scores of his neighbors were interested therein equally with him. He certainly knew that they had raised considerable money and had only recently spent that money in the adornment and proper maintenance of the cemetery. His assumption of the right to close the road, which had been opened and used by the public as a public road long before he was born, and his assumption of the right at his own sweet will to cut down an ancient oak tree, regarded by his neighbors as a thing of beauty and adornment, and a landmark, invaluable — as some of them testified, are evidences of the mercenary spirit which actuated the defendant. His cutting down of the groves of trees and converting the same into money for his own use; his attempt to sell burial lots therein to his neighbors, are all indicative of a mercenary spirit certainly not in keeping with the spirit of the age with respect to burial grounds. In Pennsylvania cemetery companies are only incorporated as of the first class, that is, those not for profit. The legislature of 1909 passed an act of assembly requiring cemetery companies to set aside a certain portion of the funds received from sale of lots for the purpose of the future maintenance of the cemetery as a thing of beauty. It is doubtful if the law would recognize the right of an individual to create a cemetery and to sell lots for burial purposes. Whether an individual can or not, however, is immaterial to the question at issue, as we look at this case. His conduct as a whole was sufficiently aggressive against and subversive of vested rights to warrant his neighbors, thirty in number, in coming into court to stay his hand.</p> <p>In accordance with these findings and this opinion, it is hereby directed that a decree nisi be entered by the prothonotary:</p> <p>1. To the effect that the deed to Charles M. Heverly dated June 10, 1907, from John Gwin et al., trustees, be declared void.</p> <p>2. That the road or highway through the said two acres be declared a public highway over which the public have full right to pass and repass without interference or restraint by the said Charles M. Heverly, and enjoining the said Charles M. Heverly from closing and obstructing the same.</p> <p>3. Enjoining and restraining Charles M. Heverly, his agents and employees, from interfering with the free use by the public of the burial ground.</p> <p>4. That the said Charles M. Heverly shall pay to such person, trustees or corporation, as may be hereafter named, the sum of $300, as damages for injuries sustained, to be expended for the purpose of ornamenting and restoring the said cemetery to its former condition.</p> <p>5. That Charles M. Heverly pay the costs of this proceeding.</p> <p>Error assigned was the decree entered in accordance with the above opinion.</p>

Argued March. 1, 1911. Appeal, No. 5, Feb. T., 1911, by plaintiff, from judgment of C. P. Clinton Co., Jan. T., 1907, No. 44, on verdict for plaintiff in cáse of W. J. Shurr v. M. B. Rich. Appeal from judgment of a justice of the peace. Before Hall, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 23, March T., 1911, by defendants, from judgment of C. P. York Co., Jan. T., 1910, No. 3, sustaining order of commissioner of health, and discharging appeal therefrom in case of Samuel G. Dixon, Commissioner of Health, v. Benjamin F. Sheffer, Levi F. Sheffer, The Glen Rock Stamping Company, J. M. Grove, I. F. Grove and J. M. Grove. Appeal from order of commissioner of health. Before Wanner, J. The court found the facts to be as follows: 1.

Appeal, No. 2, March T., 1911, by defendant, from order of C. P. Luzerne Co., June T., 1909, No. 177, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Northern Produce Exchange v. Crocker Grocery Company. Assumpsit to recover the purchase money for twenty-five crates of eggs. The facts are stated in the opinion of the Superior Court.

Appeal, No. 17, March T., 1911, by plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1909, No. 266, on verdict for defendant in case of Wiley-Homer Lumber Company v. Ira S. Eberly, trading as L. F. Eberly’s Son. Assumpsit for lumber sold and delivered. Before Sadler, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 7, Feb. T., 1911, by defendant, from decree of C. P. Clinton Co., July T., 1908, No. 1, on bill in equity in case of Edward Tibbens v. John A. Burrell. Bill in equity for a conveyance. Before Hall, P. J. The court found the facts to be as follows: 1.

<p>Equity — Injunction—Damages—Contract—School building — Directors.</p> <p>Where a board of school directors have accepted a bid for the erection of a school building, and the contract with plans and specifications has been prepared and signed by the contractor, but before the officers of the board have signed it, an injunction issued restraining further action, and subsequently on the injunction being dissolved, the contract is signed and the building erected, the complainant at whose instance the injunction issued, will be liable on his injunction bond for the loss sustained by the contractor from the delay resulting from the injunction.</p>

<p>Appeal, No. 28, Oct. T., 1910, by Carrie Tyler Cash, from, decree of O. C. Bradford Co., May T., 1909, No. 22, dismissing exceptions to adjudication in estate of Fanny E. F. Long, deceased.</p> <p>Exceptions to report of Henry Streeter, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 120, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1909, No. 1324, on verdict for plaintiff in case of Monticello Distilling Company v. Charles F. Dannenhauer.</p> <p>Assumpsit on promissory notes. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $208.77. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p>

<p>Liquor laws — Wholesale dealer — Selling without license — Sale'in another county by agent.</p> <p>A wholesale liquor dealer may be convicted of selling liquor without a license where it appears that he sent his agent into another county than that covered by his license, that the agent went around from house to house soliciting orders for beer and liquor, that the orders were given orally, sometimes for no definite quantity and with the general understanding among the purchasers that the liquor was to be delivered at their houses, where it was to be paid for. In such a case it is immaterial that the defendant on receiving the orders set apart the packages, marking them with the names of the several purchasers.</p>

<p>Appeal, No. 1, Feb. T., 1911, by plaintiff, from order of C. P. Lycoming Co., June T., 1909, No. 125, discharging rule for judgment for want of a sufficient affidavit of defense in case of System Company to use of Everett Rose v. Lycoming Foundry & Machine Company.</p> <p>Assumpsit for money had for the plaintiff’s use.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Hart, P. J.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 24, March T., 1911, by Joseph Lynch, from order of C. P. Lackawanna Co., March T., 1909, No. 965, dismissing appeal from the report of viewers in the matter of the sewers of the Borough of Winton.</p> <p>Appeal from report of viewers. Before Edwards, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order dismissing appeal from the award of viewers.</p>

<p>Criminal law — Keeping disorderly house — Usury.</p> <p>1. 'A person cannot be convicted of keeping a disorderly house by proof that he conducted a business of lending money at usurious interest in a particular house.</p> <p>2. Since the passage of the Act of May 28, 1858, P. L. 622, usury is not unlawful in Pennsylvania.</p>

Appeal, No. 78, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. Term, 1908, No. 1,569, on verdict for defendant in case of Marine National Bank of Buffalo v. Milton F. Baringer. Assumpsit for money had and received. Before Sulzberger, P. J. The court charged in part as follows: The Niagara Milling Company was a concern in Buffalo, apparently in active business, and probably in good credit which it did not deserve.

<p>Appeal, No. 20, Oct. T., 1910, by defendants, from judgment of C. P. Clearfield Co., Feb. T., 1909, No. 68, on verdict for plaintiff in case of August Olfsheskey v. Alfred Graham, J. W. Allen and John W. Coleman, trading as the Graham Lumber Company.</p> <p>Trespass to recover damages for alleged unlawful cutting of timber. Before Gillan, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $528. Defendant appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 76, Oct. T., 1910, by defendant, from order of C. P. Lancaster Co., Aug. T., 1905, No. 10, making absolute rule to open judgment in case of Harry Binkley, administrator of Clara Binkley, deceased, v. Benjamin N. Nolt.</p> <p>Rule to open judgment entered on verdict.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order making absolute rule to open judgment, and order striking off verdict.</p>

<p>Appeal, No. 19, March T., 1911, by defendant, from judgment of C. P. Luzerne Co., March T., 1907, No. 119, on verdict for plaintiff in case of Patrick Harrison v. John M. Ward.</p> <p>Assumpsit for money had and received. Before Gar-man, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $809.67. Defendant appealed.</p> <p>Error assigned was refusal of motion for judgment for defendant n. o. v.</p>

<p>Liquor laws — Improper sale of liquors — Damages—Civil remedy— Acts of May 8,1834, P• P- 868, and May 18,1887, P. L. 108.</p> <p>1. The general liquor law of May 13, 1887, P. L. 108, does not in any manner affect or repeal the civil liability provided for by sec. 3 of the Act of May 8, 1854, P. L. 663.</p> <p>2. In an action against a retail liquor dealer to recover damages for the death of plaintiff’s husband a verdict and judgment for the plaintiff will be sustained where the evidence shows that the defendant had been notified by the plaintiff not to sell her husband liquor, that notwithstanding this notice the defendant did sell liquor to the deceased and shortly after this sale the defendant was observed sitting on his wagon in an intoxicated condition and that subsequently other parties saw the deceased’s dead body being dragged behind his wagon.</p> <p>Negligence — Damages—Carlisle tables.</p> <p>3. Where in an accident case the Carlisle tables are introduced in evidence and the court in its charge tells the jury that the tables are only to be considered as an aid in determining the expectancy of life, and that they are to consider also the health of the deceased, his ability and disposition to labor and his habits of living and his expenditures, the court has done all that it is required to do, and if the defendant desires more specific instructions on the subject he should ask for them.</p>

<p>Appeal, No. 11, March T., 1911, by David C. Shultz, administrator, from decree of O. C. Adams Co., Jan. T., 1910, No. 1, dismissing exceptions to auditor’s report in estate of Henry Shultz, deceased.</p> <p>Exceptions to report of J. L. Butt, Esq., auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 4, Feb. T., 1911, by plaintiff, from judgment of C. P. Lycoming Co., Dec. Term, 1909, No. 372, on certificate against the plaintiff in case of Interstate Distributing Company to use of Freiberg & Workum Company v. Cornelius D. Connell and William J. Connell, now or late trading as Connell Brothers.</p> <p>Assumpsit on book accounts.</p> <p>The facts are stated in the opinion of the Superior Court, and the charge which was in part as follows:</p> <p>What was the financial condition of this corporation on April 21, 1908?</p> <p>Mr. Connell says that the president of this corporation had always said to him, and did at this meeting, that this corporation was solvent, and that the only reason he ever gave for the corporation being in any sort of financial difficulty was because of the subscribers to stock not paying their subscription.</p> <p>Now, in that connection it is proper for us to say to you that when a person subscribes to the stock of a corporation, such subscription becomes an asset of the corporation and payment of that subscription can be enforced. Subscribers can be compelled to contribute to the treasury of a corporation the amount of their subscription. Hence this constitutes an asset which Mr. Max Schmidt may have had in his mind, or it may have been that he had in mind the assets and liabilities of the corporation as he then knew them to be. It is testified on the part of the defendants, and, as I say, the minutes of the corporation show, that Max Schmidt was made the liquidating agent.</p> <p>[Now, whilst the board of directors, without the sanction of the stockholders, could not in themselves liquidate the affairs of the corporation, yet,'if they did pass such a resolution, which was subsequently ratified by the stockholders, we say to you that anything that the agent may have done between the time of his being appointed by the directors as liquidating agent and the time of the ratification 'of his appointment by the stockholders, would bind the corporation.] [4]</p> <p>Corporations, in matters pertaining to contracts, may be bound by agents, and it is not necessary that every transaction of a corporation should be spread upon the minutes of the stockholders or of the directors. As long as an agent of a corporation acts within the scope of his authority, as given to him by the corporation, his acts bind the corporation, if it is such a matter as the corporation itself could lawfully do.</p> <p>Now, this resolution to which I have referred was passed on April 21, 1908, and at that time the defendants knew there was a bill due from them to the corporation for liquors which they had previously purchased, and Cornelius D. Connell says that there was a conversation had between himself and Mr. Max Schmidt, president and liquidating agent of this company, whereby it was agreed that Mr. Connell should be. permitted to purchase goods which,'in addition to those he had already purchased, would amount to the sum of $500. Mr. Connell further claims that Mr. Schmidt agreed in addition that he would pay Connell Brothers the balance of this stock held by them in money. In other words, that he would allow defendants a credit for these two bills of goods on account of this stock and that he would pay them the balance of their stock in money.</p> <p>[Now, if this company at that time was solvent, if it was able to pay its debts, then we say to you that this would be a perfectly legitimate contract, and that Max Schmidt, as the liquidating officer of this company, could bind this corporation by such a contract. In other words, he could purchase and liquidate outstanding obligations due from this company to its stockholders, or due by this company to any other party, and could lawfully bind this corporation by the terms of such a contract.] [5]</p> <p>Now, it is not denied here, as I understand the testimony in this case, by Mr. Schmidt, that this agreement was entered into by him and one of the defendants. He does deny that he ever said that this corporation was solvent, and he testifies here that the books of the company show that it was not solvent. The books of the company have not been offered in evidence, but Max Schmidt says the assets of the corporation, that is, outstanding accounts, merchandise and fixtures, amounted to the sum of $9,729.69. He says included in that are doubtful and uncollectible claims. He has not shown an itemized statement showing of what they are made up; he sums them up as amounting to $3,554.22, leaving a balance of available assets, according to his statement, of $6,175.34. Then he claims that there were duebills probably amounting to $6,669.08; due for rent, $291; due to stockholders, that is, persons who had taken stock in this corporation, $11,000, making a total indebtedness of the corporation of $18,706.81 as its liabilities. Now, gentlemen, that is his statement at this time.</p> <p>The difference between this statement and the one he had made at some other time is that he now gives figures, while at another time, according to the testimony, there were no figures given, and the question for you to determine is when he gave the actual condition of this corporation.</p> <p>[If it be true, as he stated to Mr. Connell at the time of this transaction, that the company was solvent, then this defense is a good defense and the defendants would be entitled to recover on this contract, which it is alleged was entered into at that time.] [6]</p> <p>Of course, if it be true that this was an insolvent corporation at the time of the alleged cbntract between Max Schmidt and the Connell Brothers, why then this defense would not be a good one.</p> <p>Plaintiff presented these points:</p> <p>1. Under all the evidence in this case your verdict must be for the plaintiff in the sum of $507.95, with interest on $240.73 from April 23, 1908, and on $267.22 from June 9, 1908. Answer: This point is refused. [7]</p> <p>2. It not having been shown that the board of directors of the Interstate Distributing Company ever authorized Max Schmidt to make the alleged agreement with Connell Brothers, whereby the said Connell Brothers were to receive the goods, the value of which is sued for in this case, by way of settlement for any fraud or misrepresentation which may have been practiced by them in the solicitation of the subscription to the stock of the said Interstate Distributing Company, plaintiff is entitled to recover of the defendant the value of the goods which they admit were delivered to them by the Interstate Distributing Company. Answer: This point is refused. [8]</p> <p>3. The uncontradicted evidence in this case being that the Interstate Distributing Company was insolvent on the day of the alleged agreement made between Max Schmidt and C. D. Connell, for the purchase of the stock of Connell Brothers, then held by them in said company, as testified to by C. D. Connell, such an agreement is void and cannot be enforced as a defense to this action. Answer: This is refused. We leave the question of the solvency of this company for the jury to determine.. [9]</p> <p>Defendant’s points were as follows:</p> <p>3. That Max Schmidt, as president, general manager and liquidating trustee of the Interstate Distributing Company, had the right and power in this case to compromise Connell Brothers’ claim, if said company was solvent at the time, and agree to allow the goods ordered by Connell Brothers on the two different occasions, sued for by the plaintiff in this case, to apply on account of a return of the cash paid by them for the capital stock of said company. Answer: This is affirmed. [10]</p> <p>4. That if the jury believe that Max Schmidt, the president, general manager and liquidating trustee of the Interstate Distributing Company, made the agreement with Connell Brothers, such as defendants testify he did make, and the company was solvent, his act and agreement bound the said company. Answer: This is affirmed. [11]</p> <p>7. That if the jury in this case believe that such a contract was made as testified to by defendants, the stock having been tendered to the plaintiff in open court, the jury may certify any amount that they find to be due by the plaintiff to the defendants. Answer: We answer this point by saying that the defendants have pleaded set-off in this case, and if the jury find that there is a sum due to the defendants over and above an amount sufficient to liquidate this, then the jury may certify the amount which they find to be due to the defendants. [12]</p> <p>If you find for the plaintiff, you will find for the amount of his claim, with interest from the dates I have referred to.</p> <p>[If you find for the defendants, you can either return a verdict generally for the defendants, or you may find for the defendants and certify the amount of the set-off which they claim is due from this company to them over and above the amount of the claim presented by the plaintiff.] [13]</p> <p>Certificate for defendants for $500.53. Defendants appealed.</p> <p>Errors assigned among others were (4-13) above instructions, quoting them.</p>

<p>Appeal, No. 2, March T., 1911, by defendants, from judgment of C. P. Adams Co., Aug. T., 1909, No. 139, on verdict for plaintiff in case of U. L. Glatfelter v. Emanuel Mendels and Abraham Mendels, trading as Mendels Bros.</p> <p>Trespass for the wrongful conversion of goods. Before Swope, P. J.</p> <p>At the trial when Emanuel Mendels was on the stand he was asked the following questions: Q. State whether or not you, or any person for you, has made demand on the defendants for the return of the property? A. We have. Q. How, in what shape was the demand made, telegraph, telephone, or how? A. You wrote a letter, that is all I know. Q. Please look at that letter.”</p> <p>Mr. Sheely. Objected to for the reason that the witness did not write the letter.</p> <p>Mr. Hersh. He was present at the time I wrote it. State whether or not you saw that letter prepared? “A. I did. Q. By whom was it prepared? A. By you.”</p> <p>The Court: What is the date of that letter? “A. July 26, 1909.” .</p> <p>The Court: You have testified the defendants occupied this building until October 15. “A. Yes, sir, they paid the rent, I do not know whether they were there.”</p> <p>The Court: I understood you to say you received the key from them on October 14, and the goods were removed—</p> <p>Mr. Hersh: Between July 22 and 24,1909. “Q. Exhibit 'D’ shown witness. State whether or not this letter was dictated in your presence? A. It was. Q. After the letter was written state whether or not it was read over to you by me? A. By you. Q. To whom was this letter dictated by me? A. To a young lady. Q. And after it was prepared it was read over to you? A. Yes, sir.”</p> <p>Mr. Hersh: Exhibit “D” offered in evidence.</p> <p>Mr. Sheely: For what purpose?</p> <p>Mr. Hersh: To show the demand on Mendels Bros, to return the property.</p> <p>Mr. Sheely: Objected to.</p> <p>The Court: Objection overruled, exception by defendant; bill sealed. [1]</p> <p>“July 23, 1909.</p> <p>“Mendels Bros.,</p> <p>“No. 115 Hopkins Place,</p> <p>“ Baltimore, Md.</p> <p>“Gentlemen:—</p> <p>“I have been this day retained by U. L. Gladfelter of Adams County, who has placed in my hands for collection a claim of $300.00 for damages sustained by him by your trespass in the removal of some valuable fixtures and personal property, owned by him and leased to you, and which were recently removed from his wrapper factory at East Berlin, Adams County, Pa. This property so removed by you consisted of the following articles, to wit: 48 poplar tables, by 1 foot and 2 inches; 26 iron stands; 47 transmitters; 48 split pulleys; 48 iron pedals; 48 pedal rods, 94 pedal brackets; 84 feet of machine table troughs; 95 feet of shafting.</p> <p>“Unless this matter is arranged or the goods returned to Mr. Gladfelter within the next ten days, proceedings will be instituted against you by foreign attachment in Adams County, and we will be compelled to enforce our rights in the premises. Under your written contract with Mr. Gladfelter, your conduct in this matter has been illegal and irregular in every way, and unless we hear from you within the time mentioned, proceedings will be instituted without further notice or delay.</p> <p>“Yors truly,</p> <p>“W.M. Hersh,”</p> <p>“Q. All the goods that are mentioned in there are goods which you leased to them and what they took away? A. I did not know they had taken away the electric fixtures nor the tables, but everything that is in there they did take.” Mr. Hersh reads exhibit “D” to jury.</p> <p>Plaintiff presented these points:</p> <p>4. A written contract is presumed to contain the whole contract between the parties, and the jury must so find unless they are satisfied by clear and- convincing evidence that another part of the agreement was in fact made at the same time, but was omitted by fraud, accident or mistake. Answer: This point is affirmed in connection with our general charge. [3]</p> <p>5. Where a word has acquired a particular meaning in a trade or business, that meaning may be applied in construing the contract. Answer: This point is affirmed. [4]</p> <p>6. If the jury believe from the evidence that the word “Machines” has a regular trade meaning and that the same is the trade meaning for machine heads only and does not apply to power tables or other equipment, the jury can apply this meaning in construing what the contract was. Answer: This point is affirmed. [5]</p> <p>The court charged as follows:</p> <p>Gentlemen of the jury: The plaintiff has brought this action for the purpose of recovering from the defendant firm certain damages which he alleges he suffered by reason of the defendant removing from the plaintiff’s sewing factory in East Berlin, on July 22 last, certain personal property without authority or legal right so to do. The defendant’s defense to this action is that the removal of the property from the sewing factory of the plaintiff, except what they bought and paid for to the plaintiff, they had a legal right so to remove. The plaintiff’s action and the defendant’s defense is based upon an article of agreement in writing, selling and leasing certain property, bearing date September 10, 1907. The plaintiff’s claim is based upon the article as it is written. The defendant’s defense is based on the article as written and also on certain oral declarations alleged to have been made by the plaintiff contemporaneous with the preparation and signing of the written agreement, and without which oral arrangement and agreement the defendant alleges the defendant firm would not have signed the written agreement.</p> <p>[We instruct you, gentlemen, that when an agreement is reduced to writing it is presumed to contain the whole contract between the parties, and the jury must so find unless you are satisfied that the instrument was obtained by fraud, accident or mistake, or that there is an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed, then parol evidence can be given to prove fraud, although it contradict the instrument; but in such case the evidence must be clear, precise and indubitable, not in the sense that there must be no opposing evidence, but in the sense that it must carry clear conviction of its truth.] [6]</p> <p>[We also instruct you that where a word has acquired a particular meaning in a trade or business that that meaning may be applied in construing the contract.] [7]</p> <p>Verdict and judgment for plaintiff for $346.70. Defendants appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; and (3-7) above instructions, quoting them.</p>

<p>Appeal, No. 17, Oct. T., 1910, by defendant, from decree of C. P. No. 5, Phila. Co., Dec. Term, 1907, No. 812, on bill in equity in case of Stuart Wood v. City of Philadelphia, Henry Clay, director of public safety, John M. Walton, city controller, and Stephen J. Mulholland.</p> <p>Bill in equity for an injunction to restrain the further employment of Stephen J. Mulholland in the city’s employ as a hoseman.</p> <p>Staake, J., stated the facts to be as follows:</p> <p>The complainant is a citizen and taxpayer of the city of Philadelphia.</p> <p>The defendant, Henry Clay, is the director of the department of public safety of the city of Philadelphia. The defendant, John M. Walton, is the controller of the county of Philadelphia, and as such is charged with the duty of signing all warrants for salaries to be paid to employees of the city of Philadelphia. The defendant, Stephen J. Mulholland, is an employee of the city in the department of public safety whose appointment was alleged to be illegal and void for reasons averred in the said bill.</p> <p>On December 17, 1906, Robert J. McKenty, then director of the department of public safety in the city of Philadelphia, notified, in writing, the civil service commission of the city that he had selected Stephen J. Mulholland, residing at No. 422 Queen street, in the city, for the appointment to the position of hoseman in the bureau of fire in the department of public safety at a salary of $900 per annum, the appointment dating from December 12, 1906.</p> <p>Stephen J. Mulholland was a son of William J. Mulholland, an honorably discharged soldier who had served in the Spanish-American and Philippine Wars.</p> <p>The position of hoseman, in the bureau of fire in the department of public safety, in the city of Philadelphia, is a position in the competitive class of the classified civil service by virtue of the provisions of: “An Act to regulate and improve the civil service of the cities of the first class in the Commonwealth of Pennsylvania” approved March 5, 1906, P. L. 83.</p> <p>Appointments to positions in the competitive class of the classified civil service of the said city can be lawfully made only by selection from among four persons certified to the appointing officer by the civil service commission, such persons being those standing highest on an eligible list secured as a result of a competitive examination held in accordance with the provisions of the act.</p> <p>The civil service commission had, prior to December 12, 1906, held a competitive examination of applicants for appointment to the position of hoseman in the bureau of fire.</p> <p>In consequence of this examination the commission had, at the time of the appointment of Mulholland, an eligible list of candidates who had passed examination for the position of hoseman in the bureau of fire, but the said Mulholland was not on the eligible list, nor had he at any time passed a competitive examination for the position of hose-man.</p> <p>The said Mulholland did, on or about December 17, 1906, assume the position of hoseman and ever since that date, acting under the authority conferred upon him by his appointment, he has night and day served the city of Philadelphia as a hoseman connected with Engine Company No. 22, and Engine Company No. 3, being now temporarily detailed to Engine No. 11. During this employment he has performed all the duties and rendered all the services required of or incident in any way to the position, and has received payment at the rate of $900 per year from the city of Philadelphia. He has now had over one year’s experience and practice in fighting fire, and it is admitted by the complainant that he is fully qualified to fill the position of hoseman.</p> <p>Henry Clay became director of the department of public safety of the city of Philadelphia in place of Robert J. McKenty, and has retained Mulholland in the employ of the bureau of fire under his original appointment.</p> <p>The appointment of Mulholland was made under the authority of a certain proviso to sec. 1 of the said act of March 5,1906, reading as follows:</p> <p>“Provided,- that the provisions of this act shall not apply to any soldier, sailor or marine honorably discharged from service in any war for the United States government, nor to their widows or children.”</p> <p>The appointment of the said Mulholland was not made under the provisions of art. XII, sec. 3, of the Act of June 1, 1885, P. L. 37, entitled “An Act to provide for the better government of cities of the first class in this Commonwealth.”</p> <p>The complainant averred that he had no adequate remedy at law and prays that a permanent injunction issue against the city of Philadelphia and Henry Clay, director of the department of public safety of the city, enjoining and restraining them from retaining the said Stephen J. Mulholland, in the employ of the said bureau of fire as hoseman, or in any other capacity, under his said alleged illegal and void appointment, and against . John M. Walton, controller of the county of Philadelphia, enjoining and restraining him from signing any warrant in favor of the said Stephen J. Mulholland.</p> <p>All of the defendants denied that the appointment of the said Stephen J. Mulholland was illegal.</p> <p>The city of Philadelphia and Henry Clay, director of the department of public safety, averred that Mulholland is a steady, honest, sober and capable man; that he has served as a hoseman as already stated herein; that he has shown himself to be a man of great ability and efficiency as a fire fighter; that the purpose of the act of 1906, as stated in its title and intended, is to improve the civil service; that these proceedings, if successful, will not be calculated to improve the service of the bureau of fire of the said city, but will, on the contrary, tend to injure it greatly by discharging from said service a man of experience, efficiency and competence in the performance of the duties of his appointment; that the civil service of the city of Philadelphia and the service of the bureau of fire will be improved in a much more satisfactory way by the retention of a competent man, who has had a year’s experience in the performance of his duties, rather than by the substitution for him of an inexperienced man, whose only qualification for the work is that he has been able to pass an examination required of him by the civil service board.</p> <p>The court entered a decree in accordance with the prayers of the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 17, March T., 1911, by defendants, from order of C. P. Luzerne Co., March T., 1909, No. 503, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John W. Moore, receiver for the Asphalt Paving Company of Georgia, v. John P. Schmitt and Joseph L. Dunn, individually and copartners as Schmitt & Dunn, and also trading sometimes as the Wilkes-Barre Asphalt Company.</p> <p>Assumpsit on a contract.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals — Assignments of error — Exceptions to auditor’s report— Paper-book — Contract.</p> <p>1. An assignment of error covering five exceptions to an auditor's report is in violation of the rule of court and will not be regarded.</p> <p>2. An assignment of error to a construction placed upon a contract by the court below will not be considered, where the contract which was in writing is not printed in the paper-book, and the oral evidence is insufficient to establish it.</p> <p>Husband and wife — Assignment of interest on bond.</p> <p>3. Where a wife assigns to her husband “the interest now due, or that may become due or accrue” on a certain bond, but reserves to herself all interest in the principal debt secured by the bond, and the right to receive and enforce payment of the bond, and the wife collects the principal of the bond one year after the assignment and more than ten years before her death and does not reinvest the proceeds, the husband cannot, after the death of his wife, claim an amount of money equal to the interest on the bond during the last ten years of his wife’s life.</p>

<p>Appeal, No. 161, Oct. T., 1910, by defendants, from judgment of C. P. Schuylkill Co., Jan. T., 1909, No. 217, on verdict for plaintiff in case of James Wilson v. Bessie McCluskey et al.</p> <p>Trespass to recover damages for injuries from water. Before Shay, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented, among others, the following points;</p> <p>1. If the jury believe that the plaintiff permitted the ground in the passageway to the south of his property to bank up against his sills and that the decay in the sills was caused by his negligence in allowing that passageway to have a deposit of earth above his foundation wall, then he cannot recover- for the damage he claims for the sills. Answer: This we refuse. [1]</p> <p>6. Inasmuch as the evidence shows that the plaintiff and defendants own adjoining lots, that they are situated on a sloping hillside, so that the surface drainage from rain, etc., ran over both lots from the front to the. rear, and that the most pronounced slope is from the property of defendants north to the property of the plaintiff; that the defendants have done nothing except improve the front part of their lot by erecting thereon a frame dwelling, and they only graded their lot sufficiently to make such improvements; that they have not changed the character nor direction of the flow of water, nor added to the volume of it except that in consequence of the raised grade for the foundation to their house much of the water that had previously spread over both properties now runs over the plaintiff’s, and it does not appear that the defendants were negligent in making their improvements, .nor that they closed any natural channel, the plaintiff cannot recover. Answer: We say to you that if you believe that that is the evidence in the case, then we affirm that point, calling your attention to what we said in our general charge, that the right to use one’s own property must prevail, but the owner may do so without compensation only where the resulting damage is not avoidable at all where the expense of obviating it would be practically prohibitory; and we reserve for our future consideration the question whether there is any evidence which entitles the plaintiff to recover. [2]</p> <p>The court charged in part as follows:</p> <p>[If you find from the evidence that that damage did result from the negligence of the defendants in the way in which they built their house and maintained their water spout, so that it threw this water over upon the land of the plaintiff, then you would be justified in finding that the defendants were negligent and thereby injured the plaintiff.] [3]</p> <p>[The plaintiff contends that prior to the time that Mc-Cluskeys built their property there was no water in the cellar, and it was a nice, dry place. The witnesses of the plaintiff, with the exception of two, testify to that. [4]</p> <p>Verdict and judgment for plaintiff for $84.00. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them, and (5) refusal of binding instructions as stated in the opinion of the Superior Court.</p>

<p>Appeal, No. 17, March. T., 1910, by defendant, from judgment of C. P. Dauphin Co., Sept. Term, 1907, No. 7, on verdict for plaintiff in case of Exchange Mutual Fire Insurance Company v. The Consolidated Mutual Fire Insurance Company of Harrisburg.</p> <p>Assumpsit on a contract of reinsurance. Before Kunkel, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented, inter alia, the following points:</p> <p>3. If the jury believe that the plaintiff received a larger pro rata premium from George W. Perry than the policy of reinsurance issued by the defendant company, this in express violation of the rider attached to said policy and made part thereof, then the verdict should be for the defendant.</p> <p>The Court: Refused. [1]</p> <p>4. If the jury believe that the plaintiff received eighty per cent of the regular board rate for premium, and then obtained a policy from the defendant company at seventy-five per cent of the board rate, then the verdict must be for the defendant!</p> <p>The Court: Refused. [2]</p> <p>11. Under all the evidence in the case the verdict must be for the defendant.</p> <p>The Court: Refused. [3]</p> <p>13. If the jury believe that the building on which this reinsurance was issued was used for any other purpose than a general storeroom, then the verdict should be for the defendant.</p> <p>The Court: Refused. [4]</p> <p>Verdict and judgment for plaintiff for $546.43. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 29, March T., 1911, by Richard K. Manning, from decree of O. C. Luzerne Co., No. 572 of 1909, sustaining appeal from Register of Wills in Estate of Annie E. Manning, deceased.</p> <p>Appeal from register of wills.</p> <p>Freas, P. J., stated the facts to be as follows:</p> <p>The testatrix died Friday night, at 10 o’clock, October 15, 1909, leaving to survive her a husband, Richard K. Manning, and a daughter by a former husband, Mrs. Blanche Randall, the appellant. The testatrix executed two wills, the first dated November 25, 1905, which is the probated will, and the second in March, 1909. The day previous to her death, testatrix directed her maid to get a paper for her, and being unable to find it, the maid brought the tray of her trunk to her. Testatrix selected an envelope and told the maid to burn it up, which was done at once in her presence. There seems to be no doubt that the envelope contained the second will. The maid differs in her testimony as to the exact language used at the time. In one place she says, “She told me to open the stove door to see if it was burned, and I said, ‘ Yes, it is,’ and she said, 'That’s my will.’ ”</p> <p>“Q. What did she say to anybody afterwards? A. She did not say nothing, only she said she was going to have a new will made.” She also gives the words of testatrix as being, “That is a will of mine,” and, “That was one of my wills.”</p> <p>The husband testifies that at two or three o’clock on Thursday morning preceding her death, his wife gave him the first will. She got it from under her pillow and it was in an envelope. As she handed it to him she said, “Dick, that is my will, you take care of it, be careful with it, and you keep it, and don’t let anybody have it.”</p> <p>It will be observed that the alleged republication of the first will occurred some hours before the burning of the second will. The republication was ineffectual at the time it was made, for the reason that there was then a second and later will in writing in her immediate possession, which had not then been repealed according to the requirements of the Act of April 8,1833, P. L. 249. The intention of the testatrix to republish her first will must be shown by the same number of witnesses, and be as conclusive of the facts as would be required to establish an original will: Jones v. Hartley, 2 Wharton (Pa.), 103. The only witness to the burning of the later will testifies that testatrix said at the time that "she was going to have a new will made.” This statement entirely negatives an intention to republish her first will. The revocation of the second will has been legally proved. The republication of the first will rests on the testimony of only one witness, whereas, the law requires at least two witnesses, as in proving an original will: Wilson’s Will, 12 Pa. Dist. Rep. 649.</p> <p>The question as to whether a will may be republished by parole in Pennsylvania seems to be settled in Kerchner’s Est., 41 Pa. Superior Ct. 112, which reviews all the authorities, including Forquer’s Est., 216 Pa. 331.</p> <p>As the disposition of this appeal rests wholly on matters of law, we deem it unnecessary to discuss the testimony further than we have done.</p> <p>And now, November 21, 1910, the áppeal from the decision of the register of wills in probating the paper writing dated November 25, 1905, as and for the last will and testament of Annie E. Manning, deceased, is sustained, and the probate thereof and the letters testamentary granted thereon are revoked.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Evidence—Contributory negligence.</p> <p>1. In an accident case it is not necessary for the plaintiff to show by affirmative evidence that he was free from contributory negligence. All he is required to do is to present a case which, on its face, does not show contributory negligence.</p> <p>Negligence — Automobile—Killing horse — Contributory negligence— Case for jury.</p> <p>2. In an action against an owner of an automobile for the killing of a horse, it appeared that at the time of the accident plaintiff was driving a buggy in a city street leading the horse that was killed behind a buggy. He found himself in the rear of two coal wagons which were keeping to the right, so that he was compelled to turn to the left. After passing one wagon and being still opposite to the second, he saw an automobile approaching at a rapid rate, with one wheel in the car track. Finding that he had not room between the automobile and the coal wagon, he turned further to the left until he came within two feet of the curb. The automobile passed the buggy, then inclined to the right and struck the horse. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p> <p>Practice, C. P. — Trial—Points—Buie of court.</p> <p>3. Where a rule of court required that “a copy of the points shall be presented to the court and a like copy to the opposing counsel before the close of the argument to the jury,” a point presented by the defendant during the final argument of the plaintiff, is presented too late, and the refusal of the trial judge to answer is not reversible error.</p>

<p>Practice, C. P. — Rules of court — Admissions—Evidence—Affidavit of defense.</p> <p>1. Where a rule of court provides that facts alleged in a statement of claim, if not specifically denied by affidavit are to be'regarded as true, a plaintiff cannot avail himself of his statement for the purpose of establishing a fact, if it appears that the fact is denied in a supplemental affidavit of defense filed by permission of the court after the second trial and before the third trial of the cause.</p> <p>Insurance — Mutual fire insurance — Notice of loss — Proofs of loss.</p> <p>2. A letter sent by an insured to an insurance company stating merely that there was a fire, but giving no information as to what was consumed, or whether the property destroyed, if destroyed at all, was covered by the policy, is an insufficient notice of loss, although the loss may have been total, and will not take the place of the proof required by the policy.</p> <p>3. In an action upon a fire policy, evidence of an adjustment sufficient to establish a waiver of proofs of loss, is ineffectual for that purpose, where the only thing shown is that a certain person, naming him, came “to look over the damage,” without any proof to show that the person named had any authority to adjust the loss, or to represent the company in any way.</p>

<p>Appeal, No. 4, March T., 1911, by defendant, from order of C. P. Luzerne Co., March Term, 1896, No. 83, discharging rule to open judgment in case of Adelaide Jacobosky v. Joseph Zborowjan.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to open judgment.</p>

Appeal, No. 25, March T., 1911, by defendant from order of C. P. Lackawanna Co., March T., 1910, No. 823, quashing writ of certiorari in case of George Wahl v. John B. Poore and D. N. Gallen, Garnishee. Certiorari to a judgment of a justice of the peace. Before Newcomb, P. J. The opinion of the Superior Court states the case. Error assigned was order quashing writ of certiorari.

<p>Appeal, No. 31, March T., 1911, by defendant, from order of C. P. Lackawanna Co., Sept. T., 1906, No. 558, discharging rule to strike off judgment of justice of the peace in case of Mary and George Sosnowiski and Mary Sosnowiski v. Samuel Moskovitz.</p> <p>Rule to strike off judgment as to Mary Sosnowiski.</p> <p>Rule on part of plaintiff to amend the record.</p> <p>Edwards, P. J., filed the following opinion:</p> <p>The judgment in this case was entered in 1906 on a transcript of proceedings had before a justice of the peace. The judgment was entered against Mary and George Sosnowiski. The attorney for Mary Sosnowiski obtained a rule to show cause why the judgment entered against Mary Sosnowiski should not be stricken off as to her, for the reason that the transcript would not support a judgment against her. This contention would prevail were it not that an application has been made on. behalf of plaintiff to amend the record, so that the transcript shall correctly represent the proceedings as they were actually recorded by the justice on his docket. The depositions taken show that it was a constable who wrote out the first transcript. It is apparent that the constable’s knowledge of English is quite imperfect. The transcript was not a correct copy of the proceedings as they appear on the justice’s docket. We have now before us a corrected record, and it is such as to support the judgment against Mary Sosnowiski.</p> <p>The application to amend the record in the present case is not for the purpose of amending a proceeding before a justice. The common pleas would have no jurisdiction in such a case. The record of the proceedings before the justice is not changed in any particular.</p> <p>The case of Justice v. Meeker, 30 Pa. Superior Ct. 207, is conclusive against the contention of the defendant. In that case Judge Porter says:</p> <p>"The order of the court permitting the amendment of the transcript was right; this was not an amendment of the proceedings before the justice, but the correction of mistakes in the transcript so as to make it correctly show what proceedings were had before the justice. When there are mistakes in a transcript they may be, and ought to be corrected. The judgment is founded upon the record of the justice, and the transcript should be made to truly present that record; whether it does so is to be determined by the court below, upon inspection of the docket, and all the papers and evidence before them: Caldwell v. Thompson, 1 Rawle, 370; Miles v. Tanner, 3 P. & W. 95; Lyon v. Chalker, 2 Watts, 14.”</p> <p>The rule to strike off the judgment is discharged and the rule to amend the record is made absolute.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Larceny—Check—Proceeds of check — Insurance solicitor.</p> <p>Where an insurance solicitor induces a person to take out insurance policies on his life to the amount of $100,000 on the promise that the first annual premium shall be only $325, instead of $5,283, which was the regular premium, and further induces him to draw a check for the larger amount to the order of cash or bearer on the ground that it would be more regular, although he himself was only to receive $325, and the insured and the solicitor go to the bank together and the proceeds of the check are placed upon the desk in front of the parties, and the solicitor seizes all of the money and leaves the bank before the insured could get it, the solicitor may be convicted of larceny.</p>

Appeal, No. 20, March T., 1911, by defendant, from order of C. P. Luzerne Co., Feb. T., 1910, No. 844, making absolute rule for judgment for want of a sufficient affidavit of defense in case of M. W. Guernsey v. J. C. Moon. Replevin for one buckskin horse, one buggy and one set of single harness. Before McClure, P. J., specially presiding.

<p>Common carriers — Attachment of goods — Void attachment — Act of July 12,1842, P. L. SS9.</p> <p>1. Where a common, carrier permits goods of another to be taken from its possession by a void writ of attachment, it will be liable to the owner for the value of the goods.</p> <p>2. A writ of attachment issued under the Act of July 12, 1842, P. L. 339, by a justice of the peace to a constable returnable seven days after the date of the writ and not “not less than two, nor more than four days from the date thereof,” is an invalid writ, and if the constable under such a writ is permitted to take goods from the possession of a common carrier, the latter will be liable to the owner for the value of the goods.</p>