Volume 5 — Pennsylvania Superior Court Reports

<p>Appeal, No. 46, Oct. T., 1897, by Jeremiah G. Donoghue, from judgment of Q. S. Plrila. Co., March T., 1897, No 706, refusing a retail liquor license.</p> <p>Rice, P. J., dissents.</p> <p>Petition for retail liquor license. Before Sulzbebgeb and McMiciiael, JJ.</p> <p>It appears from the record that an application of Jeremiab G. Donoghue fox a retail liquor license at the southeast corner of Eighth and Vine streets, Philadelphia, was filed in the court of quarter sessions, Philadelphia county, No. 737, March T., 1896. This application was at first refused but upon a petition for a rehearing on May 12, 1896, an opinion in writing was filed as follows by Willson and Bbjbgy, JJ.</p> <p>“ In the matters of the petitions filed for a rehearing of applications for licenses to sell liquor.” (There were a large number of such petitions to which this general opinion applies, among them being the present case, No. 737, of Marcli term, 1896.)</p> <p>So much of this opinion as relates to this case sets forth that the court is satisfied that the applicant herein had made vigorous and unusual efforts to comply with the requirements of the ■aw, and that any instance of apparent violation had resulted from circumstances which made discrimination difficulty that the court was unwilling to refuse license on the ground that the law had been violated; that they were, however, of the opinion that it would be to the advantage of the immediate locality to be relieved from the existence of a saloon; and concludes that if the applicant would file a stipulation that he would not again apply for a license in the same locality, license would be granted, “ otherwise the order already made will stand.”</p> <p>On February 6, 1897, the application of Jeremiah G. Donoghue for a retail liquor license at the same place was filed in the court of quarter sessions of Philadelphia county, March term, 1897, No. 706, the application bonds being in the usual and proper shape.</p> <p>On March 8, 1897, a remonstrance of the Law and Order Society of Philadelphia was filed.</p> <p>On March 24,1897, order (indorsedon application)’: “ License refused. C. B. M., M. S., March 24, 1897.”</p> <p>April 5,1897, official report of Fred. D. Biddle, official stenographer of the court of quarter sessions of Philadelphia county, certifying the same to be a full, true, accurate and correct transcript of the official stenographer’s notes of the hearing in the matter of the application of Jeremiah G. Donoghue for a retail liquor license at the southeast corner of Eighth and Vine streets, on March 23,1897, and of the oral opinions of Sulzberger, J., and McMichael, J., delivered at the said hearing.</p> <p>Certificate and order of Sulzberger and McMichael, JJ. (appended to the foregoing report of official stenographer) :</p> <p>Approving the said report of the hearing and opinions, and directing “ that said report of both the hearing and our opinions be filed of record in the said matter.”</p> <p>The opinions of the court below, stenographically reported in order to be filed of record, are as follows :</p> <p>By Sulzberger, J.:</p> <p>Upon the question involved in the application of Jeremiah G. Donoghue the court is divided.</p> <p>I, for my part, look upon the subject in this manner: This court has established the general rule that licenses heretofore granted shall be renewed unless a valid remonstrance is filed against them. A remonstrance has been filed against Mr. Donoghue. No evidence has- been offered tending in any Avay to impeach either the general character of the saloon or the general character of Mr. Donoghue, or the necessity of the place for the public convenience. Were there nothing more, it would therefore be simply necessary to grant the license. But there is something more. There is on record a stipulation filed last year, in which Mr. Donoghue wrote and signed the following paper:</p> <p>“ I hereby pledge myself, in consideration of a license being granted me for the year to June 1,1897, not to mate application for a renewal of said license for the above locality.” The contention is presented that the application this year, being in contravention of the terms of that stipulation, is such an act as is inconsistent with the moral character and the fitness required by the license law of 1887. In my opinion the question lies deeper than that; it goes to the fundamental right of the citizen and the enjoyment of freedom under the constitution of Pennsylvania. In my judgment a court has no power or authority whatever except that which is conferred upon it by the constitution and the laws, and a stipulation or a promise exacted by a court not in conformity to the constitution and laws, and outside of any authority by them conferred, is, in my judgment, an absolute nullity, and any act based upon it imposed upon a citizen stands upon no higher ground than an act or condition unlawfully imposed by a private person. I am of the opinion, therefore, that we erred last year in imposing this stipulation, and that the stipulation should be stricken from the record as a paper of no validity. It follows necessarily that if the act is null it can have no legal effect upon the character of the applicant. Not that a refined kind of ethics would refrain from criticising him for not complying with this stipulation, even though it should not have been exacted from him. But I take it that the provision of the act of 1887, requiring that a person applying for a license for the sale of liquors at retail shall be a citizen of the United States, of temperate habits, and good moral character,-is not to be understood as setting up the highest ethical character. It means good moral character as it is used among men in the oi’dinary business of life, not that high type which ought to form the ideal of every virtuous person. I would therefore grant the license; but, as my learned colleague does not agree with me in that conclusion, for reasons which he will presently state himself, the license must be refused.</p> <p>By McMichael, J.:</p> <p>In my opinion this license should be refused. The act of 1887 was passed for the public good. The object of the legislature was the public good, and the gain or loss of the tavern keeper is a secondary consideration, material chiefly as a motive for a proper compliance with the law. These are the words of a great jurist, and well express what the intention of the legislature was in the passage of this act. [In passing upon the requirements of an applicant the act provides, “ that licenses for the sale of vinous, spirituous, malt, or brewed liquor at retail, in quantities not exceeding one quart, shall be issued to citizens of the United States of temperate habits and good moral character,” and without expressing any opinion upon the right of this court to impose stipulations, I cannot consider a citizen of the United States one of good moral character who voluntarily files a stipulation that he will not apply again for the succeeding year before this court, and in violation of that agreement does make an application for a license. I do not decide this on high ethical grounds, though I am inclined to think that the education the old Persians gave their children, “to ride and shoot and tell the truth,” is the best training that men may have; but I decide it under the requirements of the act of assembly, which puts the burden upon me, as one of the judges of this court, of entering a deliberate judgment, if I consent to grant .this license, that a man is a man of good moral character who breaks a promise voluntarily obtained, or voluntarily offered — • for I cannot agree that this court exercised duress upon the citizen. It may have exceeded its constitutional power, for I have grave doubts whether this court has the right to put any such stipulation upon an applicant for a license. But when a man has made a promise last year not to apply for a license this year, and has come into court with an application for a license in violation of that promise, my judgment and my judicial opinion is that he is not a man of good moral character as contemplated by the act of assembly.] [2]</p> <p>Upon the question of the stipulation I have no desire at this time to dissent from my learned colleague. On the contrary, I am inclined — while we do not decide that question now — to accede to what he has said upon that question.</p> <p>Stjlzbeeg-ek, J.: It is therefore understood that we do not now decide upon the validity of stipulations referring to the conduct of the business. Our decision here only refers to the validity of stipulations referring to some act to be done or refrained from after the expiration of the license.</p> <p>April 7, 1897, appeal of Jeremiah G. Donoghue from the judgment of the said court of quarter sessions to the Superior Court of the commonwealth of Pennsylvania.</p> <p>JEri'ors assigned were (1) in refusing a retail liquor license applied for. (2) In refusing a retail liquor license as applied for for the reasons set forth in the opinion of McMichael, J., filed of record in the matter of the application for said license in the following words (reciting a portion of the opinion oE McMichael, J., as set out in brackets above). (3) In deciding that the stipulation filed by Jeremiah G. Donoghue that he would not apply again for the succeeding year before the license court was his voluntary act. (4) In deciding that the appellant is not a man of good moral character within the meaning of the act of assembly, when no evidence was presented of allegation made which justified such decision. (5) In deciding that the act of applying for a license after having previously filed a stipulation agreeing not to do so, is per se conclusive evidence that the appellant is not of good moral character.</p>

<p>Appeal, No. 134, April T., 1897, by defendant, from decree of C. P. Jefferson Co., Sept. T., 1896, No. 2, overruling demurrer and sustaining special injunction.</p> <p>Bill for injunction. Before Greer, P. J.</p> <p>The plaintiff’s bill set up that he had contracted for a supply of fuel gas from defendant company at a specific price for so long as he might desire to continue the use thereof, with power to cancel the contract if the supply became deficient; that defendant company refused to carry out the contract and shut off the supply of gas from defendant’s house and office; that there was no other source from which to obtain the supply of gas; that his house and office were equipped for natural gas and that the injury and damage done and threatened were incapable of ascertainment and that he would suffer irreparable injury. Defendant company filed a demurrer to plaintiff’s bill, setting forth the following reasons :</p> <p>First. The contracts upon which plaintiff’s bill is founded, being revocable at the pleasure of the plaintiff, a court of equity has no jurisdiction to decree specific performance.</p> <p>Second. The plaintiff’s bill is not sufficient to support a decree for equitable relief.</p> <p>The court below overruled the demurrer and made a preliminary injunction directing the defendant company to reconnect its service with plaintiff’s establishment and refrain from cutting off his supply. Defendant appealed.</p> <p>Errors assigned among others were (1) In not dismissing plaintiff’s bill. (2) In entering definitive decree after overruling its demurrer instead of requiring defendant to answer under the equity rules. (8) In not sustaining the defendant’s first reason for its demurrer, reciting same. (4) In not sustaining defendant’s second reason for its demurrer, reciting same. (5) In overruling demurrer.</p>

Appeal, No. 27, April T., 1897, by-defendant, from judgment of C. P. No. 3, Allegheny County, May Term, 1892, No. 384, on 'verdict for plaintiff. Trespass to recover damages for death of plaintiff’s husband claimed to have resulted from defendant’s alleged negligence* Before Kehnedy, P. J. Plaintiff, with her husband, lived in the city of Allegheny and their house was heated by means of natural gas which it is the business of the defendant company to supply as fuel.

Appeal, No. 64, April T., 1897, by Joseph T. Ritchie et al., from decree of Q. S. Allegheny Co., Dec. Sess., 1895, No. 21, incorporating the borough of Emsworth. Petition for the incorporation of the villages of Clifton and Emsworth into a borough. Before EwenTG-, P. J. On January 18,1896, a petition was presented ashing for the incorporation of the villages of Clifton and Emsworth into a borough.

<p>Appeal, No. 154, April T., 1897, by George Renten et al., from decree of Q. S. Allegheny Co., 1895, No. 29, refusing petition for incorporation of a borough.</p> <p>Petition for incorporation of the village of Castle Shannon. Before Slagle, J.</p> <p>On July 20, 1895, a petition was filed in due form for the incorporation of the village of Castle Shannon into the borough of Linton, and an order made referring the petition to the grand jW7-</p> <p>On August 31, 1895, George Smith and others filed exceptions.</p> <p>On September 7, 1895, proofs were filed that the following notice appeared in the Pittsburgh Leader, on August 3, 5, 6, 7, 8 and 9, and in South Pittsburger, a weekly paper, August 10, 17, 24 and 31, to wit: “Notice is hereby given that a petition was presented on July 20; 1895, to the court of quarter sessions of Allegheny county, Pa., by George Renten et al., for the incorporation of a portion of Baldwin, Scott and Bethel townships, said county, including Arlington and Grove Stations, to wit: the village of Castle Shannon, into a borough.”</p> <p>On the 28th of September, 1895, the original petitioners filed a petition in which was set out the fact that the original petition had been filed; that an order had been made submitting it to the grand jury; that, on the 26th day of June, 1895, a law had been enacted abolishing the law requiring the grand jury to pass on the petition, and requiring the court to investigate the matter, and prayed that the order submitting the petition to the grand jury be revoked, and that an order be made fixing the time and place when and where the court would hear the evidence.</p> <p>On the 28th day of September, 1895, on the presentation of the petition, the court made an order revoking the order submitting the petition to the grand jury, and fixing the place for the hearing, criminal court No. 2, and the time upon the argument list of the present term.</p> <p>On the 14th day of December, 1895, on the application of the petitioners to the court to fix a time and place for hearing the matter, the counsel for the exceptant, at bar, raised the following exceptions to such hearing.</p> <p>First. That the act of 1895 is unconstitutional, because it is an amendment to the acts of 1834 and 1871, and confers powers on the court which have been exercised by the grand jury.</p> <p>Second. That having given notice under the acts of 1834 and 1871, it is not within the power of the petitioners by a mere notice to change the purpose.</p> <p>Third. The notices are insufficient, because they give no information of such purpose.</p> <p>Fourth. That the court, under the act of 1895, has no right to exercise the powers conferred except during the term next succeeding the filing of the petition.</p> <p>Fifth. That the notices published in the “ Pittsburgh Leader ” and “ South Pittsburger ” were not published frequently enough to meet the requirements of the act of June 26, 1895.</p> <p>On February 24, 1896, the court refused to proceed with the hearing, sustaining the last four of the above exceptions, and suggested that perhaps the first exception should be sustained also, and filed an opinion.</p> <p>On November 25, 1896, the court made an order adjudging and decreeing that the petition for hearing, etc., be dismissed at the cost of petitioners, for the reasons given in the opinion heretofore filed.</p> <p>Petitioners appealed.</p> <p>Errors assigned were (1-5) In not overruling exceptions one to five. (6) In not finding the act of June 26, 1895, constitutional. (7) In finding that “the notices are insufficient because they are inconsistent with the record as it then stood, and were not made under direction of the court.” (8) In finding “that the power of the court is exhausted.” (9) In not finding that the notices in the Pittsburgh Leader and South Pittsburger met completely the requirements of the act of June 26, 1895. (10) In not finding the proceedings were regular. (11) In making the following order, to wit: And now, November 25, 1896, this matter having been fully heard and considered by the court, for the reasons given in the opinion heretofore filed, on motion of J. McF. Carpenter, attorney for exceptants, it is now ordered and adjudged and decreed that the petition for hearing, etc., be dismissed at the cost of petitioners.</p>

<p>Boad law — Benefits cannot be set off against damages when found separately.</p> <p>Benefits amounting to $292 having been assessed against a property for grading of a street-, plaintiff appeals from the report of the viewers in not allowing him any damages, an issue being framed. The jury find that plaintiff had suffered damages to the extent of $500. On a rule for a mandamus execution held, that defendant was not entitled to set off and deduct the benefits from the damages; that the city’s claim for the benefits is a lien, a proceeding in rem upon which it must proceed regularly upon sci. fa. while if deducted from the verdict for damages the plaintiff would be compelled to pay it as if it were a personal charge.</p> <p>Boad law — Municipal improvements — Appeal from separate findings of viewers — Estoppel.</p> <p>A local municipal improvement may benefit abutting property in one way and damage it in another.</p> <p>Viewers being appointed to assess damages and benefits arising from grading, paving, etc., under the Act of May 16, 1891, P. L. 65, the viewers must report the damage and benefits separately. An appeal may be so taken as to secure an issue framed as to both questions, but 'there is nothing in the scope of the statute to prevent the parties, jvith consent of the court, from limiting the scope of the appeal to one of the questions and when the appeal is taken from failure to award damages the plaintiff is estopped from asserting that the appeal ipso facto superseded'and wiped out the benefit assessment.</p>

<p> Usury may be implied from circumstances. </p> <p>The reservation of more than legal interest may be implied from circumstances ; when a debtor making payments specifically as interest, knowingly pays more than the legal rate it is a payment of usurious interest reserved or contracted for within the statutoiy meaning.</p> <p>Usury — Bight of recovery barred by the statute.</p> <p>A final settlement and payment having been made in 1887, of a loan secured by judgment on which usurious interest had been paid from time to time, a suit brought in 1889 to recover the usury is barred by the Act of May 28, 1858, P. L. 622.</p> <p>. Usury— Voluntary payment — Duress.</p> <p>There can be no duress in law except by an unlawful act. There is no duress involved in a threat to enforce a legal demand in a legal manner. Payments of usurious interest for extension of time made under threat of legal proceedings on an overdue obligation cannot be said to be extorted by duress or to be other than voluntary payments of usurious interest.</p> <p>Usury — When knowledge of presumed.</p> <p>Where a debtor knows at the outset the exact amount of interest accruing for a year at the legal rate, and thereafter voluntarily pays more than this sum annually as interest on the same debt, he will not be permitted to recover it back after the lapse of six months under the pretense that he did not know that the creditor was charging more than six per cent.</p> <p>Mistake, — Recovery of money alleged to have been overpaid.</p> <p>A settlement of accounts having been made when the plaintiff liad every means at hand of determining with accuracy the credits which should have been applied, it must be presumed that they were so applied and that the balance accepted to be correct was in fact the amount remaining due. A settlement so reached can be impeached only for fraud or mistake, and Ihe case should not be permitted to go to the jury in a suit to recover alleged overpayments when the evidence of fraud or mistake is so weak that it would be the duty of the court to set aside a verdict based on it.</p>

<p>Appeal, No. 172, April T., 1897, by W. D. Patton, from decree of O. C. Armstrong Co., Sept. T. 1894, No. 77, confirming administrator’s account.</p> <p>Exceptions to auditor’s report. Before Rayburn, P. J.</p> <p>Decedent died in 1894; letters of administration were issued to J. T. Gibson. No general appraisement list was filed. On February 25, 1895, the widow elected to take $300 in personal property and there was set aside to her by the appraisers personal property to the amount of $69.68. In the signing of the •formal receipt on the widow’s appraisement list by the widow, these words were added: “ And hereby claim the right to the balance of $300.00 for myself and family out of the real estate of said decedent.”</p> <p>This widow’s appraisement list was not filed until February 13, 1896, and was confirmed absolutely July 6, 1896. The real estate was sold on April 15,1896, for the payment of debts, for the sum of $396.50. The sale was confirmed and the account of the administrator referred to H. L. Golden, Esq., as auditor, for distribution.</p> <p>The auditor’s conclusions of law were as follows:</p> <p>CONCLUSIONS OF LAW.</p> <p>If a widow (who is neither executrix nor administratrix) makes a demand for an appraisement of her deceased husband’s real estate before an order of sale for the payment of debts is asked for, she may claim her exemption out of the fund arising from said sale, although no appraisement has been actually made.</p> <p>In order that the claimants may understand fully the position taken by the auditor, a few words are not out of place. The notice annexed to the receipt of the widow is certainty, when considered in a reasonable manner, a demand for an appraisement of the realty. No special form of words is necessary and the notice referred to is sufficient to indicate to any trustee that the widow wished the balance of her $300 exemption to be awarded her out of the real estate according to law. The authorities in reference to a widow’s claim for her $300 exemption are not free from ambiguity. . . .• It certainty has been held that a widow can get her exemption only by demand for it and an appraisement of the real estate. This is the doctrine of Hufman’s Appeal, 81 Pa. 329‘; Nixon’s Appeal, 6 W. N. C. 496, and other cases. The two cases specialty mentioned have reference to a widow who occupies the dual relation o £ widow and executrix to the estate, where it is her duty both to demand an appraisment as widow and to have an appraisement made as executrix. Other cases however sustain the same doctrine where the said dual relation does not exist. There are many cases which hold that the widows’ exemption act of 1851 and the debtors’ exemption act of 1849 are in pari materia and are to be similarly construed — that an appraisement is a sine qua non — that where there has not been an actual appraisement of the real estate, although demand for such has been duly made, the widow (or debtor) cannot come in on a fund realized from the sale of such realty, but must bring an action against the officer refusing to malee such an appraisment if she wishes to recover her exemption. The auditor has, however, adopted the ruling of the Supreme Court in Good’s Appeal, 152 Pa. 63, which affirmed your honorable court in holding that a widow who makes her demand for her exemption before petition for sale of the realty for the payment of debts can come in on the funds realized from said sale. It is suggested that the price at which the realty is sold determines the question as to whether or not an actual appraisement is necessary — that if the land brings over $300, this indicates that an appraisement was necessary, if under that it was not. The auditor cannot agree with 'the claimant in this. This would work great uncertainty and in many cases make the judgment creditor who bids at the sale the master of the situation; he could give to or take from the widow, for whose protection the exemption law was enacted, her exemption. The law, as held by the auditor, injures no one. The judgment creditors had it in their power to know whether or not the widow had been paid and also whether or not she had made her claim for her exemption. The widow was living and the records of the court showed her demand at the date of the application to sell for the payment of debts. The rule adopted seems humane and in spirit with the progress of our times — injures no one, for sources of information as to the facts are open to those who wish to bid upon the realty, and is, in the opinion of the auditor, rendered necessary by the decision of the Supreme Court referred to.</p> <p>In accordance with the foregoing findings the auditor has •prepared the following schedule of distribution:</p> <p>SCHEDULE.</p> <p>Amount for distribution ...... $291.25</p> <p>Deduct costs of audit, R. S. Slaymaker, cert. etc. . . . . . . $ 4.00</p> <p>Armstrong Democrat and Sentinel, printing 4.00</p> <p>Union Free Press, printing . . . 4.00</p> <p>H. L. Golden, auditor’s fee .... 25.00— 37.00</p> <p>Balance.......$254.25</p> <p>Deduct amount due Isabella Gibson, widow . 230.32</p> <p>$ 23.93</p> <p>To W. D. Patton, plaintiff, in judgment No. 93,</p> <p>March term, 1889 (and No. 99, March term, 1894). $ 23.93</p> <p>EXCEPTIONS TAKEN TO THE REPORT IN THE COURT BELOW.</p> <p>1. The auditor erred in finding that “ if a widow (who is neither executrix nor administratrix) makes a demand for an appraisement of her deceased husband’s real estate, before an order of sale for the payment of debts is asked for, she may claim her execution out of the fund arising from said sale, although no appraisement has been actually made.”</p> <p>2. The auditor erred in not finding that an appraisement of the real estate was a sine qua non to qualify the widow to take the real estate or the funds arising from the sale thereof, in preference to the judgment creditors of the deceased husband.</p> <p>3. The auditor erred in awarding the sum of $230.32 to Isabella Gibson, the widow, and not awarding it to the judgment of W. D. Patton, No. 93, March term, 1889, v. J. T. Gibson and J. S. Gibson, and to the judgments of Wm. Marshall, for use of Joseph Buffington v. J. T. Gibson, J. Sloan Gibson and Geo. McLaughlin, No. 188, December term, 1889.</p> <p>The exceptions were dismissed in the following opinion by Rayburn, P. J.</p> <p>J. Sloan Gibson died intestate June 23, 1894. On September 27, 1894, the widow and heirs filed a renunciation of their right to administer upon said estate, and requested that letters of administration be granted J. T. Gibson, which was done the same day. On the 25th day of February, 1895, an appraisement of the personal estate was made, which amounted to the sum of sixty-nine dollars and sixty-eight cents ($69.68), and was elected to be retained by the widow. In the receipt given by the widow to the administrator for this property the same day it was appraised, and which receipt is upon the appraisement list, the widow, Isabella Gibson, inserted or had inserted immediately after the words which acknowledge the receipt of said property appraised at $69.68, the words, “And hereby claim the right to the balance of $800.00 for myself and family out of the real estate of said decedent.” The appraisement list containing this claim was not filed until February 13, 1896. J. T. Gibson, the administrator, died before the filing of the appraisement, and letters of administration, d. b. n., on said estate were granted to J. T. Jamison on the 5th day of March, 1896. The widow and heirs having again renounced their right and requested his appointment. On March 6, 1896, an order was made by the orphans’ court for the sale of the real estate for payment of debts upon the petition of J. T. Jamison, administrator. The sale made pursuant to said order was confirmed absolutely May 15, 1896. The final account of the administrator was filed July 28, 1896, and confirmed absolutely September, 15, 1896, and an auditor appointed September 16,1896, to make distribution of the funds in the hands of the administrator as shown by his account. The claimants of the fund before the auditor wereIsabella Gibson, the widow, who claimed balance of her exemption, and ~W. D. Patton, Esq., and Hon. Joseph Buffington, committee, two judgment creditors of J. Sloan Gibson. The auditor in his report allowed the widow’s claim to participate in the distribution to the amount of the balance thereof, viz: $230.32. To this conclusion of the auditor the two judgment creditors have excepted alleging error on part of the learned auditor in awarding $230.32 to the widow, Isabella Gibson. The exceptants contend that the auditor erred' in finding that “ If a widow (who is neither executrix nor administratrix) makes a demand for an appraisement of her deceased husband’s real estate before an order of sale for the payment of debts is asked for, she may claim her exemption out of the fund arising from said sale although no appraisement has been actually made.” Also that the auditor erred, “ In not finding that an appraisement of the real estate was a sine qua non to qualify the widow to take the real estate or the fund arising from the sale thereof in preference to the judgment creditors of the deceased husband.”</p> <p>Of these propositions one is virtually the converse of the other, and they can be considered together. And in determining the question before us, viz: The rights of the widow under the exemption act, we take as our fundamental guide the expression of Mr. Justice Woodward in Nottes’ Appeal, 45 Pa. 864, wherein he says: “ It is necessary in dealing with tbe multifarious cases that arise under the widows’ law and the exemption law to distinguish carefully between their respective facts.” In the case before us the widow elected to retain out of the personal property goods to the value of $300; when the personal estate was appraised it amounted to but $69.68, and when receipting for the same to the administrator she demanded in writing, which was embodied in the said receipt, the balance of her exemption out of the real estate. She was not one of the administrators, and consequently had not any say as to the appointment of appraisers. It most certainly was the duty of the administrator- of the estate when he received the receipt containing the demand of the widow that she claimed the balance of her exemption from the real estate, and especially so when the personal estate was exhausted, to instruct the appraisers to proceed to appraise the real estate, and if it could so be done without spoiling the value of the whole, to set apart so much of the land as would fully satisfy and. complement the .deficit of the widow’s $300 exemption caused by the want of sufficient personal estate. But not having paid any regard to this demand by having an appraisement made of the real estate and ascertaining whether an amount in value of land could be set apart to satisfy the widow’s claim, can the widow now claim the balance of her exemption from the proceeds of the sale ? We think under the circumstances of this case that she can, and that the learned auditor was clearly correct in awarding her out of the sale, of the real estate for the payment of debts, the balance of her exemption.</p> <p>In this case the exceptants, just as was done in Good’s Appeal, 152 Pa. 63, rely upon Hufman’s Appeal, 81 Pa. 329, in support of their claim, and contended that Good’s Appeal, supra, does not apply. That the court below in their opinion in Good’s Appeal erroneously stated in commenting on Hufman’s Appeal, that in said appeal the widow did not make a demand for an appraisement of the real estate. A reading of the case as reported clearly shows that the widow did not demand an appraisement of the real estate, vide statement of facts page 829, wherein is found, inter alia, these words: “ There was no appraisement of the land under the provisions of the act of April 9, 1849, nor did the widow ask to have one,” and in the opinion of Mr. Justice Gordon, page 332, we find this statement: “ And though at the time of the appraisement of the personal property, she claimed the balance out of the real estate, she neglected to have a proper appraisement thereof made on the ground as the auditor has found that the realty consisted of but one tract of land wMch was incapable of division.” In Hufman’s Appeal, supra, the widow was one of the administrators, and had it within her own power to have the appraisement made, but did not, and from the facts contained in the report of her case she deemed it unnecessary. We are of the opinion that the learned auditor was right in holding that Good’s Appeal, supra, governed this ease, and in awarding to the widow the balance of her exemption out of the fund he was appointed to distribute.</p> <p>And now, March 1, 1897, the exceptions are dismissed, the report confirmed, and the money directed to be paid out in accordance with the schedule of distribution thereto attached.</p> <p>And now, March 1,1897, cesset ex. for 20 days granted, and it is ordered that money shall not be paid out.within that time.</p> <p>An exception is granted to the overruling of the exceptions of "W. D. Patton and the order of court confirming the auditor’s report and bill sealed.</p> <p>Errors assigned were (1, 3) in dismissing exceptions-, reciting same. (4) In decreeing distribution.</p>

<p>Appeals — Practice, O. P. — Interlocutory order in road cases.</p> <p>An appeal from two orders of the court below; the first, approving the bond of a turnpike company given for injuries that may be sustained by the appellant in consequence of the taking of his land by the turnpike company, the second, appointing viewers to assess such damages, is prematurely taken and will be quashed. The statute does not contemplate a separate appeal from each interlocutory order.</p> <p>Eminent domain — Turnpike companies — Act of 1874.</p> <p>Turnpike companies, incorporated under the act of 1874, have the right or power to enter upon private land for the purpose of constructing their-roadway upon giving security as provided by the 41st section of the said Act of April 29, 1874, P. L. 73.</p> <p>Words and phrases — Turnpike road defined.</p> <p>A turnpike road is a public highway; every traveler has the right to use it upon paying toll; it cannot be closed against public use; its obstruction is a public nuisance for which indictment will lie.</p>

<p>Appeal, No. 20, March T., 1897, by Elizabeth Getz, widow, from decree of G. P. Cumberland Co., May T., 1896, No. 4, discharging rule to pay money into court.</p> <p>Rule to pay money into court. Before E. W. Biddle, P. J.</p> <p>It appeared from the record that George II. Getz died seized of certain lands. That there were entered as liens of record against the said real estate during the lifetime of decedent a judgment for use of H. G. Beetem for purchase money, $1,200, one in favor of Beetem & Co. for $1,020,' with waiver, and one in favor of Elizabeth Getz for $141 in the order as above set-out.</p> <p>That during the lifetime of decedent an execution was issued on the judgment of Beetem & Co., the second lien creditor, and a levy made upon the real estate of defendant; that a short time thereafter decedent died leaving the petitioner as his widow.</p> <p>That subsequent to his death the real estate levied upon was sold to II. G. Beetem, the first lien creditor, for $1,800. That the said sum is more than sufficient to pay H. G. Beetem, and that there is a balance of the purchase money of $300 or $400. to be applied to other claims upon the fund. That the petitioner made claim to the sheriff for the setting apart and allowance to her of $300 (widow’s exemption under the act of 1851) out of the real estate and requested an appraisement of the same; that she requested the sheriff to pay her claim but it has been refused.</p> <p>The petition concluded with a prayer for an order to pay the money into the court and the appointment of an auditor to distribute the fund. The rule having been granted an answer of H. G. Beetem & Co. was filed setting out, inter alia, that the notice to the sheriff was too late, the real estate being sold at the time.</p> <p>The widow’s claim to the sheriff is dated April 23,1896, and the property was advertised for sale on April 20, 1896, and it was contended that the widow is not entitled to any of said fund for the reason that she is too late, her claim having been made after the real estate was condemned and advertised for sale. That the first judgment of H. G. Beetem, being for purchase money would absorb the claim of petitioner, and that the second judgment, that of H. G. Beetem & Co. requires the said first purchase money judgment to absorb the exemption, as being a lien upon tbe two funds, as it were, to the preference of the judgment of your respondent.</p> <p>On July 20, 1896, the rule was discharged, whereupon Elizabeth Getz,the widow, appealed.</p> <p>Error assigned was in discharging the rule.</p>

Appeal, No. 167, April T., 1897, by plaintiff, from judgment of C. P. Mercer Co., June T., 1896, No. 80, on case stated-in favor of defendant. Case stated. Before Miller, P. J. The case stated is as follows: And now, April 13,1896, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict: 1.

Appeal, No. 51, April T., 1897, by Elizabeth Jackman, from order of Q. S. Allegheny Co., Sept. Sess., 1894, No. 11, dismissing the report of the reviewers and confirming the report of the viewers absolutely. Exceptions to report of viewers for a proposed road. Before the judges of C. P. No. 2, Allegheny county on service in the court of Q. S. The petition for the appointment of viewers was filed November 24, 1894 and viewers appointed.

Appeal, No. 52, April T., 1897, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1895, No. 20, on verdict for plaintiff. Petition for tbe appointment of viewers to assess damages for the change of grade in the taking of land. Before Miller, P. J. •It appeared from the evidence that Amelia Munn died testate, leaving inter alia some real estate in Sharon, Pa., situate on the west side of Sharpsville street.

<p>Appeal, No. 173, April T., 1897, by defendant, from judgment of Q. S. Allegheny Co., Dee. Sess., 1896, No. 572, on verdict of guilty.</p> <p>Indictment for selling liquor on Sunday and for selling liquor without a license. Before White, P. J.</p> <p>The facts of the case sufficiently appear from the following charge of the court below :</p> <p>This case gentlemen, is an illustration of the frauds frequently practiced by parties applying to the court for a charter, and it is also an illustration of the schemes resorted to by parties to violate our laws in reference to the sale of liquors. Some parties applied to the.court of common pleas of this county for a charter, under our act of assembly in relation to corporations. This purports to be an application for the charter of a corporation called “ The Turner Hall Association of Munhall, Pennsylvania. ” It set forth the purpose of the corporation as follows: “ Said corporation is for the purpose of acquiring and holding a piece of ground situate in the Township of Mifflin, County of Allegheny, State of Pennsylvania, and of erecting thereon a hall and fitting up the same with gymnasium, to promote physical culture and innocent athletic exercises and sports, and for the purpose of maintaining the same, and is not for profit.’ ’ Now, that is the purpose set forth in this application — for the purpose of purchasing ground and building on it a hall for athletic exercises and amusements of that kind, in the hall proposed to be erected. Under our act of assembly, in an application for a charter the purpose for which it is to be organized must be set forth. Yery frequently applicants for a charter set forth simply the purpose in the brief language of the act of assembly, intending afterwards to get up a constitution and set of by-laws, as was done in this case, and a constitution setting forth an entirely different purpose of the organization.</p> <p>We have very frequently of late found it necessary to refuse these applications unless the purpose is set forth more particularly than is often done. Some years ago a party applied in our court No. 2 for a charter, setting forth its purpose just about the same as is set forth in this application. I refused the charter, and filed an opinion at the time, giving the reason for refusing — stating that the purpose was too indefinite, and there was danger of such corporations being perverted to an improper purpose. The attorney who made that application in our court went into No. 3 of this county and made a similar application, not letting that court know that he had been refused in No. 2, and got a charter from that court. In a very short time they started a drinking saloon, I think in this same township — it was on the south side of the river — and, when brought up into court, presented their charter as a justification for keeping a drinking club. It then developed that the application had been refused in No. 2, and the court of No. 3 brought up the attorney, and he ought to have been expelled from the bar, but he begged off and said he did not mean to impose upon the court, and made some other apologies, and they let the thing go; but the charter, as they, decided, was a fraud upon the court.</p> <p>This charter was evidently gotten up as a fraud upon the court, because the conduct of the association since that abundantly proves that this was a mere pretext to get up a drinking club in Mifflin township. They did not do one single thing in pursuance of this charter for two years after the charter was obtained, and, in the meantime, carrying on this drinking club out there by this man, the defendant, as the president of the club. Finally, they entered into an article of agreement, dated the 23d of June, 1894, for the purpose of purchasing two vacant lots out in Mifflin township, and on that article of agreement there have been several payments, most of them $2.00, and $1.00, at a time — some two or three $5.00 payments, one $20.00 and one $15.00. The total payments made on that article of agreement, according to my footing up, would be $138, that they have paid in two years and a half. The original consideration was for the sum of $200, and for two years and a half they have not paid, counting the interest, the one half of that, and never have put up any building at all.</p> <p>This man, the defendant, rented a house out there at $5.00 a month, where he has been living himself — a man with a wife and children — and has not been living with his wife or with any of his children, but out there himself in this building with three rooms, one of them used, as he says, as a kitchen, the room where these tables are where the liquors are sold. One of the rooms, he says, he uses as a shoemaker shop, and the other one as a sleeping room. And, according to the evidence, that club has been going on for five years, from the time, I presume, their charter was obtained, and conducted solely for a drinking saloon, — not an effort made to carry out the-purpose declared in their charter, But it seems they got up, after they got their charter, what they called their constitution, and their constitution was for the organization of a drinking club. It provided that the members could get these things, and that each member could bring in a stranger, and in that way accommodate not only the members, but others that might be brought in by the members ; and that was carried on for two years before there was a. first step taken towards purchasing a lot or erecting a hall.</p> <p>Now, the court never would have sanctioned that charter that is put in evidence here if they had known that there was anything of that kind contemplated. The charter never would have been obtained. It is a fraud upon the courts to get up a charter of this kind, and then get a constitution that relates to other matters, and not at all relating to the purpose of the corporation ; and this club out there has been nothing but a drinking club all this time. And, according to the testimony, it is 'mainly a drinking club for Sunday gatherers, and the only athletic sports that have been given in evidence here, or referred to, was by one witness — the wheeling of a wheelbarrow on Sunday, blindfolded, and to see who could strike some object; sometimes a little running. Why, it is palpable that this was a stupendous, glaring fraud upon our license laws.</p> <p>Counsel has referred to some decision of the Supreme Court in reference to a case. That has nothing whatever to do with this case. This case doesn’t come within any of the thoughts or provisions of the decision of the Supreme Court in that case. Why, gentlemen, if a thing of this kind is to be sanctioned, we will have in every hollow and every secret place in the county of Allegheny a drinking club organized this way; and they are the biggest curse in a community. These drinking clubs for Sunday gatherings out in a hollow, as this is, are a curse to the community and a curse to the whole country around. Why, it is in evidence here that drunkenness has been going on there, and fights going on there, on Sunday. Of course those things follow. Of course those things follow where there is this kind of a club going on, and where their regular business meetings are on Sunday, as the defendants say. What would our license laws amount to with this kind of thing? Our license laws require men to have licenses and requires them to give bond — to get a license from the court after showing that they are fit men to sell liquor. They have to pay for it, and have to pay in cities and boroughs a pretty high price to get the privilege of selling; and they come under bond, with sureties, that they will not sell on Sunday; they will not sell on an election day; they will not sell to a minor; they will not sell to a man of intemperate habits ; yet these clubs of this kind will 'sell to anybody and on all occasions; and especially it is a club for Sunday carousal and Sunday drinking.'</p> <p>It is a fraud upon those who get licenses, those who pay for the privilege of selling. If we should countenance a thing of this kind, we would have these clubs springing up in every township in the county; and not only a fraud upon those who have licenses, but it would be a terrible curse in the community where they are. Nearly all the evils of intemperance result from the violations of our liquor laws. If the men who have license would keep our laws — and they are bound to when they get a license, and they give bond with surety that they will — I say, that if they would keep the law on the subject, we would have little evil resulting from the sale of liquors. But it is these speak-easies that start up without license, sell secretly, and, as a matter of course, violate every provision of the license laws. But these clubs are ten times worse than an ordinary speak-easy.</p> <p>Now this defendant has been acting as a kind of president of that association or organization. What does he do ? He buys the liquor, lays it in; and, according to his own testimony, the members get the beer from him and they pay so much. They pay him, he says, for it, as they get it. Others that came in there, who were not members of the club, put it on the table, according to some of the testimony. That is another way of whipping the devil around the stump. All these speak-easies and clubs resort to something of that kind. They have a place where they put the money in, or they lay it on the counter, or something of that kind. All that is only a scheme to try to evade the law. [But if nobody bad ever got a glass of liquor in that place except members of the club, I say it is grossly in violation of our laws on the subject — wholly unauthorized.] [1]</p> <p>Of course, gentlemen, under this charge of mine, if you believe the testimony, why, your verdict ought to be guilty; guilty of selling without a license, and guilty of selling on Sunday.</p> <p>This oral charge was taken down by a stenographer employed by the defendants. I am willing to accept it as he has written it out, without correcting some minor errors and at defendant’s request seal a bill of exceptions. It is also ordered to be filed.</p> <p>Verdict of guilty and sentence to pay a fine of $50.00 costs of prosecution and undergo imprisonment in the workhouse of Allegheny county for the period of thirty days.</p> <p>Error assigned was portion of the judge’s charge, reciting same.</p>

<p>Landlord and tenant — Covenant against removal. — Intent not equivalent to attempt.</p> <p>A mere unexecuted intent to remove without any attempt to carry it into effect is not an attempt to remove in any sense of the term, and will not justify action under a covenant in a lease authorizing immediate distraint for balance of rent for the term upon either removal or attempted removal.</p>

<p>Contract — Evidence—Question for jury.</p> <p>A case is properly for the jury where the issue turns on the existence of a verbal contract for per diem compensation for services as a supervising architect, although the witnesses for the defendants were more numerous than those for the plaintiff. There was incidental, corroborative evidence in favor of plaintiff, and it was possible for the jury to determine with absolute certainty, if they believed the plaintiff, the number of days he was employed and for which he was entitled to compensation if the contract was found to exist.</p> <p>Mechanics claim — Evidence—Province of the court.</p> <p>A mechanic’s claim is not evidence, but it is not error for the trial judge, while refusing to let the claim go out with the jury, to state the total amount claimed by plaintiff adding, You will have to determine whether it is all due and, if not, how much is due.”</p> <p>Mechanic's claim — Formal objections to face of claim — Waiver by trial.</p> <p>If the subject-matter of a mechanic’s claim is apparently within the statutes, other objections to the face of the claim must be made either by motion to strike off or by demurrer to the scire facias.</p> <p>After a trial on the merits defects of form must be taken as waived.</p>

<p>Decedent's estate — Distribution—Collateral heirs — Statutes.</p> <p>The Act of April 27, 1855, P. L. 368, constituted the grandchildren of brothers and sisters and the children of uncles and aunts additional classes of collateral heirs as distinguished from next of kin, and as to these two classes made the rule of distribution per stirpes; the purpose of the Act of June 30, 1885, P. L. 251 is to provide for a per capita distribution where the distributees stand in the same degree of consanguinity to the intestate, and therefore repeals the act of 1855 only so far as it prescribes the mode of distribution in such case, but does not repeal or modify the act so far as it creates new classes of collaterals.</p>

<p>Appeal, No. 21, April T., 1897, by W. I. Stineman, from judgment of C. P. Cambria Co., Sept. T., 1895, No. 509, on verdict for plaintiffs.</p> <p>Trespass for mining .coal. Before Love, P. J., of the 49th judicial district specially presiding.</p> <p>It appeared from the record and evidence that this action was instituted to recover the value of coal mined and removed from under certain lands in Conemaugh township, Cambria county. The plaintiffs claimed title by adverse possession for twenty-one years immediately prior to the alleged trespass in 1895. The defendants relied on the paper title, the particulars of which are set out in the opinion of the Superior Court.</p> <p>Verdict and judgment for the plaintiff for 116.50 for 165 tons of coal at 10 cents per ton.</p> <p>Errors assigned were (1) In answering the defendants’ first point, which point was as follows: “ That the agreement made on the 7th day of January, 1874, between Ross and O’Connor, on the one part, and E. W. Giddings on the other part, was, by its terms, a sale of the coal in and under the land described therein, and operated to create a severance of the coal from the surface. Answer: The lease of January 7,1874, in our opinion, does not constitute a sale of the coal in place; nor did it work a severance of the coal from the surface, so as to affect the rights of a third party who was in adverse possession at the time, under a claim of right. The point is, therefore refused.” (2) In answering the defendants’ second point, which point was as follows : “ That said agreement having been recorded, the purchaser thereof entered thereby into possession; and his possession thereafter was not affected by the state of the title to or the possession of the surface; and that possession of the surface, even for twenty-one years after the sale of the coal by said instrument, would not carry with it possession of the minerals below in the absence of proof óf a hostile claim to the coal. Answer: If the agreement of January 7, 1874, constituted a sale of the coal in place, it being put upon record would be notice to a subsequent purchaser of the surface or fee. But it not being a sale to the plaintiffs by themselves or their predecessors in title, who claim to have been in continued, open and notorious possession of the ground in dispute since 1849, the recording of the lease cannot affect the rights of the parties in adverse possession, and acquired thereby prior to 1874. We cannot, therefore, affirm this point.” (3) In answering the defendants’ third point, which point was as follows: “ That the plaintiffs have not shown such character of possession of the locus in quo by cultivation, enclosure or residence within marked and designated boundaries as to satisfy the jury that the ground under which the coal was mined and removed, for which this suit was instituted, is embraced within that part of the ground which they claim to have cleared and cultivated for twenty-one years past. Answer: This point involves a question of fact to be determined by the jury from the evidence, it showing a small house built along about 1851 or 1852 and land near the locus in quo cleared and farmed, in annual crops. We, therefore, refuse to affirm this point.” (4) In answering the defendants’ fourth point, which point was as follows: “ That the plaintiffs cannot recover in this case because the defendant, Stineman, was in possession under color of title. Answer: This point is refused.” (5) In holding and charging the jury as follows: “Margaret Finnegan, the mother of John Finnegan became possessed of this land by deed in December, 1849. What evidence of improvement was there prior to that time does not appear, but there was some. Michael Bracken testifies that it was cleared on the hill east of Harkin’s line. Whether he designates over to the red oak or not I do not know, but some distance. Jacob Varner testifies to practically the same facts, and that he (John Finnegan) farmed oats, corn and grass in that place; and Mr. Keelan, as well as Mrs. Keelan, testifies to practically the same thing.” (6) In holding and in charging the jury in reference to the agreement of January 7, 1874, as follows : “We say to you, on examination of that lease, that it did not constitute a sale of the coal in place; and even if it did, it could not affect the rights that had been acquired, if any had been acquired, by John Finnegan or his predecessors in title, to that land prior to its execution. Therefore it can have no particular force in determining the rights of these parties.” (7) In holding and charging the jury as follows: “ The only question for you to consider, from the evidence, is, where was that eastern line of • the land claimed by the plaintiffs ? Had it been cultivated and occupied up to that line, as they claim it now, more than twenty-one years prior to the commission of the trespass ? If it had, then, did the defendants, or either of them commit any trespass upon it?” (8) In ' holding and in charging the jury as follows: “ The plaintiffs would be entitled to recover in this action for the coal mined prior to the bringing of this suit, which was November, 1895. There has been some mining done since, the exact amount of which is not known, but it was included in the estimate of the surveyor who was there a few days ago.” (9) In holding and in charging the jury as follows: “Now, gentlemen of the jury, you take this case and consider the evidence, under the instructions we have given you; and if you find that for many years, as testified to by the witnesses, that hill portion east of Harkin’s line was cleared, occupied, farmed and fenced, that, as stated before, would give the plaintiffs title by prescription. If it was occupied adversely for a period of more than twenty-one years prior to the commission of the trespass, if you arrive at that conclusion, then find from the evidence what amount of coal was mined under it and what its value was in place, and render your verdict accordingly against W. I. Stineman, the only one of the defendants that is shown to have committed any trespass.”</p>

<p>Ordinances in pari materia — Rule of construction.</p> <p>Where a later ordinance creates a condition to which an earlier general ordinance becomes applicable the two are in pari materia, and are to be construed together.</p> <p>Where a city passes an ordinance to pave a street, the existing ordinances applicable to all such cases must be read into this special provision for a particular case.</p> <p>Municipal law — Constitution of Penna. — Abatement of taxes to meet city's share of street pavement.</p> <p>The local Act of May 9, 1871, P. L. 630, gives to the city of Erie the right to pave its streets at the expense of the city or of the abutting property owners or partly at the expense of the city and partly at the expense of the abutters, and it may by ordinance allow the latter an abatement of their general city taxes on the same property equivalent to a portion of the assessment for the improvements without violating sections 1 and 2 of article IX. of the constitution. Such ordinance offends neitheragainst uniformity, northe prohibition exemption from taxation.</p> <p>Ordinances creating contracts — Repeal of as affecting vested interests.</p> <p>The authorized body of a municipal corporation, acting within the scope of its powers, may bind it by an ordinance which, in favor of private persons, interested therein, may if so intended, operate as a contract. A repeal of a valid ordinance of this nature, and thus intended to operate as a contract, cannot operate retrospectively to impair private rights vested under it.</p>

Appeal, No. 84, April T., 1897, by defendants, from judgment of C. P. Westmoreland Co., May T., 1895, No. 720, on verdict for plaintiff. Assumpsit to recover price of land sold. Before Doty, P. J, The facts sufficiently appear in tire opinion of tbe court. Verdict and judgment for plaintiff for 1874.50. Defendants appealed. Errors assigned were (1) In not refusing to affirm the plaintiff’s first point which reads as follows, to wit: “ 1.

<p>Appeal, No. 123, April T., 1897, by defendant, from judgment of C. P. Armstrong Co., March T., 1896, No. 55, on verdict for plaintiff.</p> <p>Trespass for injury to abutting owner by laying gas pipe and telephone line on public road in front of plaintiff’s premises. Before Raybdbn, P. J.</p> <p>It appears from the evidence that the defendant company, having the right of eminent domain, laid an eight inch gas pipe in front of plaintiff’s property and neglected to enter bond or arrange for a settlement of damages. It appears, moreover, that the plaintiff was present at his home in full view of the work as it progressed, and made no objection. The plaintiff and his son were also employed in working on the road and were both paid for their services.</p> <p>On the trial the entry was treated by the plaintiff’s counsel and by the court largely as though it were an ordinary action of trespass, quare clausum fregit, and in his general charge the court failed to give the jury proper instructions as to the measure of damages.</p> <p>Yerdict and judgment for plaintiff for #75.00. Defendant appealed.</p> <p>Errors assigned were (1) In refusing the motion of defendant to instruct the jury to disregard the testimony of A. J. Helfrich which motion and refusal were as follows: Mr. Buffing-ton: We ask the court to instruct the jury to disregard the evidence of A. J. Helfrieh as to the fixing of damages in this case. By the Court: We will refuse the request at present, and upon request of defendant, exception allowed and sealed. (2) In refusing the defendant’s eighth point, which point and answer are as follows : “ 8. That the testimony of Jackson Heffleiinger fixing the damages for the pipe line is not based upon the true basis for the assessment of the same and the court is requested to instruct the jury to disregard the same. Answer: That point is refused.” (3) In refusing the tenth point of the defendant, which point and answer are as follows : “10. That the testimony of B. H. Hankey, fixing the damages for the pipe line is not based upon the true basis for the assessment of the same, and is irrelevant and the court is asked to instruct the jury to disregard the same. Answer: That point is refused.” (4) In refusing the third point of the defendant, which point and answer are as follows: “ 3. The true measure of damages for the fence alleged to have been injured, is the cost of renewing said fence in as good condition as it was before the alleged injury. No such evidence being offered the plaintiff is not entitled to recover for this item. Ansioer: That point we refuse under the evidence in this case. The testimony on the part of the plaintiff is that the fence was damaged some and it will be for you to say how much. The defendant’s witnesses testify that the fence was scorched some but not to damage it in .any way.” (5) In refusing defendant’s fourth point, which point and answer were as follows: “4. That the true measure for the injury alleged to have been caused by the laying and maintaining of said pipe line is the cost of removing the same and restoring the ground to its original condition before the line was laid and no such evidence having been offered the plaintiff is not entitled to recover for this item. Answer: That point is refused.” (6) In refusing to affirm defendant’s second point, which point and answer are as follows : “ 2. That the uncontradicted evidence shows that the plaintiff, Thomas H. Hankey, assented and encouraged the defendant in the laying of said line, and furnished material for assisting in laying the same, and that under such circumstances no trespass has been proven in laying and maintaining said line, and the plaintiff is not entitled to recover any damages therefor. Answer: That point is refused, but we say to you that the evidence on the part of the defendant was that there was no objection made by this man, and that they hired him to haul wood to make fires for the purpose of preparing the pipe for laying, and that he was present when they were doing it and did. not make any protest. The plaintiff himself testified that he never' gave any consent and he does not remember whether he made any objection or not, but his recollection is that he did object.” (7) In its general charge to the jury in the following sentence: “ He (the plaintiff) has also stated to you the number of telephone poles that were put up, ten or eleven, I believe, and the number of trees that were trimmed or pruned by the employees of the company and the fences and the inconvenience he is put to by reason of the pipe line not being covered in certain places ; and he fixes that damage at $150.”' (8) In its general charge to the jury as follows : “ The next witness that is called on the part of the plaintiff is a Mr. Iielfrich, A. J. Helfrich. He testifies as to the fact of the line being laid along this road, and where some portion of it was bare and uncovered ; also as to the telephone poles and as to the trees, he was not cognizant of how many trees there were trimmed or cut; and he also testifies as to the obstruction of the drain because of the pipe and the flowing of water over this man’s lot near his house. He fixes the damage at $200; he first states that $150 would, be a low amount; then being interrogated further as to his opinion as to the matter he says $200.” (9) In its general charge to the jury as follows : “ Mr. Schreckengost testifies that he did not see or could not see that the land was damaged any by reason of the line going through it. You will remember on cross-examination he testified that he obtained fifty cents per rod for the line going through his land. That has nothing to do —the question of his statement of that fact has nothing to do with your fixing the amount of damage that Mr. Hankey is entitled to, if entitled to any, for this line going through his land. It is only given in evidence' to affect the credibility of his testimony as to stating that Mr. Hankey had not received any injury by reason of the line going through his land,” (10) In its general charge to the jury in the following sentence : “ If he did that, why then your verdict must be for the defendant. If he did not, then you go further and take up the testimony and ascertain what damages he has sustained to his land by reason of their occupying it by the pipe line and the telephone poles, and what damage they did to his trees or fences, and that you will ascertain from the evidence.”</p>

Appeal, No. 164, April T., 1897, by defendants, from order of C. P. Washington Co., August T., 1896, No. 114, refusing leave to appeal nunc pro tunc from judgment of magistrate. Rule to strike off an appeal and application for leave to appeal nunc pro tunc.

<p>Appeal, No. 163, April T., 1897, by defendants from order of C. P. Washington Co., Aug. T., 1896, No. 113, refusing leave to appeal nunc pro tunc from judgment of magistrate.</p>

Appeal, No. 7, March T., 1897, by plaintiff, from judgment of- C. P. Cumberland Co., in favor of the defendant, on case stated. Case stated.

<p>Appeal No. 165, April T., T897, by defendants from order of C. P. Washington Co., Aug.T., 1896, No. 115, refusing leave to appeal nunc pro tunc, from judgment of magistrate.</p>

<p>Judgment — Revival of~Terre-lenani — Notice.</p> <p>When the deed of a terre-tenant is on record at the time of an attempted revival of a judgment, the scire facias to revive must name him as a terretenant, otherwise the lien will be lost in five years from the rendition of the judgment sought to be revived. The same result will follow, the deed being on record, if the revival is attempted by an amicable scire facias which the terre-tenant has not signed.</p>

Appeal, No. 11, April T., 1897, by-defendant, from judgment of C. Í?. No. 2, Allegheny Co., Jan. T., 1896, No. 488, on demurrer. Demurrer to plaintiff’s statement in assumpsit. Before White, J. The facts appear from the plaintiff’s statement and the demurrer, which are set out below. Statement of plaintiff’s demand, made under the provisions of the act of assembly of May 25, 1887.

Appeal, No. 128, April T., 1897, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1894, No..35, on verdict for plaintiff. Appeal from award of viewers. Before Baybuby, P. J. It appeared from the record and the evidence that this case arose from proceedings under the act of May 29,1885, to assess damages to compensate the plaintiff for the easement imposed upon his farm by a pipe line for the transportation of natural gas. The award of viewers was appealed from.

<p>Appeal, No. 12, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1896, No. 489, on demurrer.</p>

<p>Gontract — Time of delivery — Warranty.</p> <p>A statement that goods purchased “ could be delivered promptly” does not constitute an express warranty as to time of delivery; the contract only requires delivery in a reasonable time.</p> <p>Sale — Delay in delivery — Measure of damages.</p> <p>In the present case a failure in delivery would impose a duty on the vendee to replace the order elsewhere. A vendee, under such circumstances, may not accept the article after long delay and set off the damages caused by such delay.</p> <p>Foreign corporation — Interstate commerce.</p> <p>He who buys and keeps valuable property and seeks to pay therefor by alleging the violation of a statute on the part of the vendor, ought to set forth his defense with certainty.</p> <p>A foreign corporation, engaged in strictly interstate commerce, may advertise its goods, take orders, make contracts of sale respecting same and ship them to customers in this state without violating the Act of April 22, 1874, P. L. 108.</p> <p>Sale— Delivery f. o. b. — Responsibility for delay in transportation.</p> <p>Where a contract for sale of goods obliges the vendor to deliver f. o. b. at Duquoin, Illinois, the common carrier at the place of shipment becomes the vendee’s agent and is answerable for the damages, if any result, from needless delay in transporting the goods to vendee in Pennsylvania.</p> <p>Vendor and vendee — Shipment of goods — Misdirection—Shipper's responsibility.</p> <p>Goods directed to be shipped to “ Newton Station, McKean Co., Pa., via. or on B., R. & P. Ry.” were shipped marked Newtown Station, McKean Co., Pa. and went first to another place in Penna. known as Newtown and its arrival was thereby delayed. Held, That an affidavit alleging misdirection was insufficient to shift the burden of delivery from the carrier to the shipper, it not being alleged that the Newtown, where the goods first went, was in McKean Co.</p>

<p>Practice, O. P. — Trial—Misleading answer to point.</p> <p>Where a point does not adequately cover the branch oí the case to which it is directed and the answer affirming it is misleading and erroneous, such answer properly can be assigned for error.</p>

<p>Appeal, No. 183, April T., 1897, by plaintiff from judgment of C. P. Armstrong Co., Dec. T., 1896, No. 221, granting a compulsory nonsuit.</p> <p>Appeal from judgment of a justice of the peace. Before Rayburn, P. J.</p> <p>It appeared from the evidence that suit was brought by the borough of Kittanning, under the Act of April 22, 1889, P. L. 39, a supplement of the Act of April 3, 1851, P. L. 320, sec. 2, for a license imposed by ordinance on all hacks, carriages, omnibuses, wagons, sleighs and other vehicles used upon the streets and alleys of said borough, in carrying persons or property of any kind for pay, against defendant who kept a livery stable hr said borough. The fees for the license being 122.00.</p> <p>The court below entered a compulsory nonsuit. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Poor law — Appeals from order to refund.</p> <p>An order of removal, unappealed from is conclusive as to the settlement of the paupers removed and of the pertinent and material facts therein recited.</p> <p>There is no provision in the Act of March 16, 1868, P. L. 46, for appeals from the decree of the court of quarter sessions for the payment of money expended in the maintenance and support of paupers removed: Directors v. Overseers, 110 Pa. 158.</p>

<p>Appeal, No. 181, April T., 1897, by plaintiffs, from order of C. P. No. 1, Allegheny Co., Dec. T., 1896, No. 216, making absolute rule to open judgment.</p> <p>Rule to open judgment.</p> <p>It appeared from the depositions, taken in support of the rule that Emma Pretshold, prior to the year 1889, being in the millinery business purchased goods from plaintiffs. In the year 1889 she married Robert Richardson, and together they continued to carry on the same line of business at the same place. On May 1,1895, they were indebted to the plaintiffs in the sum of 11,359.48. Richardson and his wife, desiring to purchase certain shoes induced the plaintiffs to become surety in the sum of $500 as part payment of the shoes. As an inducement to do so they signed a paper in the following words:</p> <p>“ This note is given as security against our assuming responsibility of payment of notes given to G. F. Miller by R. Richardson, amounting to $500. At expiration of ten months from date and when notes are paid this judgment is to be returned.”</p> <p>The $500 for which plaintiffs became security was subsequently paid by defendant. A demand was made for the return of the judgment note which plaintiffs refused to return and entered up the same, whereupon a rule was taken to open the judgment.</p> <p>The court made absolute the rule to open the judgment. Plaintiffs appealed.</p> <p>JError assigned among others was (1) making absolute the rule to show cause why the judgment entered should not be opened and defendant let into a defense.</p>

<p>Liquor law — Sale to drunkard — Right of action in injured party.</p> <p>A saloon keeper is liable for damages caused by exposure resulting from sale of liquor to an intoxicated person or one of known intemperate habits. This liability is fixed by the Act of 1854, P. L. 663. The injured person, himself, is entitled to recover for such injury.</p> <p>The principle volenti non fit injuria does not apply, for the reason that one who is either an habitual drunkard or under the influence of liquor has no control of. his'will and is, therefore, incapable of consenting. The law puts itself in the place of his will and says, in effect: “ My will and not the broken down will of the inebriate must govern.”</p> <p>Practice Q. P. — Defective assignments — Partial excerpts not assignable.</p> <p>Where the charge of the court taken as a whole, fully and properly discusses the measure of damages, an assignment will not be sustained which challenges only a portion of what was said to the jury on the subject.</p> <p>Improper remarks of counsel — Defective assignments — Practice, G. P.</p> <p>Where alleged misstatements of counsel are complained of the assignment will not be considered when it does not appear that counsel asked the court to correct the statements and caution the jury, and where no exception is taken at the time in regard to the failure of the court to do so. Where there is nothing which brings them on the record it is impossible for the appellate court to consider the alleged misstatements.</p>

<p>Appeal, No. 40, May T., 1897, by defendant, from judgment of C. P. Crawford Co., May T., 1895, No. 115, on verdict for plaintiff.</p> <p>Assumpsit to recover on a guarantee of stock sold. Before Henderson, P. J.</p> <p>The facts sufficiently appear from the following charge of the court:</p> <p>On the 1st day of February, 1898, the defendant gave to the plaintiff a writing in the words following: “For value received I promise to pay A. B. Floyd eight hundred dollars or eight shares of Whipple Loan and Trust company stock. And I guarantee said stock and the payment thereof at one hundred cents on the dollar for two years from date hereof. And at any time the said A. B. Floyd wishes to dispose of said stock at its full face value I am to have first choice to purchase and redeem the same.”</p> <p>After the execution of this paper the defendant assigned to the plaintiff eight shares of stock of the Whipple Loan and Trust Company of the par value of $100 each. This certificate was returned to the company by Mr. Hotchkiss, as the evidence indicates, and in lieu thereof a new certificate was issued to Mr. Floyd, the plaintiff, for the eight shares of stock. This new certificate was issued on March 23, 1893, some seven weeks after the execution of the paper which has just been read in your hearing.</p> <p>Plaintiff says he has received no dividends on his stock; that it has no market value; that he has endeavored to ascertain its actual value and is unable so to do; and that, having received such information, not having found a market for it anywhere, he called-upon the defendant to make good the undertaking contained in the paper upon which the action is brought; that on the 12th day of January, 1894, through his attorney he tendered an assignment of the stock back to Mr. Hotchkiss, the defendant, and made a demand upon him to make its par value good to him in money, and that Mr. Hotchkiss declined to accept the assignment of the stock. He further alleges that at some time prior to the 12th day of January, 1894, he called upon Mr. Hotchkiss to take up the stock or to make its value good to him, and that Mr. Hotchkiss refused to accept the stock.</p> <p>[The undertaking which the defendant entered into in the execution of this paper is apparently an agreement on his part' that if Mr. Floyd take the stock of the Whipple Loan and Trust company, he, the defendant, will undertake that it shall have a value equal to its par value for two years from the elate of the execution of this paper; that would be until the 1st day of February, 1895 ; and that he would guarantee the stock to have a selling value during that period equal to its face value.] [3] He further elected to have the right to take it within that time at its par value before it should be offered by Mr. Floyd to anybody else at its par value. [Such being the terms of the undertaking of the defendant, you are to inquire whether the stock so turned over by the defendant to the plaintiff has had a value equal to its par value, or any selling value at all, during the period from February 1,1893, to-February 1,1895. The agreement of Mr. Hotchkiss was a guaranty that the stock should have a value of one hundred cents on the dollar; and he guarantees the payment of the stock at any time within two years at the same price.] [4]</p> <p>[Whatever may have been the intention of the parties, the paper means upon its face that Mr. Hotchkiss will give a value to the stock at any time within two years, of one hundred cents on the dollar, and that if Mr. Floyd cannot get that value elsewhere for it Mr. Hotchkiss will make it good at that price.] [5] This may not have been what the parties intended. Whether it is or not, we are not informed. We are required to disjmse of the case upon the evidence which is introduced. The parties in the absence of fraud, accident or mistake are presumed to have intended what they expressed in writing and signed at the time. And this paper having been executed by Mr Hotchkiss and its execution not being denied, the parties are affected and bound by its terms.</p> <p>[Plaintiff alleges that this stock has had no market value; that .he cannot ascertain from the managers of the company what its value is; that he has not been able to sell it; and that the defendant has refused to take it off his hands or to make good this contract. If it has no selling value, if there is no demand for it, if Mr. Floyd cannot get any price for it, then there is a breach of the undertaking of Mr. Hotchkiss, and if at any time before the 1st day of February, 1895, between that period and the 1st day of February, 1893, Mr. Floyd was unable to get a price for the stock or to get any offer for it or to dispose of it in the market, then Mr. Hotchkiss is bound under the terms of his agreement to make the stock good at its face value.] [6]</p> <p>[It is alleged on the part of the defendant that it has á value; that stock of the company was owned by some persons in this vicinity who have got it by some means, and that it has a value. Has it a value which is available to Mr. Floyd, or did it have up to the 1st of February, 1895, a value which was available to Mr. Floyd under the terms of this agreement by which Mr. Floyd was guaranteed the payment of the stock between February, 1893, and February, 1895, at one hundred cents on the dollar? Does the evidence of the defendant lead you to believe that it had such a value in the hands of Mr: Floyd ? If not, plaintiff, having tendered a return of the stock and having called on Mr. Hotchkiss to make his contract good, is entitled to damages ; which, in the absence of evidence that the stock had any value at all, would be the whole of the par value of the stock, in which event Mr. Hotchkiss would be entitled to take up the certificate of stock which has been heretofore tendered to him. If the stock has a selling value and you know what that is, Mr. Hotchkiss would be liable for the difference between the selling value of the stock and its par value. I do not recall any evidence, however, which would lead you to conclude that the stock would sell for any particular amount if offered by Mr. Floyd.] [7]</p> <p>[If you find for the plaintiff you will find the amount of damage which he has sustained under the contract, which would be the amount of money he is entitled to receive, $800, from the 1st day of February, 1893, less any dividend he may have received upon the stock, with interest at six per cent, if you find that the stock has no selling value and is not available in the hands of Mr. Floyd to be disposed of at any price. If you find that it has a fixed value, Mr. Floyd would be entitled to the difference between the value which he can get out of the stock by selling it and the amount which Mr. Hotchkiss guaranteed that it should be worth to Mr. Floyd, to wit: one hundred cents on the dollar.] [8]</p> <p>Verdict and judgment for plaintiff for $960. Defendant appealed.</p> <p>Errors assigned were (1) In overruling defendant’s objection to the following question propounded to plaintiff: “Q. I will ask you once more what was your inquiry of Mr. Whipple as to the value of that stock?” Objected to as irrelevant and incompetent. By the Court: “ It is certainly competent to ascertain the value of the stock; whether his opinion is given or not is another thing. He is now telling what he learned from one of the officers of the company as to value. I think that is competent.'” Exception asked for and allowed. “ Answer: Whipple wrote me that the company was in such shape that they couldn’t put no value on this.” (2) In ruling out the answer of the witness, A. A. Whipple, the president of the Whipple Loan & Trust Co., to the first, second, fifth and sixth cross interrogatories, and the exhibits attached, as follows: “1st. Please give the assets and liabilities of the Whipple Loan & Trust Co. as it appears on your books June 22, 1893, and the value of the stock on that day. Also the assets and liabilities of the said company on June 23, 1892, and the value of the stock on that day. 2d. Please give the assets and the liabilities of the Whipple Loan & Trust Co. on February, 1893, and at other dates up to and including February 1,1895. 5th. Please state what property your company has invested its funds in, and whether or not it is now and always has been worth par or the stock worth 100 cents on the dollar. 6th. Please attach to your testimony the regular annual statements of the Whipple Loan & Trust Co. from July 1, 1892, up to and including July 1, 1895.” (3-8) Portions of the judge’s charge, reciting same.</p>

<p>Roacl law — Vacation of road — Jurisdiction, Superior Court.</p> <p>In appeal from proceedings vacating a road, the appellate court can consider only the regularity of the proceedings.</p> <p>Road law— Vacation of road — Jurisdiction, Q. S.</p> <p>The quarter sessions under the 18th section of the Act of June 13, 1836, P. L. 558, have jurisdiction of an application to vacate a private road and the only question which can be considered by the appellate court is, whether or not the petition for the vacation of the road conforms to the requirements of section 23 of said act.</p> <p>Road law — Vacation of road — Adequacy of petition.</p> <p>A petition for the vacation of an entire private road is sufficient which sets out that the road is useless, inconvenient and burdensome.</p>

<p>Appeal, No. 8, April Term, 1898, by David Cohen and Morris Levinson from order of Q. S. Westmoreland Co., Feb. Term, 1897, No. 59, refusing a distiller’s license.</p> <p>Petition for distiller’s license. Before Doty, P. J., and M’Cohhell, J.</p> <p>The court entered the following decree: “ And now, April 17, 1897, after full hearing at time fixed by rule of court and upon due consideration, license refused within applicants.” Petitioners appealed.</p> <p>Error assigned was refusal of license.</p>

<p>Taxes — Statutes—Act of 1895 creates no lien.</p> <p>The Act of Ma.y 22, 1895, P. L. Ill providing for the payment of taxes which are liens on land sold under execution out of the proceeds, and the divestiture of the lien does not operate to create a lien not before existing, nor can it apply to taxes not indicated by its title.</p> <p>The title contains nothing looking to the payment of taxes which are not liens, and its provisions cannot be extended beyond the scope of its expressed purpose.</p>

Appeal, No. 73, April T., 1897, by plaintiff, from decree of C. P. Westmoreland Co., No. 245, in equity, dismissing exceptions to master’s report. Exceptions to master’s report.

<p> Covenant to perform or pay, enforceable. </p> <p>A clear, positive covenant to do a lawful thing or pay a certain sum of money for not doing it, cannot be avoided by showing that the performance of the act would not benefit the covenantee.</p> <p>Oil and gas lease — Covenant to sink wells binding.</p> <p>A covenant in a lease that lessee will sink three wells or pay a certain annual sum lor default cannot be evaded by showing that expert opinion indicates that the sinking of three wells might reduce the flow of gas and be a positive harm to wells already sunk, thereby reducing lessor’s profiLs. The covenant is an absolute and unqualified covenant lor the benefit of the lessor and he has the right to enforce it.</p>

<p>Appeal, No. 131, April T., 1897, by defendant, from judgment of C. P. Jefferson Co., Sept. T., 1894, No. 66, on verdict for plaintiff.</p> <p>Assumpsit. Before Reed, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $143.52. Defendant appealed.</p> <p>JErrors assigned were (1, 2) refusal of binding instructions for defendant.</p>

<p>Contract — Cause of action — Payment in goods purchased by a miner.</p> <p>No recovery can be had nor is a cause of action disclosed under the Act of May 20, 1891, P. L. 96, when it appears that the plaintiff, who sued to recover wages, worked as a coal miner for defendants, and according to the course of dealings between the parties was fully paid for his labor, partly in money and partly by goods voluntarily purchased by Mm from defendants’ store.</p> <p>Statutes — Constitutional law — Company stores.</p> <p>The attempt of the Act of May 20, 1891, P. L. 96, to prevent employers and employees from making their own contracts is merely a repetition of what was vainly sought to be done by the Act of June 29, 1881, P. L. 147, and therefore is invalid.</p>

<p>Criminal law — JCefeclive indictment — Bar of the statute.</p> <p>An indictment is fatally defective which shows, on its face, that it was found more than two years after the commission of the offense, and fails to allege that defendant had not been an inhabitant or usual resident of this state at any time before he was indicted.</p> <p>Criminal law — Estoppel—Plea of the statute.</p> <p>An agreement for support does.not work as an estoppel to setting up the statute of limitations, on an indictment for fornication and bastardy.</p>

<p>Appeal, No. 106, April T., 1897, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1896, No. 483, for want of a sufficient affidavit of defense.</p> <p>Appeal from judgment of alderman.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Judgment was entered in favor of plaintiff for want of a sufficient affidavit of defense for fllO.10. Defendant appealed.</p> <p>Error assigned among others was (1) entry of judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 159, April T., 1897, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1895, No. 538, on verdict for plaintiff. Trespass for personal injury. Before McCltestg, J. The facts sufficiently appear in the opinion of the court. The defendant submitted the following points: And now, to wit: January 11, 1897, counsel for defendant respectfully requests the court to charge the jury as follows: 1.

<p>Contracts of tenants in common — Question for jury.</p> <p>A well haring- been drilled upon premises of which defendant was a tenant in common under a contract which allotted the costs pro rata among the owners, the question of liability of a particular tenant in common turns solely on whether he agreed to the contract and assumed his share of the cost. This is solely a question for the jury.</p>

<p>Appeal, No. 63, April T., 1897, by-defendants, from judgment of C. P. Butler Co., Sept'. T„ 1896, No. 132, on verdict for plaintiff.</p> <p>Ejectment. Before Greer, P. J.</p> <p>The facts sufficiently appear in the opinion of tbe court.</p> <p>Verdict for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1) In overruling the defendants’ objection to Charles Duffy, the assignee of David Scott and Margaretta Scott for the land in controversy, testifying as to declarations made by him during the lifetime of David Scott, now deceased; in permitting said Duffy to testify and in receiving said declarations as evidence. (2) In overruling defendants’ objection in permitting Charles Duffy to testify under objection and exception as to what he told Win. Davis, his own tenant, in the absence of Mrs. Scott, the defendant. (3) In overruling and discharging the motion of the defendant, Margaretta Scott, in arrest of judgment. (4) In entering judgment against the defendants, Margaretta Scott and Albert Scott, for the land, etc., Albert Scott having disclaimed title and the jury being sworn as to Margaretta Scott alone. (5) In entering judgment against Margaretta Scott upon the verdict for the land described in the praecipe.</p>

<p>Appeal, No. 111, April T., 1897, by James A. Gaytons et al., from decree of Q. S. Allegheny Co., June Sess., 1895, No. 2, dismissing exceptions to report of viewers and confirming same.</p> <p>Petition to change or vacate the whole or part of a public road in Shaler township.</p> <p>The petition haying been made to change or vacate a part of the public road and viewers and reviewers having been appointed reporting in favor of the prayer of the petition, exceptions to the reports of the viewers and reviewers were dismissed and the reports were confirmed.</p> <p>¡Errors assigned among others were (1) that the petition for the vacation of the road does not set forth facts sufficient to justify the court in taking action thereon; (2) that the road as originally laid out, connecting two other public roads, will, when partially vacated in accordance with the report of the viewers, become a cul de sac, one end thereof terminating at or on private property.</p>

<p>Decedent's estate — Gonclusiveness of executor's partial account.</p> <p>When regularly submitted, passed upon and confirmed, a partial account is final and conclusive as to all matters properly included in it, and it is an adjudication of all things embraced in it, with like effect as if it were a final account.</p> <p> Omission of particular items, not subject of exception. </p> <p>Distinct items, however, omitted from a partial account cannot be brought up for consideration by exceptions alleging their erroneous exclusion*</p> <p>Costs — Adjustment of, partially successful exceptions.</p> <p>Where certain exceptions which greatly increase the cost of an audit are dismissed, the orphans’ court will be sustained in apportioning the costs against the exceptants.</p> <p>Practice, Superior Court — Defective assignments.</p> <p>Assignments are defective and violate Pule XV., when they embrace more than one question.</p>

<p>Building and loan associations — Withdrawal rights of members.</p> <p>A member of a building association in good standing has a right to withdraw and thereby entitle himself to the rights and privileges of a withdrawing stockholder. After notice given he ceases at the expiration of thirty days to be a member and becomes a simple creditor subject to the laws regulating the rights of withdrawing stockholders, after withdrawal.</p> <p>Withdrawing stockholders — Bights those of a creditor.</p> <p>A stockholder, having perfected by notice his withdrawal, has a right to sue the association and recover judgment, as any other creditor might do, and the denial of funds to meet his demand is no ground for the refusal of judgment against the association.</p> <p>Bight of withdrawing stockholder — Absence of by-laws —Interest.</p> <p>In the absence of by-laws defining and regulating the matter, a withdrawing stockholder may recover the amount paid in by him as dues and six per cent interest, the association having alleged in a published statement the accumulation of large profits and there being no denial in the affidavit of defense of the correctness of the financial statement,</p> <p>Words and phrases — Profits—Affidavit of defense.</p> <p>Profits import the net amount made after deducting any proper expense incident to a business.</p> <p>In a suit by a withdrawing stockholder where the company has declared large profits as earned, an affidavit of defense is insufficient which alleges as a set-off to plaintiff’s claim a right to deduct a gross amount as plaintiff’s share of proper expenses; no by-laws, by which such deductions are authorized, having been set out, nor what the expenses were incurred for, nor the gross amount.</p>

<p>Appeal, No. 149, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny County, Jan. T., 1897, No. --, for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 168, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny County, Oct. Term, 1895, No. 732, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Ewing, P. J.</p> <p>It appeared from the evidence that at the time of the injury complained of, Bonner, together with other employees of the Pittsburgh Bridge Company, was engaged in moving a large steel beam or girder from one position in the mill to another, through the agency of a large crane operated by means of hand power.</p> <p>The mechanism of this crane was very simple, consisting of an upright beam, having two handles, one on each side of the drum, and a system of cogwheels, by means of which the power could be changed from fast to slow gear, and vice versa, as the exigencies of the work required.</p> <p>In raising heavy materials, it is customary in the use of cranes of this character, to throw the power into slow gear, and in moving materials of light weight, to use the fast gear.</p> <p>On the day of the accident, Bonner was detailed to work at this crane, which was located near the door of the mill and parallel with a narrow gauge tramway, upon which beams and other heavy material are moved from one position to another in and about the mill. Bonner was at the handle of the crane farthest away from this tram track, and had raised the steel girder, which they were engaged in moving, to the height desired, at which point he was holding the weight by means of the handle of the crane then in slow gear, preparatory to the girder being moved or shoved by his coemployees into the position desired.</p> <p>It further appeared that by an accident the gear was suddenly shifted thus causing the injury complained of.</p> <p>The contention of the plaintiff in the court below, was that the defendant company should have provided an additional device for the crane, which would prevent the power from being inadvertently changed from one gear to another while in operation.</p> <p>'Verdict and judgment for plaintiff for $600. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions.</p>

Appeal, No. 188, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny County, Oct. Term, 1895, No. 662, on verdict for plaintiff. Assumpsit on policy of life insurance. Before Greer, P. J., of the 50th judicial district, specially presiding. Plaintiff sought to recover on a policy of life insurance dated September, 18,1893.

Appeal, No. 117, April T., 1897, by defendant, from judgment of C. P. Washington County, May Term, 1896, No. 172, on verdict for plaintiff. Assumpsit for services rendered. Before Taylor, J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $250. Defendant appealed.

Appeal, No. 112, April Term, 1897, by defendant, from judgment of C. P. Jefferson Co., May T., 1894, No. 324, on verdict for plaintiff. Trespass for personal injuries. Before Reed, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $1,000. Defendant appealed. Frror assigned was in answer to defendant’s eighth, point, which point and answer are as follows r “ 8.

<p>Appeal, No. 185, April T., 1897, by defendant, from order of C. P. Armstrong Co., Sept. Term, 1896, No. 236, striking off appeal froip the magistrate.</p> <p>Rule to strike off appeal from decision of a magistrate. Before Rayburn, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Error assigned among others was (2) in striking off the appeal of defendant.</p>

<p>Appeal, No. 118, May T., 1897, by plaintiff, from decree of C. P. Venango Co., Nov T., 1895, No. 4, dismissing bill in equity.</p> <p>Bill in equity to restrain defendants from collecting county and poor taxes for the year 1895, and perpetually thereafter, assessed on the plaintiff’s property in Oil City.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below dismissed the bill and plaintiff appealed.</p> <p>Errors assigned among others were (3) In finding as a question of law, that the plaintiff was liable for the taxes assessed. (5) In dismissing plaintiff’s bill.</p>

Appeal, No. 54, March T., 1897, by defendant, from judgment of C. P. Blair Co., Oct. T., 1896, No. 195, on verdict for plaintiff. Assumpsit on promissory note. Before McClure, P. J., of the 17th judicial district specially presiding.

<p>Principal and surety — Opening judgment.</p> <p>Where a contract of suretyship in the shape of a judgment note is materially altered by the act of the plaintiff so that the rights of the surety are materially affected, a motion to open the judgment will prevail.</p> <p>Opening judgment — Principal and surety — Question for jury.</p> <p>It is alleged on a motion to open judgment that defendant signed a note as surety and delivered same to plaintiff with the understanding that the principal was to sign; subsequently the principal refuses to sign, when by the act of the holder of the note, the entire nature of the obligation is changed and it is entered of record as a judgment against him as principal. Held, that the credibility of these statements and the proof of the fact alleged should have gone to the jury and the judgment should have oeen opened.</p>

<p>Mechanic's lien — Old or new building — Distinction.</p> <p>Where the structure of a building is so completely changed that in common parlance it may properly be called a new building or rebuilding, it comes within the lien law.</p> <p>Where, under the evidence, a court might have decided that it is a case of a building erected within the meaning of the lien law, a nonsuit is improper.</p> <p>Mechanic's lien — Old or new building — Question for jury.</p> <p>A broom factory subsequently used as a carpenter shop was altered into a dwelling house and many changes, additions and transformations effected both externally and within. The testimony was to the effect that the building has the general appearance of a new building altogether different from what it was, the external changes indicating newness of structure. Held, that the question should have been submitted to the jury.</p>

<p>Appeal, No. 49, March T., 1897, by plaintiff, from judgment of C. P. Cumberland Co., on verdict for defendant.</p> <p>Ejectment. Before E. W. Biddle, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict for defendant. Plaintiff appealed.</p> <p>Error assigned was in rejecting the following offer: By Mr. Wetzel: The plaintiff offers the account of the executor of Magdalena Ensminger, filed and confirmed by the orphans’ court of Cumberland county; its reference to Joseph S. Shapley, Esq., as auditor to award distribution; his report thereon, filed in the orphans’ court January 13, 1896, and confirmed January 25, 1896, with tire decree of the court ordering payment in accordance therewith, and releases and rights of all distributees; this for the purpose of showing that before the auditor on the distribution of Magdalena Ensminger’s estate the defendant made a claim for his interest in said estate, under the intestate laws, by reason of his marital relations with the decedent; that the defendant and the parties interested in the estate contested this subject before the auditor; that testimony was introduced and a report was made by the auditor finding, as a fact, that Samuel Ensminger had neglected to support his wife for a year and, upwards, and forfeited his interest in his wife’s estate under the act of May 4, 1855; this for the purpose of showing that this court has determined, as a fact, that the said Samuel Ensminger had forfeited his interest in his wife’s estate by reason of his neglect to support her under the act of 1855; this for the purpose of showing: 1. That the subject-matter was res adjudicata. 2. That it is evidence in this case to be submitted to the jury, if not res adjudicata, as persuasive of the fact contended for in this case.</p> <p>By Mr. Leidich: Objected to: 1. The matter in issue before the auditor was whether or not, under the situation and circumstances surrounding the rights of Samuel Ensminger, he was entitled to share in the distribution of the fund in the hands of the auditor for distribution. 2. That matters incidentally passed upon by the auditor are only determined for the purpose of the issue involved in that case; they are not evidence in this case.</p> <p>By the Court: The finding of the auditor and the decree of the court in relation to the distribution of the personal fund in the hands of Mrs. Ensminger’s executors, are not conclusive in this action, as to any matter which was but incidentally passed on; the main object of the audit was to find a correct distribution of the funds in hand. That the defendant had failed to provide for his wife was a matter that was incidentally passed upon, but is not res adjudicata in so far as any question in regard to the disposition of the real estate is concerned. Notwithstanding a direction in the testatrix’s will to convert her real estate, it still remains realty, so far as the defendant is .concerned. The objéctions are sustained; plaintiff excepts and bill sealed.</p>

<p>Contract — Stipulated commission for sale of land — Broker's.license.</p> <p>A person, not a licensed real estate dealer, has no right to recover commissions for sale of land without a contract as to a specific amount, but such contract existing his right to recover is perfect.</p> <p>Evidence — Contract for services for sale of land.</p> <p>A purchaser for land having been found and accepted, the agent is entitled to recover a stipulated compensation, and evidence to show that the vendee defaulted on some of his payments is properly excluded.</p>

<p>Will — Interpretation—Equality among children.</p> <p>It is a well-established rule of law that, in all efforts to reconcile statements in wills of decedents or to interpret the meaning of the same, it must be done with the great object in view, — that of equality among the children.</p> <p>Specific bequests having been made to grandchildren which aggregate the full distributive share that would have passed to their parent if living, these grandchildren are not entitled to share in the residuary estate under the following clause: “And lastly, all the residuary is to be divided equal.”</p>

<p>Appeal, No. 92, April Term, 1897, by Verona borough, from decree of C. P. No. 3, Allegheny Co., Feb. T., 1896, No. 127, confirming report of viewers.</p> <p>Exceptions to report of viewers.</p> <p>It appeared from the record that this case and ten others involving the same question of law were heard together in the eourt below. On the 7th of June, 1871, the borough passed an ordinance locating and opening Railroad avenue. On the 25th of April, 1886, Charles Martin and some other property owners on said avenue petitioned the borough to open East Railroad avenue between James street and Grant avenue. In compliance with such petition an ordinance was passed July 26, 1886, to open up that part of East Railroad avenue between James street and Grant avenue.</p> <p>Viewer’s were appointed to assess damages for opening of said avenue who filed their reports September 3, 1887, making said avenue fifty feet wide alongside of and parallel with the-tracks of the Allegheny Valley railroad, awarding damages for $2,500 for the property of Peter Klingensmith and awarding no damages to any other property holder or holders on said avenue and directing said damages to be paid by tbe borough. There was no exception or appeal from the decree.</p> <p>On July 9, 1895, the plaintiffs in these cases petitioned the burgess and town council of the borough of Verona to grade said street, according to the line of the Benjamin Jones plan of lots, and releasing the borough from all claims for damages that they might, could or would have from the grading of said street.</p> <p>Upon consideration of said petition the borough passed a resolution to open up and grade East Railroad avenue between James street and Grant avenue to the full width of fifty feet as designated in the ordinance of June 7, 1871, and July 26, 1886.</p> <p>Viewers were, upon petition of the plaintiffs, appointed in this case, the petitioners claiming that the borough took six feet from each of their lots, and, the claim being denied by the borough, the viewers awarded damages to the petitioners in the sum of $100 for each lot.</p> <p>Exceptions were filed on behalf of the borough to the report of viewers and the report of the viewers confirmed absolutely. The borough of Verona appealed in each case.</p> <p>Errors assigned among others were (1, 2) In dismissing exceptions to the borough of Verona and confirming the report of the viewers absolutely. (3) In not decreeing that the appellees were bound by the judgment of the court of quarter sessions of Allegheny Co., at No. 36, June sessions, 1887.</p>

<p>Appeals of the borough of Verona, from decree of C. P. No. 8, Allegheny Co., Nos. 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, dismissing exceptions to report of vietvers and confirming same in the respective cases of George Shannon, Hugh W. Young, T. W. Davies, Agnes Wenzell, Harry W. Wick, John Simpson, Elmer J. Young, Samuel H. Mays, Emma Martin and Lona It. Patterson.</p>

<p>Ejectment — Question for jury — Assignment for creditors — Parol partition.</p> <p>The question is for the jury where the evidence, if believed, established the facts that the defendant, wife of the assignor, acquired a vested interest in tlie land in controversy, through part payment of the purchase monej'-, and the extent of her interest was defined by a parol partition of the land in controversy, before an assignment for creditors; that in the sale by the assignee this interest was excepted; that the deed by the assignee shows conclusively, that it was not conveyed to the purchaser at the sale; that notice of claimant’s interest was given at the assignee’s sale, and that the defendant held possession continuously from the time of the parol partition until the trial.</p> <p>Assignee's sale — Notice actual and constructive of claims.</p> <p>An assignee’s sale under an order of court is a judicial sale, to which the rule of caveat emptor applies; and a purchaser is affected, as at other judicial sales, by notice of claims given ; and if a claimant is in possession, under his claim at the time of sale, such notice will also affect one who buys from the purchaser while the claimant remains in possession.</p>

<p>Taxation — Wife not an occupier of husband's real estate — Act of 1884.</p> <p>The wife is not such an occupier of the husband’s real estate, whilst he is himself occupying the same, within the meaning of sec. 46 of the Act of April 15, 1834, P. L. 509, as to make her separate property liable for the taxes assessed and levied against the husband.</p>

<p>Road taxes — Oolleciible in money on failure to contract to work out.</p> <p>The right to work out a road tax as provided by the Act of April 15, 1834, P. L. 509, which is distinctly reserved by the Act of June 25, 1885, P. L. 187, exempts the taxes so worked out from collection; but upon a failure to make a contract for working out such taxes as is provided for in the 6th section of the Act of April 2, 1867, P. L. 668, the taxes, levied upon the citizens failing to make the contract, are payable in money and are collectible as other taxes of like character.</p>

<p>Municipal law — Discretion of authorities in location of sewers.</p> <p>Municipal authorities have some discretion in extending, laying out and grading streets and in taking care of drainage. They may not, however, construct ditches or sewers so as to cast water directly upon private property, but they may adopt such appropriate means to carry surface water along the side of a street as they see fit, and if the sewer or ditch constructed for that purpose proves inadequate from lack of judgment as to capacity, and water backs up therefrom or overflows upon private property, there can be no recovery against the city by the person injured by reason of such backing up or overflow.</p>

<p>Appeal, No. 37, April T., 1897, by plaintiff, from judgment of C. P. Washington Co., Aug. T., 1895, No. 64, on verdict for plaintiff for less than claim.</p> <p>Assumpsit. Before McIlvaihe, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Yerdict and judgment for plaintiff for $4.50. Plaintiff appealed.</p> <p>Errors assigned among others were (5) In admitting the following offer under objection and exception: “ Defendant offers in evidence the will of Nathaniel Burt to show that this plaintiff is residuary legatee; to show that she has already received or will receive all the interest that was due on this mortgage — that she is seeking to recover money here a second time. Also the deed of John Birch and Nathaniel Burt, executors, for the lot of ground mentioned in the agreement marked ‘ Exhibit C,’ dated the 26th of January, 1891, recorded in deed book 163, page 108. Also mortgage dated the 26th day of January, 1891, recorded in mortgage book, No. 22, page 132, between John W. Barnes and John Birch and Nathaniel Burt, executors of Charity Burt, deceased, for $3,000, on the same lot of ground mentioned in the article'of agreement; and bond between-the same parties in the penal sum of $6,000, dated the 26th of January, 1891. The purpose is to show that this bond and mortgage were given for the purchase money of the lot of ground mentioned in the article offered by the plaintiff and marked ‘ Exhibit C,’ and to show the payment of the purchase money. Also the record of the mortgage in the recorder’s office, show-, ing a satisfaction on the 1st day of June, 1894.” (6) In. admitting the following offer under objection and exception: “ Defendant also offers in evidence deed of T. F. Birch, guardian of Charles Burt Ross, for the interest in remainder, and in the lot of ground mentioned in the article, recorded March 2, 1891, in deed book, No. 175, page 613.” (7) To a portion of the general charge, as follows : “ This article of agreement on its face, then, taken as a whole, including what is signed by all three of the parties and what is signed alone by Mr. Barnes — because we take it that it must be construed as a whole — simply means that the real estate was sold so that it would net to the remainderman at N. Burt’s death $3,000, and that he would get annually until his death, $180 plus $20.00.” (8.) To a portion of the general charge, as follows: “ Under the language of the agreement we hold that the interest on the $3,000 was to be paid to N. Burt until his death, as well as the $20.00 bonus, which was an addition to the income from this money of that much more than six per cent — we hold that the income terminated with his death.” (9) To a portion of the general charge as follows : “ The trué intent, we think, of the parties was to provide an annuity for Mr. Burt which would terminate at the same time as his right in the real estate would terminate, and that was at his death, and that the word ‘advance’ only had reference to the payment, and that the interest was to accumulate from day to day as in ordinary cases. In other words, if the agreement had provided expressly that the interest should be paid at the end of the year, and he had died when he did, the same rule would apply.” (10) To a portion of the general charge, as follows: “So we charge you, therefore, gentlemen, that the interest on this article of agreement terminates at the date of N. Burt’s death, April 7,1894, and that his estate is entitled to recover only that proportionate part of the year’s interest represented by the fractional part of the year counting from the 24th of January, 1894, and to April 7, 1894, and a similar proportionate part of the $20.00.” (11) In not affirming plaintiff’s first point, which point and answer are as follows: “1. If the jury find from the evidence that the signature of N. Burt was procured to the agreement in relation to the real estate described therein, by the promise on the part of John W. Barnes to pay the first and every year’s interest on the purchase money to N. Burt in advance until his death, also a bonus of $20.00 per annum to N. Burt only during his natural life, that would be a sufficient consideration for such promise on the part of the defendant, and would be for the advantage of N. Burt, plaintiff’s testator, and all previous payments of interest and bonus having been paid, there was due and owing to N. Burt, plaintiff’s testator, on the 24th of January, 1894, the whole of one year’s interest in advance, and at his death a proportionate part of the bonus, from the anniversary of the date of the agreement to the date of his decease. Answer: That is refused, if the point means, as we understand it does, to give you binding instructions that the plaintiff can recover, in this proceeding, the whole year’s interest.”</p>

<p>Appeal, No. 176, April T., 1897, by defendant, from judgment of C. P. Washington Co., Feb. T., 1896, No. 106, on verdict for plaintiff.</p> <p>Assumpsit for money due. Before McIlvaine, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff $227.01. Defendant appealed.</p> <p>Errors assigned were (1) In refusing to affirm defendant’s third point, which point and answer are as follows: “That the original liability of the firm of Irwin & Hughes was a several liability to account to H. K. Bell for the amount collected upon his judgment, and a like several liability to account to Elizabeth A. Bell for the amount collected upon her judgment, and no joint action can be supported therefor, and the verdict of the jury must be for the defendant. Answer: Refused.” (2) Refusal of binding instructions for defendant. (3) In charging the jury as follows: “Now, as to the other point. It may be there is a mistake here as to the caption in this case; that is, that it ought to be H. K. Bell and H. K. Bell for use of E. A. Bell; but be that as it may, the plaintiff’s statement itself shows the claim, and if the evidence of Mrs. Bell is correct, it tends to sustain the statement; and the record that has been introduced in evidence, the auditor’s report and Mr. Irwin’s letter do also; that is, that Mr. Bell brought those notes to Washington and put them into the hands of Irwin & Hughes, It was through Mr. Bell that the two claims were put into their hands. He managed the business. Mrs. Bell testifies that Mr. Bell, she thinks, brought up the notes. If Mr. Bell gave a note of his own against the estate into the hands of' Irwin & Hughes to collect, and at the same time gave a note against the estate which was drawn to his order for the use of Mrs. Bell into their hands for collection, then we think that there could be a recovery in one suit against Irwin & Hughes of all the money they collected. The person to whom Messrs. Irwin & Hughes could have paid this money, taking into consideration the manner in which the notes were left in their hands, would have been H. K. Bell. He could have receipted for the whole of it, as he left the notes for collection. If he brought the notes up here and left them for collection, part of them payable to his order and part of them payable to his orde'r for use of E. A. Bell (Mrs. Bell having testified that she had been paid in full) there can be no trouble hereafter in regard to part of the claim being collected again by Mrs. Bell from Mr. Irwin, because not only the record but her own testimony shows that whatever the claim might have originally been, that now all the money that is unpaid belongs to H. K. Bell; and we, therefore, will have to refuse the last two points that have been presented here by the defendant.”</p>

<p>Appeal, No. 79, April T., 1897, by defendant, from judgment of C. P. Westmoreland Co., MayT., 1894, No. 634, on verdict for plaintiff.</p> <p>Reeder and Orlady, JJ. dissent.</p> <p>Appeal from award of viewers. Before McConnell, J.</p> <p>■ It appears from tbe record that the only question raised in this appeal is as to the admissibility of certain testimony, which is fully set out in the assignments of error.</p> <p>. Verdict and judgment for plaintiff for $695. Defendant appealed.</p> <p>Errors assigned were (1) In admitting the testimony of the witness, H. M. Clements, as to the damages sustained by the plaintiff by reason of the taking of the land in question by the defendant, he being incompetent to so testify. (2) In permitting the witness, H. M. Clements, to give an 'estimate of plaintiff’s damage, such estimate, the objection thereto and the ruling thereon being as follows: “ Counsel for defendant object to this witness giving his estimate of the damage to the property, because he has not shown such knowledge of the market value of property in the neighborhood as would qualify him to give an opinion as an expert. The Court: Objection overruled, and exception for the defendant’s counsel.”</p>

<p>Attachment execution — Appropriation of money to debt due garnishees.</p> <p>Money clue on a note payable to defendant held by garnishee as trustee, appropriated, by such garnishee, with the consent of the debtor, to the liquidation of a debt due by defendant to the garnishee, before the service of an attachment execution, constitutes a perfectly legitimate transaction and is a complete defense to the attachment.</p>

Appeal, No. 31, April T., 1897, by plaintiff, from decree of C. P. Armstrong Co., Dec. T., 1895, No. 27, striking off judgment. Rule to show cause wby judgment should not be opened. Before Rayburn, P. J. The facts sufficiently appear in the opinion of the court. The court on motion struck off the judgment entered in the above case for $69.00. Plaintiff appealed. Error assigned among others was striking off judgment.

<p>Insurance — Agency for the company.</p> <p>An insurance agent or broker must be considered the agent of the company when the evidence shows that he was acting by express authority of the company ; that he was authorized to deliver the policy of insurance, and to receive and receipt for the premiums.</p> <p>Fire insurance — Total loss — Nonessentials in proofs of loss.</p> <p>Where a building covered by a policy of insurance has been totally destroyed by fire, the proofs of loss need not set forth the amount of property saved or the value of the debris where there is no provision in the policy requiring it; and where the policy contains a provision that if the company requires it plans and specifications of the building destroyed or damaged shall be furnished, the proofs need not contain the plans and specifications of the building or a detailed statement of the quantity or quality of the lumber used in its construction, unless the same be specifically requested.</p> <p>Proofs of loss — Itemized value — Substantial performance:</p> <p>It would seem that in a policy covering machinery, belting, tools, etc., proofs of loss are not necessarily defective which describe the different articles, giving their condition and the time they had been used, but instead of specifying the value of each, give only the total value.</p> <p>If the proofs seem, as to any particular lot or class of goods, to bewanting in clearness and precision, the attention of the assured should be called thereto and such further information asked for as is fairly necessary to an ascertainment of the loss.</p> <p>The law does not require the performance of useless things nor favor the arbitrary imposition of useless burdens. Substantial performance is enough.</p> <p>Entirety of contract — Mistake as to items in proofs of loss.</p> <p>Where an insurance contract is in its terms entire, a provision that a violation will avoid the entire contract will have that effect, but proofs of loss are no part of the contract of insurance, and, under no construction of the contract, will a mistake in the proofs of loss as to one item terminate the contract as to all other items.</p>

<p>Appeal, No. 110, April T., 1897, by plaintiff, from judgment of C. P. Butler Co., Dec. T., 1896, No. 28, in favor of defendant on case beard before the court without a jury.</p> <p>Appeal from judgment of justice of the peace. Before Greer, P. J.</p> <p>It appears from the record that this was an action to recover assessments due the insurance company to meet certain losses. The court below discharged the rule for judgment for want of a sufficient affidavit of defense, from which order plaintiff appealed to the Supreme Court by which court the appeal was dismissed.</p> <p>The facts sufficiently appear in the report of the case as it came before the Supreme Court in 172 Pa. 91 and in the opinion of the Superior Court.</p> <p>The case was heard a second time by the court below by agreement of counsel without a jury, and judgment entered in favor of defendant for costs. Plaintiff appealed.</p> <p>Errors assigned were (1) “In overruling the plaintiff’s exceptions. (2) In finding as a fact, or as a conclusion from the facts that the defendant was fraudulently induced to become a member of plaintiff company. (3) In holding that there was a verbal agreement and that the company violated its agreement by assessing defendant within a year. (4) In holding that the assessments sued for are for more money than is necessary to pay defendant’s proportion of the losses from the date of his application to the time of the company’s dissolution and expenses of the company. (5) In holding that the plaintiff in this suit is bound by the verbal contract, and that all assessments made by the plaintiff or the receiver within that year against defendant are null and void and not binding upon him. (6) In holding as a matter of law that the plaintiff in this suit is affected by the representations of the agent in procuring defendant’s application other than those set out in the written agreement. (7) In holding as a matter of fact and conclusion of law therefrom that as no person took out a policy of insurance after October 26, 1891, no equities intervened in third parties which caused him to be held. (8) In holding that the assessments were greatly in excess of the losses, and made to cover losses prior to defendant’s membership as well as after the dissolution of the company, and that they are fraudulent and void, whether made purposely or by culpable negligence, and as such, payment cannot be enforced in this suit. (9) In holding that the contractual limitation contained in the policy was available to the defendant as a defense in this suit. (10) In holding in this suit, and as an available defense herein, that proof of loss must be complied with and suit brought within six months on loss, and that no suit can be maintained by plaintiff company for the collection of assessments with which to pay losses, due proof of which have not been made, and suit for recovery of which has not been brought, within six months from the date of the loss. (11) In holding that the rights of the defendant in this case rest upon his contract of insurance, and especially of his verbal contract. (12) In holding in his opinion that he had no means of discovering the fraud until he was notified of the assessment on October 26, 1891. (13) In holding in his opinion that October 26, 1891, was the earliest date that equities of third persons could intervene as against defendant’s membership.' (14) In holding that Boggs promptly refused to pay, and that a refusal to pay at that date would be an available defense. (15) In holding in his opinion in this suit that the company had no property, no money, and if it had debts (meaning it had no debts), and allowing said finding to be an available defense to defendant. (16) In holding in this suit that if there are no creditors (meaning there were none), there should be no assessments (meaning the assessments made should not have been made and were void). (17) In entering judgment for defendant. (18) In not entering judgment for plaintiff less last twenty-five per cent penalty, with cost of suit.”</p>

<p>Negligence — Sudden peril — Buies of conduct.</p> <p>When a person is putin sudden peril by the act of another and, in the instinctive effort to escape from that peril, falls upon another peril, it is immaterial whether, under different circumstances, he might and ought to have seen and avoided the latter danger.</p> <p>If a man has gotten himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man placed under such circumstances, if he uses his judgment honestly, is not responsible, although he might have done better if he had acted differently.</p> <p>Negligenee — Contributory negligence in sudden peril — Question for jury.</p> <p>Aman driving along a public road undergoing repairs, in avoiding some stones on his right, ran into a fire plug on the left of the road. He p>ermitted his horse to continue on a trot after first sighting the stones which occupied a part of the roadway for a long distance. Held, that the question of contributory negligence was properly left to the jury.</p> <p>Municipal law — Independent contractor — Liability.</p> <p>A municipal corporation is not liable for an injury occasioned by the neglect of independent contractors with it, or of their agents and servants; the remedy is against the contractor alone.</p> <p>Municipal law — hidepe7ident contractor — Questmifor jury.</p> <p>Where there is evidence tending to show that an injury for. which the action is brought against a municipality arose upon the act of an independent contractor, it is error for the court not to leave the question to the jury under adequate instructions.</p>

<p>Appeal, No. 8, April T., 1897, by defendants, from judgment of C. P. No. 1, Allegheny Co., 'Dec. T., 1894, No. 506, on verdict for plaintiff.</p> <p>Assumpsit. Before Stowe, P. J.</p> <p>The facts sufficiently appear from the charge:</p> <p>These cases require separate consideration, just as much as though they were tried without reference to one another. They all depend, however, upon the one main matter. There is nothing to indicate that the defendants are liable to the plaintiff in any of these cases except.as it is based upon an alleged contract made by the plaintiff with Mrs. Bonistalli. According to their testimony, it seems it was made when she was bookkeeper of one of these firms, and not a partner. The contract of a bookkeeper cannot bind a firm, unless it is made with the knowledge and consent of the partnership, or having been made, they have knowledge of the fact and act upon it. Your bookkeeper may make as many contracts connected with your business as he pleases, and you are not bound unless jmu have knowledge of the fact and acquiesce in it. He has no business to do it unless you give him instructions or authority to do it, but if without instructions he makes a contract and then informs you of it, or the circumstances indicate to the jury, when it comes before a jury, that you had knowledge that such a contract had been made and acted upon it, that would be sufficient to justify the jury in finding that you were responsible upon such a contract.</p> <p>Mrs. Bonistalli denies that she ever did make such a contract, from first to last. You will remember she was the bookkeeper for the first of these firms, continued bookkeeper for the second firm, and then became a partner and perhaps bookkeeper; at all events, a partner in the last firm. Of course anything she did in the line of business when she was a member of the firm would bind her firm, but it would not have any bearing upon what was done before. [In ■ other words, any contract she had made when she was not a member of the firm would not bind the other firm of which she was bookkeeper, unless the evidence showed reasonably and fairly that the members of the firm knew and acquiesced and acted upon the contract that she had ma.de, in the absence of evidence that she was authorized to make it in the first place, of which there is not a particle in this case. The evidence in this case is of such a character that I cannot myself undertake to say, as a matter of law, that you should not find a verdict against any of the defendants. That is for you to say.] [1] Certainly the testimony is very vague, apart from the contract itself, very vague as to anything that would create a liability upon the part of these defendants.</p> <p>[There is'evidence to show — which of itself would amount to nothing, unless there was a contract express or implied, made or acted upon — that the plaintiff demanded of the defendants, from time to time, an account of their kegs or packages], [2] and demanded their return, perhaps intimating directly or indirectly that the defendants were responsible for them. That would amount to nothing of itself. Because I make a claim against you is no evidence that I have one, except as you may act upon that, or your conduct at the time I make the demand may indicate that you acquiesce in it or recognize the fact that the contract was as I claim it to be. I might go to any gentleman upon the street and say I wanted him to pay the thousand dollars he owed me, although I may never have seen the man before. That would be no evidence that he owed me the money, but if he would hesitate and say, I will see you again, or we will settle that hereafter, or do some act indicating that he acquiesced in my suggestion, it would be a matter for the jury to consider, if it came before a jury.</p> <p>Upon these matters, as I said before, if you believe that Mrs. Bonistalli did not make this contract, then your verdict should be for the defendants clear through, because if this contract was not made by somebody — and she is the only one that is alleged to have made it — the plaintiff has no claim whatever. There is nothing to indicate that outside of this contract the defendants were responsible for these packages. It is true they got them; they could not get the beer very well without its being in a package; but where a man buys an article the presumption is the package is his. These witnesses are very clear that it was not understood that the packages were to be the property of the purchaser, but were to be returned. But if there was no contract as to who was to return them, the parties who sold the beer to these defendants would have to look out for the packages themselves. If the defendants saw fit to interest themselves and return them, that was a voluntary act upon their part, and if they did not do it they would not be responsible.</p> <p>There is, however, another element in these cases that would make whichever of these firms existed at the time the particular act was done, responsible, to say the least of it, for the packages that were used in the way claimed. [There is evidence, •whether you believe it or not, that many of these packages were burned and destroyed.] [3] Now, it is clear that they did not belong to the defendants; the evidence is clear throughout that the defendants did not own these packages, whether they were bound to return them or not. They would only be bound to return them by reason of a contract, but whether there was a contract or not, if they undertook to destroy the property of the plaintiff, and burned it up, they would be liable to the extent that they did that. It was the plaintiff’s property, and if the defendants used it, or their agents, with their authority or consent, to put pickles in, or burned it, whatever was destroyed or used in that way, they would to that extent be responsible for, but not beyond that unless there was a contract.</p> <p>I do not see that I can say very much more. There are claims against three firms, one against Frank Bonistalli and Ernest Bisi, commencing on May 2,1892, and ending August 19, 1892; one against Ernest Bisi, commencing August 25, 1892, and terminating May 1,1893; and one against Mrs. Bonistalli and Bisi, commencing May 1, 1893, and ending June 1, 1893. If you find a verdict for the plaintiff in any of these cases you will have to try and discriminate how many of these packages were lost or not returned during the existence of each particular partnership. You cannot take the whole number of packages, in this view of the case, supposing some of these defendants are responsible for it, and divide by three. Nor can you take the plaintiff’s claim as evidence of the amount that was failed to be returned from time to time, unless the evidence justifies you in doing it; and the evidence upon that matter is extremely vague and uncertain. If you believe there was a contract to pay for these packages for which each of these firms was responsible, then, of course, when the beer was delivered the parties would have a reasonable time to dispose of the beer, and it would be their duty to return the package. As to that, it would be a reasonable time, and the defendants in that case would be prima facie liable for every package they got. Then it would devolve upon them to satisfy you how many had been returned, but as the plaintiff has undertaken to go into evidence showing how many were returned and how many were not returned, and how many were probably left in the hands of the parties, [it is for you to say as best you can under this, to my mind, very uncertain testimony, how many packages Bonistalli & Bisi got and did not return, how many E. Bisi got and did not return, and how many E. Bonistalli & Bisi got and did not return]. [4]</p> <p>Unless the jury can come to a reasonably satisfactory conclusion as to how much was failed to be returned by each of these particular partnerships, they are in duty bound to find a verdict in each particular case for the defendant, because of a failure to satisfy the jury fairly and reasonably as to the amounts each of these defendants was responsible for, assuming they were responsible for anything. As I said before, if you believe Mrs. Bonistalli, the plaintiff has no right to recover in any of these cases. [If you believe plaintiff’s testimony, then you are to consider how far each of these firms, succeeding one another as they did, had knowledge of and acted upon the arrangement she is said to have made. According to that view of the case, if they knew it and bought this beer with that understanding, whether Mrs. Bonistalli made the contract without their knowledge or with it, if they understood after it was made that that was the arrangement, and they bought beer in reference to that arrangement, they were bound to return the packages.] [5] If' they failed to return them they are now bound to pay for the value of those packages which were received and ought to have been returned.</p> <p>Of course a reasonable time should be allowed before interest should run, but after three or four months, at the outside, the probabilities are that they would' be entitled to interest. All we can say is that they would be entitled to interest upon the value of those articles after the expiration of a reasonable time, particularly after notice had been given to return them, if a reasonable time had been allowed to do so under that view of the transaction. Of course these defendants got a lot of beer and sent it to Rochester, Altoona and other places. They had-to send it in the packages in which it was received, and a reasonable time should be allowed those parties to dispose of the beer, if that was the custom, and I suppose it would be, unless they were engaged in the bottling business. They could not get a number of kegs of beer and return them tomorrow; they probably could within a month or two. If the jury come to the question of interest, they should allow a reasonable time before they add interest to plaintiff’s claim, if they see fit to add interest at all, which is a matter for their consideration under all the evidence, as to whether they think the plaintiff is entitled to recover.</p> <p>As I said before, the burden of proof is upon the plaintiff to make out his claim. This matter was very carelessly done if it was done as claimed by the plaintiff. If the defendants are liable, it was still more carelessly done on their part. They do not seem to have kept any account.. They do not seem, by their own admission, to have paid any particular attention to it. They did make an effort to return some of these packages, but the whole thing, from first to last, does not appear to be consistent with an ordinarily reasonably strict business proceeding. The case is for you; it is one of those matters that is for the jury, and. the law is simply as as I have stated. [If that contract was made, then the defendants are liable, each of these separate firms so far as they had knowledge and ■acted upon the contract as made.] [6] If it was not made, as the defendants say it was not, then the plaintiff has no claim whatever; they have failed to look after their packages, which was their own business, and they cannot hold the defendants responsible for it.</p> <p>Yerdict and judgment for plaintiff for $869.87£. Defendants appealed.</p> <p>.Errors assigned were (1-6) portions of the judge’s charge, reciting same.</p>

<p>Appeal, No. 132, April T., 1897, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1892, No. 470, on verdict for plaintiff.</p> <p>Attachment execution. Before McCldng, J.</p> <p>The jury found a verdict for the plaintiff on an issue awarded between the Oil Well Supply Co. as plaintiff and the Jarecki Manufacturing Co., Ltd., as defendant, to answer this question, to wit: “ Was the fund of $662.12 in the hand of the garnishees, the Philadelphia Company, duly assigned by the defendants to said Oil Well Supply Company before the service of the attachment herein, so that said Oil Well Supply Company ought to be preferred to said attachment creditor, in the distribution of said money?”</p> <p>Verdict and judgment for plaintiff subject to the decision of the court on the question of law reserved. Judgment was subsequently entered by the court in favor of the plaintiff on the question of law reserved, whether or not the plaintiff, having a valid assignment of this claim, its rights are affected as between it and an attaching creditor by the failure to give notice prior to the service of the attachment. Defendant appealed.</p> <p>Hrrors assigned among others were (1) In entering judgment in favor of plaintiff on the question of law reserved. (8) In charging the jury as follows: “ I have no doubt whatever upon the question of law. ... I instruct you pro forma that notice was not necessary; that the attaching creditor simply stands in the shoes of the debtor, that is, of Hart & Co., and that an assignment which was good between Hart & Co. and the Oil Well Supply Company, would be good as against this attachment, without notice.”</p>

<p>Appeal, No. 9, April Term, 1897, by defendant, from judgment of C. P. No. 1, Allegheny County, December T., 1894, No. 508, on verdict for plaintiff.</p> <p>Verdict and judgment for plaintiff for $828.50. Defendant appealed.</p>

<p>Ancient deeds and grants — Construction—Usage.</p> <p>Ancient words, grants, deeds and charters will be interpreted by usage.</p> <p>However general the words of an ancient grant may be, it’is to be construed by evidence of the manner in which the thing granted has always been possessed and used; for so the parties thereto must be supposed to have intended.</p> <p>Indefinite easement — Evidence of exhaustion — Acts of original parlies.</p> <p>Where there has been a grant in general terms to erect a dam and back up waters on grantor’s land as much as the grantee may think necessary, and where the election has been made and the location and height of the dam determined at the time so as to fix the back flow of the water to the extreme limit and to a definite point immediately after the execution of the grant, and uninterruptedly continued for fifty years it must be held as a matter of law that the right or privilege under the grant is exhausted by these acts of the parties as the best evidence of their intention.</p>

<p>Appeal, No. 135, April T., 1897, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1895, No. 594, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before McClhhg, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $800. Defendant appealed.</p> <p>Error assigned was (1) Refusal of binding instructions for defendant.</p>

<p> Evidence to impeach consideration for a bond. </p> <p>In a suit to recover balance clue on a bond given for goods sold and delivered at a fixed price, after several payments on an extension of said bond, evidence was properly rejected which purported to show that the goods sold were not worth the price for which the bond was given.</p>

Appeal, No. 151, April T., 1897, by J. H. Miller, one of defendants, from judgment of C. P. Butler Co., May T., 1896, No. 48, on verdict for plaintiff. Ejectment. Before Barker, P. J., of the 47th judicial district specially presiding.

<p>Appeal, No. 146, April T., 1897, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1893, No. 263, on verdict for plaintiff.</p> <p>Trespass for obstructing right of way. Before Rayburn, P. J.</p> <p>This case came before the Superior Court in 2 Pa. Superior Ct. 422. The plaintiff, the owner of the alleged dominant tenement, brought this action in trespass against the defendant,. the owner of the alleged servient tenement, for obstruction of a right of way over the alleged servient tenement. It was alleged that a petition was presented for a road, which should run both over the land of Hudson and Watson, and that it was agreed between Watson and Hudson that if Watson, who was about to object to the new road, would withdraw his objection and allow the new road to be laid out that Hudson would cease to travel the old road; that Watson acquiesced and the new road was laid out upon the Watson property; that Hudson succeeding in having the new road opened, repudiated his agreement and undertook to travel over the Watson property by both routes, whereupon Watson undertook to and did obstruct the old road. Hudson then brought an action of trespass. Watson defended on the grounds : First. That-the road was abandoned by the agreement of Hudson and that the agreement was carried out and that by virtue thereof an additional servitude was put upon his land which resulted in his injury and Hudson’s benefit and that Hudson could not repudiate his agreement. Second. That the road was a public one and that the remedy for obstructing a public road was indictable, not actionable. Third. That the plaintiff could not acquire a right of way through unenclosed woodland. Fourth. That the road claimed was not over the same route, but was a loose and rambling way.</p> <p>On the first trial a verdict was rendered in favor of the defendant, but the judgment was reversed by the Superior Court. See 2 Pa. Superior Ct. 422.</p> <p>Oar the second trial verdict and judgment for plaintiff for $1.50. Defendant appealed.</p> <p>Errors assigned among others were (1) In answer to the plaintiff’s ninth point, which point and answer are as follows : “9. We instruct you,-that the mere agreement between Hudson and Watson, even if actually made, would not be sufficient upon which to base an abandonment of the easement claimed by Hudson, unless that agreement was actually carried into effect; and to carry it into effect, it was essential that Watson, the defendant, should have taken possession of the way or obstructed the road under and in pursuance of the terms of the agreement. Answer: That point is affirmed.” (2) In the general charge as follows : “Now, in reference to this way from Mr. Hudson’s down, we desire to call your attention to the testimony of some of the witnesses and we have already spoken about it a little. That is as to the opening of this road by Moore and the using of it. Now, if you find from the evidence that this road was opened by Moore, and used across, the land of Watson with the consent and agreement of the former owners in title and that Moore and the successors in title to this property now owned by Hudson had the right of way as an easement across the land of Watson, and this right of way was appurtenant to this land occupied by Hudson, then Hudson Avould have the right to use that way unless he would abandon the right in some way.”</p>

<p>Executor's sale — Release of lien by building association — Question for jury.</p> <p>An affidavit of defense, in a suit by a building association, is sufficient •which alleges that, at an executor’s sale of the premises subject to the mortgage, the authorized attorney of the association announced that the sale would discharge the mortgage; that the sale was confirmed ; that the association presented at the audit a claim on the fund which was allowed by the court and paid by the executor.</p>

<p>Appeal, No. 33, April T., 1897, by John B. Potter, executor, from decree of O. C. Beaver Co., surcharging executor in distribution.</p> <p>Petition to' open decree of distribution of balance in the hands of executor so far as it relates to award to the Beaver Building & Loan Association, and for a rule on the executor to show cause why he should not pay the same into court.</p> <p>The facts sufficiently appear from the report of the previous case, ante, p. 462, and the opinion of the court in this case.</p> <p>The court made absolute the rule, and directed the executor to pay to George M. Badders, guardian of petitioners, the sum of 1494.70, with interest thereon from March 9, 1892.</p> <p>Errors assigned among others were (1) In finding as a fact: “There is nothing in this case that shows that the Beaver Building & Loan Association authorized the divestiture of its mortgage on the Yianna L. Badders property by the executor’s sale.” (2) In finding: “Awarding to said association the balance due on its mortgage, without payment of the same, would not preclude the said association from proceeding on its mortgage and selling the property to make its money.” (5) In directing John B. Potter, executor of Yianna L. Badders, deceased, to pay to George M. Badders, guardian, the sum of $494.70, with interest thereon from March 9, 1892.</p>

<p>Appeals — Interlocutory orders — Practice, Superior Court.</p> <p>Appeals should not be resorted to when the effect is to bring cases into the appellate courts by instalments. Such practice is attended with obvious disadvantages and unnecessarily delays final disposition.</p> <p>An appeal from the order of the common pleas allowing an appeal nunc pro tunc from the judgment of a justice is an appeal from an interlocutory order and as such will be quashed.</p>

<p> Evidence must be pertinent to the issue. </p> <p>The unbending rule that evidence must be confined to the point in issue excludes all evidence of collateral facts, or of those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, because such evidence diverts the minds of the jurors from the point in issue and excites their' prejudices; and, furthermore, the adverse party, having had no notice, is unprepared to meet it.</p> <p>The issue, in the court of common pleas, being whether decedent was indebted to the plaintiff on a note alleged to have been destroyed by fire and plaintiff having failed to present any claim at the audit of the estate in the orphans’ court, the auditor’s report and decree of the orphans’ court granting leave to mortgage real estate are inadmissible for the purpose of showing that decedent did not have personal property sufficient to pay his debts, thus showing a reason why he had not paid the alleged note.</p>

<p>Ghurch law — Naked trustees — Secession from the church — Injunction.</p> <p>Trustees to whom were conveyed certain property in trust for the uses of a religious organization, having seceded and also having been expelled from the organization, have divested themselves from all standing to control the church property, and may not intervene by bill in equity to enjoin any one from doing anything which affects in any way the interests of property of the said church.</p>

<p>Appeal No. 11, February Term, 1896, by defendants, from judgment of C. P. Clinton Co., May Term, 1894, No. 121, on verdict for plaintiff.</p> <p>Foreign, attachment in assumpsit. Before Matee, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $936.40. Defendants appealed.</p> <p>Errors assigned among others were (1) In admitting in evidence the record of the deed from the defendants to Daniel Mulvihill: this for the purpose of showing that after S. V. B. Wells had obtained possession of the article of agreement in the manner in which we allege he did obtain it, that he immediately sold the property for $600. (2) In admitting in evidence the letter of S. V. B. Wells to John Smith, Esq.; the purpose of the offer being to show that previous to the time he obtained possession of the agreement, he had been making offers and had negotiated a sale of his property to Daniel Mulvihill, two months before the date when it is alleged that he obtained the surrender of this agreement. A copy of the letter is as follows:</p> <p>“ Westfield, N. Y., Sept. 12,1889.</p> <p>“ John Smith, Esq., Benovo, Pa. :</p> <p>“ Dear Sir: John W. Forster writes me that Mr. Dan. Mulvihill has accepted my proposition to buy my 10th street property at $600, six hundred dollars, two hundred dollars down and $50.00 fifty dollars every six months, with interest. Balance of $400 to be secured by bond and mortgage, wife to sign mortgage and bond if he has one.</p> <p>“ Please execute the papers according to the statute of your state and send the deed to me to sign, and in the meantime ascertain the amount of taxes against the place. Pay them so you can give Mr. Mulvihill a receipt for the same. And after taking your fees and paying taxes pay J. W. Forster $25.00 as a present from his grandpa, then send me the balance by N. Y. draft, less the exchange.</p> <p>“Yours truly,</p> <p>“S. V. B. Wells.</p> <p>“P. S. — Mr. Smith, this is property I bought for my son, Henry E. Wells, and the deed is in his name and reverts to me by heirship, and you can make the deed so that a claim of title can be traced. H. E. Wells died without issue. I have no wife. I send you the deed. I think this is all that is necessary. Yours, etc.,</p> <p>“ S. Y. R. Wells.”</p> <p>(3) In charging the jury : “ Where a vendor sells to a vendee real estate by articles of agreement and subsequently the vendor executes and delivers a deed to another 'party and puts the deed on record, the vendee has a right to bring an action to recover the purchase money. He can declare the contract rescinded and recover back the purchase money paid on the agreement where the vendor has executed and delivered a deed for the same property to another party and put the deed on record.” (4) In charging the jury as follows : “ But the plaintiff alleges that this agreement of surrender was never signed by him. He states that no such an agreement was made between him and Wells and that the paper which purports to have been signed by him was not signed by him, but on the coirtrary alleges it is a forgery. This is a question of fact which the jury must determine under the evidence, and we submit it to you, .... it will be for you to determine by the evidence whether the receipt indorsed on the back of this agreement is a genuine receipt and was executed by Willsey as claimed by the defendants. ... If, however, the jury are fully satisfied, and as I have already said to you the evidence must be clear and satisfactory, if you are fully satisfied that the paper is a forgery, then we say to you the plaintiff would be entitled to recover back the amount of the purchase money, $685, and interest upon it from the time it was .paid.” (7) In their answer to defendants’ fifth point, which point and answer thereto are as follows : “ 5. That the deed of the above-named defendants to Daniel Mulvihill offered in evidence conveyed no more to the said Mulvihill than the interest which the defendants had at the time, and did not deprive the plaintiff of any equities which he had in the property at that time. Answer: That point is refused.” (9) In their answer to the defendants’ seventh point, which point and answer are as follows: “ 7. That the deed from the defendants to the said Mulvihill did not affect the equitable title of the plaintiff, and that he had the same remedy against the said Mulvihill for the possession' of the property as he would have had against the said Wells, or against said defendants if the deed to Mulvihill had not been executed and delivered. Answer: That point is also refused.” (11) In their answer to defendants’ ninth point, which point and answer thereto are as follows: “ 9. That the judgment of P. O’Hagan & Son against the said plaintiff offered in evidence, which was entered in 1888, was a lien upon the equitable title of the said plaintiff, and the sheriff’s deed to James O’Hagan, made in pursuance of the sale on said judgment, divested the equitable title of the plaintiff before this suit was brought, and therefore the plaintiff has not been injured, and he has no right of action in this case. Answer: That point is refused.” (12) Refusal of binding instructions for defendant. (14) Sustaining objections and excluding the offer in evidence of the record of the judgment of Peter O’Hagan & Son v. Samuel Willsey; the purpose of this offer being to show that the equitable title, all the title of the plaintiffs, had been divested before the bringing of this suit.</p>

<p>Appeal, No. 189, April T., 1897, by defendant, from judgment of C. P. No. 1, Allegheny County, December T., 1895, No. 811, on verdict for plaintiff.</p> <p>Appeal from alderman. Before Collier, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $118.13. Defendant appealed.</p> <p>■ Errors assigned were (1) Refusal of binding instructions for defendant. (2) Refusal of defendant’s second point, which point is as follows : “ 2. The plaintiff being a niece of the insured and not living with him and having no expectation of benefit from the continuance of his life, had no insurable interest therein, and the verdict, therefore, should be for the defendant.”</p>

Appeal, No. 178, April Term, 1897, by plaintiff, from judgment of C. P. No. 8, Allegheny County, November T., 1894, No. 486, on verdict for defendant. Attachment sur judgment. Before McCluhg-, J. ■ The facts sufficiently appear in the opinion of the court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in sustaining defendant’s objection to plaintiff’s offer to prove by Wm. B. Swager certain facts which are set out in the opinion of the court.

<p>Easement — Rule as to surface drainage of city lots.</p> <p>The rule laid down in Bentz v. Armstrong, 8 W. & S. 40, that the agricultural rule of drainage as between servient and dominant tenements cannot apply in cities and towns, has never been departed from.</p> <p>In the cities a lot owner in improving his lot must arrange to conduct the natural drainage, arising from rain or other causes, directly from it to a sewer or other appropriate place for the receipt or discharge of the same. It must not be turned or led or permitted to flow upon the lot of an adjoining owner. Failure to provide for such surface drainage will result in a cause of action to an adjoining owner.</p>

<p>Appeal, No. 103, April T., 1897, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1896, No. 127, on judgment for plaintiff for want of a sufficient affidavit of defense.</p> <p>Assumpsit on a promissory note.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Judgment for plaintiff for want of a sufficient affidavit of defense for $108.60. Defendant appealed.</p> <p>Error assigned was entry of judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 25, April T., 1897, by defendant, from judgment of C. P. Beaver Co., on verdict for plaintiffs.</p> <p>Assumpsit on policy of fire insurance. Before Wilson, P. J.</p> <p>It appeared from the evidence that plaintiffs erected a one-story frame shingle-roofed building, which was occupied by them as a clothing store and sleeping room which they had leased from one William Wagner. What the terms of the lease were and whether the building was owned by plaintiffs or by the landlord, does not appear from the evidence.</p> <p>On April 9, 1891, a policy of insurance against direct loss or damage by fire to this building was issued by the local agent of this company, at the plaintiffs’ request. This policy was for $475. The interest of plaintiffs therein was afterwards transferred to the use plaintiff. The building, counter and shelving insured were destroyed by fire on the 10th of October, 1893, and the insurance company refusing to pay the amount of the policy, suit was brought thereon by plaintiffs for the use of John E. White. The policy contained the following conditions : “ This insurance policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void .... if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.” No such agreement was indorsed on this policy, and defendant contended that because the building was on leased ground, and also because the plaintiff did not own the subject of insurance, the court below ought to have taken the case from the jury. The other matters wherein the court below is alleged to have erred in the admission of evidence, etc., will appear in the various assignments of error.</p> <p>Verdict and judgment for plaintiff for $531.32. Defendant appealed.</p> <p>Errors assigned were (1-4) refusal to answer plaintiffs’ first, second, fourth and third points : “ 1. The alleged proofs of loss not complying even substantially with the terms of the policy, are insufficient; and the plaintiff therefore not having complied with the requirements of the policy, is not entitled to recover in this case and the verdict must be for the defendant. 2. The policy in suit providing ‘ that this policy is made and accepted subject to the foregoing stipulations and conditions, and that no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provision and condition, no officer, agent, or representative shall have such power or be deemed or held to have waived such provision or condition unless such waiver, if any, shall be written upon or attached hereto.’ And no agreement with regard to the leasehold being indorsed thereon, parol evidence of the agent’s knowledge of the actual facts are inadmissible, and the evidence showing clearly and indisputably that the building destroyed was upon leased ground, the verdict of the jury must be for the defendant. 4. The policy providing that this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple; and the evidence showing clearly that the subject of insurance was a building on ground not owned or even claimed by the plaintiff, the court is respectfully requested to direct the jury to find a'verdict for the defendant. 3. Under all the evidence in the case the verdict must be for the defendant.” (5) In admitting the following offer on the part of the plaintiffs: “ Plaintiffs’ counsel offers in evidence copy of the proof of loss.” (6) In overruling motion for compulsory nonsuit. (7) In overruling defendant’s objection to the cross-examination of Charles W. Hurst with reference to the policy in question: “ Plaintiffs’ counsel propose to show that on the face of the policy itself it shows he had notice that it was in strict conformity to the condition of things and in accordance with the facts.” (8) In admitting the testimony of J. M. Davis, on the part of the plaintiff, in rebuttal, which was as follows: “ You may state to the court and jury whether or not you were present at the time that Mr. Hurst, the agent, was over there looking at that property with a view of insuring it.” (9) In admitting the testimony of Morris Barnett, in rebuttal, which was as follows : “ Q. You have already testified you were the party or person who took out this policy in the first instance ? A. Yes, sir. Q. At the time of the negotiations, Mr. Barnett, relative to this insurance, state whether or not at the time jmu had any conversation, or what was said to Mr. Hurst about the property being leased property or not. State what occurred. Objected to. By the Court: It is admitted as proper rebuttal.” (11) In the charge as follows : “ It is further relied upon by the defense and urged that under the terms of the policy, as provided therein,- ‘ this policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have the power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such conditions and provisions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.’ It is contended that there was no agreement attached to or written upon the policy between Barnett & Davis, or between White, when he took an assignment of it, and the agent of the defendant company, Mr. Hurst. The court cannot instruct you that that would be a bar to recovery in this case.” (12) To a portion of the charge as follows: “ But it is contended on behalf of the defendants in tins case, that under the terms and conditions of the policy the plaintiff is not entitled to recover. It is provided in the policy that ‘ If fire occur the insured shall give immediate notice of any loss thereby in writing to this company; protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of the loss thereon, and all incumbrances thereon,’ etc., and other requirements it is not necessary for the court to read. As has been said, the defense contends, that the plaintiff in this case did not comply with this term or condition of the policy. That he failed to furnish or serve upon the defendant company a sufficient proof of loss, and that for that reason, if for no other, they, the defense, would be entitled to a verdict. It is in testimony, tliat the plaintiff in this case attempted or did serve upon the agent of the defendant company, who countersigned the policy, with a notice of some kind; that an attempt was made to furnish him with a proof of loss — at least serving’ upon him a paper which he has sworn to, purporting to be a proof of loss. That under the direction of the agent, into whose hands he had placed this paper— the agent then being ill — he put the same in the post-office, at his request, evidently inferring that it would be sent to the company. It also appears from the testimony, that the company never rejected the proof of loss, or the paper furnished by the plaintiff as such proof of loss, or an attempt on his part to furnish one, and even up until this time they have not signified, except in the trial of the case, in any way that that proof of loss was insufficient. Under the law, gentlemen, if the insured in good faith and within the specified time — the stipulated time— does what he plainly intends is a compliance with the requirement of the terms of his policy respecting proofs of loss, good faith requires that the insurer shall promptly notify liim of any objection thereto, so as to give him the opportunity to correct the same. And mere silence may so mislead him to his disadvantage as in itself to be sufficient waiver by estoppel. On this branch of the case, gentlemen, there being no testimony on the part of the defense that they had refused or notified the plaintiff in the case that the paper furnished them was not a sufficient proof of loss, under the policy — if you find from tbe evidence that he did so furnish a paper and in good faith attempted to furnish a proof of loss to the defendant company, and they for an unreasonable time retained that in their possession, not notifying the plaintiff that it was insufficient, then this would not be a good defense.” (IB) The charge of the court below was inadequate and insufficient, in that it wholly fails to instruct the jury in regard to the evidence which is necessary to establish a parol waiver in the ease of an express stipulation in the policy that nothing should amount to a waiver unless specifically agreed to and indorsed on the policy. (14) The charge of the court below was inadequate in that it failed to instruct the jury clearly as to the facts and the law applicable to the facts in this case.</p>

<p>Appeal, No. 158, April T., 1897, by plaintiff, from decree of Q. S. Clarion Co., Aug. Sess., 1895, No. 2, refusing order of removal.</p> <p>Order of removal of Hettie Keatley. Before Clark, P. J.</p> <p>Tbe facts sufficiently appear in the opinion of tbe court.</p> <p>J. T. Maffett, Esq., who was appointed commissioner by the court below, reported in favor of refusing the order of removal at tbe cost of tbe Poor District of the borough of Edenburg.</p> <p>Exceptions filed to tbe report of the commissioner were dismissed by the court below.</p> <p>Errors assigned among others were (14) In tlie first conclusion of law, which finding is as follows: “ That under the facts stated in tbe second and third paragraphs of the foregoing point of evidence said Hettie Keatley acquired a legal settlement in said borough of Strattanville, and the order of removal in this case should be affirmed and the appellants be ordered to pay tbe costs and expenses. Answer: Refused because she gained a later settlement in Edenburg borough.” (15) In the second conclusion of law, which finding is as follows: “ That there is not sufficient evidence in this case to show that Hettie Keatley acquired a later legal settlement than tbat acquired as above stated in Strattanville borough. Answer: Refused.” (16) In the third conclusion of law, which finding is as follows : “ That the payment by Miss Hettie Keatley of the 1894 taxes on December 11,1894, or the 1895 taxes, after she was removed to Strattanville borough, after she had become a public charge on Edenburg borough, and continued to be, would not make her legal settlement in Edenburg borough. Answer: Refused as to the 1894 tax. Affirmed as to the 1895 tax.” (IT) In .the fourth conclusion of law, which finding is as follows: “ That the date when Miss Keatley became a public charge on Eden-burg borough fixes the time where her last place of legal settlement should be. Answer: Refused under the evidence in this case. Her last place of legal settlement would be the one she had at date of execution of order of removal.” (18) In the ninth conclusion of law, which finding is as follows: “ That the last place of legal settlement of Hettie Keatley is Strattanville borough. Answer: Refused.” (19) In answering defendant’s sixth point, which is as follows: “ That said Hettie Keatley by reason of the assessment and payment of the taxes as alleged in the preceding point prima facie acquired a settlement in said borough of Edenburg under the poor laws. Answer: Affirmed.” (20) In affirming defendant’s seventh point, which is as follows: “ That said Hettie Keatley by the assessment and the payment of the taxes so charged against her for the two successive years of 1893 and 1894, acquired a settlement in said borough of Edenburg absolute and conclusive under the poor laws, unless that district has proven by a preponderance of evidence that at the time these taxes were assessed or paid she was receiving aid as a pauper, i. e., a necessary subject of relief and regularly a charge on said district under an order of two justices procured by her or at her instructions or request.” (21) In answering defendant’s eighth point, which is as follows: “ If relief were furnished Miss Keatley by the overseers of Eden-burg borough, without an order of two justices issued prior to January 1, 1895, in no event could furnishing or acceptance of such relief hinder the operation of the statute giving her a settlement at that date by the payment of the taxes of 1893 and 1894. Answer: Affirmed.” (22) In answering defendant’s eighteenth point, which is as follows: “ That the facts and evidence that Hettie A. Keatley, a single woman, sixty-five years of age, refined and highly intelligent, sensitive temperament, of many years’ experience as a teacher, of Christian character, an authoress with copies of her books on hand for sale, with friends in all directions ever ready to aid her unsolicited, owner of unincumbered real estate, in undisputed occupancy of a dwelling house, duly appointed and furnished for her comfort and convenience, where she had resided for sixteen years, with provisions in store for immediate needs, and only five or six dollars in debt, led irresistibly to the conclusion that she did not knowingly and of her own volition make herself or suffer herself to be made a pauper or a borough charge, or procure or permit another to procure for her an order of two justices for that purpose, and not having done so, she was not such a charge without her knowledge or procurement, and not disabled from obtaining a settlement by payment of the two successive years’ taxes of 1893 and 1894. Answer: Refused, except latter part as to taxes of 1893 and 1894, which is affirmed.” (23) In answering defendant’s nineteenth point, which is as follows: “ That the lot of land owned by Hettie A. Keatley in her own name in the borough of Edenburg, having been included and assessed with a lot in the name of her sister, Jane Mendenhall, and two successive years’ taxes paid on the whole, at a time when Hettie either paid the whole, or was liable to Jane for her proportion, would be such a charge and payment of her proportion of public taxes and levies as under the act would give her a settlement under the poor laws. Answer: Affirmed as an abstract proposition, but refused for the purposes of this case, for lack of sufficient evidence of actual payment.” (24) In answering the defendant’s twentieth point, which is as follows : “ That under all the evidence in this case the order of removal should be discharged, the appeal sustained, and the poor district of Edenburg borough ordered to pay to the poor district of Strattanville borough her reasonable costs, charges for maintenance, and the costs of these proceedings. Answer: Affirmed.” (25) In the order or decree in sustaining the appeal of the poor district of the borough of Strattanville from the order of removal of Hettie Keatley by Edenburg borough, which order or decree is in these words: “ And now, February 9, 1897, after argument and upon due consideration thereof, the report of the commissioner, the points, and exceptions, for the reasons set forth in the commissioner’s report we sustain the rulings of the commissioner upon the points and exceptions of plaintiff and defendant. And it is adjudged and decreed that the report of the commissioner be and is hereby confirmed, and the order of removal reversed at the cost of the poor district of the borough of Edenburg, and it is further adjudged, ordered and decreed the said plaintiff, the overseers of the poor of Eden-burg borough shall pay the costs of these proceedings, and the defendant’s reasonable costs and charges in this behalf expended, and its reasonable costs and expenses in maintaining the said Hettie A. Keatley to the date of the decree in this case.”</p>

<p>Appeal, No. 50, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1896, No. 751, for want of a sufficient affidavit of defense.</p> <p>Assumpsit to recover the cost of paving sidewalk.</p> <p>The defendant was the owner of a lot of ground in the city of Pittsburg. The city, after notice alleged to have been given, proceeded to have a flagstone pavement or sidewalk laid. Upon completion of the work the cost was assessed by the city upon defendant’s lot. The defendant refused to pay the same and the city for the use of the contractor instituted this suit in assumpsit for the recovery thereof. The defendant interposed an affidavit of defense denying notice to him to do the required work, and the right of the plaintiff to recover a general judgment against him therefor, and averring that such judgment only, if any, could be recovered as would enable the city to collect the cost of the work from the lot aforesaid upon which the same was assessed, and further averred that as the claim sought to be recovered was less than $100, and the plaintiff not having caused an oath or affirmation to be made and filed in the prothonotary’s office, before obtaining the writ of summons, that the debt due exceeded the sum of $100, the judgment, if any, recovered should be without costs. The court directed judgment for plaintiff for want of a sufficient affidavit of defense for $45.93. Defendant appealed.</p> <p>Errors assigned were, (1) entering judgment generally against the defendant. (2) In not entering judgment the hen of which and the execution whereon should be restricted to the ■lot of ground on Hazelwood avenue, in front of and along which the said sidewalk was laid, and against which the said claim was assessed. (3) In not entering judgment without costs.</p>

<p>Will — Buie of construction.</p> <p>Where well considered and unimpeached adjudications have assigned to certain forms of disposition a determinate result, the courts are bound by it as an ascertained law of construction.</p> <p>Will — Buie of construction — Technical language.</p> <p>Where a testator uses words without explanation or qualification in the context which, according to a settled rule of law, import an estate tail or a fee simple the legal meaning of the will is to prevail as the actual meaning of the testator.</p> <p>Will — Inconsistent estates — General and particular intent.</p> <p>A testator cannot create estates inconsistent or incompatible with each other, and a particular intent must yield to a general intent, when necessary to preserve the compatibility of the estates created.</p> <p>Will — First devisee as a root of new succession — Rule in Shelley's case.</p> <p>Where the general intention, is that the first devisee shall be the root of a new succession, and that those in remainder shall take as his heirs either general or lineal, they take by descent from him; consequently the estate given to him must be a fee, since nothing but an inheritable estate can be taken by descent.</p> <p>Rule in Shelley's case — Words and phrases.</p> <p>A devise for life may be enlarged to a fee simple or fee tail by a limitation upon the death of the devisee to his heirs. Such limitation will arise not only from the use of the word “ heirs ” but from any equivalent expression not restrained in effect by a different intent appearing from the will as a whole. Authorities on this point reviewed.</p> <p>Will — Construction—Indefinite failure of issue — Words and phrases.</p> <p>Upon a devise over on failure of issue, or by expressions of like import, an .indefinite failure is understood ; those in remainder taking nothing until the entire line of issue is extinct.</p> <p>Authorities collated and reviewed.</p> <p>Estates tail — Creation of — Effect.</p> <p>While a fee tail can no longer subsist, it may still be created, to be by force of the statute transformed into a fee simple.</p> <p>Will — Construction—Rule in Shelley's case — Estate tail — Indefinite failure' of issue.</p> <p>The devise in controversy was in the following terms: “I leave and bequeath to my four younger sons Jonathan T. Phillips, David Phillips, Timothy Phillips and John Phillips all the residue of my farm together with the coal scaffold at the river and lot belonging to it during their natural lifetime to be equally divided amongst them-in quantity and quality and providing any of them dies without heirs the share of the deceased shall be divided amongst the surviving ones and at their death to be divided amongst their children and so on from one generation to another.” Held, (1) That the failure of issue in contemplation is an indefinite failure of issue; (2) That the estate passing to the first devisees is an estate tail converted by the statute into an estate in fee simple.</p>

<p>Appeal, No. 155, April T., 1897, by defendants, from judgment of C. P. No. 3, Allegheny Go., Nov. T., 1892, No. 469, on verdict for plaintiff.</p> <p>Trespass for libel. Before Kennedy, P. J.</p> <p>The following facts appear from the charge of the court below:</p> <p>“ Gentlemen of the Jury. This is an action of libel. The • plaintiff seeks to recover damages from the defendants which, lie alleges, have accrued to him by reason of the publication of an article that is libelous in its character. A libel is the publication of any printed or written matter which is calculated to injure a person in his good name and reputation, or that holds him up to public ridicule and contempt. The defendants are the publishers of a newspaper, publish in the city of Pittsburg, called the Pittsburg Commercial Gazette. In their issue of Friday, October 14, 1892, an article was published which has been read to you, and that article the plaintiff claims was calculated to injure him, and did injure him in his good name and reputation, in that it held him up to public ridicule and contempt, and injured his standing in the community or in society. The article is quite a long one, and it is not necessary for me to read it. In substance it alleges that the plaintiff was engaged in the sale of liquors without a license from the proper county authorities; that he had paid a government license and tax to the government for the privilege of retailing liquors, and upon the strength of that he was selling liquor without any license from the proper county authorities. This is substantially the charge, and 1ns name is given, with that of a great many others who were engaged in the same business, and there are other charges connected with the list of names that are included in the publication, namely, keepers of speakeasies, or other houses of bad repute. That, I say, is the insinuation in the article. But the real charge made against them seems to be substantially that they were selling liquor without the proper license from the county authorities, and perhaps, too — you will recollect the article — there is included in the charge that they were selling on Sunday. Now, these are violations of law, these charges, the sale of liquor without license, or the sale on Sunday ; they are criminal offenses and usually a charge made against a person that he has committed a criminal offense is libelous in its nature, although not necessarily so. If, however, the charge tends to hold the person up to public ridicule or contempt, and is calculated to injure him in the community, or his standing in society, then it is libelous. [The question for you to^Letermine is, whether the article here, which does charge this plaintiff with a violation of law, is calculated to injure him in his good name and reputation, and whether it held him up to public ridicule and contempt and injured his standing in society; if so, he is entitled to recover in this case.] [1]</p> <p>“ It seems the information that formed the basis of the article in question was obtained at the office of internal revenue in the city of Pittsburg, where a list of the names of those who took out this government license is kept, and persons connected with this newspaper, upon application to the proper office, obtained there a list of the names of those who had taken out this government license for the retail of liquors. Finding that certain of them had not obtained a license for the sale of liquors from the county, the list was published as those that were engaged in the sale of liquors illegally, they not appearing upon the list in the county offices. It is assumed that this list at the internal revenue office was correct. Now, it seems that in that list a mistake was made by the government officer in registering the name of Mr. Ingram, who was a manufacturer of cigars. They improperly placed him as a retail liquor dealer. His name comes on the list after the names of several others who were engaged in the business of retailing liquors, and opposite their names appears R. L. D., meaning retail liquor dealer, and below that and following it are several other names in the same business, with the ditto mark under them, and then Mr. Ingram’s name, with the ditto mark. As I have stated, this was the basis of information obtained by the newspaper, and of the publication of the article. [It seems, however, that a mistake was made by the officer in placing this ditto mark opposite the name of Mr. Ingram, and there should have been the letters M. of C., meaning manufacturer of cigars, opposite his name. That was subsequently placed, instead of the ditto mark, as the mistake on the book was corrected some days afterwards, on its being discovered. But in the meantime, as appears here, this publication had been made, and Mr. Ingram’s name appears in the list of those who are engaged in an illegal traffic of liquor. This record, while it misled the newspaper publishers and caused this mistake, yet they were not justified in making the publication upon that record alone. If the record had been inspected it would have disclosed the fact that he was really not a retail liquor dealer. This was shown by the fact that no tax appeared to have been paid by him, and the number was not the number succeeding that of the one just before him upon the list, as it would have been if he had been engaged in that business, but a much smaller number, which corresponded with those, or was next succeeding the one who was registered as a manufacturer of cigars.] [2] [So I say the newspaper was not justified in publishing this man as a retail liquor dealer, merely because they found his name as it was upon this book. Even if it had not been disclosed by the book itself that he was not engaged in this business, it would have been their duty to make some effort, at least, to ascertain the truth of the charge that they were making, namely, that he was engaged in this illegal business, before making the publication. In other words, they took the chances of the publication if they did publish without making any investigation to ascertain whether or not it was true.] [3]</p> <p>“ [The question for your determination is, whether or not this article was libelous in its character, whether it held up the plaintiff to public ridicule and contempt, and injured him in his good name and reputation; if so, he is entitled to a recovery here in such sum as will compensate him for the injury to his character, resulting from this publication, and you are the sole judges as to the amount. You will take all the facts and circumstances into consideration in ascertaining that amount.] [4] And while I have stated that the publication is not justified alone from this record of the internal revenue office, yet that fact is to be taken into consideration in mitigation of the damages to be recovered. It shows some effort upon the part of the newspaper to be correct, and that fact, while it does not justify the publication and is not a complete defense to the action, is to be taken into consideration by you as one of the circumstances in mitigation of the damages — one of the circumstances, with others, showing what basis the newspaper had for making the publication. Then you have also another circumstance, the fact of the correction of the mistake some days later. [This article appeared on the 14th of October. On the 18th of October the statement was published in the same newspaper that this was a mistake and that Mr. Ingram had not taken out a government license or paid the government tax for the privilege of retailing liquors, but that he was engaged in the manufacture of tobacco and cigars, and had taken out that sort of license. This correction was made on the 18th. You are to take that fact into consideration; but in connection with that you are also to consider that the correction was not made until after the suit had been brought.] [5] In the article which has been offered in evidence, containing the correction, there is the statement that Mr. Ingram had brought suit; so that the correction was not made until after he brought suit. '</p> <p>“ [If you find the article libelous in its character, under the instructions I have given you, then you will find a verdict in favor of the plaintiff for such sum as you believe would be proper compensation to him for the injury done to him.] [6]</p> <p>“ The defendant has requested the court to charge as follows: “ [First. It being undisputed that plaintiff was registered in the public records of the United States as a retail liquor dealer, and that he had no license from the courts of Allegheny county, and that defendant searched and relied upon said records, it being a matter of public concern, the defendants had probable cause for the publication, and no malice having been proven the verdict should be for the defendants. Answer: This point is refused.] [7]</p> <p>“ Second. In order to made any publication libelous per se, that is, implying malice on its face, the publication must not only charge the plaintiff with an indictable offense, but also with an offense involving moral turpitude. The mere charge or publication that the plaintiff sold liquor at retail without a license, is not charging the plaintiff with an offense involving moral turpitude. Answer: This point is affirmed. But the jury are to determine whether or not this does hold him up to public ridicule and contempt, and if so, it is libelous.</p> <p>“ [Third. That the publication complained of is a privileged publication, and if the jury believe it was made in good faith and on probable cause, then the verdict must be for defendants, unless the plaintiff has proven by satisfactory evidence actual malice on part of defendants outside and independent of the publication, although the allegations of the publication may not be true. Answer: This point is refused. It is not a privileged communication; I have already said that to the jury.] [8]</p> <p>“ [Fourth. If the jury believe that the publication complained of was made on proper occasion, in a proper manner, from a proper motive, and defendants had reasonable or proper cause to believe them to be true, plaintiff cannot recover, and the verdict must be for the defendants. Answer: This is a correct statement of a principle of law, gentlemen, but in this case there does not seem to have been any effort made upon the part of the defendants to ascertain whether the statements made were true or false, before malting the publication, and the principle here laid down is not applicable in this case.] [9]</p> <p>“ [Fifth. Under all the evidence the verdict must be for the defendants. Answer: This point is refused.] [10] ”</p> <p>To which charge of the court and answers to defendants’ points, except where affirmed without qualification, counsel for defendants except, and at their instance bill sealed.</p> <p>Verdict and judgment for plaintiff for $700. Defendants appealed.</p> <p>Errors assigned were (1-6) Portions of the charge of the court, reciting same. (7-10) Answers to defendants’ points, reciting same.</p>

<p>Appeal, No. 136, April Term, 1897, by defendant, fromorder of C. P. No. 3, Allegheny Co., Nov. T., 1895, No. 191, dismissing exceptions to sheriff’s return.</p> <p>Beaver, J., dissents.</p> <p>Exceptions to sheriff’s special return to vend. ex. sur judgment for $123.63. Before Kennedy, P. J.</p> <p>The sheriff, having made a special return showing sale of defendant’s property on a vend. ex. for the sum of $171 and the payment of $50.00 in cash by the purchaser, which was appropriated to costs on the writ, and receipt on judgment of plaintiff for the amount of the balance of his debt, the defendant filed the following exceptions:</p> <p>1. The sheriff erred in appropriating any part of the proceeds of sale to costs on above writ. [1]</p> <p>2. The sheriff erred in distributing any part of the proceeds of sale to plaintiff on his judgment, No. 191, November term, 1890, or any other judgment. [2]</p> <p>3. The sheriff erred in not distributing and appropriating the entire proceeds of sale to the defendant, as claimed and demanded by her in her written notice to him of her claim of the benefits of the three hundred dollar exemption law, which notice is attached to the sheriff’s return and was served upon him immediately after the above writ was issued and before the sale was advertised. [3]</p> <p>4. The sheriff further erred in distributing any portion of the proceeds of sale to plaintiff on judgment No. 191, November term, 1890, there being no such judgment on record in favor of plaintiff against defendant.</p> <p>Other facts appear in the opinion of the court.</p> <p>The exceptions filed by the defendant were dismissed by the court after argument whereupon defendant appeals.</p> <p>Errors assigned were (1-3) dismissing plaintiff’s exceptions, reciting same.</p>

<p>Riparian rights — Upper and lower owners — Use of waters.</p> <p>Ownership of land does not include ownership of the water which flows over or past it. The right which the owner has is to the use of it in common with the other owners as an incident to the land.</p> <p>For many purposes — for example, for domestic use and for watering cattle — the riparian owner may divert, detain and even consume the water without regard to the effect which such use may have, in case of deficiency, upon proprietors lower down the stream; but he has not in all respects an equal right thus to divert, detain or consume the water for purposes, which, although the same in kind, are in no way connected with the use of the land.</p> <p>Water and water rights — Illegal diversion — Right of action.</p> <p>An illegal diversion of water,by an upper riparian owner is a continuing injury and is not referable to the day when first commenced, but successive actions may be brought as long as it is continued.</p> <p>The purchaser of an estate upon a stream from which others have unreasonably diverted the water is entitled to recover if such diversion is continued.</p> <p>Riparian rights run with land — Eminent domain.</p> <p>Riparian rights are incident to the ownership of the banks of the watercourse. They run with the land. They may be granted away or be extinguished by condemnation proceedings or by prescription, but cannot be defeated by simple appropriation.</p> <p>Riparian rights — Diversion of waters — Water company and glass company.</p> <p>A water company being an upper riparian owner, and a glass company a lower riparian owner, have the rights of riparian owners only to the stream on which they abut; it follows that the latter may maintain an action to recover such actual and special damages as it sustained in consequence of the detention and diversion of the water notwithstanding its predecessor in title had a right of action in which he could have recovered nominal damages for the infringement of his right to the natural flow of the water during his ownership.</p> <p>Riparian owners — Ordinary and extraordinary use of water.</p> <p>A riparian owner has the right to the use of the stream as ail incident to the land for ordinary purposes, and also for certain purposes which are called extraordinary, provided in such extraordinary use he does not materially diminish its quantity or impair its quality. The reasonable use by a glass company for manufacturing purposes is an incident to riparian ownership by the company of which an upper riparian owner who has exhausted the water, by illegal diversion thereof, has no standing to complain.</p> <p>Waters — Illegal diversion by upper riparian owner — Measure of damages.</p> <p>The measure of damages for the illegal diversion of water by an upper riparian owner is the expense which the lower owner may be put to in order to supply water to take the place of the water that would have flowed to its land if it had not been diverted by the defendant or upper owner.</p>

<p>Druggists — Unlawful sales of liquor — Act of 1887.</p> <p>A person, not a druggist, employing certified pharmacists to conduct a retail drug business purchased by him, is liable under the provisions of the Act of May 24, 1887, P. L. 189, for unlawful sales of liquor if such sales or furnishings are made with his knowledge or consent.</p> <p>Druggists• — Illegal sale of liquor — Evidence of possession of liquor.</p> <p>Where a druggist is charged with unlawful sales of liquor, the possession of a large amount of whisky in defendant’s cellar is a link which, if connected with other links, would constitute a chain of evidence which would justify conviction.</p> <p>Evidence of possession of whisky in considerable amounts by a druggist is therefore admissible; it is not essential that the relevancy of an offer appears at the time; if it is not subsequently connected with the issue it can be laid out of the case.</p> <p>Liquors — Illegal sales — Evidence of amount of whisky in stock.</p> <p>There being no fixed standard as to the amount of whisky which may be legitimately used in a retail drug business, evidence by other druggists that a druggist charged with illegal sales kept on hand a stock in excess of legitimate needs as measured by the business conduct of the respective witnesses, is inadmissible.</p> <p>Practice, Superior Gourl — Defective assignment.</p> <p>An assignment of error is defective and will be overruled which assigns as error the admission of a letter which is not set out in the assignment.</p>

Appeal, No. 10, Oct. T., 1897, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1888, No. 159, M. L. D. dismissing rule to open judgment. Rule to open judgment.

Appeal, No. 47, Oct. T., 1897, by defendant, from judgment of G. P. No. 4, Phila. Co., March T., 1895, No. 887, on verdict for plaintiffs. Trespass for personal injuries. The following facts appear from the testimony furnished on petition for reargument: J. G. Jermon, the defendant, was the lessee of the Lyceum Theatre.

<p>Appeal, No. 145, April T., 1897,-by plaintiff, from decree of C. P. Washington Co., Aug. T., 1896, No. 41, dismissing plaintiff’s exceptions to record of justice.</p> <p>Certiorari from justice of the peace before whom proceedings were started for the possession of property under the landlord and tenant act of December 14, 1863. Before Taylor, J.</p> <p>The facts appear from the opinion and decree of the court below, which are as follows:</p> <p>In a proceeding by a landlord, before a justice of the peace, to regain possession of demised premises, when the term was fixed, ended on a day certain and has. expired, under the act of December 14,1863, where the judgment of the justice is: — that the tenant shall immediately deliver full possession to the lessor of the said demised premises, the record of the justice brought into the court of common pleas on a writ of certiorari must show a compliance in the proceedings before him, with every essential jurisdictional fact required by said act, or what amounts to a waiver thereof in any particular essential by the tenant before the judgment will be affirmed.</p> <p>One of the essential jurisdictional facts required by said act, and which must appear in the record of the justice of the peace is, “ that three months’ previous notice had been given ” of the lessor’s desire to repossess the premises so demised of which the term lias ended, or in the absence of the record disclosing that the three months’ statutory notice was given the tenant, it must sufficiently show that the tenant had agreed to less than the three months’ notice required by said act, or had previously waived all notice, or agreed to deliver up possession at the end of his term without further notice to quit. If, however, this position should be questioned, the authorities holding that the tenant may waive the statutory notice are sufficient to dispose of it. See Hutchinson v. Potter, 11 Pa. 472; McCanna v. Johnston, 19 Pa. 434; Wilgus v. Whitehead, 89 Pa. 131; Killeen v. Haddock, 4 Kulp, 408; Kaiher v. Leahy, 15 C. C. R. 243; and see Logan v. Herron, 8 S. & R. 459, on the question of no notice necessary when the term is to end on a day certain.</p> <p>In the case before us the record of the justice sets out that on “ May 23, 1896, David Campbell appears and makes complaint on oath, that on the 15th day of January, 1896, he was quietly in possession of a certain tenement, with the appurtenances, situate on the north side of East Lincoln avenue, in the borough of McDonald; that on the last mentioned day he leased said premises to a certain G. E. Wilke, merchant tailor, for a certain term of two and a half months, or until the first day of April, 1896, for the monthly rent of ten dollars, payable monthly in advance, which said term is fully ended. That the said David Campbell being desirous, upon the expiration of said term, to have again and repossess the said premises, for that purpose did give 30 days’ notice to the said G. F. Wilke to remove from and leave the same according to the express and written agreement between the lessor and. lessee, and the said G. F. Wilke having hitherto refused, and still refusing to comply therewith he makes this complaint, that such proceedings may be taken as directed by the Act of Assembly in such cases made and provided.”</p> <p>Then follows the usual record of summons ; return of service, hearing' of parties and witnesses under oath, and judgment for lessor and certificate, etc.</p> <p>[Here we find the record states clearly, fully, directly, absolutely and unqualifiedly, that the term was for two months and a half; when it began and ended; that it was ended when this proceeding was commenced; that the tenant still held possession of the premises, in effect under said lease, and refused to deliver possession of the same and that the lessor “ did give 30 days’ notice to the said G. F. Wilke to remove from and leave the same according to the express and written agreement between the lessor and lessee.”] [1]</p> <p>[The justice has found as a fact that the tenant expressly agreed to thirty days’ notice to quit instead of the statutory notice and set it forth in his record,] [2] upon which record alone we must dispose of the assignments of error on the question of notice in this proceeding on certiorari'. If he erred in his findings of fact the remedy for the lessee pointed out by the act under which this proceeding was conducted, was by an appeal within ten days after the rendition of judgment against him.</p> <p>[This disposes of the 2d, 3d, 4th and 5th assignments of error which are not sustained, and leaves but the one assignment of error to be disposed of which is : “ the justice had no jurisdiction.”] [3] On the argument of the case before us it was claimed in support of this assignment of error that the term for which the tenant had possession had not expired, and a deposition of the lessee was pressed upon the court to establish a new lease at the expiration of the one under which this proceeding was had. To the consideration of this deposition by the court, the counsel for the lessor objected because in it the lessee undertakes to set up a matter of defense which alone could be made to the claim of the lessor before the justice, and if he did so introduce it and the justice failed to find the fact of a new lease, the lessee’s remedy was by an appeal.</p> <p>[It cannot be denied that the justice had jurisdiction of the subject-matter of the dispute between the parties. The record clearly shows he had jurisdiction and the allegation here made and sought to be proven by this deposition that the lessee was holding under a second lease would have alone gone to the merits of the case, and, if true, defeated the plaintiff’s right to recover, but not have deprived the justice of jurisdiction.] [4]</p> <p>It is nowhere alleged in any of the assignments of error, nor was it claimed in the argument of the case, that this testimony was given before the justice, or that it was offered and he refused to hear it. In Fisher v. Nyce, 60 Pa. 107, the court decides that on a certiorari to a justice parol evidence will not be heard as to the merits of the case, but only what occurred before him, and that such evidence must relate to the conduct of the justice, not to that of a party.</p> <p>It is equally well settled that, “ on the hearing of a certiorari to a justice, every reasonable presumption will be made in favor of his proceedings, consistent with the record; merely formal errors will be disregarded. If the proceedings appear on the face of the transcript to be regular, and that he has acted within the sphere of his jurisdiction, parol evidence will not, in general, be admitted. But the court may to prevent injustice make inquiry into the evidence given before the magistrate. To establish corruption, or partiality, or the refusal to hear testimony, parol evidence is necessarily admissible; and there may be eases in which the absence of jurisdiction can be established in no other way; as, when one justice undertakes to re-examine what has already been determined by another, otherwise the court cannot go out of the record.” Binns, Justice, note page 103.</p> <p>The record in this case shows that both lessor and lessee with their witnesses were sworn and heard and in all essentials complies with the requirements of the law. If the finding of fact by the justice is complained of, or what the law is on a particular state of facts found, the lessee’s remedy was by an appeal, since certiorari lies only to correct errors of law appearing on the record and not to review the evidence.</p> <p>This record is silent on the subject of a second lease, and regular in a proceeding conducted before the justice under the act of December 14,1863, save the one question of three months’ notice to quit, which the justice sets out was waived by the lessee under an express agreement between the lessor and lessee in -writing, and which we find under the decisions, can be waived by a tenant in a proceeding under this act.</p> <p>[Now, October 22, 1896, the exceptions are dismissed and the judgment of the justice affirmed.] [5]</p> <p>Errors assigned were (1-5) in the opinion and decree of the court, reciting same. 0(6) In decree of the court overruling tlie exceptions filed to the record of the justice, said exceptions being as follows: 1. The justice had no jurisdiction. 2. The record does not show that the required notice was given. 3. The notice given, as shown by the record, was not sufficient. 4. The time at which notice was given is not shown. 5. The record does not show that any notice was given before the expiration of the term.</p>

<p>Appeal, No. 83, Oct. T., 1897, by defendants, from judgment of C. P. No. 2, Phila. Co., March T., 1897, No. 915, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Plaintiff claimed for balance due on a contract for one hundred tons of roofing slag sold and delivered in accordance with the terms of a contract.</p> <p>The defendants filed the following affidavit of defense:</p> <p>“ Bernard J. Krause, being duly sworn, deposeth and saith that he is a manager of the firm of William Krause & Sons, the defendants in this suit. Defendants have a full and just defense to the plaintiffs’ claim as follows:</p> <p>“ The slag contracted for by defendants in the written contract as set forth in the plaintiffs’ statement of claim, was ‘ merchantable roofirig slag, otherwise not to be acceptable.’</p> <p>“ The portion of this account for which payment has not been made was a delivery of an inferior slag and not ‘ merchantable roofing slag,’ and not acceptable as stipulated in the contract.</p> <p>“ It was inferior in quality and was what is called in the trade three fourths slag, a commodity not salable; for this reason, payment for this portion was declined. All of which is true as deponent avers, believes and expects to prove at the trial of the cause.”</p> <p>And subsequently on leave granted, the following supplemental affidavit of defense:</p> <p>“ Bernard J. Krause, being duly sworn, deposeth and saith that as set forth in the affidavit of defense heretofore made by him, he is manager of the defendants’ works. Deponent avers that the plaintiffs did not comply with their contract.</p> <p>“ The written contract for the purchase of slag as sworn to in the copy of agreement, part of plaintiffs’ statement provided for ‘ merchantable roofing slag,’ a quality of slag well known in the trade. There is another quality of slag called in the trade ‘ three fourths slag,’ which is not suitable for roofing and cannot be used for that purpose, but only for paving or concrete; it is also inferior in quality and of much less value.</p> <p>“After certain shipments on account had been received, deponent made an examination of the slag delivered and found that a quantity of this inferior quality of slag known as ‘ three fourths slag ’ had been mixed in and delivered with the ‘ roofing slag.’ Deponent called the attention of the plaintiffs to the inferior quality of the slag delivered and requested them to take it away; their agent examined it and pronounced it to be inferior quality. Defendants held it for a period of two weeks, and plaintiffs not removing it, deponent’s firm used it for paving purposes and have paid plaintiffs more than the market value for it; and deponent also suffered business inconvenience, and a greater loss than claimed.</p> <p>“ All of which is true as deponent avers, believes and expects to prove at the trial of the cause.”</p> <p>The court below entered judgment for plaintiff for $18.50. Defendants appealed.</p> <p>Error assigned was entry of judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 87, Oct. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1897, No. 953, for want of a sufficient affidavit of defense. Appeal from judgment of magistrate in an action of assumpsit.

Appeal, No. 88, Oct. T., 1897, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1896, No. 64, making absolute defendant’s rule for expenses of litigation. Rule to allow respondent expenses of litigation in divorce proceedings. The following facts appear from the record: The husband’s libel, filed February 1,1896, charged desertion from their common residence in Philadelphia, bn December 14, 1893, to Pensacola, Florida.

Appeal, No. 36, Oct. T., 1897, by defendant, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1891, No. 1114, for want of a sufficient affidavit of defense. Assumpsit for goods sold and delivered.

Appeal, No. 14, Oct. T., 1897, by defendant, front judgment of C. P. No. 1, Pbila. Co., March T., 1896, No. 156, on verdict for plaintiff. Trespass for personal injury. The facts sufficiently appear in the charge of the court below as follows: This is a suit brought by Miss Lizzie Rodovinsky against the Roxford Knitting Company to recover damages which she claims she has sustained by reason of the negligence of the superintendent or officers of that company.

<p>Road law — Unauthorized improvement of streets try lot owners.</p> <p>The control of streets or roads and the grades and changes made thereon are not to be determined by the abutting owners but are by statute placed under the control of the local municipal authorities. It follows that an abutting owner has no right to take possession of a public road or street and change its grade without authority from the body having it under statutory control and when such action is taken a right of action enures to other abutting owners.</p>