Volume 6 — Pennsylvania Superior Court Reports

<p>Appeal, No. 191, April T., 1897, by plaintiff, from decree of C. P. Venango County, Jan. Term, 1896, No. 1, dismissing bill for injunction to restrain collection of taxes on exempted property.</p> <p>Bill for injunction to restrain collection of taxes on exempted property. Before Criswell, P. J.</p> <p>The facts sufficiently appear in the opinion of the court below.</p> <p>This cause came on to be heard upon bill, answer, replication and evidence, C. I. Heydrick, Esq., appearing for the plaintiff, and W. H. Forbes, Esq., for the defendants; after argument and due consideration we find the following facts :</p> <p>1. That lots Nos. 185 and 188, each in size sixty by one hundred and fifty feet, in the city of Franklin, said county, were, on and prior to October 1, 1879, owned in fee simple by Rev. Thomas Carroll, then of Franklin Pa., who, by deed bearing said date, conveyed the same to Tobias Mullen, of the city and county of Erie, Pa.</p> <p>2. In the premises of this deed the party of the second part, the grantee, is described as follows, viz : “ Tobias Mullen, of the City and County of Erie, and State aforesaid, in trust for the members of St. Patrick’s Roman Catholic Church, Franklin, Pennsylvania, party of the second part.” In the subsequent parts of the deed no trust is expressed, but there is the usual formal conveyance of the lots, “ to the said party of the second part, his heirs and assigns,” with a clause of general warranty.</p> <p>8. That prior to the month of September, 1894, by funds contributed by the members of said St. Patrick’s Roman Catholic Church and others, there was erected partly upon each of said lots, a large three-story brick building, principally adapted and designed for school purposes, containing four school rooms, a hall for school entertainments, three small living rooms, a small chapel, a dining room, kitchen and two small class rooms. On the outside of the building is the name “ Catholic School.”</p> <p>4. Since September, 1894, except during the customary vacation seasons, there has been maintained in this building a school in which the usual common branches and some others have been taught, with about two hundred pupils in attendance, occupying the four schoolrooms, with four teachers, members of the ecclesiastical order known as “ Sisters of Mercy,” in addition to the resident priest, the Rev. J. P. McCloskey, who assists in teaching, hearing recitations in certain branches, the church and parish residence occupied by him being on adjoining lots.</p> <p>5. That since the opening of said school it has been maintained as a free public school; that is to say, all scholars making application for admission thereto have been admitted, and un until date of this hearing there have been in attendance thereat, at different times sixteen scholars who were not members of or adherents to the Catholic Church, all others being members or children of members or adherents of said church.</p> <p>6. No tuition is paid by the pupils, the expense of maintenance being met by the church congregation and voluntary contributions. The school is not maintained for profit in any manner, but the sisters engaged in teaching have their home in the building, using the three living rooms, the chapel, dining room and kitchen.</p> <p>7. At the opening and closing of the schools each forenoon and afternoon there are certain religious exercises, such as repeating the Lord’s Prayer, the Creed and the Ten Commandments.</p> <p>8. The said school is under the general direction, control and management of the resident pastor, Rev. McCloskey, who receives his instructions in relation thereto from the plaintiff, who it appears is his ecclesiastical superior, being a bishop of said Roman Catholic Church, who may change such instructions at pleasure.</p> <p>9. That said lots do not include more land than is reasonably necessary for said school building and its occupancy for the purpose for which it was intended and is used.</p> <p>10. The said lots were regularly assessed and returned for taxation at a valuation of $5,500 as the property of “ Catholic School H,” and county, poor and city rates were levied and assessed thereon.</p> <p>11. The defendant, Ernest Jeunet, is the collector of county, poor and city taxes in the ward of said city within which the said lots are situated, and has for collection taxes duly and regularly assessed thereon as follows, viz: County taxes, $22.00, poor taxes, $5.50, and city taxes, $68.75, and threatens to proceed by distress upon the personal property on the premises to collect the said taxes.</p> <p>Upon these facts, the question is presented : Is the said school property exempt from taxation under the constitution and laws of the commonwealth?</p> <p>We must determine not upon the equities involved. To the extent that the school accommodates and furnishes instruction to the youth of the city, it relieves the burden of taxation upon the general public within the limits of the city, which constitutes one school district. The burden from which the plaintiff now seeks to be relieved is small compared with the expense of educating two hundred scholars for whom the school district would otherwise have to furnish school facilities and instruction. The city could therefore well afford to barter the taxes in question for the relief and exemption which the school affords. But it is not the city alone which is concerned in this controversy. The defense is being made by the county commissioners, in behalf of the taxpayers of the county. If the property be exempt, then to the extent of their proportion of the tax the burden of those outside of the city is increased. Other interests, therefore, than those of the city are at least to this limited extent involved.</p> <p>Nor are we to dispose of the question by what the local authorities in other localities may have done or are doing with respect to taxing such property. Unfortunately, the laws are not uniformly executed or adhered to. While to a limited extent the usage of other localities and their practice and understanding of the law, may furnish a guide to courts in construing the law in some cases, yet as against the plain letter of the law and its construction as determined by the high court whose duty it is to construe it, we cannot take cognizance of local usages and practices.</p> <p>Prior to the adoption of the present constitution of the state there was no prohibition against the exemption of property from taxation by the legislature, and the enactment of numerous laws for that purpose, exempting all classes of properties, was recognized as an evil which should be remedied. To do this the people by their constitution provided as follows, viz : “All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, but the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used for private or corporate profits and institutions of purely public charity.”</p> <p>It will be observed, therefore, that by the terms of the constitution the power of the legislature to exempt property is limited. They may exempt only such as belongs to one or the other of these four classes: (a) “ Public property used for pub-lie purposes,” that is, property the title to which is in the public and which is used for public purposes. (5) “Actual places of religious worship,” such as churches, (c) “ Places of burial not used for private or corporate profit.” (d) “ Institutions of purely public charity.”</p> <p>It is clear that the property in question does not belong to either of the first three classes indicated. If exempt, therefore, it must be as an “ institution of purely public charity.”</p> <p>The legislature by Act of May 14, 1874, P. L. 158, designated certain classes of institutions which should be exempt under this clause of the constitution, and in doing so gave to the language quoted a very liberal interpretation, by providing that “All hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity ” should be exempt.</p> <p>This act has not been held to be unconstitutional, but it has always been construed by the courts with reference to the language of the constitution, so that many of the institutions have been held to be not exempt, notwithstanding they are apparently covered by its general language. The question as to whether or not they were exempt has always turned upon the question as to whether or not they came within the limits defined by the constitution and were in fact “institutions of purely public charity.”</p> <p>The question as to what institutions were purely public charities has, upon given facts, been determined in a number of cases by the Supreme Court, and unfortunately in several of them by a divided court. The judgment of that court, however, although dissented from by some of its members, is as binding upon this court as one sustained by the unanimous opinion of its judges. In this case, however, we do not have to rely upon decisions wherein there have been dissenting opinions, as we think the questions here presented are ruled by adjudications from which there has been no dissent.</p> <p>It will be observed that the title to the property is in Tobias Mullen, his heirs and assigns, and we do not understand that by the conveyance to him there is raised any trust in favor of the members of St. Patrick’s Roman Catholic Church of Franklin. The only use expressed in the deed is in favor of the grantee, “his heirs and assigns.” So far, however, as this inquiry is concerned, we deem it immaterial whether the plaintiff holds the title to the lots for himself or as trustee for the members of the said church, as it was no doubt intended that he should. He holds the legal title and the equitable title is either in him or in the membership of the church. If it be in him he has the legal right to control its use. In either case the use is private and personal and there is no evidence whatever of any dedication of the property to a public or a different use. It is true that the congregation has erected a building thereon which is now being used as a school building, and assuming that the equitable title and legal use is vested in them, yet they may at any time change the use of the property and building. A way may be used by an entire community, but if it has an owner who may close it, it is not a public way. Another may be used by but few, jret if all have the right to use it, it is a public way. While today a school is being maintained in the building, which is open to all comers, those having the right to the use of it may lawfully say tomorrow that none but members or adherents of their particular church shall be admitted. The question is not will they do so, but may they do so. Should they do so, would those who are excluded have any remedy or a right to one ? By so doing the members would do only that which they might lawfully do; and no one would question the propriety of their so doing. Such would also be the case if the property be held by the plaintiff in his own right and for his own use.</p> <p>If the Rev. Thomas Carroll had conveyed the lots in question to the plaintiff upon an express trust that they be held and used for free school purposes to which all, or those of some natural division, of those of school age should be entitled to admission upon compliance with such reasonable regulations and requirements as might be necessary for the proper conduct of the school, or if by some proper unequivocal act there had been a dedication and setting apart of the property for a public purpose, subject to reasonable and general restrictions and requirements, a different question would have been presented.</p> <p>The school as maintained is undoubtedly a charity. It is not in any way intended for profit, but it is in no sense, as we understand it, within the meaning of the provisions of the constifcution a “ purely public charity.” The public has in no sense any vested, interest therein or control thereover. Both the ownership and control are private.</p> <p>In the case of Miller’s Appeal, 10 W. N. C. 168, two bills in equity were filed, each praying for an injunction to restrain the collection of taxes, one by William O’Hara, Roman Catholic Bishop of Scranton, and the other by a corporation known as the “Society of Sisters of Christian Charity.” The facts in relation to the ownership and control of the property as assessed were very similar to the facts hereinbefore found in this case. A preliminary injunction having been granted by the court below, the same was by the Supreme Court on appeal dissolved. The order being interlocutory and not final, no opinion was filed nor reasons given, as is customary in such cases. In a subsequent case, however, that of Philadelphia v. Women’s Christian Association, 125 Pa. 572, Paxsox, C. J., gives.the reasons. Among others he says: “ Yet it did not appear in that case, upon the hearing upon the preliminary injunction, however the fact may have been, that the real estate taxed was stamped with any public charity; nor was there anything to show that the regulation of the schools might not have been changed at any time and converted into a source of profit.”</p> <p>The same is true of Thiel College (a Lutheran denominational institution) v. County of Mercer, 101 Pa. 530. Of this college the same' judge says: “ It can convert the very land it seeks to exempt from taxation into money and apply it to its own corporate use;” and in Philadelphia v. Women’s Christian Association, supra, Paxson, C. J., says of it: “ So far as appeared in the case there was nothing in its charter to stamp it as a public charity over any other college, and whatever may have been the regulations of its management, there was nothing to prevent these regulations from being changed at any time.”</p> <p>Speaking of Hunter’s Appeal, 22 W. N. C. 361, and other cases, the same judge says: “Nor was its charitable character, in either of the cases, so stamped upon the institution itself, upon its organic law, that the mode of administering it might not have been changed at any time.”</p> <p>One of the most recent cases upon the subject is that of Philadelphia v. Masonic Home, 160 Pa. 572, wherein the property was held by a divided court to be not exempt. This was an incorporated institution and its charter provided that its object should be “ to provide for indigent, afflicted or aged Free Masons, their widows and orphans, in the State of Pennsylvania, and for such others as may be placed in its charge.” This was held to be not a “purely public charity.”</p> <p>In view of the facts found and these authorities, we have reached the following conclusion of law:</p> <p>That the property upon which the taxes in question have been levied is not devoted to a purely public charity, and that the school maintained thereon is not an institution of purely public charity within the meaning of the provisions of the constitution and the act of assembly passed in pursuance thereof relating to the exemption of property from taxation, and that the property mentioned in the plaintiff’s bill of complaint as having been assessed and returned for taxation is not exempt from taxation.</p> <p>From this it follows that the plaintiff’s bill of complaint must be dismissed.</p> <p>Errors assigned were (1) In finding as follows: “ It will be observed that the title to the property is in Tobias Mullen, his heirs and assigns, and we do not understand that by the conveyance to him there is raised any trust in favor of the members of St. Patrick’s Roman Catholic Church of Franklin.” (2) In finding as follows: “ In either case the use is private and personal and there is no evidence whatever of any dedication of the property to a public or a different use.” (3) In finding as follows: “ While today a school is being maintained in the building which is open to all comers, those having the right to the use of it may lawfully say tomorrow that none but members or adherents of their particular church shall be admitted. The question is not will they do so, but may they do so?” (4) In finding as follows: “ By so doing the members would do only that which they might lawfully do, and no one would question the propriety of their so doing.” (5) In finding as follows: “ The public has in no sense any vested interest therein or control thereover. Both the ownership and control are private.” (6) In finding: “ That the property upon which the taxes in question have been levied is not devoted to a purely public charity within the meaning of the provisions of the constitution and the act of assembly passed in pursuance thereof relating to the exemption of property from taxation, and that the propert}r mentioned in the plaintiff’s bill of complaint as having been assessed and returned for taxation is not exempt from taxation. From this it follows that the plaintiff’s bill of complaint must be dismissed.” (7) In the decree, to wit: “ And now, March 22, 1897, this cause came on to be heard and was argued by counsel, whereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz: That the preliminary injunction heretofore granted in this case be dissolved; that the plaintiff’s bill of complaint herein be dismissed, and that the plaintiff pay the costs of this suit.”</p> <p>C. Heydrielc, with him Carl I. Heydrielc, for appellant. — The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite and unrestricted quality that gives it its public character: Donohugh’s Appeal, 86 Pa 306; Mullen v. Commissioners, 85 Pa. 288.</p> <p>Where there are no apparent reasons to traverse it, the presumption is that the existing state of things will continue: Miller v. Henry, 84 Pa. 33.</p> <p>The use defines the exemption, not the mode of dedication. The public use is the oirly thing that the exemption is conditioned upon. The legislature has not designated any mode of dedication as a condition precedent to exemption.</p> <p>The congregation of St. Patrick’s Church, though an unincorporated association, has a quasi-corporate existence, and has power to hold the equitable title to the land and build appropriate buildings thereon: Phipps v. Jones, 20 Pa. 260.</p> <p>The objection that the property may at any time be diverted from the public charitable use, and lawfully so, at the will of the plaintiff, is not well considered. The funds contributed for the maintenance of the school are bound to be applied in furtherance of that charity and not otherwise: Bethlehem v. Fire Co., 81 Pa. 445.</p> <p>That the school property is not taxable because the school is “denominational,” was decided in 1892: Episcopal Academy v. Philadelphia, 150 Pa. 565.</p>

<p>Appeal, No. 136, Oct. T., 1897, by-plaintiffs, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1896, No. 1180, for want of a sufficient affidavit of defense.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court refused the rule for judgment for want of a sufficient affidavit of defense. Plaintiffs appealed.</p> <p>JError assigned was discharging plaintiffs’ rule for judgment for want of a sufficient affidavit of defense.</p> <p>Cipraino Andrade, Jr., with him Charles C. Lister, for appellants. — The language of an affidavit of defense should be taken most strpngly against defendant: Comly v. Bryan, 5 Wh. 261.</p> <p>The alleged payments set forth in the affidavits are quite insufficient to prevent judgment, because there is nowhere any allegation that said payments were on account of the demand in suit: Selden v. Building Assn., 2 W. N. C. 481.</p> <p>Samuel J. Taylor, for appellee. — Defendant in his affidavits fully and satisfactorily accounts for his inability to set forth more clearly,his defense to this suit: Brightly v. McAleer, 3 Pa. Superior Ct. 442; Hubbard v. French, 1 Pa. Superior Ct. 218.</p>

<p>Appeal, No. 2, October T., 1897, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 96, for want of a sufficient affidavit of defense.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The affidavit of defense was as follows:</p> <p>“ William R. Brown, being duly sworn according to law, deposes and saj^s that he is the defendant named in the above case, and that he has a just, true, full and legal defense to the whole of the plaintiff’s claim of the following nature and character, to wit:</p> <p>“ That it is true that the defendant employed the plaintiff to perform certain paper hanging in the defendant’s premises, named in the plaintiff’s statement of claim, and on the terms and conditions therein set forth, but that the said work was done in an unworkmanlike manner, and that the material furnished was of an inferior quality, and not in accordance with his contract with the plaintiff therefor, and that soon after said work was done, said paper faded and became loosened from the wall. By reason of which the defendant has suffered damages in an amount at least equal to the sum claimed by the plaintiff.”</p> <p>The court made absolute the rule for judgment and damages were assessed for $320.58. Defendant appealed.</p> <p>Error assigned was entry of judgment for want of a sufficient affidavit of defense.</p>

<p>Judgment — Restricted lien — General verdict on sci.fa. to revive.</p> <p>A judgment on single bill specifically restricted to certain property designated to the exclusion oí all other estate, real and personal, is not extended by a general verdict for the plaintiff on a scire facias to revive, and judgment will be entered thereon so as to conform to the original proviso in the bill single.</p>

<p>Negligence — Master and servant — Question for jury.</p> <p>Builders under contract to furnish the necessary scaffolding for a subcontractor are liable for injuries resulting from its negligent construction.</p> <p>The evidence being conflicting on the question of negligence, the case is properly for the jury.</p>

<p>Judgment — Execution—Funds in sheriff's hands — Standing of junior judgment creditor.</p> <p>, The proceeds of a sheriff’s sale of a defendant's personalty under an execution in the hands of the sheriff are bound by an execution issued by a bona fide creditor, upon a judgment obtained after the sheriff’s sale; such judgment will bind such proceeds and give such creditor a standing to contest the validity of the prior judgment, on the ground of fraud.</p> <p>Practice, G. P. — Parties to record.</p> <p>No man can make himself a party to pending litigation between others by his own act or statement on the record: it follows, therefore, that a senior judgment creditor has no standing to intervene by petition to have set aside a levy made on a junior execution.</p>

<p>Appeal, No. 116, Oct. T., 1897, by D. C. Gibboney, from decree of Q. S. Phila. County, March Term, 1897, No. 2415, granting a retail liquor license.</p> <p>Application for retail liquor license.</p> <p>The record discloses the following abstract or brief of petitions, orders and reports: February 4,1897, application of Otto Schellenberg for a retail liquor license. March 26, 1897, indorsed on application: “. On motion of petitioner and after hearing in open court, it is ordered that the prayer of the petitioner be refused.” July 10, 1897, motion filed to open the order of March 26, refusing the license and to award the said license. July 12,1897, indorsement on said motion: “ Order opened and license granted to Otto Schellenberg.”</p> <p>Errors assigned were, (1) in granting on July 12,1897, a retail liquor license to Otto Schellenberg. (2) On July 12,1897, in opening the decree of March 26, 1897, and changing and reversing the said decree. (3) In July term, 1897, in opening, changing and reversing their final decree made in March term, 1897, in the matter of the application of Otto Schellenberg.</p>

<p>Appeal, No. 105, Oct. T., 1897, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1891, ' No. 48, M. L. ■ D., malting absolute a rule to amend claim.</p> <p>Rule to amend lien.</p> <p>The claim filed was for vitrified brick paving and the essential portion of the lien was as follows: “ For work done and material furnished within six months last past in paving the cartway on Atlantic Street in front of said lot of ground and premises per bill and statement rendered as follows.” A rule was taken to show cause why the claim should not be amended by inserting after the words “ six months last past,” the following words, to wit: “ between the first day of June, 1891, and the second day of July, 1891,” and also by inserting opposite the charge in the bill and statement rendered the date “ July 2, 1897.”</p> <p>The court made the rule absolute. Defendant appealed.</p> <p>Frrors assigned were (1) In making the rule absolute. (2) In not striking off the lien.</p>

<p>Appeal, No. 94, Oct. T., 1897, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1896, No. 694, for want of a sufficient affidavit of defense.</p> <p>Assumpsit for goods sold and delivered.</p> <p>Plaintiff claimed on an oral agreement of lease of a certain store on the boardwalk at Atlantic City, rented to defendant as a candy store for the season of 1896 at a rental of $800, of which $200 was paid by defendant on January 18, 1896, the balance to be paid before the expiration of the year 1896; the defendant occupied the premises during the season and still had possession of the same on the 13th day of January, 1897; and that he, the defendant, refused to pay the balance of $600.</p> <p>The defendant filed the following affidavit of defense:</p> <p>James E. Farrell, being duly sworn according to law, deposes and says, that he -is the defendant in the above case, that he has a just and legal defense to the entire claim of the plaintiff of the following nature and character, to wit: The plaintiff in his statement filed has not set forth the full and entire agreement between him and the defendant. At and before the time when defendant agreed to rent the premises in question the plaintiff expressly promised and agreed that said candy store should be on the said boardwalk, and if the said boardwalk should be moved out towards the ocean, as was then contemplated, that he, the plaintiff, would move the said store out to the new boardwalk; that this promise and agreement on the part of the plaintiff was relied on by the defendant and induced him to lease the premises in question; that the season for business at said place is during the months of July and August; that on or about the-day of June, 1896, the said boardwalk was moved out about one hundred and fifty feet from the said store of defendant; that the plaintiff, though often requested, neglected and refused to move defendant’s store out to said boardwalk, and even refused to allow defendant to do so at his own expense; that in consequence of the neglect of the plaintiff to move said store out to said boardwalk the defendant’s business was ruined and destroyed, and by reason thereof he lost in his business more than $1,000.</p> <p>Defendant, relying on the promise and agreement of the plaintiff to move said store out to the new boardwalk, if erected during the term of his lease, paid to the plaintiff the sum of $200, on account of the said rent, on January 18, 1896, that said boardwalk was moved out at the season when the business of the defendant just .commenced, and that defendant was not able to secure at that time any other store. That the business of said store depended on its being situate on the boardwalk solely, that after the boardwalk was moved out, and all other candy stores were moved out to it, the defendant’s store remained about 150 feet back in its old position, and was. inaccessible to the people passing along the said boardwalk, and was worthless to defendant, who by reason of the plaintiff’s neglect to move said store out to the said boardwalk as agreed, suffered damages to the amount of $1,000, which he will .claim against the plaintiff at the trial, and ask for a certificate in his favor.</p> <p>S. Morris Wain, being duly affirmed, says that he is the atorney for defendant in the above case; that defendant recently moved from Philadelphia to Atlantic City, where he now resides; that deponent wrote plaintiff’s attorney .to wait a few days until he could find defendant’s address and -to write plaintiff, who also lived in Atlantic City, for the address of defendant; that in consequence of a letter from plaintiff’s attorney, which is hereto attached, deponent makes this affidavit for defendant, who is out -of fhe city; that the above affidavit is true to the best of his information and belief.</p> <p>• ■ Error assigned was making absolute .the plaintiff’s rule’-for judgment for want of a sufficient affidavit of defense.</p>

<p>Criminal law — Misrecilal of date — Indictment—Variance.</p> <p>Where the crime charged in the indictment is not based upon a record or other official writing, a variance of one day between the indictment and proof in fixing the date of the crime is not a fatal variance; time not being of the essence of the offense.</p> <p>Criminal law — Conviction defined.</p> <p>When the law speaks of conviction, it means a judgment, and not merely a verdict which in common parlance is called a conviction.</p> <p>Criminal law — Perjury—Evidence—Competency of witness.</p> <p>A person found guilty by a verdict of the jury ot' perjury but not sentenced, is a competent witness in a trial of others on a charge of subornation of perjury incident to the same perjury for which the witness was tried.</p> <p>Perjury — Ealse swearing in examination for bail.</p> <p>False swearing in a matter before a magistrate touching the sufficiency of bail offered for a man charged with a criminal offense, is perjury at common law and under the statutes. Whether the inquiry touching the bail be made at the examination of the charge or afterward is immaterial.</p>

<p>Fraudulent misrepresentation — Credulity of other parly no defense.</p> <p>However negligent a party may have been to whom an incorrect statement has been made, yet that is not ground upon which the party making the incorrect statement can stand. No man can complain that another lias relied too implicitly on the truth of what he himself stated.</p> <p>Contract — Assertion of untruth — Rescission—Defense.</p> <p>To assert for truth what one professes to know and may fairly be supposed to know, but does not know it to be so, is equivalent to the assertion of a known falsehood,, and may be so treated in determining the right of the other party to rescind the contract, or if the falsity of the declaration be discovered too late for that, to defend an action upon it.</p> <p> Misrepresentation as defense to a contract. </p> <p>A misrepresentation, which possibly might not be sufficient ground of an action for damages, may be sufficient to entitle the party deceived to rescind the contract or to defeat or to defend pro tanto, an action upon it.</p>

Appeal, No. 77, Oct. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., .1897, No. 515, for want of a sufficient affidavit of defense. Assumpsit for uge of party wall. The facts sufficiently appear in the opinion of the court. Judgment for plaintiff for §116.01. Defendant appealed. Error .assigned was, Entry of judgment for want of a sufficient affidavit of defense.

Appeal, No. 43, Oct. T., 1897, by defendants, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1891, No. 1296, on verdict for plaintiff. Replevin for «boiler and engine. Before Beitler, J. The following facts appear from the charge of the court below: Gentlemen of the jury: — According to my views of this case there is only one thing that requires any action on your part, and that is to determine the value of this engine at the time it was claimed by the defendant.

<p>Mortgage — Usury—Right of mortgagor to defend when he has sold property with an agreement so to do.</p> <p>The act of assembly expressly gives a borrower the light to defend against a claim for interest in excess of the legal rate, and courts will not permit a creditor to defeat this right through a confusion of legal principles.</p> <p>A mortgagor sold the premises subject to a mortgage covering'usurious interest, covenanting with his vendee to defend against the mortgage to the extent of the usury. Held, that the filing by the mortgagee of a written release of the mortgagor of all personal liability and restricting the lien of the judgment and execution to the real estate bound by the mortgage will not defeat the mortgagor’s right to defend nor operate in evasion of the statute.</p> <p>Mortgage — Attorney's commission — Demand— Usury.</p> <p>A demand before the issuance of a scire facias sur mortgage is not necessary in order to recover attorney’s commissions.</p> <p>The fact that a portion of the mortgage covers usurious interest does not defeat the right to recover attorney’s commissions on the amount actually due. It is not unlawful to contract for or to receive more than six per cent.</p>

<p>Appeal, No. 25, Oct. T., 1897, by defendants, from order of C. B. No. 3, Pbila. Go., June T., 1894, No. 1234, discharging rule to strike judgment from record.</p> <p>Rule to strike off judgment.</p> <p>It appears from the record that judgment was entered in the above case for want of an affidavit of defense, and damages assessed for $264.56.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court discharged the rule to strike the judgment from the record. Defendants appealed.</p> <p>Error assigned was refusal to strike judgment from the record.</p>

<p>Railroad relief association — Contractual liability — Words and phrases— Connected and associated or affiliated companies.</p> <p>Where the whole project and intendment of a railroad relief association is based upon the control of the business by persons who are interested in the contributions and benefits and where membership is limited to employees of railroads connected and associated with the Reading Railroad, the term “ connected and associated” is to be construed as applicable to railroads so recognized by representation in the relief association: it cannot be forced by strained construction to cover companies ‘ ‘ affiliated ” with the Reading Company in a limited, special and contractual manner, the employees of which were never recognized as eligible to membership in the relief association.</p> <p>Practice, C. P. — Province of court and jury — Construction of contract.</p> <p>The province of the jury is to settle disputed questions of fact. If no disputed facts exist there is nothing for them to do, and it is for the court to determine the legal effect of the contract.</p>

<p>Insurance — Clerical error in description — Question for jury.</p> <p>Where by a clerical error of the agent of an insurance company the description of the property insured designated one stable instead of two, and where it was the intention of the insured and insurer to cover two stables instead of one, such clerical error will not enable the defendant company to avoid the policy to the injury of the insured. The question as to how the error arose was one purely of fact and was properly for the jury, the evidence being ample to warrant a verdict for the plaintiff.</p> <p>Insurance — Error in policy — Acl of agent — Laches.</p> <p>An erroneous description having been inserted in a policy by the act of the agent of the insurance company, the defendant cannot be released from its contract because the plaintiff, acting in good faith, accepted without examination the policy written by its agent.</p> <p>Practice, Superior Court — Review—Refusal of new trial.</p> <p>The appellate court will not, except in clear cases of abuse of discretion, review the discretion of the trial court in refusing a new trial.</p> <p>Practice, Superior Court — Appeals—Defective assignment.</p> <p>Assignments are defective under Rule XVII., which allege error in admitting or refusing evidence but which fail to quote the full substance of the bill of exceptions or to copy the bill in immediate connection with the assignment.</p>

<p>Appeal, No. 73, Oct. T., 1897, by defendants, from decree of C. P. Delaware Co., June T., 1898,, No. 2, in equity, restraining the collection of road taxes assessed! and levied against the corporation plaintiff.</p> <p>Injunction to restrain the collection of $405 road taxes- assessed for the year 1892 on the college buildings and about fifty acres of ground. Before Clayton, P. J.</p> <p>The bill claimed that the assessment was illegal “ because Haverford College, the plaintiff, is an institution of learning founded, endowed and maintained by private charity, within the act of assembly approved the 14th day of May, 1874, and is therefore, a purely public charity within the meaning of said act and of the first section, Art. IX. of the constitution of Penna.”</p> <p>After answer filed an injunction was awarded on May 1,1893, which was made perpetual by decree filed April 5, 1897, after reference to a master.</p> <p>Other facts sufficiently appear from the report of the master, which is as follows.</p> <p>FINDINGS OF FACT.</p> <p>The master appointed by the said court in the above matter, as appears by the certified copy of his appointment attached hereto, from the testimony submitted by the examiner in the above stated cause, finds the following facts:</p> <p>1. That the “Haverford School Association” was duly incorporated by an Act of the General Assembly approved April 4, 1833, P. L. 131, having a capital stock of 600 shares of $100 each, for the purpose of establishing a seminary in which young men should be instructed in the liberal arts and sciences, which corporation it was provided should have for its officers, a secretary, treasurer and twenty-four managers, to be chosen by ballot from, among its members; by a supplement to said act approved January 25, 1835, the said corporation was authorized to increase its capital stock to a sum not exceeding $100,000.</p> <p>2. That the said association became possessed of a tract of land containing about two hundred acres, situate mainly in the township of Haverford and county of Delaware aforesaid, upon ■a part of which, situate in the township of Haverford, containing about fifty acres, the founders erected a large edifice and other buildings, and conducted a'school therein for many years in pursuance of the objects for which it was established. Upon the remaining part of said land they conducted farming to assist, in maintaining said school.</p> <p>3. That the general assembly, by Act of March 15,1856, P. L. 123, enacted “ that the Corporation now known by the name, style and title of Haverford School Association, be authorized to establish and maintain a college for the education of youth and other persons in the various branches of science, literature and arts.</p> <p>“ And the Board of Managers of said Association shall have power to confer such degrees in the arts and sciences upon the students of the College and others, when by their proficiency in learning they shall be entitled thereto, as are conferred in other colleges and universities in the United States.”</p> <p>4. That the said corporation thereupon established a college, and has since conducted and maintained the same in the builds ings and upon the premises in and upon which said school had been theretofore maintained, to wit: — The aforesaid tract of fifty acres, which tract, with the said buildings, is necessary for the occupancy and enjoyment of the said college.</p> <p>5. That the said court of common pleas of said county, on the 6th day of December, 1875, decreed an amendment to the charter of said corporation by which the title of said corporation was changed from “Haverford School Association,” to “The Corporation of Haverford College,” and by a further amendment decreed by said court on September 19, 1878, it was provided that “ The representation and ownership of the property and franchises of ‘ The Corporation of Haverford College,’ by means of a capital stock divided into shares, is hereby terminated, but each of the present shareholders shall remain a member of the Corporation,” and it was further provided that “ The Corporation shall have power to enact by-laws, providing for the election of new members and prescribing their qualifications.” By a further amendment decreed by the said court on the 23d day of June, 1886, it was provided inter alia that the corporation might take and hold for the purposes of its incorporation, such amount of personal estate as might be bequeathed or given to it from time to time, and that no estate of the corporation, real or personal, should ever be divided among the members thereof.</p> <p>6. That a large proportion of the original certificates of stock contained a proviso that no profits should ever be divided on the stock. Indeed the testimony of Mr. Hartshorne would tend to show that all the certificates were so framed, but this is not very material now, when we consider the fact that the stock has been abolished by the consent of all the stockholders. The master, however, finds as a fact that the college was founded by the voluntary contributions of persons desirous of promoting its objects.</p> <p>From the report of the examiner the master has thought it well at this stage of his findings to give a brief resumé of the contributions for the founding and maintenance of the college, including those by the state of Pennsylvania referred to by Mr. Vaux and a statement of its present endowment about $250,000.</p> <p>, The said college was founded by the voluntary contributions of people interested in the cause of education and desirous of promoting its objects. Since the time of the founding and during the history of the institution, large sums of money have been contributed from time to time for relieving the deficiency in its income. In the year 1840, one fund of $30,000 was contributed to pay off the debt of the corporation, and in 1845, owing to the pressure of financial difficulty, the college was closed and was not reopened until 1847, when an additional sum of $50,000 was contributed as a permanent endowment fund, whereby it was able to recommence operations. This fund has been increased by contributions and legacies to $100,000, and is constantly being drawn upon to meet the deficiences in the ordinary income of the institution. In the year 1873, the sum of $18,000 was raised for the purpose of paying off accumulated deficiencies, and quite a number of smaller subscriptions have been made at different times for the same purpose. Barclay Hall, a building erected at a cost of $80,000 for the purpose of providing dormitories and study rooms for the students in 1876, was built almost entirely by subscriptions, as the sum of $73,000 was donated for that purpose.</p> <p>During the three years prior to 1884, a subscription of $8,000 per year was made and paid by friends of the college for the purpose of increasing the efficiency of the college, to meet the deficiency in the income, and to reduce the debt of the institution ; and in that year a sum of $50,000 was subscribed and nearly all of it paid as a further contribution to liquidate existing debt, caused by deficiencies in the income of the college, and prior to 1894, five friends agreed each to give $3,000 a year for five years, to apply, first, to all the scholarships that were necessary, and second, to apply to other current expenses.</p> <p>The master also finds as a fact that that proportion of the 200 acres devoted to farming has been run at a profit ever since the college took charge of it itself, about eight years' ago, and the profit is credited to the farm account and to the general expenses of the year. And notwithstanding this, and notwithstanding the contributions of its friends, by which the college has been at times relieved from debt, the results of the operations of the college have constantly been on the wrong side of the ledger, and that at the present time the debt is upwards of $64,000, of which $36,000 was incurred in operating the college. The' loss in operating the college last year was $12,000, and the cost of each student was $670, the regular charge being $500.</p> <p>7. The master also finds that the allegations of the seventh paragraph of the plaintiff’s bill are facts, substantially as alleged. The college is open to the admission of all persons educationally qualified upon the same terms, and the funds of the corporation do not go to the education of the children of Friends or of any other sect in preference to others. The testimony upon this point, which is uncontradicted, is even more emphatic than the bill.</p> <p>The objects of the institution are very clearly set forth in the act of assembly creating the “ Haverford School Association,” “ approved April 4,1833, and the supplement thereto, approved March 15, 1856,” and are “For the education of youth and other persons in the various branches of science, literature and the arts,” and for the purpose of conferring “ Such degrees in arts and sciences upon the students of the college and others, when by their proficiency in learning they shall be entitled thereto, as are conferred in other colleges and universities in the United States,” and the practice of the college in carrying out these objects is clearly set forth in the forcible and intelligent testimony of Mr. Asa S. Wing. There can be no doubt, and the master accordingly finds as a fact, that the fifty acres of land in question are absolutely necessary for the proper operation of the college. In 1884, when Mr. Wing became treasurer of the institution, there was a debt of about $30,000 or $40,000. Just before that time a subscription had been raised amounting to $50,000, which enabled the college to cancel its debt, so that at the close of the year 1887, the managers reported the college free from debt. Since that time, notwithstanding large contributions in each year to meet current expenses, etc., the debt has yearly increased, until, at the close-of the fiscal year in 1893, the debt was reported at $64,000; $36,000 of this had been incurred for running expenses of the college over and above current receipts.</p> <p>Seventeen thousand dollars of it was for the cost of the double dwelling in Montgomery county. Twenty-five hundred dollars of it was for stock on farm, and about $9,000 of it for the purchase of two houses in Delaware county, occupied by Professors Crew and Leavenworth on the college property, and which the college was bound to buy from them on the termination of their services for the college. The present number of scholarships is probably about half of the whole attendance of the college, either whole or partial scholarships. The average number of scholars is between ninety and one hundred.</p> <p>These scholarships are paid for from the following sources :</p> <p>First: From the income of the I. Y. Williamson fund; second, from the income of the Thomas P. Cope fund; third, from the income of the Edward Yarnall fund; fourth, from the income of the Richard T. Jones fund; and fifth, from the contributions made by friends of the college from year to year. The total amount credited for scholarships during the last nine years has been about $73,000. That is, the student is charged with the full price for board and tuition if he lives in the college, or for tuition only if he lives at his own home, and he is credited with whatever allowance is arranged for with him by the president of the college and the committee on scholarships, which arrangement is made before the beginning of the college term, and he finds the balance if there is any balance. Of this $73,000 about $32,000 has been from the income of the funds of the college, and the balance from donations especially for that purpose.</p> <p>Some years ago the board of managers passed a minute directing that $1,000 per year should be appropriated from the income of the geiieral. or endowment fund of the college for scholarship purposes, and that has been done ever since, and the amount is included in the above $32,000. The only distinction as to terms is that the scholarship student under the I. Y. Williamson fund is charged $300 per year instead of $500 per year, and in the case of the Richard T. Jones fund, which amounts to only $5,000, the board passed a minute on receipt of this fund agreeing to give a full scholarship each year for the income of this fund whatever it might be.</p> <p>8. The master also finds that the allegations of the eighth paragraph of the plaintiff’s bill are facts, with the additional fact that the houses of the professors which are located on the fifty acres are separately assessed and taxed, and no exemption is asked as to them; the premises to which exemption is asked comprises the residue of the fifty acres, all of which is in the immediate use of the college, for its buildings or recreation grounds, and is reasonably necessary for that purpose. The buildings consist of the original college known as Founders’ Hall, used for lecture and class rooms and laboratory, and also for dining-room, kitchen, college offices and quarters for the help, with the annex containing other of the laboratories and the gymnasium; Barclay Hall, used for dormitories and study rooms; Chase Hall, used for class rooms; Alumni Hall and Library, a large house used as a residence for students, two observatories, a machine shop, laundry, pumping station, ice house, cricket shed and some outbuildings.</p> <p>SUPPLEMENTARY FINDINGS OF FACT.</p> <p>9. In addition to the facts previously found, the master finds it to be a fact that the services of all the members of the board of corporators, as well as those of the board of managers, are rendered gratuitously to the college, and that none of the officers of either board receive any compensation for their services.</p> <p>In accordance with the foregoing facts, and after having examined carefully all the cases cited by counsel on either side, the master concludes as follows:</p> <p>Previous to the adoption of the constitution of 1874, all exemptions from taxation were made by means of special act of the general assembly; but that great charter restricted the power of the legislature in this respect, and provided (art. 9, sec. 1) that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws ; but the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.”</p> <p>And in accordance therewith, the legislature enacted, Act of May 14, 1874, sec. 1, P. L. 158, inter alia, that “all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for. the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity, be and they are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax.”</p> <p>Upon this legislation must the case be decided. To do so it will be necessary to discuss, first, Is the plaintiff within the act of 1874; that is, a college, founded, endowed and maintained by public or private charity ?</p> <p>It was founded by subscriptions to capital stock which contained a proviso that no profits should ever be divided on the stock. In other words, the subscriptions were gifts of that much money to the corporation. This conclusion is made stronger by the fact that all the certificates of stock have been rendered up to the college, and all stock has been abolished by the consent of all the stockholders without any return for the same. We have found it to be a fact that it was founded by the voluntary contributions of persons desirous of promoting its objects, which objects were stated in the charter, “ to establish and maintain a college for the education of youth and other persons in the various branches of science, literature and the arts.” It has been heavily endowed from time to time by contributions of money from the state as well as from private donors, gifts of buildings, etc., and has been maintained by the income from these gifts, by large additional charitable gifts from time to time, by a profit from the farm it possesses and operates as a part of its plant, and by a low charge for the tuition and boarding of some of its beneficiaries. As the latter two items would not be sufficient to maintain the college at the present low charge for tuition, it therefore complies with the terms and meaning of the act.</p> <p>It remains to be seen then, whether such a college is purely a public charity, and falls within the class of institutions the legislature is allowed to exempt by the constitution.</p> <p>That a college, an institution of learning, is a charity, has long been decided, if it is conducted in a way beneficial to the public at large. The education of youth and the support of schools has been recognized as a charitable use since before the statute of 43 Elizabeth, and the doctrine has been uniformly held by our courts: Episcopal Academy v. Philadelphia, 150 Pa. 565.</p> <p>At this institution, by means of charitable gifts to it, education has been furnished at rates considerably below the cost to the college and far lower than was possible without such gifts, while nearly one half of the students, the more needy ones, were aided by means of scholarships, or credits of money, and several received tuition and board entirely without cost. That such a college is a charity has been frequently decided: Lafayette Col. v. Co. of Northampton, 128 Pa. 132.</p> <p>Is it a public charity ? The solution of this question is one of fact, and the way has been made clear to a correct interpretation of the facts by the able opinion of Judge Mitchell, then of the lower court, but now of the Supreme Bench, which was approved by the Supreme Court in Donohugh’s Appeal, 86 Pa. 306.</p> <p>“ The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that give it its ‘ public character.’ The smallest street in the smallest village is a public highway of the commonwealth, and none the less so because a vast majority of the citizens will never use it. It is enough that they may do so if they choose. So there is no charity conceivable which will not, in its practical operation, exclude a large part of mankind, and there are few which do not do so in express terms, or by the restrictive force of the description of the persons for whose benefit they are intended.”</p> <p>As it is the right to maintain a bar across it which makes a road private, so it is the restrictions which are placed upon the beneficiaries of the charity which makes it private. In all practical charities there must be some restrictions, as to whom shall be benefited; the courts have told us which restrictions are permissible, and which constitute the bar across the road.</p> <p>Perhaps in the Burd Orphan Asylum v. The Borough of Upper Darby, a divided court, when it reversed itself on a rehearing of the case, went the farthest in its dictum that “ A home for the support of poor widows is a public charity; why should not a home for the support of poor Episcopalians be ? ” “ The legal effect is the same whether the words used for the purpose of defining the beneficiaries of the donor’s bounty be seamen, Episcopalians, blind persons or Catholics,” etc. But in Philadelphia v. The Masonic Home, 160 Pa. 572, Judge Dean discovers the true reasoning which distinguishes a public from a private charity. “As long as the classification is determined by some distinction which involuntarily affects or may affect any of the people, although only a small number be directly benefited, it is public. But when the right to admission depends on the fact of voluntary association with some particular society, then a distinction is made which does not concern the public at large.” And his able opinion further shows that the restriction must be exclusive.</p> <p>For he approves of the finding in the Burd Orphan Asylum case, although he disapproves some of the dicta, including that quoted ; and the facts in that case show that the charity was limited to female orphans of a certain age, baptized into the Episcopal church, residing in Pennsylvania, after whom, until the capacity of the institution was reached, all other female orphans of that age might be admitted, the orphans of Episcopal clergymen being always preferred. In other words, the asylum was public because the general public was not excluded, but might be benefited by it, while in the case of the Masonic Home, under discussion, every one not a Mason was excluded absolutely.</p> <p>In Episcopal Academy v. Philadelphia, 150 Pa. 565, the facts show a purely denominational school, under the control of the Episcopal church. Children of other denominations were not excluded by the charter, rules or practice of the school, although they were very evidently not preferred, for out of sixteen free scholars a preference was given to the number of ten, and the remainder were selected from nominations invited from the various Episcopal congregations in the city. But it was held to be a public charity because others than Episcopalians might be and were admitted.</p> <p>The facts in the present case show that the plaintiff admits to its benefits all persons educationally qualified upon the same terms ; that there are no restrictions, no bars across the road in either its charter or practice, and that the funds of the institution do not go to the education of Friends, or any other sect in preference to others. That while some of the free scholarships are restricted to Friends, others are free to all who apply. The mere fact that many of its patrons and donors are Friends has no bearing on the case, provided that its objects are charitable; as it is the object accomplished, not the motive, that insures its public charity : Fire Insurance Patrol v. Boyd, 120 Pa. 624.</p> <p>From these facts and the law in the cases cited, the master concludes that it is a public charity. It remains to be seen if it further complies with the provisions of the constitution, in that it is purely public charity; and Judge Mitchell in Dono*hugh’s Appeal, gives us the test. “Are the objects of the institution entirely for the accomplishment of the public purpose, or is there some admixture of private or individual gain ? ”</p> <p>By the terms of the plaintiff’s charter as amended, the ownership of its property is in the corporation for the purposes of its incorporation, and no part of that property can ever be divided among its members. Its members have no individual interest, for the capital is not divided into shares of stock.</p> <p>And the officers of the corporation serve without remuneration ; there can be no taint of private gain here. In its operation, however, a small fee is charged some of its students, which fee is shown to be less than the actual cost to the college notwithstanding its large endowments of real and personal property, and this is applied to defraying its expenses. But it has been decided in many cases that there may be a revenue arising in the operation of a charity, from its beneficiaries, to aid in its maintenance, without removing its status as a purely public charity; this revenue must not, however, exceed the expenses, and in our case it falls far short of equaling them : Philadelphia v. Woman’s Christian Asso., 125 Pa. 572; Penna. Hospital v. Delaware Co., 169 Pa. 305; Lafayette College v. Co. of Northampton, supra; Episcopal Academy v. Philadelphia, supra.</p> <p>There is no element of individual or corporate gain, and the entire benefit goes to the public. It is contended that there is nothing to compel the corporation to maintain free scholarships. But under the terms of the trusts by which the money is held, free scholarships are compulsory. That some are restricted to Friends does not make it any the less a public charity if from others the public are not excluded, but may and do receive the benefits : Burd Orphan Asylum, supra.</p> <p>It is true that there is nothing in the charter compelling the admission of all comers, although should it refuse it would fail in its express object, as stated in the charter to “ furnish instruction to young men.” There is surely nothing prohibiting it, ;and it is the prohibitory clause, the bar across the road, which makes a private charity. All persons educationally qualified may make use of the benefits the college offers. It is in theory 'and practice purely public charity, founded, endowed and maintained by both public and private charity, and as such the master concludes that it is entitled to the exemption asked.</p> <p>The following exceptions were taken to the report of the master: 1. The learned master erred in his finding of facts on the seventh paragraph of the plaintiff’s bill. 2. The learned master erred in his conclusion of law that the corporation plaintiff is a purely public charity. 3. The learned master erred in his conclusion of law that the corporation plaintiff is entitled to exemption from taxation. And were dismissed in the following opinion by Clayton, P. J.</p> <p>December 7, 1896. The Court. [Under the ruling of the Supreme Court in the cases cited by the master, it is difficult to see how he could arrive at any other conclusion than the one adopted by him. Whatever my own personal judgment may be, as expressed in similar cases, we must obey the superior judgment of our court of last resort, which seems to hold such institutions of learning, as the evidence in this case shows the Haverford College to be, as free from taxation.</p> <p>The exceptions to the report of the master are, therefore, dismissed and the report confirmed. Let a- decree be drawn by counsel and be submitted sec. reg.] [4]</p> <p>DECREE.</p> <p>[Now, April 5,1897, this cause came on to be heard and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the injunction formerly granted in this cause be made perpetual, and it is further ordered that the said defendants pay the costs of suit.] [5]</p> <p>Defendants appealed.</p> <p>Errors assigned were (1-3) In overruling defendant’s exceptions, reciting same. (4) In holding the corporation plaintiff free from taxation in the opinion filed, reciting same. (5) In making the decree perpetual as to the injunction, reciting same.</p>

<p>Appeal, No. 148, Oot. T., 1897, by the Doylestown Distilling Co., Ltd., from decree of Q. S. Bucks Co., refusing distiller’s license.</p> <p>Rice, P. J. and Beaver, J., dissent.</p> <p>Application for distiller’s license. Before Yerkes, P. J.</p> <p>The application for tbe license, bond and other proceedings were in regular form. Tbe application baying been beard according to the rules of court the license was refused upon tbe ground that there was no necessity for it, in an opinion by Yerkes, P. J., as follows :</p> <p>This petition seems to rest upon peculiar grounds. It is not stated that a license is needed for tbe accommodation of the general public, but ratber to enable the applicants an opportunity to make a market for tbeir peculiar brand of liquors by convincing tbe public through experience, that their liquors are alone beneficial to them, as a remedy,for various diseases to which the human family is subject. The principal testimony and exhibits laid before us seem to establish that this want is felt in Wallingford, Connecticut, to a good deal greater extent than here.</p> <p>It is true one Doylestown physician presents a ratber guarded certificate of tbe results of the use of tbe liquor in cases of feeble digestion and prostration which, with his limited experience, encourage him to give it further trial. It does not appear, however, that the stimulating effect here referred to is different from that of the use of other alcoholic drinks. From time immemorial the result of the use of such has given encouragement to further trial.</p> <p>Another witness bases his testimony upon his idea of the benefits which will accrue to the community by the use of this land of intoxicant from what has been represented to him, and the character of certain members of the company to whose standing he testifies. The basis for the first reason is of a somewhat beclouded character, and the second was unnecessary, the high character of the parties named being well known.</p> <p>He somewhat damages the doctor’s certificate by proving that “ liquor is used as medicine throughout the world.”</p> <p>It is also said that the farmers will be benefited by this house being licensed. No farmers have so declared, however.</p> <p>The usual number of petitioners, who always sign petitions, has certified to the benefits to be derived from this license.</p> <p>None of this testimony throws light upon the only questions which, under the law, are material to the inquiry before us, viz: The necessity for the license, and the fitness of the place and the person who may conduct the business.</p> <p>Doylestown already has two licensed wholesale liquor stores, both well located to accommodate public demands, and, so far as has been shown, they supply liquors in quantity and quality sufficient for all purposes. One of these is the house of Mrs. Huber, who appears to be the second largest holder in value in the petitioning company. These licensed houses no doubt would willingly dispose of the cold distilled spirits if there be such a crying demand for it, and at reasonable profit.</p> <p>We have seen no evidence that Mrs. Huber or the other members of the company, who, bjr their long residence here, are well acquainted with the necessity for this license, are desirous, particularly, that it be granted. The place is also unsuitable. Mrs. Huber’s store is within four doors from it and is located so as not to unduly annoy private dwellers. • The latter are entitled to some degree of protection from unpleasant surroundings.</p> <p>To impose another liquor store upon that immediate neighborhood could only be justified by the clearest necessity.</p> <p>, We regard the special plea, that only one kind of whiskey will be sold, of a superior medicinal quality, as a clever device to obtain a valuable privilege without establishing such necessity as the law requires for its grant.</p> <p>.The license is refused.</p> <p>Errors assigned were (1) In refusing to grant distiller’s license- to the Doylestown Distilling Co., Ltd., upon the ground that the same was not necessary. In refusing the license the learned judge- saying: “ It is not needed for the accommodation of the general public.” “ That it is a clever device to obtain a valuable privilege without establishing such necessity.” And again: “None of the testimony throws light on the questions which, under the law, are material, viz : Necessity.” (2) In comparing the application with that of Mrs. Huber and H. P. Beerer, they holding wholesale licenses. (3) In not approving the bond.</p>

<p>Practice — Criminal law — Additional instructions in absence of defendant —Adjournment.</p> <p>It is reversible error where the trial judge, after adjournment of court, permits the jury to come in for additional instructions which he gives in the absence of defendant and his counsel and without notice to either. A person under trial for a crime has the right to be present during the entire trial; he has a right to assume that .no further instructions will be given during the adjournment of court. No waiver or consent can be implied from his absence under such circumstances.</p> <p>While the court has the discretionary power to recall the jury for further instructions or to withdraw or to correct erroneous instructions such instructions should be given in open court.</p> <p>Evidence — Criminal law — Proof of independent crime, when admissible.</p> <p>Generally evidence of the defendant’s commission of another distinct and independent crime cannot be received for the purpose of proving his commission of the offense for which he is being tried; yet under some circumstances such evidence may be given : To establish identity; to show that the act charged was intentional and wilful, not accidental; to prove motive; to show guilty knowledge and purpose, etc.</p> <p>Evidence — Criminal law — Pertinent cross-examination.</p> <p>Evidence being given by defendant, charged with embezzlement of public funds, that his alleged false representations made to the officers of the city were innocently, if mistakenly made, it was competent for the commonwealth to cross-examine him on this subject and admissions, made by him, that he was receiving interest on the money in question from banks of deposit, are relevant testimony as tending to rebut the theory of mistake set up in his direct examination, and as tending to show a personal interest to be served in making the false and misleading statements and in withholding the money.</p> <p>Evidence — Criminal law — Scope of cross-examination of defendant.</p> <p>Where defendant in a criminal case goes upon the stand, admissions made by him are not inadmissible because elicited under cross-examination ; by consenting to take the stand and by swearing to tell the truth, the whole truth, he waives his constitutional privilege and may be cross-examined, not only the same as any other witness, but he cannot object to legitimate cross-examination upon the ground that his answers will tend to criminate him.</p> <p>Evidence — Criminal law — Testimony of defendant at former trial admissible.</p> <p>The testimony of defendant can be used against him on a second trial of the same indictment even if he elects not to go upon the stand. His constitutional privilege as far as that testimony is conceited has been waived, and cannot be reclaimed in any subsequent trial of the same indictment.</p> <p>Evidence — Testimony of former trial — Method of proof — Practice, C. P.</p> <p>The proper method of proving what was said by a witness on a former trial is by the official stenographer.</p> <p>Evidence — Criminal law — Proof of admissions on former trial.</p> <p>When the commonwealth desires simply to prove certain admissions of a defendant made on a former trial, it is not necessary to put in evidence his whole testimony; but if anything is omitted which may tend to explain or qualify those admissions the defendant may call it out upon cross-examination.</p>

Appeal, No. 154, Oct. T., 1897, by plaintiff, from order of C. P. Chester Co., discharging rule to show cause why an appeal from a magistrate should not be dismissed. Appeal from judgment of magistrate. It appears from the record that judgment was rendered by a magistrate in favor of the plaintiff for $19.75. On July 26, 1897, appeal filed and entered.

<p>Appeal, No. 89, Oct. T., 1897, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1895, No. 706, overruling demurrer to statement.</p> <p>Assumpsit on a promissory note.</p> <p>It appeared from the record that plaintiffs sued upon a note made by the Staten Island Terra Cotta Lumber Co. to them, and irregularly indorsed by the defendant, J. E. Addicks, and subsequently indorsed by the plaintiffs.</p> <p>In the statement it was alleged by the plaintiffs that defendant did, in consideration of forbearance on their part, agree and undertake to become personally liable to them as surety for said note and that in pursuance of this agreement and understanding the note was executed, indorsed by defendant, and delivered to the plaintiffs in the state of New Jersey, where it was to be payable, and that the application of the law of the state of New Jersey, under the decisions of the courts thereof to the facts as therein stated, made the defendant liable on the note to the plaintiffs as surety.</p> <p>There was no evidence of any agreement on the part of the defendant by any writing signed by him saving and excepting the note.</p> <p>Defendant demurred on the ground that the action could not be brought in Pennsylvania, because of the first section of the Act of April 26, 1855, P. L. 308.</p> <p>Judgment for plaintiffs on demurrer. Damages assessed at -1516.38. Defendant appealed.</p> <p>Error assigned was overruling defendant’s demurrer.</p>

<p>Evidence — Written agreement — Modification thereof by oral agreement.</p> <p>A written agreement may be modified or set aside by parol evidence of an oral promise or undertaking, material to the subject-matter of the contract, made by one of the parties at the time of .the writing, which induced the other party to put his name to it; but where the parties met, discussed the contract and separated, with' instructions to plaintiff to write out thei agreement subsequently made, and both parties signed the agreement-thus prepared without objection, no evidence of what was said at the first. meeting will be admitted. It is not error for the court to exclude from the consideration of the jury negotiations which the parties themselves excluded from the contract.</p>

<p>Appeal, No. 113, Oct. T., 1897, by Francina D. Powell, one of the defendants, from judgment of G. P. No. 3, Phila. Co., Dec. T., 1896, No. 1171 for want of a' sufficient affidaAdt of defense, and from order of discharging rule to open judgment and quash attachment and let defendants' into a defense, proceedings to stay.</p> <p>Assumpt on promissory-note signed by.Francina D. Powell and Samuel Powell.</p> <p>Suit was brought on a promissory note signed by Francina D. Powell and Samuel Powell. Francina D. Powell, one of the defendants, filed an affidavit of defense as follows:</p> <p>“ Francina D. Powell, one of the defendants in the above stated action, being duly sworn, says that she has a true, just and legal defense to the whole of the plaintiffs’ claim of the following character, to wit: That she, the deponent, is the wife of Samuel Powell, one of the defendants above-named. That she is not indebted to the said plaintiffs in the above suit in any sum and never was, but, that after the making of the said promissory note by her husband, which is the subject of this suit, a representative of the payees in the said promissory note, called upon her at her residence, and alleged that it was necessary to have deponent affix her name to said note, thereby inducing her to sign as a guarantor, and as she is advised by counsel and verily believes is prohibited by the act of general assembly, approved June 3, 1887. Deponent further avers, that she is informed and verily believes and expects to be able to prove on the trial of the cause, that the above-named plaintiffs are not the bona fide holders of said promissory note, but that the same is in the possession of the payees, as in the said obligation named. All of which deponent says is true.”</p> <p>The court entered judgment for want of a sufficient affidavit of defense. Subsequently, after the expiration of the term on which the judgment was entered, a rule was taken to open the judgment and quash an attachment, and let defendants into a defense, which rule was discharged in an opinion by the court below, as follows: “ After consideration of the depositions in the above case, the rule to open the judgment is discharged. The court is of the opinion that under the authority of Hill v. Egan, 2 Pa. Superior Ct. 596, it is too late to open the judgment.”</p> <p>Damages were assessed under the judgment in favor of the plaintiff for $398.97. Defendant, Francina D. Powell, appealed.</p> <p>Errors assigned were (1) In entering judgment against Francina D. Powell for want of a sufficient affidavit of defense. (2) In discharging the rule to open the judgment and let defendant, Francina D. Powell, into a defense.</p>

<p>Transfer of license — Jurisdiction, Q. 8. — Payment of money into court.</p> <p>The court of quarter sessions has no jurisdiction to order the payment into court of the proceeds of a proposed sale of a hotel as a condition to the approval of the transfer of the license, nor will the consent of all parties confer such jurisdiction.</p> <p>Appeals — Jurisdiction, Q. S. — Payment of money into court.</p> <p>On an application for transfer of license the court made the following order: “ On paying into court $2,000, the balance of purchase money to abide the further order of court, the license may be transferred.” Judgment creditors of the vendor united in petitioning for the appointment of an auditor to distribute the fund. After participating in the proceedings before the auditor certain creditors appealed, alleging want of jurisdiction in the quarter sessions to order the money into court. Held, that the whole proceeding must be regarded as a common law reference and that the appellate court will not review the decree of distribution made in such an anomalous proceeding, but will quash an appeal taken by a participating creditor. Queried : Whether the vendor might not have had the right to an appeal.</p>

<p>Landlord and tenant — Evidence—Degree of proof to establish a surrender.</p> <p>Where a case turns on whether there has been a surrender by a lessee of his term and an acceptance thereof by the lessor, the proof requisite to establish such surrender must establish a clear and explicit agreement, and the landlord’s acceptance of the surrender also must be established by a fair and full preponderance of evidence. It is error however, for the trial judge to instruct the jury that a defendant lessee, in order to meet ■the burden of proof cast upon him, must, to establish a surrender, prove .all the terms and conditions of the alleged rescission or surrender and acceptance by evidence that is “ clear, precise and indubitable.”</p> <p>There is no reason for requiring the exceptionally high measure of proof necessary to take the case out of the statute of frauds, or to reform a writing.</p>

<p>Appeals — Greclit given to findings of audüing judge — Domicil.</p> <p>Where the principal question before the orphans’ court was one of fact, namely, the domicil of the decedent, and the auditing judge found that he had not lost his domicil of origin by residence abroad, which finding was sustained on exception by the court in banc; the appellate court will not disturb the conclusion in the absence of manifest error, there being sufficient evidence to sustain the finding and decree of the court below.</p> <p>Evidence — Depositions regularly taken and, filed.</p> <p>Where depositions regularly taken are filed by order of the court they thereupon become proper evidence for either party.</p>

<p>Appeal, No. 96, Oct. T., 1897, by plaintiff, from judgment of C. P. Berks Co., Oct. T., 1895, No. 83, on special verdict in favor of defendant.</p> <p>Amicable action in assumpsit. Before Ehdlich, J.</p> <p>On the trial of the case the jury found the following special verdict :</p> <p>1. Plaintiff became the purchaser in December, 1894, ón an execution issued at his instance and levied upon the winter crops in the ground of the farm of Hibschman (defendant in said execution) in the possession of J. L. Loose, as tenant for a term beginning April 1, 1894, and ending April 1, 1895.</p> <p>2. Prior to the levy of said execution said Hibschman had not rented said farm to said J. L. Loose for another year beginning April 1, 1895.</p> <p>3. Defendant on February 16,1895, became the purchaser of said farm under execution on a judgment entered to No. 83, December term, 1894, J. D. in a sci. fa. sur mortgage upon said property.</p> <p>4. The tenancy of said J. L. Loose, under the lease, beginning April 1, 1894, was under and subject to the custom prevailing in this county, that the incoming tenant has the benefit of the winter crops in the ground at the time, and is bound, when going, to leave a crop of winter grain in the ground in place of that which he found.</p> <p>5. The value of the crops levied upon by plaintiff was, when' harvested in the summer of 1895, after deduction of the expense of harvesting, $207, and said crops Avere retained by defendant. If upon the Avhole matter thus found the court should be of opinion that the plaintiff has a good cause of action, then Ave find for the plaintiff and assess his damages at $227.34. If otherwise, we then find for defendant, as per special verdict filed.</p> <p>A motion for judgment on a special verdict made by the plaintiff was overruled and judgment was directed to be entered for the defendant in the following opinion by Erdlich, J.:</p> <p>Counsel for plaintiff contends that the long line of decisions and dicta on the question of the landlord’s interest in grain in the ground, where the latter has been rented upon shares, and the liability of that interest to seizure for his debts (Carson v. Blazer, 2 Binney, 475 ; Stultz v. Dickey, 5 Binn. 285 ; Biggs v. Brown, 2 S. & R. 14; Myers v. White, 1 R. 353; Stambaugh v. Yeates, 2 R. 161; Demi v. Bossier, 1 P. &¡ W. 224; Forsythe v. Price, .8 W. 282 ; Rinehart v. Olwine, 5 W. & S. 157; Bittinger v. Baker, 29 Pa. 66 ; Burns v. Cooper, 31 Pa. 426 ; Ream v. Harnish, 45 Pa. 376; Helme v. Ins. Co., 61 Pa. 107; Narewood v. Wilhelm, 69 Pa. 64; Hershey v. Metzgar, 90 Pa. 217 ; Shaw v. Bowman, 91 Pa. 414; Long v. Seavers, 103 Pa. 517 ; Baker v. LeAvis, 150 Pa. 251), is inapplicable to a case governed by the custom found to exist in this county. Be it so. Yet notAvithstanding this custom, which simply requires the tenant to leave a growing crop when he goes, Avhere he found one when he came, it is quite clear that, unless there had been a previous severance, actual or implied, of the groAving grain from the soil, the sale of the realty was bound to carry with it the title to the grain: Wilkins v. Vashbinder, 7 W. 378; Bear v. Bitzer, 16 Pa. 175; Backentoss v. Stahler’s Adm’r, 33 Pa. 251; Heysham v. Dettre, 89 Pa. 506; Hershey au Metzgar, supra, p. 219; Long v. Seavers, supra, pp. 521,522. The controlling inquiry, therefore, in this case must be whether the execution of the landlord’s creditor, levied, while the farm was in the possession of the lessee, upon the Avinter grain put out by him and in the ground, as personalty, constituted a severance of the grain from the realty, by reason of which severance the former passed to the purchaser under said execution and not to the purchaser at the subsequent sale of the laud under proceedings upon the mortgage thereon. Manifestly, if the interest of the landlord in the growing grain, at the time when it was levied upon, was not liable to seizure as personalty, no such effect can be attributed to the execution. Now, it is said by Mr. Justice Greek, in Long v. Seavers, supra, p. 519, that the proposition, that grain growing in the ground is personal property and may be seized and sold upon execution, relates, in its generality, only to the interest in the grain of the person in possession. The reason of this limitation is obvious and demonstrates its applicability without regard to the matter of differing customs as affecting the rights and duties of the tenant. Where a man has himself sown his own land with his own grain, he owns the latter both as grain, which is personalty, and as part of the land into which he has put it, which is realty. While he remains in absolute control, i. e., in possession of the land, with the grain in it, he is, of course, competent to treat the grain as part of the land or as something separate from it, i. e., either in connection with the-land, as realty, or apart from it, as personalty. Consequently his creditors have the same right. An execution and levy upon the grain as personalty, being, therefore, lawful, will effect a legal severance of the grain from the soil, and a’ sale of the former under such execution will invest the purchaser with the title to the grain. But where grain has been put out by a tenant, while in possession of the land under his lease, the landlord, during the continuance of the term and the tenant’s possession, is the owner of the grain in the soil by virtue only of his ownership of the land. That is, he owns it as part of his land, which is realty, and as such only, therefore, can it be reached by his creditors in connection with, as appurtenant to the land. Hence an execution and levy upon it as personalty, apart from the land, is an impossible thing. Such an execution and levy consequently cannot work a severance of the grain from the soil and a purchaser under it takes no title as against a subsequent execution purchaser of the land with the grain in it. It follows that, in this case, the defendant is entitled to judgment upon the verdict.</p> <p>And now, June 21,1897, plaintiff’s motion for judgment upon the special verdict is overruled, and it is ordered that, upon payment of the verdict fee, judgment be entered for defendant.</p> <p>Judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in directing judgment to be entered in favor of the defendant on special verdict.</p>

<p>Insurance — Mutual aid society — Construction of policy — Delay %n payment — Province of court.</p> <p>Where members of a mutual aid society are classed as nonbenefieial if in arrears for dues for more than three weeks and, even when reinstated, remain nonbenefieial for five weeks thereafter, the beneficiary of a member so in default cannot recover death benefits. The fact that the receipt book of decedent shows acceptance of dues by the company at irregular times is no evidence of an intent of waiver by the company of any rights secured to it by the policy or to change its terms. The facts being undisputed, the question was for the court, and it should have directed a verdict for the defendant.</p>

<p>Appeal, No. 92, Oct. T., 1897, by defendant, from order of C. P. Berks Co., May T., 1897, No. 48, discharging rule to vacate judgment.</p> <p>Rule to vacate or set aside judgment. Before Ehdlich, J.</p> <p>Judgment was entered by a magistrate against Mrs. James B. Hunsberger for $28.00. Transcript was filed in the common pleas. A rule subsequently was taken to vacate, which upon hearing was dismissed in an opinion by Eudlich, J. (in which further facts sufficiently appear), as follows:</p> <p>Judgment having been entered against Mrs. James B. Hunsberger by an alderman, a transcript thereof was in due course filed in this court to No. 48, May term, 1892, J. D. An application by defendant to open this transcripted judgment was refused for reasons given in an opinion filed June 20,1896. A pluries writ of vend. ex. was thereupon issued by plaintiff to No. 1, June term, 1897, E. D., and the court is now asked by Catharine M. Hunsberger (or Hunsperger) to stay the execution thereof upon her property and to vacate and set aside the judgment.</p> <p>1. An application to vacate and set aside, i. e., to strike off, a judgment can be maintained only on the ground of defects apparent on the face of the record: O’Hara v. Baum, 82 Pa. 416; Allen v. Krips, 119 Pa. 1; -France v. Ruddiman, 126 Pa. 257 : Adams v. Grey, 154 Pa. 258; Brewing Co. v. Booth, 162 Pa. 100; North & Co. v. Yorke, 174 Pa. 349; Hall v. Pub. Co., 180 Pa. 561 — which may include such undenied averments in the applicant’s petition as go to complete the record: Hiller v. Niedzielska, 176 Pa. 409. The supposed defect of this judgment, relied on by counsel, is the fact that the name of the defendant therein is given as “ Mrs. James B. Hunsberger.” Conceding that “ Mrs.” is not a legal name, State v. Gibbs, 44 N. J. L. 169 — but merely an indication of the sex of a person named, Elberson v. Richards, 42 N. J. L. 69 — it is, nevertheless, true that the remainder of the description of defendant in this judgment, containing what may be a baptismal and a surname, is not, as a matter of law, so indescriptive as to render the judgment necessarily void under the doctrine of the above and similar cases. The worst that can be said of it is that it is to be treated as a wrong or fictitious name. Now, the rule seems to be that if a party “ was sued by a wrong or fictitious name, or by some designation which included a part only of his name, and was personally served with process, and, failing to urge the misnomer in any way, judgment was entered .... against him .... by such mistaken, fictitious or imperfect name, it is valid and enforceable:,” 1 Freeman, Judgments, sec. 50a, 154. The averments of Catharine M. Hunsperger’s petition show that she is the person sued as “Mrs. James B. Hunsberger,” and the transcript discloses the fact that the person so sued was personally served with process and that she allowed judgment to be given against her by default under that name, Avhich judgment, transcripted into this court, is the one now in question. It Avould appear, therefore, that Catharine. M. Hunsperger is not in a situation to urge this misnomer or usfe of a fictitious name, as constituting a defect vitiating the judgment as between herself and the holder of it.</p> <p>As concerns the petitioner’s allegations of fraud, res adjudieata, etc., though they appear undenied by answer, these are matters necessarily dehors the record and therefore not available in this application. Indeed they come clearly within that class of matters Avhich ought' to have been raised by appeal or certiorari, and on the ground of which, for that reason, a judgment entered on a transcript from a magistrate can be neither opened nor set aside: McKinney Ar. Brown, 130 Pa. 365.</p> <p>• 2. The equitable poAver of the court to stay, in a proper case,, even indefinitely, execution' process issued upon a judgment therein, is not to be questioned, Harrison v. Soles, 6 Pa. 393 ; Feagley v. Norbeck, 127 Pa. 238, and doubtless may be exercised though the judgment be one entered upon a transcript from a magistrate: see Engard v. O’Brien, 9 Phila. 559. But being an equitable power, it is exercised upon principles of equity. . These (where there has been no agreement or forbearance, or the like) forbid its exercise except upon a clear, showing that the defendant has used due diligence and exhausted every legal means of defense or redress, or has been prevented, without fault of his own, from doing so. It is not. necessary to discuss a proposition so fundamental. See 1 Black, Judgments, secs. 365, 374, 378, 387. The record here shoAvs that the. defendant, being served Avith process in a suit before an alderman, failed to, defend the same, but suffered judg-; pient to go against her by default, and that without presence of ignorance of the fact that she neglected to take an appeal or. certiorari, by one or the other of Avhich every right she now; alleges to have had might have been adequately protected. In these circumstances it seems very manifest that the redress she asks cannot be granted without.violating well settled rules.</p> <p>The rule to show cause is discharged.</p> <p>Error assigned among others was refusal to make absolute the rule to show cause why the judgment should not be vacated or set aside.</p>

<p>Practice, Superior Court — Appeals—Sufficiency of bail.</p> <p>Under the act of 1895 an appeal to the Superior Court was not effectual unless bail for the costs of the appeal be given, and an appeal was dismissed where the judge of the court below, on exception taken to the sufficiency of the bail bond, made the following order: “After hearing I decline to approve wilhin bond, because not signed by the plaintiff, and the insufficiency of the security offered.”</p> <p>Appeal — Practice, C. P. — Execution for costs.</p> <p>An appeal will not be sustáined assigning error in ah execution for costs based on the assumption that they had not been taxed by the prothonótary where the record of the proceedings prior to the execution has neither been printed nor brought up, and. where there is no allegation that the appellant filed exceptions or made any effort to have the legality of the costs adjudicated in the regular way.</p> <p>Costs — Taxation—Practice, C. P.</p> <p>Conceding that the court has the inherent power to determine in a summary way the legality of costs, the orderly and usual method of invoking the exercise of the power is by filing exception, entering a rule to have the costs taxed or relaxed before the prothonotary, and appealing from his decision to the court of common pleas.</p>

<p>Contract — Shipping receipt — Bill of lading.</p> <p>When a shipping receipt provides that: “ The acceptance of this receipt for goods made subject to the provisions of the bill of lading- of this company 'makes this an agreement between the M. D. T. Co. and carriers engaged in transporting said goods and all parties interested in the property,” such provision in the receipt requires the shipping receipt and the bill of lading to be read together as constituting the agreement.</p> <p>Common carrier — Misdelivery of goods — Evidence—Question for jury.</p> <p>A suit was brought by plaintiff against a transportation company for alleged misdelivery of goods, consigned to R. of Tyler, Texas, by delivering same to M. at Dallas, Texas. Held, that the question was for the jury under the terms of the contract as entered into between the transportation company and the consignor, as evidenced by the shipping receipt and bill of lading, whether the company had shown a good excuse other than negligence, for not having delivered the goods to R. the consignee; whether it did all that a prudent, reasonable, commonsense business man would have done to insure a proper delivery to the proper person; and whether the transportation'company had shown that it was not negligent.</p> <p>Common carrier — Negligence in delivery of goods — Question for jury.</p> <p>In a question of negligence arising from alleged misdelivery of goods by a transportation company, held, that the jury may take into consideration the conduct of consignor toward the person to whom the goods were delivered after receipt by him and any delay which may have occurred in notifying the transportation company of such alleged misdelivery and the relation of the recipient of the goods toward the consignee.</p>

<p>Appeal, No. 54, Oct. T., 1897, by defendant, from judgment of C. P. Lancaster Co., Jan. T., 1890, No. 67, on verdict for plaintiff.</p> <p>Trespass for slander. Before LlYlNGSTO-isr, P. J.</p> <p>It appears from tbe record that plaintiff’s statement alleges the defamatory words to be in brief, “Daniel Dreibilbis is a thief; be stole; be is not honest.” And tbe amended statement filed alleges the defamatory words to be, “ I believe my turkeys are over there. I believe the tenant man took them. I believe I’ll get a search warrant. I think I know where they are. I think they are in Hinardier’s tenant house. I think I’ll get a search warrant.”</p> <p>The court admitted, under objection, the plaintiff in tbe suit to be asked and to answer the following questions: [ “ Q. Mr. Hinardier says he repeated to you at the time exactly what Mr. Esbenshade said ? A. That same evening. Q. What did he tell you Mr. Esbenshade said ? ” Objected to by defendant. Admitted. Exception sealed. “ Q. What did Mr. Plinardier say to you Mr. Esbenshade had said ? A. When I came home Hinardier told me that Esbenshade was here hunting his turkeys. Q. What did he tell you Esbenshade had said to him ? A. He said he believes I got his turkeys, and he is going in to get a: search warrant and search my house; he is pretty sure I got these turkeys.” ] [1]</p> <p>The court charged the jury as follows:</p> <p>This is what is termed in law an action of slander. The words here charged are such words as the law requires to make án action actionable in itself; they charge larceny, an infamous crime with a severe punishment. [These words as laid are in' themselves actionable, therefore. Now are they proven ? I' need scarcely say to you that if you believe the testimony of-the defendant himself you cannot say they are not proven, because he tells you he did say about what is there; and) further than that, he went to a magistrate’s office and signed a paper in which he charged this man, the defendant, with the larceny; had a search warrant prepared for him; searched* his house (I think you will find from the evidence in his absence, the presence of his wife and child) found nothing' and left. He was arrested himself, came here and had a hearing, and was discharged for want of evidence to sustain the charge madeoagainst him. So that in this case, according'to the statements of the defendant himself, your verdict will have to be for the plaintiff for some amount; and the main question you will have to decide is what that amount shall he.] [2]</p> <p>It is true that he has not produced any evidence to show that he has been driven out of society by this charge; that he has suffered any pecuniary loss- for want of labor or want of a house-to live in, or anything of that kind. If he had he would be' entitled to exemplary or vindictive damages. As it is he is not.' He is entitled to such damages as will dispossess his mind of this charge in this community; such damages as you or either of you (for there is no direct measure of fixing them) would ask a jury to give under circumstances such as he now labors under.</p> <p>[This is a record made against him which will not down. The record is here, remains in this office, and always will show what the defendant here, Mr. Esbenshade, charged him with. And: you will have to render such verdict as in your judgment will .compensate him for the injury he had received in his reputation by this charge.] [3] I cannot give you anything by which you can measure the- damages otherwise than I have stated to you. There is no direct measure when there are no direct or independent damages proven. Where these are general, as in this case, the judge must judge from those, and their own better judgment, if they were in his place, what they would ask a jury to give. By doing so they will have complied with the requirements of the law and discharged their duty.</p> <p>I don’t know that I need say anything further to you iii regard to the matter. You will have to take the papers and dis pose of the case under the law as I have stated it to you and in the manner I have stated to you.</p> <p>Verdict and judgment for plaintiff for $250. Defendant appealed.</p> <p>Errors assigned were (1) In allowing certain questions and answers from Samuel Dreibilbis, the plaintiff in this suit, to be asked and answered under exception, reciting same. (2,3) To portions of the judge’s charge, reciting same.</p>

<p>Building contract — Submission to architect — Ripie of mason's workmanship — Evidence.</p> <p>A building contract provided that all the mason work shall be measured by the architect according to rule of mason’s workmanship. Held, in a controversy as to the amount due the mason, that the contract properly interpreted imposed upon the architect the duty to observe the rule of mason’s workmanship in his measurement, and offers of evidence tending to show that the measurements certified by the architect had failed to apply the rule, are admissible. In order to oust the jurisdiction of the courts it must clearly appear that the subject-matter of the controversy is within the prospective submission. The right of trial by jury is not to be taken away by implication.</p>

<p>Will — Bequest of interest a bequest of the fund — Life estate.</p> <p>A bequest of the interest of a fund, without limitation as to time, is a bequest of the fund itself, unless there is something to show a different intention.</p> <p>In cases of doubt or indefiniteness the fact that there is no bequest or limitation over is usually held decisive in favor of the view that the first taker is entitled to an absolute estate in the fund.</p> <p>The bequest was of interest on a certain bond to Leah and Rachel during their lives, and in case of death of either of them the survivor to have all it draws for life. Held, on the death of the survivor the principal was payable to her administrators and not to the next of kin of the decedent.</p>

<p>Evidence — Cross-examination of unwilling witness by party ealling him.</p> <p>It is proper for the trial judge, in the exercise of a sound discretion, to permit a cross-examination of an unwilling witness by the party calling him to show that his previous statements and conduct wei-e at variance with his testimony, where such statements made at a preliminary examination induced the calling of the witness and were material to the issue.</p> <p>Charge of court — Instructions as to scrutiny of evidence.</p> <p>In a case where there is conflicting or contradictory oral testimony, it is proper for the trial judge to instruct the jury as to their duty of carefully scrutinizing and dispassionately weighing the evidence.</p>

<p>Appeal, No. 130, Oct. T., 1897, by defendants, from judgment of C. P. Chester Co., April T., 1896, No. 42, on verdict for plaintiff.</p> <p>Assumpsit for goods sold and delivered. Before Wad-dell, P. J.</p> <p>Graham, the decedent, made a contract for the sale of pork, which was executed by the widow and payment made to her and not to the administrators, the plaintiffs in this suit.</p> <p>The widow subsequently claimed and was allowed her exemption, and the auditor surcharged the administrators with the price of the pork received by the widow and not accounted for by her to the administrators.</p> <p>There was evidence tending to show that the widow had expended a portion of the money received by her for the pork in liquidation of certain debts of the decedent. The court directed a verdict for the plaintiffs.</p> <p>Yerdict and judgment for plaintiffs for $170.23. Defendants appealed.</p> <p>JErrors assigned among others were, (1) to the action of the court in directing a verdict for the plaintiffs. (6) Refusal of defendants’ seventh point, which point was as follows : “ If from the money received from Eyrich & Brother, the widow of Isaac W. Graham, paid the funeral expenses or any other debts properly due by the administrators, thereby relieving the estate from such payments, the defendants should have credit for that amount in this action, and be relieved to that extent from the claim of the plaintiffs.”</p>

<p>Appeal, No. 33, Oct. T., 1897, by defendants, from judgment of C. P. Delaware Co., June T., 1896, No. 30, on verdict for plaintiff.</p> <p>Trespass for damages resulting from a collision. Before Clayton, P. J.</p> <p>It appears from tlie evidence that defendants own and operate an electric trolley railway on the Darby and Chester Turnpike Road running in an eastwardly and westwardly direction. The road is about fifty feet in width. The telford construction occupies about eighteen feet in the middle of the road. The defendants’ railway is constructed on the north side of the road between the telford construction and the north limit line of the road. The place where the accident occurred is in the borough of Glenolden where Ashland avenue crosses the turnpike road at right angles.</p> <p>On the morning of July 4, 1895, a wagon with four horses belonging to the plaintiff and in charge of their driver, was proceeding westwardly on the turnpike road, approaching the Ash-land avenue crossing conveying a party of about twenty young people on a picnic excursion. The driver knowing that the place of destination was somewhere on Ashland avenue, either stopped or slowed up a short distance before reaching Ashland avenue and inquired whether he should turn to the right or the left. The conductor of the party directed him to turn to the right. According to his statement, in order to make a long turn, he started pulling the horses first to the left to get the wagon on the left hand side of the road, and then turned to the right to go along Ashland avenue. When the lead horses had gotten upon the track and the pole horses had their front feet about on the south rail, the defendant’s trolley car came along going westwardly and struck the lead horses, injuring them. The evidence was conflicting.</p> <p>Plaintiff introduced evidence tending to show that the driver before attempting to make the turn, stopped, looked up and down the track, listened for approaching cars and saw none; that the car was running at a dangerous and unusual rate of speed, some of the witnesses testifying that it was running from forty to sixty miles an hour; that immediately after the accident the motorman admitted that he had not rung the bell and that his car was not under control.</p> <p>Defendants introduced testimony tending to show that the car had only left a switch at a distance of thirteen hundred feet from the place of the accident and that it was a physical impossibility for the car to attain a speed of more than twelve miles an hour in that distance from the starting point; that the wagon was visible from the track for some distance; that the motorman had his brakes on and bad been sounding his gong; that the wagon made the turn into the track without stopping.</p> <p>The court left the question of defendants’ negligence and plaintiff’s contributory negligence to the jury, with proper instructions as to the law and with fair and impartial comments on the evidence.</p> <p>Verdict and judgment for plaintiff for $800. Defendants appealed.</p> <p>Mrror assigned was refusal to affirm plaintiff’s first point as follows: “ Under all the evidence in the case the verdict of the jury should be in favor of the defendants.”</p>

<p>Appeal, No. 17, Oct. T, 1897, by defendant, from decree of C. P. Lancaster Co., May T., 1895r No. 11, refusing exemption in execution on judgment.</p> <p>Rule to show cause why the sheriff should not pay to John E. Gouchenauer $300, which he claimed to be due him under the exemption act of April 9, 1849. Before Brubaker, J.</p> <p>It appears from the record that John E. Gouchenauer made an assignment for the benefit of creditors. At the time the assignee made his appraisement, Gouchenauer said to him that he wanted none of the personal property and he then made no claim to have any real estate appraised to him under the deed of assignment, but he subsequently said to the assignee that he wanted $300 out of the real estate.</p> <p>The appraisement of the assignor’s property amounted to $779.25 of whieh $537.50 was real estate, and $241.75 personal property. The assignee made public sale of the' personal property, and sold the same for $207.67, of whieh amount John E. Gouchenauer became purchaser to the amount of $68.60, with the understanding, that when the assignor received his $300 exemption he would pay the assignee for the goods purchased by him, the assignor, at the public sale. No other or further claim was ever made by the assignor from the assignee. The real estate was subsequently sold by plaintiff under a judgment antedating the assignment, and the proceeds amounted to about $278. After the vend. ex. had issued, and some two years from the time of the assignment, the defendant claimed from the sheriff the $300 debtor’s exemption.</p> <p>The court discharged the rule. Defendant appealed.</p> <p>Error assigned was discharging rule.</p>

<p>Taxation — Statutes—General and local laws construed and sustained.</p> <p>The local law of April 13, 1868, P. L. 1017, providing for the collection of taxes in the comity of Bedford recognized and retained by the Act of June 21, 1885, P. L. 187, is not repealed by the Act of June 6,1893, P. L. 333, entitled “An act to authorize the election of tax collectors for the term of three years in the several boroughs of this commonwealth.”</p> <p>There is no inconsistency between these local and general acts which can be enforced at the same time without in any material way interfering with each other.</p>

<p>Appeal, No. 84, April T., 1898, by defendant, from judgment of Q. S. Allegheny Co., Dec. Sess., 1896, No. 446, on verdict of guilty.</p> <p>Indictment for abortion. Before Slagle, J.</p> <p>The facts sufficiently appear from the charge of the court below:</p> <p>The defendant, G. Augustus Page, is charged in this indictment under four counts. These counts are drawn under an act of assembly in relation to the crime of abortion, which, at cofnmon law, was not regarded as of so very great importance, but which, in their wisdom, the legislature saw proper to specially provide for. The act of assembly is as follows:</p> <p>“ If any person shall unlawfully administer to any woman, pregnant or quick with child, or supposed and believed to be pregnant or quick with child, any drug, poison or other substance whatsoever, or shall unlawfully use any instrument or other means whatsoever, with the intent to procure the miscarriage of such woman, and such woman, or any child with which she may be quick, shall die in consequence of either of said unlawful acts, the person so offending shall be guilty of felony.”</p> <p>The second section is: “ If any person, with intent to procure the miscarriage of any woman, shall unlawfully administer to her any poison, drug or substance whatsoever, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, such person shall be guilty of felony.”</p> <p>The difference between those sections being, that in the first, in order to make out the offense, it must follow that the child or woman died; in the second, merely the administering of poisons or the use of instruments, with intent to produce abortion, makes out the offense, whether or not the child or the mother died.</p> <p>In this case, as I say, there are four counts. The first count is drawn under the 88th section of the act of March, 1860, which charges the administering of poisons or other substances of that sort, merely with the intent to produce abortion. There is no evidence in this case that medicines were administered by the defendant with any such purpose, and therefore there can be no conviction under that count.</p> <p>The third count charges the administering of medicines, and alleges that in consequence of that the mother, Mrs. Martha M. Page, died. There is no evidence, as I say, of the administering of medicine, and therefore there can be no conviction under that count.</p> <p>The second count alleges that an instrument was used,— “ that the defendant did use a certain instrument and other means in and upon the body of one Martha M. Page, she, the said Martha M. Page, being then and there pregnant and quick with child, or supposed and believed to be pregnant or quick with child, with the intent to procure the miscarriage of the said Martha M. Page, contrary to the act of the general assembly.” Now that count of the indictment is made out by the simple proof of the fact that an instrument was used, without regard to its consequences; and if you find that the defendant used an instrument upon his wife for the purpose of producing an abortion, then he would be guilty under that count of the indictment.</p> <p>The fourth count of the indictment alleges that an instrument or other means was used “ with the intent to procure the miscarriage of the said Martha M. Page, and in consequence of the said unlawful act the said Martha M. Page did then an'd there die; contrary to the form of the act of the general assembly ; ” so that under that count it is necessary that you should be satisfied from the evidence that Mrs. Page died in consequence of the use of this instrument.</p> <p>The only two counts of the indictment which you are to consider, therefore, are the second and fourth, and as the fourth includes the second — because in the fourth count of the indictment it is necessary that you should be satisfied that the defendant used the instrument and that that resulted in the death of Mrs. Page, of course the second count is included in it — and if you find, then, that he used the instrument and that Mrs. Page died from the effects of that attempted abortion, then you should find him guilty of the fourth count and no more, because the fourth includes the second.</p> <p>Now, keeping these things in mind, it is necessary for me to instruct you as to the law bearing -upon the various questions raised by the testimony. The counsel for defendant have asked me to instruct you upon certain questions of law, and before making any general remarks I will answer the points submitted to me.</p> <p>Here the court read and answered the defendant’s points and, inter alia, point IV.</p> <p>IV. [In considering the testimony relating to the defendant’s alleged admission to Dr. Pettit that he had used an instrument upon the person of his wife, Martha M. Page, the jury should bear in mind the infirmity of human recollection as to the exact words that were used, the interest, if any, which Dr. Pettit has in shielding himself from blame, the fact that on one of the two occasions of said alleged admissions Dr. Pettit himself admits that he is uncertain whether defendant said “ that is what I used ” or “ that is what was used,” the testimony of Edward A. Woods that Dr. Pettit told him he was not certain whether defendant said he or she had used the instrument, and all other facts tending to show that Dr. Pettit may be mistaken in repeating the language used by defendant more than a year ago, including the positive denial of the defendant that he ever used, or told Dr. Pettit that he used, an instrument upon his wife; and, unless upon consideration of all the facts, the jury are convinced beyond a reasonable doubt that the defendant did' certainly admit that he used the instrument upon his wife, and actually did use it, or assist in its use, their verdict should be not guilty. Answer: This is refused. I do not recall any evidence showing any interest of Dr. Pettit in this case. It is not alleged that he produced the abortion. The defendant said that the doctor had agreed to remove the foetus in case on examination he found it dead. As to any alleged malpractice by him, it would make no difference by whom the instrument had been used. The matters mentioned in this point should be considered in connection with the other evidence in the case, to determine whether or not the defendant did say to Dr. Pettit what he testified the defendant had said; but the guilt of the defendant does not depend on that fact alone; there is other evidence in the case which should be considered.] [1]</p> <p>Now, gentlemen, as you will observe, taking the fourth count of the indictment, which includes, as I have said, the second,' there are a number of things that are necessary to constitute this offense. In the first place, the woman must be pregnant or quick with child, or supposed and believed to be pregnant or quick with child. An instrument, or other means of similar character — it does not describe any particular instrument— some mechanical means — must have been used in order to produce an abortion, that is, with the intent to procure the “miscarriage ” of such woman, as it is called in this act, and that word is probably used in the act because abortion at common law had a peculiar signification relating to the time at which it was attempted, that is, in relation to the length of time that the child had been conceived, and under our law whenever conception has taken place and an attempt is made to produce a miscarriage it is an offense under this law, so that the time at which conception had commenced is not material here, provided it was well defined. And, further, you must find under this indictment that Mrs. Page died from the effects of that operation. It is not alleged in the count that the child died from that, but it is alleged that Mrs. Page died from the effects of that operation, and therefore you must find that fact, and it is not sufficient that you should find simply that the child died.</p> <p>A number of these facts are undisputed. The testimony is undisputed of all the witnesses who have any knowledge of the • matter that Mrs. Page was pregnant at the time this act Avas committed. The testimony of the defendant is that she was in the course of pregnancy for about two months and a half; the doctors testified that from the appearances it was from three to four months. The foetus was from three to four months old; but there is no question about the fact that she was at that time pregnant. There is no dispute about the fact that an instrument was used. The defendant himself testifies to that, so that that is beyond anjr question or dispute, that there was an instrument used for the purpose of producing this abortion. The testimony of the physicians indicates it. The testimony of the defendant himself is that his wife had used an instrument, and that she had told him what instrument was used, and he afterwards produced it, so that there is no question as to the fact that there Avas an attempt to produce an abortion by the use of an instrument, and that would make an offense under the second count of the indictment — I do not mean that it would make him guilty of the offense, but would constitute an offense under the act of assembly — but in order to convict under the fourth court of the indictment, you would have to find the further fact that this resulted in the death of Mrs. Page. I do not know whether there is, under the testimony, any great question as to that fact. The testimony of the doctors as to her condition at the time she was taken to the hospital — not only the testimony of Dr. Pettit, but that of the other doctors — would indicate a very bad condition. Dr. Pettit says that when he got there on Thursday he discovered that she had been bleeding very profusely, and there were clots of blood, and that after making an examination he concluded that to save her life it was necessary that this foetus should be removed ; that he had not been certain on the first examination on the Saturday and Monday preceding, that the child was dead; that upon this examination on Thursday he withdrew one of the limbs out far enough for him to know that the child was dead and he then proceeded to remove it, and that it was necessary to do that in order to save her life, in that condition.</p> <p>Now, if you are satisfied from the. testimony in the case that Mrs. Page would have died, then, if she died under an operation, which was necessary to save her life, still the death must be related back to the original injury, and if you are satisfied from, all the circumstances that the original injury would have caused her death — satisfied of all these facts, of course, beyond a reasonable doubt — that the original injury produced by the use of these instruments would have caused her death, then the fact that she died under an operation or in consequence of an operation which was necessary to save her life would not change the effect of that condition.</p> <p>Then that would constitute the offense; the woman was pregnant, an instrument was used, and Mrs. Page died; but in order to convict, you must further find, beyond a reasonable doubt, that the instrument was used by the defendant in this case, or, as has been suggested in the point submitted and which I have answered in the affirmative, that he assisted in doing it, because if he was present, assisting in its use by any person else — his wife or any other person — he would be equally guilty, if he was there assisting in the operation, though he didn’t use the instrument himself; but under the testimony in the case, it seems to me, if there is any doubt about the fact of his using •it at all, there would be the same doubt as to his assistance, because there is no evidence as to any circumstances of that sort. The testimony on the part of the commonwealth goes to show that he did it himself, and if he did not do it himself the testimony would not justify any inference that he assisted in it, it seems to mehowever, that is all for you.</p> <p>[Now you have heard the testimony discussed fully by counsel and it is not necessary for me to repeat it. You have heard the testimony of Dr. Pettit as to what he said at the time the •defendant first spoke to him in reference to this matter, and you have heard the positiveness with which he asserts that at that time the defendant said, “ I used this instrument,” and you have heard also the reason why he says he is certain of the language used at that time, because of the subsequent conversation in relation to the matter. Of course the change of one word would make a great difference, and if the circumstances were not such as to justify you in believing that Dr. Pettit remembered distinctly the language which was used that might raise a reasonable doubt in your minds ; but you will take his recollection in connection with all the other testimony in the case and say whether or not you are satisfied that Dr. Pettit now testifies to what actually occurred; and, in connection with that, you have-the testimony of Mr. Kress as to what was said to him, and it seems to me that that is in corroboration of what was said to Dr. Pettit, or what he alleges was said to him. Mr. Page denies that he said to either of these men what they testify that he did say to him — denies that he used the word “I,” but says that he used the word “she; ” but you have the testimony of those witnesses, and you will remember what they said and about all the circumstances attending the conversations, and if you are satisfied that they are telling the truth about it, then you have the admission of the defendant that he was the party who committed this offense. Against that you have his statement that he said nothing of the sort, and you will take into consideration, also, all the circumstances attending the transaction, in order to determine on which side the truth lies.</p> <p>As I said, without going over all the testimony in the case upon this point, you must be satisfied after a full and fair consid oration of all the evidence — satisfied fully and beyond a reasonable doubt, not a mere possibility of doubt, but some reasonable difficulty in coming to and maintaining your conclusion as to his guilt. If you have such a doubt you will find him not guilty. If you are satisfied beyond such a doubt that he committed this offense, then you would find him guilty on the fourth count, if you find that the death of Mrs. Page was the consequence of this act; or, if you have any doubt about that, you will find him guilty on the second count of the indictment — of an attempt.] [2]</p> <p>To which charge of the court counsel for defendant except. [8]</p> <p>Verdiet of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned were (1) refusing to affirm defendant’s fourth point and in the answer thereto, reciting same. (2) To a portion of the judge’s charge, reciting same. (3) The charge of the court as a whole is unfavorable to appellant, and inadequate in its presentation of the case to the jury. (4) In entering judgment upon the verdict founded upon the meager and uncertain evidence presented by the commonwealth in this case.</p>

<p>Practice, Superior Court — Appeals—Defective assignment.</p> <p>An assignment of error is defective under Rule 15 of the Superior Court which assigns for error the whole charge without further specification.</p> <p>The purpose of an assignment of error is to place upon the records of the appellate court the specific ground of complaint on the part of the appellant.</p> <p>Appeals — Beview—Theory of trial below followed.</p> <p>A case will be treated in the appellate court as it was tried below. It must be regarded as the trial judge was led to view it from the pleadings, the evidence and the contentions of counsel. The appellate court ought not to consider whether it might or should have been tried on some theory that would have led to a different result; when no radical error is manifest the appellate court will adhere to the theory of the case which the parties adopted, and in view of which the court instructed the jury.</p> <p>Appeals — Beview—Appellant may not shift theory of the case.</p> <p>Where the verdict of the jury established the liability of the defendants upon the theory of the case by which they chose to have it tested, they cannot be permitted on appeal to change their ground and allege that the ease should have been treated in accordance with a view not presented on the trial.</p> <p>Attachment under act of 1869 — •Bond—Action—Damages.</p> <p>An action may be maintained on a bond given in an attachment proceeding under the Act of March 17, 1869, P. L. 8 as amended by the Act of May 24, 1887, P. L. 197, where there has been a failure to prosecute the action with effect or where the attachment has been quashed, but recovery in such action is limited to legal costs, fees and damages sustained by reason of the attachment.</p>

<p>Appeals — Refusal of judgment — Practice on review.</p> <p>The appellate court will not interfere, where rules for judgment have been refused, in doubtful and uncertain cases, but will do so where the case is clear and free from doubt.</p> <p>Practice, O. P. — Stifficiency of affidavit — Landlord and tenant — Sheriff's sale of leased property.</p> <p>The plaintiff’s statement showing liability for rents accruing, subsequent to sheriff’s sale, by tenant to sheriff’s vendee, who was also assignee of the lease from the former owner, an affidavit is insufficient which admits notice of plaintiff’s claim for rent, a payment of rent after such notice and a notice of intended discontinuance after expiration of the current year, and which attempts to limit and modify the effects of such acts by stating reasons which influenced such conduct at the time. Intentions in such cases are not the subject of inquiry. The court can only inquire into the legal effect of admitted facts.</p>

<p>Appeals — Practice, S. G. — Discretion of court — Opening judgment.</p> <p>An application to open judgment is addressed to the discretion of the court which has not been taken away by the Act of May 20,1891, P. L. 101.</p> <p>. It is not an abuse of discretion for the court to refuse to open a judgment entered on a verdict after a regular trial, where defendant’s counsel did not notify him of the time of the trial, and where the defendant had actual notice that the case would likely be placed on the trial list at the term it was tried, but gave no personal attention to the matter.</p>

<p>Contract — Time is of essence of a contract to deliver chattels.</p> <p>In mercantile transactions, such as the sale of goods, time is generally-held to be of the essence of the contract; and where one of the terms of the contract provides a date for the shipment or delivery, shipment or delivery at the time fixed will usually be regarded as a condition precedent, on the failure to observe such date the other party may repudiate the entire contract.</p> <p>Contract — Construction—Written and printed parts.</p> <p>When the written and printed parts of a contract cannot be reconciled, the former is presumed to have been separately and particularly considered by the parties, and to express their exact- agreement on the subject.</p>

Appeal, No. 23, Jan. T., 1898, by defendants, from judgment of Q. S. Luzerne Go., Nov. Sess., 1896, No. 39, on verdict of guilty. Indictment for conspiracy. Before Bennett, J. It appears from the record that the indictment charged the defendants, Spencer and Aubrey, with having conspired wilfully and maliciously to cheat the firm of Koons & Company out of certain spikes, pipes, etc. The facts sufficiently appear in the opinion of the court.

Appeal, No. 156, Nov. T., 1896, by defendants, from judgment of C. P. Lancaster Co., Feb. T., 1896, Nc. 47, for want of a sufficient affidavit of defense. Assumpsit on constable’s bond. Before Brubaker, J. It appears from the record that this suit was brought on bond of Yeisley, one of the defendants, to recover for losses incident to his failure to execute a writ.

<p>Appeal, No. 123, Oct. T., 1897, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1895*. No. 52, making absolute rule to set off judgment held by defendant against plaintiff.</p> <p>Rule to set off judgment held by defendant against plaintiff against a judgment held by plaintiff against defendant. The' rule was made absolute by the court below. Plaintiff appealed.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Error assigned was making absolute the rule of defendant permitting him to set off judgment which he obtained' by purchase seven months after the plaintiff had assigned his- interest in suit against defendant.</p>

<p>Partition — Distribution of proceeds — Lien creditors of heir — Trustee's responsibility.</p> <p>Whore the orphans’ court in distribution of the proceeds of the sale of land by a trustee in partition proceedings, awards to an heir only what would remain of her share of the fund after payment of the record liens against her interest the trustee having given bond to appropriate the proceeds of such real estate according to the trust and decree of the court, the trustee cannot ignore a lien creditor of the heir and settle with the latter who has no authority to release the trustee from his duty to pay such creditor under the decree of the court.</p> <p>Partition — Judicial sale — Divestiture of liens.</p> <p>Where proceedings in partition result in a judicial sale of the land, the lien which had been created by one of the tenants is divested from the land but continues on the money raised by the sale.</p> <p>Partition — Sale by trustee — Duty of trustee to take searches before distribution.</p> <p>A trustee who sold real estate under a decree in partition, and settled with one of the heirs without taking out searches for liens of record, is liable to a mortgagee whose mortgage was discharged by the sale.</p>

<p>Contract — Lex loci — Conflict of laws — Constitutional law.</p> <p>If a citizen of Pennsylvania, by a contract validly made outside of its boundaries, incurs a liability, no law of this state, can under the constitution of the United States, prevent his fulfilling that obligation, even by an act done within the state.</p> <p>Insurance — Foreign companies■ — Lex loci — Prohibitive Pennsylvania statutes.</p> <p>The issuance and delivery of Insurance policies in Massachusetts makes the contract a Massachusetts contract to be governed by the laws of that state free from the taint of illegality by reason of the existence of penal or prohibitive legislation in Pennsylvania. Com. y. Biddle, 139 Pa. 605, followed.</p> <p>Policies for property in Pennsylvania were issued in Massachusetts. These policies were canceled and the insured received a return premium. Held, in a suit to recover assessments imposed for losses, etc., incurred by plaintiff company while the policies were in force, that an affidavit was insufficient which set up as a defense that “ the plaintiff being a foreign company had not prior to placing the insurance complied with the acts of assembly of Pennsylvania regulating the way in which foreign insurance companies should undertake the insurance of property in Pennsylvania.”</p>

<p>Easement — Way—Reservation of moiety of spring — Access thereto.</p> <p>A reservation in a conveyance of one half a spring and a moiety of the spot of ground whereupon it arises implies access to the spring in some manner for the purpose of taking water; but with an existing channel natural or artificial conducting the water, the parties must, in the absence of any provision for a different mode of conveyance, be understood as contemplating the use of such channel for that purpose. No implication arises that will warrant the grantor or his successors in title, in laying a pipe over grantee’s lands.</p>

<p>Appeal, No. 170, Oct. T., 1897, by-plaintiff, from judgment of C. P. No. 4, Pliila. Co., June T., 1897, No. 1325, in favor of defendant on case stated.</p> <p>Case stated. Before Arnold, P. J.</p> <p>1. The plaintiff, a corporation duly organized under the laws of the state of Pennsylvania, engaged in the business of selling ice, wholesale and retail, in the city of Philadelphia and vicinity, at the special instance and request of the register of wills for the county of Philadelphia, furnished ice for use in the offices of the register of wills and in the rooms of the orphans’ court for said county from January 1, 1895, to June 30, 1897.</p> <p>2. The said register of wills is a county officer of the county of Philadelphia, and it was and is his duty, under an act of assembly of the state of Pennsylvania, to provide all things necessary for the proper furnishing of the offices of the register of! wills and the rooms of the orphans’ court of said county.</p> <p>3. The value of the ice so furnished by plaintiff for this purpose during this period was 1573.36.</p> <p>4. Said ice so furnished and services rendered by the said plaintiff were in all respects satisfactory to the said register of wills, and bills for the same were approved but were not paid by him as presented from time to time because no specific appropriation had been made for the same by the councils of the city of Philadelphia, and the general appropriation made by the said council to defray the incidental expenses of the offices of the register of wills had been exhausted.</p> <p>5. It is agreed between the plaintiff and the .defendant that if the court be of opinion, upon the above statement of facts, that the plaintiff is entitled to judgment against the defendant, judgment shall be entered in its favor for 1573.86, with interest thereon from June 30, 1897.</p> <p>Either party reserving the right of appeal.</p> <p>Judgment was entered on ease stated in favor of defendant in the following opinion by Arnold, P. J.</p> <p>Payment of this claim by judgment of court is forbidden by the Act of April 21, 1858, sec. 5, P. L. 385, which provides that no debt or contract shall be binding on the city of Philadelphia, unless authorized by law or ordinance and an appropriation sufficient to pay the same has been previously made by councils.</p> <p>In this case an appropriation was made to defray incidental expenses, but it has been exhausted without paying the plaintiff. The claim is now made for the years 1895 and 1896 and half of 1897. While ice may be considered a necessity, yet we do not consider it among the “ things necessary for the proper furnishing ” of a public office, such as may be paid for by mandamus. It has always been paid for out of an appropriation for incidental expenses made by the city councils, who may if they see fit, ratify the plaintiff’s claim and order the payment thereof. Judg ment for defendant.</p> <p>Error assigned was entering judgment in favor of the defendant and in not entering judgment in favor of plaintiff on case stated.</p>

<p>Contract — Rescission for fraud — Evidence—Province of the court.</p> <p>The trial judge is justified in excluding from the jury the question of alleged fraud when the testimony of the witness called to corroborate the defendant was vague and uncertain and where all the testimony taken together failed to answer the test of being clear, precise and indubitable.</p> <p>Contract — Rescission for fraud — Requisite proof.</p> <p>In order to rescind a contract on the ground of fraudulent representations by the seller, it must be established by clear and decisive proof that the alleged representation was made in regard to a material fact; that it was false; that the maker knew that it was not true; that ho made it in order to have it acted on by the other party to his damage and in ignorance of its falsity and with a reasonable belief that it was true.</p> <p>Province of court and jury — Question of reasonable time.</p> <p>The question of what is reasonable time or undue delay, when the facts are undisputed, is a question of law to be determined by the court.</p>

<p>Appeal, No. 156, Oct. T., 1897, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1897, No. 686, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The plaintiff claimed on a contract for advertising in street cars the sum of $112.50. The court-below discharged the rule for judgment for want of a sufficient affidavit of defense, filing no opinion. Defendant appealed.</p> <p>Error assigned was to the order of the court discharging the rule.</p>

<p>Appeal, No. 38, Oct. T., 1897, by defendant, from judgment of G. P. No. 4, Phila. Go., June T., 1896, No. 565, on verdict for plaintiff.</p> <p>Trespass quare clausum fregit to recover damages for obstruction to plaintiff’s light and air by nailing up her windows. Before Ahdenreid, J.</p> <p>The facts sufficiently appear in the opinion of tbe court.</p> <p>Verdict and judgment for plaintiff for $183.33. Plaintiff appealed.</p> <p>Errors assigned were (1-3) In admitting questions propounded' to plaintiff’s witnesses as to conversations which had taken place, between them and the defendant. (4) In overruling the following question propounded to Joseph Thorp: “ Q. Assuming that the fence line as you have put it on the plan was the fence as it has been in existence as testified to by Mr. Kemper, and running that fence out upon the straight line as Mr. Kemper testified that the fence did run to Leverington avenue, state to' the court and jury whether or not that would show that the plaintiff’s property was built over Mrs. Kemper’s property.” (5-8) In charging the jury as follows : “ As Mrs. Omensetter was, undoubtedly, in possession of that house and every part of it, including not only its interior, but also the wall in which these windows were opened, it would appear that her possession has been invaded, and that she is therefore entitled to recover damages at your hands in this action, unless the defendant can explain and justify his acts. ... As the plaintiff is in the possession of the property No. 518 Leverington avenue you are bound to start out with the presumption that she is lawfully in possession of it, and that her title is co-extensive with her possession. It’lies on the defendant to show that that house is not within the plaintiff’s own lot, and that the division line is not to the northeast of the wall in which the windows and doors open. .... The only question of doubt in Mr. Thorp’s determination of the location of the southwest line of the Kemper lot is as to whether he carefully measured the distance of one hundred and ninety-six feet one inch from the corner of Ridge avenue. I do not think that there is chance for a mistake in this calculation at any other point. . . . The measurements made for the defendant were made by a baker, attended by a tinsmith, under the supervision of a lawyer. It does not appear that any of these gentlemen ever made a land measurement before.” (9) In affirming plaintiff’s second point, which point is as follows: “ If the jury believe from the evidence that the defendant gave a license to the plaintiff to erect the windows in question and in consequence of which license plaintiff went to an expense by building her house upon a different plan from that which she Avould have adopted if such license had not been given, then the license was irrevocable, and in no aspect has the defendant a right to nail the obstructions to plaintiff’s window.” (10) In refusing to charge the jury as requested for the defendant as follows : “It is the uncontradicted testimony of the defendant that the division line between the property of plaintiff and Catharine Kemper for upwards of twenty-one years next preceding the erection of plaintiff’s house was marked by a straight fence as shown on the plan of survey which jmu have in evidence. I instruct you if you find the said fence to have existed as testified to, and that the plaintiff’s house is upon or over the line as so established, then your verdict must be for the defendant.” (11) The damages found by the jury were excessive.</p>

<p>Appeal, No. 160, Oct. T., 1897, by-defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1895, No. 207, on verdict for plaintiff.</p> <p>Trespass by parent to recover damages for the death of bis son, who was struck by car of the defendant company. Before SavtdGe, P. J.</p> <p>The facts sufficiently appear in the opinion of tbe court.</p> <p>Verdict and judgment for plaintiff for 1565.50. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Liquor law — Statutory period for aeeeptanee of license cannot be extended-.-.</p> <p>An applicant lor a liquor license has, under the statute, fifteen days within which to accept or refuse his license when allowed. This time, being definitely fixed by the statute cannot be extended by the court.</p> <p>Liquor law — Appeals—-Standing of remonstrant to appeal.</p> <p>The right of appeal belongs to every person in a legal sense aggrieved and whoever stands in a cause as the legal representative of interests which may be injuriously affected by the decree made in a license case is-, within the meaning of the law, aggrieved. One who is properly before the lower court as a remonstrant and who is heard by that tribunal, is ft. proper appellant.</p>

<p>Contract — Statute of frauds — Original undertaking.</p> <p>Where the paramount purpose moving a promisor in' making a promise was to subserve his own interests, it becomes an original undertaking and is not within the statute of frauds,' although the promise incidentally includes the payment of the debt of another.</p> <p>Where plaintiff and defendant were creditors of B., and plaintiff -bid in certain goods at a sheriff’s sale of B.’s business which was purchased by defendant, a promise by defendant that in consideration of a transfer of plaintiff’s bid that he, the defendant, would pay B.’s debt- to plaintiff, because he could not run the place without the goods purchased by plaintiff, such promise although in form an assumption of B.’s debt is what is termed an original undertaking and is not within the statute.</p>

<p>Appeal, No. 35, Oct. T., 1897, by-defendant, from judgment of C. P. Lancaster Co., Sept. T., 1893, No. 3, on verdict for plaintiff.</p> <p>Trespass sur libel. Before Livingston, P. J.</p> <p>The facts sufficiently .appear in the opinion of the court.</p> <p>Verdict for plaintiff for $650. Defendant appealed.</p> <p>Errors assigned were, inter alia (1, 2) In admitting, under objection, the following questions to witness for plaintiff, for the purpose of showing the amount of damages involved: “ Q. What was the circulation of the Morning News at that time — 15th of August, 1893 ? A. About 3,500. Q. Did it or not circulate generally in this city and county? A. It did.” (3) In overruling the following question by defendant in cross-examination of the plaintiff: “Defendant offers.to ask the witness if there was not a prosecution against Howard Lehman for malicious mischief and cruelty to animals, and whether Mr. Collins, John Cassidy and Behny Ross were not his bail for his appearance, and whether or not they hadn’t taken out a bailpiece for him by Mr. Collins.” (5-10) The substance of these assignments were errors assigned in disallowing, upon objection by the plaintiff, offers of defendant to prove by the records of the quarter sessions that one Lehman was charged -with malicious mischief and cruelty to animals, and that plaintiff and others were sureties on the recognizance given by him before the magistrate to appear at quarter sessions. That a bailpiece was taken out in this case by plaintiff for the body of said Lehman; to be followed by evidence that the reporter of the News had understood from information received from B. F. Davis, counsel for plaintiff, that this bailpiece had been taken out for the arrest of said Collins and in pursuance of that information so obtained, the reporter caused a local item, which is the subject of this suit, to be published in the Morning News. (12) In answer to plaintiff’s second point, as follows: “2. The uncontradicted evidence in this case is that the publication made was untrue. It is not privileged. It is libelous per se. It is actionable, and, therefore, it is presumed to be malicious. Answer: That is, malice in law. It is not shown. It is denied there was any actual malice on the part of the defendant here in this publication, and no proof.” (14) In answer to plaintiff’s fourth point: “ 4. Where the words published are in themselves actionable, libelous and untrue, evidence need not be given of malice. The publication is presumed to be malicious. Answer : That is what I have stated to you in the general charge.” (15) In answer to plaintiff’s fifth point: “5. The publisher of a newspaper and his reporters are hound to use extreme diligence to ascertain whether or not libelous matter which they publish is true, and when the publication and untruth of such matter are shown, they are required to prove extreme diligence to ascertain its truth before they are exempted from damages for such publication. Answer: We say that the publisher of a newspaper and his reporters are bound to use due care, reasonable care and diligence to ascertain whether the matter is libelous or not, libelous or true. And when the publication and untruth of such matter are shown, they are required to prove reasonable diligence and care to ascertain its truthfulness before they can be exempted from damages for such publication.” (16) In answer to plaintiff’s sixth point: “ 6. Under the law and the evidence the verdict must be for the plaintiff for such amount as will compensate him for the damages he has suffered; and for malice or reckless negligence if proved, punitive damages may be awarded. Answer: That may be affirmed. That would be the correct method of getting at it, provided he has not used proper care and diligence.” (18) In charging the jury as follows: “ And where there are several charges, it is said in Murr v. Book, several distinct charges, some privileged and some not privileged, those that are not privileged are not justified by the charges which are privileged. Where an article is libelous in itself, is not privileged in its character, publishers failing to establish, its truthfulness are liable for damages, and if the communication contains expressions which exceed the limits of privilege, such expressions are evidence of malice, and the case must be given to the jury. Wherever one publishes words which injure the reputation of another he must be taken to have intended the consequence naturally resulting therefrom. Malice is an essential element, but whenever a wilful, unprivileged publication is made embodying the other qualities of libel, legal malice may be inferred. Falsehoods are never privileged, and reasonable cause to believe the libelous charge to be true is no defense for its publication. The defendant in this case admits the publication was untrue, and states the fact that the next morning, as was read to you from their next morning’s paper, they attempted to correct the error they had made the day previous without any request on the part of Mr. Collins. This is not in any sense a privileged communication. It is not a report of a judicial proceeding. There were no proceedings against Mr. Collins in this court, and none shown to be. There was no suit in court against him. Fie had not been held to answer to the crimes stated, malicious mischief and cruelty to animals. He had not given bail for his appearance to answer such charges. He had not been arrested on a bail-piece, and was not then put to jail, was not in jail. So that none of the charges against him in this paper were true. That is admitted by the attempt to correct the next day after the}r saw they were not true.”</p>

<p>Appeal, No. 121, Oct. T., 1897, by plaintiff, from judgment of C. P. Bucks Co., E'eb. T., 1893, No. 18, in favor of plaintiff as to a portion of his claim but dismissing plaintiff’s exceptions to the report of the referee rejecting a portion of plaintiff’s claim.</p> <p>Foreign attachment. Before Yerkes, P. J.</p> <p>It appears from the record that this was an action brought by the plaintiff to recover from defendant for professional services two separate sums, to wit: one of $250 and one of $750. The case was referred to J. Percy Keating, who found for the plaintiff as to the former sum and no exception having been filed judgment became final as to the $250. As to the claim for $750 the referee reported that the services had been rendered and that they were reasonably worth $750, but that the conditions under which this contingent fee was to become payable had not been fulfilled, hence he rejected the plaintiff’s claim for the $750.</p> <p>Other facts appear in the opinion of the court.</p> <p>Judgment forplaintiff for $250 with interest and costs. Plaintiff appealed.</p> <p>Errors assigned among others were (6) In dismissing plaintiff’s sixth exception to the referee’s supplemental report, which was as follows: “ That plaintiff excepts to that portion of the referee’s second conclusion of law, which reads as follows: ‘ The burden of proving that such lack of ownership was through defendant’s fault, and that the suit was definitely determined in consequence, likewise rests with the plaintiff and this he has not established.’ Because this finding is a mixed one of law and fact and is erroneous in law, and is not supported by the evidence in the cause.” (11) In making the order confirming the referee’s report.</p> <p>The other specifications of error related either wholly or partially to findings of fact, and in view of the opinion of the Supérior Court it is not necessary to s'et out same.</p>

<p> Province of court as to whether there is a question for the jury. </p> <p>It is true that there is in all eases at law a preliminary question for the court whether there is any evidence of the facts sought to be established that ought reasonably to satisfy the jury. If there is evidence from which the jury can properly find the question for the party on whom rests the burden of proof, it should be submitted. If not it should be withheld from the jury.</p> <p>Gontract— Presumption of payment— Question for jury.</p> <p>Where there is more than a scintilla of evidence in the case, from which a contract reasonably might be inferred, and a presumption of payment is not conclusive, and where if the testimony of the plaintiff is believed such contract is established and such presumption of payment is rebutted, the question of credibility is for the jury.</p> <p>Contract — Implied contract — Extra wages — Rebuttable presumption of payment.</p> <p>A contract to do extra work may be implied from a request to do such work, and the subsequent performance thereof and the presumption of payment arising from a delay in presentation of a claim for extra compensation, coupled with a regular receipting for regulation wages may'- be rebutted by evidence which is, if believed, clear, complete and convincing.</p>

<p> Province of court as to whether there is question for jury. </p> <p>There is in all cases at law a preliminary question for the court whether there is any evidence of the facts sought to be established that ought reasonably to satisfy the jury; if there is evidence from which the jury can properly find the question for the party on whom rests the burden of proof, it should be submitted. If not, it should be withheld from the jury.</p> <p>Evidence — Parol evidence to reform written contract — Quantity and quality.</p> <p>To reform or contradict a written contract the evidence of fraud or mistake must be sufficient to move the conscience of a chancellor to reform the instrument; that is as to quantity, there must be the testimony of two witnesses or one witness with corroborating circumstances equivalent to a second, and as to quality, the evidence must be clear, precise and indubitable.</p> <p>Province of court andjziry — Inadequate charge as ground for reversal.</p> <p>Where the trial judge fails to give the jury proper instructions as to the vital question in the case and either entirely overlooks or disregards the same, it is ground for reversal.</p>

<p>Appeal, No. 55, Oct. T., 1897, by plaintiffs, from judgment of C. P. Montgomery Co., Dec. T., 1894, No. 102, refusing judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit for goods sold and delivered. Before Swartz, P. J.</p> <p>The plaintiffs, by a written agreement in the form of a lease, sold to defendant a symphony organ and from time to time sold to the defendant certain rolls of music for use in said organ. The defendant having become in arrears and the terms of the alleged lease having fully expired, plaintiffs demanded a settlement of the arrearages of the alleged rental, which defendant could not make. During the pendency of negotiations the organ and music were returned, and the plaintiffs brought suit to recover the alleged arrearages of rental.</p> <p>Defendant filed an affidavit of defense as follows :</p> <p>E. M. Yorlte, defendant above named, being duly sworn according to law, deposes and saith:</p> <p>That she has a full and complete 'defense against the whole of the claim on which suit has been brought against her in the above case, of the following nature, to wit:</p> <p>That on or about March 31, 1891, said plaintiffs sold to her the certain organ referred to in plaintiffs’ claim, conditionally upon her payment therefor of the sum of four hundred and seventy-five dollars ($475), in monthly instalments on said organ.</p> <p>That said defendant paid between the 1st day of May, and the 28th day of January, 1893, on account of said monthly instalments the sum of one hundred and seventy-five dollars ($175) on said organ, and finding herself unable to pay the balance of said purchase money, surrendered and delivered said organ to said plaintiffs on or about July 31,1893, and plaintiffs accepted the same; and the said defendant is advised that by said acceptance she was forthwith released from further liability on said contract of purchase.</p> <p>And the said defendant further saith that at the time of the return to the said plaintiffs of said organ, the same was worth more money than the balance of the contract price for the purchase of the same after deducting therefrom the payments made by her, and that she verily believes and expects to be able to prove that said plaintiffs accepted said organ in full settlement and satisfaction of any claim they might have against her, by reason of her contract of purchase with them.</p> <p>All of which facts defendant believes to be true and expects to be able to prove on trial of above case.</p> <p>A former branch of this case was reported in 174 Pa. 349.</p> <p>The court below discharged the rule for judgment for want of a sufficient affidavit of defense. Plaintiffs appealed.</p> <p>Errors assigned among others were (1, 2) In discharging plaintiffs’ rule for judgment for want of a sufficient affidavit of defense, and not making the same absolute. (3) In holding as follows : “ The contract was in reality a conditional sale, but the law allows these contracts to be clothed in the dress of bailments, and sustains them as such in the interest of both the vendor and vendee.” (4) In holding that “the penalty for nonpayment is a redelivery of the organ to the vendor, and the repossession is a discharge of the penalty. The vendor could have proceeded against the defendant for the overdue instalments ; he saw fit, however, to take the other remedy; either was complete in itself, and the plaintiffs in default could collect the money or retake the organ. The two remedies were not cumulative; they could not adopt both unless it was plainly expressed in the contract, or a necessary implication from its terms.” (5) In holding that “ at the end of the term, if the payments were made, the organ was the property of the defendant, without the further payment of a penny.” (6) In holding that “ taking back the organ in default of payments was a rescission of the contract, and an end of any personal obligation on the part of the lessee.” (7) In holding that “ the defendant says she returned the organ because she was unable to make the payments. This was a privilege as well as a duty under her contract. In default of any monthly payment the said lessee agrees to redeliver said organ to the party of the first part. Even if this provision was made for the protection of the lessors, and they alone could take advantage of it, still, as they accepted the organ, as alleged in the affidavit, it was a redelivery under the terms of the lease, because of default in payments.”</p>

<p>Jurisdiction, J. P. — Reduction of municipal claim by remission of the penalty.</p> <p>A municipality having cause of action to recover a municipal assessment and penalty thereon, may throw off the penalty and thus bring the. claim within the jurisdiction of an alderman.</p> <p>Municipal law — Power to compromise claims.</p> <p>Municipal officers may compromise claims or remit them in whole or in part when delay and expense may be saved by so doing; they are responsible at the proper time and place for so doing, but a debtor being sued as such is not in position to call them to an account.</p>

<p>Appeal, No. 3, Oct. T., 1897, by Mayer Alsberg, from decree of C. P. No. 3, Phila. Co., Sept. T., 1896, No. 747, discharging rule to show cause why the sheriff should not pay the funds into court and for an issue.</p> <p>Rule to pay the fund arising from the sheriff’s sale on sundry executions into court, and for an issue to determine the material facts in dispute relating to the distribution of said fund.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below discharged the rule. Junior execution creditors appealed.</p> <p>JSrror assigned was in discharging the rule for the payment of the fund arising from the sheriff’s sale into court, and in refusing to frame issues to determine the material facts in dispute relating to the distribution of the fund.</p>

<p>Appeal, No. 66, Oct. T., 1897, by David Fitler, administrator of tlie estate of Samuel Fitler, deceased, from decree of O. C. Schuylkill Co., Jan. T., 1897, No. 1, in distribution.</p> <p>Exceptions to adjudication. Before Dunn, P. J.</p> <p>It appears from the record that the question arose at the audit of the first and final account of Sarah Fitler, administratrix of the estate of George Fitler, at which audit David Fitler, as the administrator of the estate of Samuel Fitler, claimed the balance of $478.51, shown by the accountant to be in her hands. The court, Dunn, P. J., allowed the accountant credit for $400 theretofore paid to the heirs of Samuel Fitler, deceased, in pursuance of a family settlement, and awarded the balance, only $76.01, to the administrator of Samuel Fitler.</p> <p>Other'facts appear in the opinion of the court.</p> <p>Errors assigned among others were (1) In dismissing the exception taken by the appellant to the adjudication, which was as follows: “ The court erred in not regarding the judgment obtained by David Fitler against Sarah Fitler as final and conclusive between the parties.” (2) In permitting accountant, under objection from appellant, to submit evidence in support of the following offer of accountant’s counsel: Mr. Gerber: “ I propose to prove by cross-examination of this witness, and by such other evidence as may be produced hereafter, that Sarah Fitler, the administratrix in this estate, paid to the heirs of Samuel Fitler, out of the personal funds in her hands, as administratrix of the estate of George Fitler, deceased, the sum of $400; that that sum was paid on account of the distributive shares of the four heirs of David Fitler (Samuel Fitler), and that said sum was paid prior to the recovery of judgment in this suit, and on a bond given by George Fitler to Samuel Fitler, which said bond was surrendered to the said Sarah Fitler at the time that the said $400 was paid or else an indorsement, made on it whatever it is. This for the purpose of not disputing the judgment in the court of common pleas, but for the purpose of showing partial distribution of the fund in the hands of Sarah Fitler, the administratrix and accountant, now before the court. It is also further proposed to prove by evidence to be produced hereafter, that tender of the whole amount of tire money arising from the personal property of George Fitler, was made to the said heirs of Samuel Fitler, and a release requested from them, and it was refused ; said tender being made either in the fall of 1890 or the fall of 1891.” (7) In dismissing the seventh exception taken by the appellant to the adjudication of the court below, which was as follows: “ The estate of Samuel Fitler, deceased, is not before the court and it is error to determine what the sons did or did not do at this time.” (9) In deciding as a matter of law that the $400 paid by the defendant to the four sons of Samuel Fitler, deceased, should be allowed to her in full, which decision is as follows: “We find as a matter of law that the accountant is liable for the sum of $478.51, less $400 paid to David, John, William and Franklin Fitler. That the balance of the fund for which she is liable, after deducting the fees of the clerk of the orphans’ court, must be paid to David Fitler, administrator of Samuel Fitler, deceased, on account of judgment March Term, 1895, No. 281.” (11) In finding as a fact that there were no creditors of the estate of Samuel Fitler, which finding of fact is as follows : “ Creditors of their deceased father (Samuel Fitler) could call upon them as executors, de son tort, but there are no creditors of Samuel Fitler to complain.”</p>

<p>Appeal, No. 85, April T., 1898, by defendant, from judgment of Q. S. Somerset Co., Feb. Sess., 1897, No. 14, on verdict of guilty.</p> <p>Indictment for procuring abortion. Before LongekeckER, P. J.</p> <p>It appears from tbe record, and evidence that the defendant, Dr. W. F. Mitchell, a practicing physician in Petersburg where he was known among the front ranks of his profession, was indicted on the above charge. The commonwealth produced evidence to show that a letter and telegram addressed to defendant had been sent by the deceased: that srrbsequently defendant called on the deceased at a hotel in Somerset; that deceased subsequently went to Pittsburg where she died in a hospital as the result of a criminal operation. Defendant was examined as to what took place at the interview at the hotel and the condition disclosed by his evidence appeared to be somewhat inconsistent with the testimonies of the authorities of the hospital.</p> <p>Defendant denied having received either the telegram or the letter offered in evidence or that he had ever seen or heard from the deceased prior to having been called in by her in a professional capacity at the one interview at the hotel in Somerset. He further denied performing any criminal operation.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned were (1) In admitting evidence on the following offer and objection, Miss Lizzie Thomas, assistant in tbe post office at Scott Haven, Pa., being on the stand: “Mr. Ruppel: Let us have an offer. Mr. Kooser: Counsel for the commonwealth propose to prove by the witness on the stand that a few days before the 30th of December, 1896, near about Christmas, Miss Sadie E. Beal banded to the witness a letter addressed to Dr. Mitchell, Addison, Pa.; that that letter was mailed on the next mail going east, in the direction of Addison from Scott Haven. This to be followed by proof that the defendant was the only Dr. Mitchell resident at Addison in December, 1896, and to be followed by further proof that on the 30th of December, 1896, Sadie E. Beal telegraphed Dr. Mitchell to Confluence, Pa., in these words: ‘Will be on 6 instead of 14, meet me,’ signing instead of her own name ‘ S. E. B. Andrews.’ Mr. Ruppel: This is objected to for the following reasons: 1. It is not shown that the Dr. Mitchell so addressed is the defendant, as there were no initials on the letter. 2. It is not proposed to be shown by proof on part of the commonwealth that Dr. Mitchell, the defendant, received such a.letter.. 3. The defendant denies having received such a letter. 4. The evidence is irrelevant and immaterial. The Court: With regard to the testimony embraced in the offer tending to make out a step in the commonwealth’s case, the evidence is proper for that purpose. We admit it and note an exception to the defense. The witness then testified as follows: ‘ Q. Did you know Sadie E. Beal? A. Yes, sir. Q. Who was with Mr. Mad ore in December last ? A. Yes, sir. Q. Do you have any distinct recollection of her handing you a letter in the latter part of December, and if so, state about when it was and to whom addressed and to what point addressed. A. Well, I remember she came there one morning and handed me two letters, one addressed to Dr. Mitchell, and it was Somerset county; I don’t remember the address, but think it was Addison, and I sent it on the 2 o’clock mail.” (2) In admitting evidence on the following offer and objection: “ Mr. Kooser: We offer in evidence all the exhibits identified .... the telegraphic message as written, signed S. E. B. Andrews, at Mc-Keesport and sent to Confluence, and the message received at Confluence, and the entries on the registers of the Hotel Vannear in Somerset and of the Hotel Federal in Allegheny. Mr. Ruppel: We object to the telegram at McKeesport written by S. E. B. Andrews, as we got no such telegram. The Court: These exhibits are admitted. The exhibit marked ‘F’ which is objected to, is also admitted upon the testimony of the two operators, the one at McKeesport and the one at Confluence; the testimony of the one being that she sent the message, the substance of the message, and that of the other being that she received it, and the two messages being the same in -substance and differing merely in the initials of the name attached, both being signed ‘ Andrews.’ We think they are sufficiently identified as the same message. Note an exception to the defendant as to the McKeesport telegram.” (3) In charging the jury as follows: “ It is charged that the defendant met Sadie E. Beal on the 30th of December, by pre-arrangement, for the purpose of a criminal operation, the theory being that he had been previously advised by letter and understood the purpose of the meeting; that the message of the morning merely apprised him of her coming by a particular train, and that the operation was in fact performed in the few moments he is shown to have been in her room at the hotel. The only evidence produced of any communication prior to the message received by him at Confluence on that morning, related to a letter which the young lady acting as assistant postmistress at Scott Haven testified Miss Beal had mailed at her office the latter part of December, and which was addressed to Dr. Mitchell, as she thought, at Addison, in this county. That letter she said she sent on the 2 o’clock east bound train that afternoon. With regard to a letter thus mailed and not shown to have been received, the law raises a mere presumption that the person addressed received it through the ordinary course of the mails. Against this presumption the defendant positively testifies that he never did l'eceive it. If you believe him it takes out of the case all the significance attached to the alleged previous communication. If not, it might be a potent circumstance in construing the conduct of the parties on the meeting upon the train after the message from McKeesport. The facts connected with the message delivered to the defendant at Confluence have been very fully discussed on both sides, so I need not refer to them more at length.” (4) In charging the jury as follows: “ After the girl died in the hospital and it was manifest an abortion was produced by the criminal act of some one, it seems suspicion was directed to this defendant, and he, to relieve himself of that suspicion, went to the district attorney’s office and related to those present his version of the visit he had made to the unfortunate woman’s room. It is around this statement that the most serious aspects of the case gather. Just what his statement of the affair then was, has become the subject of serious conflict in the testimony of those who were present. Four of them unite substantially in saying that he stated his examination of the woman’s parts developed the fact that a rupture of the sack containing the foetus had already occurred, that the waters had been draining from it and the discharge had in fact attained an offensive odor, while the os, or mouth of the womb, was already greatly dilated, as illustrated by the witnesses. These conditions, you will recall, are inconsistent with those described as found on her arrival at the hospital. It will probably puzzle you to understand how a woman with that degree of dilation of the neck of the womb, and nature struggling to expel the foetus, could travel the many miles covered by Sadie E. Beal’s journey that day. However, it is only the statement which Dr. Mitchell is alleged to have made that day in which that condition is described, and the controversy is between the witnesses as to the manner in which he did describe it. On the part of the defense two witnesses were called who were present and they say no such dilation was exhibited as is stated by the witnesses of the commonwealth, but as they illustrated it with their hands the neck or mouth of the womb was almost closed. And the witnesses are also in conflict as to what he said about the condition of the waters coming from the woman and the nature of the discharge.” (5) In refusing binding instructions for defendant. (6) In the answer to the third point of defendant, as follows: “ That all evidence in this case relating to the alleged mailing of a letter by Sadie E. Beal to the defendant must be entirely ignored by the jury in the consideration and determination of the ease. Answer: Refused.” (7) In overruling motion for a new trial.</p>

<p>Measure of damages — Claim properly bond, in sheriff's interpleader.</p> <p>The true measure of damages in a proceeding on a forthcoming claim property bond, given under sheriff’s interpleader proceedings, where, on determination of the issue against the claimant, the goods have not been returned and the bond lias thereby become forfeited, is the value of the goods, with interest, from the time the goods were to be forthcoming according to the tenor of the bond, and not from the date of the bond.</p>

<p>Appeal, No. 162, Nov. T., 1896, by defendant, from judgment of C. P. Berks Co., Sept T., 1891, No. 54, on verdict for plaintiff.</p> <p>Trespass for obstruction of water course. Before Ermen-TROHT, P. J.</p> <p>It appears from the evidence that the defendant and the plaintiff owned property on opposite sides of a public road. The defendant alleged that plaintiff diverted the water flowing from springs located on defendant’s land so as to change the point of discharge upon the land of the plaintiff. It was alleged by the plaintiff that the water was diverted from its natural course by a ditch dug by defendant’s son. The testimony was conflicting as to what exactly was done by the son and also as to whether it was done with knowledge and consent of defendant herself.</p> <p>Verdict and judgment for plaintiff for $1.00 and costs. Defendant appealed.</p> <p>Errors assigned among others were (1) In overruling defendant’s motion to strike out amended narr, as follows : “ Mr. Stevens : Before the jury is sworn in this case the defendant asks the court to strike out the amended narr.” Errors were assigned to the charge of the court commenting on the evidence, and especially, (5) In charging the jury as follows: “ There was some testimony on the part of the plaintiff that her first experience in not having the use of this water was after Orlando dug that ditch, or, rather, five years ago. This is the language: ‘ Q. Was the water pretty regular there prior to five years ago? A. Always; that is the way it was up to five years ago; there was always water there. Q. How is it now? A. Now it is gone ; there is none there.’ She says the ditch was dug about five years ago. She says that she went to the old lady and complained about this thing, and that the old lady declined to do anything to give her relief. That evidence is submitted to the jury to find whether or not the old lady, the defendant, ratified, approved, assented to the act of Orlando in digging that trench. If the jury find from that evidence that the act of Orlando was ratified, approved and assented to by her, then she would be responsible, otherwise not.” (7) Ip charging the jury as follows: “ I have tried to make myself understood in this case. I have called the attention of the jury to the important points in the case. I will sum them up again. Did this stream flow so that water was delivered upon the land of the plaintiff ? Did the defendant prevent that water from being delivered at the exact point at which it was accustomed to be delivered ? If the defendant diverted it, and she failed to deliver that water back at that point, the plaintiff can recover; otherwise not. As to the damages, $1.00 and costs will be just as effective as anything else. We always tell the jury in cases of this kind to find simply nominal damages.”</p>

<p>Railroads — Eminent domain — Practice—Res judieata — Construction of charter.</p> <p>The universal practice upon well settled law, under mode pointed out by the supplement to charter of the Pennsylvania Railroad Company, has been to assess all the damages done, or likely to be done, to the jDremises through which a railroad passes, including materials taken from adjoining land, and at a different time, although the bond, for appropriation of the strip for right of way, and the petition in the proceedings, set forth and are for damages for right of way only, and not for damages for materials so taken from adjoining lands.</p> <p>Under said supplement, a different cause of action does not exist for materials so taken, and a petition for the appointment oí a jury to assess such damages will, on motion, be stricken off, as res judieata.</p>

<p>Appeal, No. 35, March Term, 1897, by plaintiffs from judgment of C. P. Huntingdon Co., May T., 1897, No. 22, in favor of defendant on case stated.</p> <p>Case stated, raising the question of validity of assessment of county taxes for $46.34. Before Bailey, P. J.</p> <p>The case stated is as follows :</p> <p>That Henry B. Mytinger, of Morris township, died on or about the 21st day of November, A. D., 1884, leaving to survive him the above stated plaintiffs who are his heirs at law.</p> <p>That at the time of his death the said Henry B. Mytinger was seized of a certain farm or tract of land, situate in the township of Morris and known as the “Water Street Property,” containing 62 acres of improved land and 19 acres of unimproved or timber land.</p> <p>That among the improvements on said farm were a brick hotel building in which three of the said heirs now reside, a gristmill and mill tenant house, brick house and five other small tenant houses. That said farm was valued in the annual assessment for the year 1896 (a copy of which is hereto attached and marked exhibit “ A at the sum of $1,659, and a tax for county purposes of $23.22, being at the rate of 14 mills levied thereon by the county commissioners. A receipt for which tax is hereto attached and marked exhibit “B.” That the other above mentioned buildings and improvements located on said farm were valued and assessed in said assessment for the year 1896 as follows: Geiser house, $150; brick hotel, $760; mill and house, $1,150; minister’s house, $300 ; house above gate, $150; gate house, $100; double frame house, $100; brick house, $600; and a county tax at the rate of 14 mills was levied on each of the said buildings as above valued, making a total additional county tax of $46.34 levied on said farm by the said county commissioners.</p> <p>The following question is therefore submitted for the determination of your honorable court.</p> <p>Whether the assessment of a county tax of $46.34 on the above stated buildings and improvements on said farm for the year 1896 was a legal or illegal tax and assessment.</p> <p>If the court shall be of the opinion that the said additional tax of $46.34 as well as the valuation of the buildings and improvements by the assessor was illegal and should be stricken from the assessment and tax duplicate, then the court is respectfully requested to enter judgment for the plaintiffs.</p> <p>If the court shall be of the opinion that valuation of the said buildings was lawfully made by the assessor and the said tax of $46.34 legally levied thereon by the county commissioners the court is respectfully requested to enter judgment in favor of defendant.</p> <p>It is hereby agreed by the parties hereto that the judgment of the court in this case stated shall be as binding as if made in a regularly instituted suit in law or equity.</p> <p>Each party reserves the right of appeal.</p> <p>L. H. Beers, Same. I. Spyker,</p> <p>Atty. for plaintiffs. County solicitor.</p> <p>Now May 21, 1897, it is hereby agreed that valuation and assessment of the real estate of H. B. Mytinger’s heirs, mentioned in the foregoing “case stated,” is identically the same for the year 1897 as for the year 1896, on the said farm as well for the buildings and improvements on said farm. That the county tax levied on said real estate is at the rate of 12 mills. That an additional county tax of $39.72 was levied on the buildings and improvements on said farm in addition to the county taxes on said farm.</p> <p>It is further agreed that the court shall enter judgment touching and including the said county taxes and the assessment and valuation of the said real estate for the year 1897, in all respects and with same force and effect as in the above “ case stated ” for the year 1896.</p> <p>Saml. I. Spykeb, L. H. Beebs,</p> <p>County solicitor. Atty. for plaintiffs.</p> <p>The court entered judgment for defendant, Bailey, P. J., filing the following opinion:</p> <p>The plaintiff’s property is returned for taxation at a valuation of $5,169. The property consists of a farm, hotel, gristmill and several tenant -houses. The hotel, mill and tenant houses were erected on what was originally the farm. It is not alleged they were used in connection with the farm. It is true, the assessor returns with his assessment, the manner by which he arrives at the aggregate valuation. That is, he arrives at the total valuation of the property as a whole by ascertaining the value of its several parts, and returns the separate values of these several parts to show how he reached the total valuation. Perhaps this was unnecessary'-; we do not think it vitiated the assessment. It is not a double assessment and there is no allegation that the valuation is excessive. If it were too high or for any reason illegal the proper remedy of the plaintiff would have been by appeal: Moore v. Taylor, 147 Pa. 481.</p> <p>The triennial assessment was made in 1895. An inspection of the return of the assessor for Morris township shows that the plaintiff’s property was valued in the same manner and at the same amount as in 1896 and 1897. It is presumed that the plaintiffs had notice of this assessment and of the time of the appeal. No appeal was taken, and the tax was laid on the basis of the valuation as returned. It is too late to object to the manner of the assessment when the tax collector calls for the tax. If the assessment was not satisfactory it was the right and duty of the taxpayers to appeal in the manner and within the time fixed by law. Not having done so the assessment and valuation have the effect of a judgment. IVe have no jurisdiction to review the action of the assessor or the commissioners, wherein they have authority to act, except on appeal taken within the time fixed by law. We have no original but only appellate jurisdiction as to questions of excessive or illegal assessments in cases where the general power to assess exists in the assessors and commissioners: Clinton School District’s Appeal, 56 Pa. 315.</p> <p>Equity will enjoin against the collection of a tax assessed for an illegal purpose, and in cases where the taxing authorities had no power to lay the tax: Harpers’ Appeal, 109 Pa. 9; Kemble v. Titusville, 135 Pa. 141.</p> <p>In this case it is not claimed that the commissioners were without authority to lay the tax.or that it Avas laid for an illegal purpose.</p> <p>Let judgment be entered in the case stated in favor of the defendant.</p> <p>Judgment for defendant on case stated. Plaintiff appealed.</p> <p>There were no assignments of error set out in the paper-books.</p>

<p>Appeal, No. 144, Oct. T., 1897, by-Samuel Wolf, from decree of O. C. Lancaster Co., refusing air issue d. v. n.</p> <p>Rule on executors of Samuel Royer, deceased, to show cause why an issue devisavit vel non should not be granted. Before Livihgstoít, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below discharged the rule. Samuel Wolf, the would be executor appealed.</p> <p>Errors assigned were (1) discharging rule for an issue d. v. n. (2) In the opinion of the court as follows: “ Being of opinion that, as Samuel Wolf is neither legatee, heir, or next of kin, to Samuel Royer, deceased, but a stranger to him, and to the estate, having no interest therein whatever; a mere intruder, having no right to object to the probate of the will or to take and enter an appeal therefrom, and having no right or standing in this court to demand or be made party to an issue devisavit vel non to test the validity of the instrument in writing purporting to be the will of Samuel Royer, deceased, the rule to show cause why an issue devisavit vel non should not be granted, etc., must be discharged and appeal dismissed. The rule is therefore discharged by the court and the appeal dismissed.”</p>

<p>Appeal, No. 40, Oct. T., 1897, by defendant, from judgment of Q. S. Blair Co., Jan. Sess., 1897, No. 27, on verdict of guilty.</p> <p>Indictment charging solicitation to bum a building. Before Bell, P. J.</p> <p>It appears from the record and evidence that there was evidence tending to show that defendant made a proposition to Robert Williams that if he would set fire to the storeroom of Pheasant & Wagner, the defendant would pay him, Williams, $25.00. An offer of evidence was made and admitted, under objection, tending to show that similar offers were made to other persons about the same time to commit the same or similar offense connected with the same building.</p> <p>The opinion of Bell, P. J., refusing motion in arrest of judgment and a new trial, is reported in 6 Dist. Rep. 709.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned among others were (1) the indictment in the above case will not sustain a conviction in Pennsylvania, as it does not charge an offense indictable, either at common law or by statute. (4) The admission of the testimony of Frank Bow-den, Frank Moore and Harry Woods, tending to show that defendant had solicited them to burn this same building after the time he had solicited Robert Williams to burn it, being distinct and separate offenses (if offenses at all), having no connection with the crime charged in the bill of indictment, and occurring weeks after the solicitation laid in said indictment, and for which an indictment is still pending, the commonwealth having elected on motion of defendant’s counsel to go to trial on bill No. 27, of January sessions, 1897, in which the names of Frank Bowden, Frank Moore and Harry Woods had been stricken off by the district attorney. (8) The sentencing of the defendant to pay a fine of $20.00, costs of prosecution, and to undergo an imprisonment in the jail of Blair county for a period of six months. (9) There is no warrant in law for the sentence imposed by the court upon the defendant, as there is no act of assembly authorizing it, and it is therefore illegal and void,</p>

<p>Epistolary contracts — What amounts to, in law.</p> <p>When a contract is epistolary, consisting oí a series of letters, containing inquiries, propositions and answers, it is necessary that some point should be attained, at which the distinct proposition of the one party is unqualifiedly acceded to by the other, so that nothing further is wanting on either side to manifest that aggregatio mentium, which constitutes an agreement, and that junction of wills in the same identical manner, offered on one side and concurred in by the other, bringing everything to a conclusion which in contemplation of law amounts to a contract.</p> <p>It is not a contract where an offer is made to buy a monument at $600 adding “ we would like to have your derrick to set up monument. We will pay freight on derrick to return ; ” to which plaintiff replied asking' that $15.00 more be allowed, and added : “ I have entered your order— Now as to derrick, you would hardly want one sent from here, as that would be too expensive for you. Why not get one from Philadelphia or Ilarrisburg ? ” This was but an acceptance in part; there could be no contract without an acceptance in full. A contract is not created by proposals and counter proposals; it arises only from the acceptance of a proposal.</p> <p>An offer is not converted into a contract by a response proposing a deviation from its terms; it becomes a contract only when accepted in precise accordance with its terms.</p>

<p>Appeal, No. 2, Miscellaneous Docket, April T., 1898, by Fred Nuber, relator, from sentence of Q. S. Erie Co., Nov. Sessions, 1896, No. 9, on verdict of guilty.</p> <p>Indictment for receiving stolen goods. Before Miller, P. J., of the 35th judicial district, specially presiding.</p> <p>It appears from the record that Lizzie Nuher was indicted, tried and convicted at the November sessions, 1896, of the court of quarter sessions of Erie county for receiving stolen goods, and that at said term sentence of imprisonment was suspended on the following order, made by the court which was complied with by the defendant, the order being as follows: “ And now, November 19,1896, on recommendation of district attorney, the sentence of imprisonment in the case of the Commonwealth v. Lizzie Nuber is suspended for the present and during good behavior upon her pajfing the costs of prosecution, paying $200 to the clerk of the courts for the use of the Erie County Law Library, and paying a sum not to exceed $100 to reimburse the New York, Chicago & St. Louis R. R. Co. for damage done to goods which were stolen and received by the defendant.”</p> <p>On November 30, 1896, the clerk of the court receipted for $394.28 “to apply on costs, leaving the amount due the New York, Chicago & St. Louis R. R. Co. unpaid.” Subsequently the committee of the Law Library receipted for the $200 directed to be paid by the order of November 19th as “ two hundred dollars fine in this case.”</p> <p>In December, 1896, the clerk of the court receipted for $100, “being the amount of money to be paid to the New York, Chicago & St. Louis R. R. Co. to reimburse them for damage done to goods which were stolen and received by defendant, as per order of court.”</p> <p>On May 25, 1897, the court sentenced the defendant, Lizzie Nuber to pay a fine of $1.00 to the commonwealth for the use of the Erie County Law Library, pay the costs of prosecution, restore the property stolen if not already restored, or pay the owner the full value thereof, and undergo imprisonment in the Allegheny county workhouse for and during a period of two years, there to be kept, fed, clothed and treated as the law directs, and stand committed until the sentence be complied with.</p> <p>It appears also from the record that there are four terms of quarter sessions and Ayer and terminer in the county of Erie fixed by rule of court as follows: One term commencing the first Monday of September to continue three weeks, one term commencing the second Monday in November to continue two weeks, one term commencing the first Monday in February to continue three weeks and one term commencing the second Monday in May to continue two weeks.</p> <p>A petition was subsequently filed by Fred Nuber, husband of defendant, reciting the facts as above set out and suggesting “ that the sentence of imprisonment imposed May 25, 1897, is illegal and void for the reason that there being only four regular terms of quarter sessions in the said county of Erie, the said court had no jurisdiction in said matter after the ending of the November sessions, 1896, at which conviction was had and the first sentence imposed and entered upon; that the said Lizzie Nuber is unlawfully detained in the custody of the keeper of the Allegheny county workhouse, upon a sentence and commitment of a court without jurisdiction, and your petitioner therefore prays that a writ of habeas corpus may issue according to the act of assembly in such case made and provided, so that the said Lizzie Nuber may be brought before your honorable court to do, submit to, and receive what the law may require.”</p> <p>The petition being allowed, a writ of habeas corpus was issued and at the same time in accordance with the order of the court, a certiorari was also issued which brought up the entire record.</p>

<p>Evidence — Inadmissibility of post contractual representations in deceit.</p> <p>In an action on a contract evidence was properly rejected which was offered in support of alleged representations made by the plaintiff’s agent after the contract in controversy had been entered into; such representations even if false would not legitimately tend to establish the defense, which was deceit.</p> <p>Appeals — Application for new trial — After-discovered testimony — Discretion of court.</p> <p>Applications for new trial based on allegations of after-discovered testimony are addressed to the sound discretion of the trial court, and only in clear cases of abuse of discretion, if ever, is the refusal of the application assignable for error.</p> <p>Charge of court — Comments on testimony — Effect of charge as a whole.</p> <p>The charge oí the court is not open to exception when the effect of its comments, taken as a whole, was to lead the jury to the conclusion, not that the plaintiff’s version of a conversation was the more probable, but that his version did not differ, in legal effect, upon the question at issue, from that of the defendant.</p> <p>It is not error for the trial judge to comment on the testimony of a witness and to call attention to its inherent probability or improbability, provided he does it fairly, and leaves the question of his credibility to the jury.</p> <p>Where particular instructions are not asked for, and the complaint is that the charge was inadequate or one-sided, the court will be reviewed on the general effect of the charge and not upon sentences or paragraphs disconnected from the context which qualifies and explains them ; if, as a whole, the charge was calculated to mislead, there is error in the record; if not, there is none.</p>

<p>Appeal, No. 82, Oct. T., 1897, by Almira E. Rump, Julia McKnight and Michael Shetzline from decree of O. C. Phila. Co., Oct. T., 1881, No. 168, in the matter of the estate of George Wile, deceased.</p> <p>Adjudication of trustees’ account. Before Febgusoh, auditing judge.</p> <p>It appears from the record and evidence that the question arose at the audit of the estate of George Wile upon the filing of the account of testamentary trustees.</p> <p>The guardian of John Shetzline, Jr., the grandson of the testator, claimed as distributee under the limitations during the continuation of a trust to issue of testator’s children, Febgtjsoh, auditing judge, finding that the minor’s mother had been married to Benjamin Andrews prior to her marriage to the child’s father, and that her first husband was living at the time of her second marriage, holding that the marriage was void and that the child being illegitimate could not share as issue of his father in the distribution. This finding he reaffirmed on a rehearing which had been granted “ to enable the guardian to prove her claim.” Exceptions on behalf of the guardian of John Shetzline, Jr., were filed alleging error, (2) In placing the burden of proof on said minor; (5) In finding that there was no evidence that Benjamin F. Andrews and Elizabeth Andrews were divorced; (7) In not finding that the said minor was entitled to all presumptions existing at the time of his birth; (10,11) In not awarding the fund to the guardian of said minor.</p> <p>The court in banc sustained the above exceptions in an opinion by Pehbose, J., in which the material facts of the case fully appear, and which is as follows:</p> <p>That the parents of the child, whose right as one of the distributees is now denied, were regularly married in 1884, a year or more before his birth; that, in the relation thus established, thejr lived happily until the husband’s death in 1891; and that during the entire period of seven years or more his father, brother and sisters were on terms of intimacy and friendship with his family, with no suggestion that his marriage was not a valid one, are facts clearly established by the evidence, and, practically, not in dispute. As grandchild he was entitled, while he lived, to one twentieth of the income of the estate of the testator; and the share which he had received was continued, for more than two years, to his child’s guardian, under the limitation during the continuance of the trust to “issue.”</p> <p>The boy, a helpless cripple, now about ten years old, seems to have been the object of especial tenderness on the part of his father, who, on his death-bed, expressed great anxiety as to his future welfare, fearing, as he said, “ lest some wrong might at any time be done to his little crippled boy.” His mind was relieved by the assurance of a sister that this should never be; but it is this sister who now alleges that her brother’s marriage was invalid, and seeks on this ground, not only to exclude his boy from further participation in the grandfather’s estate, but to blight his entire life by stigmatizing him as illegitimate— though her share of what he would thus be deprived of, during a period of two years, is shown by the adjudication to be but $60.62. The auditing judge, in commenting on this has well said: “We have often illustrated in this court some of the best features of human nature. We have also some of the worst. This is one of the worst.” Avarice, however, is apt to yield to just such temptations ; and, as we know, thirty pieces of silver (just half the amount sought for here) were sufficient to induce the grossest act of perfidy recorded in the history of the human race.</p> <p>It appears that in 1866 the boy’s mother was married to a man who deserted her in 1872, after having treated her with great brutality and after repeatedly declaring that she was not his wife. He disappeared from the city, and she was told that he was dead; but it was not until 1884, after an interval nearly twice as long as that required to create a presumption of death, that she contracted a second marriage — never, in the meanwhile, having heard of, or had any communication with him. But he was not dead; and a year or two after the birth of the child whose legitimacy is now attached, he appeared again in Philadelphia, thus putting an end, of course, to the presumption of death arising from his long continued absence.</p> <p>If the case rested here, there could be no escape from the conclusion that the second marriage of the wife, notwithstanding the good faith with which it was contracted, was void ab initio. But it was shown that two or three years after his desertion, the supposed first husband married another woman, with whom, as his wife, he has ever since lived and cohabited; and as he would otherwise be guilty of bigamy, it is to be presumed either that he spoke truthfully when he asserted that the marriage of 1866 was, for some undisclosed reason, void, or that after his desertion and before his remarriage, he obtained a divorce. A divorce so procured, even if service were not effected upon the opposite party, would be voidable only, not void; and after the remarriage of both parties both would be bound by it (see Richardson’s Estate, 132 Pa. 292; Pennoyer v. Neff, 95 U. S. 714; Bishop on Marriage and Divorce, secs. 163, 199). It is stated in Best on Evidence, sec. 346, that “it is a presumptio juris, running through the whole law of England, that no person shall, in the absence of criminative evidence, be supposed to have committed any violation of the criminal law, . . . or to have committed any act subjecting him to any species of punishment, .... and this holds in all proceedings for whatever purpose originated, and whether the guilt of the party comes in question directly or collaterally.” And “ so strong is tins presumption,” it is said by Professor Greenleaf (Evidence, sec. 35), “that even where the guilt can be established only by proving a negative, the negative must, in most cases, be proved by the party alleging the guilt; though the general rule of law devolves the burden of proof on the party holding the affirmative.” Illustrations of these principles are furnished by Rex v. The Inhabitants of Twyning, 2 B. & Aid. 386; Case v. Case, 17 Cal. 598; West v. The State, 1 Wis. 186; Williams v. The East India Company, 3 East, 193, etc.</p> <p>But where the question not only involves the commission of erime'by third persons, but relates also to the legitimacy of one born in wedlock, and especially where the legitimacy was nob questioned until after the death of the parent through whom' property is claimed, presumptions of this character are greatly strengthened. “ The presumption and charity of the law,” as was said by the Supreme Court of Illinois in Orthwein v. Thomas, 127 111. 554, are in favor of the legitimacy of the child, “and those who wish to bastardize him must make out the fact by clear and irrefragable proof. The presumption of law is not lightly repelled; it is not to be lightly broken in upon or shaken by a mere balance of probabilities; the evidence for repelling it must be strong, satisfactory and conclusive.” And in Piers v. Piers, 2 H. L. Cas. 831, it is said that the presumption “ can only be negatived by disproving every reasonable possibility.” See also DeThoren v. The Attorney General, L. R. 1 App. Cas. 686.</p> <p>The precise question has been decided by the court of last resort in at least two states of the Union (Blanchard v. Lambert, 43 Iowa, 328; Carroll v. Carroll, 20 Texas, 731) ; and as the decisions are fully justified by the principles to which we have referred, we have no hesitation in following them.</p> <p>The second, fifth, seventh, tenth and eleventh exceptions to the readjudication are sustained, and the distribution awarded accordingly.</p> <p>Counsel will prepare the necessary decree.</p> <p>Errors assigned among others Avere (1) In sustaining appellee’s exceptions; (5) In finding that there was a presumption ■ of a divorce of the child’s mother from her former husband; (6) In giving said presumption of divorce the full force of an ■ established fact; (9) In finding that John Shetzline, Jr. Avas a legitimate son of John Shetzline, Sr.</p>

<p>Appeal, No. 131, Oct. T., 1897, by plaintiff, from ¡judgment of C. P. No. 4, Phila. Co., June T., T896, No. 703, in favor of defendant, on verdict for plaintiff, subject to point of law reserved as to whether the plaintiff could recover.</p> <p>Trespass for cutting off the water and drain pipe which flowed through defendant’s property. Before Audenreid, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below directed the jury to render a verdict for the plaintiff for $ 104, subject to a point of law reserved as to whether the plaintiff could recover. Judgment was subsequently entered on the point of law reserved in favor of defendant, non obstante veredicto.</p> <p>Error assigned was entry of judgment for defendant on the point of law reserved non obstante veredicto.</p>

<p>Surrender of lease — Burden of proof as to acceptance. '</p> <p>A surrender of demised premises by the tenant, in order to be effectual, so as to release him from liability for the rent, must be accepted by the lessor and the burden of proof is on the lessee.</p> <p> Landlord's duty as to leasing abandoned premises. </p> <p>A landlord is not bound in relief of his tenant to lease abandoned premises to any one who may apply; and he clearly is not bound to consider a proposition of a third person to rent them prior to and in anticipation of, the tenant’s removal. Any efforts which he may make are in the interest and for the benefit of the tenant and do not, of themselves, discharge the tenant from his covenant to pay rent.</p> <p>Landlord and tenant — Exercise of option for additional term — Tenancy from year to year.</p> <p>A holding over by a tenant who has an option for an additional term is notice to his landlord of his election to exercise his privilege; the actual continuance of such occupation is the best and most conclusive evidence of the intention to continue.</p> <p>A lease was for a year with an option of two years’ renewal, and a provision for tenancy from year to year on three months’ written notice. The tenant held over the first year, and toward the end of the second year gave three months’ written notice of intention to terminate the lease. Held, That the option having been exercised the term became certain in duration, and that a tenancy from year to year would not arise before the expiration of the term.</p>

Appeal, No. 141, October T., 1897, by defendants, from judgment of C. P. No. 1, Pbila. Co., June T., 1892, No. 196, M. L. D. on verdict for plaintiff.

<p>Appeal, No. 22, Jan. T., 1898, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1895, No. 221, on verdict for plaintiffs.</p> <p>Assumpsit to recover amount due on book accounts. Before Guhster, J.</p> <p>It appears from the record and evidence that judgment had been entered on a judgment note given as collateral security for certain goods and merchandise sold bj^ plaintiffs to defendant. Subsequent to the sale the defendant gave to the plaintiffs, certain promissory notes; it being alleged that these notes were given in payment of the book account and also of the judgment note which it was agreed should be returned to the defendant. The judgment note having been entered up a motion was filed and rule granted to show cause why judgment should not be opened. Upon consideration of this rule the court granted an order that an issue be made up by the plaintiffs declaring on their book accounts and filing copy thereof, and the defendant making answer within ten days thereafter as to what, if any, part to said account they have any defense.</p> <p>Yerdict and judgment for plaintiffs for $228.82. Defendant appealed.</p> <p>Errors assigned were, (1) In refusing to open judgment. (2) Refusing binding instructions for defendant; (3) In charging the jury as follows: “ The plaintiffs testify that the notes were received by them in lieu of the book account, in partial satisfaction of the book account — that the notes were accepted not in payment but in partial satisfaction.” (4) In charging the jury as. follows: “ The plaintiffs testify that the notes were received by them only in partial satisfaction, and that they received only fifty dollars on the note. If these plaintiffs accepted these notes in satisfaction of their book account, then the book account is paid, because they took the notes. If you believe that they did not accept them in satisfaction of the book account, and that they simply received them in the usual course of business, as a man would accept a note as a promise to pay the debt that is due him, then the debt would not be paid, and it is for you to say.”</p>

<p>Mechanic's lien for alterations, etc. — Notice—Statutes construed.</p> <p>The Act of May 18, 1887, P. L. 118, extending the local law of May 1, 1861,'P. L. 550, relative to liens for repairs, alterations and additions is a substitute for the latter act and the latter act must yield. The same interpretation applies to its effect on the Act of August 1, 1868, P. L. 1168, which permitted liens to be filed in the city of Philadelphia, but contained no requirement as to notice, and the act of 1868 must be considered as superseded, so far as the duty to give notice under the act of 1887 is concerned.</p>

<p>Statutes — Construction—Repeal by nonuser.</p> <p>An act of the legislature cannot be repealed by nonuser. A statute can be repealed only by express provision of a subsequent law or by necessary implication. To repeal by implication there must be such posi-. tive repugnancy between the new law and the old that they cannot stand together or be consistently reconciled. Only so far as the later statute is repugnant to the prior, does it operate as a i'epeal.</p> <p>Statutes — Prison keepers — Acts o/1790 and 1860.</p> <p>There is no such inconsistency and repugnancy between the 28th section of the Act of April 5, 1790, 2 Sm. L. 589, and the Act of March 81, 1860, P. L. 427, as requires the courts to hold that keepers of jails or prisons may not be appointed in counties, where, in the opinion of the court, suitable prisons have been erected for imprisonment of convicts at labor.</p> <p>Appeals — Practice, Superior Court.</p> <p>An order of court was made confirming the appointment of a keeper of a county prison, and no appeal being taken to the order within the time allowed by law, the appellate court cannot go behind the order and, upon an inquiry into the facts, treat it as a nullity. So far as the appellate court has authority to determine, the order was valid until it was rescinded, and until that time the keeper was entitled to receive compensation; he is entitled to have the appeal determined by the record proper.</p>

<p>Appeal, No. 36, Jan. T., 1898, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1891, No. 251, in favor of defendants, on case tried before a judge without a jury.</p> <p>Replevin for sewing machine. Before Ghhster, J., of the 45th judicial district specially presiding.</p> <p>By agreement of the parties a trial by jury was dispensed with and the case was submitted to the decision of the court under the act of April 22, 1874. The following material facts were found by the court: John Essling rented on May 8,1891, a certain house in Wilkes-Barre from D. L. O’Neill for a certain term at the rate of $12.50 a month payable in advance. He made a payment of $5.00 down on the execution of the lease, and promising to pay another $5.00 in a few days, was permitted to go into possession of the premises described in the lease. On May 15, 1891, the plaintiff rented to said Essling a sewing machine of the value of $40.00 for the term of one month, for the rent of $3.00, and delivered the same to said Essling at said premises.</p> <p>Essling did not pay the remaining $5.00 due on the execution of the lease, nor the instalment of $12.50 rent which fell due June 1, 1891, and on June 2, a landlord’s warrant of distress, in the usual form, issued for the sum of $17.50, under which distress was made upon some personal property, including the sewing machine rented by the plaintiff to Essling. The lease contained a waiver of exemption. At the hour fixed for the constable’s sale, the plaintiff gave the constable notice in writing that the sewing machine was his property, and forbade him selling the same as the property of John Essling, as the same was only leased to him. The constable sold the other-property, but not the sewing machine, and adjourned the sale of it for one week, notifying plaintiff of the fact. At the expiration of the week nothing having been done in the meantime by the plaintiff, the constable put up the machine in question for sale and sold it to Elizabeth Batterton, one of the1 ' defendants, who took possession of the machine. The plaintiff 'was present and participated in the bidding on the machine.</p> <p>On June 24,1891, the plaintiff sued out a writ of replevin in .this case for the machine in question, laying the value at 140.00, and delivered the same to the plaintiff and summoned both of ,the defendants, John Batterton pleading non cepit, and Elizabeth Batterton pleading non cepit and property.</p> <p>Certain points had been presented and a formal request for instructions to the jury before a juror was withdrawn, and the ■decision of the case submitted to the court. These points and the answers thereto, were, inter alia, as follows:</p> <p>Plaintiff’s second point, that under the provisions of the act approved March 4, 1870, sewing machines used and owned hy private families were exempt from levy and sale on execution or distress for rent, and the constable, John Merrick, who had the landlord’s warrant against John Essling, had no authority or warrant in law to levy upon the sewing machine in dispute. Answer: The act of 1870 is a supplement to an act entitled i‘ an act to exempt sewing' machines belonging to seamstresses in this commonwealth from levy and sale on execution or distress for rent,” approved April 17, 1869, which provides as follows: “ That hereafter all sewing machines belonging to seamstresses in this commonwealth shall be exempt from levy and sale on execution or distress for- rent, in addition to any articles dr money now exempt by law.” The act of 1870 referred to in the point is entitled “ a supplement to an act entitled ‘•an act to exempt sewing machines belonging to seamstresses in this commonwealth from levy and sale on execution or distress for rent,’ and provides as follows : “ That the act entitled ‘ an act to exempt sewing machines belonging to seamstresses in this commonwealth from levy and sale on execution or distress for rent,’ approved April 17,1896, shall from and after the passage of this act apply to all sewing machines used and owned by private families in this commonwealth: Provided — that this act shall not apply to persons who keep sewing machines for sale or hire.’ ” The defendant contends that Essling waived the benefit of the. exemption provided by this act by waiving “ all the exemption laws of this or any other ■ State of the United States,”'while the plaintiff contends that as to the property now in dispute the waiver is void. Counsel have notreferred me to any judicial construction of the acts under consideration. A careful comparison of these provisions with those of other acts of assembly exempting property from levy, and the construction which has been put upon such other statutes leads me to the conclusion that “ all sewing machines belonging to seamstresses in this commonwealth shall be exempt from levy and sale,” and that it would be contrary to public policy to permit seamstresses to waive this exemption. The act of 1849 already exempted property to the value of $300 exclusive of all wearing apparel of the defendant and his family, and all bibles and school books in use in the family from levy and sale on execution issued upon any judgment obtained upon contract and distress for rent. Sewing machines fall as much within this exemption as stoves and other household furniture, or a carpenter’s tools. The legislature was no doubt well aware that few seamstresses have anything more than their wearing apparel and their sewing machines. Under the act of 1849 their wearing apparel, bibles and school books remained exempt, as they were before the date of said act, and I have never heard of a case where such property was sold when the owner claimed them as exempt, though the exemption of the act of 1849 had been waived. But other property, including sewing machines, to the value of $300 was exempted by that act. If sewing machines were already exempt what necessity was there for exempting them again? In 1849 they were not known. In 1869 they were in general use, had become a household necessity and afforded many deserving women the means of earning a livelihood. Unfortunately our courts have held that the exemption under the act of 1849 could be waived. That they have so held is the only argument which can be advanced that the exemption of the act of 1869 can be waived. This argument loses .much of its force when considered in the light of what our Supreme Court says of the interpretation put upon the act of 1849. In Firmstone v. Mack, 49 Pa. 387, the late Chief Justice WooDWAKD says : “If it were res integra, if with the experience and observation we have had we were now for the first to pass upon the question whether debtors could waive their rights under the act of 1849 or widows theirs under the act of April 14,1851, we would be very likely to deny it altogether and stick to the statutes as they are written.” This .was said in 1865, only four years before the act of 1869 was framed, and in this same case it was held that an. agreement by a laborer to waive the proviso of the act of 1845 which exempts wages from attachment, embodied in a promissory note, was void. Every reason which can be advanced for withholding the wages of the laborer from the grasp of his creditors can be advanced for withholding the machine with which the poor seamstress earns wages, from the grasp of her creditors. But however that may be, there are reasons why the point cannot be affirmed. There is nothing in the title of the act of 1870 to indicate that it was the intention of the legislature to enact a law relating to any other person or persons than seamstresses, and the exemption of sewing machines belonging to them. It is entirely silent on the matter of making the act of 1869 applicable to sewing machines used and owned by private families. The act itself expressly provides that it “ shall not apply to persons who keep sewing machines for sale and hire.” It is an undisputed fact in the case that the plaintiff was engaged in the business of selling and letting or hiring sewing machines, and that he let the machine in question to Essling for the term of one month. There is no evidence that Essling claimed the exemption of it. On the contrary, he left the premises and abandoned the property on it. There is no evidence that the ■ plaintiff claimed that the machine was exempt. He was not in a position to claim the benefit of any exemption law. Neither the relation of landlord and tenant, nor of debtor and creditor was established between him and Mr. O’Neil. If he was not a debtor for the rent, he was not entitled to the exemption of the statute. That his property was seized was due to the accident of its being found on the demised premises. It shared the fate which the goods of any stranger might have shared: Rosenberger v. Hallowell, 35 Pa. 369. It is a well settled principle of the common law that the goods of a stranger found on the demised premises are liable to distress for rent. While there are many exceptions in fact to this general rule there are few exceptions to it in principle: Page v. Middleton, 118 Pa. 546 : Earns v. McKinney, 74 Pa. 387. For these reasons I decline to affirm the plaintiff’s second point. [1]</p> <p>The following points of the defendant were affirmed :</p> <p>1. That the property of a stranger found upon leased prerfcises is liable to distress by the landlord for rent in arrears.</p> <p>2. The claim for exemption is a personal privilege, and must be claimed by the person entitled thereto. It cannot be assigned or claimed by a stranger.</p> <p>3. If the jury believe from the evidence that Elizabeth Batterton, one of the defendants, purchased the machine in question at a public sale made by a constable in the execution of a landlord’s warrant, her title to the machine is not vitiated or affected by the failure or refusal of the constable to allow a’ claim for exemption. [3]</p> <p>4. If the jury believe that the plaintiff did not replevy the machine in question before the sale as required by act of 21st March, 1872, he cannot recover in an action of replevin against the purchaser instituted after the sale. [4]</p> <p>5. If the jury believe from the evidence that the tenant, John Essling, in the lease signed by him waived the benefit of all the exemption laws of the state of Pennsylvania, that waiver cannot be retracted or set up by another party. [5]</p> <p>6. Under all the evidence in the case the verdict must be for the defendants. [6]</p> <p>In conclusion I am of opinion that, under the facts of the case, judgment should be entered in favor of the defendants and against the plaintiff, and that the said Elizabeth Batterton have return implevisable of the said machine and fourteen dollars and fifty cents damages, and the prothonotary of said court is hereby directed to enter judgment hereon accordingly, unless exceptions are filed hereto, in his office within thirty days after service of notice of the filing of this decision by him to the said parties or their attorneys.</p> <p>Errors assigned among others were (1) refusal to affirm the plaintiff’s second point or request. (3-6) In affirming defendants’ third, fourth, fifth and sixth points or requests.</p>

Appeal, No. 69, Oct. T., 1897, by defendant, from judgment of C. P. Delaware Co., June T., 1895, No. 120, on verdict for plaintiff. Replevin for goods distrained. Before Clayton, P. J. The defendant, Benjamin T. Longstreth, distrained for four years’ rent on certain premises amounting to $1,000, after allowing for certain credits which reduced the amount of the distress ■warrant to $517.48. The plaintiff, Patrick Doyle, tenant in ■possession, replevied.

<p> Execution must follow judgment and, be warranted by the record. </p> <p>A writ in execution must follow the judgment and be warranted by it.</p> <p>Practice, O. P. — Proceedings under act of 1810 — Record of justice.</p> <p>Where the transcript from the justice discloses only an action in assumpsit and judgment thereon, such record does not disclose such a proceeding and judgment under the Act of March 20, 1810, 5 Sm. L. 161, as will sustain a writ of ea. sa.; the record if not perfect must at least purport to be a proceeding to enforce a liability in the mode there prescribed.</p>

<p>Practice, O. O. — Equity—Pleading—Effect of replication — Hearing on bill, answer and replication.</p> <p>Proceedings in the orphans’ court must have the substance oí equitable form ii not its technical nicety. The proper mode ol proceedings is by petition, answer and replication, in which the substantial requisites making out a case should appear. A replication in equity is the plaintiff’s answer or reply to defendant’s plea or answer. Ii it be a general denial .of the truth thereof, matter alleged in the answer must be proved. If it confines the denial to averring that the answer was untrue in certain particulars, but omits to deny or demand proof of material facts set out in the answer, an agreement that the case be disposed of on petition, answer and replication warrants the court in treating relevant facts averred in the answer and not denied in the replication as admitted.</p>

<p>Sale — Fraud—Rule of Smith v. Smith to be strictly construed.</p> <p>The intention of the buyer of goods at the time of purchasing them, not to pay, together with his insolvency at the time and his knowledge of it not communicated to the seller, will not avoid the sale after the delivery of the property sold. This is the ru^e of Smith v. Smith, 21 Pa. 867, recently recognized and followed as authority in Pennsylvania, but it is a rule which is declared to be not in harmony with that of a majority of other states, nor with sound policy or the principles of business honesty, and the courts will construe it strictly and will not go a step beyond it. Any additional circumstance which reasonably involves a false representation will be held sufficient to take the case out of the rule.</p> <p>Where, in addition to insolvency known to the buyer and undisclosed to the seller, the buyer, before the delivery of the goods confesses a judgment enforceable at once, knowing that the effect of its enforcement will be to disable him from continuing his business, and it is so used, these .additional circumstances are sufficient to take the case out oí the strict rule oí Smith v. Smith.</p>

<p>Appeal, No. 81, April T., 1897, by plaintiff, from judgment of C. P. Indiana Co., Sept. T., 1893, No. 32, in favor of defendants.</p> <p>Interpleader. Before White, P. J.</p> <p>An attachment execution was issued on a judgment obtained by A. T. Taylor against John K. Paul with a clause of sci. fa. to G. W. Swan and D. W. Simpson, partners trading as Swan & Simpson and summoned them as garnishee. The sheriff was directed to attach $250 in the hands of Swan & Simpson. Issue in the nature of an interpleader was awarded to determine the ownership of a certain chose in action.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1) In charging the jury as follows: “ This is a civil case, to be determined by the weight of the evidence.” (2) In charging the jury as follows: “ The question first to be determined is, were these notes actually assigned to Mrs. Paul prior to the service of the attachment on her; or, in other words, had she actually made an arrangement by which she in good faith had purchased these notes from T. S. McLain, who was the assignee of her husband, Jolm L. Paul.” (3) In charging the jury as follows: “ If this was actually consummated, if she actually made the agreement to raise this money before the service of this attachment upon Swan & Simpson on the 9th and 10th of June, 1893, if she made the arrangement in good faith to raise the money, and actually did raise the money and execute it, although actual payments were not made until after the attachment, still it would be good.” (4) Iri charging the jury as follows: “ If it was not so, if McLain and Paul understood each other and it was an arrangement in fraud of creditors, and subsequently Mrs. Paul came in and the transaction between her and McLain was in good faith, that is, in good faith upon her part, she knew nothing about what may have been a fraud between Paul and McLain, if she had no-notice of that and got these notes for value, that would be good that would be good as between her and the plaintiff here.” (5) In charging the jury as follows: “ Paul testifies that the arrangement between him and McLain was that he was to raise the money to pay the insurance companies out as consideration for the transfer of these notes, so that the transfer of the agencies could be consummated to Swan & Simpson.” (6) In charging the jury as follows: “ But to make it valid there must have been an agreement made bj^ McLain in good faith at that time that he would raise the money to pay it off. If that was so, then it would be a good transaction.” (7) In charging the jury as follows: “Was this transaction consummated between Mr. Paul and Mr. McLain in good faith on the 5th of June, 1893 ? If it was, then Mr. McLain would be the owner of these notes.”</p>

Appeal, No. 101, Oct. T., 1897, by defendant, from judgment of G. P. No. 1, Phila. Co., Sept. T., 1896, No. 730, on verdict for plaintiff. Assumpsit for wages. Before Biddle, J. The plaintiff alleged a contract of employment by defendant as foreman of defendant’s factory for the period of one year, on and after May 4,1896, at a yearly salary of SI,500 payable in weekly instalments.

Appeal, No. 17, Oct. T., 1897, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1894, No. 12, on verdict for defendants. Assumpsit on promissory note for f800. Before Brégy, of the first judicial district, specially presiding. The facts sufficiently appear in the opinion of the court. Verdict and judgment for defendants. Plaintiff appealed. Error assigned was directing the jury to find a verdict for defendants.

Appeal, No. 118, Oct. T., 1897, by defendant, from judgment of C. P. Berks Co., Dec. T., 1896, No. 91, on verdict for plaintiffs.' Feigned issue. Before Endlich, J. Joseph P. Kremp, the defendant, issued execution on a judgment against James M. Burkhart, and levied on the stock of goods in his store; Gattle Bros., the plaintiffs, thereupon made claim to certain diamonds valued at $610.20, as their property. Other material facts appear in the opinion of the court.

Appeal, No. 26, March T., 1897, by plaintiffs, from judgment of C. P. Huntingdon Co., Sept. T., 1891, No. 48, on verdict for defendant. Trespass for occupation of plaintiffs’ lands. Before Bell, P. J., of the 24th judicial district, specially presiding.

Appeal, No. 77, April T., 1897, by defendant, from judgment of C. P. Mercer Co., Sept. T., 1894, No. 101, on verdict for plaintiff. Appeal from judgment of justice. Before Miller, P. J. This was an action of trespass to recover the value of a crop of growing grain alleged to be the property of the way going tenant. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $46.66. Defendant appealed.

Appeal, No. 120, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1895, No. 364, on verdict for plaintiff. Assumpsit. Before White, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $163.17. Defendant appealed.

<p>Appeal, No. 32, April T., 1897, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1895, No. Í29, on verdict for plaintiff.</p> <p>Appeal from report of road viewers.</p> <p>On January 19, 1891, tbe borough of Homestead by ordinance established the grade of Dickson street. Shortly after that time Levi Myers then the owner of the lots in question, erected thereon six tenement houses forming one building. December 31, 1891, the property was conveyed to Samuel C. Grier, plaintiff in this case.</p> <p>In pursuance of a subsequent ordinance Dickson street in front of the property in question, was brought to a grade established by ordinance of January 19, 1891. On petition of plaintiff viewers were appointed to assess the damages and benefits on abutting properties.</p> <p>On the trial of the case counsel for the borough of Homestead offered in evidence the ordinance of the borough of January 19,1891, to show a formal change of grade prior to the erection of plaintiff’s improvements on the lot in question. This was objected to because the ordinance included more than one street, and because the offer did not include proof of publication by handbills or newspapers as required by law. The objection was sustained.</p> <p>The court admitted under objection and exception the testimony of several witnesses as to values, whose preliminary examination showed that they had no special knowledge on the subject.</p> <p>Yerdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned, were (1) Sustaining plaintiff’s objection to defendant’s offer to prove that the grade was established on Dickson street on January 19, 1891, and that that was prior to the time the houses were erected, the offer, objection and ruling being as follows: “H. J. O’Donnell, a witness for defendant, being the borough clerk, and having identified the borough ordinance book was interrogated as follows : Mr. Silveus: I wish to prove that the grade was established on Dickson street on January 19, 1891. I will prove by other witnesses that that was prior to the time that these houses were erected and that, therefore, the plaintiff is not entitled to recover for the change of grade any damages caused to the improvements that were on the lot. Mr. Dahlinger: I object to the offer of this ordinance, because it is an ordinance establishing the grade of Second, Third, Fourth and Fifth avenues extension city farm line, and Dickson street extension and Plummer street; it is notan ordinance fixing the grade of Dickson street. I object further, because it includes the proceedings of eight streets in one ordinance, and further, that the offer does not include the proof of publication by handbill and in the newspapers as required by law. Objection sustained. To which ruling of the court counsel for defendant requests an exception. Exception allowed and bill sealed.” (2) The court erred in overruling the objection to the testimony of Samuel C. Grier, a witness for plaintiff, the offer and ruling being as follows: “Mr. Dahlinger: I propose to call Mr. Grier to corroborate the evidence that we have put in as to the damage sustained by these houses. I offer to prove by Mr. Grier the actual amount of loss sustained by the grading of this street to this property. 1 The Court: Although he does not know the market value either before or after ? Mr. Dahlinger : Although he does not know the market value of property in the neighborhood at that time. The Court: He has not even testified that he knows the market value of this property either before or after? Mr. Dahlinger: He knows what he paid for it. The Court: The witness admitting that he does not know the market value of property in the neighborhood including the property about which the controversy arises, it is proposed to ask him what extent it was damaged. He has already been permitted to testify that in his opinion it is damaged; this on the authority of Dawson’s Appeal. We are not certain whether the ruling as to Mawhinney’s testimony on Dawson’s Appeal goes to the extent in a case of this sort of permitting the witness to fix figures when he admits that he does not know the market value either before or after; but we will err, if at all, on the side of liberality in admitting the testimony, and on the authority of the ruling with respect to Mawhinney in Dawson’s Appeal overrule the objection and seal a bill for the defendant. Mr. Dahlinger: Now, Mr. Grier, state in your opinion the difference before and after the grading of this street as to this property.” (3) In admitting the testimony of Robert J. Coyle, a witness for plaintiff, the questions, objections and ruling being as follows: “ The Court: Q. Do you know anything about the value of property in that neighborhood? A. I don’t know the value per foot of the ground. Q. You persist in not answering the question that is asked ? A. I can’t answer it because I don’t know the value of the ground right there. Mr. Dahlinger: Q. Do you know the value of property in that immediate neighborhood in a general way ? A. In a general way I could, but if you would ask me point blank what those two lots are worth I could not tell you. Q. Well, just answer that question. A. Well, in a general way, I would know the value, yes, sir. Mr. Silveus: Q. How do you get that knowledge ? A. Why from the general knowledge of the real estate business. Defendant renews the objection that the witness is not qualified to testify as an expert in a case of this kind. Q. I will ask you now Mr. Coyle if in your opinion that property is benefited or damaged by the grading of Dickson street? A. I think it was damaged. Q. To what extent? Objected to. Q. I will change the form of the question, what is the difference, in your opinion, between the value of the property before and after the grading? Objected to. Objection overruled. To which ruling of the court counsel for defendant requests an exception. Exception allowed and bill sealed.” (4) In admitting the testimony of John G. Hastings, a witness for plaintiff, the questions, objections and ruling being as follows : “ Q. What in your opinion was the difference between the market value before and after the grading ? Objected to. Cross-examined by defendant: Q. Did you ever deal in real estate at all? A. No, sir. Q. Do you know anything at all about the value of real estate in Homestead? A. No, sir. Q. And the only thing you do know is by observing on this street since the grading was done, how much it is cut down in front? A. In regard to these houses, yes, sir, I went up for that purpose. Defendant renews the objection to the witness answering the question that was asked him. The Court: I make the same ruling as in the case of the last witness. The ruling as to the Mawliinney testimony may have broad enough meaning to cover this. The objection is overruled and a bill sealed for the defendant.” (5) In overruling defendant’s objection to the testimony of John G. Hastings, a witness for plaintiff, the questions, objection and ruling being as follows : “ Do you mean it was worth less or more ? A. It was worth $1,500 less. Q. Now, how do you arrive at that? A. Why I went up there and estimated, looked over the buildings and received a bid for the lowering of the house. Objected to as heresay. Q. Did you make an estimate yourself ? A. I gave Mr. Grier an estimate of what would put that property in the same condition it was before lowering it down to the grade of the street, the same as it was before the street was graded. I gave Mr. Grier an estimate of between $1,500 and $1,600. Q. Well, have you that estimate? A. I have a memorandum of it, I just figured it up ,at the time. Q. State what the items are ? A. 12 cellar ’frames sash $48.00. That would necessitate putting in new cellar frame there. We would have to tear the -whole wall out. Objected to. Objection overruled. To which ruling of the court counsel for defendant requested an exception. Exception allowed and bill sealed.”</p>

<p>Appeal, No. 63, Oct. T., 1897, by defendant, from judgment of C. P. Chester Co., Aug. T., 1896, No. 79, on verdict for plaintiff.</p> <p>Trespass for the unlawful issuing by the defendant, a justice of the peace, of a warrant for the arrest of the plaintiff and procuring his arrest and retention for nonpayment of tax. Before Waddell, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $100. Defendant appealed.</p> <p>Error assigned among others was in the answer to and disaffirmance of defendant’s first point, which point and answer are as follows: “ The plaintiff having failed to show thirty days’ notice of plaintiff’s intention to sue, given to the defendant (who is a justice of the peace) by said plaintiff, pursuant to the provisions of the act of assembly of March 21, 1772, the plaintiff cannot recover in this action, and your verdict must be for the defendant. Answer: I must refuse to affirm that point. I recognize that the act of assembly makes provision that a justice of the peace shall have thirty days’ notice of an intention to bring an action against him for violation of his duties in office, and if the plaintiff does not do so, that he cannot sustain his action. But that depends upon the character of the action. If the justice was acting within his jurisdiction, within the powers of his office, then he is entitled to have thirty days’ notice, so that he may make any amends which he may think the case warrants. But when he is acting without any jurisdiction, simply under color of his office because he is a justice, then he is not entitled to any such notice. In my judgment the case depends upon that question, and I cannot therefore affirm that point. I must refuse it.”</p>

<p>Appeal, No. 76, Oct. T., 1897, by defendant, from judgment of C. P. Chester Co., Aug. T., 1896, No. 46, on verdict for plaintiff.</p> <p>Appeal from judgment of a justice of the peace. Before Hemphill, J.</p> <p>It appears from the record that this was an action in assumpsit against Joseph K. Ingram, a constable under the Act of March 20, 1810, 5 Sm. L. 161, to recover for a false return to an execution placed in his hands.</p> <p>Verdict and judgment for plaintiff for 185.53. Defendant appealed.</p> <p>Errors assigned were (1) In admitting in evidence the execution issued.by the justice, together with the parol statements of the justice as to the proceedings before him and by him, and refusing to require the production of the justice’s docket. (2) In admitting the original execution issued by the justice in favor of Levi Pollock, Agent, v. William Ross Cameron on the $78.72 judgment, together with the several indorsements on the paper, because it was not a record or any part of the record of the justice’s court. (8) In refusing to admit evidence to show that the defendant constable was not the nearest constable to the justice, nor the one most convenient to the justice, nor the constable of the township in which the justice exercised his official functions. (4) In refusing to permit the defendant constable to testify concerning the declaration of Justice Campbell when he gave him the execution. (5) In refusing to permit the defendant constable to testify as to any parol instructions given to him by the justice when he handed him the execution. (6) In refusing to permit the defendant constable to testify concerning the directions given him by the plaintiff about the removal of defendant’s personal property from the farm occupied by defendant. (7) In rejecting evidence of the assessed valuation of the real estate of Samuel A. Grayson, one of the sureties upon the bond tendered to the defendant constable. (8) In rejecting evidence to show that W. Ross Cameron, the defendant in the Pollock execution, was not possessed of any property and at no time could the defendant constable have made the money on the execution. (9) In refusing to admit in evidence, the affidavits claiming ownership of the personal property which had been filed with the defendant constable. (10) In its disaffirmance and answer to defendant’s first point: “ A constable is not liable to a suit under the act of March 20, 1810, for failure to make return of an execution on or before the return day where he is not the constable of the ward, district or township in which defendant in the execution resided, nor the next constable most convenient to the defendant, and upon the evidence in this case your verdict must be for the defendant.” (11) In disaffirming defendant’s third point: “ It was the duty of the plaintiff to have furnished to the constable a bond duly dated, filled up, signed and witnessed, and if the bond tendered failed in any of these particulars, it was not a sufficient bond of indemnity, and the constable was justified in declining it, and your verdict should be for the defendant.” (12) In disaffirming defendant’s fourth point: “ If the jury believe that no demand was made upon the defendant by the plaintiff prior to suit brought or notice or demand, given or made by the plaintiff to the defendant prior to suit brought, pursuant to the provisions of the act of assembly, the plaintiff cannot recover, and jmur verdict must be for the defendant.” (13) In disaffirming defendant’s first (additional) point: “ If the jury believe that the defendant was advised by Theodore K. Stubbs, his counsel, that the bond offered by Pollock was not a legal bond and would not protect him against loss, and that his rejection of such bond was pursuant to advice of his counsel, and his return of the execution was made pursuant to the advice of his counsel, the defendant is not liable in this action, and your verdict must be for the defendant.” (14) In disaffirming defendant’s fourth (additional) point: “ The defendant was justified in declining the bond tendered to him in the condition in which it was, and your verdict must be for the defendant.”</p>

<p>Appeal, No. 132, Oct. T., 1897, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1896, No. 22, on verdict for defendants.</p> <p>Trespass. Before Waddell, P. J.</p> <p>It appears from the record that this was an action of trespass, and the complaint alleged not only trespass upon plaintiff’s land and digging it, but for virtually diverting a stream of' water that passed through it.</p> <p>The amount of damages as alleged does not appear in the paper-books, but security was entered in the sum of $200.</p> <p>Other essential facts appear in the opinion of the court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (1, 2) In rejecting plaintiff’s offers of evidence as to whether it was a special benefit to the plaintiff’s property to have the feed, saw and plaster mill in operation near it; and whether it was a benefit to the neighborhood to have a feed, saw and plaster mill in operation there. (8) In the charge of the court as follows: “ My impressions at this time are that the grant contained in these papers does give the Borough of Downingtown the right which they here claim.” (4) In the charge of the court as follows : “ For the purposes of this trial, we say to you that in our judgment the justification here is complete, and the borough had a right to do just what it has done, and that would seem naturally and necessarily to result in a verdict in favor of the defendants.” (7) In substantially taking the case away from the jury and directing a verdict for the defendants.</p>

<p>Appeal, No. 157, Oct. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Go., March T., 1897, No. 1049, for want of an affidavit of defense.</p> <p>Rule to open judgment and let defendant into a defense.</p> <p>Plaintiff brought suit on a contract in writing to do certain plumbing work according to the rules of the board of health. Statement was filed May 8, 1897. September 23, 1897, judgment was entered for want of an affidavit of defense. On September 29,1897, rule was taken to open judgment and let defendant into a defense, proceedings to stay. On September 30, 1897, an affidavit of defense was filed. On October 23, 1897, depositions taken in support of the rule were filed. Rule discharged.</p> <p>Errors assigned were in discharging defendant’s rule to open judgment.</p>

<p>Evidence — Parol evidence to explain purpose of a note admissible — Accommodation paper — Burden of proof.</p> <p>Parol evidence is admissible to explain a receipt or entry in a bank book or account book, or to show the purpose for which a note is given.</p> <p>Plaintiff sued to recover the amount paid by him to take up a note alleged to have been given as accommodation for defendant. Defendant claimed the note to have been given as payment for a horse sold by him to, plaintiff. The court having charged the jury: “The plaintiff must convince you of the truth of his statement by the weight of the evidence, and his unsupported oath is not sufficient,” defendant cannot complain.</p>

<p>Appeal, No. 155, Oct. T., 1897, by defendant, from order of C. P. No. 4, Pliila. Co., Sept. T., 1897, No. 208, refusing to set aside execution, open judgment and let defendant into a defense.</p> <p>Rule to set aside execution, open judgment, and let defendant into a defense.</p> <p>This was an amicable action in ejectment under an alleged lease under which proceedings the defendant was ejected. It appears from the record and the evidence that the judgment and proceedings were upon a lease which was executed by the defendant as lessee but not executed by the lessor, plaintiff, and for the defendant’s alleged violation of the covenant to pay rent.</p> <p>Error assigned was refusal to make absolute rule to set aside the execution issued in pursuance to a confessed judgment in ejectment, to open the judgment and let defendant into a defense.</p>

<p>Mutual insurance — Cancelation of agreement — Assessments—Premium note.</p> <p>A policy of insurance and the premium note given therefor constitute a contract which the parties may rescind by mutual agreement, and when such agreement is made in good faith the parties are as much bound as if the policy had been marked canceled and the premium .note given up.</p> <p>If a policy be in tact canceled, there can be no recovery of assessments on a premium note given by the insured unless a liability existed for losses sustained by the company prior to such cancelation.</p> <p>Mutual insurance — Effect of cancelation — Question for jury.</p> <p>In a suit by a receiver to recover on a premium note, an assessment authorized by the court, where the defense is that the policy had been canceled by agreement, and there is evidence which if believed would justify the jury in finding that such agreemént had been made, the court properly left the case to the jury to be controlled by their finding of two facts, namely, cancelation of the policy and nonliability at the time of such cancelation by reason of the fact that the company had collected assessments with which, or had the means, to pay losses for which insured was liable as a member of the company at the time.</p>

<p>Sick benefit association — Claims of members — Proper tribunal — Jurisdiction, C. P.</p> <p>The constitution and by-laws of an unincorporated sick benefit association derive their force from assent either actual or constructive, and are 'binding on its members. Courts are without jurisdiction to inquire into 'the merits of questions which have been passed upon by the organization ■in the regular course of business, provided those questions are within the scope of its powers.</p> <p>A member of a sick benefit association cannot recover in the courts a sum alleged to be due him when the regular tribunal constituted by the constitution to pass on such claims has reported adversely after regular •proceedings and opportunity for a full hearing.</p>

Appeal, No. 140, Oct. T., 1897, by defendant, from judgment of C. P. No. 1, Pbila. Co., March T., 1897, No. 287, for want of a sufficient affidavit of defense. Assumpsit to recover unpaid subscription to stock.

Appeal, No. 169, Oct. T., 1897, by defendant, from judgment of C. P. Schuylkill Co., May T., 1896, No. 492, on verdict for plaintiff. Assumpsit to recover for services in selling real estate. Before Bechtel, J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $325.80. Defendant appealed.

<p>Contract — Rescission of — Slock subscription — Misrepresentation.</p> <p>Benefits to be derived from the founding- of an institution to the stock of which the defendant was invited to subscribe, may or may not result as alleged, but disappointment as to the result cannot be set up in defense to a suit to recover a subscription to stock when the subscriber had quite as good opportunities of judging as the person who solicited and secured the subscription.</p> <p>Practice, C. P. — Insufficient affidavit — Contract—Misrepresentation.</p> <p>An affidavit is insufficient, which, setting up two distinct representations as inducing a subscription to stock of a corporation, is indefinite in its allegations as to which is false; it is insufficient moreover, when alleging mere expressions of opinion, it fails to aver a distinct statement of material fact known to the solicitor and unknown to the subscriber, which if false would justify a rescission of the contract.</p>

<p>Negligence — Duty of driver approaching crossing — Question for jury.</p> <p>It is the duty of drivers of wagons to approach street crossings, recognizing the fact that people may attempt to cross at that street, and it therefore becomes a duty to have the team in such condition as to be able to stop it.</p> <p>■ A driver of an ice wagon turned so suddenly from Arch to Juniper street that the near horse struck a woman just stepping from the curb upon the crossing. The evidence of negligence was clear and abundant, although to some extent denied. Held, that the question of negligence was properly left to the jury.</p>

<p>Practice, G. P. — Effect of failure to demur.</p> <p>If a statement is defective defendant should demur; having joined issue and gone to trial he is bound by the evidence as shown in the testimony at the trial, especially when the same is received without objection on his part; it is then too late to set up want of consideration in the agreement sued upon.</p> <p>Question for jury — Credibility of witnesses.</p> <p>There being evidence, though conflicting, sufficient to sustain a verdict either way on the issue raised according as credibility is accorded to the testimony of one side or the other, the question is properly for the jury.</p>

<p>Appeal, No. 29, Jan. T., 1898, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1897, No. 525, on verdict for defendant.</p> <p>Case stated. Before Behhett, J.</p> <p>The following facts were agreed upon in the case stated as if the same had been found by special verdict for the opinion of the court. The plaintiffs were proprietors of a daily newspaper published at Wilkes-Barre. On February 6, 1897, the sheriff gave notice of the election required by law to be held on the third Tuesday of February of that year in the cities of Luzerne county, by advertisement in certain newspapers, including plaintiff’s paper, without a special contract as to rate or amount of compensation therefor, and without advertisement by the county controller for bids, nor direction by the county commissioners to the controller to so advertise. That the requirements of law have been observed by the sheriff as to the contents of said proclamation, assuming the same to be authorized by law with respect to the February election; as to the number and political character of the papers in which, and the period during which the same was published, assuming as aforesaid; that the sum charged by the plaintiff as the price thereof, to wit, $177.66, is reasonable and just, assuming as aforesaid.</p> <p>The court below entered judgment in favor of defendant, Plaintiff appealed.</p> <p>JUrror assigned was e:rtry of judgment for defendant.</p>

<p>Appeals — Certiorari—Review of order striking off judgment.</p> <p>There is no statutory appeal from an order of the common pleas striking from the record an entry of satisfaction of a judgment. The effect of an appeal therefore is equivalent to a common law writ of certiorari which brings up the record only; the errors to be corrected must appear upon the face of the record, the merits cannot be inquired into; they are left to the judgment of the court below. Neither the evidence nor the opinion of the court forms any part of the record proper, and for that reason cannot be examined into.</p>

Appeal, No. 40, Oct. T., 1897, by defendant, from judgment of C. P. No. 2, Phila. Co., Mar. T., 1893, No. 281, on verdict for plaintiff. Assumpsit. Before Sulzberger, J. Plaintiffs and defendant were members of the commercial exchange in Philadelphia. On September 21, 1892, plaintiffs sold to defendant twelve thousand bushels No. 2 mixed corn to be delivered in lots to suit the buyer between the date of sale and the 10th of October ensuing.

<p>Criminal law — Fraudulent removal of goods — Pleading—Act of 1885.</p> <p>The substantive offense aimed at by the Act of June 23,1885. P. L. 136, is the fraudulent removal of a debtor’s goods by placing them beyond the reach of creditors. The reference in the act to methods of removal which might more particularly affect debts of a certain status was not designed to exclude the claims of other creditors from its provisions. The act was intended to embrace all fraudulent methods of removal of property beyond the reach of creditors. The inclusion of several methods or phases of removal in one count is not forbidden by the principles of criminal pleading, although the removal might have been accomplished by one or more of these, to the exclusion of others.</p>

<p>Appeal, No. 12, Jan. T., 1898, by insurance company, garnishee, from judgment of C. P. Luzerne Co., May T., 1894, No. 672, on verdict for plaintiff.</p> <p>Assumpsit on policy of insurance. Before Woodward, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $705.60. Garnishee appealed.</p> <p>Errors assigned among others were refusal to affirm defendant’s first, second, third, fourth and eleventh points, which points were as follows: “ 1. The evidence offered by the plaintiff in this case fails to establish that J. W. Miller had any greater authority than that of a local solicitor, and is insufficient to show that he had the authority of a general agent of garnishee company, consequently any acts performed by him or service of notice, or proofs of loss upon him cannot bind the garnishee company. 2. The authority of J. W. Miller, as general agent of garnishee company not having been shown by a certificate of authority, and it appearing that he did not countersign the policy claimed on in this case, any acts of his aside from the delivery of the policy and receipt of premium would not bind the garnishee company, and it must be excluded by the jury from their consideration. 3. The plaintiff’s account of his loss in this paper dated April 5,1894, is not such a particular account of his loss or damage as the terms of the policy require of him, and no particular account of his loss or damage having been delivered to the garnishee company or its general agent within sixty days next after the fire, he or his assigns cannot recover. 4. There is no evidence to be submitted to the jury of the waiver of the requirements of the policy claimed on to give a particular account of the plaintiffs’ loss or damage, within sixty days next after the fire, and the plaintiff or his assigns cannot recover. 11. Under all the evidence in this case the verdict must be for the defendant.”</p>

<p>Appeal, No. 142, Oct. T., 1897, by plaintiff, from judgment of C. P. Northampton Co., April T., 1895, No. 24, on verdict for defendants.</p> <p>Trespass for malicious prosecution. Before Schuyler, P. J.</p> <p>The action was based on alleged malicious prosecution of the plaintiff by the defendants in causing him to be arrested for larceny.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below directed a verdict for the defendants in the following charge:</p> <p>[It is indispensable to a recovery in an action for malicious prosecution that the prosecution claimed to be malicious was fully ended when the action was brought. This the plaintiff has failed to show. On the contrary, the undisputed evidence shows that the prosecution was not fully ended.] [1] [You will therefore return a verdict in favor of the defendants.] [2]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) To portions of the judge’s charge, reciting same. (8, 4) In overruling plaintiff’s objection to the testimony of Jacob B. Mauser as to what occurred between him and the justice of the peace after the latter had issued the warrant in suit. (5) In overruling plaintiff’s objection to the testimony of Jacob M. Mauser as to conversation between him and the district attorney after the bill had been ignored by the grand jury. (6) In overruling the plaintiff’s objection to the testimony of A. C. LaBarre, district attorney, as to conversations between him and Jacob B. Mauser, after tbe bill bad been ignored by the grand jury.</p>

Appeal, No. 28, Jan. T., 1898, by Le Grand Wells, from decree of O. C. Susquehanna Co., Aug. T., 1897, No. 53, in the matter of exceptions to widow’s inventory. Exceptions to widow’s inventory and appraisement. Before. Seakle, P. J. It appears from the auditor’s report that Erastus Potter died January 20,1893, testate, bequeathing and devising all his property to his widow, Jenett Potter. His property consisted of some personal property and thirty-three acres of land.

<p>Appeal, No. 27, Jan. T., 1898, by Le Grand Wells, from decree of O. C. Susquehanna Co., Nov. T., 1896, No. 26, in distribution of the estate of Erastus Potter, deceased.</p> <p>Exceptions to auditor’s report. Before Searle, P. J.</p> <p>It appears from the record that a question arose in the distribution of the estate of Erastus Potter, deceased; on exceptions hied to the auditor’s report by the widow, the exceptions were sustained by the court and the fund was awarded to the widow on her exemption claim.</p> <p>Other facts appear in the report of the preceding case.</p> <p>Le Grand Wells, alien creditor of decedent and of the widow, appealed.</p> <p>Errors assigned among others were (1) In sustaining exceptions to auditor’s report and awarding the fund for distribution to the widow, Jenett Potter. (5) In the opinion of the court, stating as follows: “ The fact that Erastus Potter devised to his widow the land incumbered to the full extent of its value could not have the effect of merging her right of exemption out of it, into the title she took by the devise, if it did, the lien creditors of Erastus Potter would by virtue of such merger have a lien prior to the widow’s right to exemption. If the right of exemption merged in the title devised, it merged upon the death of Erastus Potter by virtue or his will giving the land to his widow.”</p>

<p>Practice, O. P. — Statement—Affidavit—Effect on defective statement.</p> <p>A statement must be self-sustaining; that is to say, it must sot forth in clear and precise terms a good cause of action.</p> <p>A statement which alleged the indorsement and delivery of a note to plaintiff, that he is the pr'esent holder and that the note has not been paid, does not necessarily require an affidavit of defense, but the defendant having chosen to answer it by affidavit, waives the incompleteness of the statement and must rely upon his affidavit.</p> <p>Practice, C. P. — Sufficiency of affidavit — Promissory note — Fundamental defense.</p> <p>An affidavit which distinctly avers that plaintiff is not a bona fide holder for value before maturity, but that he has taken the note since maturity for purposes of collection and in the interest of the payee for the purpose of avoiding the defense which defendants have thereto, is sufficient to put plaintiff upon proof of bona fide holding. When, therefore, the affidavit alleges fundamental defenses which go to the foundation of the right of the promisee to recover, a question is raised for the jury.</p> <p>Affidavit of defense — Contract of performance.</p> <p>In an action to recover on a contract for putting down cement pavements, it appears that the contract specifically provided that: “The party of the second part hereby guarantees all work done and all materials furnished by the said party of the second part, under and by virtue of this agreement for a period of five years from the completion of said work, against all defects, whether in work, labor or materials; and said party of the second part agrees on notice in writing from said party of the first part, or a duly authorized agent of the same, to repair said work and keep it in good order and condition for said period of five years, reasonable wear and tear excepted.” The defendant filed an affidavit of defense expressly denying that the contract was substantially performed, and averring defects in cop- ■ ing and curbing, and in the foundations, and an insufficient quantity of cement used ; that the contractors were notified of the defects and requested to repair them, to which notice they paid no attention, and that by reason of the failure of the contractors to complete the work in accordance with the contract and agreement defendants have been and will in future be, compelled to pay out large sums of money to repair the same and place it in proper order and condition, and in so doing expend a much larger sum of money than that for which this suit is brought. Held, the affidavit was sufficient to prevent judgment.</p>

<p>Appeal, No. 152, Oct. T., 1897, by defendants, from judgment of C. P. No. 4, Phila. Co., June T., 1897, No. 830, in favor of plaintiff, for want of a sufficient affidavit of defense.</p> <p>The facts in this case are similar to those in the preceding ease, and the cases were argued together.</p>

Appeal, No. 11, Jan. T., 1898, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1894, No. 285, on verdict for plaintiff. Assumpsit for goods sold and delivered. Before Woodward, P. J. It appears from the evidence that there was a sale and delivery on behalf of Jones to the defendant Cleveland of fifty tubs of butter, through a sales agent by the name of Staples. The butter was delivered to the defendant and some of it was sold by him.

Appeal, No. 187, April T., 1897, by plaintiffs from decree of C. P. Clarion Co., Aug. T., 1894, No. 2, dismissing plaintiffs’ bill as to certain defendants and refusing certain relief asked for. Exceptions to referee’s report. It appears from the record that John B. Gwinn filed a bill in equity against Lee and others as copartners praying for the appointment of a receiver for the beneficial association, for an accounting and contribution and general relief.