Volume 8 — Pennsylvania Superior Court Reports

Appeal, No. 100, Oct. T., 1897, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 382, on verdict for plaintiff. Wickham and Porter, JJ., dissent. Trespass for personal injuries. Before Bbégy, J. It appears from the evidence that the plaintiff, a lady about fifty-five years of age, was temporarily living with her son, in a small country place, and the cow of the defendant strayed into the garden belonging to the son.

<p> Mechanic's lien does not attach for removal of building. </p> <p>The labor for which a mechanic’s lien may be filed must be performed either in the construction, alteration or repair of a building, or structure, or for such other work as may have been expressly provided for by statute, and does not include the labor incident to the removal of a structure from one place to another.</p>

<p>Oil and gas lease — Abandonment by lessee.</p> <p>Lessees who have abandoned their rights under an oil lease cannot confer any title on their assignees.</p> <p>A failure to produce oil in paying quantities is in equity a forfeiture of the rights of a lessee, inasmuch as if a lessee under such a lease explores and finds oil or gas, the relation of landlord and tenant is established, and the tenant is under an implied obligation to operate for the common good of both parties, and pay the rent or royalty reserved.</p>

Appeal, No. 55, March T., 1898, by plaintiff, from judgment of C. P. York Co., Oct. T., 1897, No. 8, in favor of the garnishee on his answer. Attachment execution. Before Stewabt, J. The following facts appear from the record: The plaintiff attached in the hands of Edw.

<p>Appeal, No. 7, April T., 1898, by plaintiff, from decree of C. P. Armstrong Co., March T., 1897, No. 66, dissolving preliminary injunction.</p> <p>Hearing on bill, answer and proofs. Before Rayburn, P. J.</p> <p>It appears from the record that plaintiff’s bill was brought to restrain the defendants from the levy and collection of taxes against plaintiff’s property. Plaintiff was an incorporated company for educational purposes and that it had leased a private residence at a fixed annual rental, together with an agreement on its part to pay the taxes and keep the building in perfect repair. The school was conducted under an agreement between the trustees and the Rev. Robert Barner, by which agreement Barner had charge of the school, lived there with his family without rent, the trustees paying for water, light and heat. Barner received all tuition fees, and employed and paid liis own assistant. He was to build up the school and do the best he could, and in case of falling behind in the paying of his assistant the trustees were to make it up. There were thirty-four scholars who paid tuition; there were no free scholarships or charity pupils. There was a fund or endowment belonging to the academy from appropriations made by the legislature, and bequests. The court below held that the facts in the case were very similar to those in the case of Phila. v. Overseers of Public Schools, 170 Pa. 257.</p> <p>The court below, upon hearing, dismissed the plaintiff’s bill, and decreed that the preliminary injunction heretofore granted be dissolved. Taxes claimed amounted to $290. Plaintiff appealed.</p> <p>Error assigned was entry of decree, reciting same.</p>

Appeal, No. 116, April T., 1898, by William M. Cowan, defendant, from judgment of C. P. Butler Co., Dec. T., 1896, No. 6, on verdict for… Held: of which occurrence Cowen had been informed]. [1] And that when Coast came to Cowan’s place and informed him of this second attempt to collect a note from the original maker which had previously been assigned to himself, the defendants gave plaintiff into the charge of a constable and subsequently had him formally arrested on a…

Appeal, No. 16, Apr. T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1895, No. 533, on verdict for plaintiff. Assumpsit. Before Greer, P. J., of the fiftieth judicial district, specially presiding. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $984.77. Defendant appealed. Jfrrors assigned among others were (3) in refusing defendant’s second point, which is as follows: “ 2.

<p>Fees of sheriff— Commitment and discharge of prisoners — Givil and criminal cases.</p> <p>No specific legislative authority for the payment of a fee for the discharge of criminals being shown, the county is not liable to the sheriff therefor.'</p> <p>The sheriff of Lawrence county is entitled to a fee of fifty cents for every prisoner committed in criminal cases, but no fee for his discharge; in civil cases he is entitled to a fee for a discharge but none for commitment. The fee is the same in either case but based on different functions, in one case, on commitment, in the other, on discharge.</p>

<p>Appeal, No. 201, April T., 1898, by defendant, from judgment of C. P. Mercer Co., Oct. T., 1897, No. 84,. on verdict for plaintiff.</p> <p>Assumpsit. Before Millee, P. J.</p> <p>The following facts were specially found by the jury:</p> <p>1. That on the 10th day of June, 1897, Geo. W. Magee tendered to Daniel Mourer a deed for the land in question, executed by J. E. Hecker and wife, and in favor of Daniel Mourer.</p> <p>2. That tbe article of agreement for tbe sale of tbe land in question between J. E. Hecker and Daniel Mourer was assigned by J. E. Hecker to Geo. W. Magee on November 23,1896, and that Daniel Mourer first knew of said assignment on the 14th day of September, 1897.</p> <p>3. We find for the plaintiff the sum of $800, being the balance of purchase money due on the sale of the land in question by J. E. Hecker to Daniel Mourer, and interest up to April 1, 1897, and if the court should be of opinion on the question reserved that the plaintiff is entitled to the interest from and after April 1,1897, the amount of such interest after April 1, 1897, shall be added to the said sum of $800 in favor of the plaintiff, and the following questions of law were reserved:</p> <p>[1. Under the law and evidence in this case, is the plaintiff entitled to interest on the amount of $800, being the balance of the purchase money on the article of agreement between J. E. Hecker and Daniel Mourer, from and after April 1, 1897 ?</p> <p>2. Under the special verdict to be found by the jury, is the plaintiff entitled to interest on the sum of $800 from and after April 1, 1897?</p> <p>3. Did the assignment of the article between J. E. Hecker and Daniel Mourer to Geo. W. Magee (said assignment dated November 23, 1896), and the delivery of the deed of J. E. Hecker and wife to Daniel Mourer to Geo. W. Magee on November 23, 1896, divest the title of J. E. Hecker in the land in question so that the judgment in favor of the commonwealth of Pennsylvania against Wm. Limbert and J. E. Hecker, entered January 16, 1897, was not an incumbrance on the title ?</p> <p>4. Under the law and the evidence is the plaintiff entitled to a verdict for the full amount of his claim ?] [1]</p> <p>Verdict and judgment for plaintiff for $800. Defendant appealed.</p> <p>Error assigned was entering judgment in favor of plaintiff on the questions of law reserved, reciting same.</p>

<p>Appeal, No. 174, April T., 1898, by Sarah A. Bard, from order of C. P. No. 1, Allegheny Co., Dec. T., 1897, No. 186, discharging rule for sheriff’s inter-pleader.</p> <p>Rule for sheriff’s interpleader. Before C. P. No. 1, Allegheny county.</p> <p>It appears from the record that plaintiff issued execution against W. H. Bard to collect the sum of $244.20. Sarah A. Bard claimed the personal property levied on by the sheriff as belonging to her and alleged in her affidavit that the same belonged to appellant, was purchased by her from money received from the estate of her mother and that the personal property was in her possession and that the said W. H. Bard had no interest in the same in any way whatever. Appellee filed an answer to the rule for the interpleader sworn to by his attorney setting up that he was informed, believed and expected to be able to prove, etc., that at the time of the levy the title to the said personal property was actually vested in defendant. The following are the sheriff’s interpleader rules of Allegheny county:</p> <p>Rule 133. Applications under the Sheriff’s Interpleader Act must be in writing, verified by affidavit, setting forth facts necessary to give the court jurisdiction, and containing a schedule or other sufficient description of the goods or chattels taken in execution; whereupon a rule (a) will be granted on the claimant of the goods and chattels and the plaintiff in the execution to show cause why an issue should not be framed to determine the ownership of said goods and chattels; a copy of which rule shall be served by the sheriff on the parties, or their attorney.</p> <p>Rule 134. If the parties, or either of them, fail to appear and answer the rule under oath within five days after the service thereof, the rule shall be discharged; and if the default is made by the plaintiff alone, the officer shall release the property claimed, otherwise he shall proceed with the execution.</p> <p>If both parties appear and answer as aforesaid, the court may discharge the rule and direct the officer to release the property; or order him to proceed with the execution; or make the rule absolute and award an issue to determine whether the right of property, in the goods and chattels claimed, is in the claimant or not, or make such other order as the justice of the case may require.</p> <p>Rule 135. If the rule is made absolute and issue awarded, the claimant shall be plaintiff, and all other parties shall be defendant ; and the claimant shall give bond to be approved by the court in accordance with law.</p> <p>Rule 136. If the claimant fails to give bond and file statement within two weeks after award of issue, as required by law, the claimant shall be deemed to have abandoned all claim to the goods levied on, and upon production of the prothonotary’s certificate, showing such failure of claimant, the sheriff shall proceed with the execution.</p> <p>If the claimant fails to give bond, but files his statement, as required by law, upon production of the prothonotary’s certificate of such fact, the sheriff shall proceed with the execution and pay the proceeds of the sale of the claimed goods into court, to await the determination of the issue.</p> <p>Rule 137. Feigned issues shall be regularly entered on the appearance docket, and as soon as a plea is entered, shall be placed on the issue docket as other causes.</p> <p>Rule for interpleader discharged. Defendant appealed.</p> <p>Error assigned was in discharging the rule on appellee and appellant to show cause why an issue should not be framed.</p>

<p>Appeal, No. 197, April T., 1898, by defendant, from judgment of C. P. Venango Co., April T., 1896, No. 55, on verdict for plaintiff.</p> <p>Trespass. Before Criswell, P. J.</p> <p>It appears from the record that judgment having been obtained against Mary D. Carpenter, who was conducting a boarding house in Oil City, Pa., and buying supplies from the plaintiff in the judgment, execution was issued and levy and sale made of the property in the boarding house. Plaintiff in this case, daughter of the defendant in the execution, claimed the property on an alleged transfer from her mother. Notice having been given by the plaintiff of her alleged ownership she brought suit after the sale against the sheriff.</p> <p>Verdict and judgment for plaintiff for $195. Defendant appealed'.</p> <p>Errors assigned were (1) in his charge to the jury in that part thereof following, viz: “It appears that the mother was indebted at the time of this alleged sale. Being so, she had a right to mate a sale and disposition of her property, provided she sold to a bona fide purchaser for a valuable consideration.” (2) In his charge to the jury in that part thereof following, viz: “The testimony of the plaintiff, Mrs. Downing, is that ‘I bought the property for one hundred dollars, provided I let my mother have her home with me.’ A person who is indebted is not permitted by law to dispose of his property in consideration of future maintenance. Those who are indebted cannot put their property out of their hands and avoid their creditors in order to provide future maintenance for themselves. The testimony in this case in reference to that is somewhat vague. If it were more decided I would feel it my duty to say to you as a matter of law that under the evidence the plaintiff cannot recover.”</p>

<p>Appeal, No. 16, March T., 1898, by defendants, from decree of C. P. Franklin Co., Equity Docket, vol. 2, page 263, directing payment of a sum of money in accordance with the prayer of the petitioner.</p> <p>Bill, answer and proofs. Before Stewart, P. J.</p> <p>The facts sufficiently appear from the following opinion of the court below, by Stewart, P. J. :</p> <p>FINDIHG-S OF FACT.</p> <p>1. Daniel Bonebrake and Rebecca, his wife, by deed dated August 30, 1890, conveyed to Abraham L. Smith a tract of land, situate in Quincy township, containing eighty-eight acres and seventy-four perches. The consideration expressed in the deed is $3,000. In the habendum occurs this clause: “ Nevertheless the maintenance of Daniel Bonebrake and Rebecca his wife, during their natural life, is a part of the consideration herein mentioned, therefore this title does not become clear of all incumbrance until at the death of the said Daniel Bone-brake and Rebecca his wife.”</p> <p>2. At the time of this conveyance there were several liens of record against the property — two- judgments each of $500, which Smith personally assumed; a mortgage for $1,300 in favor of Levi C. Row, one of the defendants, and a judgment in favor of Rebecca Bonebrake, the plaintiff, for $3,000. Subsequently, and during the ownership of Smith, other liens were acquired.</p> <p>3. On March 23, 1895, Smith, the grantee, made a general assignment of all his property, including the land conveyed to him by Bonebrake, in trust for the benefit of his creditors. Pursuant to an order of the court of common pleas his assignee sold said tract of land, fifty-nine acres and thirty-six perches, to Benjamin R. Summers and Levi O. Row for $2,339.38, seventeen acres and twenty-two perches to Christian Avery Miley for $119.96, and twelve acres and sixteen perches to Samuel S. Hess for $133.10, which sales were duly confirmed January 28,1896, and deeds were made, executed and delivered by the assignee to the several purchasers respectively. In each of these deeds it is expressly stated that the property is conveyed subject to the rights of Rebecca Bonebrake therein, under the deed from Bonebrake and wife to Smith.</p> <p>4. At the sale of the land by the assignee of Smith it was publicly announced that the land would be sold subject to the charge contained in the deed from Bonebrake and wife to Smith, and so much of the deed as referred to the charge was publicly read; but it does not appear affirmatively that this was in the hearing of any of the defendants. I cannot find as a fact from the evidence that before the sale was actually made, any of the defendants had knowledge of the existence of the charge in the deed.</p> <p>5. On March 23, 1895, when Smith assigned for the benefit of creditors, the amount of the several liens which Were in existence when lie acquired the property from Bonebrake remaining unpaid was $1,415, with interest from April 1, 1894, and costs. The judgment for $3,000, in favor of Rebecca Bone-brake, had been marked satisfied and paid on the record by Mrs. Bonebrake March 2,1892.</p> <p>6. Daniel Bonebrake and wife resided with Smith, their grantee, upon the farm they conveyed to him, and were supported and maintained by him. Bonebrake died in the fall of 1892. His widow, Rebecca, remained with Smith, as a member of his family until March, 1895, when Smith having assigned for the benefit of his creditors, left the farm and moved to the state of Maryland. Thereafter she continued on the farm, residing with the tenant of the assignees, until in February, 1896, when she went to Maryland to reside again with Smith. She has remained in his family until the present, under a contract to pay to Smith $10.00 a month for her boarding and an allowance for house rent, if she became able.</p> <p>Mrs. Bonebrake has no estate of any kind apart from her interest under this deed of conveyance to Smith; she is seventy-six years old. Mrs. Smith, wife of A. L. Smith, the grantee, is her grandchild, and nearest living relative. A. L. Smith, the grantee, has no estate.</p> <p>7. Rebecca Bonebrake, widow of Daniel Bonebrake, presents this her bill asking that the several purchasers of the land from Smith’s assignee — the defendants herein — be required by a decree of this court to provide and furnish for her out of the land so conveyed them, a suitable maintenance, alleging that such maintenance was made a fixed charge and lien upon the land by the terms of the conveyance to Smith, which was not discharged by the assignee’s.sale,but still subsists,and is enforceable against the land conveyed.</p> <p>8. The answer of the defendants raises no question of fact, but denies their liability to the plaintiff, on the ground (1) that the clause in the deed from Bonebrake and wife to Smith, which the plaintiff insists is a charge upon the land, “ does not create any charge or lien upon the lands described in and conveyed by said deed, but at most creates a personal charge or debt against the grantee named therein;” (2) “that the title which passed by said (assignee’s) sale to the purchasers, is clear of any lien or incumbrance supposed to have been created thereupon by the deed to Abraham L. Smith.”</p> <p>The answer further denies the jurisdiction of equity in the piemises.</p> <p>CONCLUSIONS ON LAW.</p> <p>The questions raised with respect to the nature of the charge in the deed and its effect are to be first disposed of. Neither presents any considerable difficulty.</p> <p>1. That it was the intention of the parties to the conveyance to charge upon the premises conveyed, a maintenance for the grantors as a continuing lien, is manifest from the language used. What the law requires to create a charge in the title is not any particular formula, but words which clearly indicate such purpose. It is the intention that governs, and where this is clearly expressed the law recognizes and enforces it. There can be no charge in the title arising from legal implication; but where the parties by their own agreement expressed in unmistakable language in the deed of conveyance subject the property conveyed to an incumbrance, its lien is as valid as any other. “ The sum of the authorities is,” says Woodwakd C. J., in Hiester v. Green, 48 Pa. 96, “ that though equitable liens are not favored by our law, yet parties may by clear and express words in deeds of conveyance create liens upon land, either for purchase money or for performance of collateral conditions.” Referring to the case just cited, Ag-new, J., in Strauss’s Appeal, 49 Pa. 353, says: “ Hiester v. Green brought us back to the rule that all charges upon real estate must appear affirmatively, and in such form as to admit of no doubt of the intent to charge, and therefore of easy determination by those who examined the title. It must be conceded that a rule which is dependent upon mere inference or construction affords no safe guide. Hence Hiester v. Green intended to say, and did expressly rule, that the lien of purchase money is not to be left to mere equity, or to an implication arising in merely equitable consideration, but must appear in an express form, when an intent to charge is apparent because it is so expressed. This affords a safe and easy guide to purchasers who look into the title, and if they do not find this expressed intent, are at once relieved from a mere consideration of equity, and a balancing of results accompanied by more or less difficulty in determining their true effect.” Whatever else may be obscure about the deed of conveyance from Bonebrake and his wife to Smith, the language used in the hahendum leaves no doubt whatever that the maintenance of the grantors during their natural lives was part of the consideration therefor. This without more would be insufficient, but it is immediately followed by the explicit and unequivocal statement that “ therefore, this title does not become clear of all incumbrance until at the death of said Daniel Bonebralre and Rebecca his wife.” Language such as this excludes all doubt as to the intention of the parties; it leaves nothing to the balancing of results, but notifies in a most direct and positive way, everyone inquiring of the deed, that by the act of the parties the land conveyed is made subject to this charge.</p> <p>2. It is equally clear, we think, that this charge survived the sale by the assignee, and still remains a lien upon the land in the hands of its present owners. This results from its indeterminate character. The indefiniteness of its valuation, and the uncertainty of its duration, exempt it from the general rule which discharges land sold at judicial sale from existing liens. InLuce v. Snively, 4 Watts, 396, it is said: “Byaseries of decisions on the subject, a general rule has been laid down and established, that the party purchasing at a judicial sale fairly made, shall take and hold the land so sold, not only free from all existing liens for and on account of the debts of the person as whose estate it is sold, but free likewise from all liens for and on account of the debts of the previous owners of the land through or by and from whom he derived the legal title for it. To this general rule, however, there are some exceptions. Prior mortgages are made so by act of assembly. So where the nature of the prior lien consists of annual payments to he made for an uncertain length of time, and therefore such as render the cash amount or value thereof incapable of being ascertained on account of the uncertainty of its duration, it must be considered an exception, as for instance when the land is charged with the annual payment of money or other thing, for the support and maintenance of one or more persons during life, or with the annual payment of the interest upon one third of the valuation money of the land coming to the widow in certain cases of intestacy,” etc. The same rule is expressed in Dewait’s Appeal, 20 Pa. 236, but in a different way. In the last mentioned case it is said: “ True the law does seek to discharge all liens as far as possible by judicial sales, but it cannot do so in all cases. And it will in no case do so where the charge stands in the title, and can be discharged only by the court undertaking to administer the fund by investing it, in order to fulfil the purposes of the charge.” The most recent affirmance of this rule, with respect to the point now under consideration, will be found in Rohn v. Odenwelder, 162 Pa. 346.</p> <p>3. It was earnestly contended however upon the argument, that this rule is not applicable to sales made by assignees under an order of court, since the act of February 17, 1876, authorizing them, provides in sec. 1, that such sales “ after being confirmed by the court shall discharge all liens against the real estate so sold, excepting that where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground rents and purchase money due the commonwealth, the lien of such mortgages shall not be destroj'ed, or in any wise affected, by any sale made by virtue or authority of any order of sale made under the provisions of this act.” It is insisted that this act distinguishes sales made under its provisions, from all other judicial sales in this respect; and that no liens cán survive an assignee’s sale other than those which are expressly excepted by its terms. The general language of the act would certainly admit of this interpretation; but upon closer examination it is apparent, we think, that no such distinction is intended. Certainly the purpose of the act, and the only purpose for that matter, was to make these sales judicial so that liens might be divested; but it still remains true, that there are cases in which this result cannot be reached. But for the exception of first mortgages expressed in the act, they would, under the general language used, be divested, because it is practicable to divest them, however inexpedient and unwise it may be to do so; but with respect to such liens as are fixed in the title, and are in their nature incapable of present determinate valuation, there is a practical difficulty in the way of divestiture, which negatives the idea that they were in contemplation when it was provided that such sales should “ discharge all liens against the real estate so sold.”</p> <p>The divestiture of liens by judicial sales results not from statutory enactment, but from a series of decisions on the subjeet, as was said in Luce v. Snively, supra. In order to save first mortgages from the-operation of the general rule established by these decisions, the act of April 6, 1830, was passed; and we find that the exception in the act of 1876 is in the very language of this earlier act relating to mortgages, indicating a purpose to place assignees’ sales upon a footing with sheriffs’ sales, giving them no wider, but the same, effect upon liens. This view is strengthened by the fact that there is no apparent or discoverable reason why the one kind of judicial sale should be distinguished from the other in this particular.</p> <p>Our conclusion is that no such distinction was intended, and it results from what we have said, that we have here a fixed lien in the title for the plaintiff’s maintenance, which was not divested by the assignee’s sale, and that it continues a charge upon the land in the hands of the present owners, the defendants.</p> <p>4. Nor can the objection to the forum in which the plaintiff seeks her remedy be sustained. Ordinarily the action of assumpsit affords an adequate remedy against a subsequent vendee of land to recover a fixed charge thereon, like an annuity: Rohn v. Odenwelder, 162 Pa. 346. But this case presents features which call for a remedy more embracing and complete. Here are several parcels of lands, owned by as many different persons, each parcel subject to the same common charge, and each answerable of itself in an action of assumpsit to a demand for the whole charge. The several owners could not be joined in one action, and no more could one action cover all the parcels, and subject each to a ratable proportion of the whole. In equity alone can a full and adequate remedy be found. “ Jurisdiction in equity depends not so much on the want of a common law remedy, as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court; in other words the court may take upon itself to say whether the common law remedy is under all the circumstances of the case and in view of the conduct of the parties, sufficient for the purpose of complete justice, or whether the intervention of chancery may not for that purpose be required and beneficially applied: ” Bispham’s Equity, sec. 484, quoted approvingly in Bierbower’s Appeal, 107 Pa. 14. It is apparent, from the nature of the present case, that the intervention of chancery is required to settle, determine and adjust the rights and obligations of the several parties thereto.</p> <p>5. It remains to consider the extent of the plaintiff’s rights with respect to the maintenance that is charged in the deeds. Maintenance is what she is entitled to; but the provision in the deed under consideration does not define it, or afford any standard by which it can be measured. Maintenance means support; and under any circumstances, used as it is here, would be held to include proper provision for bodily wants and necessities, shelter, food, raiment and such other things as may be required for physical health and existence. It may include much more, but it cannot mean less. Our endeavor must be to discover what the word meant to the parties using it; for after all it is the intent as we find it that is to be enforced. In Steele’s Appeal, 47 Pa. 437, the charge was “ a sufficient maintenance ” for the wife. That it was a testamentary charge and not a charge in a deed is without significance for the same rules of interpretation apply. It was there said: “It seems very clear that the primary object of the testator, in this case, in that portion of his will making provision for his widow after his decease, was to secure for her a comfortable maintenance for life, and that the manner of doing so was to be entirely subordinate thereto. This primary intent is clearly disclosed, and its accomplishment charged upon all his realty, but not a word is said as to the mode and manner of its administration. We have nothing therefore to do, in interpreting the provision under consideration, if interpretation be indeed needed in such a case, but to give full efficiency to the clearly disclosed primary intent, and that is, in the absence of all restriction, to allow the widow the fruits of the testator’s bounty wherever she may choose to reside. Of course her discretion must in this particular be reasonably exercised both as to place and material and quantum. A comfortable maintenance, measured by the station, habits and tastes of the testator and the widow it is fair to presume was intended, no more nor no less, without extravagance either as to place nor material.”</p> <p>So here, the primary intent is clearly enough disclosed, and we can have no other standard by which to measure the extent of the maintenance that was contemplated other than the habits, tastes and station of the parties. The evidence shows that they were simple, plain people, living frugally, with few wants and these easily and cheaply supplied. This plaintiff is now seventy-five years old, with the usual infirmities that Avait upon extreme age. The living she at present has is in accordance Avith her desires, and the fact that she has contracted for it at the rate of $10.00 per month, with an additional allowance for house rent, shows that she is not extravagant in these. There are ordinary and incidental expenses which should be considered outside of the mere living; allowance must be made for clothing, for fuel and such things as are indispensable. Having regard to the situation and circumstances of this plaintiff, and judging them in the light of what I regard the primary intent as expressed in the provision under consideration, and considering as well the proportion the charge bears to the value of the property, I am of opinion that commuting the maintenance charged in the deed, its fair equivalent would be $12.50 per month, or, at the rate of $150 per annum.</p> <p>There is nothing in the provision which indicates that the beneficiary in order to be entitled to the maintenance, was to reside upon the land. In the absence of all expressed qualifications it would be an arbitrary conclusion to hold that a restricted maintenance Avas intended, and considering how un-. certain, incomplete and unsatisfactory such maintenance might easily become, under repeated aliénations of the land, were this widow to be regarded as a vassal it is manifest that any such construction would defeat the whole purpose of the provision.</p> <p>All the objections which are urged against this feature of the plaintiff’s claim are fully met in the case of Steele’s Appeal, supra, where it is said: “ As the widow was not limited or restricted to any particular place to receive the maintenance provided by the will, it was the duty of those charged with furnishing it, to furnish or tender performance to her where she might be living, or where she might choose, and so far as this has not been done, the petitioner is entitled to a decree in her favor. The charge Avas in the nature of a debt, Avhieh the debtor, in order to discharge himself of, must seek the creditor, and perform, or offer to perform, his obligation.” The same authority fully meets the objection that the charge was personal to Smith, the grantee, and did not extend to his alienees. It is unnecessary to quote further, however.</p> <p>I am of opinion, and so find, that (1) the land purchased by these defendants from the assignee of A. L. Smith, and which was embraced in the deed of conveyance of August 30, 1890, from said Daniel Bonebrake and wife to said A. L. Smith, is subject to the provision for maintenance contained in said deed of conveyance; (2) that this maintenance now of Rebecca Bonebrake, her husband having died, commuted, is of the monthly value of $12.50; (3) that this maintenance has been omitted since the first day of March, 1896; (4) that these defendants, the present owners of said land, should be required to make good what has been omitted, and from this time forth pay over to said Rebecca Bonebrake the money value of said maintenance, as already ascertained, in quarterly payments, the first of said payments to be made on the first day of May next, and quarterly thereafter; (5) that said charge should be apportioned on the present subdivisions of said land in the proportion that the purchase money paid for each at the assignee’s sale bears to the whole amount for which the land was sold, and be charged thereon accordingly.</p> <p>And now, April 28,1897, let a decree be prepared in accordance with the views herein expressed, and be submitted. The findings herein and conclusions to become absolute in (30) thirty days from tins date unless exceptions be filed, thereto.</p> <p>Exceptions to the findings of fact and conclusions of law of the court were filed on behalf of the defendants.</p> <p>1. The court erred in not finding the following facts in addition to those found: (a) That at the time when Abraham L. Smith assigned for the benefit of his creditors, to wit: on the 23d of March, 1895, the only real estate which he owned was the farm conveyed to him by Daniel Bonebrake and wife, by deed of August 30,1890; (5) that the said farm was sold under an order of the court of common pleas of this county issued by virtue of the provisions of the act of assembly relating to assignments, approved February 17, 1876, P. L. 4, and that the land was sold for the payment of the liens in existence at the time of the conveyance from Bonebrake to Smith (amounting at the time of the assignment to $1,415 with interest from April 1, 1894, and costs), as well as for the payment of the subsequent liens and debts; (c) that the aforesaid liens (referred to in the second and fifth findings of fact) were set out in the petition of the assignee for an order of sale of said real estate, and that the order of sale was asked for in order to pay said liens as well as the subsequent liens; ([d) that as to the Row mortgage above mentioned, the assignee in his return of sale, reported that the mortgagee, Levi C. Row, who was one of the purchasers of said land at the assignee’s sale, was entitled to receive the amount of said mortgage, remaining unpaid, out of the proceeds of said sale, and that he had taken his receipt for the same; and that the sale as so returned by the assignee was confirmed by the court; [ (e) that the amount of the 'two judgments of $500 each, and the Row mortgage of $1,300, given by Daniel Bonebrake while he still owned the said land, and which were liens against it on August 30,1890, when it was conveyed to Smith was deducted from the purchase price of $3,000, and that the same was the proper debt of the said Abraham L. Smith] [1]; (/) that the maintenance of Rebecca Bonebrake, the plaintiff, as contemplated by the parties when the deed of August 30, 1890, was made, can be furnished and supplied to her at a cost of from $75 to $100 per annum.</p> <p>2. [The court erred in its first conclusion of law in holding that by the language in the deed from Bonebrake to Smith, recited in the first finding of fact, a continuing lien wras created upon said land in favor of the grantors.] [4]</p> <p>3. [The court erred in its second conclusion of law in holding that the said supposed lien survived the sale by the assignee and the confirmation thereof, and that the same still remains a lien upon the land in the hands of its present owners.] [5]</p> <p>4. [The court erred in its third conclusion of law in holding that the sale of the land by the assignee under the order of the court, and the confirmation of said sale by the court, did not discharge the land from the lien created by the said reservation in the deed of August 30, 1890.] [6]</p> <p>5. [The court erred in its fourth conclusion of law in holding that the court sitting in equity has jurisdiction of the subject-matter of this controversy.] [7]</p> <p>6. [The court erred in its fifth conclusion of law in holding that Rebecca Bonebrake, the plaintiff, is entitled to maintenance out of said lands in the. hands of the present owners.] [8]</p> <p>7. [The court erred, in holding that A. L. Smith is not primarily liable for the support and maintenance of the plaintiff, under the provisions of the reservation in the deed of August 30, 1890.] [9]</p> <p>8. [The court erred in fixing the amount to be paid by the defendants for the support and maintenance of the plaintiff at $150 per annum.] [10]</p> <p>9. The court erred in entering its decree of April 28, 1897, requiring the defendants to pay to Rebecca Bonebrake the sum of $150 per annum (or any sum whatever) for her maintenance and support.</p> <p>• Whereupon the court delivered the following supplemental findings and order:</p> <p>The order we made in this case was that the findings of fact and law should be conclusive unless exceptions were filed thereto within thirty days after the order made. We deemed this order but fair, since neither side had submitted any requests for findings, and we desired that the whole ease be fully presented. Exceptions have been filed on behalf of the defendants. So far as these relate to the facts of the case they amount simply to a -request for additional findings, and we now supplement our original findings as follows:</p> <p>SUPPLEMENTAL FINDINGS.</p> <p>9. At the time when Abraham L. Smith assigned for the benefit of creditors, to wit: March 23, 1895, the only real estate which he owned was the farm conveyed to him by Daniel Bonebrake and wife, by deed of August 30, 1890.</p> <p>10. The said farm was sold under an order of the court of common pleas of this county, issued under the provisions of the act of assembly relating to assignments, approved February 17,1876; it was sold for the payment of the liens in existence at the time of the conveyance from Bonebrake to Smith (amounting at the time of the assignment to $1,415, with interest from April 1, 1894, and costs), as well as for the payment of subsequent liens and debts.</p> <p>11. The above mentioned liens were set out in the petition of the assignee for an order of sale of said real estate, and the order'was asked for to pay said liens, as well as those subsequently acquired.</p> <p>12. The assignee in his return of sale reported that Levi C. Row, mortgagee, and one of the purchasers at the assignee’s sale, was entitled to receive the amount of said mortgage remaining unpaid, out of the proceeds of said sale, and that he had taken his receipt for the same. The sale so returned was confirmed by the court.</p> <p>18. We decline to find as requested that “the amount of the two judgments of $500 each, and the Row mortgage of $1,300 given by Daniel Bonebrake while he still owned the land, and which were liens against it Aug. 30,1890, when it was conveyed to Smith was deducted from the purchase price of $3,000, and that the same was the proper debt of the said Abraham L. Smith.” There is nothing in the evidence to base any such finding upon.</p> <p>We have fully considered the exceptions filed to the conclusions of law. It is enough to say, without further discussion, that we adhere to the conclusions reached, and now, June 1, 1897, the exceptions are dismissed and decree entered.</p> <p>DECEBE.</p> <p>[And now, June 1,1897, it is ordered, adjudged and decreed that the lands purchased by Benjamin R. Summers, Levi C. Row, Christian Avery Miley and Samuel S. Hess, the above named defendants, from Michael G. Minters, assignee of A. L. Smith, which was embraced in the deed of conveyance from Daniel Bonebrake and wife to the said A. L. Smith, dated August 30,1890, and, set forth in the plaintiff’s bill, is subject to the provision for maintenance contained in said deed of conveyance, and the said maintenance now of Rebecca Bonebrake is of the monthly value of twelve and 50-100 ($12.50) dollars, and that the said defendants owe to the said Rebecca Bonebrake twelve and 50-100 ($12.50) dollars for each and every month since the first day of March, A. D. 1896.</p> <p>And it is further adjudged and decreed that the said Benjamin R. Summers and Levi C. Row pay forthwith to the- said Rebecca Bonebrake the sum of one hundred and fifty-seven and 88-100 ($157.88) dollars; that the said Christian Avery Miley pay forthwith to the said Rebecca Bonebrake the sum of eight and 10-100 ($8.10) dollars and that the said Samuel S. Hess pay forthwith to the said Rebecca Bonebrake the sum of nine and 2-100 ($9.02) dollars, which payments shall be in full of her maintenance to May 1, A. D. 1897.</p> <p>And it is further adjudged, ordered and decreed that the said Benjamin R. Summers and Levi C. Row pay to the said Rebecca Bonebrake on the first day of August, A. D. 1897, the sum of thirty-three and 85-100 ($33.85) dollars; that the said Christian Avery Miley pay to the said Rebecca Bonebrake on the first day of August, A. D. 1897, the sum of one and 73-100 ($1.73) dollars and that the said Samuel S. Hess pay to the said Rebecca Bonebrake on the first day of August, A. D. 1897, the sum of one and 82-100 ($1.82) dollars, and that they each pay to her a like amount at the end of every three months thereafter so long as she, the said Rebecca Bonebrake, shall live.</p> <p>And it is further ordered, adjudged and decreed that the said defendants pay the costs of tins proceeding.] [12]</p> <p>Defendants appealed.</p> <p>Errors assigned were (1) in overruling exception 1 (e) filed on the part of defendants to the finding of fact, reciting said exception and ruling. (2) In the court’s first conclusion of law, reciting same. (3) In holding that “ this charge survived the sale by the assignee and still remains a lien upon the land in the hands of its present owners.” (4) In overruling exception filed by defendants to their first conclusion of law, reciting same. (5) In overruling exception filed by defendants to their second conclusion of law, reciting same. (6) In overruling exception filed by defendants to their third conclusion of law, reciting same. (7) In overruling exception filed by defendants to their fourth conclusion of law, reciting same. (8) In overruling exception filed by defendants to their fifth conclusion of law, reciting same. (9) In overruling seventh exception filed by defendants, reciting same. (10) In overruling eighth exception filed by defendant, reciting same. (11) In the fifth conclusion of law in holding that “ there is nothing in the provision which indicates that the beneficiary, in order to be entitled to the maintenance, was to reside upon the land.” (12) In entering the decree of June 1, 1897, reciting same.</p>

<p>Pleadings — Allegata and probata — Question for jury.</p> <p>The question turned on whether plaintiff had been discharged or had voluntarily quit the. employ of the company defendant, the right of action at a particular date being dependent on this fact. Held, That the issue having been fairly raised by the pleadings, the question was one of fact for the jury, and the jury having passed thereon, the appellate court could not i-eview or disturb the judgment entered on the verdict.</p>

<p>Appeal, No. 49, March T., 1898, by plaintiff, from decree of O. C. York Co., discharging rule for citation.</p> <p>• Rule for citation to show cause why defendant should not pay certain moneys to petitioner. Before Stewart, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below discharged the rule. Plaintiff appealed.</p> <p>Errors assigned were (1) in refusing, on presentation of the petition of Rufus Krug, to grant a citation to Amelia Keller, administratrix d. b. n. of Wm. Stahl, late of Hanover borough, deceased, and trustee to sell certain real estate of said decedent, to pay to Rufus Krug the sum of $465.80 with interest from March 31, 1896, or to appear in court and answer the allegations in said petition and show cause why she should not pay said sum of $465.30 with interest to Rufus Krug out of the balance on her account as trustee to sell said real estate. (2) In discharging the “rule'to show cause why a citation should not issue,” and directing the petitioner to pay the costs. (3) In finding that the petitioner’s rights, as against Amelia Keller, as trustee, were gone by reason of his laches. (4) After having found the judgment of the petitioner to be still due and unpaid, the court erred in refusing to order Amelia Keller to pay $465.30, her share o*f the proceeds of the sale of the said real estate, to Rufus Krug, the petitioner.</p>

<p>Appeal No. 90, April T., 1898, by plaintiff, from judgment of C. P. Beaver Co., March T., 1894, No. 411, on verdict for defendant.</p> <p>Assumpsit. Before Crawford, P. J., of the 18th judicial district, specially presiding.</p> <p>It appears from the record and evidence that suit was brought by the payee on a promissory note against the maker for $400. The defense set up was a parol agreement alleged to be made contemporaneously with the execution of the note by virtue of which the defendant claimed he was not to pay it if he was not successful in running a restaurant.</p> <p>Other facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>JErrors assigned among others were (1) in admitting the following offer on the part of the plaintiff: “ Defendant’s counsel propose to prove that in the spring of 1893 Samuel Anderson, the father-in-law of the defendant, purchased from the plaiutiff the goods in the restaurant of the defendant at East Liverpool, Ohio, for the price or sum of $1,000, paying therefor $600 cash, $600 of which was furnished by the defendant with the knowledge of the plaintiff, and that a note of $400 was given for the balance of the purchase money, secured by a chattel mortgage on the goods in the restaurant; that after Samuel Anderson had continued in the business for three or four months the plaintiff in the case, knowing that McCune also had a second chattel mortgage on the same goods for $500, sent word to the defendant to meet him in East Liverpool, Ohio, at which meeting plaintiff informed defendant that Samuel Anderson was not meeting with success in the business, and that there was a likelihood that both plaintiff and defendant would lose their money. That he thereupon asked defendant to come and take charge of the restaurant, stating that he (plaintiff) would take it from said Samuel Anderson. That it was agreed between plaintiff and defendant that the defendant would take charge of the restaurant and give his promissory note, which is the note in suit, for the $400, with the promise on the part of the plaintiff at the time the agreement was made, that if the defendant should not meet with success in the restaurant business after giving it a trial, that the plaintiff would take the goods off his hands and surrender up the note in suit. This is to be followed by evidence showing that the defendant did take charge of the restaurant, give it a fair trial, and failed to meet with success, and thereupon turned over the whole stock of goods in the restaurant-pursuant to the parol agreement that was made at the time the note was signed, and thereupon the note in suit became satisfied and extinguished.” (4) In refusing to charge the jury as requested in the third point presented by plaintiff, as follows: “ The defendant, having attempted to set up a contemporaneous parol agreement to vary the terms of the note in suit, but there being no sufficient evidence to establish the same, under all the evidence the verdict must be for the plaintiff.” (6) In declining to charge the jury as requested in the fourth point presented by plaintiff, as follows: “ Under all the evidence in this case the verdict must be for the plaintiff.”</p>

<p>’ Proximate cause — Peculiar facts.</p> <p>Proximate cause is always difficult of ascertainment and each case is governed by its own peculiar facts. The injury must be the natural and probable consequences of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer, as likely to flow from his act.</p> <p>The mere fact that a horse has passed safely over and a very few feet beyond a dangerous and negligently gnarded bridge, then without fault of the driver backs on and off it, does not of itself warrant the court in declaring as matter of law that the negligence of the defendant was the remote cause of the injury, as the negligence may be the proximate cause.</p> <p>Negligence — Bridges—Proximate cause — Terrified horse.</p> <p>Township authorities are bound to know that the fright of a horse is an ordinary circumstance, and to be expected, and that his conduct when in fright may be unreasoning, insane, unlooked for, and they cannot excuse their negligence in failing properly7 to guard a bridge by asserting that they could not foresee the particular freak of conduct in a terrified horse. Yoders v. Amwell Township, 172 Pa. 447, followed.</p>

<p>Appeal, No. 203, April T., 1898, by defendants, from judgment of C. P. Mercer'Co., April T., 1898, No. 35, on case stated.</p> <p>Case stated. Before Miller, P. J.</p> <p>The case stated is'as follows:</p> <p>And now, February 11, 1898, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict:</p> <p>James W. Morgan, the plaintiff above named, was on the 11th day of February, A. D. 1898," granted a license to sell at retail, vinous, spirituous, malt or brewed liquors, at the Exchange Hotel, in the borough of Sharon, Pa. Said liquor license was granted by the court of quarter sessions of Mercer county, Pa., and for one year, from the 12th day of February, 1898, to the 12th day of February, 1899,. under the Act of May 13, 1887, P. L. 108. That said plaintiff tendered to Ellis M. Patterson, Esq., treasurer of the county of Mercer, Pa., the sum of $200.75, to pay for said license, to wit: $150 under the act of May 13,1887, P. L. 108, and $50.00 under the Act of July 30,1837, P. L. 464, and seventy-five cents being the treasurer’s fees. That the said Ellis M. Patterson, treasurer as aforesaid, refused to receive said sum and issue said license receipt, the said Patterson demanding also in addition to said sum tendered him, the sum of $200 under the Act of May 24, 1871, P. L. 1108, thus making the license fee $475.75. That the plaintiff and defendants then arranged that the plaintiff should pay to the said EUis M. Patterson, Esq., treasurer, the said sum of $475.75 for his license, and the said Patterson should hold the sum of $200, and a “ case stated ” be filed, and if the court be of the opinion that said sum. paid for the license was too much, or any part thereof was wrongfully paid, then judgment to be entered for the plaintiff for such amount as was overpaid, but if not, then judgment be entered for the defendant, the costs to follow the judgment, and either party reserving the right to sue out an appeal or writ of certiorari. That with this understanding the plaintiff did pay to said Ellis M. Patterson, county treasurer, the sum of $475.75, as per receipt filed at No. 9 of January sessions, 1898, and of which the following is an exact copy:</p> <p>“ Mercer, Pa., Feb’y 11,1898.</p> <p>“ Received of James W. Morgan, the sum of four hundred dollars and seventy-five cents, being for retail liquor license for Exchange Hotel in Sharon, Pa., from Feb’y 12, 1898, to Feb’y 12, 1899, as follows: One hundred and fifty dollars under the Act of May 13, 1887, P. L. 108, fifty dollars under the Act of July 80, 1897, P. L. 464, and two hundred dollars under the Act of May 24, 1871, P. L. 1108. The said last mentioned sum being paid under protest, and an agreement with the county of Mercer and the directors of the poor of Mercer county, Pa., through their several attorneys that a case stated shall be prepared, and the question decided by the court, whether the said Morgan is liable to pay said amount or not. The said Morgan having tendered the sum of two hundred dollars and seventy-five cents to Ellis M. Patterson, Esq., County Treasurer, for his license, and the same being refused by him, the said Patterson, who demanded and received the said sum oE four hundred dollars and seventy-five cents under protest and said agreement, that if the court shall decide that a less sum should have been paid, that the difference shall be refunded by him to the said Morgan.</p> <p>“E. M. Patterson, Treasurer.</p> <p>“ It is also agreed that the final judgment'in this case shall determine the cases represented by the plaintiff’s attorney, William C. Haus, Esq., as follows, to wit: Patrick McManus, Thomas F. Farrelly, George Smith, George Dresch, and P. G. Gibbons, whose payment to the Treasurer aforesaid, has been or will be made under the said agreement, and understanding herein before stated.</p> <p>“ James W. Morgan,</p> <p>“ By his Att’y, William C. Haus.</p> <p>“ The Directors oe the Poor, &c., for the County of Mercer, Pa.,</p> <p>“ By James D. Emery, Att’y.</p> <p>“ The County of Mercer,</p> <p>“By H. H. Zeigler, Att’y.</p> <p>“ Ellis M. Patterson, Co. Treasurer,</p> <p>“ By his Att’y, A. H. McElrath.”</p> <p>The court entered judgment in favor of plaintiff on the case stated for $200. Defendants appealed.</p> <p>Error assigned among others was in directing judgment to be entered in favor of plaintiff and against defendants.</p>

Appeal, No. 170, April T., 1898, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1896, No. 468, on verdict for plaintiff. Assumpsit. Before Baekee, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $40.41. Defendant appealed.

Appeal, No. 144, April T., 1898, by-Mary Dewar and Henry Landgraff, from decree of C. P., No. 2, Allegheny Co., JulyT., 1897, No. 658, appointing road viewers. Exceptions to report of viewers. Before C. P. No. 1, Allegheny County.

Appeal, No. 169, April T., 1898, by Mary Ann Jones, from order and decree of O. C. Lawrence Co., June T., 1897, , granting petition of executors for specific performance of contract. Petition of executors for specific performance of a contract. Before Wallace, P. J. Decedent 'died testate leaving a widow and a number of children. The widow subsequently intermarried and is the appellant in this case.

Appeal, No. 12, April T., 1898, by defendant, from order of C. P. Beaver Co., March T., 1897, No. 46, dismissing appeal from prothonotary and directing taxation of costs. Appeal from taxation of costs. Before Wilsoh, J. . The plaintiff, who was register of' wills of Beaver county, filed his bill of costs with the prothonotary in the matter of a rehearing on petition filed by defendant in this case praying for the revocation of the probate of a will.

<p>Appeal, No. 31, April T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1895, No. 836, on verdict for plaintiff.</p> <p>Assumpsit. Before Collier., J.</p> <p>It appears from the evidence that this was an action in assumpsit brought by the plaintiff against the defendant, .the father of her husband, to recover the sum of $5.00 per week which she alleged the defendant promised to pay her for the support of herself and her child so long as she should refrain from further proceedings against her husband on account of his separation from and neglect to maintain her and her child, in consideration of her proceeding no further with a prosecution for desertion which she had entered against her husband. The claim of the plaintiff was for a period from December 28, 1893, until some time in April or May, 1895, she admitting that she received the sum' of $5.00 per week in the interim between the 17th of April, 1893, and December 28, 1893.</p> <p>The defendant claimed that there was no specified time during which the sum of $5.00 a week was to be paid; and that, inasmuch as there was no consideration either of forbearance or of value received for his promise, he could at any time cease payments without liability to the plaintiff. He also claimed that as the defendant had herself committed such a breach of the contract by bringing a suit for divorce against her husband on the ground of desertion prior to any alleged default on his part he was absolved from making her any further allowance.</p> <p>Verdict and judgment for plaintiff for $364. Defendant appealed.</p> <p>Brror assigned was refusal of binding instructions for defendant.</p>

<p>Trusts and trustees — Conduct of business in trust for wife and children.</p> <p>That the conduct of a business may be intrusted to a man in trust for his wife and children is well settled and granting that such trustee, also plaintiff’s debtor, had exclusive possession and dominion over the property levied on as his, this fact will not defeat the operation of the trust in the absence of fraud, or of claim of personal ownership or of denial of title of 'cestui que trust.</p> <p>Married woman — Husband's creditor — Trust estate of wife — Burden of proof.</p> <p>The duty of a married woman claiming against her husband’s creditors, to show that her claim is for a consideration growing out of her separate estate, is not applicable where she claims under a trust; in such case she can only be held to proof of the trust and good faith in its creation and execution.</p> <p>Practice, Superior Court — -Buies of court — Defective assignments.</p> <p>Specifications of error are defective as not in accordance with Rules XV. and XVII., where the testimony nowhere appears in the assignments, nor is the name of the witness who testified on the subject or the page of the paper-book given, and where these rules are not complied with, the specifications will not be considered.</p> <p>Evidence — Accommodation paper — Fraud.</p> <p>Where fraud is the gravamen of the action, the question whether a note sued on was accommodation paper or given in the business of the trust for which the maker was trustee, becomes pertinent to the issue.</p> <p>Promissory note — Representative character of maker.</p> <p>Tlie rule is that the name of the principal intended to be charged must appear on the paper. If it be intended to charge a maker or indorser in a representative capacity, this must be indicated with reasonable certainty, so that subsequent purchasers and indorsers may be informed of I lie fact. This does not preclude proof that the note was given by a trustee in the business of the agency or of the trust when the action remains between the parties to the contract.</p>

<p>Appeal, No. 164, April T., 1898, by defendant, from judgment of Q. S. Allegheny Co., June Sess., 1897, No. 45, affirming judgment of justice of the peace.</p> <p>Appeal from judgment of justice of the peace. Before Frazer, J.</p> <p>It appears from the record and evidence that the defendant was arrested on August 13, 1897, on information of a police officer of the borough of Sewickley, under an ordinance of said borough, on the charge that defendant “ did loaf, idly stand, and obstruct a public street and sidewalk of said borough; and havingTieen requested and ordered by affiant, a borough policeman, to move on, defendant refused so to do.” Upon hearing before a justice of the peace on August 17, the defendant was adjudged guilty, and that he forfeit and pay the sum of $3.00 and costs of suit. Defendant appealed.</p> <p>Error assigned was in dismissing appeal and affirming the judgment.</p>

<p>Appeal, No. 24, Jan. T., 1898, by plaintiff, from judgment of C. P. Luzerne Co., Dee. T., 1888, No. 302, on verdict for defendant.</p> <p>Ejectment. Before Woodward, P. J.</p> <p>Tbe facts sufficiently appear in tbe opinion of tbe court.</p> <p>The court below certified that the interest in the land in controversy is less than $1,000.</p> <p>The court below charged the jury as follows:</p> <p>[This is an action of ejectment brought by John Davis against Patrick Martin to recover possession of a piece of land situated in the Fourteenth ward, city of Wilkes-Barre. On the 12th of May, 1846, Joseph Davis was owner of this property, and on that date he made to John Davis, the father, I believe, of the present plaintiff, a deed for tbe land in question in consideration of $1.00 and other good and valuable considerations. This deed, however; was made subject to certain exceptions, conditions and reservations. It was not an absolute conveyance on its face. It contained a provision that the grantee, John Davis, should at all times, in sickness and in health, support Joseph Davis during his lifetime, and if he neglected to fulfil and perform the conditions and stipulations of the deed, that then the estate conveyed by it should cease, and revest in the grantor and his heirs. When this deed was offered in evidence, objection was made to it on the ground that it was a conditional instrument or conveyance, and could not be offered as showing title in the plaintiff, until it was also proven, as a preliminary, that these conditions, stipulations and covenants had been performed. . We sustained that objection. The plaintiff has undertaken to establish the performance of these conditions, but in our judgment has failed to do so. As the title of the plaintiff in this action depends upon the validity of that conveyance, we say to you therefore, that the plaintiff has not shown such title to the land in question as entitles him to a verdict at your hands. We instruct you, therefore, that your verdict should be for the defendant.] [3]</p> <p>Before the rendition of the verdict ill the foregoing entitled cause, plaintiff’s counsel excepted to the charge of the court therein, and requested that the charge be reduced to writing and filed of record in the cause.</p> <p>Yerdict for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) rejection of the following offer of deed book, No. 44, page 56, deed Joseph Davis to John Davis, dated May 12,1846, recorded March 1, 1847, the description being as follows : “ All my lands, tenements and hereditaments situated, lying and being in the township of Hanover and Wilkes-Barre, and all my personal property of every description, embracing debts and demands due and owing to me by bond, judgment, mortgages, notes, book account or otherwise, and all actions and rights of action and all personal property now in possession, to the said John Davis, to take immediate pos-' session of the same and to use, manage, occupy and enjoy to his own benefit and behoof.” Defendant objected to the offer' because the deed is not a recordable instrument, it not having been properly or sufficiently probated, there being no acknowl-edgment of the deed by the grantor; second, because the deed is not an evidence of title of the grantee but simply an executory contract. The court overruled the first objection but sustained the second: “ From the best consideration which I am able to give this question at the present time, I think that the case is ruled by the decision in Driesbach v. Serfass, 126 Pa. 82, referred to in the argument;’ that the conveyance now offered in evidence, not being an absolute one, but upon its face, a conditional conveyance, plaintiff is bound to show the performance of covenants contained in the deed, before asserting title under it. The objection, therefore, to this deed is sustained.” (2) In rejecting the following offer of plaintiff: Plaintiff offers in evidence, deed Joseph Davis to John Davis, dated the 12th day of May, 1846, recorded March 1,1847, deed book, No. 44, p. 56, etc., to be followed by proof of the performance by the grantee, John Davis, of the conditions forming or constituting the consideration in the deed. Objected that the deed is not to be received until the evidence of the performance of the conditions is submitted. The Cou-rt: We will pass upon that after we have heard the evidence, evidence having been submitted tending to show performance of conditions. (3) To charge of court, reciting same. •</p>

<p>Liquor law — Discretion of court — License refused a foreign corporation.</p> <p>A foreign corporation, incorporated under the laws of another stale, for the purpose of the manufacture and sale of beer of its own make, registered as a foreign corporation under the laws of Pennsylvania is not a citizen of Pennsylvania within the meaning of the constitution. It does not possess the qualification which entitles it to a license under the laws of Pennsylvania and there is no abuse of judicial discretion disclosed in the action of the license court in refusing an application for a license “ for the reason that the applicant is a foreign corporation.”</p>

<p>Appeal, No. 6, April T., 1899, by Reymann Brewing Co., from decree of Q. S. Allegheny Co., March Sess., 1898, No. 180, refusing application for a wholesale. liquor license.</p>

<p>Appeal, No. 17, March T., 1897, by plaintiff, from judgment of C. P. Fulton Co., Oct. T., 1895, No. 14, in favor of defendant non obstante veredicto.</p> <p>Trespass. Before Swope, P. J.</p> <p>It appears from the record that this was an action'of trespass brought to recover treble the value of trees cut down as alleged on the land of the plaintiff by defendant and converted to his own use under the provisions of the act of March 29, 1824.</p> <p>It appeared on the trial that the plaintiff claimed title to the land in dispute by virtue of an unbroken chain of title from John Eackman and Jacob Faile, to whom the commonwealth granted a warrant, on the 8th day of January, 1794, “ for 100 acres of land, adjoining lands this day granted to them in Dublin township, in the county of Bedford.”</p> <p>That a survey was made in pursuance of this warrant, by George Woods, Jr., deputy surveyor of the commonwealth, on the 26th day of June, 1794, which was returned to the land office on the 4th day of April, 1795.</p> <p>That the defendant claimed title to this same land, by virtue of an unbroken chain of title from Agnes Wilds, to whom the commonwealth granted a warrant, on the 15th day of February, 1794, for “400 acres of land in Dublin township, Bed-ford county (of which Fulton county was then a part), adjoining-lands granted to George Wilds.”</p> <p>That a survey was made in pursuance of this warrant by George Woods, Jr., deputy surveyor aforesaid, on the 12th day of March, 1794, and was returned into the land office July 5, 1798.</p> <p>When it was found that the plaintiff claimed title under the oldest warrant, bearing date January 8, 1794, and the defendant under the oldest survey, bearing date March 12, 1794, it was agreed by all parties in interest, that the jury should' find a verdict for the plaintiff, in single damages, for the value of timber cut and converted, subject to the opinion of the court on the question of law reserved, as to whether the warrant under which the plaintiff claims title, bearing date January 8, 1794, for 100 acres of land, was a descriptive warrant or not. If found to be descriptive, judgment to be entered on the verdict in favor of the plaintiff for treble the amount thereof, and if not descriptive, judgment to be entered for the defendant non obstante veredicto.</p> <p>The jury found for-the plaintiff in the sum of $50.90, subject to the opinion of the court on the question of law reserved.</p> <p>The court directed judgment to be entered in favor of the defendant non obstante veredicto. Plaintiff appealed.</p> <p>Errors assigned were (1) in determining the reserved question against the plaintiff and in favor of the defendant. (2) In holding that the warrant in question was not a descriptive warrant.</p>

Appeal, No. 24, April T., 1898, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1895, No. 434, on verdict for plaintiff. Trespass for libel. Before Keeked y, P. J. It appears from the record that the libel complained of was as follows: “Who is Mrs. Moore? She assaulted a fruit man, who called to collect a bill. And now, when a warrant is out for her, has changed her personality.

Appeal, No. 168, April T., 1898, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1896, No. 119, discharging rule to show cause why money in the hands of the sheriff should not be paid to the petitioner, W. A. Dunshee. Petition for rule to show cause why money in the hands of the sheriff should not be paid the petitioner.

Appeal, No. 42, April T., 1898, by defendant from judgment of C. P., No. 3, Allegheny Co., Feb. T., 1894, No. 514, on verdict for plaintiff. Ejectment. Before Kesthbdy, P. J. The following- facts appear in the charge of the court below: This action is brought for the recovery of possession of a piece of land situate in Plum township. The parties, plaintiff and defendant, are the respective owners of farms adjoining each other in this township.

Appeal, No. 195, April T., 1898, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1897, No. 24, in favor of defendant on answers to interroga-' tories. Beaver, J., dissents. Rule for judgment on answers to interrogatories. Before Shaker, J. ' It appears from the record that Peter Hartman died testate on February 8, 1876, naming as executors his wife, Maria Hartman, and his friend, Anthony Kunzler.

<p>Practice, O. P. — Validity of judgment not to be impeached on sci. fa. to revive.</p> <p>No exception can be taken to the validity of a judgment sought to bé revived either for the purpose of execution or of lien, if it stand in substance or in form on the record as a judgment of the court.</p> <p>A rule was taken to strike off a judgment for irregularity which was discharged. No appeal was taken. On a sci. fa. to revive defendant set up same matter in defense. Held, that defendant submitted no legal defense.</p>

Appeal, No. 148, April T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1896, No. 232, on verdict for plaintiff. Assumpsit. Before Collier, J. It appears from the evidence that Leonard Stidle became a member of defendant corporation on May 12, 1884, and died intestate on June 12, 1895. His widow, Bertha Stidle, was appointed administratrix.

Appeal, No. 171, April T., 1898, by defendant, from judgment of C. P. Warren Co., June T., 1897, No. 120, discharging rule to show cause why judgment should not be opened. Rule to show cause why judgment should not be opened.

Appeal, No. 97, April T., 1898, by the, Methodist Episcopal Church, from decree of O. C. Allegheny Co., May T., 1896, No. 46, in distribution in Adam Rouser’s Estate. Audit of a partial account of executors of Adam Rouser’s estate. Before O. C. Allegheny Co. The facts sufficiently appear hi the opinion of the court.

Appeal, No. 115, April T., 1898, by plaintiffs, from judgment of C. P. Armstrong Co., March T., 1897, No. 211, on verdict for defendants. Appeal from justice of the peace. Before Rayburn, P. J. It appears from the' record and evidence that suit was brought by the plaintiffs to recover the price of an Osborne Columbia binder.

Appeal, No. 121, April T., 1898, by defendant, from judgment of C. P. Greene Co., June T., 1897, No. 40, discharging rule to show cause why the attachment should not be dissolved. Attachment in assumpsit under the act of 1869.

<p>Appeals, Nos. 122-129, April T., 1898, by defendant, from judgment of C. P. Greene Co., June T., 1897, Nos. 41, 42, 43, 107, 127 and Oct. T., 1897, Nos. 12, 13, 23, discharging rule to show cause why the attachment should not be dissolved.</p> <p>The cases of Charles S. Potter, William R. Parshall, Richard G. Potter and Robert B. Harris, respectively, are identical in every way except as to the amounts claimed.</p> <p>The case of John McNeely is substantially the same as the case of Charles S. Potter, except as to the date of bringing action, the amount and character of the claim and that the affidavit for attachment also averred that the defendant was about to assign and dispose of his property with intent to defraud his creditors.</p> <p>The cases of A. J. Dye, J. A. Glass, Charles Nelson and J. F. Boor are similar to that of John McNeely, except as to the date of bringing the suit, the amount and character of the claim, and that the suit of Glass is founded on a protested check given by Graham.</p>

Appeal, No. 6, April T., 1898, by defendants, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1893, No. 206, making perpetual a preliminary injunction restraining collection of taxes. Bill to enjoin collection of taxes. Before C. P. No. 1, Allegheny county. The facts sufficiently appear in the opinion of the court.

<p>Appeal, No. 175, April T., 1897, by defendant, from judgment of C. P. No. 1, Allegheny County, Sept. T., 1894, No. 510, on verdict for plaintiff.</p> <p>. Trespass by father to recover for expenditures on account of injuries to his nine year old boy and for loss of services during minority. Before Collier, J.</p> <p>It appears from the record that the' action in this case was tried jointly with one brought for the boy for personal injuries. Judgment was entered on the verdict for plaintiff for $7,250, which was affirmed by the Supreme Court. (See report of case, 183 Pa. 255, where the facts as they appear in the charge of the court are set out at large.)</p> <p>In the present case verdict and judgment was entered for the plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned were (1) refusing to affirm defendant’s first point, which point is as follows: “ 1. Under the evidence in 'this case, the plaintiff wms guilty of negligence which contributed to the injuries sustained by his minor son, said plaintiff cannot, therefore, recover in this action, and the verdict must T>e for the defendant.” (2) Refusal of binding instructions for defendant.</p>

<p>Appeal, No. 74, April T., 1898, by defendant, from judgment of C. P. Armstrong Co., June T., 1897, No. 2, on verdict for plaintiff.</p> <p>Assumpsit. Before Rayburn, P. J.</p> <p>It appears from tbe evidence that R. L. Wible and John A. Stoup were engaged as partners in putting down a well, and a contract was entered into by which the plaintiff undertook to furnish coal for the partners, and that in hauling and furnishing said fuel he dealt with them as partners. Not being paid for his work he brought suit against R. L. Wible alone. On the trial the following point was submitted, which was refused by the court:</p> <p>[The evidence showing that Wible and Stoup were partners in putting down the well on which the hauling and fuel sued for was used, that the plaintiff knew they were partners, and in both the hauling and furnishing of fuel dealt with them as partners, he cannot recover in the present action, and the verdict must be for the defendant.] [1]</p> <p>Verdict and judgment for plaintiff for $198.12. Defendant appealed.</p> <p>Errors assigned among others were (1) refusal of plaintiff’s first point, reciting same. (5) Refusal of binding instructions. (6) To a portion of the general charge, reciting same, as set out in the opinion of the Superior Court.</p>

<p>Practice, O. & T. — Motion to quash — Presumption—Appeal.</p> <p>Even if upon a motion to quash an indictment the court could receive proof of the facts alleged therein — a point not decided — it must be presumed, in the absence of a bill of exceptions, that it heard the evidence and decided correctly.</p>

<p>Appeal, No. 204, April T., 1898, by Godfrey Miller, from decree of Q. S. Beaver Co., March Sess., 1898, refusing application for license to sell liquors at wholesale.</p> <p>Application for license to sell liquors at wholesale.</p> <p>■It appears from the record that a petition was filed on January 27, 1898, and on March 28,1898, the license was refused. Godfrey Miller appealed.</p> <p>Errors assigned were (1) in not hearing the witnesses for the applicant. (2) In not granting the license.</p>

<p>Appeal, No. 80, April T., 1898, by plaintiffs, from order of C. P. Fayette Co., June T., 1898, No. 58, E. D. overruling exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report. Before Mestrezat, P. J.</p> <p>It appears from the record that an auditor was appointed to make distribution of the proceeds of a sale of personal property made by the sheriff, who made the following return:</p> <p>“ That the within writ, No. 57, June term, 1896, was delivered to me on the 15th day of April, A. D. 1896, at thirty-five minutes past 10 o’clock p. m., and that on the morning of the following day, to wit, April 16, 1896, before I had made a levy, and before any other writ of execution against John S. Gabler had come into my hands, R. P. Kennedy, Esq., attorney for EL B. Cock, plaintiff, .directed me not to execute the writ until further orders from him, which directions I complied with. On the 16th day of April, 1896, at forty minutes past 9 o’clock A. M., a writ of execution of Schwartz, Mansbach & Company against John S. Gabler, was delivered to me and E. D. Fulton, Esq., attorney for said Schwartz, Mansbach & Company, ordered me to proceed at once and make the money as directed in said writ of Schwartz, Mansbach & Company. Before going to make a levy on the property of said defendant, under the writ of Schwartz, Mansbach & Company, R. P. Kennedy, Esq., in the forenoon of the 16th day of April, 1896, came into my office and learning that I had in my possession a writ of execution of Schwartz, Mansbach & Company against John S. Gabler, he then ordered "me to proceed with the execution of H. B. Cock against said John S. Gabler. In pursuance of the said writ of execution of Schwartz, Mansbach & Company and the directions of R. P. Kennedy, Esq., attorney for PI. B. Cock, the other execution creditor, I did, on the evening of the 16th day of April, A. D. 1896, at about 6 o’clock p. M. make a levy, at the same time, under both writs, to wit: the one at No. 58, June term, 1896, of Schwartz, Mansbach & Company, and the one of PI. B. Cock at No. 57, June term, 1896, and hereto attached, on all the right, title and interest of the defendant John S. Gabler,- of and in the partnership property of Hoge & Gabler in the Monongahela Hotel of Brownsville, Pa., and also all the household goods and furniture of the said John S. Gabler at his residence in Brownsville, Pa. And after two adjournments of the sale, I did, on May 18, 1896, sell said property to PI. B. Cock, for the sum of $2,500, he being the highest bidder, and of said sum, I applied $71.55 to the costs and $1,500 to the writ hereto attached, and there remains yet in my hands for distribution the sum of $928.45.”</p> <p>Evidence was given before the airditor tending to show an agreement entered into between Schwartz, Mansbach & Co. and PI. B. Cock, the two execution creditors, whereby in consideration of Cock advancing money to set up the defendant in business, who was a common debtor to both of them, that Schwartz, Mansback & Co. would make no move to collect their debt until Cock had first been paid in full the amount of money advanced in so starting Gabler in the hotel business.</p> <p>The auditor awarded the fund of $928 on account of the writ of H. B. Cock, less $150 due landlord for rent. Plaintiff appealed.</p> <p>Error assigned among others was in not finding that the appellants were entitled to the amount of their execution out of the fund now in the hands of the sheriff for distribution.</p>

<p>Appeal, No. 172, April T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1897, No. 954, for want of a sufficient affidavit of defense.</p> <p>Assumpsit to recover license fees. Before Frazier, J.</p> <p>The plaintiff borough passed an ordinance, which is suffi ciently set out in the opinion of the court, imposing an annual license fee on all cars of the defendant operating within the borough, and provided a method for assessing, this license fee in advance. Defendant company refused.to pay the license fee imposed and suit was brought to collect the amount of the license fee alleged to be due. The affidavit of defense set up at length nonliability because the amount of the license fee was excessive, and because the method provided in the. ordinance for assessing the license fee was unjust to the borough as well as to the traction company and was indefinite, vague and impossible.'</p> <p>Judgment entered against defendant in default of a sufficient affidavit of defense for $156.70. Defendant appealed.</p> <p>Error assigned was making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Criminal law — Practice, Q. S. — Pleas of autrefois acquit.</p> <p>The defendant being on trial for selling liquor without a license, the court committed no error in refusing a motion for continuance pending rendition of verdict in another ease, in which same defendant was indicted “ for selling liquor on Sunday,” in which case the jury was out, and the court committed no error in rejecting evidence of a verdict of not guilty in the former case, subsequently offered at the end of the oral testimony.</p> <p>The defendant did not suffer in any way as the same result was had as if the alleged plea had been disposed of in a distinct issue before a special jury. Evidence of Sunday sales having been excluded on the second trial, the trial judge should have directed the jury, as matter of law, that the offenses were not the same.</p> <p>Statutes — Constitutional law — Prohibition of two subjects.</p> <p>The Act of April 3,1867, P. L. 740, extending the Act of April 11, 1866, P. L. 658, to Wyoming county is constitutional as to its first section, although the second section is unconstitutional under the ruling of Com. v. Frantz, 135 Pa. 389.</p> <p>Criminal law — Pleading—Pleas of autrefois acquit. „</p> <p>The plea of autrefois acquit or convict is of mixed nature consisting of matters of record and matters of fact; of record, as to the indictment and verdict; of fact, in that the defendant is the same person and the offense is the same, and is no bar to the pending action.</p> <p>Practice, Q. S. — Additions—Bills of indictment on transcript of justice.</p> <p>The practice of admitting additional bills of indictment has been of such long standing and is so generally adopted, that unless the defendant is misled or surprised to his injury the trial judge has ample authority to permit the district attorney to send up bills without a preliminary hearing and binding over.</p> <p>Two indictments were founded on a single transcript charging the defendant with having sold liquor on a given Sunday and on other Sundays. Held, that an indictment in which the defendant was charged with selling without a license was warranted, although there had been no previous information or binding over of the defendant as to the particular offense.</p>

<p>Appeal, No. 107, April T., 1898, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1894, No. 1698, on verdict for plaintiff.</p> <p>Assumpsit on oil and gas lease. Before McConnell, J.</p> <p>The plaintiff, claimed $150 as due under the terms of the lease.</p> <p>The essential facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $100. Plaintiff appealed.</p> <p>.Errors assigned were (1) in sustaining the offer of defendant to prove by Mr. Duffield, an expert, that in his opinion had a third well been drilled there did not exist gas in sufficient quantities to justify marketing the same in September, 1891, and in admitting the testimony of Mr. Duffield thereunder. (2) In admitting in evidence the book showing the record of the rock and minute pressures of wells on the Iddings farm in 1891. (3) In the general charge to the jury in submitting as a question of fact whether the drilling of a third well would have reduced the pressure of all the wells below the line pressure of the Equitable Gas line and in quoting from the deeisions of the Supreme Court in relation thereto, there being no evidence of what that line pressure was, and the decisions of the Supreme Court not being in point and tending to mislead the jury, the charge and quotation being as follows: “Now, we have cases in which the nature of the evidence that is set up here has been discussed by our Supreme Court. It is contended by the defendant’s witnesses that the pressure, the rock pressure of the wells in this immediate neighborhood had fallen so rapidly that gas did not, within the meaning of the contract, exist in sufficient quantities to justify marketing the same if this third well were put down. Evidence has been introduced showing, it is claimed, the rapid fall of this rock pressure. It has been said in a case that was considered by the Supreme Court on this branch of the case: ‘ Gas cannot be gathered, stored or transported in this manner,’ that is, in the manner of gathering, storing and transporting oil. ‘ If found in sufficient quantity, it is turned from the well into the line, and the pressure at the mouth of the well is the motive power by which it is driven through the line to the consumer, miles away. If the pressure, at a given well, is much below that in the line with which it is connected, the gas from that well cannot enter the line, but will be driven back by the superior force it encounters at the point, of connection. For this reason, a well producing gas in sufficient quantity to be profitably utilized if there was a market for it near at hand, may be entirely valueless if its product must find a market at a distance too great to justify its transportation by a line of its own. . . . When the pressure in any one falls below the standard necessary for purposes of transportation, that well must be turned off. Its product cannot be transported separately and unless it can be used near by, it is valueless. These well-known facts, peculiar to the production of gas, must be taken into account in the construction of leases for gas purposes.’ And then again it is said in the same opinion: ‘The lessee may have a good well, from which he can utilize the gas with profit. He may put down another on the same farm, and thereby so reduce the pressure in the first as wholly to destroy its value, without getting a sufficient pressure at the second to enable him to utilize that. The gas, if coming from one well, would be of great value. Divided in such manner that the volume and pressure at each is below the the necessary standard, the whole is lost.’ I read these extracts because it very completely and accurately states the side of the case that is contended for by the defendant in this case, and to support- which contention they have introduced evidence. It is contended by the defendants in this case that had this third well been put down under the circumstances, the failing pressure of the field in general, that it would have had the effect to have reduced the product of not only the third well, but in all probability of the other two wells on this tract below the point where gas would exist in such quantities as to justify marketing the same; that a reduction of this pressure would have had a tendency to make what came from that well, or make that well rather, not a contributor to the gas in the main line, but rather a leak from it.” (4) In not striking off the verdict and granting a new trial to the plaintiff. (5) There was no evidence to warrant a verdict of $100, as the plaintiff was entitled to the payment of $150 in ten days from the completion of the well, if the drilling of a third well would not have reduced the pressure so that the defendant would not have been justified in marketing the gas, the plaintiff was entitled to a verdict for $150, or more, or if the drilling of a third well would so have reduced the pressure, he was entitled to nothing.</p>

<p>Appeal, No. 192, April T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1898, No. 369, in favor of plaintiff on case stated.</p> <p>Case stated. Before White, P. J.</p> <p>The following facts appear from the case stated:</p> <p>Daniel J. Lydon died March 23,1896, and Bridget, his mother, was duly appointed administratrix of his éstate; that on March 1, 1893, the said Daniel J. Lydon, deceased, applied for a position on the police force of the city of Pittsburg as wagon man, and in pursuance of the requirements of the department of public safety of the said' city, underwent a physical examination by the police surgeon, and failed to pass the examination entitling him to the benefits of membership in the defendant’s association.</p> <p>Thereafter, on the 7th day of July, 1895, the said Daniel J. Lydon was appointed a patrolman on the police force of the city of Pittsburg, by J. O. Brown, director of the department of public safety, but was detailed to perform and did perform the duty and work of janitor of No. 8 police station, of Pitts-burg.</p> <p>That at the date of his said appointment, the said Daniel J. Lydon did execute and enter into a certain written agreement with the defendant association, as required by the by-laws of the said association, whereby it was provided that the said Daniel J. Lydon, in consideration of his said appointment as a patrolman, should contribute and pay to the defendant association dues in like manner as other applicants who had passed the proper medical examination for admission to the said association, and did further thereby waive, relinquish and release all claims and demands whatsoever upon the defendant association, and all benefits or dues belonging to persons passing a proper medical examination, and becoming members of the said association. A true copy of the said agreementis hereto attached and marked “ exhibit C.”</p> <p>That from the date of his said appointment to the date of his death, the said Daniel J. Lydon performed the duty pertaining to the position of patrolman on the police force of the said city of ’ Pittsburg, at' such times as directed by the director of the department of public safety, or other proper person, and at the date of Iris death he was a member, in good standing, of the police force of the said city of Pittsburg, and in accordance with the by-laws of the defendant association and the agreement signed by the said Daniel J. Lydon, there was deducted from the salary of the said Daniel J. Lydon, by the controller of the city of Pittsburg, and paid to the defendant associa fcion the dues or assessments called for by the said association.</p> <p>If the court be of opinion that upon the facts set forth, that the said Bridget Lydon, administratrix of the estate of Daniel J. Lydon, deceased, is entitled to recover from the defendant, then judgment shall be entered in favor of said administratrix and against the defendant in the sum of five hundred (1500) dollars, otherwise judgment to be entered for defendant; the costs to follow the judgment, and either party reserves the right to sue out a writ of error or appeal.</p> <p>The agreement referred to in the case stated as “ exhibit C ” is as follows:</p> <p>“Agreement accepting and ratifying the by-laws of the police pension fund association of the city of Pittsburg, with the undersigned employees of the bureau of police of the city of Pittsburg.</p> <p>“ In consideration of the mutual advantages, benefits and profits arising to us by virtue of the police pension fund association of the city of Pittsburg, and the by-laws thereof, and the amendments to said by-laws, we hereby agree, indorse and ratify the said by-laws and acknowledge the same to be in the nature of an article of agreement binding us, as members of the association, to all the conditions, requirements and provisions of said association, as set forth in said by-laws ; provided, that the parties signing hereto, indorsing, agreeing to and ratifying these by-laws, each for himself, covenants and agrees that any fines or assessments levied, assessed or imposed upon him, in the nature of penalties or punishment for violating any of the rules and regulations governing the bureau of police, shall be retained out of his next month’s pay; provided, that the said fines or penalties shall not exceed the sum of 125.00 in any one month, and provided, further, that such assessments, penalties or fines shall be in lieu of per diem suspensions for violations aforesaid; that is to say, the party so assessed or fined for violations aforesaid, shall, in lieu of losing time, be upon the regular police force, performing duty in his regular capacity and the number of days that he would otherwise be compelled to lose, shall be now deemed and understood to be in the nature of a fine as aforesaid; that is to say, that instead of suspensions for violations aforesaid, fines may be imposed by the proper officers of the bureau of police ; and provided, further, that the same shall be retained by the city controller and paid over to the Pittsburg Trust Company, the same as provided for in section 3 of article XI., in regard to dues; provided, further, that the same shall not exceed the sum of $25.00 in any one month. And we, the undersigned, further agree that in case any one of us signing this article of agreement and accepting these by-laws shall have been appointed to the bureau of police by the director of the department of public safety do specially covenant and agree, each for himself or ourselves, that in consideration of the said appointment, and not having passed a proper medical examination, we covenant, promise and agree to be bound by all the articles of agreement, by-laws and regulations governing the police pension fund association, and to pay and contribute to pay our respective dues in lite manner as the applicants who have proper medical certificates, and hereby specially waive, relinquish and release all claims or demands whatsoever upon the aforesaid police pension fund association of the city of Pittsburg and all the benefits and dues belonging thereto.”</p> <p>Judgment for plaintiff on case stated for $500. Defendant appealed.</p> <p>Error assigned was entering judgment in favor of the plaintiff and against the defendant.</p>

<p>Statutes — Boroughs—Local township laws — Collection of taxes.</p> <p>A local law applying to a township does not apply to a borough created out of territory belonging to that township, after its incorporation, if in conflict with the general borough laws under which it is created.</p> <p>A local act regulating the collections of taxes in Fallback township at tbe time the borough of Ben Avon was incorporated does not apply to the borough after it is incorporated and the school taxes must be collected not by the treasurer of the scho'ol board but by the tax collector as directed by the Act of June 25, 1885, P. L. 187.</p>

<p>Appeal, No. 134, April T., 1898, by R. F. Downey, a creditor, from decree of O. C. Greene Co., April T., 1897, No. 8, confirming auditor’s report distributing the balance in administrator’s hands.</p> <p>Exceptions to auditor’s report. Before Crawford, P. J.</p> <p>It appears from the auditor’s report that-William. Staggers, .the decedent, for several years prior to the time of his death, had and was troubled with an organic disease of the heart called “ Mitral insufficiency,” which finally culminated in death. That he was treated for this disease in 1891 and 1892, down to the day of his death, by Dr. W. M. Parry. Dr. Parry offered his book account in evidence which was admitted (the character of these entries appears from the fourth assignment of error). The auditor held that the disease was a fatal one from the beginning although not of rapid culmination; that the length of time for which services were rendered was not an unreasonable one in the case of the lingering disease of which decedent died and that the whole of the claim of Dr. Parry should be allowed as preferred claim under the act of February 24, 1834.</p> <p>The court awarded to Dr. Parry $93.00. K,. F. Downey, a creditor, appealed.</p> <p>Errors assigned among others were (1) in affirming the report of the auditor in holding that the book account of Dr. Parry had been sufficiently proven. (3) In holding that the charge of April 1, 1891, in the book account of Dr. Parry against William Staggers, Sr., deceased, in words and figures as follows: “April 1st, 13th, 14th, 18th, 23 — five visits & med at $2.00 per visit, $10.00 ” was a proper charge and in allowing the same against the estate of said decedent. (4) In holding that the charges in the book account of Dr. William M. Parry against William Staggers, Sr., deceased, as follows: “ Feb. 8, 1891, visit to self, $2.00; March 1, 1891, visit to self, $2.00; April 12, 1891, visit, $2.00; Feb’y 28, 1892, med. sent per M. C., $.50; August 28, 1892, visit & med., $2.00, and Sept. 4th, 1892, visit & med., $2.00,” were proper and legal charges against said decedent’s estate, the same having been made on Sunday, should have been excluded by the court. (7) In not holding that the medicine furnished by Dr. Parry and the medical attendance given by him to William Staggers, Sr., were not furnished and given in the last illness of William Staggers, Sr., and, therefore, he was not entitled to preference in payment.</p>

<p>Appeal, No. 133, April T., 1898, by plaintiff, from judgment of C. P. No. 2, Allegheny County, Oct. T., 1897, No. 386, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit. Before White, P. J.</p> <p>It appears from the record that John Nadzaii, a member of the defendant society died in 1892, leaving three minor children who, under the rules of the society became entitled to a death benefit of $250. For five years no guardian was appointed and no demand made by any person for the money when the mother and children went back to Hungary and finally the defendant company transmitted' through the consul money due the minors to be paid under the laws of that country where the minors then resided. Subsequently plaintiff was appointed guardian for two minors and brought suit for the money alleged to be due them under the rules of the association.</p> <p>The court discharged the rule for judgment. Plaintiff appealed.</p>

<p>Beneficial association — False application for membership — Warranty.</p> <p>An application for membership in a beneficial association which in terms states said application “ to be full and true .... and if any statement is found to be untrue the contract shall be ipso facto null and void,” etc., is a clear warranty as to all facts contained in the application and an application which represents the applicant as being fifty-nine years of age, when in fact she was seventy, is a complete bar to recovery.</p>

<p>Appeal, No. 130, April T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1896, No. 756, on verdict for plaintiff.</p> <p>Assumpsit. Before White, P. J.</p> <p>It appears from the record and the evidence that this action was brought by the city to recover the cost of the laying of a flagstone sidewalk in front of defendant’s property. There were but two witnesses in the case, one on each side. The witness for the city was a man named Thomas who testified that he served a written notice on defendant which purported to be as follows : “ Patrick Fay’s estate, per Mrs. B. Fay. You are hereby notified to lay 5 ft. flagstone pavement in front of your lot on Hazlewood Ave.” Mrs. Fay, the defendant, testified that he did not serve her with that or any other notice and that she was the owner in fee of the property. Ordinances of the city of Pittsburg which were offered in evidence provide that twenty days’ written notice must be given to the owner to give Mm an opportunity to lay the sidewalk before the city can do it.</p> <p>The court below charged the jury as follows:</p> <p>This action is in a nutshell. [If Mr. Thomas served upon the defendant the notice he swears to, the plaintiff is entitled to recover the amount of the claim in this case, and that is really the only question at issue. Did he serve that notice upon her ? ] [6]</p> <p>It has always been the law of Pittsburg, and, I believe, all other cities and boroughs in the state of Pennsylvania, that the property holders along a street must lay the sidewalk and keep it in order. The municipality grades the street, and paves the cartway, and puts in the curbstones; then it is the duty of the property holders to lay the sidewalk. It has also been the law that if, after notice, the property holder does not pave the sidewalk, the municipality does it, and charges the property holder with the expense.</p> <p>This is a claim for a pavement in front of a property owned by the defendant on Hazlewood avenue. It seems from the claim that the plaintiff for use of the city here put down a flagstone pavement in front of that property. The property abuts on that street about 221 feet, and the flagstone, I believe, was about five feet wide. That was put down in front of defendant’s property the whole way at the rate of ninety-five cents a lineal foot, maMng $219.45, and this action is to recover that amount. There is no evidence here that the charge is not a proper charge. There is no evidence but what it was done as cheaply as it could be done; no evidence at all to indicate that there was anything more charged for this than what the defendant herself would have had to pay if she had done it. [But the only defense is that she never had the notice before the city did the work. I am by no means satisfied that any notice at all was necessary. The act of assembly does not require any written notice to be given.] [7] The act of assembly, which I really believe applies to all the cities and boroughs in the state, is in these words:</p> <p>“The municipal authorities may require sidewalks, boardwalks and curbstones to be laid, set and kept in repair, and after notice to the owner or owners of property to lay, set or repair such walks or stone in front of his, her or their property, and his, her or their failure to do so, the said municipal authorities may do the necessary work, and assess the cost thereof upon the property of the said owner or owners in front or along which said walk or curbstone so laid, set or repaired shall be situated, and file a lien therefor, or collect the same by an action of assumpsit.”</p> <p>[This is an action of assumpsit to recover that amount. That act does not require a written notice to be served on the property holder, either to lay down the original pavement or to repair the pavement. It simply says, “ after notice.” Under that act of assembly a verbal notice would be sufficient. It does not say that the notice must be served within twenty days or any time. It simply provides that the property holder shall have some notice before the municipal authorities perforin the work, in order that the property holder, may do it. If he or she does not do it, the city does it and charges the property holder with the expense. The ordinance of the city, passed in pursuance, perhaps, of that act of assembly, directs the municipal authorities, after twenty days’ notice to the property holder, to do the work, and charge the property holder, and that ordinance provides for a written notice. Now what is the object of this ? It is to be construed rationally, and in a reasonable way. It is simply so that the property holder may have notice to put down the sidewalk in front of his property. If he does not do it within twenty days, the city does it at his expense.] [8]</p> <p>Now, we have had the deposition of Mr. Thomas read in this case, in which he states that on the 14th day of November, 1895, some six months or so, I believe—</p> <p>By Mr. Beal: It was 1894.</p> <p>By the Court: Well, it was after the street had been paved, and after the curbstones were set, he states that he notified all the property holders on Hazlewood avenue to lay their sidewalks. [You know it is not customary to lay sidewalks with bricks or stone = until after the street has been graded and the cartway paved. That was done, and every property holder knew when that street was graded and the cartway paved that he would be called upon to lay the pavement. He was bound to know the law, and bound to know that then he would be called upon to fix the pavement. Mrs. Fay, the defendant, owning the property there, knowing that the cartway of that street had been improved, was bound to know that she would be called upon to put the pavement down along in front of her property. She knew that without the notice, because she was bound to know the law on the subject.] [9]</p> <p>[Mr. Thomas says, that on the 14th day of November, 1894, he served a written notice on her to put down the sidewalk in front of her property on Hazlewood avenue, and he gives a copy of that notice, which is to estate of P. Fay, and then he indicates Mrs. B. Fay. Now did she get that notice ? If she did it was notice to her that certain property on Hazelwood avenue, in which she had an interest, was to be paved — that the sidewalk was to be paved. Although it may have been in the name of P. Fay’s estate, yet if a notice was served upon her hi reference to property up there, and she knew that she had property up there, she would know that she was called upon to put down the pavement in front of her property.] [10] [Mr. Thomas, in his deposition, not only testifies that he served that notice upon her, but he goes further and fixes the date from his stub book. Further than that she was not living on Hazelwood avenue at the time, she was living on Second avenue, and he says he served it in the house she was living in on Second avenue. He says further that he went there and asked for Mrs. Fay, and she told him that that was her name, and he says that in a back room he served the notice on her, and explained it to her, and that she said she understood it. That is his testimony. One of two things is true, either he imagines all this, or he has sworn to a deliberate falsehood.</p> <p>On the other hand Mrs. Fay says she never got the notice. Well, she may have forgotten. She is an old lady, and may have forgotten, and may testify very honestly here to her belief that she never got the notice.] [11]</p> <p>[Now which of these two -witnesses will you believe Thomas, with the detailed circumstances, or simply Mrs. Fay, denying that she ever got that notice ? That is the question before the jury. If she got that notice the plaintiff is entitled to recover. If she never got any notice, while I am not clear but that she would be liable, yet I say to you that in that event your verdict should be for the defendant.] [12]</p> <p>Verdict and judgment for plaintiff for $246.66. Defendant appealed.</p> <p>Errors assigned were (1) in overruling defendant’s objection to the following question and admitting the evidence under bill of exceptions. B. Fay, the defendant, being on the stand, having denied that she had been served with a notice to lay a stone sidewalk, was asked by plaintiff’s counsel on cross-examination : “ Q. And you knew after Hazelwood avenue was graded and paved that Mr. Flanagan was laying a sidewalk along there ? ” (2) In overruling defendant’s objection to the following question asked defendant on cross-examination and admitting the evidence under bill of exceptions. B. Fay, defendant, being on the stand, having testified under objection that she knew that Mr. Flanagan, a contractor employed by the city, was laying the sidewalks on Hazelwood avenue where defendant’s property was situated, was asked the following question on cross-examination : “ Q. Your son, or grandson, worked for him at work, didn’t he ? ” (3) Befusal of binding instructions for defendant. (4) In refusing defendant’s second point as follows: “ 2. If the jury find that plaintiff laid the pavement on the sidewalk in front of defendant’s property on Hazelwood avenue without first having given defendant notice to do so, in accordance with the act of assembly and the ordinances of the city of Pittsburg, their verdict should be for defendant.” (5) In answer to defendant’s third point, which point and answer are as follows: “ 3. The notice directed to P. Fay’s estate is not sufficient to bind defendant, even if served on defendant. Answer: Refused. These points are refused for reasons explained in the charge.” (6-12) To portions of the judge’s charge, reciting same.</p>

<p>Charge of court — Inadequate instructions.</p> <p>A charge is inadequate which fails to present to the consideration of the jury just what the issue is, by statements of matters of fact upon which the case turns, and by a clear statement of the rules of law applicable to the question; but the court’s duty is discharged if the judge presents the case in such a way that the jury will know what conclusion arises under the law from the facts proved; he is not obliged to deliver an elaborate dissertation on the law.</p> <p>Practice, C. P. — Appeals—Affirmance of points — Charge of court.</p> <p>When no positive error in the charge is pointed out and the points of the party complaining have been unqualifiedly affirmed, it must be a very plain case to warrant the appellate court in reversing upon the ground that the court did not analyze the testimony, or did not sufficiently instruct the jury as to the rules for determining its value.</p>

<p>Building contract — Covenant against liens — Fraud.</p> <p>The mere fact that the holder of a legal title, subject to a recorded declaration of trust, in favor of trustee’s wife, designates himself in a building contract by the word “ owner,” is not such fraudulent misrepresentation as will debar the wife or her lien creditors from insisting on a covenant, in said building contract, against liens, either as against the contractor or subcontractors.</p> <p>Building contract — Contractor or agent — Covenant against liens.</p> <p>A contractor does not lose his character as such, in his relation to the subcontractors, and become the agent of the owner by virtue of a stipulation in a.building contract, that he will file with the owner a list containing the amounts of the respective bids of all subcontractors and material-men before any payments are made .... that such subcontractors may be paid on order issued by the contractor to the extent of eighty per cent of the value of their work. Such stipulations do not affect a covenant against liens.</p> <p>Contract — Independent covenants — Covenants to pay, and not to file lien.</p> <p>A covenant not to file liens entered into by the contractor and a covenant by the owner to pay in instalments are separate and independent covenants, and failure to meet the instalments does not relieve from the covenant not to file liens. Long v. Caffrey, 98 Pa. 526, followed.</p> <p>Contract — Improvement of wife's real estate — Wife's liability — Mechanic's lien.</p> <p>A husband having, as the agent for his wife, contracted for the erection of a house on the land of the wife, but with a clause waiving right of lien by the contractor, such contractor and subcontractors, are entitled to pro rata distribution of the proceeds of an assignment of the wife’s estate. The creditors’ rights are based, however, on the contractual relations; they have no standing as mechanics’ lien creditors, but must claim as simple contract creditors who, relying on the contract, must take it in its entirety and with its inhibition of the rightof lien. The contract antedating the Act of June 26, 1895, P. L. 369, the subcontractors were bound with constructive notice and were bound to investigate; failing to do so they acted on their own risk.</p>

<p>Appeal, No. 33, April T., 1898, by respondents, from decree of C. P. Crawford Co., Feb. T., 1896, No. 130, dissolving tbe Titusville Oil Exchange.</p> <p>Petition of the Titusville Oil Exchange for permission to surrender all the powers contained in its charter and for a decree for the dissolution of the said corporation. Before Hehdersoh, P. J.</p> <p>This case was before the Superior Court on appeal and in the report of the former hearing (Titusville Oil Exchange’s Dissolution, 2 Pa. Superior Ct. 508), the petition and answer are set out in full.</p> <p>Other facts sufficiently appear from the opinion of the court below, as follows:</p> <p>The Titusville Oil Exchange is a corporation of the first class, with a capital stock of $40,000, divided into shares of $100 each, incorporated by the court of common pleas of Crawford county, by decree dated February 16, 1880; the object of which corporation is the erection of a building for the use of the members, in the business of buying, selling, transferring and trading in petroleum and* its products, and the establishment and maintenance of rules and regulations for the government of members of the association in that business. A meeting of the stockholders was duly convened in accordance with the constitution and by-laws of the corporation on the first day of February, 1896, for the purpose of considering:</p> <p>“1. Whether the oil exchange corporation shall be dissolved.</p> <p>“ 2. Whether its real estate and other property shall be sold.”</p> <p>The meeting was regularly organized by the election of Col. John J. Carter, president; C. E. Martin, secretary, who was also secretary of the corporation; and the appointment of John McCort and E. C. Hoag, judges of election and tellers. The roll of stockholders was called by the secretary and the object of the meeting stated by the chairman. The tellers were sworn to perform their duties with fidelity. The meeting was held in the assembly room of the oil exchange building, the same room in which meetings of the corporators were regularly held. The chairman occupied a seat on a raised platform on the north side of the building, and the secretary and tellers occupied the same platform at the side of the chairman. The stockholders generally occupied seats in front of the platform.</p> <p>A vote on the propositions above referred to was taken by ballot; the tellers collecting the ballots in a hat or hats. The ballots were taken to the desk at the platform beside the president, were examined by the tellers and secretary, and compared with the roll of stockholders. As each ballot was examined and compared with the list of stockholders, it was noted .upon a voting list and tally sheet kept by the tellers, giving the name of the voter, the number of his shares and how he voted. This was done openly and publicly in the presence of the stockholders, with all the ballots one by one. The footing of the tally sheet was then compared with the total number of ballots. The number of shares and the number of stockholders who voted were counted and the result certified and signed by the secretary and tellers, and handed to the chairman, who publicly announced the result of the meeting.</p> <p>Twenty-eight stockholders owning 311 shares of stock voted for dissolution. Twenty-two stockholders owning thirty-six shares of stock voted against dissolution. All of the stockholders who voted for dissolution were present except Mr. Howard, who was represented by proxy. All of the stockholders who voted against dissolution were present except the Second National Bank, Mrs. Emery and E. O. Emerson, all of whom were represented by proxies. Every stockholder who desired to vote did vote. No person voted who was not a stockholder. No stockholder was interfered with or hindered when voting. The ballot of each stockholder who voted was counted and returned in accordance with his vote, and the result announced by the chairman was the actual result of the ballots cast. The ballots were preserved by the secretary and tellers; were introduced in evidence at the hearing, and show conclusively how each stockholder voted. It nowhere appears in the evidence that the votes were not counted as cast, or that any person voted who was not entitled to vote. The meeting was conducted in as orderly a manner as is usual with meetings of that size.</p> <p>It was alleged by the respondents that before the ballot was cast a motion was made that the roll of the stockholders be called, and that this motion was declared by the chairman to be out of order. The evidence is contradictory upon this point, but it is not material to determine whether such was the fact or not. The roll was called at the beginning of the meeting. The ballots cast were all compared with the roll of stockholders in the hands of the secretary, and each ballot was found to correctly represent the name of the stockholder and the number of shares held by him. It is immaterial, therefore, in the light of the evidence in this case, whether the ballots were taken as the roll was called, or were collected after the roll call. Slips of paper having thereon “For Dissolution” were distributed among the stockholders, to be used as ballots by those who might desire them. Some of these were voted; some were changed to read “Against Dissolution,” and other ballots were written by the voters for dissolution or against dissolution as they desired to vote. Opportunity was given to each stockholder to vote as he pleased, and there is no evidence whatever that any ballot was cast which does not correctly represent the purpose of the voter, or that the return was not in accordance with the ballots as east. A full and true account of the president, secretary and board of directors of all their transactions was presented with the petition, as provided for by the statute. No taxes are due to the commonwealth of Pennsylvania.</p> <p>The business carried on in the building erected by the corporation was largely of a speculative character in buying and selling petroleum through the purchase and sale of that product represented by pipe line certificates. This kind of business has almost entirely disappeared in the oil district, and has practically ceased in Titusville. Dealing in oil, as conducted at the time the corporation was organized and for several years thereafter, has been to a very large extent, if not wholly, abandoned at that place. The stock of the corporation is not now, and has not been for several years, profitable to the owners thereof. The public welfare would not be prejudiced by the dissolution of the corporation.</p> <p>CONCLUSIONS OP LAW.</p> <p>The petition in this case is presented under the provisions of the Act of April 9, 1856, P. L. 298, and exhibits a prima facie case for a decree. It is alleged, however, in the answér, that the vote taken at the stockholders’ meeting on the resolution to dissolve the corporation was “ illegal, fraudulent and void ” by reason of the manner in which the voting was conducted. Other objections were raised in the answer relating to the account filed by the officers of the corporation and the extent of the business transacted in the Exchange.</p> <p>The objection to the manner of the conducting of the election — the allegation of unfairness therein, is not supported by the evidence. The testimony taken makes it clear that there was a full opportunity to vote; a free and unrestrained expression of the will of the stockholders; that every person who voted was entitled to vote, and that no person offered to vote who was not entitled to vote ; that every ballot cast had written thereon the name of the voter; that every ballot cast expressed the intention of the voter, and that every ballot cast was counted and returned as it was cast, after an examination of the ballots and the tally sheet. It is not pretended that the announcement as declared by the chair was not an exact and truthful statement of the result of the election. There were some persons in the assembly room not members of the corporation. No one of them, however, voted or offered to vote or in any way whatever interfered with or attempted to control the action of any one of the stockholders so far as has been shown in the case.</p> <p>If it were conceded that a motion was made as contended by -the respondents, asking for the call of the roll at the time the ballots were cast, and that the chair declared the motion to be out of order, such action on the part of the chair would not effect an election which was open, free, fair and honestly returned. The mode of conducting a stockholders’ election is not material, generally speaking, if the provisions of the charter or the statute regulating it are not violated. Where it is conducted by proper persons, in an orderly manner, “if tbe wishes of the corporators have been fairly expressed, informalities in the manner of holding the election are not sufficient to warrant the court in setting it aside: ” Cook on Stockholders, sec. 605.</p> <p>The presumption is that the proceedings were regular, and he who avers the contrary is required to establish the fact by evidence. The objection to the mode of conducting the election was that pressed upon the court’s attention at the argument, and that which seems to be relied upon by the respondents.</p> <p>Changes in the mode of conducting the oil business caused a practical cessation of business in this Exchange several years ago, and the occasion for the erection or maintenance of such a building and the operation of such a corporation, which existed at the time of the organization of this corporation and for several years thereafter, no longer exists. The corporation is not profitable to the stockholders, and no sufficient reason has been shown why it might not with propriety be dissolved. It has not now, and never has had, any such connection with the public welfare as to make it inadvisable to grant the prayer of the petitioners. A majority of stockholders owning a very large proportion of the stock of the corporation voted in favor of the dissolution; and while it is true that a number of the shareholders are opposed to such action, the case, under all of the evidence, presents such a state of facts as entitles the petitioners under the statute to the decree prayed for. A decree is therefore authorized in accordance with the prayer of the petition.</p> <p>dege.ee.</p> <p>And now, to wit: May 11, 1897, the petition of the Titus-ville Oil Exchange corporation for a decree for the dissolution thereof having been heretofore duly presented, and proof having been made that notice of such application for dissolution has been duly given by publication, according to law, and that the said corporation is of the first class, and that no taxes are due and payable to the commonwealth of Pennsylvania; and it further appearing that the prayer of the said petition may be granted without prejudice to the public welfare or to the interests of the corporators, and the said cause came on to be heard at this term and was argued by counsel, thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows:</p> <p>That the said corporation be, and the same is hereby dissolved, and all and singular its powers, franchises and privileges be and the same are hereby extinguished and determined, provided that this decree shall go into effect upon filing a certified copy thereof and recording the same in the office of the secretary of the commonwealth.</p> <p>And it is further ordered, adjudged and decreed that the accounts of the directors and officers of the said corporation filed herewith and of record in the proceedings of this case be and the same are hereby approved and confirmed.</p> <p>Certain stockholders, i. e., P. T. Witherop et al., appealed.</p> <p>Errors assigned were (1) in entering a decree dissolving the Titusville Oil Exchange corporation, which is as follows: “It is .ordered, adjudged and decreed as follows: That the said corporation be and the same is hereby dissolved and all and singular its powers, franchises and privileges be and the same are hereby extinguished and dissolved. . . . And it is further ordered, adjudged and decreed that the accounts of the directors and officers of the said corporation filed herewith and of record in the proceedings of this case be and the same are hereby approved and confirmed.’ ’ (2) In finding the following as a fact: “ No person voted who was not a stockholder.” (3) In finding as a fact the following: “ The business carried on in the building erected by the corporation was largely of a speculative character in buying and selling petroleum through the purchase and sale of that product represented by pipe line certificates. This kind of business has almost entirely disappeared in the oil district and practically ceased in Titusville. Dealing in oil as conducted at the time the corporation was organized- and for several years thereafter has been, to a very-great extent, if not wholly, abandoned in that place.” (4) In finding as a fact the following: “ The public welfare would not be prejudiced by- the dissolution of the corporation.” (5) In not finding as a fact that the dissolution of the Titusville Oil Exchange corporation, would be prejudicial to the interests of the corporators. (6) In finding as a fact the following: “ A full and true account of the president, secretary and board of .directors of all the transactions was presented with the petition as provided by the statute.”</p>

<p>Appeal, No. 92, April T., 1898, by plaintiff, from decree of C. P. Lawrence Co., Sept. T., 1897, No. 1, praying for preliminary injunction.</p> <p>Bill and answer. Before Wallace, P. J.</p> <p>It appears from the record that a bill was filed by Lawrence county alleging tbat defendant company had already erected a track upon a country bridge and used the same without authority ; that they proposed to erect another track, and that such construction would render the county bridge unsafe for public travel and increase the cost and expense of keeping the same in repair, and until the bridge was strengthened would be dangerous to public travel and a nuisance; that defendants had no right to enter upon said bridge ; that plaintiff was ready at all times to give the defendants said right under certain conditions for strengthening the bridge and keeping it in repair and providing for the payment of an annual rental; that the parties were unable to agree ; and the prayer was for an injunction to restrain defendants from entering upon the bridge and constructing, maintaining and operating upon the said bridge a railway, and direct them to remove their tracks from-the bridge. An answer was filed denying certain allegations of the bill and alleging that defendants had already repaired and strengthened the bridge so that it was more than ample for the use to be made of it. A preliminary injunction was issued on August 5, 1897, and on August 14, 1897, after hearing of testimony and argument of counsel preliminary injunction was dissolved, the court below, Wallace, P. J., entering the following decree :</p> <p>August 14,1897, after hearing the testimony and arguments of counsel in this case I am of the opinion all the questions raised can be disposed of on final hearing of the case. The preliminary injunction is therefore dissolved and the defendants permitted to proceed with the work, the work to be done under the supervision of the commissioners of Lawrence county and at the expense of defendants. Plaintiff appealed.</p> <p>Error assigned was in making the decree of August 14,1897, dissolving the preliminary injunction.</p>

<p>Appeal, No. 165, April T., 1898, by D. J. James, lien creditor, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1897, No. 235, in distribution of proceeds of sale of mortgaged premises.</p> <p>Exceptions to special return of sheriff, reporting schedule of distribution of proceeds of sale of mortgaged premises. Before Slagle, J.</p> <p>The facts sufficiently appear from the opinion of the court below, as follows:</p> <p>Upon the above writ certain real estate of defendant was sold by the sheriff, who made a special return by which he appropriated sufficient to pay the debt and costs of this writ in full, and also the debt and costs of a judgment in favor of John Miller, at No. 851, September term, 1894, and the balance, $1,927.57, on account of a mortgage held by R. F. Dulany. On October 5, 1897, David J. James filed a petition alleging that he was a creditor of defendant, having a mechanic’s lien upon a portion of the premises; that the said Dulany had a lien on other property praying, for subrogation, and a supplemental petition was filed asking that he should be compelled to exhaust the other property upon which he had a lien before resorting to the funds derived from the lots upon which petitioner had a lien. To these petitions answers were filed by all the parties interested denying that in any event he was entitled to the relief sought, one setting up the fact that the mechanic’s lien under which he claimed was filed in court of common pleas, No. 3 ; that its validity was denied and a proceeding was then pending to have it stricken from the record. An agreement was filed by which the validity of the lien was to be determined by the court. This is therefore the first question presented for consideration. The objection to this lien is that it is filed as an apportioned claim for the construction of two tenements, whereas the work done was in the repair of one building which had been partially destroyed by fire. Considerable testimony was taken as to this fact which was submitted to the court to find the character of the building and determine the validity of the lien. From the testimony in the case it appears that the building, as originally constructed, was a single building with an ordinary roof presenting a gable front and rear, a single roof covering the whole. It was divided into two tenements, separated by a solid partition in the first and second floors, the attic covered by the common roof was unfinished and not used with either tenement. The separation of the tenements by a solid partition would justify the filing of an apportioned claim. This building or buildings was partially destroyed by fire. The eastern portion was burned to the foundation, the roof was almost wholly destroyed, leaving six or seven feet of tire western side which was not used in the reconstruction. The partition was destroyed and a portion of the floors and weatherboarding. The plaster was destroyed by water where not burned. The petitioner rebuilt tins house. The eastern portion was entirely new. In the western portion he putin anew partition between the two, replaced a portion of the floors and walls, put on an entire new roof, it being a mansard divided into four rooms, two to each tenement, divided by new partitions, built a new porch in the rear, and plastered and painted the entire building.</p> <p>We are of the opinion that this was a new building, which entitled the petitioner to a lien under the act of 1836, for the erection and construction of a building which might be properly apportioned: Trickett on Liens, sec. 6. We then come to the consideration of the rights of the petitioner against the other creditors and parties interested, and especially against R. F. Dulany, whose mortgage he asks to have subordinated to his claim. Andrew Gunther was the owner of several lots of ground in the borough of Rankin, Allegheny county, as follows : lots Nos. 99,100,146,147,148,149 and 160 in Hartwood’s plan and No. 28 in Hawkins’s plan. In two of the answers filed it is stated that he owned other property in said county, but it is not specified, and there is no evidence of that fact submitted. It is possibly not material to the question under consideration. On May 21,1896, the petitioner commenced the construction of the buildings before mentioned, upon Nos. 99 and 100, against which he filed his lien, in C. P. No. 3 at No. 24 of May term, 1897, for $847. On May 21, 1896, this property was subject to liens as follows :</p> <p>On lots Nos. 99, 100, 146 and 147, mortgage to the Order of Solon for about $1,350, assigned to R. F. Dulany, December 5, 1892.</p> <p>On lots Nos. 148, 149 and 150, mortgage to Alex. Dempster for about $1,650, December 6, 1892.</p> <p>On all the lots, except No. 28, judgment of John Miller, at No. 351, September term, 1894, for $300, entered August 20, 1894.</p> <p>Mortgage to R. F. Dulany for $2,950, August 28,1895, being a first lien on lot No. 28, and a second lien on all the other lots.</p> <p>On all the lots, judgment of Order of Solon, at No. 367, December term, 1895, for debt secured by the mortgage entered-November 19, 1895.</p> <p>Judgment of Allen Kirkpatrick & Co., at No. 191, January' term, 1896, C. P. No. 2, for $560, entered December 5, 1895.</p> <p>Judgment of R. F. Dulany, at No. 192, May term, 1896, C. P. No. 3, for $2,800, entered March. 19, 1896, being for the same debt secured by his mortgage.</p> <p>The lien of the petitioner attached May 21, 1896.</p> <p>After this date judgments were entered in favor of Alex. Dempster, at No. 158, January term, 1892, C. P. No. 2, for debt secured by his mortgage.</p> <p>In favor of Wm. H. Gunther, for $915, at No. 305, September term, 1897, entered August 14, 1897.</p> <p>And last, a judgment in favor of David J. James, at No. 20, October teriii, 1897, C. P. No. 2, for $893, the same debt for which his lien was filed. Entered August 27, 1897.</p> <p>Upon the Order of Solon mortgage, a scire facias was issued at No. 815, June term, 1897; judgment obtained June 18, 1897, for $1,331.73, upon which a levari facias was issued, and lots Nos. 99, 100, 146 and 147 were sold by the sheriff on September 10, 1897. Lots Nos. 146 and 147 were first sold for $1,500, and lots Nos. 99 and 100 for $2,250. On the same day lots Nos. 148,149 and 150 were sold upon an execution issued by Wm. H. Gunther, upon his judgments, at No. 305, September term, 1897. These lots were sold subject to the mortgage of Alex. Dempster, for $162. It does not appear to whom these lots were sold, or what disposition was made of the proceeds. On the next day, lot No. 28 was sold on the same writ to Mary Gunther, wife of the defendant, subject to the mortgage of R. F. Dulany, for the sum of $425. The purchase money was paid September 23, 1897, but no return has been made so far as was shown. Mrs. Gunther alleges that the purchase money was her own and there was no evidence offered to the contrary. On October 5, 1897, the petitioner notified Mrs. Gunther that he would make the application for subrogation now presented. It will thus appear that at the time' the petitioner’s lien attached, there were special liens upon lots Nos. 99, 100, 146 and 147, in favor of the Order of Solon, and on lots Nos. 148,149 and 150, in favor of Alex. Dempster, and general liens upon all the lots in favor of John Miller, R. F. Dulany, the Order of Solon and Allen Kirkpatrick & Co., in the order named. These liens so stood when the sheriff’s sale was made. By the special return of the sheriff of the proceeds of the sale of lots Nos. 99, 100, 146 and 147, the judgment of John Miller was paid in full, as was also the claim of the Order of Solon. No exception was taken as to this distribution, and by agreement the special return was confirmed and the money paid to these parties. They are, therefore, not interested in this matter. The judgment of Allen Kirkpatrick & Co. was divested by the sheriff’s sale of all the lots, and their claim would be against the proceeds of sale of lots Nos. 28, 148, 149 and 150. So that it does not appear that they are affected by this matter. The only parties now interested are R. F. Dulany and Mrs. Gunther, and the rights of petitioner are to be determined as against them. It is, therefore, necessary to inquire as to what rights they have and how they will be affected by the action now asked by petitioner. At the time petitioner’s lien attached, and at the time of the sheriff’s sale, R. F. Dulany owned a mortgage which has a first lien on lot No. 28, and a second or rather a third lien on lots Nos. 99,100,146,147,148, 149 and 150 and, by virtue of his judgment, a general lien on all these lots. The debt secured by these liens was for. purchase money of lot No. 28, and it is argued that this fact makes that lot primarily liable for the debt and gives to the petitioner some special equity to demand that it be first exhausted before resorting to the other property. We cannot see the force of this argument. There is nothing in law or morals which prevents a vendor of real estate from taking other security for purchase money. In fact, it is an almost invariable rule to so do. Often a judgment note is. taken, which may be enforced against all the vendee’s property, but even a common bond or other contract for payment pledges all the resources of the vendee. We cannot see how the mortgaging of other property differs in principle. It is merely a security, and only differs from the other obligations in the mode of enforcing it. There is no allegation of fraud in this transaction, and Mr. Dulany’s claim must, therefore, stand as a valid lien against all of Gunther’s property and be treated as such.</p> <p>What, then, are his rights as against R. F. Dulany? Lots Nos. 99,100,146 and 147 were sold on the writ of the Order of Solon. It was then owned and controlled by Dulany. Lots Nos. 148, 149 and 150, and also lot No. 28, were sold on the writ of Wm. Gunther- and so far as appears, this writ was not controlled by Mr. Dulany. On the Order of Solon mortgage no other lots could have been sold than the four covered by it. Nos. 146 and 147, upon ■which the petitioner did not have a lien, were first sold, and afterwards the lots against which he claimed a lien. The lots were all sold on writs which passed a valid title to the lots respectively, and divested all liens, except the Dempster mortgage, on lots Nos. 148, 149 and 150, and the Dulany mortgage. The liens were thus transferred to the fund, and the rights of the parties must be ascertained as against it or growing out of its distribution. The distribution made by the sheriff was strictly in accordance with law. The mortgage of Dulany was the third lien on lots Nos. 99, 100, 146 and 147, and was therefore entitled to take the proceeds of the sale of those lots, remaining after the payment of Solon mortgage and John Miller’s judgment. This is a legal right of which he cannot be deprived unless some superior equity is shown to be in another. If such equity exists it can only be enforced on equitable principles, and the most obvious is that its enforcement shall not work injustice to the creditor against whom it is invoked, the defendant or any other having equal rights. It can make no difference to the defendant to whom the money is paid, provided it is applied to the satisfaction of his indebtedness; nor does it affect the creditor if his claim is fully and promptly paid. We find, therefore, that the courts have recognized as an equity which will control the legal right of a creditor that he has two securities while the next subsequent creditor has but one. It has therefore been adopted as a rule of equity that “ a person who can resort to two funds shall not by his option disappoint another who has a claim on one only: ” Ramsey’s App., 2 Watts, 228; Hasting’s Case, 10 Watts, 303. But all the cases upon this subject recognize the right of the creditor to full and prompt payment of his claim, and it is obvious that any rule to the contrary would not only deprive him of a legal right, but would be unjust and inequitable, and, accordingly, the proceedings to administer such an equity have been made consistent with it. The ordinary means of enforcing such an equity is by subrogation or marshaling assets. As to subrogation, it has always been held that it cannot be ordered until the debt of the creditor against whom it is asked has been fully'paid: Kyner v. Kyner, 6 Watts, 221; Graff’s Est., 139 Pa. 69. Even tender of payment is not sufficient: Forest Oil Co.’s'App., 118 Pa. 139. In the marshaling of assets it is a necessary requisite that there should be two funds of a common debtor presently distributable : Bispham on Equity. Counsel for the petitioner admits that he is not in a position to demand subrogation, because Dulany’s claim has not been paid, and there can be no conditional order of subrogation: Graff’s Appeal,.139 Pa. 69; Forest Oil Co.’s App., 118 Pa. 139. And because there is a doubt as to the right of a mechanic’s lien creditor to subrogation: Knouf’s Appeal, 91 Pa. 78; Kendig v. Landis, 135 Pa. 612. We think, however, there are greater difficulties in applying to this case the principles recognized in marshaling assets. In -the first place it is a mere modification of subrogation. It applies the principle of subrogation to funds in court instead of property held, as security. “ The two funds must actually exist. The doctrine of marshaling cannot be invoked for the purpose of raising a fund.” Bispham on Eq. sec. 342. This is necessary to effect a full and immediate payment of the creditor’s claim, which is a prerequisite to subrogation, and is applicable to marshaling assets as well. The petitioner in his first petition asked for a qualified order of subrogation. He afterwards filed a supplemental petition in which he asks that Dulany “ be required to proceed upon his mortgage and resort to lot No. 28, and the proceeds of lots Nos. 148, 149 and 150, for the payment thereof, before he shall be entitled to participate in the distribution of the fund now in court in this cause, and that further distribution of the fund now in court be suspended in the mean time.” • In the argument counsel asks that distribution be suspended only as to the amount necessary to pay petitioner’s claim, say $975. In other words, that the sum of $975 be impounded by the court until Dulany shall have proceeded upon his mortgage and exhausted the proceeds of the sale of lot No. 28.</p> <p>This is not subrogation nor is it in regular course of marshaling assets. It does not ask the application of funds now in court, but that distribution of a fund in court be suspended until another fund shall have been created. This appears to be inequitable and unjust. The money is now in court, which is legally applicable to Dulany’s claim. We are asked to withhold it from him for the reason that he may possibly be able to make it out of.other properly. This is uncertain. It may be that the other property would not produce more than sufficient to pay the balance of his claims after the appropriation of the entire fund now in court. In that event the petitioner would take nothing by his motion, and Dulany would receive his own without interest. Pie would thus be deprived of the use of his money without compensation, to give the petitioner a chance to ascertain whether there might be a fund upon which he had no legal claim, but which might in equity be administered in his favor — a chance which might not be realized, as was the result in Morris v. Olwine, 22 Pa. 441. Counsel for petitioner thinks he finds authority for such action in the cases of Morris v. Olwine; 22 Pa. 441, Graff’s Appeal, 139 Pa. 69, and Tubb’s Appeal, 161 Pa. 252.</p> <p>These cases seem to sustain the contention, but none of them decides the question. None of them was a case of a creditor having a single security, asking the court to compel another creditor to exhaust property upon which the first had no legal claim. In each of those cases the creditors asking protection had valid claims against the entire property, the only difference being that one had a prior lien upon part of the property. Morris v. Olwine, and Graff’s Case were voluntary assignments for the benefit of creditors, and Tubb’s Appeal, that of a decedent’s estate, the contest being between general creditors and mortgagee. They did not present a mere question of equitable distribution, but the ascertainment of the value of specific liens. The language of the courts must be construed in reference to the facts then under consideration. Giving what was said the force of decisions, they do not decide the question now raised. But on examination, we find that the question was not decided. The language of the court relied on was in each case a dictum applicable to the facts of that case, and though of persuasive force, ought not to be considered as establishing a principle to be carried into other cases presenting a different state of facts.</p> <p>In the case of Morris v. Olwine, 22 Pa. 441, Judge Allison made an order directing that a dividend awarded to a mortgage creditor out of a fund derived from personal property, should be placed with the Girard Ins. Co., at interest, until the mortgaged premises should be sold. This was certainly an extraordinary exercise of power. It not only suspended distribution, but ordered a loaning of the. money. How this was done, does not appear. No opinion is reported. It may have been by consent of parties.. It was unnecessary, as the same result could have been effected by permitting the mortgage creditor to take his dividend, which would have reduced the mortgage debt to that extent, and if the property was worth more than the amount remaining, the creditors would have received compensation by dividends out of the excess. We do not understand the Supreme Court, as approving this action. The court does say that “ if the other creditors think the land is more than sufficient to discharge the liens, this may be ascertained in the way adopted by the court,” but this remark relates to a fact accomplished, and does not necessarily approve it. The court expressly says “ all that is at present decided is that the subsequent reduction of the debt, by proceedings on the mortgage does not deprive the creditor of the dividend thus previously ascertained. The final decree of the court of common pleas was correct and is therefore, affirmed.” In •Graff’s case there was also an assignment for benefit of creditors, including real estate subject to two mortgages. It was however, complicated by the fact that the assignee had sold the real estate subject to the mortgages. It was sold to a syndicate of the general creditors. A large fund, about $185,000 had been derived from the general assets. The auditor appointed to make distribution awarded dividends to the mortgagees of $59,273.24 and $9,560 respectively, but recommended that, upon payment, they should assign to the assignee, for the benefit of the creditors, an equal amount of the mortgage securities. The court adopted this suggestion, with a slight modification. But the Supreme Court held that this could not be done, because it was an order of subrogation upon partial payment, in violation of the principle established by Kyner v. Kyner, 6 Watts, 221, which has since been uniformly adhered to, that there cannot be subrogation to the rights of a creditor who has not been fully paid. The Supreme Court, therefore, reverses the court below, and directed the payment of the dividends to the mortgaged creditors without condition. They, however, applied to the case of another well established principle, that, though payment discharges a lien at law, it does not necessarily do so in equity and may, therefore, be kept alive to subserve the purpose of equity. The result is practically the same and there may be a distinction without a difference, but it tends to show the care of the courts to conform to established principles and recognized modes of enforcing them. In this case, the court below says: “We are of the opinion that the court has the power to withhold the payment of dividends to be awarded to them until there shall have been an exhaustion of the mortgaged property.” And the Supreme Court says : “ The appellants might, therefore, have been compelled to proceed upon their mortgages before coming on this fund.” But this was not done by the court below, nor by the Supreme Court, possibly because as suggested by Justice Mitchell, “it might have involved much hardship and possible risk.” It is apparent that in this case, there would have been hardship and risk — $70,000 would have been withheld from parties who were entitled to it in law — they deprived of the use of it without compensation, and subject to the risk of failing banks or other contingencies, by which it might be wholly lost. In that case the court did not, and if so requested, probably would not, in view of apparent loss and risk, have ordered suspension of payment even in favor of parties having a legal claim against the property, much less at the request of one who had no legal claim and only a possible equity. In Tubb’s Appeal, 161 Pa. 252, Judge Rhone citing Graff’s Appeal, says : “Under this last cited case, it would have been our duty, if required, to have withheld the present fund from the Benscoters until after they had exhausted the land by a sale of the mortgage. But no such demand has been made.” The question was, therefore, not considered, but the case was decided on other grounds. The case was affirmed by the Supreme Court without an opinion. We are of the opinion that these cases do not sustain petitioners’ contention and in the absence of authority, we do not feel that we would be justified in exercising an extraordinary power in cases in which the equity is not clear.</p> <p>But in Graff’s Appeal, 189 Pa. 69, Justice Mitchell says, “ Subrogation never takes place to the prejudice of any other right,” and this principle is applicable to the exercise of equitable power in all cases. The lots Nos. 99 and 100, on which petitioners had a lien, were sold on September 10, 1897, upon the Solon mortgage, which divested all liens, including Dulany’s mortgage. On the next day, September 11, lot No. 28 was sold upon a judgment of Wm. H. Gunther, subject to Dulany’s mortgage, and was purchased by Mrs. Gunther, wife of the defendant, for $425. It is evident that if the petitioner is permitted to take $975 out of the fund appropriated to Dulany, that she will be compelled to pay that amount more than she would under the appropriation of the sheriff. We must therefore consider whether she has any equity to prevent it. When lot No. 28 was offered for sale the fact was that other propperty had been sold by the sheriff for a sum which, after payment of costs, the Solon mortgage and Miller judgment was in law applicable to the Dulany mortgage and operated as payment and satisfaction of it to that amount. This could be estimated with substantial accuracy, as the only uncertain element was the costs. A bidder at the sale of lot No. 28 would have a right to assume that the money made by the former sale would be appropriated in accordance with law, and that lot No. 28 would be subject to the balance of the Dulany mortgage and no more. Mrs. Gunther says that she was so informed by her attorney, who advised her of the probable amount. Counsel for the petitioner claims that this does not raise an equity in Mrs. Gunther, because the entries in the sheriff’s office are not official records, and until a final return has been made the liens must be considered as they appear of record.In support of this contention he cites Reading v. Hopson, 90 Pa. 494; Saunders v. Gould, 124 Pa. 237; Barlow v. Beall, 20 Pa. 178. These were all cases in which the effect of record notice was considered. They do not refer to the effect of actual knowledge or the right of parties to act upon such knowledge. It is a singular contention that parties attending a sheriff’s sale could not act upon the facts occurring under their notice, but in such case must act as if nothing else had been done. We all know that this is not done, but that every sensible business man acts upon conditions as they exist, and employs attorneys to inform them of such matters as they may not understand. In this case Mrs. Gunther had a right to act on her information as to the sale of other property, and the advice of her attorney as to the application of the proceeds. She had a right to rely upon the legal effect of said sales, and was not bound to know that some equitable claim would be set up 'against it. If the petitioner intended to set up such a claim it was Ms duty to notify her of the fact before she had incurred the liability: Snyder v. Crawford, 98 Pa. 414. This could have been done by notice to all bidders at the time of the sale, and thus all would have been on an equality, which was the purpose of the case which counsel cites. The petitioner did not do tMs, but on the contrary, became a bidder at the sale of lot No. 28, and gave no notice of his intention to affect the legal status of Dulany’s mortgage until after Mrs. Gunther had made payment of the purchase money and the sheriff’s deed had been executed. It is manifest that this was unjust to other bidders, and that the petitioner was not standing upon an equality with them. If he had become the purchaser it would have made no difference to him how the first fund should be appropriated; if paid to Dulany, it would relieve the lot purchased, and if not, it would pay his mechanic’s lien. If he had purchased lot No. 28, this application would not have been made, the money would have been paid to Dulany and the mortgage on the lot reduced to that extent. It was only on the purchase by another that it became his interest to throw the burden upon the purchaser. It would be manifestly inequitable to permit him to do this. So that aside from the question as to petitioner’s rights as against Dulany, he is clearly not entitled to the •relief prayed for against Mrs. Gunther. The exceptions to the sheriff’s return are therefore overruled, the sheriff’s return affirmed, and he is directed to pay out the money accordingly.”</p> <p>A judgment in favor of David J. James for $893, the sum for which Ms lien was filed, bemg excluded from the schedule of distribution, said David J. James appealed.</p> <p>Errors assigned were (1) M making the final decree, which was as follows: “January 5, 1898, exceptions to sheriff’s return are overruled, and the sheriff’s return affirmed, and he is directed to pay out the money accordingly.” (2) In confirming the sheriff’s special return absolutely, without granting any relief to D. J. James, lien creditor, petitioner and exceptant, upon his petition and supplemental petition. (3) In not granting D. J. James, the appellant, the relief prayed for in Ms supplemental petition, to wit: “ That R. F. Dulany be required to proceed upon his said mortgage from Andrew Gunther,.recorded in mortgage book, vol. 747, page 127, and resort to said lot No. 28 in Hawkins plan, and the proceeds of lots Nos. 148, 149 and 150 in the Hartwood plan, for payment thereof, before he shall be entitled to participate in the distribution of the fund now in court in this cause; and that further distribution be suspended in the mean time.”</p>

<p>Appeal, No. 108, April T., 1898, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1896, No. 447, on verdict for plaintiff.</p> <p>Trespass. Before McClung, P. J.</p> <p>It appears from the evidence that the plaintiff, a passenger on one of defendant’s cars, tendered a five dollar bill, claiming that she had no small change except three pennies. The conductor refused to change the five dollar bill and directed her to get off.</p> <p>Other facts sufficiently appear in the opinion of the court.</p> <p>The court charged the jury that the conductor was not bound to furnish change for a five dollar bill tendered in payment of a five cent fare, and that if plaintiff was entitled to recover at all she was only entitled to recover for any damage or mortification to plaintiff after the alleged tender of fare by incoming passenger at the step of the car, if the jury believed that such a tender was made and refused by the conductor and not refused by the plaintiff.</p> <p>Verdict and judgment for plaintiff for 190.00. Defendant appealed.</p> <p>Errors assigned was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 156, April T., 1898, by plaintiff, from judgment of Q. S. Allegheny Co., Sept. Sess., 1897, No. 975, finding defendant not guilty on special verdict.</p> <p>Indictment charging defendant with violating act of July 15, 1897. Before Frazer, J.</p> <p>The facts sufficiently appear from the opinion of' the court below as follows:</p> <p>The indictment in this case charges the defendant with violating an act of assembly approved the 15th day of July, 1897, entitled “An act requiring the weighing of bituminous coal before screening, and providing a penalty for the violation thereof.” The act provides as follows:</p> <p>“ Section 1. Be it enacted, etc., That it shall be unlawful for any mine owner, lessee or operator of any bituminous coal mine in this commonwealth, employing miners at bushel or ton rates, or other quantity, to pass the output of coal mined by said miners over any screen or other device which shall take any part from the weight, value or quantity thereof, before the same shall have been weighed and duly credited to the employee sending the same to the surface, and accounted for at the legal rate of weight fixed by the laws of the commonwealth.</p> <p>“ See. 2. Any owner, lessee or operator of any bituminous coal mine, violating the provisions of this act, shall be deemed guilty of a misdemeanor; and shall, upon conviction, for each and every such offense, be punished by a fine of not less than one hundred ($100) dollars nor more than five hundred ($500) dollars, or by imprisonment in the county jail for a period not to exceed ninety days, or by both such fine and imprisonment, at the discretion of the court; proceedings to be instituted in any court of competent jurisdiction.</p> <p>“ Sec. 8. All acts or parts of acts inconsistent herewith be and the same are hereby repealed.”</p> <p>Approved the 15th day of July, A. D. 1897.</p> <p>At the trial of the case, the facts adduced by the testimony of the commonwealth were not disputed, and the jury rendered the following special verdict: .</p> <p>We, the jurors empaneled in this case, find the following facts:</p> <p>1. That on the 24th day of September, 1897, the defendant, Samuel S. Brown, was the owner of a bituminous coal mine situate near the village of Boston, in the county of Allegheny, and as such owner, was, on the day aforesaid, engaged in the business of mining such coal.</p> <p>2. That the defendant employed at his said mine a number of persons, including the prosecutor in this case, to dig and mine coal, at the rate of $2.47 per 100 bushels of coal mined. That on the day aforesaid the prosecutor mined and sent to the surface at said mine about 100 bushels of coal.</p> <p>3. That the defendant caused the coal so mined and sent to the surface by the prosecutor in this case, at the mine aforesaid, to be passed over a screen which' took from and reduced the weight, value or quantity of the coal so mined and sent to the surface about one eighth, before the same was weighed and duly credited to the prosecutor, and accounted for at the legal rate of weight fixed by the laws of this commonwealth.</p> <p>4. The rate of $2.47 per 100 bushels referred to in the second paragraph was for lump coal remaining in screen after screening, and was the rate previously fixed by defendant for mining coal at said mine.</p> <p>If the court should be of the opinion that the act under which the indictment in this case is drawn, viz : an act entitled “ An act requiring the weighing of bituminous coal before screening, and providing a penalty for the violation thereof,” approved the 15th day of July, A. D. 1897, is constitutional, and that the facts above stated, and the acts of the defendant above set forth are sufficient, in the opinion of the court, to warrant a conviction of the defendant for violating the provisions of the said act of assembly, then the jury do say, that the defendant is guilty of a misdemeanor in manner and form as he stands indicted. If the said act of assembly is not constitutional, or the facts as above stated are not sufficient, then the jury find the defendant not guilty.</p> <p>The facts contained in the special verdict and the acts of the defendant are, in our opinion, sufficient to justify the defendant’s conviction of violating the provisions of the above recited act, and if the act is constitutional we must enter a verdict of guilty. The defendant claims that the act is unconstitutional and void: (1) because it conflicts with the constitution, article 1, section 9, of the Bill of Rights, which reads as follows: “. . . . nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land; ’■ (2) because it conflicts with the constitution, article 1, section 1, of the Bill of Rights, which reads as follows : “ All men are born equally free and independent and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness; ” (3) because it conflicts with article 3, section 3, of the constitution, which reads as follows: “No bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in the title; ” (4) because it conflicts with article 3, section 7, of the constitution, which reads as follows : “ The.general assembly shall not pass any local or special law .... regulating labor, trade, mining or manufacturing.”</p> <p>The first and second objections to the constitutionality of the act involve to some extent the same principles, and will be considered together.</p> <p>Does the act in question infringe upon the inherent and indefeasible rights of the citizen in enjoying liberty, acquiring property and pursuing happiness ? Does it prevent him from exercising his own judgment in disposing of that which is his own, even though it does injure the rights of others?</p> <p>The special verdict shows that the defendant was the owner of a bituminous coal mine, and as such owner was engaged in the business of mining bituminous coal; that he employed a number of persons to dig the coal at a fixed price per one hundred bushels of lump coal remaining in the screen after screening; that the rate to be paid and the manner of ascertaining the amount of coal to be paid for by defendant were known to the prosecutor and all other persons employed at said mire at the time of their employment, and were agreed to and accepted by the prosecutor and other employees at the time of their employment. These circumstances constituted a contract between the prosecutor and defendant to continue so long as the same proved to be mutually agreeable, and was binding on both. But notwithstanding the contract which existed between the prosecutor and defendant, which we must presume was mutually advantageous and satisfactory to both, the act of assembly under which this indictment is drawn says to the prosecutor, you must terminate the existing contract with your employer and thereafter accept payment for the coal mined by you upon a different basis altogether, that the defendant must pay for the prosecutor’s labor upon that new basis, without regard to whether the same is satisfactory or not to the parties, and if the defendant refuses to accede to the new basis, the law says he shall be guilty of a misdemeanor, and upon conviction, be fined or imprisoned or both.</p> <p>The provisions of this act are unjust to both the employer and employee. They substantially prohibit both from exercising their constitutional rights to contract with regard to their own affairs. No matter how advantageous a contract, the miner may be able to make for himself to dig coal and receive payment for his labor upon a basis of the amount of screened coal mined, this act prevents the making of such a contract, by providing that the employer shall be criminally liable should he enter into such an agreement. The act is an attempt to deprive experienced persons who are familiar with all the details incident to the conducting and carrying on of a particular business from exercising their judgment as to what is best for their mutual advantage, and substitutes therefor the judgment of the members of the general assembly, a very small portion of whom have any knowledge or experience concerning that business. The members of the legislature were no doubt sincere and expected the act to benefit all persons engaged in mining bituminous coal for a living; on the contrary, however, the act is a reflection upon the intelligence of all men engaged in that business, and in addition thereto it attempts to deprive them of their liberty. We say liberty, because liberty includes the right to make contracts, and to acquire and enjoy property. Labor is property, and every laboring man has the indefeasible right to enter into any contract for the sale of his labor that in his opinion will be the most advantageous and remunerative to himself, provided he- does not infringe upon the rights of others in so doing. The language of the Supreme Court, in passing upon what was known as the “Store Order Bill,” is applicable to this case. There the court said: “The first, second, third and fourth sections of the Act of June 29,1881, P. L. 148 (Store Order Act), are utterly unconstitutional and void in as much as by them au attempt has been made by the legislature to do what hi this country cannot be done; that is, prevent persons who are sui juris from making their own contracts. The act is an infringement alike of the rights of the employer and employee; more than this, it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States. He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell bis iron or coal, and any and every law that proposes to prevent him from so doing, is an infringement of his constitutional privileges, and consequently vicious and void:” Godcharles v. Wigeman, 113 Pa. 431.</p> <p>In State v. Loomis, 115 Mo. 307, 319, in passing upon a “Store Order Bill,” which was declared unconstitutional, the court says: “Liberty, as we have seen, includes the right to acquire property, and that means and includes the right to make and enforce contracts. . . . The constitutional declaration that no person shall be deprived of life, liberty or property without due process of law, was designed to protect and preserve their existing rights against arbitrary executive and judicial acts. The sections of our statute in question deprive a class of persons of the right to make and enforce ordinary .contracts, and they introduce a system of state paternalism which is at war with the fundamental principles of our government.”</p> <p>And in State v. Goodwill, 33 W. Va. 179, the Supreme Court says: “The right to use, buy and sell property, including contracts of labor, which is, as we have seen, property, is protected by the constitution.”</p> <p>In Ramsey v. The People, 142 Ill. 380, the Supreme Court of that state declared an' act almost similar in terms to the one now in question, unconstitutional. The Illinois act made it unlawful for any mine owner whose miners are paid upon a basis of the quantity of coal each shall mine and deliver to said employer, to take any portion of the same by any process of screening, or by any other device, without fully accounting for and crediting the same to the miner from whose output such portion is screened or taken. The court says: “In all other kinds of business involving the employment of labor, the employer and employee are left free to fix by contract the amount of wages to be paid, and the mode by which such wages shall be ascertained and computed. This is justly regarded as a very important right vitally affecting the interests of both parties. To the extent to which it is abridged a property right is taken away. There is nothing in the business of coal mining which renders either the employer or employee less capable of contracting in respect to wages, than in any of the other numerous branches of business in which laborers are employed under analogous conditions. . . . Upon what principle then can those engaged in coal mining be singled out and subjected to restriction of their power to contract as to wages, while those engaged in all other classes of business are left entirely free to contract as they see fit? We think the attempt of the legislature to impose such restriction is clearly repugnant to the constitutional limitations which provide that no person shall be deprived of life, liberty or property without due process of law, and is, therefore, void.”</p> <p>A bill similar to the act in question in this case was presented to the Colorado legislature, and was referred to the Supreme Court of that state for an opinion as to its constitutionality. In reply to the legislature’s request the Court said: “ In so far as the bill attempts to abridge the right of contract between parties in regard to matters personal to themselves, and to deprive them of the power to fix the mode in which compensation for mining coal shall be ascertained, it is clearly an infringement of the constitutional guaranty that no man shall be deprived of life, liberty or property without due process of law: ” In re House Bill No. 208, 21 Colo. 27.</p> <p>There can be no doubt but the legislature may regulate the business of mining coal, so as to secure the safety and health of the miners, but that is not the object of the act in question. In this act they have singled out persons who are engaged in mining bituminous coal, and said to them, you cannot contract for your labor except in the manner provided by the act, any other manner being unlawful. The mechanic, glassworker, iron and steelworker, clerk or salesman, may each contract with his employer upon such terms and conditions as he deems for his best advantage, but the man who mines bituminous coal for a livelihood must contract only in the manner provided by the act of July 15,1897, as that act prohibits him from selling his labor in any other way, no matter what advantages a contract with different conditions would bring him. It will not do to say the act simply regulates wages; it does not do so; -it denies to miners of bituminous coal the right to make and enforce an ordinary contract, a right which is possessed and exercised by every other class of workmen.</p> <p>After carefully examining the act and the decisions of our courts bearing upon it, we are clearly of the opinion that the act of July 15, 1897, under which the indictment in this case is drawn, conflicts with the provisions of the constitution referred to in the first and second objections of defendant above quoted, and is therefore void. In view of the conclusion reached in the consideration of the first two objections, we deem it unnecessary to consider the others.</p> <p>The act being unconstitutional, there can be no valid indictment founded upon it; therefore, a verdict of not guilty is now entered on the special verdict, and the defendant discharged. Plaintiff appealed.</p> <p>Errors assigned were (1) in declaring the act of assembly approved the 15th day of July, A. D. 1897, unconstitutional and void. (2) In sustaining the first objection of the defendant, because it conflicts with the constitution, article 1, section 9, of the Bill of Rights. “ Nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.” (8) In sustaining the second objection of the defendant to said act, because it conflicts with article 1, section 1 of the Bill of Rights. “All men are born equally free and independent, and have certain inherent and. indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” (4) In not entering judgment of guilty upon the special verdict found by the jury.</p>

<p>Appeal, No. 166, April T., 1898, by Martba A. Stevenson, from order of Q. S. Washington Co., May Roads, No. 2, 1896, discharging rule to lift confirruatiou and file exceptions nunc pro tnnc.</p> <p>Rule to lift confirmation and file excéptions nunc pro tunc. Before McIlvaihe, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court discharged the rule to lift confirmation and file exceptions nunc pro tunc, and M. A. Stevenson appealed.</p> <p>Errors assigned were (1) in discharging the rule, reciting same. (2) In not allowing petitioner to file her exceptions nunc pro tunc. (3) In making the following decree: “ And now, January 24, 1898, the court being satisfied that at August sessions, 1896, when the report of viewers in this case came before it for approval, the court orally directed the clerk to enter a decree approving the report and fixing the breadth of the road at fifty feet, but a question being now raised as to whether the record as made up by the clerk sufficiently shows the action of the court fixing the breadth of said road, it is ordered and decreed (to the end that the record may be made to show fully and correctly what the court actually did in the premises), that the docket entry made by the clerk of the action of the court at August term, 1896, be and the same is amended nunc pro tunc, so as to read as follows: August term, 1896, report of viewers approved and the road directed to be opened of the breadth of fifty feet.”</p>

<p>Trespass for illegal sale by sheriff — Tille to goods sold — Shifting burden of proof — Province of court and jury — Evidence.</p> <p>Where, in an action against the sheriff for an illegal sale, the plaintiff derives title from a judicial sale, the record of which is put, in evidence, the burden of proof is then cast upon the sheriff, but when the goods in dispute, seized in defendant’s possession, are' not identical with those covered by such judicial sale the burden is cast upon the plaintiff to show that the actual goods, sold by the sheriff had been acquired in the course of a business carried on by the defendant in the execution as agent for plaintiff and for his, plaintiff’s, benefit. This involves a mixed question of law and fact which should be submitted to the .jury with appropriate instructions, and facts and circumstances relevant thereto are admissible in evidence, but the validity of the .judicial sale cannot be attacked in the proceedings against the sheriff.</p> <p>Question for jury — Presumption from, exclusive possession — Credibility of witnesses.</p> <p>Prima facie presumption, arising from exclusive possession, by defendant in execution, of goods levied upon by sheriff must be overcome by affirmative evidence; and even though the witnesses of plaintiff, in an action of trespass against sheriff, testify to all facts necessary to establish his ownership, yet, as his case depends upon their credibility, the question must in general be submitted to the jury.</p> <p>Trespass — Wrongful sale by sheriff — Estoppel—Inference from exclusive possession — Burden of proof.</p> <p>Where the sheriff levies upon and sells the goods of B. upon an execution against R., the former may maintain an action of trespass without proof of other facts; to escape liability the sheriff must show that the real owner is estopped by some action of omission or commission; but where the goods were in the possession of the defendant in the execution, and the possession was apparently exclusive, the burden of proving ownership is, of course, cast upon the plaintiff in the action of trespass.</p>

<p>Appeals, Nos. 19 and 20, March T., 1898, respectively made by Huntingdon County and Mifflin County to the decrees of Q. S. Mifflin Co,, April Sess., 1897, No. 37, and to the decree of Q. S. Huntingdon Co., September Sess., 1895, No. 6, refusing and approving the report of commissioners appointed under the Act of April 17, 1876, P. L. 42, and the supplement thereto of May 22,1895, P. L. 97, to survey and mark the dividing line between the counties of Huntingdon and Mifflin, lying between the Centre county line and'the Juniata river.</p> <p>Exceptions to report of boundary commissioners.</p> <p>It appears from the record that the report of the boundary commissioners appointed to designate, survey and mark that part of the line between the counties of Huntingdon and Mifflin lying between the Centre county line and the Juniata river, was filed in the court of quarter sessions, Huntingdon county, and was heard on exceptions to report of commissioners, before Stewart, P. J., of the 39th judicial district, specially presiding, who approved the report and dismissed the exceptions in an opinion reported in 6 Dist. Rep. 712.</p> <p>The report was subsequently filed as of April sessions, 1897, No. 87, in the court of quarter sessions of Mifflin county, and a petition filed asking for its approval, and on June 30, 1897, the associate judges filed the following decree of the court:</p> <p>“And now, to wit: June 30,1897, the report of the commissioners appointed to run and mark the county line between the counties of Huntingdon and Mifflin, pursuant to the act of assembly approved April 17, 1876, and its supplement of the 22d day of May, 1895, having been presented to the court of quarter sessions of Mifflin county, on due consideration thereof, the said court hereby refuses to approve said report and declines to order the same to be recorded.”</p> <p>Bailey, P. J., filed the following dissenting opinion:</p> <p>“ Now, June 30,1897, exceptions to the report above referred to, having been filed in Huntingdon county, when, after a full hearing, they were overruled by Hon. Johh Stewart, P. J., of the 39th judicial district, specially presiding, and the report approved and ordered to be recorded; the same report being now presented for approval in Mifflin county and no exceptions having been filed to its approval here, I cannot concur in the decree of my associates refusing to approve said report and in declining to order it to be filed.”</p> <p>Huntingdon county appealed from the judgment and decree of the court of quarter sessions of Mifflin county refusing to approve the report of the commissioners, and Mifflin county appealed from the judgment and decree of the court of quarter sessions of Huntingdon county approving the report of the commissioners and directing the same to be filed.</p> <p>Both appeals were argued together before the Superior Court.</p> <p>In No. 19, March term, 1898, Huntingdon County’s Appeal, the following error was assigned: The court erred in making the decree refusing to approve the report of the commissioners, reciting same.</p> <p>In No. 20, March term, 1898, Mifflin County’s Appeal, the following exceptions were filed on behalf of Mifflin county: 1. The court erred in dismissing the first exception filed to the report of the commissioners, to wit: the act of assembly under which the said line was run and report made is unconstitutional. 2, 3. In dismissing exceptions to the report of the commissioners which attacked the conduct of the commissioners and the integrity of the line reported by them.</p>

<p>Equity jurisdiction — Bill to remove cloud on title.</p> <p>The courts of Pennsylvania have adopted and recognized the equity jurisdiction to remove clouds upon title as fully and as broadly as it is described in the equity text-books and decisions. The rule may bo stated as follows: Whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over the title or interest of the owner and he cannot immediately protect or maintain his right by any course or proceeding at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled or by making any other decree which justice or the rights of the parties may require.</p> <p>A bill, quia timet, having been filed, praying for the extinction of certain ground rent, the court having found as facts, an apportionment of the ground rent by an agreement, understood by both parties; that plaintiffs were in possession ; that they could not maintain a suit at law against defendants; that parties having knowledge of the transaction were few; and that a few years may make proof difficult or impossible aud that a cloud existed on plaintiffs’ title — such findings warranted a decree declaring the ground rents extinct and it was error to dismiss the bill for want of jurisdiction.</p>

<p>Appeal, No. 4, March T., 1898, by defendant, from judgment of C. P. Lebanon Co., Sept. T., 1895, No. 170, on verdict for plaintiff.</p> <p>Trespass for breach of promise of marriage. Before SlMONTON, P. J., of the 12th judicial district, specially presiding.</p> <p>The facts, sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned among others were (1) to portions of the judge’s charge, as follows: “The plaintiff, as you remember, testifies that he did make a second promise sometime in 1890,1 think, and that he said at that time that he had gotten his age. If he did make such a promise and did say that, and if he was of age at that time, then the promise would be binding. He denies that he made any promise at all at any time, and you will have to, determine that question also, whether he did make any promise; but if he did and at the time he made the second promise he was of age, then the promise would be binding, and if you find that he said what the plaintiff testifies to, that he was of age at that time, that would be evidence for you to consider on the question of whether he was or not. He testifies that he was not of age and his father testifies to that, and they fix the date when he was born. They testify that he was born in 1871. If he was born at that time then he would not have been of age in 1890. , He of course don’t know when he was born except as he heard it from others. He is a competent witness to testify on that point, but a person’s own testimony as to his age, of course, is based upon information and repute in the family that that is the time of his birth. That is all he knows about it. The father might know when he was bom. The father might be mistaken as to when he was born. The mother would probably be more likely to know than the father. The mother is not here to testify and we do not know anything from her. A record made at the time or a family record kept would be very good evidence on a question of that kind. We have no such record produced here and we do not know whether there is such a record or not. We have no evidence as to whether or not this family keeps a record of the births and the time of the births of the children. There is nothing on that point. We have the testimony of the son, the defendant, and his father, and you are to consider it and give it such weight as you think proper, and you are to determine from that whether the defendant has satisfied you, by the weight of the evidence, that he was a minor at the time his last promise was made.” The particular error complained of in this assignment being that the part of the charge quoted is one-sided and prejudicial to the defendant, in that it tends to belittle the evidence of the defendant on the subject of the defendant’s age, while it presents tbe meager evidence of the plaintiff on the same subject in its strongest possible light. (6) In charging the jury as follows : “ There is one thing that I think it is fair to speak of in connection with the testimony of this defendant and of his father. Questions were asked them with respect to the behavior of this plaintiff with another man and a name was mentioned and they said they knew nothing about it. That, I think, did not go to the credit, and is not very creditable for these defendants. They have brought no witness to substantiate anything of that kind. They have insinuated here that this girl was a girl of bad behavior; they have not offered a spark of evidence to substantiate that, and when parties traduce, practically, the character of another party by insinuations which they bring no evidence to support, the jury have a right to take notice of it, and it is proper that the court should call the attention of the jury to it. The defendant testified that his mother had seen certain things in that connection. The mother is not here to testify to it and it is not competent evidence as coining from him. If the mother saw those things and they intended to introduce that, the thing for them to do was to bring the witness who did see them, to bring her here to testify; and the fact that they make those insinuations and mention the person with whom they say her ill conduct was, and mention the person who they say saw that conduct, and do not bring either of them here, is a matter that the jury have a right to think of. You are to give it whatever weight you think is right and proper. Our duty is simply to call your attention to it.” (7) In charging the jury as follows: “You are to give it whatever weight you think is right and proper. Our duty is simply to call 3rour attention to it.”</p>

<p>Appeal, No. 104, Oct. T., 1897, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1893, No. 537, M. L. D., on verdict for plaintiff.</p> <p>Sci. fa. sur mechanic’s lien. Before Fihletter, P. J.</p> <p>It appears from the record that this was an action of scire facias upon an apportioned mechanic’s claim filed against six adjoining houses on the north side of Scott street. The defendant took a rule to show cause why the lien should not be stricken off, the court gave claimant leave to amend his bill of particulars and upon filing the amended bill of particulars, discharged the rule to strike off the lien. Scire facias were issued upon two of the apportioned liens, to which defendant filed an affidavit of defense. Pleas were afterward filed by defendant and the case was put at issue, it being agreed at the trial that the claims as to all the six houses should be considered as on trial and a verdict rendered as to all of them.</p> <p>Verdict and judgment for plaintiff for $220.01. Defendant appealed.</p> <p>Errors assigned were (1) to the admission of plaintiff’s testimony as to items of work done and materials furnished, alleging that such evidence was at variance with the lien filed. (2) In allowing the plaintiff to testify as to work done for an operation which included six adjoining houses on one street and another house not adjoining the six houses and on an entirely different and separate street, and in refusing to strike out such testimony. (3) In permitting the plaintiff to give testimony as to items of extra work and materials alleged to have been furnished to the six buildings against which the lien in question was filed. (4) Allowing plaintiff to offer the lien with its amendments in evidence against the objection of defendant. (5) In refusing defendant’s first point, which point is as follows : “ 1. The claim filed showing that the work and materials were furnished under and in pursuance of a special agreement made between the principal contractor and the plaintiff, and not specifying the items of work done and materials furnished, the charge is a lumping charge, the claim is fatally defective and not in accordance with the requirements of the statute. The verdict must therefore be for the defendant, Kolb.” (6) In refusing defendant’s second point, which point is as follows: “ 2. The plaintiff is not entitled to recover against the owner for work done or materials furnished, unless the time of doing the work or furnishing the materials is specifically set forth in the claim, and the kind of work and materials set fortín” (7) In refusing defendant’s third point, which point is as follows : “3. The claim in this case being for work and materials furnished to two different operations, and it appearing that the claim in suit is the apportionment of an apportionment, the verdict must be for the defendant.” (8) In refusing defendant’s fourth point, which is as follows: “ 4. Under all the evidence in the case, the verdict must be for the defendant.” (9) In discharging defendant’s rule to strike off lien.</p>

<p>Appeal, No. 36, April T., 1898, by Heilman Bros., from judgment of C. P. Armstrong Co., June T., 1896, No. 205, on verdict for defendant.</p> <p>Assumpsit. Before Rayburh, P. J.</p> <p>It appears from the evidence that this suit was brought on a contract for work done. The evidence disclosed a dispute as to yrhat was the contract and what amount was due under it, the difference between the amount claimed by the plaintiff and the amount already paid under what defendant alleged to be the contract being $394.82. The jury found a verdict for defendant. Plaintiff appealed.</p> <p>¡Errors assigned among others were (1) in refusing the plaintiff’s first point, which point is as follows: “ 1. The undisputed evidence being that Samuel Hunter, the plaintiff, presented to the defendant a written proposition of the work which he proposed to do, together with a plan showing the exterior work. That this proposition and plan were received by the defendant and retained by him until after the completion of the work. That Samuel Hunter was employed by the defendant to make certain alterations and improvements in and about his residence, of the kind and character stated in the proposition. The jury are therefore instructed, that the covenants to be performed by Samuel Hunter were reduced to writing, and cannot be altered or changed, except it be shown that there was fraud, accident or mistake.” (2) In its answer to the plaintiff’s second point, which point and answer are as follows: “ 2. That there is no evidence in the case that there is in the written proposition submitted, any fraud, accident or mistake, and the defendant is .bound by the written propo'sition. Answer: That point is refused. We say to you gentlemen, in this case it is for you to say which of these parties is telling the truth as to what the-contract was. Now, if the contract was as Samuel Hunter says it was, and this work is extra, he is entitled to recover for the extra work; but if the contract is as Dr. Trout and Mrs. Trout say, then they are not entitled to recover, because they testify that there was no extra work, that the contract was for $750 for doing the work as it stands upon the house now.” (3) In its answer to the plaintiffs’ fourth point, which point and answer are as follows: “ 4. If the jury find that the exterior walls of the house as shown in Exhibit ‘ C ’ disclose no evidence of a crack or break in the wall in the front of the house, that this photograph was taken in the fall of 1896, at least a year after the completion of the work, it is evidence that the plaintiff delivered to the defendant the house completed according to contract, and the jury may consider this as evidence on the part of the plaintiff going to contradict the defendant’s testimony relative to the careless or negligent execution of the contract. In answer to that we say: You take the photograph that is offered in evidence, and also the evidence on the part of the defendant as to the manner in which the work was done, and the condition of the house.” (5) In answer to plaintiff’s sixth point, which point and answer are as follows: “ 6. Contracts may be part in writing and part in parol, and may also be gathered from different and detached written instruments. In the present case the covenants undertaken by the plaintiff, are found reduced to writing in the proposition marked Exhibit ‘ B.’ That the allegation by the defendant of the existence of another or different draft without attempting by evidence to reproduce the same or satisfactorily account for its absence, is not sufficient to overthrow the draft shown in evidence and marked Exhibit ‘B.’ Answer: That point is refused. You have this draft in evidence, and you have the evidence of Dr. Trout as to the existence of another draft.” (6) In answer to plaintiff’s seventh point, which point and answer are as follows: “ 7. The defendant having received the proposition in writing made by Samuel Hunter, and signed by him, together with the draft marked Exhibit ‘ B ’ and having subsequently allowed the plaintiff to perform the work mentioned in the proposition, cannot now repudiate the same as the. contract binding upon the plaintiff and the defendant, although not signed by the defendant. Answer: That point is refused. But if you find that that contract, or alleged contract, that was offered here in evidence was the contract, between the parties,then the plaintiff would be entitled to recover.” (7, 8) Alleging error in the charge in that it was inadequate.</p>

<p>Appeal, No. 198, April T., 1898, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1897, No. 437, on verdict for defendant.</p> <p>Sci. fa. sur municipal claim for $149, and penalty of twenty per cent. Before Kennedy, P. J.</p> <p>The facts sufficiently appear from the opinion, of the court below refusing a new trial.</p> <p>There seem to be many irregularities in the proceedings upon which this action is based, some of which render the lien void and are fatal to plaintiff’s recovery.</p> <p>The claim is for the cost of the improvement of Clinton avenue in the borough of Oakdale (plaintiff). Long prior (more than twenty-one years) to the organization of this borough a township road ran through the territory now included within the limits of the borough. In the year 1896 an ordinance was passed by council providing for this improvement, but no plan of streets and alleys was ever adopted by the council of said borough. A general plan, it is true, was offered in evidence, but it was not claimed that it had ever been properly adopted by council, its record showing only that it had been acknowledged by the burgess of the borough. Without, therefore having any proper legislation providing for the location of Clinton avenue and fixing the grade thereof, the borough undertook this improvement, locating it partly on the old public road mentioned, but in places deviating therefrom, encroaching on the property of defendant here, and moving it away there, so that a space intervened between the property of defendant, and the line of the street as newly located, and changing the grade from the natural grade or that of the road as used for so long time as named, in places to the extent of a foot or more.</p> <p>The ordinance providing for this improvement was passed June 10, 1896, and required the owners of abutting property to do the work and in case of their refusal or neglect to do it after proper notice to property owners, the work should be done by the borough, but at their cost. It appears that on the 27th of June, 1896, without giving defendant proper notice, the borough entered into a contract with one W. H. Roberts for the doing of this work, the cost of which is here sought to be collected from defendant. No ordinance or other proper legislation was passed authorizing the making of this contract or the doing of this work.</p> <p>The failure on the part of plaintiff to adopt proper legislation locating the avenue to be improved, establishing its grade, etc., the failure also to give the notice required by the ordinance to be given defendant and having his refusal before proceeding with the work, the failure also to have the contract under which the work was done, authorized by proper ordinance of council, seem to be such irregularities and defects as will defeat any recovery in this case. Other defects and irregularities have been suggested on behalf of defendant, but it is unnecessary to consider them here, as those mentioned are sufficient for the disposition of the question before us. The affidavit of defense avers that the plaintiff has never complied with the law under which it was organized in that it has never recorded in the proper office its petition or application for incorporation as required by law, but the question thus suggested was not raised on the trial of the case, and we were not asked to pass upon it.</p> <p>For the reasons hereinbefore given the rule in this case must be discharged and a new trial refused. It is so ordered.</p> <p>The court below directed a verdict for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) in giving binding instructions for defendant. (2) In refusing to admit in evidence the general plan of the borough, marked plan of Oakdale borough.</p>

<p>Appeals — To justify reversal record must show material error.</p> <p>To justify a reversal of a judgment after a trial, it must be made apparent from the record, not only that error has been committed but that it materially prejudiced the rights of the party complaining.</p>

Appeal, No. 136, April Term, 1898, by plaintiff, from judgment of C. P. Beaver Co., Dec. T.„ 1895, No. 331, on verdict for plaintiff. Trespass. Before Craweord, P. J., of the 13th judicial district, specially presiding.

<p>Evidence — Stating objections to admission waives those not stated.</p> <p>Where a party opposing the admission of evidence enumerates his objections, all that are not enumerated are waived.</p> <p>Contract — Cause of action — Question of fact.</p> <p>Evidence disclosed a judgment on a mortgage including costs and commissions and a sheriff’s sale to the mortgagee; the mortgagor sued the mortgagee on an agreement to waive the cost, etc., if the mortgagee, u^ayitiff, procured a purchaser for the property for face of debt and interest. Held, that the evidence disclosed facts and circumstances from which a valid contract could be inferred and that a good cause of action was made out. The question was one purely of fact for the jury.</p> <p>Practice, C. P. — Trial on merits — Pleading—Demurrer—Verdict.</p> <p>A case having been submitted by Lhe parties on the testimony touching the merits of the plaintiff’s claim and given to the jury on that testimony with suitable instructions, it is too late to object on appeal to the declaration, on the ground of informality or inadequacy; this should have been done in the established way by demurrer. In the case at bar the issue as joined required proof of a defectively stated contract, and, after a trial on the merits, omissions in the declaration will not defeat the verdict.</p>

<p>Appeal, No. 26, Jan. T., 1898, by-defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1896, No. 930, on verdict for plaintiff.</p> <p>Smith and Orlady, JJ., dissent.</p> <p>Trespass. Before Searle, P. J., of the 34th judicial district, specially presiding.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $850. Defendant appealed.</p> <p>Error assigned among others was refusal of binding instructions for defendant.</p>

<p>Contracts — Family settlements favored.</p> <p>All compromises and settlements by families are maintained not only as beneficial to themselves but the law seeks to sustain them as conducing to peace and harmony where they ought most especially to exist.</p> <p>Contract — Family settlement— Consideration — Evidence of •payment-statute of limitation.</p> <p>Certain mortgages were given by defendant to his brothers and sisters in settlement and division of their father’s estate and, subsequently, by a parol family agreement it was agreed that a credit was to be allowed to defendant on each mortgage for services rendered to their father by defendant. Held, that if the agreement was made there was a good consideration ; that the credit was equivalent to a payment on the mortgage; that a bond showing payments under the alleged family settlement, to others of mortgagees was admissible as part of the res gestas; and that the statute of limitations did not apply inasmuch as it was not an agreement to pay but an acknowledgment of payment on account of the mortgage.</p>

<p>Family relationship — Wages—Contract—Province of court and jury.</p> <p>Where a person is received into a family as a member of such family and not as a servant, as an object of charity and not as a hireling, the relation is never changed by legal implication into a relation giving a right to wages.</p> <p>When, however, there is evidence tending to show a promise to pay claimant, “for all she did,” then the question of the relation which plaintiff and defendant sustained to each other becomes a question of fact which comes within the province of the jury.</p>

<p>Malicious prosecution — Proof of malice and probable cause essential.</p> <p>Malice and want of probable cause must be proved in order to entitle a plaintiff to recover damages for a malicious prosecution. These are essential and must coexist.</p> <p>Evidence — Want of probable cause, when inferred — Burden of proof.</p> <p>The lawful discharge of the defendant in the prosecution by the examining magistrate, is prima facie evidence of want of probable cause, and the burden of proof that there was probable cause, as a general rule, is then cast upon the defendant in the action.</p> <p>Evidence — Test of probable cause — Reasonable belief.</p> <p>The question whether or not there was probable cause does not depend on the actual state of the case in point of fact. The test is the prosecutor’s belief of its existence, based, however, upon reasonable grounds.</p> <p>Malicious prosecution — Theoretical malice — Inference of fact — Question for jury.</p> <p>Something more than theoretical malice is requisite to sustain an action for malicious prosecution ; it must be proved as a fact, and while it may be inferred from want of probable cause its existence is for the jury.</p> <p>Malicious prosecution — Evidence—Rebuttal of inference of malice— Gharge of court.</p> <p>When there is evidence which, if believed, would rebut the inference of malice it is error to tell the jury that if there was not probable cause they must find for the plaintiff and that the defendant must show such conduct on the part of the accused as would warrant an ordinarily prudent man in believing that accused was guilty of the offense charged. The defendant may fail to show such conduct on the part of the plaintiff and he may show that he acted in good faith under advice of counsel.</p>

<p>Appeals — Liquor law — Findings of quarter sessions on negligent sales to minor.</p> <p>The question, arising on application to revoke a license, of respondent’s negligence in sale of liquor to minors was one of fact for the exclusive determination of the court of quarter sessions and its finding is not reviewable on appeal. The appellate court will not review when the record shows that the court below kept within the limits of its jurisdiction and proceeded with regularity according to law.</p>

Appeal, No. 87, April T., 1898, by H. A. Colwell, from judgment of C. P. Armstrong Co., Sept. T., 1893, No. 228, on verdict for defendant. Assumpsit for rent amounting to $306. Before RAYBURN, P. J. The facts sufficiently appear in the opinion of the court. The court below directed a verdict for defendant. Use plaintiff appealed. Error assigned among others was in giving binding instructions for defendant.

<p>Road law — ■Trespass—Res adjudícala.</p> <p>Where proceedings of road viewers have been regularly had and their report confirmed, the legality of such proceedings cannot be raised by a party litigant therein, in an action of trespass arising from the location of the same lines.</p> <p>Road law — Trespass—Damages—Charge of court.</p> <p>There being some evidence of trespass by a city in adjusting the line of a street whicli had been widened, it is proper to submit the case to the jury, but inadvertent reference by the court to the claim as if in some of its aspects it was one for damages for a taking of land for public use is error, as tending to mislead the jury as to their powers in determining the question of fact.</p>

<p>Replevin — Right to possession — Legal title.</p> <p>D., owner and lessor of a piano, assigned his lease to II. in order that he might become surety for PI. in an action of replevin which PI. subsequently brought; just before trial PI. reassigned to D.’s estate. Held, that plaintiff having divested himself of every semblance of right.to possession'was an absolute stranger to the title and verdict was properly directed for defendant.</p> <p>Evidence — Discretion of court — Latitude in cross-examination.</p> <p>The appellate court will not reverse even when the trial judge does not confine cross-examination strictly to matters stated in chief, unless discretion has been abused and it is apparent that the party has been injured.</p>

<p>Replevin — Title of defendant — Gollusive fraud.</p> <p>Where, at the time a writ of replevin was issued, the possession was in the defendant under a title that plaintiff cannot impeach without alleging his own fraud, the rule of law leaves the parties where it finds them.</p>

<p>Appeal, No. 57, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1896, No. 756, refusing to take off nonsuit.</p> <p>Trover and conversion. Before Willson, J.</p> <p>It appears from the evidence that the plaintiff claimed title to certain horses by virtue of a bill of sale executed and delivered by one Jones, who then owned the horses. The horses at that time were in the possession of a third party, one Pettit, of New Jersey, who had a claim upon them for their boarding and pasturage. Plaintiff shortly afterward, as alleged, satisfied Pettit’s claim on the horses by money obtained from plaintiff’s mother upon representations by Jones that the horses belonged to plaintiff. Plaintiff took the horses to Philadelphia a few weeks after the execution and delivery of the bill of sale and put them into Jones’s stable under an alleged arrangement which permitted Jones to use them in his business and winch it was alleged permitted plaintiff also to exercise authority and dominion over them. In June, 1896, plaintiff received a notice from Swope, the defendant in this case, claiming the horses had been purchased by him from Jones. Plaintiff called upon defendant, Swope, and demanded possession of the horses. Swope refused to deliver them although admitting at the time that he did not own the horses. The consideration stated in the bill of sale was $1,200 but on cross-examination plaintiff testified that the real consideration for 'the bill of sale was an indebtedness to him by Jones to the amount of $45.00,- and secondly, that the bill of sale was made to keep the horses away from Jones’ creditors.</p> <p>The court below entered a^ nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Errors assigned were (1) entering nonsuit. (2) Refusing to take off nonsuit.</p>

<p>Decedent's estate — Funeral expenses must be moderate and appropriate.</p> <p>Only such sums will be allowed for funeral expenses as will bear a just, fair and reasonable proportion to the amount of the estate of the decedent and his station in'life. Undertakers take the risk of the estate proving insolvent, in which case, as against creditors, the rule will be strictly enforced. Children,-legatees, distributees and creditors all will be protected against exorbitant and rapacious bills for funeral expenses.</p>

<p>Appeal, No. 61, Oct. T., 1898, by defendants, from judgment of C. P. No. 4, Pbila. Co., Dec. T., 1895, No. 349, on verdict for plaintiff.</p> <p>Assumpsit. Before Willson, J.</p> <p>It appears from tbe record that plaintiff sued defendants upon an executory contract (the text of which is set out in the opinion of the court) for the sale of prunes. It also appears-from the evidence that the carload of prunes arrived in Philadelphia in the first days of October, 1895, when they were rejected by defendants, who alleged that they were not such goods either in quality of condition, as plaintiff was required -under the contract to deliver. The evidence established the following facts: That the prunes tendered were somewhat sandy and gritty, that they were not shipped from California until September 17,1895, while the contract required them to be shipped not earlier than the first day of September nor later than the 15th of the same month, that they arrived in Philadelphia some time in the first days of October, that by a mistake of the plaintiff’s shipping clerk in California, the car containing the prunes intended for the defendants was shipped to V. L. Cavanaugh & Co., and the draft and bill of lading sent to them instead of to the defendants, that at the time of the rejection, and afterwards until suit was brought, the defendants did not know the date when the prunes were actually shipped from California. On the question whether the prunes tendered were of the quality called for by the contract, the evidence was conflicting. Other facts appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $262.49. Defendants appealed.</p> <p>Errors assigned were (1) in allowing the plaintiff to prove by Charles A. Carey and Samuel Cowan that the defendants, after rejecting the car of prunes, subsequently purchased the car from other persons who had purchased it from the plaintiff, and in overruling the defendants’ objections to the following questions: “ (a) To Charles A. Carey: Q. Did not your firm subsequently buy these prunes in question? (Objected to.) The Court: If you propose to follow that by showing that they subsequently bought them as prunes of the grade they undertook to buy from the plaintiff, I think you are entitled to do it. (Objected to. Objection overruled. Exception for defendants.) A. I understand we bought them through other parties. Q. Do you know what you paid for them? A. Four and three quarter cents delivered here. (5) To Samuel Cowan: Q. I believe it was you who subsequently sold the prunes to Thomas Roberts & Co., was it not? (Objected to. Objection overruled. Exception for defendants.) A. Yes, sir; I finally sold them.” (2) In charging the jury: “ So that if you be of the opinion, upon the evidence, that it was a matter of the essence of the contract, that is, a substantial part of the contract, something which the parties contracted for, regarding it as a matter of importance that the prunes should be shipped in the first half of September, and they were not shipped in that period of time, as indeed they were not, then the plaintiffs would fail of their right of recovery for that reason.”</p>

<p>Appeal, No. 137, Oct. T., 1898, by Edward M. Haedrich, from filial order of C. P. No. 3, Phila. Co., June T., 1897, No. 343, refusing rule to vacate judgment and set aside verdict and grant a new trial and permit appellant to intervene as a party defendant.</p> <p>Petition to vacate judgment and to permit petitioner to intervene as a party defendant.</p> <p>It appears from the record that the defendant in the court below was Mrs. F. Y. Haedrich. On January 3, 1898, a verdict was entered in favor of plaintiff for $627.03, and judgment was entered thereon on January 19, 1898. The appellant, Edward M. Haedrich, petitioned the lower court to vacate the judgment, set aside the verdict and grant a new trial and permit him to intervene as a party defendant on the ground tliat the verdict and judgment had been entered illegally and by fraud aud collusion to his injury, and that he was the proper defendant and not his wife, who had been made defendant, and that he had a full and legal defense to the whole claim.</p> <p>The lower court, upon petition, granted on June 30, 1898, a rule to show cause, and on July 11, 1898, entered its final order, discharging said rule. Petitioner appealed.</p> <p>Error assigned among others' was discharging the rule to show cause why the judgment should not be vacated, etc.</p>

Appeal, No. 51, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1895, No. 798, in favor of defendant non obstante veredicto. Trespass. Before Widlsoh, J. It appears from the record that this was an action of trespass brought by plaintiff against defendant, one of the committing magistrates of the city of Philadelphia.

<p>Appeal, No. 124, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1898, No. 82, M. L. D., refusing judgment for part of plaintiff’s claim alleged to be admitted by the affidavit.</p> <p>Sci. fa. sur mechanic’s claim.</p> <p>It appears from the record that an apportioned lien for $158.11 was filed against defendant’s premises upon which a sci. fa. was issued. Defendant filed an affidavit of defense alleging an agreement by which plaintiff was to receive part cash and $1,300 in the equity of a house and alleging that all cash payments with the exception of $80.00 had been made, leaving a balance of $1,300 payable in the equity of the said house, and setting forth that the defendant had been ready to make, execute and deliver to the said claimant a deed for the property to which he was entitled, in accordance with the contract, but that the said claimant though under his contract he was to prepare the title papers and the deed, had never done so, nor had he ever demanded the said house, nor tendered to defendant a deed for the same to be executed by him.</p> <p>Plaintiff then took a rule on defendant to show cause why judgment should not be entered for that amount as to which the court should adjudge the affidavit of defense to be insufficient.</p> <p>The court below discharged plaintiff’s rule for judgment as to the amount as to which the affidavit of defense was alleged insufficient, and plaintiff appealed.</p> <p>Errors assigned were (1) discharging plaintiff’s rule. (2) In not giving judgment for plaintiff in the sum of $250' as to lot No. 1 on the lien.</p>

Appeal, No. 106, Oct. T., 1898, by-plaintiff, from order and decree of C. P. No. 8, Phila. Co., June T., 1892, No. 143, dismissing bill of complaint. Hearing on bill, answer and proofs. Before Fihletter, P. J. It appears from tbe record that the plaintiff obtained a judgment against Robert Ingram for $400 on January 22,1896, and a motion for a new trial and reasons therefore were filed and pending the disposition of this motion defendant died.

<p>Petition by appellee filed, and rule granted to show cause why the penalty in section 21 of the Act of May 19, 1897, P. L. 67, should not be awarded. Appeal by plaintiff from judgment of C. P. No. 4, Phila. County.</p> <p>The petition was as follows:</p> <p>“ 1. The appeal was sued out merely for delay.</p> <p>“ 2. The case was in replevin instituted to recover possession of personal property levied upon for rent under a written lease. That on or about the time the writ was handed to the sheriff, the said appellant admitted in writing that his proceeding was simply for delay, the following being a copy of the letter written by him and offered in evidence at the trial of the cause:</p> <p>“ ‘ Joshua R. Serfass,</p> <p>Attorney at Law, Notary Public.</p> <p>“ ‘Room 701 Girard Building,</p> <p>Philadelphia..</p> <p>“ ‘ Philadelphia, 5/80/96.</p> <p>“ ‘ Mr. Walter Stevenson:</p> <p>“ ‘ Dr Sir: I was compelled, owing to delay in the settlement of my matter that I spoke to you about, to file security for a replevin yesterday to avoid any sale at my home ; this is not done for the purpose of defeating you in the payment of my rent due you, but for ,the reason that I am to be out of town to attend court at Easton, Pa., the coming week & make arrangements for the getting of cash to secure one of your new houses on Berks St., and will then upon my return make all rent due you settled. Hoping you will not look upon me in the least trying to defraud you, but only a creature of circumstances at present, all will be right upon my return next week, and hope you will not disturb my wife’s comfort in the meantime, for she is of very nervous temperment and worries much over such matters.</p> <p>“‘Yours,</p> <p>“ ‘ J. R. Serfass.</p> <p>“Subsequent thereto and prior to the trial appellant made at least a dozen promises at different times, verbally and in writing to pay the rent due and when the case was called for trial in C. P. No. 4, on October 22, 1897, appellant did not appear and allowed the case to go by default. That immediately thereafter he entered a rule for a new trial and to set aside the verdict; this rule was discharged by the court and judgment entered. Immediately thereafter the appeal was taken to this court, to wit: January 24,1898. That no assignments of error were at any time filed and without notice to appellee or his counsel, the said Joshua R. Serfass discontinuing his appeal in this court on the 1st day of October, 1898, receiving the record of said case which has not been returned by him to the court of common pleas.</p> <p>“Petitioner avers that to the best of his knowledge and belief all of said proceedings were taken and still persisted in by the said Joshua R. Serfass, simply for the purpose of preventing this appellee from collecting the money justly due him.”</p> <p>On October 10, 1898, the court granted a rule on appellant to show cause why the prayer of the said petition should not be granted, returnable, October 25, 1898, at 11 o’clock A. M.</p> <p>On October 24, 1898, appellant filed an answer denying that the appeal was taken for delay and setting out that plaintiff’s counsel was absent at the time the case was tried in the court below, being engaged in another court. That appellant was of opinion that under the authority of Crumley v. Lutz, 180 Pa. 476, the court below should have granted a nonsuit, instead of directing a verdict for defendant and that thereupon he took his appeal to this court; that subsequently he became satisfied that he could not sustain his appeal and immediately withdrew said appeal, paid the costs for the same and returned the record to the court below. The answer also set up that the original distraint was excessive, and that nonprofessional advantage had been taken of him as a member of the bar during his professional engagements in another case.</p>

<p>Appeal, No. 91, Oct. T., 1898, by Hiram DeWalt, from judgment of Q. S. Phila. Co., March T., 1898, No. 497, in granting or allowing to be issued retail liquor license to James F. Boyle.</p> <p>Application for retail liquor license. Before Biddle, P. J. and Arnold, P. J.</p> <p>It appears from the record that an application for retail liquor license in the usual form was filed on February 9, 1898. On March 8, 1898, the remonstrance of Hiram DeWalt was filed assigning as reasons that the place was not necessary for the entertainment of strangers or travelers and was not designed or fitted for the entertainment of strangers or travelers, but for the business of selling by retail in small quantities spirituous and intoxicating liquors; that any act of assembly authorizing such a place to be licensed should be adjudged unconstitutional and void. On March 28, a hearing was had on the petition and remonstrance, and on May 2,1898, the petition was granted. Hiram DeWalt appealed.</p> <p>Errors assigned among others were (1) in granting the license. (5) In not holding that the act of assembly entitled “ An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixture thereof,” was unconstitutional.</p>

Appeal, No. 92, Oct. T., 1898, by Law and Order Society et al., from order of Q. S. Pliila. Co., discharging rule to show cause why retail liquor license should not be revoked. Rule to show cause why retail liquor license should not be revoked.

Appeal, No. 17, March T., 1898, by John A. Ritchey et al., from decree of O. C. Franklin Co., in distribution of the estate of John Ritchey, deceased. Exceptions to auditor’s report. Before Swope, P. J., of the •51st judicial district, specially presiding.

Appeal, No. 21, March T., 1898, by-defendant, from sentence of Q. S. Dauphin Co., March Sess., 1897, No. 69, on verdict of guilty. Orlady, J., dissents. Indictment for libel.

<p>Landlord and tenant — Covenants running with land — Assignment of lease.</p> <p>Covenants to pay rent and royalty run with the land and the assignee ol a lease is liable for the payment of all rents and royalties which accrue while he holds the assignment, but not alteran assignment by him.</p> <p>Oil and gas lease — Covenants maturing after assignment by assignee.</p> <p>An assignee of an oil and gas lease is not liable to the lessor upon a covenant of the lessee to drill the well upon the demised premises, when the covenant matures alter he had parted with his interest by assignment to another.</p>

<p>Appeal, No. 3, Oct. T., 1898, by defendant, from judgment of O. P. No. 1, Phila. Co., March T., 1896, No. 35, on verdict for plaintiff.</p> <p>Assumpsit. Before Beégy, J.</p> <p>The facts sufficiently appear from the charge of the court, which is as follows :</p> <p>Gentlemen of the jury: I will try to simplify this matter for you if I can. According to the books of this English firm that sold the plants, there was $2,575.60 due them by the defendant. Now, let one of you jurors take a piece of paper and a pencil for the benefit of all of you — it will help you toward the end. The claim toward the end was $2,575.60, and on that there has been paid $1,815.31, which leaves $750.29, and, if there was nothing more done, there would be a balance due of $755.29; but the defendant says, “ I' have a defense to that or part of that,” and the first thing he presents you is the claim of $195.50. Put that after the $755.29 — that is the price charged for the latanias. He says “I ought not to pay that, or that ought to be deducted from the $755.29, because the latanias were not what I bought — those they sent me were worthless.” Now, about that, the law is just this: That if a man buys a thing, and the seller sends him something else, it is the duty of the man to refuse it and to send it back, or to send for the seller to take it away; or he can do the other thing if he chooses — he can keep it — in which, event he must pay the price of it — not what he agreed to pay for something else, but what that article is really worth. So far as the latanias were concerned, Mr. Craig and his witnesses say those things were not worth anything, as he had to pay the duty before he could get to see them, and that the value of those in the market was not any more than what he paid in duty and freight. If you find those are the facts, you should allow him the $195.50 and deduct it from there. If you find he got just what he bought, and got sick of his bargain afterwards, then he must pay what he agreed to pay — the price he agreed upon when he bought them. The next thing is $175 claimed for the araucarias. The defendant says practically the same thing about that. The law is just the same. If you believe they sent him worthless stuff, out of which he could not get any more money than the duty and freight cost him, you should deduct that. If, on the other hand, you believe they sent him just what he bought, then, of course, he ought to pay for it. The next claim is $76.66, which you can put down for dead and worthless plants. He says he is entitled to a deduction for that on the two bills, because when these shipments were received there were $76.66 worth of dead plants — dead and worthless plants — among them. Is he entitled to any credit for that? What is the law? When a man goes and buys a thing, it becomes his at the store; and ordinarily, if they are handed to a railroad or steamship company, and are injured by the railroad or steamship company, they are responsible — the carrier is responsible, and not the seller. But if, as some of the witnesses have testified here, this damage or injury was caused by reason of the things being improperly packed — in other words, if it was the fault of the plaintiff, Low & Co., that these goods were damaged — this $76.66 should be deducted, otherwise it should not. Now, there is a claim in this $2,570.60, originally made, of $36.06 for costs expended in the employment of some mercantile agency. That, I charge you, should be deducted — that comes off. In addition to that there is an item of $26.66 for protested drafts — that must come off. [This would leave, if you allowed all the claims, the sum of $265.41 still due the plaintiff for plants. To offset that, the defendant says: “We lost the profit on these plants; we lost a profit of $250, which we would have had if we had sold these plants.” I think I will charge you that, under the evidence here, that $250 cannot be allowed. That would leave, if you allowed everything, $265.41; and, if there is anything you have concluded not to allow, it should be added to the $265.41. If jura disallowed them all there would be $729, less the cost of the drafts.]- [1]</p> <p>Verdict and judgment for plaintiff for $674.06. Defendant appealed.</p> <p>Errors assigned were (1) to portions of the judge’s charge, reciting same. (2) In not charging the jury that the seLoff claimed should be allowed.</p>

<p>Appeals — Review of discretion — Refusal to opten judgment — Evidence—■ Contracts — Alteration by parol.</p> <p>A written agreement may be altered oy parol, and, where the ease turns upon whether such alteration was agreed to, the appellate court will not reverse the exercise of the discretion by the court below in refusing to open judgment entered on a mortgage when the testimony of the mortgagor denying the parol alteration is contradicted by three or four witnesses, called by the plaintiff mortgagee, who support it in terms and w'ith positiveness.</p>

Appeal, No. 36, March T., 1898, by plaintiff!, from judgment of C. P. Huntingdon Co., Sept. T., 1896, No. 52, on verdict for defendant. Assumpsit. Before Bailey, P. J. It appears from the record that suit was brought on a lease for “ one C. C. organ, style 905, No. 133843,” valued at $110. The monthly payments were to be $5.00 a month in advance on the 16th of every month and the monthly payments made were to be credited under certain conditions as upon the purchase price.

<p>Poor law- — Appeals—Findings of fact by auditor reversed by the court below.</p> <p>Where the facts, in a pauper settlement case, have been determined by the court on testimony that is so contradictory as to result in different conclusions by the auditor and the trial judge who reviewed him, that these facts would possibly justify a finding in favor of either contention, the appellate court will not reopen the controversy, but will accept the findings of the court.</p> <p>Practice, Superior Court — Appeals—Points of evidence.</p> <p>Assignments of error are irregular which allege as error the refusal of the court of so-called points designated as “ points of evidence,” which specify several facts claimed by plaintiff, which on competent evidence, were determined by the court in favor of defendant.</p> <p>Evidence — Point of evidence defined — Poor law.</p> <p>A point of evidence means whether a witness offered is competent, or whether evidence offered is competent or relevant as tending to prove a fnct material to the issue.</p>

Appeal, No. 106, April T., 1898, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., July T., 1897, No. 545,.on case stated in favor of,defendant. Case stated.