Volume 52 — Pennsylvania Superior Court Reports

Appeal, No. 80, April T., 1912, by defendants, from judgment of C. P., Armstrong Co., March T., 1911, Nos. 80 and 81, on verdict for plaintiff in case of S. F. Clark v. Freeport' Clays, Products and Minerals Company, a Corporation, and Jennings Dewitt. Assumpsit for commissions.

Appeal, No. 147, April T., 1912, by defendant, from judgment of C. P. Beaver Co., June T., 1910, No. 237, on verdict for plaintiff in case of Schumacher-Binzley Company v. Theodore Riddle. Trespass for an alleged wrongful seizure and sale of goods by constable.

<p> Justice of the peace—Bes adjudicata—Nonsuit. </p> <p>1. A judgment of a justice of the peace is not a bar to a subsequent suit, where it appears from the justice’s record that the judgment was in fact a mere nonsuit entered without the appearance of the defendant, and without any hearing of the parties or their proof.</p> <p>2. In an action before a justice of the peace a previous judgment of another justice was set up as a bar. The record of the previous judgment was as follows: “Plaintiff appears, defendant not appearing, and for the reason of a previous case being certioraried and the case reversed by the court, and justice hearing that the costs in the previous case were not paid, justice dismisses the case.” Held, that the judgment was merely one of nonsuit, and was no bar to the action against which it was pleaded.</p> <p>3. Where an appeal is taken from an order entering judgment for defendant n. o. v., and it appears that the court below did not dispose of a pending motion for a new trial for the pronounced reason that it was unnecessary to do so, the appellate court in reversing the judgment will send the record back to the court below to “dispose of the motion for a new trial with instructions that if a new trial is refused verdict shall be entered for plaintiff on the verdict.</p>

<p> Landlord and tenant—Cotenants—Extension of term—Apparent authority to make extension—Evidence—Question for jury. </p> <p>While it is the general rule that one of two cotenants cannot, without the knowledge or assent of the other, bind the latter to an extension of the term, yet where there is evidence that one of the cotenants in making an extension was acting within the apparent scope of his authority, the question of the liability of the other tenant, is one for the jury.</p>

<p>Appeal, No. 133, April T., 1912, by defendant, from judgment of C. P. No. 4, Allegheny Co., No. 540, Second Term, 1908, on verdict for plaintiff in case of W. W. Tyers v. David Wilson Kuhn.</p> <p>Assumpsit for money due on an account. Before Carnahan, J.</p> <p>At the trial it appeared that the debt in question was incurred in 1894. In 1904, plaintiff received from defendant the following letter:</p> <p>“ Dear Tyers:</p> <p>“ I enclose my check for $50.00. J do not know of my own knowledge what I owe you but I have no doubt you have it correct. I’ll send you some from time to time as I can until it is paid. I wish you a very Merry Christmas and happy new year—</p> <p>“ Sincerely</p> <p>“ (Signed) D. W. Kuhn.</p> <p>“ Dec. 24th, 1904.”</p> <p>Other facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $834.72. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 39, April T., 1912, by Julius Eicher and Henry Graf, from decree of O. C. Allegheny Co., April T., 1905, No. 53, against sureties in Estates of Bertha and Lillian Kress, Minors.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>From the record it appeared that in 1890, Frederick Ruoff was appointed guardian of the estate of Bertha and Lillian Kress, minors, and that he then filed his bond for $5,000, with Matthias.Weiss and Jacob Buescher and sureties. Subsequently the guardian was directed by the orphans’ court to sell certain real estate of the minors, and he then entered a special bond for $1,400 with Julius Eicher and Henry Graf as sureties. The proceeds of the real estate amounted to.$666.</p> <p>The guardian died on February 7, 1904, insolvent. He owed the minors the sum of $1,964.53; pf this sum $948.16 was paid over to the minors, leaving a balance due of $1,082.30, with interest from April 14, 1905.</p> <p>The funds had been so merged that it was not possible to determine the identity of the portions misapplied.</p> <p>The court entered the following decree:</p> <p>And now, May 5, 1911, it appearing that there is due from the former guardian, Frederick Ruoff, deceased, the. sum of $1,082.30, with interest thereon from April 14, 1905, a total o,f $1,475.33, of which $1,011.81 is personalty and $463.52, the proceeds of the sale of realty, it is ordered, adjudged and decreed that Matthias Weiss and William Buescher, executor of Jacob Buescher, deceased, sureties on the personal bond of Frederick Ruoff, former guardian, deceased, pay the sum of $1,011.81, and that Julius Eicher and Henry Graf, sureties on the bond of Frederick Ruoff, deceased guardian, for the sale of realty, pay the sum of $463.52; said payments to be made to T. P. Trimble, Esquire, attorney in fact for Bertha Kress and Lillian Kress Underwood, the former minors, unless an appeal be taken from this decree within twenty days.</p> <p>Error assigned was the decree of the court.</p>

<p> Libel—Pleading—Statement of claim—Innuendo—Malice—Privilege of publication—Newspaper—Probable cause. </p> <p>1. Where a statement of claim in libel charges that the defendant in its newspaper published large, red, flaming headlines stating that plaintiff had been arrested and held for kicking a pregnant woman, below which was printed the picture of the plaintiff with his name under the picture, the statement substantially alleges that the publication was of and concerning the plaintiff, and it is not fatally defective because it does not allege in so many words that the publication was of and concerning the plaintiff.</p> <p>2. By pleading the general issue in an action of trespass for libel, and going to trial thereon, the defendant waives all defects in his statement of claim that are not fundamental. Hence, if without an innuendo, the substance of a good cause of action is shown on the record, the objection that it was not stated as specifically and with as much precision as the defendant might have demanded, is waived by proceeding to trial on the merits.</p> <p>3. A writer is accountable for the import of the words which he uses as they would naturally be understood by the hearer or reader. Ingenuity is not to be resorted to in order to ascribe to them either the more lenient or the more severe sense, but they are to be taken in the sense that fairly belongs to them, that is, in the plain and popular sense in which the rest of the world naturally understands them.</p> <p>4. The office of an innuendo is to aver the meaning of the language published, but if the common understanding of mankind takes hold of the published words, and at once, without difficulty or doubt applies a libelous meaning to them, an innuendo is not needed, and if used may be treated as useless surplusage. ' .</p> <p>5. In an action for libel the publication contained large headlines referring to the plaintiff as follows: “McGeary with party arrested for kicking woman who now lies near to death,” “Jesse McGeary, former coroner, held in case of assault on woman which may result in death of victim and child.” There was no innuendo. The defendant pleaded the general issue, and went to trial. Held, (1) that the jury was warranted in interpreting the words to mean that the plaintiff was a participant in an assault and battery upon a woman, and (2) that the absence of an innuendo in the statement was immaterial.</p> <p>6. While a fair account of a transaction which is the basis of a newspaper publication may be privileged the manner and style of the account and comment are for the consideration of the jury to determine if the privilege had been exceeded.</p> <p>7. Where the words of a publication impute the commission of an indictable offense the presumption of innocence is prima facie evidence of falsity, and want of probable cause, and sufficient to put defendant to proof of the facts to support his claim of privilege; and this is especially the case where the plaintiff does not rely on the presumption, but produces evidence to show that the charge was false.</p> <p>8. It is within the bounds of legitimate journalism for newspapers to publish as current news all such matters as involve open violation of law or public misconduct of such character as justifies police interference, even though the doing so may reflect upon the actors, and thus tend to bring them into public disgrace or contempt; but in such ease it is not enough that the occasion supplied one element of the immunity of privilege, and that the privilege was not exceeded by the manner of publication. It is still incumbent on the defendant to prove that he had reasonable or probable cause.</p> <p>9. A probable cause that will warrant .belief must be found in circumstances of adequate, probative force, lying within personal knowledge or information derived from sources of such a character as to lead a reasonably prudent man to regard it as trustworthy. It is for the jury to determine what the information was, what were the sources from which it was obtained, whether the publication conformed with the information received, and whether the defendant had exercised care and diligence to ascertain the truth. Thus where a reporters’ information is based on a statement made to him by a policeman, and the latter’s information came from a communication made by a third party to him, it is for the jury to determine whether there was negligence on the part of the defendant in failing to make an inquiry of the plaintiff and others as to the truth of a publication charging the plaintiff with the crime.</p>

<p>Appeal, No. 75, April T., 1912, by defendant, from judgment of C. P. Lawrence Co., June T., 1910, No. 78, on verdict for plaintiff in case of John Kelemenan v. Pittsburg, Harmony, Butler & New Castle Railway Company.</p> <p>Trespass to recover damages for the killing of three cows. Before William- E. Porter, P. J.</p> <p>At the trial plaintiff’s counsel first offered in evidence a deed dated September 22, 1906, from John W. Wilkison, guardian of the estate of Chris Smith, minor child of Samuel H. Smith, late of Shenango township, Lawrence county, Pennsylvania, deceased, Eunice Smith, widow, and Pearl Smith, minor, etc., to the Pittsburg, Harmony, Butler & New Castle Railway Company, for the purpose of showing that at the time when the Pittsburg, Harmony, Butler & New Castle Railway Company purchased its right of way through the farm rented by Mr. Kelemenan that it undertook to place thereon certain crossings. This is to be followed by evidence to show that the injury occurred at one of the crossings designated in the deed just offered in evidence.</p> <p>Objected to by defendant’s counsel as incompetent for any purpose in this case, there being no privity of contract between the defendant company and the plaintiff and whether there was or was not any undertaking in that deed to construct crossings would be immaterial unless there was a crossing in fact at the place where the accident is alleged to have happened.</p> <p>Counsel for plaintiff expect to follow this with proof that the plaintiff in this case was at the time of the accident occupying the premises owned by the heirs of Samuel H. Smith as tenant, and also to follow the offer by testimony showing that the crossing was established at this place, gates were put in by the railroad company and that it was used as a crossing by the plaintiff and by persons occupying the farm there.</p> <p>Objected to by defendant’s counsel as incompetent for the reason that there is no privity of contract between the defendant company and the plaintiff, and that the only matter contained in the deed relative to crossings is a personal agreement and not one belonging to the land.</p> <p>The Court: We will admit the offer and seal an exception for the defendant. [1]</p> <p>Judge Martin: It is hardly necessary to read all’ that'; unless you wish to.</p> <p>Portion of deed offered read in evidence as follows:</p> <p>“To have and to hold the said right of way with the appurtenances unto the said party of the second part, its successors and assigns, firm and stable forever. Said right of way hereby granted or mentioned and intended so to be with the appurtenances shall be fenced with a five strand barbed wire fence on locust posts, to be set not farther than twelve feet apart. And second party shall construct and maintain said fence. And further, second party shall construct and maintain for said first parties five crossings to be put in where designated by first parties and shall keep and maintain a stop for local cars opposite the dwelling-house on said first parties farm.”</p> <p>A witness for plaintiff was asked this question:</p> <p>“Q. Did you observe how fast this car was coming the day your cows were killed? A. Yes, sir. Q. How did its speed compare with the speed of other cars that go by your place there?”</p> <p>Objected to as incompetent and irrelevant, it not appearing that all other cars that ran past that place ran at the same rate of speed, and it appearing that they ran at a fast or high rate of speed, and that even if the witness were to testify that this particular car ran faster than some other cars it would be no evidence that this car was running at an excessive rate of speed.</p> <p>The Court: We will permit the witness to answer and seal an exception for defendant. [2]</p> <p>“A. This car was running faster than what the regular cars are run past there.”</p> <p>Another witness was asked the question:</p> <p>“Q. At what speed did the cars travel past the farm there? A. They go pretty fast, I couldn’t tell you. Q. How did the speed of this car that caused the accident compare with the ordinary speed of the cars past there? ”</p> <p>Objected to as incompetent, irrelevant and immaterial, the witness not having qualified to answer the question.</p> <p>The Court: The witness may answer and an exception is sealed for the defendant. [4]</p> <p>“A. It went at about the same speed as the rest of the ,cars.”</p> <p>A third witness was asked this question:</p> <p>“Q. Do you observe the speed at which these cars travel? ' A. I think they don’t all travel the same speed, some of them go very fast and others slower. Q. State what was the speed of this car as compared with the other cars that go by there?”</p> <p>Judge Martin: Which one of the other cars, the slower ones or those that went faster?</p> <p>Mr. Chambers: With the ones that go fast past there and in comparison with the speed of this particular car.</p> <p>Objected to as incompetent and irrelevant.</p> <p>The Court: The witness may answer the question and an exception is sealed for the defendant. [5]</p> <p>“A. It went as fast as any of them ever travel past there.”</p> <p>The court charged in part as follows:</p> <p>[There is one question here that you must first decide before you proceed to the main issue in this case, or to the issue raised by the allegation of negligence, and that is the question as to whether or not there was a crossing at this place.] [6]</p> <p>[We will submit that question to you as a matter of fact to be determined by you in this case, whether or not there was a crossing at that place. It appears that when the Smith heirs made their conveyance to the defendant company there was an agreement contained in the deed by which the defendant “shall construct and maintain for said first parties (that is, the grantors, the Smith heirs) five crossings to be put in where designated by first, parties.” Now when this conveyance was made, this agreement was made and incorporated in the deed. Later it appears that one Mr. Fisher was engaged in the building of the fences along the tracks of the defendant company and that Mr. Wilkison, who was acting as guardian for one of the Smith heirs, and as agent I believe for Mrs. Smith, and I do not remember whether he stated he was acting as agent for the other heirs or not, but anyhow he spoke to Mr. Fisher and stated where the gates were placed where these cows were driven or attempted to be driven across the track. Now, it is a question for you to determine whether or not this place was designated as a crossing. Had Mr. Fisher authority from the defendant company to construct the gates at this place? Was that a part of his business,—was he authorized by the company to construct the gate at the place that Mr. Wilkison designated? And if he had authority to do that was the gate constructed as a part of the fence as such or was it constructed as a mere step in the construction of the crossing and then did that constitute such a crossing as was sufficient and necessary for the purposes to which it was applied? You have heard the testimony of the witnesses upon that question and it is for you to determine, first in your deliberations upon this case as to whether or not there was a crossing constructed upon this farm at the place where these cows were killed. If there was a crossing there then we say to you that when the plaintiff went upon the farm he had the same right relative to the occupancy and the use of it, the- crossing over the street railway track that the Smith heirs would have had had they been upon the farm, it appearing that the plaintiff was a tenant and had rented the premises. Now, we leave that question with you to decide, whether or not there was a crossing there, and say to you that if there was a crossing there when plaintiff went on that farm, as to the use of it, he would have the same rights that the Smith heirs had.] [7]</p> <p>[That brings us to the question whether or not this young man on that evening used due diligence. Was he reasonably careful in observing to see whether or not a car was approaching. Did he look along the track immediately before he let the cows out? Because I think we should say to you, as a proposition of law, that if he did not look to see whether or not a car was approaching just before opening the gate to let the cows out that he would be guilty of contributory negligence because he knew the defendant company operated its cars along and over that track. The defendant company had a right to operate its cars there at any time it saw fit. So the duty was imposed upon this young man to look and see whether or not a car was approaching, and that duty rested upon him up to the point of committing himself to the act of driving the cows upon the track. Now, did he look immediately before he opened the gates or admitted the cows to the right of way of the defendant company? If he did not look at that time, if he looked just before opening the gate when on the other side of the track and then walked from there over to the side of the track where the cows were and opened the gate without looking between the time of opening the first gate and letting the cows out on the track he would be guilty of contributory negligence and such contributory negligence would be attributable to the plaintiff and thereby defeat his right to recover.] [8]</p> <p>Verdict and judgment for plaintiff for $173.33. Defendant appealed.</p> <p>Errors assigned were (1, 3-5) rulings on evidence, quoting the bill of exceptions, and (6-8) above instructions, quoting them.</p>

<p> Criminal law—Assault and battery—Self-defense. </p> <p>1. A person may be convicted of assault and battery notwithstanding a plea of self-defense where the evidence shows that the prosecutor and the defendant had a verbal quarrel, that the prosecutor advanced towards the defendant with uplifted hand as if to strike, and that the defendant, not receding a step, nor seeking to avoid coming to blows, but standing still, raised a beer glass and brought it down violently upon the prosecutor’s head with such force as to break the glass into atoms, cutting and wounding the prosecutor in eight different places to such an extent that the scars could be seen for months afterwards.</p> <p>2. In such a case it is not improper for the court to say to the jury that the prosecutor “must have receded to the wall, and by the use of that figure of speech is meant to go as far as he could from the difficulty before he could offer the theory of self-defense when attacked.”</p>

<p> Criminal law—Conspiracy—Evidence—Corporation—Stockholders. </p> <p>1. On the trial of an indictment for conspiracy to publish false statements of the financial condition of a corporation and to extort money from it, it is not error to refuse to permit a witness of the commonwealth to be asked on cross-examination how many shares a particular stockholder owned in the company in question, if it appears from other evidence in the case that the person referred to was in fact a stockholder. In such a case it is immaterial how many shares such person owned.</p> <p> Evidence—Copy of telegram—Admission of witness. </p> <p>2. Where a witness is shown a copy of a telegram, and he admits that the copy is correct, and that he sent the telegram, it is not error to admit the copy in evidence.</p> <p> Appeals—Assignments of error—Telegram—Evidence. </p> <p>3. An assignment of error to the admission of a copy of a telegram is insufficient, which does not set forth the copy.</p> <p> Criminal law—Conspiracy—Definition. </p> <p>4. A conspiracy is an agreement to do an unlawful thing, or to do a lawful thing in an unlawful manner. The offense is complete the moment the agreement is made, whether acts be done in pursuance of it or not.</p>

c, Oct. T., 1912, by defendant, from order of C. P. No. 2, Phila. Co., March Term, 1911, No. 1,488, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Sabis Mankus v. Joseph G. Boyd.

<p>Appeal, No. 108, Oct. T., 1912, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1910, No. 1,303, on verdict for plaintiff in case of Mary Morris, by her husband and next friend Lincoyer Morris, and Lincoyer Morris v. Keystone Telephone Company.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Error assigned was in refusing motion for judgment for defendant n. o. v.</p>

<p> Divorce—Domicile—Desertion—Cause of action originating in another state. </p> <p>1. Where a husband and wife are domiciled in another state without any prior domicile or residence in Pennsylvania, and the wife comes into this state and files a libel for a willful and malicious desertion committed in the other state, she must show that she has acquired a residence here with domiciliary intent, as distinguished from a mere coming into the state with the sole intent to abide here long enough to obtain a divorce and then return to the former domicile.</p> <p>2. In such a case the libel will be dismissed if it appears from the libelant’s own testimony that she had no relatives here, nor occupation; that she was wholly unfamiliar with the neighborhood in which she lived; that she did not know the people in the house in which she stated she had resided for two years; that she gave two different street numbers to such house; and that she was contradicted by her own witness when she testified that rooms were rented in the house to other people than herself.</p>

<p> Will—Annuity—Investment of principal to secure annuity—Remaindermen. </p> <p>Testatrix directed her executor to invest sufficient principal to pay-an annuity of $100 to a person named, and directed that after the death of the annuitant the principal set apart to secure the annuity should be paid to a charity. The orphans’ court directed that $3,000 should be set apart to secure the annuity. On the death of the annuitant it appeared that $2,000 had been sufficient to pay the annuity. This sum was accordingly awarded to the charity, and the balance of the fund was distributed to the residuary legatees. ■ On appeal the six judges who heard the appeal were equally divided in opinion and the decree of the orphans’ court was affirmed.</p>

<p>Appeal, No. 156, Oct. T., 1912, by plaintiff, from order of C. P. Lebanon Co., Sept. T., 1911, No. 103, dismissing petition for mandamus in case of John H. Kercher, Supervisor of North Lebanon independent school and road district, North Lebanon township, Lebanon county, v. Charles Z. Weiss, county treasurer of Lebanon county.</p> <p>Petition for mandamus.</p> <p>Henby, P. J., stated the facts to be as follows:</p> <p>The petitioner is the supervisor of North Lebanon independent school and road district, which was created and is existing by virtue of the Act of Assembly of May 17, 1871, P. L. 892. The defendant at the time of the inception of this proceeding was the county treasurer of Lebanon county, and as such official received and still retains the sum of $228, being four-fifths of the liquor license fees paid by the proprietors of two hotels situate in said road and school district for the years 1910 and 1911. North Lebanon township embraces the said North Lebanon independent school and road district. The petitioner has asked for a writ of mandamus to compel the said county treasurer to pay to the petitioner the said sum of $228, held as aforesaid, to which the defendant has filed an answer which is in effect a demurrer, and the matter is now before the court upon this petition and answer.</p> <p>The court dismissed the petition.</p> <p>Error assigned was order dismissing the petition.</p>

<p> Negligence—Street railways—Passenger—Alighting from car—Contradictory testimony. </p> <p>1. In an action against a street railway company by a woman to recover damages for personal injuries the plaintiff testified that in alighting from a car of the defendant at a regular stopping place she had been violently thrown her full length on the pavement, by the sudden start of the car. She also testified that the violence of her fall produced unconsciousness, at once developed symptoms of serious nervous derangement, which continued until the time of the trial. Every phase of plaintiff’s testimony was explicitly denied by the defendant; it being contended that no accident had occurred at the time and place mentioned by her, and that the claim of the plaintiff was an absolute fabrication. Held, that the case was for the jury, and that a verdict and judgment for the plaintiff should be sustained.</p> <p>2. In such a case evidence of the rules and regulations of the defendant company in relation to reports of accidents to be made by conductors and motoneers is properly excluded.</p> <p>3. In an accident case against a street railway company where -the evidence was contradictory as to the happening of the accident the defendant requested the court to charge that the defendant could not “be held responsible for any negligence, unless the evidence clearly shows that defendant was guilty of such want of care.” Held, that the court committed no error in striking out the word “clearly” and then affirming the point.</p>

<p> Debtor and creditor—Payment—Accord and satisfaction. </p> <p>1. An agreement between a debtor and a creditor for the acceptance of part of a debt in satisfaction of a larger one, presently due, is without consideration and cannot be enforced, and the actual acceptance of such smaller sum is not a good discharge of the debt, even as accord and satisfaction.</p> <p>2. Where a creditor sends to his debtor a statement of account showing a balance due of $354, and the debtor returns a check for $24.00, an acceptance of the check is not an accord and satisfaction of the debt. where it appears that the check was accompanied by a letter in which the debtor claimed certain allowances, set up a counterclaim for losses caused by delay and concluded as follows, “the right to recover this I do not intend in any way to waive by this payment.’.’</p>

<p>Promissory notes—Affidavit of defense—Warehouse certificates— Rescission.</p> <p>In an action by the indorsee against the maker of a promissory note given for whisky sold to the maker and for which warehouse certificates were given to the defendant, an affidavit of defense setting up a breach by the payee of a collateral agreement, is insufficient if it does not show that the warehouses certificates were returned or tendered back, or set forth facts which amounted to a rescission of the contract, or facts which would support a claim for damages.</p>

<p>Appeal, No. 124, Oct. T., 1912, by plaintiffs, from decree of C. P. No. 5, Phila. Co., Dec. T., 1909, No. 2,306, dismissing bill in equity in case of Charles Sims, Anna Hurlock Sims and Morris R. Bockius, Executors of the Estate of Mary Adelaide Yerkes, Substituted Complainant for Mary Adelaide Yerkes, Original Complainant, since deceased, v. Charles E. Yerkes et al. and Louis S. Owsley, personally and as Executors of the last Will and Testament of Charles T. Yerkes, deceased, et al.</p> <p>Bill in equity to enforce a claim for dower.</p> <p>The court filed the following opinion:</p> <p>A bill in equity was filed by Mary Adelaide Yerkes, widow of Charles T. Yerkes, setting forth, among other things, that at the death of her husband she was entitled to dower in his lands, which had never been assigned or set off to her, and she had never received any compensation or equivalent therefor, nor ever released it; and praying that certain premises described in the bill be sold, and out of the proceeds of said sale she be paid the amount that she is entitled to receive for her dower in the premises according to the terms of a certain agreement which is set out in the bill. After the filing of the bill, the plaintiff died, and her executors were substituted as plaintiffs.</p> <p>The defendants demurred to the bill, and the question is whether Mrs. Yerkes had a right of dower in the lands, or whether she was entitled by the terms of the agreement to a fixed portion of the proceeds arising from the sale of the lands. In the former case, the right would end with her death; while in the latter, it would pass to her executors.</p> <p>On November 11, 1909, there being disputes and controversies between the executors and heirs of Charles T. Yerkes and his widow, an agreement was entered into between them, which provided, among other things, as follows:</p> <p>“Third.—The parties declare and agree that the widow is entitled to dower in the several parcels of real property of which the testator was seized at any time during coverture, or in which the testator had any equitable interest in which the law she is entitled to dower, unless the same shall have been duly released (including the parcels enumerated in ‘Schedule A,’ hereto annexed and made a part hereof), and to the cash value of her dower interest therein to be paid out of the proceeds of the sale of each parcel; that the several parcels of said real property cannot advantageously be divided without manifest injury to the parties in interest; that a distinct parcel thereof cannot be set off to the widow as and for her dower; and that several lots shall be sold, so that out of the proceeds thereof the widow shall receive the cash value of her dower, and the balance thereof be applied as hereinafter provided; and the widow agrees to accept in settlement of her right of dower in each parcel of such real property a gross sum’ to be paid to her as aforesaid and to be determined in New York in accordance with rule 70 of the Supreme Court of New York, and in other states in accordance with the ‘Wigglesworth Tables’ at five per cent.; and the parties further consent that said gross sum shall be the amount that a person of the age of forty-eight years at the time of the admeasurement would be entitled to receive thereunder; and shall be admeasured as of that date; and such gross sum shall be paid forthwith, without interest thereon, and without damages for detention or costs taxed against any party to this agreement; but the disbursements of such proceeding may be paid out of the proceeds of the sale in such manner as the court may direct.</p> <p>“The widow shall promptly after the entry of said order, referred to in paragraph first hereof, and within seven days thereafter in New York and twenty-one days thereafter in all other states, unless the time is extended by the executor, institute in a proper court in each state in which any part of such real property is situated, proceedings for the admeasurement of her dower and sale as aforesaid, in accordance with this agreement.”</p> <p>The time mentioned in the bill for the widow to bring proceedings was subsequently extended one week, and the present bill was filed on January 3, 1910. An answer was filed by the defendants on September 15, 1910, and on April 7,1911, the court appointed a master in partition. No decree of sale was made by the court, and of course the premises have not been sold.</p> <p>A careful scrutiny of the terms of the agreement shows that it was a declaration that the widow was entitled to dower in the real estate of her deceased husband; that this real estate could not be physically divided and set out for her; that consequently she was to bring proceedings in the jurisdictions where the lands lay for the purpose of having her dower assigned to her.</p> <p>Part of the real estate of Charles T. Yerkes consisted of a house and lot situate on the north side of Norris street in the city of Philadelphia, fully described in sec. 8 of the bill of complaint.</p> <p>In Pennsylvania, there is no statutory provision under which, upon a sale of real estate for the purpose of setting aside a widow’s dower, the widow may take a gross sum in cash in lieu of interest upon one-third of the amount realized at the sale, during her natural life. The agreement therefore provided that in the proceedings brought by the widow for the admeasurement of dower she would accept a gross sum to be fixed “in accordance with the ‘Wigglesworth tables’ at five per cent.; ” and that the gross sum to be received by the widow should be the amount that “a person of the age of forty-eight years at the time of the admeasurement would be entitled to receive thereunder; ” and that “shall be admeasured as of that date.”</p> <p>It is apparent from the agreement that the widow did not give up her right of dower in her deceased husband’s lands, nor did she accept or agree to accept anything in lieu thereof. On the contrary, it is declared that she is entitled to dower, and the proceedings for the admeasurement of her dower are provided for.</p> <p>In Mulford v. Hiers, 13 N. J. Eq. 13, it was held that where real estate is ordered to be sold and the widow agrees to accept a gross sum in lieu of dower and dies before the sale, of the premises, her estate is determined by her death. The court said (p. 14):</p> <p>“It is true that the estate in dower of the widow was by a decree of the court ordered to be sold, but in point of fact the estate was determined by the death of the widow before the sale. No sale of the dower right was ever made, and consequently there are no proceeds of the sale which the widow could be entitled to have invested for her benefit or in lieu of which she could have received a sum in gross.”</p> <p>The court, upon mature consideration, is of opinion that by the agreement referred to the widow did not give up her right of dower but expressly retained it, and that the provisions for a sale of the lands and for the receipt by the widow of a gross sum out of the proceeds thereof, was not a surrender of her right of dower admeasured according to the terms of the agreement by which her dower was to be admeasured. The bill in this case was filed for the purpose of having her dower admeasured according to the terms of the agreement, and as the plaintiff died before the property was sold, her right of dower ended with her death. Under the terms of the agreement, Mrs. Yerkes could not have sued the executor of her husband for any sum agreed to be paid to her because no such agreement was made. She instituted the only proceedings that were available to her, namely, a bill to have her dower admeasured and paid to her according to the terms of the agreement. As her right of dower terminated with her death, her executors are not entitled to the relief prayed for in the bill.</p> <p>The demurrer is therefore sustained, and the bill dismissed.</p> <p>In view of the circumstances under which the bill was filed, the court deems it equitable that each party should pay their own costs.</p> <p>Error assigned was decree dismissing the bill.</p>

<p> Benefit associations—Funeral • benefits—Payment—Set-off. </p> <p>Where under an arrangement between a beneficial association and a funeral benefit association, the latter pays funeral benefits for deceased members of the former, the funeral benefit association in a suit against it by the beneficial association for a funeral benefit, the validity of which is not denied, cannot set off a former payment on account of another member of the benefit association which is alleged to have been made under false representations by the plaintiff, where all that could be alleged was that the plaintiff in the discharge of what was believed to be an honest obligation, but under a misapprehension as to its legal liability paid the benefit in question, and that the defendant induced thereto by no fraud, but laboring under the same mistake had returned without protest to the plaintiff the amount which it had paid out.</p>

<p> Church law—Episcopal church—Election of vestrymen. </p> <p>1. Where the charter of an Episcopal church provides that vestrymen “shall be chosen from time to time by the members of the said church” “agreeable to its constitution,” which in turn provides that “no person to have a vote except those who have been regularly admitted, and shall have been ^ member of the church twelve months preceding the election,” a by-law requiring more than twelve months’ membership as a prerequisite to voting, is repugnant to the charter and constitution, and is invalid.</p> <p>2. In such a case where a person has been a pledged member of the church for twelve months prior to the election, he may on the day of the election pay his dues and be entitled to vote.</p> <p>3. A resolution of the vestry which required that the dues of a current year must be paid within the year, and that if they were not so paid a member could not vote in the following year, is unreasonable and invalid.</p>

Appeal, No. 99, Oct. T., 1912, by defendant, from order of C. P. No. 1, Phila. Co., March Term, 1910, No. 3,897, discharging rule to stay execution in case of Ellen Keating v. Frances B. Peddrick and Ada Russell Baxter, Surviving Executrices and Trustees under the will of John Baxter, deceased. Rule to stay writ of venditioni exponas.

Appeal, No. 267, Oct. T., by defendant, from decree of C. P. No. 3, Phila. Co., Dec. T., 1909, No. 1,142, awarding injunction in case of William B. Nickels v. The Hand in Hand Cornet Band in Manayunk, Pennsylvania, and Frank Hund. Bill in equity for an injunction to enjoin the obstruction of an alley. The following plan shows the position of the alley; The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 277, Oct. T., 1911, by Elizabeth Haywood, from decree of O. C. Phila. Co., Oct. T., 1910, No. 694, sustaining exceptions to adjudication in Estate of Sarah A. Kenworthy.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The auditing judge, Anderson, J., held, that the legacies to Mary Wine and Elizabeth Haywood did not abate because of deficiency of assets, but were payable out of the fund in the bank and trust company.</p> <p>Exceptions to the adjudication were sustained by the court in an opinion by Lamorelle, J.</p> <p>Error assigned was in sustaining exceptions to adjudication.</p>

Appeal, No. 31, Oct. T., 1912, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1910, No. 1,446, on verdict for plaintiff in case of Stuart & Peterson Company v. Mahlon W. Newton. Assumpsit for goods sold and delivered. Before Barratt, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $425. Defendant appealed. Errors assigned were (2-4) instructions set forth in the opinion of the Superior Court.

Appeal, No. 21, Oct. T-, ,1912, by defendant, from judgment of C. P. Clearfield Co., May T., 1909, No. 275, on case tried by the court without a jury in suit of G. W. Smyers and C. A. McDonald, trading as Smyers & McDonald, v. W. H. Albert. Exceptions to judgment entered in a case tried by the court without a jury under the Act of April 22, 1874, P. L. 109. The facts are stated in the opinion of the Superior Court.

Appeal, No. 185, April T., 1912, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1905, No. 684, on verdict for defendant in case of W. F. Weitershausen v. John A. Fairman and Harry T. Fairman, Administrator of the Estate of Robert J. Fair-man, and Laura E. Fairman. Assumpsit for hand money paid for real estate. Verdict for defendant. Plaintiff appealed. Evans, J., filed the following opinion: The facts in this case are not in dispute.

Appeal, No. 60, April T., 1912, by defendant, from judgment of C. P. Beaver Co., June Term, 1910, No. 367, on verdict for plaintiff in case of Martha Means v. Pennsylvania Company. Trespass to recover damages for death of plaintiff’s son. Before Holt, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,293. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 231, Oct. T., 1912, by plaintiffs, from judgment of Ó. P. Clearfield Co., Sept. Term, 1910, No. 113, for defendants on case tried by the court without a jury in suit of Josiah C. Stoddart and Douglas Stuart, Receivers of the Washington National Building and Loan Association, v. Moses D. Myers and Amanda Myers. Scire facias sur mortgage.

<p>Appeal, No. 48, Oct. T., 1912, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1910, No. 470, on verdict for plaintiff in case of Arthur Birch, trading as The Arlington Machine Works, v. The Andrew’s Mill Company.</p> <p>Assumpsit for a machine sold and delivered. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $798. Defendant appealed.</p> <p>Error assigned among others was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 128, Oct. T., 1912, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 5,043, on certificate for defendant in case of Charles P. Wieder et al., trading as Wieder Brothers, v. Annie Miller.</p> <p>Assumpsit for goods sold. Before Audenried, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Certificate and judgment for plaintiffs for $134.20. Plaintiffs appealed.</p> <p>Error assigned was portion of charge quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 5, March T., 1913, by defendant, from, judgment of Q. S. Lackawanna Co., Dec. T., 1911, No. 120, on verdict of guilty in case of Commonwealth v. William Grauman.</p> <p>Indictment for forgery. Before Newcomb, J.</p> <p>At the trial it appeared that the defendant was charged with forging the name of Valentine Kautz as the maker of a promissory note for $260. The indorsers on the note were the defendant, W. Grauman, and Joseph Levy.</p> <p>When Valentine Kautz was on the stand this offer was made:</p> <p>Mr. Levy: We propose to show by the witness that he became acquainted with the defendant, Grauman, two years ago; that an acquaintance took him to Mr. Grauman for the purpose of obtaining a loan, which he obtained in the sum of $100; that on that occasion he became acquainted with Mr. Grauman, and that he has never seen him or conversed with, or done business with him since: To be followed by evidence that the note set forth in the indictment was never signed by the witness.</p> <p>Mr. Scragg: What is the purpose of this offer?</p> <p>Mr. Levy: Simply for the purpose of showing the opportunity that the defendant, Grauman, had to become, acquainted with the witness, to show the circumstances under which he became acquainted, and for the purpose of showing that the note in question-is a forgery.</p> <p>Mr. Scragg: The evidence is objected to as incompetent, and an offer to prove by the witness a negative.</p> <p>The Court: You propose, I imagine, to lay ground for the argument that it was the signature of the witness that was forged to the note in question and described in the indictment.</p> <p>Mr. O’Brien: Yes.</p> <p>The Court: And these circumstances you rely upon as tending to account for the alleged forgery?</p> <p>Mr. O’Brien: Yes. In other words, that the defendant knew this witness and therefore had knowledge of his name. It is a probability that tends to establish the main fact in the case.</p> <p>The Court: I take in that the commonwealth is always entitled to identify the man whose signature they claim has been forged to an instrument by which some fraud was perpetrated, and as bearing upon that, I cannot see any reason why the commonwealth cannot make proof of the association between the witness and the defendant, connected with the proof that the signature in question was not that of the witness. I am inclined to admit the offer, and therefore I overrule the objection. Exception noted for the defendant. [1]</p> <p>Isadore Goodman was asked the question:</p> <p>“Q. I show you commonwealth’s exhibit ‘A,’ and I ask you to look at the signature to that exhibit, and I ask you in your opinion, from your knowledge of his handwriting, is that William Grauman’s handwriting? ”</p> <p>Mr. Levy: We object to that question, the witness has not been shown competent.</p> <p>The Court: I understand the question to be this: Look at the signature of Valentine Kautz on the note marked commonwealth’s exhibit “A,” and state whether or not that was written by the defendant, or in the handwriting of William Grauman; that is the question, is it?</p> <p>Mr. Scragg: Yes, your honor.</p> <p>The Court: The objection is sustained. Exception noted for the defendant. [2]</p> <p>Mr. Scragg: “Q. From your knowledge of Mr. Grauman’s writing, I show you the same exhibit and ask you to examine the handwriting in the body of the note and see whether from your knowledge of his handwriting you can say whether it is in his writing? A. I think it is, yes.</p> <p>Q. I ask you to examine the signature and say whether it is in his handwriting.”</p> <p>Mr. O’Brien; We object to that as immaterial and incompetent.</p> <p>The Court: Objection sustained. [3]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4,5) the insufficiency of the charge.</p>

<p>Appeal, No. 6, March T., 1913, by defendant, from judgment of Q. S. Lackawanna Co., Dec. T., 1911, No. 122, on verdict of guilty in case of Commonwealth v. William Grauman.</p> <p>Indictment for forgery. Before Newcomb, J.</p> <p>At the trial when Dennis Gallagher, a juror, was called, counsel for the defendant proposed as follows:</p> <p>Mr. Powell: We ask to have the juror sworn.</p> <p>The Court: For what purpose?</p> <p>Mr. Powell: To be examined on his voir dire, as to his knowledge concerning this case.</p> <p>The Court: Have you any authority for such proposition?</p> <p>Mr. Powell: I cannot say that I have.</p> <p>The Court: Is there any objection?</p> <p>Mr. Donahoe: Yes, your honor.</p> <p>The Court: The objection is sustained. Exception noted for the defendant. [1]</p> <p>The commonwealth proposes to prove by a witness on the stand, to rebut the testimony of the defendant under cross-examination, to the effect that the Ponto note for $300, and the Kautz note for $350, and the Antollico note, and the Constantine note, were paid by the various makers of the notes. This evidence we offer for the purpose of rebutting the testimony of the defendant.</p> <p>Mr. Scragg: We object to this testimony as not being competent. It is testimony that was elicited by the prosecution in cross-examination of the defendant, and under our objection at the time, and it was not brought out in chief in his testimony, but on cross-examination and on irrelevant matters, and therefore it is not competent to rebut it by this testimony.</p> <p>The Court: It may perhaps be competent as going to the general integrity of the defense, and for that purpose it strikes.me that it is not irrelevant. The objection is overruled. Exception noted for the defendant. [2]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) refusal to permit the examination of a juror on his voir dire; (2) ruling on evidence, quoting the bill of exceptions; (3, 4) insufficiency and impropriety of the charge.</p>

<p> Appeals—Paper-books—;Failure to print charge and evidence—Quashing appeal. </p> <p>On an appeal from a judgment on a verdict where the only assignment of error is the refusal of binding instructions for defendant, the appeal will be quashed if it appears that the charge of the court and the evidence was not printed in full in the appellant’s paper-book. In such a case the certificate of counsel for appellant that he had printed such portions of the charge and of the evidence as were material, will not excuse failure to comply with the rule.</p>

Appeal, No. 151, Oct. T., 1912, by defendant, from judgment of Q. S. Phila. Co., February Sessions, 1912, on verdict of guilty in case of Commonwealth v. Samuel Blieden. Indictment for perjury. Before Audenried, J. The jury returned a verdict of guilty, upon which judgment of sentence was passed. Sulzberger, P. J., on a motion to quash the indictment filed the following opinion: . .

Appeal, No. 20, March T., 1913, by plaintiffs, from order of Q. S. Columbia Co., Dec. Session, 1911, No. 4, refusing to set aside verdict against prosecutior for costs in Commonwealth v. Elmer Shaffer. Motion to set aside verdict for costs.

Appeal, No. 269, Oct. T., 1911, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1911, No. 4,683, making absolute rule for judgment for want of' sufficient affidavit of defense in case of Charles Kohn v. Jacob Hornung, Jr. Assumpsit on promissory notes. The opinion of the Superior Court states the facts. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Appeals, Nos. 279 and 280, by Third National Bank of Philadelphia and Corn Exchange National Bank of Philadelphia, from decree of Q. S. Phila. Co., April T., 1911, No. 246, sustaining exceptions to adjudication in Estate of George S. Wolff, deceased.</p> <p>Exceptions to adjudication.</p> <p>Anderson, J., filed the following opinion:</p> <p>The facts in this case are, that the decedent, who died June 20, 1908, had in his lifetime conveyed certain real estate to Cora E. Copperfield, the title to which through an intermediary finally passed to her husband, James D. Copperfield. The latter created a mortgage of $20,000 on the premises, first paying off a prior mortgage of $18,000, and foreclosure proceedings against Copperfield as the owner having been brought in C. P. No. 2, on his mortgage, the real estate was sold at sheriff’s sale, the deed therefor being acknowledged January 24, 1910; and after the payment of the mortgage debt, the fund was left in the sheriff’s hands, which presumptively belonged to defendant in that action. Subsequently, certain of the creditors of the decedent, the Corn Exchange National Bank, Merchants’ National Bank and F. Wayland Ayer, being of opinion that the conveyance of the real estate to Copperfield had been in fraud of their rights, joined with the executor of the decedent in a bill in equity in C. P. No. 3 (afterwards transferred to C. P. No. 2) against Copperfield, in which they sought to have the surplus from the sheriff’s sale paid over to the estate of the decedent, so that their claims might be paid thereout. As these proceedings were necessarily expensive, they wrote to other creditors, including the attorney of the Third National Bank, asking them to join in the proceedings. Counsel for that bank after consultation with his client, sent word that they declined to join in these proceedings on two grounds: first, that from his knowledge of the facts of the case, he was of the opinion that no recovery could be had and, secondly, that it was not necessary for all creditors to join in order that recovery might be had. The effect of the bill was that the court of common pleas sent the fund to an auditor for distribution. At that audit all the creditors of decedent appeared and proved their claims. The auditor decided against Copperfield and awarded the balance of fund, after payment of costs, to the accountant, and it is now before us for distribution as part of the estate of the decedent,</p> <p>At the hearing before the auditing judge claims were presented, inter alia, .on behalf pf the First National Bank of Philadelphia (into which the Merchants’ National Bank had become merged), the Delaware County National Bank of Chester and F. Wayland Ayer, for a pro rata share of the fund now for distribution. To this it was objected, on behalf of the Third National Bank, that the fund being the proceeds of the sale of real estate, the only creditors entitled to distribution were those who had brought an action to continue their liens against the real estate within two years of decedent’s death. The Third National Bank and the Corn Exchange National Bank had brought such action. F. Wayland Ayer and the Merchants’ National Bank had not brought such action, but with the Corn Exchange National Bank had, as ahove stated, intervened in the bill in equity which produced this fund. And the Delaware County National Bank neither intervened nor brought an action to continue the lien of its claim. To this objection of Third National Bank it was replied that at the date of the sheriff’s sale, January, 1910 (decedent having died June 20, 1908), all debts of decedent were liens upon his real estate and that by said sale all liens subsequent to the mortgage, whether debts of record or not, became discharged by the sale and seated upon the fund; that the rights of the lien creditors became fixed upon the confirmation of said sale, and could not be affected by any subsequent action or nonaction on the part of the creditors. And they went further, and claimed that as the Third National Bank refused to join in the bill in equity, it is not entitled to participate in the distribution of the fund realized thereby.</p> <p>The learned auditing judge on the authority of Shorman v. Bank, 5 W. & S. 373, decided that those creditors who had not commenced an action within two years of decedent’s death, had lost their lien on the fund, and that it must be distributed only among those who had brought such action. The effect of this decision is that the Third National Bank, which refused to join in the proceeding that produced the fund in court, is paid a dividend on its claim, while the First National Bank and F. Wayland Ayer, who were active in producing the fund, are deprived of any share therein. Such a result, of course, is shocking to the conscience of a chancellor, and is not to be tolerated unless escape therefrom is impossible.</p> <p>The first point to be considered is as to the right to participate on the part of those creditors whose claims were rejected for the reason that they had not commenced an action within the two-year limit. The case of Shorman v. Bank, 5 W. & S. 373, upon the authority of which they were excluded, is parallel with the present in so far as the fraudulent conveyance and its effects is concerned. It is authority for the position that, in spite of the conveyance the debts of the decedent became liens upon the estate so conveyed, just as if he had died seized of it and that the limitation provided by the act should be applied in the same manner and to the same extent as if he had died seized of the estate. But the distinction between that case and the present is that the bank had no lien upon the land at the time it was converted by the sheriff’s sale, while in the present case, at the time of the confirmation of the sale a lien still existed.</p> <p>The auditing judge also cited, in support of his opinion, the case of Dolan’s Est., 19 Pa. Dist. Rep. 862, and 231 Pa. 180. In that case, however, the sale arose out of a partition of real estate, and, to quote the language of the auditing judge, cited with approval by the Supreme Court, “If there had been no sales, but instead a division in kind, it cannot be doubted that the holdings of the estate of Clara A. Dolan would be in fact real estate. Why, therefore, should a sale create anything more than a change in form, though not in substance. It is simply to give one his share in severalty, which, prior to that, he held in common; in no sense is it for the purpose of creating a fund for the payment of debts.” These cases, therefore, being clearly distinguishable from the one before us, are of no binding authority in this controversy. On the other hand, we have a line of cases where land is sold by order of court for payment of debts, and the sale confirmed within the time limit, in which case the lien of debts on the land is discharged and thrown upon the fund, and is unaffected by subsequent delay in distribution. As said by Mr. Justice Sterrett in Arndt’s App., 117 Pa. 120, “The rights of the respective parties are fixed by the confirmation of sale. Lien creditors who were' such at that time, are entitled to their respective shares of the fund realized, and delay of the court in decreeing distribution cannot deprive them of their rights. If there is any question as to the lien of a debt, or whether it is barred by the statute of limitations, the status of the claim at the time the sale was confirmed must determine it. Whether it be a debt of record or not, if it was then a lien on the land sold and was not then barred by the statute of limitations, it is entitled to participate in the distribution of the funds. ’ ’ And so in the case of sales by assignees for the benefit of creditor?. The date of the confirmation of the sale is the day when the land is converted into money and the liens thus discharged must be paid according to their priority on that day: Tomlinson’s App., 90 Pa. 224. And, as said in Arndt’s App., 117 Pa. 120, this is because such sales are similar to sales by the sheriff under process of a court of law, where it has been uniformly held that the rights of lien creditors must be determine*! as they were at the time of the sale. The liens being divested by the sale, lien holders are thrown upon the proceeds, Douglass’s App., 48 Pa. 223, and no lien or right thereto can be afterwards acquired or lost.</p> <p>It is true that the surplus of sheriff’s sales of land is to be distributed as land, but this clearly applies to the parties who claim by descent; it is to go to them as heirs and not as next of kin.</p> <p>And the reasoning which holds that where land has been converted into money, by law the liens thereon are seated upon the funds, according as they exist at the time of the sale, irrespective of the time of distribution, applies certainly with equal force in a case like the present, where the only practical way by which the debts can be paid out of the land was by filing of the bill in equity and not by obtaining a judgment against the decedent. As long as the land stood in the name of Copperfield no judgment against the executor would have bound it. As said by Mr. Justice Paxson in Fowler’s App., 87 Pa. 449, “It was urged by the appellee that they should have brought suit at law against the administrator, if there be one, and if not they should have raised up an administrator for that purpose. Such a proceeding would have been a vain thing, and lex neminem cogit ad vana seu inutilia.”</p> <p>We are, therefore, of opinion that the effect of the sheriff’s sale was to discharge all liens existing at the time,— liens for debts of the decedent not of record as well as liens of debts of record,—and to seat these liens upon the funds. The exceptions of the excluded creditors must be sustained.</p> <p>Exceptions were also filed to the participation in the distribution on the part of the Third National Bank, founded upon the fact that the Third National Bank had refused to join in the bill in equity by means of which the fund was produced. The title to the real estate was not in the name of the decedent but in that of the fraudulent vendee and if no suit had been brought, this fund would have been paid to the owner of record as a matter of right. The creditors who were successful in practically setting aside the sale from the decedent to his fraudulent vendee, asked the Third National Bank to join with them, thereby sharing in the expense and risk incident to such a proceeding. This the Third National Bank declined to do on the ground that they would not be warranted in going to any expense in the suit against the fraudulent vendee, stating that their counsel did not believe that there was any possibility of recovery being had and because he saw no necessity of making all creditors parties to the bill at that time. Because of this action, the exceptants claim the Third National Bank should be barred from participation in the fruits of the victory.</p> <p>This position seems to be sustained by the language of the Supreme Court in Fowler’s App., supra, where a bill in equity had been filed by a creditor against a fraudulent vendee. In sustaining the right of the creditor to bring such a suit, Mr. Justice Paxson says: “The only remaining question is as to the form of the decree. The deed in controversy is void only as to the complaining creditors. The quiescent creditors, if there be any, cannot take advantage of this proceeding. This is. settled by Shulze’s App., 1 Pa. 251, and Tomb’s-App., 9 Pa. 61. It is apparent then that after paying first, the costs-of: this proceeding, and second, the respective claims' of the complainants, the real estate in question ought to-'be released from the injunction.”</p> <p>This ruling, however, would seem to have been modified: in the more recent case of Schwartz v. Oil Company, 164 Pa. 415, where a fund was created by an appeal made by certain creditors only, and it is held by the Supreme Court in an opinion by Mr. Justice Williams, that all creditors were entitled to share in the funds and not merely the appellees. “We agree with the learned auditor that it (the fund) belongs to the creditors and not alone to such of their number as except to the decree of the court below and brought their appeal into this court. Any of them had the right to appeal. Such of them as did so expended their money for the common benefit of the class to which they belonged and are entitled to be reimbursed before distribution is made,” and, after holding that the cost should be repaid to the creditors who made the appeal, the court held “the remainder of the fund should be distributed pro rata among the creditors named in the auditor’s report now before us.”</p> <p>The majority of the court are of the opinion that the later case, while not in terms overruling Fowler’s appeal, is more in accordance with equitable principles and should be followed in the present case. This exception is, therefore, dismissed.</p> <p>The adjudication will accordingly be modified and the fund distributed in accordance with this opinion.</p> <p>Error assigned was in sustaining exceptions to adjudication.</p>

Appeal, No. 46, Oct. T., 1912, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1904, No. 5,025, on verdict for plaintiff in case of Clara Davis Malpass, now intermarried with Albert C. Tudball, v. City of Philadelphia. Trespass to recover damages for injuries to real estate caused by an overflow of water from a street.

<p>Appeal, No. 138, Oct. T., 1912, by defendant, from order of C. P. No. 2, Phila. Co.? March T., 1912, No. 4,682, discharging rule to open judgment in case of John Roberts v. Robert O. P. Stuart.</p> <p>Motion to quash appeal.</p> <p>Error assigned was the order of the court discharging rule to open judgment.</p>

<p> Promissory note—Check—Defense. </p> <p>In an action on a promissory note for $600 the defense was want of consideration. Prior to the giving of the note, a check for $600 drawn by a lumber company to the order of the defendant was indorsed by the latter and delivered to the plaintiff. In exchange, the plaintiff made and delivered his check for the same amount, payable to the order of the defendant, who deposited it in bank. This check was paid, and the proceeds credited to the defendant; but the check of the lumber company was not paid and came back to the plaintiff protested. Whereupon the plaintiff demanded payment of the defendant, and the latter gave the note in suit for the amount. These facts were not disputed; but the defendant claimed that because of a secret relation between plaintiff and a third person, the plaintiff knew that, he was in reality giving his check for such third person’s sole benefit and that the proceeds of the check were paid to such third person. The plaintiff on the other hand claimed that the transaction was just what it appeared to be on its face. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Principal and surely—Duration of liability—Beneficial association— Unincorporated association—Treasurer—Judgment—Opening judgment.</p> <p>1. Where the bond oij the treasurer of an unincorporated beneficial association recites that the principal in the bond has been elected treasurer for a term stated, and the bond binds the sureties for the conduct of the treasurer for the term stated “and for and during any one or more subsequent terms for which he 'may hereafter be elected,” the sureties on the bond are liable by the plain terms of the bond for the defaults of the treasurer so long as he continues to act as treasurer of the association.</p> <p>2. Where a judgment is entered in the name of an unincorporated beneficial association on a confession of judgment in a bond of the treasurer of the association, the appellate court will not reverse an order of the court of common pleas, discharging a rule to open the judgment on the ground that the judgment should have been stricken off because it had not been entered in the name of one or more members of the association for the benefit of all, where no such motion was made in the court below.</p>

<p>Appeal, No. 88, Oct. T., 1912, by defendants, from judgment of C. P. No. 4, Pbila. Co., Dec. T., 1909, No. 4,045, on verdict for plaintiff in case of A. McClintock v. Martha G. Matlack and Joshua Matlack.</p> <p>Assumpsit on a promissory note. Before Audenried, J.</p> <p>At the trial the court gave binding instructions for plaintiff, and the jury returned a verdict for plaintiff for $46.00.</p> <p>On a rule for a new trial Audenried, J., filed the following opinion:</p> <p>The claim of the plaintiff is based upon a note made by the defendants October 6, 1909, for $40.00, payable to his order three months after that date.</p> <p>The defense set up by the pleadings is a counterclaim for damages sustained by the defendants through the breach of the plaintiff’s guaranty of a heating apparatus, whose price is partly represented by the note in suit.</p> <p>At the trial it appeared by the evidence that in the fall of 1907, in pursuance of a written contract between them, a heating apparatus was installed by the plaintiff in the defendant’s residence at Mt. Holly; that by the contract referred to the plaintiff guaranteed that this apparatus would perform certain work in the heating of the house; that it was not provided with the radiator surface called for by the contract; that it did not do the work that it was guaranteed to perform; and that as constructed it did not have the capacity to do that work. It also appeared that in spite of its defects the defendants had kept the apparatus installed by the plaintiff under his contract and had for four years made use of it in heating their house, without having altered it in any respect.</p> <p>For the purpose of showing the damages occasioned by the breach of the plaintiff’s guaranty of this heater, counsel for the defense asked the following questions of Mr. Stead, a witness engaged in the plumbing and heating business at Mt. Holly:</p> <p>(a) “By the difference in the radiation from your examination and what the contract called for, how much would the contractor save?”</p> <p>(b) “What would be the difference in the cost?”</p> <p>(c) “What would it cost for the difference in placing and replacing this radiation?”</p> <p>(d) “What would it cost to put that heating apparatus in proper shape by the introduction of larger pipe for the purpose of carrying the radiation?”</p> <p>To each of these questions an objection was made on behalf of the plaintiff, and in every instance the objection was sustained.</p> <p>The trial judge directed a verdict for the plaintiff for the amount of the defendants’ note with interest, on the ground that, while the making of the note was not denied, no such defense as that set up by the pleadings had been made out, the defendants having failed to show the damages arising through the breach of the warranty of the capacity of the heater delivered to them by the plaintiff.</p> <p>The only questions raised by the defendant’s motion for a new trial that require discussion are, first, were the objections to the four questions above referred to properly sustained, and, second, was there any legal evidence before the jury as to the damages sustained by the defendants through the plaintiff’s breach of warranty.</p> <p>Where the buyer retains the article sold, the measure of the damages recoverable for a breach of warranty of quality is the difference between the actual value of the article at the time of the sale, and what its value would have been if it had been as warranted: Weed v. Weinberger, 12 Pa. Superior Ct. 12. This is the general rule, and, in Pennsylvania, it has been applied to the case of machinery: Himes v. Kiehl, 154 Pa. 190; Shoe v. Maerky, 35 Pa. Superior Ct. 270; Miller Lock Co. v. Diehl Mfg. Co., 37 Pa. Superior Ct. 585. If it be true, as seems to have been held by the courts of several other states, that where the warranty relates to a machine the measure of the buyer’s damages for its breach may sometimes be the cost or expense of changing or repairing the machine, so as to make it conform to the warranty, it must be made to appear in such a case that it is impossible to resort to the ordinary method of calculating the damages or that the application of the rule would lead to unsatisfactory results.</p> <p>The evidence in this case failed to show the impossibility of establishing, as of the fall of the year 1907, either the actual value of the heating apparatus that the plaintiff delivered to the defendants or its value had it been as warranted; nor was there anything to indicate that the difference between these values would not fairly represent the real loss that the defendants sustained by reason of the breach of the plaintiff’s warranty. There is no reason of which, in the absence of such proof, the court is aware why the damages for the breach of the warranty of a heating apparatus should be measured by a rule differing from that applied to the case of a gas engine in Shoe v. Maerky, 35 Pa. Superior Ct. 270, to the case of a steam engine'in Himes v. Kiehl, 154 Pa. 190, and to the case of an electric generator in Miller Lock Co. v. Diehl Mfg. Co., 37 Pa. Superior Ct. 585. It follows, therefore, that in order to sustain the defense on which they had chosen to rely, the makers of the note in suit should have proved the value of the apparatus that they received from the plaintiff, and the value that it would have had if it had complied with the warranty alleged to have been broken.</p> <p>It would have helped in no degree toward the jury’s understanding of these points had counsel for the defendants been permitted to show how much the plaintiff would save by providing for less radiating surface in the heating apparatus that he installed than was called for by his contract. The savings of the contractor who scamps his job do not necessarily represent the difference between the value of what he has agreed to furnish and the value of what he actually supplies. Moreover, this question did not relate to the date when the heater was installed, but referred to the time of the trial or a later day. The objection to question (a) above set forth was, therefore, properly sustained.</p> <p>For the same reasons question (b) was objectionable and was rightly disallowed.</p> <p>Taken literally, question (c) was unintelligible. All that is certain about it is that counsel, when he propounded it, had in mind the cost of radiators at a time either contemporaneous with the trial or subsequent thereto. If the breach of the warranty of their heater damnified the defendants, the damages should be calculated as of the date of the breach, and even if their correct measure was the cost of altering or changing the heater to comply with the plaintiff’s warranty, the expense involved in so doing more than four years after the heater was installed was irrelevant.</p> <p>The fourth question (d) also related to the wrong point of time and was objectionable on that ground as well as for the reason that it had no relation to the pertinent facts under the rule applicable to the measurement of the defendants’ damages.</p> <p>When the defense was closed nothing had been elicited from the witnesses on the sub j ect of the defendants’ counterclaim except Stead’s answer, “I should say $50.00,” in reply to the question, “I want to know the difference in the cost of the pipe. You said the pipe was smaller than the pipe required to produce radiation sufficient to have the temperature of the heat required in this room. What would it cost for pipe to replace the pipe that is too small”—“the difference between the cost of the pipe at the time when the pipe should go in and at that particular price?” What counsel meant or the witness understood by this question, it is difficult to say. It is manifest, however, that his reply was merely a random conjecture. Mr. Stead, in fact, admitted as much. Be this, however, as it may, his answer, whatever it meant, cannot be regarded as referring to the date of the breach of the warranty or as bearing either on the question of what the heater would have been worth had it complied with the plaintiff’s warranty or on its value as actually installéd.</p> <p>There being, therefore, no evidence whatever to support the counterclaim, there was nothing for the jury to determine except the amount of the interest on the note. That question was left to them. The direction to find in favor of the plaintiff _for the amount of the note with interest was entirely correct. It was unnecessary to give further instructions. As the case had been presented, the defendants’ requests for instructions were without relevancy. A new trial is refused.</p> <p>Error assigned was in giving binding instructions for plaintiffs.</p>

<p>Appeal, No. 3, April T., 1912, by defendant, from judgment of O. and T. Yenango Co., August T., 1911, No. 3, on verdict of guilty in case of Commonwealth v. W. J. Hoffman.</p> <p>Indictment for arson. Before Criswell, P. J.</p> <p>At the trial it appeared that William J. Hoffman was indicted as an accessory before the fact to the burning of a barn belonging to his brother, Louis Hoffman. There was evidence to the effect that the defendant had encouraged and instigated one Lowrey Hoffman to burn the barn. There was also evidence that the defendant had been seen in the neighborhood on the evening of the fire.</p> <p>When Carlisle Hoffman, a witness for the commonwealth was on the stand, the following offer was made:</p> <p>Mr. Breene: The commonwealth offers to prove by this witness and other witnesses that upon the occasion referred to a bloodhound was procured and brought to the scene of the fire about half past eleven and within about an hour after the beginning of the fire. That the hound was placed within forty or fifty feet of the eastern side of the barn and as near to the barn as she could be placed by reason of the excessive heat. That the hound, then being in charge of its owner, Mr. Gregg, was laid upon the ground and took the track or trail at a point about fifty feet easterly from said barn and followed said track easterly some short distance to a rail fence and therefrom followed said track northerly and along said fence to the Bottom road, crossing the same, and from this point in a northwesterly direction of the defendant’s lane and to a point near his house. That the hound upon reaching the premises of the defendant and while still upon and following said track encountered the defendant, smelled him, jumped upon him and manifested the same indications that the hound usually did when running and successfully locating the object of pursuit. That the hound followed said track, which ^was at intervals marked by the footsteps of a man recently made. That said hound was a bloodhound of pure blood and pedigree; in the neighborhood of four or five years of age, having been thoroughly trained to track and follow human footsteps, and having prior to this time been subjected to a great many severe tests and without failure, and that upon this particular occasion the hound was in charge of an experienced party for said purpose, and that the hound prior to this occasion had been trained for said purposes and found to be successful and reliable by an experienced person. This offer to be followed by evidence showing the presence of the defendant within a short distance of the barn burned immediately before the fire, and also by evidence showing that the defendant shortly before the fire left his home, and immediately after the fire was seen approaohing his home in an excited, hasty manner, and when so seen was making substantially the same trail or track followed by said hound.</p> <p>Mr. Weigle: The offer is objected to as incompetent.</p> <p>Mr. Blair: We make the further objection that there is no evidence that this dog was a bloodhound at this time.</p> <p>The Court: The objection is overruled for the present.</p> <p>Mr. Weigle: We would like an exception noted for the defendant.* [8]'</p> <p>“Q. When you arrived on the premises just describe what you did with the hound and who you met. A. I met Mr. Carlisle Hoffman and he took us around and showed us.”</p> <p>Mr. Moore: We wish to object for this reason: That if the court so rules that the dog testimony is to be admitted in this case, that they have not sufficiently proven this dog to be a thoroughbred or well trained for the purpose of trailing human beings as laid down in courts where that evidence is admitted.</p> <p>The Court: That is a question for the jury. Let the objection be overruled.</p> <p>Mr. Moore: Note an exception for the defendant. [9]</p> <p>And now, January 30, 1912, the defendant moves the court to strike from the record all evidence tending to or relating to the trailing by the bloodhound in question, for the reason that it has not been proven that the bloodhound in question is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, and for the further reason that in this particular case the dog in question has not been proven to be possessed of those qualities, nor has it been proven that this dog has been trained during the two years prior to the trailing in question, nor has it been proven that in this case was the hound laid upon a track proven to have been made by the guilty party. [10]</p> <p>Defendant presented the following point:</p> <p>4. Unless the jury finds there is sufficient evidence outside of that furnished by the bloodhound, they will not be justified in convicting the defendant. Answer: Refused. [7]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned among others were (7) above instruction, quoting it; (8-10) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 59, Oct. T., 1912, by defendant, from judgment of C. P. Phila. Co., Sept. T., 1910, No. 2,906, on verdict for plaintiff in case of Michael F. Donnelly v. Bernard Hoopes.</p> <p>Assumpsit for money had and received. Before Ralston, J.</p> <p>In addition to the facts stated in the opinion of the Superior Court the following correspondence was produced in evidence*</p> <p>“Philadelphia, Juné 24th, 1910.</p> <p>“ M. F. Donnelly, Esq.,</p> <p>“ 414 Crozer Bldg.,</p> <p>“ 1420 Chestnut St., Phila.</p> <p>“ Dear Sir:</p> <p>“Before you go away I would like to have the property 1517 and 1519 Vine St. in shape to either lease, sell or improve. Will you make an agreement to the effect if I lease, improve or sell I to pay you Five Hundred Dollars, to cancel and return me the agreements you hold in regard to the property. I do not mean Five Hundred Dollars now, but I think it would be better to have an agreement of this kind so that I will be free to make any kind of a deal in case anything should arise while you are away. Of course I would not care to make any kind of improvements which would make the property sell for a higher price than it would at this time. As you have the money returned you have nothing to lose and I think such an agreement should be satisfactory to you.</p> <p>“ Very truly,</p> <p>“ (Signed) Bernard Hoopes.”</p> <p>“June 27th, 1910.</p> <p>“ Mr. Bernard Hoopes,</p> <p>“ 902 Sansom Street, Phila.</p> <p>“ My dear Mr. Hoopes:</p> <p>“Your letter of the 24th inst. received and contents noted. In reply would say that you are at liberty to lease or improve the properties 1517 and 1519 Vine Street and when either of these things are done pay me the sum of $500 but as to the selling of course under our agreement I am to receive half of the selling price over $15,000, and they are not to be sold for less than $16,000.</p> <p>“ Should you desire to close this matter entirely as far as my interest is concerned I will gladly surrender all the agreements on receipt of the $500, then you will be in position to sell for any price.</p> <p>“ Very truly yours,</p> <p>“ (Signed) Michael F. Donnelly.”</p> <p>“Philadelphia, July 2nd, 1910.</p> <p>“ M. F. Donnelly, Esq.,</p> <p>“ 414 Crozer Bldg., Phila.</p> <p>“Dear Sir:</p> <p>“Yours of 27th June rec’d.</p> <p>“ I understand by your letter that if I desire to close the matter in regard to 1517-19 Vine St. I can pay you Five Hundred Dollars and you will surrender all the agreements.</p> <p>“Before you leave for Europe I wish you would leave these agreements in the hands of Mr. McSorley so that I can close this matter if anything arises while you are in Europe.</p> <p>“ Very truly,</p> <p>“ Beknabd Hoopes.”</p> <p>“July 19, 1910.</p> <p>“ Mr. Bernard Hoopes,</p> <p>“ 9th and Sansom Sts., Phila.</p> <p>“My dear Mr. Hoopes:</p> <p>“After stating over the ’phone yesterday that I had the agreements made between you and Mr. Donnelly I looked through his papers for same, but was not able to come across them. He gave me to understand before sailing for abroad that same were with other papers he gave me, but I have concluded that either he took them home with him, or else left them in his safety vault.</p> <p>“ Under this aspect of the matter it will be impossible for me to turn same over to you, so that the matter will have to await the arrival of Mr. Donnelly in September.</p> <p>“ Very truly yours,</p> <p>“ (Signed) Richard McSorley.”</p> <p>“$500.00 July 25, 1910.</p> <p>“ Received of Mr. Bernard Hoopes Five Hundred Dollars, which, under the terms of letter from Michael F. Donnelly to said Mr. Bernard Hoopes, dated June 27th, 1910, would make void any and all existing agreements, relative to the sale and purchase of premises 1517 and 1519 Vine Street and premises in rear of these Vine Street properties.</p> <p>“ (Signed) Richard T. McSorley.”</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $1,265.67. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 55, Oct. T., 1912, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 704, on verdict for plaintiff in case of Viola May Sidwell v. Gimbel Brothers, Incorporated.</p> <p>Trespass to recover damages for personal injuries. Before Ferguson, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 57, Oct. T., 1912, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1909, No. 2,991, on verdict for plaintiff in case of William Blumenthal and William Shiller, Copartners, trading as Blumenthal, Shiller & Co., v. Nicholaus Green, trading as Empire Cloth Examining, Sponging & Refinishing Works.</p> <p>Assumpsit on a contract. Before Sulzberger, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court charged in part as follows:</p> <p>[This is a case (a very rare case) wherein you have evidence of willful and corrupt perjury on the part of the defendant, very thorough evidence, and a person guilty of willful and corrupt perjury is unworthy of belief in any aspect.] [1]</p> <p>[He made this claim. He swore to the truth of it. He took the money on the settlement, and it is impossible, where the main item was loss on these goods that were handed to him for sponging (unless he were to prove afterward that he was insane), that he could have been guilty of anything but deliberate, false and corrupt perjury.</p> <p>A person like that is unworthy of belief in any aspect, no matter what he says.] [2]</p> <p>[I mean if the statement as it appeared to us this morning had been true, that the defendant could really stand up as a man and say, “Your goods never were damaged, and you ought not to claim it,” then there might be a fair question as to whether the plaintiffs had forfeited their trade discount by not paying a bill, which was undisputed, merely because there was a disputed one, but in the present aspect of the case, as I have instructed you that the defendant is totally unworthy of belief, there seems to be nothing of any value to oppose the plaintiffs’ claim. You are therefore at liberty to find a verdict for plaintiffs for $39.41, and interest, whatever that amount is.] [3]</p> <p>Verdict and judgment for plaintiff for $44.13. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p> Evidence—Abandonment of personal property—Intention—Province of court and jury. </p> <p>1. Abandonment includes both the intention and the external act by which the intention is carried into effect. ■ Ordinarily it is a question of fact to be determined by the jury, under all the circumstances of the case. It is only where all the essential facts are admitted or indisputably proved, and the inferences to be drawn from them are certain and free from doubt, that it can be withdrawn from the jury, and the abandonment be declared by the court as a matter of law.</p> <p>2. Where the owner of a mare which is in a crippled condition, places her in charge of an agistor with directions to kill her, and the agistor fails to obey the order and subsequently delivers the mare to his successor in the business who converts her to his own use and subsequently sells her, the owner in an action against such successor to recover the value of the mare, is entitled to have the question of abandonment submitted to the jury; and in such a case he is not estopped by an admission, made by him in a suit previously brought by the defendant to recover for the keep of the mare, to the effect that he had ordered the mare to be killed and had abandoned all interest in her.</p> <p> Statute of limitations—Conversion of horse—Acts of June 24, 1895, P. L. 286, and March 27,1718, 1 Sm. L. 76. </p> <p>3. The Statute of Limitations of June 24, 1895, P. L. 236, does not apply to an action for the conversion of a horse. The statute was intended to apply only to cases of injuries to the person which may or may not result in death; nor does the Act of March 27, 1713, 1 Sm. L. 76, apply, where the action was brought within three years after the alleged conversion.</p>

<p> Partnership—Proof of—Affidavit of defense—Rule of court—Partnership in particular transaction. </p> <p>1. In an action against partners for goods sold and delivered where it appears that a rule of court provided that a defendant sued as a partner, must in his affidavit deny the existence of the partnership, an affidavit by one of the defendants that he never was a partner of the other defendant, and that he never as a partner or individual received the goods referred to in the statement, is sufficient to place upon the plaintiff, at the trial,- the burden of proving the partnership alleged in the statement.</p> <p>2. In an action against two persons alleged to be partners for goods sold and delivered for a building operation, where the proofs show that one of the defendants was to furnish the materials and the other the labor, and that the first defendant was to collect the money from the owner and pay for the materials and labor as well, and that any surplus was to be divided between the two defendants, a request for binding instructions in favor of the second defendant will be dismissed, where it appears that some of the material was received and used in the operation in question.</p>

<p> Accord and satisfaction—Payment—Tender—Condition. </p> <p>1. Where in case of dispute a payment is offered as payment in full, the party to whom it is made must refuse to accept it on the condition involved in the tender. If he accepts, the condition upon which it was made goes with it. It is necessary that the money be offered in satisfaction of the account, and that the offer be accompanied with such declaration as is equivalent to a condition that if the payment is accepted it shall be a satisfaction. The party to whom the offer is made must be informed at the same time it is to be a full settlement of the account.</p> <p>2. Where a check is sent by a debtor to a creditor between whom there has been a dispute as to the amount due, and the check is accompanied by a statement with a request to “please receipt and return,” and the plaintiff accepts the check although it is less than the amount which he claims, the acceptance will be a satisfaction of the claim.</p>

<p> Contract—Breach—Rescission—Measure of damages. </p> <p>1. In an action to recover damages for breach of a contract to quarry and crush stone, which the plaintiff had agreed to perform but which the defendant did not permit him to perform, the plaintiff may show as an element of damages that by reason of the action of the defendant, his crushing machine had been idle for forty days, that he had shipped it to the place where the work was to have been done, and that he had lost two other opportunities to use the machine because of his contract with the defendant.</p> <p>2. In such a case compensation for the actual loss of the plaintiff by reason of the preparations he made for the carrying out of his contract is the measure of damages.</p> <p>3. Plaintiff’s own evidence, without more, as to the idleness of the crusher, is sufficient to carry the case to the jury.</p>

Appeal, No. 162, Oct. T., 1912, by Sarah A. Maesch, from decree of O. C. Phila. Co., April T., 1911, No. 156, dismissing exceptions to adjudication in Estate of Johanna B. Elwert, deceased. Exceptions to adjudication.

<p> Carriers—Common carriers—Bill of lading—Oral agreement to contradict written instrument. </p> <p>An action against an express company to recover damages for injuries resulting to turkeys from a delay of twenty-four hours in their delivery, cannot be maintained, where the plaintiff relies upon his own uncorroborated testimony to show a special oral agreement with the agent of the defendant, which modified the general language of the bill of lading, and which was the inducement to him to make the shipment.</p>

<p>Appeals, Nos. 179, by relator and defendant, and 220, from order of Q. S. Philadelphia Co., June T., 1909, No. 385, dismissing petition for habeas corpus in case of Commonwealth ex rel. Harry Bates v. Robert J. McKenty, Warden of the Eastern Penitentiary.</p> <p>Petition for writ of habeas corpus.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>jError assigned among others in both appeals was order of the court.</p>

<p>Appeal, No. 70, Oct. T., 1912, by Frederick Funk, Sr., from judgment of Q. S. Phila. Co., March T., 1909, dismissing exceptions to report of jury of view, In the Matter of the Opening of North Front Street from Luzerne Street to Nicetown Lane and from Hunting Park Avenue to the Boulevard.</p> <p>Exceptions to report of jury of view.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed the exceptions.</p> <p>Error assigned was the order of the court dismissing the exceptions.</p>

<p> Judgment—Opening judgment—Laches—Discretion of court. </p> <p>1. Gross laches in prosecuting an application to open a judgment is a circumstance of great, and sometimes controlling weight in determining whether the judgment should be opened, and cannot properly be ignored by a court exercising the power of a court of chancery. The law does not absolutely fix any period of time within which a defendant must move to open a judgment, but delay long persisted in after knowledge of all the facts, always casts greater or less doubt on the bona tides of the defense set up, and gives weight and probability to the evidence adduced to rebut it.</p> <p>2. Where a defendant takes a rule to open a judgment after execution has issued and by various devices including failures to appear, delays the final disposition of the rule for over two years and shows by his conduct a deliberate intention to ignore the court below and to delay the plaintiff’s cause, the appellate court will not reverse the order of the court below discharging the rule to open the judgment, and imposing the costs upon the defendant.</p>

<p> Appeals—Assignments of error—Insufficient assignments. </p> <p>1. An assignment of error is insufficient which merely avers that “the court erred in not determining in limine the question raised by the eighth paragraph of defendant’s answer,” without stating the question raised, or quoting the paragraph, or referring to where the paragraph might be found.</p> <p>2. An assignment of error is insufficient which sets forth a short final decree adopting and confirming a prior decree for specific performance, but does not incorporate in the assignment the prior decree.</p> <p> Equity—Specific performance—Refusal of wife to join in deed in limine—Act of June 7,1907, P. L. jlfi. </p> <p>3. In the refusal of the wife of the defendant in a bill for specific performance to join in a deed is no defense, especially where the plaintiff is willing to accept a deed from the defendant without the latter’s wife joining therein.</p> <p>4. An objection that a paper relied upon for specific performance should be passed upon in limine by the court below, will not be considered by the appellate court where there is nothing to show that the question was raised below either by demurrer or answer as provided by the Act of June 7, 1907, P. L. 440.</p>

<p>Appeal, No. 81, Oct. T., 1912, by P. J. Christy et al., from decree of C. P. Blair Co., No. 188, O. C. Docket 1911, dismissing exceptions to auditor’s report in Estate of John T. Christy.</p> <p>Exceptions to report of Thomas C. Hare, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p> Practice C. P.—Parties—Death of plaintiff—Substitution of executors —Will. </p> <p>1. Where in an action of assumpsit the plaintiff dies, and his executors are substituted in his place, and the death of the plaintiff and the issue of letters testamentary are admitted, it is not necessary to produce the will in evidence to establish the right of the executors to prosecute the suit to final judgment.</p> <p>Principal and agent—Agency to sell—Fraudulent concealment of sale— Evidence.</p> <p>2. When a principal sends a horse to an agent to sell, and the latter sells the horse, but not only conceals the fact of the sale from the principal, but also attempts to make the principal believe that the horse had been killed, and the principal does not learn these facts until he is barred by the statute from bringing suit against the purchaser, the statute of limitations does not run in favor of the agent as against his principal from the date of the sale of the horse, but only from the discovery of the fraud. In such a case evidence that the agent had not in fact been paid for the horse is immaterial, and it is also immaterial that a new agreement was substituted for the original agreement, after the sale of the horse, if it appears that the principal entered into the new agreement without knowledge of the fraud and concealment which had been practiced upon him; and it is also immaterial in such a case whether the purchasers of the horse were solvent or insolvent.</p>

<p> Appeals—Where appellant is not a party in interest—Stakeholder. </p> <p>Where on an appeal it appears from the record that the appellant had no interest in the fund in controversy, and that such fund had merely been held by her attorney as a stakeholder to pay out to other parties on the determination of litigation, the appeal will be dismissed.</p>

<p>Appeal, No. 231, Oct. T., 1911, by defendant, from order of C. P. Berks Co., Aug. T., 1911, No. 97, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert Grey Busbong, Administrator of Emil Anderson, deceased, v. Charles W. Edwards.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Prom the record it appeared that on February 15, 1911, defendant delivered to Emil Anderson an electric piano for the price of $550, $200 payable in cash and the remainder in monthly payments of $20.00 each. The agreement is set forth in the affidavit of defense quoted below. It also appeared that the defendant agreed to accept from Anderson an old piano as the equivalent of the $200 cash. Anderson died February 27, 1911. On March 22, 1911, in default of payment of an installment of rent falling due March 15, 1911, Anderson’s administrator, the plaintiff, in compliance with the demand of defendant delivered over to him the leased piano, but defendant refuséd to account for the cash payment of $200 represented by the old piano. Suit was then brought against him before an alderman to recover the $200, less $20.00, one month’s rent due. Judgment was rendered against the defendant for $182.91 from which the defendant appealed to the common pleas. Defendant filed the following affidavit of defense:</p> <p>H. Clinton Heller, being duly sworn according to law, deposes and says that he is the employee and attorney in fact of Charles W. Edwards, the defendant in the above-entitled case; that the said defendant, by reason of his absence from the county, is unable personally to present his defense at this time; that the deponent knows that the said defendant has a just and legal defense to the whole of plaintiff’s demand in this action, the nature and character of which, for the reasons stated, he craves leave to set forth in the defendant’s stead and behalf as follows, to wit: That true it is that on February 15,1911, the defendant delivered to Emil Anderson one Electrona Electric Piano No. 84261, on the following agreement of lease, to wit:</p> <p>“$550.00 Feb. 15, 1911.</p> <p>“This is to certify that I have received this day, in good condition, from C. W. Edwards, of Reading, Pa., one Electrona Electric Piano No. 84261, Style Oak, valued at Five Hundred Fifty Dollars, for the use of which I agree to pay C. W. Edwards a monthly rental of ($200 cash) Twenty Dollars, in advance, at his office, for 17^ months, with interest at six per cent per annum and to deliver up the same to the above-named owner, or his authorized agent, upon his demand; and I further covenant and agree to pay for any damage or loss of said instrument whilst in my possession, except ordinary wear.</p> <p>“And it is further agreed that I will not underlet or assign this lease; remove or permit to be removed, said piano from the house, place of business, or premises situated at 437 Penn St. where the said piano and appurtenances, were first delivered, without the written consent of the Lessor.</p> <p>“I hereby confess judgment for the whole amount of the above rental, viz: $550.00 with interest, costs of suit, with release of all errors, without stay of execution, waiver of the right of appeal, waiver of inquisition, extension and confession of condemnation on all levies made upon real estate, waiver of the benefit of all exemption laws, and all laws for the assignment of property for the benefit of creditors.</p> <p>“Witness: (Signed) Emil Anderson (seal)</p> <p>“ (Signed) S. R. Landis</p> <p>Optional Certificate</p> <p>“I hereby give Mr. Emil Anderson 17)^ months’ option of buying the Electrona Electric Piano No. 84261, Style Oak, valued at Five Hundred Fifty Dollars and Interest, now on rent, under lease dated and signed Feb. 15, 1911, and I agree to accept all receipts for money paid for rent by him on said piano when purchased, as part purchase money.</p> <p>“(Signed) C. W. Edwards</p> <p>“Feb. 15,1911. Per S. R. Landis.”</p> <p>This deponent denies that there was credit given on the said agreement of lease or on said optional certificate, by the defendant’s authority, for any cash payment or for or on account of a piano belonging to Emil Anderson. Deponent also denies that +he defendant agreed to accept a piano at $200 cash, and that the same was delivered to him (the defendant) under such agreement, but avers that said piano was accepted by the defendant as a payment on account of said lease provided that the said Emil Anderson pay said monthly installments of $20.00 for seventeen and one-half months according to the terms of said lease, and further avers that the defendant made repairs and improvements to said piano, so to be accepted, in order to put the same into a salable condition when the terms of said lease had been complied with on the part of the said Emil Anderson, for which the defendant was compelled to pay out large sums of money, to wit: $150, which said sum the deponent avers is justly due and owing to the defendant by the plaintiff.</p> <p>The deponent further avers that the said Emil Anderson did not, nor did his administrator, the plaintiff in suit, nor any other person or persons for them, pay any money or anything else, on account of said lease or agreement, and the defendant thereupon did demand from the plaintiff the electric player piano leased to said Emil Anderson under the terms of said lease, and thereupon the same was delivered to him, the defendant.</p> <p>The deponent further avers that under the statement of facts aforesaid the defendant is not indebted to the plaintiff in any manner whatever.</p> <p>All of which the deponent expects the defendant to be able to prove upon the trial of this cause.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 170, Oct. T., 1912, by defendant, from judgment of C. P. Berks Co., June T., 1912, No. 60, on verdict for plaintiff in case of Jacob A. Lesher v. D. K. Youse.</p> <p>Assumpsit for money had and received. Before Wagner, J.</p> <p>Verdict and judgment for plaintiff for $195.55. Defendant appealed.</p> <p>Errors assigned appear by the opinion of the Superior Court.</p>

<p> Appeals—Orphans’ court—Findings of fact—Review. </p> <p>A finding of fact by the orphans’ court as to the payment of a promissory note based upon sufficient evidence, will not be reversed by the appellate court in the absence of manifest error.</p>

<p>Appeal, No. 106, Oct. T., 1912, by plaintiff, from order of C. P. No. 5, Phila. Co., March Term, 1911, No. 45, refusing to set aside decree of divorce in case of John T. Taylor v. Helen Taylor.</p> <p>Petition to set aside decree of divorce.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order refusing to set aside decree.</p>

Appeal, No. 18, Oct. T., 1912, by defendant, front judgment of C. P. Blair Co., Oct. T., 1908, No. 181, on verdict for plaintiff in case of Harry. V. Cornelius v. Edward H. Lytle. Assumpsit for breach of a contract for the leasing of a farm. Before Schtjll, P. J., specially presiding. At the trial it appeared that the defendant had agreed to lease to the plaintiff a farm containing 267 acres which the plaintiff agreed to work on shares.

<p>Appeal, No. 39, Oct. T., 1912, by plaintiff, from decree of C. P. Huntingdon Co., Dec. T., 1909, No. 161, on bill in equity in case of Crescent Pipe Line Company v. John M. Jeffries.</p> <p>Bill in equity for an injunction. Before Woods, P. J.</p> <p>The agreement upon which the suit was based was as follows:</p> <p>“In consideration of one dollar now paid and six dollars and ninety cents to be paid in event of location herein mentioned being adopted within six months after the first day of January, 1892, I hereby grant to Crescent Pipe Line Company of Pittsburg, Pa., the right to construct, maintain and remove a gas or oil pipe line, also telegraph line over and through my farm in Dublin Township, Huntingdon County, Pa., said line to be constructed on the route as now indicated by survey on the premises. This right of way to continue as long as used for the above purpose, said Crescent Pipe Line Company shall be liable for all damages arising from the maintenance of said line, and if such damages cannot be mutually agreed upon, each party to this agreement shall select one man and they two a third whose decision as to amount of damages shall be final and such damage shall be paid within thirty days of such decision.</p> <p>“In event foregoing location is not adopted by Crescent Pipe Line 'Company on or before July 1st, 1892 then this instrument is not binding on either party or the second payment to be made.</p> <p>“The above conditions shall apply to heirs, successors or assigns of the parties hereto.</p> <p>“In witness whereof, the parties have hereunto set their hands and seals the 24th day of November, a. d. 1891.</p> <p>“G. W. Jeffkies (Seal).”</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court entered a decree in favor of the plaintiff.</p> <p>Error assigned was the decree of the court.</p>

<p> Res adjudicata—Orphans’ court—Construction of will on partial distribution. </p> <p>1. A particular construction of a will on a partial distribution by an auditing judge of the orphans’ court to which no exceptions were filed, and from which no appeal was taken, is not res adjudicata so as to bind the orphans’ court on the subsequent adjudication of an account covering another portion of the same estate.</p> <p> Trusts and trustees—Separate use trust—Buie in Shelley’s case. </p> <p>2. Testator gave a portion of his estate to trustees to keep the same invested and to pay over the income thereof to his granddaughter, a married woman, “for and during all the term of her natural life for her sole and separate use, and from and immediately after her decease then in trust to and for the only proper use and behoof of all and every the child and children which she may leave surviving her, and the lawful issue of any of them who may be then deceased having left such issue, their several and respective heirs, executors and assigns in equal shares forever per stirpes, and not per capita.” Held (1) that the words “ child and children which she may leave surviving her and the lawful issue of them who may be then deceased,” are words of purchase and not of limitation; and (2) that the trust did not cease upon the death of the husband leaving a child surviving but continued until the death of the wife.</p>

<p>Appeal, No. 99, Oct. T., 1912, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., March T., 1911, No. 3,730, on verdict for defendant in case of Samuel T. Freeman, George C. Freeman and Samuel M. Freeman, trading as Samuel T. Freeman and Company, v. Solomon Lieberman.</p> <p>Assumpsit upon a check. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were in giving binding instructions for defendant.</p>

<p>Public officers—Compensation—City treasurer—Cities of the third class—Collection of taxes—Aeis of May 83, 1889, P. L. 877, May 16, 1901, P. L. 884, and June 80,1901, P. L. 578.</p> <p>Under the Act of June 20, 1901, P. L. 578, all taxes levied by a city of the third class, in the form of a tax and lawfully collected as such by the city treasurer, are subject to that section of the statute which provides compensation for the treasurer for the discharge of the duty lawfully imposed upon him; and this applies to a license tax not exceeding $100 annually imposed upon persons engaged in certain occupations, in accordance with provisions of the Act of May 16, 1901, P. L. 224, amending art. 5, sec. 3, clause 4, of the Act of May 23, 1889, P. L. 277, and it is immaterial in such a case whether the charge on the occupation be called a tax or license fee.</p>

<p> Negligence—Borough—Bridge—Traction engine—Case for jury. </p> <p>1. In an action against a borough, to recover damages for injuries caused to plaintiff’s traction engine by the breaking down of a bridge across which it was being propelled, the case is for the jury where the evidence is conflicting as to the condition of the bridge, and as to the warning given plaintiff.</p> <p>2. Where there are facts to be determined by the jury from conflicting evidence, and inferences to be drawn from the facts so found, the case cannot be withdrawn from the jury.</p>

<p> Boroughs—Ordinance—Ordinance book—Signature of officers—Constable—■Estrays—Process. </p> <p>A constable cannot be held liable as a trespasser for enforcing a borough ordinance relating to stray cattle, because the ordinance in question was not signed by the borough officers in their own handwriting in the ordinance book, if it appears that the original paper containing the ordinance was signed in their own handwriting by the president, secretary and burgess, that this paper with its signatures was copied into the ordinance book by the daughter of the secretary, and that the constable received a copy of it without any knowledge that the officers had not signed in the ordinance book. Although such an ordinance may be invalid, it is sufficient process to protect the constable.</p>

Appeal, No. 235, Oct. T., 1911, by defendant, from order of C. P. Delaware Co., March T., 1911, No. 296, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Vulcanite Paving .Company v. Chester Traction Company. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 168, Oct. T., 1912, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1907, No. 3,828, for plaintiff on case stated in suit of Clarissa H. Taylor v. Adams Express Company.</p> <p>Case stated in trespass to determine liability for loss of furs.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in entering judgment for plaintiff for $150, and interest only.</p>

Appeal, No. 22, Oct. T., 1912, by George A. Weidner, from judgment of C. P. Berks Co., Sept. T., 1910, No. 122, on verdict for plaintiff… Held: “A partner may execute in the firm name all instruments which fall within the scope of its business, such as receipts, bills of sale, notes, etc., and whether he appends a seal or not is wholly unimportant, as such instruments evidence a past transaction and impose no new liability.” We therefore consider that whether this action be…

Appeal, No. 102, Oct. T., 1912, by William Seigfried, from decree of O. C. Berks Co., Feb. T., 1912, No. 22, dismissing exceptions to adjudication in Estate of Rebecca Radenbaeh, deceased. Exceptions to adjudication. Bland, P. J., stated the facts to be as follows: Nathaniel P. Staudt, the claimant, was a farmer and butcher, and Rebecca Radenbach, the decedent, was engaged in farming, when the transactions occurred, upon which this litigation is grounded.

Appeal, No. 226, Oct. T., 1912, by defendant, from judgment of C. P. Berks Co., Sept. T., 1911, No. 23, on verdict for plaintiff in case of Anna F. Kane v. Frank P. Lauer. Trespass to recover damages for personal injuries. Before Wagner, P. J. At the trial it appeared that on July 4, 1911, plaintiff, a young woman, was injured by a collapse of the grandstand of the Reading Baseball Association, where she was present at a baseball game.

Appeal, No. 265, Oct. T., 1911, by defendant, from order of C. P. Bucks Co., Feb. T., 1907, No. 81, discharging rule to open judgment in case of Mary A. German and David L. German v. Margaret Conover. Rule to open judgment. Before Staples, P. J., specially presiding. The opinion of the Superior Court states the case. Error assigned was order discharging rule to open judgment.

Appeal, No. 223, Oct. T., 1912, by defendants, from judgment of C. P. Huntingdon Co., Sept. T., 1911, No. 1, for plaintiff n. o. v. in case of J. Diller Buck v. Annie Henry et al. Scire facias sur mortgage. Before Woods, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $159.88. Subsequently the court entered judgment for plaintiff for the full amount of the mortgage. Defendants appealed.

Appeal, No. 276, Oct. T., 1911, by Henry M. Grill et al., from order of Q. S. Berks Co., No. 205, Miscellaneous Docket, 1911, Incorporating the Borough of Sinking Spring. Petition for the incorporation of a borough. Before Wagner, J. The facts are stated in the opinion of the Superior Court. Error assigned was the order of the court.

Appeal, No. 237, Oct. T., 1911, by defendant, from order of C. P. Lancaster Co., March Term, 1911, No. 18, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Clara E. McClurg v. J. E. Futer. Assumpsit for breach of a written .agreement to purchase real estate. Rule for judgment for want of a sufficient affidavit of defense.

<p>Railroads—Condemnation—Pleadings—Damages—Expert mtnesses— Cross-examination.</p> <p>1. Where in. condemnation proceedings by a railroad, the owner of the land condemned testifies that one part of the land was especially valuable because of its peculiar adaptability for poultry raising, and that the remainder of his land was merely “farm land under cultivation,” and has introduced testimony tending to inflate the value of the whole farm because of the uses to which a limited part of it is capable of being devoted, it is not error for the trial court to permit counsel for the railroad company to cross-examine expert witnesses offered by the owner, as to the value of different parts of the land, as distinguished from each other by the uses to which they were devoted.</p> <p>2. The purpose of such cross-examination is not to vary the general rule for ascertaining the damages to the property, it is rather to enable the jury to properly estimate the weight to which the testimony of the witness is entitled.</p>

<p> Promissory note—Discount—Conflicting testimony—Case for jury. </p> <p>1. In an action upon a promissory note by a trust company against the maker, the case is for the jury where the treasurer of the plaintiff testifies that the plaintiff discounted the note for the payee on a particular date, but this testimony is contradicted by proof of the fact that after the date mentioned the note was in the hands of the payee unindorsed, and was offered by him to other banks for discount, and that on a particular occasion the payee had asserted in the presence of the plaintiff’s representative that he had not been able to get the note discounted.</p> <p>2. When the establishment of a question of fact depends upon oral testimony, the credibility of the witness, or witnesses, is for the jury, and it is their exclusive province to determine whether from such testimony the fact in dispute has been established.</p>

<p> Negligence—Street railways—“Stop, look and listen”—Crossing tracks —Contributory negligence. </p> <p>1. When the driver of a team about to cross the tracks of a passenger railway constructed upon a public highway, fails to look iinmediately before going upon the track, he is guilty of contributory negligence.</p> <p>2. Where a person driving a buggy at night on a public highway on which an electric railway is operated, knows that a car is approaching from behind from the reflection of its light on the rails, and turns his horse’s head at a point opposite the entrance to a lane across the track, and at a distance of twelve feet from the nearest track, stops, looks and listens, and then settles back in his seat, and without further looking drives across the track at a slow walk, he is guilty of contributory negligence, and cannot recover from the company for personal injuries which he sustained by a collision between the car and his buggy.</p>

<p> Practice, C. P.—Amendment—Parties—Partnership. </p> <p>1. Where in a suit against two partners an affidavit of defense suggests the death of one of the partners, the plaintiff is entitled to have the record amended so as to show-the name of the surviving partner “as the liquidáting and surviving partner” of the deceased partner. If such an amendment is refused in the lower court, the appellate court on appeal will consider it as granted.</p> <p> Affidavit of defense—Sale—Goods sold and delivered. </p> <p>2. An affidavit of defense in a suit for goods sold and delivered is insufficient, which merely alleges payment, but gives no information as to the time of payment, by whom made, or the manner or amount of such payment; and there is nothing to show that the defendant could not have examined the plaintiff’s books as to the subject of payment, if he had so desired.</p>

<p> Negligence—Fire—Communication with fire from neighboring property—Inferences—Evidence. </p> <p>1. In an action against a quarry company to recover damages for the burning of a house by fire communicated from the defendant’s adjoining property, the plaintiff is bound to show that the fire originated from some negligence of the defendant’s employees in connection with the defendant’s business. It is vain for the plaintiff to assert, merely as a theory, and without any evidence whatever, that the employees of the defendant built a fire to warm their picks and shovels, that the high wind carried some of the fire into the nearby brush, and that the fire thus started burned continuously to the vicinity of plaintiff’s house, and caused it to burn.</p> <p>2. In every ease there must be some evidence from which the fact of actual negligence may be found as a presumption of law, or as an inference of fact, but if there be no ascertained fact from which an inference of fact will arise, none is permitted.</p> <p> Appeals—Striking out testimony—Exceptions—Assignments of error. </p> <p>3. The appellate court will not consider the competency of evidence stricken out by the lower court, where it appears that although exception was taken to such action of the lower court, the exception was not brought up as the subject of an assignment of error.</p>

<p> Parent and child—Adoption—Consent of mother—Betting aside decree. </p> <p>A decree of adoption of a child taken from a home, will be set aside where it appears that the mother had no notice of the proceedings; was not present in court; was at the time requesting the return of her child, although she had previously signed a paper releasing her rights in the child to the home, and assenting in general language to the adoptiou of the child, but not by any particular person; and that the petitioner for the adoption, although knowing the mother’s desire, had not revealed it to the court.</p>

<p>Railroads—Farm crossings—Destruction of crossing—Jurisdiction— Equity—Act of February 19,1849, sec. IB, P. L. 79.</p> <p>1. Section 12 of the Act of February 19, 1849, P. L. 79, relating to the destruction of farm crossings, does not apply to a ease where a railroad company deliberately, and without any cause shown, destroys a crossing established by it, and maintained for many years as a necessary means of access from one part to the other of land traversed by it.</p> <p>2. In such a case a bill in equity is the proper remedy of the landowner to compel the railroad company to restore the crossing.</p>

<p> Municipal liens—Sidewalks—Contiguous lots. </p> <p>A municipal lien for a sidewalk may be filed against a number of lots in a borough described as consecutively numbered, where it appears that the lots are- contiguous, are not held by a separate title, are not used for separate or distinct purposes, and that the improvement was made at one time, under one ordinance and one contract. The fact that a fence was between two of the lots, without more, will not invalidate the lien.</p>

<p> Public officers—Township tax collector—Extension of term—Abolition of office—Townships of the first and second class—Constitutional amendment of November 2, 1909—Act of May 28,1907, P. L. 278. </p> <p>1. The term of a township tax collector elected in 1909, in a township of the second class, for three years, was extended by the schedule adopted with the constitutional amendment of November 3, 1909, to the first Monday of January, 1914; but if in 1910, the township is decreed to be a township of the first class, the office of township collector is abolished through the operation of the Act of May 28, 1907, P. L. 273, and the duties of the township tax collector become vested in the township treasurer elected after the change of the status of the township.</p> <p>2. In such a case when the tax collector elected in 1909, took office, his tenure of office was subject to the condition that the township might become a township of the first class, and his office be abolished by the virtue of the Act of May 28, 1907, P. L. 273.</p>

<p> Appeals—Interlocutory order—Alternative writ of mandamus—Quashing appeal—Act of June 8,1893, P. L. 845. </p> <p>An order awarding an alternative writ of mandamus is an interlocutory order from which no appeal lies. The Act of June 8, 1893, P. L. 345, gives no appeal from such an order.</p>

Appeal, No. 245, Oct. T., 1912, by defendants, from order of C. P. Chester Co., discharging rule to open judgment in case of W. J. Robinson v. Ella Gover and Charles H. Gover. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was order discharging rule to open judgment.

<p>Appeal, No. 71, April T., 1913, by defendants, from judgment of Q. S. Erie Co., Sept. Sessions, 1911, No. 32, on verdict of guilty in case of Commonwealth v. A. B. Crowl and W. F. Lewis.</p> <p>Indictment for violation of the Ice Cream Act of March 24, 1909, P. L. 63. Before Walling, P. J.</p> <p>At the trial it appeared that G. M. Pelton, a witness for the commonwealth, and one of the special agents of the dairy and food department, had purchased from the defendants a pint of chocolate ice cream, and that a subsequent analysis of the ice cream thus bought showed that it was below the standard in butter fat provided by the Act of March 24,1909, P. L. 63.</p> <p>When James A. Evans, the commonwealth’s expert, was under cross-examination, he was asked this question: “Q. Would you say that it would be possible from the same can, taking a sample at the edge, another at the center and another at the lowest strata, to get three different samples that would vary as much as seven or eight points, if it was a five-gallon can? ”</p> <p>Objected to as not cross-examination.</p> <p>The Court: I don’t believe that is cross-examination. It may be competent in rebuttal to show that, but I do not think it is cross-examination.</p> <p>Objection sustained and exception sealed for defendants. [12]</p> <p>When Dr. Joseph A. Deghuee, an expert witness for the defendant, was on the stand, he was asked this question: “Q. What would you say, taking a five-gallon can, as to the variation of the top of the can with the bottom; how high would it run in percentage on fat?”</p> <p>Objected to as immaterial; the evidence upon the part of the commonwealth shows the sale of this pint of ice cream; that it is not material to show what there might have been in some other part of the can or in some other part of the store.</p> <p>The Court: In our opinion, the only evidence the commonwealth having offered being in regard to the half pint bought by Mr. Pelton, it is not material to show that any different parts of a larger can of ice cream would show a greater amount of butter fat than others. It is a question as to the sample or as to the amount sold by the de~ fendants or one of the defendants to the prosecutor. The objection is sustained, evidence excluded and an exception sealed for the defendants. [13]</p> <p>The court refused to instruct the jury that the act of March 24, 1909, was unconstitutional, or that the legislature had no authority under the police power to enact it, or that the prosecution should have been commenced by the dairy and food commissioner.</p> <p>Verdict of guilty, upon which the defendant was sentenced to pay a fine of $25.00. Defendant appealed.</p> <p>Errors assigned were above instructions.</p>

<p>Appeal, No. 3, Feb. T., 1913, by-defendants, from judgment of Q. S. Lycoming Co., Dec. Sessions 1911, No. 41, on verdict of guilty in case of Commonwealth v. Frank L. Moyer et al.</p> <p>Indictment for conspiracy. Before Hall, P. J., specially presiding.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty, on which judgment of sentence was passed.</p> <p>Errors assigned were various rulings and instructions sufficiently set forth in the opinion of the Superior Court.</p>

<p>Appeal, No. 242, Oct. T.. 1911, by defendant, from judgment of C. P., No. 2, Phila. Co., Dec. T., 1906, No. 2,268, on verdict for plaintiff in case of Mary Cahill v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover, damages for personal injuries. Before Wiltbank, J.</p> <p>At the trial it appeared that on December 28, 1906, the plaintiff was injured by the premature starting of the car which she was trying to get on, in the city of Philadelphia. The circumstances of the accident are stated in the opinion of the Superior Court,</p> <p>The trial judge charged in part as follows:</p> <p>You are first to consider whether after all there was a man there named O’Brien. On this head I am bound to instruct you that in my view (although it is not to impress you at all in any way so as to affect your conclusion of fact), the evidence is in favor of the contention of the defendant that a man was on that platform named O’Brien. This, however, depends upon the testimony of another passenger who has stated that he knew him and had known him for some time, and that he saw him then at that place, and upon the testimony of the conductor who also has stated that upon making his inquiry as he got upon the platform, he was informed by O’Brien that he rang the bell, that his name was O’Brien, and that his address was as he then gave it. It would seem, therefore, that the weight of, evidence is largely in favor of the contention that a man, O’Brien, was on the platform at the time, but I leave it to you to determine what is the value of the evidence given by those people, and it is your province to disregard it if you believe that the witnesses are not entitled to belief.</p> <p>If the man O’Brien was not there that, of course, is the end of the question so far as it covers almost the entire case, but if he was there, did he ring the bell? That must be your next inquiry. If he did not ring the bell did any person, other than the authorized person, ring the bell? The conductor was the only one there authorized to ring that bell to start that car. Did any person other •than the conductor, even although he were not O’Brien, •ring ¡that .bell? If there was such other person, was he acting for ¡the company legitimately? If he was acting ¡for the (company legitimately then he bound the company ¡by his .act, .and the company must answer so far as :it is liable for such act. If he was a representative of the company in that act you have evidence of negligence on the part of the company, and you may from that evidence reach the conclusion of fact that there was negligence and that the company would be liable in this case. The character of the act, so far as the power to perform it is concerned, would depend upon what I have suggested. It appears to be conceded that the bell was rung by somebody other than the conductor. Was it rung by somebody who was an entire stranger, and who was without any right whatever to ring it, or by somebody who was authorized to ring it, although not the conductor? If you find that the bell was rung by some one who was not authorized to ring it, who had no business connection with the management and running of the' car, who had no sanction or authority to ring it from the conductor, then I instruct you that under the law you will find that there was no evidence of negligence in the company defendant in the starting up of the car. [4]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned amongst others were (2) in refusing binding instructions for defendant, and (4) portion of opinion as above, quoting it.</p>

<p> Negligence—Railroads—Destruction of wagon. </p> <p>1. In an action against a railroad company to recover damages for the destruction of a wagon, it appeared that the defendant owned a pier property on which were two railroad tracks. At the time of the accident a ship was moored alongside the pier. The plaintiff’s driver backed his team and wagon across the tracks in order to load from the ship on to the wagon two casks of brandy. While the wagon was standing in this position and at a time when the driver was off the wagon and “somewhere about the team,” a string of cars backed on to the pier on the track farthest from the ship. The driver notified of the approaching cars, got on his wagon and almost succeeded in getting it off the track when it was struck by the ears. The evidence did not show that there was any traveled way on the pier which was opened to the public, or that the pier was ever used by the public for the purpose of receiving goods from ships, or that the plaintiff’s wagon was there by the permission of or the knowledge of the defendant, or that there had been any such previous use of the pier by the plaintiff. The evidence tended to show that the train was backed without a lookout, but there was no evidence of recklessness or wantonness of the train hands. There was no evidence as to the speed of the train, nor as to whether a warning signal was given. Held, (1) that the court could not say as a question of law that plaintiff’s driver was negligent, and (2) that the evidence of defendant’s negligence was insufficient to support a verdict for the plaintiff.</p> <p>2. A railroad company has the right to the exclusive possession of tracks, except at crossings; and a person who enters upon the tracks at any other point than at such crossings is guilty of negligence per se.</p>

<p> Insurance—Life insurance—Proofs of death—Waiver. </p> <p>1. When an insurance company by denying liability leads a policyholder to believe that the filing of proofs of death would be fruitless, it cannot afterwards, in an action on the policy, defend because of failure to make such proofs,</p> <p> Insurance—Life insurance—Cancellation of policy. </p> <p>2. Where a policy of life insurance provides that “the company may cancel this policy by mailing notice of cancellation .... with its check for the unearned part, if any, of the premium but not during any disability for which the insured may be entitled to indemnity,” the company cannot arbitrarily cancel the policy by payment of the amount of indemnity due to a particular time, when a disability exists which results in the death of the insured.</p>

<p> Negligence—Municipalities—Philadelphia—Fairmount Park—Defective sidewalk in park—Acts of February 2, 1854, P. L. 21, March 26, 1867, P. L. 547, April 14,1868, P. L. 1088, and March 16,1870, P. L. 451. </p> <p>1. A municipal corporation having the power and subject to the duty to maintain the highways within it, is chargeable with the consequences of the presence of an actual and unlawful obstruction or negligent defect in that portion of a highway within its limits, which the general public is invited to travel, at least as soon as it can be said to have knowledge of the obstruction or defect. The mere fact that the highway is within or passes through an uninclosed public park does not change the rule.</p> <p>2. The Acts of February 2,1854, P. L. 21, March 26,1867, P. L. 547, April 14, 1868, P. L. 1083, and March 16,1870, P. L. 451, relating to Fairmount Park in the city of Philadelphia, do not constitute the commissioners of Fairmount Park a body corporate, municipal, quasi municipal or private, or vest in that body ás a separate distinct corporate entity, dominion over the park and the highways therein to the exclusion of the city. The fact that the city does not appoint the commissioners is immaterial as fixing its liability for their negligence in leaving a footway in the park in a defective condition to the injury of a person walking upon it.</p>

<p>Appeal, No. 47, Oct. T., 1912, by defendant, from judgment of C. P., No. 3, Phila. Co., June T., 1909, No. 2,083, on verdict for plaintiff in case of Adaline Young v. Louis Couehe.</p> <p>Replevin for the possession of a horse. Before Davis, J.</p> <p>At the trial the defendant made the following offer:</p> <p>Mr. Eyre: I propose to prove by this witness that he was on June 29, 1909, and still is, the owner and occupier of premises at Seventy-second street and Haverford avenue, West Philadelphia; that said premises were inclosed on every side, partly by fences and partly by buildings; that the witness conducted a business on the premises of growing flowers, and included in those flowers was a large number of plants of half grown violets, being made ready for the market; that on the day in question the horse of the plaintiff, coming from some place outside of the defendant’s premises, jumped over the fence or gate of the defendant and ran wild and loose upon the defendant’s premises, and in so doing trampled upon and down a large number of violet plants, causing a damage of not less than $300; that the defendant and his employees, as soon as possible on that day, caught the horse and put him in the defendant’s stable; that the defendant, immediately, and on the same day, notified the owner, the plaintiff, by telephone as to what he had done, namely, that he had taken the horse while straying upon his property and doing damage, and that he proposed to hold said horse until the damage which had been suffered was paid at least to the extent of the value of the horse, otherwise he would hold and sell the horse according to law; that either on the same day or the next day the plaintiff issued the writ of replevin which is now before the court, and took the horse away and has had the horse in her possession ever since.</p> <p>Mr. Vale: I object to the offer because it is immaterial and irrelevant to the issue now before the court for trial; and for the additional reason that the whole offer goes to the proof of damages sustained or alleged to have been sustained by the defendant, which damages cannot, in this form of action, by way of set-off or otherwise, be recovered, since they were damages alleged to have been sustained by reason of the trespass committed by an alleged stray horse.</p> <p>The Court: This is an action in replevin under the act of 1901. The pleadings follow that act. It appears from the offer that the question of damages involving the negligence of the plaintiff here would necessarily arise. We are not convinced that it is proper to claim damages of this form under the replevin act of 1901. The objection is sustained. [1]</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2) in giving' binding instructions for plaintiff.</p>

<p>Negligence—Railroads—Station—Passenger—Alighting from, train— Unsafe landing place.</p> <p>1. It is the duty of a railroad company not only to exercise the strictest vigilance in receiving and conveying a passenger, but also to set him safely at a station at the end of the journey; and where the car makes its stop beyond the usual or a safe landing place, announcement should be made of that fact before the passengers attempt to leave the train, and any neglect to do so will be a violation of duty for which the carrier is responsible.</p> <p>2. Where a railroad company maintains at a station a platform, a portion of which for passengers, is slightly below the level of the lowest car step, and another portion for freight, is about four feet above the passenger platform, and the company stops a train on a dark and misty night, in such a way that an exit from a passenger car is brought in front of the freight platform, and a passenger expecting to land on the passenger platform steps off into the space between the car and the freight platform and is injured, the company will be liable for the injuries sustained.</p>

<p>Appeals—Assignments of error—Paper-books—Order of subjects— Charge—Exceptions—More than one point.</p> <p>1. The order of the subjects as specified in rule XVII should be followed in making up a paper-book.</p> <p>2. The appendix to appellant’s paper-book should contain the prsecipe, writ, or plea of the defendant in full.</p> <p>3. An assignment of error violates rule XV which sets forth excerpts from the charge, but does not inclose such excerpts in the printed charge with the number of assignments noted. The assignments should show that exceptions to such excerpts were taken before a verdict, or a bill sealed.</p> <p>4. An assignment of error violates rules XIV and XV which merely sets forth: “That the charge of the court as a whole was misleading and inadequate, and did not present all of the material questions, nor the full case to the jury which should have been submitted to them.”</p> <p> Poor law—Contract with poor district—Maintenance of pauper in plaintiff’s home. </p> <p>5. In an action against a poor district to recover for the maintenance of a pauper in plaintiff’s home under a contract with the poor district, where the defendant claims that it should not be charged for the time following an alleged refusal of the plaintiff to permit the removal of the pauper, the case is for the jury where the issue involves disputed testimony as to the opinion of the defendant’s doctor on the propriety of the pauper’s removal, and as to what was said by the doctor to the plaintiff as to the removal.</p>

<p>Appeal, No. 218, Oct. T., 1912, by Harvey Nace et al., from decree of O. C. Bucks Co., May T., 1912, sustaining exceptions to auditor’s report in Estate of Mary Ann Nace, deceased.</p> <p>Exceptions to report of Howard I. James, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in sustaining exceptions to auditor’s report.</p>

<p>Appeal, No. 227, Oct. T., 1912, by defendant, from order of C. P. Chester Co., discharging rule to open judgment in case of Amos Davis v. Jennie L. Pierce.</p> <p>Rule to open judgment.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Appeal, No. 252, Oct. T., 1912, by defendant, from judgment of O. S. Lancaster Co., Sept. Term, 1911, No. 39, on verdict of guilty in case of Commonwealth v. James Eaby.</p> <p>Indictment for fornication and bastardy. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p>

<p> Equity—Equity practice—Equity rule 4—Notice on defendants to appear and answer. </p> <p>The notice required under equity rule 4 to be indorsed on a bill in equity, is not insufficient merely because it adds to the names of the defendants the words “and their associates,” and because it omits the name of the complainant after the words “within named complainant,” in the body of the notice.</p>

<p>Appeal, No. 27, Oct. T., 1912, by plaintiff, from decree of C. P. Northampton Co., April T., 1910, No. 1, dismissing bill in equity in case of Abraham Stout y. Wm. W. Speck and Edgar W. Speck.</p> <p>Bill in equity for an accounting and to enjoin foreclosure of a mortgage.</p> <p>Stewart, J., filed the following opinion:</p> <p>FINDINGS OF FACT</p> <p>1. Abram Stout, the plaintiff, on September 1, 1906, and prior thereto, was the owner of certain land upon which the defendants built two houses, the land being more particularly described in the third paragraph of the bill, and has continued to be such owner from that time down to the filing of the bill.</p> <p>2. On September 1, 1906, the plaintiff and the defendants entered into an agreement as follows: “Bethlehem, Pa., September 1,1906. Dr. Abraham Stout, Dear Sir:— We agree to build a double brick house with rear addition and porches frame, including cesspool, bathroom and furnaces. The houses are for sale and if not sold, to be rented. The selling price to be made by Dr. Abraham Stout, The contract price of house is $4,800.00, for which Willliam W. Speck holds a mortgage at six (6 per cent, /ate of interest paid half yearly. It is understood that Mr. Abraham Stout draws all rents and pays insurance, taxes and interests, and if anything is left thereafter, the income is to be Dr. Abraham Stout’s. If sale of property is a success, the plot of ground will be built up in this manner. (Signed) William W. Speck, Speck Bros. Abram Stout. P. S.—William W. Speck also agrees to rent the houses for Mr. Stout.” The postscript on this agreement was added shortly after the date of the agreement.</p> <p>3. On the day of the date of the agreement the plaintiff executed a bond and mortgage to one of the defendants, William W. Speck, for the sum of $4,800 which is the mortgage referred to in the above-mentioned agreement.</p> <p>4. The defendants performed their part of the contract, and erected two houses upon the premises of the plaintiff, and one of the defendants, William W. Speck, collected the rents from the houses until November, 1909, since which time the plaintiff himself has received the said rents.</p> <p>5. The defendants, Speck Brothers and William W. Speck, prior to the filing of the bill, submitted to the plaintiff statements of rents collected and moneys received by them, and all disbursements made by them.</p> <p>CONCLUSIONS OF LAW</p> <p>1. Plaintiff has failed to overcome the effect of the responsive answer of the defendants in this case.</p> <p>2. Plaintiff is not entitled to any relief in equity, and the bill must be dismissed.</p> <p>DISCUSSION</p> <p>The defendants in this case have filed an answer which is entirely responsive to the plaintiff’s bill, and in addition the exhibits show fully the exact state of the account between the parties. In the brief of the learned counsel for the plaintiff our attention was called to an alleged admission that the labor and materials put into the house by the defendants are not worth more than $3,000. As we view the contract, it would be immaterial if this were the fact. There was no undertaking on the part of the defendants that the labor and materials be worth $4,800, but they do expressly aver in the eleventh paragraph of the answer, that the houses were properly erected in a good and workmanlike manner, and according to the contract between the plaintiff and them, and with plaintiff’s approval and according to plans satisfactory to the plaintiff. In equity the effect of this answer is well understood. In Mason v. Smith, 200 Pa. 270, the syllabus is, "In equity a responsive answer is conclusive in favor of the defendant unless it is overcome by the testimony of two credible witnesses, or of one witness and such corroborating facts and circumstances as are equal to the testimony of another witness. A bill in equity for an accounting of an alleged partnership in the purchase of the stock of a corporation, cannot be sustained where the answer is responsive to the bill, and the only evidence as to partnership was the plaintiff’s own testimony which was squarely contradicted by that of the defendant, and an analysis of plaintiff’s testimony shows that in reality there was no partnership agreement, but at the most there was given to the plaintiff an option to join in the venture of which he did not avail himself, or there was a mutual understanding that he should be liberally rewarded if the enterprise was successful.” In Real Estate & Mortgage Co. v. Cook, 223 Pa. 158, the syllabus is: “Where a bill in equity is filed by a partnership against a clerk in its employ to compel the transfer of certain shares of stock alleged to have been purchased by the defendant with moneys furnished by the plaintiffs, and the defendant files an answer denying that he had ever agreed to purchase the stock for plaintiffs, and avers that the moneys paid to him were moneys due him by the plaintiffs, and such responsive answer is met only by the uncorroborated testimony of one of the partners, the bill will be dismissed.” In addition the testimony of the plaintiff, in support of his allegations contained in the fourth, fifth and sixth paragraphs of the bill, is indefinite, and is specifically denied by both of the defendants. Taking his testimony at the best and giving full weight to the facts as pleaded in the bill, the plaintiff has not made out his case under the authorities in Pennsylvania. It is only necessary to refer to a few. In Gloninger v. Hazard, 42 Pa. 389, it was held, "Courts of equity have concurrent jurisdiction with courts of law in matters of account, where the accounts are mutual and complicated, and on one side only, or where discovery is sought and is material to relief; but where the accounts are all on one side, and no discovery is sought or required, the case is not one for a court.of equity.” To the same effect are Kauffman’s Appeal, 55 Pa. 383; Koch’s Appeal, 9 W. N. C. 343; Passayunk Bldg. Association’s Appeal, 83 Pa. 441; Pittsburg & Connellsville It. It. Co.’s Appeal, 99 Pa. 177, and Patón v. Clark, 156 Pa. 49. It may, however, be said that admitting that the account in this casé is only on one side, that the bill prays for a discovery and should be sustained on that ground. In Young v. Hoffman, 1 W. N. C. 198, where there was a prayer for discovery, and affidavits were furnished, the court said: "The complainant has now obtained the discovery sought for. As to the rest of the relief sought, the remedy at law is adequate; hence we have no jurisdiction.” See also Graham v. Cummings, 208 Pa. 516, at page 532. In Holland v. Hallahan, 211 Pa. 223, on page 226, Mr. Justice Fell said: “It is conceded that as there are no mutual accounts'there would be no jurisdiction in equity if the prayer of the bill was for an accounting only. It is argued, however, that jurisdiction should have been taken, although the accounts are unilateral, because of the need of discovery and the prayer for it. Where there is no right to the main relief sought by a bill, and discovery is merely incidental to this relief, it will not be granted. In a bill seeking an account and discovery, the discovery is prima facie incidental to the account, and if a right to an account is not disclosed the bill will be held bad on demurrer: Notes to Wiggins v. Bisso, 5 Am. & Eng. Decisions in Equity, 65; Everson v. Equitable Life Assurance Co., 68 Fed. Repr. 258; Norwich & Worcester R. R. Co. v. Storey, 17 Conn. 364; Jewett v. Bowman, 29 N. J. Eq. Rep. 174. In Everson v. Assurance Co., 68 Fed. Repr. 258, it is said: ‘It would appear, therefore, that upon demurrer to a bill seeking both discovery and relief, it is sufficient to show that the complainant is not entitled to the relief which he prays and that the addition of a prayer for relief to a bill seeking discovery will render such discovery dependent upon the title to relief.’ In this case there was no right to an account and the right to discovery failed. It is only where jurisdiction has properly attached for some purpose that a court of equity will retain it and dispose of connected topics of dispute.” The same idea was subsequently repeated by Mr. Justice Elkin in Elk Brewing Co. v. Neubert, 213 Pa. 171, and he relies on the following quotation from Story’s Eq., pages 70 et seq.: “It may be conceded that it is difficult under the authorities to draw the line between the cases when a bill for discovery, having also a prayer for relief, is entertained, and when refused. It is not open to doubt, however, that if discovery is used as a mere pretense to give jurisdiction, it would be a gross abuse to entertain a suit in equity when the whole foundation upon which it rests is either disproved or is shown to be a colorable disguise for the purpose of changing the forum of litigation.” The prayers for relief are for discovery, for accounting, for an injunction against proceeding on the mortgage, and for a receiver to make sale of the property, and to wind up the business between the parties, the proceeds to be paid to the parties hereto as they may appear to be equitably entitled to the same. All this relief is predicated upon expressions contained in exhibit “A,” such as “The houses are for sale and if not sold to be rented,” “If sale of property is a success the plot of ground will be built up in this manner.” These, it is said, are corroborating facts and circumstances equal to the testimony of another witness to the plaintiff’s contention. That the agreement is not drawn with that care which the magnitude of the enterprise demanded may be conceded, but suppose Speck Brothers were the complainants, and were alleging that they had an interest in this land, that it was worth $10,000, and that Dr. Stout was their trustee. Could they prevail? Would any court say that there were any of the elements either of trust or partnership? Is it not plain they could only get $4,800? Is it not equally plain that this is an ordinary building agreement? “We agree to build a double brick house.” “The contract price of house is $4,800 for which William W. Speck holds a mortgage at six per cent, rate of interest half yearly.” To contradict these plain provisions of the contract by parol testimony that would make it mean something entirely different, to wit, a building speculation, cannot be allowed. In addition the plaintiff says the defendants were to sell the houses. If that was so, why was the provision not inserted? Why was it omitted? There is no allegation of fraud or mistake in the bill. No explanation is given for the omission. The defendants deny they ever agreed to make any sale. A sale may have been talked about. No doubt it was the intention, but that is far from an agreement to sell. Plaintiff has not proven his case, and it would be contradictory to well-known rules of law to allow the alleged omissions from the contract to be supplied by parol testimony. It is unnecessary to prolong the discussion. Every matter raised here must be determined at law. The motion of the plaintiff for an accounting is denied, and the prayer of the answer that the bill be dismissed, is granted: Silvis v. Clous, 1 Pa. Superior Ct. 41. We were at first under the impression that the case should be disposed of under the provisions of the Act of June 7, 1907, P. L. 440, but the proviso, as construed in Adrian v. Eink, 226 Pa. 448, prevents the application of the act. And now, April 3, 1911, this cause came on to be heard at this term and upon consideration thereof it is ordered, adjudged and decreed that the relief prayed for in the bill, be denied, and that the bill of the plaintiff be dismissed at the cost of the plaintiff. The prothonotary will enter this decree “nisi” and give notice of same to the parties or their counsel, and if no exceptions are filed within ten days, this decree shall be entered by him as a final decree.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 56, Oct. T., 1912, by-plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1910, No. 4, for defendant on case stated in suit of Christina Wilhelmina Heyer v. George Kranch.</p> <p>Case stated in ejectment for real estate in the borough of Mahanoy City. Before Brumm, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was judgment for defendant on case stated.</p>

Appeal, No. 69, Oct. T., 1912, by plaintiff, from judgment of C. P. Schuylkill Co., July T., 1911, No. 44, on verdict for defendant in case of James P. Flood v. Alfred Yeager. Assumpsit on a warranty. Before Bechtel, P. J. The facts appear by the opinion of the Superior Court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned is the portion of charge referred to in the opinion of the Superior Court.

<p>Appeal, No. 97, Oct. T., 1912, by-defendants, from decree of C. P. Schuylkill Co., March T., 1909, No. 1, on bill in equity in case of Catherine Wilson and Thomas Wilson v. James Wilson, John Mullen, Justice of the Peace, and Elemer Boyer, Constable.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree awarding injunction.</p>

Appeal, No. 207, Oct. T., 1912, by-plaintiff, from order of C. P. Schuylkill Co., May T., 1911, No. 295, refusing to take off nonsuit in case of Annie Mikalofsky v. Central Railroad of New Jersey. Trespass to recover damages for injuries to a horse. Before Koch, J. The opinion of the Superior Court states the case. Error assigned was refusal to take off nonsuit.

Appeal, No. 121, Oct. T., 1912, by plaintiff, from decree of C. P. Monroe Co., Sept. T., 1910, No. 46, dismissing bill in equity in case of Charles Barget v. Dimmick D. Drake. Bill in equity for an injunction. Staples, P. J., found the facts to be as follows: findings of the judge. In the year 1891, the Delaware Water Gap Land and Improvement Company was incorporated.