Volume 7 — Pennsylvania Superior Court Reports

Appeal, No. 15, Jan. T., 1898, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1891, No. 748, on verdict for plaintiff. Assumpsit to recover premiums paid on a policy of life insurance, canceled by defendant company. Before Lyhch, J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for 1104.91. Defendant appealed. Error assigned among others was refusal of binding instructions for defendant.

Appeal, No. 13, Jan. T., 1898, by school district of the borough of Warrior Run, from decree of Q. S. Luzerne Co., Jan. T., 1894, No. 283, adjusting the liabilities and propertj' of said School District, etc. Exceptions to auditor’s report.

Appeal, No. 72, Oct. T., 1897, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1896, No. 52, on verdict for defendant. Assumpsit on promissory note. Before Livihgstou, P. J. This is an action of assumpsit brought by the plaintiff company, a corporation organized under the laws of the state of New Jersey, against Margaret C. Hill on a promissory note made by said Margaret C. Hill to the order of Eber E. Hilton for $379.20.

Appeal, No. 4, Feb. T., 1898, by defendant, from judgment of C. P. Northumberland Co., Feb. T., 1896, No. 180, on verdict for plaintiff. Trespass. Before Savidge, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $863. Defendant appealed. Errors assigned among others were (1) refusal of binding instructions for defendant. (3-5) Refusing defendant’s fourth, sixth and seventh points, which points are as follows: “ 4.

Appeal, No. 25, Jan. T., 1898, by-defendant, from judgment of C. P. Lackawanna Co., May T., 1895, No. 70, on verdict for plaintiff. Before Rice, P. J., Wickham, Assumpsit. Before Searle, P. J., of tbe 34th judicial district, specially presiding.

<p>Appeal, No. 32, Jan. T., 1898, by defendant, from judgment of C. P. Lackawanna Co., May T., 1896, No. 998, on verdict for plaintiff.</p> <p>Assumpsit for wages. Before Guhster, J.</p> <p>A suit was brought by W. E. Barnes against the Bonta Plate Glass Company for wages due for manual labor performed by the plaintiff. There did not seem to be any dispute as to the fact that there was due to the plaintiff the amount of wages claimed. The defense set up was that the plaintiff did not work for the defendant but that he worked for one J. W. Bonta who had a contract under defendant to do this work, and that plaintiff well knew that he w'as working for J. W. Bonta individually. There was evidence however, tending to show that the plant of the defendant company was being operated by the defendant company themselves during the time when plaintiff did the work; that while he worked at the plant of the defendant company, different officers of the company from time to time were there, and that he was more or less under the immediate supervision of the secretary of the company who was also the private secretary of Mr. Bonta.</p> <p>There was evidence also tending to show that there were goods sold to the plant for the purpose of completing the building and carrying on the operations, and that these goods were addressed to the company and not to Mr. Bonta; that accounts were kept by the company at a store in the immediate neighborhood ; and that a blacksmith did work and sent tools to the establishment for the company; that the time of the men who were working there, while they were engaged at work, were actually kept for part of the time by the plaintiff himself, upon slips which bear the name of the defendant company, and which were furnished him by the secretary of the company.”</p> <p>Yerdict and judgment for plaintiff for 110.35. Defendant appealed.</p> <p>Errors assigned among others were (1) in charging the jury as follows : “ Now upon the part of the plaintiff, you have evidence tending to show that the plant of the defendant company was being operated by the company themselves during the time when the plaintiff did the work.” (2) In charging the jury as follows : “ But the plaintiff alleges that he knew nothing about this matter at all, and that the operations there were being carried on in the name of the glass company, and that the secretary of the company assisted in carrying them on there in the name of the glass company, and that, therefore, he was led to believe, by the secretary of the company, that the way in which the company operated its business and allowed it to be carried on there, that it was the work of the company. If that was so, if he was misled by the secretary of the company, then even though the work was being done by Mr. Bonta, if he was misled, not only by the silent, but by the actual conduct of the officers of the glass company, the glass company might be liable to him.” (3) In charging the jury as follows : “ It is important for you, gentlemen of the jury, to ascertain .whether the company carried on the operations there while Mr. Barnes worked there. If it was the company who was doing the work, there is no question about the company’s liability. If the company was not doing the work, then was the work being done by Mr. Bonta under the contract, as is alleged by him ? If the work was done by Mr. Bonta under the contract, and Barnes knew that Bonta was doing the work under the contract, then he cannot recover, because then he was clearly working for Bonta. But if Barnes did not know that Bonta was doing the work under the contract, and he was led to believe by the conduct o*f the secretary of the company that the company was doing the work, and the operations there were being carried on in the name of the company, 'then the company would be liable to him. If the operations were carried on in the name of the company, and Barnes was led to believe that the company was doing the work by the conduct of the secretary, and he did not know that Bonta was doing the work, then the company would be liable to him.” (4) In admitting evidence showing that the statements were rendered to and bills paid by the company for goods delivered to them during the erection of the plant used therein. (5) In allowing the plaintiff to offer in evidence a certificate of stock taken out by him in the Bonta Plate Glass Company. (6) In refusing to admit the minutes of the board of directors of the Bonta Plate Glass Company, showing when the company accepted the plant upon which the plaintiff worked.</p>

<p>Actions — Eminent domain — Trespass.</p> <p>When a party aggrieved institutes proceedings to have damages assessed as if there had been a taking in the exercise of the right of eminent domain, and the action falls by reason of the determination of the fact that there had not been such taking as entitled him to have the damages assessed in that way, the remedy of trespass or ejectment survives. The plaintiff cannot be said to be bound by an election of remedies.</p>

Appeal, No. 30, Jan. T., 1898, by-defendants, from order of C. P. Lackawanna Co., Sept. T., 1897, No. 921, discharging petition to open judgment entered by virtue of a confession of judgment in a note. Petition to open judgment.

<p>Appeal, No. 31, Jan. T., 1898, by defendants, from order of C. P. Lackawanna Co., Jan. T., 1891, No. 466, discharging rule to open judgment.</p> <p>Application to open confessed judgment for $325. Before Edwards, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below discharged the rule to open judgment. Defendants appealed.</p> <p>Error assigned was discharging rule to open judgment.</p>

Appeal, No. 90, Oct. T., 1897, by defendant, from judgment of C. P. No. 8, Pbila. Co., Sept. T., 1895, No. 908, on verdict for plaintiff. Trespass. Before McMichael, J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $850, Defendant appealed. Errors assigned among others were (1, 2) In affirming plaintiff’s third and fifth points, which points are as follows: “ 3.

<p>Appeals — Jurisdiction, Supreme and Superior Courts — Title to an office —Jurisdiction follows the record.</p> <p>In all appeals where no money value is involved but the mere right is in dispute, as a title to an office, or the right to a divorce, the Supreme Court has jurisdiction.</p> <p>In the ease at bar the title of a director in a corporation was in dispute; the appeal from the original judgment in the quo warranto was pending in the Supreme Court. Held, That the court having jurisdiction to review the proceedings has jurisdiction to review the supplemental proceedings; also that the Superior Court has no jurisdiction of the subject-matter.</p>

<p>Practice, G. P. — Motion for judgment on bond for collateral acts — Essentials of statement — Measure of damage.</p> <p>To entitle a jfiamtiff in an action upon a bond, conditioned for tbe performance of collateral acts, to a judgment for want of an affidavit of defense, his statement of claim must not only allege the breach in clear and unequivocal language, but must also set out the damages specifically, so that upon judgment by default they may be liquidated with certainty.</p> <p>Even where a cause of action may be conceded from the statement the measure of damages is not the penalty of the bond, but the actual damages sustained in the particular case.</p> <p>The statement alleged that a writ of replevin had been quashed (and there was therefore no judgment), the averment was “ that by reason of said writ of replevin the constable was prevented from collecting rent, to wit: $77.00, and costs to amount of $37.00.” This averment was met by a direct and positive affirmance that the rent had been paid by the tenant with costs of the distress. Held, that the plaintiff was not entitled to judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 74, Oct. T., 1897, by Charles M. Reed et al., commissioners of Montgomery County, from decree of Q. S. Montgomery Co., ordering the issuing of a writ directed to said commissioners commanding them to pay amount awarded to Horace C. Jones as damages sustained by him by reason of the opening of Second avenue in the borough of Conshohocken.</p> <p>Rule for mandamus on county commissioners. Before We and, J.</p> <p>It appears from the record that a petition was filed for the appointment of viewers to assess damages in the matter of the opening of Second avenue in the borough of Conshohocken. Viewers were appointed and the county commissioners were represented in the proceedings had before them. Viewers reported that Horace C. Jones was entitled to an award of $4,000 damages for the opening of Second avenue. This report was subsequently confirmed without exceptions. Payment of award having been demanded from the county commissioners and refused, a petition was filed for a writ on the county commissioners to pay the award of damages, and a rule granted thereon. The county commissioners filed an answer presenting reasons why an order for payment should not be made at this time. The court below decreed that a writ be issued by the clerk of the quarter sessions directed to the county commissioners ordering them to cause the amount awarded Horace C. Jones to be paid out of any moneys unappropriated of said county, etc.</p> <p>Plaintiff excepted to the decree because the order did not allow interest. County commissioners appealed.</p> <p>Other facts appear in the opinion of the court.</p> <p>Error assigned among others was in ordering that a writ be issued directed to the county commissioners directing them to cause the amount awarded to Horace C. Jones, together with costs, to be paid him out of the moneys of the county.</p>

<p>Appeal, No. 86, Oct. T., 1897, by Horace C. Jones, from order and decree of Q. S. Montgomery Co., made May 24, 1897, in ordering the issuing of a writ, directed to the commissioners, commanding them to pay the amount awarded to Horace C. Jones as damages sustained by him by reason of the opening of Second avenue in the borough of Conshohocken, and in not decreeing interest to be paid upon said award.</p> <p>Rule for mandamus on county commissioners. Before Weand, J.</p> <p>The facts sufficiently appear in the report of the preceding case.</p> <p>Error assigned was in not awarding Horace C. Jones interest upon his judgment of $4,000, the same to be computed from December 6,1896, when the report of the jury was absolutely confirmed.</p>

Appeal No. 37, Oct. T., 1897, by plaintiff from judgment of C. P. Berks Go. June T., 1895, No. 53, on verdict for plaintiff. Appeal from viewer’s report. Before Ermentrottt, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $800. Plaintiff appealed. Errors assigned among others was refusing plaintiff’s third point, which point is as follows: 3.

<p>Practice, C. P. — Pleading—Cause of action limited by declaration.</p> <p>A judgment for the plaintiff is based on the right of action set forth in the declaration and cannot be extended beyond it; if the declaration lacks the essentials of a cause of action, in matters of substance, judgment for want of a sufficient affidavit of defense will be reversed; and such defect will be fatal also in arrest of judgment or on error.</p> <p>Public officers — Tax collector — Limit of liability of surety — Statutes.</p> <p>A tax collector elected for three years under the Act of June 6, 1898, P. L. 383, must renew his bond annually. The statement alleged an election on April 1, 1894, and declared on a bond given in 1894, conditioned that the collector “ shall well and truly collect and pay over according to law the whole amount of taxes charged and assessed in the duplicate which shall be delivered to him; ” it also assigned failure to account for certain taxes charged in the duplicates for 1894, and also other taxes charged in the duplicates for 1895. Held, reversing the court below, that judgment could only be entered for 1894 taxes. The liability on the bond is limited to the taxes for the current year.</p>

<p>Appeal, No. 24, Feb. T., 1898, by defendant, from sentence of Q. S. Elk Co., Sept. Sess., 1897, No. 8, on verdict of guilty.</p> <p>Indictment for peddling.</p> <p>It appears from the special verdict found that defendant offered for sale in Elk county certain clothes wringers, rugs, curtains, etc.; that they were so offered and sold by him as the agent of the American Wringer Company, a corporation of the state of Rhode Island, duly registered in the state of Pennsylvania.</p> <p>Judgment was entered in favor of the Commonwealth and against the defendant, who was sentenced to pay a fine of $50.00, the costs of prosecution and stand committed until sentence be complied with. Defendant appealed.</p> <p>Errors assigned, among others were (1) In directing a special verdict in favor of the commonwealth. (8) In sentencing the defendant to pay a fine of $50.00 and costs.</p>

<p>Appeal, No. 29, Feb. T., 1898, by defendant, from sentence of Q. S. Center Co., Aug. Sess., 1897, No. 9, on verdict of guilty.</p> <p>Indictment for attempting to burn building. Before Love, P. J.</p> <p>Tbe defendant was indicted for the burning of an electric light building, and under a separate indictment for attempting to burn an armory, both situated in Belief on te. Both cases were tried before the same jury and the defendant was acquitted of the charge of burning the electric light building but was convicted for the attempt to burn the armory. The testimony largely relied upon by the commonwealth to sustain the conviction was that of A. W. Gillespie, a detective who had been brought to Beliefonte to inquire into a series of fires. The defense offered evidence tending to impeach the character of the witness for truth and veracity. It appeared also in evidence that the defendant had previously pleaded guilty on a charge of larceny.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned were (1) In instructing the jury as follows: “ In relation to the question of evidence in support of the reputation of a. witness whose testimony is attacked, the law is very fully discussed by Justice Rodgers of the Supreme Court in the case of Morss v. Palmer, a case in which there were exceptions taken because certain witnesses who testified in support of the reputation of another testified that they did not hear it attacked for truth and veracity. I will read part of the opinion on that question as found in 15 Pa. 56.” (Here the court read from the opinion of Mr. Justice Rodgers on page 56, beginning, “In Chess v. Chess, 1 P. & W. 32,” etc.) (2) In instructing the jury as follows: “We next call your attention to the fire which occurred on the 20th or 21st of May last, which was an attempt to burn the armory. The testimony is quite meager in relation to that whole transaction. You heard the testimony of A. W. Gillespie, and you saw him upon the witness stand. He testified that he had been shadowing the house for some time; that he is employed by wbat is known as a careful and reputable detective agency; that he came here for the purpose of ascertaining who had effected the series of fires here which were regarded by most people as of incendiary origin; and he came here in a lawful pursuit. Of course the means a man may have to resort to to get familiar and ascertain the facts in relation to whether or not a crime has been committed, are various; and many deceptions have to be resorted to; but, if they are legitimate means, they do not weigh against his credibility.” (3) In instructing the jury as follows: “ As I said before, you will consider the character of the witnesses and the extent of their contradiction; and as to the attack on the character of Gillespie for truth and veracity, we hardly think the evidence came up to the standard to render him unworthy of belief, but it is for you to determine from the evidence adduced; and unless you find his testimony materially contradicted, you will give it the consideration you deem it entitled to under all the evidence in the cause.” (4)' In instructing the jury as follows: “ James Cornelly is made a competent witness by the act of assembly, and you are to determine whether or not his story is true. You must take into consideration the interest he has hi this trial, and whether or not he has been materially contradicted by others on material points, that would render his testimony less worthy of credence. And you will bear in mind that testimony was produced of his having pleaded guilty of larceny, not as evidence of guilt in this case, but to be considered with the other evidence as to his credibility.” (5) The charge of the court was inadequate, and failed to present properly the evidence of the defense. (6) In overruling the offer of defendant to prove upon cross-examination of A. W. Gillespie the detective, what salary he was receiving, and by whom if was paid. The purpose being to show the interest and bias of the witness, so as ■ to affect his credibility before the jury. (7) In rejecting the offer of evidence on the part of the defendant to show by the defendant himself on re-examination that he had no malice or unfriendly feelings towards Col. Reynolds, the owner of the armory building, for the purpose of disproving motive or malice. The court rejecting such offer on the ground that no evidence had been produced on the part of the commonwealth to show that defendant or witness on stand had any malice or special reason for committing the offense charged, in these two indictments. The evidence was not, therefore, material, there being no presumption of malice.</p>

<p>Practice, G. P. — Execution—Party in interest — Award of issue — Statutes.</p> <p>An attaching creditor having issued its attachment under the Act of May 24, 1887, P. L. 197, prior to a sheriff’s sale, under and by virtue of which a fund for distribution was raised, is a party interested under the Act of June 16, 1836, P. L. 755, and upon application in writing duly fortified by affidavit, as required by the Act of April 20, 1846, P. L. 411, is entitled to an award of issue if the sufficiency of the affidavit is conceded.</p> <p>Practice, G. P. — Attachment act of 1869 — Execution—Award of issue.</p> <p>An affidavit is sufficient to require the award of an issue which sets up an attachment under the act of 1869, issued July 24, 1897, as against the fund realized on confessed judgments dated in 1882 entered July 19, 1897, where the petitioner avers that he is informed, believes and expects to be able to prove that the judgments impeached were not confessed for a bona fide consideration, but were confessed and are being used for the purpose of hindering, delaying or defrauding the other creditors of the said defendant and the petitioner.</p>

<p>Appeal, No. 32, Feb. T., 1898, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1897, No. 470, for defendant n. o. v.</p> <p>Attachment execution. Before Mayeb, P. J., of the 25th judicial district specially presiding.</p> <p>It appears from the evidence that the Mutual Life Insurance Company of New York insured the life bf Charity D. Atwood, in the sum of $5,000 by a policy, payable to her executors, administrators or assigns. On May 19, 1894, Mrs. Atwood assigned this policy to her husband, Clarence Atwood. On August 1, 1896, Clarence Atwood, the husband, assigned the policy out and out to Daniel A. Fessler, who was his creditor to the extent of $1,900. Fessler was not the creditor of Mrs. Atwood, nor was it claimed that he ever had any insurable interest in her life. Fessler paid two premiums to the insurance company. Mrs. Atwood died on January 29, 1897, and on February 8, 1897, the company paid Fessler the net amount of the policy, $4,946. On January 22, 1896, Wheeland, and others, obtained judgment against Clarence Atwood aggregating about $600. These creditors issued attachment executions on their several judgments against the insurance company and Fessler as garnishee. The three cases were tried together.</p> <p>The court directed a verdict for the plaintiff, reserving the question whether upon the whole evidence they were entitled to recover and subsequently entered judgments for the defendants non obstante veredicto. By stipulation filed, signed by all the parties, it was agreed that an appeal taken in one of the cases should have the same effect as if taken in all.</p> <p>There appeared from the statement of the account that, after allowing for the repayment of Fessler’s debt against Clarence Atwood, interest thereon, premiums paid and interest on the premiums, there was a balance in Fessler’s hands amounting to $2,762.65. Plaintiff appealed.</p> <p>Error assigned among others was refusing to enter judg- - ment for the plaintiff on the verdict.</p>

<p> Surety not obliged to notify creditor of his relationship. </p> <p>A defendant who is surety is under no obligation to give the holder of a judgment, notice of his relation as surety. Owen’s Appeal, 11 W. N. C. 188, followed.</p> <p>Siirety — Signature of judgment note as surety — Finding offact — Appeals.</p> <p>The court below having found that one who had signed a judgment note did so in the capacity of surety, such finding will not be reversed unless for manifest error. Eeld, upon the facts existing in the case at bar, that no such manifest error appeared.</p>

<p>Appeal, No. 14, Feb. T., 1898, by defendant, from judgment of C. P. McKean Go., Oct. T., 1893, No. 158, on verdict for plaintiff.</p> <p>Trespass. Before Olmsted, P. J.</p> <p>This was an action against the borough of Eldred for damages sustained by reason of its alleged negligence in permitting a sidewalk to be in a defective condition. There was evidence tending to show that the sidewalk at the point where plaintiff was injured was out of repair, damaged and dangerous; that these defects caused the injury complained of; there was no such evidence of contributory negligence on the part of the plaintiff as warranted the court in taking the case from the jury. There was also evidence that the defects had existed for a period of time sufficient to visit the municipal officers with constructive notice; and some evidence to show that the officials had actual notice of the condition of the walk previous to the accident. There was some question as to whether an ordinance' was ever passed by the borough authorities making the streets where the accident occurred such a legal thoroughfare as would render the defendant liable in this case.</p> <p>The court left the question of the plaintiff’s contributory negligence and the defendent’s negligence to the jury.</p> <p>Verdict and judgment for plaintiff for $1,083, which was subsequently reduced to $542. Defendant appealed.</p> <p>Errors assigned were (1) refusal to grant a compulsory non-suit. (2) In refusing to affirm defendant’s first point, which reads as follows : “ That no legal ordinance was ever passed by the borough authorities making the street where the accident occurred such a legal thoroughfare as would render the defendant liable in this case.” (3) In not affirming defendant’s second point, which reads as follows: “ There not being sufficient evidence of the defect in the sidewalk at the point where the accident occurred at and prior to the time of the accident to put the borough authorities upon notice of the defect, and no actual notice to the proper authorities being shown, the verdict must be for the defendant.” (4) In its charge to the jury in submitting the question as to whether or not the borough or her officers had actual notice of the bad condition of the walk at the precise point where the injury occurred. (5) In admitting testimony as to the bad condition of the sidewalk at other points than that at which the injury occurred. (6) In charging the jury as to the measure of damages, by instructing them that the plaintiff would be entitled to damages for “ the humiliation of passing through life with a defective physical organization.” ■ ■</p>

Appeals, No. 5 and 6, Feb. T., 1898, by C. C. Walker, from judgments of C. P. Lycoming County, Sept. T., 1894, Nos. 353 and 354 on verdicts for defendant. Assumpsit. Before Metzger, P. J. Tbe facts sufficiently appear in tbe opinion of tbe court. Verdicts and judgments for defendant. Plaintiff appealed. Errors assigned were (1) in making absolute tbe rule to show cause and opening judgments. (2) In instructing tbe jury as follows: “Now, you beard this last receipt read.

<p>Appeal, No. 126, Oct. T., 1897, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1896, No. 511, entering nonsuit.</p> <p>Trespass. Before Fihletteb, P. J.</p> <p>This was an action of trespass to recover damages resulting from a collision between plaintiff’s carriage and horses and defendant’s trolley car, in which it was alleged that the plaintiff lost $392.08 in the repairing of the carriage and harness and the loss of the value of the horses.</p> <p>It appears from the evidence that the accident occurred at the junction of Second and Diamond streets. Mancel Tweed, the driver, testified that on the day in question, he was driving up Diamond street on the north side of the street. As he neared the crossing he brought his horses to a stop and listened for the cars. He stopped his horses just as their heads reached the east foot crossing, which was about fifteen feet from the east track, and not hearing any warning he proceeded to cross the street. He testified that at the place where he stopped he could not see up Second street because of a factory at the northeast corner of Second and Diamond streets, and that you could not see up Second street until your horses’ heads were .practically upon the track. That his custom was to stop at a foot crossing so as not to interfere with public travel, and that to stop at any other point at this crossing would be to leave his horses and carriage upon the foot crossing used by the public; that he had driven over this street before and that the defendant had been in the habit of stopping its cars on the north side of Diamond street before crossing Diamond street. That he was driving cautiously, and that he could not have driven nearer the track without blocking up the footways, and in no event could he have seen up Second street until his horses were upon the defendant’s track.</p> <p>Garret McMaster, the manager of the appellant company, was called, who testified that he took a similar pair of horses and carriage to Second and Diamond streets to ascertain the truth of this driver’s statement and drove up on the north side of Diamond street to Second until he could see some thirty or forty feet up the street, stopped the horses, got out and measured the distance between his horses’ heads and the east track and found that they were within three feet of the east track; that to enable the driver to see all the way up the street the horses would have to be upon the track. That the distance from the heads of the horses to the place where the driver sits was fifteen feet six inches ; that the building at the northeast corner obstructed the view of the driver so that the horses had to be driven within a few feet of the track before he could see an approaching car.</p> <p>A number of citizens were called who testified that they saw the accident, saw the "car coming at an unusual rate of speed, and that it did not slow up on reaching Diamond street until it struck the carriage; that no bell or other warning was given by the defendant, and that the horses and carriage were taken some twenty-five or thirty feet before the car was stopped, and then stopped only by the bodies of the horses being under the wheels.</p> <p>The learned trial judge entered a nonsuit on the ground that the driver of the plaintiffs was guilty of contributory negligence, which the court refused to take off, on motion.</p> <p>Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p> Municipal law —Sidewalks—Negligence—Question for jury. </p> <p>Where an accident occurred from the alleged removal by the city of steps to a sidewalk, it was proper to leave the question of the city’s responsibility to the jury, dependent upon an affirmative finding on these questions: (1) That the steps had been on the street; (2) that they had been removed by the agents or employees of the city in doing the work of grading, and that in consequence the plaintiff had sustained injury.</p>

<p>Deeds — Contradictory descriptions of land conveyed — Calls for adjoiners.</p> <p>Where land is described by courses and distances and also by calls for adjoiners, the latter, where there is discrepancy, invariably governs.</p> <p>Deeds — Contradictory description of land conveyed — How construed.</p> <p>It is a rule of construction that as soon as there is an adequate and sufficient definition with convenient certainty of what is intended to pass by a particular instrument, a subsequent erroneous addition will not vitiate it.</p> <p>Where, therefore, two deeds to different grantees for adjoining lots' fronting on a certain street described the lots of a certain width, extending of that width between parallel linos at right angles with said street; and it appeared by reason of a prior sale by7 the common grantor that the effect of making them parallel lines at right angles with the street would be to narrow one of the lots over six feet at one end, it was held that the words “ at right angles with the street ” must be in law stricken from both deeds, it being plain that the true intent of the description was to give lots of the same width at each end between parallel lines.</p> <p>Construction of deed by acts of parties — Erection of division fence.</p> <p>AATiere the owners of the adjoining lots, conveyed by the deeds, erected a- division fence, which stood undisturbed for sixteen 3'ears, and was in harmony with a construction of the deeds which ignored the lines called for by the deed as at right angles with the street, but preserved the equal width of the lots at each end ; this was a contemporaneous construction of the description of the lots by the parties themselves not without weight.</p> <p>Title by estoppel — When inapplicable — Particular circumsta/nces.</p> <p>There can be no title acquired by estoppel where the party claiming thereby has apparently suffered no injury, but holds all the land which he had bought.</p> <p>Nor can a party claim title by estoppel under the very person whose error is averred to have given rise to the estoppel.</p>

Appeal, No. 183, Nov. Term, 1896, by defendant from judgment of C. P. Lancaster County, Sept. Term, 1896, No. 3, in favor of plaintiff on case stated. Case stated.

<p>Costs — Constable's fees — Mileage—Serving subpoenas — Statutes.</p> <p>Under the Act of May 23, 1893, P. L. 117, a constable is entitled to mileage at the rate of ten cents per mile one way in the execution of a warrant. For serving a subpoena he may legally charge fifty cents for each person named in the subpoena and actually served.</p>

<p>Appeal, No. 131, Nov. T., 1896, by plaintiffs, from judgment of C. P. Chester Co., April T., 1894, No. 49, on verdict for defendant.</p> <p>Trespass. Before Waddell, P. J.</p> <p>Tins was an action brought to recover from the defendant damages resulting from alleged fraudulent misrepresentations inducing the purchase of three Kansas bonds and mortgages sold by defendants to the plaintiffs. There was evidence tending to show that the defendants had said during a conversation which led up to the purchase “ we guarantee these loans. We stand between you and loss. My property stands between you and loss. You cannot lose.”</p> <p>Other facts appear in the opinion of the court and the assignments of error.</p> <p>Errors assigned were (1) in directing a compulsory non-suit. (2) In discharging the rule to show cause why the non-suit entered should not be stricken off. (3) In refusing to allow H. H. Dutton, a witness for tbe plaintiff, to answer tbe following question: “ Q. Have you ever had any trouble collecting interest or principal on these bonds or mortgages ? ” Objected to that that applies simply to that which is a guarantee of future things, and therefore is not applicable to this case. Objection sustained.) To which ruling counsel for .plaintiff excepts, and prays the court to seal a bill of exceptions thereto, which is done accordingly.. (4) In refusing to allow the plaintiff to show, by R. Hanes Passmore, a witness called, that Mr. Pyle, one of the defendants, in a conversation with him (the witness) condemned the Kansas money loaning business before they (the defendants) went into the business. The objection being sustained, counsel for plaintiff excepts and prays the court to seal a bill of exceptions thereto, which is done accordingly. (5) In ruling against the plaintiff in the following offer: The plaintiff offered to prove by Smedley Darlington, as follows: “ I want to prove by this witness that he has been in the Kansas loaning business since 1865, and that he never went into Western Kansas to loan money, for the reason that the rains were very uncertain in that part of the country, and it 'made the loaning business very unsafe.” Objected to. Objection sustained. To which ruling counsel for plaintiff excepts, and prays the court to seal a bill of exceptions thereto, which is done accordingly.</p>

<p>License law — Refusal by lay judges — No reason essential.</p> <p>Associate lay judges have the power to make an order refusing a license, and they are not obliged to file any reasons for their decisions.</p> <p>Record imports verity — Not to be impeached by certificate of president judge.</p> <p>The record of the court showed the following order signed by the two associate judges, “Now, the 27th of December, 1897, license is refused after due consideration; ” Held, that the record must be accepted as absolute verity; so long as it remains uncorrected by appropriate proceedings it cannot be contradicted, overthrown or weakened in its effect by the mere certificate of the president judge denying its truth.</p>

<p>Province of court and jury — Question for jury — Conclusion from admitted, facts.</p> <p>When the determination oí the issue depends only on the existence of certain facts, and these are not in question, the decision rests with the court. But when it depends not merely on the existence of facts, but on conclusions arising from them respecting which there is no fixed standard of judgment, it is for the'jury, even when there is no dispute as to the facts. While facts may be admitted, the conclusions to be drawn from them may remain a matter of controversy. To justify a verdict by direction, two conditions must concur: (1) The controlling facts must be established beyond doubt; (2) Their effect, in the conclusions to which they lead, must be so clear and unquestionable that it may be judicially declared.</p> <p>Negligence — Measure of care — Question for jury.</p> <p>Negligence is the absence of the care required by the circumstances. When the measure of care is fixed and unvarying, and there is no question as to the circumstances, it is for the court to determine whether it has been observed. But when the circumstances are in dispute, or, being undoubted, ai*e such that the measure of care cannot be fixed, it is for the jury to determine its measure, and, from the facts, as found or admitted, to draw the conclusion of due care or of negligence.</p> <p>Common carriers — Duty to carry safely — Burden of proof.</p> <p>The duty of a common carrier is to carry safely, unless prevented by the act of God or of the public enemy. It may, -however, be limited by special contract, or by notice to which the law imputes contractual effect. When this defense is made, the burden of proof is on the carrier.</p> <p>Actions — Carrier's breach of duty — Appeals from justice — Triad on the merits.</p> <p>An action either ex delicto or ex contractu will lie for the carrier’s breach of duty, and on an appeal from a cause brought before a magistrate no mistake in the form or name of the action shall prejudice either party. Where the action before the justice should have been in assumpsit, the fact that the defendant pleaded not guilty as in an action ex delicto presents no ground of objection after a trial on the merits.</p> <p>Common carriers — Negligence—Evidence.</p> <p>While injury to goods in transit is not negligence per se it is evidence of negligence. Its effect may be rebutted by showing that it is due to causes beyond the scope of the carrier’s obligation, but it is not rebutted merely by evidence explanatory of the time, place and manner of injury. Evidence offered by way of explanation does not of itself throw on the shipper the burden of showing, by positive testimony, negligence on the part of the carrier. Unless an explanation, undeniably adequate, arises from undisputed facts, it is for the jury, as judges of the credibility of the witnesses, the weight of the evidence, and the measure of care demanded by the circumstances, to determine whether it shall be accepted in discharge of the carrier’s liability.</p>

<p>Trusts and trustees — Failure of deposit bank — Laches of guardian.</p> <p>A trustee or guardian is not liable 'for loss resulting from the failure of a bank, where money is deposited temporarily, pending investment, but if a guardian leaves his ward’s money for an undue time on deposit and uninvested and without effort to invest same, he is liable for loss resulting from the failure of the bank; although there may be no bad faith on the guardian’s part, still the loss, due only to his ignorance or neglect of the duties imposed upon guardians, cannot be permitted to fall upon the minors.</p>

<p>Appeal, No. 34, Jan. T., 1898, by Ann Jones, from decree of O. C. Luzerne Co., No. 198 of 1890, refusing to entertain petition for an order upon Evan M. Evans to pay to her the distributive share as widow in the personal estate of her husband, found and declared by the said court to be due to her and in the hands of said Evans, guardian, and refusing to make such order.</p> <p>Exceptions to guardian’s account. Before Darte, P. J.</p> <p>The facts sufficiently appear from the report of the preceding case in the matter of Lizzie Evans’ estate, except that it appears from the record that the amount of money taken possession of by said guardian alleged to be due to the petitioner, the widow, as her distributive share amounted to 1417.58.</p> <p>On presentation of the petition, the court refused the same, for the reason that the court has no jurisdiction to make such order. Ann Jones, the widow, appealed.</p> <p>Errors assigned were (1) in ruling that the orphans’ court in Pennsylvania has no jurisdiction to compel a guardian to pay over to a widow of decedent, her distributive share of the personal estate of the decedent, which the guardian has taken into his possession. (2) In refusing to entertain the petition of the widow of John M. Evans, for an order upon Evan M. Evans to pay to her the distributive share in the personal estate of her deceased husband, to which she is entitled as widow, and of which he had become possessed as guardian.</p>

<p>Appeal, No. 145, Oct. T., 1897, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket, No. 3, page 189, dissolving preliminary injunction and dismissing plaintiff's bill.</p> <p>Hearing on bill, answer and proofs. Before Brubaker, J.</p> <p>It appears from the bill, answer and proofs that the proceedings below were begun by bill in equity which enjoined the city of Lancaster and its municipal authorities operating and controlling and directing the waterworks, from imposing charges of water rents by measured meter rates upon certain consumers, while, at the same time, they charged other and different rates and rentals to other consumers of the same class; and to enjoin them from cutting or stopping off the supply of water to the plaintiff’s premises. There was an answer filed, a hearing had, and, upon final hearing, the court dissolved the injunction and dismissed the plaintiff’s bill.</p> <p>It appears that the municipal authorities changed the schedule of water rents from a fixed schedule so as to apply a measurement to certain classes of the community, among them the plaintiff who was a brewer. By this change in measurement plaintiff was charged with something like 14,500,000 gallons at the rate of five cents per thousand gallons, amounting in all to $736.50 for three fourths of the year 1896.</p> <p>It also appears that the authorities had not applied the meter system to all manufacturers and large consumers, it being alleged by the city that they had had neither the time nor the money to introduce the system universally, and that in some cases its introduction was postponed by reason of existing contracts with consumers. It appears also' that the new schedule was approved by joint resolution of councils and not by ordinance signed by the mayor, it appearing on behalf of the city that the water committee had the power under general ordinances to make changes in the schedule even without special approval by councils.</p> <p>The court below found as a fact that the charge imposed of five cents per thousand gallons was a fair and reasonable charge, and that the new schedule was an equal and equitable regulation for the supply of water within the city of Lancaster. Also that considering the large consumption of water by the plaintiff at his brewery the charge of five cents per thousand gallons was not an excessive charge.</p> <p>The court also found as a conclusion of law that the point taken by the learned counsel for the plaintiff that the concurrent resolution of councils was illegal, because it had not the mayor’s approval of it, was not seriously pressed at the argument, and therefore, it hardly needs further consideration, except to say that section 20 of the Act of 1867, P. L. 790, makes the mayor’s approval unnecessary.</p> <p>The court also found as a conclusion of law “ that there has been no evidence adduced by the plaintiff to show either want of good faith or acts of oppression on the part of city authorities in the adoption of the present schedule of water rents. On the contrary, as we have said, the meter rates are just and equitable, and are in favor of large consumers, among whom the plaintiff is included. The facts in this case clearly demonstrate the fact that should the owners of private residences generally adopt the meter system at the same rates, which they are privileged to do and which they are likely to do on account of the cheapness of its rates, it would very largely reduce the revenue of the water department and require a fixing of even larger rates to meet the expenses of running and maintaining the plant, unless the great waste of water is checked by the city authorities. The introduction of the meter system under the new schedule, when in complete operation, will doubtless reduce the waste to a minimum. This, as we understand, the city authorities are doing as rapidly as practicable, considering the present condition of city finances.</p> <p>“We are of the opinion that the plaintiff has not shown himself entitled to the relief prayed for in the bill, and, therefore, the bill should be dismissed at the cost of the plaintiff for want of equity.” Plaintiff appealed.</p> <p>Errors assigned among others were (1) in making a decree denying the injunction and prayer of complainant. (4) In not finding as a matter of fact, that “ the schedule reported by the water committee on February 6, 1895, was never adopted by ordinance or joint resolution of councils, and that it was never approved by the mayor of the city.” (7) In its finding of fact, No. 15, as follows: “The said rate of five cents per thousand gallons, meter rate for breweries fixed by said schedule of February 6, 1895, is a fair and reasonable charge, and said schedule is an equal and equitable regulation for the supply of water to the consumers within the city of Lancaster.” (8) In its finding of fact and law No. 16, as follows: “ The water rents charged the plaintiff by meter measurements, are much less than the rents charged to other consumers and average consumers under the fixed schedule rates, notably, Farnum & Company’s cotton mills and a number of private residences.” (16) In its conclusion of law that a concurrent resolution of councils had been passed, establishing meter rates for the consumption of water in the city of Lancaster. (17) In finding as a conclusion of law that the mayor’s approval of a joint resolution or ordinance of councils was not necessary to establish meter rates in the city of Lancaster. (18) In finding as a conclusion of law that “the inequality complained of by the plaintiff is not due to the provisions of the new schedule, but rather to the failure of the water superintendent or the city authorities to enforce the meter rates against all large consumers which the schedule is intended to cover.” (20) In finding as a conclusion of law that “ the water rent charge in question is just and equitable.” (25) In its conclusion of law that the plaintiff “ has not shown himself entitled to the relief prayed for in the bill, and, therefore, the bill should be dismissed at the cost of the plaintiff for want of equity.”</p>

<p>Appeal, No. 146, Oct. T., 1897, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket No. 3, page 189, dissolving preliminary injunction and dismissing plaintiff’s bill.</p> <p>This case was argued with the preceding case.</p> <p>The facts and questions involved are practically identical in both cases, excepting that in the present case, the court found as a fact that prior to April 1, the superintendent of the waterworks, by direction of the water committee of the said city of Lancaster, placed a meter on the premises of the plaintiff at its request, the complainant having through its treasurer, Mr. Rhoads, complained against the schedule rates before charged as excessive.</p>

<p>Decedent's estate — Will—■Executor's appointment by implication.</p> <p>No express words are necessary in a will to appoint an executor. The appointment may be made by necessary implication. Where the testator commits to any person or persons the rights, powers and duties which are commonly and properly exercised by and imposed upon an executor, the person so designated will thereby be as effectively appointed executor as though he had been expressly named as such.</p> <p>A will drawn by the testatrix in perhaps an inartificial manner, but which, reasonably read, imposes on a person named in the will, but not specially designated as executor, the duty of interment and care of her grave and the payment of certain legacies and all debts, will be construed as appointing such nominated person executor by necessary implication.</p>

<p>Practice, O. C. — Petition—Bill of review — Weight given to answer.</p> <p>In a proceeding by bill to review an adjudication, the answer being responsive, the burden is upon the petitioner to overcome it by the satisfactory testimony of two opposing witnesses, or one witness corroborated by other circumstances and facts which would give it greater weight than the answer or be equivalent in weight to a second witness.</p> <p>Practice, O. G. — Bill of review — Discretion of court — Laches.</p> <p>A bill of review can only be had as a matter of right in two cases: First, for error of law appearing on the face of the record; second, for new matter which has arisen after the decree. It may also be allowed ex gratia for new proofs discovered after the decree, which by reasonable diligence could not have been produced or used before the decree was made. In an application, therefore, addressed to the sound discretion of the court, unreasonable delay without excuse is a circumstance which cannot be ignored and will induce the court to require strict proof of the facts necessary to give jurisdiction.</p>

<p> Attachment execution may issue loithout precedent sci.fa. to revive. </p> <p>An attachment execution may issue on a judgment which has lost its lien upon real estate without issue of scire facias to revive the judgment on which it is issued. An attachment execution is not such an execution as is contemplated by'the Act of May 19, 1887, P. L. 132.</p>

<p>Appeal No. 6, Jan. T., 1898, by plaintiff, from order of C. P. Bradford Co., Sept. T., 1896, No. 3, in equity, dissolving preliminary injunction.</p> <p>Bill for preliminary injunction. Before Dunham, P. J., of the 44th judicial district, specially presiding.</p> <p>The facts sufficiently appear in the opinion of the court below.</p> <p>In this case a preliminary injunction was granted on July 31, 1896, restraining the above named defendants from selling the property, mentioned in the plaintiff’s bill, as having been levied upon by Geo. B. Brister, the constable, who levied upon certain property under an execution issued by LeRoy Coleman, a justice of the peace, upon a judgment obtained before said justice in favor of S. B. Tupper against Herbert Rockwell, president; Harry Stevens, secretary; H. A. Ross, treasurer, of the Stevensville Creamery Association, Limited, of Pike township. From the transcript and summons which were admitted to be correct, it appears that a summons was issued by the justice in which the constable was commanded to “summon Herbert Rockwell, president; Harry Stevens, secretary, and H. A. Ross, treasurer, of Stevensville Creamery Co., Limited, of Pike township in the county aforesaid, so that they be and appear,” etc. The summons also shows by the return of the constable, that he served the same personally on “ within named defendants Herbert Rockwell, Harry Stevens and H. A. Ross by personally producing the original writ to them and informing them of the contents thereof.” And the transcript shows that on November 12, 1895, the “ defendants ” not appearing judgment was given, etc.</p> <p>From the foregoing it is plain that the justice entered judgment against the three persons named as defendants.</p> <p>That they were duly served with notice of the trial by the summons and have never appealed or attempted to have the proceedings set aside by certiorari or otherwise. We cannot now^go back of the entry of judgment by a court of competent jurisdiction to see what the court ought to have done, or to inquire into a cause of action upon which that suit was brought.</p> <p>Many cases have been cited by the very able counsel for the plaintiff, which would be to the point and would probably rule this case in favor of the plaintiff in this case, were this case being heard upon appeal, so that we might go into the merits of the claim of the plaintiff in the suit before the justice. But we are unable to see how we can go back of the justice’s judgment.</p> <p>There is still another reason why we cannot sustain this injunction and that is, it was granted without injunction affidavits being filed, and therefore, granted without authority for such granting.</p> <p>Preliminary injunction dissolved. Plaintiff appealed.</p> <p>Errors assigned among others were (1) in holding that from the transcript and summons in the case of S. B. Tupper v. Herbert Rockwell, Pres., Harry Stevens, Secy, and H. A. Ross, Treas., of the Stevensville Creamery Association, Limited, “it is plain that the justice entered judgment against the three persons named as defendants,” and that judgment had been entered against the said officers in their personal capacity. (3) In not continuing the preliminary injunction.</p>

<p>Appeal, No. 23, March T., 1898, by plaintiffs, from judgment of C. P. Cumberland Co., May T., 1893, No. 95, in favor of defendant, on framed issue.</p> <p>Framed issue. Before E. W. Biddle, P. J.</p> <p>It appears from the record that judgment was entered on a note of John A. Naugle in favor of A. J. Kutz and II. A. Kutz, trading as A. J. Kutz & Son, for $290. An execution being issued on this judgment, a petition was taken to stay the fi. fa. and let defendant into a defense on which petition a rule was granted and an issue framed, the inquiry submitted to the jury being, “what portion, if any, of said note is still due by the defendant to the plaintiffs ? ”</p> <p>The plaintiffs submitted the following points, which were refused by the court:</p> <p>1. That the burden of proof is on the defendant, John A. Naugle, to show by the preponderance of evidence, not only that A. J. Kutz bought the burnt iron, but also that the purchase money thereof was to be applied to the payment of the note of A. J. Kutz & Son. The only evidence on this point for defendant is that of John A. Naugle himself, and as he is directly contradicted by the plaintiff, there is no preponderance of evidence, and the defendant’s case fails.</p> <p>The defendant’s evidence, if true, would merely show an appropriation of partnership assets for the individual use of A. J. Kutz. Such a defense is not available against a claim by the firm of A. J. Kutz & Son, and the verdict must therefore be for the plaintiffs.</p> <p>■2. Under all the evidence the verdict must be for the plaintiffs.</p> <p>Other facts appear in the opinion of the court.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned among others were (1-3) refusal of plaintiffs’ points reciting same. (4) In rejecting plaintiffs’ offer of evidence to prove that notice of the dissolution of the partnership was sent to the defendant by mail, and that he was also verbally notified thereof.</p>

<p>Common carriers — Duty of — Connecting roads.</p> <p>A common carrier is bound to exercise reasonable diligence in forwarding freight, having regard to its character and his facilities for transportation. That a connecting carrier to whom it is to be transferred may be unprepared to continue the transportation with due promptness does not excuse a neglect to observe such diligence. The obligation of the first carrier is in .no sense contingent on the readiness or ability of the second to act. in the premises.</p> <p>Common carriers — Due diligence — Question for jury.</p> <p>As to the ability or inability of a defendant carrier to forward freight with due promptness, nothing is to be assumed, and as there is no fixed standard by which his duty is to be measured it cannot be declared as a matter of law. When, therefore, cattle have been delayed en route, the questions whether they were forwarded with reasonable dispatch, and if not whether injury arose from default in transportation, or in the mode of keeping them while in the carrier’s care, become questions for the jury.</p>

<p>Appeal, No. 23, Feb. T., 1898, by plaintiff, from judgment of C. P. Potter Co., Dec. T., 1888, No. 237, confirming report of referee.</p> <p>Assumpsit. Before A. G. Olmsted, referee.</p> <p>It appears from the record that Alfred Baxter brought an action of assumpsit against Henry Hurlburt to recover the sum of #207.89, with interest from October 30, 1885. By agreement of the parties the case was referred to the Hon. A. G. Olmsted, under the Act of February 23, 1870, P. L. 219, being a special act for Tioga and Potter counties. The case came to trial before the referee on December 2, 1895.</p> <p>On December 6, 1895, the referee filed a report, finding certain facts and concluding as follows : “And now, December 6, 1895, the prothonotary is directed to file this report and enter judgment in favor of the defendant and against the plaintiff for costs.” Plaintiff appealed.</p> <p>Errors assigned were (1) in not giving notice to the plaintiff or his counsel of the time of filing his report. (2) In filing his report and having judgment entered thereon by the prothonotary, without previous notice to the plaintiff or his counsel.</p>

<p>Contract — Severable contract to furnish water.</p> <p>A contract to furnish an ample supply of water to a municipality for ten years for twenty-five fire hydrants at the annual rental of $600, payable $300 semiannually, is a severable one and the borough is liable for the actual service rendered in good faith under such contract.</p> <p>Evidence — Insufficiency of water supply — Use by other customers.</p> <p>Suit being brought against a borough on a contract to pay rental for fire hydrants pending an ample supply of water furnished by the water company, and the defense resting on the, fact that a sufficient supply had not been furnished, evidence was properly rejected which tended to show that by reason of the consumption of water by a railroad, a tannery and a factory, the supply of water was diminished and the borough protection impaired, it appearing that it was the right and duty'of the water company to supply water to residents of the borough contracting therefor.</p> <p>Practice, C. P. — ■Discretion of court as to orderly production of evidence.</p> <p>A trial court is vested with discretion as to the order of proof and the conduct of the case and this discretion will not be interfered with where offers are rejected to prove matters in surrebuttal which, if admissible at all, were not admissible at that time.</p>

<p>Appeal, No. 12, Feb. T., 1898, by-defendant, from judgment of C. P. Clearfield Co., Feb. T., 1897, No. 85, on verdict for plaintiff.</p> <p>Feigned issue. . Before Raybueh, P. J., of tlie 33d judicial district, specially presiding.</p> <p>The following facts appear from tlie record and evidence: The plaintiff in the issue was a judgment creditor of one, A. W. Brickley, who had assigned to his son, W. G. Bricldey, the defendant in the issue, two policies on the life of his wife, Kate J. Brickley. The wife died July 22, 1896. The policies were assigned October 18, 1895. At the time of the assignment, A. W. Brickley was insolvent and his real estate was incumbered by judgments in favor of the wife. There was evidence, although conflicting, tending to show indebtedness by the father to the son at the time of the assignment; also evidence tending to show that the son was a weakly and sickly young man. After the death of the wife and mother the plaintiff issued an attachment execution summoning the insurance company as garnishee, and the issue was awarded to try the right to the money paid into court.</p> <p>The plaintiff presented the following point: “As it appears by the undisputed testimony in tlie case that at the time of the assignment of tlie policies of insurance, the assignor, A. W. Bricldey was insolvent, his real estate having been incumbered by his wife’s judgments, and other judgments, and his property both personal and real having been sold to his wife prior to the assignments, there is no such consideration for the assignments shown as entitles the defendant, W. G. Brickley, to retain the money- against the plaintiff, A. B. Sebring, and your verdict must be for the plaintiff,’’ [1] which was affirmed by the court.</p> <p>Verdict and judgment for plaintiff for $420. Defendant appealed.</p> <p>Error assigned among others was (1) affirmance of plaintiff’s point, reciting same.</p>

<p>Appeal, No. 61, March T., 1898, by plaintiff, from judgment of C. P. Cumberland County, September T., 1.897, No. 238, on verdict for defendant.</p> <p>Assumpsit. Before E. W. Biddle, P. J.</p> <p>It appears from the evidence that plaintiff brought suit to recover the sum of $2.00 a week for board, lodging and washing and other necessaries furnished to his brother-in-law, the decedent, John Eckert, for six years prior to the death of said decedent. The evidence was practically uncontradicted that Eckert had lived with Shumberger for some years on the latter’s farm in Cumberland county during which time he did a certain amount of farm work and no claim was made for his support, Eckert, the decedent, being a deaf mute and not fitted for regular employment. Subsequently he was taken from plaintiff’s house at request and for four or five years resided with another brother-in-law, subsequently returning to the plaintiff’s house who, in the meantime, had moved to Harrisburg in 1891 and during which period there was no labor performed by him contributing to his support or that of the family. Demand was made on his trustee for money for his clothing and certain small sums were received and applied to that purpose. There was also evidence tending to show that the trustee was notified by the plaintiff that in view of the fact that decedent had money it was not the plaintiff’s intention to lceep him for nothing. The property belonging to John Eckert was his portion of his father’s estate left to a trustee without remainder under what appears to be a dry trust. Eckert himself being incapable of making the contract, after his decease suit was brought upon a quantum meruit to recover for the six years prior to his death.</p> <p>The court below directed a verdict for the defendant. Plaintiff appealed.</p> <p>Error assigned among others was giving binding instructions to the jury to find for the defendant.</p>

Appeal, No. 15, March T., 1898, by defendant from judgment of C. P. Cumberland Co., on verdict for plaintiff. Ejectment. Before E. W. Biddle, P. J. It appears from the evidence that the plaintiffs, claiming under a purchaser at a treasurer’s tax sale; brought their ejectment against the defendant claiming under the owner at the time the sale was made. The sale was made June 9, 1884 ; the action was. instituted April 14, 1896.

Appeal, No. 85, Oct. T., 1897, by defendant, from judgment of O. P. No. 2, Phila. Co., Dec. T., 1896, No. 356, in favor of plaintiff on case stated. Case stated. Before Wiltbank, J. The facts sufficiently appear in the opinion of the court. The court below entered judgment for the plaintiff on the case stated, in an opinion by Wiltbank, J., reported in 6 Dist. Rep. 234, for 1139.60. Defendant appealed. Error assigned was entry of judgment on case stated in favor of plaintiff.

<p>Appeal, No. 16, March T., 1896, by defendant, from judgment of C. P. Lebanon Co., Dec. T., 1893, No. 119, on verdict for plaintiff.</p> <p>Trespass. Before Ehrg-ood, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $300. Defendant appealed.</p> <p>Errors assigned were (1) in striking off the plea in bar, setting forth matter in the nature of accord and satisfaction, filed by permission of court, from the record, on motion of plaintiff. (2) In overruling offer of defendant to file a release from the Evangelical Association to himself, in the case. (3) In rejecting an offer by the defendant of a release from the Evangelical Association of North America bj John J. Esher, bishop and a member of the litigating committee. (4) In rejecting an offer of testimony on the part of the defendant to prove by a witness on the stand that he was the secretary of the conference of tbe Evangelical Association of North America which met at Potts-town in March, 1895; that that conference was the only annual fconference and was the conference that adhered to the Indianapolis conference in 1891. That this property is by church law under the control of this conference. That the bishop is the president of the Evangelical Association of North America, that he was authorized by resolution of the conference to execute a release to defendant in this suit for the damages which the association had sustained by reason of the destruction by fire by the defendant and to settle the same; that witness was present and saw the president of the Evangelical Association of North America sign and seal this release and duly acknowledge it as such president, and that he attested it as secretary of the conference and as a witness and that he was instructed so to do by the conference; and also that he was secretary of the Evangelical Association of North America. (5) In rejecting the following offer of testimony made on the part of defendant: “We propose to prove that the witness, who was at the time of the institution of this suit, a minister in the United Evangelical Association of North America, fills a station from the Allentown conference. That he is an adherent to the Philadelphia conference of 1891 and that he is one of the trustees of this corporation and assisted in bringing this suit and is hostile to the .Indianapolis conference.” (6) In rejecting an offer on the part of defendant to prove the same as to all the other five trustees. (7) In rejecting the following offer of testimony made on the part of defendant: “Now then we propose to prove further that no other trustees have as yet been appointed by the Evangelical Association of North America or the members, — no trustees have as yet been appointed by the conference which have authority to appoint them or the members who may have authority to appoint them. We also further propose to prove that this church is within the district of the Pottstown conference; that all church authority must emanate from that conference; that ministers have been appointed by the Allentown conference, a conference hostile to the Indianapolis and Pottstown conference, who have officiated and held services in this church.”</p>

<p>Appeal, No. 56, March T., 1898, by R. L. Miller, from judgment of C. P. Lebanon Co., for want of a sufficient affidavit of defense.</p> <p>Scire facias sur recognizance. Before Ehrgood, P. J.</p> <p>It appears from the record and affidavit of defense that Harry De Burt was convicted of desertion before the court of quarter sessions in Lebanon county and ordered to pay to his wife for the support of herself and children the sum of $3.00 per week and entered into a recognizance in the sum of $100 for the faithful compliance with the terms of the order of court. The appellant, Robert L. Miller, became surety on said recognizance and defendant was discharged and returned to Philadelphia. Before suit was brought certain payments were made by the defendant, De Burt, and certain others were advanced by the appellant, Miller, amounting in all to some $30.00. Finally the surety refused to pay any more and the scire facias was issued to collect the amount of the recognizance and nihil habet was returned as to Harry De Burt.</p> <p>< The surety filed an affidavit of defense in which he raised several questions of fact and law and claimed that the children for which the weekly allowance was intended wore no longer in the custody of the mother but were kept by charitably disposed persons and that therefore, the conditions having changed, the court should remit part of the amount by making such order in the case as would be warranted by the facts which would be proved upon the trial of the casq; that he had paid the sum of $30.00 to the wife of the defendant out of his own pocket and that credit should be allowed him on the principal of the recognizance, for the amount actually paid by him.</p> <p>The court below filed the following opinion:</p> <p>Harry De Burt, one of the above named defendants, was the defendant in a desertion case, in which his wife, the relator, was the complainant and was held in a recognizance in the sum of $100, with Robert L. Miller, the other above named defendant, as his surety, conditioned for the payment of a weekly allowance of $3.00 to his said wife and children. The defendant having neglected to pay said weekly allowance, a scire facias was issued on said recognizance and we are now asked to enter judgment for want of a sufficient affidavit of defense.</p> <p>The order of the court, as to the maintenance of the wife and children, as recorded by the clerk of the quarter sessions, who also took the recognizance, cannot be attacked collaterally in the manner in which it is attempted in this case.</p> <p>All payments made by the surety, prior to the bringing of the suit, were in compliance with the conditions of the recognizance, and no suit could have been brought on the same until a default of payment occurred. The recognizance is a continuing security, which is not lessened by the weekly payments, made in compliance with the conditions thereof, whether by the principal or the surety. But the surety after a breach of the condition of the recognizance and a sci. fa. issued thereon can not be compelled to pay more than the amount of the same.</p> <p>The affidavit of defense is not sufficient to prevent judgment in favor of the commonwealth for the amount of the recognizance, and in favor of the relator for the sum due at the time of the bringing of this suit.</p> <p>And now, January 8, 1898, judgment is directed to be entered in favor of the commonwealth for the sum of $100, and in favor of the relator, Lucretia De Burt, for the sum of $33.00. Judgment in both instances to be entered against Robert L. Miller alone.</p> <p>Defendant Robert L. Miller appealed.</p> <p>Errors assigned were (1) in declaring the affidavit of defense insufficient in law. (2) In not allowing credit for payments made by the surety prior to the issuing of the scire facias upon the recognizance and after default. (3) In not permitting the appellant to prove the amounts paid by him as surety before the suit was brought. (4) In entering judgment in favor of the relator and against the appellant for the sum of $33.00. (5) In entering judgment in favor of the commonwealth and the relator in the sum of $133 or $33.00 in excess of the amount of the recognizance.</p>

<p>Appeal, No. 24, March T., 1898, by defendant, from judgment of Q. S. Cumberland Co., Nov. Sess., 1896, No. 48, on verdict of guilty.</p> <p>Indictment for a nuisance and maintaining a nuisance. Before E. W. Biddle, P. J.</p> <p>It appears from the record that the defendant company was indicted for maintaining a nuisance on a certain public highway •by unlawfully erecting embankments and piers and placing thereon an overhead iron bridge called a Y* It also appears from the evidence that: The Northern Central Railway constructed its road on the west bank of the Susquehanna and crossed this highway a short distance from the river and the bridge. It crossed the turnpike at grade where the road made a sharp descent towards the river. This grade crossing was complained of as a nuisance. The railway company was convicted and required to abate the nuisance. (The case is reported as Northern Central Railway Co. v. Com., 90 Pa. 30G.) In abatement of the nuisance the railway company made an undercut for the turnpike road about six hundred and forty feet in length and crossed with its main track by an overhead bridge. The width of this undercut was twenty-four feet while the right of way of the turnpike road was fifty feet with the requirement that twenty-two feet of roadway should be kept up. The undercut was made in 1882 with the consent of the turnpike company, was accepted and has since been used as its roadway.</p> <p>This being the situation the railway company about 1885 constructed the railroad Y crossing by an overhead bridge over the undercut made for the turnpike a short distance west of the main track. It gave to the bridge a clearance of eleven feet nine inches on one side and twelve feet six inches on the other side, while the clearance of the Harrisburg bridge was ten feet nine inches.</p> <p>At the trial defendant offered in evidence certain acts of assembly relating to the incorporation of the Harrisburg bridge leading to the city of Harrisburg for the purpose of showing “ that in the building of the Y bridge a clearance was allowed equal to and in excess of the clearance fixed in the great sj'Stem of roads between Harrisburg and Pittsburg, and the existing clearance of this Harrisburg bridge, one of the sections of that system, and for the further purpose of showing that the railroad company, in making that clearance, did all that could be required of it.” These offers were rejected under objection. [1,2]</p> <p>Defendant submitted, inter alia, the following point, which was refused: “ 6. The walls of the Y bridge having a space of twenty-four feet in the clear between them are beyond the roadway as relocated by the railway company, at the instance of the turnpike company, and do not constitute a nuisance.” [3]</p> <p>The court below charged the jury, inter alia, as follows :</p> <p>[If the defendant did build and maintain a stone pier within the limits of the twenty-four feet wide turnpike, and thereby unduly interfered with public travel and convenience, then it was guilty of building and maintaining a nuisance. If, however, it did not impinge upon the turnpike as the same was accepted and adopted by the turnpike company in 1888, then it cannot be held responsible for any interference, or supposed interference, with public travel by reason of the piers being within twenty-four feet of each other.</p> <p>So in relation to the inquiry whether the superstructure of the bridge is so near the roadbed that it constitutes a nuisance, the same principles must guide you. If public travel and convenience was unduly interfered with by reason of the structure not-, being higher, the defendant was on that account guilty of the erection and maintenance of a nuisance; otherwise it cannot be adjudged to be guilty.</p> <p>The true question, therefore, is, has the defendant unlawfully invaded the rights of the people? Has it done that in the erection of the bridge which works injurious results to the public ? Has it made an unreasonable obstruction upon a public highway? Does the bridge complained of unreasonably inconvenience or incommode public travel? If you answer those inquiries in the affirmative, your verdict should be guilty. If in the negative then it should be not guilty.] [6]</p> <p>And refused defendant’s ninth point, which was as follows: “Under the evidence in this case and the law applicable thereto, a verdict of acquittal should be rendered by the jury.” [7]</p> <p>The jury found the defendant “ guilty in manner and form as it stands indicted as to the pier or abutment on the northeast, and also as to the elevation of the overhead bridge and in regard to width of highway,” the court entering the following sentence:</p> <p>“And now, July 8,1897, the motion for a new trial is overruled, the concluding words of the verdict, “ and in regard to the width of highway,” are rejected as surplusage, and the sentence of the court is, that on or before the 1st day of September next the Northern Central Railway Company abate the nuisance which it stands convicted of maintaining’ to wit: that it remove so much of .the pier or abutment at the northeast portion of the crossing specified in the indictment as stands within the limits of the twenty-four feet wide roadway, and that it increase the elevation of the iron bridge at said crossing to such an extent as to remove the obstruction to public travel which exists there by reason of the insufficient elevation of the bridge, and that it pay a fine of one dollar and the costs of prosecution.” Defendant appealed.</p> <p>Errors assigned among others were (1, 2) rejecting offers of evidence on the part of defendant as to the character and status of the so-called Harrisburg bridge for the purpose of showing that the railroad company in making the clearance of the Y bridge, did all that could be required of it, reciting said offers. (3) In refusing defendant’s sixth point, reciting same. (4) Refusal of defendant’s eighth point: “ 8 The Harrisburg bridge at the time of the construction of the Y bridge by the Northern Central Railway Company was the only roadway leading from the turnpike and the lower end of Cumberland county into Harrisburg, and the clearance given the Y being in excess of that in the Harrisburg bridge, must be deemed to have been reasonable, and therefore is not a nuisance.” (6) To a portion of the general charge, reciting same. (7) In refusing defendant’s ninth point, reciting same. •</p>

Appeal, No. 17, Feb. T., 1898, by plaintiff, from judgment of C. P. Clearfield Co., Dec. T., 1892, No. 173, on verdict for defendant. Assumpsit. Before Rayburn, P. J., of the 33d judicial district, specially presiding. The plaintiff executed a lease under seal for all the merchantable coal in what was known as the Soult or cannel seam under a certain tract of land in Clearfield county.

<p>Appeal, No. 45, March T., 1898, by plaintiff, from order of C. P. York Co., Aug. T., 1897, No. 71, refusing judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit. Before Bittehger, P. J.</p> <p>It appears from the record that the plaintiff claimed $600 for the total destruction of a country sawmill and cider press insured with the defendant company.</p> <p>Defendant filed the following affidavit of defense :</p> <p>That the said defendant has a just and legal defense to the whole of plaintiff’s claim, as set forth in his statement filed, as follows:</p> <p>1. The subject of insurance, as set forth in the plaintiff’s statement, was a manufacturing establishment and contents. At the time of the alleged fire said manufacturing establishment had ceased to be operated for more than ten consecutive days. The policy, as recited in said plaintiff’s statement, provided that the entire policy shall be void if the property insured, being a manufacturing establishment, shall cease to be operated for more than ten consecutive days.</p> <p>2. That the subject of insurance, as set forth in the plaintiff’s statement, was a sawmill, machinery, cider mill and press attached and lumber and tools and personal property therein; that the said sawmill was in a decayed condition and had partly fallen down as a result thereof, and the said plaintiff had sold a part of the brick of said structure and removed therefrom a part of the rafters of said sawmill which had ceased to be operated for several years prior to the fire. The policy as recited in said plaintiff’s statement provides, that, “ If a building or any part thereof shall fall except as the result of fire, all insurance by this policy on such building or its contents, shall immediately cease."’ That the upright saw in said mill had also been removed from the alleged building destroyed by fire, as well as part of the machinery and cider mill and press were not in the building alleged to be insured at the time of the fire.</p> <p>3. The plaintiff failed to furnish the company defendant with an itemized statement of his loss, as required by the conditions of his policy and the demand made upon him by the company.</p> <p>All of which the defendant expects and believes it will be able to prove upon the trial of the case.</p> <p>Motion for judgment for want of a sufficient affidavit of defense was overruled. Plaintiff appealed.</p> <p>Error assigned was overruling motion for judgment for want of a sufficient affidavit of defense, and discharging said rule.</p>

<p>Appeal, No. 8, March T., 1898, by plaintiff, from decree of O. C. York County, in distribution.</p> <p>Exceptions to auditor’s report. Before Bittenger, P. J.</p> <p>The -following facts appear from the auditor’s report: After the formal parts the decedent’s will was as follows:</p> <p>“As to such estate as it hath pleased God to entrust me with, I dispose of the same as follows, to wit: 1st. I give and bequeath to my son John W. Gantz, $110.00. 2nd. I give and bequeath to Lydia Florence Wiley, my granddaughter, and I give and bequeath to Elizabeth J. Tyrrell, my daughter, share and share alike. 3rd. I give and bequeath to Samuel G. Hersey, my grandson, and Francis G. Hersey, my grandson, share and share alike with my other heirs. 4th. I give and bequeath to Francis S. Tyrrell, my grandson, $20.00. 5th. I give and bequeath to Chester G. Hersey, son of Samuel G. Hersey, $20.00.”</p> <p>Then follows the appointment of the executor and the execution of the will. Testator left no widow. John W. Gantz and Elizabeth J. Tyrrell are his only surviving children. Lydia Florence Wiley is the only child of a deceased son. Samuel G. Hershey and Francis G. Hershey are the only two children of a daughter of the testator whose death-preceded his. The persons mentioned are the persons to whom the estate would have passed had he died intestate. Francis S. Tyrrell is the son of Elizabeth J. Tyrrell. Chester G. Hershey, as appears by the will, is a great grandson, being the son of Samuel G. Hershey, mentioned in the will.</p> <p>The auditor in his construction of the will awarded to John W. Gantz only the specific legacy of $110. Exceptions to the auditor’s report were dismissed by the court. John W. Gantz appealed.</p> <p>Errors assigned among others were (2) in not awarding John W. Gantz, the one fourth part of the proceeds of the real estate after deducting the legitimate expenses incident to sale, etc. (5) In holding that the words, “share and share alike with my other heirs ” in the third item or clause of the will, “ relates to heirs just mentioned, (Lydia Florence Wiley and Elizabeth J. Tyrrell), in the preceding paragraphs, the heirs designated in the will to inherit his residuary estate, and not his heirs at law, including the exceptant, John W. Gantz.”</p>

Appeal, No. 22, Feb. T., 1898, by plaintiff, from judgment of C. P. Potter Co., March T., 1896, No. 33, on verdict for defendant. Replevin. Before Olmsted, P. J. The following facts appear from the evidence on the trial as recited in the opinion of the court below refusing to show cause why a new trial should not be granted.

<p>Appeal, No. 57, March T., 1898, by defendants, from judgment of C. P. York Co., April T., 1896, on verdict for plaintiff.</p> <p>Ejectment. Before Bittenger, P. J.</p> <p>It appears from the evidence that this was an action of ejectment to recover possession of a certain house and lot of ground described in the plaintiff’s writ. Both the parties claimed title through Henry Heartzog, the plaintiff by will and the defendant under an alleged parol contract, the tenor of which being an alleged agreement by Henry Heartzog in his lifetime that Louisa Borgel should have the property for life. Offers were made to prove this ^agreement by oral testimony, which were rejected by the court below, who instructed the jury to find a verdict for the plaintiff. Defendants appealed.</p> <p>Errors assigned among others were to the rejection of defendants’ offers of evidence tending to show a parol agreement with the defendant Louisa Borgel by Henry Heartzog in his lifetime granting her a life estate in the property in question, to be followed by evidence of the possession of the property by the defendant, continuing to the preseñt time with the knowledge of the plaintiff in this case and with the knowledge of the testator in his lifetime.</p>

Appeal, No. 12, March T., 1898, by defendant, from judgment of C. P. Cumberland Co., Aug. T., 1895, on verdict for plaintiff. Assumpsit. Before E. W. Biddle, P. J. It appears from the record that plaintiff purchased from defendant certain mountain land in Cumberland county. Under the written agreement for the sale of the land the defendant covenanted to convey clear of all incumbrance.

Appeal, No. 14, March T., 1898, by defendant, from judgment of C. P. Huntington County, Dec. Term, 1895, No. 30, on verdict for plantiff. Assumpsit on policy of insurance. Before Bailey, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $555.83. Defendant appealed. Error assigned among others was (9) refusal of binding instructions for defendant.

Appeal, No. 29, March T., 1898, by plaintiff, from judgment of C. P. Perry Co., J an. T., 1896, No. 23, for defendant non obstante veredicto. Orlady, J., dissents. Assumpsit. Before Lyons, P. J. The following facts appear from the record: Counsel for the plaintiff offers paper marked No. 1, April 16, 1897, J. P. C., it being admitted that the said paper is the subscription paper and that the same was signed by Wm. Seager, and the name Wm.

<p>Married woman — Statute of limitations — Repeal—Statutes.</p> <p>Tlie exception or proviso in the limitation Act of March 27, 1713, 1 Sm. L. 77, which prevents the statute of limitation from running- against a feme covert until discoverture has come to her, was repealed by the married person’s property Act of June 3, 1887, P. L. 332, substantially re-oaacted in the somewhat broader Act of June 8, 1893, P. L. 344. A married woman, so far as regards her claims against all except her husban'd, must now sue within the time allowed her in case she were a feme sole.</p> <p>Statutes — Rejoeal—Rules of construction — Implied repeal.</p> <p>Where the object and reason for which a statute was passed are removed by a later enactment, there is an implied repeal of the former statute. Public policy and the duty to escape absurd results forbid any interpretation that would lead to unjust and unequal consequences, if there is any reasonable way to avoid them. The exception in the act of 1713, in favor of married women was inserted because they might not sue without the consent and joinder of their husbands. This disability was removed by the acts of 1887 and 1893, and cessante ratione ccssat ipsa lex.</p>

<p>Corporation — Mortgage—Appointment of trustee on petition of bondholders — Jurisdiction, C. P.</p> <p>Where a railroad mortgage provides for the appointment of a trustee, to fill a vacancy in a trusteeship, by a majority of the bondholders, the court of common pleas has power to confirm such trustee upon petition of a bondholder’s committee representing a majority of the bonds, and the decree of the court confirming such appointment is equivalent to a finding of fact that the petitioners were a committee of the holders of a majority of the bonds, outstanding at the time of the decree, intended to be secured by the mortgage.</p>

<p>Married woman — Contract for support — Cause of action.</p> <p>A contract between husband and wife whereby the former agrees to pay the latter a certain monthly sum for maintenance after he had deserted her, vests in the wife a separate property right for which she is entitled by the act of 1898 to maintain an action against him.</p> <p> Estoppel does not extend beyond point litigated. </p> <p>A question once litigated and determined between parties cannot be opened in another action for the'same cause between the same parties, but the estoppel does not extend beyond the point actually litigated and determined.</p> <p>A judgment entered by a justice for the defendant on the sole ground that the existence of a written agreement was a necessary condition to the recovery of certain arrears alleged to be due on a contract, does not work an estoppel on an appeal from the same justice giving judgment for the plaintiff for other monthly arrears accruing under the same alleged contract but for other periods of time, prior to those claimed in the second judgment.</p>

<p>Evidence — Competency of dying declarations in abortion.</p> <p>The admission of evidence cannot be assigned for error, if it were competent for any purpose unless the party objecting first required its purpose to be slated.</p> <p>An indictment for an attempt to procure miscarriage andan indictment for procuring an abortion were tried together resulting in a conviction on the first indictment and an acquittal on the second, evidence of the dying declaration of the mother was admitted under a general objection. Held, that the evidence was competent as all of the essential averments of both indictments were in issue.</p> <p>Evidence — Abortion—Eying declarations — Admissibility.</p> <p>Dying declarations having been made competent evidence in indictments for abortion, the nature of the issue in which they are admitted can make no difference in determining the intrinsic value of the evidence except that no conviction can be had on the uncorroborated declarations of • the woman.</p> <p>Charge of court — Comments on dying declarations.</p> <p>The charge of the court is not open to criticism as to comments on the weight to be given to dying declarations when in such instructions as a connected whole the court pointed out to the jury the weak points in sucli evidence as well as the considerations which tend to equalize it in probative effect with evidence given under oath.</p>

<p>Appeal, No. 60, March T., 1898, by directors of the Poor and House of Employment of Cumberland County, from decree of Q. S. Juniata Co., Dec. Sess., 1897, No. 5, from order of removal.</p> <p>Appeal from order of removal. Before Lyons, P. J.</p> <p>The facts sufficiently appear from the opinion and decree of the court below, as follows:</p> <p>Dr. Philip A. Smith and family, consisting of his wife, Ida B. Smith and daughter, Margaretta Smith, became a charge on Walker township, poor district in Juniata county, Pa., an order for their relief having been issued by two justices of the peace of said county, May 31, 1897. Subsequently the overseers of the poor of Walker township discovered that Dr. Philip A. Smith had gained a settlement in Middlesex township, Cumberland county, and gave due notice to the directors of the poor and house of employment in and for Cumberland county, in accordance with the act of assembly, approved the 12th day of May, A. D. 1897, P. L. 63, that an order of removal would be applied for at the office of J. Frank Patterson, Esq., a justice of the peace in the borough of Mifflintown, on Saturday, July 17, A. D. 1897, at 10 o’clock, A. M., before two justices of the peace in and for Juniata county, to remove the said Dr. Philip A. Smith and Ida B., his wife, from the poor district of Walker township to the poor district of Cumberland county. A hearing on said application was had at the time and place mentioned in said notice, before J. Frank Patterson, Esq., and George W. Wilson, Esq., two justices of the peace, who granted an order for the removal of the said Dr. Philip A. Smith, Ida B. Smith his wife, and their minor daughter, Margaretta Smith, from the poor district of Walker township to the poor district of Cumberland county, which the said two justices adjudged to be the last place of legal settlement of the said Dr. Philip A. Smith, wife and daughter, in pursuance of which order of removal the said Dr. Philip A. Smith and Ida B. Smith, his wife, were removed to the poor district of Cumberland county on the 20th day of July, A. D. 1897.</p> <p>From this order of removal the directors of the poor and house of employment of Cumberland county, appealed to the next court of quarter sessions of the peace in and for Juniata county, on the 6th day of September, A. D. 1897.</p> <p>Dr. Philip A. Smith was born in Walker township, Juniata county, on the 4th day of May, 1861, and that was his legal settlement by birth. He has resided there during the greater part of his life.. On the 2d day of August, 1888, he was married to Ida B. Bittinger, and of this marriage one child, Margaretta Smith, was born July 31, 1892.</p> <p>In January, 1893, he removed with his family to Middlesex township, Cumberland county, Pa., and it is admitted that he leased a house there from Mrs. Lydia Gill for a period of one year from April 1, 1893, to April 1, 1894, at a rent of $60.00 per annum; that he moved into said house in March, 1893, and moved from said house sometime in April, 1894, and that he paid Mrs. Gill either in. services or money, $38.50, on account of the rent for said house. In this way Dr. Smith clearly gained a settlement in Cumberland county, and that is the last legal settlement of the said Dr. Smith, unless he subsequently gained a settlement elsewhere.</p> <p>An attempt was made to show that he had subsequently gained a settlement in Walker township, Juniata county. First, by taking board and lodging in Mexico, Walker township, and remaining there more than one whole year; and second, by the payment of taxes for two successive years. The evidence shows that Dr. Smith and family came back to Juniata county in the latter part of June, 1894, poor and penniless; that they remained at the home of his mother-in-law, Mrs. Bittinger, in the borough of Thompsontown several weeks; that both he and his wife had become addicted to the excessive use of narcotic drugs; that his wife and child remained with her mother, and the doctor visited among his brothers and sisters and other relatives until January 6, 1896, when his brother John, in order to assist him to earn a living for himself and family, agreed to pay his boai’ding and lodging with his sister, Mrs. Susaxx B. Bux-ris, in Mexico, Walker township, for five months,'and Ixis brother Amos furnished him with a horse axxd hay to feed the horse. In pursuance to this arrangement he went to board axid lodge with Mrs. Burris January 6, 1896, and remained there until about April, 1897. His brother Jolux agreed to pay Mrs. Burris $10.00 per month for his board, lodgixxg and washing. This arraxxgement’lasted three months. Then Mrs. Burris, being unable to do his washixig, boarded and lodged him under this agreement with John Sxnith at the rate of $9.00 per month for two months loxxger, in all five months, wheix his brother declined to pay his boarding any longer. The doctox’, however, remained with Mrs. Burris until April, 1897, and paid her oxi account of his board and lodging, about $40.00 in cash and labor and medicine. Counsel for Cumberland county poor district claim that the lodging was worth about one-third of the axxxount paid for -board and lodging, and that Dr. Smith thus gained a settlement in ■Walker township. But this is not sufficient to gain a settlement. The doctor did not rent or lease any part o£ the dwelling of Mrs. Burris. He had his own sleeping apartment and had a shelf put up in a room occupied by him in common with the family of Mrs. Burris and that was all. This was not such a lease of real estate as is contemplated by the act of assembly pf June 13, 1836. He was merely a boarder and did not gain ^settlement by_ residence with Mrs. Burris.</p> <p>There is no evidence that he paid taxes for two years successively. The doctor testified that .he did not pay any taxes after he returned from Cumberland county. There is nothing in the evidence that would warrant a finding that Dr. Philip A. Smith gained a settlement in Walker township subsequent to April, 1894.</p> <p>The following are therefore found as facts :</p> <p>1. That Dr. Philip A. Smith was born in Walker township, Juniata county, on May 4, 1861, and had a legal settlement there which continued until he gained a settlement in Middle-sex township, Cumberland county, Pa.</p> <p>. 2. That he took a bona fide lease of a house and lot of ground in Middlesex township, Cumberland county, Pa., from April 1, 1893, to April 1,1894, from Mrs. Lydia Gill at a rent of $60.00 per annum; that he dwelt in said house from the latter part of March, 1893, until sometime in April, 1894, more than one whole year, and paid $38.50 on account of said rent.</p> <p>3. That the said Philip A. Smith never acquired a legal settlement after he left Cumberland county.</p> <p>4. That Cumberland county is the last place of legal settlement of the said Philip A. Smith.</p> <p>CONCLUSIONS OF LAW.</p> <p>.!• That Dr. Philip A. Smith gained a settlement in Cumberland county.</p> <p>2. That the order of removal in this case must be confirmed.</p> <p>Cumberland county directors appealed.</p> <p>. Errors assigned were to the answers of the court to the points of fact and law presented by the plaintiff.</p>

<p>Appeal, No. 96, April T., 1898, by defendant, from judgment of C. P. No. 21, Allegheny Co., April T., 1897, No. 539, for want of a sufficient, affidavit of defense.</p> <p>Assumpsit on articles of agreement to sell real estate clear of incumbrances.</p> <p>It appears from the record that William H. Denniston, the defendant, by articles of agreement entered into with the plaintiff, agreed to purchase from the plaintiff certain lots of land and assume the payment of certain mortgages existing as an incumbrance against said lots. The plaintiff executed and delivered to Denniston a deed of general warranty for the lots aforesaid, and no reference whatever was made to said mortgages upon the lots described therein. Subsequently the mortgages were foreclosed and there was a deficiency of $405, and suit was brought upon the bonds against the plaintiff and judgment recovered against him.</p> <p>Defendant filed a demurrer to the statement, which was overruled. An affidavit of defense was then filed, admitting the facts as alleged in the statement and setting up that the agreement upon which the action was based was merged in the deed upon which the premises were conveyed and that said deed does not contain any covenant or agreement whereby defendant assumes any mortgage or other indebtedness. And that the assumption of the mortgage mentioned in said article of agreement upon which suit is brought, does not place any personal liability upon the defendant.</p> <p>The court entered judgment in favor of the plaintiff for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Errors assigned were (1) overruling defendant’s demurrer. (2) Making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Road law — Paving by street railway — Liability of abutting owner.</p> <p>Where a borough has been reimbursed by a street railway company iojt the cost of paving the roadway of a street, it cannot again collect the cost of the same from the abutting properties.</p>

<p>Appeal, No. 83, April T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1896, No. 700, on verdict for plaintiff.</p> <p>Trespass. Before Courier, J.</p> <p>It appears from the evidence that the plaintiff went to the car barn of the traction company to ask for work, he being an “ extra ” conductor, and that having been informed there was no car for him, he started out and in passing out he was struck by a certain ear. Plaintiff alleged that he would not have been struck and injured if the motorman had not failed to sound the gong, and alleged negligence in the motorman in not sounding the gong, which resulted in his injury. The evidence was undisputed that there were two other exits from the car barn which could have been used with perféct safety. That the exit which plaintiff elected to depart by, required him to use a space of but a few inches where, if the car should move, he must inevitably be crushed, and that the car started while he was endeavoring to pass out. It was also undisputed that plaintiff was familiar with the tracks and entrances of the car barn. The court left the question of defendant’s negligence and plaintiff’s contributory negligence to the jury.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned among others was refusal of binding instruct tions in favor of defendant. »</p>

Appeal, No. 118, April T., 1898, by defendant, from order of C. P. No. 2, Allegheny Co., Oct. T., 1895, No. 599, making absolute rule on defendant to pay costs to plaintiff’s witness. Rule on defendant to show cause why it does not pay over the sum of $44.00 to H. E. Kier as witness fees.

<p>Appeal, No. 159, April T., 1898, by Amanda C. Kennedy, from decree of O. C. Fayette Co., Bee. T., 1893, No. 58, in partition.</p> <p>Rule to show cause why execution for costs should not issue in partition proceedings. Before Ewing, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court made absolute the rule to show cause why execution should not be awarded unless the costs prayed for be paid within thirty days. Amanda C. Kennedy appealed.</p> <p>Error assigned was in making the ' following decree: “ It is hereby ordered that the rule to show cause be made absolute' and execution awarded unless said costs are paid within thirty' days.”</p>

Appeals, No. 70 and 80, Oct. T., 1897, by plaintiffs, from orders of C. P. Nos. 2 and 4, Phila. Co., March T., 1897, Nos. 722 and 936 refusing judgment for want of a sufficient affidavit of defense. Actions of assumpsit. Before C. P. Nos. 2 and 4, Phila. county. These cases were argued together.

Appeal, No. 38, Jan. T., 1898, by defendant, front judgment of C. P. Luzerne Co.,- Dec. T., 1897, No. 437, in favor of plaintiff on case stated. Case stated. Before Schuyler, P. J., of the 3d judicial district, specially presiding. It appears from the case stated that the receiver of taxes of the city of Wilkes-Barre under the Act of April 2, 1872, P. L. 740, must have his office in such place in said city as may be approved by the council of said city of Wilkes-Barre.

Appeal, No. 25, March T., 1898, by defendant, from definitive decree of C. P. Cumberland Co., Feb. T., 1897, No. 306, making absolute rule to strike off. appeal from justice. Rule to strike off appeal from the judgment of the justicie of the peace. The facts sufficiently appear in the opinion of the court. The court below made the rule to strike off absolute. Defendant appealed.

Appeal, No. 58, March T., 1898, by plaintiff, from judgment of C. P. Cumberland Co., on verdict for defendant. Assumpsit. Before E. W. Biddle, P. J. It appears from the evidence that plaintiff claimed a balance of $397.81 alleged to be due the decedent by defendant for services rendered. The defendant pleaded non assumpsit infra sex annos. The question turned on the sufficiency of plaintiff’s testimony to remove the bar of'the statute of limitations.

<p>Appeal, No. 131, Nov. T., 1896, by plaintiffs, from judgment of C. P. Chester Co., April T., 1894, No. 49, on verdict -for defendant.</p>

<p>Appeal, No. 59, March T., 1898, by George W. Irwin et al., from decree of Q. S. Adams Co., setting aside report of viewers laying out a public road.</p> <p>Exceptions to report of viewers. Before Swope, P. J.</p> <p>It appears from the record that tire court below sustained exceptions to the viewers’ report and set aside same on the ground that the viewers did not begin their work at the place named in the posted notice, thus misleading parties in interest.</p> <p>George Irwin et al. appealed.</p> <p>Error assigned was in sustaining the exceptions and setting aside report of viewers.</p>

<p>Appeal, No. 138, April T., 1898, by-defendant, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1897, No. 680, refusing appeal from judgment of alderman.</p> <p>Petition for appeal from judgment of magistrate, imposing penalty for sale of oleomargarine. Before C. P. No. 1, Allegheny county.</p> <p>The facts appear from the following petition :</p> <p>“ To the honorable the judges of the court of common pleas No. 1 of Allegheny county.</p> <p>“ Your petitioner respectfully represents:</p> <p>“That on Tuesday the 26th day of October, A. D. 1897, judgment was given against him and in favor of the above named plaintiff in the penalty of one hundred dollars by P. B. Reilly, Esq., an alderman in and for the county of Allegheny, for an alleged violation on October 2, 1897, of the act of the general assembly, entitled ‘ An act for the protection of the public health and to prevent the adulteration of dairy products and fraud in the sale thereof,’ approved May 21, A. D. 1885, upon information that the said defendant had in his possession with intent to sell, and did expose for sale and actually sold as an article of food manufactured out of an oleaginous substance and of a compound of the same other than that produced from unadulterated milk or cream from the same the said article not being in an unbroken package, transported from another state of the United States, or from a foreign country at the time it was had and sold as aforesaid, contrary to and in violation of the act of the general assembly of the commonwealth of Pennsylvania.</p> <p>“ Your petitioner avers that he is not guilty as alleged in said charge of violation of said act of the general assembly and he further avers that he is not interested in any business whatever where oleomargarine or any of its compounds are sold, that he did not have in his possession with intent to sell, or expose for sale, or sell oleomargarine on said 2d day of October, 1897, nor at any other time before or since said date.</p> <p>“ On the contrary your petitioner avers that at the hour set for the hearing in the above stated case, he appeared before said magistrate with his witnesses and testified that he was a proprietor of a restaurant located in the city of Pittsburg, where all the articles sold by him were sold at a price named on the bill of fare, the same being so much for bread, another price for coffee, another price for meat, and so on through the entire bill of fare, each article sold, or exposed for sale, being itemized, •and the price attached thereto; that butter was not on the bill of fare, nor was it a part thereof, nor was any difference made in the price charged for any or all the items named on defendant’s said bill of fare, whether butter was asked for and used, or not.</p> <p>“ This affiant averring that while oleomargarine or butter was not upon the bill of fare, nor that it constituted a part thereof, yet for the accommodation of his patrons he had a large bowl at all times containing small platters of butter or oleomargarine, in large or small numbers as they might require, for which no price was asked.</p> <p>“Your petitioner further avers that unless he is allowed a trial by jury, a great injustice will have been done him and he will be compelled to pay money that is not justly due.</p> <p>“Your petitioner therefore prays your honorable court that he be allowed to appeal from said judgment as provided for in the act of the general assembly, approved the 11th of April, 1876.</p> <p>“ James Hendley.”</p> <p>Error assigned was refusing appeal from the alderman.</p>

<p>Appeal, No. 139, April T., 1898, from decree of C. P. Allegheny Co., refusing appeal from judgment of alderman.</p> <p>The proceeding in this case being identical with that of Com. v. Hendley, ante, p. 356, and the same questions being involved, it was agreed by counsel that they be submitted on the same paper-book prepared in that case and that same disposition be made thereof as in that case.</p>

<p>Appeal, No. 142, April T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan T., 1898, No. 306, refusing appeal from judgment of aider-man.</p> <p>Petition for appeal from judgment of magistrate, imposing penalty for sale of oleomargarine. ' Before C. P. No. 2, Allegheny county.</p> <p>JError assigned was refusing appeal from judgment of aider-man for the cause shown in the petition.</p>

<p>Appeals, Nos. 141, 143, 135 and 145, April T., 1898, by defendants, from decrees of C. P. Allegheny Co., refusing appeal from judgment of alderman.</p> <p>The proceedings in the above styled cases are identical with those of Com. v. Beatty, No. 142, April term, 1898, and as the same questions are therein involved it is agreed by counsel that they be submitted on the paper-books prepared in that case and that the same disposition be made of them as in that case.</p>

<p>Appeal, No. 140, April T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1898, No. 308, refusing appeal from judgment of alderman.</p>

<p>Landlord and tenant — Trespass by landlord — Cause of action — Question fur jury.</p> <p>Where the evidence, if believed, shows that a landlord removed the roof of a leased premises during its occupancy by a tenant, and, by reason of such conduct, the tenant’s goods were damaged by the rain, the tenant lias a cause of action for trespass, and the question of negligence is for the jury.</p>

<p>Decedent's estate — Award of arbitrators unappealed from is a basis to compel administration.</p> <p>An award of arbitrators, against an estate of a lunatic upon proceedings regularly had, which is unappealed from, is a final judgment conclusive between the parties to it, and becomes a sufficient basis for a petition asking for the administration of the defendant’s estate.</p>

<p>Will — Legacy charged by implication on land.</p> <p>A legacy may be charged on land by implication. No form of words is necessary to produce the effect and when the intention is manifest the courts are bound to carry it into execution.</p> <p>Testator gave the use of two thirds of a farm to E. and of one third of the farm to E. with directions to E. to pay $30.00 and F. $15.00 to testator’s widow annually while she remains his widow ; the farm being sold for the payment of debts of decedent there were some four years of arrears of payments due the widow prior to a remarriage. Held, that the will show's a clear intention to create a charge upon the land devised and the widow is entitled to a portion of the balance of the fund after payment of debts equal to the amount of the annuities for the period of widowhood.</p>

<p>Appeal, No. 51, Oct. T., 1897, by plaintiffs, from definitive decree of C. P. Lehigli Co., April Term, 1896, No. 2, in equity, dismissing plaintiffs’ bill.</p> <p>Bill, answer and proofs. Before Albright, P. J.</p> <p>The facts sufficiently appear from the opinion of the court below:</p> <p>1. In 1888 a number of ladies who worshipped as members of the congregation in Allentown known as Salem’s Church formed an unincorporated association and named it the “Salem’s Aid Society of the Evangelical Church of Allentown, Pa.” Said church was under the discipline of the Evangelical Association of North America.</p> <p>2. Said society adopted a constitution; therein it was declared that “the object of this Society shall be to raise money for said Church to dispose of it in such manner as the Society may agree upon” and further: “Any female member of the Church may become a member of this Society by paying an admission fee,” etc.</p> <p>3. The meaning of said provision concerning disposition of the money is that the society could appropriate it as it saw fit; the society was not bound to pay its accumulations into the church treasury; said two provisions are contradictory, and the reasonable construction is that this association of voluntary workers remained free agents, not that their savings could be taken from them by the church organization without their consent.</p> <p>4. The provision about membership does not bear the construction, that a member must belong to the congregation worshipping at Salem’s Church. It is not so written.</p> <p>5. In 1891 differences arose between the clergy and laity composing the Evangelical Association of North'America which it is not necessary to state here. The facts and law relating thereto are set forth in the report of the case of Krecker v. Shirey, 163 Pa. 534 ; said differences existed among the members of said congregation and of said society.</p> <p>6. In July, 1891, an election for officers of the society was regularly held. Those ladies who adhered to what was known as the Bishop Dubs party in the Evangelical church were most numerous and they carried the election for the officers. The society then had $208.93, and a quilting frame. After said election the retiring treasurer paid to the new treasurer Mrs. Annie Stirk one of the defendants said sum.</p> <p>7. Those members who adhered to the Bishops Bowman and Esher party in said church left the society at or shortly after the time of said election.</p> <p>8. Said majority party remained and continued the organization and work of the society; they changed the constitution in 1892; one of the changes is a declaration that “ the object of this society shall be to raise money to be used for the promotion of God’s kingdom and to foster a spirit of unity among its members.”</p> <p>After the decision in October, 1894, of said case of Krecker v. Shirey, the said ladies (the defendants) who composed said society formed in 1888 and who had said sum or whatever sum was then in the treasury and the quilting frame and book of the constitution and accounts here claimed, ceased to be members of said Salem’s congregation; they afterwards became members of a church under the jurisdiction of the “ United Evangelical Church ” which was formed by those who were dissatisfied with the controlling powers in the said Evangelical Association; it is a body independent of the Evangelical Association of North America. Said society used the money in their treasury to pay for a window in a church in the neighborhood, built by the United Evangelicals.</p> <p>9. The plaintiffs while officers and members of a society called the Ladies’ Aid Socity of the Salem’s church are not officers and members of the society formed as aforesaid in 1888. Those who left the original society in 1891, while they composed a society with ladies belonging to other congregations who adhered to their party in the church division, did not constitute the original society in regular succession or in any sense. The society plaintiff was formed in 1894.</p> <p>10. As already stated those who remained after said division in 1891 — the defendants — composed the original society.</p> <p>11. Of said defendants Caroline Shoemaker was at the time of the filing of this bill president, Maria Medlar, secretary, and Susan Swartz, treasurer of said society formed in 1888, but now composed of persons who are not members of said Salem’s congregation nor of said Evangelical Association.</p> <p>coircLtrsiOiSrs.</p> <p>The court is of the opinion that the bill must be dismissed (at cost of plaintiffs) because the plaintiff societjr is not the society that accumulated the property here sought to be recovered — and for the further reason that the society composed of the persons who remained after some of the plaintiffs left had the right to dispose of the money as they saw fit, and of course to retain it and the quilting frame and booh.</p> <p>Defendants’ counsel may prepare and submit a form of decree.</p> <p>The court has deemed it best to state its findings of facts and of law in its own language. Therefore the requests of counsel are not answered. They have been considered and proved of great value. They directed attention to material questions in the case.</p> <p>Exceptions were filed on behalf of the plaintiffs, inter alia, as follows:</p> <p>11. The court erred in finding and concluding as matter of law, that “ the plaintiff society is not the society that accumulated the property sought to be recovered.”</p> <p>12. The court erred in finding and concluding as matter of law, “ that the societjr composed of the persons who remained after some of the plaintiffs left had the right to dispose of the money as they saw fit, and of course to retain it and the quilting frame and boot.” •</p> <p>They were dismissed by the court in the following further opinion:</p> <p>The earnest and learned argument of plaintiff’s counsel in support of the exceptions wa.s made mainly for the purpose of establishing that the money accumulated by the original society was the property of Salem’s congregation, of Allentown, of the Evangelical Association of North America, that said society or whoever had that money in hand was merely a trustee, that the society mentioned in the title designation of the plaintiffs in this action is the true trustee, that even if the society last alluded to is not regarded as the original society, then as Mrs. Metzger, Mrs. Weiand and several other plaintiffs were members of the original society, there ought still to be a decree against the defendants. He further contends that the members of the society who in 1891 espoused the Bishop Dubs side in the church controversy lost the right to membership and although they constituted the majority their action respecting the property here in dispute was illegal and void.</p> <p>But said argument failed to convince the court that the accumulations of said society were the property of said Salem’s congregation, or what is the same thing, were subject to the control of said congregation. Therefore, the cases cited do not apply.</p> <p>The following is the original constitution in full as written in the minute-book.</p> <p>“Article 1. — This Society shall be known as the Salem’s Aid Society, of the Evangelical Church, of Allentown, Pa.</p> <p>“ Article 2. — The officers of this Society shall be a president, a secretary and a treasurer, who shall discharge the duties generally devolving upon such officers and elected yearly.</p> <p>“Article 3. — The Society meet once a week, Wednesday, is be to opened by reading of scripture and prayer.</p> <p>“Article 4. — The object of this society shall be to raise money for said church, to dispose of it in such manner the society may agree upon.</p> <p>“Article 5. — Any female member of the church may become a member of this Society by paying an admission fee of ten cents. Five cents monthly thereafter shall be required as dues.</p> <p>“ Article 6. — Any male member of the church may become an honorary member of this Society by paying ten cents monthly.</p> <p>“ Article 7. — At any regular meeting seven shall constitute a quorum.”</p> <p>The society was not endowed by or for the benefit of the Evangelical Association, of North America.</p> <p>Therefore, they could dispose of what they contributed or earned for any purpose that a majority might decide upon, unless, they by their compact of association agreed to the contrary.</p> <p>Suppose it to be the fact that by “said church ” in said 4th article is meant either said Salem’s congregation, or the Evangelical Association, and that the declared object was to raise money for one of them. Such devotion of the funds is inconsistent with the design “to dispose of it in such manner the society may agree upon,” which is a reservation of power to appoint the object for which it shall be used, and the party to whom it shall be given. If the article is taken to mean that the church shall apply the money as the society dictates, the result of the society’s action in disposing would be the same.</p> <p>Let us imagine that before any difference in the church existed, the society had resolved that a fund in its treasury should be used to further a specified object and the said congregation or association had determined that the same fund should be devoted to a different object named by it, then there would have been presented the question of the right to the fund. The same would have been the case if the congregation or association had demanded a sum in the society’s treasury. Under either state of facts in a proceeding in law or in equity the society must have prevailed. It could not have been held that said independent voluntary association had bound itself to contribute to and work for the church in such a way that its funds could be taken against its will.</p> <p>The ground of such decision would have been that the meaning of said article 4 was that the purpose was to aid the church but the society retained the right to devote its funds to any object that the majority of its members decided upon. As the church could not be accorded the fund in question pursuant to a direct claim, it follows that the society plaintiff or the members of the original society who are plaintffs, can not have a decree for it, after the money was disposed of according to the will of the majority of the society. For plaintiffs could demand the money successfully only on the ground that they are entitled to it as trustee of the church. They cannot recover it for their own personal purposes.</p> <p>•The exceptions allege error because the court did not find the facts and hold the law governing the case to be as requested in plaintiff’s points. Said matters of fact except so far as the same are passed upon in the original or this decision are immaterial, under the view taken by the court. The court is still of the opinion that the evidence warrants the conclusion heretofore stated, and that no other matters of fact are relevant.</p> <p>April 5th, 1897: the exceptions are dismissed.</p> <p>Errors assigned among others were (6) in not finding as matter of law as requested by plaintiffs, as follows : “ The Salem’s Aid Society, of the Evangelical Church of Allentown, Pa., was an unincorporated association, organized within the Salem’s Evangelical Church of Allentown, and was subordinate to, and a part and parcel of said church. The court should have so found.” (7) In not finding as matter of law as requested by plaintiffs as follows: “ 2. The money and property acquired and accumulated by said Salem’s Aid Society, of the Evangelical Church, was for the use of the said Salem’s Church exclusively, and could not be appropriated to any other purpose, or diverted from the trust for which it was raised. The court should have so found.” (11) In not finding as matter of law as requested by plaintiffs, as follows: “ 6. Under the law and the evidence in this case, the plaintiffs are entitled to recover the money and property claimed in the bill, with interest on the money from July 1, 1891. The court should have so found.” (20) In its opinion in passing on plaintiffs’ exceptions in deciding as follows: “ The society was not endowed by or for the benefit of the Evangelical Association of North America. Therefore they could dispose of what they contributed or saved for any purpose that a majority might decide upon, unless the]1-, by their compact of association agreed to the contrary.” (21) In its opinion in passing on plaintiffs’ exceptions in deciding as follows: “The societjr retained the right to devote its funds to airy object that the majority of its members decided upon.”</p>

<p>Negligence — Contributory negligence — Elevators—Question for jury.</p> <p>The relation between the owner of an elevator for the use of passengers and those carried in it, is similar to that between an ordinary common carrier of passengers and those carried by him. The same reason exists for requiring on the part of its owner the utmost care and foresight and for making him responsible for the slightest degree of negligence.</p> <p>The evidence being conflicting on the question of contributory negligence, so that adopting either side would determine the question for or against the plaintiff, the case is for the jury.</p>

<p>Appeal, No. 109, April T., 1898, by James W. Tygard, claimant, from order of C. P. No. 1, Allegheny Co., June T., 1897, No. 4, refusing rule to show cause why issue should not be awarded on sheriff’s interpleader.</p> <p>Rule to award issue in a sheriff’s interpleader. Before C. P. No. 1, Allegheny county.</p> <p>It appears from the record that Tygard claimed ownership of chattels formerly owned by the Daily Financial News Company. A levy was made and sale advertised and a claim was made by him and due process had on an interpleader under the act of May 26, 1897. In answer to a rule to maintain or relinquish his claim to the goods levied on under the executions, Tygard in his answer averred “ that the goods appearing in ,the schedule hereto annexed are his under bill of sale and this affiant can verify on the trial of said ease.” On hearing the court dismissed the rule and James W. Tygard appealed.</p> <p>Error assigned was to order of the court dismissing the rule to show cause why an issue should not be awarded.</p>

<p>Evidence — Bepuiation of a bawdy house admissible.</p> <p>The general reputation of the inmates and frequenters of an alleged bawdy house may be proved, in order to establish the character of the place; and it is also competent to prove that the house itself has acquired the name of a bawdy house.</p>

<p>Appeal, No. 205, Oct. T., 1897, by defendant, from sentence of Q. S. Lancaster Co., Aug. Sess., 1897, No. 343, on verdict of guilty.</p> <p>Indictment for keeping a bawdy house. Before Brubaker, J.</p>

<p>Appeal, No. 204, Oct. T., 1897, by defendant, from sentence of Q. S. Lancaster Co., Aug. Sess., 1897, No. 344, on verdict of guilty,</p>

Appeal, No. 14, April T., 1896, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1896, No. 228, on verdict for plaintiff. Trespass to recover damages which plaintiff claimed were done to his property on an alleged change of grade of Main street in the city of Pittsburg.

Appeal No. 7, March T., 1898, by The President and Fellows of Yale University, from decree of O. C. York Co., in the matter of the distribution of the administrators, c. t. a. of the estate of Martin S. Eichelberger,-deceased. Exception to auditor’s report.

Appeal, No. 93, April T., 1898, by John Wallace, from judgment of Q. S. Allegheny County, Sept. Sessions, 1896, No. 854, on verdict of guilty. Rice, P. J., dissents. Indictment for maintaining a nuisance. Before Stowe and Slagle, JJ. It appears from the record that defendants were indicted for maintaining a nuisance, and on the trial of the case a verdict of not guilty was returned. The commonwealth moved for a new trial which was granted.

<p>Appeal, No. 57, Oct. T., 1897, by defendants, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1896, No. 10, dismissing exceptions to judgment of a magistrate.</p> <p>Oblady and Pob teb, JJ., dissent.</p> <p>Certiorari. Before Wiltbank, J.</p> <p>It appears from the record that on September 30, 1896, the plaintiff, L. E. Gallagher, caused to be issued by magistrate Cunningham a summons under the act of March 21, 1772, for the recovery of certain premises occupied by the defendants. This summons was made returnable October 6, 1896, before magistrate Cunningham. On that day the defendants appeared, and their counsel moved to quash the proceeding on the ground that there was no jurisdiction in the magistrate to try the cause. The magistrate overruled the motion, whereupon, the defendants and counsel withdrew. The magistrate then heard the case and gave judgment for the plaintiff. A writ of certiorari was issued and exceptions filed (1) that the magistrate had no jurisdiction, the act of 1772 requiring two justices; (2) that the summons was made returnable more than four days after its issue.</p> <p>The court below overruled both exceptions and affirmed the judgment of the magistrate on the verdict publicly given for possession and an award of $120 as damages, together with $65.00 costs, in an opinion by Wiltbane:, J., reported in 6 Dist. Rep. 315. Defendants appealed.</p> <p>Error assigned was dismissing exceptions to judgment of the magistrate, reciting same.</p>

<p>Decedent’s estate — Claim for services — Question for jury.</p> <p>The claim being for service rendered to a decedent and there being sufficient evidence to sustain it, if believed, the case was properly left to the jury to pass on the credibility of the witnesses, which was a question solely for them.</p>

<p>Appeal, No. 22, March T., 1898, by defendant, from judgment of Q. S. Dauphin Co., March Sess., 1897, No. 140, on verdict of guilty.</p> <p>Indictment for fraud against an insurance company. Before McPherson, J. (See report of case below, 7 Dist. Rep. 370.)</p> <p>It appears from the record that a true bill was found. Defendant being arraigned in open court pleaded not guilty, whereupon trial ordered, jury called, come, etc., twelve good and lawful men of Dauphin county, tvho being sworn say that they find the defendant guilty. Reasons and motion for new trial and in arrest of judgment filed. Motion for new trial overruled and defendant directed to present himself for sentence.</p> <p>It also appears from the opinion of the court overruling motion in arrest of judgment at the trial that defendant who was a physician in the city of Harrisburg was indicted under the Act of June 10, 1881, P. L. 109.</p> <p>The court directed a verdict of guilty and subsequently overruled a motion in arrest of judgment to which action of the court an exception is sealed, the court certifying in its opinion, inter alia, as follows :</p> <p>“ At the trial of this case there were no disputed facts, but the defendant’s construction of the statute was not adopted by the court. For reasons stated in the foregoing opinion the jury was instructed to render a verdict of guilty, but the court agreed to consider more carefully the defendant’s construction on a motion in arrest of judgment. This was done, and the motion was refused. No exception was asked to the charge, the only matter in dispute being the meaning of the statute. If the court had been satisfied that the defendant’s view on this point was correct, the judgment would have been arrested, for it did not appear that he was to receive any part of the proceeds of the policies.”</p> <p>Errors assigned were (1) in overruling defendant’s motion in arrest of judgment. (2) In overruling defendant’s motion for a new trial. (3) In directing the jury to find a verdict of guilty.</p>

<p>Appeal, No. 44, Oct. T., 1897, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June Term, 1895, No. 562, on verdict for defendant.</p> <p>Replevin. Before Sulzberger, J.</p> <p>It appears from the evidence that plaintiff rented from the defendant certain premises in Philadelphia. A lease was drawn up by the defendant company but not signed by the plaintiff. The alleged conditions of renting were that the defendant company should make certain repairs. The lease was for one-year with the usual hold over clause; one month’s rent was paid at the time of the leasing but no more rent was paid and it was alleged by the plaintiff that none was to be paid until the repairs should be made. Plaintiff entered into possession with the consent of the lessors. It was alleged and evidence submitted, which was contradicted, tending to show that all the repairs promised were not made although requested from time to time, and it was uncontradicted that the tenant refused to pay rent due from November 21, 1895, to January 21,1896, $120. Defendant company made a levy for that amount and replevin was brought by the tenant.</p> <p>Verdict was rendered for the defendant for tbe value of tbe goods, |600, and rent in arrear, $ 124. Plaintiff appealed.</p> <p>Errors assigned were (1) in admitting in evidence testimony concerning work done not nominated in the alleged agreement of letting between tbe plaintiff and defendant. (2) In admitting in evidence bills for work done offered by tbe defendant, tbe said bills not having been proven to bave been for tbe repairs nominated in tbe agreement between plaintiff and defendant. (8) In charging the jury as follows: “ That, gentlemen,” (tbe repairs mentioned in agreement of letting), “ would be in effect a covenant on tbe part of the landlord to do these things, and if be did not do those things be would be liable in damages for tbe breach of tbe covenant, and tbe tenant could also if he chose bave tbe work done and deduct tbe amount of it from tbe rent. Those are all tbe consequences that would follow, unless this was not a covenant but a strict condition in tbe law. If it was a strict condition tbe consequences would be otherwise.” (4) In charging tbe jury as follows: “ If there were any evidence of that kind tbe contention of the plaintiff would be well established — I personally recollect nothing of tbe sort. If you find anything in tbe evidence that would warrant you in saying that you recollect an undisputed agreement of that kind in tbe evidence so as to make a strict condition then, of course, you may find a verdict for the plaintiff; but if, on the other hand (as it seems very probable you will not find such a strict condition) you do not find that to be the case, then it is a different matter. Plave any of you ever lived in a bouse four years without paying more than one month’s rent ? Have you ever been satisfied with the condition of repairs that your bouse was in? Yet, what does your common experience and sense of right lead you to believe ? Suppose you do complain of your landlord, do you suppose that you are to live in his house for four years without paying rent ? So far as this case goes, tbe jury represents the whole community as to its judgment upon this matter, and I rely upon your good judgment to do what is right in this case. . If you believe that this tenant was to live in that house forever until those repairs were made, then you may find a verdict for the plaintiff. If you cannot say honestly that an agreement of that kind was made, I cannot see how you can avoid giving a verdict for the defendant.” (5) In refusing to charge as requested by the plaintiff in her point for charge, which was as follows : “ That if the jury believe from the evidence the agreement between the plaintiff and defendant was that no rent should be paid for the premises 6,077 Yine street, until the repairs as stated by the plaintiff were made, and that said repairs were not made, the plaintiff is not liable for the rent of the premises in question, and the verdict must be for the plaintiff.” (6) In his whole charge to the jury, said charge amounting to binding instructions to find for the defendant.</p>

<p>Beneficial society — Refusal of relief — Application to courts of equity.</p> <p>While the law requives a member of a beneficial order first to exhaust his remedies in the courts provided by the rules of the order, yet when a member is denied a hearing, contrary to the fundamental law of the organization, such member is rectus in curia in applying to the courts of his state. Relief will be afforded by the courts only so far and from such date as compliance by the plaintiff member with the rules of his chamber establish a legal standing to appeal to the courts on refusal by the society of an adequate hearing.</p> <p>Appeals — Practice, Superior Court — Defective assignment — Rules of court.</p> <p>If any assignment embraces more than one point, or refers to more than one bill of exception, or raises more than one distinct question, it will be considered a waiver of all the errors so alleged; such assignment violates Rule XV. and cannot be considered. The assignment in question assigned for error the entire decree of the court which was complex in its nature and separable in its directions.</p>

<p>Appeal, No. 11, Feb. T., 1898, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1895, No. 167, on verdict for plaintiff.</p> <p>Ejectment. Before Savidge, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>."Errors assigned among others were (1, 2) in refusing defendant’s offers of the assessment of Jackson township, Northumberland county, Pennsylvania, for the year 1856, in which James I. Day is assessed for thirty-eight acres of land. To be followed with subsequent assessments of said township, for the purpose of showing that James I. Day had no land in 1866, in that township, to assess. (3) In answering defendant’s first point, which point and answer are as follows : “If the jury believe from the evidence that John D. Bogar and those under whom he claims, his predecessors in title, adversely occupied and used and were in the possession of the land in dispute, as their own, continuously, in connection with the land conveyed to them and him for a period exceeding twenty-one years, immediately preceding the time of bringing this suit, then the plaintiff is not entitled to recover. Ansiver: This point is affirmed as to the land south of the little run, providing you find the possession was adverse, continuous, visible, notorious and hostile, and that the defendant did not admit title in the plaintiff prior to the running of the said twenty-one years. (4) In refusing defendant’s second point, which point is as follows: “ It is a rule in the construction of the deeds that deed must be most strongly construed in favor of the grantee and against the grantor; and as the deed dated July 4,1866, of James I. Day and wife, conveyed to Jehile K. Hoyt, ‘ all that property being in the town of Herndon, Northumberland Co., Pa., belonging to me, James I. Day, as per plot of survey made py J. R. Hilbish, surveyor, on the 22d and 28d days of May, 1866, and consisting of 37 acres and 31 perches, being the same property acquired by me, (Day) by sale of the sheriff of said county per account of the Treverton Coal and Railroad Company,’ and as the land in dispute lies in the said town of Herndon, then when James I. Day made his deed to George Deppen, dated March 14,1891, for land lying in the said town of Herndon, he had no land in the town of Herndon to convey to George Deppen, and therefore the plaintiff is not entitled to recover.” (5) In refusing defendant’s third point, which point is as follows: “ If the jury believe from the evidence that James I. Day, by his deed dated July 4, 1866, conveyed all the land he had lying in the town of Herndon, Northumberland county, Pa., to Jehile K. Hoyt, and that Day had no land in said town that he could convey by his deed dated March 14, 1891, to George Deppen, then the plaintiff is not entitled to recover.” (6) In refusing defendant’s fourth point, which point is as follows: “ If the jury believe from the evidence that the land in dispute lies in the town of Herndon, Jackson township, Northumberland county, Pa., then the plaintiff is not entitled to recover, because he, Day, conveyed the land he had there to Jehile K. Hoyt, by his deed dated July 4, 1866.” (7) In refusing defendant’s fifth point, which point is as follows : “If the jury believe from the evidence that James I. Day conveyed all his land lying in the town of Herndon, Northumberland county, Pa., to Jehile K. Hoyt, then the plaintiff is not entitled to recover.” (8) In refusing defendant’s sixth point, which point is as follows: “ If the jury believe from the evidence that the Township Road, being the road called for by the eastern line of the land of John D. Bogar, was taken from the land owned hy the parties from or through whom John D. Bogar, the defendant, derived his title, and the road has been vacated or abandoned, then the road so vacated or abandoned, belongs to John D. Bogar, the defendant, and the plaintiff is not entitled to recover.” (9) In refusing defendant’s seventh point, which point is as follows : “If the jury believe from the evidence, that James I. Day sold and com veyed all the land he purchased at sheriff’s sale, that David Waldron, sheriff, gave him a deed for, dated August 13,1861, to Jehile K. Hoyt and Abraham Zeigler, then the plaintiff is not entitled to recover.” (10) In refusing defendant’s eighth point, which point is, as follows: “ If the jury believe from the evidence that the Pickerskill mortgage line, called for in the deed of James I. Day to George Deppen, is above or on the north side of the Treverton railroad track, and that Deppen’s land if he has any, lies thirty-six feet along said mortgage line, and then runs south twenty-seven degrees west, on a .parallel line with the John D. Bogar land called for, and covers land north of the Treverton railroad, and a part of the Bogar land that is not in dispute, then the plaintiff is not entitled to recover.” (11) In refusing the defendant’s tenth point, which point is as follows : “ If the jury believe from the evidence, that part of the land claimed by the plaintiff is part of a road, and it is the only means of ingress and egress to the property conveyed by James I. Day to Jehile K. Hoyt, predecessors of the defendant in title, then said road became an appurtenant to the land conveyed; and if the balance of the land claimed by the plaintiff was adversely and continuously used and occupied by John D. Bogar, the defendant, and his predecessors in title, as their own property, for a period exceeding twenty-one years immediately preceding the beginning of this suit, then the plaintiff is not entitled to recover, but the verdict should be for the defendant.” (12) In affirming the plaintiff’s eighth point, which point is as follows: “ If you believe from the evidence that John D. Bogar, the defendant, in March, 1895, agreed with George Deppen, the plaintiff, or said to him that he would either lease-the land in dispute or vacate the same, that such a statement was in recognition of the right of George Deppen, broke the continuity of possession and tolled the running of the statute of limitations and the verdict must be for the plaintiff. That is, provided you find that to be so. Answer: I affirm the second, third and eighth points and say to you as requested.” (18) In charging the jury as follows, viz: “ James I. Day, in 1865, sold a portion of it to Abraham Zeigler, and in July, 1866, another portion to Jehile K. Hoyt. The portion sold to Hoyt was thirty-seven acres and thirty-one perches. Hoyt afterward sold to Hanna and Rothermel on November 24, 1866. The strip of land in dispute was not included in the description of these deeds. The only testimony in the case is that of ’Squire Hilbish as to what was included in these deeds, so far as I recollect, and he says that this strip of land was not included. Day’s deed was for the lands which he owned in the town of Herndon, as shown by a draft made by Surveyor Hilbish. This draft, as testified by Mr. Hilbish, did not include the strip of land in question, and there is no testimony of any surveyor to the effect that it was included in that draft of Hilbish. The deed recites that this was all the land of Day in the town of Herndon, and it is contended by the defendant that it would be a question of fact for you to determine whether or not he did convey all the land he had in the town of Herndon, including, of course, this strip in question; but inasmuch as the deed expressly conveys the land as per the Hilbish drafts, and that draft does not include this land, I am inclined to hold, as a matter of law, that this strip of land was not actually conveyed by that deed to Hoyt.” (14) In charging the jury as follows, .viz: “ He (Kline) went upon the disputed strip and exercised some acts which are claimed to be such acts of ownership, claimed by the defendant, as would entitle him to claim from that time under the statute of limitations, that is, title by possession, use and occupancy up to 1874. What was done there by Kline, to my mind, does not amount to sufficient to warrant the claim of title by occupancy during that period of time.” (15) In .charging the jury as follows, .viz: “ It is contended by the plaintiff that the statute of limitation was tolled on March 22, 1895, by an admission made by the defendant to the plaintiff, of ownership to this strip of land in the plaintiff. . . . Now, you will have to determine where the title to this portion of the land in dispute is, namely: That lving below the little run, because it was only fenced up to the little run. You must determine, in order to ascertain in whom the title to that land is, whether Bogar did, at the time alleged, at Mr. Wolverton’s or Mr. Knight’s office admit title in Mr. Deppen. If he did, then in my judgment, the statute of limitations having begun to run some time in March, 1874, according to the testimony of the plaintiff, the twenty-one years had not elapsed. ... If you believe that Bogar made these admissions on the 22d of March, 1895, you could not infer or assume, for the purpose of making up the complete period of twenty-one years, that the fence was built prior to the 22d of March, 1874. The burden was upon the defendant to show by some testimony, at least, that the date in March when that land was enclosed was prior to the 22d of March, 1874. . . . So that if you should find that this admission was made by Bogar to Deppen as contended for, at Mr. Wolverton’s or Mr. Knight’s office, on the 22d of March, 1895, that admission tolled or stopped the running of the statute of limitations in favor of the defendant, and the full period, twenty-one years, not having elapsed at that time, your verdict for that portion of the land would have to be for the plaintiff, as I view the case.” (16) In charging the jury as follows, viz: “ As to so much of that portion of the land north of the little run has not been used by Mr. Bogar for a road,' or way into his premises, I say to you there should be a verdict for the plaintiff because there is no evidence of any acts of ownership of that portion of the land such as if persisted in for twenty-one years,, would ripen into title, that is, no evidence of such ownership that extends far enough back.” (17) In admitting the following offer of evidence, viz: “ Counsel for plaintiff offers Exhibit No. 3, October 16,1896', for the purpose of showing the location upon the ground of the land in dispute, the scales, the public road and other operations of the locus in quo, testified to by the witnesses and of the land which the plaintiff has disclaimed title. ‘Q. You locate the land in dispute from your plan of running out the line of the Pickerskill mortgage ? A. Yes, sir.’ ” Counsel for defendant objects to the draft marked No. 3, because the location of the land in dispute is assumed upon an incorrect survey of the Pickerskill mortgage and not according to the facts either upon the ground or upon the record of the mortgage. By the Court: Objections overruled and admit the draft. (18) In admitting the following offer of evidence, viz : “ Plaintiff’s counsel now offer Exhibit ‘ A,’ October 22, 1894, for the purpose of showing the location of all the lands described in the deed from (David Deppen) Day to Deppen.” Counsel for defendant objects for the same reasons, assuming a line which is not authorized by any monuments on the ground nor by the records, to wit: the lines of the Pickerskill mortgage. The Court: That was for the purpose of showing what was included in the deed from Day to Deppen, which describes it as land included in the Deppen survey. By the Court: Admitted and seal a bill for the defendant.</p>

<p>Appeal, No. 150, Oct. T., 1897, by John L. Bechtel, trustee of the estate of Angeline Renninger and her children, under the last will and testament of Jacob Madeira, deceased, from decree of O. C. Berks Co., dismissing exceptions to trustee’s accóunt.</p> <p>Exceptions to trustee’s account. Before Bland, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Errors assigned among others were (1) in overruling the first exception by the accountant which was as follows: “ Accountant excepts to the nojiallowance of any compensation or commission for his services.” (2) In overruling the second exception filed by accountant, which reads as follows: “ Accountant excepts to the nonallowance of any compensation charged by his counsel.” (3) In overruling the fourth exception, as follows: “Accountant excepts to the refusal of the court to allow him anything for the board and care of the white stallion during the time he was offered for sale.” Other exceptions were to the findings of fact of the court below.</p>

<p>Appeal, No. 17, Jan. T., 1898, by defendant, from decree of C. P. Wayne Co., Oct. T., 1896, No. 88, confirming decree of court awarding payment of alimony and counsel fee in divorce.</p> <p>Porter, J., dissents.</p> <p>Petition for allowance for counsel fees and maintenance pendente lite. Before Archbald, P. J., of tbe 45th judicial district, specially presiding.</p> <p>The facts sufficiently appear in the opinion of the court below as follows:</p> <p>The first question is one of jurisdiction; the libellant — it is said — is not a resident of this county, but of Brooklyn, N. Y., and is not entitled in consequence to institute proceedings for a divorce in this county and should not therefore be allowed alimony or counsel fees. Without stopping to consider whether this is the proper stage in the case to raise that question, I see nothing to sustain it. It is true, the evidence shows that Mrs. Ames resides in Brooklyn and that her husband resides here; but a personal service of the subpcena has been made upon him and it is difficult to see where she could better pursue her application for a divorce than here in the forum of his domicil. If she was a resident of some other part of the state the case might be different. We should then have the same conditions as appear in Thompson v. Thompson, 2 Pa. C. C. 578, where it was held by Morrow, P. J., that a wife who resided in Lackawanna county could not proceed for a divorce in Bradford county, the place of her husband’s residence, being confined by the terms of tbe statute to the county of her own residence. I am not indeed prepared to go this length, but! concede of course in the face of this decision, that the matter is open for argument. The case falls rather within the exception recognized in Sherwood’s Appeal, 17 W. N. C. 838; s. c. 1 Pa. Sup. Ct. Digest, 86. The libellant there began proceedings for a divorce from her husband in the court of Somerset county. From the report of the case in the Supreme Court digest it appears — and this is a very important fact to be noted — that neither her husband nor herself were residents of that county. It was held upon this showing that she could not maintain her suit in Somerset, and that her residence being in Philadelphia the courts there alone had jurisdiction. It is at the same time stated per curiam that “if she had no residence in this state a different question would be presented,” and the exception so noted is just what we have here. If the residence in fact, which Mrs. Ames has in Brooklyn, N. Y., precludes her from claiming the residence by right, which she has here, at the place of her husband’s domicil, she still has no residence other than his within the state, to the courts of which she might be compelled to resort if the extreme view taken in Thompson v. Thompson were to be followed. By the service of the subpoena upon the respondent the court has jurisdiction over him personally, and there is nothing to prohibit it taking jurisdiction over the cause of divorce as well. I see no reason therefore for refusing to award the libellant alimony upon that ground.</p> <p>This brings me to the merits of the application: Is the respondent shown to be of such condition of mind or estate as warrants the order asked for? The answer is not altogether free from difficulty. There is no satisfactory evidence that the mental malady of the respondent affects him at the present time. He returned from the asylum in the summer of 1895, after being there but a very few months, and has resumed his former occupation in his father’s private bank. It is said that he is put there merely to occupy and divert him, and that the lady assistant really does the work. But this is so extraordinary a statement as to be far from convincing. I should not care to be one of the depositors of a bank, to say nothing about • being its responsible owner, where a man of any mental unsoundness was in even nominal charge, and that any one, even an onty son, should be put there for mere diversion, needs some more confirmatory proof than is to be found in the evidence. Being in the bank and in its apparent control as cashier or manager the only reasonable inference is, that he is there with all the mental and business capacity which that position implies.</p> <p>With this result reached the obligation of the respondent is established. If he can act as cashier, he can earn the salary of a cashier; the fact that it is not given him, is not controlling. A man cannot give away his services or his earning power, and deprive those who are entitled to it, and that is the aspect the case presents if the first conclusion be correct with regard to the respondent’s business capacity. It goes without saying that the present application of the libellant for alimony is unwelcome, and the temptation to evade it is correspondingly great. This calls of necessity for a close scrutiny of the evidence of incapacity, and throws a more than usual burden on those who assert it. Knowing neither of the parties and desiring to do no more than justice to both of them, I must confess that this is the way that the case impresses me, after a full consideration of the different possible phases of it. There is such an opportunity as well as a temptation for collusion between father and son, that the business relations between them must be more fully cleared up than it is, to convince me that the employment of the son by the father is nominal. The same is true with regard to the son’s alleged loss of property ; it has all gone into the hands of the father, to become the son’s again in due time if he lives. Under what circumstances has this happened, and why ? This is not answered in the depositions and as it has been brought about since these troubles between the son and Ms wife have arisen, we are entitled to more than the bare fact that it has occurred.</p> <p>It remains merely to fix the amount of alimony to be awarded. In the former proceedings the amount Avas $30.00 per month. While this Avas fixed by agreement it must be regarded as measuring the Avife’s necessities, and less than this can hardly be expected now. It is said that this was the whole of what the respondent then earned at the bank, and argumentatively, all that he could in any event earn now. But if the lady clerk earns a dollar per day, the services of the respondent as. manager cannot be worth less as it would seem than double that amount. This would leave at least half of the respondent’s earnings, or ability to earn, untouched, and as the alimony Avill only last while the suit goes on, this division will not have to continue long.</p> <p>[And now, March 15, 1897, it is ordered that the respondent, Gaston W. Ames, within ten days from the service of this order, pay to the libellant, Florence A. Ames, a counsel fee of $35.00 and that he further pay the sum of $30.00 per month alimony, for the support and maintenance of the said Florence A. Ames pending this suit, such payment to be made monthly in advance, to be computed from the 1st of March, 1897, the first payment to be made within ten days of the service of this order, and thereafter on the first of each and every month until the further order of the court.] [1]</p> <p>Defendant appealed.</p> <p>Error assigned was in making the order or decree as above recited.</p>

<p>'Practice, Superior Court — Appeals—Charge—Trivial error in slating facts — Duly of counsel to call attention thereto.</p> <p>Where a judge, dealing in his charge with voluminous facts, in the hurry of a trial makes a slip, it is the duty of counsel to call his attention to it and then give him an opportunity to rectify it. When this is not done, and the point is raised for the first time in the appellate court, the error must be serious to induce that court to reverse, especially when all the facts had been left to the jury with a caution to remember them.</p> <p>There is no general unbending rule which requires counsel to interrupt the court to correct every misstatement of law or fact which they may conceive is being made, and such duty will not be imposed in the case of an inadequate or one-sided charge, nor in the case of the misstatement of a pivotal fact, but there are cases, like the case at bar, when it may fairly be said to be the duty of counsel to call the. attention of the court to an evident misstatement of fact, if such misstatement is to be relied on as error.</p> <p>Charge of court — General review of evidence.</p> <p>It is enough if the trial judge gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the course of the respective contention of the parties with enough reference to the items of evidence, to assist the jury in recalling it as a substantial whole, and to appreciate its bearings.</p>

<p>Appeal, No. 3, Feb. T., 1898, by defendant, from judgment of C. P. Sullivan Co., Sept. T., 1894, No. 96, on verdict for plaintiff.</p> <p>Ejectment for one lot of land in Dusbore, Sullivan county, Pa. Before Durham, P. J.</p> <p>Tbe facts indicating bow tbis action arose and plan of tbe lots are set forth in tbe former report of tbe case of Carroll v. Miner, 1 Pa. Superior Ct. 439-443.</p> <p>Tbe jury found tbe following verdict: “ They find for tbe plaintiff all land between said buildings, tbe liquor house and barn.” Defendant appealed.</p> <p>Errors assigned were (1) in that part of its charge to tbe jury which reads as follows: “ You, gentlemen, are to determine this question; you are to determine from the metes and-bounds, from tbe improvements upon it, and from all these things you are to reconcile tbe description by metes and bounds with tbe description by improvements if you can. If you cannot, then you are to consider all these things, and after considering what improvements are upon them, what monuments there are upon the ground, you are to decide what was actually levied upon by the sheriff and sold by the sheriff to Thomas Miner.” (2) In that part of its charge to the jury which reads as follows: “ If the description by metes and bounds and by improvements does not cover all of the lot marked on this draft as J. W. Carroll, for that is all the lot that is in controversy, then you should find for the plaintiff for such part of the lot marked here, J. W. Carroll, as you find is not covered by the description in the levy.” (3) In that part of its charge to the jury which reads as follows: “ He (meaning the sheriff) has marked upon it that it contains a barn. Now, you could divide that barn, you could not take any portion of that barn so but what the lot, all of the lot that the barn is situated upon, should be given to this defendant, so that if the barn covers any portion of the lot of J. W. Carroll, certainly the sheriff meant to take all of that lot, at least that was covered by the barn, because whatever was there that the barn was upon he described it as being upon it. Then, again, he described the lot as having thereon erected a frame two-story dwelling and liquor store. That is a monument upon the ground which shows that the sheriff intended to cover, and if you find he levied upon all the lot that tire liquor store stands upon and if any more, you are to find it from the description, there must be something in the description that covers it, and we leave it to you whether there is anything that covers anything more, in this description, than that which is covered by the barn and the liquor store.” (4) In its qualification of the defendant’s second point which was as follows: “If the jury find that the lot in dispute in this case was described in the sheriff’s levy upon the Adriance Platt writ by the buildings and trees located upon it and that another lot was described by courses and distances, and it appeared that John Miner owned the lot described by the buildings and trees and did not own the lot described by courses and distances, the description of the lot he owned should be taken to be the true description, and the other rejected- as false. Answer: That, gentlemen, we do not affirm as there written. We say to you that you are to take the descriptions of this whole matter, this whole levy, and consider them by metes and bouuds, consider the descriptions by the improvements upon them, consider the fact also that it is the duty of the sheriff to levy upon the lands of the defendant in the writ, consider the fact also that the defendant didnot ownlot No. 8, and then you ascertain where, from all of those considerations the sheriff did actually locate his levy, upon what property he made his levy, and what was included in it.” (5) In its answer to the plaintiff’s second point which was as follows: “ In locating lots the lines of survey may be extended to monuments of description but are not run past monuments. If the jury believe the liquor store is a monument describing the land in the Adriance Platt & Company levy they can extend the thirty-three and one third foot lines of lot No. 3, to include the liquor store, and may consider that the sheriff intended no more in the levy on the Adriance Platt writ. Answer: Gentlemen, we will divide that up somewhat. We will say to you in answer to the first part of this point, ‘ In locating lots the lines of survey may be extended to monuments of description, but are not run past monuments,’ we say they are not run past monuments that, are there as monuments of the lines or monuments of the extent of the survey, or deed, whatever it is, the description, but if they are simply put on there and say for instance a house thereon erected, it does not necessarily stop at such a monument. The second part, If the jury believe the liquor store is a monument describing the land in the Adiiance Platt & Company levy they can extend the thirty-three and one third foot lines of No. 3, to include the liquor store, and may consider that the sheriff intended no more in the levy on the Adriance Platt writ,’ that part we affirm, and say to you that you should extend it that far at least.” (6) In its answer to the plaintiff’s third point. The point and answer are as follows : 44 If the jury believe the facts as claimed by Thomas Miner, defendant, viz: That the dwelling house and liquor store are upon one foundation, and are monuments of description in the levy on the Adriance Platt & Company writ, ruling the length of the thirty-three and one third lines of lot No. 3, and also believe the sheriff intended to do his duty and not injure John Miner, the defendant in the executions; these facts may be considered by the jury as evidence that the sheriff only intended to sell portions of the lot claimed by Carroll covered by the buildings. Answer: We say to you, gentlemen, that that is for you to say what the sheriff actually did levy upon and did cover by his descriptions, not so much what! he intended as what he did, and the intentions are to be ascertained by what he did and evidences furnished of it.” (7) In affirming the plaintiff’s sixth point which was as follows: “ If the jury believe that the liquor store ought not to be divided, as claimed by the defendant, — that fact does not deny the right of the jury to divide the lot in dispute if they think the evi-' dence so warrants. (8) In affirming the plaintiff’s ninth point which was as follows: “ The plaintiff is not bound to make out his title to the whole lot claimed. He may have a verdict for part of the lot described in the writ of summons. If the jury believe from the evidence that the plaintiff is entitled to all that part of the lot claimed by him lying between the line of the liquor store on the northern side, and the old wagon shed on ..the southern side, and fronting on German street, and extending back to the line of lot sold McMahan, under the McMahan writ, they have the right of so finding a verdict. (9) In affirming the plaintiff’s tenth point, which was as follows : “ If the jury believe from the evidence that the plaintiff is entitled to recover the land described in the writ of summons, excepting .therefrom that portion of the lot covered by the liquor store, they have a right to return a verdict in that form.</p>

<p>Appeals — Practice, Superior Court — Amicable collateral proceedings to test judgment.</p> <p>The appellate courts will not entertain an appeal which in effect is an attempt by an amicable collateral proceeding to obtain from the court an opinion upon a question of law which arose in a dispute which has been terminated by a judgment which stands unreversed and unappealed from. The parties are not entitled to readjudieate the controversy in this way.</p>

<p>Practice, Superior Court — Appeals—Binding instructions — Absence of charge and evidence.</p> <p>The court below having refused the plaintiff’s points and having given binding instructions for the defendant, such action cannot be reviewed when neither the general charge nor the evidence given below have been brought up with the record.</p>

<p>Appeals — Certiorari—Proceedings for election districts — Practice, C. P.</p> <p>In proceedings to divide a municipality into election districts upon final decree au appeal will lie upon which the regularity of the whole proceedings may be reviewed, but only in the mode formerly allowed under the writ of certiorari.</p> <p>Appeals — • Decree appointing commissioners interlocutory.</p> <p>A decree appointing commissioners to divide a municipality into election districts under article VIH. of the constitution, and an order refusing to quash proceedings upon such petition, are interlocutory orders and as such will not sustain an appeal.</p>

Appeal, No. 50, March T., 1898, by defendant, from judgment of C. P. Blair Co., Jan. T., 1897, No. 247, committing defendant on a warrant of arrest. Warrant of arrest under act of 1842. Before Bell, P. J. It appears from the record that proceedings were had under the warrant of arrest act of July 12, 1842, and the defendant arrested and produced before the court, before whom hearing was had.

Appeal, No. 34, March T., 1898, hy plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1896, No. 71, on verdict for defendant. Trespass. Before E. W. Biddle, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for defendant. Plaintiff appealed. Errors assigned were (1) in not charging the jury as requested by plaintiff’s first point without qualification.

Appeal, No. 47, March T., 1898, by plaintiff, from judgment of C. P. Dauphin County, Jan. T., 1898, No. 67, in favor of defendants on case stated. Case stated. Before McPherson, J. The facts sufficiently appear from the following case stated: And now, October 1, 1897, the following facts are agreed upon in the nature of a special verdict, for the opinion of the court thereon: 1.

Appeal, No. 133, Oct. T., 1897, by defendant, from judgment of Q. S. Schuylkill Co., May T., 1897, No. 995, on verdict of guilty. Indictment for accepting bribes. Before Archbald, P. J., of the 45th judicial district, specially presiding.

<p>Appeal, No. 91, April T., 1898, by defendant, from order of C. P. No. 1, Allegheny Co., Sept. T., 1896, No. 261, discharging rule to open judgment.</p> <p>Motion to open judgment and let defendant into a defense.</p> <p>The petition and answer being filed and depositions taken the court below dismissed the rule in the following opinion: “We cannot open this judgment. The testimony of the only witness for the defendant does not sustain the allegations of the defendant, and the defendant cannot be a witness in his own behalf. Rule discharged.” Defendant appealed.</p> <p>Error assigned was refusing to open the judgment.</p>

Appeal, No. 52, March T., 1898, by defendant, from judgment of C. P. Cumberland Co., on verdict for plaintiff. Reeder, J., dissents. Trespass.

Appeal, No. 167, April T., 189$, by George W. Wagoner, mayor of tbe city of Johnstown, asisuch mayor, as well as a citizen and taxpayer of said city, from, decree of Q. S. Cambria Co., Dec. Sess., 1897, Nos. 1, 2, designating time and place for holding special elections to fill vacancies in the city offices.

<p>Appeal, No. 200, April T., 1898, by William Shetler, from decree of Q. S. Armstrong Co., June Sess. 1897, No. 22, dismissing exceptions to the report of viewers.</p> <p>Exceptions to viewers’ report. Before Raybttrít, P. J.</p> <p>The petition of Absalom Reariek was filed for the appointment of viewers to view and lay out a private road from his dwelling house in Cowanshannock township to a point in the public road leading from Blanco to Kittanning at or near the line between the lands of A. W. Beer and William Shetler. Viewers were appointed who filed a report laying out the road as prayed for. The report of viewers was confirmed nisi, and the width of the road fixed at twenty feet.</p> <p>Exceptions were filed to the report of the viewers which were dismissed by the court below in the following opinion:</p> <p>The first exception is: “The description of the proposed private road as contained in the report of viewers is uncertain and indefinite, in that it does not show that the road as laid out by the viewers lies or is situated in Cowanshannock township, or in the county of Armstrong.” This exception cannot be sustained, as the petition which sets these proceedings in motion contains a distinct averment of the location of the proposed road, not only as to its termini but also as to the county and township wherein it is situated, and the order issued to the viewers appointed pursuant to the prayer of the said petition, follows explicitly the averments of the petition, and the report made by the viewers contains a statement as follows: “ The -undersigned viewers appointed by your honorable court to view and lay out a private road on land from the dwelling house of Absalom Reariek in the township of Cowanshannock, said county, to a point in public road leading from Blanco to Kittanning at a point on line of lands of William Shetler and A. W. Beer, would respectfully make the following report.” This with the termini and courses and distances mentioned in the body of the report, clearly designates the site of the road-, as possibly could be done without repetition or redundancy.</p> <p>The second exception is: “ The report of viewers is fatally defective, because it does not show that the proposed private road as laid out by them, leads from a public highway to either-the dwelling house of the petitioner or to his plantation.” An inspection of the report shows that the proposed road as laid out leads from the land of Absalom Rearick, which is a term synonymous with “plantation,” to a point on the public road leading from Blanco to Kittanning, and is a compliance with the prayer of the petition as to the termini of the proposed road, and this exception must be dismissed.</p> <p>The third exception is: “ The description of the termini of the proposed road is void for uncertainty.” The description of the road as laid' out is, “ Beginning on the line of lands of William Shetler and Absalom Rearick, thence along said line north 701 degrees, east 111 feet to corner of land of Absalom Rearick, thence by same bearing along line of lands of William Shetler and A. W. Beer 739 feet to a point on the public road leading from Blanco to Kittanning. The said property line being made the center line of said road.” Now, the line of the lands of these persons is certainly defined, and the courses and. distances as returned by the viewers, which is to be the route and length of the road, is certainly sufficiently accurate that the termini of this road can be ascertained without any uncertainty. The exception is therefore dismissed.</p> <p>The fourth exception is: “The report of viewers shows that the road proposed by them is laid partially upon and over another private road belonging jointly to this exceptant and A. W. Beer. There is, therefore, no authority in law permitting the viewers to condemn this private road and give it to another.” The report does not show that the road is laid out upon another private road strictly so-called, as there is not anything to show that it was ever laid out by order of court; it is but a private lane used by Beer and Shetler consentably to get back to their fields, and so far as we know, could be closed by either upon their several properties at any time. It is but a portion of each of their farms used by them as a matter of convenience, and which they have a perfect right to do; but the act of assembly provides a means by which a person or persons can obtain a private way when a necessity for the same exists. The viewers by their report say such necessity does exist, and it is not condemning the private road of one and giving it to another. Were the principle contended for in this exception correct, all a property owner would have' to do when notice was given of a view to lay out a private road, would be for him to open up a private road or lane over the proposed road, and thus defeat the petitioner in his proceedings. The owner of the property has the right to pass over it when and where he pleases, whether it is by a lane or through his fields, and certainly this right would not defeat the purpose of the act of assembly, relative to the obtaining of private roads when a necessity for them exists.</p> <p>The fifth exception cannot be sustained. The road must be kept in repair by the person to whom it is granted, or all those using it, and we cannot see any merit in this exception. As to the use of the bridge, Rearick will have to keep it in repair; or, if it is used by both him and Shetler, they will have to be at the joint expense of keeping it up.</p> <p>The sixth exception has been disposed of in our answer to the fifth.</p> <p>The seventh exception is: “We have nothing to do with the amount of damages; we can neither reduce nor increase. The law gives to Shetler an appeal if he is aggrieved by the amount of damages awarded by the viewers.”</p> <p>As to the eighth exception, we are not informed as to the statements therein contained, and it must be dismissed.</p> <p>Errors assigned were to the dismissal of plaintiff’s exceptions which are sufficiently indicated in the opinion of the court below.</p>

Appeal, No. 104, April T., 1898, by plaintiff, from order of C. P. Beaver Co., March T., 1897, No. 89, dismissing rule for judgment for want of a sufficient affidavit of defense. Assumpsit. Before Wilson, P. J. The facts sufficiently appear in the opinion of the court. The court below discharged the rule for judgment for want of a sufficient affidavit of defense. Plaintiff appealed. Error assigned was refusal of judgment for want of a sufficient affidavit of defense.

Appeal, No. 73, April T., 1898, by defendant, from judgment of O. P. Butler Co., Sept. T., 1897, No. 94, on verdict for plaintiffs. Replevin. Before Greer, P. J. Plaintiff firm brought an action in replevin to recover one engine which they claim to be of the value of $150.

Appeal, No. 184, April T., 1898, by defendant, from judgment of C. P. Butler Co., March T., 1898, No. 332, on verdict for plaintiff. Sci. fa. sur mechanic’s lien. Before Greer, P. J. It appears from the evidence that one Joseph B. Bredin leased certain lands for oil and gas purposes to Norman Bredin.

<p>A ceord and satisfaction — Payment—Direction or appropriation — Effect of acceptance.</p> <p>A party paying money has a right to direct its application, and the refusal to return drafts, after explicit direction as to their application, ought to be regarded as an election to accept them for the purpose for which they are offered.</p> <p>Evidence — Payments purporting to be in full — Question for jury.</p> <p>A dispute arising as to the value of a carload of lumber incident to alleged defects, in an action to recover the price it was error to reject an offer on the part of defendant to prove that after inspection of the lumber by plaintiff’s representative an agreement was made by which plaintiff was to accept in full settlement the amount represented by certain drafts as in full settlement; that these drafts were remitted as payment in full received by plaintiff, who refused to return the same or credit defendant in full. Such offer tended to support the plaintiff’s case, and was proper for the consideration of the jury. The defendant’s case was not to be prejudiced by unauthorized application of the money, or by the fact that he used the lumber under the circumstances.</p>

<p>Appeal, No. 53, March T., 1898, by defendant, from order of C. P. York Co., Aug. T., 1873, No. 77, dismissing petition setting aside appointment of viewers and proceedings thereunder.</p> <p>Petition to set aside appointment of viewers and all proceedings thereunder and for the appointment of new viewers to assess damages, etc. Before Bitteetgeb, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below dismissed the petition at the cost of the petitioner. Defendant appealed.</p> <p>Error assigned was dismissing the appellant’s petition and directing him to pay costs.</p>

<p>Appeal, No. 19, Feb. T., 1898, by-plaintiffs, from judgment of C. P. Clearfield Co., Sept. T., 1894, No. 402, on ease stated in favor of defendant.</p> <p>Trespass. Before Love, P. J., of tbe 49tb judicial district, specially presiding.</p> <p>Tbe facts sufficiently appear in the opinion of tbe court.</p> <p>By the case stated it appears that tbe amount to be recovered by plaintiffs, if they were entitled to judgment, was $160.81 with interest from June 12, 1891, and costs.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was entering judgment on tbe case stated in favor of defendant.</p>

<p>Appeal, No. 79, April T., 1898, by defendant, from judgment' of C. P. No. 2, Allegheny Co.,, April T., 1896, No. 860, on verdict for plaintiff.</p> <p>Assumpsit to recover on a promissory note. Before Frazer, J.</p> <p>It appears from the evidence that this action was brought by Samuel Hazlett against Elizabeth Bragdon as indorser of a promissory note, dated October 29, 1895, signed by F. H. Bragdon, to the ordei of Mrs. Elizabeth Bragdon, at three months, for #600. It ivas indorsed by Elizabeth Bragdon and afterwards by Alex. W. Hart. The principal question raised upon the trial of the cause was whether notice of the dishonor of the note had been given to Mrs. Bragdon with sufficient promptness to make her liable as indorser to the holder of the note.</p> <p>Yerdict and judgment for plaintiff for #641.92. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 194, April T., 1898, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1897, No. 138, on verdict for plaintiffs.</p> <p>Assumpsit to recover for maintenance of tbe illegitimate child of Alexander Martin, deceased.</p> <p>The parties to the action having died after suit was begun, their executors were suggested on the record.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiffs for $340.96. Defendant appealed.</p> <p>Error assigned among others was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 152, April T., 1898, by defendant, from sentence of Q. S. Allegheny Co., Sept. Sess., 1897, No. 707, on verdict of guilty.</p> <p>Reeder and Smith, JJ., dissent.</p> <p>Indictment for fornication and bastardy. ' Before Frazer, J. f . The facts sufficiently appear in the opinion of the court.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Error assigned was in sustaining objection to the following offer of evidence on the part of defendant, which offer and objection thereto are as follows: “ Counsel for defendant offer in evidence a written article of agreement, dated the 3d day of December, 1896, between Maggie Springer, the prosecutrix, together with her parents, James and Rachel Springer, and the defendant, wherein, for the consideration therein named, the case, then pending before S. G. Matchett, Esq., justice of the peace, was fully settled between the parties, before arrest of defendant, together with all claims and demands growing out of the same, the execution of said agreement being admitted by the commonwealth; to be followed by evidence that said agreement was drawn by the said justice of the peace, and said settlement made with his consent. Counsel for the commonwealth object to said offer as incompetent, irrelevant and immaterial.”</p>

<p>Appeal, No. 154, April T., 1898, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1898, No. 274, on verdict for plaintiff.</p> <p>Trespass for libel. Before Stowe, P. J.</p> <p>It appears from the evidence that a publication charged the plaintiff with bad faith, falsehood, breach of trust, and the theft from his employers of almost half a million dollars, and with being a fugitive from justice. The plaintiff did not go upon the stand nor give any evidence except to prove the publication and the circulation of the newspaper.</p> <p>At the trial the plaintiff’s character and standing were not attacked and there was no evidence before the jury by way of justification or mitigation of damages. ,</p> <p>The court below charged the jury as follows:</p> <p>Without undertaking to define what a libel is, we say to you that this article as read to you and as published by the defendant is clearly and distinctly a libel of a very gross character. We say to you further that the defendant has shown no excuse or justification under, the evidence for publishing that article, and therefore it is your duty to render a verdict for the plaintiff against the defendant. [The amount of the verdict to be so rendered of course is a matter for yourselves. Under the evidence in the case it may be, as suggested by counsel, from what is called nominal damages, six and a fourth cents, up to any reasonable amount that you think just and proper under the circumstances.] [5]</p> <p>The plaintiff is entitled to recover a verdict. The first matter he is entitled to recover for is compensation. There is no direct proof given, nor is there any required in cases of this kind, of the actual money lost by the injury done him by the publication of the libelous article. It is sufficient for him to do as the plaintiff did here, read the libelous article to the jury and then rest. It then devolves upon the defendant to show some reason or excuse or justification for the publication of the article. The truth is always in a civil suit a justification. Under some circumstances there may be other defenses; as for instance where it is proper for public information, and where it is an honest and truthful statement, or where there is probable cause, although it may really turn out not to be true. That is justification, or an excuse, at least. W e have nothing of that kind here.</p> <p>The plaintiff is entitled, then, to recover what we call compensation, and that is what the jury may reasonably believe to be a direct compensation by way of payment to him for his lacerated feelings, for the outrage that he has sustained, for the injury that may have been done him, taking it in an ordinarily broad view, by the publication of the article in his business relations, and any and all natural results which would affect him personally arising out of the publication of this article. And then you have a right to go further. You have a right to take into consideration the character of the article, and if you deem it proper you have a right to impose what are called punitive damages, that is, damages by way of punishment for the purpose of teaching the editors of newspapers that they must not trifle, without good cause, or without justification or excuse, with the reputation and character of others, and for the purpose of preventing a repetition of this sort of thing. Those two elements, in a general way, make up that which should be the foundation of your verdict, and having by your combined judgment come to a conclusion with reference to that matter, it is your duty to render a verdict for that amount.</p> <p>The ease is submitted to you.</p> <p>The jury found a verdict in favor of the plaintiff for six and a quarter cents. Plaintiff appealed.</p> <p>Errors assigned among others were (1) the verdict was grossly inadequate. (5) To a portion of the general charge,' reciting same.</p>

<p>Practice, Superior Court — Appeals—Auditor's findings of fact when reversed.</p> <p>AVhile the record, in a case where the decree of the court below confirms an auditor’s report, comes into an appellate court with like effect as if the facts had been found by a jury, the appellate court having all the evidence upon which the finding is based, will reverse when they feel warranted by the evidence in so doing.</p> <p>Execution — Postponement of levy.</p> <p>Nothing is better settled than that an execution is intended, not to secure but to enforce payment of a debt and where the sheriff under instruction, postpones a levy from March 2, to April 20, when another writ is put in his hands, allowing the goods to remain in defendant’s possession in the mean time, the execution on the first writ is postponed to the second, because the delay in proceeding on the first writ tends to fraud, and is condemned as against public policy.</p>

<p>Appeal, No. 20, April T., 1898, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1896, No. 28, in favor of defendant on case stated.</p> <p>Case stated before Ratburh, P. J.</p> <p>The appellant’s paper-book does not disclose the amount in controversy.</p> <p>The facts upon which the opinion of the Superior Court is rendered are to be gathered therefrom.</p> <p>Errors assigned among others were (1) in affirming defendant’s first point as follows :• “ There being no covenants in the leases in suit whereby the defendant here undertakes or agrees to operate the territory demised or to pay the rental or penalty for neglecting to do so, the plaintiff cannot recover and judgment must be entered for the defendant.” (2) In affirming defendant’s second point, as follows: “ Under the terms of these leases admitted in evidence, the defendant, H. A. Col-well, is not liable for the payment of any rent or penalties after the date of his assignment to II. E. J. Putney.” (4) In directing judgment for defendant.</p>

<p>Master and servant — Risk of employment — Employer's liability.</p> <p>The duty is on the employer to furnish his employees reasonably safe appliances with which to do the work assigned to them. It is also his duty to know what appliances are suitable and in common and ordinary use for the purpose. The employee has a right to assume that his employer will intelligently and faithfully discharge these duties.</p> <p>If the work in which he engages is new to him, he should be instructed in it, and if he is not acquainted with the latent dangers incident to it, they should be explained to him, that he may, so far as consistent with a proper performance of the work, avoid them. In such a case he is not presumed to know whether his employer has furnished appliances which are reasonably safe and in ordinary use, and he is not chargeable with an assumption of the risks involved in the failure to provide such appliances. Bannon v. Lutz, 158 Pa. 166, followed.</p>

<p>Appeal, No. 33, March T., 1898, by poor directors of Cumberland county, from judgment of Q. P. Cumberland Co., in favor of plaintiff on case stated.</p> <p>Case stated. Before E. W. Biddle, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Defendants were surcharged by the county auditors with the sum of $80.57, being the expenses incurred by their attorney, treasurer and steward in attending their annual convention in October at Pittsburg.</p> <p>Judgment in favor of plaintiff for the amount of surcharge. Defendants appealed.</p> <p>Error assigned was entering judgment in favor of plaintiff on ease stated.</p>

<p>Execution — Distribution — Partnership — Claims of defendant partners and creditors.</p> <p>The fund for distribution, being under the direet control of the court which had jurisdiction of all the parties, which was produced from partnership assets and claimed by creditors on final judgment; such creditors in equity and good conscience ought to be paid before individual partners' claiming under exemption, it appearing moreover that the appellant partner had secured and been paid out of the fund $300; the decree of the court below in final distribution of the balance will not be disturbed.</p>

<p>Negligence — “ Shooting " oil well — Contractor's responsibility — Question for jury.</p> <p>The case turning on whether a contractor employed to “ shoot” an oil well performed his task with due care or skill, or whether he carelessly and negligently left an unexploded torpedo in the well after asserting its explosion, the pivotal questions are necessarily questions of fact and properly for the jury.</p>

<p>Appeal, No. 176, April T., 1898, by the Missionary Society of the Methodist Episcopal Church, from decree of O. C. Beaver Co., Dec. T., 1897, No. 5, in dis tribution.</p> <p>Exceptions to auditor’s report. Before Wilson, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Under will of decedent a legacy of 11,000 was claimed by the Methodist Episcopal Church at Beaver Falls and by the missionary society of the Methodist Episcopal Church. The court below held that there was a latent ambiguity and that the legacy lapsed. The missionary society of the Methodist Episcopal Church appealed.</p> <p>Errors assigned were (1) in deciding from the will and the evidence that the legacy to the foreign missionary society of the Methodist Episcopal Church lapsed. (2) In the conclusions of law by the court below as follows: “ 1. As there is no society known as the ‘ Foreign Missionary Society of the Methodist Episcopal Church’ there is latent ambiguity in the bequest of the testatrix to such society, and the legacy must, therefore, lapse. 2. The exceptions to the auditor’s report must be dismissed and the same confirmed absolutely.”</p>

<p>Appeal, No. 177, April T., 1898, by plaintiff, from decree of Q. S. Warren Co., June Sess., 1896, No. 21, affirming order of removal.</p> <p>Appeal from order of removal by two justices of the peace of Warren county. Before Noyes, P. J.</p> <p>The court below, Noyes, P. J., issued an order of removal from which the poor district of McKean county appealed. The appeal was dismissed and the order of removal affirmed in an opinion by Noyes, P. J., from which the facts of the case sufficiently appear. The opinion is as follows :</p> <p>This is an appeal by the poor district of McKean county from an order of removal granted by two justices of Warren county. The following are the facts:</p> <p>Emil Bergstrum, the poor person named in the order of removal, was born in Sweden and came to this country upwards of eleven years before his removal. He was upwards of forty years of age and married. In the spring of 1893 he was employed in Smethport, McKean county, and resided within the poor district of McKean county with his wife in a house which he rented for about eight months, paying the stipulated rent amounting to $24.00; he then immediately removed to another house in thp same district which he had rented for one year at $5.00 per month, and lived therein for nine months, paying the rent amounting to $45.00. He then left with his wife, informing his friends that they were going back to Sweden to live, but left his goods -in the house in the care of a friend as his agent, by whom the balance of the year’s rent was paid for him and out of his funds.</p> <p>He was subsequently found insane and chargeable in Warren county, and removed as above stated.</p> <p>[There is no evidence showing in what place in Sweden he was born, or originally settled, nor to what particular place he intended to return, nor that he did in fact return, thither.] [11]</p> <p>We think it due to the diligence and zeal of the counsel for the appellants, to state our opinion upon the' several points raised in his brief.</p> <p>1. The case of Allegheny City v. Allegheny Twp., 14 Pa. 138, is decisive to the point that the residence of the pauper for the one whole year within the district and the payment of more than $10.00 rent constitutes a settlement, although the residence may be in two or more tenements.</p> <p>[A healthy foreigner coming direct from a foreign country may acquire a settlement by mere residence for a year without paying rent. But it does not follow that if he removes to another district he may not gain a settlement there in one of the other modes specified in the law. In our opinion citizenship has nothing to do with a question of settlement by other acts than mere residence. If the sixth clause of the act is to be regarded as providing the only mode by which a foreigner may acquire a settlement in Pennsylvania, then a citizen of another country, no matter how healthy, cannot acquire a settlement here if he be not “ healthy; ” and one who has acquired a settlement by residence cannot lose it by removal elsewhere under any circumstances whatever, unless he returns to his own countw and comes again directly from thence. These results are iot such as the law contemplates, nor are there any terms used which make it necessary to bring them about.] [12]</p> <p>2. [Bergstrum did not lose his settlement in McKean by returning to Sweden.</p> <p>We have no evidence what the laws of Sweden are, and hence must presume them to be the same as our own. He would not lose his settlement in McKean until he regained one elsewhere.</p> <p>Returning to the place in Sweden where he was born and where his settlement originally was, might be enough to regain that settlement, but this does not appear, indeed the evidence does not show that he actually went to Sweden at all.] [13]</p> <p>3. [McKean county, under the evidence, must be taken to be the place of the pauper’s last legal settlement. It is true that the burden of showing this is upon the appellees. But they are not required to prove negatives. Having shown the legal settlement of Bergstrum in McKean, the presumption is that it continues there until the contrary appears.] [14]</p> <p>4. Notwithstanding the decision in Washington v. Beaver, 3 W. & S. 548 and other cases [we think the order of removal was legally issued by the two justices of the removing district]. [15] In that case the overseers were at liberty to apply to justices residing in the county, but outside the district affected, and having chosen to apply to two justices of the very township affected the Supreme Court quashed the order on the ground that it was against natural justice that an interested person should act as judge, adding that “ nothing but express words can induce us to give an act of the legislature such a construction.”</p> <p>In this case there is no room for construction. Warren county is a single poor district, and the jurisdiction is given only to justices “ of the same county.”</p> <p>Perhaps the legislature ought to amend the law to meet the changed conditions, but we cannot. The interest, however, is much less than the interest of a taxpayer in the expenditures of his township or borough. It is no greater than that of the judges of this court which has never been regarded as disqualifying.</p> <p>[The appeal is dismissed, and the order of removal affirmed at the costs of the appellant.] [16]</p> <p>Errors assigned were (1) in not finding “ that the evidence • does not show conclusively that Emil Bergstrum ever gained -a legal settlement in the McKean county poor district.” (2-10) In not finding that the alleged pauper left McKean county in the fall of 1894 and returned to Sweden, his native country, with the avowed intention of making that his future home, and that he took his family with him and left them there and thereby lost his settlement in McKean county, if ever gained there. (11-16) To the findings of the learned court below, reciting same.</p>

<p>Appeal, No. 18, March T., 1898, by defendant, from judgment of C. P. Bedford Co., on verdict for plaintiff.</p> <p>Assumpsit on policy of insurance. Before LohgeheckER, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Yerdict and judgment for plaintiff for $895.50. Defendant appealed.</p> <p>Errors assigned among others were (1) refusal of binding instructions for defendant. (2) In the general charge as follows : “Now, gentlemen of the jury, there are several questions of fact in this case for your determination, and I leave them entirely to you. Was there an understanding when this insurance was solicited that a change might be made from one company to another, as any portion of the insurance was declined ? Did Mr. Mauk authorize Mr. Moore’s agency, in the event that any of the insurance was declined by any one company, to substitute another in its place? Was it known and anticipated by the plaintiff, from the representations made to them by Mr. Moore that a portion of the insurance might not be accepted and that other insurance would in that event be substituted for it? If that was understood in the outset and Mr. Moore was authorized to change the insurance from one company to another, under such circumstances, then it makes a vast difference in the law as it effects this whole case. You are therefore to ascertain whether the parties acted with a view to the possible cancelation of any of these policies, and the placing of the insurance in another company under such circumstances. Also, whether, when Mr. Mauk came in with the policy, he delivered it to the insurance agency simply for the purpose of correction of some supposed error, or whether, on the other hand, as the company contends, it was delivered with the understanding and upon the representations made to him that the insurance company refused to take the risk and directed the policy to be canceled. As a matter of course, gentlemen, if Mr. Mank surrendered -his policy with, the understanding that it was to be canceled, that is the end of this case ; for then he surrendered his contract. If, on the other hand, he surrendered it merely for.the purpose of some alleged correction, then he did not surrender any of his rights under the policy. So I say to you that becomes a very material question in the case. Now it is not denied, I believe, that the Susquehanna policy was to take the place of the policy in the Commercial Union. Did Mr. Moore have any authority to make this substitution? Was it a part of the understanding that he might make such change ? The policy is dated the 25th of May, the day preceding that on which the policy in suit was brought into the office. It is conceded on both sides, as I recollect, that Mr. Moore promised to keep the plaintiff insured in good companies for the amount of insurance which he had undertaken to place, namely, ‘ five thousand dollars.’ ” (4) The charge as a whole was not a fair, adequate presentation of the case.</p> <p>The other assignments were directed to pointing out specifically the portion of the charge alleged to be unfair and inadequate.</p>

<p>Appeal, No. 3, April T., 1899, by Elizabeth Friedman, from order and decree of Q. S. Allegheny Co., March Sess., 1898, No. 1187, refusing application for retail liquor license.</p> <p>Application for retail liquor license. Before Slagle, J.</p> <p>A remonstrance was filed setting out the following reasons:</p> <p>1. Applicant has been selling intoxicants for some time, on her husband’s license, after he left and went to Europe, as your remonstant is informed and verily believes.</p> <p>2. Since her said husband left, as aforesaid, the applicant has kept a disorderly house.</p> <p>3. During the past year the applicant has sold to men of known intemperate habits, to men visibly under the influence of liquor.</p> <p>4. The place is not necessary for the accommodation of strangers or travelers.</p> <p>On April 15, 1898, the court made the following decree: “ Refused. Married woman and husband own the property.” Petitioner appealed.</p> <p>Error assigned was in entering decree, reciting same.</p>

<p>Eminent domain — Gas company — Act of 1885 — Trespass.</p> <p>A gas company assuming to exercise the right of eminent domain under the Act of May 29, 1885, P. L, 29, can do so legally only after a literal observance of the conditions imposed by that statute.</p> <p>Entry made without compliance with the conditions imposed by the act renders the company liable for trespass.</p> <p>Trespass — Entry by corporation — Punitive damages — Question for jury.</p> <p>Resort to force or intimidation must not be sanctioned, and a landowner has a clear right to insist on a literal compliance with the statute which authorizes any corporation to invade his property. Where the evidence shows that the first entry upon the land was without the owner’s consent and accompanied by physical-violence, that when the employees of defendant were yet on the land of the plaintiff pursuant to the original entry they resisted a constable who sought to arrest them, the question of punitive damage's was properly for the jury.</p> <p>Charge of court — General effect — Isolated statements.</p> <p>If the charge of the court as a whole is a correct and adequate presentation of the case to the jury, it will be affirmed although there may be some statements which standing alone are objectionable.</p>

<p>Judgment — Proof necessary to move chancellor to open.</p> <p>It is difficult to lay down the precise measure of proof which should move a chancellor to open a judgment. That he may not act unless there is more than oath against oath is a familiar rule in chancery practice; where there is more than this, and when it comes to a question of the weight of the evidence it is for him to decide to which side the scales incline. If he is in doubt upon this question, or as to the credibility of witnesses, a prudent course would suggest the aid of a jury.</p>