Volume 9 — Pennsylvania Superior Court Reports

Appeal, No. 131, April T., 1898, by-defendants, from judgment of C. P. No. 2, Allegheny Co., April T., 1896, No. 118, on verdict for plaintiffs. Rice, P. J., and Smith, J., dissent. Foreign attachment in assumpsit. Before White, P. J. This action was brought to recover commissions alleged to be due the plaintiffs from the defendants on a sale of 800 tons steel rails which, sale was affected by the plaintiffs as brokers.

Appeal, No. 128, Oct. T., 1897, by defendant, from judgment of C. P. Chester Co., Oct. T., 1896, No. 51, on verdict for plaintiff. Assumpsit. Before Hemphill, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for 1689.71. Defendant appealed.

Appeal, No. 187, April T., 1898, by defendants, from judgment of C.' P. Butler Co., March T., 1897, No. 387, on verdict for plaintiffs. Assumpsit. Before Greer, P. J. It appears from the evidence that plaintiff firm had an oil lease on which a test well was required within a given time or the lease was forfeited unless rental should be paid thereon. Martin met Zahnizer a member of defendant company and agreed with him to take an interest in the lease.

<p>Jurisdiction, Supreme and Superior Courts — Interpretation of mandate of Supreme Court by quarter sessions— Exclusive jurisdiction in Supreme Court.</p> <p>The Supreme Court having reversed the judgments of the Superior Court, reversing a decree of the quarter sessions, and having directed judgments to be entered in .damage cases arising from the vacation of Melon street, upon filing certain releases, the court of quarter sessions entered judgment and the city of Philadelphia appealed. Held, that the exclusive jurisdiction to determine whether or not the court of quarter sessions in entering judgment, has complied with the mandate of the Supreme Court is in that court and that the proper method to obtain a decision of the question is by direct application to the Supreme Court and not by appeal to the Superior Court.</p> <p>Practice, Superior Court — Appeals—Important question certified to Supreme Court — Act of June 24, 1895, P. L. 212.</p> <p>Where questions raised on a motion to quash are so difficult and important as to make it expedient that they should be decided by the Supreme Court, the Superior Court will certify the case upon the questions raised to the Supreme Court under section 10 of the Act of June 24,1895, P. L. 212.</p>

Appeal, No. 202, April T., 1898, by plaintiffs, from order of Q. S. Lawrence Co., June Sess., 1897, No. 41, on case stated in favor of defendant. Appeal by overseers of the poor of Hickory township from the order of two justices of the peace removing two paupers, Alexander Anderson and wife, from the township of Scott to the township of Hickory.

Appeal, No. 121, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1897, No. 86, on verdict for plaintiff. W. W. Pobteb, J., dissents. Trespass. Before Beitleb, J. It appears from the evidence that plaintiff was crossing Haverford College grounds carrying a letter in her hands and defendant’s dog, who was playing near the wife of defendant, ran towards her, barking and jumped up and caught her wrist.

Appeal, No. 117, April T., 1898, by plaintiffs, from judgment of C. P. Butler Co., June T., 1897. No. 12, on verdict for plaintiffs. Assumpsit. Before Greer, P. J. The court below submitted all the questions of fact in controversy between the parties to the jury, but reserved the question of law as to whether plaintiffs could recover, by reason of the contract having been in parol, with the right to enter judgment for the defendant, non obstante veredicto.

Appeal, No. 180, April T., 1898, by defendant, from order of C. P. Westmoreland Co., May T., 1893, No. 726, discharging rule to open judgment. Rice, P. J., dissents. Rule to open judgment, and let defendant into a defense.

Appeal, No. 5, Oct. T„ 1898, by defendant, from judgment of C. P. No. 3, Pbila. Co., Dec. T., 1894, No. 276, on verdict for plaintiff. Assumpsit to recover $438.97, with interest from August 17, 1891.

<p>Appeal, No. 21, Oct. T., 1898, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1897, No. 705, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before tbe court in banc.</p> <p>It appears from tbe record that the use plaintiffs claimed $249.96 with interest thereon from October 24,1896, as assignees of tbe sheriff on a bond given by tbe defendant who was surety on a writ of foreign attachment, said bond being conditioned to “ save harmless and keep indemnified the above named Samuel H. Clement, sheriff, as aforesaid, etc., of and from all manner of suits, etc., that shall or may accrue to him, etc., for and by reason of his executing the said writ; and if the said plaintiff shall and will prosecute said plea against the said defendant with effect according to law, and abide the judgment and award of said court; ” that subsequently said writ of attachment was quashed and said Joshua G. Armstrong, plaintiff, failed to prosecute his action with effect and that by reason of the wrongful issuing of the said writ of attachment use plaintiffs suffered loss and damage, to wit: interest on $1,054.60 amounting to $144.44 and the further sum of $62.25, being the interest on $750, and further, in the sum of $43.27 costs.</p> <p>Defendant filed an affidavit of defense alleging, inter alia, that the bond is conditioned only to secure sheriff from any loss or damage for executing said writ of foreign attachment, and does not extend to the assignees of said Clement; that there is no statute requiring the giving of a bond for the execution of the writ of foreign attachment, or that a bond should be given as security for the payment of damages to the defendant in said attachment; that there is no averment in said statement that said sheriff had levied upon any property other than that of the defendants in said attachment, or that any action had been brought or any recovery had against him by reason of the execution of said writ; that plaintiff cannot recover upon any of the items of claim as set forth in said statement.</p> <p>Judgment for plaintiff for want of a sufficient affidavit of defense for $267.74. Defendant appealed.</p> <p>Error assigned was making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Costs — Writ of capias quashed without special order as to costs — Practice., G. P.</p> <p>An action of trespass commenced by capias was quashed but no ordet relating to costs was made. An execution for costs was issued against Ihe plaintiff which the court below refused to vacate. Held, that in formally refusing to set aside the execution the court decreed, in effect, that plaintiff should pay the costs and that there was no reversible error in so holding.</p> <p>Practice, C. P. — Costs noted by prothonotary — Taxation when nonessential.</p> <p>The long established practice in Philadelphia to allow executions for costs in the first instance, without formal taxation, in certain cases, upon notation upon the record by the prothonotary is sanctioned by the rules of court, contravenes no statute or rule of law, is of great value and convenience, and allows of ample protection from fraud or imposition by an appeal to the court.</p>

<p>Beplevm — Equitable estoppel — Ownership—Question for jury.</p> <p>One of the essentials of an equitable estoppel is, that the conduct or representations of the person to be estopped induced action by the other pai'ty, and where, in an action of replevin, the declarations made by the plaintiff bore not only upon the question of estoppel, but also upon that of ownership, both questions should have been submitted to the jury.</p>

<p>Appeal, No. 34, April T., 1898, by plaintiff, from judgment of C. P. Venango Co., Jan. T., 1897, No. 57, in favor of defendant, non obstante veredicto.</p> <p>Trespass. Before Criswell, J.</p> <p>It appears from tbe record and evidence that an action of trespass was brought against defendant for an illegal distraint of taxes. The jury found the following special verdict :</p> <p>• That the defendant, O. K. Burns, was for the year 1895 constable of the township of Sandy Creek, Venango county; that as such, on or about November 1,1895, he received from the commissioners of said township a duplicate, wherein the plaintiff, William M. Rice, a resident of said township, was charged with cash and delinquent road tax in the sum of $6.06, annexed to which duplicate was -a warrant, signed by D. McRae and B. Dewoody, two of the road commissioners of said township, the said warrant being in the words and form following:</p> <p>“Venango Co., Pa. ). Sandycreek, Tp. (</p> <p>“ To O. K. Burns, Constable. These are to authorize and require you to demand and receive of and from every person named in the annex duplicate of cash and delinquent road tax of Sandycreek Tp. The same where with such person stand charged and pay the same to Harvy Davis Treasure of said township, or his successor in office on or before the first of January, 1896. And if any person shall neglect or refuse to make payment of the amount due by him on demand so made by you, It shall be the duty of you, the Constable a fore said to levy amount by distress and sale of goods and chattle of Cash Tax giving ten days notice of such sale by written or printed hand bills Advertisements and returning the over plus (if any their be) to owner.</p> <p>“ Here fail not</p> <p>“ Given under our hand and seal the</p> <p>(signed) “D. McRae</p> <p>“B. Dewoody “E. C. Pyle.”</p> <p>That in pursuance of said warrant the defendant, in June, 1896, seized, and on July 11th, 1896, sold property of the plaintiff of the value of $26.00, due notice having been given in the form following, to wit:</p> <p>“ collector’s sale.</p> <p>“ There will be exposed to sale by public vendue or outcry, at the house of Wm. Rice, in the township of Sandy Creek Venango County, Pa., on 27th Sat. the 27th day of June, 1896, at 10 o’clock A. M., the following personal property, viz:</p> <p>“ One Two Horse Plow & Set of Bob Sleds.</p> <p>“ Sale adjourned to July 6th 1896, 10 o’clock A. M.</p> <p>“ Taken on warrant for collection of Cash Road Tax assessed in Sandy Creek Tp for the year 1895.</p> <p>“ O. K. Burns, Collector.”</p> <p>To which paper was attached, “ Sale adjourned to July 11th 3 o’clock.”</p> <p>That during the said years the act of assembly of April 9, 1844, entitled “ An act relating to roads, highways and bridges in the counties of Warren, Venango and McKean and for other purposes,” so far as the same relates to the levy and collection of road taxes, was in force in said county of Venango, and in said township. That prior to the seizure and sale of said property the defendant had settled with the township of Sandy Creek as collector of said taxes, and had paid the amount of the taxes charged in the duplicate against the plaintiff, William Rice.</p> <p>If, upon the facts found and the law applicable thereto, the court shall be of the opinion that the plaintiff is entitled to recover, then judgment to be entered for the plaintiff for the value of said property, to wit: the sum of $26.00 and costs. But if the court shall be of the opinion that the plaintiff is not entitled to recover, then judgment to be entered for the defendant, non obstante veredicto.</p> <p>June 7, 1897, judgment entered for defendant against plaintiff non obstante Veredicto. Plaintiff appealed.</p> <p>Errors assigned were (1) in refusing to admit as evidence the minutes of the meeting of the road commissioners of Sandy Creek township, held November 8, 1895, for the purpose of showing the illegality of the attempted levy. (2) In refusing to admit the testimony of H. E. McElhaney’offered for the purpose of showing -that the defendant had knowledge of the illegality of the proceedings of the road commissioners and their attempts to levy the cash road tax for the year 1895, which he was attempting to collect. (3) In entering judgment for defendant non obstante veredicto on the special verdict found by the jury.</p>

<p>Appeal, No. 102, April Term, 1898, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1897, No. 150, on verdict for plaintiff.</p> <p>Trespass. Before McIlvaxne, P. J.</p> <p>The facts sufficiently appear in tbe opinion of the court.</p> <p>Verdict and judgment for plaintiff for $170. Defendant appealed.</p> <p>Errors assigned were in refusing to affirm first, second, third and sixth points of defendant, which points and answers are as follows: “ 1. The plaintiff was bound to the exercise of more than ordinary care and caution since he voluntarily placed himself in a dangerous position when he drove his team upon the bridge. His failure to remain off the bridge to avoid the accident was negligence and the verdict should be for the defendant. Answer: This proposition is refused for the reasons stated in our general charge; it involves some conflict of testimony which is for the jury and not for the court. 2. It is the duty of drivers of private vehicles to give unobstructed passage to electric cars, and the plaintiff being unnecessarily upon the track, took the risk of a collision and was guilty of contributory negligence. Answer: We give substantially the same answer to this proposition as to the first. We cannot say as a matter of law that there was any contributory negligence and have already submitted to you that question under the evidence. 8. If the jury believe the motorman did all in his power to avert the accident there can be no recovery, and the verdict should be for the defendant. Answer: We cannot affirm this proposition unqualifiedly; if you find there was no negligence, as we have defined that term, upon' the part of the defendant company, or upon the part of the motorman who had charge of the car, then undoubtedly there can be no recovery and your verdict ought to be for the defendant. 6. Under all the evidence plaintiff is not entitled to recover and the verdict, therefore, should be for the defendant. Answer: This proposition is refused, as we think it involves questions for you.”</p>

<p>Practice, C. P. — Award of issue when title is denied — Act of 1893.</p> <p>Under the Act of June 10, 1893, P. L. 415, a party in possession is no longer bound to await an attack on his title but may act on the offensive and bring on the battle at once. The court is bound to award an issue when the petition specified by the act sets forth the facts of the claim and right of possession and denial thereof and the verdict on such issue has the force and effect of a verdict in ejectment on an equitable title.</p> <p>Will — Equitable conversion — Reconversion by election.</p> <p>Where equitable conversion of land into personalty is effected by the terms of a will the legal effect of a conveyance to one legatee by the others is to work a reconversion by means of the election of all the other parties to take land instead of money.</p> <p>Attorney and client — Client's rights as affected by attorney's letters.</p> <p>The rights of clients cannot be divested by loose expressions of an attorney where in the nature of things the attorney was not authorized to prejudice the client by such expressions.</p> <p>Title — Recording of deeds — Act of 1893 — Assignment for creditors — Constitutional law.</p> <p>The Act of May 19, 1893, P. L. 108, is constitutional and is effective to change the law, as it stood before, in the matter of recording deeds only in that it reduces the time in which a purchaser must record his deed from six months to ninety days. The failure to record a deed executed and delivered in 1882, does not make it void as to the assignee lor creditors of grantor under a deed of assignment made and recorded in 1893.</p>

<p>Opening judgment — Evidence—Oath against oath — Discretion of court.</p> <p>The legal proposition that, in order to have a judgment opened a prima facie meritorious defense must be established by something more than oath against oath is undoubtedly correct, and if nothing more be shown it is the duty of the court to discharge a rule to open judgment.</p> <p>Petition to open judgment — Presumption in default of answer — Practice, O. P. — Discretion of court.</p> <p>Where no answer is filed to a petition to open judgment, as required by the rules of court, the averments of the petition must be taken as admitted for the purposes of the rule, and the court has a right to make the rule absolute if satisfied with the sufficiency of the petition which is a matter for the discretion of the court below with which discretion as exercised the appellate court will not interfere.</p>

<p>Appeals — Beview—Theory of trial below followed.</p> <p>Where the verdict of the jury establishes the liability of the defendant upon the theory of the case upon which he chose to have it tested he cannot be permitted, on appeal, to change his ground and allege that the case should have been treated in accordance with a view not presented on the trial. Taylor v. Sattler, 6 Pa. Superior Ct. 229, followed.</p> <p> Innkeeper's liability as insurer. </p> <p>An innkeeper, as to articles specified by the Act of May 7,1855. P. L. 479, as commonly and prudently permissible to be retained by a guest in his room, is practically in the position of an insurer.</p> <p>Innkeeper's liability for stolen goods — Quest absent all wight not contributory negligence.</p> <p>Absence all night from a room engaged by a guest at a hotel will not warrant a trial judge in instructing the jury as question of law that such absence was such negligence on the part of the guest, as to bar his right to recover from the innkeeper the value of property stolen from the room. Such absence may under certain circumstances be a fact for the consideration of the jury though standing alone it was more than fair to the defendant to leave it to the consideration of the jury as a possible element of negligence.</p>

Appeal, No. 84, Oct. T., 1897, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1894, No. 823, on verdict for plaintiff. Assumpsit.

<p>Appeal, No. 162, Oct. T., 1898, by plaintiffs, from decree of C. P. Schuylkill Co., Sept. T., 1898, No. 1, dismissing bill in equity.</p> <p>Rule on bill, answer and replication. Before Pershing, P. J.</p> <p>It appears from the record that the nature of the proceeding was on bill in equity to restrain defendants from fraudulently and forcibly taking possession of the wardenship of the Schuylkill county prison and matronship of the Schuylkill county prison, the possession of said wardenship and matronship being then rightfully in possession of said complainants. A decree was filed dismissing the bill by Pershing, P. J., and is reported in 7 Dist. Rep. 702. Plaintiffs appealed.</p> <p>Error assigned among others was in holding that as there was a remedy by quo warranto there was no jurisdiction in equity and for this reason dismissed' the bill.</p>

<p>Appeal, No. 168, Oct. T., 1898, by Doylestown Distilling Co., from decree of Q. S. Bucks Co., refusing application for distiller’s license.</p> <p>Application for distiller’s license. Before Yerkes, P. J.</p> <p>It appears from the-record that the petition and bond were in the usual form. It appears from the docket entries that an application was filed on April 11,1898, and refused on June 8, 1898. From the minutes it appears that on “ May 9, 1898, the court opened at 10:35 o’clock a. m., Hon. Harman Yerkes, President Judge, on the bench. Eo die. The petition of the Doylestown Distilling Company, Limited, for a distiller’s license argued and c. a. v. June 8, 1898. Court opened at 9:50 o’clock a. m., Harman Yerkes, President Judge, on the bench.” The rule of court is as follows: “ Sec. 2. The court fix the second Monday in May as the time when applications for licenses shall be heard, and the hearing of such applications shall be continued from day to day and for such length of time as may be necessary to dispose of them. Cases may in the discretion of the court be held under advisement or continued for further hearing to some day certain when they shall be entitled to precedence over all other business except such as may be also assigned for the same day.” On June 8, 1898, the court filed the following decree : Now June 8, 1898, the within petition came up, being called in its order, was heard in open court at the time appointed by standing rule, and upon consideration,, ■ of the record and the evidence submitted, together with the present knowledge of the court, respecting the fitness and qualifications of the applicant and of the place; after hearing, and giving due regard to the number and character of the petitioners, the application is refused.</p> <p>Errors assigned were (1) in refusing a license to the Doylestown Distilling Company, Limited, by reason of the court’s failure to comply witli section 2 of the license rules of said court, by which failure the applicant had no hearing. Said court not having fixed any “ day certain ” for a hearing, thereby exercising an arbitrary discretion. (2) In stating its opinion that this petition “ came up being called in its order, was heard in open court at the time appointed by standing rule.” No such hearing was had, but the court simply announced that “ it would be held under advisement,” fixing no time for a hearing as is provided for by the rules of court. (8) In its statement that evidence has been submitted after having by its action refused a hearing and an opportunity to the present evidence. (4) In refusing the license upon the ground of tire “ consideration of the record,” that being not a legal reason. (5) In refusing the license upon the ground of “ the personal knowledge of the court respecting the fitness and qualifications of the applicants,” because the court had no such knowledge. (6) In refusing the license, no hearing having been had. (7) In not approving the bond.</p>

<p>Appeal, No. 6, Oct. T., 1898, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1895, No. 31, on verdict for plaintiff.</p> <p>Assumpsit. Before Brubaker, J.</p> <p>It appears from the evidence that the plaintiff, a member of the society, claimed certain sick benefits, but it was alleged by defendant that when the plaintiff forwarded his premium receipt book to the home office it was discovered that he was not in good standing; that he was six weeks in arrears for dues and had lost his standing in the society until five weeks after he had paid all arrears, which he did not do until later. The court left the question of defendant’s liability to the jury.</p> <p>Verdict and judgment in favor of plaintiff for $16.95. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Criminal law — Conviction on defective count — Appeal.</p> <p>A count in an indictment charging the carrying of a deadly weapon with no averment of concealment or malicious intent is ill pleaded and charges no offense.</p> <p>The record showing conviction on a count charging no offense, although the case was tried as if this count was not involved, the appellate court must reverse because of this defect.</p>

<p>Appeal — Review of discretion in granting postponement — Practice, C. P.</p> <p>Ordinarily the trial of a cause should not be postponed because of the pendency of another suit unless it be pleadable in abatement; but no unbending rule can be laid down, The peculiar circumstances of a case may be such as to justify the court in the exercise of its discretionary powers in postponing the trial for a short time, and unless there has been a clear abuse of discretion the appellate court will not review its action.</p>

Appeal, No. 31, March T., 1898, by plaintiff, from judgment of C. P. Franklin Co., Sept. T., 1896, No. 317, on compulsory nonsuit. Smith, J., dissents. Assumpsit to recover $700, the price of a stone crusher. Before Stewart, P. J. The facts sufficiently appear in the opinion of the court. The court below entered a compulsory nonsuit. Plaintiff appealed. JError assigned was entering a compulsory nonsuit.

Appeal, No. 48, March T., 1898, by Jacob Livingston, from judgment of C. P. Cumberland Co., on verdict for defendant. Assumpsit to recover $456, for maps sold to defendant. Before McClure, P. J., of the 17th judicial district, specially presiding. The facts sufficiently appear in the opinion of the court. Verdict and judgment for defendant. Jacob Livingston, use plaintiff, appealed.

Appeal, No. 71, April T., 1898, by David Shaw, from decree of C. P. No. 2, Allegheny Co., July T., 1897, No. 701, directing that a mandamus should issue. Petition for mandamus. Before Fbazeb., J. The facts sufficiently appear from the opinion of the court. Davis Shaw, burgess, appealed. Error assigned was entering decree directing a writ of man- ■ damns to issue.

Appeal, No. 6, March T., 1898, by defendants, from order of C. P. Huntingdon Co., Sept. T., 1896, No. 97, discharging rule to open judgment. Buie to open judgment.

Appeal, No. 16, Oct. T., 1898, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., June T., 1896, No. 308, on verdict for plaintiffs. Trespass to recover the value of certain goods shipped over defendant railroad. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiffs for $313.71. Plaintiffs appealed.

Appeal, No. 85, Oct. T., 1898, by plaintiff, from order of O. P. No. 8, Phila. Co., March Term, 1897, No. 670, making absolute motion for new trial. Motion for new trial nunc pro tunc. Before the court in banc. It appears from the record that the action was trespass for assault and battery resulting in a verdict for the plaintiff, on January 12, 1898, for 1324. On March 9,1898, execution was issued on the judgment.

<p>Appeal, No. 151, April T., 1898, by defendant, from judgment of O. P. Butler Go., March T., 1898, No. 16, on verdict for plaintiff.</p> <p>Trespass to recover damages for the value of property which plaintiff contends that defendant sold and took from him in the execution of a landlord’s warrant. Before Rayburn, P. J., of the 33d judicial district, specially presiding.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $565. Defendant appealed. .</p> <p>JSJrrors assigned among others were (1) the court in the general charge erred in giving too much weight to the evidence of the plaintiff that he owned all the property claimed. (2) In affirming plaintiff’s third point, which jmint is as follows: “ There is no question of the rights of creditors in this case. If the father emancipated his son James, the plaintiff, and allowed him to do business on his own account, his earnings and the property purchased therewith belonged to him as against the father or his creditors.” (3) In refusing defendant’s first point, which point and answer are as follows: “If the jury believe from the evidence that Lewis Hazlett, the lessee of the demised premises and father of plaintiff, was in arrears for rent to the landlords, F. W. McKee and Melissa P. McKee, they had the right to issue their landlord’s warrant for any rent in arrear and due, and levy upon and sell any personal property found on the premises, not left there in the way of trade, and the property in dispute having been found on said premises, it is immaterial whether the plaintiff was the owner or not, it was liable to be taken for rent due, and the verdict should be for the defendant. Ansiuer: In answer to that point, we say, as defendant did not show an execution of the landlord’s warrant as required by the act of assembly this point is refused,” thereby holding the defendant must show affirmatively, when no objection was raised by plaintiffs ■ in pleadings or evidence that the officer did not do his duty which the law presumes he did. (4) In refusing defendant’s second point, which point and answer are as follows: “ If the jury believe from the evidence the defendant was a constable, in the line of his duty as such, had a regularly issued landlord’s warrant for rent in arrears, he had the right to levy on the personal property found on the demised premises and sell the same to pay the rent due, and in so doing, is guilty of no trespass and the verdict should be for the defendant. Answer: In answer to that point, there not being any appraisement of tbe property by the constable executing, tbe warrant, this point is refused,” thereby holding that when the regularity of the proceeding is not raised by objections of plaintiff, the presumption that an officer does his duty is of no avail, defendant holding the objection should be raised in the pleadings or the evidence somewhere by plaintiffs.</p>

Appeal, No. 173, April T., 1898, by defendant, from judgment of C. P. Beaver Co., June T., 1896, No. 410, on verdict for plaintiff. Trespass for personal injuries. Before Wallace, P. J., of tbe 53d judicial district, specially presiding.

Appeal, No. 108, Oct. T., 1898, by defendant, from order of C. P. No. 3, Pbila. Co., June T., 1897, No. 1083, refusing rule to open judgment. Rule to open judgment. Before McMichael, J. It appears from the record that judgment was entered July 10, 1897 by virtue of a single bill under seal given by defendant to plaintiff for $140.

<p>Mechanic's lien — New construction or alteration — Question for jury. Where a mechanic’s lien contains only an allegation of a new construction, positive allegations in the affidavit of defense that the work was alteration and not new construction, raise a case sufficiently doubtful to require its submission to a jury to determine the character of the construction under proper instructions.</p>

Appeal, No. 39, March T., 1898, by defendant, from judgment of C. P. Juniata Co., April T., 1896, No. 138, on verdict for plaintiff. Assumpsit. Before Lyons, P. J. It appears from the evidence that this action was brought to recover on a $500 risk placed on a dwelling house totally destroyed by fire. There was no dispute as to the fact of its being a total loss.

Appeal No. 111, April T., 1898, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1895, No. 328, on verdict for plaintiff. Sci. fa. sur municipal lien.

Appeal, No. 19, April T., 1898, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1891, No. 61, on verdict for plaintiff. Ejectment. Before Rayburn, P. J. It appears from tbe record and evidence that this was an action of ejectment, brought by plaintiff against defendant to recover a lot of ground thirty-three feet nine inches in width and twenty-six feet six inches in depth, and arises from the following state of facts: On the 31st of May, 1865, Wm.

Appeal, No. 157, April T., 1898, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1892, No. 246, on verdict for plaintiff. Assumpsit on fire insurance policy. Before McCluhg, J. At the trial it appeared from the evidence that plaintiff owned a house in Oakdale and that his father lived in Washington, Penna., and a few days before the date of the policy sent an agent named Hughes to Oakdale to see the son about insurance.

<p>Appeal, No. 79, Oct. T., 1898, by defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1894, No. 337, on verdict for plaintiff.</p> <p>Trespass. Before McMichabl, J.</p> <p>It appeals from the record and evidence that this action of trespass was brought against Michael J. Quinn and John M. Quinn, trading as Michael J. Quinn & Sot), to recover damages for personal injuries to plaintiff caused by the alleged negligent driving of defendants’ servant. There was some evidence tending to show that the trespass for which suit was brought was committed by defendants’ agent wi th wilfulness. There was also some evidence tending to show that JolmM. Quinn at the time of the trespass for which the suit was brought was less than twenty years of age. The jury rendered a verdict for plaintiff and judgment was entered thereon. Writs of fi. fa. and ca. sa. were issued simultaneously. The defendants filed petitions for their discharge under the insolvent laws and gave bond. After hearing, the court dismissed the petition of the defendants for discharge as insolvent debtors. After dismissal of the petitions counsel for defendants in ease of their bond brought defendants to the bar of the court and offered to surrender them into the custody of the court, asking for some formal order which they might show to the keeper of the county jail as authority for the keeping of the said defendants. This order was refused. Rules were then taken to quash the ca. sa. as to Michael J. Quinn and as to John M. Quinn and suit having been brought on the insolvent bond and an affidavit of defense having been filed, the rule for judgment for want of a sufficient affidavit having-been entered, these rules were heard together. The court, after argument, discharged the rule to quash the ca. sa. and made absolute the rule for judgment agaiust the defendants in the action of trespass and Joseph C. Hutchinson as surety. All three defendants appealed.</p> <p>It appears from the stenographer’s certificate that uo exceptions were taken to the charge of the court, and no request was made by counsel to have transcript of the testimony or the charge filed at the time of the trial. The trial judge declined to certify the transcript.</p> <p>Verdict and judgment for plaintiff for $500. Defendants appealed.</p> <p>Errors assigned were (1) in charging the jury as follows: 31 Did Buffler say what the plaintiff said he did? — because if you believe that, it would be evidence that the man Buffler wilfully drove over the colored man who was there, where he seemed to have right to be. If you do not believe that was so, what happened may be susceptible to two constructions, one of which is that the driver was guilty of carelessness, and the other, that he was not .... If he drove carelessly, your verdict should be for the plaintiff. But if he drove as a careful driver should drive, your verdict should be for the defendant. You have got to consider whether Buffler said, ‘Look out, bogie, or I’ll run over you,’ in deciding whether or not the driver was careful under the circumstances. You have got to decide first whether the driver drove wilfully over the plaintiff or whether he did it carelessly.” (2) In charging the jury as follows : “ The question may arise, however, about the responsibility of John M. Quinn, if your verdict shall be for the plaintiff. There. has been no special request for me to charge on that, and I therefore direct you, if you find a verdict against the defendant, to find a verdict against both defendants.” (3) In making the following decree: “ And now, April 4,1898, the petition and petitions of Michael J. Quinn and John M. Quinn for discharge as insolvent debtors are dismissed by the court.” (4) In discharging the rule to quash the ca. sa. (5) In making the rule against Hutchinson for judgment for want of a sufficient affidavit of defense, absolute.</p>

<p>Appeal, No. 182, April T., 1898, by defendants, from judgment of C. P. Westmoreland Co., Aug. T., 1894, No. 1610, on verdict for plaintiff.</p> <p>Assumpsit. Before Doty, P. J.</p> <p>It appears from the record that suit was brought to recover certain assessments alleged to be due on premium note subject to assessment for $625. The plaintiff insured the defendants for the term of five years, the policy having been issued in consideration of such note and a cash premium of $20.83 and a refundable cash deposit of $104.17. By agreement of counsel the case was submitted to the court below for trial upon pleadings filed.</p> <p>Other facts appear in the opinion of the court.</p> <p>The court entered judgment in favor of plaintiff against defendants for $135.96 with interest from February 5,1898. Defendants appealed.</p> <p>Error assigned was as follows: The judgment entered in this case is erroneous.</p>

<p>Appeal, No. 64, Oct. T., 1898, by Black & Meyer, from order of C. P. Clearfield Co., Sept. T., 1897, No. 344, dismissing petition for a feigned issue.</p> <p>Petition for feigned issue. Before Gordon, P. J.</p> <p>It appears from the record that Wile Bros. & Co. had obfcained judgment for $2,940 against Levi Locks, and M. Ruslander had obtained judgment for $840. Black & Meyer, the appellants, had obtained judgment for a balance of $977.97. Hershberg & Garson obtained judgment for a balance of $621.79. Executions were issued on the above judgments which rank in the order named. Petitions for feigned issues were made by Black & Meyer and Hershberg & Garson, rules granted on Wile Bros. & Co. and M. Ruslander, to show cause why the proceeds of sheriff’s sale should not be paid into court, and feigned issues awarded, to determine the rights of the said Wile Bros. & Co. and M: Ruslander, to the proceeds of said sale. Upon these rules evidence was taken, and after hearing, feigned issues refused and rules discharged. Black & Meyer appealed.</p> <p>Errors assigned were (1) in holding “ that there is no evidence of fraud in the giving of the note in question.” (2) In holding that the admissions of M. Wile, one of the plaintiffs, “ were evidently made under a misapprehension of the facts, and were satisfactorily explained.” (3) In refusing to hold that a question of fact was raised under the evidence as to taking judgment for more than was due, and was therefore fraudulent as to junior execution creditors. (4) In refusing to award the feigned issue, and discharging the rule for the same.</p>

<p>Practice, G. P. — Affidavit of defense — Sufficiency.</p> <p>Where the original obligation or cause of action is expressly traversed, with a specific denial of the material parts or essential facts, and the whole tenor of the affidavit is in refutation of the contract set up or cause of action alleged in the plaintiff’s statement, nothing further is necessary to put the plaintiff to proof of his claim before the court and jury.</p>

<p>Justice of pence — Jurisdiction—Reduction of claim In/ mutual dealings.</p> <p>Where the plainlill's claim, however large, 1ms been reduced to or below the statutory standard, by direct paymcnLs or by dealings that amount to or are admitted Lo be actual payments, a justice of the peace has jurisdiction.</p>

Appeal, No. 69, Oct. T., 1898, by defendant, from decree of Q. S. Northumberland Co., May Sess., 1897, No. 1, affirming order of removal. Appeal from order of removal of William M. Fry and family made by two justices of the peace for the county of Northumberland.

<p>Appeal, No. 51, April T., 1899, by-James and Henry JDeniston, from decree of Q. S. Allegheny Co., March Sess., 1898, No. 44, incorporating the borough of Swiss-vale.</p> <p>Petition for the incorporation of the borough of Swissvale. Before Frazer, J.</p> <p>It appears from the record that a petition of a majority of the freeholders of the villages of Swissvale and Hawkins accompanied by a surveyed draft of the territory was presented and filed, praying for the incorporation of the ground therein described by metes and bounds and adjoiners into the borough of Swiss-vale. Exceptions to the incorporation of the borough were filed by James and Henry Deniston. A commissioner was appointed to take testimony. His report was filed, exceptions filed were dismissed and a decree incorporating the borough of Swissvale entered by the court. Exceptions were filed to the final order of the court which were overruled. James and Henry Deniston appealed.</p> <p>Errors assigned were (1) in finding as a fact “that the conditions prescribed by law have been complied with, and that it. is expedient to grant the prayer of the petitioners.” (2) In dismissing the fourth exception filed by exceptants, now appei lants, to the application for the incorporation of said borough of Swissvale, which fourth exception was as follows: “ That due and proper advertisement as required by law of the above proceedings and of the filing of above stated petition has not been made as your exceptant is informed and believes.” The fact being that said petition for incorporation was filed May 6,1898, and the first advertisement was made on May 6, 1898, and the first day of the next term was Monday, June 6, 1898, which if the preceding Sunday be omitted from the calculation left but twenty-nine instead of thirty days’ advertisement prior to the commencement of the next term.</p>

<p>Appeal, No. 219, Oct. T., 1897, by plaintiff, from judgment of Q. S. Schuylkill Co., June T., 1897, No. 1269, on verdict of not guilty.</p> <p>Indictment charging defendant with assuming’ and using the name of veterinary surgeon without a lawful diploma. Second count, assuming the title of veterinary surgeon by filing fraudulent statement. Before Savidgb, P. J.</p> <p>Yerdict of not guilty and judgment thereon. Commonwealth appealed.</p> <p>Mrrors assigned were to portions of the judge’s charge.</p>

<p>Appeal, No. 100, Oct. T., 1898, by defendant, from order of Q. S. Montgomery Co., March Sess., 1898, No. 11, dismissing petition to revoke appointment of viewers and to set aside proceedings to condemn.</p> <p>Petition to revoke appointment of viewers and to set aside proceedings to condemn. Before We and, J.</p> <p>It appears from the record that this motion was made in the matter of the appointment of viewers for condemning land at Valley Forge by the state of Pennsylvania. William M. Stephens filed a petition to revoke the appointment of viewers and set aside the proceedings, alleging certain irregularities in the proceedings, which motion was dismissed, Weand, J., filing an exhaustive opinion. William M. Stephens appealed.</p> <p>Errors assigned were to certain findings of the court touch.ing the merits of the case.</p>

Appeal, No. 44, Oct. T., 1898, by defendant, from judgment of C. P. No. 3, Pbila. Co., March T., 1897, No. 134, on verdict for plaintiff. Assumpsit.

<p>Principal and agent — Authority of agent — Question for jury.</p> <p>The question whether a building committee had full authority to act for a defendant corporation in ordering certain work to be done at a club house is purely one of fact, and having been fairly left to the jury, the appellate court will not disturb the judgment.</p>

<p>Appeal, No. 62, Oct. T., 1898, by defendant, from judgment of C. P. No. 4, Pbila. Co., March T., 1896, No. 199, on a verdict for plaintiff.</p> <p>Trespass. Before Arnold, J.</p> <p>It appears from the evidence that the defendant had sold to one Henry McHugh ten barrels of whisky for which a warehouse receipt was duly issued in the name of Henry McHugh. On March 25, 1895, McHugh pledged the warehouse certificate to the plaintiff, Elder, as part security for a loan of $4,000. Elder, with the consent of McHugh, employed Walsh, a broker, who was without a liquor license, to sell the liquor, to sell the ten barrels for cash. Walsh entered into negotiations with Corr without disclosing whose whisky it was and Corr agreed to pay cash for the whisky. When the warehouse receipt was sent by Walsh to Con- the latter discovering it was in the name of McHugh claimed to set off the purchase value of the whisky against money which McHugh at that time owed him. Thereupon Walsh demanded either the payment of the money in cash or the certificate. Corr sold the whisky and refused either to return the certificate or make the cash settlement agreed upon. Neither McHugh nor Elder had any wholesale license to sell liquor either under the state or the United States laws. Plaintiff brought trespass claiming a tortious conversion of the certificate and the whisky.</p> <p>Verdict and judgment for plaintiff for $741.27. Defendant appealed.</p> <p>Errors assigned were (1) in refusing the defendant’s first point, which point and answer are as follows: “ 1. There being-no evidence either of a tortious taking or a tortious withholding by the defendant of the certificate or the whisky in question, the action of trespass will not lie, and your verdict should be for-the defendant. Answer: Refused. The action is for the conversion, and is properly brought.” (2)' In refusing the defendant’s second point, which point and answer are as follows: “2. The evidence of the plaintiff discloses nothing more than the failure of the defendant to pay a debt. This debt cannot be recovered in this form of action, and your verdict, should be for the defendant. Answer: Refused for the same reason.” (3) In refusing the defendant’s third point, which point was as follows: “3. As the evidence discloses that the plaintiff was not licensed to sell liquor by the state laws, either at wholesale or retail, his attempted sale to Corr of the whisky in question was illegal, and the court will refuse to carry out the contract, and your verdict should therefore be for the defendant.” (4) In refusing the defendant’s point, which point was as follows: “ 4. The evidence disclosing that the plaintiff had not paid to the United States government the taxes as a wholesale dealer, his attempted sale to the defendant of the whisky in question is illegal, and your verdict should be for the defendant.” (5) In refusing the defendant’s fifth point, which point was as follows: “ 5. If the jury believe that the whisky in question was legally the property of McHugh, and if they further believe that McHugh was indebted to the defendant in a sum greater than the value of the whisky, your verdict should be for the defendant.” (6) In refusing the defendant’s sixth point, which point was as follows: “ 6. Under all the evidence, your verdict should be for the defendant.”</p>

<p>Insurance policy — Fraudulent assignment — Pleading—Sufficient statement — Question for jury.</p> <p>Insurance policies are not negotiable documents and the company owes a clear duty to the owner of such policies not to pay return premiums without taking sufficient precaution against fraud and when sufficient allegation of such negligent payment on fraudulent assignments is set out in plaintiff’s statement the case must be submitted to the jury.</p> <p>Negligence — Rule as to innocent parties.</p> <p>The rule governing loss by one of two innocent parties has no application in cases where the two persons are not equally without fault, or where one owes a duty to the other, to do or to refrain from doing, a particular thing, and has failed in the performance of his duty.</p>

Appeal, No. 135, Oct. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1897, No. 692, refusing judgment for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 70, Oct. T., 1898, by defendant, from judgment of C. P. No. 4, Phila. Co., March. T., 1898, No.' 425, on verdict for plaintiff. Assumpsit.

<p>Practice, G. P. — Sheriff's interpleader — Act of 1897 — Failure to file statement of title.</p> <p>Execution having been issued, claimant filed a bond which, from its recitals, was intended to operate as a bond under the Act of May 26, 1897, P. L. 95. The sheriff obtained an interpleader, but claimant neglected to file statement of title for more than two weeks after the sheriff’s rule foi issue was made absolute. Held, that the court below was justified in entering judgment of non pros. The condition of the bond having been broken, the claimant and his surety had become liable.</p> <p>Interpleader '.boncP-Bisuffieient affidavit ’., ■ • ,</p> <p>An affidavit is insufficient which alleges that a bond givep in interpleader proceedings is void because of interlineations, but which does not allege that the bond was not.executed in its present form, or that there was any deception or misconception in connection with its execution, or that the alteration was made to the advantage of the plaintiff.</p> <p> Premature filing of bond does not avoid after issue awarded. </p> <p>In a suit on a forfeited interpleader bond an affidavit of defense will not prevail which alleges that the bond was given before entry of the inter-pleader. The execution of the bond if'premature was-voluntary and when the rule for interpleader was made absolute, the bond took its proper place in the record pursuant to the purpose expressed by its terms.</p>

Appeal, No. 82, Oct. T., 1898, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1897, No. 1158, in favor of plaintiff, for want of a sufficient affidavit of defense. Appeal from magistrate. Before the court in banc. It appears from the record that the action arose upon a contract of indemnity. The facts are sufficiently disclosed from the statement and affidavit of defense: STATEMENT OE PLAINTIEES’ CLAIM.

<p>Appeal, No. 37, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1895, No. 135, M. L. D. in favor of defendant non obstante veredicto.</p> <p>Sci. fa. sur municipal claim. Before Willson, J.</p> <p>It appears from the record that a municipal claim for paving for $458.94 was filed against a lot of ground on north side of Montgomery avenue west from Thirty-first street and by agreement of parties it appears that the paving under the contract in question of the square in which defendant’s property was located was finished more than six months before the filing of the lien, but that the entire work provided for by the contract was not iinished until a date within six months, and that the portion that was not finished until within six months was between Thirty-first street and Sedgley avenue.</p> <p>Judgment for defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned among others was (2) in not entering judgment on the verdict in favor of the plaintiff on the point reserved, which point is as follows : “ Whether the work in front of the defendant’s premises having been done under an entire contract for paving Montgomery avenue from Thirty-third street to Sedgley avenue the right of lien continued until within six months after the completion of the entire contract.”</p>

<p>Appeals — Refusal of judgment for loant of sufficient affidavit.</p> <p>Appeals irom the refusal to enter judgment for want of a sufficient affidavit of defense are intended to reach only clear (jases of error of law and it requires very plain cause of error to sustain such an appeal.</p> <p>A case is properly for the jury and judgment should be refused when there is necessity for a fuller explanation of the relations and obligations of the parties, than the statement and affidavit disclose.</p> <p>Practice, O. P. — Affidavit when required under act o/-1887.</p> <p>The action being assumpsit and founded on an alleg-ed breach of contract, plaintiff is entitled to an affidavit of defense under the act of 1887.</p>

<p>Appeal, No. 205, April T., 1898, by George Nulton, labor claimant, from decree of C. P. Beaver Co., June Term, 1898, No. 2, affirming auditor’s report.</p> <p>Exceptions to auditor’s report distributing proceeds of sheriff’s sale. Before Wilson, P. J.</p> <p>It appears from the record and the evidence that Hulings Bros., general contractors, made an assignment for thé benefit of creditors, but before the execution of the deed of assignment various writs of execution had been issued under which property was sold which was used by the contractors in the erection and construction of a dam under a contract with the United States government, as well as used generally in their business as contractors. This money, realized by tbe sale of this property having been made by the assignee, by agreement was paid into the hands of the sheriff for distribution. The fund was claimed by execution creditors and by various labor claimants. The auditor found that the labor claimants were not entitled to preference, and awarded the fund to the execution creditors. The report of the auditor was confirmed, and George Nulton, one of the labor claimants whose claim amounted to $52.85, appealed.</p> <p>Error assigned among others was (1) in finding that George Nulton’s claim for wages was not a preferred claim under the act of assembly passed April 9,1872, P. L. 47, and its supplements.</p>

<p>Appeal, No. 193, April T., 1898, by plaintiffs, from decree of C. P. No. 3, Allegheny Co., May T., 1898, No. 34, dissolving preliminary injunction.</p> <p>Application to continue preliminary injunction directed against certain constables of Allegheny county, enjoining them from making sale of personal property levied upon by them. Hearing on bill, answer and testimony on behalf of the parties. Before Kennedy, P. J.</p> <p>It appears from the record and evidence that Hulings Bros., engaged in the coal business, towing coal barges and general contract business, made an assignment for the benefit of creditors in 1897. Prior to the date of the assignment, execution was issued in Beaver county and upon sundry executions under which was seized all their personal property then in Beaver county, among which was a dredge boat, engine and boilers. Subsequently, by an agreement entered into between the assignee of Hulings Bros., their execution creditors, and the sheriffs of Allegheny and Beaver counties, William M. Rees, the assignee, took possession of the property located in Beaver county, among which was the dredge boat, with engine and boilers, and ii order to make sale of it and pending the sale, more economically to take care of it, removed it from Beaver to Allegheny county. After the removal the defendants in this case recovered judgments before an alderman in Pittsburg for wages due them by Hidings Bros, within six months prior to their assignment for employment on or about this dredge boat. Executions were issued on these judgments, and the dredge boat was levied upon and advertised for sale upon the theory that the defendants were preferred under the Act of April 9,1872, P. L. 47, and that, as more than thirty days had elapsed since the making of the assignment, their wages remaining unpaid, they could proceed regardless of the voluntary assignment under the Act of April 20, 1876, P. L. 48. The bill was filed to enjoin the defendants from proceeding with their executions upon two grounds, to wit: first, that the defendants were not within any of the classes whose wages were protected and secured under the Act of April 9, 1872, P. L. 47, and its supplements; second, that even if they were within the classes whose wages were secured by that act, the property levied upon under their executions being in the custody of the sheriff, they had no right to proceed under their executions in the hands of the constable.</p> <p>The court below granted a preliminary injunction which, after hearing, was dissolved. Plaintiffs appealed.</p> <p>Error assigned was to the order and decree refusing the preliminary injunction asked for in this case, and dissolving the restraining order or ex parte preliminary injunction heretofore granted at the cost of the plaintiffs.</p>

<p>Appeal, No. 141, Oct. T., 1898, by Thomas H. Knappenberger & Son, on their own behalf for themselves and for the other mechanic’s lien creditors, from the definitive decree of C. P. Lehigh Co., Jan. T., 1897, No. 847, distributing proceeds of a sheriff’s sale of a leasehold interest.</p> <p>Exceptions to commissioner’s report in distribution. Before Albright, P. J.</p> <p>It appears from the record and evidence that a judgment by confession was entered in the common pleas to January T., 1897, No. 347, in, favor of the Allentown National Bank, against the Helios Dry Color & Chemical Co., for the sum of $3,000, upon which a fi. fa. was issued March 30, 1897, to April T., 1897, No. 70, and the sum of $47.27, besides costs realized out of the goods levied upon; that on April 12,1897, a further fi. fa. under the first section of the act of April 7, 1870, was issued against the persona], mixed and real property, franchises and rights of said defendant, to June T., 1897, No. 4, and from the sale thereof was realized the sum of $1,490.05, beside costs; that under the act of June 13, 1836, and supplements thereto, especially the act of May 26,1871, relating to Lehigh and Northampton counties, and by virtue of and claiming the benefit of its provisions, certain mechanics’ liens were filed against the leasehold interest of the Helios Dry Color & Chemical Co., or the Helios Dry Color Co., Limited, the L. Y. R. R. Co., owner or reputed owner, and Wm. B. Shaffer, contractor, and the buildings and fixtures erected thereon; that wage claims against said Helios Dry Color & Chemical Co., numbered from 4,294 to 4,314 inclusive for various amounts, each under $200 — except that of H. S. Giles, which is $217.07 — were filed by the Allentown National Bank, transferree of original claimants, April 23, 1897, under the act of May 12, 1891, in the office of the prothonotary of said court; that the total amount of said wage claims within the provisions or limits of said act would appear to be the.sum of $1,430.88, and $31.50, costs paid for filing same ; that said ■wage claims were also filed with the sheriff, and due notice thereof, under the provisions of the statute, given to said sher-' iff before the sale; that the property sold was a. leasehold with braidings, fixtures and machinery, used in the business of the defendant in the execution, and alsro the defendant company’s franchise, and brought the gross sum of $1,581 — and the costs of sale were $90.95, leaving the net sum of $1,490.05 for distribution.</p> <p>The fund in court was claimed by two classes of creditors— mechanic’s lien and labor claim — and as the amount is insufficient to satisfy both, the establishment of the rightful claim of . either class will exclude the other from any participation in the distribution.</p> <p>The following form of notice was filed with the sheriff of Lehigh county and may be considered as a test for all the labor liens filed:</p> <p>“ Please take notice that there is due me from the Helios Dry Color & Chemical Company, defendant above named engaged in the business of Manufacturing Copperas Paints and Colors, in the township of Salisbury, in the county of Lehigh, Pa., and employing clerks, mechanics and laborers, in and about said business, for manual labor and services rendered and performed within six months immediately preceding the 24th day of April, 1897, by me as a laborer in and about the said business, carried on as aforesaid by the said Helios Dry Color & Chemical Company, defendant above named, the sum of twenty-one dollars and thirteen cents, which sum became due in manner and between the dates here specified, to wit :</p> <p>“ Between March 20th and April 3d, . . $ 1 88</p> <p>“ April 3d and April 17th, . . 13 75</p> <p>“ “ 17th and “ 23d, . . . 5 50</p> <p>$21 13 ’</p> <p>“'And all earned as laborer in and about said works.</p> <p>“ Take notice further that the above stated amount, so as • aforesaid due to me for manual labor and services performed for the defendant above named, is a lien upon the manufactory, business and other property of said defendant, in and about, or used in carrying on the said business, or in connection therewith, and seized by you under the above stated executions, being writs of fi. fa. issuing out of the court of .common pleas of Lehigh county to No. 4, June term, 1897, and is to be preferred and first paid by you out of the proceeds of the sale of said manufactory, business and property of said defendant, in and about or in connection with which, and in carrying on the same, my labor and services as aforesaid were performed for the defendant.</p> <p>“ You are therefore required to pay said amount to me out of the proceeds of said sale, in discharge of said lien, and in preference to all other claimants and creditors of the defendant, agreeably to the provisions of the acts of assembly for such cases made and provided.</p> <p>“ Respectfully,</p> <p>“ R. E. Weight, Attorney, for Thos. Bachman.”</p> <p>(Affidavit attached.)</p> <p>The commissioner awarded the whole of the fund, less cost of distribution, the amount aggregating less than the sum of all the labor claims, under 1200 each, to the assignee thereof. Exceptions were filed to the report of the auditor, which were dismissed by the court. Mechanic’s lien creditors appealed.</p> <p>Errors assigned among others were (1) in deciding as follows : “ The court can discover no defects or omissions in the labor claims filed, the assertion that they are defective has no foundation.” (2) In deciding as follows: “ That under the facts the assignee of those claims (labor claims) has all the rights of the laborers including lien is manifest, as is also the fact that a mechanic’s claim is not a judgment, and therefore to be preferred by virtue of the proviso of section 4 of the wages act of 1872.” (3) In not sustaining the second exception of Thomas H. Knappenberger & Son to the commissioner’s report, which was as follows : “ The auditor erred in holding that the leaseholds and franchises involved in the case, must be treated as if they were purely personal property and that the proceeds thereof must be, distributed in accordance with the decision in the Philadelphia Trust Company’s Appeal, 2 W. N. C. 593.” (4) In not sustaining the third exception of Thomas H. Knappenberger & Son to the commissioner’s report, which was as follows, viz: “ The auditor erred in holding that the labor claims filed April 23,1897, in the prothonotary’s office, and also served on the sheriff, ‘ contain all the essential elements in, and are in substantial compliance with, the clause of the act fixing the requirements in ordoi to bind the real estate.’ ” (7) In not sustaining the sixth exception of Thomas H. Knappenberger & Son to the commissioner’s report, which was as follows, viz: “ The auditor should have held that the said mechanics’ liens took priority over said labor claims.” (8) In not sustaining the seventh exception of Thomas H. Knappenberger & Son to the commissioner’s report, which was as follows, viz : “ The auditor erred in distributing the funds in court, in this cause, to the labor claimant's, to the use of the Allentown National Bank.” (10) In allowing the distribution of $217.@7 to the labor lien, No. 4,307, of H. S. Giles, the amount thereof exceeding $200.</p>

<p>Appeal, No. 50, Oct. T., 1898, by defendant, from decree of C. P. Northampton Co., May T., 1897, No. 55, discharging rule to open judgment and quash writ in foreign attachment.</p> <p>Foreign attachment in assumpsit. Before Schuyler, P. J.</p> <p>It appears from the record that this action of assumpsit was commenced April 22, 1897, by a writ of foreign attachment returnable the second Monday of May, which was duly served on one garnishee April 23, and on another May 1,1897. Judgment was entered a’gainst the defendant September 20, 1897, for want of an appearance and answer. On application, the. same day, the court granted a rule to show cause why the attachment should not be quashed and the judgment opened and set aside. On November 29 the rule was discharged. There are six terms of court each year, commencing the second Mondays of January, March, May, July, September and November, and this action was brought to the May term. Defendant appealed.</p> <p>Error assigned was in discharging the rule.</p>

Appeal, No. 72, Oct. T., 1898, by defendants, from judgment of C. P. Lancaster Co., May T., 1884, No. 38, on verdict for plaintiff. Assumpsit. Before Brubaker, J. The facts sufficiently appear in the opinion of tlie court. Verdict and judgmentfor plaintiff for $790.47. Defendants appealed. JErrors assigned among others were (1) in refusing to affirm defendants’ sixth point, which point and answer are as follows: “6. In the alleged conversation between Jos.

<p>Negligence — Trespass by driven cattle — Province of court and jury.</p> <p>One driving domestic animals along the public highway is bound to observe due care, and if, notwithstanding, they escape from the driver without negligence, and go upon private ground he is not responsible provided lie removes them within a reasonable time; and what is reasonable time must depend upon all the circumstances. There being no evidence of such negligence sufficient to warrant ils submission, it is the duty of the court to instruct for defendant.</p> <p>Cattle — • Trespass— Party fence — Question for jury.</p> <p>The owner of cattle kept upon a farm is bound to keep them from tres^ passing on his neighbor’s land, but where a parly fence enters into consideration, while the duty is imposed on the owner of cattle to make it sufficient to restrain a tendency to roam, yet the matter of sufficiency of such a fence is a question for the jury.</p>

Appeal, No. 1, Oct. T., 1898, by-defendants, from judgment of C. P. Chester Co., April T., 1897, No. 17, on verdict for plaintiff. Assumpsit. Before Butler, J. It appears from the record and evidence that two executions having been issued against defendants A. C. Harris and J. C. Harris, and levy having- been made on the property of a farm, rules were obtained to show cause why the judgments on which executions were issued should not be opened.

Appeal, No. 2, Oct. T., 1898, by Ellen Herb, landlord, from judgment of C. P. Berks Co., Jan. T., 1896, No. 71, on verdict for plaintiff. Ejectment. Before Endlich, J. The facts sufficiently appear in the opinion of the court. Yerdict for plaintiff for the premises described in the writ. Ellen Herb, landlord, defendant, appealed. Error assigned among others was giving binding instructions for plaintiff for the premises described in the writ.

<p>Appeal, No. 149, Oct. T., 1896, by defendant, from judgment of Q. S. Berks Co., Sept. Sess., 1896, on verdict of guilty.</p> <p>Or-lady, J., dissents.</p> <p>Indictment for embezzlement. Before Endlioh, J.</p> <p>It appears from the record and evidence that the defendant was tried on an indictment charging embezzlement as guardian. In May, 1896, defendant filed his account as guardian. Upon adjudication the orphans’ court ascertained a balance due to each of the children in the sum of 1948.40. This amount was not at that time paid over to the minor children. On July 3, 1896. after adjudication of the guardian account, the surety on the bond had defendant arrested for embezzlement, the information made before the committing magistrate charging defendant with embezzling $900 from James E. Hill. An indictment was presented to the grand jury, and a true bill found charging defendant with appropriating money with intent to defraud James E. Hill out of the sum of $940. This indictment appears to have been mislaid, and on September 8, 1897, the district attorney presented his petition to the court of quarter sessions asking leave to present a new bill of indictment to the grand jury on the ground that the former bill had been mislaid or lost; permission being granted by the court a new indictment was placed before the grand jury charging the defendant with appropriation of money with intent to cheat and defraud James E. Hill and James Ruth who was the surety upon Mr. Kaufman’s guardian bond. The first bill was found on September 17, 1896, and the case was finally called for trial on December 14, 1897. The case was set down for trial at every succeeding session of the court but continued from time to time until December sessions, 1897, recognizance for appearance being renewed, it being alleged on behalf of the commonwealth that such recognizances do not form part of the record owing to the fact that they were in book form and could not readily be detached.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned among others were (1) to the admission of testimony of James Ruth, the prosecutor, that the defendant had said that his brother, F. Y. Kaufman, would become co-surety with the prosecutor, the said James Ruth, upon the guardian bond. (2) In admitting evidence as set forth in a statement filed in the court below, which statement is as follows: “The commonwealth, alleging the existence on the defendant’s part of bad faith and an intention to defraud his ward, beginning with the inception of the guardianship and continuing throughout its duration, and having, as tending to support said allegation, offered to show, that, in inducing the prosecutor to go upon his bond as guardian of James E. Hill, defendant falsely represented to said prosecutor that his, defendant’s brother, was also to be a surety upon said bond, said offer was objected to by defendant; whereupon the court ad mitted the same and granted an exception to the defendant.” (3-5) In admitting evidence of the confession of judgment by defendant to his brother F. Y. Kaufman on July 6, 1896, upon which execution was issued and personal property of defendant sold. (6) In admitting the evidence as set forth in the statement filed by the court below as follows: “ The commonwealth having in support of the same allegation offered to show that after defendant’s default had been established in the orphans’ court, he confessed certain judgments to his brother, upon which executions were immediately issued and all his property sufficient for the satisfaction of his liability as guardian of James E. Hill swept away. Said offer was objected to by the defendant, whereupon the court admitted the same and granted an exception to the defendant. ” (7) In charging the jury as follows : “If his acts as judged by his intention to be gathered from the evidence were consistent with an honest purpose or not clearly inconsistent with such, then he is entitled to an acquittal, no matter how injurious to his ward they subsequently turned out to be, but in this connection the jury is to remember that a reckless negligence in handling of trust funds so glaring as to be inconsistent with an honest purpose, may be evidence of intention to defraud. ” (8) In entering an order permitting the district attorney to lay a new bill of indictment before the grand jury. Notice of this order to be given defendant. (9) In overruling motion to quash the indictment.</p>

<p>Statute of limitation pleaded — Proof to toll — Binding instructions.</p> <p>Where the statute of limitation is pleaded, it is incumbent upon the plaintiff to prove either an original obligation, or a new promise reviving a former obligation given, infra sex annos.</p> <p>There having been a dissolution of defendant firm, and the statute of limitation having been pleaded, where no debt could have been contracted, in the firm name, the defendant is entitled to binding instructions.</p> <p>Dissolution of partnership — Authority of surviver to contract — Statute of limitations — Revival by implied promise.</p> <p>The dissolution of a partnership puts an end to the authority of the surviving partner and operates as a revocation of all power to create new contracts ; hence, an express promise by a partner after a dissolution will not take the debt out of the statute of. limitations so as to make the co-partnership liable; nor can a revival of the obligation be implied from the fact that the surviving partner as subscriber to a newspaper was charged with knowledge of the publication of certain advertisements with the result of an implied promise of payment by the firm.</p>

<p>Validity of bill of sale — •Province of court and jury.</p> <p>The question of the validity of a bill of sale in the light of all the conflicting testimony, relative to the execution, consideration, delivery and purpose for which it was given is properly for the jury; and on appeal the province of the court is limited to the inquiry whether there was sufficient competent testimony to support the finding of the jury whose exclusive function it is to settle questions of fact.</p> <p>Charge of court — -Excerpt from charge — Correct general charge.</p> <p>Where the excerpt from the charge assigned for error is a correct hypothetical statement of the law applicable to the issue and the entire charge affords no'ground of complaint, no error is disclosed.</p>

<p>Appeal, No. 202, Oct. T., 1897, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1896, No. 1117, making absolute rule to show cause why claim for $300 exemption should not be set aside as to a portion thereof.</p> <p>Rule to set aside exemption. Before Biddle, P. J.</p> <p>It appears from the record that John F. Betz obtained judgment against the defendant in this case for $182.41 on a judgment note with waiver of exemption, on March 5, 1897. On April 12, 1897, an attachment sur judgment was issued on the Betz judgment, wherein John S. Kane was made garnishee. On June 2,1897, the judgment of Betz against Kane, garnishee, as well as that against Russell, defendant, was satisfied of record. On September 9, 1896, the plaintiff recovered judgment against Russell for $285.67. There was no waiver of the exemption law in this judgment. On May 27, 1897, Peterson issued an attachment sur judgment against John S. Kane as garnishee, the attachment being served on Kane, May 27,1897. On June 4, 1897, Russell notified Kane in writing that he claimed the benefit of the $300 exemption law as to the moneys in his hands and attached by Peterson. On June 14, and October 20,1897, Peterson served his interrogatories in the attachment proceedings on Kane; the garnishee. On July 14 and November 9,1897, Kane filed his answers to the interrogatories, admitting that he had $392.87 in his hands belonging to defendant, but averring that defendant claimed the benefit of the $300 exemption law as to the money so attached. On November 20, 1897, the court upon the petition of plaintiff, granted a rule on the defendant to show cause why his claim for the $300 exemption should not be set aside as to $182.41 of it. On December 1, 1897, the court made the rule absolute. Defendant appealed.</p> <p>Error assigned was making absolute the rule to show cause why defendant’s claim for the $300 exemption should not be set aside as to $182.41 of it.</p>

<p>Appeal, No. 49, Oct. T., 1898, by defendant, from judgment of C. P. No. 3, Pbila. Co., June T., 1895, No. 71, on verdict for plaintiff.</p> <p>Assumpsit to recover balance due on certain oral contracts.</p> <p>The first witness called in the court below was Charles O’Neill, the defendant, who was called by the plaintiff for cross-examination. After the examination of the witness by plaintiff’s counsel, defendant’s counsel asked witness certain questions which were overruled by the court and exception granted in each case to the defendant, and which are the subject of two of the assignments of error.</p> <p>Other facts appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $955.75. Defendant appealed.</p> <p>Errors assigned were (1) in refusing to permit defendant under cross-examination by plaintiff, to answer the following questions propounded to him while on the stand as witness by plaintiff’s counsel: “ Q. Have you paid Thomas Corkery any money on account of the money due him on this contract ? ” (Objected to. Objection sustained.) (2) “ Q. Who furnished and paid for the material for plastering the house at 505 South</p> <p>Broad street, used in the work under the contract of Thomas Corkery.” (Objected to. Objection sustained.) (3, 4) After Charles O’Neill, the defendant, had been called by the plaintiff as for cross-examination, and had testified, Thomas Corkery, plaintiff, was called on his own behalf and the testimony of Charles O’Neill, the defendant, was read to the plaintiff, he being a witness on the stand, and the objection of defendant’s counsel being overruled and exception granted to that method of proving plaintiff’s case, is the subject of the third and fourth assignments of error. The fifth and sixth assignments of error are predicated upon the following statement of facts: The testimony had closed the night before; the plaintiff, Thomas Corkery, was placed upon the stand, and after being examined upon a- number of subjects, the court used these words : “We want to know what was the agreement between these parties; what were the facts; what were the circumstances and what was the language used. I have been over the evidence and it does not seem to me there is anything for the jury on that point.” (7) The learned court erred in saying to the jury: “ The plaintiff has made out a prima facie case by showing that a certain amount of work was done by him for defendant, at a certain agreed upon price.” (8) The eighth assignment is predicated upon a misstatement of the learned trial judge as to the testimony of Charles O’Neill.</p>

<p>Execution — Interest in fire insurance not subject to levy under a fieri facias.</p> <p>A chose in action cannot be levied upon and sold under a fieri facias. Where under a fi. fa. the sheriff has levied upon all the right, title and interest of defendant in and to a policy of fire insurance issued in her name the court may set aside the levy, but it is error to quash the writ to which plaintiff was entitled.</p>

<p>Appeal, No. 53, Oct. T., 1898, by defendants, from judgment of O. P. No. 4, Phila. Co., Dec. T., 1895, No. 708, M. L. D. on verdict for plaintiff.</p> <p>Sci. fa. sur mechanic’s lien. Before Arnold, P. J.</p> <p>It appears from the record that a sci. fa. sur claim was issued in response to which an affidavit of defense was filed setting forth, inter alia, the defective quality of bricks furnished and that they were less in number than set forth in said claim, and that said bricks so furnished would not stand exposure to the atmosphere, contrary to the contract, whereby the value of the said building was greatly lessened, and also that a portion of the claim had been paid on account.</p> <p>Verdict and judgment for plaintiff for $ 198.31. Defendants appealed.</p> <p>Errors assigned were (1) failure to give binding instructions in favor of defendant. (2) In the charge of the court in failing to instruct the jury that if the testimony showed that the materials were not furnished on the credit of the building no recovery could be had by the plaintiff. (3) In charging the jury as follows: “The question here is whether the plaintiff furnished the character of bricks which he agreed to furnish.” (4) In charging the jury as follows : “ If you are of the opinion that the walls are defective by reason of bad bricks furnished by the plaintiff and charged for by him, and that the fault is his fault, if there is a fault, and not the fault of the bricklayers in making a bad selection of them, and it would cost |100 to remedy the defect, you may rebate the plaintiff’s claim to that extent; or if you are of opinion ijhat the plaintiff has furnished such bricks as he agreed to furnish, and the defect in the walls, if there be a defect, has been caused by the bricklayers using the wrong bricks in the outside of the wall, or by the use of some old bricks which they had on hand, then, of course, the plaintiff is not chargeable with that, and he is entitled to receive the amount of his bill in this case. That is all there is in it.”</p>

<p>Contract — Evidence—Conduct of parties as construction.</p> <p>When a writing is plain and free from ambiguity, it will not be construed by the acts and admissions of the parties in reference to it, yet where the intention is obscure or doubtful, no evidence is more reliable or entitled to greater consideration as manifesting what that intention was than the acts and conduct of the parties themselves.</p>

<p>Execution — Essentials of a valid levy.</p> <p>A levy to be good must be made in such a way that the officer has the property within his power and control or within his view, and after having it so, he makes a levy upon it and follows it up within a reasonable time by taking possession in such a manner as to apprize everybody of its having been so taken in execution.</p> <p>Execution — What constitutes a levy — Province of court and jury.</p> <p>Seizing part of the goods in the name of the whole on the premises, is a good seizure of the whole; but when the property in dispute was not on the premises of the defendant in the execution and not identified by description it should be seen by the officer to perfect a levy of it, and the fact being disputed as to whether or not it was included in the levy, the question is one for the jury, to be determined on the evidence and without the expression of a dominating opinion from the trial judge.</p> <p>Execution — Levy—Sale of reversions — Question for jury.</p> <p>The sale in bulk by the sheriff of items of property under the designation of “reversions” does not pass title thereto if the property so sold was not levied upon, and whether so levied upon and subsequently sold was for the jury.</p> <p>Charge of court — Conflicting inferences — Undue emphasis by court.</p> <p>Trial judges are not compelled to weigh their utterances regarding the evidence in the exquisitely balanced scales sometimes employed by ingenious counsel to discover whether too much or too little has been said; but when evidence is conflicting and the inferences to be drawn therefrom are reasonably capable of different constructions, it is error to confine the jury to one view of the case when there is more than one which they should consider; and in such case, it is error specially to emphasize the theory of the plaintiff and ignore that of the defendant.</p> <p>Practice, C. P. — Charge of court — Undue comment on testimony.</p> <p>In many cases it is not only proper but it is the plain duty of the trial judge to comment upon the testimony, but in a civil case, where points requesting binding instructions ai’e refused for both plaintiff and defendant, the case should go to the jury to determine which has the better case on the preponderance of evidence freed from the opinion of the court on that subject.</p>

<p>Contribution among cosureties — Equity jurisdiction.</p> <p>An agreement, whereby individual stockholders pledged their interests in the corporate property and franchises and also their individual personal credits to indemnify certain of their number, who gave their note to secure funds for corporate purposes, if the said note or any renewal thereof was not paid by the corporation, makes the parties thereto co-sureties ; and, a final renewal note having been taken up by its makers equity jurisdiction attaches, at the suit of the payors, to compel contribution to adjust the' conflicting and contingent interests which require specific provisions of a remedial nature in order to effect complete justice between all parties interested in the joint enterprise.</p> <p> Equitable jurisdiction vests to avoid unnecessary litigation. </p> <p>Where unnecessary and multiplied litigation may be prevented by proceedings in equity, and all questions affecting- the different persons and interests can be adjudicated in such proceeding, this in itself is sufficient to vest equitable jurisdiction:</p> <p>A provision for the final payment of a loan represented by a note, imports a consideration when made with all the parties interested, when it related to a common enterprise, and was made for their joint benefit.</p> <p>A consideration exists where by the agreement one party is benefited or the other party is injured.</p> <p>The relation of cosureties is one of mutual trust and confidence, and from this springs their liability to contribute equally to the payment of the principal debt. In equity the solvent sureties are liable to contribute inter se as to the whole amount.</p>

<p>Insurance — Authority of secretary to adjust loss — Question for jury.</p> <p>Declarations made by a representative of a fire insurance company that he had power to adjust and settle a loss and the fact that he was secretary, treasurer and director of the company are separately insufficient to establish his authority to settle and adjust the loss; but his relation to the company, coupled with the correspondence in the case and his declarations, may be fully sufficient to clothe him with apparent authority to bind the company, and the question is then one for the jury.</p> <p>Practice, G. P. — Rules of court — Defendant's bill of particulars — Amendment.</p> <p>Where the rules of court require a bill of particulars of the grounds of defense as well as those of the claim, the parties may amend saving the righ of the opposite party to plead surprise. Where, therefore, the court has refused an amendment.which would have made certain evidence admissible for defendant but afterward admits the evidence without amendment, such action is error. This error is not made harmless by treating the defendant’s bill of particulars as amended because the plaintiff was not given his chance to apply for a continuance.</p> <p>Practice, G. P. — Appeals—Disregard of rules considered error.</p> <p>Courts are generally permitted to construe their own rules; yet when the manner of treating the rule is not interpretation or construction but conducting a trial in plain disregard thereof, such action of the court below is reversible error.</p> <p>Insurance — Evidence to prove adjustment when admissible.</p> <p>In a suit resulting from a fire loss it was error to reject an offer of evidence, on behalf of plaintiff, to prove a settlement and adjustment of a loss by an authorized agent of defendant company and a promise for the company to pay the amount agreed upon; also to show that the adjustment and promise to pay superseded the original contract.</p> <p>Insurance — Compromise agreement — Waiver of conditions.</p> <p>After an adjustment or compromise of a fire loss and a promise to pay based on such adjustment, it is too late to impale (he plaintiff on any of the sharp conditions sometimes found in policies of insurance. A breach of warranty or of any condition in the policy must be insisted on when the claim is made and before an agreement to pay the loss has been made.</p>

Appeal, No. 37, March T., 1898, by plaintiff, from judgment of C. P. Juniata Co., Feb. T., 1897, No. 33, on verdict for defendant. Assumpsit on policy of insurance. Before Lyons, P. J. For a general statement of facts under which this and the preceding case arose, see statement of facts in preceding case, p. 371.

Petition to amend entry of “judgment reversed; ” entered on appeal, No. 14, March T., 1898, by defendant, from judgment of C. P. Huntingdon Co., Dec. T., 1895, No. 30, on verdict for plaintiff. Reported in 7 Pa. Superior Ct. 264.

Appeal, No. 136, Oct. T., 1898, by defendants, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1897, No. 1301, in favor of plaintiff for want of a sufficient affidavit of defense. Smith, J., dissents. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 12, Jan. T., 1899, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1894, No. 575, on verdict for plaintiff. Trespass. Before Benhett, J. It appears from the evidence that plaintiff was injured by falling in one of the streets of the city of Wilkes-Barre, under conditions which are sufficiently set forth in the opinion of the court. Defendant submitted the following points: [1.

<p>Appeal, No. 34, Jan. T., 1899, by plaintiffs, from order of C. P. Luzerne Co., Oct. T., 1897, No. 1106, discharging rule to strike off an appeal from award of arbitrators.'</p> <p>Assumpsit. Before Woodward, P. J.</p> <p>This case originally arose on appeal by defendant from the judgment of a justice for $284.20. The plaintiffs proceeded under the law to arbitration, and the case was regularly tried before arbitrators chosen by the parties for the trial of the case and same day an award was given in favor of plaintiffs and against defendant in the sum of $284.20 and costs. On May 25, 1898, the plaintiffs filed a bill of costs amounting to $22.00, being witnesses’ fees in the case. On June 6,1898, defendant appealed from the award of the arbitrators and on June 8 filed exceptions to the costs, paying in all costs excepted to less $22.00, plaintiffs’ bill of witnesses’ fees. A rule was then taken to strike off the appeal and on November 5 the rule to strike off the appeal was discharged on condition that defendant pay the amount of the plaintiffs’bill for witnesses, to wit: the $22.00 above referred to. Plaintiff excepted to the ruling of the court in discharging the rule to strike off the appeal from the award of arbitrators.</p> <p>Error assigned was in discharging rule to strike off the appeal from the award of the arbitrators.</p>

<p>Appeal, No. 36, Jan. T., 1899, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1895, No. 980, discharging rule to show cause why appeal from confession of judgment should not be stricken from records.</p> <p>Appeal from judgment of an alderman. Before Woodward, P. J.</p> <p>It appears from the record that this was an appeal taken' by defendant from judgment of justice and that plaintiff took out a rule of arbitration which he served on defendant to choose arbitrators, whereupon the defendant before the time fixed for choos ing arbitrators filed in the case a written confession of judgment for the sum of $300, being the full judgment and amount claimed by plaintiff. In this confession of judgment, however, defendant reserved the right of appeal by adding thereto, “ said confession to have same force and effect and no more than an award of arbitrators filed in the case in favor of the plaintiff and against defendant. The right of appeal is hereby expressly reserved as in the case of an award of arbitration.” Defendant subsequently appealed from the confessed judgment to the court of common pleas of Luzerne county, the same court in which he had confessed the judgment. Subsequently a rule was granted to show cause why the appeal should not be stricken from the record, which rule the court discharged. Plaintiff appealed.</p> <p>Error assigned was discharging the rule to strike off appeal.</p>

Appeal, No. 41, Jan. T., 1899, by defendants, from judgment of C. P. Bradford Co., Sept. T., 1890, No. 241, on verdict in favor of plaintiffs in ejectment. Ejectment. Before Lynch, J., of the 11th judicial district, specially presiding. The facts of the case sufficiently appear by reference to the report of the case when before the Superior Court on appeal, 4 Pa.

Appeal, No. 11, Jan T., 1899, by plaintiff, from judgment of C. P. Bradford Go., Dec. T., 1897, No. 382, dissolving foreign attachment. Foreign attachment in assumpsit. Before Peck, P. J. It appears from the record in this case that under foreign attachment, wages for labor were attached in the hands of the garnishee.

Appeal, No. 122, Oct. T., 1898, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 27, striking off lien for cost of constructing a sewer. Rule to strike off municipal lien for cost of constructing sewer. Before Claytok, P. J. It appears from the record and evidence that a rule was taken to strike off a lien taken by the borough of Colwyn for a sewer tax amounting to $22.41 imposed under the provisions of the Act of May 15, 1889, P. L. 220.

Appeal, No. 155, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., Sept. T., 1897, No. 138, in favor of defendant non obstante veredicto. Assumpsit.

Appeal, No. 182, Oct. T., 1898, by Matilda B. Dorscheimer, in the matter of petition to vacate a decree of O. C. Phila. Co., April T., 1898, No. 371. Petition to vacate decree. Before the court in banc. It appears from the record that Matilda B. Dorscheimer, widow of decedent, had filed a petition for $300 cash out of decedent’s estate which exemption had been allowed by the court.

Appeal No. 89, April T., 1898, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1897, No. 8, in favor of defendant on case stated. Case stated. Before Rayburn, P. J. It appears from the case stated that this case arose concerning the fees and mileage or amount thereof and expenses which the county should pay constables for certain services performed by them in the discharge of their official duty.

Appeal, No. 147, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 509, in favor of defendant on case stated. Case stated in action of assumpsit sur ground rent deed. The following facts appear from the case stated : By sundry conveyances and devolutions William and Amelia Groeff became seized of certain premises. By duly executed and recorded deed, dated August 20, 1878, they conveyed the said premises in fee to Jacob Eckert.

Appeal, No. 94, Oct. T., 1898, by plaintiff, from decree of C. P. No. 3, Phila. Co., June T., 1897, No. 797, dismissing bill in equity. Hearing on bill and answer. It appears from the record that suit was brought to enforce personal liability of directors of the Franklin News Company for indebtedness of said company contracted by the directors to the amount of $27,000 in excess of the capital stock.

Appeal, No. 56, Oct. T., 1898, by-defendant, from judgment of C. P. No. 4, Phila. Co., March T.> 1897, No. 103, on verdict for plaintiff. Assumpsit to recover arrears of rent from the surety on a lease. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $854.72. Defendant appealed.

<p>Appeal, No. 154, Oct. T., 1898, by J. S. Doolittle and John McDowell, from decree of Q. S. Phila. Co., granting a retail liquor license to Jonathan A. Umholtz.</p> <p>Petition for retail liquor license. Before Biddle, P. J., and Arnold, P. J.</p> <p>It appears from the record that petitioner was the proprietor of the Eagle Hotel in Philadelphia and in 1896 he rented the barroom and fixtures to one William Hamburg, to whom the license was transferred; that each subsequent year a license was granted in the name of William Hamburg. On May 2, 1898, a license was again granted to the said William Hamburg, but . Hamburg did not pay the license fee for the current year and his license was thereupon marked revoked. The petition averred that petitioner was ready and willing to pay the amount due for license and prayed that the same be granted in his name agreeably to the 7th section of the act of April 20, 1858. On July 2, 1898, the remonstrance of J. S. Doolittle and others was filed. On July 11, 1898, petition was granted and bond and justification of sureties filed, approved and license issued. J. S. Doolittle et al. appealed.</p> <p>Errors assigned among others were (1) in granting a retail liquor license to Jonathan A. Umholtz. (6) In granting said license to the said Jonathan A. Umholtz under the provisions of the 7th section of the Act of April 20, 1858, P. L. 365, or under the provisions of any other act of assembly.</p>

<p>Public officers — Supervisor's liability — Auditor’s report.</p> <p>There being circumstances under which supervisors might be chargeable, as officers, with money coming from a given source, the auditor’s report unappealed from is a conclusive adjudication by a tribunal of competent and exclusive jurisdiction that the facts existed which made them legally chargeable.</p> <p>In the case at bar the question arose as to the liability of supervisors for funds paid them under the act of 1891, in the absence of a township treasurer, for liquor licenses, and which were applicable to repair of roads.</p> <p>Principal and surely — Balance remaining in supervisor's hands — Surety's liability.</p> <p>The obligation of a bond given by sureties for supervisors is for money7 that comes into the hands of the officers during the term for which the bond was given. If the auditor’s report shows that during the year certain moneys came into the hands of the supervisor, as an officer, and that he made certain disbursements, it is not competent for the surety, defendant in a suit upon the bond, to show that the supervisor did not receive the money, or that he made other disbursements for which he was not given credit.</p> <p>When a supervisor is reappointed he becomes his own successor, and his sureties are liable for the balance remaining unexpended in his hands in addition to the correct receipts of the term.</p>

<p>Railroads — Negligence—Contributory negligence — Question for jury. '</p> <p>Where the existence of contributory negligence depends upon inferences to be drawn from the evidence, the question must go to the jury for decision. Where, although highly improbable, an accident may have happened in the manner described by the plaintiff, and where if the jury believed the plaintiff's testimony, there was ample ground for the verdict, the question of negligence and contributory negligence is for the jury, the circumstances as related not being such as themselves demonstrate inherent impossibility of the exercise of due care.</p>

Appeal, No. 170, Oct. T., 1898, by plaintiff, from judgment of C. P. Lancaster Co., April T., 1896, No. 110, on verdict for defendant. Assumpsit.

Appeal, No. 127, Oct. T., 1898, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1896, No. 52, on verdict for defendant. Assumpsit.

Appeal, No. 167, Oct. T., 1897, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1895, No. 29, on verdict for plaintiff. Appeal from judgment of justice in favor of plaintiff.

Appeal, No. 77, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1897, No. 968, for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc. It appears from the record and evidence that this was an action of assumpsit brought to recover assessments on a mutual policy of fire insurance issued in June, 1895, for one year for $1,000 upon an annual payment of $30.00.

Appeal, No. 75, Oct. T., 1898, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1897, No. 40, on verdict for defendants. Assumpsit. Before Hemphill, P. J. It appears from evidence, which was conflicting, that suit was brought on a promissory note for $600 given by defendants to one Barnard who indorsed same to Troxell, the plaintiff in the case, who claimed to have received it in the usual course of business for value, before maturity and without notice.

<p>Appeal, No. 32, Oct. T., 1898, by B. F. Kready, administrator, from decree of O. C. Lancaster Co., discharging rule on Franklin Bowman, administrator of George Bear, deceased, to show cause why he should not pay to administrator of Ann Menge, deceased, the share awarded to her administrator, as per auditor’s report of said estate, made January 15,1898.</p> <p>Rule on Franklin Bowman, administrator of George Bear, deceased, to show cause why he should not pay to Thomas J. Wright, administrator of Ann Menge, deceased, the share awarded to her administrator, as per auditor’s report in estate of George Bear, deceased. Before Livingston, P. J.</p> <p>It appears from the record and evidence that George Bear died January 10, 1880, intestate, unmarried and without issue. Letters of administration werfe granted to Franklin Bowman, who filed his account October 28, 1880, showing a balance in hand for distribution of $1,350.17, which account was absolutely confirmed January 22, 1881. Auditors were appointed to report distribution, whose report was confirmed February 11,1881, without exception. By their report an award was made to Ann Menge, née Bear (her administrator), of $301.79 (daughter of Benjamin Bear, an uncle, a cousin of decedent). On December 24,1892, Elizabeth Weaver obtained a rule to open the aud itor’s report and distribute the estate, which rule was discharged by the orphans’ court and the decree confirmed as reported in Bear’s Estate, Weaver’s Appeal, 162 Pa. 547. On July 5, 1895, the present rule was taken, in support of which depositions were taken which disclosed, inter alia, that the administrator,- defendant in this case, paid the share or money awarded to Ann Menge’s administrator, $301.77, to Philip D. Baker who had acted as the defendant’s counsel and who reported that he was the administrator of Ann Menge; that an interval of about five years intervened from the time the administrator paid the rest of the shares to Mr. Baker in 1881 to the time that he paid Ann Menge’s portion to Mr. Baker in 1886 ; that daring that time the administrator endeavored to find out if there was any one who knew anything about her; inquired of parties who ought to have known of the Bear family and failing to obtain any knowledge of her, finally paid to Mr. Baker as her administrator or representative of her estate, and took from him no refunding bond or release. It did not appear that Baker had taken out any letters of administration on the estate of the said Ann. Menge. It appeared in evidence that the said Ann Menge died in Chicago on April 8, 1895, and that Mr. Baker lived until 1892. There was no affirmative evidence that he did not pay it to her during her life. The court below held: “ The evidence as to the payment of the shares, which was before the court and the Supreme Court in Weaver’s Appeal, 162 Pa. 547, is now before the court on the present application. We have no new evidence before us on that point. There is proof that the shares awarded to her were paid to her proper representative, in 1886, and that he lived some six years after receiving it, and that she lived some three years after he died. We therefore discharge the rule.” Plaintiff appealed.</p> <p>Errors assigned among others were (2) hr not making the following rule absolute: “ Rule on Franklin Bowman, administrator of George Bear, deceased, to pay over the share of Ann Menge (or Plantz) to her administrator, Thomas J. Wright.” (5) The court erred in the following finding: “ He paid it as the auditor’s report and decree of court required, to Mr. Baker, her administrator, or the representative of her estate.”</p>

Appeal, No. 14, Oct. T., 1898, by plaintiffs, from judgment of C. P. No. 3, Pliila. Co., Dec. T., 1896, No. 905, on verdict for defendant. Assumpsit to recover the sum of $277 with interest on a book account for furnishing and printing certain books for the Bureau of Gas of Philadelphia.

Appeal, No. 145, Oct. T., 1898, by-defendant, from judgment of O. P. No. 3, Phila. Co., Sept. T., 1895, No. 587, on verdict for plaintiff. Trespass for personal injuries. It appears from the evidence that the plaintiff was injured by driving into a hole or excavation in one of the streets of Philadelphia. There was evidence to show that the street in question had been in the hands of the Philadelphia Traction Company undergoing repairs.

Appeal, No. 58, Oct. T., 1898, by defendant, from judgment of C. P. Chester Co., on verdict for plaintiff. Trespass. Before Hemphill, P. J. It appears from the record and evidence that plaintiff, Dr. Edgar Allen, brought suit against the township of Warwick to recover damages for the death of his wife caused by negligence on part of the township in failing to keep a public road in proper condition for travel.

Appeal, No. 169, Oct. T., 1898, by plaintiffs, from decree of C. P. Berks Co., Equity Docket, 1898, No. 702, dismissing bill in equity. Hearing on bill, answer and proofs.

Appeal, No. 218, Oct. T., 1897, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 107, on verdict for plaintiff. Trespass. Before Claytoít, P. J. It appears from the evidence that defendant was the owner of a vacant lot of ground in the borough of South Chester, the eastern part of it being in the city of Chester.

Appeal, No. 24, Oct. T., 1898, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1897, No. 30, on verdict for plaintiff. Assumpsit. Before Clayton, P. J. It appears from the record and evidence that suit was brought by plaintiff against decedent’s estate for the purpose of recovering wages for a constructive service during an un expired term of alleged employment subsequent to decedent’s death.

Appeal, No. 1, Jan. T., 1900, by defendant, from sentence of Q. S. Lackawanna Co., Dec. Sess., 1898, No. 380, in proceedings in contempt of court against John Gibbons. Proceedings in contempt of court. Before Archbald, P. J. It appears from the record that John Gibbons was summoned before examiners appointed to take testimony in the contested election case of M. J. Kelly for the office of county treasurer of Lackawanna.

<p>Appeal, No. 145, Oct. T., 1898, by defendant, from judgment of C. P. No. 3,.Phila. Co., Sept. T., 1895, No. 587, on verdict for plaintiff).</p>

Appeal, No. 17, Oct. T., 1898, by plaintiff, from decree of C. P. Montgomery Co., March T., 1897, No. 5, dismissing bill in equity. Hearing on bill, answer and proofs.

Appeal, No. 89, Oct. T., 1898, by plaintiffs, from judgment of C. P. Lancaster Co., May T., 1896, No. 10, on compulsory nonsuit. Trespass for damages sustained by reason of injuries received by plaintiffs through alleged neglect of defendant in not keeping a public road in safe condition. Before Livingston, P. J. The facts sufficiently appear in the opinion of the court. Plaintiffs claimed damages to the amount of $810.

<p>Appeal, No. 180, Oct. T., 1898, by plaintiff, from order of C. P. No. 4, Phila. Co., Sept. T., 1898, No. 206, refusing judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit sur ground rent deed. Before the court in banc.</p> <p>It appears from the record and evidence that plaintiff brought suit to recover the amount of $28.50 being six months’ ground rent due September 1,1898, on premises southeast side of Sepviva street and southwest side of Pepper street, Philadelphia. James Wiley, a terre-tenant, filed an affidavit of defense alleging a tender as follows:</p> <p>“ City and County of Philadelphia, ss.</p> <p>“ James Wiley, being duly sworn deposes and says, that he is the owner in fee of the premises out of which the ground rent issued, six months’ arrears upon which is the basis of the above suit. That he has a just, true and legal defence to the whole of the plaintiff’s cause of action of which the following is a statement:</p> <p>“ That on or before the 30th day of August, A. D. 1898, he went to the office of Charles H. Pile, Esq., attorney for the above named plaintiff, and there made him a tender which was refused and the reason for such refusal is set forth in the letter of August 30,1898, from Charles H. Pile, Esq., to Frederick J. Shoyer, Esq., counsel for this deponent, the following of which is a copy:</p> <p>“ ‘ In re Ground Rent of $57.</p> <p>“ ‘ Premises S. E. Sepviva and Pepper Sts.</p> <p>“ ‘ My Dear Sir: The reason I decline your tender of $1,029.21 in the above matter, and decline to have the extinguishment of ground rent executed, is because of the fact that you had not included in the amount tendered the judgment and costs recovered in C. P. No. 3, December term, 1896, No. 542. Judgment was entered on February 20, 1897, for two years’ ground rent and interest amounting to $122.50 with interest from that time and the record costs are $48.40. The same have not been paid nor are they included in your tender and until the principal of the ground rent and all arrears, etc., are paid, I am obliged to advise my client not to execute the extinguishment of ground rent nor regard your tender as a payment in full.</p> <p>“ * Yours truly,</p> <p>[Signed] “ ‘ Chas H. Pile.</p> <p>“ ‘ F. J. Shoyer, Esq.,</p> <p>“ ‘1104 Girard Building. August 30, 1898.’</p> <p>“ This deponent avers that said tender included the entire amount necessary to extinguish said ground rent, with the exception of the judgment of $122, with interest and costs which was recovered by the plaintiff in the court of common pleas, No. 3, December term, 1896, No. 542.</p> <p>“ That the arrears of ground rent for which said judgment was recovered were all due September 1,1896. That said premises were purchased by this deponent from Samuel M. Clement, sheriff, at public sale on the 2d day of November, A. D. 1896, and a deed duly acknowledged and delivered to your deponent for the same. That by operation of law the defendant took said premises, freed and discharged of said judgment and interest and costs therein.</p> <p>“That therefore the tender made as above set forth was a good tender in law, and by reason thereof and the refusal by the plaintiff to accept said tender on the ground hereinbefore set forth, there is not due and owing to said plaintiff any sum of money whatever, except as above set forth.</p> <p>“ That said tender is hereby renewed, and the defendant is ready and willing to bring into court the said sum of $1,029.85 in full extinguishment of said ground rent and all arrears thereon, and says that the plaintiff is not entitled to judgment for the amount claimed in his declaration filed. All of which facts this deponent avers to be true and expects to be able to prove on the trial of the cause.</p> <p>[Signed] “ James Wiley.</p> <p>Sworn and subscribed to before me ) this 4th day of Oct., A. D. 1898. )</p> <p>“ Evan S. Lewis,</p> <p>“Notary Public.”</p> <p>The court discharged rule for judgment for want of a suffi cient affidavit of defense. Plaintiff appealed.</p> <p>Error assigned was refusing to grant judgment to the plain tiff for want of a sufficient affidavit of defense.</p>

Appeal, No. 5, Feb. T., 1899, by-plaintiff, from judgment of C. P. Lycoming Co., March T., 1896, No. 535, on verdict for defendant. Assumpsit. Before Metzger, P. J. It appears from the evidence that plaintiff brought an action to recover the price of a show case consigned to defendant by plaintiff upon the order of C. W. Wheeland. The action was founded on a book account charging defendant with $45.00 entered on April 4, 1895.

Appeal, No. 3, Jan. T., 1899, by de fendant, from order of C. P. Luzerne Co., Oct. T., 1897, No. 850, refusing rule to open judgment. Rule to open confessed judgment. Before Schuyler, P. J., of the 3d judicial district, specially presiding.

Appeal, No. 18, Jan. T., 1899, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1898, No. 152, in favor of defendant on case stated. Case stated on petition of Harry Liem for writ of mandamus.

Appeal, No. 15, Feb. T., 1899, by plaintiff, from judgment of C. P. Potter Co., Dec. T., 1897, No. 117, on verdict for defendant. Trespass quare clausam fregit. Before Morrison, J. The undisputed facts are sufficiently set out in the opinion of the court.

<p>Insurance — Smoke—“Fire out of place" — Question for jury.</p> <p>If the smoke that did the damage, for which insurance is claimed proceeded from a fire “ out of place” it is no answer to say that it originated in a fire in the place fitted and intended for it. The question whether the smoke proceeded from a fire “ outside the place,” where under the contract of insurance, it was intended to burn is one for the jury under the evidence of the particular case.</p>

<p>Mechanic's lien — Subcontractor—Lumping charge.</p> <p>A charge of “ mldgs., doors and sash, as per est. $411.78,” in a mechanic’s lien, filed by a subcontractor, is bad as a lumping charge and is not in strict compliance with the provisions of the Act of June 16, 1886, P. L. 695, sec. 11.</p>

Appeal, No. 125, Oct. T., 1898, by plaintiffs, from order of C. P. No. 2, Phila. Co., Sept. T., 1892, No. 637, striking off mechanic’s lien and judgment. Rule to strike off mechanic’s lien and judgment entered thereon. It appears from the record that on October 11, 1892, plaintiffs filed a mechanic’s lien upon which a scire facias issued December 9, 1892. On October 27, 1897, the verdict was entered after due trial in the sum of $405.74.

<p>Appeal, No. 200, Jan. T., 1897, by the Penn Mutual Life Insurance Company, from decree of Q. S. Pbila. Co., quashing petition for the appointment of road jurors to assess damages.</p> <p>Petition for appointment of road jurors to assess damages.</p> <p>It appears from the evidence that the Penn Mutual Life Insurance Company owned in fee certain properties Nos. 921 to 925 Chestnut street with a front on Chestnut street of seventy-seven feet one and one half inches extending in depth northwardly 130 feet, then narrowing to sixty-four feet one and one half inches and extending of that width forty-eight feet, then widening again on the west side to width of sixty-eight feet one and one half inches, and extending of that width forty-four feet to Chant street. That the said premises have a front of ninety-two feet on a twelve-foot street called Kelly street, running along the west side of the premises northward to Chant street. That on erecting its building flanking or fronting Kelly street the petitioner was required in accordance with the act of assembly to abandon to public use a strip on Kelly street four feet wide and forty-four feet long running south from Chant street. And that the said strip of ground has been taken by the city of Philadelphia for use as a public street and that the petitioner is injured.</p> <p>The situation is shown by the following plan:</p> <p> </p> <p>The prayer was for the appointment of a jury to assess damages sustained. After regular continuances the case was argued and depositions filed and on March 18, 1897, the petition was quashed and proceedings dismissed, whereupon the petitioner appealed.</p> <p>Error assigned was in quashing the petition and dismissing the proceedings.</p>

Appeal, No. 22, Oct. T., 1898, by defendant, from judgment of C. P. Montgomery Co., June T., 1897, No. 160, on verdict for plaintiff. Trespass. Before Weahd, J. The facts sufficiently appear from the charge of the court below: - • This action is brought to recover damages nominally for the obstruction of a right of way.

Appeal, No. 59, Oct. T., 1898, by the city of Philadelphia, from judgment of Q. S. Phila. Co., March T., 1897, Court No. 3, sustaining exceptions to report of viewers. Exceptions to report of viewers. Before MoMichael, J. It appears from the record and evidence that a jury was appointed to consider the damages caused by reason of the opening of Orkney street from Ontario to Westmoreland street.

<p>Appeal, No. 103, Oct. T., 1898, by defendant, from judgment of C. P. Delaware Co., June T., 1897, No. 176, on verdict for plaintiff.</p> <p>Opinion by Smith, J.</p> <p>Assumpsit. Before Claytoh, P. J.</p> <p>It appears from the evidence that defendant company was authorized to erect poles and run wires for the purpose of its business in and over the avenues, streets and alleys of the borough in consideration of which it was to furnish and maintain certain street lights free of charge as long as the poles of the company remained in the borough. In carrying out the contract the company erected 118 poles to be used in connection with its business. Subsequently on May 18,1896, the borough council passed an ordinance requiring a license fee of $1.00 to be taken out. This was while the contract for lighting the streets was in force and while the ordinance of September 10, 1890, providing for the furnishing of free lights was also in force and complied with by defendant.</p> <p>Yerdict and judgment for plaintiff for $125.08. Defendant appealed.</p> <p>Errors assigned were (1) in admitting in evidence the ordinance of May 18,1896, notwithstanding objection of defendant. (2-5) In not affirming first, second, third and fourth points of defendant, which were: “1. No license fees are due for poles erected and used in, and necessary for the carrying out of the contract for lighting the streets of the borough made between the plaintiff and defendant. 2. No license fees are due on poles erected previous to the passage of the ordinance. 8. Under all the evidence the defendant, if liable at all, is liable only to the payment of a reasonable sum to cover the expense of supervision and inspection of poles, and the burden of proving • what is such reasonable sum is on the plaintiff, and if the plaintiff has been to no expense for such inspection there can be no recovery.. 4. Under all the evidence the verdict must be for the defendant.” (6) In entering judgment for plaintiff.</p>

<p>Appeal, No. 104, Oct. T., 1898, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1895, No. 50, on verdict for plaintiff.</p> <p>Opinion by Smith, J.</p> <p>Verdict and judgment for plaintiff for 1132.90. Defendant appealed.</p>

<p>Promissory notes — Collateral note — Release of indorser.</p> <p>The principle, that nothing short of an agreement to give time which binds the creditor and prevents his bringing suit will discharge the surety, applies with like force to the makers and indorsers of commercial paper. Giving time and a contract to give time ar-e distinct and independent, things</p> <p>Banks and banking — Deposits of maker of note — Application in relief of indorser.</p> <p>Where a bank has a deposit at the maturity of a note belonging to the maker he must retain it for the benefit of the indorser or the latter will be relieved from liability; the deposit must be sufficient at the maturity of the note; subsequent deposit will not raise the duty. In the absence of evidence showing the state of the maker’s account at the time of maturity of the note on which suit was brought against the indorser, the rule could not be applied.</p> <p>Evidence — Legal effect of a written instrument — Province of court and jury.</p> <p>It is within the province of the court to pass upon the evidence when the facLs or conclusions to be drawn from them are not in dispute; and when the evidence involves the intrinsic effect of a paper its construction is exclusively for the court. When, however, the question is not the legal effect of a written instrument and it is offered as evidence of a fact merely, its interpretation is for the jury.</p> <p>Evidence — Effect of notary's certificate of protest — Preliminary proof to raise presumption— Question for jury.</p> <p>The protest of a notary public has the probative force of a deposition only; it is but the substitute for oral testimony delivered at bar.</p> <p>The receipt of notice of protest having been denied by defendant indorser, evidence that the notice of protest was a “prepaid letter” or that it was properly stamped for transmission and delivery was part of the preliminary proof in order to raise presumption of delivery by mail to the defendant. Such preliminary proof being absent both in the notary’s certificate and the oral testimony given at the trial, it was error to give binding instructions in favor of the plaintiff; like all questions resting in parol it was for the jury to decide under proper instructions.</p>

<p>Appeal, No. 105, Oct. T., 1898, by defendant, from judgment of C. P. Delaware Co., June T., 1897, ■ No. 2, on verdict for plaintiff.</p> <p>Opinion by Smith, J.</p> <p>Verdict and judgment for plaintiff for $132.90. Defendant appealed.</p>

Appeal, No. 214, Oct. T., 1897, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 48, on verdict for plaintiff. Opinion by W. W. Porter, J. Trespass. Before Clayton, P. J. It appears from the record that this suit was brought to recover damages sustained to plaintiff’s property by reason of the construction of a trolley road near the curb line, the middle of the street being already occupied by the tracks of another road.

Appeal, No. 21, Feb. T., 1899, by defendant, from order of C. P. McKean Co., Dec. T., 1898, No. 163, dismissing petition to have execution set aside. Opinion by Beeber, J. Petition and affidavit to have execution set aside. Before Morrison, J. The facts sufficiently appear in the opinion of the court. The court below discharged the defendant’s petition. Defendant appealed. Error assigned was discharging defendant’s petition.

<p>Appeal, No. 18, Feb. T., 1899, by plaintiff, from judgment of C. P. Lycoming Co., Sept. T., 1898, No. 360, striking off mechanic’s lien.</p> <p>Opinion by W. W. Porter, J.</p> <p>Rule to strike off mechanic’s lien. Before Metzger, P. J.</p> <p>It appears from the record that plaintiff, a subcontractor, filed a lien against a house owned by Hettie K. Dean for $320, and built by David P. Guise, contractor, the contract having been entered into on January 10, 1897. On February 13, 1897, the following stipulation was entered into between the owner and contractor and filed in the court of common pleas to No. 10, March term, 1897, M. L. D.</p> <p>“ Be it remembered that David P. Guise, of Williamsport, Lycoming county, Pa., of the one part, and Hettie Kern Dean, of the same place, of the other part, have this 10th day of February, A. D. 1897, under their hands and seals, entered into a written contract for the erection and completion by the said David P. Guise, for the consideration therein named, for the said Hettie Kern Dean, a two-story brick dwelling house upon a lot of land situate in Yallamont, in the township of Loyalsock, county and state aforesaid, being the northwest corner of Campbell street and Glenwood avenue, as shown upon the general plan of said Vallamont, and that said contract contains the following covenant against filing of record in said court mechanic’s lien or liens against said dwelling and lot, viz : ‘It is expressly covenanted and agreed by and between the parties hereto, that no mechanic’s lien or liens shall be entered against said building and lot by the said contractor or subcontractors, material men or laborers, for work and labor done or material furnished upon and to said dwelling or on the credit thereof; and that all subcontractors, material men and laborers on said work shall look to and hold the said contractor personally liable for all subcontracts, work and labor done and materials furnished on said work.’ That said contract, together with said stipulation against the filing of mechanic’s liens contained therein was entered into and was executed by the parties hereto before work was authorized to commence or proceed under the said contract.</p> <p>“ In witness whereof we have hereunto set our hands and seals this 10th day of February, A. D. 1897.</p> <p>“D. P. Guise. (Seal)</p> <p>“ Hetty Keen Dean. (Seal)</p> <p>“Filed and entered this 12th day of February, A. D. 1897.</p> <p>“ Chas. B. Vandine,</p> <p>“ Prothoiiotary.”</p> <p>The owner moved to strike off the lien on the ground that the contract contained a covenant against filing liens. The rule was made absolute in an opinion by Metzgee, P. J., as follows:</p> <p>The stipulation filed in the court of common pleas to No. 10, March term, 1897, is in our judgment a compliance with the act of assembly of June 26, 1895. It is an original paper signed by both parties, and their signatures are undisputed, and the mere fact that it is copied from the covenants contained in the contract cannot change the character of the instrument. It is difficult for us to discover any reason for filing more than this stipulation. It gives the information and notice intended by the act, and is therefore a substantial compliance with its provisions. Therefore, now, to wit: November 12,1898, the rule to strike off the mechanic’s lien in this case is made absolute.</p> <p>Plaintiff appealed.</p> <p>Error assigned was making absolute rule to strike off mechanic’s lien.</p>

Appeal, No. 2, Feb. T., 1899, by defendant, from judgment of C. P. Potter Co., Dec. T., 1896, No. 260, on verdict for plaintiff. Opinion by Beaver, J. Trespass. Before Olmsted, P. J. It appears from the evidence that the action was brought to recover damages alleged to have been sustained by plaintiff by reason of a bridge giving way over which he, with others, was crossing in the township of Roulet in Potter county.

<p>Appeal, No. 8, Feb. T., 1899, by-Elizabeth D. Kane, from order of Q. S. McKean Co., June Sess., 1898, No. 48, granting a wholesale liquor license.</p> <p>Opinion by Rice, P. J.</p> <p>Petition for wholesale liquor license. Before Morrison, J.</p> <p>The facts sufficiently appear from the opinion of the court below, as follows:</p> <p>The petition and bond are in due form and properly signed and executed. The petition is supported by a supplemental petition signed by a large number of residents of the borough of Kane. The applicant is a man of temperate habits and of good moral character. He has rented and is in control of a suitable, well located room for a wholesale liquor store. He has been in the hotel business and held a license for the sale of intoxicating liquors in the counties of Warren and McKean for many years. We are satisfied that he is competent to manage a wholesale liquor store in a lawful manner, and that he can command sufficient capital to stock and carry on such a business in accordance with the provisions of the law.</p> <p>Kane borough is a flourishing business place with three railroads, one of which is the Philadelphia and Erie, passing through it. Upon the question of public necessity there is as much reason for wholesale liquor stores in Kane as in any place of its size. It has a population of nearly 7,000.</p> <p>A very large number of men and women, residents of Kane borough, have remonstrated against the granting of this license, on the ground that there is no public necessity for it. We have not the slightest doubt but these good people would remonstrate just as vigorously if Kane borough had a population of 100,000. And with our knowledge of the man, the place, the business opportunity, and our acquaintance with the people of Kane, and giving due weight to the petitions and remonstrances, it seems to us that tliis license should be granted.</p> <p>But we are met with another objection which rises as follows : The building for which the license is asked is erected upon a lot of land, upon the principal street of the borough, which was conveyed by Elizabeth D. Kane to one Leonard, by deed February 2, 1886, recorded in deed book, vol. 32, p. 333. This deed contains the following: “ Iteserving also and conferring upon the party of the first part, her heirs and assigns, the right to enter and tear down any house or building upon the said lot used for the sale of spirituous or fermented beverages, or for the promotion or convenience of illicit sexual intercourse, or indecent or immoral practices, the party of the second part, his heirs and assigns, assuming hereby all liability for damage or injury to persons or property of themselves or others resulting from the exercise of the said right.”</p> <p>The applicant rents his rooms from persons who hold under the above deed from Elizabeth D. Kane.</p> <p>It is argued that the above reservation requires the court to refuse the applicant’s license.</p> <p>Covenants and conditions contained in deed prohibiting the grantee and those holding under him from using the premises, or any portion thereof, for the sale of intoxicants, are not uncommon and have been sustained and enforced by the courts of the United States and the courts of Pennsylvania.</p> <p>In Cowell v. Colorado Springs Co., 100 U. S. Rep. 55, the deed contained the following condition: “That intoxicating liquors shall never be manufactured, sold, or otherwise disposed of, as a beverage, in any place of public resort on the premises and if this condition be broken by the grantee, his assigns or legal representatives, this deed shall become null and void,.and the title of the premises shall revert to the grantor.”</p> <p>This condition was broken by the sale of intoxicants and the grantor brought an action to recover the property. . Held that the condition was not contrary to public policy, and the grantor could recover.</p> <p>A condition in a deed declaring that the sale upon the premises of intoxicating liquors shall render the deed void and that the estate granted, shall revert to the grantor, is valid: Lehigh Coal and Navigation Co. v. Gluck, 5 Pa. C. C. R. 662.</p> <p>Where real estate is conveyed, and by the deed the grantee agrees not to sell liquors on the premises, the covenant is one Avhich runs with the title, and extends to later owners, although not so stated in express words. The court will refuse a license to a building erected on land where such a provision is in the line of the title: Snyder’s License, 2 Dist. Rep. 785.</p> <p>We can agree with the doctrine of the last case as to the grantee who agreed not to sell liquors on the premises, but that this covenant runs with the title and extends to later owners is doubted.</p> <p>The acceptance by a grantee of a deed with a lawful condition, is in law a covenant that he will not violate: Blood v. Crew, 177 Pa. 606.</p> <p>It has been decided that even when restrictions are not the subject of what can be strictly called a covenant, compliance with them may be enforced in equity in order to carry out the full intent of the original conveyance.</p> <p>But now turning to the Elizabeth D. Kane deed, is the so-called reservation a lawful one? Suppose liquors were sold in the building thereon would any court of equity decree that the building should be torn down, or tie up the hands of the owner by an injunction so as to permit the grantor to tear down the building and thus enforce this remarkable provision?</p> <p>W e think this clause is contrary to public policy and that the courts will not enforce it. It should be noticed that it was not framed with any idea of appealing to the courts for its enforcement. ' But the grantor undertook to reserve to herself the right to enter upon the grantee’s real estate and tear down any house or building upon the said lot used for the sale of spirituous or fermented beverages. Now, this lot was sold for about $1,000, and let us suppose that the grantee has erected thereon a brick block of the value of', say $20,000, then suppose that the owner has procured a license and established a wholesale liquor store in said building, would the law permit the grantor to enter upon the premises and tear down the building ? We think not upon the reservation contained in tins deed. The right of a grantor to insert in his deed of land a condition or covenant that the land shall not be used for the sale of intoxicating liquors cannot be doubted, but the reservation in this deed is not a covenant or condition on the part of the grantee or his legal representatives that they will not sell intoxicating beverages in any house or building upon the lot. ■ But on the contrary, it is an attempt to reserve to the grantor the right to tear down the grantee’s house or building, it seems to us that the grantee and those holding under him had a right to assume that the courts would not enforce this singular provision. The law recognizes the wholesaling of spirituous liquors, under a license, as a lawful business, and we do not think the clause in this deed will justify the court in refusing a license to a man who desires to engage in this business.and is otherwise qualified, and where there appears to be a public necessity for the business, within the meaning of the law.</p> <p>The bond will be approved and the license granted as prayed for in the petition. And at the request of the counsel for the objectors we note an exception to this ruling and seal a bill, this 24th day of May, 1898.</p> <p>Elizabeth D. Kane appealed.</p> <p>Error assigned was to the order of the court granting the license as prayed for.</p>