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Full text of "Pennsylvania Superior Court reports"

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PENNSYLVANIA ^ 

SUPERIOR COURT REPORTS. 



VOL. 6. 



CONTAI.NIJJO 



CASES ADJUGDED 



IN TlIK 



Superior Court of HJeunagbania. 



WII^ON C. KRESS, 

STATE RBPORTKK, 
AND 

EDWARD P. ALLINSON, 

ASSISTANT 8TATK HKPOUTEU. 



CONTAINING 

CA8E8 DECIDED AT NOVKMBKIi TEKM, 1807, AND JANUARY AND 
FEBBUAKY TERMS, 1808. 



NEW YORK AND ALBANY: 

BANKS & BROTHERS, LAW PUBLISHERS. 

1898. 



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't'i 



Copyright, 1898, 

I>y DAVID MARTIN, Secretary of the Commonwealth, 

for the State of Pennsylvania. 



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Google 



JUDGES 



OF THE 



SUPERIOR COURT OF PENNSYLVANIA 



DURING THE PERIOD OF THESE REPORTS. 



President Judge, . . . Charles E. Rice. 

Judge, .... John J. Wickhajvi. 

Judge, . . . James A. Beaver. 

Judge, .... Howard J. Reeder. 

Judge, . . . George B. Orlady. 

Judge, .... Peter P. Srhth. 

Judge, . . . William W. Porter. 



ATTORNEY GENERAL, 
Mr. Henry C. McCormick. 



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JUDGES OF THE COURTS BELOW 

PUKING THK PBKIOD OP THKSE UEPOUTS. 

I>I8T. 

1st — ^Pliilatlelpliia County. 

ConrU qf Common Pleas, 
No. 1: Ckaio Hidi>lk, P. J.; F. AmAuAk Batox and Abkaham 
M. Bkitlek, J J. 

No. 2: Samuki. W. Pknnypackkr, P. .1.; Matkr Sulzdbbger ami 
William W. Wiltbank, JJ. 

No. 3: Thomas K. Fixlkttkii, P. J.; James Gay Gordon and 
Oharlks B. McMichakl. JJ. 

No. 4: Michael Arnold, P. J.; Hobkrt N. Willson and Charles 

T. AUDENBIEO, JJ.^ 

Oiyham^ Court, 
William B. Hanna, P. J.; William N. Ashman, Clement 15. 
Penrose and Joseph C. Ferguson, J J. 

2d — Lancaster County. 

John U. Livingston, P. J. ; H. Clay Brubaker, J. 
3d — ^Nortlianipton County. 

W. W. Schuyler, P. J.; Henry W. Scott, J. 
4t1i — Tioga County. 

John I. Mitcheli^ P. J. 
5tli — ^Allegheny County. 

CourU qf Common Plea9, 
No. 1: Edwin H. Stowe, P. J.; Frederick H. Collier and Jacob 
F. Slagle, JJ. 

No. 2: Thomas Ewing, P. J.; John W. F. White and Robert 
S. Frazer, JJ. 

No. 3: JobnM. Kennedy, P. J.; William D. Porter and Samuel 
A. McClung, JJ. 

Orphans' Court, 
William G. Hawkins, Jr., P. J.; James W. Over, J. 
Ctb— Erie County. 

Emory A. Walling, P. J. 
7th— Bucks County. 

Harma-n Yerkes, p. j. 
8th — Northumberland County. 

Clinton R. Savidge, P. J. 
Otb— Cumberland ('ounty. 

Edward W. Biddle, P. J. 
JOth — Westmoreland County*. 

LuciEN W. Doty, P. J.; Alex. D. McConnell, J. 
1 ] th — Luzerne County. 

Court qf Common Pleas, 
Stanley Woodward, P. J.; John Lynch and L. U, Bennett, JJ. 

Orphans' Court, 
Alfred Darte, P. J. 

(V) 



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Ti JUDGES OF THE COURTS BELOW. 

12th — Daupliin County. 

John W. Simonton, P. J.; John B. McPhkrsox, J. 
13th— Greene County. 

R. L. Crawfohd, p. J. 
14th — Fayette County. 

Nathaniel Ewing, P. J.; S. L. Mkstkkzat, J. 
15th — Chester County. 

AVilliam B. VVahdell, P. J.; Joskph Hkmphili., J. 
16th — Bedford County and Somerset County. 

J. H. LONOKNBCKEK, P. J. 

I7th— Union County and Snyder County. 

Hakold M. J^IcClukjc, P. J. 
18th — Clarion County. 

E. HkATH Cl.AUK, P. J. 
19th— York County. 

John W. Bittenokr, P. J.; W. P. Bay Stkwakt, J. 
20th— Huntingdon County and Mifflin County. 

John M. Bailky, P. J. 
2l8t— Scliuylkill County. 

Court of Common Pleas, 

Cykub L. PEiiSuiNG, p. J. ; Oliveh p.. Bechtel and Mason Weid- 
MAN, JJ. 

Orphans^ Court. 
P. M. Dunn, P. J. 

22d — Wayne County and Pike County. 

Geokgk S. Pukdy, p. J. 
2Sd — Berks County. 

Court of Common Plecis, 

James X. Eumentrout, P. J.; Gustav. A. Endlich, J. 

Orphans^ Court. 

H. Willis Bland, P. J. 
24th— Blair County. 

Martin Bell, P. J. 
25th — Clinton County, Cameron County and Elk County. 

Chaiu.es a. Mayer, P. J. 
2Gth— Columbia County and Montour County. 

E. U. Ikeler, p. J. 
27th — AVashlngton County. 

John Add. McIlvaine, P. J. ; Jamks F. Tayj.or, J. 
28th — Venango County. 

Gkoroe S. Criswell, P. J. 
29th — Lycoming County. 

John J. Metzger, P. J. 
30th— Crawford County. 

John J. Henderson, P. J. 
3l8t — Lehigh County. 

Edwin Albright, P. J. 



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JUDGES OF THK COURTS BELOW. vii 

82d — DeU%vare County. 

Thomas J. Clayton, P. J, 
33d — Armstrong County. 

Calvin Uaybuhn, P. J. 
S4th — Susquehanna County. 

Danirl W. Sraulk, p. .J. 
35th — Mercer County. 

Samuel II. MiLLKit, P. J. 
36th— Beaver County. 

Jamks Sharp Wilson, P. J. 
37th — Warren County and Forest County. 

ChAULBS II. NOYRS, P. J. 

38th — ^Montgomery County. 

Aabon S. Swautz, p. J.; Hrnuy K. Wrani», J. 
39th — Franklin County. 

John Stewart, P. J. 
40th— Indiana Coimty. 

Hauuy Whitr, p. J. 
4l8t — Juniata County and Perry County. 

Jeremiah Lyons, P. J. 
42d — Bradford County. 

Benjamin M. Peck, P. J. 
43d — Carbon County and Monroe County. 

Allen Craio, P. J. 
44th — Wyoming County and Sullivan County. 

Edward M. Dunham, P. J. 
45th — Lackawanna County. 

lioBEirr WoDRow Archrald, p. J. : Frederick W. Gunster and 
Henry M. Edwards, J J. 

46th— Clearfield County. 

Cyrus Gordon, P. J. 
47th— Cambria County. 

A. V. Barker, P. J. 
48th — McKean County; Potter County attached. 

Arthur G. Olmsted, P. J.; Thomas A. Morrison, J. 
49th— Centre County. 

John G. Love, P. J. 
50th— Butler County. 

John M. Greer, P. J. 
5l8t —Adams County and Fulton County. 

Samuel McC. Swope, P. J. 
52d — Lebanon County. 

Allen W. Ehroood, P. J. 
53d — Lawrence County. 

William D. Wallace, P. J. 
54th — Jefferson County. 

John W. Reed, P. J. 



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TABLE 



CASES REPORTED IN THIS VOLUME. 






Page 


Abeles & Co. v. Powell, . 


. Promissoiy Note, 


. 123 


Ackley, Newlin v. . 


. Appeals, 


. 337 


Adam v. Moll, 


. Practice, C. P., 


. 380 


Addicks, Cooke & Co. v 


. Lex Loci, 


. 115 


Aid Society, Phillips v. 


. Insurance, 


. 157 


Altliouse V. Hunsberger 


» . Judgment, . 


. 160, 163 


Anderson v. McMichael 


, . Appeals, 


. 114 


Appeal, Carter & Co.'s 


. Contract, 


. 246 


Class & Nachod's 


. Transfer of License, . 130- 


Commissioners' 


. Statutes, 


. 464 


Fitter's • 


. Decedent's Estate, 


. 364 


Gibboney's 




. Liquor Law, . 


. 26, 323 


King's . 




. Will, . 


. 192 


Lapp's . 




. Appeals, 


. 143 


Rump's . 




. Evidence, 


. 435 


Wells's . 




. Contract, 


. 627 


Wells's • 




. Widow's Exemption, . 633 


Wolf's . 




• WiU, . 


. 401 


Worthington's 


. Practice, 0. C, 


. 484 


Application for License, 


. Liquor Law, . 


. 87 


Ascetylene Co. v. Beck, 


. Practice, C. P., 


. 584 


Auer V. Mauser, 


• Malicious Prosecution, . 618 


Batterton, Bogert v. 


. Actions, 


. 468 


Baun, Kelly v. 


. Contract, 


. 327 


Beck, Ascetylene Co. v. . 


. Practice, C. P., 


. 584 


Belber v. Belber, . 


. Execution, . 


. 861 


Bixler & Correll v. Lesh, 


. Contracts, 


. 459 


Bogert V. Batterton, 


. Actions, 


. 468 


Bolster, Clements v. 


. Epistolary Conti*ac 


ts, . 411 
(ix) 






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TABLE OF CASES REPORTED. 







Page- 


Boon, Newbold v. . 


. Banks and Banking, . 511 


Bouve, Crawford & Co., 


Lip- 




per V 


. Surrender of Lease 


, . 452 


Brass Co., Reger v. 


• Damages, 


. 375 


Brown, Killen v. . 


. Pi-actice, C. P., 


. 15 


Building Assn. v. Wampole, . Appeals, 


. 238 


Burlock, Schultz v. 


• Landlord and Tenant, . 673 


Carson v. Ford, 


. Judgment, . 


. 17 


Carter & Co.'s Appeal, . 


. Contract, 


. 246 


Chase, Skinner v. . 


. Judgments, . 


. 279 


Chester v. McGeoghegan 


, . Jurisdiction, J. P., 


. 358 


Chester Ry. Co., Deposit i 


Co. V. Street Railways, . 


. 204 


Christman, McKeone v. . 


. Appeals, 


. 569 


Christman, Phila. v. 


. Amendments, 


. 29 


Clark V. Koplin, 


. Mechanic's Lien, etc., . 462 


Class & Nachod's Appeal 


, . Transfer of License, . 130 


Claster Bros. v. Katz, 


. Sale, 


. 487 


Clements v; Bolster, 


. Epistolary Contracts, • 411 


Cleveland, Jones v. 


. Contract, 


. 640 


Coble V. Zook, 


. Practice, C. P., 


. 597 


Collins V. Ne^v8 Co., 


. Libel, . 


. 330 


Comly & Co. v. Simpson 


. Practice, C. P., . 


. 12 


Commissioners' Appeal, , 


. Statutes, 


. 464 


Commissioners, Com. v. 


. 'iaxation. 


. 211 


Com. V. Commissioners, 


. Taxation, 


. 211 


V. House, 


. Embezzlement, 


. 92 


y. Hutchinson, 


. Criminal Law, ■ 


. 405 


V. I^wis, . 


. Criminal Law, 


. 610 


V. MiUer, 


. Perjury, 


. 35 


V. Mitchell, 


. Criminal Law, 


. 369 


V. Nuber, 


. Criminal Law, 


. 420 


V. Page, . 


. Criminal Law, 


. 220 


V. Roclgers, 


. Partition, 


. 284 


V. Spencer, 


. Criminal Law, 


. 256 


V. Yeisley, 


. Public Officers, 


. 273 


Cooke & Co. V. Addicks 


, . Lex Loci, 


. 115 


Cooper V. Eyrich, . 


• Contract of Deced( 


mt, . 200 


Cridland, McNeile v. 


. Evidence, 


. 428 


Davis, Griffin v. 


^ Judgment ExecutL 


on, . 481 



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TABLE OF CASES REPORTED. 



•XI 



• 




Page 


Davis v. Hamilton, . 


Grant, .... 


562 


Difltiller's License, . 


Liquor Law, . 


87 


Downing, Phila. Boui-se v. 


Contract, 


590 


Doyle V. Longstreth, 


Landlord and Tenant, . 


475 


Dreibilbis v. Esbenshade, 


Charge of Court, . 


182 


Diinlap, Leader v. . 


Appeals, 


243 


Dunleavy, Gilmore & Duify v. 


Appeals, 


603 


Esbenshade, Dreibilbis v. 


Charge of Court, . 


182 


Estate, Fell's .... 


Will, .... 


192 


Fitler's .... 


Decedent's Estate, 


364 


Heller's . . . • 


Contract, 


246 


Lowry's .... 


Appeals, 


143 


Potter's . . . 


Contracts, 


627 


Potter's .... 


Widow's Exemption, . 


683 


Royer's .... 


Will 


401 


Wile's .... 


Evidence, 


435 


Worthington's 


Practice, 0. C, 


484 


Eyrich, Cooper v. . 


Contract of Decedent, . 


200 


Farrell, Jackson v. . 


Landlord and Tenant, • 


81 


FeU's Estate, .... 


Will, .... 


192 


Ferree v. Young, . 


Practice, Superior Ct., . 


807 


Fitler's Estate and Appeal, . 


Decedent's Estate, 


864 


Ford, Carson v. . . . 


Judgment, . 


17 


Forney v. Huntingdon County, 


Practice, C. P., . 


897 


Fritehman, Myers v. 


Benefit Associations, 


580 


Gattle Bros. v. Krenip, . 


Sale, .... 


514 


' Gibboney's Appeal, 


Liquor Law, . . 26, 


323 


Gill & Fisher v. O'Rourke, . 


Evidence, 


605 


Gilmore & Duffy v. Dunleavy, . 


Appeals, 


603 


Glass Works, Russell v. . 


Evidence, 


118 


Goodman v. Transportation 






Co., 


Contract, 


168 


Gouchenauer, Trust Co. v. 


Execution, . 


209 


Gray v. Hartman, . 


Evidence, 


195 


Grier v. Homestead Borough, . 


Municipal Law, 


542 


Griffin v. Davis, 


Judgment Execution, . 


481 


Gwinn v. Lee, 


Partnership, . 


646 




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xu 



TABLE OF CASES REPORTED. 







Pajje 


Hafner, Ins. Trust Co. v. 


Party Walls, 


. 48 


Hamilton, Davis v. . 


Grant, . 


. 562 


Hanthom, Irwin v. . 


Practice, Superior Ct., 


. 165 


Harris, Zineman & Co. v. 


Contract, 


803 


Hartman, Gray v. . 


Evidence, 


. 195 


Haverford College v. Rhoads, . 


Charity, 


. 71 


Heller's Estate, 


Contract, 


. 246 


Heyer v. Piano Co., 


Bills of Exception, 


. 504 


Hires & Co. v. Norton, . 


Appeals, 


. 457 


Hoffman, Kimbrough v. . 


Relief Association, 


. 60 


Hoffner v. Prettyman, . 


Negligence, . 


. 20 


Homestead Borough, Grier v. . 


Municipal Law, 


. 542 


House, Com. v. . . . 


Embezzlement, 


. 92 


Hudson, Ross v. . 


Illegal Arrest, 


. 552 


Hunsberger, Althouse v. 


Judgment, . . 16i 


9, 168 


Huntingdon Count}^ Forney v. 


Pi-actice, C. P., 


. 897 


Hutchinson, Com. v. 


Criminal Law, 


. 405 


Ice Co. V. Pliila., . 


Public Officers, . 


. 299 


Ice & Coal Co., Kleinert v. . 


Negligence, . 


. 594 


Ingram, Pollock v. . 


Public Officei*s, 


556 


Ins. Co., Shanahan v. 


Insurance, 


. 65 


Ins. Co. V. Storage Co., . 


Contract, 


288 


Irwin V. Hanthom, 


Practice, Superior Ct., 


165 


Jackson v. Farrell, , 


Landlord and Tenant, 


31 


Jennings, Yuengling & Sons v. 


Insurance, . 


614 


Jones V. Cleveland, 


Contract, 


640 


Juenet, Mullen v. . 


Taxation, 


1 


Kahn v. Maguire, . 


Practice, C. P., . 


639 


Kamhuta v. Traction Co., 


Question for Jur}% 


319 


Katz, Claster Bros. v. 


Sale, . . . . 


487 


Keenan v. Quigg, . 


Judgment, . 


58 


Kelly V. Baun, 


Contract, 


827 


Kemper, Omensetter v. . 


Evidence, 


309 


Kennedy v. Quigg, 


Mortgage, 


53 


Killen v. Brown, . 


Practice, C. P., 


15 


Kimbrough v. Hoffman, . 


Relief Association, 


60 


King's Appeal, 


Will, . . . . 


192 


Kleinert v. I^ & Coal Co., . 


Negligence, . 

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TABLE OF CASES REPORTED. 



Xlll 



Koch V. Kuhns, 
Koons V. McNaniee, 
Koplin, Clark v. 
Kremp, Gattle Bros 
Kuhns, Koch v. 



V. 



Lake v, Weber, 

Lamb v. Leader, 

Lapp's AppeaU 

Leader v. Dunlap, 

Leader, Lamb v. 

Lee, Gwinn v. 

Leah, Bixler & Correll v. 

Levy, Young, Smyth, Field & 

Co. V. . 
Lewis, Com. v. 
License, Distiller's 
Schellenberg's 
Transfer of 
Wacker's 
Lichtenwalner, Matten v. 
Lipper v, Bouv^, Cmwford & 

Co., 

Longstreth, Doyle v. 
Loose V. Scharfif, 
Louchheim v. Maguii'e, . 
Lowry's Estate, 
Luzerne Co., Wilkes-Barre 

Record v 

McCargo, Rohbock v. 
McGeoghegan, Chester v. 
McHenry's Petition, 
McKay v. Pearson, 
McKeone v. Christman, . 
McLaughlin, Rothschilds Son's 
Co. V. • • . • • 
McMichael, Anderson v. 
McNamee, Koons v. 
McNeile v. Ciidland, 
Maguire, Kahn v. . 



Paise 

Building Contract, • 186 

Easement, . . . 445 

Mechanic's Lien, • . 462 

Sale, .... 514 

Building Contract, . 186 

Misrepi^esentations, . 42 

Practice, Superior CL, . 50 
Appeals, . . .143 

Appeals, . . . 243 

Practice, Superior Ct., . 50 

Partnership, . . . 646 

Contracts, . . . 459 

Judgment, ... 23 
Criminal law, . .610 

Liquor Law, ... 87 

Liquor Law, ... 26 

Transfer of License, . 130 

Liquor Law, . . . 323 

Mutual Insurance, • 575 

Surrender of Lease, . 452 

Landlord and Tenant, . 475 

Landlord and Tenant, . 153 

Practice, C. P., . . 635 

Appeals, . . . 143 

Sheriff, ..... 600 

Landlord and Tenant, . 134 

Juiisdiction, J. P., . 358 

Statutes, • . • 464 

Actions, • . . 529 

Appeals, . . . 569 

Question for Jury, . 347 

Appeals, . . . 114 

Easement, . . . 445 

Evidence, . . . 428 

Practice, C. P., . . 639 



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XIV 



TABLE OF CASES REPORTED. 







Ptige 


iMaguire, Louchheim v. 


. Practice, Q. P., . 


. 635 


Matten v. Lichtenwalner 


, . Mutual Insurance, 


. 575 


Mauser, Auer v. 


. Malicious Prosecution 


, . 618 


Miller, Com. v. 


. Perjuiy, 


. 35 


Mitchell, Com. v. . 


. Criminal I^aw, 


. 869 


Moll, Adam v. 


. Practice, C. P., 


. 380 


Moore v. Phillips, . 


. Evidence, 


. 670 


Mullen V. Juenet, . 


. Taxation, 


1 


Myers v. Fritehman, 


. Benefit Associations, 


. 580 


My ton V. Wilson, . 


. Easement, 


. 293 


Newbold v. Boon, . 


. Banks and Banking, 


. 611 


Newlin v. Ackley, . 


. Appeals, 


. 337 


News Co., Collins v. 


. Libel, • 


. 330 


North & Co. V. Torke, 


. Practice, C. P., . . 


. 354 


Norton, Hires & Co. v. 


. Appeals, 


. 467 


Nuber, Com. v. 


. Criminal Law, 


. 420 


Omensetter v. Kemper, 


. Evidence, 


. 309 


O'Rourke, Gill & Fisher 


V. . Evidence, 


. 605 


Page,- Com. v. 


. Criminal Law, 


. 220 


Paul, Taylor v. 


. Sale, 


. 496 


Pearson, McKay v. 


. Actions, 


. 629 


Peck & Co. V. Stevenson 


, . Debtor and Creditor, 


. 636 


Penna. R. Co., Robinson 


V. . Eminent Domain, . 


. 383 


Penna. R. Co., S mucker 


v. . Riparian Rights, . 


. 621 


Petition, McHenrj^'s 


. Statutes, 


. 464 


Phila. V. Christman, 


. Amendments, 


. 29 


Ice Co. V. 


. Public Officers, . • 


. 299 


Bourse v. Downing, 


. Contract, 


. 690 


Phillips V. Aid Society, 


. Insurance, 


. 157 


Phillips, Moore v. . 


. Evidence, 


. 570 


Piano Co., Heyer v. 


. Bills of Exception, 


. 504 


Pollock V. Ingmm, . 


. Public Officers, 


. 656 


Potter's Estate, 


. Contracts, 


. 627 


Potter 8 Estate, 


. Widow's Exemi)tion, 


. 633 


Powell, Abeles & Co. v. 


. Promissory Note, . 


. 123 


Prettyman, Hofifner v. 


. Negligence, . 


. 20 


Quigg, Keenan v. . 


. Judgment, . 


. 58 


Q^gg? Kennedy v. . 


. Mortgage, 


. 58 




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TABLE OF CASES REPORTED. xV 

Page 
Railroad Co., Penna., Robin- 
son, v Eminent Domain, . .883 

Railroad Co., Penna., Smack- 
er y. . ... . Riparian Rights, . . 521 

Railway Co., Chester, Deposit 

Co. V Street Railways, . . 204 

Reger v. Brass Co., . . Damages, . . . 375 
Uhoads, Haverfoxti College v. Charity, ... 71 
Robin^on v. Railroad Co., . Eminent Domaui, . . 383 
Rodgers, Cora. v. . . . Partition, ... 284 
Rohbock V. McCargo, • . Landlord and Tenant, . 134 
Ross Y. Hudson, • , . Illegal Arrest, . . 652 
Rothschilds Son's Co. y. Mc- 
Laughlin, .... Question for Juiy, . 847 

RoyerJs Estate, ... . Will 401 

Ramp's Appeal, . . . EYidence, . . . 435 

Russell Y. Glass Works, . . EYidence, . . . 118 



Safe Deposit Co. y. Railway Co., 

Sattler, Taylor y. . 

Scharff, Loose y. 

Schellenberg's License, 

Schulfez Y. Burlock, 

Schuylkill Traction Co., Kara- 
huta Y. 

Shanahan y. Ins. Co., 

Simpson, Comly & Co. v. 

Skinner y. Chase, . 

Smucker y. Railroad Co., 

Snyder y. Steinmetz & Zear- 
foss, . 

Spencer, Com. y. . 

Steinmetz & Zearfoss, Sny- 
der Y. . 

Stevenson, Peck & Co. y. 

Storage Co., Ins. Co. y. 

Strouse, Yedinskey y. 



Taylor y. Paul, 
Taylor y. Sattler, 



Street Railways, . * . 204 

Practice, Superior Ct., . 229 

Landlord and Tenant, . 153 

Liquor Law, . . . 2t> 

Landlord and Tenant, . 678 

Question for Jury, . 319 

Insurance, . . .65 

Practice, C. P., . .12 

Judgments, . . . 279 

Riparian Rights, . . 521 

Question for Jury, . 341 

Ci-iminal Law, . . 256 

Question for Jury, . 341 

Debtor and Creditor, . 536 

Contract, . . .288 

Real Estate Broker, . 587 



. Sale, • . . .496 
• Practice, Superior Ct., . 229 



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xvi TABLE OF CASES REPORTED. 

Page 

Traction Co., Schuylkill, Kara- 

huta V Question for Jury, . 819 

Transportation Co., Good- 
man V Contract, . . . 168 

Trust Co. V. Gouchenauer, , Execution, . . . 209 

Trust Co. V. Hafner, • . Party Walls, . . 48 

Wacker's License, . . . Liquor Law, . . . 823 
Wanipole, Bldg. Assn. v. . Appeals, . . . 238 
Weber, Lake v. • . . Misrepresentation, . 42 
Wells's Appeal, . . . Contract, . . . 627 
Wells's Appeal, . . . Widow's Exemption, . 683 
Wile's Estate, . . . Evidence, . . . 435 
Wilkes-Barre Record v. Lu- 
zerne Co., .... Sheriff, .... 600 
Wilson, Myton v. . . . Easement, . . . 293 
Wolf's Appeal, . . . Will, .... 401 
Worthington's Est. and Ap- 
peal, Practice, O. C, • . 484 

Yedinskey v. Strouse, . . Real Estate Broker, . 587 

Yeisley, Com. v. . . . Public Officers, . . 278 

Yorke, North & Co. v. . . Pmctice, C. P., . . 854 

Young, Ferree v. . . . Practice, Superior Ct., • 807 
Young, Smyth, Field & Co. v. 

Levy, Judgment, ... 28 

Yuengling & Sons v. Jennings, Insurance, . . . 614 

Zineman & Co. v. Harris, . Contract, . . • 803 

Zook, Coble v. . . . Practice, C. P., . . 597 



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CASES CITED 

IN THR 

OPINIONS OF THE SUPERIOR COURT. 



Page 

AhPs Appeal, 129 Pa. 49 653 

Akers v. White, 94 Pa. 394 577 

Allentown v. Hower, 93 Pa. 332. 31 
Allgeyer v. Louisiana, 165 U. S. 

578 291 

Arnold v. Hamel, 9 Exch. 404. . 555 
Ashhurst v. Phonograph, Co., 

166 Pa. 357 456 

Atchison v. King, 9 Kan. 550. . . 549 

Auble V. Mason, 35 Pa. 261 500 

Auer V. Penn, 92 Pa. 444 142 

Auer V. Penn, 99 Pa. 370 456 

Aui-and v. Schaffer, 43 Pa. 363.. 500 

Bach man v. Fenstermacher, 112 

Pa. 331 561 

Backenstoss v. Stahler's Admin- 
istrators, 33 Pa. 251 535 

Bain v. Lyle, 68 Pa. 60 378 

Baker v King, 18 Pa. 138 528 

Baldwin v. Cole, 6 Mod. 212 ... . 532 

Bank v. Carter, 38 Pa. 446. .503, 539 

V. Earley, 115 Pa. 359 451 

V. Ellis, 161 Pa. 241 637 

V. Furman, 4 Pa. Superior 

Ct. 415 637 

V. Mix, 51 N. Y.558 HI 

V. Seitz Bros., 150 Pa. 632.. 514 

Battles V. Sliney, 126 Pa. 460. . . 549 

Bank v. Talbot, 154 Mass. 213. . 118 
Baranowski v. Aid Society, 3 Pa. 

Superior Ct. 367 65 

Ban- V. Boyles, 96 Pa. 31 277 

Beale v. Com., 25 Pa. 11 427 

Beaupland v. McKeen, 28 Pa. 

124 479 

Beihofer v, Loeffert, 159 Pa. 365. 626 

Bell V. McCloskey, 155 Pa. 319. . 520 

Bennett v. Williams, 57 Pa. 404. 162 

Benson v. Clark, 1 Cow. 258 111 

Berks Co. v. Jones, 21 Pa. 413.. 400 

Berwald v. Ray, 165 Pa. 192 237 

Best V. Baumgardner, 122 Pa. 17 . 463 
Bidwell V. Railway Co., 114 Pa. 

535 341 

Bigelow V. Jones, 27 Mass. 161 . . 527 



Page 
Billingsley v. White, 59 Pa. 464. 620 
Billington v. Sweeting, 172 Pa. 

161 501 

Blanchard v. Lambert, 43 Iowa, 

228 441 

Blaufus V. People, 69 N. Y. 107. 40 
Boards of Missiou^s Appeal, 91 

Pa 507 195 

Boies' Estate, 177 Pa. 190 195 

Booth V. Clive, 10 C. B. R. 827. . 555 
Boulden v. Mclntire, 119 Ind. 

574 441 

Bower v. Fenn, 90 Pa. 359 47 

Bower v. Hastings, 36 Pa. 285. . . 518 
Bowes V. Shand, L. R. 2 App. 

CriS68 455 25^ 

Bi-adleeV. Whitney, ios Pa. 362. 340 
Braunschweiger v. Waits, 179 

Pa. 47 47 

Breiden v. Paff, 12 S. & R. 430. . 441 
Breuckmannv.Twibill,89Pa.58. 456 

Brobst V. Ruff, 100 Pa. 91 626 

Brown v. Brooks, 25 Pa. 210 419 

V. Cora., 73 Pa. 321 104 

V. Dempsey, 95 Pa. 243 340 

V. Eccles, 2 Pa. Superior Ct. 

192 541, 543 

V. McKinley, 9 W. 565 318 

V. Morange, 108 Pa. 69 363 

V. Scott, 51 Pa. 357 461 

Brownfield v. Canon, 25 Pa. 299. 499 
Buckley v. Duff, 111 Pa. 223. . . . 451 
Buckley v. Duff, 114 Pa. 596. .. . 520 
Bughman v. Bank, 159 Pa. 94. . . 492 
Burford v. Fergus, 165 Pa. 310. . 282 
Burns v. Thornburgh, 3 W. 78. . 283 
Byrne v. Hayden, 124 Pa. 170.276, 379 

Cadwalader v. App, 81 Pa. 194. . 574 
Cairns v. Llewellyn, 2 Pa. Supe- 
rior Ct 599 139,455 

Calhoun v. Hays, 8 W. & S. 127. 104 
Campbell v. Com., 8 S. & R. 414. 278 

V. Gilbert, 6 Wh. 72 194 

V. O'Neill, 64 Pa. 290 451 

Canal Co. v. Dunkel, 101 Pa. 103. 526 

(xvii) 



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XVlll 



TABLE OF CASES CITED. 



Page 
Carlisle v. Stitler, 1 P. & W. 6. . 529 
Carman v. Noble, 9 Pa. 366. 278, 379 
(Jarpenter v. Koods, 20 Pa. 222. 479 
CaiToll V. Canoll, 20 Tex. 731.. 441 

(;arroll v. Cora., 84 Pa. 187 271 

(Jarter v. Caldwell, 147 Pa. 370. 30 
(^assidy v. Knapp, 167 Pa. 305. . 653 
Cliadwick v. Collins, 26 Pa. 1.S8. 689 
Cliarobers v. South Chester, 140 

Pa. 510 650 

Chandler v. Ins. Co., 88 Pa. 223. 451 
Cliapman v. Calder, 14 Pa. 365. . 336 
Charles v. Abell, Biightly Rep. 

131 624 

Christian v. Ice Co., 2 Pa. Supe- 
rior Ct. 320 596 

(Uiristy v. Sill, 131 Pa. 492 652 

Church V. Clime, 116 Pa. 146.. . 420 

Clark V. Smith, 25 Pa. 137 528 

Clement V. Phila., 137 Pa. 328.. 282 
Clow V. Woods, 5 S. & R. 275. . . 519 
Coal Co. V. Jones, 127 111. 379. . . 441 
Coal Co. V. Tosier, 102 Pa. 342. . 363 
Coates V. Wallace, 4 Pa. Supe- 
rior Ct. 253 3.S6 

Collins V. State, 33 Ala. 434 Ill 

Com. V. Arnold, 161 Pa. 320. .. . 508 

V. Bell, 166 Pa. 405 107 

V. Biddle, 139 Pa. 605 291 

V. Cover, 6 Cent. Rep. 685. . 107 
V. Doughty, 139 Pa. 383 ... . 104 

V. Gerade, 145 Pa. 289 501 

V. Gillespie, 7 S. & R. 469. . 268 

V. Gorham, 99 Mass. 420 40 

V. House, 3 Pa. Superior Ct. 

304 104 

V. Improvement Co., 163 Pa. 

99 237 

V. Johnson, 133 Pa. 293 107 

V. Kelley, 165 Mass. 176 112 

V. Lentz, 106 Pa. 643 560 

V. Lockwood, 109 Mass. 323. 40 
V. McDowell, 86 Pa. 377. .. . 451 

V. M'Gill, Add. 21 407 

V. McHale, 97 Pa. 397 409 

V. Mayloy, 57 Pa. 291 426 

V. Mentzer, 162 Pa. 646 612 

V. Middletown, 3 Dist. Rep. 

639 218 

V. Nichols, 114 Mass. 286. . . 108 
V. Ranxiolph, 146 Pa. 83 . ... 408 

V. Ross, 6 S. & R. 427 41 

V. Smith, 2 Pa. Superior Ct. 

474 69, 549 

V. Society, 8 W. & S. 247. . . 682 
V. Swayne, 1 Pa. Superior Ct. 

547 233 

V. Tad rick, 1 Pa. Superior 

Ct. 555 107 

v.ToUiver, 119 Mass. 312.... 108 
V. Union League, 135 Pa. 301. 682 
V. Warfel, 157 Pa. 444. ..277, 662 



Page 

Com. v. Wunch, 167 Pa. 186 218 

v. Yeisley, 6 Pa. Superior 

Ct. 273 379,562 

Conmey v. Macfarlane, 97 Pa. 

361 672 

Connell v. O'Neill, 154 Pa. 682. . 608 

Connery v. Brooke, 73 Pa. 80. . . 568 

Conroy v. Times, 139 Pa. 334. . . 336 
Contributors v. Delaware Co., 

169 Pa. 305 11 

Cooper V. Morris, 48 N. J. L. 607. 112 
Copperman v. People, 66 N. Y. 

691 411 

County V. Boyd, 113 Pa. 62 624 

County V. Holcomb, 36 Pa. 349. 39 

Cover V. Manaway, 115 Pa. 338. 346 

Coyle V. Com., 100 Pa. 573 501 

Crab tree v. Hagenbaugh, 23 HI. 

349 Ill 

Crawford v. Davis, 99 Pa. 576. . 620 

Cress V. Varnev, 17 Pa. 496 667 

Curtis V. Ford, 10 L. R. A. 629. 379 

Cuthbert v. Kuhn, 3 Wh. 357. . . 479 

Davidson v. Traction Co., 4 Pa. 

Superior Ct. 86 208 

Davis V. State, 14 Ind. 358 112 

Dawson v. Condy, 7 S. & R. 366. 484 
Dawson v. Pittsburgh, 159 Pa. 

317 660 

Dean's Appeal, 35 Pa. 406 19 

De Grote v. De Grote, 175 Pa. 60. 

70,433 
Delashman v. Berry, 20 Mich. 

292 455 

D. & H. Co. V. Loftus, 71 Pa. 418. 484 
Denniston v. Phila. Co., 1 Pa. Su- 
perior Ct. 599 69 

Dick V. Ireland, 130 Pa. 299 255 

Dickinson v. Calahan's Admrs., 

19 Pa. 227 202 

Diehl V. Rodgera, 169 Pa. 316. . . 40 
Dietz V. Langfitt, 63 Pa. 234. . . . 624 
Donoghue's Appeal, 5 Pa. Su- 
perior Ct. 1 90 

Doster v. Zinc Co., 140 Pa. 147. 666 

Dougherty v. Bash, 167 Pa. 420. 461 

Dowling V. Ins. Co., 168 Pa. 234. 70 

Downey v. Sharp, 63 Pa. 322 613 

Downing v. Com., 21 Pa. 215. . . 277 

Drake v. Laooe, 157 Pa. 17 654 

Drhew v. Altoona, 121 Pa. 401. . 191 

Driesbaok v. Monis, 94 Pa. 23 . . 484 

Duff V. Wilson, 69 Pa. 316 243 

Duffield V. Hue, 129 Pa. 94 255 

Duncan v. Sherman, 121 Pa. 520. 501 
Dunseath v. Traction Co., 161 Pa. 

124 322 

Earl V. Champion, 65 Pa. 191. . . 500 

Edmonson v. Nichols, 22 Pa. 74. 451 

Edwards, 58 Iowa, 431 441 



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TABLE OF CASES CITED. 



XIX 



Page 
Ellenberger v. Ids. Co., 89 Pa. 

464. 70 

EllioU T. Wanamaker, 155 Pa. 67. 65 
Hy V. Railway Co., 158 Pa. 236. 208 
Emery's Case, 107 Mass. 172 ... . 113 
Emery v. Steckel, 126 Pa. 171. . . 511 
Episcopal Academy v. Pbila., 150 

Pa. 566 86 

ETaDS V. Goodwin, 132 Pa. 132.. 654 

Evans ▼. Hall, 45 Pa. 235 360 

Erans v. Scott, 89 Pa. 136 520 

Ex parte Lange, 85 U. S. 163.. . . 113 
Ex part Lange, 18 Wall. 163.... 427 

Fairman v. Fluck, 5 Watts, 516. 35 
Feltonv. Weyman, 10 Pa. 70... 363 
Ferguson v. Wright, 61 Pa. 258. 451 

Ferrigan v. Cora., 44 Pa. 386 107 

Fick V. Jackson, 8 Pa. Superior 

Ct. 378 22 

Filbert v. Hawk, 8 W. 443 281 

Fish V. Smith, 12 Ind. 563 Ill 

Fisher v. Hart, 149 Pa. 232 198 

V. People, 23 ni 283 Ill 

V. Phila., 75 Pa. 392 528 

V. Worrall, 5 W. & S. 478. .. 47 
Titz V. Smallbrook, 1 Keble, 134. 40 
Forepau^h v. Railroad Co., 128 

Pa. 217 118 

Forrest v. Nelson, 106 Pa. 481. . 462 

Fobs v. Bogan, 92 Pa. 296 484 

Francis v. Francis, 180 Pa. 644. . 440 
Fuller V. Scranton, 2 Cent. Rep. 

788 548 

Fulmer v. Com., 97 Pa. 603 106 

Galloway's Appeal, 5 Pa. Supe- 
rior Ct 272 152 

Gamber v. Gamber, 18 Pa. 363. . 500 

Garret v. Rex, 6 W. 14 194 

Garrettson v. Hackenburg, 144 

Pa. 107 520 

Gearhart v. Dixon, 1 Pa. 224. . . 548 

Geible v. Smith, 146 Pa. 276 449 

GilftUen's Appeal, 170 Pa. 185. . 203 
Gillion V. Finley, 22 W. N. C. 

124 139, 454 

Gilmore v. Reed, 76 Pa. 462 282 

Ginther v. Yorkville, 3 Pa. Supe- 
rior Ct. 403 461 

Glass Co. V. Storms, 125 Pa. 268. 

306 353 
Goddard v. Weil, 165 Pa. 419. . ! 520 
Godshalk v. Metzgar, 23 W. N. 

C. 541 336 

Goerson v. Com., 99 Pa. 388 107 

Goodman v. Transportation Co., 

3 Pa. Superior Ct. 282 180 

Goss P. Co. V. Jordon, 171 Pa. 

474 521 

^^uld V. Ins. Co., 134 Pa. 588. . . 616 



Page 
Gk>wan v. Glaser, 3 Cent Rep, 

109 237 

Grace Church v. Dobbins, 153 Pa. 

294 449 

Graham v. Houston, 4 Dev. 232. 527 
Grambs v. Lynch, 4 Penny. 243. 529 
Grandin v. Ins. Co., 107 Pa. 20. 255 
Green v. Blackwell, 32 N. J. 

Eq. 768 326 

Green v. Kellum, 23 Pa. 254 628 

Green v. Sperry, 16 Vt 390 534 

Gi-eensboro v. Underbill, 12 Vt 

604 441 

Griffith V. Knarr, 1 Pa. Superior 

Ct 379 235 

Griffith V. Sitgreaves, 81* Pa. 378 241 
Groezinger v. Ostheira, 135 Pa. 

g()4 4^ 

Gump V. Goodwin, 172 Pa. 276. . 284 

Hagan v. Lucas, 10 Peters, U. S. 

400 379 

Harbi8<m v. Gilliland, No. 217 

Oct & Nov. T., 1886, Pitts- 
burg 134 

Harding v. Seeley, 148 Pa. 20. . . 456 
Harris v. Traction Co., 180 Pa. 

184 508 

Hart V. Boiler, 15 S. & R. 162. . . 461 

V. Skinner, 16 Vt 138 534 

V. Trust Co., 118 Pa. 505. . . 513 
Hart, Lee & Co.'s Appeal, 157 

Pa. 200 601 

Hartley v. Decker, 89 Pa. 470. . . 236 
Hartzell v. Reiss, 1 Binn. 288. . . 363 
Hastings v. Lolough, 7 W. 540. . 363 
Haws V. Fire Assn., 114 Pa. 431. 255 
Hayes <& Black v. Mouille <fe Co., 

14 Pa. 48 269 

Hazelhui-st v. Bayard, 3 Y. 152. 283 
Heath v. Brewer, 15 C. B. R. 

(N. S.)803 556 

Heffner v. Sharp, 3 Pa. Superior 

Ct 249 481 

Held V. McBride, 3 Pa. Superior 

Ct. 155 449 

Hengst's Appeal, 24 Pa. 413 ... . 486 
Henry v. Bigley, 5 Pa. Superior 

Ct 503 129 

Henry v. Heilman, 114 Pa. 499. . 451 
Herri ngton v. Guernsey, 177 Pa. 

175 234 

Hershey v. Metzgar, 90 Pa. 217. 157 
Herstine V. R. R. Co., 151 Pa. 244. 234 

Hill V. Egan, 160 Pa. 119 625 

Hill V. Egan, 2 Pa. Superior Ct. 

590 120 

Hoar V. Axe, 22 Pa. 381 600 

Hoberg v. State, 3 Minn. 262 111 

Holland v. White, 120 Pa. 228. . 604 

Holohan v. Mix, 134 Pa. 88 672 

Homer v. Com., 106 Pa. 221. . . . 307 



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XX 



TABLE OF CASES CITED. 



Page 

Hooks V. Forst, 165 Pa. 238 143 

Horton v. MiUer, 44 Pa. 256. . . . 283 

Hewer's Appeal, 127 Pa. 134 28 

Hubbard v. French, 1 Pa. Supe- 
rior Ct. 218 14 

Hudson V. Barrett, 1 Parsons, 

414 654 

Hughes V. Large, 2 Pa. 103 513 

Hugus v. Robinson, 24 Pa. 9 520 

Hull V. Rawls, 27 Miss. 471 441 

Hunter v. Hunter, 31 L. R. A. 
411 441 

Ingram v. Reed, 5 Pa. Superior 

Ct 550 336 

Ins. Co. V. Confer, 168 Pa. 698. . 306 

V. Cusick, 109 Pa. 157 70 

V. Erb, 2 Chest Co. 537. .. . 71 
V. Masonheimer, 76 Pa. 138. 578 
Irou Co. V. Morton, 148 Pa. 72. . 57 
Iron & Steel Co. v. Selliez, 175 

Pa. 18 587 

Irvin V. Kutruff, 152 Pa. 609... . 435 
Iiwin V. Wickei-sham, 25 Pa. 316. 451 

Jack V. Kintz, 177 Pa. 571 501 

Jacoby v. Guier, 6 S. A R. 448. . 283 
Jamison v. Collins, 83 Pa. 359. . 340 
Jennings v. McComb, 112 Pa. 518. 574 
Johnson v. Hulings, 103 Pa. 498. 590 

V. Johnson, 114 111. 611 441 

V. Railway Co., 160 Pa. 647. 322 

Jones* Estate, 169 Pa. 392 481 

Jones V. Hughes, 5 S. <& R. 299. 

277, 554 
Joseph V. Richardson, 2 Pa. Su- 
perior Ct 208 418 

Kay V. Fredrigal, 3 Pa. 221 276 

Keagy v. Com., 43 Pa. 70 282 

Keene's Appeal, 64 Pa. 268 194 

Keeney v. Good, 21 Pa. 349 600 

Kehler v. Schwenk, 144 Pa. 348. 22 

Kelber v. Plow Co., 146 Pa. 485. 245 

Kelly V. Drew, 94 Mass. 107 441 

Kern merer's Appeal, 102 Pa. 558. 461 

Kepner v. Com., 40 Pa. 124 548 

Kern's Appeal, 120 Pa. 52:3 6.32 

Kern v. Simpson, 126 Pa. 42 47 

Kieffer v. Imhoff, 26 Pa. 438 449 

King V. Brooks, 72 Pa. 363 126 

King V. Steiren, 44 Pa. 99 510 

Kirk V. State, 14 Ohio, 511 Ill 

Klein v. Landman, 29 Mo. 2.59.. 441 
Knights of Phythias v. Lead- 
beater, 2 Pa. Superior Ct 461. 435 
Koons V. Tel. Co., 102 Pa. 164.. 451 
Kramer v. Com., 87 Pa. 299. 107, 411 

Land Imp. Co. v. Mendinhall, 4 

Pa. Superior Ct. 898 47 

Lane v. Nelson, 167 Pa. 602. 255, 456 



Page 
Lane v. Penn Glass Sand Co., 

172 Pa. 252 639 

Lantz V. Lutz, 8 Pa. 406... . 277, 561 
Lantz V. Worthington, 4 Pa. 153. 379 
Lauer v. Brewing Co., 180 Pa. 

593 80 

Lawrence Co.'s Appeal, 67 Pa. 87. 28 
Learning v. Wise, 73 Pa. 173. .. . 306 

Lee V. Dean, 3 Wh. 316 479 

Lee V. Gansel, Cowp. 3 40 

Lee V. Keys, 88 Pa. 175 340 

Lerch v. Bard, 177 Pa. 197 234 

Levan's Appeal, 112 Pa. 294. . . . 492 

Linton v. Hart, 25 Pa. 193 479 

Long V. Rhawn, 75 Pa. 128 513 

Long V. Seavei-s, 103 Pa. 617 ... . 156 
Louchheim v. Maguire, 6 Pa. 

Superior Ct 636 640 

Lowe V. Wartman, 1 Cent Rep. 

(N. J.)437 624 

Lowry v. Mehafify, 10 Watts, 357. 574 
Lynch v. Com., 88 Pa. 189 Ill 

McAlees v. Order Iron Hall, 12 

Cent Rep. 415 683 

McBride v. Rinard, 172 Pa. 548. 292 
McBrier V. Marshall, 126 Pa. 390. 139 
McCai-thy v. DeArmit, 99 Pa. 63. 566 
McClafferty v. Philp, 151 Pa. 86. 624 
McConnelrs Appeal, 97 Pa. 31. . 346 
McCune v. Baker, 1.55 Pa. 603.. 195 
McDonough v. Jolly Bros., 165 

Pa. 542 419 

McGrann v. R. R., Ill Pa. 171. . 48 
McGuire v. James, 143 Pa. 521. 620 

Mclnroy v. Dyer, 47 Pa. 118 378 

McKibben v. Martin, 64 Pa. 352. 620 
McKinney v. Fritz, 2 W. N. C. 

173 604 

McKnight v. Bell, 135 Pa. 358. 

346 352 
McMicken v. Com., 58 Pa. 213. .' 278 
McMurray v. Hopper, 43 Pa. 468. 19 

McNeil V. State, 47 Ala. 498 Ill 

McNerney v. Reading, 150 Pa. 

611 198 

Mackinley v. McGregor, 3 Wh. 

369 492 

Malone v. Dougherty, 79 Pa. 46. 142 
Marks v. Baker, 2 Pa. Superior 

Ct 167 167 

Marshall v. Mayor, 59 Pa. 455 . . 648 
Martin's Appeal, 2 Pa. Superior 

Ct 67 479 

Mather v. Ministers, 3 S. <& R. 

508 528 

Maule V. Bucknell, 50 Pa. 39 .3-30 

Maurer v. People, 43 N. Y. 1.. . . 110 
Maynes v. Atwater, 88 Pa. 496. . 462 

Meece v. Com., 78 Ky. 586 112 

Menough's Appeal, 5 W. <& S. 

432 242,243 



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TABLE OF CASES CITED. 



XXI 



Page 
Merrill v. Nary, 02 Mass. 416... Ill 
Michael v. Pipe Line Co., 159 Pa.. 

99 650 

Miller v. Bedfoi-d, 80 Pa. 454.. . . 451 
Miller v. Zufall, 113 Pa. 317. . . . 529 
Mitchell V. Worden, 20 Barb. 253. 495 
Mollison V. Bowman, 3 Clarke, 

283 277, 562 

Montgomery v. Commissionei-s, 

76 Ind. 362 455 

Moody V. Pomeroy, 4 Den. 115. . Ill 
Moore v. Com., 6 W. & S. 314. . . 41 

V. Copley, 165 Pa. 294 451 

V. McMorrow, 5 Pa. Superior 

Ct559 211 

Morgan v. McKee, 77 Pa. 228. . . 306 
Morrison v. Henderaon, 126 Pa. 

216 463 

Moyer v. Ins. Co., 176 Pa. 579. . 617 
Murphy v. Flood, 2 Gr. Ca. 411. 604 
Murphy v. Moon, 1 Cent. Rep. 

92 624 

Murray v. McCarthy, 5 Cent 

Rep. 169. 521 

Myers v. Bryson, 168 Pa. 246. . . 653 

Ka^gation Co. v. Thobum, 7 S. 

AR.411 393 

Neall V. Hart, 115 Pa. 347 556 

Newbold v. Pennock, 154 Pa. 591. 

598, 637 
Newhard v. Railroad Co., 153 Pa. 

417 451 

Nicholas v. Chamberlain, Cro. 

Jac. 121 449 

O'Connor v. Guthrie, 11 Iowa, 

80 Ill 

Ormsby v. Pinkerton, 159 Pa. 

458 449 

OiT V. Gas Co., 2 Pa. Superior 

Ct. 401 551 

Orthwein v. Thomas, 127 111. 554. 441 

Osborn v. Bank, 154 Pa. 134 276 

Overdeer v. Updegraflf, 69 Pa. 

110 449 

Page V. McNanghton, 2 Pa. Su- 
perior Ct. 519 167 

Paine v. Kindred, 163 Pa. 638. . . 241 
Palmer v. Farrell, 129 Pa. 162. . 525 
Parsons v. Hartman, 30 L R. A. 

98 379 

Patterson y. Dushane, 115 Pa. 

334 346 

Patterson v. Pieronnet, 7 W. 337 . 364 
Peale v. Addicks, 174 Pa. 549. . . 513 

Peck V. Jones, 70 Pa. 83 16 

Peebles' Est, 157 Pa. 605 632 

Pennell v. Grubb, 13 Pa. 552 .... 282 
Pa. Railroad's Appeal, 125 Pa. 
189 568 



Page 
Penna. R, Co. v. Oil Works, 120 

Pa. 485 269 

People V. Bush, 4 Hill, 133 407 

V. Connors, 50 N. Y. 240. . . 108 

V. Maurer, 43 N. Y. 1 Ill 

Peterson v. Haight, 3 Wharton, 

150 35 

PfafiE V. Thomas, 3 Pa. Superior 

Ct 419 246 

Phila. V. Christian Assn., 125 Pa. 

672 11 

Phila. V. Jenkins, 162 Pa. 451. . . 26 
Phila. V. Masonic Home, 160 Pa. 

572 11 

Phila. V. Richards, 124 Pa. 303. . 31 
Phila. & R. R. R. Co. v. Long, 75 

Pa, 257 323 

Phillips V. Phillips, 48 Pa. 178.. 449 

Picken's Estate, 163 Pa. 14 442 

Pier V. CaiT, 69 Pa. 326 456 

Porter v. McGinnis, 1 Pa. 413. . . 528 
Post V. Berw ind- White Co., 176 

Pa. 297 521 

Potter's Estate, 6 Pa. Superior 

Ct 627 634 

Powell's Appeal, 2 Pa. Superior 

Ct 618 652 

Pratt V. Jewelry Co., 69 Pa. 53. 142 
Prell V. McDonald, 7 Kan. 426. . 549 

Prine v. Com., 18 Pa. 103 Ill 

Printing Co. v. Rice, 106 Pa. 623. 451 
Prior V. Craig, 5 S. & R. 44 554 

Railroad Co. v. Conway, 177 Pa. 

364 686 

V. Graham, 36 Pa. 77 586 

V. Hill, 10 W. N. C. 461 499 

Railway Co. v. Rolling Mill Co., 

119 U. S. 149 419 

Railway Co. v. Vance, 115 Pa. 

325 550 

Ralph V. FonDersmith, 3 Pa. Su- 
perior Ct 618 492 

Ramsey's Appeal, 2 W. 228 283 

Rand v. King, 134 Pa. 641 604 

Raymond v. Schoonover, 181 Pa. 

352 69 

Read v. Cambridge, 124 Mass. 

567 Ill 

Reed v. Ins. Co., 113 Pa. 574 286 

Reed v. Ward, 22 Pa. 144 479 

Reg. y. Dossett, 2 Car. & Kir. 

306 411 

Reg. V. Quail, 4 F. <fe F. 1076. ... 407 
V. Ransfoi-d, 13 Cox C. C. 9. 409 
Reiter v. McJunkin, 173 Pa. 82. 318 
Kenninger v. Spatz, 128 Pa. 524. 520 
Rex V. Ellis, 9 Dowling & Row- 
land, 174 411 

Rex V. Hickman, 1 Moody, 34. .. 407 

V. Higgins, 2 East, 5 407 

V. Phillips, 6 East, 464 408 



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XZil 



TABLE OF CASES CIXED. 



Page 
Rex V. Plumpton, 2 Ld. Ray- 
mond, 137T 408 

V. Twyning, 2 B. & Aid. 386. 441 
V. Vaughan, 4 Burr. 2494.. 408 

V. Voke, 1 R. &R. 531 411 

Rhine v. Robinson, 27 Pa. 30. . . 104 
RhoadR V. Gordon, 38 Pa. 277. . . 500 
Richards v. Willard, 176 Pa. 181. 234 
Rider v. Johnson, 20 Pa. 190. ... 232 
Ritter v. Ewing, 174 Pa. 342 .... 624 

Robert's Appeal, 59 Pa. 70 194 

Robinson v. Railroad, 161 Pa. 

561 392 

Rohbock V. McCargo, 6 Pa. Supe- 
rior Ct. 184 455 

Rosenberger v. Hallowell, 35 Pa. 

369 474 

Rosenthal v. Ehrlicher, 154 Pa. 

396 234,508 

Roumfort v. McAlamey, 82 Pa. 

193 203 

Rowland v. Rowland, 8 Ohio, 40. 628 
Ruffner v. Hooks, 2 Pa. Supe- 
rior Ct. 278 624 

RusselVs Appeal, 34 Pa. 258. .. . 487 
Russell's Appeal, 75 Pa. 269. .. . 632 

Sargent V. Roberts, 18 Mass. 337. Ill 

Savil V. Roberta, 1 Salk. 13 624 

Scarborough v. Thornton, 9 Pa. 

451 278 

Schmisseur v. Beatrie, 147 111. 

810 441 

Schuey v. Schaeffer, 130 Pa. 23. 654 
Schuylkill Nav. Co. v. Thoburn, 

7S. &R. 411 35, 550 

Schwilke's Appeal, 100 Pa. 628. 404 
Sea Grove Assn. v. Stockton, 148 

Pa. 146 118 

Seabrook v. Meyer, 88 Pa. 417. . 479 
Seanor v. McLaughlin, 165 Pa. 

154 357 

Searight v. Bank, 162 Pa. 504. . . 654 

Seibert v. Levan, 8 Pa. 383 449 

Seltzer v. Coleman, 32 Pa. 493. . 401 
Senser v. Bower, 1 P. <fe W. 450. 442 
Shafer v. Senseman, 125 Pa. 310 65 

Shaffner v. Com., 72 Pa. 60 411 

Sharp V. Johnson, 22 Ark. 79. . . 441 
Sharpe v. Scheible, 162 Pa. 341. 449 
Shaw V. Bowman, 91 Pa. 414. . . 534 
Sheaffer v. Sensenig, 182 Pa. 634 . 572 
Sheetz v. Hanbest's Exrs. 81 Pa. 

100 363 

Shelly V. Dampman, 1 Pa. Supe- 
rior Ct. 115 336, 451 

Shepherd v. People, 25 N. Y. 406 . 40 
Sherman v. Way, 56 Barb. 188. . 533 
Shobcr V. Harrison Bros. & Co. 

3 Pa. Superior Ct 188 501 

Shock V. McChesney, 2 Yeates, 

478 624 



Page 

Skinner v. Perrot, 1 Ash. 57 40 

Slag Works v. Krause, 5 Pa. Su- 
perior Ct, 622 16 

Slaymaker v. Irwin, 4 Wharton, 

369 417 

Smith's Appeal, 23 Pa. 9 194 

Smith V. Com., 14 S. & R. 69.... 39 

V. Com., 54 Pa. 209 408 

V. Ege, 52 Pa. 419 336 

V. Ewer, 22 Pa. 116 282 

Y. Smith, 21 Pa. 367 492 

Society V. Vandyke, 2 Wharton, 

809 582 

Southern Development Co. v. 
Silva, 125 U. S. 247. ..307, 541, 593 

Sower V. Phila., 35 Pa. 231 548 

Spears v. Burton, 31 Miss. 548.. 441 
Speers v. Knarr, 4 Pa. Superior 

Ct. 80 462 

Speers v. Sterrett, 29 Pa. 192. . . 282 

Stabler v. Com., 95 Pa. 318 408 

Stafiford v. Ames, 9 Pa. 343 535 

Stanton v. White, 32 Pa. 358 ... . 19 
State V. Addy, 14 Vroora, 113. . . 427 

V. Avery, 7 Conn. 266 407 

V. Bowers, 15 L. R. A. 199.. 407 

V. Ober, 52 N. H. 459 108 

V. Pattei-son, 45 Vt. 306 Ill 

V. Pike, 65 Me. Ill 112 

V. Thomas, 98 N. C. 699. . . . 108 

V. Watkins, 9 Conn. 47 411 

V. Witham, 72 Me. 531 108 

Stearns v. Merchants' Bank, 53 

Pa. 490 198 

Steffy's Appeal, 76 Pa. 94 486 

Stephens v. Giflford, 1.37 Pa. 219. 520 
Stewart v. Lawsou, 181 Pa. 549. 574 
Stewart v. Thompson, 51 Pa. 158. 624 
Struthers v. R. R. Co., 174 Pa. 

291 393 

Sullivan v. Tinker, 140 Pa. 35 . . . 25 

Sutton's Est, 4 Kulp, 297 287 

Sutton v. Moi-gan, 158 Pa. 204. . 47 

Tasker's Appeal, 182 Pa. 122 572 

Taylor v. Bedford, 13 Johns. 487. Ill 

Tefft V. Sternberg, 5 L. R. A. 221. 379 

Teller v. Boyle, 132 Pa. 56 456 

Tenant v. Tenant, 110 Pa. 478. . 118 
Thiel College v. Mercer Co., 101 

Pa. 530 11 

Thomas v. Miller, 151 Pa. 482. . . 104 

V. Miller, 165 Pa. 216 626 

V. Thomas, 124 Pa. 646 440 

Thompson v. Chase, 2 Grant 

Cases, 367 648 

Thorne v. Ins. Co., 80 Pa. 16. . . 624 

Tietz V. Traction Co., 169 Pa. 516. 234 

Tripner v. Abrahams, 47 Pa. 220. 500 

Turner v. Com., 86 Pa. 54 107 

Uhler v. Maulfalr, 23 Pa. 481. . . 540 



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TABLE OF CASES CITKD. 



XXIU 



Page 

Vanatta V.Anderson, 3 Binn. 417. 127 
Van Dyke v. Barger, No. 83, 

May T. 1878 443 

Van Rensselaer v. Bradley, 3 

Den. 135 479 

Van Rensselaer v. Gallup, 6 Den. 

454 4*^9 

Voight V. Wallace! 179 Pa! 520. * 49 
Yoskamp v. Conner, 173 Pa. 109. 235 

Wade V. State, 12 Ga. 25 Ill 

Walker v. Tupper, 152 Pa. 1 461 

Wallace v. Walnwright, 87 Pa. 263 502 
Walls V. Campbell, 125 Pa. 346. 235 
Walter v. Dickson, 175 Pa. 204. 57 
Walton y. Caldwell, 5 Pa. Supe- 
rior Ct. 143 435 

Walworth v. Abel, 52 Pa. 370.. 868 
Warner v. Caulk, 3 Wharton, 

193 35 

Washington v. Butler, 25 L. R. A. 
434 4Qg 

Waters v. Bates, 44 Pa. 473 . .... 129 
Weaver v. Craighead, 104 Pa. 288. 346 
Weaver v. Roth, l(te Pa. 408 ... . 368 

Webb V. Lees, 149 Pa. 13 346 

Weber v. Rorer, 151 Pa. 487 481 

Wellock V. Cowan, 16 S. & R. 318. 283 
Wetherill v. Stillman, 65 Pa. 105. 276 

Wheeler v. Winn, 53 Pa. 122 507 

Whelen's Appeal, 70 Pa. 410 631 

Whi taker v. Houghton, 86 Pa. 48. 534 



Page 
White's Exrs. v. Com., 39 Pa. 

167 202 

Wilde V. Trainor, 59 Pa. 439... . 451 
Wilkle V. Collins, 48 Miss. 496. . 441 
WilUams' Estate, 141 Pa. 436. . . 632 
Wilmoth V. Hensel, 151 Pa. 200. 39 
Wilson V. Ott, 173 Pa. 253. .. 57, 632 

V. Sllkman, 97 Pa. 509 500 

V. The Tuscarora, 25 Pa. 317. 451 
Winchester v. Bennett, 54 Pa. 

610 451 

Wlnebiddle v. Porterfleld, 9 Pa. 

JgY ^ g;:jQ 

Wise V. Wilis, 2 Rawle, 208 555 

Woeckner v. Electric Traction 

Co., 182 Pa. 182 323 

Wolf V. Studebaker, 65 Pa. 459. 510 

Wood V. Appal, 63 Pa. 210 525 

Woodward v. Heist, 180 Pa. 161. 508 
Wright V. Vickers, 81 Pa. 122... 286 

Yerkes v. Richards, 170 Pa. 846. 451 
York Co. V. Dalhousen, 45 Pa. 

372 39 

Yost V. Davison, 5 Pa. Superior 

Ct 469 30, 115 

Zebley v. Storey, 117 Pa. 478. . . 624 
Zell V. Universalist Society, 119 

Pa. 390 449 

Ziegler v. Handrick, 106 Pa. 87.. 520 



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ACTS OF ASSEMBLY CONSTRUED. 

1 72 1 . February 24, 2 Sm. L. 124. Party walls. Trust Co. v. Haf- 

ner, 48. 
1772. Maich 21, 1 Sm. L. 365. Constables. Com. v. Yeisley, 273 ; 

Pollock V. Ingi'am, 556. 
1790. April 5, 2 Sm. L. 539. Jail keepers. McHenry's Petition, 

464. 
1810. March 20, 5 Sm. L. 161. Justice of the peace. Griffin v. 

Davis, 481. 

1860. March 31, P. L. 427. Jail keepers. McHenry's Petition, 

464. 

1861. May 1, P. L. 550. Mechanic's lien. Clark v. Koplin, 462. 
1868. April 13, P. L. 1017. Taxation (local statute). Com. v. 

Commissioners, 211. 

1868. August 1,P. L. 1168. Mechanic's lien. Clark v. Koplin, 

462. 

1869. March 17, P. L. 8. Attachment Taylor v. Sattler, 229. 

1870. March 4, P. L. 35. Sewing machines. Bogert v. Batterton, 

468. 
1872. March 21, 1 Sm. L. 364. Illegal arrest Ross v. Hudson, 

552. 
1885. June 23, P. L. 136. Fraudulent removal of goods. Com. v. 

Lewis, 610. 
1885. June 24, P. L. 187. Taxation. Com. v. Commissioners, 

211. 
1887. May 13, P. L. 108. Liquor law. Schellenbei-g's License, 26. 
1887. May 18, P. L. 118. Mechanic's lien. Clark v. Koplin, 462. 
1887. May 24, P. L.197. Attachment. Taylor v. Sattler, 229. 
1891. May 20, P. L. 101. Judgment. Leader v. Dunlap, 243. 
1891. June 9, P. L. 2.57. Liquor law. Distiller's License, 87. 
1893. June 6, P. L. 633. Taxation. Com. v. Commissioners, 211. 
1895. June 26, P. L. 392. Advertisement of elections. Wilkes- 

Barre Record v. Luzerne Co., 600. 
1897. July 14, P. L. 271. Affidavit on appeal. Anderson v. Mc- 

Michael, 114. 
Cxxiv) 



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LIST OF SUPERIOR COURT CASES IN WHICH AL- 
LOCATURS HAVE BEEN ALLOWED OR REFUSED, 
AND THOSE WHICH HAVE BEEN REVIEWED BY 
THE SUPREME COURT. 



REPORTED IN PA. SUPERIOR COURT REPORTS, VOLS. 1-6. 



ALLOCATURS REFUSED. 

1 Pa. S. C. 4 Eraemer v. Safe Deposit Co. ; Philadelphia county. 

*^ 148 Irwin v. Hanthom; Chester county. 

*' 261 Montgomery v. Fibre Co., (Lumber Co.'s Appeal); 
Monroe county. 

** 432 Davidson v. Sanders; Lackawanna county. 

^' 496 Commonwealth v. Stahl; Cumberland county. 

** 613 Crumpton v. Pittsburg Council O. U. A. M; Alle- 
gheny county. 

** 627 Commonwealth v. Brewing Co. ; Philadelphia county. 
Pa. " 99 Gillmore v. Connelsville Water Co.; Fayette county. 

** 225 Hentz v. Boro. of Somerset; Somerset county. 

*' 373 Duff V. McDonough ; Allegheny county. 

'* 618 Meadville Bank Estate (Powell's Appeal); Crawford 
county. 
Pa. '* 244 Cobson's Estate Appeal; Philadelphia county. 

" 304 Commonwealth v. House; Allegheny county. 

" 398 Hill V. Liebig Manufacturing Co. ; Lancaster county. 

** 452 Mutual Fire Ins. Co. v. Slio waiter; Chester county. 

" 475 City of Philadelphia v. Lyster; Philadelphia county. 

** 601 Wolf V. Erick (Maurer's Appeal); Lancaster county. 
Pa. ** 106 Mantel Co.'s Assigned Estate; Lycoming county. 

** 159 Commonwealth v. Tragic; Northumberland county. 

" 174 Dunham, Buckley & Co. v. Rundle; Wyoming county. 

** 243 Mease's Appeal (Zehring's Estate); Lebanon county, 

** 279 Boatwright v. Railway Co.; Delaware county. 

" 292 Miller v. Lash; Lebanon county. 

" 443 Weil Bros. v. Cohn; Clearfield county. 

** 631 Cominsky v. Railway Co. ; Fayette county. 

" 648 Snydei'^s Appeal; Cumberland county. 
Pa. ** 1 Donohugh's Appeal; Philadelphia county. 
* ** 528 City of Pittsburg, for use, v. Daly , Allegheny county. 

(xxv) 



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xxvi ALLOCATURS ALLOWED. 

5 Pa. S. C. 663 Standard Plate Glass Co. v. Water Co.; Butler county. 
** " 609 Stewaii; v. Jermon; Philadelphia county. 

6 Pa. " 1 Mullen v. Juenet; Venango county. 

*' '* 168 Goodman et al. v. Transportation Co.; Philadelphia 

county, 
** " 211 Commonwealth ex rel. Hillegas v. Huffman; Bed- 

foi*d county. 
" " 369 Commonwealth V. Mitchell; Somerset county. 
** " 401 Royer's Estate (Wolf's Appeal); Lancaster county. 
" " 405 Commonwealth v. Hutchinson; Blair county. 
" " 428 McNeile v. Cridland; Philadelphia county. 
** " 481 Griffin v. Davis; Lackawanna county. 
** ^* 514 Gattle et al v. Kremp; Berks county. 
" ** 266 Commonwealth v. Spencer; Luzerne county. 

ALLOCATURS ALLOWED AND JUDGMENTS SUPERIOR 
COURT AFFIRMED. 

1 Pa. S. C. 115 Shelly v. Dampman; Berks county. 174 Pa. 495. 

** ** 678 Commonwealth v. Muir; Philadelphia county. 180 
Pa. 47. 

2 Pa. " 21 Road in Otto Township; McKean county. 181 Pa. 

390. 

3 Pa. ** 264 Commonwealth v. Zacharias; Philadelphia county. 

181 Pa. 126. 
6 Pa. " 132 City of Ene v. Griswold; Erie county. 184 Pa. 435. 
** *• 159 Hays V. County of Cumberland; Cumberland county. 

185 Pa. or 186 Pa. 

" ** 281 Bonner v. Pittsburg Bridge Co. ; Allegheny county. 

183 Pa. 195. 

" " 304 W. N. Y. <fc P. R. R. Co. v. Venango county; Venango 
county. 183 Pa. 618. 

ALLOCATURS ALLOWED AND JUDGMENTS SUPERIOR 
COURT REVERSED. 

1 Pa. S. C. 63 *In re Melon Sti*eet; Philadelphia county. 182 Pa. 

397. 
u «* 409 *Traction Co. v. Canal Co. ; Lackawanna county. 180 

Pa. 636. 
" " 587 Ferry Co. v. Bridge Co. ; Allegheny county. 179 Pa. 

466. 

2 Pa. ** 265 Youghiogheny River Bridge; Fayette county. 182 

Pa. 618. 

3 Pa. " 14 ^Clements v. Philadelphia Co. ; Allegheny county. 

184 Pa. 28. 

" " 335»Allam v. Penna. R. R. Co.; Philadelphia county. 
183 Pa. 174. 

4 Pa. '* 301 ^Commonwealth y. Hufnal; Philadelphia county. 

186 Pa. 

*In tills case there was dissenting opinion in Superior Court, 



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OASES 



TS THS 



SUPEEIOK COURT 



OF 



PEMSYLVMIA. 



The Right Reverend Tobias Mullen, Appellant, v. Ernest 
Juenet, Collector of the City, County and Poor Taxes, 
for the First Ward of the City of Franklin, and T. B. 
La Rue, Wm. Brosang and James T. Wallace, Commis- 
sioners of Venango County. 

Taxtition — Exemption — Public charily — Church school. 

A school, the title to which is in an individual, which is under the dom- 
ination and control of the Roman Catholic Church, is not a public charity 
within the meaning of the constitution so as to be exempt from taxation 
by virtue of the facts that no tuition fee is charged, and that up to the pres- 
ent time all children, whether members of the church or not, are received 
and taught. 

The property cannot be said to be regularly and permanently devoted 
to purely charitable purposes. 

Argued May 18, 1897. Appeal, No. 191, April T., 1897, by 
plaintiff, from decree of C. P. Venango County, Jan. Term, 
1896, No. 1, dismissing bill for injunction to restrain collection 
of taxes on exempted property. Before Rice, P. J., Wick- 
ham, Beaver, Reedeb, and Oblady, JJ. AflBrmed. 

Bill for injunction to restrain collection of taxes on exempted 
property. Before Cbiswell, P. J. 
The facts sufficiently appear in the opinion of the court below. 
Vol. VI— 1 (1) 



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2 MULLEN v. JUENET. 

Opinion of Court below. [6 Pa. Superior Ct. 

This cause came on to be heard upon bill, answer, replication 
and evidence, C. I. Heydrick, Esq., appearing for the plaintiff, 
and W. H. Forbes, Esq., for the defendants ; after argument 
and due consideration we find the following facts : 

1. That lots Nos. 185 and 188, each in size sixty by one 
hundred and fifty feet, in the city of Franklin, said county, were, 
on and prior to October 1, 1879, owned in fee simple by Rev. 
Thomas Carroll, then of Franklin Pa., who, by deed bearing 
said date, conveyed the same to Tobias Mullen, of the city and 
county of Erie, Pa. 

2. In the premises of this deed the party of the second part, 
the grantee, is described as follows, viz : " Tobias Mullen, of 
the City and County of Erie, and State aforesaid, in trust for 
the members of St. Patrick's Roman Catholic Church, Frank- 
lin, Pennsylvania, party of the second part." In the subse- 
quent parts of the deed no trust is expressed, but there is the 
usual formal conveyance of the lots, " to the said party of the 
second part, his heirs and assigns," with a clause of general 
warranty. 

3. That prior to the month of September, 1894, by funds con- 
tributed by the members of said St. Patrick's Roman Catholic 
Church and others, there was erected partly upon each of said 
lots, a large three-story brick building, principally adapted and 
designed for school purposes, containing four school rooms, a 
hall for school entertainments, three small living rooms, a small 
chapel, a dining room, kitchen and two small class rooms. On 
the outside of the building is the name " Catholic School." 

4. Since September, 1894, except during the customary vaca- 
tion seasons, there has been maintained in this building a school 
in which the usual common branches and some others have been 
taught, with about two hundred pupils in attendance, occupy- 
ing the four schoolrooms, with four teachers, members of the 
ecclesiastical order known as " Sisters of Mercy," in addition to 
the resident priest, the Rev. J. P. McCloskey, who assists in 
teaching, hearing recitations in certain branches, the church and 
parish residence occupied by him being on adjoining lots. 

5. That since the opening of said school it has been main- 
tained as a free public school ; that is to say, all scholars mak- 
ing application for admission thereto have been admitted, and 
UD tmtil date of this hearing there have been in attendance 



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MULLEN V. JUENET. 8 

1897.] Opinion of Court below. 

thereat, at different times sixteen scholars who were not mem- 
bers of or adherents to the Catholic Church, all others being 
members or children of members or adherents of said church. 

6. No tuition is paid by the pupils, the expense of mainte- 
nance being met by the church congregation and voluntary con- 
tributions. The school is not maintained for profit in any 
manner, but the sisters engaged in teaching have their home in 
the building, using the three living rooms, the chapel, dining 
room and kitchen. 

7. At the opening and closing of the schools each forenoon 
and afternoon there are certain religious exercises, such as re- 
peating the Lord's Prayer, the Creed and the Ten Command- 
ments. 

8. The said school is under the general direction, control and 
management of tiie resident pastor. Rev. McCloskey, who re- 
ceives his instructions in relation thereto from the plaintiff, who 
it appears is his ecclesiastical superior, being a bishop of said 
Roman Catholic Church, who may change such instructions at 
pleasure. 

9. That said lots do not include more land than is reasonably 
necessary for said school building and its occupancy for the pur- 
pose for which it was intended and is used. 

10. The said lots were regiilarly assessed and returned for 
taxation at a valuation of $5,500 as the propeity of " Catholic 
School H," and county, poor and city rates were levied and 
assessed thereon. 

11. The defendant, Ernest Jennet, is the collector of county, 
poor and city taxes in the ward of said city within which the 
said lots are situated, and has for collection taxes duly and reg- 
ularly assessed thereon as follows, viz : County taxes, J22.00, 
poor taxes, J5.50, and city taxes, $68.75, and threatens to pro- 
ceed by distress upon the personal property on the premises to 
collect the said taxes. 

Upon these facts, the question is presented : Is the said school 
property exempt from taxation under the constitution and laws 
of the commonwealth ? 

We must determine not upon the equities involved. To the 
extent that the school accommodates and furnishes instruction 
to the youth of the city, it relieves the burden of taxation upon 
the general public within the limits of the city, which consti- 



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4 MULLEN V. JUENET. 

Opinion of Court below. [6 Pa. Saperior Cl. 

tutes one school district. The burden from which the plaintiff 
now seeks to be relieyed is small compared with the expense of 
educating two hundred scholars for whom the school district 
would otherwise have to furnish school facilities and instructicm. 
The city could therefore well afford to barter the taxes in ques- 
tion for the relief and exemption which the school affords. But 
it \s not the city alone which is concerned in this controrersy. 
The defense is being made by the county commissioners, in 
behalf of the taxpayers of the county. If the property be ex- 
empt, then to the extent of their proportion of the tax the 
burden of those outside of the city is increased. Other interests, 
therefore, than those of the city are at least to this limited 
extent involved. 

Nor are we to dispose of the question by what the local 
authorities in other localities may have done or are doing with 
respect to taxing such property. Unfortunately, the laws are 
not uniformly executed or adhered to. While to a limited 
extent the usage of other localities and their practice and under- 
standing of the law, may furnish a guide to courts in construing 
the law in some cases, yet as against the plain letter of the law 
and its construction as determined by the high court whose 
duty it is to construe it^ we cannot take cognizance of local 
usages and practices. 

Prior to the adoption of the present constitution of the state 
there was no prohibition against the exemption of property 
from taxation by the legislature, and the enactment of numer- 
ous laws for that purpose, exempting all classes of properties, 
was recognized as an evil which should be remedied. To do 
this the people by their constitution provided as follows, viz : 
^^ All taxes shall be uniform upon the same class of subjects 
within the territorial limits of the authority levying the tax, 
and shall be levied and collected under general laws, but the 
general assembly may, by general laws, exempt from taxation 
public property used for public purposes, actual places of reli- 
gious worship, places of burial not used for private or corporate 
profits and institutions of purely public charity." 

It will be observed, therefore, that by the terms of the con- 
stitution the power of the legislature to exempt propei*ty is 
limited. They may exempt only such as belongs to one or the 
other of these four classes : (a) " Public property used for pub- 



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MULLEN V. JUENET. 5 

1897.] Opinion of Ck>uit below. 

lie purpoeee/' that is, property the title to which is in the public 
and which is used for public purposes. (6) '' Actual places of 
religious worship," such as churches, (c) " Places of burial 
not used for private or corporate profit." (d) " Institutions of 
purely public charity." 

It is clear that the property in question does not belong to 
either of the first three classes indicated. If exempt, therefore, 
it must be as an ^^ institution of purely public charity." 

The legislature by Act of May 14, 1874, P. L. 168, desig- 
nated certain classes of institutions which should be exempt 
under this clause of the constitution, and in doing so gaye to 
the language quoted a very liberal interpretation, by providing 
that "All hospitals, universities, colleges, seminaries, acade- 
mies, associations and institutions of learning, benevolence or 
charity, with the grounds thereto annexed and necessary for the 
occupancy and enjoyment of the same, founded, endowed and 
maintained by public or private charity " should be exempt. 

This act has not been held to be unconstitutional, but it has 
always been construed by the courts with reference to the lan- 
guage of the constitution, so that many of the institutions have 
been held to be not exempt, notwithstanding they are appar- 
ently covered by its general language. The question as to 
whether or not they were exempt has always turned upon the 
question as to whether or not they came within the limits de- 
fined by the constitution and were in fact "institutions of 
purely public charity." 

The question as to what institutions were purely public 
charities has, upon given facts, been determined in a number of 
cases by the Supreme Court, and unfortunately in several of 
them by a divided court. The judgment of that court, how- 
ever, although dissented from by some of its members, is as 
binding upon this court as one sustained by the unanimous 
opinion of its judges. In this case, however, we do not have to 
rely upon decisions wherein thei'e have been dissenting opin- 
ions, as we think the questions here presented are ruled by 
adjudications from which there has been no dissent. 

It will be observed that the title to the property is in Tobias 
Mullen, his heirs and assigns, and we do not understand that 
by the conveyance to him there is raised any trust in favor of 
the members of St Patrick's Roman Catholic Church of Frank- 



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e MULLEN V. JUENET. 

Opinion of Court below. [6 Pa. Superior Ct. 

lin. The only use expressed in the deed is in favor of the 
grantee, " his heirs and assigns." So f ai\ however, as this in- 
quiry is concerned, we deem it immaterial whether the plaintiff 
holds the title to the lots for himself or as trustee for the mem- 
bers of the said church, as it was no doubt intended that he should. 
He holds the legal title and the equitable title is either in him 
or in the membership of the church. If it be in him he has the 
legal right to control its use. In either case the use is private 
and personal and there is no evidence whatever of any dedica- 
tion of the property to a public or a different use. It is true 
that the congregation has erected a building thereon which is 
now being used as a school building, and assuming that the 
equitable title and legal use is vested in them, yet they may at 
any time change the use of the property and building. A way 
may be used by an entire community, but if it has an owner 
who may close it, it is not a public way. Another may be used 
by but few, yet if all have the right to use it, it is a public way. 
While today a school is being maintained in the building, which 
is open to all comers, those having the right to the use of it may 
lawfully say tomorrow that none but members or adherents of 
their particular church shall be admitted. The question is not 
will they do so, but may they do so. Should they do so, would 
those who are excluded have any remedy or a right to one? 
By so doing the members would do only that which they might 
lawfully do ; and no one would question the propriety of their 
so doing. Such would also be the case if the property be held 
by the plaintiff in his own right and for his own use. 

If the Rev. Thomas Carroll had conveyed the lots in question 
to the plaintiff upon an express trust that they be held and 
used for free school purposes to which all, or those of some 
natural division, of those of school age should be entitled to 
admission upon compliance with such reasonable regulations 
and requirements as might be necessary for the proper conduct of 
the school, or if by some proper unequivocal act there had been 
a dedication and setting apart of the property for a public pur- 
pose, subject to reasonable and general restrictions and require- 
ments, a different question would have been presented. 

The school as maintained is undoubtedly a charity. It is not 
in any way intended for profit, but it is in no sense, as we un- 
derstand it, within the meaning of the provisions of the const!- 



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MULLEN V. JUENET. 7 

1897.] Opinion of Court below. 

tution a "purely public charily.'* The public has in no Bense 
any vested interest therein or control thereover. Both the 
ownership and control are private. 

In the case of Miller's Appeal, 10 W. N. C. 168, two bills in 
equity were filed, each praying for an injunction to restrain the 
collection of taxes, one by William O'Hara, Roman Catholic 
Bishop of Scranton, and the other by a corporation known as 
the "Society of Sisters of Christian Charity." The facts in 
relation to the ownership and control of the property as assessed 
were very similar to the facts hereinbefore found in this case. 
A preliminary injunction having been granted by the court be- 
low, the same was by the Supreme Court on appeal dissolved. 
The order being interlocutory and not final, no opinion was filed 
nor reasons given, as is customary in such cases. In a subse- 
quent case, however, that of Philadelphia v. Women's Christian 
Association, 125 Pa. 572, Paxson, C. J., gives the reasons. 
Among others he says : " Yet it did not appear in that case, 
upon the hearing upon the preliminary injunction, however the 
fact may have been, that the real estate taxed was stamped 
with any public charity ; nor was there anything to show that 
the regulation of the schools might not have been changed at 
any time and converted into a source of profit." 

The same is true of Thiel College (a Lutheran denomina- 
tional institution) v. County of Mercer, 101 Pa. 530. Of this 
college the same* judge says : " It can convert the very land it 
seeks to exempt from taxation into money and apply it to its 
own corporate use ; " and in Philadelphia v. Women's Chris- 
tian Association, supra, Paxson, C. J., says of it: "So far as 
appeared in the case there was nothing in its charter to stunp 
it as a public charily over any other college, and whatever may 
have been the regulations of its management, there was nothing 
to prevent these regulations from being changed at any time." 

Speaking of Hunter's Appeal, 22 W. N. C. 361, and other 
cases, the same judge says : " Nor was its charitable chai*acter, 
in either of the cases, so stamped upon the institution itself, 
upon its organic law, that the mode of administering it might 
not have been changed at any time." 

One of the most recent csuies upon the subject is that of 
Philadelphia v. Masonic Home, 160 Pa. 572, wherein the prop- 
erty was held by a divided court to be not exempt. This was 



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8 MQLLEN v. JUENET. 

Opinion of Court below — Assignment of Errors. [6 Pa. Superior Ct. 

an incorporated institution and its charter provided that its 
object should be " to provide for indigent, afficted or aged Free 
Masons, their widows and orphans, in the State of Pennsylvania, 
and for such others as may be placed in its charge." This was 
held to be not a " purely public charity." 

In view of the facts found and these authorities, we have 
reached the following conclusion of law : 

That the property upon which the taxes in question have 
been levied is not devoted to a purely public charity, and that 
the school maintained thereon is not an institution of purely 
public charity within the meaning of the provisions of the con- 
stitution and the act of assembly passed in pursuance thereof 
relating to the exemption of property from taxation, and that 
the property mentioned in the plaintiff's bill of complaint as 
having been assessed and returned for taxation is not exempt 
from taxation. 

From this it follows that the plaintifiFs bill of complaint must 
be dismissed. 

Errors assigned were (1) In finding as follows : " It will be 
observed that the title to the property is in Tobias Mullen, his 
heirs and assigns, and we do not understand that by the con- 
veyance to him thei'e is raised any trust in favor of the members 
of St. Patrick's Roman Catholic Church of Franklin." (2) In 
finding as follows : " In either case the use is private and per- 
sonal and thei'e is no evidence whatever of any dedication of 
the property to a public or a different use." (3) In finding as 
follows : " While today a school is being maintained in the build- 
ing which is open to all comers, those having the right to the 
use of it may lawfully say tomorrow that none but members or 
adherents of their particular church shall be admitted. The 
question is not will they do so, but may they do so?" (4) In 
finding as follows : " By so doing the members would do only 
that which they might lawfully do, and no one would question 
the propriety of their so doing." (5) In finding as follows : 
" The public has in no sense any vested interest therein or con- 
trol thereover. Both the ownership and control are private." 
(6) In finding : " That the property upon which the taxes in 
question have been levied is not devoted to a purely public 
charity within the meaning of the provisions of the constitution 



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MULLEN V. JDENET. 9 

1897.] Assignment of Errors— Arguments. 

and the act of assembly passed in pursuance thereof relating to 
the exemption of property from taxation, and that the property 
mentioned in the plaintiff's bill of complaint as having been 
assessed and returned for taxation is not exempt from taxation. 
From this it follows that the plaintiff^s bill of complaint must 
be dismissed." (7) In the decree, to wit : " And now, March 22, 
1897, this cause came on to be heard and was argued by counsel, 
whereupon, upon consideration thereof, it is ordered, adjudged 
and decreed as follow^, viz : That the preliminary injunction 
heretofore granted in this case be dissolved ; that the plaintiff's 
bill of complaint herein be dismissed, and that the plaintiff pay 
the costs of this suit." 

C Heydrick^ with him Carl L Heydrick^ for appellant. — The 
essential feature of a public use is that it is not confined to priv- 
ileged individuals, but is open to the indefinite public. It is 
this indefinite and unrestricted quality that gives it its public 
character : Donohugh's Appeal, 86 Pa 306 ; Mullen v. Commis- 
sioners, 85 Pa. 288. 

Where there are no apparent reasons to traverse it, the pre- 
sumption is that the existing state of things wiU continue : Mil- 
ler V. Henry, 84 Pa. 88. 

The use defines the exemption, not the mode of dedication. 
The public use is the only thing that the exemption is condi- 
tioned upon. The legislature has not designated any mode of 
dedication as a condition precedent to exemption. 

The congregation of St. Patrick's Church, though an unin- 
corporated association, has a quasi-corporate existence, and has 
power to hold the equitable title to the land and build appro- 
priate buildings thereon : Phipps v. Jones, 20 Pa. 260. 

The objection that the property-may at any time be diverted 
from the public charitable use, and lawfully so, at the will of 
the plaintiff, is not well considered. The funds contributed for 
the maintenance of the school are bound to be applied in fur- 
therance of that charily and not otherwise : Bethlehem v. Fire 
Co., 81 Pa. 446. 

That the school property is not taxable because the school is 
"denominational," was decided in 1892: Episcopal Academy 
V. Philadelphia, 160 Pa. 566. 



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10 MULLEN V. JDENET. 

Opinion of the Court. [6 Pa. Superior Ct. 

Wm. H. Forhe$f for appellees. 

Opinion by Reedbb, J., July 23, 1897 : 

This is a bill in equity for an injunctdon to restrain the county 
of Venango from assessing and collecting taxes from the plain- 
tiff for property of the Roman Catholic Church, upon which a 
building is erected which is used as a schooL 

The only question raised by the assignments of error is : Is 
this a purely public charily, such as will, under the statutes of 
this state and the provision in the state constitution, be exempt 
from taxation ? 

While it is in evidence, and may be accepted by us as a fact, 
that the attendance upon this school is not limited to children 
of members or adherents to the Roman Catholic Church, but 
that children of all sects are admitted and taught there, and that 
no tuition is paid by the pupils, the expense of its maintenance 
being met by voluntary contributions principally from the con- 
gregation of t^e church, yet it is under the domination and con- 
trol of the Roman Catholic Church, and the property is their 
exclusive property. 

The property in question is not the property of a corporation. 
Its use, control, management and regulation are entirely within 
the power of the plaintiff. The title is conveyed to him in trust 
for the members of the congregation. The owners of the build- 
ing can at any time assert their right to exclusive benefit there- 
from. The conduct and management are rendered no part of 
the institution by its organic law, but can at any time, by the 
act of the owners thereof, be restricted entirely, absolutely and 
exclusively to the children of members of the congregation. 

In interpreting the Act of May 14, 1874, P. L. 168, which 
designated certain classes of- institutions as being exempt from 
taxation, and within the letter of which act this institution might 
come, we must read into it the provision of the constitution of 
the state, which provides that " the general assembly may by 
general laws exempt from taxation public property used for pub- 
lic purposes and institutions of purely public charity." 

Therefore, no institution falling within the act of 1874 can, 
under it, be exempt from taxation, unless it also falls within 
the provision of the constitution, and is purely a public charity. 

The question as to what are institutions of purely public char- 



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MULLEN V. JUENET. 11 

1897.] Opinion of the Court. 

ity has been considered and determined by the Supreme Court 
in a very large number of cases. For the purposes of this case 
it is only necessary to cite a few of tlie principles which have 
the most direct application to the case before us. There can be 
no doubt that this school, under the evidence, is a charity. It 
is not carried on for profit, and all children, whether members 
of the church or not, are at present received aud taught in the 
school without being charged anything for tuition. There is no 
obligation upon the owners of this property to continue this 
course, and, in the nature of things, it is but a fair presumption 
that when the children of the members of this congregation be- 
come numerous enough to require the entire space contained 
in the school building for their education, the tuition will be 
restricted to the children of the people to whom the school be- 
longs. 

In Philadelphia v. Woman's Christian Association, 125 Pa. 
572, Chief Justice Paxson says : " Yet it did not appear in that 
case upon the hearing of the preliminary injunction, however 
the fact may have been, that the real estate taxed was stamped 
with any public charity nor was there anything to show that the 
regulation of the schools might not have been changed at any 
time and converted into a source of profit." 

In Thiel College v. County of Mercer, 101 Pa. 530, the same 
Chief Justice says : " It can convert the very land it seeks to 
exempt from taxation into money and apply it to its own cor- 
porate use." 

In Philadelphia v. Masonic Home, 160 Pa. 572, " the defend- 
ant was an incorporated institution, and its charter provided 
Hiat its object should be to provide for indigent, afflicted or aged 
free masons, their widows and orphans in the state of Pennsyl' 
vania, and for such others as may be placed in its charge." Tliis 
was held to be not a public charily. 

" The property must be regularly and permanently devoted 
to purely charitable purposes to entitle it to exemption from 
taxation : " Contributors v. Delaware Co., 169 Pa. 305. 

We can add nothing further to the excellent opinion filed by 
the court below which will give additional strength to what it 
has said in the disposition of this case. 

The exceptions are dismissed and the decree affirmed. 



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12 CX)MLY & CX). V. SIMPSON. 

SyllabuB— Arguments. [6 Pa. Superior Ct 



Comly, Flanigan & Co., Appellants, v. William S. Simp- 
son. 

Practice, C, P. — Affidavit of defense — Insuffidency^Running account. 
An affidavit of defense is insufficient which, alleging payments on an 
alleged running account, suggests an hypothesis that if a statement were 
made, showing all credits and debits between the parties, affiant could 
determine what was due by liim if anything, and fails to aver that the 
amount claimed is not correct. 

Practice, C. P.— Affidavit of defense— Construed against defendant. 

An affidavit of defense is to be taken most strongly against the defend- 
ant ; it is to be presumed that he has made it as favorable to himself as 
his conscience would allow. 

Argued Oct. 21, 1897. Appeal, No. 136, Oct. T., 1897, by 
plaintiffs, from judgment of C. P. No. 2, Phila. Co., Dec. T., 
1896, No. 1180, for want of a sufficient affidavit of defense. 
Before Rice, P. J., Wiokham, Bbavee, Rbedeb, Oblady and 
PoETBE, JJ. Reversed. 

Assumpsit for goods sold and delivered. 
The facts sufficiently appear in the opinion of the court. 
The court refused the rule for judgment for want of a suffi- 
cient affidavit of defense. Plaintiffs appealed. 

Error assigned was discharging plaintiffs* rule for judgment 
for want of a sufficient affidavit of defense. 

Cipraino Andrade, Jr., with him Charles C. Lister^ for appel- 
lants. — The language of an affidavit of defense should be taken 
most strpngly against defendant : Comly v. Bryan, 6 Wh. 261. 

The alleged pajrments set forth in the affidavits are quite 
insufficient to prevent judgment, because there is nowhere any 
allegation that said payments were on account of the demand 
in suit : Selden v. Building Assn., 2 W. N. C. 481. 

Samuel J. Taylor, for appellee. — Defendant in his affidavits 
fully and satisfactorily accounts for his inability to set forth 
more clearly his defense to this suit : Brightly v. McAleer, 8 
Pa. Superior Ct. 442 ; Hubbard v. French, 1 Pa. Superior Ct. 
218. 



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COMLY & CO. V. SIMPSON. IS 

1897.] Opinion of the Court. 

Opinion by ObLiAdy, J., November 19, 1897 : 
The plaintifiE claims to recover " for goods, to wit, groceries 
sold and delivered by the said plaintiff to the said defendant, at 
the defendant's special instance and request, at the times and in 
the amounts specified in the following copy of plaintiff's original 
account with the defendant, taken from the plaintiff's book of 
original entries," and he appends to the statement an account 
beginning November 9th and ending December 15, 1896, aggre- 
gating the sum of ^68.19. In the affidavit of defense filed, it 
is averred ^^ that he has purchased from the plaintiff during the 
last two years about $6,000 worth of goods annually ; that he 
was not furnished with any statements showing the amount of 
purchase and payments, but that he only received bills for the 
articles purchased ; that he made payments from time to time, 
generally by check, for which no receipts were given; the 
account was what was known in trade as a running account, 
and without a statement of credits it is impossible to say posi- 
tively whether credit had been given for all the payments made ; 
that the statement does not set forth all the goods purchased 
since November 9, 1896, and does not set forth any paymentB 
made since that date ; that seven cash payments, giving the date 
and amount thereof, have been made since November 9, 1896^ 
which exceed the plaintiff's claim by $264.57," and concludes, **I 
beUeve and therefore aver that upon a proper examination of the 
books of said firm, it will appear that I am not indebted to said 
firm in the amount set forth in the statement filed by them in 
this case, and for that reason, and that by reason of the failure 
to furnish me with statements from time to time, and especially 
to set forth a statement of my credits in the statement filed by 
them I am unable to more clearly and definitely set forth my 
defense." 

And in a supplemental affidavit he avers " that many of the 
papers, bills, receipts and checkbooks and canceled checks were 
in some way lost or destroyed, so that they are not in my posses- 
sion or control, and I do not know where they are," and con- 
cludes, " In view of the fact that I have not in my possession 
or control my receipts and checks showing all of my transac- 
tions with plaintiffs, and also in view of the fact that they have 
not furnished me with a statement whereby I could see if they 
have given me credit for the checks and receipts I hold, I am 



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14 COMLY & CO. v. SIMPSON. 

Opinion of the Court. [6 Pa. Superior Ct. 

unable to state whether their statement of my indebtedness to 
them is correct, but I do believe the statement as filed is not 
correct, but admit that without the information above referred 
to I am unable to state wherein the same is not correct." 

The affidavits do not aver that the amount claimed is not cor- 
rect ; or that the plaintiff has been paid in full ; or that the 
defendant requested of the plaintiff a statement of their entire 
business dealings, which had been refused ; or that the cash 
payments mentioned should have been credited on the partic- 
ular claim in suit. His farthest contention is that "upon a 
proper examination of the books of said firm it will appear that 
I am not indebted to said firm in the amount set forth in the 
statement filed." We may admit all that he alleges, and he 
may have been properly credited on another account with what 
he has paid to the plaintiff, and yet owe the amount claimed. 
We cannot relieve the defendant from the effect of his careless- 
ness in not preserving the original statements, or in not secur- 
ing or trying to secure, one containing the whole account, or in 
his bad system of doing business in not taking receipts. 

This case is not brought within the ruling in Hubbard v. 
French, 1 Pa. Superior Ct. 218, cited for the appellee. 

The affidavit of defense is to be taken most strongly against 
the defendant. It is to be presumed that he has made it as 
favorable to himself as his conscience would allow. 

The fact that he has paid a sum in excess of the one claimed 
does not imply, under his affidavits, that the particular account 
is paid in full any more than that other dealings between the 
parties may have been properly credited with the excess. 

We think the affidavits insufficient, the judgment of the court 
below is reversed, and we direct judgment to be entered against 
the defendant for such sum as to right and justice may belong, 
unless other legal or equitable cause be shown to the court be- 
low why such judgment should not be so entered. 



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KILLEN V. BROWN. 15 

1897.] Syllabus — Argaments. 

Charles M. N. Killen v. William R. Brown, Appellant. 

PracUce^ G, P. — Affidavit of defense— Sufficiency ^EssenHcUs, 
An affidavit of defense should state the facts specifioally and with suffi- 
cient detail to enable the court to say whether they amount to a defense, 
and to what extent they amount to a defense and also to inform the plain- 
tiff, with some degree of certainty, what will be interposed to defeat his 
claim. 

Argued October 21, 1897. Appeal, No. 2, October T., 1897, by 
defendant, from judgment of C. P. No. 8, Phila. Co., Dec. T., 
1896, No. 96, for want of a sufficient affidavit of defense. Before 
RiCB, P. J., WiCKHAM, Bbaveb, Rbbdbb, Orlady and Por- 
ter, JJ. Affirmed. 

Assumpsit for goods sold and delivered. 

The affidavit of defense was as follows : 

" William R. Brown, being duly sworn according to law, de- 
poses and says that he is the defendant named in the above case, 
and that he has a just, true, full and legal defense to the whole 
of the plaintiffs claim of the following nature and character, 
to wit: 

" That it is true that the defendant employed the plaintiff to 
perform certain paper hanging in the defendant's premises, 
named in the plaintiff's statement of claim, and on the terms 
and conditions therein set forth, but that the said work was 
done in an unworkmanlike manner, and that the material fur- 
nished was of an inferior quality, and not in accordance with 
his contract with the plaintiff therefor, and that soon after said 
work was done, said paper faded and became loosened from the 
wall. By reason of which the defendant has suffered damages 
in an amount at least equal to the sum claimed by the plaintiff.'' 

The court made absolute the rule for judgment and damages 
were assessed for $320.58. Defendant appealed. 

Srror assigned was entry of judgment for want of a suffi- 
cient affidavit of defense. 

J. H. Brintonj for appellant. — If the averments of the affidavit 
contain what in law or equity amounts to a substantial defense 
to the plaintiff's claim, it follows that the learned court erred 



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16 KILLEN V. BROWN. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct. 

in entering judgment : Church v. Jones, 182 Pa. 462 ; Johnson 
V. Fitzpatrick, 27 W. N. C. 250. 

Frank P. Prichard^ with him Thomas S. Oates^ for appellee. 
— The vague and evasive averments of the affidavit are insuffi- 
cient to carry the case to a jury. A reference to three cases is 
ample to justify this seemingly obvious contention : Server v. 
Heppe, 11 Montg. 171, Bank v. Miller, 179 Pa. 412 and Bonne- 
vUle V. Hamilton, 18 C. C. Rep. 31. 

Pee Curiam, November 19, 1897 : 

This action was brought to recover a balance alleged to be 
due for papering five houses. The affidavit of defense alleges 
" that the said work was done in an unworkmanlike manner," 
without specifying how, or in what respect it was unworkman- 
like ; " that the material furnished was of an inferior quality, 
and not in accordance with his contract," without alleg^g that 
the plaintiff contracted to furnish paper of superior quality or 
setting forth what the contract was ; and '^ that soon after said 
work was done, said paper faded and became loosened from the 
wall," without alleging that this was in consequence of the 
plaintiff's unskillful workmanship or of his failure to use such 
materials as he was bound by his contract to use. 

Upon these allegations the defendant bases another, namely, 
that he has " suffered damages in an amount equal at least to 
the sum claimed by the plaintiff " without specifying, otherwise 
than as we have stated, how he was damaged. We are of opinion 
that the affidavit was wholly insufficient to prevent judgment 
If the paper faded and loosened from the walls in consequence 
of the plaintiff's unskillful workmanship, or of his use of im- 
proper materials, this fact might, and should, have been dis- 
tinctly averred and not left to mere inference : Peck v. Jones, 
70 Pa. 83. The first two averments are not sufficiently specific. 
We repeal in this connection what we said in Port Kennedy Slag 
Works V. Krause, 6 Pa. Superior Ct. 622 and what has been said 
in many earlier decisions of this court and of the Supreme Court : 
" An affidavit of defense should state the facts specifically and 
with sufficient detail to enable the court to say whether they 
amount to a defense, and to what extent they amount to a de- 
fense, and also to inform the plaintiff with some degree of cer^ 
tainty what will be interposed to defeat his claim." 

Judgment affirmed. 



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CARSON V. FORD. 17 

1897.] SyllaboB— Statement of Facts. 



William G. Carson, Appellant, v. Annie K. Ford, de- 
ceased ; Michael Ford, Jr., Executor of the last will 
and testament of Annie K. Ford, deceased; Michael 
Ford, Jr., Charles Ford, Joseph J. Ford and Mary M. 
Ford. 

Judgment — RestricUd lien — OenercU verdict on ad, fa, to revive, 
A judgment on single bill specifically restricted to certain property des- 
ignated to the exclusion of all other estate, real and personal, is not ex- 
tended by a general verdict for the plaintiff on a scire facias to revive, and 
judgment will be entered thereon so as to conform to the original proviso 
in the bill single. 

Argued Oct 7, 1897. Appeal, No. 60, Oct. T., 1897, by 
plaintiff, from restricted judgment of C. P. No. 2, Phila. Co., 
June Term, 1894, No. 208, on verdict for plaintiff. Before 
Rice, P. J., Wickham, Beaver, Reedeb, Oblady, Smith and 
PORTEB, JJ. Affirmed. 

Sci. fa. to revive judgment Before Pennypackeb, J. 

It appeared from the evidence that one Michael Roach owned 
the house 1605 South street and William G. Carson, the plain- 
tiff, had a general judgment against Michael Roach. Annie K. 
Ford also had claims against Roach and agreed to loan him 
more money and take a conveyance of the house. Carson, the 
plaintiff, satisfied his judgment and took the judgment note of 
Annie K. Ford for his debt and agreed to restrict the lien to the 
conveyed premises, the proviso being as follows : 

"Provided, however, that said judgment when entered as 
aforesaid shall be restricted to and binding only upon the real 
estate and premises No. 1606 South street, in the city of Phil- 
adelphia, now owned by me, and not to affect or bind any other 
property or estate, real or personal, now owned or which may 
hereafter be owned by me." 

Some six months after Mrs. Ford died and a scire facias was 
issued by the plaintiff to revive his judgment generally against 
the heirs of the decedent, Mrs. Ford. 

The verdict was for the plaintiff for $413.79. Defendants 
filed motions and reasons for a new trial. After argument of 
Vol. VI— 2 



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18 CARSON V. FORD. 

Statement of Facts — Opinion of the Court. [6 Pa. Superior Ct. 

the rule for the new trial the court discharged the rule and or- 
dered judgment to be entered as foUows : 

" That judgment be entered on the verdict, provided, how- 
ever, that said judgment when entered as aforesaid, shall be re- 
stricted to and binding only upon the interest of Annie K. Ford, 
deceased, in the real estate and premises No. 1606 South Street 
in the city of Philadelphia, and not to affect or bind any other 
property or estate, real or personal, now owned or which may 
hereafter be owned by the estate of said Annie E. Ford, de- 
ceased." Plaintiff appealed. 

Errors amgned were (1) in attaching a restriction or proviso 
to the judgment for plaintiff entered on the verdict, reciting 
proviso. (2) In not entering a general judgment for plaintiff, 
without condition or restriction. 

John Dolman^ for appellant. — Relied on Stanton v. White, 82 
Pa. 858, Dean's Appeal, 85 Pa. 405, and McMurray v. Hopper, 
48 Pa. 468. 

Walter George Smithy with him William Rudolph Smithy for 
appellees. — The cases cited by the appellant have no bearing on 
the real question at issue. In none of the cases cited was any 
agreement proved, as in this case. The appellees' contention 
is that their case is brought clearly within the principles laid 
down in the case of Irwin v. Shoemaker, 8 W. & S. 75. See 
ako, Hoeveler v. Mugele, 66 Pa. 348, and Sankey v. Reed, 12 
Pa. 95. 

Opinion by Beavbb, J., November 19, 1897 : 
Judgment was originally entered in the court below on a 
single bill with warrant of attorney to confess judgment, which 
contained the following proviso : " Provided, however, that such 
judgment when entered as aforesaid shall be restricted to and 
binding only upon the real estate and premises No. 1605 South 
Street in the City of Philadelphia, now owned by me, and not 
to affect or bind any other property or estate, real or personal, 
now owned or which may be hereafter owned by me." After 
the death of Annie K. Ford, a scire facias was ifeued to revive 
the judgment against the heirs and personal representatives of the 



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CARSON V. FORD. 19 

1697.] Opinion of the Couit. 

decedent. On the trial of this scire facias a general verdict for 
tiie plaintiff was taken, but, upon a motion for a new trial, the 
rule granted tiierein was, upon hearing, discharged, and judg- 
ment was directed to be entered upon the verdict in accordance 
with the restrictions contained in the proviso which was part of 
the original obligation. From the decree restricting the effect 
of the judgment this appeal is taken, the only error assigned 
being the entry of the judgment with the restricting clause at- 
tached, instead of a general judgment, without condition or 
restriction. 

It is only necessary to examine the bill single, upon which 
the original judgment was entered, which constitutes the con- 
tract between the parties to ascertain what their intention was. 
That the parties to a judgment can restrict the liability of the 
obligor as well as its lien is recognized in all the cases. It is 
to be observed that this is not the case of Stanton v. White, 82 
Pa. 868, in which the restriction was *' This judgment to be a 
lien only upon lands conveyed to me by the said obligees by 
deed of this date, April 16th, 1866 ; " nor is it the case of Dean's 
Appeal, 35 Pa. 405, in which it was provided that " The lien of 
the judgment should be resti*icted to the real estate this day 
conveyed," referring to the date of the bond, the judgment in 
which case was revived amicably by confession during the life- 
time of the defendant without limitation or restriction as to its 
hen ; nor is it the case of McMurray v. Hopper, 43 Pa. 468, in 
which it was agreed that the original judgment " was to be a 
lien upon the property sold and upon the house and lot opposite 
to it directly across said road and not to affect any other part 
of said McMurray's estate or property." In all of these cases 
there was a simple restriction of the lien of the judgment entered 
to property specifically described, without in any way, directly 
or by implication, affecting the obligation or debt upon which 
the judgments were based respectively. The proviso in this 
ease is much more comprehensive and far reaching in its terms 
and consequent effect than any of those referred to in the cases 
cited. In addition to the restriction of the lien to the premises 
No. 1606 South street in the city of Philadelphia, it is expressly 
provided that the judgment is "not to affect or bind any other 
property or estate, real or personal, now owned or which may 
hereafter be owned by me." Inasmuch as the judgment entered 



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20 CARSON V. FORD. 

Opinion of the Court. [6 Pa. Superior Ct 

in puisuance of the warrant of attorney, to which this proviso 
is attached, could not in itself affect personal property nor, 
until subsequently revived, real estate thereafter acquired, it is 
evident that the obligor intended not only to limit the lien of 
the judgment to the premises described therein but to limit the 
obligation itself to the said premises, so that no execution issued 
upon the said judgment nor any subsequent revival thereof 
should by any possibility affect or bind any other property or 
estate, real or personal, then owned or which might thereafter 
be acquired by her. That she had the right to so limit her lia- 
bility cannot be doubted, and that the obligee agreed to such 
limitation by the acceptance of the bill single with the proviso 
is equally clear. The paper, proviso included, constituted the 
agreement between the parties and by its terms they are bound. 
We are satisfied that the court below gave practical effect to 
what the parties intended by restricting the effect of the judg- 
ment entered upon the verdict in the scire facias, and this upon 
a proper consideration of the contents of the paper itself. The 
parol testimony offered in the case in no way strengthened or 
enlarged the restricting clause contained in the paper upon 
which the original judgment was based. Considering that pro- 
viso or restriction in itself, and construing it without reference 
to parol testimony, the court was entirely justified in limiting 
the effect of the judgment entered upon the verdict in accord- 
ance with the stipulation contained in the original obligation. 
The assignments of error are, therefore, both overruled, and the 
judgment is affirmed. 



Frank V. Hoffner v, Henry D. Prettyman and Richard H. 
Parish, individually and trading as Prettyman & Par- 
ish, Appellants. 

Negligence — Master and servant — Question for jury. 

Builders under contract to furnish the necessary scaffolding for a sub^ 
contractor are liable for injuries resulting from its negligent construction. 

The evidence being conflicting on the question of negligence, the case 
Is properly for the jury. 



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HOFFNER V. PRETTYMAN. 21 

1897.] Statement of Facts — Arguments. 

Argued Oct 6, 1897. Appeal, No. 89, Oct. T., 1897, by 
defendants, from judgment of C. P. No. 1, Phila. Co., June T., 
1896, No. 1260, on verdict for plaintiff. Before Rice, P. J., 
WiCKHAM, Bbaveb, Reedbb, Oelady, Smith and Pobtkb, J J. 
Affirmed. 

Trespass. Before Bb£gt, J. 

It appeared from the evidence that the defendants erected a 
scaffold to be used by plaintiff and others while working on a 
building being erected by defendants, that it was alleged that 
it was improperly braced and supported, and that defective and 
insufficient materials were used ; that plaintiff was in the em- 
ploy of Bohem & Bros., who were under an independent con- 
tract with defendants to do the cornice and tinwork of the 
building, and that while plaintiff was at work on the scaffold it 
broke and fell by reason of its negligent construction and the 
improper materials used, whereby plaintiff was injured. 

There was evidence, although conflicting, of the alleged neg- 
ligent construction of the scaffold. 

The court refused to give binding instructions for defend- 
ants. 

Verdict and judgment for plaintiff for S500. Defendants 
appealed. 

Error assigned was refusal of binding instructions for defend- 
ants. 

Alex. Simpson^ Jr.^ with him T. M. Dalt/^ for appellants. — 
That tiie scaffold might have been built stronger, or not, is not 
the test : Fick v. Jackson, 3 Pa. Superior Ct. 878 ; Kehler v. 
Schwenk, 144 Pa. 348. 

That the result shows it could have been built stronger is no 
proof of negligence : Sykes v. Packer, 99 Pa. 465 ; Railway v. 
Husson, 101 Pa. 1. 

It is not the duty of the employer, after having provided 
material, ample in quantity and quality for the work his em- 
ployees are engaged in, to supervise the selection of the mate- 
rial from the common stock : Ross v. Walker, 189 Pa. 42. See 
also Devlin v. Iron Co., 182 Pa. 109; Coal Co. v. McEnery, 91 
Pa. 185. 



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22 HOFFNER v. PKETTYMAN. 

Arguments — Opinion of the Coart. [6 Pa. Saperior Ct. 

Thad, L. VdndersKcey with him Charles L. Smyth and Christo- 
pher jff". Murray^ for appellee. — Where there is conflicting testi- 
mony as to the reasonable saf eness of appliances, etc., the ques- 
tion is for the jury : Railroad Co. y. Keenan, 108 Pa. 124. 

Binding instruction to the jury is only proper where the evi- 
dence is not conflicting : Spear v. Railroad Co., 119 Pa. 61. 

Where there is any evidence of negligence on the part of the 
defendant it must be submitted to the jury : Murphy v. Croesan, 
98 Pa. 495. 

Opinion by Pobtbb, J., November 19, 1897 : 

The defendants were engaged in a building operation. The 
plaintiff was in the employ of a firm who were doing the metal 
cornice work thereon, under a contract which required the de- 
fendants to furnish the necessary scaffolding. While the plain- 
tiff was at his work, a part of this scaffolding fell with him, 
whereby he was injured. He sued to recover damages- The 
cause was submitted to the jury on the question of the negligent 
construction of the scaffold. The verdict was for the plaintiff. 
The defendants assign for error the refusal of the court below 
to give binding instructions to the jury to find for the defend- 
ants. 

The scaffold in question was erected for a particular and tem- 
porary purpose. The plaintiff had a right to be upon it. The 
duly of the defendants was to erect and maintain it in a safe 
condition for the purpose intended. 

In an effort to bring the case within the rule laid down in 
Kehler v. Schwenk, 144 Pa. 348, and Fick v. Jackson, 3 Pa. 
Superior^ Ct. 378, respecting the liability of employers to furnish 
safe appliances for their employees, one of the defendants offered 
his own testimony and that of some of his employees to show 
that the scaffold was originally erected " in the usual and ordi- 
nary manner " for such a purpose as that intended, but no other 
witness was called by the defendants " in the same line of busi- 
ness " to prove that the construction was according to the "gen- 
eral, usual and ordinary course." On the other hand. Cook, a 
witness for the plaintiff, testified : " Q. Can you say from that 
model if this is a proper way to build a scaffold? A. No, sir, I 
do not think it is. Q. Why? A. They usually have a figure 
four or a piece nailed down on the window or else upright on 
this piece, that is the piece that pulled out." 



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HOFFNER c. PRhrnYMAX. 23 

1897.] Opinion of tiie Court. 

Havens (called as an expert by the plaintiff) testified that he 
did not consider the scaffold properly built or safe, and described 
the usual method of construction. 

There was thus a sufficient conflict of testimony to require 
the case to be submitted to the jury on the question of the de* 
fendant's negligence, and the trial judge was not warranted in 
directing a verdict for the defendants. 

Judgment affirmed. 



Isaac S. Smyth and John Field, trading as Young, Smyth, 
Field & Co., Appellants, v. Rosa Levy. 

Judgment — Execution — Funds in sheriff'' b hands— Standing of junior 
judgment creditor. 

The proceeds of a sheriffs sale of a defendant's personalty under an exe- 
cution in the hands of the sheriff are bound by an execution issued by a 
bona fide creditor, upon a judgment obtained after the sheriff's sale ; such 
judgment will bind such proceeds and give such creditor a standing to con- 
test the validity of the prior judgment, on the ground of fraud. 

Practice^ C. P. — Parties to record. 

No man can make himself a party to pending litigation between others 
by his own act or statement on the record : it follows, therefore, that a 
senior judgment creditor has no standing to intervene by petition to have 
set aside a levy made on a junior execution. 

Argued October 21, 1897. Appeal, No. 91, October T., 1897, 
by plaintiffs, from order of 0. P. No. 2, Phila. Co., Dec. T., 1896, 
No. 320, setting aside levy on an execution. Before Rice, P. J., 
WiCKHAM, Beavbb, Rbbdbb, Oblady and Porter, J J. Re- 
versed. 

Attachment under act of 1869. 
The following facts appeared from the record : 
On the 2d day of December, 1896, there was issued in court 
of common pleas, No. 2, as of September term, 1896, No. 820, 
a writ of attachment under the act of 1869, in favor of Isaac S. 
Smyth and John Field, trading as Young, Smyth, Field & Co. 
gainst Rosa Levy. By virtue of this vmt of attachment the 
sheriff levied upon the goods and chattels of the said Rosa Levy, 



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24 YOUNG, SMYTH, FIELD & CO. v. LEVY. 

Statement of Facta — Arguments. [6 Pa. Superior Ct. 

which had been previously levied upon by him under five cer- 
tain writs of fi. fa., issued out of court of common pleas. No. 1, 
as of September term, 1896, Nos. 1031, 1032, 1057, 1056 and 
1120, and also under a writ of attachment under the act of 1869, 
issued outof court of common pleas, No. 2, as of December term, 

1896, No. 808. A portion of the property so levied upon was 
claimed, and feigned issues were framed to determine its owner- 
ship. The remainder of said goods and chattels so levied upon, 
were sold by the sheriff, on December 3, 1896, for the sum of 
$3,314. On January 9, 1897, judgment for want of an aflSdavit 
of defense was obtained by Isaac S. Smyth and John Field, 
trading as aforesaid, in their suit begun by this attachment, and 
damages were assessed at 1615.25, and execution was issued 
thereon upon the fund in the hands of the sheriff. On March 13, 

1897, on defendant's rule, the attachment of Young, Smyth, 
Field & Co. was dissolved, and on March 15th the fi. fa. was 
issued. On April 10, 1897, Charles P. Wieder and Joseph W. 
Salus, two of the plaintiffs in the executions above indicated, 
took their rules upon plaintiffs, Young, Smyth, Field & Co., to 
show cause why the levy of the sheriff by virtue of the fi. fa. 
issued on the judgment of Young, Smyth, Field & Co., on the 
fund in his hands under the fi. fas. issued In re Wieder v. Levy, 
and Salus v. Levy, should not be set aside. On April 15, 1897, 
these rules were made absolute. 

From this decree of the court, the plaintiffs, Young, Smyth, 
Field & Co., appeal. 

Error assigned was making absolute the rule to show cause 
why the levy of the sheriff under and by virtue of the fi. fa. 
issued in the above case, should not be set aside. 

John Weaver^ with him John Sparhawk^ Jr.^ for appellants. — 
The only question in this case is whether money in the hands 
of the sheriff, realized on a prior sheriff's sale on a judgment 
against the same debtor, is subject to the levy of a fi. fa. That 
such a fund is liable to such levy, follows from sec. 24, of act 
•of 1836, which authorizes a levy upon " current gold, silver or 
<5opper coin, belonging to the defendant : Sullivan v. Tinker, 
140 Pa. 35; Herron's Appeal, 29 Pa. 240; Rudy v. Common- 
wealth, 35 Pa. 166. 



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YOUNG, SMYTH, FIELD & CO. v. LEVY. 26 

1897.] Arguments — Opinion of the Court. 

^. W. Kuhlemeier^ with him George S. Russelly for appellee. 
— The appellants' proceedmg is a subterfuge to evade the re- 
quirements of the acts of 1836 and 1846 : Filbert v. Filbert, 9 
C. C. 149 ; Moore v. Dunn, 147 Pa. 359. 

Money or property in the hands of a sheriff, under any pro- 
cess, is not the subject of a subsequent execution issuing out of 
a court of co-ordinate jurisdiction : Metzner v. Graham, 57 Mo. 
404; Bates Co. Nat. Bk. v. Owen, 79 Mo. 429; Patterson v. 
Mater, 26 Fed. Rep. 81. 

OmaoN BY PoBTER, J., November 19, 1897 : 

This appeal is taken from an order making absolute a rule to 
set aside the levy made under the fieri facias issued in the cause. 
The judgment as appears by the record, was properly entered. 
The fieri facias was regularly issued and delivered to the 
sheriff, in whose hands were funds arising from the sale of 
the defendant's property under executions issued on confessed 
judgments. It cannot be doubted that under the authority of 
Sullivan v. Tinker, 140 Pa. 85, the fieri facias bound the fund 
in the sheriff's hands. In that case it is said : " It is true the 
appellee's judgment was not obtained until after the sale of the 
personal property by the sheriff, but we are of opinion that the 
fieri facias issued upon the appellee's judgment bound the fund 
in the sheriff's hands. It was the money of the defendants in 
the execution. . . . Money of a defendant not on his person 
may be seized and taken in execution." 

It is asserted that the fund in the hands of the sheriff will 
not pay the preceding executions in full. If this be so, they 
will take by their priority whatever fund there may be. The 
levy of the fieri facias in this cause however, gives the plaintiff 
a standing to attack the bona fides and validity of the preced- 
ing judgments upon which the fund was raised. If this attack 
be successfully made, all the funds in the sheriff's hands will be 
the funds of the defendant, subject to the fieri facias of the 
present appellants. We are of opinion, therefore, that the levy 
of the writ should not have been set aside. 

The order was made by the court below apparently on the 
application of two strangers to the record, who appeared by 
petition and who alleged that they held judgments prior to the 
judgment in the present cause. What rights these strangers to 



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26 YOUNG, SMYTH, FIELD & CO. v. LEVY. 

Opinion of the Court. [6 Pa. Superior Ct. 

the record had in this cause it is difficult to see. They were 
neither plaintiffs nor defendants. " No man can make himself 
a party to pending litigation between others by his own act or 
statement on the record : " Phila. to use v. Jenkins, 162 Pa. 
451, Williams, J. 

The petitioners have no standing in the present cause. Their 
rights are limited to the causes in which they are parties liti- 
gant, or they may proceed against the sheriff to compel him 
either to distribute the money under the executions which they 
claim to control, or to pay the money into court where the rights 
of the several execution creditors in the fund can be determined. 

The order of the court below is, therefore, reversed, and the 
order striking off the levy set aside. 



Appeal of D. C. Gibboney and as Secretary of The Law 
and Order Society from the order of Quarter Sessions 
of Philadelphia County, granting a retail liquor license 
to Otto Schellenberg. 

Liquor law— Intervention of volunteers as appellants— Record, 
Where the record fails to show that, durioor the pendency of proceed- 
ings for the granting of a liquor license by the court below, any person 
was present, either in person or by counsel, in accordance with the third 
section of the act of May 13, 1887, no right of appeal is lodged, either by 
the provisions of the said act or otherwise in a person who voluntarily in- 
tervenes subsequently for the purpose of appealing. 

Argued Oct. 20, 1897. Appeal, No. 116, Oct. T., 1897, by 
D. C. Gibboney, from decree of Q. S. Phila. County, March 
Term, 1897, No. 2415, granting a retail liquor license. Before 
Rice, P. J., Wickham, Beaver, Reeder, Oblady, Smith 
and Porter, J J. Appeal quashed. 

Application for retail liquor license. 

The record discloses the following abstract or brief of peti- 
tions, orders and reports : February 4, 1897, application of Otto 
Schellenberg for a retail liquor license. March 26, 1897, in- 
dorsed on application : " On motion of petitioner and after hear- 



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SCHELLENBERG'S LICENSE. GIBBONKY'S APPEAL. 27 
1897.] Statement of Facts— Opinion of the Court. 

ing in open court, it is ordered that the prayer of the petitioner 
be refused." July 10, 1897, motion filed to open the order of 
March 26, refusing the license and to award the said license. 
July 12, 1897, indorsement on said motion : " Order opened and 
license granted to Otto Schellenberg." 

Urrors assiffned were, (1) in granting on July 12, 1897, a re- 
taU liquor license to Otto Schellenberg. (2) On July 12, 1897, 
in opening the decree of March 26, 1897, and changing and re- 
versing the said decree. (8) In July term, 1897, in opening, 
changing and reversing their final decree made in March term, 
1897, in the matter of the application of Otto Schellenberg. 

Letais D, Vail, for appellant. — It was error for the court to 
open a judgment entered after a hearing or to grant a new trial 
after the term at which the judgment was entered has passed : 
Hill V. Egan, 2 Pa. Superior Ct 696 ; Hill v. Harder, 3 Pa. Su- 
perior Ct. 478. 

After the term a sentence cannot be reconsidered, amended or 
changed: Com. v. Mayloy, 67 Pa. 291; Turnpike Co., 97 Pa. 
260. 

In the present case Mr. Gibboney was notified, was present 
at the rehearing and objected, giving the judges a paper-book 
wiih his authorities. 

Edward A. AnderBon^ with him John H. Fow and Charlen 
Knitted for appellee. — The law contemplates that after a term 
of the court another tribunal shall exercise the discretion of cor- 
recting errors or mistakes: Reed's Appeal, 114 Pa. 462 ; Toole's 
Appeal, 90 Pa. 876. 

A license court has power where no vested rights are affected 
to reverse its decisions and correct its errors. 

Opinion by Bbayeb, J., November 19, 1897 : 
Upon a motion to quash this appeal, we determined to hear 
arguments upon the merits of the appeal as well as upon the 
motion to quash, at the same time, which was done. A careful 
examination of the record of iiie case leads us to the conclusion 
that the appeal must be quashed and it is unnecessary, therefore, 
to consider the important questions which are raised by the 
record in the appeal itself. 



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28 SCHELLENBERG'S LICENSE. GIBBONEY'S APPEAL. 
Opinion of the Court. [6 Pa. Superior Ct. 

Under the provisions of the third section of the act of May 13, 
1887, "the said Court (the court of quarter sessions) shall fix 
by rule or standing order a time at which application for said 
licenses shall be heard, at which time all persons applying or 
making objections to applications for licenses may be heard by 
evidence, petition, remonstiunce or counsel." The record fails 
to show that on the 15th of March, 1897, when the petition was 
originally heard, and on the 26th of March following, when the 
case was disposed of, any person was present, either in person or 
by attorney, desiring to be heard in opposition to the applica- 
tion of the appellee. The same is true of the hearing on the 
12th of July, 1897. The failure of the record to show the fact 
of the presence of any one remonstrating or desiring to remon- 
strate against the granting of the license is at least negative 
evidence that no such person was present. We do not under- 
stand the appellant to allege that any one was present at the 
original hearing remonstrating against the granting of the appel- 
lee's application, although he does allege that he was present on 
the 12th of July. This, however, in no way appears upon the 
record and we are bound to consider the case as if no one had 
appeared in opposition to the appellee's application. Tliis 
raises the question as to whether or not, after the court of quar- 
ter sessions has made a final disposition of an application for 
license, no person during the pendency of the proceedings hav- 
ing appeared to oppose the granting of the same by remonstrance 
or otherwise, any one who may feel himself aggrieved thereby 
has a legal right to appeal from such decree to an appellate 
court. This question, so far as we can discover, has not been 
distinctly ruled in Pennsylvania. There is no lack of cases, 
however, in which questions strongly analogous thereto have 
been decided. In Lawrence County's Appeal, 67 Pa. 87, 
Mr. Chief Justice Thompson said : " It is a rule without excep- 
tion, I believe, that persons having no interest in judicial pro- 
ceedings shall not be heard as parties to impugn them for 
irregularity merely, and this must be the condition of this appel- 
lant, unless it be made to appear to the judicial mind in some 
way that she was entitled to consideration in the decree made." 
Rower's Appeal, 127 Pa. 134, where citizens of the borough of 
Selinsgrove sought to intervene in a proceeding by a creditor 
in the court of quarter sessions under the Act of April 22, 1887, 



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SCHELLENBERG'S LICENSE. GIBBONEY'S APPEAL. 29 
1897.] Opinion of the Ck>uit. 

P. L. 61, to enforce by mandamus the collection of a special 
tax sufficient to pay an alleged indebtedness, the court of quar- 
ter sessions refused to permit them to intervene, and the Supreme 
Court, upon motion, quashed the appeal from that decree. We 
do not now determine what the effect of a petition by the appel- 
lant to the court of quarter sessions, to be heard as late as the 
12th of July, might have been, if the record had shown that such 
a petition had been presented, but we are clearly of the opinion 
that, where a record fails to show that during the pendency of 
proceedings for the granting of a license in the court below any 
person appeared in person or by counsel in accordance with the 
provisions of the third section of the act of 1887, supra, no right 
of appeal is lodged, either by the provisions of said act or 
otherwise, in a person who voluntarily intervenes subsequently 
for the purpose of appealing. The record fails to show also that 
any exception was taken to the decree of the court below at 
any stage of the proceeding which would seem to emphasize 
the silence of the record as to the presence of any one re- 
monstrating in any way against the granting of the license. 
For these reasons the appeal is quashed. 



The City of Philadelphia, to the use of William H. Ach- 
uff, John H. Little, and William P. Clement, trading 
as Achuff & Company, v. John W. Christman, Owner 
or Eeputed Owner, Appellant. 

AmendmenlsStaitUes liberaUy construed. 

The acts regulating^ amendments are to be liberally construed and an 
amendment will be allowed, the effect of which simply is to make clear 
what was imperfectly indicated. 

Appeals — Praclice, Superior Court — Amendments— Municipal lien. 

An appeal does not lie from the refusal to strike off a municipal lien for 
the reason that there is no definitiye decree, nor from an order permitting 
an amendment, the action being still pending. 

Argued Oct 15, 1897. Appeal, No. 105, Oct. T., 1897, by 
defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1891, 
No. 48, M. L. D., making absolute a rule to amend claim. 



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80 PHILADELPHIA v. CHRISTMAN. 

Statement of Facts — Opinion of the Court. [6 Pa. Superior Ct. 

Before RiOE, P. J., Wiokham, Beayeb, Reedeb, Oblady, 
Smith and Pobteb, JJ. Appeal quashed. 

Rule to amend lien. 

The claim filed was for vitrified brick paving and the essen- 
tial portion of the lien was as follows : " For work done and 
material furnished within six months last past in paving the 
cartway on Atlantic Street in front of said lot of ground and 
premises per bill and statement rendered as follows." A rule 
was taken to show cause why the claim should not be amended 
by inserting after the words " six months last past," the follow- 
ing words, to wit : " between the first day of June, 1891, and the 
second day of July, 1891," and also by inserting opposite the 
charge in the bill and statement rendered the date *' July 2, 
1897." 

The court made the rule absolute. Defendant appealed. 

JErrors assigned were (1) In making the rule absolute. (2) In 
not striking off the lien. 

A. E. Stockwelly for appellant. 

John K. Andre^ with him Henry F. Walton^ for appellees. 

Pbb Cubiam, November 19, 1897 : 

The defendant obtained a rule to strike off the municipal lien 
in question. Without formal disposition of this rule, the court 
permitted ihe lien to be amended ; and although a sci. fa. upon 
the lien was and is still pending, the defendant appealed. An 
appeal does not lie from the refusal to strike off the lien for the 
reason that there is no definitive decree or judgment. When 
the court strikes off a lien the case is otherwise, for its action 
is final : Carter v. Caldwell, 147 Pa. 870. For the same reason 
an appeal does not lie from an order permitting an amendment ; 
the action being still pending. Appeals should not be resorted 
to when the effect is to bring cases into appellate courts by 
instalments; such a practice is attended with obvious disad- 
vantages and unnecessarily delays their final disposition : Lauer 
V. Lauer Brewing Co., 180 Pa. 693 ; Yost v. Davison, 6 Pa. 
Superior Ct. 469. 



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PHILADELPHIA r. CHRISTMAN. 31 

1897.] Opinion of the Court. 

But as we have been pressed by the appellant to decide the 
questions raised by the assignments of error, we will say, that, 
even if the claim was defective, (a point not decided) it was 
not incurably so. It avers that the work was done and the 
materials were furnished within six months last past; the accom- 
panying bill or statement is dated July 2, 1891 ; and it contains 
a charge of interest from that date. The effect of the amend- 
ment was simply to make clearer what, to say the worst, was 
only imperfectly indicated before. There was enough in the 
claim and bill to amend by, and the Act of April 21, 1858, 
P. L. 385, gave the power. ** Such acts as this should be liber- 
ally construed, and while amendments are not a matter of right, 
they should be allowed when it can be done without prejudice 
to intervening rights : " Allentown v. Hower, 98 Pa. 882 ; Phila- 
delphia V. Richards, 124 Pa. 803. 

The appeal is quashed and the appellant directed to pay the 
costs. 



George W. Jackson v. James E. Farrell, Appellant. 

LandlorcTa breach of corUr act— Measure of damages. 

The measure of damages where a landlord fails to keep a covenant to 
move or do something to or about a leased building is the difference be- 
tween the worth of the premises in the condition in which they remained 
and that which they would have been in, had the landlord's covenant been 
performed ; or so much less as they would have rented for without the 
covenant. Supposed loss of trade and possibly resulting profits are not 
to be considered. 

Practice, C. P. — Affidavit of defense — Landlord and tenant—Breach of 
landlord's covenant. 

The nonperformance by the landlord of a covenant to move a building 
cannot be set up as a defense for nonpayment of rent. The tenant could 
have moved the building and defalked the cost or he could have sur- 
rendered possession, or if retaining possession he is only entitled to deduct 
the rental value of the building unmoved from what it would have been 
if moved. An affidavit is defective which does not allege such difference 
of rental value as the measure of tenant's damages. 

Argued Oct. 18, 1897. Appeal, No. 94, Oct. T., 1897, by 
defendant, from judgment of C. P. No. 1, Phila. Co., Deo. T., 



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82 JACKSON u FARRELL. 

Statement of Facts. [6 Pa. Superior Ct. 

1896, No. 594, for want of a suflScient affidavit of defense. 
Before Rice, P. J., Wiokham, Beaveb, Oblady, Smith and 
POBTBB, JJ. Affirmed. 

Assumpsit for goods sold and delivered. 

Plaintiff claimed on an oral agreement of lease of a certain 
store on the boardwalk at Atlantic City, rented to defendant as 
a candy store for the season of 1896 at a rental of $800, of which 
♦200 was paid by defendant on January 18, 1896, the balance 
to be paid before the expiration of the year 1896 ; the defend- 
ant occupied the premises during the season and still had pos- 
session of the same on the 13th day of January, 1897 ; and that 
he, the defendant, refused to pay the balance of $600. 

The defendant filed the following affidavit of defense : 

James E. Farrell, being duly sworn according to law, deposes 
and says, that he is the defendant in the above case, that he 
has a just and legal defense to the entire claim of the plaintiff 
of the following nature and character, to wit: The plaintiff in 
his statement filed has not set forth the full and entire agree- 
ment between him and the defendant. At and before the time 
when defendant agreed to rent the premises in question the 
plaintiff expressly promised and agreed that said candy store 
should be on the said boardwalk, and if the said boardwalk 
should be moved out towards the ocean, as was then contem- 
plated, that he, the plaintiff, would move the said store out to 
the new boardwalk ; that this promise and agreement on the 
part of the plaintiff was relied on by the defendant and induced 
him to lease the premises in question ; that the season for busi- 
ness at said place is during the months of July and August ; 
tliat on or about the day of June, 1896, the said board- 
walk was moved out about one hundred and fifty feet from the 
said store of defendant; that the plaintiff, though often requested, 
neglected and refused to move defendant's store out to said 
boardwalk, and even refused to allow defendant to do so at his 
own expense ; that in consequence of the neglect of the plaintiff 
to move said store out to said boardwalk the defendant's busi- 
ness was ruined and destroyed, and by reason thereof he lost in 
his business more than $1,000. 

Defendant, relying on the promise and agreement of the plain- 
tiff to move said store out to the new boardwalk, if erected 



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JACKSON V. FARRKLL. 83 

1897.] Statement of Facts— Arguments. 

during the tenn of his lease, paid to the plaintiff the sum of 
♦200, on account of the said rent, on January 18, 1896, that 
said boardwalk was moved put at the season when the business 
of the defendant just commenced, and that defendant was not 
able to secure at that time any other store. That the business 
of said store depended on its bei^g situate on the boardwalk 
solely, that after the boardwalk was moved out, and all other 
candy stores were moved out to it, the defendant's store re- 
mained about 150 feet back in its old position, and was inacces- 
sible to the people passing along the said boardwalk, and was 
worthless to defendant, who by reason of the plaintiff's neglect 
to move said store out to the said boardwalk as agreed, suffered 
damages to the amount of f 1,000, which he will claim against 
the plaintiff at the trial, and ask for a certificate in his favor. 

S. Morris Wain, being duly affirmed, says that he is the at- 
omey for defendant in the above c^e ; that defendant recently 
moved from Philadelphia to Atlantic City, where he now resides ; 
that deponent wrote plaintiffs attorney to wait a few days until 
he could find defendant's address and to write plaintiff, who 
also lived in Atlantic City, for the address of defendant ; that 
in consequence of a letter from plaintiff's attorney, which is 
hereto attached, deponent makes this affidavit for defendant, 
who is out of the city ; that the above affidavit is true to the 
best of his information and belief. 

Error (assigned was making absolute the plaintiff's rule for 
judgment for want of a sufficient affidavit of defense. 

S. Morris Waln^ for appellant. — The tenant may set off the 
landlord's breach .of contract against the landlord's claim for 
rent : Depuy v. Silver, 1 Claik, 385 ; Faiiman v. Fluck, 5 
Watte, 616 ; Peterson v. Haight, 3 Wharton, 150 ; Phillips v. 
Monges, 4 Wharton, 226-8. Claims which arise ex contractu,, 
or are capable of liquidation by a jury, are the subject of set- 
off : Shoup V. Shoup, 15 Pa. 861; Hunt v. Gilmore, 59 Pa* 
450. 

Eugene C. Bonniwell^ with him S. Edwin Megargee^ for ap- 
pellee. — The landlord cannot do any act which will deprive the 
tenant of that beneficial enjoyment of the premises to which he 
Vou VI— 8 



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84 JACKSON V, FARRELL. 

Arguments— Opinion of the Court. fiS Pa. Superior Ct. 

is entitled under the lease. If he does, the tenant may remove 
and successfully defend against a claim for rent accruing after 
removal. But if he remains in possession he must render the 
price thereof, according to his agreement. He cannot assert 
the property is uninhabitable and yet inhabit it unless he pays 
the rent therefor : Sutton v. Foulke, 44 Leg. Int. 5 ; Wilcox 
V. Pahner, 163 Pa. 109. 

The affidavit does not state how the damages claimed are 
arrived at. Certainly a sweeping assertion that defendant " suf- 
fered damages to the extent of one thousand dollars," unsup- 
ported by any detail showing how the amount is computed or 
in what manner it was suffered, is insufficient : Mc Brier v. Mar- 
shall, 126 Pa. 890; Hopple v. Bunting, 8 W. N. C. 472; Sit- 
greaves v. Griffith, 2 W. N. C. 705. 

Loss of profits in business is not a legal element of damage 
or a matter of set-off : Fairman v. Fluck, 5 Watts, 516. 

The facts being sworn to on information and belief, there 
should also be added that he expects to be able to prove the 
facts contained therein: Black v. Halstead, 89 Pa. 64; Thomp- 
son V. Clark, 56 Pa. 83 ; Hermann v. Ramsey, 5 W. N. C. 188. 

Opinion by Beaver, J., November 19, 1897 : 
The affidavit of defense in this case is made by the attorney 
of the defendant. All the statements therein contained are, of 
course, based upon information and belief. Technically there 
should have been an averment of an expectation on the part of 
the defendant to prove the facts thus stated. The affidavit, 
liowever, is in itself so faulty that it is not necessary to rely 
upon this technicality to affirm the judgment of the court below. 
Admitting, that the covenant on the part of the plaintiff to 
move the building occupied by the defendant to the board 
walk thereafter to be erected was a part of the agreement for 
the lease of the building, and admitting also the failure of 
the plaintiff to comply with his agreement, after notice and 
i-equest by the defendant, two courses were open to the de- 
fendant He could have moved the building, in accordance 
with the terms of the agreement, and defalked the cost of mov- 
ing it from the amount of the rent, or he could have surrendered 
the possession, or offered to surrender it, and have relieved him- 
self from the payment of the rent, or he could have retained the 



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JACKSON V. FARRRLL. 85 

1897.] Opinion of the Court. 

poBsessioQ and deducted from the rent the difference between 
the rental value of the store room as it would have been, if the 
stipulations of the agreement as alleged by him had been com- 
plied with, and its rental value as occupied by him : Peterson 
V. Haight, 3 Wharton, 150 ; Warner v. Caulk, 3 Wharton,' 193. 

The allegation in the affidavit of the amount of damages sus- 
tained by the defendant " by reason of the plaintiff's neglect to 
move the store out to the boardwalk " is vague and uncertain. 
This estimate of damages was evidently based upon supposed 
loss of trade out of which prospective profits were to be realized. 
This is not a proper measure of damages in such a case. The 
rule laid down in Fairman v. Fluck, 5 Watts, 516, based upon 
Schuylkill Navigation Co. v. Thobum, 7 Sergeant & Rawle, 
411, which \s a leading case, is that the measure of damages for 
the breach of such a covenant as this on the part of the landlord 
" ought to be the differej;^ce between the worth of the premises 
in the condition in whicl^^ey remained and that which they 
would have been in, had the landlord's covenant been performed ; 
or, in other words, so much less as they would have rented for 
without the covenant." The defendant makes no effort to in- 
form the court as to the difference in rental value between the 
store as it was to be under the covenant alleged by him, and the 
store as it was during his tenancy. The affidavit of defense 
was, therefore, insufficient, and the court was clearly justified 
in making absolute the rule for judgment. 

Judgment affirmed. 



Commonwealth of Pennsylvania v. Jacob Miller and 
Samuel Harris, Appellants. 

Criminal ktw^MisrecUal of daU^Indidmenir^Varianee. 

Where the crime charged in the indictment is not based upon a record 
or other official wnting, a variance of one day between the indictment and 
proof hi fixing the date of the crime is not a fatal variance ; time not 
being of the essence of the offense. 

Criminal law— Conviction defined. 

When the law speaks of conviction, it means a Judgment, and not merely 
a verdict which in common parlance is called a conviction. 



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M COMMONWEALTH r. MILLKR. 

Syllabus — Assignment of Errors. [0 Pa. Superior Ok, 
Criminal law — Perjury— Evidence — Competency of wUnesn, 



A person found guilty by a vei-dict of the jury of perjui^ bat not i 
tenced, is a competent witness in a trial of others on a charge of suboma* 
tion of perjury incident to the same perjury for whidi the witness was 
tried. 

Perjury— Faise swearing in examination for bail. 

False swearing in a matter before a magistrate touching the sufficiency 
of bail offered for a man charged with a criminal offense, is perjury at 
common law and under the statutes. Whether the inquiry touching the 
bail be made at the examination of the charge or afterward is immaterial. 

Argued Oct 19, 1897. Appeal, No. 85, April T^ 1897, by 
defendants, from judgment of Q. S. Allegheny Co., March Sess., 
1897, No. 320, on verdict of guilty. Before Rice, P. J., Wick- 
ham, Beaver, Reeder, Orlady, Smith and Porter, JJ. 
Affirmed. 

Indictment for subornation of p^jury. Before Kennedy, P. J. 

It appears from the record and eviaence that the defendants 
were indicted^ tried and convicted on a charge of subornation of 
perjury. 

Other facts sufficiently appear in the opinion of the court. 

Verdict of guilty and sentence thereon. Defendants appealed. 

JEn'ors assiffned were, (1) In not quashing the indictment. 
(2) In ovemiling the defendants' objection to the admission of 
the testimony of James Nolan. (8) In refusing binding in- 
structions for defendants. (4) In charging the jury as follows : 
** Now, as I have said to you, you have the testimony of this 
man Nolan, stating substantially that the oath which he took in 
that case was false, and you have other circumstances in the 
case tending to show the same thing. You have his own testi- 
mony tending to show that these defendants both knew that he 
was swearing falsely, and that they induced him to take the 
false oath. He states that he met them here on the day in 
question, somewhere in the vicinity of the courthouse, that 'he 
was under the influence of liquor at the time, and that after 
some talk between them, or persuasion upon their part, he was 
induced to go before the alderman and take, as he said, this 
false oath. He says that he told them at the time that he had 
no property, that they knew without liis telling them that he 
had no property, but they told him that mattered not, that h^ 



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COMMONWEALTH v. MirXER. 37 

1897.] Assignment of £rror8 — Arguments. 

would not get into any serious trouble by it, and induced him 
to go and make what he claims to have been this false oath. 
In other words, they procured hint, as is claimed by the com- 
monwealth, or suborned him to make the false oath, and if you 
are convinced of that beyond a reasonable doubt, it will be your 
duty to find a verdict of guilty.'' (5) In not charging the jury 
that in order to convict the defendants the commonwealth must 
prove each material part of its case by the testimony of two 
witnesses, or one witness and corroborating circumstances, and 
that James Nolan being a particeps criminis, his testimony 
should not have the weight of one witness at any material point. 
(6) In not giving any instruction to the jury as to what consti- 
tuted corroboration, and as to the parts of the testimony neces- 
sary to be corroborated. (7) In not instructing the Jury as to 
what weight should be given to evidence of good character. 
(8) In charging the jury as follows : " Perjury, so far as this 
case is concerned, may be defined to be the wilful and corrupt 
false swearing in some judicial proceeding under an oath legally 
administered, and by an officer duly authorized to administer it. 
Subornation of perjury is the procuring, or suborning, of a per- 
son to make this false oath.'* (9) The indictment in this case 
is assigned as error for the reason that it is fatally defective in 
the following particulars : (a) The indictment does not allege 
that Nolan was duly or lawfully sworn. (6) It does not aver 
that Nolan was sworn or took any oath, (c) It does not allege 
what oath he took, (rf) It does not allege that the testimony 
of James Nolan' was necessary or material. (^) It does not 
allege that Harris or Miller knew or believed that Nolan would 
wilfully and corruptly testify to facts which he knew to be false. 
(/) It does not allege that Nolan became bail or was accepted 
as such for J. F. Latimer, or that Latimer was released from 
custody, or that the alderman was in any way influenced by the 
testimony of Nolan in disposing of the cause then and there 
pending. Any testimony he may have given was not material, 
unless he was so accepted as bail. (^) It was fatally defective 
in that it lays the crime as having been committed on the 10th 
day of November, whereas the evidence produced showed it to 
have been committed on the 11th day of November. 

Jo%. B. McQttaide^ for appellants. — As to admission of ev> 

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38 COMMONWEALTH v. MILLER. 

Argfunients— Opinion of the Court. [6 Pa. Superior Ct ' 

dence of one James Nolan, defendants relied on Act of May 2S, 
1887, P. L. 158, sec. 2. 

The word " convict '* means to find guilty of a criminal offense 
by verdict of a jury: Anderson's Law Diet., 256. 

A man is convicted when he is found guilty or confesses the 
crime before judgment had : Shepherd v. People, 25 N. Y. 406. 

In an indictment for perjury the day on which the perjury 
was committed must be truly laid : U. S. v. McNeal, 1 Gall. 
887 ; U. S. V. Bowman, 2 Wash. C. C. 828 ; Com. v. Monahan, 
9 Gray, 119. 

A man convicted of perjury is not competent to testify: 
People V. Evans, 40 N. Y. 8. 

Cha%, A. O^Biien and John C. Haymaker^ district attorney, 
for commonwealth. — There must be a judgment on the verdict 
in order to constitute a conviction: People v. Whipple, 9 
Cowen, 707 ; 1 Phillips on Evidence; 18, note 12 ; 1 Greenleaf 
on Evidence, sec. 375 ; Bishop's Criminal Law, sec. 975. 

As to the alleged variance all the cases cited by the appellants 
on this point refer to a record oath: Matthews v. U. S., 161 
U. S. 500. 

The law relating to corroboration in perjury, as adopted in 
nearly all the states, is stated in 1 Greenleaf on Evidence, 
sec. 257. 

Opinion by Smith J., November 19, 1897 : 

The appellants, Jacob Miller and Samuel Harris, were indicted 
and convicted of subornation of perjury. One J. F. Latimer, 
having been arrested on a warrant issued by an alderman of the 
citj'^ of Pittsburg, charging him with a criminal offense, in de- 
fault of bail was committed for trial. Subsequently James Nolan, 
accompanied by the appellants, appeared before the alderman, 
and offered himself as bail for Latimer's appearance at court. 
Being sworn and examined by the alderman as to his ownership 
of property, he stated that he owned real estate in Pittsburg 
worth $2,000, clear of all incumbrances; whereupon he was 
accepted as bail in the sum of $500. Latimer failed to appear 
for trial, and the recognizance was forfeited. Upon investiga- 
tion it was found that Nolan was insolvent at the time of be- 
coming bail. He was indicted for perjury in having thus sworu 



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COMMONWEALTH v, MILLER. 89 

1897.] OpinioQ of the Couit. 

falsely as to his ownership of property, and convicted. Befoi'e 
he was sentenced, the appellants were put on trial charged with 
having suborned him to make the false statement for which he 
had been tried, and he was the principal witness against them. 

The indictment is sufficient to warrant a prosecution and 
sustain a judgment. The variance of one day between the 
indictment and the proof as to the time laid is not a fatal defect. 
Had the assignment of perjury been based upon a record, depo- 
sition, affidavit or other official instrument, a misrecital of the 
date might be a serious error, because the writing, being a very 
material part of the case, should be accurately described. But 
here the crime charged is not based on a record or other official 
writing ; and, furthermore, time is not of the essence of the 
offense. The mistake as to date could not have misled or in- 
jured the appellants, and the variance was immaterial. 

The competency of Nolan as a witness is a principal feature 
of the appellant's argument. It is contended that, having been 
found guilty of perjury by the verdict of a jury, he was incom- 
petent to testify, under the act of May 23, 1887. That act pro- 
vides that " A person who has been convicted in a court of this 
commonwealth of perjury, which term is hereby declared to in- 
clude subornation of perjury, shall not be a competent witness 
for any purpose, although his sentence may have been duly com- 
plied with, unless the judgment of conviction be judicially set 
aside or reversed," except in cases involving his personal secu- 
rity or his right of property. 

With respect to some purposes and consequences, the words 
" convicted " and " conviction," when used in a statute, mean 
no more than the judicial ascertainment of guilt by verdict or 
plea. But " no conviction is complete until sentence is passed 
and recorded: " County v. Holcomb, 36 Pa. 349, Lowrib, C, J. 
Therefore, when conviction is made the ground of some disa- 
bility or special penalty, a final adjudication by judgment is 
essential. In such cases, ^^ when the law speaks of conviction, 
it means a judgment, and not merely a verdict, which in com- 
mon parlance is called a conviction: " Smith v. Com., 14 S. & 
R. 69, TiLGHMAN, C. J. The distinction has been discussed 
and illustrated in numerous cases in our own and other states, 
among which, besides those already referred to, are York County 
V. Dalhousen, 46 Pa. 372; Wilmoth v. Hensel, 151 Pa. 200; 



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4Q COMMONWEALTH v. MILLER. 

Opinion of the Court. [6 Pa. Superior Ct; 

Shepherd v. People, 25 N. Y. 406 ; Blauf us v. People, 69 N. Y. 
107 ; Com. v. Gorham, 99 Mass. 420 ; Com. v. Lockwood, 109 
Mass. 323. Further consideration, however, of the basis of this 
distmction is unnecessary, since the decision of the question in 
hand rests on grounds mdependent of it. 

Whatever the authority of Fitz v. Smallbrook, 1 Keble, 134, 
it has been uniformly held, at least since the ruling by Lord 
Mansfield in Lee v. Gansel, Cowp. 3, that conviction of an 
infamous crime, by verdict or plea of guilty, does not work dis- 
qualification as a witness unless foUowed by judgment. The 
issue is not necessarily closed by such conviction ; a new trial 
may be granted, or judgment may be arrested. In the only 
reported case, so far as I have been able to find, in which the 
question has been raised in this state (Skinner v. Perrot, 1 Ash. 
57), this was recognized as the law. Nothing in the act of 
May 23, 1887, shows an intention to change this well-settled 
principle. The purpose of that act is not to restrict but to 
enlarge the competency of witnesses. It makes no one incom- 
petent who was previously competent. Before its passage, a 
person against whom a verdict had been given was still compe- 
tent as a witness until judgment was pronounced. Hence he 
still remains competent until judgment. The conviction that 
disqualifies, under the statute, is the conviction that had pre- 
viously disqualified; the final determination of the issue by judg- 
ment of conviction. This further appears from the provision, 
inapplicable to a verdict only, that the disqualification shall con- 
tinue, though the judgment be carried into effect by full com- 
pliance with the sentence, " unless the judgment of conviction be 
judicially set aside or reversed." The evident purpose of the 
act is to restrict disqualification by reason of crime to convic- 
tion of perjury and subornation of perjury, and to preserve the 
existing requirement of judgment of conviction in order to dis- 
qualify. Under the statute, in brief, nothing creates the disa- 
bility but a judgment of conviction ; nothing removes it but the 
judicial setting aside or reversal of this judgment ; or a pardon: 
Diehl V. Rodgere, 169 Pa. 816. 

It is the duty of aldermen and justices of the peace to admit 
to bail, " by one or more sufficient sureties," accused persons 
brought before them. They are required to pass upon the suf- 
ficiency of the bail offered, and for this purpose must make in* 



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COMMONWEALTH v. MILLER. il 

1897.] Opinion of the Court. 

quiry into the matter. When a person is charged before an 
alderman with a criminal offense, it is the magistrate's duty to 
inquire into the charge, and commit the prisoner, hold him to 
bail, or discharge him, as the evidence may warrant. If he de- 
cides to hold the prisoner to bail, his duty to inquire into the 
solvency of the surety is no less than to inquire into the suffi- 
ciency of the complaint. Either inquiry involves the exercise 
of judgment and discretion, and in both he acts judicially. 
They are equally part of a judicial proceeding which the alder- 
man has the power to conduct, and in so doing to examine under 
oath. False swearing respecting a material question in such a 
proceeding is perjur}% at common law and under the statutes. 
And whether the inquiry touching the bail be made at the exam- 
ination of the charge or after, is immaterial : Moore v. Com., 6 
W. & S. 314 ; Com. v. Ross, 6 S. & li. 427. 

While it would have been proper to caution the jury respect- 
ing the weight to be given to the testimony of Nolan, we are 
not convinced that the case should be reversed because of an 
omission on this point. There was other evidence cori'oborative 
of his testimony which, if believed, entirely justified the find- 
ing of the jury. The learned trial judge clearly and accurately 
defined the nature of the offense, and the evidence necessary to 
establish it, and the jury were told that they must be convinced 
of the defendant's guilt beyond a reasonable doubt before they 
could convict. If special instructions on particular phases of 
the evidence were desired, the court should have been requested 
to give them. It is unnecessary to notice the specifications of 
error in detail, they are all overruled. 

The judgment of the court below is affirmed, and it is now 
ordered that Jacob Miller and Samuel Harris, the appellants, 
be forthwith remanded to the custody of the keeper of the Alle- 
gheny county workhouse, there to be confined according to law 
for the terms of imprisonment for which they were sentenced 
respectively, and that the record be remitted to the said court 
with instructions to carry this order into effect. 



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42 LAKE V. WEBER. 

Syllabus — Statement of Facts. [6 Pa. Superior Ct. 

William E. Lake v. 0. M. Weber, Appellant. 

Fraudulent misrepresentation— CredulUi/ of other party no defense. 
However negligent a party may have been to whom an incon-ect state- 
ment has been made, yet that is not ground upon which the paity making 
the incorrect statement can stand. No man can complain that another has 
relied too implicitly on the truth of what he himself stated. 

Contract— Assertion of untruth — Rescission— Defense. 

To assert for truth what one professes to know and may fairly be sup- 
posed to know, but does not know it to be so, is equivalent to the assertion 
of a known falsehood^ and may be so ti'eated in determining the light of 
the other party to rescind the contract, or if the falsity of the declai'ation 
be discovered too late for that, to defend an action upon it. 

MisrepresefUation as defense to a contract. 

A misrepresentation, which possibly might not be sufficient gix>und 
of an action for damages, may be sufi^cient to entitle the party deceived 
to rescind the contract or to defeat or to defend pro tanto, an action 
upon it. 

Argued Oct. 7, 1897. Appeal, No. 64, Oct T., 1897, by 
defendant, from judgment of 0. P. No. 1, Phila. Co., March T., 
1897, No. 204, for want of a sufficient affidavit of defense. Be- 
fore Rice, P. J., Wickham, Beaver, Reedbr, Oblady, Smith 
and PoBTEB, J J. Reversed. 

Assumpsit for services rendered. 

It appears from the record that the plaintiff claimed $100 
for services rendered the defendant in securing and obtaining 
for him a cei*tain contract with one Joseph Bird. 

The defendant filed the following affidavit of defense : " O. M. 
Weber, being duly sworn according to law, deposes and says 
that he is the defendant in the above case, and that he has a 
just and true defense to the whole of plaintiff's claim of the fol- 
lowing nature and character, to wit : 

Deponent says that plaintiff's statement of claim filed in above 
case is defective, and insufficient to require an affidavit of de- 
fense, or to base a judgment upon in this : that said statement 
does not contain the name of defendant, and further, does not 
aver that any sum is " justly due " to the plaintiff, wherefore 
defendant demurs to plaintiff's statement of claim. 



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LAKE V. WEBER. 48 

1897.] Statement of Facts. 

Deponent further sajrs that on or about the latter part of 
July, or early part of August, 1896, the defendant (who is en- 
gaged in the making of woodwork for building operations) was 
requested by the plaintiff to submit an estimate for the purpose 
of obtaining the contract for furnishing the millwork for a church 
building to be erected by Joseph Bird, contractor, and plaintiff 
thereupon obtained the specifications, and defendant inspected 
them with plaintiff and commenced preparing an estimate for 
the millwork required by said ispecifications. 

While defendant was engaged in going over the specifica- 
tions and plans of said chuitih in company with plaintiff, de- 
fendant came to the louver fitimes in tower of said church build- 
ing, and was proceeding to place an estimate for the items of 
louver frames when plaintiff informed defendant that he (defend- 
ant) would not be required to furnish said louver frames for said 
tower, as said louver frames were to be copper, whereupon de- 
fendant struck from his estimate said louver frames and pro- 
ceeded with said estimates, the same amounting to $2,650 after 
excluding the louver frames, and the estimate was then submitted 
to said contractor, Joseph Bird, and the contract for said mill- 
work was therefore awarded to said defendant. After defend- 
ant entered upon the execution of this contract with said Joseph 
Bird, he learned that the said plaintiff had fraudulently and 
falsely informed defendant in regard to the louver frames not 
being required in the tower for the purpose of getting defend- 
ant to make the lowest possible estimate on said millwork in 
order that it would be accepted by said Joseph Bird, and depo- 
nentwas required by said Joseph Bird to furnish the louver frames 
which deponent had to do at an actual cost to defendant of 1^110. 
Deponent therefore avers that he is not indebted to plaintiff in 
any sum whatever, but plaintiff is indebted to the defendant, 
and deponent will ask for a certificate against plaintiff in the 
sum of l$10.00 at the trial of this case, that being the amount of 
loss which deponent suffered (after allowing credit to plaintiff 
in the sum of $100) by reason of plaintiff fraudulently and 
falsely informing deponent as to the requirements of said speci- 
fications and plans for said church. 

All of which deponent avers, believes and expects to be able 
to prove upon the trial of this cause. 

Judgment for want of a sufficient affidavit of defense. De- 
fendant appealed. 



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44 LAKK V, WEBKR. 

Arguments — Opinion of the Coai*t. [6 Pa. Superior Ct. 

Error assigned was entry of judgment for want of a sufficient 
affidavit of defense. 

William M. Stewart^ Jr.^ with him Frederick S. Drake and 
John Sparhatvk^ Jr,^ for appellant. — That in order to defeat a 
recovery upon a contract, it is sufficient to allege that there was 
a fraudulent representation as to any part of that which induced 
the defendant to enter into the same : Brown v. Eccles, 2 Pa. 
Superior Ct. 192; Edelman v. Latehaw, 180 Pa. 419; Land & 
Improvement Co. v. Mendinhall, 4 Pa. Superior Ct. 398. 

A representation is fraudulently made when made with a 
knowledge of its untruth ; or, if in regard to a material matter, 
when made in ignorance of whether it is true or not : Braunsch- 
weiger V. Waits, 179 Pa. 47. 

It is no answer to Weber's claim to be relieved from his prom- 
ise that he might have learned the truth by inquiry : Land & 
River Imp. Co. v. Mendinhall, 4 Pa. Superior Ct. 398 ; Braunsch- 
weiger v. Waits, 179 Pa. 47. 

Charles H. Pile^ for appellee. 

Opinion by Rice, P. J., November 19, 1897 : 
This is an action upon the defendant's promise to pay the 
plaintiff $100 in consideration of the plaintiff procuring for the 
defendant from one Joseph Bird, the builder, a contract whereby 
the defendant was to furnish the necessary millwork for a cer- 
tain building and was to receive the sum of $2,650 therefor. 

It is difficult to state the defense without reciting at some 
length the material averments of the affidavit of defense, and 
this we think it important to do. The affidavit avers, that the 
plaintiff (having first come to an understanding with Bird that 
he, the plaintiff, should endeavor to get an estimate for a sum 
not exceeding $2,650, and receive a commission from the per- 
son to whom the contract might be awarded) brought the plans 
and specifications of the building to the defendant and requested 
him to make and submit an estimate on the millwork required 
therefor ; that in making his estimate he was about to include 
the louver frames in the tower, and the frieze and moulding 
under the truss, when he was informed by the plaintiff that the 
former were to be made of copper and the latter of plaster, and 



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LAKE V. WEBKR. 45 

1897.] Opinion of the Court* 

hence were not included in the millwork ; that, relying upon 
this representation, and complying with the plaintiff's express 
request not to include these items, he omitted them from his 
calculation, and submitted an offer to furnish the millwork for 
♦2,650, which included the commission of $100 to be paid to 
the plaintiff if the defendant's bid was accepted ; that the gen- 
eral contractor, Bird, accepted the bid or estimate and awarded 
to him the contract; that after he entered upon the execution 
thereof he learned that the plaintiff's representation was false 
and was made for the express purpose of inducing him to make 
his estimate sufficiently low to obtain the contract ; that had he 
not been induced by the plaintiff's false and fraudulent state- 
ments to omit the cost of these things from his estimate lus bid 
would have been more than $2,650, and in that event the con- 
tract would not have been awarded to him— a fact which was 
well known to the plaintiff ; and, finally, that the latter knew 
the amount at which the contract could be obtained by the 
defendant, and purposely deceived him in order that he, the 
plaintiff, might get the commission. 

It is argued, that, even admitting the truth of all the defend- 
ant's averments, he has no defense, but must still pay the com- 
mission ; and the court below so held. In this conclusion we 
are unable to concur. 

There are several views which may be taken of this transac- 
tion. One that is well worthy of consideration is,* whether the 
representation did not enter into the terms of the contract sued 
upon and form a substantive part thereof. This position is 
strengthened by the fact that the representation was accom- 
panied by an express request that the defendant should omit 
tlie cost of the louver fi-ames and the frieze and molding from 
the calculation. Taking this view, how can the plaintiff say 
that he procured for the defendant the contract that he under- 
took to procure, and which both parties had in mind when the 
defendant made his promise ? It is answered that the defend- 
ant's failure to obtain a contract to furnish the mill-work, exclud- 
ing these things, for $2,650, was due to his own negligence in not 
having the contract so drawn. But that position is not ten- 
able ; for it is distinctly averred that the contract would not 
have been awarded to him upon those terms. In other words, 
the plaintiff did not perform, and could not have performed, 



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46 LAKE V, WEBER. 

Opinion of tlie Couit. [6 Pa. Sapenor Ct. 

what he undertook to, even if the defendant had been as vigi- 
lant as he says he ought to have been. 

But assuming that the representation was not a term in the 
contract, and treating it as a representation merely, we fail to 
see why the affidavit does not present a good defense to an ac- 
tion for the commission, whatever may be said of its sufficiency 
as a statement of an independent cause of action for deceit. 
The representation was false ; it was of a material fact of which 
the plaintiff professed to have knowledge and the defendant 
liad not; to say the least, the plaintiff had a self-seeking motive 
for wishing that it should be believed by the defendant ; it was 
made with the intention, and express request that it should be 
acted upon by the defendant ; it was believed by him, and he 
was thereby actually induced to act upon it ; and in consequence 
he was damaged. True, the affidavit does not distinctly aver, 
in so many words, that the .plaintiff knew that the representa- 
tion was false, but it does aver that it was fraudulently made, 
with the purpose to deceive and that it had that effect. In 
determining the effect of these facts upon the liability of the 
parties to the contract, it is important to notice, that we are not 
dealing with an action for damages based on an alleged deceit, 
but with the question of the right of the defendant to be re- 
lieved, to the extent that he was injured by the misrepresenta- 
tion, from liability on his promise. A misrepresentation which, 
possibly, might not be sufficient to ground an action for dam- 
ages, may be sufficient to entitle the party deceived to rescind 
the contract or to defeat, or defend pro tanto, an action upon it. 
We shall not undertake to review the law upon that subject. It 
is perfectly safe to say, however, that so far as the right of the 
promisor to defend the action is concerned it is immaterial 
whether the other party knew that the representation was false 
or made it without any knowledge upon the subject. In either 
case, the law, as well as the common rules of fair dealing, for- 
bids that he should make a misrepresentation for the purpose of 
deceiving, which does deceive, and profit thereby to the other's 
injuiy. There are cases and this is one, where to assert for 
truth what one professes to know, and may fairly be supposed 
to know, but does not know to be so, is equivalent to the asser- 
tion of a known falsehood, and may be so treated in determin- 
ing the right of the other party to rescind the contract; or if 



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LAKE V. WEBER. 47 

1897.] Opinion of the Court. 

the falsity of the declaration be discovered too late for that, to 
defend an action upon it : Fisher v. Worrall, 5 W. & S. 478 ; 
Bower v. Fenn, 90 Pa. 859 ; Braunschweiger v. Waits, 179 Pa. 
47 ; Land Imp. Co. v. Mendinhall, 4 Pa. Superior Ct 898 ; 
Sutton V. Morgan, 158 Pa. 204. 

But it is said that, before signing the contract, the defendant 
should have made inquiry of the builder as to the millwork he 
would be required to furnish, and that he was negligent in not 
doing so. As between the builder and the defendant this would 
be true, and for that very reason the latter was compelled to 
furnish the louver frames, notwithstanding the fact that he was 
induced by the plaintiff to believe that they were to be made of 
copper, and therefore did not come under the head of miUwork. 
The contractor made no representations whatever ; therefore as 
between him and the defendant the latter could not be heard to 
say that he was deceived as to the requirements of the contract 
he signed. It is to such a case that the single decision cited by 
the plaintiff (Kern v. Simpson, 126 Pa. 42) applies. But how 
is it as between the parties to this suit? Can the plaintiff say 
to the defendant : " You had the plans and specifications before 
you when we contracted, therefore, you ought not to have 
believed me when I told you that the louver frames were to be 
made of copper and the frieze and moulding under the truss 
were to be made of plaster ; it is your own fault if you trusted 
me too implicitly and complied with my express request." 
Clearly he could not be heard to say that, if the plans and speci- 
fications left it uncertain as to the materials of which these 
things were to be made ; and even if the specifications showed 
that they were to be made of wood they were subject to such 
changes and modifications as the parties to the principal con- 
tract might see fit to make, and the defendant swears, in effect, 
that he was induced to believe that such changes had been made. 
Therefore, in either case, the representation was as to a fact of 
which the plaintiff professed to have knowledge and concerning 
which the defendant had no knowledge, anct could acquire none 
from an inspection of the written plans and specifications alone. 
He was obliged to rely on the plaintiff's representation, or to 
make inquiry elsewhere. He was induced to rely on the former, 
and in consequence was deceived as he alleges, to his injury in 
a greater sum than he promised to pay the plaintiff. As was 



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48 LAKE V. W£BE]L 

Opinion of the Court. [6 Pa. Superior Ct. 

held in Sutton y. Morgan, supra, and Land Imp. Co. v. Mendin- 
hall, supra, his neglect, or want of prudence, cannot justify the 
falsehood or fraud of one who practiced upon his credulity; the 
doctrine of contributory negligence cannot be invoked in such a 
case. The defendant's failure to make inquiry of the builders 
may be a fact affecting the good faith of his action, but clearly 
it is not the basis of a positive conclusion against him: McGrann 
V. R. R., Ill Pa. 171. 

In a rule for judgment for want of a suflBcient affidavit of 
defense every material averment of fact in the latter must be 
taken as tine. Observing this rule, we conclude without fur- 
ther discussion of the case before trial, that the affidavit was 
sufficient to prevent judgment. 

Judgment reversed and procedendo awarded. 



The Fidelity Insurance, Trust and Safe Deposit Company, 
Trustees, under the will of John Matthew Hummel, 
deceased, v. Frederick J. Hafner, Appellant. 

Parly waXls-^LiabilUy of next huildeT'-Acl o/172l. 

Liability arises for use of a party wall under the Act of February 24, 
1721, 2 Sm. L. 124, where ownership exists in the plaintiff and where the 
defendant, the next builder, supported the roof of his building on timbers, 
the ends of which rest in holes in said paity walls. 

Argued Oct 11, 1897. Appeal, No. 77, Oct. T., 1897, by 
defendant, from judgment of C. P. No. 4, Phila. Co., March T., 
1897, No. 615, for want of a sufficient affidavit of defense. 
Before Rice, P. J., Wickham, Beaver, Rbbdeb, Oelady, 
Smith and Porter, J J. Affirmed. 

Assumpsit for u^e of party wall. 

The facts sufficiently appear in the opinion of the court. 

Judgment for plaintiff for $116.01. Defendant appealed. 

Error asngned was, Entry of judgment for want of a suffi- 
cient affidavit of defense. 



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FroELITY CO. V. HAFNER. 49 

1897.] Arguments — Opinion of the Court. 

Charles L, Smj/tk, for appellant. — The plaintiff's statement 
does not allege a complete cause of action : Bank v. Ellis, 161 
Pa. 241. 

The defendant shows by the affidavit of defense that he is a 
mere lessee of the premises and is not an owner thereof in fee. 
The action should be brought against the owner and not against 
the tenant: Heiland v. Cooper, 38 W. N. C. 560. 

William M. Stewart^ Jr.^ with him John Marshall Gesfy for 
appellee. — The liability of the defendant is clear under the Act 
of February 24, 1721, Sm. L. 124. 

The question as to the right to recover for such use of the 
party wall has been decided by the Supreme Court of Iowa 
under a similar act of assembly : Deere v. Weir-Shugert Co., 
69 N. W. 255. 

Opinion by Beaver, J., November 19, 1897 : 

The judgment in this case was properly entered. The plain- 
tiffs statement was sufficient. It distinctly averred the owner- 
ship of the premises upon which the party wall was built ; that 
the defendant wa.s the owner or lessee of the adjoining premises, 
and that he was the next builder, having erected and built a 
messuage upon the adjoining premises and making use of the 
plaintiffs party wall therefor. It avers that the "• proper sur- 
veyor and regulator duly set the charge and value of the por- 
tion of the said party wall so used by the said defendant as- 
aforesaid, of which the defendant had notice," and that defend- 
ant refused to pay. 

Under the provisions of the Act of February 24, 1721, 1 Sm» 
L. 124, and of the Act of April 10, 1849, P. L. 600, the 
defendant was liable for the amount assessed by the surveyor 
or regulator as compensation for the use of the waU made by 
him. See Voight v. Wallace, 179 Pa. 620. 

The affidavit of defense is not sufficient. The defendant 
himself alleges that he used the "porty wall; that the roof 
erected by him " is supported by light pieces of scantling, the 
timbers or ends of which rest in small holes about two inches 
in the said party wall, extending along the said party wall th& 
length thereof." This is a clear admission of such a use of the 
wall as makes him liable. The act of 1721 provides that ^the 
Vol. VI— 4 



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50 FIDELITY CO. v. HAFNKR. 

Opinion of the Court. [6 Pa. Saperior Ct. 

first builder shall be reimbursed one moiety of the charge of 
such party wall or for so much thereof as the next builder shall 
liave occasion to make use of before such next builder shall 
anyways use or break into the said wall." The defendant's 
entire structure at least upon the one side depended, upon his 
own admission, entirely upon the party wall. Having used it, 
he should pay the amount assessed by the officer duly consti- 
tuted to assess the value of the use of said wall made by him. 
The judgment is affirmed. 



B. F. Lamb v. E. J. M. Leader, W. W. Leader and A. M. 
Halberstadt, trading as Progressive Steam Power and 
Job Printing House, Appellants. 

Practice, Superior Churt^Defective a»signment^Rule XVI, 

Where the eiTor assigned is to the cliarge of the court, the part of the 

charge i*eferred to must be quoted totidem verbis, as provided by Rule XVI 

of the Superior Court. 

Replevin-- Evidence— Question for Jury. 

The evidence being undisputed that the title of an engine replevied by 
plaintiff was in him, the court was clearly correct in leaving to the jury, 
as the only question for their consideration, the value of the property in 
oonti*oversy. 

Argued October 21, 1897. Appeal, No. 43, Oct. T., 1897, 
by defendants, from judgment of C. P. No. 1, Phila. Co., Dec. T., 
1891, No. 1296, on verdict for plaintiff. Before Rice, P. J., 
WiCKHAM, Beaybb, Rbedeb, Orlady and Portbb, J J. Af- 
firmed. 

Replevin for -boiler and eng^e. Before Beitleb, J. 

The following facts appear from the charge of the court be- 
low: 

Gentlemen of the jury: — According to my views of this case 
there is only one thing that requires any action on your part, 
and that is to determine ihe value of this engine at the time it 
was claimed by the defendant On the part of the plaintiff 



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LAMB V. LEADP:R. 51 

1897.] Charge of Court— Opinion of the Court. 

tJiere is some testimony that it was worth some $400 ; on the 
part of the last witness on the stand, that it was worth $300. 

I may be wrong in the law as to this case ; but if I am the 
court in banc will correct me, but Leader & Colt rented certain 
machinery embraced in the schedule attached to this lease, and 
amongst other machinery was this engine. This engine, it is 
stated, was subject to an unpaid claim of the balance of cost, 
#350. The lease does not say that that should be paid by 
Mr. Lamb. It does not say that it should be paid by Mr. 
Leader. But the lease does provide that the annual rental shall 
be #1,180, and that if the lessee pays any obligation of the les- 
sor he shall have credit for that payment. If the lessees had 
shown here that they had paid $1,180 in cash and also paid this 
$350, or a portion of this $350 on the engine, there might have 
arisen a question whether that $350 ought to have been paid 
by Mr. Lamb to the lessees ; but in the absence of any evidence 
as to the pajrment of the $1,180 the utmost the lessees have paid, 
if they have paid the entire $350 in cash, is simply the $350 on 
account of the rent if that sum ought to have been paid by 
Mr. Lamb. 

I therefore say to you that under the law in this case your 
verdict must be for the plaintiff. 

Verdict and judgment for plaintiff for $435.50. Defendant 
appealed* 

ErrorB assigned were (1) In charging the jury to find a ver- 
dict for plaintiff. (2) In not directing the jury to find a ver- 
dict for the defendant. 

John McDonald^ for appellants. 

J. S. Freeman^ for appellee. 

Opinion by Beaver, J., November 19, 1897 : 
The paper-book of the appellants violates two rules of this 
court. Rule 16 provides that " when the error assigned is to 
the charge of the court or to answers to points or to find- 
ings of fact or law, the part of the charge or the points and 
answers or findings referred to must be quoted totidem verbis 
in the assignment." The observance of this rule was all the 



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52 LAMB V. LEADKR. 

Opinion of the CouLt. [6 Pa. SaperiorCl. 

more important in this case for the reason that instead of print- 
ing the charge of the court immediately pi-eceding the assign- 
ments of error, as required by Rule 26, it is printed in the 
appendix after the testimony. The court below charged, as a 
matter of law, that the plaintiff was entitled to a verdict, leav- 
ing to the jury to determine the value of the property in con- 
troversy. This is practically the only error assigned. 

The appellants succeeded to the ownership of certain personal 
property leased by an agreement in writing by Lamb, the appel- 
lee, to Leader & Colt, to which was attached a schedule of the 
personal property leased, including an engine which is admit- 
tedly the property in dispute. This engine is scheduled as being 
*' subject to a payment of a balance in cost $350.00." The only 
rental stipulated to be paid for the use of the articles in said 
schedule mentioned was *1,180. By the terms of the agree- 
ment the lessees had the privilege of discharging obligations 
for which the lessor was liable to an amount not exceeding 
$500. There is no allegation, so far as we can find in the testi- 
mony that the lessee paid any portion of the rent. The posses- 
sion of the engine in controversy in this case was secured by 
the appellants from Leader & Colt who secured the possession 
thereof from the appellee by virtue of the lease above referred 
to. The appellants allege, however, that the engine was leased 
from the Campbell Printing Press Company and held by the 
appellee as a bailment subject to certain unpaid instalments ; 
that the Campbell Printing Press Company replevied the engine 
in their possession and that they purchased it from said com- 
pany. The testimony in regard to this transaction was ex- 
tremely vague and unsatisfactory. 

The agreement, if there were any, under which the appellee 
held the engine from the Campbell Printing Press Company, was 
not offered in evidence, nor was there any competent testimony 
as to the terms of the bailment, if such it was. It plainly ap- 
peal's by the testimony that the engine, when replevied by the 
Campbell Printing Press Company was never actually delivered 
to them, that it remained in the possession of the appellants after 
the replevin as it was before, and that the appellants paid the 
balance due upon the engine and had the action of replevin 
marked " discontinued.'* It is quite evident that the possession 
of and whatever title to the engine the appellants had prior to 



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LAMB V. LEADER. 53 

1897.] Opinion of the Ck)urt. 

the action of replevin was acquired throiigh the lease between 
the appellee and Leader & Colt Whatever title, therefore, the 
appellants secured from the Campbell Printing Press Company 
they were bound to hold in trust for the appellee ; and, inasmuch 
as no rent was ever paid by Leader & Colt, as distinctly admit- 
ted by Mr. Leader in his testimony, and there was consequently 
money in their hands out of which the balance due the Camp- 
bell Printing Press Company could have been paid, we cannot 
see that the appellants had any title, either legal or equitable, to 
the engine which was the subject of this replevin. The view 
taken by the court below seems to have been correct, so far as 
we can gather from the facts as they appear in the testimony, 
and the judgment is therefore affirmed. 



John M. Kennedy, Jr., v. William H. Quigg and James 
McLinden^ Appellants. 

Mortgage — Usury^Righl of mortgagor to defend when he has sold prop- 
eriy with an agreement so to do. 

The act of assembly expressly gives a borrower the right to defend 
against a claim for interest in excess of the legal rate, and courts will not 
permit a creditor to defeat this right through a confusion of legal princi- 
ples. 

A mortgagor sold the premises subject to a mortgage covering usunous 
interest, covenanting with his vendee to defend against the mortgage to the 
extent of the usury. Held, that the filing by the mortgagee of a wntten 
release of the mortgagor of all personal liability and restricting the lien 
of the judgment and execution to the real estate bound by the mortgage 
will not defeat the mortgagor's right to defend nor operate in evasion of 
the statute. 

Mortgage — Attomey^s commission — Demand — Usury. 

A demand before the issuance of a scire facias sur mortgage is not nec- 
essary in order to recover attorney's commissions. 

The fact that a portion of the mortgage covei's usurious interest does not 
defeat the right to recover attoi-ney's commissions on the amount actually 
due. It 18 not unlawful to contract for or to receive more than six per 
cent. 

Argued Oct. 18, 1897. Appeal, No. 99, Oct. T., 1897, by 
defendants, from judgment of C. P. No. 1, Phila. Co., June T., 



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54 KENNEDY v. QUIGG. 

Statement of Facts— Arguments. [6 Pa. Superior Ct 

1896, No. 1847, on verdict for plaintiff. Before Rice, P. J., 
WicKHAM, Beaver, Oblady, Smith and Pobteb, JJ. Re- 
versed. 

Sei. fa. sur mortgage. Motion for judgment non obstante 
veredicto. 

Motion for judgment non obstante veredicto was made on the 
following point reserved: 

" The court instructs the jury to find a verdict for the plain- 
tiff for $2,231.10, subject to the point reserved, whether or not, 
in view of the releases filed of record, a defense can be inter- 
posed to the $600 bonus included in said verdict, the defend- 
ants having sold the properties covered by the mortgage to one 
John Meighan, agreeing to defend against the plaintiff s claim 
to the extent of said usury. If the court shall be of opinion 
that the sale of the property and the releases filed debars the 
mortgagor and terre-tenant from setting up that defense, the 
verdict to stand ; otherwise, the verdict to be reduced to f 1,200, 
with interest from April 4, 1894; the Court also to decide 
whether or not, in that event, plaintiff is entitled to a coramis- 
aion of five per cent on that sum, demand for the whole prin- 
cipal having been made, but no tender of any kind having been 
made to plaintiff, and to add said amount of five per cent, if 
legally entitled thereto." 

Verdict and judgment for $2,231.10. Defendants appealed. 

JError assigned was in dismissing defendant's motion for judg- 
ment on the reserved point non obstante veredicto, reciting same. 

Alex. Simpson^ Jr.^ for appellants : It is admitted that under 
the act of May 28, 1858, the defense of usury is personal to the 
borrower and he only can defend on that ground : Reap v. Battle, 
165 Pa. 265 ; Trust Co. v. Roseberry, 81 Pa. 809. 

But the facts of this case meet all the requirements laid down 
in these cases for the borrower sets up the defense ; the consid- 
eration of the purchase was the agreement to defend ; the bor- 
rower is living up to his agreement. 

While the borrower remains liable on his bond or has a pecu- 
niary interest to conserve by setting up the defense, he unques- 
tionably can do so : Parker v. Sulouff, 94 Pa. 527 ; Huchenstein 
T. Love, 98 Pa. 618 ; Price's Appeal, 84 Pa. 141. 



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KKNNKDY v. QUIGG. 65 

1897.] Arguments — Opinion of the Court. 

The collection fee is not chargeable in this case : Titusville 
Bank's Appeal, 96 Pa- 460 ; Lindley v. Ross, 137 Pa. 629 ; Wil- 
son V. Ott, 173 Pa. 253. 

William C. Ferffttson^ for appellee. — A terre-tenant who pur- 
chases land incumbered with a mortgage has no standing in 
court to defend the suit on the ground of usury : Stay ton v. Rid- 
dle, 114 Pa. 464. 

If the mortgagor's right to defend is limited to the one object 
of protecting himself in his liability on his bond, then it logic- 
ally follows that if that liability be removed the right to defend 
ends : Reap v. Battle, 155 Pa. 265. 

The fact of a vague promise to defend, which promise is kept, 
do^ not entitle the mortgagor to defend, the property having 
been sold : Broomell v. Anderson, 8 Atl. Rep. 764. 

There can be no doubt as to the plaintiff's right to recover the 
attorney's commission. He is guilty of no wrongdoing : Lind- 
ley V. Ross, 137 Pa. 629 ; Iron Co. v. Morton, 348 Pa. 72. 

Opinion by Smith, J., November 19, 1897 : 

A scire facias was issued on a mortgage which admittedly 
included the sum of $600, as a bonus. The defendants had con- 
veyed the mortgaged property to John Meighan, and agreed to 
defend against the plaintiff's claim to the extent of the usury ; 
but whether the conveyance was before or after the institution 
of this suit does not appear. The defendants filed an affidavit 
Betting up the defense of usury, and upon this the issue was 
joined. On the trial the plaintiff filed a written release of the 
defendants from all personal liability for the debt, and restricted 
the lien of the judgment to be recovered, and all executions 
thereon, to the real estate bound by the mortgage. The court 
thereupon directed a verdict for the plaintiff for $2,231.10, sub- 
ject to a point reserved " whether or not in view of the releases 
filed of record, a defense can be interposed to the $600 bonus 
included in the verdict, the defendants having sold the proper- 
ties covered by the mortgage to one John Meighan, agreeing to 
defend against the plaintiff's claim to the extent of the usury. 
If the court shall be of opinion that the sale of the property 
and the releases filed debar the mortgagors and the terre-tenant 
from setting up that defense, the verdict to stand, otherwise the 
verdict to be reduced to $1,200 with interest from April 4, 1894. 
The court also to decide whether or not in that event plaintiff 



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66 KENNEDY v. QUIGG. 

Opinion of the Court. [6 Pa. Superior Ct. 

is entitled to a commission of five per cent on that sum, demand 
for the whole principal having been made but no tender of any 
kind having been made to the plaintiff, and to add said amount 
of five per cent, if legally entitled thereto." A motion by 
defendants that judgment be entered for the plaintiff non 
obstante veredicto for the sum of 11,200, with interest from 
April 4, 1894, only, on the reserved point, was dismissed, and 
judgment was entered on the verdict. 

Evidently the releases were filed for the purpose of preclud- 
ing the defense of usury, and to evade the provisions of the act 
of May 28, 1858. It has been held in many cases that where a 
debtor has been wholly released from liability for the debt in 
suit, without fraud or mistake, and has no interest in the action, 
and will neither gain nor lose by the judgment, he cannot inter- 
pose a defense of usury, which is purely personal to himself, to 
the prejudice of third parties ; nor can the latter do so to the 
prejudice of either. But the facts of this case exclude it from 
the doctrine of those decisions. This action is between the orig- 
inal parties to the mortgage, and they alone can be heard. The 
terre-tenant has not been joined, and could not be heard as the 
record stands. It is clear from the reserved question that the 
teiTe-tenant may hold the defendants to their contract notwith- 
standing the releases filed, and that if the judgment is allowed 
to stand they must reimburse him " to the extent of the usury." 
If the plaintiff may resort to the land for the usurious interest, 
the terre-tenant in turn may have recourse to the defendants 
for indemnity. Practically, the interest of the defendants in 
the question at issue has not been lessened or affected, and 
unless they are permitted to make defense here, their rights 
under the act of 1858 will be swept away, while their liability 
to the terre-tenant will remain. 

There is no principle of law that warrants, much less demands, 
this result. The defendants had a lawful right to sell the land 
and also preserve their right to defend against the usury in- 
cluded in the mortgage in the manner agreed upon. Their 
course involves neither fraud nor deceit. Had it been a judicial 
sale the situation of the parties would be substantially the same ; 
yet it will hardly be contended that by such event a debtor 
loses his right of defense. The act of assembly expressly gives 
a borrower the right to defend against a claim for interest in 
excess of the legal rate ; or, if paid, to recover it back by action 



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KENNEDY v. QUIGG. 57 

1897.] Opinion of the Court. 

within six months from the date of payment. Courts will not 
permit a creditor to defeat this right through a confusion of 
legal principles, in the manner attempted here. None of the 
cases cited on behalf of the appellee sustain his contention ; they 
are all in harmony with the views here expressed. This feat- 
ure of the case needs no further discussion. 

The claim to attorney's commissions under the provisions of the 
mortgage requires but brief notice. Accordiog to the reserved 
question, a demand for the whole principal was made, but there 
was no tender of any sum. If a demand were necessary we are 
unwilling to admit that the one made in this case was insuffi- 
cient because it included the usury covered by the mortgage. It 
is not unlawful to contract for or to receive more than six per 
cent. The right to do so is impliedly authorized by the act of 
1858. There is then no reason why it should not be embraced 
in the demand. Until otherwise informed, the creditor has a 
right to assume that the debtor vdll fulfill his agreement. So 
far as this record shows, the fii'st notice of the defendants' elec- 
tion not to pay the bonus was about two weeks after the pro- 
ceedings were begun ; and no tender of the sum lawfully due 
or of a judgment therefor, was ever made. 

But this question has been settled by higher authority. In 
Warwick Iron Co. v. Morton, 148 Pa. 72, it was expressly held 
that a demand before the issuance of a scire facias sur mort- 
gage is not necessary in order to recover attorney's commissions : 
and this decision was followed and the same ruling made in the 
later case of Walter v. Dickson, 175 Pa. 204. The case of Wil- 
son V. Ott, 173 Pa. 253, upon which the appellant relies, is not 
inconsistent with those i*ef erred to ; it holds that as the allow- 
ance of attorney's commissions is ** within the control of the 
court in the exercise of its equity powers," the refusal to allow 
them was not error, " in view of the nature of the contest and 
the special circumstances of the case." 

The judgment of the court of common pleas is reversed, and 
judgment is now entered in favor of the plaintiff for the sum of 
fifteen hundred sixteen dollars and eighty cents. 

Principal . $1,200.00 
Commissions 60.00 

Interest to date 256.80 



«1,516.80 

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58 KEENAN v. QUIGG. 

Syllabus — ^Argumeuta. [6 Pa. Superior Gt 

Joseph J. Keenan v. William H. Quigg and James Mc- 
linden^ trading as Quigg and McLinden^ Appellants. 

Judgnien^Motion to strike off— Laches— Beview, 

Where the defendant took no appeal from a judgment and failed to pro- 
ceed with a rule to strike off same for some eighteen months, such hiches 
is manifested that the appellate eoui*t will not disturb the action of the 
court below in discharging a second rule to strike off the judgment and 
stay proceedings, taken after execution had proceeded to a venditioni 
exponas. 

Argued Oct. 22, 1897. Appeal, No. 25, Oct. T., 1897, by 
defendants, from order of C. P. No. 3, Phila. Co., June T., 1894, 
No. 1234, discharging rule to strike judgment from record. 
Before Rice, P. J., Wickham, Beaver, Reedeb, Orlady 
and Porter, J J. Affirmed. 

Rule to strike off judgment. 

It appears from the record that judgment was entered in tlie 
above case for want of an affidavit of defense, and damages 
assessed for $264.56. 

The facts sufficiently appear in the opinion of the court. 

The court discharged the rule to strike the judgment from 
the record. Defendants appealed. 

Urror assigned was refusal to strike judgment from the record. 

M. J. O'Callaghan^ for appellants. — Before the passage of the 
procedure act of 1887, it was held that a rule to plead, and a 
plea filed in response thereto, was a waiver of the right to enter 
judgment for want of a sufficient affidavit of defense : Johnston 
V. Ballentine, 1 W. N. C. 626 ; Fuoss v. Schleines, 15 W. N. C. 
192; O'Neill v. Rupp, 22 Pa. 895. 

It has been held that the new procedure act of 1887 did not 
change the rule of law in this particular : Bank v. Stadelman, 
153 Pa. 634; Richards v. Mink, 46 L. I. 138; Bolt & Nut 
Works V. Schultz, 6 C. C. Rep. 846. 

It may be conceded that the right to an affidavit of defense 
may be waived : Homer v. Horner, 145 Pa. 258 ; Richards v. 
Mink, 46 L. 1. 138. 



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KEENAN r. QUIGG. 59 

1897.] Arguments — Opinion of the Court. 

Being for irregularity apparent on the face of the proceedings 
it, a rule to strike ofE a judgment, is in the nature of a demurrer 
to the record, and is not confined to any particular kind of judg- 
ments, nor limited as to the time it may be taken advantage of, 
nor affected by matters dehors the record, except so far as de- 
fendant may have put himself in position to be estopped from 
making the objection : Mitchell on Motions and Rules, 75, 
quoted in North v. Yorke, 174 Pa. 349 ; Adams v. Grey, 154 
Pa. 258. 

The court has power to strike off a judgment for want of jur- 
isdiction or other fatal irregularity appearing on the face of the 
record : France v. Ruddiman, 126 Pa. 257 ; North v. Yorke, 174 
Pa. 349 ; Phila. v. Jenkins, 162 Pa. 452 ; Miller v. Neidzielska, 
176 Pa. 409. 

J". L. Long^ for appellee. — As to the question of laches, cited 
Littster v. Littster, 151 Pa. 474. 

It has never been decided that a rule to plead and a plea filed 
in answer thereto was a waiver of the plaintiff's right to require 
any sworn defense whatever: Barnitz v. Bair, 2 Chest. Co. 
480 ; Hoffman v. Locke, 19 Pa. 57 ; Endlich on Aff. Def . sec. 
650. 

Opinion by Porter, J., November 19, 1897 : 
The record in this case discloses an anomalous method of 
procedure. The summons was returned served on the first 
Monday of August, 1894. On December 5, 1894, a plea was 
filed to a statement and rule to plead served on the defend- 
ants, but which statement and rule seem not to have been 
filed of record until January 80, 1895. On February 1, 1895, 
an affidavit of service of a copy of statement on Novem- 
ber 24, 1894, was filed. On March 18, 1895, a judgment was 
entered for want of an affidavit of defense, notwithstanding the 
fact that the cause would seem to have been at issue on the 
plea. On April 18, 1895, a rule appears to have been entered 
to strike off the judgment, but was neither proceeded with nor 
disposed of. Nearly eighteen months thereafter, on October 14, 
1896, a writ of fieri facias was issued, and subsequently, on 
November 18, 1896, a venditioni exponas. On November 19, 
1896, a second rule was entered to strike the judgment from 



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60 KEENAN v. QUIGG. 

Opinion of tlie Couit. [6 Pa. Superior Ct. 

the record, proceedings to stay, sur petition of one of the defend- 
ants. On January 16, 1897, the rule was discharged, and on 
January 25, 1897, an appeal was taken to this court from that 
order. 

We do not find it necessary in this case to determine whether 
a rule to plead is, since the Procedure Act of 1887, a waiver of 
the right to an affidavit of defense. 

The defendants took no appeal from the original judgment, 
and failed to proceed with the rule taken on April 18, 1895, 
to strike off the judgment. This was such laches on their part as 
to prevent their successful appeal to tlie court for relief. We 
are the more reluctant to disturb the action of the court below, 
in view of the fact that nowhere on the record have the defend- 
ants attempted to set up a substantial defense on the merits of 
the cause. 

Judgment affirmed. 



Mary R. Kimbrough v. Walter Hoffman, Superintend- 
ent, and Theodore Voorhees, Chairman of Advisory 
Committee, representing themselves and others who 
are associated together as the Philadelphia and Read- 
ing Railroad Relief Association, Appellants. 

Railroad relief associalion — Contractual liability — Words and phrases — 
Connected and associated or affiliated companies. 

Where the whole project and intendment of a railroad relief association 
is based upon the control of the business by peraons who are interested in 
the contributions and benefits and where membership is limited to em- 
ployees of railroads connected and associated with the Reading Railroad, 
the tei*m *' connected and associated ^^ is to be construed as applicable to 
milroads so recognized by representation in the relief association: it can- 
not be forced by strained constioiction to cover companies ** affiliated ^^ with 
the Reading Company in a limhed, special and contractual manner, the 
employees of which were never recognized as eligible to membership in 
the relief association. 

Practice, C P.— Province of court and Jury— Construction of contract. 

The province of the jury is to settle disputed questions of fact. If no 
disputed facts exist there is nothing for them to do, and it is for the court 
to determine the leo^al effect of tiie contract. 



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KIMBROUGH v. HOFFMAN. 61 

1897.] Statement of Facts— Opinion of the Court. 

Argued Oct. 15, 1897. Appeal, No. lOT, Oct. T., 189T, by 
defendants, from judgment of C. P. No. 3, Phila. Co., June T., 
1896, No. 131, on verdict for plaintiff. Before Rice, P. J., Wick- 
ham, Beaver, Reedeb, Oblady, Smith and Porter, JJ. 
Reversed. 

Assumpsit to recover benefits. Before Gordon, J. 
The facts sufficiently appear in the opinion of the court. 
Verdict and judgment for plaintiff for $556.50. Defendant 
appealed. 

Errors assigned were (1) In submitting to the jury as a 
question of fact the construction and effect of the written regu- 
lations of the Philadelphia and Reading Railroad Relief Asso- 
ciation. (2) In submittmg to the jury as a question of fact 
the construction and effect of the written contract l)etween the 
Atlantic City Railroad Company, the Delaware River Ferry 
Company and the South Jersey Railroad Company. (3) In 
refusing binding instructions for defendants. 

John G. Lamb^ for appellants. — The contmcts should have 
been construed by the court : Palmer v. Farrell, 129 Pa. 162 ; 
Duffield V. Hue, 129 Pa. 94 ; Kneedler v. Goodman, 47 L. 1. 4 ; 
Elliott V. Wanamaker, 9 C. C. 497 ; Sun Fire Office v. Ennen- 
trout, 11 C. C. 21 ; Middleton v. Stone, 111 Pa. 589 : Bryant 
V. Hagerty, 87 Pa. 256 ; Fisher v. Moyer, 17 W. N. C. 500 ; 
Foster v. Berg, 104 Pa. 324 ; Dumn v. Rothermel, 112 Pa. 272. 

J. Whttaker Thompson^ for appellee. — It was not error to sub- 
mit to the jury the meaning of the word " affiliated " within the 
intention of the parties : Jones v. Kroll, 116 Pa. 85. 

An ambiguity on the face of a written document is for the 
judge to explain, but if it arises from extrinsic evidence it must 
be solved by the jury : Beatty v. Ins. Co., 52 Pa. 456 ; Iron and 
Railroad Co. v. Stevens, 87 Pa. 190 ; Krauser v. McCurdy, 174 
Pa. 174. 

Opinion by Orlady, J., November 19, 1897 : 
The defendant is an association composed of the employees 
of the Philadelphia & Reading Railroad Company, and the 
employees of its affiliated, controlled and leased lines, the ob- 



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62 KIMBROUGH v. HOFFMAN. 

Opinion of the Court. [6 Pa. Superior Ct. 

ject of which, " is the establishment and management of an 
association to be known as the * Relief Association ' for the pay- 
ment of definite amounts to the contributors to the fund, who 
under the regulations shall be entitled thereto, when they are 
disabled by accident or sickness, and in the event of their death, 
to the relatives or other beneficiaries specified in the application 
of such contributors." 

Oil July 23, 1894, the plaintiff's husband, Matthew A. Kim- 
brough was an employee of the Philadelphia & Reading Railroad 
Company, on what was known as the Reading Division of its 
system, and on that date he became a member of the defendant 
relief association. On February 2, 1895, he withdrew from ser- 
vice in the Philadelphia & Reading Railroad Company, and 
became an employee of the South Jersey Railroad Company. 
During the next month, and while in the service of the South 
Jersey Railroad Company, he became sick and went to a hospi- 
tal where he remained under treatment until May 81st, when 
he died. On February 28, 1895, in pursuance of the regula- 
tions governing the relief association, the Philadelphia & Read- 
ing Railroad Company deducted from the wages due by it to 
Kimbrough for February 1st and 2d (which he had not de- 
manded on retirement from service), his fixed contribution for 
the relief association for the mouth of March. The association 
did not then know that Kimbrough had resigned from the ser- 
vice of the railroad company on February 2d, and on being 
informed of that fact during the month of March, dropped his 
name fi'om the rolls of the association, and issued a refunding 
check for the amount of his contribution for the month of 
March, which was not delivered to him on account of not know- 
ing his whereabouts. 

This suit is brought by the beneficiary, named in his appli- 
cation, to recover from the association the amount to which she 
would be entitled had he remained in his original employment 
of the Philadelphia & Reading Railroad Company. 

The learned trial judge left it to the jury to find as a question 
of fact whether the South Jersey Railroad was affiliated with 
the Philadelphia & Reading Railroad Company within the mean- 
ing of the regulations of the relief association. The facts were 
not disputed. The interpretation of the regulations of the asso- 
ciation and the tripartite contract between the Atlantic City 



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KIMBROUGH r. HOFFMAN. 68 

1897.] Opinion of the Court. 

Railroad Company, The Delaware River Ferry Company and 
Logan M, BuUit, the performance of whose covenants was as- 
sumed by the South Jeraey Railroad Company, and to determine 
whether the last named company was afl&liated with the Phila- 
delphia & Reading Railroad Company were questions of law for 
the court, and the construction of these writings must be made 
in the light of the plaintiff's claim as the beneficiaiy of her hus- 
band. 

Her right to recover for death benefits can rise no higher than 
his right, if living, to recover for disablement benefits. 

It was proved, and not disputed at the trial, that none of the 
employees of the South Jereey Railroad had ever become mem- 
bers of this relief association ; that when an employee ceased to 
be in the employ of the railroads enumerated in the regulations 
of the relief association, and became an employee of the South 
Jersey Railroad, a transfer certificate continuing his member- 
ship in the association was not issued to him ; that the South 
Jersey Railroad was not named in the list of companies entitled 
to representation on the advisoiy committee of the association, 
though the edition of the regulations in evidence was issued 
the year following the tripartite agreement. 

In the application for membership in the association, which 
was signed by the plaintiff's husband, it is provided, inter alia, 
*' I do hereby further acknowledge, consent and agree that .... 
my resignation from the service of the said company (Philadel- 
phia & Reading) my employer, or my being relieved from em- 
ployment and pay therein at the pleasure of the company, or 
its proper oflBcers, shall forfeit my membership in the aforesaid 
relief association, and all benefits, rights or equities arising 
therefrom. . . . 

" The responsibility of the relief association to any member 
shall end when he ceases to be employed by the company, ex- 
cepting for benefits to the payment of which he shall have 
become previously entitled by reason of accident or sickness 
occurring while in the service." 

By paragraph 14, of the regulations it is provided : " In refer- 
ring to the employee of the company, the expressions 'service ' 
and * in the service,' will refer to employment upon or in con- 
nection with any of the railroads or works, the employees of 
which shall be admitted to membership in this relief association, 



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64 KIMBROUGH v. HOFFMAN. 

Opinion of the Court. [6 Pa. Superior Ct. 

and the sendee of any employee shall be considered as ' continu- 
ous ' from the date from which he has been continuously em- 
ployed, without interruption, upon or in connection with either 
of such railroads or works, or two or more of tbem successively." 

It was admitted by the defendant that the majority of the 
stock of the Atlantic City Railroad Company and of the Dela- 
ware River Ferry Company was owned by the Philadelphia & 
Reading Railroad Company, and that these companies were con- 
trolled lines within the meaning of the regulations of the relief 
association. It is evident, from the regulations of this associa- 
tion, that only persons entitled to membership therein as con- 
tributing members should be entitled to receive the benefits 
provided for, and that the membership should be limited to 
employees of i-ailroads connected and associated with the Phila- 
delphia & Reading Railroad Company, so as to make each indi- 
vidual vote potential in the selection of the officers who would 
direct the affairs of the association. 

The whole project is based upon the control of the business 
by persons who are interested in the contributions and benefits. 

This is not a controversy between the railroad companies, and 
its solution depends on the status of Kimbrough at the time he 
became an employee of the South Jersey Railroad, and on his 
relation to the relief association at that time. 

He ceased to be an employee of the Philadelphia & Reading 
Railroad Company on Februaiy 2, 1895, when by paragraph 56 
of the regulations the responsibility of the association ended as 
to him, if he did not go into the employ of an affiliated com- 
pany. Under the undisputed evidence, the court should have 
held that the South Jersey Railroad Company was not affiliated 
with the Philadelphia and Reading within the meaning of the 
regulations of the relief association. If the South Jersey Rail- 
road is affiliated with the Philadelphia & Reading Railroad, 
within the meaning of the regulations of this association, by 
reason of the tripartite agreement, another railroad having sim- 
ilar relations with the South Jersey Railroad might well claim 
to be affiliated with the Philadelphia & Reading Railroad un- 
der the reasons urged by the appellee. It may be conceded 
that the South Jersey Railroad is affiliated with the Philadelphia 
& Reading Railroad in a limited, special and contractual man- 
mer, but the ingenious argument of the appellee puts upon the 



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KIMBROUGH v. HOFFMAN. 65 

1897.] Opinion of the Court. 

word a strained and narrow construction, repugnant to and in- 
consistent with the purpose and spirit of the regulations of the 
relief association. 

The erroneous detention of the contrib^ttion for March out of 
the wages due for February Ist and 2d, does not change the 
result. This was done without knowledge of the facts of the 
case, as Kimbrough failed to give the required notice of with- 
drawal, and failed to surrender his certificate. By leaving in 
the hands of his employer the two days' wages, he could not 
continue in force the contract he had voluntarily canceled. 

Taken as a whole, in the light of the admitted facts and cir- 
cumstances under which Kimbrough became a member of the 
association, the construction of his contract was a question of law 
with which the jury had nothing to do. The object of interpre- 
tation and construction is, if there be any uncertainty as to the 
meaning of a contract, to find the intention of the parties. If 
the contract is clear and unambiguous, there is no room for con- 
struction. The parties, in the absence of fraud, accident or mis- 
take, are bound according to the plain words of the contract: 
Shafer v. Senseman, 125 Pa. 810. 

The province of the jury is to settle disputed questions of fact. 
K no disputed facts exist there is nothing for them to do, and 
it is for the court to determine the legal effect of the contract : 
Elliott V. Wannamaker, 155 Pa. 67 ; Baranowski v. Aid Society, 
3 Pa. Superior Ct. 367. 

The assignments of error are sustained, and the judgment is 
reversed. 



M. C. Shanahan v. The Agricultural Insurance Com- 
pany, Appellant. M. C. Shanahan v. The London & 
Lancashire Fire Lisurance Company, Appellant. 

Inaurance^ClericcU error in description — Question for Jury. 

Where by a clencal error of the agent of an insurance company the 
description of the propeity insured designated one stable instead of two, 
and where it was the intention of the insured and insurer to cover two 
stables instead of one, such clerical error will not enable the defendant 
company to avoid the policy to the injury of the insured. The question as 

Vol. VI— 5 



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66 SHANAHAN v. INSURANCE CO. 

Syllabus — Assignment of EiTors. • [6 Pa. Superior Ct. 

to how the eiTor arose was one purely of fact and was properly for the 
)ury, tlie eridence being ample to waiTant a rerdict for the plaintiff. 

Insurance^Error in policy — Act of agent — Laches, 

An erroneous description having been inserted in a policy by the act of 
the agent of the insurance company, the defendant cannot be released from 
its contract because the plaintiff, acting in good faith, accepted without 
examination the policy written by its agent. 

Practice, Superior Court — Review — Refusal of new trial. 
The appellate court will not, except in clear cases of abuse of discretion, 
review the discretion of the ti*ial couit in refusing a new ti'ial. 

Practice, Superior Court-- Appeals-- Defective assignment. 
Assignments are defective under Rule XVII., which allege error in 
admitting or refusing evidence but which fail to quote the full substance 
of the bill of exceptions or to copy the bill in immediate connection with 
the assignment. 

Submitted Oct. 7, 1897. Appeals, Nos. 61 and 62, Oct. T., 
1897, by defendants from judgments of C. P. No. 1, Phila. Co., 
June T., 1896, Nos. 284 and 285, on verdicts for plaintiffs. 
Before Rice, P. J., Wickham, Bbaveb, Reedbb, Orlady, 
Smith and Porter, JJ. Affirmed. 

Assumpsit on policy of insurance. 

It appears from the record that these suits were brought to 
recover from the defendant companies the sum of $750 eacli, 
claimed to be the value of certain stable buildings which were 
destroyed by fire owned by the plaintiff and, as contended by 
him, covered by certain policies of insurance issued to him by 
the defendant insurance companies. 

The defendant denied the liability because the buildings 
destroyed were not the one described in the policy. 

Verdict and judgment for plaintiff in each case in the sum of 
$792.15. Defendants appealed. 

Err or B assigned were, (1) In admitting the testimony of 
M. C. Shanahan and Joseph O'Kane, concerning the alleged 
mistake of the latter in preparing the form of insurance attached 
to the policy upon which suit is brought in this case, and to 
which exceptions were taken at the time of the trial by the 
defendant. (2) In refusing to allow the defendant to prove, by 
Milton A. Nobles, that as district agent of the Agricultural 
Insurance Company, the said company would not have issued 



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SHANAHAN v, INSUR.VNCK CO. 67 

1897.] Assignment of Errors. 

a policy in the form such as the one offered in evidence here 
had the word therein been " buildings " instead of " building : *' 
and that also, as a general insurance expert, that no insurance 
company in the United States would issue such a policy, nor, 
in his experience, has he ever known such a policy being issued 
by any insurance company. (3) In making answer to the sec- 
ond point submitted by the defendants. Said point and answer 
are as follows : " In undertaking to determine the loss which 
the plaintiff in this case has sustained, the jury must take into 
consideration the fact that the conditions existing at the time 
of the fire had most materially depreciated the selling value or 
renting value of tiiis stable building, and the amount, if any- 
thing, which the plaintiff, under these circumstances, would be 
entitied to recover, must be found by deducting the market 
value of the land itself from the actual market value of the 
building and land at the time of the fire." " As to that point, 
gentlemen, I want to say that the effect of the testimony is not 
for me to say ; it is for you to consider. Considering the cir- 
cumstances which wei-e alluded to in that point, what do you 
believe was the money value of the building under all the cir- 
cumstances of the situation and surroundings at the time of the 
fire ? And in that connection, I call your attention to the tes- 
timony of the witnesses as to the value. The last witness said 
he put the value at over Jl,600, and my memory of it is that he 
said that that building was worth that at the time of the fire, 
and there is no contradiction of whatever he did say on the 
subject. Whenever there is a difference of opinion as to what 
the witness says and what a judge gives you, take your own 
memory and not mine." (4) In refusing to affinn the third 
point submitted by the defendants, which was as f ollowB : " The 
policies of insurance of the defendant companies in this case did 
not cover the stable building which was destroyed by the fire, 
audyour verdict, therefore, must be for the defendants." (5) In 
refusing to affirm the fourth point submitted by the defendants, 
which was as follows : " Under all the circumstances, the ver- 
dict in these cases must be for the defendants." (6) In refus- 
ing to grant a new trial to the defendants, upon the ground of 
after-discovered testimony submitted to them. (7) In entering 
judgments upon the verdicts rendered in these cases. 



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68 SHANAHAN v. INSURANCE CO. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct; 

JP. R, Shattucky for appellants. — The point here made, is, that 
in the present cases, the effort is to make a policy of insurance 
cover a building not described or referred to in any way in the 
policies, so that no notice or knowledge concerning the charac- 
ter thereof is brought home to the companies ; and this is going 
further and beyond any decision heretofore rendered. To allow 
this to be done would be a practice of the most dangerous kind 
and character. 

In the case of a building which cannot be said to have a mar- 
ket value, the amount which the insured is entitled to recover, 
in case of a loss, is not what it would cost to rebuild, but what 
is shown to have been the money value of the building under 
all of the circumstances of its situation and surroundings, at the 
time of the fire : Insurance Co. v. Creaton, 98 Pa. 451 ; Brinley 
V. Insurance Co., 11 Mete. (Mass.) 195 ; ^tna Insurance Co. 
V. Johnson, 11 Bush (Ky.), 586. 

The after-discovered testimony submitted to the court cer- 
tainly required that the defendants should have been given the 
benefit of a new trial. 

Even where the credibility of the witness to testimony dis- 
covered after the trial is sti'ongly attacked, nevertheless a new 
trial should be allowed, as the credibility of the witness is 
entirely for tlie jury : Green v. Traction Co., 6 Dist. Reps. 284. 

Jacob Singer and Emanuel Furthy for appellee. — As to the 
construction of the policy of insurance, cited Machine Co. v. 
Ins. Co., 178 Pa. 53 ; Dowling v. Ins. Co., 168 Pa. 234 ; David- 
son V. Assurance Co., 176 Pa. 525. 

Opinion by Orlady, J., November 19, 1897 : 
These two cases were tried together, and one appeal is taken 
by consent. The plaintiff brought suit on a policy of insui^ance 
against each of these defendants to recover from each the sum 
of $750. The policies issued were of the standard form and 
described the property as follows : " $1,500 on the frame stable 
building and additions thereto, on the north side of Jersey ave- 
nue near Charles street, Gloucester City, N. J., other insurance 
permitted without notice until required." The plaintiff was 
the owner of two stables, of equal value, which were used for a 
common purpose and which were separated from each other by 
a distance of ten or twelve feet. 



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SHANAHAN v. INSURANCE CX). 69 

1S97.] Opinion of the Court. 

An application was made by the plaintiff to the local agent 
of the defendant companies for an insurance of $3,000 on the 
two stable buildings. The local agent examined the properties, 
approved the risk and issued a policy of insurance for #1,500 in 
each of the defendant companies, and in both the property was 
described as before quoted. One of the stables was totally 
destroyed by fire, and when suit Wiis brought to recover for the 
loss, each company made the same defense : " That said stable 
building so insured is still standing at said location, and has not 
been in any way or manner injured or damaged by any fii-e what- 
ever ; that the fire referred to in said plaintiff's statement was in 
another building altogether than the one insured under said pol- 
icy, which other building was in no way or manner connected 
with the building insured, and was not an addition thereto, but 
an entire, separate and distinct building, not situated on the 
north side of New Jersey Avenue near Charles street, Glouces- 
ter City, N. J., but was situated in the rear of the building 
insured under said policy at a considerable distance therefrom." 

The plaintiff contended that the policies were intended to 
cover the two stables and in this he was supported on the trial 
by the direct testimony of the local agent of the defendant com- 
panies, and this fact was found by the jury in favor of the plain- 
tiff. The description of the property was made on typewritten 
slips, in the office of the local agent, and these slips were signed 
by him in the name of his firm, and then affixed to the printed 
policy in a blank space provided for that use. The verdict de- 
termines as a fact that in the typewritten description the word 
"building" instead of "buildings " was erroneously used, and 
the whole controversy arises from this alleged error. 

The first and second assignments of error are not considered 
for the reason that they are framed in disregard of Rule IT of 
this court : Denniston v. Phila. Co., 1 Pa. Superior Ct. 599 ; Com. 
V. Smith, 2 Pa. Superior Ct. 474, and counsel violate this rule 
at their peril in this as the similar rule in the Supreme Court : 
Raymond v. Schoonover. 181 Pa. 852. The case was fairly 
presented to the jury by the learned trial judge : " If you believe 
that these policies were made out in the shape that they are, by 
accident and oversight, that it was the intention of the person 
that applied, and the companies who issued these policies, to 
cover the two stables instead of one — then the verdict ought to 
be for the plaintiff." 



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70 SIIAXAHAN t\ INSURANCK CO. 

Opinion of the Court. [6 l*2i. Superior Ct 

It was purely a question of fact, and there was ample evi- 
dence to warrant the verdict. In Eilenberger v. Protective 
Mutual Fire Ins. Co., 89 Pa. 464, it was held that the fraud or 
mistake of a knavish or blundering agent, done within the scope 
of the powers given him by an insurance company, will not 
enable the latter to avoid a policy to the injury of the insured, 
who innocently became a party to the contract, and in Insurance 
Co. V. Cusick, 109 Pa. 157, in referring to the Eilenberger Case, 
it is said : " In the case cited the agent committed a fraud by 
setting down false answers in the application ; in the case in 
hand the agent committed a blunder by incorrectly describing 
the property insured. In neither was the act complained of in 
any proper sense the act of the insured ; in neither can the com- 
pany be permitted to cast upon the insured the consequences of 
the crime or blunder of its own agent. The cases cannot be 
distinguished in principle." The case now before us is much 
milder in its facts than either of the two first cited, as the 
insured and agent of the companies agree, that both stables were 
intended by them to be covered by the insurance, and that by 
the clerical error of a typewriter a letter was dropped so as to 
make the description refer to a building instead of buildings. 

There was no written application in this case ; the local agent 
was familiar with the premises and intended to have the two 
policies cover just what the insured desired — both stables. The 
erroneous description was the act of the agent alone, in the face 
of light and knowledge, and it was unknown to the insured 
until after the loss occurred. The defendant cannot be released 
from its contract because the plaintiff, acting in good faith, 
accepted without examination the policy written by its agent : 
Dowling V. Merchants Ins. Co., 168 Pa. 234. 

After the verdict was rendered, the defendant submitted some 
ex parte affidavits as ground for a new trial, but the court below 
refused to be moved by them. Upon an examination of these 
affidavits, and applying them to the proof adduced on the trial 
we do not feel warranted in interfering with the decree entered ; 
as, except in clear cases of abuse of discretion, refusal of the 
court below to grant a new trial is not assignable for error, and 
there is nathing in this case to make it an exception to the rule : 
De Grote v. De Grote, 175 Pa. 50. 

It does not necessarily follow tliat the perjury of a witness 



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SHANAHAN v. INSURANCE CO. 71 

1897.] Opinion of the Court. 

can be made a ground for equitable interference even though 
not discovered until after the trial : Ins. Co. v. Erb, 2 Chest. 
Co. 587 ; and whether or not this should be done, is largely a 
matter of discretion with the trial judge. 

The assignments of error are each overruled and the judgment 
is affirmed. 



Haverford College v. James M. Rhoads and John Lynch, 
Supervisors of Roads and Collectors of Road Taxes, 
for the Township of Haverford, and the Township of 
Haverford, Appellants. 

Charily—College, w?ieh a public charily, 

A college is a charity if it is conducted in a way beneficial to the public 
at large. Whether a particular college is a public charity is a question of 
fact, and the test is that it is not confined to privileged individuals but is 
open to the indefinite public. 

Public charity— Bevenue from beneficiaries does not destroy status. 
There may be a revenue, arising in the operation of a charity, derived 

from its beneficiaries, to aid in its maintenance, without removing its status. 

as a public chanty; but this revenue must not exceed its expenses. 

Public charity — Taxation — Haverford College nonsectarian, 
Haverford College, being a college open to all i>er8()ns, educationally 
qualified, upon the same terms, its funds not being diverted to the educa> 
tion of the children of any sect in preference to others, is a public charity 
and as such is exempt from taxation. 

The fact that its board of managers is controlled by members of tho- 
S<x;iety of Friends is immaterial, as is also the fact that certain free scholar^ 
ships are restricted to Friends, since others are free to all who apply. 

Argued Nov. 17, 1897. Appeal, No. 78, Oct. T., 189T, by 
defendants, from decree of C. P. Delaware Co., June T., 1898^ 
No. 2, in equity, restraining the collection of road taxes assessed! 
and levied against the corporation plaintiff. Before Rice, P. J.,. 
WicKHAM, Bbavbb, Orlady, Smith and Porter, JJ. Af- 
firmed. 

Injunction to restrain the collection of $405 road taxes as- 
sessed for the year 1892 on the college buildings and about filty 
acres of ground. Before Clayton, P. J. 



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72 HAVERFORD COLLEGE v. RHOADS. 

Statement of Facts — ^Master's Report. [6 Pa. Superior Ct. 

The bill claimed that the assessment was illegal ^' because 
Haverford College, the plaintiff, is an institution of learning 
founded, endowed and maintained by private charity, within the 
act of assembly approved the 14th day of May, 1874, and is 
therefore, a purely public charity within the meaning of said act 
and of the first section. Art. IX. of the constitution of Penna." 

After answer filed an injunction was awarded on May 1, 1893, 
which was made perpetual by deci-ee filed April 6, 1897, after 
reference to a master. 

Other facts sufficiently appear from the report of the master, 
which is as follows. 

FINDINGS OP FACT. 

The master appointed by the said court in the above matter, 
as appears by the certified copy of his appointment attached 
hereto, from the testimony submitted by the examiner in the 
above stated cause, finds the following facts : 

1. That the " Haverford School Association '' was duly in- 
corporated by an Act of the General Assembly approved April 4, 
1833, P. L. 131, having a capital stock of 600 shares of $100 
each, for the purpose of establishing a seminary in which young 
men should be instructed in the liberal arts and sciences, which 
corporation it was provided should have for its officers, a secre- 
tary, treasurer and twenty-four managers, to be chosen by bal- 
lot fi'om among its members ; by a supplement to said act ap- 
proved Januaiy 25, 1835, the said corporation was authorized 
to increase its capital stock to a sum not exceeding f 100,000. 

2. That the said association became possessed of a tract of 
land containing about two hundred acres, situate mainly in the 
township of Haverford and county of Delaware aforesaid, upon 
a part of which, situate in the township of Haverford, contain- 
ing about fifty acres, the founders erected a large edifice and 
other buildings, and conducted a' school therein for many years 
in pursuance of the objects for wliich it was established. Upon 
the remaining part of said land they conducted farming to assist 
in maintaining said school. 

3. That the general assembly, by Act of March 15, 1856, P. L. 
123, enacted " that the Corporation now known by the name, 
style and title of Haverford School Association, be authorized 



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HAVERFORD COLLEGE v. RHOADS. 73 

1897.] Master's Report. 

to establish and maintain a college for the education of youth 
and other persons in the various branches of science, literature 
and arts. 

^^ And the Board of Managers of said Association shall have 
power to confer such degrees in the arts and sciences upon the 
students of the College and others, when by their proficiency 
in learning they shall be entitled thereto, as are conferred in 
other colleges and universities in the United States." 

4. That the said corporation thereupon established a college, 
and has since conducted and maintained the same in the buildr 
ings and upon the premises in and upon which said school had 
been theretofore maintained, to wit: — The aforesaid tract of 
fifty acres, which tract, with the said buildings, is necessary for 
the occupancy and enjoyment of the said college. 

5. That the said court of common pleas of said county, on 
the 6th day of December, 1875, decreed an amendment to the 
charter of said corporation by which the title of said corporation 
was changed from " Haverford School Association," to " The 
Corporation of Haverford College," and by a further amend- 
ment decreed by said court on September 19, 1878, it was pro- 
vided that " The representation and ownership of the property 
and franchises of * The Corporation of Haverford College,' by 
means of a capital stock divided into shares, is hereby termin- 
ated, but each of the present shareholders shall remain a mem- 
ber of the Corporation," and it was further provided that " The 
Corporation shall have power to enact by-laws, providing for 
the election of new members and prescribing their qualifica- 
tions." By a further amendment decreed by the said court on 
the 23d day of June, 1886, it was provided inter alia that the 
corporation might take and hold for the purposes of its incor- 
poration, such amount of personal estate as might be bequeathed 
or given to it from time to time, and that no estate of the cor- 
poration, real or personal, should ever be divided among the 
members thereof. 

6. That a large proportion of the original certificates of stock 
contained a proviso that no profits should ever be divided on 
the stock. Indeed the testimony of Mr. Hartshorne would tend 
to show that all the certificates were so framed, but this is not 
very material now, when we consider the fact that the stock has 
been abolished by the consent of all the stockholders. The 



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74 HAVERFORD COLLEGP: v. RHOADS. 

Master^s Report. [6 Pa. Superior Ct. 

master, however, finds as a fact that the college was founded 
by the voluntary contributions of persons desirous of promoting 
its objects. 

From the report of the examiner the master has thought it 
well at this stage of his findings to give a brief resum^ of the 
contributions for the founding and maintenance of the col- 
lege, including those by the state of Pennsylvania referred to 
by Mr. Vaux and a statement of its present endowment about 
8250,000. 

The said college was founded by the voluntary contributions 
of people interested in the cause of education and desirous of 
promoting its objects. Since the time of the founding and 
during the history of the institution, large sums of money have 
been contributed from time to time for relieving the deficiency 
in its income. In the year 1840, one fund of f 30,000 was con- 
tributed to pay off the debt of the corpomtion, and in 1845, 
owing to the pressure of financial difficulty, the college was 
closed and was not reopened until 1847, when an additional 
sum of $50,000 was contributed as a permanent endowment 
fund, whereby it was able to recommence operations. This 
fund has been increased by contributions and legacies to 
8100,000, and is constantly being drawn upon to meet the de- 
ficiences in the ordinary income of the institution. In the year 
1873, the sum of $18,000 was raised for the purpose of paying 
oflE accumulated deficiencies, and quite a number of smaller sub- 
scriptions have been made at diflferent times for the same pur- 
pose. Barclay Hall, a building erected at a cost of $80,000 for 
the purpose of providing dormitories and study rooms for the 
students in 1876, was built almost entirely by subscriptions, as 
the sum of $73,000 was donated for that purpose. 

During the three years prior to 1884, a subscription of $8,000 
per year was made and paid by friends of the college for the 
purpose of increasing the efficiency of the college, to meet the 
deficiency in the income, and to reduce the debt of the institu- 
tion ; and in that year a sum of $50,000 was subscribed and 
nearly all of it paid as a further contribution to liquidate exist- 
ing debt, caused by deficiencies in the income of the college, and 
prior to 1894, five friends agreed each to give $8,000 a year for 
five years, to apply, firat, to all the scholarships that were nec- 
essary, and second, to apply to other current expenses. 



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HAVERFORD COLLEGE v. RHOADS. 75 

1897.] Master's Report. 

The master also finds as a fact that that proportion of the 
200 acres devoted to farming has been run at a profit ever since 
the college took charge of it itself, about eight years ago, and 
the profit is credited to the farm account and to the general 
expenses of the year. And notwithstanding this, and notwith- 
standing the contributions of its friends, by which the college 
has been at times relieved from debt, the results of the opera- 
tions of the college have constantly been on the wrong side of 
the ledger, and that at the present time the debt is upwards of 
♦64,000, of which $36,000 was incurred in operating the col- 
lege. The loss in operating the college last year was $12,000, 
and the cost of each student was t670, the regular charge be- 
ing $500. 

7. The master also finds that the allegations of the seventh 
paragraph of the plaintiff's bill are facts, substantially as alleged. 
The college is open to the admission of all persons educationally 
qualified upon the same terms, and the funds of the corporation 
do not go to the education of the children of Friends or of any 
other sect in preference to othei-s. The testimony upon this 
point, which is uncontradicted, is even more emphatic than the 
bUl. 

The objects of the institution are very clearly set forth in the 
act of assembly creating the " Haverford School Association," 
" approved April 4, 1838, and the supplement thereto, approved 
March 16, 1856," and are " For the education of youth and 
other persons in the various branches of science, literature and 
the arts," and for the purpose of conferring " Such degrees in 
arts and sciences upon the students of the college and others, 
when by their proficiency in learning they shall be entitled 
thereto, as are confeiTed in other colleges and universities in 
tlie United States," and the practice of the college in canning 
out these objects is clearly set forth in the forcible and intelli- 
gent testimony of Mr. Asa S. Wing. There can be no doubt, 
and the master accordingly finds as a fact, that the fifty acres 
of land in question are absolutely necessary for the proper opera- 
tion of the college. In 1884, when Mr. Wing became treas- 
urer of the institution, there was a debt of about $30,000 or 
$40,000. Just before that time a subscription had been raised 
amounting to $50,000, which enabled the college to cancel its 
debt, so that at the close of the year 1887, the managers re- 



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76 HAVERFORD COLLEGE v. RHOADS 

Master's Report. [6 Pa. Superior Ct. 

ported the college free from debt. Since that time, notwith- 
standing large contributions in each year to meet current 
expenses, etc., the debt has yearly increased, until, at the close 
of the fiscal year in 1893, the debt was reported at $64,000 ; 
♦36,000 of this had been incurred for running expenses of the 
college over and above current receipts. 

Seventeen thousand dollars of it was for the cost of the double 
dwelling in Montgomery county. Twenty-five hundred dol- 
lar of it was for stock on farm, and about $9,000 of it for the 
purchase of two houses in Delaware county, occupied by Pro- 
fessors Crew and Leavenworth on the college property, and 
which the college was bound to buy from them on the termina- 
tion of their services for the college. The present number of 
scholarships is probably about half of the whole attendance 
of the college, either whole or partial scholarships. The aver- 
age number of scholars is between ninety and one hundred. 

These scholarships are paid for from tJie following sources : 

First : From the income of the I. V. Williamson fund ; sec- 
ond, from the income of the Thomas P. Cope fund ; third, from 
the income of the Edward Yarnall fund ; fourth, from the in- 
come of the Richard T. Jones fund ; and fifth, from the contri- 
butions made by friends of the college from year to year. The 
total amount credited for scholarships during the last nine years 
has been about $73,000. That is, the student is charged with 
the full price for board and tuition if he lives in the college, or 
for tuition only if he lives at his own home, and he is credited 
with whatever allowance is arranged for with him by the presi- 
dent of the college and the committee on scholarships, which 
arrangement is made before the beginning of the college term, 
and he finds the balance if there is any balance. Of this $73,000 
about $32,000 has been from the income of the funds of the 
college, and the balance from donations especially for that pur- 
pose. 

Some years ago the board of managers passed a minute direct- 
ing that $1,000 per year should be appropriated from tlie income 
of the general, or endowment fund of the college for scholarship 
purposes, and that has been done ever since, and the amount is 
included in the above $32,000. The only distinction as to terms 
is that the scholarship student under the I. V. Williamson fund 
is charged $300 per year instead of $500 per year, and in the 



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HAVERFORD COLLEGE v. RHOADS. 77 

1897.] Master's Report. 

case of the Richard T. Jones fund, which amounts to only 
$5,000, the board passed a minute on receipt of this fund agree- 
ing to give a full scholarship each year for the income of this 
fund whatever it might be. 

8. The master also finds that the allegations of the eighth 
paragraph of the plaintiff's bill are facts, with the additional 
fact that the houses of the professors which are located on the 
fifty acres are separately assessed and taxed, and no exemption 
is asked as to them ; the premises to which exemption is asked 
comprises the residue of the fifty acres, all of which is in the 
immediate use of the college, for its buildings or recreation 
grounds, and is reasonably necessary for that purpose. The 
buildings consist of the original college known as Founders' 
Hall, used for lecture and class rooms and laboratory, and also 
for dining-room, kitchen, college offices and quarters for the 
help, with the annex containing other of the laboratories and 
the gymnasium ; Barclay Hall, used for dormitories and study 
rooms ; Chase Hall, used for class rooms ; Alumni Hall and 
Library, a large house used as a residence for students, two ob- 
servatories, a machine shop, laundiy, pumping station, ice house, 
cricket shed and some outbuildings. 

SUPPLEMENTARY FINDINGS OP FACT. 

9. In addition to the facts previously found, the master finds 
it to be a fact that the services of all the members of the board 
of corporatoi-s, as well as those of the board of managers, are 
rendered gratuitously to the college, and that none of the offi- 
cers of either board receive any compensation for their services. 

In accordance with the foregoing facts, and after having ex- 
amined carefully all the cases cited by counsel on either side, the 
master concludes as follows : 

Previous to the adoption of the constitution of 1874, all ex- 
emptions from taxation were made by meads of special act of 
the general assembly; but that great charter restricted the 
power of the legislature in this respect, and provided (art. 9, 
sec. 1) that ^' all taxes shall be uniform upon the same class of 
subjects within the territorial limits of the authority levying 
the tax, and shall be levied and collected under general laws ; 
but the general assembly may, by general laws, exempt from 
taxation public property used for public purposes, actual places 



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78 HAVERFORD COLLEGE v. RHOADS. 

Master's Report. [6 Pa. Superior Ct. 

of religious worship, places of burial not used or held for private 
or corporate profit, and institutions of purely public charity." 

And in accordance therewith, the legislature enacted, Act of 
May 14, 1874, sec. 1, P. L. 168, inter alia, that " all hospitals, 
universities, colleges, seminaries, academies, associations and in- 
stitutions of learning, benevolence or charity, with the grounds 
thereto annexed and necessary for the occupancy and enjoyment 
of the same, founded, endowed and maintained by public or 
private charity, be and they are hereby exempted from all and 
every county, city, borough, bounty, road, school and poor tax." 

Upon this legislation must the case be decided. To do so it 
will be necessary to discuss, first. Is the plaintiff within the act 
of 1874 ; that is, a college, founded, endowed and maintained by 
public or private charity? 

It was founded by subscriptions to capital stock which con- 
tained a proviso that no profits should ever be divided on tlie 
stock. In other words, the subscriptions were gifts of that 
much money to the corporation. This conclusion is made 
stronger by the fact that all the certificates of stock have been 
rendered up to the college, and all stock has been abolished by 
the consent of all the stockholders without any return for the 
same. We have found it to be a fact that it was founded by 
the voluntary contributions of persons desirous of promoting its 
objects, which objects were stated in the charter, " to establish 
and maintain a college for the education of youth and other per- 
sons in the various branches of science, literature and the arts." 
It has been heavily endowed from time to time by contributions 
of money from the state as well as from private donors, gifts of 
buildings, etc., and has been maintained by the income from 
these gifts, by large additional charitable gifts from time to 
time, by a profit from the farm it possesses and operates as a 
part of its plant, and by a low charge for the tuition and board- 
ing of some of its beneficiaries. As the latter two items would 
riot be sufiBcient to maintain the college at the present low charge 
for tuition, it therefore complies with the terms and meaning of 
the act. 

It remains to be seen then, whether such a college is purely 
a public charity, and falls within the class of institutions the 
legislature is allowed to exempt by the constitution. 

That a college, an institution of learning, is a charity, has 



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HAVERFORD COELEGE v. RHOADS. 79 

1897.] Master's Report. 

long been decided, if it is conducted in a way beneficial to the 
public at large. The education o^ youth and the support of 
schools has been recognized as a charitable use since before the 
statute of 43 Elizabeth, and the doctrine has been uniformly 
held by our courts : Episcopal Academy v. Philadelphia, 150 
Pa. 665. 

At this institution, by means of charitable gifts to it, educa- 
tion has been furnished at rates considerably below the cost to 
the college and far lower than was possible without such gifts, 
while nearly one half of the students, the more needy ones, 
were aided by means of scholarships, or credits of money, and 
several received tuition and board entirely without cost. That 
such a college is a charity has been frequently decided : Lafay- 
ette CoL V. Co. of Northampton, 128 Pa. 132. 

Is it a public charity? The solution of this question is one 
of fact, and the way has been made clear to a correct interpre- 
tation of the facts by the able opinion of Judge Mitchell, then 
of the lower court, but now of the Supreme Bench, which was 
approved by the Supreme Court in Donohugh's Appeal, 86 Pa. 
306. 

" The essential feature of a public use is that it is not con- 
fined to privileged individuals, but is open to the indefinite 
public. It is this indefinite or unrestricted quality that give it 
its 'public character.' The smallest ajreet in the smallest vil- 
lage is a public highway of the commonwealth, and none the 
less so because a vast majority of the citizens will never use it. 
It is enough that they may do so if they choose. So there is no 
charity conceivable which will not, in its practical operation, 
exclude a large part of mankind, and there are few which do 
not do so in express terms, or by the restrictive force of the 
description of the persons for whose benefit they are intended." 

As it is the right to maintain a bar across it which makes a 
road private, so it is the restrictions which are placed upon the 
beneficiaries of the charity which makes it private. In all prac- 
tical charities there must be some restrictions, as to whom shall 
be benefited ; the courts have told us which restrictions are per- 
missible, and which constitute the bar across the road. 

Perhaps in the Burd Orphan Asylum v. The Borough of 
Upper Darby, a divided court, when it reversed itself on a 
rehearing of the case, went the farthest in its dictum that *^ A 



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80 HAVERFORD COLLEGE v. RHOADS. 

Master^s Report. [6 Pa. Superior Ct. 

home for the support of poor widows is a public charity ; why 
should not a home for the support of poor Episcopalians be ? " 
" The legal effect is the same whether the words used for the 
purpose of defining the beneficiaries of the donor's bounty be 
seamen, Episcopalians, blind persons or Catholics," etc. But 
in Philadelphia v. The Masonic Home, 160 Pa. 572, Judge 
Dean discovers the true reasoning which distinguishes a pub- 
lic from a private charity. "As long as the cUissification is 
determined by some distinction which involuntarily affects or 
may affect any of the people, although only a small number be 
directly benefited, it is public. But when the right to admis- 
sion depends on the fact of voluntary association with some par- 
ticular society, then a distinction is made which does not concern 
the public at large." And his able opinion further shows that 
the restriction must be exclusive. 

For he approves of the finding in the Burd Orphan Asylum 
case, although he disapproves some of the dicta, including that 
quoted ; and the facts in that case show that the charity Wiis 
limited to female orphans of a certain age, baptized into the 
Episcopal church, residing in Pennsylvania, after whom, until 
the capacity of the institution was reached, all other female 
orphans of that age might be admitted, the orphans of Episco- 
pal clergymen being always preferred. In other words, the 
asylum was public because the general public was not excluded, 
but might be benefited by it, while in the case of the Masonic 
Home, under discussion, every one not a Mason was excluded 
absolutely. 

In Episcopal Academy v. Philadelphia, 150 Pa. 565, the facts 
show a purely denominational school, under the control of the 
Episcopal church. Children of other denominations were not 
excluded by the charter, rules or practice of the school, although 
they were very evidently not preferred, for out of sixteen free 
scholars a preference was given to the number of ten, and the 
remainder were selected from nominations invited from the vari- 
ous Episcopal congregations in the city. But it was held to be 
a public charity because others than Episcopalians might be 
and were admitted. 

The facts in the present case show that the plaintiff admits 
to its benefits all persons educationally qualified upon the same 
terms ; that there are no restrictions, no bars across the road in 



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HAVERFORD COLLEGE v, RHOADS. 81 

1897.] Master's Report. 

eitlier its charter or practice, and that the funds of the institu- 
tion do not go to the education of Friends, or any other sect in 
preference to others. That while some of the free scliolarships 
are reetricted to Friends, others are free to all who apply. The 
mere fact that many of its patrons and donors are Friends has 
no bearing on the case, provided that its objects are charitable ; 
as it is the object accomplished, not the motive, that insures its 
public charity : Fire Insurance Patrol v. Boyd, 120 Pa. 624. 

From these facts and the law in the cases cited, the master 
concludes that it is a public charity. It remains to be seen if 
it further complies with the provisions of the constitution, in 
that it is purely public charity ; and Judge Mitchell in Dono*- 
hugh's Appeal, gives us the test. "Are the objects of the 
institution entirely for the accomplishment of the public pur- 
pose, or is there some admixture of private or individual gain ? '* 

By the terms of the plaintiflTs charter as amended, the owner- 
ship of its property is in the corporation for the purposes of its 
incorporation, and no part of that property can ever be divided 
among its members. Its members have no individual interest, 
for the capital is not divided into shares of stock. 

And the oflBcers of the corporation serve without remunera- 
tion ; there can be no taint of private gain here. In its opera- 
tion, however, a small fee is chai*ged some of its students, which 
fee is shown to be less than the actual cost to the college not- 
withstanding its large endowments of real and personal prop- 
erty, and this is applied to defraying its expenses. But it has 
been decided in many cases that there may be a revenue arising 
in the operation of a charity, from its beneficiaries, to aid in its 
maintenance, without removing its status as a purely public 
charity ; this revenue must not, however, exceed the expenses, 
and in our case it falls far short of equaling them : Philadelphia 
V. Woman's Christian Asso., 125 Pa. 672 ; Penna. Hospital v. 
Delaware Co., 169 Pa. 805 ; Lafayette College v. Co. of North- 
ampton, supra ; Episcopal Academy v. Philadelpliia, supra. 

Thei-e is no element of individual or corporate gain, and the 
entire benefit goes to the public. It is contended that there is 
nothing to compel the corporation to maintain free scholarships. 
But under the terms of the trusts by which the money is held, 
free scholarships are compulsory. That some are restricted to 
Friends does not make it any the less a public charity if from 
Vol. VI— 6 



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82 HAVERFORD COLLEGE v. RHOADS. 

Master's Report — Opinion of Court below. [6 Pa. Superior CL 

others the public are not excluded, but may and do receive the 
benefits : Burd Orphan Asylum, supra. 

It is true that there is nothing in the charter compelling the 
admission of all comers, although should it refuse it would fail 
in its express object, as stated in the charter to " furnish instruc- 
tion to young men." There is surely nothing prohibiting it, 
and it is the prohibitory clause, the bar across the road, which 
makes a private charity. All persons educationally qualified 
may make use of the benefits the college offers. It is in theory 
and practice purely public charity, founded, endowed and main- 
tained by both public and private charity, and as such the mas- 
ter concludes that it is entitled to the exemption asked. 

The following exceptions were taken to the report of the 
master: 1. The learned master eiTcd in his finding of facts on 
the seventh paragraph of the plaintiff's bill. 2. The learned 
master erred in his conclusion of law that the corporation plain- 
tiff is a purely public charity. 8. The learned master erred in 
his conclusion of law that the corporation plaintiff is entitled 
to exemption from taxation. And were dismissed in the fol- 
lowing opinion by Clayton, P. J. 

December 7, 1896. The Court. [Under the ruling of the 
Supreme Court in the cases cited by the master, it is difficult 
to see how he could arrive at any other conclusion than the one 
adopted by him. Whatever my own personal judgment may 
be, as expressed in similar cases, we must obey the superior 
judgment of our court of last resort, which seems to hold such 
institutions of learning, as the evidence in this case shows the 
Haverford College to be, as free from taxation. 

The exceptions to the report of the master are, therefore, dis- 
missed and the report confirmed. Let a decree be drawn by 
counsel and be submitted sec. reg.] [4] 

DECREE. 

[Now, April 5, 1897, this cause came on to be heard and was 
argued by counsel, and thereupon, upon consideration thereof, 
it is ordered, adjudged and decreed that the injunction formerly 
granted in this cause be made perpetual, and it is further 
ordered that the said defendants pay the costs of suit.] [6] 



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HAVERFORD COLLEGE v. RHOADS. 88 

1897.] Assignment of En'ors— Arguments. 

Defendants appealed. 

Errors assigned were (1-3) In ovemiling defendant's excep- 
tions, reciting same. (4) In holding the corporation plaintiff 
free from taxation in the opinion filed, reciting same. (5) In 
making the decree perpetual as to the injunction, reciting same. 

JET. H. HalU with him T. Speer Dickson^ for appellants. — In- 
stead of Haverford College being in the line of cases which are 
relied upon by the master and affirmed by the court, it is re- 
spectfully submitted that it should be decided by Miller's Ap- 
peal, 10 W. N. C. 168. 

Upon the hearing it did not appear that the real estate taxed 
was stamped with any public charity, nor that the regulations 
might not be changed into a source of profit ; it was held to be 
taxable: Thiel College v. Mercer Co., 101 Pa. 530. 

The charter of this college enables it to receive charities, 
but imposes no liability on it to bestow any on the public. 

The Episcopal Academy case would hardly be decided as it 
was, with the Supreme Court constituted as it now is, and with 
the same view as to what constitutes a public charity as was 
laid down in the case of Phila. v. Masonic Home, 160 Pa. 672. 

John (?. Johnson and A. Lewis Smithy for appellee. — As con- 
ceded by the argument of the appellants in this case, the ques- 
tion for consideration is a narrow one. The very exhaustive 
report of the master would seem to leave no margin to distin- 
guish the case of the appellee from those in which the Supreme 
Court has sustained a claim for exemption. 

The assertion that the plaintiff corporation is not subject to 
visitation is made in defiance of elementary principles. Since 
the case of Philips v. Bury, 1 Ld. Raymond, 6, this subject has 
been well understood. ''To eleemosynary corporations a visit- 
orial power is attached as a necessary incident : " 2 Kent's Com. 
300. This power always rests somewhere. If in trustees, they 
in England are in turn subject to the " general superintend- 
ing power of the court of chancery : " 2 Kent's Com. 303, 804. 
In Pennsylvania, since the Act of June 16, 1886, section 13 
P. L. 784, the courts of common pleas have the jurisdiction and 
powers of a court of chancery '' in the control, removal and dis- 



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84 HAVERFORD COLLEGE v. RHOADS. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct. 

charge of trustees, and the appointroent of trustees, and the 
settlement of their accounts " and in "the supervision and con- 
trol of all corporations other than those of a municipal charac- 
ter." It has been held that this supervision and control not 
only extend to all corporations other than those of a municipal 
character, but that under this section " the equity powers of the 
court, though contracted as to individuals, ai'e general and 
unlimited over corporations, and are to be exercised in the ordi- 
nary mode of a court of chancery : " Sarver's Appeal, 81* Pa. 
183. This principle has been asserted in many cases since. 
See Girard v. Philadelphia, 7 Wallace, 1. 

Opinion by Porter, J., December 13, 1897 : 
This is an appeal by the township of Haverford from the 
decree of the court of common pleas of Delaware county, re- 
straining the collection of road taxes, assessed and levied against 
tike plaintiff corporation. The cause was referred to a master 
whose report the court below adopted without supplemental 
opinion. Little can be added by us to the report, which is com- 
prehensive and well considei'ed. Some of the findings of fact 
have been challenged, but an examination of the testimony has 
not served to convict the master of error. 

The " Haverford School Association '* an incorporated associ- 
ation, was, by act of assembly of March 15, 1856, ^^ authorized 
to establish and mauitain a college for the education of youth 
and other persons in the various branches of science, literature 
and arts " and to confer degrees. By decree of the court of 
common pleas of Delaware county on December 6, 1875, an 
amendment was made to the charter, changing the name of the 
institution to "The Corporation of Haverford College." A 
further amendment was similarly made September 19, 1878, by 
the consent of all of the stockholders, providing that " The rep- 
resentation and ownership of the property and franchises of 
the coiporation of Haverford College by means of capital stock 
divided into shares, is hereby terminated " etc. A still further 
amendment on June 23, 1886, provided that the corporation 
might take and hold for the purposes of its incorporation, such 
amount of personal estate as might be bequeathed or given to it 
from time to time, and that no estate of the corporation, real or 
personal, should ever be divided among the members thereof. 



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flAVERFORD COLLEGE v. RHOADS. 85 

1897.] Opinion of the Court. 

The premises, upon which the tax is levied, are the educational 
plant of the institution. They are occupied by buildings foi- 
lecture and class-rooms, laboratories, dining-room, kitchen, col- 
lege offices, quartei-s for the employees, gymnasium, dormitories, 
study rooms, observatories, etc. The remainder of the ground 
sought to be exempted is used for athletic purposes, recreation 
grounds, lawn, etc. We have thus a college or institution of 
learning "with the grounds thereto annexed and necessary 
for the occupancy of tiie same" which if -"founded, endowed 
and maintained by public or private charity " and conducted as 
" a purely public charity," is exempted from taxation under the 
act of May 14, 1874, passed pursuant to the Constitutional pro- 
vision. We have thus seen how the corporation was legjilly 
founded. Although the original subscriptions were represented 
by certificates of stock, they were not made with the anticipa- 
tion that there should be a return in profit. Subsequently these 
subscriptions were changed, by amendments of the charter, into 
donations and all private interests in the assets of the corpora- 
tion were (if any existed) swept away. 

The original subscriptions to the college have been supple- 
mented from time to time by charitable gifts to maintain the 
organization and extend its facilities until the valuable property 
now sought to be made the subject of taxation, has been acquired. 

At the stated annual meeting of " Haverf ord School Associ- 
ation " held May 10, 1847, the stamp of charitable foundation 
was set upon the general fund of the institution by the follow- 
ing resolution: "Resolved, That the sum of $60,000 having 
been subscribed by a number of Friends for the aid and sup- 
port of Haverford School by the gratuitous admission of young 
men or otherwise, it being expressly understood that the interest 
only of the sum thus raised shall be expended, the treasurer is 
hereby authorized to collect the sums of money thus subscribed 
and under the direction of the board of managers securely to 
invest the same, the interest thereof to be applied to the pur- 
poses above recited, it being expressly understood that when any 
part of the principal sum shall be paid in, it shall as early there- 
after as practicable be reinvested and in no case shall the said 
principal sum be expended or diminished." There can, there- 
fore, be no doubt that the foundation and endowment have been 
by private charity. 



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86 HAVERFORD COLLEGE tf. RHOADa 

Opinion of the Court. [6 Pa. Sajwrior Cl* 

It remains still to consider whether the institution is main- 
tained by public or private charity. The sources of mainte- 
nance are from unconditional gifts, from special gifts or legacies 
in trust for specific purposes, and from the fees paid by a part 
of the students. 

The first is palpably charitable maintenance. The second 
equally charitable although charged with a trust for certain 
educational uses or for preferred students. The third source of 
maintenance is derived from full-pay students and the payments 
made by the holders of partial scholarships. The holders of 
scholarships, whole or partial, as found by the master, constitute, 
probably about one half of the whole attendance at the college. 

The fact that some of the students are so-called full-pay stu- 
dents, does not depiive the institution of its character as a char- 
ity. There is no profit derived therefrom. The total receipts 
are expended in the carrying out of the charitable design. This, 
however, was settled by the Episcopal Academy v. Phila., 150 
Pa. 566. The maintenance of the college is, therefore, of the 
kind comprehended by the act of 1874. 

Is there anything in the method of conducting the institution 
to make it other than a public charity ? The only complaints 
seem to be that the board of managers is controlled by mem- 
bers of the Society of Friends and that youth of that particular 
sect are preferred as recipients of the benefits of the college. 
The first objection if sustained, might require an inquiry to 
be made as to the denominational connection of every mem- 
ber of the boards of all of the great charitable institutions, 
lest perchance a majority might belong to a particular sect or 
denomination. In point of fact, if the matter were carefully 
examined, it might be found that the management of some of 
the largest hospitals, homes and institutions of learning has, by 
design or accident, fallen into the control of those belonging to 
a particular sect. So prevalent is this that when the contrary 
is true, the charity is apt to announce the fact that it is non- 
sectarian, as if its case were exceptional. There is nothing in 
the objection that a majority of the managers (all of whom serve 
gratuitously) are of a particular sect. 

Finally : Is there anything in the assertion that the college 
gives a preference to students of a particular sect, and thus 
deprives itself of the claim to be a "public" charity? The 



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HAVEBFORD COLLEGE v. RHOADS. 87 

1897.] Opinion of the Court. 

decision above cited has answered the question against the de- 
fendant. Further than this, however, the master finds as facts : 
" That the plaintiff admits to its benefits all persons education- 
ally qualified upon the same terms ; that there are no restric- 
tions, no bars across the road in either its charter or practice, 
and that the funds of the institution do not go to the education 
of Friends or any other sect in preference to others ; that while 
some of the free scholarships are restricted to Friends, others 
are free to all who apply." 

We do not regard it as necessary to retravel the path already 
well marked out by the master, through the decisions of the Su- 
preme Court on this general question. Counsel for the defend- 
ant has endeavored to show that the master has gone astray, 
but the distinctions drawn do not convince us tliat any mistake 
has been made. 

We therefore conclude that this college (with its college 
grounds) is founded, endowed, and maintained by private char- 
ity as required by the act of 1874 ; that its doors open to the 
public under reasonable restrictions make it a purely public 
charity within the meaning of the constitutional provision, and 
that its property is exempt from the tax sought to be collected. 

The decree of the court below is affirmed. 



In the Matter of the Application of the Doylestown Dis- 
tilling Company, Limited, for a Distiller s License. 

lAquor law — PetUionfor a license is to (he discretion of the court, 
A petition for a license is addressed to the judicial discretion of tbe- 
license coait, a discretion resting on reasons to be foand in the line of 
inquiry marked out by the statute from which it is derived. 

Liquor Uxw — Judicial discretion not reviewable, arbitrary discretion %s. 

The appellate court can inquire into nothing but the regulanty of the 
proceedings and the character of the discretion exercised by the license 
court. The findings of fact and conclusions of judgment by which the 
discretion of the license judge is to be regulated, when within the field of , 
investigation assigned to him by law, are not subject to review. 

When, however, the judge passes beyond this field he quits the sphere 
of judicial discretion. The law having fixed the standard by which the ' 
right of a petitioner for a distiller's license is to be judged a discretioA nol 



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88 DISTILLER'S LICENSE. 

Syllabus— Opinion of Court below. [6 Pa. Superior Ct. 

regulated by this standard but determined by tests unknown to tlie law, 
is not judicial, but an arbitrary abuse of discretion which the appellate 
court should review. 

Liquor law — Abuse of discretion^ Review by appellate court. 

The Act of June 9, 1891, P. L. 257, excludes the determination of the 
question of the necessity of a brewer^s or distiller^s license from the re- 
quirements to entitle a license, and where the license court assigns the 
absence of necessity for a distiller^s license as a reason for refusing the 
license, he not only goes beyond the requirements of the statute in quest 
of a reason for refusal, but rests his decision on a reason which the stat- 
ute expressly excludes from consideration. Such a ruling therefore is a 
marked instance of the exercise of an arbitrary discretion, and presents 
such abuse of discretion as requires correction by the appellate couii. 

Argued Nov. 19, 1897. Appeal, No. 143, Oct T., 1897, by 
the Doylestown Distilling Co., Ltd., from decree of Q. S. 
Bucks Co., refusing distiller's license. Before Rice, P. J., 
WiCKHAM, Beaver, Reeder, Orlady, Smith and Por- 
ter, JJ. Reversed. Rice, P. J. and Beaver, J., dissent. 

Application for distiller's license. Before Yerkes, P. J. 

The application for the license, bond and other proceedings 
were in regular form. The application having been heard ac- 
cording to the rules of court the license was refused upon the 
ground that there was no necessity for it, in an opinion by 
Yerkes, P. J., as follows : 

This petition seems to rest upon peculiar grounds. It is not 
stated that a license is needed for the accommodation of the 
general public, but rather to enable the applicants an oppor- 
tunity to make a market for their peculiar brand of liquors by 
convincing the public through experience, that their liquors 
are alone beneficial to them, as a remedy for various diseases to 
which the human family is subject. The principal testimony 
and exhibits laid before us seem to establish that this want is 
felt in Wallingford, Connecticut, to a good deal greater extent 
than here. 

It is true one Doylestown physician presents a rather guarded 
certificate of the results of the use of the liquor in cases of 
feeble digestion and prostration which, with his limited experi- 
ence, encourage him to give it further trial. It does not appear, 
however, that the stimulating effect here referred to is different 



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DISTILLER'S LICENSE. 89 

1897.] Opinion of CJourt below 

from that of the use of other alcoholic drinks. From time im- 
memorial the result of the use of such has given encourage- 
ment to further trial. 

Another witness bases his testimony upon his idea of the ben- 
efits which will accrue to the community by the use of this kind 
of intoxicant from what has been represented to him, and the 
character of certain members of the company to whose standing 
he testifies. The basis for the first reason is of a somewhat 
beclouded character, and the second was unnecessary, the high 
character of the parties named being well known. 

He somewhat damages the doctor's certificate by proving 
tliat " liquor is used as medicine throughout the world." 

It is also said that the farmers will be benefited by this house 
being licensed. No farmers have so declared, however. 

The usual number of petitioners, who always sign petitions, 
has certified to the benefits to be derived from this license. 

None of this testimony throws light upon the only questions 
which, under the law, are material to the inquiry before us, viz : 
The necessity for the license, and the fitness of the place and 
the person who may conduct the business. 

Doylestown already has two licensed wholesale liquor stores, 
both well located to accommodate public demands, and, so far 
as has been shown, they supply liquors in quantity and quality 
sufficient for all purposes. One of these is the house of 
Mrs. Huber, who appears to be the second largest holder in 
value in the petitioning company. These licensed houses no 
doubt would willingly dispose of the cold distiUed spirits if 
there be such a crying demand for it, and at reasonable profit. 

We have seen no evidence that Mrs. Huber or the other mem- 
bers of the company, who, by their long residence here, are well 
acquainted with the necessity for tiiis license, are desirous, par- 
ticularly, that it be granted. The place is also unsuitable. 
Mrs. Huber's store is within four doors from it and is located so 
as not to unduly annoy private dwellers. The latter are en- 
titled to some degree of protection from unpleasant surroundings. 

To impose another liquor store upon that immediate neighbor- 
hood could only be justified by the clearest necessity. 

We regard the special plea, that only one kind of whiskey 
will be sold, of a superior medicinal quality, as a clever device 
to obtain a valuable privilege without establishing such necessity 
as the law requires for its grant. 



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?Q DISTILLER'S LICENSE. 

Assignment of Errors — Opinion of the Couit. [6 Fa. Superior Ct^ 
The license is refused. 

Errors assigned were (1) In refusing to grant distiller's 
license to the Doylestown Distilling Co., Ltd., upon the ground 
that the same was not necessary. In refusing tlie license the 
learned judge saying : " It is not needed for the acconunodation 
of the general public." " That it is a clever device to obtain a 
valuable privilege without establishing such necessity." And 
again : " None of the testimony throws light on the questions 
which, under the law, are material, viz : Necessity." (2) In 
comparing the application with that of Mrs. Huber and H. P. 
Beerer, they holding wholesale licenses. (8) In not approving 
the bond. 

J*. 2>. James^ with him N, C. James^ for appellant. — The Act 
of June 9, 1891, P. L. 257, provides in section 4, Art. V. as fol- 
lows : " That the place to be licensed is necessary for the accom- 
modation of the public : Provided, that the provisions of this 
section as to whether the place to be licensed is necessary shall 
not apply to a brewer or distiller." 

The application of the Doylestown Distilling Co., Ltd., comes 
directly within the requirements of this provision, and therefore 
the question of necessity should not have been considered. The 
reason of record is " No necessity." The reason assigned is not 
a legal and valid reason : Gemas' Appeal, 169 Pa. 43 ; Dober- 
neck's Appeal, 1 Pa. Superior Ct. 99 ; Laiick's Appeal, 2 Pa. 
Superior Ct. 53. 

No argument offered or paper-book filed for appellee. 

Opinion by Smith, J., December 13, 1897 : 

The principles that must govern the decision of this case have 
been settled by repeated and well considered adjudications. 
These principles, with the authorities on which they rest, have 
been so recently reviewed, in Donoghue's Appeal, 5 Pa. Supe- 
rior Ct. 1, that no extended discussion of them is here necessary. 

A petition for license is addressed to the discretion of the 
license court. This is not an arbitrary or unregulated discretion, 
but a judicial discretion, resting on reasons to be found in the 
line of inquiry marked out by the statute from which it is 



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DISTILLER'S LICENSE. 91 

1897.] Opinion of the Court. 

derived. These reasoDs relate in part to matters of fact, sus* 
ceptible of direct proof, such as citizenship, ownersliip of the 
place to be licensed, interest in the business to be conducted 
there or elsewhere, etc. ; and in part to conclusions of judgment 
to be formed by the court upon evidence or personal knowledge, 
respecting such matters as the petitioner's mornl character, his 
fitness to receive a license, the necessity for the house, etc. 
The discretion of the license judge is to be governed by the 
facts ascertained and the conclusions reached by him respecting 
the matters to which his inquiry is by law directed. 

The appellate court can inquire into nothing but the regularity 
of the proceedings and the character of the discretion exer- 
cised by the license court. The findings of fact and conclu- 
sions of judgment by which the discretion of the license judge 
is to be regulated, when within the field of investigation as- 
signed to him by law, are not subject to review. When, how- 
ever, he passes beyond this field, he quits the sphere of judicial 
discretion. The law having fixed the standard by which the 
right of the petitioner is to be judged, a discretion not regulated 
by this standard, but determined by tests unknown to the law, 
is not a judicial but an arbitrary discretion. Such a mode of 
exercise is an abuse of the discretion committed to the license 
court Where no reasons are given for the decision, the law 
will presume adequate grounds for it. But when reasons are 
given which are based on matters not within the scope of inquiry 
defined by law, but show a clear departure from the statutory 
tests, an abuse of discretion is manifest, which it becomes the 
duty of the appellate court to correct. 

So far as the record in the case before us shows, there was no 
remonstrance or other opposition to the petition. The license 
court, in an opinion accompanying the refusal of the license 
applied for, based its decision solely on the ground that the 
petitioner sought the license " without establishing such neces- 
sity as the law requires for its grant." The conclusion of the 
license court (based on personal knowledge), that the necessity 
in question had not been established, must be here accepted, for 
we cannot review its judgment on this point. If therefore the 
law demands that such necessity be established in this case, the 
court was right in refusing the license. 

The petition was for a license as a distiller. The act of 



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92 DISTILLER'S LICENSE. 

Opinion of the Court. [6 Pa. Superior Ct 

June 9, 1891, upon which the court proceeded in the premises, 
while enumerating the requirements to be met by the applicants 
for certain licenses, contains this express exception : " Provided, 
That the provisions of this section as to whether the place to be 
licensed is necessary shall not apply to a brewer or distiller." 

Thus the license court not only went beyond the requirements 
of the statute in quest of a reason, but, in resting its decision 
on the absence of necessity, decided the case against the peti- 
tioner on a ground which the statute expressly excludes from 
consideration. Upon the principles established by the author- 
ities already referred to, it is impossible to regard this as the 
exercise of a judicial discretion. On the contrarj'-, it is a marked 
instance of the exercise of an arbitrary discretion, in direct dis- 
regard of the enactment designed to regulate the discretion of 
the court in the case before it ; in brief, an abuse of discretion, 
requiring correction by this court. But a single reason having 
been assigned for the decision, it must be presumed that no 
other was found. That reason being wholly without validity, 
there was no ground for refusing the license, and it should have 
been granted. 

The order refusing the license is reversed, and it is ordered 
that a license be issued by the court below, as prayed for, upon 
payment of the license fees fixed by law. 

Rice, P. J., and Beaver, J., dissent 



Commonwealth of Pennsylvania v. William H. House, 

Appellant. 

Fractice— Criminal law^AddUional instructions in absence of defendant 
— Adjournment. 

It is reversible eiTor where the trial judge, after adjournment of court, 
permits the juiy to come in for additional instioictions which he gives in 
the absence of defendant and his counsel and without notice to either. A 
person under trial for a crime has the right to be present during the en- 
tire trial ; he has a right to assume that no further instructions will be 
given during the adjouiiiment of court No waiver or consent can be im- 
plied from his absence under such circumstances. 

While the court has the discretionary power to recall the jury for far- 



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COMMONWEALTH v. HOUSE. n 

1897.] Syllabus. 

ther instructions or to withdraw or to c5orrect erroneous instructions such 
instructions should be given in open court. 

Evidence — Criminal law — Proof of independent crime, when admissible. 

Generally evidence of the defendant's commission of another distinct 
and independent crime cannot be received for the purpose of proving his 
commission of the offense for which he is being tried ; yet under some 
circumstances such evidence may be given : To establish identity ; to show 
that the act charged was intentional and wilful, not accidental ; to prove 
motive ; to show guilty knowledge and purpose, etc. 

Evidence — Criminal Uno-^Pertinenl cross-examination. 

Evidence being given by defendant, charged with embezzlement of pub- 
lic funds, that his alleged false repi*esentations made to the officere of the 
city were innocently, if mistakenly made, it was competent for the com- 
monwealth to cross-examine him on this subject and admissions, made by 
liim, that he was receiving interest on tlie money in question from banks 
of deposit, are relevant testimony as tending to rebut the theory of mis- 
take set up in his direct examination, and as tending to show a personal 
interest to be served in making the false and misleading statements and in 
withholding the money. 

Evidence— Criminal law — Scope of cross-examination of defendant. 

Where defendant in a cnminal case goes upon the stand, admissions 
made by him are not inadmissible because elicited under cross-examination ; 
by consenting to take the stand and by sweanng to tell the truth, the whole 
truth, he waives his constitutional privilege and may be cross-examined, 
not only the same as any other witness, but he cannot object to legitimate 
cross-examination upon the gi*ound that his answers will tend to crim- 
inate him. 

Evidence — Criminal law — Testimony of defendant cU former trial admiS' 
sible. 

The testimony of defendant can be used against him on a second trial of 
the same indictment even if he elects not to go upon the stand. His con- 
stitutional privilege as far as that testimony is oonoehied has been waived, 
and cannot be reclaimed in any subsequent tnal of the same indictment. 

Evidence— Testimony of former trial— Method of proof— Practice, C. P. 
The proper method of proving what was said by a witness on a former 
tnal is by the official stenogi*apher. 

Evidence— Criminai law — Proof of admissions on former trial. 

When the commonwealth desires simply to prove certain admissions of 
a defendant made on a former trial, it is not necessary to put in evidence 
his wholo testimony; but if anything is omitted which may tend to ex- 
plain or qualify those admissions the defendant may call it out upon cross- 
examination. 

Argued Oct 18, 189T. Appeal, No. a2, April T., 1898, by 
defendant, from judgment of Q. S. Allegheny Co., June Seas., 



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94 COMMONWEALTH v. HOUSE. 

Statement of Facts. [6 Pa. Superior Ct. 

1896, No. 452, on verdict of guilty. Before Rice, P. J., WiCK« 
HAM, Beaveb, Rbedeb, Oelady, Smith and Poetee, JJ. 
Reversed. 

Indictment for embezzlement of $26,652.74. Before Ken- 
nedy, P. J. 

It appears from the record that defendant was indicted in the 
court below on numerous counts charging him with embezzle- 
ment as a municipal ofl&cer, jointly with W. C. Moreland, who 
had been for many years city attorney of the city of Pittsburg. 

At the trial of the case all the counts were abandoned ex- 
cepting one charging that the said defendant did embezzle the 
sum of $26,652.74, in aiding and abetting and as accessory to 
the unlawful conversion and embezzlement of the said sum. 

On the trial of the case the commonwealth was permitted, 
under objection, to examine L. W. Mendenhall, the ofl&cial ste- 
nographer of the court, in regard to the testimony of the defend- 
ant taken at a previous trial (see former report of the case, 3 
Pa. Superior Court, 304), the defendant having at the second 
trial declined to take the stand. 

The examination of the witness Mendenhall was as fol- 
lows : [L. W. Mendenhall, sworn. Direct examination by Mr. 
Yost : " Q. You are the official stenographer of common pleas 
No. 3 ? A.I am. Q. And by virtue of that office you were 
official stenographer at the former trial of this case ? A. Yes, 
sir. Q. Did you take notes of the testimony of the case? 
A. I did. Q. Did you take notes of the testimony of William 
H. House, the defendant, on the former trial of this case? 
A. I did. Q. Will you look at your notes of the testimony of 
the defendant. House, at the fonner trial, and tell us what he 
stated in regard to the duties of his office ? " 

Mr. O'Brien : Objected to, on the ground that if they have 
any right to offer the testimony, they must offer the testimony 
complete ; they have no right to offer a part of it in that way. 

Mr. Yost : I propose to prove the admission of the defendant 
as to his duties during the period covered by this indictment, 
and his relations to the principal and codefendant, Moreland. 

Mr. Patterson : We object, as the act of assembly, section 3, 
of the act of 1887, expressly provides the use of the testimony 
for another trial, and we object to it on the ground that the only 



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COMMONWEALTH v. HOUSE. 95 

1897.] Statement of Facts. 

knowledge the witness has upon the subject upon which he is 
interrogated is what he derived as official stenographer in tak- 
ing the testimony at the former trial of this defendant upon 
the same charges, and that it is not allowable on the part of the 
commonwealth to prove against the defendant on trial his tes- 
timony taken at a former trial of the same cause. 2. That the 
witness, being capable of testifying only in his capacity as a 
reporter in the other case, should be called upon, if at all, to 
give his entire version of Mr. House's complete testimony at 
that time, if it is competent to pix>ve it at all. It is incompe- 
tent and improper to allow the representative of the common- 
wealth to select particular parts of that testimony, which they 
may regard as incriminating, and have that detailed without 
giving the entire testimony. 

By the Court: The objection is overruled. 

To which ruling of the court counsel for defendant request 
an exception. Exception allowed and bill sealed. 

" A. The following question was asked Mr. House : I wish you 
would tell the jury, in a general way, what the line of your duty 
was there from the time you first went in under Mr. Bigelow, 
until you ceased in October, 1895 ? To which he made this re- 
ply : Why, to receive assessments on streets, grading, paving 
and curbing, sewei-s, openings, damages by grading, to pay par- 
ties who were entitled to money, pay the city treasurer, grad- 
ing, paving, curbing and sewers, or any other moneys that might 
come into my hands that he was entitled to receive." 

^^ Q. State if he was interrogated, Mr. Mendenhall, as to his 
method of satisfying liens in the court house in the prothono- 
tary's office, and what he said upon that subject." 

"A. He was asked the question: Then who paid the costs? 
To which he made this reply : Then I would make out a list 
— I might have one, or I might have a. dozen names — and I 
would go to the prothonotary's office and satisfy these liens, 
W. C. Moreland, per House, and pay the costs; or I might 
have forty or fifty, and I would go in to the prothonotary's office, 
and I would leave a list with him, and tell him to write up the 
satisfactions, and I would go in there the next morning, before 
working hours — maybe I would be in there before eight o'clock, 
and I would sign my name, and pay him the costs on the whole 
thing." 



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96 COMMONWEALTH v. HOUSE. 

Statement of Facts. [6 Pa. Supeiior Ct. 

" Q. Was he asked aDything further immediately after that 
in regard to costs ? " 

*' A. He was asked this question : And were the costs usually 
paid in currency? To which he made the following answer: 
Yes, sir, always, I don't recall just now of any ever having 
been paid by check, although there might have been some costs, 
but my recollection tells me that I always paid the costs in 
money." 

" Q. Could you state whether he was asked how lie paid dam- 
ages, whether by check or not, how they were drawn and what 
he said upon that subject ? 

" A. The following appears on ray notes : Now, when you paid 
damages by check, how were the checks drawn? To which 
he replied: The checks were signed by W. C. Moreland. 
Q. In blank? A. To the order of W. H. House ; when I paid 
those checks out I would indorse them over to the parties that 
were entitled to the money." 

" Q. Later on, you may state whether or not he was interro- 
gated as to how frequently he was at the ofl&ce, and whether he 
had charge of Moreland's bank book, and tell us what he said 
upon that subject. A. The following appears : Q. You were 
there every day at the oflSce, weren't you? A. I was there 
every day, as a general thing : I might have been away or some- 
thing of that kind. Q. You had charge of the bank books con- 
taining the accounts of W. C. Moreland with these various 
banks ? A. They were in the oflSce ; yes, sir. Q. They were 
not in Mr. Moreland's private office, in the St. Nicholas build- 
ing, but in the office you occupied? A. Yes, sir. Q. You 
sent or took these books to banks as the moneys were deposited. 
A. Yes, sir. Q. And you had them balanced, did you ? A. Yes, 
sir. Q. And you had full access to them, so that you could 
see exactly what they contained? A. Yes, sir." 

" Q. State whether towards the conclusion of his cross- 
examination he was interrogated as to deposits of the moneys 
he received, and as to how he did it and what he said upon that 
subject. A. I find this in my notes. Q. Mr. House, you have 
said that you deposited the funds coming into the city attor- 
ney's office, under your supervision, and prepared the deposit 
slips in the name of W. C. Moreland alone? A. Yes, sir. 
Q. In the First National bank of Pittsburg, the Allegheny 



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COMMONWEALTH r. HOUSE. 91 

1897.] Statement of Facts. 

National bank, the Tradesmen's, and the Freehold ? A. Yes, 
sir. Q. In 1893, is it not a fact that in the Tradesmen's, Alle- 
gheny National, and First National, at the time you told Mr. 
Gourley that about all tbe money you could pay in was f 80,000, 
that there were quarterly balances there in each bank of at least 
fifty to eighty thousand dollars ? A. There might have been. 
Q. That there were quarterly balances in those banks to the 
amount of one hundred and fifty or two hundred thousand dol- 
lars ? A. Well, I couldn't say as to the amount. Q. Well, it 
would aggregate in that neighborhood ; you had deposited the 
greater portion of that money in those banks by the direction 
of Major Moreland? A. Yes, sir." 

" Q. In that immediate connection state whether or not he was 
interrogated as to whether he drew interest upon these moneys 
that were in bank, and what he said upon that subject." 

Mr. Patterson : Objected to, not only upon the grounds al- 
ready stated, but that this particular question now asked is 
incompetent and irrelevant, for the reason that it seeks to draw 
from the witness a former statement of the defendant relating 
to an entirely distinct and different offense from that upon 
which he is upon trial, and an offense which is shown by the 
records of this court to be the subject-matter of three or four 
indictments against the defendant and W. C. Moreland, only 
one of which has been disposed of, and the other three are still 
pending ; and it is an offer of matter not contained in notice 
furnished the defendant by district attorney in his bill of par- 
ticulars. 

By the Court. Objection overruled. 

To which ruling of the court counsel for defendant request 
an exception. Exception allowed and bill sealed. 

'* A. The following question was asked Mr. House : Q. Mr. 
House, did you not youi-self, quarterly, within the four years 
prior to the finding of this bill of indictment, regularly draw 
interest on those deposits which I have mentioned? A. Not 
all of them. Q. In the Tradesmen's National bank, didn't you 
draw interest down until January, 1895, on the deposits remain- 
ing there ? A. I don't know whether it was that month or not. 
Q. Well, about that time? A. Well, I couldn't say that; it 
might have been. Q. Well, in the fall of 1894, the quarters for 
drawing interest were January, April, July and October, weren't 
Vol. VI— T 



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98 COMMONWEALTH v, HOUSE. 

Stafcement of Facts. [6 Pa. Superior Ct. 

they? A. Yes, I believe there was interest drawn. Q. Well, 
didn't you in July and October, 1894, and on the first of Janu- 
ary, 1895, draw three per cent interest, or about three per cent 
interest on that balance deposited there? A. Well, I may 
have done so. Q. Down to February, 1895, do you know the 
fact that there was a balance deposit of $40,000 in the First 
National bank, or about that? A. There might have been; I 
don't recollect. (Book shown witness, and he states) : Yes, that 
seems to be correct. Q. Didn't you draw the quarterly inter- 
est on that, both in October of 1894, and January 1 of 1895, or 
about those dates ? A. Well, I may have done it. Q. You 
did draw interest about that time ? A. Yes, I went there and 
got interest. Q. What per cent at the First National? A. I 
couldn't tell that. Q. What at the Tradesmen's. A. I don't 
know that. Q. Do you know what per cent at the Allegheny 
National ? A. I do not. Q. You drew the interest there also 
did you not, down until about July of 1895, at the Allegheny 
National ? A. Well, I couldn't say that. Q. There was a 
large deposit still there on the 1st of July, 1895, was there not? 
A. There might have been. Q. Well, didn't you go there and 
dmw interest on whatever deposit was there down until July, 
1895 ? A. I couldn't say that I did. Q. Can you say abso- 
lutely that you did not? A. No, sir, I can't. Q. There were 
large deposits almost daily in the Allegheny National down un- 
til September of 1895, was there not? A. Yes, sir. Q. Run- 
ning from one thousand to three or four thousand dollars at a 
time ? A. Yes, sir, just as it is represented there. Q. Now, 
isn't it a fact that down until the July quarter for drawing 
interest, you drew interest from the Allegheny National? 
A. Well, sir, I couldn't say whether I did or whether I did 
not. Q. Well, you know that you did draw there in 1894 and 
1895, don't you? A. Oh, yes, there was interest drawn. 
Q. And by you? A. Yes, sir. Q. It was drawn regularly as 
the quarters came? A. Well, I rather think it was."] [2] 

It further appears from the record that on the afternoon of 
May 6, 189T, after the court had adjourned, the following pro- 
ceedings were taken, to wit : The jury having been recalled in 
response to a message from them that they could not agree, the 
court addressed them as follows : 

[I have received your communication stating that it is im- 



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COMMONWEALTH v. HOUSE. 99 

1897.] Statement of Facts. 

possible for you to agree. The case has been tried twice, and, 
as you know, at considerable expense to the county, and I do 
not think I can discharge you until you have made further 
effort to agree. It strikes me as a case in which you ought to 
be able to reach a conclusion without very great difficulty, and 
I think it is my duty to say to you that, while no juryman 
should sacrifice his individual opinion, yet it should be a mat- 
ter of careful consideration with the minority, if small, as to 
whether or not they may be mistaken. Now, it seems to me the 
best thing we can do for you is to give you a little more com- 
fortable quarters than you have now, and send you back for 
further honest efforta to agree, taking the suggestion I have 
made to you. I have no idea how you stand ; it is not proper 
for me to know. I only suggest that those of you who are in 
the minority consider carefully whether or not you are mistaken. 
I am told your room is not very large, and there are larger rooms 
in the upper story of the courthouse, used by jurors in capital 
cases, which are most comfortable, and where there are cots 
upon which you may rest. We will send you there for further 
deliberation of the case. 

- By a juryman. Q. What bearing has the collection of inter- 
est on this case ? 

By the Court : It has a bearing upon the motive of the de- 
fendant. This, I thought was fully explained at the time of 
the admission of the evidence upon that point, and subsequently 
in the charge. You understand that you cannot, under this 
indictment, convict him of the embezzlement of that interest, 
but it has a bearing upon the motive of the defendant and his 
relation to the principal, Moreland, who has already plead guilty 
to the charge. If there are any other questions which you have 
to ask, I will try to answer them ; and I believe, if you make 
vigorous efforts, you will be able to agree. It is not desirable 
to have to try the case over again. It was very carefully and 
ably tried upon both sides, and I think as much light shed upon 
it as there could ever be in the future, and I think it has had 
as good a jury as we would be able to get. Now, as I have said 
before, we will find you more comfortable quarters, where you 
will be able to discuss the case more calmly and comfortably 
together. The room I have suggested in the third stor}% where 
there are cots, will be ready for you in a few moments, and we 
will send you there. 



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100 COMMONWEALTH v, HOUSE. 

Statement of Facts — Assignment of Errors. [6 Pa. Superior Ct. 

By a juryman : Q. Your honor, are we to take into consider- 
ation only whether House aided or abetted Mr. Moreland in 
the embezzlement of that S26,000? 

By the Court : Yes, that amount, or any portion of it ; that 
is, whether he aided or abetted Moreland in the act; if be did, 
he is guilty under this indictment. Now, gentlemen, you may 
retire.] [8] 

The foregoing proceeding took place on Thursday afternoon 
May 6, 1897, after the jury had been out about twenty-four 
hours and after the court had received a note from the jury, 
signed by the foreman, stating that it was impossible for them 
to agree, and asking to be discharged. Neither the defendant 
nor his counsel were present. 

I hereby certify the foregoing to be correct. John M. Ken- 
nedy, P. J. 

[I further hereby certify, that at the time the foregoing pro- 
ceeding took place, the court had adjourned for the day, such 
adjournment having taken place shortly after 2 o'cock ; that 
before the presiding judge had left the courthouse, and during 
the usual court hours, viz : about 3 o'clock, he received the 
note referred to in the foregoing certificate, when he imme- 
diately ordered the jury to be brought into the court room, 
which was still open, and the foregoing proceeding took place. 
The district attorney and other attorneys and persons were 
present; neither the defendant nor bis counsel were notified to 
be present. Subsequently, and before 4 o'clock, the i-egular 
hour for adjournment, the jury returned into the court room, 
with their verdict, and defendant's counsel being sent for, the ver- 
dict was taken in their presence. John M. Kennedy, P. J.] [1] 

The jury subsequently found a verdict of guilty as indicted 
on the count of the indictment designated as A on the margin 
thereof, and recommended him to the extreme mercy of the 
court. 

On June 7, 1897, the court sentenced the defendant in open 
court to pay a fine of $1,000 to the commonwealth, the costs of 
prosecution, and undergo imprisonment in the Western Peni- 
tentiary of Pennsylvania for a period of two years. Defendant 
appealed. 

ErrorB assigned were (1) To the proceedings taken on the 



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COMMONWEALTH v. HOUSE. 101 

1897.] Assignment of Errors— Arguments. 

afternoon of May 6, 1897, in the abetence of the defendant and 
his counsel, and without any notice to them, or any of them, 
after the jury had been charged by the court, and had remained 
out, engaged in their deliberations, about twenty-four houi-s, 
and the time when, and the circumstances under which, they 
were taken, are set forth in the following certificate of Hon. 
John M. Kennedy, presiding judge, before whom the case was 
tried, and the said proceedings were taken, to wit : reciting said 
proceedings. (2) In overruling defendant's objections to the 
testimony of L. W. Mendenhall, which testimony, in so far as 
it is alleged to be injurious to the defendant, together with the 
objections thereto, was as follows, to wit: reciting same. (3) In 
refusing to discharge the jury on the afternoon of May 6, 1897, 
upon receiving their communication that it was impossible for 
them to agree, and in what was said to them in connection with 
said refusal, to wit : reciting same. (4) In entering judgment 
upon the verdict, which verdict was manifestly secured by the 
instructions hereinbefore set forth and referred to in the third 
assignment of error. 

Choi. A. O'Brien and 2>. F. Patterson^ with them Chas. W. 
Ashley^ for appellant — A very grave question is raised by this 
record as to the constitutional rights of the defendant, and the 
proper method of procedure in criminal trials. The decision of 
this court on the matters here involved will certainly establish 
an important precedent for the guidance of courts of criminal 
jurisdiction in their interpretation of the meaning of the 10th 
section of the bill of rights, as actually applied in the trial of 
causes. 

In Prine v. Com., 18 Pa. 108, it was held that a defendant 
could not waive his right to be present at his trial for felony. 
But subsequently, in the case of Lynch v. Com., 88 Pa. 189, it 
was decided that a defendant, on trial for larceny, might waive 
his right to be present on the taking of the verdict, by volun- 
tarily absenting himself, being out on bail. Whatever distinc- 
tion may exist as to the defendant's right of waiver in felony 
and misdemeanor, there certainly is no longer any doubt of the 
defendant's right to be present and to be heard by himself and 
his counsel at all stages of his trial whether for felony or mis 
demeiinor : Stewart v. Com., 117 Pa. 878. 



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102 COMMONWEALTH v. HOUSE. 

Arguments. [6 Pa. Supedor Ct. 

The conduct of the learned trial judge was a denial of the 
constitutional right of the defendant, which he had not waived, 
but vigorously and consistently asserted and maintained. There 
is a striking uniformity of decision in all the states, that it is a 
fatal error in a criminal cause for the trial judge to hold private 
communications with the jury concerning the case submitted to 
their determination : Wade v. The State, 12 Ga. 25 ; McNeil v. 
The State, 47 Ala. 498 ; Kirk v. The State, 14 Ohio, 511 ; Col- 
lins V. The State, 33 Ala. 434; Thompson and Merriam on 
Juries, sec. 355. 

The rigid rule contended for here extends not only to crim- 
inal cases, but has been almost universally applied to civil cases 
as well. Notable among these is Sargent v. Roberts, 18 Mass. 
337 ; Plunket v. Appleton, 41 N. Y. Superior Ct. 159 ; O'Brien 
v. Ins. Co., 38 N. Y. Superior Ct. 482; Merrill v. Nary, 92 
Mass. 416 ; Bunn v. Croul, 10 Johns, 239; Bank v. Mix, 51 N. 
Y. 558; "O'Connor v. Guthrie, 11 Iowa, 80. 

With respect to the second assignment of error, it seems clear 
that the testimony of House as taken at the former trial could 
not be offered against him at this trial under the provisions of 
sec, 3 of the Act of May 23, 1887, P. L. 158. 

The commonwealth were allowed to call the stenographer who 
jeported the former trial, and were allowed to pix>ve by him that 
House made certain admissions, at the former trial, which be 
reduced to writing at the time, and he was allowed to read to 
the jury such portions of the writing as counsel for the prose- 
cution chose to select. This procedure amounted to the actual 
introduction of selected portions of House's testimony at the 
former trial, which is even more objectionable than the admis^ 
sion of his entire testimony; 

We ask the court to consider the point made at the former 
hearing of this case (3 Pa. Superior Ct. 304), that the testimony 
offered was wholly irrevelaut to this issue to prove that House 
received interest on the quarterly balance on Major Moreland's 
bank accounts. Wei again urge upon the consideration of the 
court that such receipt of interest on public funds improperly 
continued on deposit, does not tend in the slightest degree to 
establish the charge that House aided Moreland in the embezzle- 
ment of public funds ; and, moreover, that the admission of such 
evidence renders him liable to be convicted of two distinct 
offenses for the same act. 



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COMMONWEALTH c. HOUSE. 108 

1897.] Argumente. 

John C. Haymaker^ distaict attorney, with him John S. Robb^ 
William Yost and C. A. Fagan^ for appellee. — As to the first 
assignment of error the principle to be deduced from the cases 
seems to be a sound one. If the jury, after an adjournment, 
put a question, respecting the facts of the case, to the court, it 
will be irregular to state the evideiice relating to it ; but if they 
desire instructions upon a mere question of law, that may be 
answered. It should undoubtedly be answered in such way that 
the parties may have an opportunity to have it corrected, if 
there is any error in the answer, and in this way all the rights 
of both parties are secured as effectually as if the answer was 
given in open court: Thayer v. Van Vleet, 5 Johns, 111 ; Bunn 
V. Croul, 10 Johns, 239 ; Allen v. Aldrich, 29 N. H. 66 ; Gold- 
smith V. Solomons, 2 Strobh. L. 296 ; Thompson & Merriam on 
Juries, 423 ; School District v. Bragdon, 23 N. H. 516 ; Shapley 
V. White, 6 N. H. 172 ; Davis v. State, 14 Ind. 358 ; State v. 
Dudoussat, 47 La. Ann. 977. 

The case of Lynch v. Com., 88 Pa. 189 settled the right of 
the court, in a larceny case, to take, the verdict of the jury in 
the absence of the defendant; and also to pronounce judgment 
upon him, while absent. 

On this point the following cases were also cited : Meece v. 
Com., 78 Ky. 586 ; State v. Pike, 65 Maine, 111 ; Gandolfo 
V. Ohio, 11 0. 114 ; Com. v. Kelley, 165 Mass. 175 ; Cooper v. 
Morris, 48 N. J. L. 607. 

The question embraced in the second assignment of error 
appears to be within the limits of legitimate cross-examination 
of a party, as in(ttcated in the character of the issue:. Com. y. 
House, 3 Pa. Superior Ct. 304. The identical question has 
been ruled by the Supreme Court in Com. v. Doughty, 139 Paw 



There was no errpr in what was said in connection with the 
refusal to discharge the jury : Allen v* United States, 164 U. S. 
492. 

In urging a jury to agree it is not error to comment on the 
expense of the trial and to set forth that the public interests 
would be served by an agreement : State v. Gorham, 31 Atl,. 
845 ; Johnson v. State, 60 Ark. 45 ; State v. Garrett, 57 Kansas, 
132 ; Jackson v. State, 91 Wis. 253, 47 La. Ann. 977 ; Cox v. 
Highley, 100 Pa. 249. 



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104 COMMONWEALTH v. HOUSE. 

Opinion of the Couit. [6 Pa. Saperior Ct 

Opinion by Rice, P. J., December 18, 1897 : 

The general proposition that the testimony of a defendant 
cannot be used against him on a second trial of the same indict- 
ment, if he elects not to go upon the witness stand, is not 
strongly urged in the present case, and is not well founded 
upon principle or authority. He cannot be compelled to give 
evidence against himself, but if he gives it voluntarily he can- 
not object to having it used against him. His constitutional 
privilege, as far as that testimony is concerned, is waived, and 
cannot be reclaimed in any subsequent trial of the same indict- 
ment. As was said in Com. v. Doughty, 139 Pa. 888, his ad- 
missions or declarati6ns would be evidence against him ; and if 
so why not his testimony under oath ? 

Nor, where the commonwealth desires simply to prove certain 
admissions of a defendant made upon a former trial, is it neces- 
sary to put in evidence his whole testimony ; but if anything is 
omitted which may tend to explain or qualify those admissions 
the defendant may call it out upon cross-examination. See 
Calhoun v. Hays, 8 W. «& S. 127 ; Thomas v. Miller, 151 Pa. 482. 
This was the course pursued in the present case, and it is not 
claimed that the jury did not have before them all of the testi- 
mony, favorable to the defendant, which he gave upon the for- 
mer trial concerning the subject-matter of the alleged admissions. 

The method of proving by the official reporter what was tes- 
tified to was proper and in accordance with well settled practice : 
Wh. Cr. Ev., sec. 231 ; and this too although tlie stenographer 
did not recollect the testimony independently of his notes: 
Rhine v. Robinson, 27 Pa. 80; Brown v. Com., 78 Pa. 821. 

Some of the admissions put in evidence by the commonwealth 
were elicited upon the cross-examination of the defendant, and 
it is argued that proof of them was not admissible upon the 
present trial, (1) because they were irrelevant; (2) because they 
were made in answer to questions which were not within the 
legitimate scope of cross-examination, and were objected to at 
the time. Both of these objections were raised when the oase 
was here before, and were overruled : 8 Pa. Superior Ct. 804. 
At the earnest request of the defendant's counsel we have care- 
fully reconsidered the ruling, and see no reason for coming to 
a different conclusion. Were the facts testified to relevant to 
the issue? Was the cross-examination proper, or was it an 



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COMMONWEALTH r. HOUSE. 105 

1897.] Opinion of tiie Court. 

infringement of the defendant's constitutional privilege not to 
give evidence against himself? In determining the latter ques- 
tion the case must be looked at as it was presented when the 
testimony was given. The defendant has no right to have that 
question reconsidered in any other light. This requires a brief 
review of what preceded the defendant's cross-examination. 

W. C. Moreland was city attorney, and the defendant was 
his regularly appointed assistant. It was the defendant's duty 
to collect assessments for gi-ading, paving, curbing and sewei-^ 
ing, and assessments of benefits upon the opening of streets and 
the like, and to pay the money so collected to the city treasurer, 
or to parties awarded damages in the proceedings referred to. 
The money thus collected, or at least a large portion of it, was 
deposited by him in four banks to the credit of the personal 
account of Moreland. As a general rule, payments to the city 
treasurer and other parties were made by checks drawn by 
Moreland to the order of the defendant The defendant had 
charge of, or access to, the bank books, and at all times had full 
knowledge of the condition of the accounts. The defendant was 
jointly indicted with Moreland under the 65th section of the Act 
of March 31, 1860, P. L. 400. Moreland was charged with having 
converted over $26,000 of the public funds to his own use, and 
with being a defaulter as to the same, and the defendant w.is 
charged with aiding and abetting and being accessory to the act 
of Moreland. Moreland pleaded guilty, and on the first trial of 
the defendant, as well as upon his second trial the commonwealth 
proved, amongst other things, that the defendant made fake rep- 
resentations to the city ofBcers, and to others entitled to receive 
the money as to the reception of the money and as to the amount 
on hand that could be paid into the city treasury. Persons to 
whom damages had been awarded in street opening cases and the 
like were put off with the false representation that the benefit 
assessments had not been paid in, and proof was given of false 
statements made to the city controller as to the amount on hand 
that could be paid into the city treasuiy. We need not recite the 
evidence upon this subject in detail. It is sufficient for present 
purposes to say that it was ample, if unexplained, to warrant an 
inference of fraudulent intent. On the first trial the defendant 
attempted to meet this evidence either by denial, or by explana- 
tion to the effecti that, although he might have made mistakes, 



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106 COMMONWEALTH r: HOUSR. 

Opinion of the Court. [6 Pa. Superior Gt. 

yet, if any of his statements were untrue, they were not mad^ 
with intention to mislead or deceive. To lend plausibility to 
this theory he asserted directly, and by inference, that he was 
a mere subordinate, acting simply for his superior officer i|i 
depositing and paying out the money, and that he had no perr 
sonal interest or motive for deceiving any one with regard t^ 
the reception of the money, or the amount on hand. There can 
be no question that the representations made by him were effi[- 
cient in the consummation of the embezzlement charged in the 
indictment, and it was of the highest importance to him to con- 
vince the jury that they were innocently made. His assertion 
that he had no interested motive for making false statements^ 
if believed by the jury, would have been strongly corroborative 
of his other assertion that he had not intentionally misreprer 
sented the facts. It, therefore, was competent for tiie district 
attorney to cross-examine him upon this subject. ' This elicited 
the admission, that, at the time when tiie defendant was mak- 
ing these statements to the city controller and others as au 
excuse for not paying over these public moneys, he, personally, 
was receiving quarterly interest on the same, from the banks in 
which they were deposited. This admission strongly tended^ 
not only to rebut the theory of mistake set up in his direct 
examination and thus to discredit him as a witness, but also to 
show that he had a personal interest to be served in making the 
false and misleading statements, and in withholding the money. 
This was pertinent cross-examination : Fulmei: v. Com., 97 Pa» 
503. 

Incidentally, the defendant's admission tended to show a vior 
lation of the 63d section of the act of 1860 which prohibits offi*- 
cers from entering into any contract or agreement with any 
bank by which such officer is to derive any benefit, gain or 
advantage from the deposit with such bank of any money which 
may be in his possession or under his control by virtue of his 
office. This is a distinct and independent offense, but it does 
not necessarily follow that proof of it was inadmissible on the 
trial of the indictment framed under the 65th section. It might, 
or it might not be, according to the circumstances of the partic- 
ular case on trial. Generally, evidence of the defendant's com- 
mission of another distinct and independent crime cannot be 
received for the purpose of proving his commission of the 



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COMMON WKALTII v, HOUSE. Itf? 

1697.] Opinion of tlie Court. 

ofifense for which he is being tried. Yet under some circum- 
stances such evidence may be given. ** Thus it may be to es- 
tablish identity ; to show the act charged was intentional and 
wilful, not accidental; to prove motive ; to show guilty knowl- 
edge and purpose, and to rebut any inference of mistake ; in 
case of death by poison, to prove the defendant knew the sub- 
stance administered to be poison ; to show him to be one of an 
oi*ganization banded together to commit crimes of the kind 
charged ; and to connect the other offense with the one charged, 
as part of the same transaction : " Goersen v. Com., 99 Pa. 388 ^ 
Wh. Cr. Ev. sec. 53; Com. v. Johnson, 133 Pa. 293 ; Com. v. 
Tadrick, 1 Pa. Superior Ct 566; Com. v. Bell, 166 Pa. 405; 
Com. V. Cover, 6 Cent. Rep. 585 ; Turner v. Com., 86 Pa. 54 ; 
Ferrigan v. Com., 44 Pa. 386 ; Kramer v. Com., 87 Pa. 299. 
If, for example, one indicted for breaking and entering a dwelling 
house with intent to commit the felony of larceny should admit 
the breaking but should deny the intent, I take it that upon 
cross-examination he could be asked if he did not commit the 
larceny. The cross-examination in the present case was as per- 
tinent to the matters testified to in chief as would be the cross- 
examination in the case supposed. 

It was earnestly argued, when the case was here before that 
the court erred in refusing the request of the defendant's coun- 
sel to instruct him that it was his privilege to decline to answer 
the questions, if his answers might tend to criminate him. The 
court committed no error in refusing this request. The defend- 
ant is a member of the bar, and must be presumed to have 
known his rights. The privilege was not claimed by him but 
by his counsel for him. But we do not put our ruling upon 
that ground. We are of opinion, that, even if the defendant 
had personally asked to be excused from answering the ques- 
tions, the court would have been justified in overruling hiai 
request. A defjgndant in a criminal case cannot be compelled 
to testify, and under our statute no inference can be drawn from, 
nor comment be made on, his failure to do so. But by con-' 
senting to take the stand, and swearing to tell the truth and 
the whole truth he waives liis cwwtitutional privilege, and may 
be cross-examined in the same manner as any other witness. 
There is this difference, however, between an ordinary witness, 
and a defendant testifying in his own behalf ; the former goes* 



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108 COMMONWEALTH v. HOUSE. 

Optnion of the Court. [6 Pa. Superior Ct 

upon the stand by compulsion, the latter voluntarily. Having 
waived his constitutional privilege to keep silent, he cannot give 
testimony which makes in his favor, and then object to legiti- 
mate cross-examination, upon the ground that his answers will 
tend to criminate him. This doctrine is supported by the great 
weight of authority : Wharton's Cr. Ev. sees. 432, 470 ; State 
V. Witham, 72 Me. 531 ; State v. Thomas, 98 N. Carolina, 699 ; 
People V. Connors, 50 N. Y. 240 ; Com. v. Nichols, 114 Mass. 
285 ; Com. v. ToUiver, 119 Mass. 812. See also 9 Cr. L. Maga- 
zine, 306 ; State v. Ober, 52 N. H. 459. 

The power of cross-examination has been justly said to be 
one of the principal, as it certainly is one of the most efficacious, 
tests, which the law has devised for the discovery of truth. It 
is not easy for a witness, who is subjected to this test to impose 
on court or jury; for however artful the fabrication of false- 
hood may be, it cannot embrace all the circumstances to which 
a cross-examination may be extended: 1 Gr. Ev. sec. 446. 
There is good reason for not making the test less rigid where 
the witness is a deeply intei'ested party. The extent to which 
a defendant in a criminal case may be subjected to this test is 
a question upon which the authorities do not wholly agree. In 
some of the states of the Union it is held that he may be 
cross-examined as to the whole case ; in others that the cross- 
examination should be confined to facts and circumstances con- 
nected with matters stated in the direct^xamination. In either 
view of the right of cross-examination, the court did not trans- 
gress the rules of evidence, nor violate the defendant's constitu- 
tional right, by holding, that the questions were pertinent to 
the matters stated in his direct examination and that it was his 
duty to answer them. The facts admitted were pertinent to 
the issue, and the admissions were not obtained by illegal com- 
pulsion. 

The second assignment of error is overruled. 

Plainly stated, tiie question raised by the first assignment of 
error is, whether the defendant in an indictment for a mis- 
demeanor can be denied the right to be present when the court 
charges the jury in his case, and the conviction be sustained ? 
We use the word " denied '* advisedly, for while the defendant 
was not forcibly excluded from the court room, and while there 
is not the slightest evidence or intimation that the learned and 



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COMMONWEALTH v. HOUSE. 109 

1897.] Opinion of the Court. 

impartial trial judge intended to deprive him of any legal right, 
3'et the practical effect of his calling the jury into the court 
room^ after the court had regularly adjourned for the day and 
then advising them as to their duties as jurors, and instructing 
them as to the law of the case, in the absence of the defendant 
and his counsel, and without any effort to notify them to be 
present was to deny him the right to be present. He was not 
bound to remain in the court room after the court had adjourned 
for the day. He had a right to presume that no further instruc- 
tions would be given to the jury, either there or elsewhere, 
during the adjournment. No waiver or consent can be implied 
from his absence under the circumstances stated in the bill of 
exceptions. He must be considered ^^ as standing upon all his 
legal rights and waiving none of them ; " and one of them was 
the right to be present either in person or by counsel when his 
case was being tried. We cannot conceive of a trial for a 
crime resulting in forfeiture of the citizen's liberty where the 
law, or the court in the administration of it, can deny him the 
privilege of being present. The right is inherent in the very 
nature of the proceeding, and, moreover, is secured to him in 
the fundamental law. "It is his right to have everybody know 
for what he \& tried, and why he is condemned, and to witness 
the tone, manner, and temper of his prosecution, that he may 
be subjected to no other influence than truth and law ; nor is 
he bound at all to trust the court or the judge in this matter. 
It is his great privilege, and no power can impair it: " Kirk v. 
State, 14 Oh. 511. Although the accused may waive the right 
to be present in misdemeanors, yet the court cannot deprive 
him of it. Nor can its action in doing so (however well intended 
and however free from arbitrariness) be justified by balancing 
probabilities as to the injury done to him in the particular case. 
'' In all criminal prosecutions, the accused hath a right to be 
heard by himself and his counsel, to demand the nature and 
cause of the accusation agamst him, to meet the witnesses face 
to face " is the language of our Declaration of Rights, and by 
fair implication it secures the right to be present, not only when 
the witnesses are testifying, but ako when the jury are being 
instructed as to their duties, and as to the facts and law of the 
case. For, how can he be heard, if neither he nor his counsel 
has an opportunity to be present? To deprive him of this priv< 



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110 COMMONWEALTH v, HOUSE. 

Opinion of the Court. [6 Pa. Superior Ct. 

ilege is, of itself, error, if the instructions, although free from 
en'or, might have influenced the verdict against hira. Such 
error cannot be wholly cured by putting the instructions in 
wi'iting after the rendition of verdict and allowing the defend- 
ant an exception ; for, if he or his counsel had been present, 
explanatory instructions might have been asked and given, 
which, for aught we know, might have produced a dififerent 
result. This consideration, alone, shows the importance of the 
right secured to the accused, if, indeed, argument be needed 
to prove it. 

It seems hardly necessarj'^ to say, that instructions given to a 
jiiry after they have retired to deliberate upon their verdict, of 
the character of those embraced in the bill of exceptions, are as 
much a part of the trial as the original instructions. The rea- 
sons why the accused should have the privilege of being present 
are as vital in the former case as in the latter. As was said in a 
New York case, where this question was considered, they may 
"influence the verdict quite as much, if not more, than the in- 
structions given before the jury retired : " Maurer v. People, 
43 N. Y. 1. We may fairly assume that they had an influence 
upon the verdict in the present case ; for, although the jury had 
been out for twenty-four hours, they agreed upon a verdict 
within an hour after the additional instructions were given. 
We are not to be understood as intimating, even, that the pre- 
siding judge brought any improper influence to bear upon the 
jury, or that the instructions were erroneous in themselves. 
The question does not turn upon the legal correctness or in- 
correctness of the instructions, but upon the right of the trial 
judge, during the iidjoumment of court, in the absence of the 
accused and his counsel, and without attempt to notify either 
of them to be present, to give any instiiictions that might in- 
fluence the juiy to bring in a verdict against him. 

So important to the accused is this right to be present when 
his case is being tried, that it was at one time held that Beitiier 
he nor his counsel could waive it in any feloi^ case. " It is 
undoubtedly error," said Chief Justice Gibson, " to try a per- 
son for felony in his absence, even wifli his consent. It would 
be contrary to the dictates of bmnanity to let him waive the 
advantage which a view of bur sad plight might give him by 
inclining the hearts of the jurors to listen to his defense with 



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COMMONWEALTH v. HOUSE. Ill 

1S97.] Opinion of the Court. 

indulgence. Never has there heretofore been a prisoner tried 
for felony in his absence : " Prine v. Com., 18 Pa. 103. The 
Supreme Court modified this ruling, so far as it applied to the 
felony of larceny, to the extent of holding that *' voluntary ab- 
sence when the verdict is received is an error of which he can- 
not complain:" Lynch v. Com., 88 Pa. 189. Possibly there 
should be the same modification of the rule laid down by Chief 
Justice Gibson in other felonies triable in the quarter sessions. 
Be that as it may, in this case the defendant's absence was not 
voluntary. He consented to nothing and waived no right ; and 
no Pennsylvania case has held, or, as we firmly believe, ever 
will hold, that a defendant, whether indicted for a felony or a 
misdemeanor, can be tried in his absence, unless he has ex- 
pressly or impliedly waived the right to be present. 

Unquestionably the court has discretionary power, of its own 
motion, to recall the jury and give them fuither instructions, or 
%vithdraw or correct erroneous instructions. As far as we are 
informed the usage of the courts of the commonwealth has been 
to give such additional instructions only in open court, and this 
is the safer and the better practice. At all events this much is 
established by the overwhelming weight of authority that it is 
reversible error to give them after the adjournment of court in 
the absence and without the knowledge of the parties or their 
counsel : McNeil v. State, 47 Ala. 498 ; Collins v. State, 38 Ala. 
434 ; Wade v. State, 12 Ga. 25 ; Fisher v. People, 23 111. 283 ; 
Crabtiree v. Hagenbaugh, 23 111. 349 ; Fish v. Smith, 12 Ind. 
563 ; O'Connor v. Guthrie, 11 Iowa, 80 ; Sargent v. Roberts, 18 
Mass. 337 ; Merrill v. Nary, 92 Mass. 416 ; Read v. Cambridge, 
124 Mass. 567 ; Benson v. Clark, 1 Cow. 258 ; Moody v. Pome- 
roy, 4 Den. 115 ; Taylor v. Betaford, 13 Johns. 487; Bank v. 
Mix, 51 N. Y. 558 ; People v. Maurer, 43 N. Y. 1 ; Hoberg v. 
State, 3 Minn. 262 ; Kirk v. State, 14 Ohio, 511 ; State v. Pat- 
terson, 45 Vt. 308. 

*• Against this weight of authority " (quoting from the opin- 
ion of Mr. Justice Gbay in Read v. Cambridge, supra), " the 
only cases brought to our notice which countenance a different 
rule are two in New Hampshire and one in S. Carolina, And 
in the latter the point adjudged related only to insti-uctions as 
to the form of the verdict given by the judge to the foreman in 
open court; and the criticism upon the judgment of this court 



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X12 COMMONWEALTH v. HOUSE. 

Opinion (»f the Court. [6 Pa. Superior Ct. 

in Sargent v. Roberts, (18 Mass. 337,) was based upon the sin- 
gular theory that the intercourse between the jury and the bench 
is so confidential that often communications from the jury ought 
not to be disclosed to the bar/' The New Hampshire decisions 
called to our attention relate only to the practice in civil cases 
and do not discuss the right of the accused in criminal prosecu- 
tions. Moreover, if additional instructions are given during the 
recess the precaution is taken to put them in writing, and to re- 
quire the jury to return them with their verdict ; so that no ques- 
tion can ever arise as to what the instructions were. In Meece v. 
Com., 78 Ky. 586, the additional instructions were given in open 
court ; they were beneficial to the defendant ; and his counsel was 
present. In Davis v. State, 14 Ind. 358, the defendant had notice 
that the court would meet at the ringing of the bell to receive the 
verdict All that was decided in State v. Pike, 65 Me. Ill was, 
tliat " there is no rule of law requiring the court to send for coun- 
sel who choose to absent themselves while their cases are being 
considered by the jury," To the same eflEect is Com. v. Kelley, 
165 Ma3S. 175. ^^ In contemplation of law the parties and their 
counsel remain in court until a verdict lias been rendered, or 
the jury discharged from rendering one : " Cooper v. Morris, 
48 N. J. L. 607. Let this be gmnted ; but surely it cannot be 
contended, that it is their duty to remain in the court room, after 
the court has been regularly adjourned for the day. None of 
these cases sustain the contention of the commonwealth in the 
present case. 

The assignment of error under consideration is not based on 
a ^' mere technical nicety," but raises a question of substantial 
right, as well as a question of practice of the highest importance 
in the administration of criminal justice. If one instruction 
may be given in the absence of the accused and without his 
knowledge, there is no good reason why the whole of the in- 
structions may not be given in his absence and without his 
knowledge. So also, if, after the regular adjournment of the 
court, in the absence, and without the knowledge, of the ac- 
cused, or of his counsel, the trial judge may call the jury into 
the court room and there instruct them as to the law of the 
case, and as to the bearing of the evidence, we see no reason 
why he may not call them to his chambers, or go to their room 
for the same purpose. Conceding that the convenience of 



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COMMONWEALTH v. HOUSE. 118 

1897.] Opinion of the Court. 

jurors would sometimes be subserved if the trial judge had such 
power, and also that the power would be lodged in hands highly- 
responsible for the exercise of it, nevertheless, it would be liable 
to abuse. It is better that jurors, in exceptional cases, suffer 
some slight inconvenience than that countenance be given to a 
practice, which, followed to its logical results, would destroy 
one of the safeguai-ds of the accused, which reason and experi- 
ence combine to show is of the highest value. It has been well 
said of another constitutional guaranty and may be said as ap- 
propriately here: "It is the capability of abuse and not the 
probability of it, which is regarded in judging of the reasons 
which lie at the foundation, and guide in the interpretation of 
constitutional restrictions : " Emery's Case, 107 Mass. 172. 
" There is no more sacred duty of a court than, in a case prop- 
erly before it, to maintain unimpah'ed those securities for the 
personal rights of the individual which have received for ages 
the sanction of the jurist and the statesman ; and in such cases 
no narrow or illiberal construction should be given to the words 
of the fundamental law in which they are embodied : " Mr. Jus- 
tice MiLLEB in Ex parte Lange, 85 U. S. 163. 

We do not think we have overestimated the importance of the 
question ; for we are firmly convinced that to hold the error 
complained of to be harmless would be, virtually, to deny the 
right of the accused to be present at an important part of his 
trial, and would establish a dangerous precedent, contrary to 
the just and humane principles of the fundamental law, and in- 
consistent with orderly procedure, and long established usage 
as shown by the adjudged cases. It is better that this case 
should be tried a third time than that such a precedent should 
be established. 

The judgment is reversed and a venire facias de novo awarded. 
Vol. VI— 8 



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114 ANDERSON v. McMICHAEL. 

Syllabus— Arguments. [6 Pa. Superior Ct. 



H. P. Anderson, Appellant, ». Cecil McMichael and Wil- 
liam Snyder. 

Appeals— Interlocutory order— Praciice, Superior Court. 

No appeal lies from an order of the common pleas refusing a rule to 
show cause why an appeal from a magistrate should not be dismissed, 
appellants having failed to make an affidavit required by the Act of July 14, 
1897, P. L. 271, provided that the proper affidavit is made within fifteen 
days. Such order is interlocutory and is neither a final judgment nor an 
order in the nature thereof, and an independent appeal does not lie. Tost 
V. Davison, 6 Pa. Superior Ct. 469, followed. 

Argued Nov. 19, 1897. Appeal, No. 164, Oct. T., 1897, by 
plaintiff, from order of C. P. Chester Co., discharging rale to 
show cause why an appeal from a magistrate should not be dis- 
missed. Before Rice, P. J., Wiokham, Beaver, Reedeb, 
Orlady, Smith and Porter, JJ. Appeal quashed. 

Appeal from judgment of magistmte. 

It appears from the record that judgment was rendered by a 
magistrate in favor of the plaintiff for $19.75. On July 26, 
1897, appeal filed and entered. On September 27, 1897, a rule 
was granted to show cause why the appeal should not be dis- 
missed for the reason that defendant had failed to make the 
affidavit required by the Act of July 14, 1897, P. L. 271. On 
October 11, 1897, the court dismissed the rule under considem- 
tion, provided the proper affidavit is made within fifteen days 
from date. Plaintiff appealed. 

Error asHgned was to the order of the court, dismissing the 
rule to show cause why appeal should not be dismissed, based 
on the admitted fact that the appellant did not make the affi- 
davit required by law. 

W. iS. ffarris^ for appellant, cited Act of July 14, 1897, 
P. L. 271, Cressman v. Bossing, 9 Atl. 191, and Wilson v. Kelly, 
81 Pa. 411. 

Thomas W. Pierce^ for appellee. 

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ANDERSON v, MoMICHAEL. 115 

1897.] Opinion of Oie Court. 

Pbr Cubiam, December IS, 1897 : 

The question raised by the motion to quash is ruled by our 
decision in Yost v. Davison, 6 Pa. Superior Ct, 469, and the 
cases there cited, and needs no discussion. The order appealed 
from is neither a final judgment nor an order in the nature of a 
final judgment, but is interlocutory, and from it an independent 
appeal does not lie. 

The appeal is quashed at the cost of the appellant and the 
i:ecord remitted with a procedendo. 



James W. Cooke and Lydia S. Cooke, Trustee, trading 
as Cooke & Co., v. J. Edward Addicks, Appellant. 

Lex loci — Lex fort — Promissory note — Irregular itidorsement. 
The right to introduce proof dehors the instrument for the purpose of 
showing what in fact the contract was, is an essential part of the contract 
itself, and is not a mere incident to the remedy. Such right being secured 
to a New Jersey conti'act the lex loci goyems and not the lex foil. 

An irregular indorsement of a promissory note executed in New Jersey 
may in a suit on said note in Pennsylvania be shown to be a contract of 
surety in accoi*dance with lex loci. 

Argued Oct 12, 1897. Appeal, No. 89, Oct. T., 1897, by de- 
fendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1895, 
No. 706, overruling demurrer to statement. Before Rice, P. J., 
WiCKHAM, Bbavee, Rebdbb, Smith and Portee, JJ. Af- 
firmed. 

Assumpsit on a promissory note. 

It appeared from the record that plaintiffs sued upon a note 
made by the Staten Island Terra Cotta Lumber Co. to them, 
and irregularly indorsed by the defendant, J. E. Addicks, and 
subsequently indorsed by the plaintiffs. 

In the statement it was alleged by the plaintiffs that defend- 
ant did, in consideration of forbearance on their part, agree and 
undertake to become personally liable to them as surety for said 
note and that in pursuance of this agreement and understand- 
ing the note was executed, indorsed by defendant, and deliv- 
ered to the plaintiffs in the state of New Jersey, where it was 



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116 COOKE u, ADDICKS. 

Statement of Facta— Arguments. [6 Pa. Superior Ct. 

to be payable, and that the application of the law of the state of 
New Jersey, under the decisions of the courts thereof to the facts 
as therein stated, made the defendant liable on the note to the 
plaintiffs as surety. 

There was no evidence of any agreement on the part of the 
defendant by any writing signed by him saving and excepting 
the note. 

Defendant demurred on the ground that the action could not 
be brought in Pennsylvania, because of the first section of the 
Act of AprU 26, 1855, P. L. 308. 

Judgment for plaintiffs on demurrer. Damages assessed at 
9^16.38. Defendant appealed. 

jError asngned was overruling defendant's demurrer. 

0, Berkeley Taylor^ for appellant. — This action cannot be sus- 
tained under the statute of frauds in Pennsylvania: Act of 
April 26, 1855, P. L. 308 ; Schafer v. Bank, 59 Pa. 144. 

It is well settled that although the lex loci contractus gov- 
erns the construction of a contract, the lex fori governs the 
remedy, both as to the bringing of a suit, and as to the evidence 
to be produced : Leroux v. Brown, 12 Common Bench, 801. 

Although this case has been criticised it has been followed 
steadily in England: Williams v. Wheeler, 8 C. B. N. S. 299; 
(Jibson V. Holland, L. R. 1, C. P. 1. Finally in 1879, in Bri- 
tain V. Rossiter, 11 L. R. Q. B. D. 124 ; Downer v. CheselMX)ugh, 
36 Conn. 39; Pritchard v. Norton, 106 U. S. 124. 

H. U. Oarsed^ for appellees. — The plaintiff submits, there- 
fore, that the promise of the defendant to pay according to the 
terms of the note was a contract made in New Jersey to be per- 
formed in that state, and of course is governed by the law 
of New Jersey, where the rule established in Pennsylvania, in 
Schafer v. Bank, 59 Pa. 144, not only is not recognized, but di- 
rectly the opposite rule is established. 

In the leading case of Chaddock v. Vanness, 35 N. J. L. 517, 
where the facts were identical with those of the case at bar, a 
rule directly opposite of the Pennsylvania rule was adopted. 

So far as the statute of frauds is concerned, it is of no conse- 
quence whether the defendant is regarded as an indorser, guar- 
antor or maker. 



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COOKE V. ADDICKS. 117 

1897.] Arguments — Opinion of the Court. 

The doctrine of this case was reasserted in Haydon v. Wel- 
don, 43 N. J. Law, 128, and in Johnson v. Ramsey, 48 N. J. 
Law, 279, and again in Building, etc., Society v. Leeds, 50 
N. J. Law, 899, where the court, by Mr. Chief Justice Bbas- 
LBr, said : " Over sixteen years ago this court, in the case of 
Chaddock v. Vanness, 85 N. J. L. 517, decided that the signar 
ture of a third person on the back of a negotiable note, before 
it was put in circulation by the maker, neither expressed nor 
implied, by its own intrinsic signification, any contract whatever 
on the part of such indorsers." 

The right of the plaintiflE to show the real nature and exact 
terms of the defendant's contract is not matter of remedy and 
governed by the law of the forum, but is an essential part of 
the contract itself, and controlled by the law of the place where 
the contract was made : Forepaugh v. Railroad Co., 128 Pa. 217 ; 
Coup V. Railroad Co., 56 Mich. Ill ; Tenant v. Tenant, 110 
Pa. 478 ; Sea Grove Building Assn. v. Stockton, 148 Pa. 146. 

The precise question at issue in the case at bar was deter- 
mined in Baxter National Bank v. Talbot, 154 Mass. 218, where 
the principle upon which reliance is here placed was laid down 
and the leading case of Forepaugh v. Railroad Co., 128 Pa. 
217, was relied upon. 

Opinion by Pobteb, J., November 19, 1897 : 
This is an appeal from the order of the court below overrul- 
ing a demurrer to the plaintiflTs statement of claim. The prom- 
issory note set forth in the statement was made in New Jersey, 
by a New Jersey corporation. It was indorsed by the defend- 
ant in New Jersey and was to be paid in that state. Nothing 
is lacking to make it a New Jersey contract. The defendant 
irregularly indorsed the note by placing his signature above that 
of the payee. In respect thereto the plaintiffs aver in their 
statement that ^ when the said defendant indorsed the note he 
did .... promise and agree to become and did become surety 
to the plaintiffs for the payment of the said note, and as evidence 
of and in pursuance of said agreement, did so indorse the note." 
By evidence dehors the writing the plaintiffs thus propose to 
prove that the irregular indorsement was in fact agreed to be a 
contract of suretyship. This under the law of New Jersey, is 
clearly admissible, and, under the law of Pennsylvania, as clearly 



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118 COOKE V. ADDICKS. 

Opinion of the Couit. [6 Pa. Superior Cfc. 

inadmissible. The contract was made in New Jersey. It is 
sought to be enforced in Pennsylvania. If lex loci contractus 
is applicable, the plaintiffs are entitled to judgment on the 
demurrer. If lex fori governs, the court below has erred. We 
are of opinion that the former applies and hold that the right to 
introduce the proof dehors the . instrument for the purpose of 
showing what in fact the contract was, is an essential part of 
the contract itself, and is not a mere incident to the remedy. 
It was a right given by the law of the place of the making of 
the contract, in contemplation of which the parties must be held 
to have contracted. 

In Forepaugh v. D., L. & W. R. R., 128 Pa. 217, Tenant v. 
Tenant, 110 Pa. 478, and Sea Grove Association v. Stockton, 
148 Pa. 146, the Supreme Court has enforced the obligation of 
contracts made in other states containing provisions quite as 
much at variance with the policy of the law of Pennsylvania as 
those in the present case. These cases, while not directly in 
point, substantially sustain the view of the law we take in this 
case. They are fortified by the case of Baxter National Bank v. 
Talbot, 154 Mass. 213, wherein a similar question was discussed 
at length and determined, — the case of Forepaugh v. D., L. & 
W. R. R., supra, and many other authorities, being cited as 
authority. 

We therefore hold that the plaintiffs are entitled to the en- 
forcement of their contract as set forth in their statement of 
claim, and that the judgment on the demurrer must be sustained. 

Judgment affirmed. 



Samuel Russell v. The Spring City Glass Works, Liniited, 

Appellant. 

JEvidence^WriUen agreement— Modification thereof by oral agreement. 

A written agreement may be modified or set aside by parol evidence of 
an oi*al promise or undertaking, material to the subject-matter of the con- 
tract, made by one of the parties at the time of the writing, which induced 
the other party to put his name to it ; but where the parties met, discussed 
tlie contract and separated, with instructions to plaintiff to write out the< 
agreement subsequently made, and both parties signed the agreement 
thus prepared without objection, no evidence of what was said at the fii-st 



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RUSSELL V. GLASS WORKS. 119 

1897.] Syllabus — Assignment of Errors. 

meeting will be admitted. It is not error for the court to exclude from 
the consideration of the jury negotiations which the paities themselves ex- 
cluded from the contract. 

Argued Nov. 16, 1897. Appeal, No. 49, Oct. T., 1897, by 
defendant, from judgment of C. P. Chester Co., April T., 1896, 
No. 18, on verdict for plaintiff. Before Rice, P. J., Wickham, 
Beatbb, Orlady, Smith and Portbb, JJ. Afl&rmed. 

Assumpsit to recover f 750 salary due under a written con- 
tract. Before Waddell, P. J. 

The plaintiff claimed a balance due from the defendant as 
salaiy under a written contract. The defense was based on cer- 
tain parol evidence tending to vary the terms of the written con- 
tract which the defendant alleged to have been the inducement 
or moving cause for signing said written contract. 

The court below excluded the offer of the parol evidence from 
the consideration of the jury and, on motion, a new trial was re- 
fused in an opinion by Waddell, P. J., reported in 6 Dist. Rep. 
458- 

Other facts appear in the opinion of the court. 

Verdict and judgment for plaintiff for 1830.62. Defendant 
appealed. 

JErrors assigned were, (1) in the answer by the court to the 
plaintiff's first point. The point and answer are as follows: 
^^1. There is nothing in the facts which took place antecedent 
to the mcJdng of the contract in writing or in its procurement 
to avoid it or to vary the terms of it. Answer : I affirm that 
point. You will understand from that, as has already been said 
in your hearing, that we have eliminated from this case all that 
took place prior to the signing of this agreement, what was said 
and done prior to the time the agreement was executed, to wit : 
July 7th, I think, and you have nothing to say about that. We 
have said iha,t that does not effect the solution of this case, and, 
therefore, counsel have not turned their attention to that in their 
argument, because we took occasion to say in the early stage of 
the argument that ixk our judgment it has nothing to do with 
this case. Although we admitted it, in our opinion the proois 
did not come ujx to the requirements of the law, and, therefore, 
it is to be dis^egaided by the jury.*' (2) In answer to plain- 
tiffs secojod foixAy which point and answer are as follows: 



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120 RUSSELL v, GLASS WORKS. 

Assignment of fhrors— Arguments. [6 Pa. Superior Ct. 

" 2. If the jury believe that the plaintiff performed his part of 
the written contract in good faith, and to the best of his ability, 
he was illegally discharged. Answer : I have already said that to 
you in substance and I afiSrm that point." (3) In answer to 
plaintiff's third point, which point and answer are as follows : 
" 3. Unless there was fraud, or bad faith, or gross inattention 
on the part of the plaintiff in his performance of the written 
contract, he was illegally discharged. Answer : I aflBrm that 
point. I have already virtually so said in ray charge to you." 
(4) In answer to defendant's fourth point, which point and an- 
swer are as follows: "4. If the jury find that the contract in 
suit was executed by the defendants on the promise and agree- 
ment of the plaintiff that at the time of the execution of the 
paper he had a flint glass business that netted him 8600 profit, 
which profit the defendant would receive, that he had an estal)- 
lished business as a glass dealer amounting to from f40,000 to 
$60,000 a year, the benefit of which the defendants would have 
and that he could sell the entire product of the defendant's 
factory, and if they further find that without these representa- 
tions the contract would not have been made, then the plaintiff 
cannot recover if these promises and agreements have not been 
. fulfilled by him. Answer : I disaf&rm that proposition, gentle- 
men. I refuse to submit to you those considerations that are 
involved in this point. If the point liad said that these repre- 
sentations were false, then I might have afQrmed it. But there 
would be no proof, in my judgment, in the case which would 
justify you in concluding that they were untrue. So I refuse 
the point and submit the case to you under the suggestions 
which I have already made." 

J. Frank E. Hause^ for appellant. — The court below erred in 
not submitting to the jury the question of fact involved in de- 
fendant's point : Phillips v. Meily, 106 Pa. 536 ; Ferguson v. 
Rafferty, 128 Pa. 837; Clinch Valley Co. v. Willing, 180 Pa. 
165. 

Are the falsity of the representations and the fraudulent in- 
tent of the party making them, material inquiries ? Renshaw v. 
Gans, 7 Pa. 117 ; Rearich v, Swinehart, 11 Pa. 233 ; Lippin- 
oott V. Whitman, 83 Pa. 244 ; Hoopes v. Beale, 90 Pa. 82 ; 
Tliomas v. Loose, 114 Pa. 85 ; Greenawalt v. Kohne, 85 Pa. 869. 



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RUSSELL V. GLASS WORKS. 121 

1897.] Arguments — Opinion of the Court. 

The testimony offered by the defendant met the measure of 
proof required in causes of this character : Thomas v. Loose, 
114 Pa. 35; Fe^uson v. Rafiferty, 128 Pa. 837 ; Smith v. Har- 
vey, 4 Pa. Superior Ct 877. 

In order that parol stipulations may be introduced in cases of 
this character, it is only necessary to show that such stipula- 
tions continued from the time they were made up to the time of 
the actual execution of the contract : McGinity v. McGinity, 
63 Pa. 46. 

R. T. Comwell and Herbert A. Drake^ for appellee. 

Opinion by Smith, J., December 13, 1897 : 

The defendants, who were doing business as copartners, under 
the name of The Spring City Glass Works, Limited, made a 
written conti-act with the plaintiff by which they engaged him 
as salesman for the term of three years from July 15, 1893, at 
$1,800 per year and expenses. The plaintiff entered upon his 
duties under the contract and continued to perform them until 
December 1, 1894, when he was discharged by the defendants. 
In May, 1895, he found other employment. He subsequently 
brought this suit for wages for the interval between December 1, 
1894, and May, 1, 1895, under the agreement, and recovered a 
judgment for the amount of his claim. 

At the trial, the defendants, to justify their discharge of the 
plaintiff, alleged that he was negligent in the performance of 
his duties. On this subject testimony was introduced by both 
parties. This question was submitted to the jury who, by their 
verdict, exonerated the plaintiff from the charge. The princi- 
pal ground of complaint here, however, is that the court below 
erred in withdrawing from the consideration of the jury the tes- 
timony as to what took place prior to the execution of the agree- 
ment, which, the appellants argue, induced them to sign the 
contract. It is alleged that at a meeting between the directors 
of the defendant company and the plaintiff, a few dajrs before 
the writing was executed, he stated that he had a flint glass 
trade from which he derived an annual profit of WOO ; that he 
sold, as a glass broker or jobber, from $40,000 to f60,000 worth 
of glass annually, and that all of this together with his Phila- 
delphia office would be turned over to the advantage of the de- 



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122 RUSSELL v. GLASS WORKS. 

Opinion of the Court. [6 Pa. Superior Ct. 

fendants, if be engaged with them. But when they asked him 
to guarantee tliat he would make a certain amount of sales for 
them — that he would sell the product of their factory — he posi- 
tively refused to do so ; and the written agreement, which he 
submitted some days afterward, was signed by the defendants 
without other guaranty or assurance than is contained therein. 

The representations of the plaintiff related to his business 
standing and experience, and may or may not have been true. 
Nothing was shown on the trial which necessarily disproved 
them, unless the disappointed expectations of the defendants be 
accepted a^ such proof. But the vital point is that they fonned 
no part of the contract made by the parties. This appears by 
the testimony of the defendants themselves. It may be that 
the defendants, in making the contract, were influenced by the 
plaintiff's representations ; but there is no evidence of falsehood, 
f i-aud or promise by which they were induced to close the bar- 
gain. At most the alleged i-epresentations by the plaintiff were 
designed to impress the defendants with a belief in his ability 
to sell their product ; but he declined to bind himself to do this, 
and the stipulation that he would do so was excluded from the 
writing. Under these circumstances the learned trial judge 
was right in ruling that nothing was shown which would jus- 
tify the jury in modifying the written contract ; and that all the 
preliminary negotiations were presumed to be merged in the 
written agreement. We are now asked to say, substantially, 
that the court below erred in excluding from the consideration 
of the jury that which the parties themselves excluded from 
their contract. 

The appellant's argument is based on the assumption that 
there was a contemporaneous parol agreement on the faith of 
which the writing was executed and without which it would 
not have been signed, and authorities are cited for the proposi- 
tion that " where there has been an attempt to make a fraudu- 
lent use of the instrument in violation of a promise or agreement 
made at the time the instrument was signed and without which 
it would not have been executed," this may fee shown by parol, 
even if by doing so the whole contract will be set aside. This 
is a correct statement of the law. But the difl&culty with the 
appellant^s case is that it fails to show any contemporaneous 
agreement, or any agreement, other than that embodied in the 



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RUSSELL V. GLASS WORKS. 128 

1897.] Opinion of the Court. 

writing ; and therefore there was nothing to which this propo- 
sition could apply. There was here no use of the instrument, 
or any attempt to use it, for any other purpose than the one 
for which it was intended, or in violation of any condition or 
representation upon which it was procured. The representa- 
tions referred to did not constitute an agi'eement, promise or 
condition of any kind, and were, therefore, properly excluded. 

What has been said su£Bciently coyers the matters complained 
of in the first and fourth specifications. The second and third 
specifications were not pressed at the argument; they were 
properly abandoned. 

The judgment is affirmed. 



S. Abeles, trading as S. Abeles & Company v. Fran- 
cina D. Powell, Appellant. 

Promissory note— Married woman as guarantor— Affidavit of defense. 
In a suit on a promissory note signed jointly by husband and wife an 
affidavit, on behalf of the wife, is sufficient, which avers coverture, no 
indebtedness to the plaintiff, and that the wife signed the note upon which 
suit is brought as a guarantor. 

PracUcet Superior Court — Appeal — Refusal to open after term expired. 
The court below is without authority to open a judgment after the end 
of the term at which it was rendered, unless it be a judgment by default 
or confession, which cveiy court has power to open without limit of time, 
in order to give the parties a hearing or trial. 

A judgment for want of a sufficient affidavit of defense is not a judg- 
ment by default or confession. 

Argued Oct. 15, 1897. Appeal, No. 113, Oct. T., 1897, by 
Francina D. Powell, one of the defendants, from judgment of 
C. P. No. 8, Phila. Co., Dec. T., 1896, No. 1171 for want of a 
sufficient affidavit of defense, and from order of discharging 
rale to open judgment and quash attachment and let defendants' 
into a defense, proceedings to stay. Before Rice, P. J., Wick- 
ham, Beaver, Reedeb, Orlady, Smith and Porteb, JJ. 
Reversed. ' 

Assumpt on promissory note signed by Francina D. Powqll, 
and Samuel Powell. 



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124 ABKLES v. POWELL. 

Statement of Facts — Assignment of Errors. [6 Pa. Superior Ct. 

Suit was brought on a promissory note signed by Fran- 
cina D. Powell and Samuel Powell. Francina D. Powell, one 
of the defendants, filed an affidavit of defense as follows : 

" Francina D. Powell, one of the defendants in the above 
stated action, being duly sworn, says that she has a true, just 
and legal defense to the whole of the plaintiffs' claim of the 
following character, to wit : That she, the deponent, is the wife 
of Samuel Powell, one of the defendants above-named. That 
she is not indebted to the said plaintiffs in the above suit in 
any sum and never was, but, that after the making of the said 
promissory note by her husband, which is the subject of this 
suit, a representative of the payees in the said promissory note, 
culled upon her at her residence, and alleged that it was neces- 
saiy to have deponent affix her name to said note, thereby in- 
ducing her to sign as a guarantor, and as she is advised by 
counsel and verily believes is prohibited by the act of general 
assembly, approved June 3, 1887. Deponent further avers, 
that she is informed and verily believes and expects to be able 
to prove on the trial of the cause, that the above-named plain- 
tiffs are not the bona fide holders of said promissory note, but 
that the same is in the possession of the payees, as in the said 
obligation named. All of which deponent says is true." 

The court entei'ed judgment for want of a sufficient affidavit 
of defense. Subsequently, after the expiration of the term on 
which the judgment was entered, a rule was taken to open the 
judgment and quash an attachment, and let defendants into a 
defense, which rule was discharged in an opinion by the court 
l)elow, as follows : " After consideration of the depositions in 
the above case, the rule to open the judgment is discharged. 
The court is of the opinion that under the authority of Hill v. 
Egan, 2 Pa. Superior Ct. 596, it is too late to open the judg- 
ment." 

Damages were assessed under the judgment in favor of the 
plaintiff for $398.97. Defendant, Francina D. Powell, appealed. 

Errors amgned were (1) In entering judgment against Fran- 
cina D. Powell for want of a sufficient affidavit of defense. 
(2) In discharging the rule to open the judgment and let de- 
fendant, Francina D. Powell, into a defense. 



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ABELKS V. POWELL. 125 

1897.] Arguments — Opinion of the Co int. 

Wm, F. Johnson^ for appellant. — Prior to the passage of the 
Married Person's Property Act of June 3, 1887, P. L. 332, a 
joint promise by the husband and wife was declared to be, in 
law, but the promise of the husband: Cummings y. Miller, 3 
Grant, 146. 

Whilst the act of 1887 was expressly repealed by the Act of 
June 8, 1893, P. L. 844, the proviso that nothing therein con- 
tained shall enable a married woman to become accommodation 
indorser or surety for another was, practically, word for word, 
retained in the latter act. 

The burden is on the wife when she seeks to avoid her contract 
to bring it within one of the few exceptions of the act : Patrick 
V. Smith, 165 Pa. 526. And while it is to be regretted that the 
affidavit of defense was not drawn with more care, its inarti- 
ficiality does not obscure its intent and the facts relied upon, in 
the language of Patrick v. Smith, avoid the contract and bring 
it in within one of the exceptions. 

Thomas Learning^ for appellee. — The affidavit of defense was 
insufficient. The averments in the affidavit are simply (1) a 
general denial of indebtedness; (2) the statement that appel- 
lant signed the note at the request of payees ; (3) averment of 
the naked conclusion that she signed as "a guarantor." 

It is fully apparent that such an affidavit is absolutely lack- 
ing in the essentials always required by the courts of this state. 
There is no averment of the particular facts and the transaction 
upon which was based defendant's contention that she signed 
as "a guarantor." And to simply aver what is a mixed conclu- 
sion of law and fact is never held sufficient in an affidavit of 
defense, as is often exemplified in affidavits which aver "fraud," 
and do not state the particular facts which constitute the al- 
leged "fi-aud." 

The wisdom of the principle compelling defendants to aver 
with particularity the fltcts on which they rely, is exemplified 
by this case. For, the facts brought out upon appellant's dep- 
ositions show that her case is without a shadow of nierit, and 
it is unnecessary to further argue the case upon what was in- 
tended by the affidavit, when all the facts are before this court. 

Opinion by Smith, J., December 13, 1897 : 

The appellant, a married woman, was sued jointly with her 



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126 ABKLES v. POWELt. 

Opinion of the Court. [6 Pa. Superior Ct. 

husband on a promissory note signed by both. Judgment was 
taken against him for want of an affidavit of defense. The 
appellant filed an affidavit of defense setting up her coverture, 
and alleging that she is not indebted to the plaintifiF in any sum 
and never was, and that she signed the note as guarantor. A 
rule for judgment for want of a sufficient affidavit of defense 
was granted, returnable February 20, 1897. This rule was duly 
served on appellant's attorney of record and on the return day 
it was made absolute, neither the appellant nor her counsel being 
present. A fi. fa. was afterwards issued and returned nulla 
bona, and, subsequently, an attachment execution was issued 
returnable the first Monday of April, under which funds of the 
appellant were attached. On March 81, 1897, a rule to open 
the judgment and to quash the attachment proceedings was 
granted. Depositions in support of the rule were submitted, 
and, after argument, it was discharged, because, in the opinion 
of the court, " under the authority of Hill v. Egan, 2 Pa. Supe- 
rior Ct. 596, it is too late to open tfie judgment." Whereupon 
the present appeal was taken. 

It is clear that the court below was without authority to open 
the judgment after the end of the term at which it was rendered, 
unless it was a judgment by default or confession. Every court 
has power to open such judgments, without limit of time, in 
order to give the parties a hearing or trial. But where judg- 
ments have been entered after defense made, the reason for the 
rule ceases, and it is settled that judgments thus taken cannot 
be opened after the expiration of the term at which they ai^e 
entered : King v. Brooks, 72 Pa. 363. Hence the only question 
before us is whether the judgment in the present case was 
entered upon a default by the defendant or upon defense made. 

A default by the defendant is where, having been duly sum- 
moned, he fails to appear, or, having appeared, fails to make 
defense in the manner and within the time fixed by law. It 
has, however, no relation to the adequacy of the defense offered ; 
it arises only from neglect — ^from the absence of an appearance 
or an offer of defense. At common law, judgment against the 
defendant for default of appearance was unknown, the penalty 
for his contumacy being distress infinite and outlawry. But if, 
after appearing, he neglected to make defense by plea or de- 
murrer within the time allowed, judgment by nihil dicit, — ** he 



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ABELES r. POWELL. 127 

1897.] Opinion of tlie Couit. 

says nothing " — ^might be taken against him. In Pennsylvania, 
provision for judgment for default of appearance was made at an 
early day. By the act of 1725, on default of appearance, the 
plaintiff could enter a common appearance for the defendant, and 
in the absence of a plea take judgment by nihil dicit. The entry 
of a common appearance was soon dispensed with, and judgment 
was entered by default on the defendant's failure to appear. 
By subsequent legislation, judgment for default of appearance 
was expressly authorized. A third ground of default was intro- 
duced in 1795, by an agreement, signed by all the attorneys of 
the Supreme Court except two, to confess judgment unless the 
defendant made affidavit ^^ that to the best of his knowledge and 
belief there was a just cause of defense to the action ; " and this 
w^ enforced by the court as to the signatory parties. In 1799, 
a rule to the like effect was adopted by the Supreme and Circuit 
Courts. In 1809, the common pleas of Philadelphia adopted a 
rule directing judgment of course against the defendant unless 
he made affidavit that there was a just defense, to the best of 
his knowledge and belief, with a proviso respecting a partial 
defense; and this iiile was sustained by the Supreme Court: 
Vanatta v. Anderson, 3 Binn. 417. A similar rule was adopted 
by the distiict court of Philadelphia. The first legislation on 
the subject was the act of 1835. This authorized "a judgment 
by default " in certain actions in the district court of Philadel- 
phia, unless the defendant ^^ filed an affidavit of defense, stating 
therein the nature and character of the same." From this pro- 
vision, subsequently extended to other couii» by statute, or 
adopted by rule, arose the practice of inquiring into the suffi- 
ciency of the defense thus set up, and of taking judgment for 
want of a sufficient affidavit of defense. The act of 1874 author- 
ized an appeal to the Supreme Court from a decision against the 
right to such a judgment. The procedure act of 1887 directs 
that in actions of assumpsit the declaration ^^ shall be replied to 
by affidavit," and provides for judgment " for want of an affidavit 
of defense, or for want of a sufficient affidavit, for the whole or 
part of the plaintiff's claim, as the case may be, in accordance with 
the present practice." Where the defense is partial, the act of 
1893 permits judgment for the amount admitted to be due; 
while the act of 1897 allows judgment to be taken for the por- 
tion as to which the affidavit shall be insufficient ; with an issue 



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128 ABELES v. POWELL. 

Opinion of the Court. [6 Pa. Superior Ct. 

as to matters remaining in dispute. And by the act of 1889, 
the defaults, for which judgment is of course, are, want of an 
appearance, want of a plea, and want of an affidavit of defense, 
with judgment against the plaintiff for want of a declaration. 

But a judgment for want of a sufficient affidavit of defense 
has never, under the existing practice, been regarded as a judg- 
ment by default. Nor is there any ground on which it can be 
so regarded. With reference to the result, indeed, an insuffi- 
cient affidavit of defense is practically the same as none. But 
so also is an insufficient defense before a jury. In either case 
the defendant suffers judgment, but in neither is it a judgment 
by default. The filing of the affidavit is a prescribed step in 
the cause, whereby the defense is laid before the court. Default 
in the premises is only in neglecting to take this step ; in omit- 
ting to make defense in the prescribed method. The declara- 
tion having been replied to by affidavit, tiie requirement of the 
statute on this point is satisfied and a default avoided. Should 
the defense thus presented be held insufficient, its presentation 
is not thereby turned into a default. The affidavit is in the 
nature of a plea, for the insufficiency of which the plaintiff may 
have judgment on demurrer, but not by nihil dicit as for a 
default. If adjudged insufficient, it is an adjudication of the 
cause on its merits. Whether the defense be addressed to the 
court by affidavit, or to a jury by evidence, a judgment resting 
on its insufficiency is a judgment upon defense made, and not 
on a default. 

The limitation on the power of the courts to open judgments 
has not been modified by legislation, and to modify it would be 
clearly against public policy. The Acts of May 20, 1891, P. L. 
101 and of June 24, 1895, P. L. 212 (the Superior Coui-t act), 
extend the right of appeal to these applications, and confer upon 
the appellate courts the power to review the decisions of the com- 
mon pleas thereon. But those statutes do not enlarge or affect 
the power of the lower courts in the premises. 

Enough has been said to show that the learned judge correctly 
held that he was without power to open the judgment in the 
present case. The judgment was duly entered after an exami- 
nation of the defense as presented in the affidavit. The matter 
in controversy had regularly passed to final judgment, and the 
term of the court at which it was rendered had ended, before 



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ABELES V. POWELL. 129 

1897.] Opinion of the Court. 

the application to open was made. It then became res judicata, 
and passed beyond the power of the court to open. 

However, the question of the sufficiency of the affidavit of 
defense is not beyond the reach of this court. The appeal is 
from the action of the court below in entering the judgment, as 
well as from the subsequent refusal to open it, and thus the record 
of the case is brought before us. The judgment was entered 
on February 20, 1897, and the appeal to this court was noted as 
of July 28, 1897, more than three months after the entry of judg- 
ment. But by section 4 which went into effect July 1, 1897, it 
is provided : " That in civil cases in which the right of appeal 
to the Superior Court has now expired, an appeal may be taken 
and perfected within three months after this act goes into effect." 
The present case comes within the express terms of this proviso, 
and, as it is a proper exercise of legislative power (Waters v. 
Bates, 44 Pa. 473.) the appeal is properly taken. 

There can be no reasonable doubt about the sufficiency of the 
affidavit of defense. It avers coverture, no indebtedness to the 
plaintiffs, and that she signed the note upon which suit is 
brought as a guarantor. While it may not exhibit the accu- 
racy and fullness of detail necessary on two of these points, it 
is sufficient in its terms to raise the question of her liability 
under the averment of a guaranty. It states that after her hus« 
band signed the note it was brought to her, and upon the alle- 
gation that it was necessary for her to affix her name to it she 
was induced to sign it as a guarantor. If it be true that she 
signed merely as a guarantor there can be no doubt as to her 
nonliability under the express prohibition of the act of June 8, 
1893. We have recently passed upon the powers of a married 
woman under this statute, in Henry v. Bigley, 6 Pa. Superior 
Ct, 503, and it is unnecessary to discuss the matter further here. 
The judgment entered February 20, 1897, for want of a suffi- 
cient affidavit of defense, cannot stand, and the subsequent pro- 
ceedings based thereon must fall with it. 

The judgment is reversed and a procedendo awarded. 
Vol. VI— 9 



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130 TRANSFER OF LICENSE. 

Syllabos— Statement of Facts. [6 Pa. Superior Ct. 



Appeal of Class & Nachod in the Matter of the Transfer 
of License at Morton and distribution of $2,000 paid 
into court. 

Transfer of license — Jurisdiction, Q. 8.— Payment of money into court. 

The court of quarter sessions has no jurisdiction to order the payment 
into court of the proceeds of a proposed sale of a hotel as a condition to 
the approval of the transfer of the license, nor will the consent of all par- 
ties confer such jurisdiction. 

Appeals-^ Jurusdiction, Q, S. — Payment of money into court. 

On an application for transfer of license the court made the following 
order: **0n paying into court $2,000, the balance of purchase money to 
abide the further order of court, the license may be transfeiTed." Judg- 
ment creditors of the vendor united in petitioning for the appointment of 
an auditor to distribute the fund. After participating in the proceedings 
before the auditor ceiiAin creditors appealed, alleging want of jurisdiction 
in the quarter sessions to oixler the money into couit. Held^ that the 
Avhole proceeding must be regarded as a common law reference and that 
the appellate court will not review the decree of distribution made in such 
an anomalous proceeding, but will quash an appeal taken by a participat- 
ing creditor. Queried : Whether the vendor might not have had the right 
to an appeal. 

Argued Nov. 17, 1897. Appeal, No. 56, Oct. T., 1897, by 
Class & Nachod, from the order of Q. S. Delaware Co., trans- 
ferring license upon the pajrment into court of #2,000, remain- 
der of purchase money, to abide the further order of the court. 
Before RiCE, P. J., Wickham, Beaver, Oblady, Smith and 
Porter, JJ. Appeal quashed. 

It appears from the record of the auditor that Frank Schoener 
had a licensed hotel at Morton, Delaware county, that he became 
involved financially, was unable to pay his debts and confessed 
certain judgments on which executions were issued. 
V After levy was made an agreement was entered into by which 
Andrew Hayes agreed to purchase from Schoener the good-will, 
fixtures, furniture and license for #3,000, provided the court 
would approve of a transfer of the license ; $1,000 was paid 
down, J2,000 was paid into court, and the transfer of the license 
allowed. 



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TRANSFER OF LICENSE. 131 

1897 -] Statement of Facts— Opinion of the CJourt. 

To this agreement execution creditors assented and stayed 
their executions. 

The judgment creditors, mcluding the appellants, subsequently 
united in a petition for the appointment of an auditor for the 
distribution of the fund paid into court. The auditor in mak- 
ing such distribution exhausted the fund before reaching the 
claim of the appellants, amounting to S2,150, who filed ex- 
ceptions to the report of the auditor, which were dismissed by 
the court. 

JBrrors assigned were to the dismissal of appellants' excep- 
tions, reciting same, which assigned error in the scheme of dis- 
tribution reached by the auditor, and especially (14) The court 
of quarter sessions has no jurisdiction over the fund. 

W. Roger Fronefieldy for appellants. — ^Want of jurisdiction 
may be shown in the appellate court even where the question 
was not raised in the court below : Hill v. Tionesta Twp., 129 
Pa. 625. 

The balance of appellants' argument was directed to the 
merits of the case as to the distribution reached by the auditor, 
which, not being considered by the Superior Court, need not be 
set out here. 

Wm. F. Johnson^ with him Charles H. Pile^ for appellees. — 
It is not true that the court directed the money to be paid into 
the court of quarter sessions. It was a suggestion to pay " into 
court" — "where, if there were any disputes as to ownership, 
the same could be judicially determined." As a matter of fact 
it was paid to the prothonotary, but was considered by all the 
parties as being in the quarter sessions. The appellants, being 
the only parties objecting to the transfer, particularly and solely 
invoked it, and there was common consent. The court took 
jurisdiction by reason of that invocation and common assent, 
nobody objected at any stage of the proceedings, and it is too 
late now to raise the question of jurisdiction. 

Opinion by Wickham, J., December 18, 1897 : 
Frank Schoener was a licensed innkeeper who owed moi'e 
than he could pay. A number of his creditors, including the 



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182 TRANSFER OF LICENSE. 

Opinion of the Court. [6 Pa. Superior Ct. 

appellants, were pursuing him with executions. In this emer- 
gency, one Andrew Hayes came forward and agi'eed to buy 
Schoener*8 lease of the hotel, together with the personal prop- 
erty used in and about the premises, agfreeing to pay therefor 
$3,000, if a tmnsfer of the license could be obtained, otherwise 
the contract to be void. One third of the purchase money was 
to be paid in five dajrs, and a note at three months given for the 
remainder, all moneys paid to be returned if the agreement were 
not consummated. 

When application was made to the court of quarter sessions 
for the transfer, the appellants protested against its being 
allowed, this evidently with the sole view of securing some of 
the proceeds of the sale on their judgment, which stood at the 
foot of the list, but on which they had previously issued an 
attachment execution, to reach the monej-s in Hayes's hands. 
Finally an amicable understanding seems to have been reached 
between all parties in interest, that the objections to the trans- 
fer should be disregarded, and that $2,000 of the purchase 
money should be paid into the court of quarter sessions. The 
court assented to this arrangement, and made the following 
order, to wit : " On paying into court $2,000, remainder of pur- 
chase money, to abide further order of court, the license may be 
transferred." It will be observed that this is not an order spe- 
cifically directing the money to be paid into court, but an allow- 
ance of the transfer in case the money were so paid. 

On October 6, 1896, the day after the making of the order, 
the money was paid to the clerk, and thereupon the appellants 
united with the other judgment creditors of Schoener in peti- 
tioning the court to appoint an auditor to distribute the fund, 
which was accordingly done. The appellants made a vigorous 
effort to secure, through the audit, a part of the money, but being 
unsuccessful, took their appeal to this court, and assigned for 
error, inter alia, that the court below had no jurisdiction over 
the fund. This is quite true, but it is a sword which cuts both 
ways, and to say the least, the objection comes with an ill grace 
from the appellants, particularly at this late day. The quarter 
sessions, as such, of course had no right to order the money into 
court, nor could the counsel for the parties interested, by any 
agreement they might make, give that tribunal a jurisdiction it 
possessed neither at common law, nor by statute. As well 



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TRANSFER OP LICENSE. 133 

1897.] Opinion of the Court. 

might they have gone into the orphans' court to settle their dis- 
putes respecting the distribution of the proceeds of the sale of 
the hotel, as to attempt to use the machinery of the court of 
quarter sessions for the same purpose. It was never contem- 
plated that the latter tribunal should be called on to adjust such 
controversies, or be employed to collect claims of which the 
common pleas only has cognizance. 

The whole proceeding must be regarded as being in the nature 
of a common-law reference. That the learned judge of the 
court below shared somewhat in this view, is perhaps inferable 
from the fact that he made no absolute order, as said before, to 
pay the money in, and the further fact mentioned in the testi- 
mony of one of the counsel, that he suggested that all parties 
in interest should join in the petition for the appointment of the 
auditor. 

The appellants and the other claimants to the fund created a 
court of their own for the settlement of their differences. Prop- 
erly viewed, the auditor, at the most, was only a common-law 
referee, deriving his powers entii'ely from the agreement and 
consent of those who secured his appointment, and voluntarily 
submitted their claims to his arbitrament. 

Schoener who, by the way, is not here complaining, was not 
compelled to pay the money into court, but he chose to do so 
at the instance of the court and his creditors, so as to obtain a 
larger price for his hotel property, by having the license go there- 
with. The appellants were not summoned or cited into the 
quarter sessions, and were not bound to take any part in the 
proceedings had there. They still had their original rights and 
remedies, whatever they were, on their judgment in the com- 
mon pleas, unless they chose to renounce them. They took 
their chances before the auditor, and we cannot help them. 

By way of illustration, let us suppose that A, in consideration 
of B, C, D, and E, his creditors, withholding or withdrawing 
objections to a decree for which he is asking in the orphans' 
court, at their instance and on the judge's order, pajrs 12,000 to 
the clerk for the benefit of the creditors, whose intermeddling 
results solely from their supposed discovery of a new way to 
collect old debts. The court then at the request of these cred- 
itors appoints an auditor to determine their respective rights to 
the money. It will hardly be contended that this court can or 



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134 TRANSFER OF LICENSE. 

Opinion of the Court. [6 Pa. Superior Ct 

should review the decree of distribution made in such an anom- 
alous and unauthorized proceeding. An appeal by the party, 
paying in the money, from the order directing its payment, might 
stand on a better footing. In Harbison v. Gilliland, No. 217, 
October and November term, 1886, a case decided by the Su- 
pi-eme Court at Pittsbui'g, but not reported, it appeared that 
in a sheriff's interpleader the parties in interest assented to the 
appointment of an auditor, and made their fight before him, 
instead of having an issue framed and trying the case before 
a jury, as provided by statute. The court refused to interfere, 
and quashed the writ of error. We are constrained to pursue 
the same course in the case at bar. 
Appeal quashed. 



Mary H. Rohbock v. Grant McCargo and C. E. Dickson, 

Appellants. 

Landlord and tenant — Evidence — Degree of proof to establish a sfirrender. 

Where a case turas on whether there has been a suiTender by a lessee 
of his term and an acceptance thei*eof by the lessor, the proof requisite 
to establish such suiTender must establisli a clear and explicit agreement, 
and the landlord's acceptance of the sun'ender also must be established by 
a fair and full preponderance of evidence. It is error however, for the 
trial judge to instruct the jury that a defendant lessee, in order to meet 
the burden of proof cast upon him, must, to establish a suiTendei*, prove 
all the terms and conditions of the alleged rescission or surrender and 
accepUmce by evidence that is " clear, precise and indubitable.^ 

There is no reason for requiring the exceptionally high measure of 
proof necessary to take the case out of the statute of frauds, or to reform 
a writing. 

Argued May 6, 1897. Appeal, No. 170, April T., 1897, by 
defendants, from judgment of C. P. No. 3 Allegheny Co., No- 
vember Term, 1894, No. 687, on verdict for plaintiff. Before 
Rice, P. J., Willabd, Wickham, Beavbr, Reedbr, Oblaby 
and Smith, JJ. Reversed. 

Appeal from judgment of alderman on an action for rent in 
arrears. Before Kennedy, P. J. 

It appears from the record that, although the claim as origi- 



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ROHBOCK V, McCAHGO. 135 

1897.] Statement of Facts. 

nally brought was for one month's rent amounting to $150, pend- 
ing the determination of the case in the court below, the total 
term of the lease expired. 

By agreement of counsel the present suit was designed to 
cover all claims which the plaintiff might have growing out of 
said lease. The question arose udder the terms of the contract 
of lease, which pro^'ided, inter alia, as follows : 

*'That the said party of the first part (Maiy A. Rohbock) 
doth hereby lease and let unto the said parties of the second 
part (Grant McCargo and C. E. Dickson) fi-om the 26th day 
of January, 1891, for and during the term of one year, two 
months and six days, with the privilege of remaining in posses- 
sion until the first day of April, 1896, for the annual rental of 
§600, payable as follows, viz : $ilOO on April 1st, 1891, and 
thereafter $150 on the first days of July, October, January and 
April of each and every year during said term until the whole 
amount of said rent is paid ; the following described premises, 
etc." 

The defendants contended that xuider the terms of the lease 
they were merely tenants from year to year after April 1, 1892, 
and proof was given of notice and intention to vacate prior to 
April 1, 1894. 

There was also evidence tending to show an understanding 
reached between the plaintiffs agent, Armstrong, and the de- 
fendant, McCargo, by which plaintiff was to receive the same 
rent monUily, and the defendants were to occupy the premises 
for a few weeks after April 1st, and until such time as a new 
building erected for their occupancy was ready. The defendants 
remained in the premises until about June 1, 1894, when they 
removed and tendered the rent for April and May, which was 
refused. The court left the question to the juiy as to whether 
there had been a surrender and acceptance of the lease, charg- 
ing the jury, inter alia, as follows : ^^ As I have said, the lease 
was perfectly good up to the first of April, 1896, unless its can- 
cellation and the suiTcnder of the premises was agi*eed to, and 
Mr. Armstrong and Mrs. Rohbock say it never was agreed to 
by them. All that Mr. Armstrong admits having said was, that 
he would hold them liable for the balance of the rent if the lease 
was good. I think you understand the question for your de- 
termiuation : Was this old agreement canceled and the pi*em- 



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136 ROHBOCK v. McCARGO. 

Statement of Facts— Points. [6 Pa. Superior Ct. 

ises surrendered and accepted by Mrs. Rohbock, either by herself 
or her agent, Mr. Armstrong? The defendants claim that after 
this 1st of April, the circumstances show a ratification by Mrs. 
Rohbock of the surrender and acceptance by them, although 
the transaction, as I have told you, was entirely with Mr. Arm- 
strong the agent ; but they say the circumstances show not only 
the positive acceptance by Mr. Armstrong, but its subsequent 
ratification by Mrs. Rohbock. All those circumstances are for 
you. If you find there was a surrender of the premises, and an 
acceptance by Mrs. Rohbock, then that is a virtual cancellation 
of the old lease, and the defendants would not be liable, and 
your verdict must be for them. But if there was no such sur- 
render of the premises, and acceptance by Mrs. Rohbock or her 
agent, then the defendants ai*e liable for the amount claimed. 
The burden is upon the defendants to satisfy you by the weight 
of the testimony that there was such a surrender of the premi- 
ses, and an acceptance by Mrs. Rohbock, as would amoiint to 
the cancellation of the old agreement before you can find a ver- 
dict." [5] 

The plaintiff's points and the answers thereto weteas follows : 

1. That defendants having remained in possession after the 
first of January, 1892, they elected to avail themselves of the 
privilege granted in the lease, namely, of remaining in posses- 
sion until the first of April, 1896, and having so elected they 
were bound to pay the rent provided for in said lease, to wit, 
the sum of f 150 on the first days of July, October, January and 
April, of each and every year during said term, until the whole 
amount of said rent is paid, unless said contract of letting was 
rescinded by defendants, and the premises surrendered to and 
accepted by plaintiffs. Answer : AflSrmed. [1] 

2. The contract of letting or lease between the plaintiff and 
defendants in this case being for a period or term exceeding 
three years from the making thereof, and being in writing, no 
parol rescission or surrender would be a defense against the rent 
claimed by the plaintiff, unless such parol rescission or surrender 
were accompanied by a surrender of the possession of the leased 
premises by the defendants to the plaintiff, or her agent, and 
his or her acceptance thereof. Answer : Affirmed. [2] 

3. The contract of lease between plaintiff and defendant 
being in writing and under seal, the burden of proving a rescis- 



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ROHBOCK i\ McCARGO. 137 

1897.] Points— Ai'guments. 

sion or surrender thereof is upon the defendants who allege it, 
and all the terms and conditions of the alleged rescission or sur- 
render must be proved by evidence that is clear, precise and 
indubitable. Answer: AjBSrmed. [3] 

4. That under all the evidence in the case the verdict should 
be for the plaintiff for the full amount of her claim. Answer : 
Refused. 

Defendant's points and the answers thereto were as follows : 

1. Under all the evidence the verdict should be for the 
defendants. Answer: Refused. [4] 

If this point is refused, then 

2. If the jury believe that after the defendants had notified 
the plaintiff of their intention to vacate the demised premises 
on April 1, 1894, the plaintiff or her agent expressly consented, 
or by any course of action in effect consented to their remain- 
ing temporarily thereafter until the new building was ready for 
their occupancy, the verdict should be for the defendants. An- 
swer: Affirmed. 

Verdict and judgment for plaintiff for f 818.76. Defendants 
appealed. 

Errors assigned were, (1-3) In affirming plaintiff's firat, sec- 
ond and third points, reciting points and answers thereto. 
(4) In refusing defendant's first point, reciting same. (5) To 
a portion of the judge's charge, reciting same. 

H. O. TFaMon, with him TF.JT.J^wmn^*, for appellants. — The 
court erred in instructing the jury that the burden of proof was 
upon the defendants to establish a surrender and acceptance of 
the lease by evidence that was clear, precise and indubitable : 
GiUion V. Finley, 22 W. N. C. 124. 

We are utterly unable to reconcile the learned judge's affirm- 
ance of the plaintiff's first point with the affirmance of the 
defendant's second point. The defendant's second point is 
wholly predicated upon the defendant's right to terminate the 
lease on April 1, 1894. Under all the evidence, having affirmed 
the second point for the defendants we maintain that the first 
point ought also to have been affirmed. 

The plaintiff had full cognizance of the arrangement by which 
the defendants were to temporarily occupy the demised prem- 



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188 ROHBOCK v. McCARGO. 

Arguments-— Opinion of the Court. [G Pa. Superior Ct. 

ises after April 1, 1894, but even if she had not her agent's 
authority to make it was ample. Such is the ruling in Weight- 
man V. Harley, 20 W. N. C. 470. 

Although timely notice of the defendants' intention to vacate 
April 1, 1894, was given, no act of assembly requires notice on 
the part of a tenant : Brown v. Brightly, 14 W. N. C. 497 ; 
Cook V. Neilson, 10 Pa. 41. 

•7. /. Buchanan of Montooth Bros. ^ Buchanan^ for appellee. 
— The act of the appellants in holding over or remaining in pos- 
session after April 1, 1892, was an election upon tlieir part to 
avail themselves of the privilege granted by the lease to I'emain 
in possession iintil April 1, 1896. They were not, therefore, 
merely tenants from year to year: Clarke v. Merrill, 51 N. H. 
416 ; Delashman v. Berry, 20 Mich. 292 ; Tracy v. Exchange 
Co., 7 N. Y. 472 ; Kramer v. Cook, 73 Mass. 550 ; Montgomery 
V. Board of Commissioners, 76 Ind. 362 ; McBrier v. Marshall, 
126 Pa. 390; Harding v. Seeley, 148 Pa. 20. 

A contract of letting on lease between plaintiff and defend- 
ants, being in writing, for a period or term exceeding three 
years, no parol rescission or surrender would be a defense against 
the rent claimed by the plaintiff unless such parol rescission or 
surrender were accompanied by a surrender of the possession of 
the leased pi-emises by the defendants to the plaintiff, or her 
agent, and his or her acceptance thei-eof : Auerv. Penn, 92 Pa. 
444 ; Auer v. Penn, 99 Pa. 370 ; Breuckman v. Twibill, 89 Pa. 
58; MiUing v. Becker, 96 Pa. 182 ; Teller v. Boyle, 132 Pa. 56. 

The defendants do not set up a surrender by abandonment or 
implication, but allege an express contract or agreement which 
in effect abrogates and avoids the covenants of the lease and 
amoiints to a rescission of a writing under seal, and it is cer- 
tainly not error to instruct the jury that the burden of proving 
such a contract or agreement is upon the defendants, who allege 
it, and that all the terms and conditions of the alleged agree- 
ment must be proven by evidence that is clear, precise and 
indubitable: Spencer v. Colt, 89 Pa. 314; Hart v. Carroll, 85 
Pa. 608 ; Sacks v. Schimmel, 3 Pa. Superior Ct. 426. 

Opinion by Wiokham, J., July 23, 1897 : 

The plaintiff in this case leased to the defendants, by a writ- 



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ROHBOCK V. McCARGO. 139 

. 1897.] Opinion of tiie Court. 

ing, dated January 28, 1891, certain premises in the city of 
Pittsburg. The following clause of the lease gave rise to the 
present controversy, to wit: "The said party of the first pait 
doth hereby lease and let, unto the said parties of the second 
part, from the 26th day of January, 1891, for and during the 
term of one year, two montlis and six days, with the privilege 
of remaining in possession until the 1st day of April, 1896, for 
the annual rental of $600, payable as follows, viz: $100 on 
April 1, 1891, and thereafter $160 on tlie first days of July, 
October, January and April of each and every year during said 
term, until the whole amount of said rent is paid." 

There was thus created a certain term, ending on April 1, 
1892, with the option of a renewal, on the part of the lessees for 
another term of four yeara, on the same agreements and stipu- 
lations, except the covenant of renewal : Cairns v. Llewellyn, 
2 Pa. Superior Ct. 599. No question of rescission or cancel- 
ation was raised by the evidence, the only proper inquiry being 
whether or not the lessees elected to renew, it being their privi- 
lege and not the lessor's to decide this matter. Nor was the 
case affected by the principles which apply to a technical sur- 
render, that is, a yielding up of the demised premises and an 
acceptance thereof by the lessor. It was a matter of no moment 
whether the lessor accepted or not, provided that the lessees 
gave up possession, at the end of the first term. This, how- 
ever, they did not do, but remained in possession until June 1, 
1892. 

Without explanation, their remaining over would be con- 
clusive evidence of an election to hold for four years longer : 
McBrier v. Marshall, 126 Pa. 390 ; Cairns v. Llewellyn, supra, 
and authorities therein cited. It may be remarked here that 
the decision in Gillion v. Finley, 22 W. N. C. 124, cited for the 
appellants in support of tlie contrary view, is not in harmony 
with later decisions of our Supreme Court But the defend- 
ants allege, and this is conceded, that, before the first term 
ended, they notified the plaintiff that they would not accept the 
second. They further aver that in March, 1892, they made a 
special arrangement with the plaintiff's agent to hold over, at 
the same rent, until the building they were then erecting would 
be ready for their occupancy, perhaps two or three months after 
April 1, 1892, and if this be true, their retention of the premises 



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140 ROHBOCK v. McCARGO. 

Opinion of the Couit. [6 Pa. Superior Ct. 

would^ of course, be attributable to the new contract, instead of 
to their ri^ht under the option. 

The jury should have been instructed, that if the agent 
entered into this agreement, and it wa« within the scope of his 
employment, their verdict should be for the defendants, other- 
wise the plaintiff was entitled to recover. There was nothing 
more in the case. The plaintiff^s first, second and third points, 
instead of being affirmed, as they were, should have been re- 
fused. The first is so framed as to lead the jury to infer that, 
unless there was a rescission or surrender, after April 1, 1892, 
the defendants were liable. It is at least so doubtful in its 
meaning as to be confusing. As said before, the question of 
rescission is not in the case. It was merely a matter of accept- 
ance or refusal of the option, on the part of the defendants, and 
the words "rescission," "cancelation," and "surrender," in the 
sense wherein they were used, were likely to mislead. 

The second point is open to the same objections as the first, 
and to the further one, that it assumes that the lease was for a 
period exceeding three years. As we have already indicated, 
the lease was what it purported to be on its face, that is, for 
one year, two months and six days, with a provision that the 
lessees, at their own pleasure, might extend it for a further 
term of four years. 

The third point, besides being liable to some of the objec- 
tions that lie to the first and second, calls for too high a degree 
of proof in support of the defense. It was not necessary to 
establish it by " clear, precise and indubitable evidence," a pre- 
ponderance was enough. The defendants were not seeking to 
modify, add to, contradict, or rescind the written lease. The 
oral agreement set up was independent of it, and was made 
after the defendants had notified the plaintiffs, as is admitted, 
of their intention not to renew, the notice having been given 
and the agreement made, if made at all, before April 1, 1892. 
The defendants, even if they had not given the notice, were 
still entirely free, so far as accepting or refusing the option was 
concerned, and the oral agreement would in itself be a refusal. 
Of course, if their story as to this agreement were rejected by 
the jury, their subsequent holding over, notwithstanding their 
previous notice, impliedly created a new term. 



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ROHBOCK V. McCARGO. 141 

1897.] Opinion of tlie Court. 

The first, second, third and fifth specifications of error are 
sustained. 
Judgment reversed and a venire facias de novo awarded. 

A motion for reargument being duly allowed, a reargument 
was had before the court in Philadelphia, November 1, 1897. 

-H". G, Wa$8<m^ with him W. K. Jennings^ for appellants. — 
The judgment of the lower court ought to be reversed if for no 
other reason than because of the error manifest in the affirm- 
ance of the plaintiff's third point. 

The defendants should not have been held to measure their 
proofs by this standard : Spencer v. Colt, 89 Pa. 314 ; Hain v. 
Kalbach, 14 S. & R. 158 ; Woods v. Farmare, 10 Watts, 195 : 
McGinity v. McGinity, 63 Pa. 38 ; Plumer v. Guthrie, 76 Pa. 
441 ; Hart v. Carrol, 85 Pa. 508. 

Parol agreements of like character do not infringe the rule 
that extrinsic verbal evidence is not admissible to contradict or 
alter a written instrument, neither are they in violation of the 
statute of frauds, and are supported by judicial authority : 1 
Greenleaf on Evidence, par. 303; Kiester v. Miller, 25 Pa. 481; 
McBrierv. Marshall, 126 Pa. 390; McCauley v. Keller, 130 
Pa. 53 ; Harvey v. Gunsberg, 148 Pa. 294 ; McClelland v. Rush, 
150 Pa. 67; Walker v. Githens, 156 Pa. 178 ; Washburn on Real 
Property. 

Jl /. Buchanan of Montooth Bros. ^ Buchanan^ for appellee. 
— The words "clear, precise and indubitable,'* have often been 
used by the courts in describing the kind of evidence necessary 
in such cases: Spencer v. Colt, 89 Pa. 314 ; Hart v. Carroll, 85 
Pa. 508 ; Sacks v. Schimmel, 3 Pa. Superior Ct 426. 

Opinion on Reabgitment by Wickham, J., December 18, 
1897: 

Owing to a misapprehension as to dates, a portion of the 
opinion heretofore handed down in this case, is inapplicable 
to the facts. It appears that the defendants' notice of their 
intention to quit the leased premises was given, and the alleged 
new contract made, long after the second term had commenced. 
The learned judge of the court below was, therefore, right in 



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142 ROHBOCK v. McCARGO. 

Opinion of the Court. [6 Pa. Superior Ct. 

holding that the whole controversy centered in the surrender 
and acceptance set up by the defendants. 

If necessary, the case of Gillion v. Finley, 22 W. N. C. 124, 
so strongly relied on by the defense, can be distinguished^ in its 
facts, from the one in hand. In Gillion v. Finley, the lease 
was for " the term of one year with the privilege of three years 
from first day of April, A. D. 1885, at the rent of two hundred 
and four dollars per year to be paid in twelve monthly por- 
tions." Nothing was said as to the three years constituting an 
integral term, and it was held that the language used meant, 
that the tenant had the right to remain from year to year, not 
exceeding three years. 

In the present case, however, the lessees are given the priv- 
ilege of holding from April 1, 1891, the end of the definite 
term, ** until the first day of April, 1896," and this second period 
was evidently in the minds of the parties when they use the 
words " during said term " in the clause fixing the times for 
the payment of the rent. The lessees were given the right to 
hold for and during the continuous period of time intervening 
between April 1, 1891, and April 1, 1896. This is the plain 
jind obvious meaning of the language used. When they ac- 
cepted the option, they at once took this integral term and not 
a portion thereof, nor a mere tenancy from year to year. 

We feel obliged to adhere to our original view respecting the 
degree of proof requisite to establish the surrender. Of course 
the agreement, as to this matter, should be clear and explicit. 
If it be of that character, we think that it is enough that it, and 
the landlord's acceptance, be established by a fair and full pre- 
ponderance of the evidence. This is not an attempt to reform, 
modify or contradict a written instrument, but an effort to prove 
a new and executed contract based on a new consideration, 
namely, the restoring to the landlord, of the leased premises : 
1 Greenl. Ev. 303; Malone v. Dougherty, 79 Pa. 46. Nor 
is it an attempt to escape the operation of the statute of frauds. 
In the language of Chief Justice Thompson in Pratt v. Rich- 
ards Jewelry Co., 69 Pa. 53, " I cannot see wherein the statute 
of frauds had anything to do with it." So also in Auer v. Penn, 
92 Pa. 444, it was said: '* The fact that a lease is for a longer 
term than three years does not prevent a rescission thereof, by 
agreement of the parties, when accompanied by a surrender of 



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ROHBOCK V. McCARGO. 143 

1897.] Opinion of the Court. 

the term and possession, by the tenant to the landlord, and the 
acceptance thereof by the latter. It is not like a sale and trans- 
fer, to a stranger, of an interest in land greater than a term of 
three years, and therefore is not within the statute of frauds. It 
is a yielding up, to the reversioner, the limited estate derived 
from him whereby the future tenancy is rescinded. The rela- 
tion of landlord and tenant is thereby ended." 

There is no reason, therefore, for requiring the exceptionally 
high measure of proof necessary to take a caae out of the stat- 
ute, or to reform a writing. The degree of evidence that would 
support an allegation of the termination of the tenancy, or sus- 
pension of rent as the result of forfeiture, eviction or abandon- 
ment, ought, on principle, to be sufficient. 

It is true, that in Hooks v. Forst, 165 Pa. 238, the court 
below told the jury that the evidence of surrender must be 
clear, precise and indubitable. As the defendants, who were 
the parties likely to be injured by this instruction, prevailed at 
the trial, they had no occasion to complain of it elsewhere. It 
is significant, however, that the Supreme Court uses language in 
referring to the instruction, which contains some ground for the 
inference that, in the opinion of that tnbunal, the plaintiffs had 
been, if anything, too favorably treated. 

It is due to the learned trial judge to say that, in his general 
charge, he laid down the correct rule as to the measure of proof 
required of the defendants, but unfortunately this was nullified 
by his later (and, perhaps, inadvertent) affirmance of the plain- 
tiiTs third point. Because of this error, we are compelled to 
allow our judgment, heretofore rendered, to stand. 



Estate of Francis F. Lowry, deceased. Appeal of Mary 
E. Lapp et al. 

Appeals — Credit given to findings of auditing judge— Domicil, 
Where the principal question before the orphans^ court was one of fact, 
namely, the domicil of the decedent, and the auditing judge found that he 
had not lost his domicil of origin by residence abroad, which finding was 
sustained on exception by the court in banc; the appellate court will 
not disturb the conclusion in the absence of manifest error, there being 
fufficient evidence to sustain the finding and decree of tlie court below. 



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144 LOWRY'S ESTATE. 

Syllabus— Statement of FatJts. [6 Pa. Superior Ct. 

Evidence — Depositions regularly taken and filed. 

Where depositions regularly taken are filed by order of the court they 
thereupon become proper evidence for either party. 

Argued Oct. 4, 1897. Appeal, No. 181, Nov. T., 1896, by 
Mary E. Lapp and others from the decree of O. C. Phila. Co., 
April T., 1894, No. 260, in distribution. Before Rice, P. J., 
WiCKHAM, Bbaveb, Reedee, Orlady, Smith and Pob- 
TEB, JJ. Afl&rmed. 

Exceptions to adjudication. Before Penbosb, P. J. 

It appears from the record that the estate of Francis F. Lowry 
was distributed in accordance with an agreement entered into 
by all of the distributees except to the extent of §{2,803.46 which, 
in accordance with the adjudication of the court and the agree- 
ment of the parties should remain with the accountant *'to 
answer the contest between Sophia L. Warden of the one part 
and Mary E. Lapp, Lewis C. Lowry, Agnes Hosmer, Louisa 
Tatem Fallon, Anna Mary Wilson, Allen G. Oliver and Lewis 
Lowry Allen of the other part." 

The subject-matter of the controversy which arose on distri- 
bution of the estate of Francis F. Lowry was whetlier the domi- 
cil of the decedent was Philadelphia or Paris. Sophia Warden, 
the appellee, contending that the domicil of the decedent was 
at Philadelphia, and that the distribution should be made, per 
capita, in accordance with the laws of Pennsylvania, while 
Mary E. Lapp et al. appellants here contended that the domi- 
cil was Paris, and that distribution should be made in accord- 
ance with the law of the domicil per stirpes, according to the 
French code. 

The auditing judge, Penrose, J., found as a fact that the 
domicil of the decedent was at Philadelphia, and made distri- 
bution per capita in accordance with Pennsylvania laws, as will 
more fully appear from his adjudication, which was as follows : 

By the adjudication of the account filed July 8, 1896, it was 
ordered tliat distribution of the balance shown by the account 
as modified should be made in accordance with the agreement 
entered into by all the distributees except to the extent of 
#2,803.46 which should remain with accountant " to answer the 
contest between Sophia L. Warden of the one part and Mary E. 
Lapp, Lewis C. Lowry, Agnes Hosmer, Louisa Tatem FaUon, 



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LOWRY'S ESTATE- 145 

1897.] Statement of Facts. 

Anna Mary Wilson, Allen G. Oliver, and Lewis Lowry Allen 
of the other part," — Sophia L. Warden not having been a party 
to the agreement under which such partial distribution was 
made. 

Instead of making application to the auditing judge, by peti- 
tion or otherwise, to decide the question as to the disposition 
to be made of the portion of the balance thus retained, the 
accountant has filed the present account, debiting itself simply 
with the sum mentioned, )^2,803.46, as if it were not already 
before the court. The effect of this is to subject the amount 
to unnecessary costs, to increase the labors of the court, and to 
lead to confusion ; but as no objection has been made by coun- 
sel for the parties interested, and the account has come for 
adjudication before the same judge who has the original accoimt, 
the irregularity may be overlooked, so far at least, as no one is 
prejudiced by it. 

The matter is however not one purely of form. An applica- 
tion has been made by Mr. Divine to strike from the record the 
deposition of going witnesses, taken September 3, 1895, under 
a rule entered for the purpose by counsel for the widow of the 
decedent, filed in the clerk's office October 22, 1895. There 
were two questions to be determined : marriage of the decedent 
and his domicil, and the purpose of the depositions was to 
establish the facts as to both. When they were taken, Mrs. 
Lowiy was represented before the examiner by Mr. Gerhard, 
and Mr. Maxwell, Mr. Divine, and Mr. Fallon attended on 
behalf of the distributees, respectively, for whom they are coun- 
sel. The fact of marriage seems now to be admitted by all the 
parties, but the question of domicil is still an open one ; and 
Mrs. Sophia L. Warden, whose rights are not affected, by the. 
agreement of compromise entered into by the othere, has, un- 
questionably, the right to use the depositions so taken, though 
not at her instance, for the purpose of establishing the question 
of domicil so far as concerned the fund embraced in the ac- 
count then before the court. Depositions taken under a rule 
may be used by either party to the controversy, even if not filed 
(Bennett 'v. Williams, 67 Pa. 404), a fortiori when they have 
been filed. 

The result would probably have been the same even if the 
question had arisen as to a new fund — the witnesses being be- 
VOL. VI— 10 



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146 LOWRY'S ESTATE. 

Statement of Facts. [6 Pa. Superior Ct: 

yond the reach of the court and the testimony haying been 
reduced to writing after full opportunity to all persons interested 
to cross-examine : Evans v. Reed, 78 Pa. 415 ; Speyerer v. Ben- 
nett, 79 Pa. 445 ; Walbridge v. Knipper, 96 Pa. 48, but here it 
is the very fund itself or a portion of it, and the deposition is 
offered on one of the points which it was taken to establish. 
Under the authorities referred to, it may be used by any of the 
parties, and, of course, the right cannot be taken away by strik- 
ing the depositions from the record. The distinction between 
the present case and Pepper's Est., 34 W. N. 65, cited by Mr. 
Divine, is very manifest. 

The decedent, as appeal's by the adjudication referred to, 
died January 24, 1894, intestate, without issue, father, mother, 
brother or sister, leaving a widow, Rebecca L* Lowry, and 
nephews and nieces and great nephews and nieces, viz : (1) Mary 
E. Lapp, tlie only child of Charles Lowry, a deceased brother ; 
(^2) Lewis C. Lowry, the only child of Lewis Lowry, a deceased 
brother ; (3) Sophia D. Warden ; (4) Caroline L. Hutchins ; 
(5) Mildred T. Herring ; (6) Henrietta Herring ; (7) Howard 
M. Herring; (8) T. W. Fletcher and J. Fletcher; (9) Mrs. 
A. S. Burch, Malcolm L. Herring and T. R. Herring; (10) Ag- 
nes Hosmer; (11) Louisa Tatem Fallon; (12) Anna M. Wil- 
son; (13) Lewis Lowry Allen; and (14) Allen G. Oliver. 
Nos. 3, 4, 5 and 6 being children, and Nos. 8 and 9 grand- 
children of Louisa L. Herring, a deceased sister — the parentK 
of the grandchildren being respectively, Mary E. Fletcher 
and Malcolm L. Herring, a daughter and son who had died in 
her lifetime ; Nos. 10 and 11 children of Mary L. Tatem, a de- 
ceased sister; and Nos. 12, 13 and 14, children and child of a 
deceased daughter (Amanda Allen) of Elizabeth L. Allen, a 
deceased sister. 

He died in Paris, where he had spent many years in the lat- 
ter part of his life — the question to be determined is whether 
he was domiciled in France or in Pennsylvania. Under the 
law of France, if that be the place of domicil, the widow, it is 
said, is entitled to more than one half of the estate, and the 
nephews and nieces, instead of each taking a fourteenth of the 
other half, as in Pennsylvania, take per stiipes, that is, Mrs. 
Lapp and Lewis C. Lowiy each take one fifth of the portion 
not going to the widow, Mrs. Hosmer and Mrs. Fallon one 



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LOWRY'S ESTATE. 147 

1897.] Statement of Facts. 

fifth, Anna M. Wilson, Lewis L. Allen and Allen G. Oliver one 
fifth, and Sophia D. Warden, Caroline L. Hutchins, Mildred 
T. Herring, Henrietta Herring, Howard M. Herring, T. W. 
Fletcher and J. Fletcher and A. S. Burch, Malcolm L. Herring 
and T. R. Herring one fifth of the share of Mrs. Warden, being 
in that case but one thirty-fifth (one seventh of one fifth) in- 
stead of one fourteenth. It was said, indeed, by Messrs. Divine 
and Fallon, that even in Pennsylvania, as the persons entitled 
are nephews and great nephews and nieces and great nieces the 
distribution would be made in the same manner ; but this is 
clearly not the law. Prior to the act of 1855, nephews and 
nieces took to the exclusion of great nephews and nieces, and 
where there were no living brothers or sisters, the distribution, 
by express provisions of the original act (April 8, 1833, sec. 14, 
P. L. 315), was to be made to them in equal shares. The act 
of 1855 extended the representation among collaterals one de- 
gree further, so as to include grandchildren of brothers and 
sisters, and give to them ''such shares aa their parent would 
have taken if living." There is no suggestion of change as to 
the shares, and the operation of the new law is not to be ex- 
tended beyond the purpose manifestly intended. If no nephew 
or niece had died, the distribution would be made per capita ; 
the act of 1855 merely brings in the children of such as may 
have died, who previously would have been altogether excluded 
— and gives to them, by representation of their parent, " such 
share " as he would have taken but for his death, viz : a share 
equal to what each of the living nephews and nieces received. 

The decedent was bom in Pluladelphia, where for many years 
he carried on business. He was a butcher, having a stall in the 
Farmers' Market, and after reaching the age of fifty, he was 
able to retire with an estate suflicient in size to permit him to 
live comfortably on its income. So far as appears he owned no 
real estate and his securities were placed in The Fidelity Insur- 
ance, Trust and Safe Deposit Company for safe keeping — re- 
maining there till his death. He was childless, and sometime 
between 1872 and 1876 he and his then wife went to Paris, 
powers of attorney by which to collect his income being left 
with the Fidelity Company. His stay in Paris was not contin- 
uous. He was in Philadelphia during periods of greater or less 
duration, the longest time from about July, 1889, to August, 



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148 LOWRY'S KSTATK. 

Statement of Facts. [6 Pa. Superior Ct. 

1890, and the last, so far as the evidence shows, in 1893. His 
wife died in 1890 in Paris, and he then returned with her body. 
She was buried in his lot in Laurel Hill. 
. In 1893 he married the lady who survived him as his widow. 
Slie is a French woman and the marriage took place in France. 
After the remarriage he again came to this country, returning 
to Fiance in June, 1893. He died, as already stated, in the fol* 
lowing January. 

A change of domicil works such important consequences, 
both as to the status of the person and the distribution of his 
personal estate, that the burden of proving a change is upon the 
party alleging it, and this is not only under settled principles 
of public law, but under the fundamental rule of evidence that 
an established condition is presumed to continue. The pre- 
sumption stands until overcome by proof and the proof must be 
clear and free from reasonable doubt. Mere residence in a for- 
eign country is not, standing by itself, enough. It must appear 
that the residence was animo manendi, and with tlie intention 
of abandoning the former domicil. An established domicil 
adheres until an intention to adopt, with an actual adoption of 
a new one is made manifest, and this is emphatically the case 
where the domicil alleged to have been given up is the domicil 
of origin. In the leading case of Somerville v. Somerville, 5 
Vesey, 750, the master of the rolls (Sir Richard Pepper Arden), 
said: "The third rule I shall extract is, that the original domi- 
cile, or as it is called, the forum originalis, or the domicile of 
origin, is to prevail until the party has not only acquired an- 
other, but has manifested and carried into execution an inten- 
tion of abandoning his former domicile and taking another as 
his sole domicile." In Aikman v. Aikman, 3 Macq. 854, it is 
said by Lord Westbury : " Everyone's domicile of origin must 
be presumed to continue until he has acquired another sole 
domicile by actual residence, with the intention of abandoning 
his domicile of origin. This change must be animo et facto, 
and the burden of proof unquestionably lies on the party who 
asserts the change." And in the same case (page 863) it was 
said by Lord Cran worth : " It is a clear principle of law, that 
the domicile of origin continues until another domicile has been 
acquired, i. e. till the person whose domicile is in question has 
made a new home for himself in lieu of the home of his birth." 



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LOWRY'S ESTATE. 149 

1897.] Stateme(it of Facts. 

A domicil of choice, as distinguished from a domicil of origin 
may be abandoned by simply ceasing to reside in it with the in- 
tention of so doing, but a domicil of origin is retained until 
tiie actual acquisition animo manendi, of a new domicil. Hence 
in Bell v. Kennedy, L. R. 1. Sc. App. 307, it was held that a per- 
son whose domicil of origin was Jamaica, who died in Scotland, 
after having resided there for a year, retained his original domi- 
cil, though he had sold his estates there and left Jamaica, as 
he had declared, " for good," — it not being shown that he had 
at the time of his death or previously, any fixed or settled pur- 
pose to make Scotland his future home. 

These principles are perfectly well settled, and they have 
been applied in countless cases decided in this country. See 
Price V. Price, 156 Pa. 617. Their application to the case 
now under consideration leads to a conclusion adverse to the 
claim that the estate of the decedent is to be distributed accord- 
ing to the law of France. There was nothing to show that he 
had abandoned his Philadelphia domicil or that he had acquired 
a permanent residence in France. He did not engage in busi- 
ness in the latter country. So far as appears he never even 
became a householder there, and his remittances were made, 
not to him, at any fixed place or abode, but to his bankers, 
Drexel, Harjes & Company. Undoubtedly, Parisian life had 
great attractions for him; this was shown by the testimony 
offered before the auditing judge by Messrs. Divine and Fal- 
lon ; but this was the utmost extent that was shown, and there 
was not a syllable of evidence to show an intention to renounce 
Philadelphia as his place of domicil, though he was in constant 
communication with the Fidelity Company and its officers, both 
while abroad and in this country. 

The absence of all evidence, written or oral, of any expres- 
sion of an intention to abandon, or that he had abandoned Phila^ 
delphia as his permanent home, is especially significant in view 
of the established facts that during the whole of his absence in 
France, his entire estate was permitted to remain in Philadel- 
phia ; that when his wife died, he caused her to be buried, not 
in France where she was at the time, but in his family lot in 
Laurel Hill, and that his last dying wish, as shown by a paper 
written at his instance, was that he too should be buried in the 
«am6 place. It is true that in Hood's Estate, 21 Pa. 106, tho 



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150 LOWRY'S ESTATE. 

Statement of Facts. [6 Pa. Superior Ct. 

desire of the decedent to be buried at the place of his domicil 
of origin and the fact that some of his securities were there, as 
well as the fact that he had an interest in business carried on 
there, were not regarded as important in view of the further 
facts that he had removed from such domicil during his minor- 
ity, had engaged in business and established a permanent resi- 
dence in Cuba, had changed his religion in order to become 
domiciled there, and always considered himself as domiciled 
and resident on the Island of Cuba where his fortune lay. 
There, there was the strongest evidence of abandonment of 
original domicil, and acquisition of permanent residence in 
Cuba, while here, evidence of similar character is wholly want- 
ing. 

But the case does not rest on the mere absence of proof of 
intention to abandon Philadelphia as the domicil of the dece- 
dent: there is positive uncontradicted evidence of declara- 
tions by him, shortly before his death, that he did not have such 
intention. Arthur E. Valois, whose testimony was taken by 
deposition (already referred to), was consulted in his official 
character (counsel for the United States Consulate General at 
l^aris) by the decedent with reference to his contemplated mar- 
riage in 1893, the question of domicil being one of importance 
as affecting marital rights, etc., etc. He then stilted that his 
domicil was Philadelphia, and after his marriage his intention 
was to return, after some time. This was said on various occa- 
sions to Mr. Valois. Testimony to the same effect was given 
by Mrs. Rosa Femand, a sister of the widow of the decedent, 
to whom he said " many times " that " he never had a real resi- 
dence in France, never learned to speak French ; and that his 
residence was Philadelphia, he loved America very much." 
The testimony of Mr. Valois was objected to by Mr. Divine, 
but so far as the auditing judge can perceive, upon no substantial 
grounds. That he would have no direct pecuniary interest in 
the question before the court, is apparent; and the fact, if it be 
a fact, that a professional relation existed between him and 
the decedent, or between him and Mrs. Lowry, the widow, is 
not available as an objection on the part of any third peraon : 
Dowie's Estate, 135 Pa. 210. 

The estate of the decedent is distributable in accordance with 
the laws of Pennsylvania, except so far as the parties in inter- 



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LOWRY'S KSTATE. 151 

1897.] Statement of Facts — Arguments. 

est have agreed to the contrary. Mrs. Sophia D. Warden is 
not affected by any agreement. 

A supplemental account, debiting the accountant with moneys 
recently remitted by Drexel, Harjes & Company to close the 
French account (#432.39) was presented and is hereto annexed. 
The costs of filing the present account will be charged against 
the moneys so received. 

Exceptions were filed to adjudication, both upon the findings 
of fact and of law, which exceptions were subsequently dis- 
missed and the adjudication confirmed by the court in banc in 
an opinion by Hanna, P. J., reported 6 District Reports, 729, 
whereupon this appeal was taken. 

Errors assigned were in dismissing the exceptions to the 
adjudication of the auditing judge, which exceptions principally 
turned on the findings of fact hy the auditing judge that the 
domicil of the decedent was in Phil^elphia at the time of his 
death. 

William S. Divine^ with him Christopher Fallon^ for appel- 
lants. — Ordinarily, attacking the findings of fact of an auditing 
judge are attended with great difficulty, but the case at bar is 
not such a case as gives the usual weight to such findings of 
fact, the domicil being an inference drawn from other facts : 
Sweatman's Appeal, 160 Pa. 369. 

The law, it is admitted, casts the burden of proof upon the 
party asserting the change of domicil. But the appellants in 
this case did not allege a change of domicil and the law is well 
settled that prima facie a man is domiciled at the place of his 
residence at the time of his death, and it is incumbent upon 
those who deny it to repel the presumption of law : Guier v. 
O'Daniel, 1 Binney, 349, 1 American Leading Cases, 755; 
Ennis v. Smith (Kosciusko's Estate), 14 How. U. S. 400. 

Prima facie the place of residence is the domicil until other 
facts established the contrary: Carey's Appeal, 75 Pa. 301; 
Ennis v. Smith (Kosciusko's Estate), supra. 

And this rule applies not only in interstate habitation, but 
also where a citizen removes to a foreign country. 

Where a person removes to a foreign country and settles 
there, the pi-esumption in favor of domicil of origin no longer 



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152 LOWRY'S ESTATE. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct. 

exists and the burden of disproving the domicil of choice falls 
upon him who denies it : Hood's Estate, 21 Pa. 106. 

Robert 2). Maxwell^ with him Victor Ouillou^ for appellee. — 
When a deposition is taken it ought to be and is equally the 
property of both parties and may be given in evidence by either : 
Gordon v. Little, 8 S. & R. 533 ; Nussear v. Arnold, 13 S. & 
R. 323. 

Opinion by Smith, J., December 13, 1897 : 

The principal question in this case was one of fact, namely, 
the domicil of Francis F. Lowry at the time of his death. He 
was bom in Philadelphia and lived to an advanced age, and dur- 
ing nearly all of the last twenty-five yeara of his life he resided 
in Paris, France, where he died intestate. So far as appears he 
never engaged in business there, and his property and business 
remained in charge of a trust company in Philadelphia, where 
he had placed it before going to Europe. Testimony touching 
the inquiry was submitted to the learned auditing judge, from 
which he found that Lowry had not lost his domicil of origin, 
and that, therefore, his estate should be distributed according 
to the laws of Pennsylvania. This finding was approved by the 
orphans' court and exceptions to the action of the auditing 
judge were dismissed. Nothing short of manifest error would 
warrant us in disturbing this conclusion : Galloway's Appeal, 
5 Pa. Superior Ct. 272. Whether the prolonged residence of 
Lowry in Paris would be suflBcient in itself to establish a domi- 
cil of choice in France, it is unnecessaiy to decide, because 
there was aiBrmative testimony plainly indicating an intention 
on his part to retain his citizenship and domicil here. Even if, 
as contended, the burden of proof was cast upon the appellees, 
the evidence is sufficient to sustain the finding and decree of 
the court below. The depositions seem to have been regularly 
taken under a rule, and were filed by order of the court. There- 
upon they became proper evidence for either party: Bennett 
V. Williams, 67 Pa. 404. There is nothing further in the case 
calling for special notice. The specifications are dismissed and 
the decree is affirmed. 



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LOOSE V. SCHARFP. 153 

1897.] Syllabus— ^tatoment of Facts. 

Cornelius Loose, Appellant, v. Willoughby Scharff. 

Landlord and tenant— Way-going crop— Sale under Ji. fa, and vend, 
ex, of landlord's interest. 

Where a crop of winter grain sown by the way-going tenant is, by 
virtue of a local custom, the property of the landlord, a sale under a fi. fa. 
of the landlord's interest in the growing grain before actual severance 
does not of itself work such an implied severance as will pass the land- 
lord's title to the purchaser under the fi. fa., as against a subsequent pur- 
chaser of the land, at sheriiTs sale, who obtains a deed before the tenant's 
lease expires. 

Argued Nov. 9, 1897. Appeal, No. 96, Oct. T., 1897, by plain- 
tiff, from judgment of C. P. Berks Co., Oct. T., 1896, No. 83, 
on special verdict in favor of defendant. Before Rice, P. J., 
WiCKHAM, Beaveb, Oblady, Smith and Pobteb, J J. Af- 
firmed. 

Amicable action in assumpsit. Before Enduch, J« 
On the trial of the case the jury found the following special 
verdict : 

1. Plaintiff became the purchaser in December, 1894, on an 
execution issued at his instance and levied upon the winter 
crops in the ground of the farm of Hibschman (defendant in 
said execution) in the possession of J. L. Loose, as tenant for 
a term beginning April 1, 1894, and ending April 1, 1896. 

2. Prior to the levy of said execution said Hibschman had 
not rented said farm to said J. L. Loose for another year be- 
ginning April 1, 1895. 

8. Defendant on February 16, 1895, became the purchaser of 
said farm under execution on a judgment entered to No. 88, 
December term, 1894, J. D. in a sci. fa. sur mortgage upon 
said property. 

4. The tenancy of said J. L. Loose, under the lease, begin- 
ning April 1, 1894, was under and subject to the custom pre- 
vailing in this county, that the incoming tenant has the benefit 
of the winter crops in the ground at the time, and is bound, 
when going, to leave a crop of winter grain in the ground in 
place of that which he found. 

5. The value of the crops levied upon by plaintiff was, when 



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154 LOOSE V. SCHARFF. 

Statement of Facts — Opinion of Oouit below. [6 Pa. Supenor Ct. 

harvested in the summer of 1896, after deduction of the ex- 
pense of hai'vesting, $207, and said crops were retained by 
defendant. If upon the whole matter thus found the court 
should be of opinion that the plaintiff has a good cause of action, 
then we find for the plaintiff and assess his damages at $227.34. 
If otherwise, we then find for defendant, as per special verdict 
filed. 

A motion for judgment on a special verdict made by the 
plaintiff was overruled and judgment was directed to be entered 
for the defendant in the following opinion by Endlich, J. : 

Counsel for plaintiff contends that the long line of decisions 
and dicta on the question of the landlord's interest in grain in 
the ground, where the latter has been rented upon shares, and 
the liability of that interest to seizure for his debts (Careon v. 
Blazer, 2 Binney, 475 ; Stultz v. Dickey, 5 Binn. 285 ; Biggs v. 
Brown, 2 S. & R. 14 ; Myers v. White, 1 R. 353 ; Stambaugh 
V. Yeates, 2 R. 161 ; Demi v. Bossier, 1 P. & W. 224 ; Forsythe 
v. Price, 8 W. 282 ; Rineliart v. Olwine, 5 W. & S. 157 ; Bit- 
tinger v. Baker, 29 Pa. 66 ; Bums v. Cooper, 31 Pa. 426 ; Ream 
V. Harnish,45 Pa. 376; Helme v. Ins. Co., 61 Pa. 107; Nar^ 
wood V. Wilhelm, 69 Pa. 64 ; Hershey v. Metzgar, 90 Pa. 217 ; 
Shaw V. Bowman, 91 Pa. 414 ; Long v. Sea vera, 103 Pa. 517 ; 
Baker v. Lewis, 150 Pa. 251), is inapplicable to a case governed 
by the custom found to exist in this county. Be it so. Yet 
notwithstanding this custom, which simply requires the tenant 
to leave a growuig crop when he goes, where he found one when 
he came, it is quite clear that, unless there had been a previous 
severance, actual or implied, of the growing grain from the soil, 
the sale of the realty was bound to carry with it the title to the 
grain : Wilkins v. Vashbinder, 7 W. 378 ; Bear v. Bitzer, 16 
Pa. 175; Backentoss v.Stahler's Adm'r, 33 Pa. 251 ; Heysham 
V. Dettre, 89 Pa. 506; Hershey v. Metzgar, supra, p. 219; 
Long V. Seavers, supra, pp. 521, 522. The controlling inquiry, 
therefore, in this case must be whether the execution of the 
landlord's creditor, levied, while the farm was in the possession 
of the lessee, upon the winter grain put out by him and in the 
ground, as personalty, constituted a severance of the grain from 
the realty, by reason of which severance the former passed to 
the purchaser under said execution and not to the purchaser at 



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LOOSE V. SCHARFF. 155 

1897.] Opinion of Court below. 

the subsequent sale of the land under proceedings upon the 
mortgage thei*eon. Manifestly, if the interest of the landlord in 
the growing grain, at the time when it was levied upon, was not 
liable to seizure as pei'sonalty, no such effect can be atti'ibuted 
to the execution. Now, it is said by Mr. Justice Green, in 
Long V. Seavers, supra, p. 519, that the proposition, that grain 
growing in the ground is personal property and may be seized 
and sold upon execution, relates, in its generality, only to the 
interest in the grain of the person in possession. The reason of 
this limitation is obvious and demonstrates its applicability with- 
out regard to the matter of differing customs as affecting the 
rights and duties of the tenant. Where a man has himself sown 
his own land with his own grain, he owns the latter both as 
grain, which is personalty, and as part of the land into which he 
has put it, which is realty. While he remains in absolute con- 
trol, i. e., in possession of the land, with the grain in it, he is, of 
course, competent to treat the grain as part of the land or as 
something separate from it, i. e., either in connection with the 
land, as realty, or apart from it, as personalty. Consequently 
his creditors have the same right. An execution and levy upon 
the grain as personalty, being, therefore, lawful, wUl effect a 
legal severance of the grain from the soil, and a sale of the 
former under such execution will invest the purchaser with the 
title to the grain. But where grain has been put out by a ten- 
ant, while in possession of the land under his lease, the landlord, 
during the continuance of the term and the tenant's possession, 
is the owner of the grain in the soil by virtue only of his owner- 
ship of the land. That is, he owns it as paH of his land, which 
is realty, and as such only, therefore, can it be reached by his 
creditors in connection with, as appurtenant to the land. Hence 
an execution and levy upon it as personalty, apart from the 
land, is an impossible thing. Such an execution and levy con- 
sequently cannot work a severance of the grain from the soil 
and a purchaser under it takes no title as against a subsequent 
execution purchaser of the land with the grain in it. It follows 
that, in this case, the defendant is entitled to judgment upon 
the verdict 

And now, June 21, 1897, plaintiff's motion for judgment upon 
the special verdict is overruled, and it is ordered that, upon 
payment of the verdict fee, judgment be entered for defendant. 

Judgment for defendant. Plaintiff appealed. 



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156 LOOSE V. SCHARFF. 

Assignment of Error — Opinion of the Court. [183 Pa. 

Error a$siffned was in directing judgment to be entered in 
favor of the defendant on special verdict. 

IT, R. Green^ with him B. T. Shearer and A. (7. Green^ for 
appellant 

Morris H, Schaffer and Adam B. Rieser^ for appellee. 

Pee CtmiAM, December 18, 1897: 

This dispute arose over the title to a growing crop of grain. 
The plaintiff claimed as purchaser at sheriff's sale of the crop 
as personalty ; the defendant as purchaser at a subsequent 
sheriff's sale of the land. 

It was decided in Long v. Seavers^ 108 Pa. 517, that where 
land is let upon shares a sale upon a fi. fa. of the landlord's 
share of the growing grain before actual severance does not of 
itself work such an implied severance as will pass the landlord's 
title to the purchaser under the fi. fa. as against a subsequent 
purchaser of the land at sheriff's sale who obtains his deed 
before the rent falls due. The Ciise was precisely like the pres- 
ent except in this particular. There the subject-matter of the 
dispute was the landlord's sliare, reserved as rent to be deliv- 
ered to him when the crop was harvested and divided ; here it 
was the whole crop of winter grain sown by the tenant whose ten- 
ancy was under and subject to the local custom prevailing in 
Berks county which required him, when going, to leave a crop 
of winter grain in the place of that which he found. Notwith- 
standing this distinction the similarity of the two cases in re- 
spect of the possession at the time of the sale of the crop upon 
fi. fa. remains. The relation of landlord and tenant existed, and 
the possession of the tenant was exclusive. The landlord had 
not the actual or constructive possession of the land or the 
crop ; nor had he a right to the immediate possession. He had 
no right to enter upon the land demised to take the crop or do 
any other act inconsistent with the tenant's right of possession, 
until the expiration of the term, and before that took place the 
land was sold at sheriff's sale. Under the act of 1886, the pur- 
chaser of the landlord's title to the land under execution against 
him is entitled to the rent falling due after acknowledgment 
of the sheriff's deed, whether it be payable in money or grain. 



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LOOSE V. SCHARFF. 157 

t897.] Opiaion of Uie Couit. 

But conceding for the purpose of the case that the crop had not 
all the characteristics of rent, strictly speaking, still the facts 
as to the possession seem to bring the case within the limitation 
of the general rule as it was stated by Mr. Justice Gbeen in 
Long V. Sea vers. " It is true that grain growing in the ground 
is personal property and may be seized and sold upon execution : 
Hershey v. Metzgar, 90 Pa. 217. But that proposition in its 
generality relates to the interest in the grain of the person in 
possession." For the reasons suggested, which are more fully 
elaborated in the opinion of the learned judge of the court below, 
the judgment is affirmed. 



Margaret Philips v. The Baltimore Mutual Aid Society, 

Appellant. 

Insurance — MtUtud aid socieiy — Construction of policy— Delay %n pay- 
ment—Province ofcotirt. 

Where membera of a mutual aid society arc classed as nonbenefioial if 
in arrears for dues for more tlian three weeks and, even when reinstated, 
remain nonbenefioial for five weeks thereafter, the beneficiary of a mem- 
l>er so in default cannot recover death benefits. The fact that the receipt 
book of decedent shows acceptance of dues by the company at iiregular 
times is no evidence of an intent of waiver by the company of any riglita 
secured to it by the policy or to change its terms. The facts being undis- 
puted, the question was for the court, and it should have directed a verdict 
for the defendant. 

Argued Oct 20, 1897. Appeal, No. 122, Oct T., 1897, by 
defendant, from judgment of C. P. No. 2, Phila. Co., June T., 
1895, No. 860, on verdict for plamtiff. Before Rice, P. J., 
WiCKHAM, Beavee, Reedeb, Oblady, Smith and Porteb, J J. 
Reversed. 

Appeal from magistrate. Before Pennypackeb, P. J. 

It appears from the evidence that suit was brought in assump- 
sit to recover for death benefits which wei'e admitted to be $50.00, 
and the sum of $5.00 per week sick benefits, for which the plain- 
tiff is the beneficiary. 

As to the claim for benefits the defense set up was a provi- 
sion of the policy to this effect : 



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158 PHILIPS V. AID SOCIETY. 

Statement of Facts— Arguments. [6 Pa. Superior Ct. 

** Any member in arrears for more than three weeks* dues 
shall not be entitled to benefits, but such members can be rein- 
stated by paying such arrears, and passing an examination, 
though they will not be entitled to benefits should sickness, 
accident or death occur within five weeks from date of reinstate- 
ment." 

By a receipt book oiBfered in evidence by the plaintiff it ap- 
peared that during the time covered by the book, payments were 
accepted from Hannah Philips in periods of three or four weeks, 
and that on the 15th of October, decedent was three or moi-e 
weeks in arrears. She died on the 22d of October, 1894. 

Defendant's points, which were refused by the court, wei^e 
as follows : 

1. If the jury find from the evidence that the decedent had 
become nonbeneficial by being more tlian three weeks in arrears 
prior to her death and had not paid up tliose arrears more than 
at least five weeks prior to her death so as to become beneficial 
under the terms of the policy, then their verdict should be for 
the defendant. Answer : I decline that point. 

2. The verdict of the jury should be for the defendant. An- 
$wer : I decline that point. 

Verdict and judgment for plaintiff for f61.91. Defendant 
appealed. 

Errors assigned were refusal of defendant's points. 

Edward A. Anderson^ with him John H. Fow^ for appellant. — 
The form of this policy has been passed upon by the court of 
common pleas in Dauphin county, and held to be valid and bind- 
ing : Simms v. Ins. Co., 15 C. C. R. 642. 

This case is governed by the rulings in Lantz v. Ins. Co., 
139 Pa. 546. 

Although the amount involved in this matter is small> the 
principle is important. 

Joseph W. Hunsicker^ with him Charles JSunsicker and George 
Thoi-n Hunsickery for appellee. — Forfeitures are odious in law 
and are enforced only where there is the clearest evidence that 
that was what was meant by the stipulation of the parties: 
Helnie v. Ins. Co., 61 Pa. 107. 



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PHILIPS V. AID SOCIKTr. 159 

1897.] Arguments — Opinion of tlie Court. 

The case of Simins v. Ins. Co., cited by the appellant, does 
not apply to this case. The other case cited by the appellant 
of Lantz v. Ins. Co., only decides that the company was not 
bound to accept the premium after the death of the insured. 

Opinion by Porter, J., December 13, 1897 : 
In the policy of insurance sued on was the provision : ** Any 
member in arrears for more than three weeks' dues, shall not be 
entitled to benefits, but such members can be reinstated by pay- 
ing such arrears and passing au examination, though they will 
not be entitled to benefits should sickness, accident or death 
occur within five weeks from date of reinstatement." The 
plaintiff, the mother of the insured, submitted testimony to 
prove the identity of the insured and the death on October 22, 
1894. She offered in evidence the policy and a so-called receipt 
book showing payments of dues or premiums. The defendant 
offered no evidence, claiming that the entries in the receipt book 
showed that the insured was in default at the time of her death. 
The policy was dated December 20, 1889. The insured had 
been paying dues for nearly five years. The policy and receipt 
book were found in her trunk after her death. There was no 
evidence indicating with what regularity she paid her dues pre- 
ceding April, 1894. The receipt book included only payments 
made from April 9, 1894, to the time of the death of the insured, 
but recited " old book paid up to date." There was no testi- 
mony to explain the entries in the receipt book, which consisted 
merely of dates and initials. In the absence of such explanation 
they would seem to indicate that the insured had made payment 
of her dues not on the days contemplated by the policy, but at 
irregular periods, — most of them when she was more than three 
weeks in arrear. This however was not evidence of an inten- 
tion to waive any rights under the policy or to vary any of its 
terms. It was a couise permissible by the stipulation above 
quoted. The purpose of that clause was to give the insured an 
opportunity to avert, in part, the effect of failure to pay the 
premiums when due. It gave a right of reinstatement but at- 
tached the condition that she should not be entitled to benefits 
for five weeks subsequent to such reinstatement. By the re- 
ceipt l)ook it appears that on October 8, 1894, being then more 
than three weeks in arrears, she made a payment reinstating 



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leO PHILIPS V. AID SOCIKIY. 

Opinion of the Couit. [6 Pa. Superior Ct. 

herself. She died October 22, 1894, within the five weeks fol- 
lowing the reinstatement. The insured being thus in default 
by the terms of the policy the beneficiary was entitled to no 
benefit thereunder. 

We are therefore of opinion that the learned trial judge erred 
in not directing a verdict for the defendant. The second as- 
signment of error is sustained and the judgment is reversed. 



P. A. Althouse v. Mrs. James B. Hunsberger, Catherine 
M. Hunsperger, Appellant. 

Judgment—When appliccUion to set aside mainicUned, 
An application to vacate and set aside a judgment can be maintained 
only on the ground of defects apparent on the face of the record. 

Judgment— Mistaken name — Service of process. 

If a party is sued by a wrong or fictitious name, or by some designation 
which includes a part only of his name, and is personally served with 
process, and fails to urge the misnomer in any way, a judgment entered 
against him by such mistaken, fictitious or impei*fect name, is valid and 
enforceable. 

Catharine M. Hunsberger was sued as Mi*s. James B. Hunsperger, was 
seived witli process and allowed judgment to be entered against her by 
default under that name. Heldt that Catharine M. Hunsperger is not in 
position to urge this mispomer, or use of a fictitious name as constituting 
a defect vitiating the judgment as between herself and the holder of it. 

Judgment— Motion to strike off— Laches — Equity, 

Where the record shows that defendant, being served with process in a 
suit before an alderman, failed to defend the same but suffered judgment 
by default, and neglected to take an appeal or certiorari, by one or the 
other of which every right she subsequently alleged in a petition to strike 
off the judgment, might have been adequately protected, the court will 
not exercise its equitable power to stay execution or interfere with the 
judgment. 

Argued Nov. 9, 1897. Appeal, No. 92, Oct T., 1897, by 

defendant, from order of C. P. Berks Co., May T., 1897, No. 

48, discharging rule to vacate judgment. Before Rice, P. J., 

WicKHAM, Beaver, Oelady, Smith and Porter, J J. Af* 

Armed. 

Rule to vacate or set aside judgment Before Enduch, J. 

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ALTHOUSR V. HUNSBERGER. 161 

1897.] Statement of Facts. 

Judgment was entered by a magistrate against Mrs. James B. 
Hunsberger for $28.00. Transcript was filed in the common 
pleas. A rule subsequently was taken to vacate, which upon 
hearing was dismissed in an opinion by Endlich, J. (in which 
further facts sufficiently appear), as follows : 

Judgment having been entered against Mrs. James B. Huns- 
berger by an alderman, a transcript thereof was in due couree 
filed in this court to No. 48, May term, 1892, J. D. An ap- 
plication by defendant to open this transcripted judgment was 
refused for reasons given in an opinion filed June 20, 1896. 
A pluries writ of vend. ex. was thereupon issued by plaintiiBf to 
No. 1, June term, 1897, E. D., and the court is now asked by 
Catharine M. Hunsberger (or Hunsperger) to stay the execu- 
tion thereof upon her property and to vacate and set aside the 
judgment. 

I. An application to vacate and set aside, i. e., to strike off, 
a judgment can be maintained only on the ground of defects 
apparent on the face of the record : O'Hara v. Baum, 82 Pa. 
416; Allen v. Krips, 119 Pa. 1 ; France v. Ruddiman, 126 Pa. 
257 : Adams v. Grey, 154 Pa. 258 ; Brewmg Co. v. Bootli, 162 
Pa. 100 ; North & Co. v. Yorke, 174 Pa. 349; Hall v. Pub. 
Co., 180 Pa. 561 — which may include such undenied averments 
in the applicant's petition as go to complete the record : Hiller 
V. Niedzielska, 176 Pa. 409. The supposed defect of this judg- 
ment, relied on by counsel, is the fact that the name of the 
defendant therein is given as " Mrs. James B. Hunsberger." 
Conceding that " Mrs." is not a legal name. State v. Gibbs, 44 
N. J. L. 169 — but merely an indication of the sex of a person 
named, Elberson v. Richards, 42 N. J. L. 69 — it is, nevertheless, 
true that the remainder of the description of defendant in this 
judgement, containing what may be a baptismal and a surname, 
is not, as a matter of law, so indescriptive as to render the judg- 
ment necessarily void under the doctrine of the above and sim- 
ilar cases. The worst that can be said of it is that it is to be 
treated as a wrong or fictitious name. Now, the rule seems to 
be that if a party " was sued by a wrong or fictitious name, or 
by some designation which included a part only of his name, 
and was personally served with process, and, failing to urge the 
misnomer in any way, judgment was entered .... against him 
, . • , by such mistaken, fictitious or imperfect name, it is valid 
Vol. vi-11 



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162 ALTHOUSE v. HUNSBERGER. 

Statemeijt of Facts. [6 Pa. Superior Ct. 

and enforceable ; " 1 Freeman, Judgments, see. 50^, 154. The 
averments of Catharine M. Hunsperger's petition show that she 
is the person sued as " Mrs. James B, Hunsberger," and the 
transcript discloses the fact that the person so sued was person- 
ally served with process and that she allowed judgment to be 
given against her by default under tliatname, which judgment, 
transcripted into this court, is the one now in question. It 
would appear, therefore, that Catharine M. Hunsperger is not 
in a situation to urge this misnomer or use of a fictitious name, 
as constituting a defect vitiating the judgment as between her- 
self and the holder of it. 

As concerns the petitioner's allegations of fraud, res adjudicata, 
etc., though they appear undenied by answer, these are matters 
necessarily dehors the record and therefore not available in this 
application. Indeed they come clearly within that class of mat- 
ters which ought to have been raised by appeal or certiorari, 
and on the ground of which, for that reason, a judgment entered 
on a transcript from a magistrate can be neither opened nor set 
aside : McKinney v. Brown, 130 Pa. 365. 

2. The equitable power of the court to stay, in a proper case, 
^ven indefinitely, execution process issued upon a judgment 
therein, is not to be questioned, Harrison v- Soles, 6 Pa. 
S93 ; Feagley v. Norbeck, 127 Pa. 238, and doubtless may be 
exercised though the judgment be one entered upon a tran- 
script from a magistrate : see Engard v. O'Brien, 9 Phila. 559. 
But being an equitable power, it is exercised upon principles 
of equity. These (where there has been no agreement or for- 
bearance or the like) forbid its exercise except upon a clear 
showing that the defendant has used due diligence and ex- 
hausted every legal means of defense or redress, or has been 
prevented, without fault of his own, from doing so. It is not 
necessary to discus3 a proposition so fundamental. See 1 Black, 
Judgments, sees. 865, 374, 378, 387. The record here shows 
that the defendant, being served with process in a suit be- 
fore an alderman, failed to defend the same, but suffered judg-; 
ment to go against her by default, and that without presence 
of ignorance of the fact that she neglected to take an appeal or 
certiorari, by one or the other of which every right she now; 
f^Ueges to have had might have been adequately protected. In 



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ALTHODSE v. HUNSBKRGER. 163 

1897.] Statement of Facts— Opinion of the Court. 

these circumstances it seems very manifest that the redress she 
asks cannot be granted without violating well settled rules. 
The rule to show cause is discharged. 

Urror assigned among others was refusal to make absolute 
the rule to show cause why the judgment should not be va- 
cated or set aside. 

2>. H. Schroeder^ for appellant. 

John F. Smithy for appellee. 

Peb Cubiam, December 18, 1897 : 

The very earnest argument of the defendant's counsel has 
failed to convince us that the court committed error in dis- 
charging the rule entered in the present case or in entering 
judgment in the succeeding case. Its action in both cases is so 
thoroughly vindicated in the opinions filed as to render further 
discussion unnecessary and unprofitable. 

Order aflSrmed and appeal dismissed at the cost of the appel- 
lant 



P. A. Althouse v. Mrs. Jas. B. Hunsberger, with notice 
to terre-tenant, if any. Catharine M. Hunsperger, 
Appellant. 

Judgment— Bevival^Defense on original merits. 

In an action to revive a judgment, it appearing that defendant had been 
duly served with process in the original proceedings which had been 
prosecuted to judgment, which had never been appealed from, defendant 
must be understood to have waived her right to question its validity. 

Argued Nov. 9, 1897. Appeal, No. 149, Oct T., 1897, by 
defendant, from judgment of C. P. Berks Co., May T., 1897, 
No. 23, reviving and continuing lien of judgment et quare exe- 
cutionem non. Before Rice, P. J., Wickham, Beaver, Or- 
LADY, Smith and Porter, JJ. Affirmed. 

Sci. fa. to revive judgment. Before Endugh, J. 

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164 ALTHOUSE v. HUNSBERGER. 

Statement of Facts — Assignment of Errors. [6 Pa. Superior Ct. 

The facts sufficiently appear from a portion of the opinion of 
the court below, which is as follows : 

This is a sci. fa. to revive the lien of a judgment entered to 
No. 48, May term, 1892, J. D., on a transcript from an alder- 
man's docket, et quare executionem non. The writ was issued 
against " Mrs. James B. Hunsberger with notice to terre-ten- 
ants, if any," and returned served on Mrs. James B. Hunsber- 
ger, defendant, and George M. Christ, terre-tenant. Affidavits 
of defense have been filed by the latter and by Catharine M. 
Hunsberger. 

The affidavit of Catharine M. Hunsperger starts out with an 
admission that the affiant is the party sued as *' Mrs. James B. 
Hunsberger." It then recites the history of the litigation out 
of which the judgment sought to be revived arises, again aver- 
ring the identity of " Mrs. James B. Hunsberger," " Kate Huns- 
berger" and the affiant, and declares that the judgment of the 
alderman against her was given fraudulently, in pursuance of a 
conspiracy between the alderman and the plaintiff, the former 
having knowledge that a previous suit before another magis- 
trate, between the same parties and for the same cause of action, 
had been decided in her favor, which decision was not appealed 
from, and having assured her that he would not enter judg- 
ment against her. There is no allegation that she was ignorant 
of the entry of the judgment by the alderman. What is not 
averred in an affidavit of defense is taken not to exist: Lord v. 
Ocean Bank, 20 Pa. 384. If defendant was cognizant of the 
decision against her, it was her right and duty to appeal or 
certiorari the proceeding before the alderman. Not having 
chosen to do so, she must be understood as having waived her 
right to question its validity. The matters alleged in her affi- 
davit, therefore, would not avail her as a defense before a jury, 
and are for that reason (Wanner v. Eman. Church, 174 Pa. 
466), insufficient to prevent judgment against her. 

Judgment of revival in favor of plaintiff for $36.40. Defend- 
ant appealed. 

Error assigned was in making the rule for judgment abso- 
lute against Mrs. James B. Hunsberger. 

2>. E. Schroeder, for appellant. 

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ALTHOUSE t;. HUNSBERGEB. 165 

1897.] Opinion of the Court 

John F. Smithy for appellee. 

Pbb Cubiam, December 18, 1897 : 

The judgment is affirmed. (See preceding case.) 



Benjamin Irwin^ Assignee, Appellant, v. James F. Han- 
thorn and Ellen Hanthorn. 

iVocttce, Superior Cour^^ Appeals— Sufficiency of bail. 

Under tlie act of 1895 an appeal to the Superior Court was not effectual 
unless bail for the costs of the appeal be given, and an appeal was dis- 
missed where the judge of the court below, on exception taken to the suf- 
ficiency of the bail bond, made the following order: ** After hearing I 
decline to approve within bond, because not signed by the pliuntiff, and 
the insufficiency of the security offered.^' 

Appeal— Practice^ C. P. — Execution for costs. 

An appeal will not be sustained assigning error in an execution for costs 
based on the assumption that they had not been taxed by the prothonotary 
where the record of the proceedings prior to the execution has neither been 
printed nor brought up, and where there is no allegation that the appel- 
lant filed exceptions or made any effort to have the legality of the costs 
adjudicated in the regular way. 

Costs— Taxation — Practice, C. P. 

Conceding that the court has the inherent power to determine in a sum- 
mary way the legality of costs, the oi*derly and usual method of invoking 
the exercise of the power is by filing exception, entering a rule to have 
the costs taxed or retaxed before the prothonotary, and appealing from his 
decision to the court of common pleas. 

Argued Nov. 19, 1897. Appeal, No. 170, Nov. T., 1896, by 
plaintiff, from order of C. P. Chester Co., Aug. T., 1896, No. 102, 
to set aside execution issued for costs. Before Rice, P. J., 
WiOKHAM, Bbavbb, Reedeb, Oblady, Smith and Pobteb, J J. 
Affirmed. 

Rule to set aside execution for costs. Before Hemphill, J. 

It appears from the record that a judgment of compulsory 
nonsuit was entered against the plaintiff in this case in 1895, 
and was subsequently affirmed by the Superior Court in 1896 
(see Irwin v. Hanthorn, 1 Pa. Superior Ct 149). An execu- 



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166 IRWIN V, HANTHORN. 

Statement of Facts — ^Assignment of Errors. [6 Pa. Superior Ct. 

tion was subsequently issued for sheriff's and prothonotory's fees 
and costs. This rule was discharged in an opinion by Hemp- 
hill, J., as follows : 

This is a rule to show cause why the above execution issued 
for costs, shall not be set aside, because the same have never 
been taxed by the prothonotary. An inspection of the record 
shows that the execution was issued, not strictly speaking, for 
costs but for fees, the amount being made up of officers' fees 
and verdict and judgment fees. 

" Costs," says Mr. Justice Gibson, in Musser v. Good, 11 
S. & R. 248, " are an allowance to a party for expenses incurred 
in conducting his suit; fees are a compensation to an officer for 
services rendered in the progress of the cause." 

See also Howard Asso. v. Phila. & Reading R. R. Co., 102 
Pa. 220. The former are party costs and require taxation; 
but the latter being officers' fees or record costs, do not. That 
party costs alone require taxation is apparent from our rule of 
court, relaitive to taxation of costs, which provides that " the 
affidavit of the party or other pereon to the correctness of the 
bill and the attendance and materiality of the witnesses, shall 
be annexed and shall be good prima facie evidence to the tax- 
ing officer." There being no party bill of costs filed in this case 
there was nothing for the prothonotary to tax, and the rule is 
therefore dismissed. 

OBDEB OF COURT ON BACK OP BOND. 

October 21, 1896, after hearing, I decline to approve within 
bond because not signed by plaintiff, and the insufficiency of 
the surety offered. 

Urrora {uaigned were (1) In awarding the executions in this 
case. (2) In refusing to set aside the execution of No. 102, 
August term, 1896, issued for costs. (8) In its opinion filed in 
deciding that it was not necessary to tax officers' fees in a suit 
in court. (4) In its order of October 21, 1896, made on the 
back of the bond on appeal, said order being as follows: "After 
hearing I decline to appi*ove within bond because not signed by 
plaintiff, and the insufficiency of the surety offered." (6) In 
not allowing the appellant a reasonable time in which to either 
have the surety justify or procure additional sureties. 



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IRWIN V. HANTHORN. 167 

1897.] Opinion of the Court. 

W. S, Harris^ for appellant. 

J. Frank E. Hause^ for appellee. 

Pbb Cubiam, December 13, 1897 : 

A scire facias sur mortgage was issued by the plaintiff against 
the defendants and upon the trial of the issue a verdict was 
rendered for the defendants. The plaintiff appealed to this 
court from the judgment entered thereon, and the judgment of 
the court below was affirmed (1 Pa. Superior Ct. 149). A 
fi. fa. was afterwards issued to collect the costs. Upon the 
plaintiff's petition alleging " that the costs in said case liave 
never been taxed or the amount due ascertained by any process 
of law whatever " the court granted a rule to show cause why 
the execution should not be set aside. From the order dis- 
charging this rule the present appeal was taken on October 16, 
1896. 

The defendants excepted to the sufficiency of the bail on the 
appeal bond, and on October 21, 1896, a judge of the court 
below made the following order: "After hearing, I decline to 
approve within bond because not signed by the plaintiff, and 
the insufficiency of the surety offered." The effect of this 
order was to leave the appeal in the same condition as if no 
bail had been entered ; and under the Act of June 24, 1895, 
P. L. 212, an appeal to this court was not effectual for any pur- 
pose unless bivil for costs of the appeal was given : Marks v. 
Baker, 2 Pa. Superior Ct. 167 ; Page v. McNaughton, 2 Pa. 
Superior Ct. 519. Doubtless the court might, and perhaps ought 
to have permitted the plaintiff to enter new bail within a reason- 
able time after the original bail was adjudged insufficient, if 
proper application had been made ; but the record brought up to 
us fails to show that such application was made, or that a new 
bond was filed or tendered ; and, of course we must be guided 
by the record. 

Even if the motion to quash were not to prevail we would 
be unable to sustain the assignments of error. The complaint 
is, that the execution for costs was improvidently issued, be- 
cause, as we are asked to assume, they had not been taxed by 
the prothonotary. But whether or not there was such taxation 
of them, as, in the absence of exception and appeal from the 



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168 IRWIN V. HANTHORN. 

Opinion of the Court. [6 Pa. Superior OL 

protlionotary's action, would be sufficient to support the execu- 
tion, and whether or not the costs taxed were specifically such 
as the law allows are questions which a court of error cannot 
decide without having before it the record of the proceedings 
prior to the issuing of execution. This has neither been printed 
nor brought up ; all that we have before us are the execution 
docket entries, the executions and what follows. These are 
not sufficient to show the error complained of. Furthermore 
the plaintiff does not allege in his affidavit that he filed any 
exceptions to the fees charged by the sheriff and prothonotary 
(for the collection of which the execution issued) or that 
they were illegal, or that he had made any effort to have their 
legality adjudicated in the regular way. Conceding that the 
court possesses the inherent power to determine in a summary 
way the legality of such charges, as well as the party's bill of 
costs, the orderly and usual mode of invoking the exercise of 
the power is by filing exceptions, entering a rule to have the 
costs taxed or retaxed before the prothonotary, and appealing 
from his decision to the court of common pleas. The plaintiff 
does not claim that he attempted to pursue this course ; and in 
the absence of specific exceptions to tlie fees charged or aver- 
ment in his affidavit that they were illegal or excessive, the 
court committed no error in refusing to set aside the execution. 
Appeal dismissed at the cost of the appellant. 



Samuel Goodman, Wm. E. Goodman and Joseph E. Good- 
man, trading as Harrington & Goodman, Appellants, 
V. The Merchants' Despatch Transportation Company. 

Coniract^Shipping receipt — Bitt of lading. 

When a shipping receipt provides that : ** The acceptance of this receipt 
for goods made subject to the provisions of the bill of lading of this com- 
pany makes this an agreement between the M. D. T. Co. and camera 
engaged in tmnsporting said goods and all parties interested in the prop- 
erty," such provision in the receipt requires the shipping receipt and the 
bill of lading to k>e i-ead together as constituting the agreement. 

Common carrier— Misdelivery of goods — Evidence — Question for Jury, 
A suit was brought by plaintiff against a transportation company for 
alleged misdeliveiy of goods, consigned to R. of Tyler, Texas, by deliv- 



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GOODMAN V. TRANSPORTATION CO. 169 

1897.] Syllabns— Charge of Court. 

ering same to M. at Dallas, Texas. Held, that the question was for the 
jmy under the tenns of the contract as entered into between the transpor- 
tation company and the consignor, as evidenced by the shipping receipt 
and bill of lading, whether the company had shown a good excuse other 
than negligence, for not having delivered the goods to R. the consignee ; 
whether it did all that a prudent, reasonable, comroonsense business man 
would have done to insure a proper delivery to the pmper person ; and 
whether the transportation company had shown that it was not negligent. 

Common carrier— Negligence imicliven/ of goods— Question for jury , 
In a question of negligence arising from alleged misdelivery of goods 
by a transportation company, held, that the JU17 may take into consider- 
ation the conduct of consignor towaixi the person to whom the goods were 
delivered after receipt by him and any delay which may have occurre<l 
in notifying the transportation company of such alleged misdelivery and 
the relation of the recipient of the goods toward the consignee. 

Argued Oct. 7, 1897. Appeal, No. 67, Oct. T., 1897, by 
plaintiffs, from judgment of C. P. No. 4, Phila. Co., March T., 
1895, No. 1052, on verdict for defendant. Before Rice, P. J., 
WiCKHAM, Beaver, Reedee, Orladv, Smith and Por- 
ter, JJ. AflSrmed. 

Assumpsit for the recoveiy of the value of certain gootls 
amounting to $430.69 alleged to have been misdelivered by 
defendant company. Before Audenreid, J. 

The facts sufficiently appear in the charge of the court below, 
which is as follows : 

As I understand the undisputed facte in this case, they are 
briefly these : On the 18th of February, 1890, the firm of Har- 
rington & Goodman in this city packed up and shipped to a 
man named W. B. Robinson, at Tyler, Texas, a case of dry 
goods, of the value of ♦430.69. These goods were forwarded 
to Robinson by the hands of the Merchants' Despatch Trans- 
portation Company, to which they were delivered on the date 
before mentioned. That company gave to the shippers, Har- 
rington & Goodman, a shipping receipt, in which the package 
containing the goods is described and specified by reference 
to the marks upon it, W. B. Robinson, Tyler, Texas, via St. 
Louis. [The goods seemed to have reached St. Louis in good 
order, and to have been passed on from that point to Tyler, 
Texas, by the Pacific Express Company. On their arrival 



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170 GOODMAN v. TRANSPORTATION CO. 

Charge of Court. [6 Pa. Superior Ct. 

at Tyler a party named A. J. Michell, who for a long time 
prior to that date had been conducting business at Tyler as a 
sort of general agent for the consignee named in the receipt, 
went to the agent of the express company, and directed the 
reshipment of the goods to Dallas, Texas, to the firm of Micli- 
ell & Co. The Pacific Express Company forwarded the goods 
to Dallas per his request.] [9] They were received by Mich- 
ell & Co., who have since failed to pay for them, except to the 
extent of $50.00. [It does not seem to be disputed that A. J, 
Michell had been W. B. Robinson's agent at Tyler, an agent 
charged with various general and extensive powers. It appears 
from his own testimony that he was in the habit of receiving all 
goods consigned by express or freight to Robinson, of keeping a 
bank account in Robinson's name and of honoring drafts drawn 
on Robinson at that point. His powers, as you see, were very, 
very extensive. He was practically, as I recall the testimony 
which was read from his deposition, Robinson's alter ego at that 
point, with authority to do pretty much all that Robinson could 
himself if he were there.] [10] The firm of Harrington & 
Goodman failing to collect from Robinson or from Michell & 
Co. the full value of the goods embraced in this shipment, have 
sued the Merchants' Despatch Transportation Company for the 
value of the consignment, charging it as carrier with the value of 
the goods committed to it, but which it has since failed to de- 
liver or to return to the consignors. The defense, I take it, is 
of the following character: It is asserted, in the first place, on 
behalf of the defendant, that it is not a common earner of goods, 
but that its position is that of a forwarder. It claims to be a 
corporation which receives and forwards goods, taking upon 
itself the expense of transportation, for which it receives a com- 
pensation from the owners of the goods, but it has no concern 
in the vessels or wagons or cars by which the goods are trans- 
ported, and no interest in the freight as freight. [It claims, 
therefore, that it not to be regarded as a common carrier, but 
as a mere bailee for hire. It stands on the doctrine of law that 
a bailee for hire, of the character of forwarder, is not bound, as 
is a common carrier, to deliver the goods committed to its care 
for transportation safely, at all events, except in a case where 
such safe delivery has been made impossible by the act of God 
or of the public enemy, but is bound only to perform its duty oi 



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GOODMAN V, TRANSPORTATION CO. 171 

1897.] Charge of Court. 

traDsportation with care and fidelity, and show that any loss of 
the goods which may have arisen, has arisen not through its 
default or through the default of its servants. On that propo- 
sition of law the defendant claims to be excused from any lia- 
bility to the plaintiffs in this case, because, it is said, it has 
used due care and diligence in the handling and delivery of the 
plaintiffs' goods.] [11] 

Another point of its defense is that it has complied with the 
contract made between it and the firm of Harrington & Good- 
man, in this, that since the intention of the firm of Harrington 
& Goodman was that the goods should be delivered to A. J. 
Michell, although the consignment was made to Robinson, 
Michell was the real party to whom it was intended the goods 
should be delivered, and that as he did get the goods, it is dis- 
charged. Failing that, it stands upon the point that Michell 
was Robinson's agent to receive these goods, and that the course 
of Robinson's dealings through Michell at Tyler, had been such 
as to justify it and its agents (not only as to Robinson, but as 
to all parties dealing with Robinson through them) in the be- 
lief that Michell had the authority to receive the goods, or to 
cause them to be forwarded to some other party at some other 
point. That I understand to be the defense outlined by the 
counsel for the Merchants' Despatch Transportation Company. 
[Besides this, it claims, and I think the claim is one to wliich 
you must pay great attention, that Harrington & Goodman have 
ratified the delivery of these goods to Michell & Co. by accept- 
ing a payment on account of their price from Michell, and by 
failing to complain of that misdelivery until nearly twenty 
months had elapsed after the date of the consignment of the 
goods.] [12] 

[It is my opinion, and I charge you as matter of law, that 
under the terms of the contract entered into between the con- 
signors and the transportation company, as evidenced by the 
shipping receipt and the bill of lading, it was the duty of the 
transportation company to deliver that case of dry goods to Mr. 
Robinson at Tyler, Texas, or show a good excuse for not hav- 
ing done so, that excuse being something other than negligence 
on their part or on the part of their employees or agents in the 
delivery of the goods. It lies on the transportation company to 
show that it was not negligent, and that under the circumstances 



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172 GOODMAN v, TRANSPORTATION CO. 

Charge of Court. [6 Pa. Superior Ct. 

of the case, its employees did all that prudent, reasonable, 
commonsense business men would have done to insure a proper 
delivery to the proper person of the goods which it received 
from these plaintiffs. It is for you to determine whether they 
have done that, whether they have performed their full duty in 
delivering these goods.] [13] 

[If you believe that the goods in question were delivered to 
a person especially authorized by the consignee or by the con- 
signee's genei-al course of dealing with him, to receive these 
goods, and that the reshipment of the goods to Dallas, Texas, 
was within the powers of Michell, as evidenced by the course 
of dealing, to which he has testified, between himself and Rob- 
inson, then you must find a verdict for the defendant.] [14] 

[In determining whether or not these parties were negligent, 
you have a right to take into consideration the fact that Har- 
rington & Goodman, after the delivery of these goods, corre- 
sponded with Michell & Co., and received money from them, 
and treated them just as if they had been the parties to whom 
the consignment had originally been made.] [15] 

[If, on the other hand, you are of the opinion tliat the Mer- 
chants' Despatch Transportation Company was negligent in 
making the delivery in Tyler, Texas, and in reshipping the goods 
to the new consignees named by Michell, viz., Michell & Co., 
at Dallas, Texas, if you believe that there was nothing in the 
course of dealings between Robinson and the expi^ess agents at 
Tyler to warrant the belief that Michell had authority to give 
the order for the reshipment which he then gave, your verdict 
must be for the plaintiff,] [16] and the verdict in their favor 
must be for the amount of tlie bill of goods, $430.60, with inter- 
est from April, 1890, less the $50.00 which have since been paid 
by Michell & Co., and which counsel for the plaintiffs have 
agreed shall be credited upon this claim. 

I have been requested by the plaintiffs' counsel to charge you 
as follows : 

1. Under the receipt offered in evidence, the defendant is re- 
sponsible, as a common carrier, for the through carriage of the 
case of dry goods from Philadelphia to Tyier, Texas. An- 
%wer : That point I refuse. [17] 

2. Under the bill of lading offered in evidence, the defend- 
ant is responsible, as a common carrier, for the ttirough car- 



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GOODMAN V. TRANSPORTATION CO. 173 

1897.] Charge of Court. 

riage of the case of dry goods from Philadelphia to Tyler^ 
Texas. Answer : That point I refuse. [18] 

8. If the jury believe, under the evidence, that the defend- 
ant agreed to carry said case of dry goods from Philadelphia to 
Tyler, Texas, the defendant is responsible for the through car- 
riage of said goods and the delivery thereof to W. B. Robinson. 
Answer : That point I afi^m. 

4. The defendant had no right, without plaintiffs' authority, 
to deliver to any other person than W. B. Robinson. An- 
swer : That point I affirm, with this qualification : It was their 
right to deliver the goods either to W. B. Robinson, or W. B. 
Robinson's duly authorized agent, and, if you find that Michell 
was Robinson's duly authorized agent to receive the goods or to 
order their reconsignment and reshipment to another point, your 
verdict must be for the defendant. [19] 

$. The misdelivery of the case of dry goods, or the delivery 
to the wrong person, is not a "loss, detriment or damage," 
within the meaning of the words in the foUowmg provision of 
the receipt, to wit : " It is further stipulated and agreed that in 
case of any loss, detriment or damage, done to or sustained by 
any of the property herein receipted for, during such transpor- 
tation, whereby any liability or responsibility shall or may be 
incurred, that company alone shall be held answerable therefor 
in whose actual custody the same maybe at the time of the hap- 
pening thereof," and said provision in the receipt is no answer 
to plaintiff's claim in this case. Answer : That point I affirm. 

6. The misdelivery of the said case of dry goods, or the deliv- 
ery to persons not entitled to receive it, is not a " loss " or " dam- 
age " within the meaning of the words in the third condition of 
the bill of lading, to wit : " No carriers shall be liable for loss or 
damage not incurred on its own road. . . . Claims for loss 
or damage must be made in writing to the agent at point of 
delivery promptly after arrival of the propert}'', and if delayed 
for more than thirty days after the delivery of the property, or 
after due time for the delivery thereof, no carrier hereunder 
shall be liable in any event." And said condition is no answer 
to plaintiff's claim in this case. Answer : That point I affirm. 

7. The third condition of the bill of lading which provided 
that "Claims for loss or damage must be made in writing to the 
agent at point of delivery promptly after the arrival of the prop- 



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174 GOODMAN v. TRANSPORTATION CO. 

Chai'ge of Court. [6 Pa. Superior Ct. 

erty, and if delayed for more than thirty days after the deliv- 
ery of the property, or after due time for the delivery thereof, 
no carrier hereunder shall be liable in any event," is binding, if 
at all, upon the consignee only and not upon the shipper. An- 
swer : That point I affirm. 

8. The third condition of the bill of lading quoted in the 
seventh point, if it does apply to the shipper, is an unreasonable 
condition. Ayistoer : That point I affirm. 

9. The defendant must deliver the bill of lading at or near 
about the time the goods were received for transportation in 
order to claim the benefit of the provisions of the third condi- 
tion in the bill of lading. Answer : That point I refuse. It was 
the right of the plaintiffs in this case to ask for a bill of lading, 
and if they did not do it, it was their own fault. [20] 

10. As the goods shipped to W. B. Robinson, February, 1890, 
were delivered to Michell in April, 1890, and no bill of lading 
or copy thereof was delivered or handed to plaintiffs imtil Sep- 
tember, 1891, the defendant cannot claim the benefit of the 
provisions of the third condition of the bill of lading. An- 
swer : That point I affirm. 

11. If the defendant relies upon the third condition of the 
bill of lading, quoted in the seventh point, it thereby affirms that 
the bill of lading is the contract between the parties to this suit. 
Answer : That point I affirm. 

12. The acceptance of any pajrment on account by the plain- 
tiffs, from the person or persons, to whom the goods were wrong- 
fully delivered, is no bar to this suit against the carrying 
company, but the amount so received goes in reduction of dam- 
ages. Answer : Tliat point I affirm. Although I will add this 
qualification, that it seems to me that the receipt of money on 
account of the price of these goods from the parties in whose 
hands the goods came after their reconsignment from Tyler, 
Texas, is evidence to show a ratification and approval of the de- 
livery which was made by the defendant to Michell & Co. [21] 

18. Under all the evidence in this case, the verdict must be 
for the plaintiffs. Answer: That point I refuse. [22] 

I have been requested by the defendant to charge you as fol- 
lows: 

1. The defendant's contract in respect of the goods in ques- 
tion required it only to carry said goods promptly and properly 



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GOODMAN V, TRANSPORTATION CO. 175 

1897.] Charge of Court. 

to East St. Louis, and there promptly to deliver them in good 
order and condition to tlie next carrier on their route to desti- 
nation, exercising reasonable care and prudence in the selection 
of the next succeeding carrier. If defendant has done this, it 
cannot be held responsible for damage to or loss of the said 
goods happening beyond East St Louis, or for the failure on 
the part of the carrier or carriers beyond East St. Louis to fulfil 
their obligations in respect of the said goods. AriBwer: That 
point I refuse. I regard the duty of the defendant in this case 
to be that it should deliver the goods not to East St. Louis only, 
but to Tyler, Texas. That was the destination fixed by their 
contract. 

2. Plaintiffs having accepted without question the benefits 
of what they claim to be an unauthorized delivery of the goods 
in question, knowing at the time that the goods were delivered 
to other than the consignee, are estopped from disputing the pro- 
priety of such delivery. Answer : That point I refuse. I do not 
regard their collection of the sum, which it is admitted they 
received from Michell & Co., to amount to an estoppel, but I 
regard the receipt of that money, and the attempt to collect 
more from Michell & Co. as extremely strong evidence that the 
delivery made, as has been described by the Merchants* De- 
spatch Transportation Company, or their subagents at Tyler, 
was ratified and approved by the plaintiffs in this case. [23] 

3. Plaintiffs having failed to notify the defendant until a 
year and a half after the delivery of the goods in question at 
the terminus to other than the consignee, and having known 
all that time that such delivery was made to other than the 
consignee, if defendant, owing to such failure to so notify, was 
misled to its injury to believe the said delivery was proper, 
plaintiffs are estopped from asserting that such delivery was 
erroneous. Answer : That point I will refuse, but I regard their 
failure for a year and a half after the delivery of the goods to a 
person other than the consignee named in the shipping receipt, 
to notify the transportation company of such misdelivery ex- 
tremely strong evidence that the plaintiffs concurred in that 
delivery and ratified the act of the defendant in giving the 
goods to Michell & Co. [24] 

4. Plaintiffs having recognized, as the party to whom the 
goods ought to have been delivered, the party who actually did 



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176 GOODMAN v, TRANSPOUTATION CO. 

Charge of Court. [6 I'u. SupeHor Ct. 

receive them, by writing him for payment and accepting from 
him part payment therefor, are estopped from claiming that said 
goods were delivered to the wrong party. Anmjoer: That point I 
refuse. I do not regard such acts as an estoppel; but, as I 
liave already said, in my opinion, that is very strong evidence 
of an acquiescence in the deliver}' wliich was made by this de- 
fendant to Michell & Co., and a ratification of what the trans- 
portation company did in fulfilling its contract, or an acceptance 
of the act of the defendant company as a complete fulfilment 
and discharge of their contract of transportation. [25] 

5. By the terms of the contract of shipment as claimed by 
plaintiffs herein, it is provided that " claims for loss or damage 
must be made in writing to the agent at point of delivery 
promptly after arrival of the property, and if delayed for more 
than thirty days after the delivery of the property, or after due 
time for the delivery thereof, no carrier hereunder shall be liable 
in any event ; " and, as this provision is binding upon plaintiffs 
and they have failed to show a compliance therewith, they are not 
entitled to recover any damages for alleged loss of, or damages 
to, the goods in question. Answer: That point I refuse. 

6. Under the provisions of the contract of shipment in ques- 
tion, the plaintiffs are not entitled to recover, and your verdict 
should be for the defendant. Answer: That point I refuse. 
1 think I have charged you as fully as the case warrants, and 
I shall leave the matter in your hands. It is your duty to ren- 
der a fair verdict. Let not the fact that the defendant is a cor- 
poration influence you in this matter. You are sworn to try 
the case on the law and the evidence. [If you believe that the 
defendant company performed its contract to transship these 
goods to Robinson, at Tyler, Texas, negligently, that a reship- 
nient to Dallas, under a reconsignment to Michell & Co., was a 
thing, which, under the circumstances, no reasonable, sensible, 
ordinary, everyday, commonsense man would have done, then 
your verdict must be for the plaintiffs for the amount which 
they have claimed ; but, if you believe that, the defendant com- 
pany, or its agent, the Pacific Express Company, did just what 
any reasonable, commonsense, everyday business man would 
have done under the circumstances, and that they were not 
guilty of negligence, then your verdict must be for the defend- 
ant.] [26] And so, if you believe that the plaintiffs have acqui- 



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GOODMAN V, TRANSPORTATION CO. 177 

1897.] Charge of Court — Arguments. 

esced in the delivery made and have accepted what the defendant 
did as a fulfilment and discharge of its contract. 

Verdict and judgment for defendant. Plaintiffs appealed. 

Errors assigned among others, were (9-16) To portions of 
the judge's charge, reciting same. (17-25) In answers to the 
points, reciting said points and answers. (26) To a portion of 
the judge's charge, reciting same. (27) In presenting the case 
to the jury in the general charge and answers to points as set 
forth in the foregoing assignments of error in an inadequate, 
partial, unfair and misleading manner. (28) In not presenting 
to the jury a full, fair and impartial view of the plaintiffs' case 
under the evidence and the law. 

Wm. E. Burnett^ with him Sheldon Potter and John Spar- 
hawk^ Jr.^ for appellants. — The court erred in refusing plain- 
tiffs' thirteenth point, which was as follows : " Under all the 
evidence in this case the verdict must be for the plaintiffs." 

The bill of lading is the contract between tlie parties : Clyde 
V. Hubbard, 88 Pa. 358. 

The defendant company falls within the class of companies 
which have been decided to be common carriers : Bank v. Ex- 
pi-ess Co., 93 U. S. 174 ; Buckland v. Express Co., 97 Mass. 
124 : 2 Am. & Eng. Ency. of Law, 783, and notes. 

The shipping receipt was delivered up to the defendant and 
acespied by it when the bill of lading \^as issued. The mere 
lapse of time between the giving of the shipping receipt and 
the bill of lading was not important : Goodman v. Transporta- 
tion Co., 3 Pa. Superior Ct. 282. 

The word " forward " of itself is not sufficient to convert a 
contract of carriage into one to "forward" merely: Clyde v. 
Hubbard, 88 Pa. 358; Porter on Bills of Lading, Ch. 23, sees. 
325, 333, 337 ; Buckknd v. Express Co., 97 Mass. 124. 

There is nothing in the contract itself which is any defense 
to plaintiffs' claim. 

The claim in this case is for damages for a wrongful delivery. 

Condition 3 of the bill of lading provides : " No carrier shall 
be liable for loss or damage," etc., and in this respect the bill 
of lading and the shipping receipt agree, except that the latter 
adds the word " detriment." 
Vol. VI— 12 



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178 GOODMAN r. TRANSPORTATION CO. 

Arguments. [6 Pa. Superior Ct. 

This condition affords no defense, because a wrongful de- 
livery is not a "loss, damage or detriment:" Clyde v. Hub- 
bard, 88 Pa. 358; Porter v. Ex. Co., 4 So. Car. (Richardson), 
136. 

This provision does not apply to the shipper but only to the 
consignee. As to the former, it would be entirely unreason- 
able. 

There is no evidence that the consignor had any knowledge 
of the misdelivery until six months after it had occurred. 

There was no evidence offered which would support any 
defense to the plaintiff's claim under the contract. 

The contract was to deliver to W. B. Robinson at Tyler, 
Texas. 

Proper delivery is as much a part of this contract as safe 
transportation : Pa. R. R. Co. v. Stem, 119 Pa. 24 ; Wemwag 
V. R. R. Co., 117 Pa. 46. 

The defendant was bound to know whether Michell & Co. 
were the agents of Robinson, or had any authority to receive 
these goods : Wemwag v. Railroad Co., 117 Pa. 46. 

There was no sufficient evidence of the ratification of de- 
fendants' wi'ongful delivery by the plaintiffs, to deprive plain- 
tiffs of the right of action against defendants : 14 Am. and Eng. 
Ency. of Law, 826. 

The acceptance of payment on account from the party who 
obtained possession by the wrongful delivery, is no ratification 
by the principal, and dbes not discharge the defendant from the 
consequences of his wrongful act : 2 Am. & Eng. Ency of Law, 
903; Railroad Co. v. Pumphrey, 69 Md. 390; Forbes v. Rail- 
imd Co., 133 Mass. 164; Jellett v. R. R. Co, 30 Minn. 266, 
Rosenfield v. Express Co., 1 Woods, 131 ; 2 Sedgwick on Dam- 
ages, sec. 853, p. 622. 

The judge's instruction to the jury was throughout erroneous, 
because he charged the jury: That the question in the case wiis 
one of negligence. 

Even if the judge was right in leaving the case to the jury, 
his charge was unfair and partial, upon the subject of ratifica- 
tion, and did not fairly present the plaintiffs' case. 

This part of the charge is particularly set forth in assign- 
ments 12, 16, 23, 24 and 25. And the error consists in present- 
ing to the jury one view only of the evidence, and that the view 



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GOODMAN V, TRANSPORTATION CO. 179 

1897.] Arguments. 

which defendants relied upon to prove ratification and in neg- 
lecting entirely to present the plaintiffs' view; and in throwing 
the weight of the judicial opinion entirely in favor of defendant. 
This is error : Larzelere v. Tiel, 8 Pa. Superior Ct. 109 ; Min- 
ick V. Gring, 1 Pa. Superior Ct. 484. 

The judge referred to the acceptance of payment on account 
as evidence only of ratification, and strongly intimated to the 
jury that, in his opinion, that was all it was. 

He did not notice the plaintiffs' position that they had a 
right to accept money for their goods from any person who 
wrongfully came into possession of them, and they were not 
bound to rely for payment in full from a person who might be 
without responsibility, and who resided several hundred miles 
away. 

Nor did he call attention to the fact that the carrier had never 
notified plaintiffs of the delivery ; nor that the carrier had re- 
ceived all he was entitled to receive by having the amount paid 
on account deducted from the damages he would otherwise have 
been obliged to pay. 

Cha%. Heebner^ with him J. Claude Bedford^ for appellee. — 
It is submitted that the appellants have no just ground for com- 
plaint as to the trial of this cause in the court below. What 
the Superior Court (see 8 Pa. Superior Ct. 282) indicated as 
errors in the former trial were remedied in this latest trial ; 
the so-called bill of lading was admitted in evidence, and the 
facts in the case were submitted to the jury and submitted 
fairly for the plaintiffs. 

It is admitted that these goods were carried '* safely, promptly, 
and properly " to destination, and there was no attempt to show 
that defendant had a " line " or " route " extending to destina- 
tion, Tyler, Tex., and, in point of fact, it did not have such 
" line " or " route." The defendant is distinctly a forwarding 
company, holding itself out as such, and known as such, not 
having any road or owning or controlling any motive power, 
but having special facilities for accomplishing the expeditious 
movement of freight. The engagement in this receipt is by ex- 
press words to forward. The word "forward" has a distinct, 
well-recognized meaning in contracts for the transpoj-tation of 
goods, and all the terms of this shipping receipt show plainly that 



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180 GOODMAN v. TRANSPORTATION CO. 

Arguments— Opinion of the Court. [6 Pa. Superior Ct. 

the word " forward " in it was used there in its well-known and 
legal sense. See MiiUarkey v. R. R. Co., 9 Phila. 114, and 
Express Co. v. Bank, 69 Pa. 894. See also plaintiflPs argiv- 
ment in report of the former hearing, 3 Pa. Superior Ct. 884. 

Opinion by Beaver, J., December 13, 1897 : 

When this case was before us nearly a year ago, we sent it 
l)ack, in order to allow the bill of lading furnished by the 
defendant to the plaintiffs to be received in evidence, and also 
that the facts relating to the delivery of the goods by the de- 
fendant to the consignee might be submitted to the jury. Both 
of our directions were obseived in the trial of the cause. A 
verdict was found by the jury for the defendants, upon which 
judgment was entered and from which the plaintiffs appeal. 

The record shows twenty-eight assignments of error, but the 
first eight of these were practically withdrawn at the argument 
as not having been made in accordance with our rules. The 
material questions in the case related to the deliveiy of the 
goods shipped by the plaintiffs to the consignee at the place of 
destination, and the effect of the receipt of a portion of the value 
of the goods by the plaintiffs from a person other than the con- 
signee. The consideration of these questions involves others 
which are, for the most part, collateral and incidental. The 
main point in the case was the delivery to Michell, as the agent 
of the consignee, and the reshipment of the goods by his direc- 
tion to a point other than the place of destination. The facts 
in regard to this delivery were in the main fairly submitted to 
the jury. 

The plaintiffs make their principal argument on the twenty- 
second assignment of error which involves the refusal of the 
court to affirm the point that " under all the evidence in this 
case, the verdict must be for the plaintiffs." It is difficult to 
see how the court could have affirmed this point, in view of our 
directions in Goodman v. Transportation Company, 3 Pa. Su- 
perior Ct. 282, in which we say that " the facts should have 
l)een submitted to the jury," referring to the facts in relation to 
the delivery. 

The only question in the case is as to the manner in which 
those facts were so submitted. All of the plaintiffs* points, 
except the first, second, ninth and thirteenth, were affirmed 



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GOODMAN V. TRANSPORTATION CO. 181 

1897.] Opinion of the Court. 

absolutely or with proper qualifications. How the plaintiffs 
could consistently ask the court to say that " under the i-eceipt 
offered in evidence, the defendant is responsible as a common 
carrier for the through carriage of the case of dry goods from 
Philadelphia to Tyler, Texas," we cannot understand, their 
whole contention being that the receipt was merged in the bill 
of lading, nor can we see how the court could have affirmed s^ 
like proposition in regard to the bill of lading, when the receipt 
itself provides that " the acceptance of this receipt for goods, 
made subject to the provisions of the bill of lading of this com- 
pany, makes this an agreement between the Merchants' Despatch 
Transportation Company and carriers engaged in transporting 
said goods and all parties interested m the property." 

The receipt and bill of lading, taken together, constituted the 
contract between the parties. No request was made of the 
court to determine as a matter of law whether the contract 
between the parties made the defendants common carriers or 
merely forwarders, and indeed, under the facts of the case, the 
question was of little practical importance. There is no denial 
of the fact that the goods were safely transported and delivered 
at Tyler, Texas. The real question, as we have already inti- 
mated, was, were they properly delivered ? The trial judge in 
the court below, however, evidently treated the contract of the 
defendant as that of a common carrier, and chai'ged the jury 
that '' it was the duty of the transportation company to deliver 
that case of dry goods to Mr. Robinson at Tyler, Texas, or show 
a good excuse for not having done so, that excuse being some- 
thing other than negligence on their part or on the part of their 
employees or agents in the delivery of the goods." The court 
below did not impose any duty upon the plaintiffs of showing 
negligence on the part of the defendant; but, on the other 
hand, made it incumbent upon the defendant to show that it 
was not negligent. 

Taking the charge as a whole, in connection with the answers 
to the points of both plaintiffs and defendant, we can see no 
substantial error. The plaintiffs' side of the case was presented 
to the jury quite as favorably for them as they had a right to 
ask or expect. 

The judgment is affirmed. 



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183 DREIBILBIS v. ESBENSHADE. 

Syllabus — Statement of Facts. [6 Pa. Superior Gt. 

Daniel Dreibilbis v. Peter B. Esbenshade, Appellant. 

Charge of the court— Biased and exiravagarU charge. 

It is reversible error for the court to imi)ort into its charge reference to 
matters which have no bearing on the case and to use extravagant expres- 
sions which tend unduly to inflame the minds of the jury. 

Charge of court — Erroneous construction of evidence. 

It is error for a trial judge to instruct the jury thai alleged slander is 
proven by defendant's own admission when the testimony of the defend* 
ant denied the slander as laid and where his admissions were of a radically 
different statement. 

It is en*or for a judge to assume more than is warranted by the testi- 
mony. 

Evidence— Slander— Hearsay— Irrelevant testimony. 

In an action for slander it is error to admit proof by plaintiff of what 
one of his witnesses had told him that defendant had said the same even- 
ing the alleged slanderous words had been uttered. 

Argued Nov. 11, 1897. Appeal, No. 54, Oct. T., 1897, by 
defendant, from judgment of C. P. Lancaster Co., Jan. T., 1890, 
No. 67, on verdict for plaintiff. Before Rice, P. J., Beateb, 
Reedbb, Oblady, Smith and Pobteb, J J. Reversed. 

Trespass for slander. Before Livingston, P. J. 

It appears from the record that plaintiff's statement alleges 
the defamatory words to be in brief, "Daniel Dreibilbis is a 
thief ; he stole ; he is not honest." And the amended state* 
ment filed alleges the defamatory words to be, " I believe my 
turkeys are over there. I believe the tenant man took them. 
I believe I'll get a search warrant. I think I know where they 
are. I think they are in Hinardier's tenant house. I think 
ril get a search warrant." 

The court admitted, under objection, the plaintiff in the suit 
to be asked and to answer the following questions : [ " Q. Mr. 
Hinardier says he repeated to you at the time exactly what Mr. 
Esbenshade said ? A. That same evening. Q. What did he 
tell you Mr. Esbenshade said ? " Objected to by defendant. Ad- 
mitted. Exception sealed. " Q. What did Mr. Hinardier say 
to you Mr. Esbenshade had said? A. When I came home Hin- 
ardier told me that Esbenshade was here hunting his turkeys* 



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DREIBILBIS V. ESBENSHADE. 183 

1897.] Statement of Facts— Charge of Court. 

Q. What did he tell you Esbenshade had said to him ? A. He 
said he believes I got his turkeys, and he is going in to get a 
search wariunt and search my house ; he is pretty sure I got 
these turkeys." ] [1] 

The court charged the jury as follows : 

This is what is termed in law an action of slander. The 
words here charged are such words as the law requires to make 
an action actionable in itself ; they charge larceny, an infamous 
crime with a severe punishment. [These words as laid are in 
themselves actionable, therefore. Now are they proven? I 
need scarcely say to you that if you believe the testimony of 
the defendant himself you cannot say they are not proven, 
because he tells you he did say about what is there; and,- 
further than that, he went to a magistrate's office and signed 
a paper in which he charged this man, the defendant, with 
the larceny ; had a search warrant prepared for him ; searched 
his house (I think you will find from the evidence in his 
absence, the presence of his wife and child) found nothing 
and left. He was arrested himself, came here and had a hear- 
ing, and was discharged for want of evidence to sustain the 
charge made. against him. So that in this case, according to 
the statements of the defendant himself, your verdict will have 
to be for the plaintiff for some amount ; and the main question 
you will have to decide is what that amount shall be.] [2] 

It is true that he has not produced any evidence to show that 
he has been driven out of society by this charge ; that he has 
suffered any pecuniary loss for want of labor or want of a house 
to live in, or anything of that kind. If he had he would be 
entitled to exemplary or vindictive damages. As it is he is not. 
He is entitled to such damages as will dispossess his mind of 
this charge in this community; such damages as you or either 
of you (for there is no direct measure of fixing them) would 
ask a jury to give under circumstances such as he now labors 
under. 

[This is a record made against him which will not down. The 
record is here, remains in this office, and alwajrs will show what 
the defendant here, Mr. Esbenshade, charged him with. And' 
you will have to render such verdict as in your judgment will 
compensate him for the injury he had received in his reputation 



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184 DREIBILBIS v. ESBENSHADEl 

Charge of Court— Opinion of the Court. [6 Pa. Superior Ct, 

by this charge.] [3] I cannot give you anything by which you 
can measure the damages otherwise than I have stated to you. 
There is no direct measure when there are no direct or inde- 
pendent damages proven. Where these are general, as in this 
case, the judge must judge from those, and their own better 
judgment, if they were in his place, what they would ask a jury 
to give. By doing so they will have complied with the requii*e- 
ments of the law and discharged their duty. 

I don't know that I need say anything further to you iii 
regard to the matter. You will have to take the papers and dis 
pose of the case under the law as I have stated it to you and in 
the manner I have stated to you. 

Verdict and judgment for plaintiff for t250. Defendant 
appealed. 

Errors assigned were (1) In allowing certain questions and 
answers from Samuel Dreibilbis, the plaintiff in this suit, to be 
asked and answered under exception, reciting same. (2, 3) To 
portions of the judge's charge, reciting same. 

J, 0. Arnold^ for appellant. 

J. Hay Brown and W. U. Hensel^ for appellee. . 

Opinion by Beavbb, J., December 13, 1897 : 
Tlie action is slander. The plaintiff, being upon the witness 
stand and under examination, was asked, under objection and 
exeeption, what his own witness Hinardier, previously exam- 
ined, had told him the defendant said the same evening the 
alleged slanderous words had been uttered. The puipose of 
this offer was not stated. We are at a loss to determine in 
what view of the case the evidence received under this offer 
was competent. It differed somewhat from the testimony of 
Hinardier himself but it could not have been offered for the 
purpose of contradicting him nor yet of corroborating him. 
Was it intended to be substantive proof of the slanderous words 
uttered by the defendant, as laid in the plaintiff's statement ? 
If so, it was clearly incompetent. The mere fact that what the 
defendant said to Hinardier had been communicated to the 
plaintiff had been testified to both by Hinardier himself and 
by the plaintiff, without objection. That was as far as it was 



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DREIBILBIS V. ESBENSHADE. 185 

1897.] Opinion of the Court. 

proper to go. The objection should have been sustained and 
the offer rejected. 

The alleged slanderous words, as laid in the plaintiff's 
amended statement, are as follows : " I believe my turkeys are 
over there ; I believe the tenant man took them ; I believe I 
wiU get a search warrant ; I think I know where they are ; I 
think they are in Hinardier's tenant house ; I think I will get 
a search warrant." The testimony of the defendant, who was 
called by the plaintiff, as if under cross-examination, in regard 
to what he said as to the loss of his turkeys was as follows : 
" Q. Did you say to him (Jacob Kohr) talking about Di^eibilbis, 
* I believe my turkeys are over there ? ' A. I didn't mention no 
names. Q. Did you say * I believe my turkeys are over there ? ' 
A. I did, yes. Q. Did you say ' I believe the tenant man took 
them ? ' A. Oh no, no, sir. Q. Did you say ' I believe I will 
get a search warrant?' A. I did that. Q. *I think I know 
where they are,' did you say that ? A. No, I didn't say that. 
Q. Did you say * I think they are in Hinardier's tenant house ? ' 
A. No." 

It will be readily seen that the words as laid in the plaintiff's 
statement and those as testified to by the defendant are essen- 
tially and materially different, and yet in regard to them the 
court said : " These words as laid are in themselves actionable, 
therefore, now are they proven ? I need scarcely say to you 
that, if you believe the testimony of the defendant himself, you 
cannot say they are not proven, because he tells you he did say 
about what is there. And further than that, he went to a mag- 
istrate's office and signed a paper in which he charged this man, 
the defendant, with the larceny, had a search warrant prepared 
for him, searched his house (I think you will find from the evi- 
dence in his absence, the presence of his wife and child) found 
nothing and left. He was airested himself, came here and had 
a hearing and was discharged for want of evidence to sustain 
the charge made agauist him, so that in this case, according to 
the statements of the defendant himself, your verdict will have 
to be for the plaintiff for some amount, and the main question 
you will have to decide is what that amount shall be." 

In this there was substantial error. The defendant emphatic- 
ally denied having said " I believe the tenant man took them." 
"I think I know whei-c they arc." "I think they are in Hin- 



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186 DREIBILBIS %\ ESBKNSHADE. 

Opinion of the Court. [6 Pa. Superior Ct. 

ardier's tenant house." If there is anything in the words laid in 
the plaintiff's statement which will support the innuendo, it is in 
the language above quoted. Certainly the testimony of the de- 
fendant did not prove them. What followed in regard to the 
search warrant and the subsequent proceedings thereon threw 
no light whatever upon the utterance of the slanderous words 
alleged to have been uttered and, therefore, the statements of the 
defendant did not warrant binding instructions as to the finding 
of a verdict for the plaintiff. 

The trial judge in the court below charged the jury : " This 
is a record made against him and will not down. The record 
is here, remains in this office, and always will show what the 
defendant here, Mr. Esbenshade, charged him with, and you 
will have to render such a verdict as in your judgment will 
compensate him for the injuiy he has received in his reputation 
by this charge." What is the record referred to ? Was it the 
proceedings before the aldeiman upon which the search warrant 
was obtained? Technically this was not a record, was not in 
the court and shows on its face that the charge had been dis- 
missed and the defendant discharged. Was it the record of the 
action of slander then being tried ? The defendant was in no 
way responsible for that. That was a record for whicTi the 
plaintiff alone was responsible and we fail to see, in any view 
of the case, why the language complained of should have been 
used as substantial ground upon which a verdict could be based. 

The three assignments of error, upon which the defendant 
(the appellant here) relies, are all sustained, and the judgment 
is reversed and a new venire awarded. 



Josiah S. Koch v. Henry Kuhns, Appellant. 

Building contract— Submission to architect— Rule of mason's workman- 
ship — Evidence, 

A building conti*act provided that all the mason work shall be measured 
bj the architect according to rule of mason^s workmanship. Held, in a 
controYei*sy as to the amount due the mason, that the contract properly 
interpreted imposed upon the architect the duty to observe the rule of 
mason^s workmanship in his measurement, and offers of evidence tending 
CO show that the measurements certiiied by the architect had failed to apply 



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KOCH V, KUHNS. 187 

1897.] Syllabus—Statement of Facts. 

the rule, are admissible. In order to oust the Jurisdiction of the courts it 
must clearly appear that the subject-matter of the controversy is within 
the prospective submission. The right of trial by jury is not to be taken 
away by implication . 

Argued Nov. 9, 1897. Appeal, No. 18, Oct. T., 1897, by 
defendant, from judgment of C. P. Berks Co., Dec. T., 1894, 
No. 72, on verdict for plaintiff. Before Rice, P. J., Wickham, 
Beaver, Oblady, Smith and Porter, JJ. Reversed. 

Assumpsit to recover over payment to the stone mason under 
a building contract. Before Endlich, J. 

It appears from the record and evidence that this is an action 
brought by the contractor to recover from the defendant, a stone 
mason and subcontractor, an overpayment for stone masonry 
required in the erection of the said building. The contract pro- 
vided for the payment of a certain sum per perch for each and 
every perch so laid, as measured by the architect, and also pro- 
vided that all work be measured according to the rules of 
mason's workmanship. The question turned on the correctness 
of the architect's measurements. 

During the course of the trial the following offers of testi- 
mony were made, with objections by plaintiff. [Charles F. 
Smith sworn : Mr. Stevens : Counsel for defendant further of- 
fers to prove by the witness on the stand that he made actual 
measurements of the mason work done by Mr. Henry Kuhns at 
the Memorial Church and compared them with the measure- 
ments made by the architect Lonsdale and that he finds that the 
architect failed to apply the mason's rule of measurement and in 
many instances calculated the actual cubic contents of the mason 
work done, whereby the claim of the plaintiff would be de- 
creased, and with the bills for extras admitted would be entirely 
wiped out ; these measurements were made the same time, No- 
vember 16, 1895. ] [4] 

[Mr. Stevens: Counsel for the defendant renew the same 
offer and add to it : the testimony showing that there was no 
change in the character of the work, and the witness was able 
accurately to measure the mason work as done by Kuhns ; the 
defendant offers to show by the witness on the stand that he 
made actual measurements on the ground of the mason work 
that was exposed to view and took the measurements and cal- 



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188 KOCH V. KDHN8. 

Statement of Facts — Charge of Court. [6 Pa. SupeHor Ct. 

culations made by the architect of those parts which were con- 
cealed, and he finds by comparison that the architect failed to 
apply the mason's rule of measurement, but took the cubic con- 
tents of the walls, whereby the defendant failed to receive 
credit for a large amount of work done, equal to the amount of 
plaintiffs claim.] [5] 

[Adam H. Leader sworn: By Mr. Stevens: "Q. You are a 
civil engineer? A. Yes, sir. Q. How many years' experience? 
A. About 10. Q. You are accustomed to measuring build- 
ings? A. Yes, sir. Q. You made a measurement of the 
Memorial Church of the stone work done by Henry Kuhns* 
A. Yes, sir. Q. From the work actually done and by an actual 
measurement of the masonry and examination of the plans ? 
A. Measured the masonry by lengths of walls, and assumed the 
heights taken by the architect, which we cojildn't get, and 
make up our calculation." 

Mr. Stevens : We offer to show by the witness that from an 
actual measurement of the mason work in the Methodist Church, 
made on November 16, 1895, by the rule of mason's measure- 
ment, he found 1232 perches in the foundations, 1580J perches 
in the superstructure, not including the cloister and the tower, 
and 690 perches in the cloister and tower.] [6] 

The court, Endlich, J., charged in part as follows : 
[Now, gentlemen, you understand in building contracts of 
this kind where the parties agree to refer the matter of measure- 
ments and computations to a certain person, that person's meas- 
urements and computations are binding upon both parties, 
except where the measurements themselves indicate on the 
face of them palpable miscalculations — faulty arithmetic. So 
you start out with this proposition in the present case, that in 
so far as the rights of the parties are to be measured by their 
agreement (and they are to be measured by the agreement 
unless you find for the defendant upon one of the questions 
which has been raised in this case, and that I will discuss to 
you later) the measurements of the work done as made by the 
architect are binding upon both parties and so are his calcula- 
tions, except in those instances where a palpable mistake has 
been shown by the evidence. There have been certain mistakes 
shown by the evidence, which, as I understand, are conceded 



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KOCH V, KUUNS. 189 

1897.] Charge of Court— Arguments. 

by the plaintiff, and those mistakes in the claim which he now 
makes against the defendant have been corrected.] [1] 

Verdict and judgment for plaintiff for $854.39. Defendant 
appealed. 

Errors assigned^ inter alia, were, (1) To portion of the judge's 
charge, reciting same. (4-6) Rejection of certain offers of evi- 
dence made by the defendant, reciting same. 

Wm. Keiyer Stevens^ of Stevens ^ Stevens^ for appellant. — 
The contract between the parties not having made the measure- 
ments of the architect conclusive, the defendant has a right to 
prove that the measurements were inaccurate: Trust Co. v. 
Railway Co., 70 Fed. Rep. 282 ; Railroad Co. v. Wilcox, 48 
Pa. 161. 

The contract between the parties required all work to be 
measured according to the rule of mason's measurement, and 
the architect had not the power to adopt a different rule : Mc- 
Collough V. Ashbridge, 156 Pa. 166. 

The question raised by these assignments of error has been 
very recently considered by this court in the case of Fisher v. 
South Williamsport, 1 Pa. Superior Ct. 386 ; Drhew v. Altoona» 
121 Pa. 401 ; Railroad Co. v. Dilley, 25 Am. & Eng. R. R. 
Cases, 265 ; Morse on Arbitration, 38, cited and approved in 
Itaiboad Company v. Mills, 22 S. E. Rep. 556. 

Philip S. Zieber^ with him Baer ^ Snyder^ ior appellee. — 
1'he provision in the contract that the work was to be done to 
the satisfaction of the architect, and payments to be made for 
it as measured by said ait^hitect at such times and in such 
amounts as said architect shall certify to be rightly due, ren- 
dered the architect's measurements conclusive upon the parties : 
Kennedy v. Poor, 151 Pa. 472. 

The agreement of Mr. Koch, therefore, was to pay only for 
tlie work done as measured by the architect. The case differs 
in that respect from Railroad Co. v. Wilcox, 48 Pa. 161, and 
Trust Company v. Railway Company, 70 Fed. Rep. 282, cited 
in appellant's argument: Kihlberg v. U. S., 97 U. S. 400. 

Our contention is also supported by the case of McCauley v. 
Keller, 130 Pa. 53. 



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190 KOCH V. KDHNS. 

Opinion of the Conrt. [6 Pa. Superior Ot. 

Opinion by Porteb, J., December 13, 1897 : 

The contract between the parties in this cause was in writing 
and required the defendant "to do all the stone masonry re- 
quired for the new Methodist Episcopal Church and Sunday 
School buildings, to be erected on North Fifth street " in the 
city of Reading. After setting forth the rate per perch, the 
contract provides, " all the work to be measured according to 
rule of mason's workmanship. 

"All to be done in the best, most substantial and workmanlike 
manner to the satisfaction of Thomas P. Lonsdale, the super- 
vising architect, as described and set forth in the plans and 
specifications as furnished by said architect." The plaintiff 
was required by the contract to pay the defendant " the before 
named sums per perch for each and every perch so laid as 
measured by said architect, at such times and in such amounts 
as the said architect shall certify to be rightly due said party 
of the first part upon his application and statement of work 
done." 

As the work progressed, payments wei'e made to the mason 
without the architect's certificate, upon an account kept by the 
defendant based upon measurements made when the work was 
in progress. The architect seems to have made no measure- 
ments until the work was practically completed, and then issued 
a certificate for the whole of the work done. When the certifi- 
cate was issued the plaintiff had already paid the defendant in 
full for mason work the sum of $6,357.07. The architect's 
measurements and calculations showed that the phiintiff had 
overpaid the defendant the sum of ♦OOS.SS. For this the plain- 
tiff sued. 

The difference between the measurement of the architect and 
that of the defendant is claimed to be, at least in part, due to 
the difference in the method of measuring the work done. 

The learned trial judge of the court below seems, in this con- 
nection, to have fallen into error. Under the terms of the con- 
tract the architect may have been the arbiter as to the character 
and quality of the work done, but his measurements were to be 
made according to a certain rule. Nowhere in the contract is 
found a specific stipulation that the architect is to have the 
power to determine the measurement arbitrarily. 

" In order to oust the jurisdiction of the courts it must clearly 



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KOCH V. KUHNS. 191 

1897.] Opinion of the Court. 

appear that the subject-matter of the controversy was within 
the prospective submission. The right of trial by jury is not 
to be taken away by implication : " Drhew v. Altoona, 121 Pa. 
401, 420. 

The court below was apparently of opinion that the archi- 
tect's measurements were binding unless shown to have been 
based on palpable mistake or fraud ; whereas, where the con- 
tract contemplated a measurement by a particular rule, he 
should have shown his knowledge of the rule and his applica- 
tion of it to the particular case. His testimony is not satis- 
factory on this point, and indicates his own opinion to have 
been that the rule was subject to his power to vary it in the 
particular case. True, he says that he measured by what he 
knew to be the mason's rule, and says that he measured the 
whole surface of the wall and gave it to the mason, but his 
cross-examination runs in part as follows: "Q. There are a 
number of openings there, now you included them all. Under 
the mason's rule of measurement those openings are included? 
A. Not by my mason's rule as I understand it, no sir. Q. There 
is a general rule adopted in the measuring of mason's work, is 
there not? A. No sir. Q. There is not? A. No sir. Q. The 
contmct calls for the mason's rule of measurement? A. Yes 
sir, but measured by me. Q. That is a uniform rule of meas- 
urement, is it not? A. No sir. Q. Did you adopt a different 
mason's rule ? A. I had to do it. I was tlie arbiter and had 
to do it in my way. I couldn't do it in any other party's way 
or I would have had to learn their method. The contract re- 
quired me to do it." And again he says : " Q. But now the 
mason's rule of measurement in a general way is uniform in all 
parts of the state as to the work measured? A. No sir, I 
couldn't say that." * And again : *' Q. Now you have also said 
and given us an illustration that the mason's rule of measure- 
ment may differ in different localities ? A. No sii*, you asked 
me if I was to do it in a specific way and I said I was, and the 
mason's measurement set out for me to do is my way. I was 
fixed in the contract to do the work in a specific way, otherwise 
I had to learn some other way of measuring. I only know my 
rule of mason's measurement." And again: "Q. Did you at 
any time make any effort to apply the rules of mason's measure- 
ment? A. I just explained I did the work by what I under- 
stood to be the rules of mason's measurement." 



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192 KOCH V. KUHXS. 

Opinion of the Court. [G P:i. Superior Ct. 

From this it will be seen that there was doubt cast on the 
proposition that the measurements had in fact been made accord- 
ing to the rule of mason's measurement as required by the con- 
tract. Under these circumstances, the offers of the defendant to 
prove by competent witnesses that the measurements certified by 
the architect were not in accordance with the rule aforesaid, and 
that the architect had failed to apply the rule, ought to have 
been admitted. 

The fact that the offer of proof was on the basis of measure- 
ments made a considerable time after the construction was 
completed, does not furnish a ground to reject the evidence. 
From the evidence it appeared that the mason work in large 
part was still visible and that the architect's own figures were 
accepted as to the parts of the masonry not visible. 

We think the offers of proof set forth in the 4th, 5th and 
6th assignments of error should not have been rejected, and 
these assignments are therefore sustained. 

The first assignment is also sustained, as the part of the 
charge complained of is in conflict with the views herein ex- 
pressed. The remaining assignments are not sustained. 

The judgment is reversed and a venire facias de novo awarded. 



Estate of Mary Fell. Appeal of Wm. King, Agent for 
the Heirs of Jacob Fell and Francis Fell, deceased, 
Heirs-at-law of Mary Fell, deceased. 

Will— Bequest oftrUeresl a bequest of the fund— Life estate. 

A bequest of the interest of a fund, without limitation as to time, is a 
iieqnest of the fund itself, unless there is something to show a di£fei*ent 
intention. 

In cases of doubt or indcfiniteness the fact that there is no bequest or 
limitation over is usually held decisive in favor of the view that the fii'st 
taker is entitled to an absolute estate in the fund. 

The bequest was of interest on a certain bond to Leah and Rachel dur- 
ing their lives, and in case of death of either of them the survivor to have 
all it draws for life. Held, on the death of the survivor the piincipal was 
payable to her administrators and not to the next of kin of the decedent. 

Argued Nov. 10, 1897. Appeal, No. 177, Nov. T., 1896, by 
Wm. King, agent for the heirs of Jacob Fell and Francis Fell, 



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FELL'S ESTATE. 193 

1897.] Statement of Facts— Arguments. 

deceased, from decree of O. C. Lancaster Co., dismissing ex- 
ceptions to and confirming absolutely report of the auditor in 
the estate of Mary Fell, deceased. Before Rice, P. J., Wick- 
ham, Bbavbb, Reedbb, Orlady, Smith and Porter, JJ. 
Affirmed. 

Exceptions to auditor's report. Before Livingstok, P. J. 
The exceptions to the auditor's report were as follows : 

1. The auditor erred in awarding the net balance of the es- 
tate — $288.19 — to the administrator of Rachel Fell, deceased. 

2. The auditor erred in not awarding the net balance of the 
estate — J288.19 — per stirpes to the heirs of Jacob Fell, Francis 
Fell and Rachel FeU. 

Other facts sufficiently appear in the opinion of the court. 

JSrrors assigned were (1, 2) In dismissing tJie exceptions to 
the auditor's report. 

Thos. Whitson^ for appellant. — The mistake that the learned 
auditor made in interpreting the will is that he has tried to 
bring it under the rule that " a gift of the produce of the fund 
is a gift of the principal." The rule only takes hold where the 
gift of the interest is unqualified, in perpetuity, forever, and so 
indeed it is held by every authority that the learned auditor 
has cited. 

An heir is not to be disinherited without an express devise- 
or necessary implication ; such implication importing not natu- 
ral necessity, but so strong a probability, that an intention to* 
the contrary cannot be supposed : 3 Jarman on Wills, 704 (5 
Am. ed.) 

The failure to name a residuary legatee raises no intent to 
disinherit any person who would take under the intestate laws : 
Hoffner v. Wynkoop, 97 Pa. 130; Fitzwater's Appeal, 94 Pa. 
141. 

All the tendency of the law in cases of the slightest doubt or 
ambiguity is to follow the intestate laws : Joyce's Estate, 13 
W. N. C. 520. 

D. F. Magee^ for appellee. 
Vol- VI— 13 



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194 FELL'S ESTATE. 

Opinion of the Court. [6 Pa. Superior Ct. 

Opinion by Wickham, J., December 18, 1897: 

The portions of the will of Mary Fell, deceased, necessary to 
be here considered, are as follows : " I, Mary Fell, do make this 
my will, that is, I will to Leah F. Moore and Rachel Fell all 
the interest on a bond that I hold against Charles Fell, except 
so much as will pay one half of the interest on some notes I 
signed with Charles, and if Charles' Fell will give those persons 
notes in his own name, then one4ialf of the principal which I 
should pay may be entered on the bond as the amount paid, and 
Leah F. Moore and Rachel Fell, shall have all the interest on 
the remainder of the bond. They shall have all the interest it 
draws during their lives and in case of the decease of either of 
them, the survivor shall have all it draws, during her life, &c." 

" I appoint Marshall Wright and William King ray executors, 
and I appoint them to be a committee in conjunction with Charles 
Fell during the lifetime of Leah F. Moore and Rachel FelL" 

The firet clause of the first paragraph above quoted, standing 
alone, would undoubtedly give the two legatees the corpus of 
the fund absolutely. A bequest of the interest of a fund, with- 
out limitation as to time, is a bequest of the fund itself, unless 
there is something in the will to show a different intention : 
Garret v. Rex, 6 W. 14 ; Campbell v. Gilbert, 6 Wh. 72 ; Rob- 
ert's Appeal, 59 Pa. 70 ; Keene's Appeal, 64 Pa. 268. The sec- 
ond clause of the paragraph provides that the legatees shall 
have all the interest during their lives, and that it shall all go 
to the survivor, in case of the death of either before the other. 

We thus have presented to us the question, whether the abso- 
lute bequest of the fund shall be cut down to a life estate therein 
by a later expression in the will. To accomplish this, all the 
authorities agree that the testator's intent to reduce the estate 
must be unambiguous. It will be noticed that the testatrix 
does not expressly say iJiat the estate of the legatees shall cease 
with their lives, or the lives of the survivor, and it is especially 
significant that there is no bequest or limitation over. The 
latter circumstance is very important. In case of doubt or 
indefiniteness it is usually held decisive in favor of the view 
that the first taker is entitled to an absolute estate in the fund. 
It is scarcely necessary to refer to the many authorities sustaining 
the epigrammatic summary of Justice LoWRiE, in Smith's Ap- 
peal, 23 Pa. 9, that ^^In cases of doubtful construction, the law 



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FELL'S ESTATE. 195 

1897.] Opinion of the Court. 

leans in favor of an absolute rather than a defeasible estate, 
of a vested rather than a contingent one, of the primaiy rather 
than the secondarj^ intent, of the first rather than the second 
taker, as the principal object of the testator's bounty." Equally 
well settled is the rule that a will must be so construed as to 
avoid partial intestacy, unless the contrary is unavoidable : Ap- 
peal of Boards of Mission, 91 Pa. 507 ; Boies' Estate, 177 Pa- 
190. 

The appointment of a "committee" for the legatees, whatever 
was meant thereby, certainly did not create any trust as to the 
bequests. There is not a word in the will giving the committee 
the right to handle, invest, or interfere with the legatees' es- 
tates. But, even if the bequests had been placed in the hands 
of the committee, without more, the trust would have been dry, 
the trustees having assigned to them no active duties, and hence 
could have no effect on the construction we feel bound to give 
the will : McCune v. Baker, 155 Pa. 503. 

Decree affirmed at cost of appellant. 



Wm. P. Gray, now to the use of Thomas H. Gray, v. 
Henry F. Hartman, Appellant. 

Endence^Cross-examination of unwilling witness by party calling him. 
It is proper for the tnal judge, in the exercise of a sound discretion, to 
permit a cross-examination of an unwilling witness by the party calling 
him to show that his previous statements and conduct were at variance 
with his testimony, where such statements made at a preliminary exami- 
nation induced the calling of the witness and were matenal to the issue. 

Charge of court — Instructions as to scrutiny of evidence. 

In a case where there is conflicting or contradictory oral testimony, it is 
proper for the trial judge to instruct the jury as to tlieir duty of carefully 
scrutinizing and dispassionately weighing the evidence. 

Argued Nov. 10, 1897. Appeal, No. 178, Nov. T., 1896, by 
defendant, from judgment of C. P. Lancaster Co., Feb. T., 1894, 
No. 51, on verdict for plaintiff. Before Rice, P. J., Wickham, 
Bbavbe, Rbedeb, Oblady, Smith and Portbb, JJ. Af- 
firmed. 



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196 GRAY V, HARTMAN. 

Statement of Facts — Arguments. [6 Pa. Superior Ct. 
Assumpsit for breach of alleged oral contract. Before Bbit- 

BAKEB, J. 

It appears from the evidence that during the progress of the 
trial plaintifiE called as a witness one William Bachman, and 
against defendant's objections was permitted to cross-examine 
the witness as to alleged declarations or admissions he had 
made previous to the trial in the office of the counsel for plain- 
tiff, for the purpose of showing that plaintiff had been misled 
and deceived by the witness. 

The court, Bkubaker, J., charged the jury, inter alia, as 
follows : 

There is another principle of law which I deem it my duty 
to give to you, with reference to the weight and preponderance 
of the testimony. It is your duty, gentlemen of the jury, to 
carefully scrutinize and dispassionately weigh the evidence of all 
the witnesses in the case, and to give proper credit to the evi- 
dence of each and all of the witnesses, and if possible to recon- 
cile all the evidence in the case with the presumption that 
each witness has intended to speak the truth, unless by their 
manner of testifying on the witness stand, or inconsistent state- 
ments sworn to, or by testimony inconsistent with other credible 
Avitnesses in the cjwe, you are led to believe from a manifesta- 
tion of interest, bias or prejudice, that such witness or witnesses 
have been inclined to color, distort, or suppress the truth, or 
unless they have been impeached. It is your duty to carefully 
scrutinize the testimony as it has been given upon the stand, in 
order to arrive at the truth of the matters in dispute, at issue 
between the parties. 

Verdict and judgment for plaintiff for $174.34. Defendant 
appealed. 

ErrorB assiffned^ among others were (1) In overruling objec- 
tions. (2) In permitting the cross-examination of William 
Bachman, a witness called by the plaintiff, for the purpose of 
showing that plaintiff had been misled and deceived by the 
witness. (17) To portions of the judge's charge, reciting same. 

^. F. Davis^ for appellant. — A party may not impeach his 
own witness by cross-examination: Fisher v. Hart, 149 Pa. 



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GRAY V, HARTMAN. 197 

1897.] Arguments — Opinion of the Couit. 

232; Steams v. Bank, 53 Pa. 490; Smith v. Price, 8 Watts, 
447. 

The vice of the charge was in allowing the testimony of plain- 
tiff in impeaching his own witness to go to the jury as substan- 
tive testimony: Bank v. Davis, 6 W. & S. 285. 

Edw. P. Brintouj with him Wm. R. Brinton^ for appellee. — 
The court rightly permitted plaintiff's counsel to specially call 
the attention of witness, Bachman, to his contrary statements 
made in his preliminary examination and when he denied them 
in toto, the court properly permitted plaintiff to contradict the 
witness : Cowden v. Reynolds, 12 S. & R. 281 ; Com. v. Lamber- 
ton, 2 Brewster, 565 ; Stearns v. Bank, 53 Pa. 490 ; Bank V. 
Davis, 6 W. & S. 285 ; McNemey v. Readmg, 150 Pa. 611. 

Opinion by Beaver, J., December 13, 1897 : 
Sixteen of the assignments of error in this case relate to ex- 
ceptions taken to the examination of one Bachman, a witness 
called by the plaintiff, or to the testimony of witnesses called 
to contradict him. They raise but a single question : Can a 
party who has called a witness lay the ground for contradicting 
him by a cross-examination and subsequently contradict him by 
other witnesses, when he has been misled as to what the witness 
will testify by a preliminary examination ? 

The general rule upon the subject is thus stated in Greenleaf 
on Evidence, vol. 1, sec. 442: "When a party offers a witness 
in proof of his cause, he thereby in general represents him as 
worthy of belief. He is presumed to know the character of the 
witnesses he adduces ; and, having thus presented them to the 
court, the law will not permit the party afterwards to impeach 
their general reputation for truth or to impugn their ci-edibility 
by general evidence tending to show them to be unworthy of 
belief." " Whether it be competent for a party to prove tliat a 
witness whom he has called and whose testimony is unfavorable 
to his cause had previously stated the facts in a different man- 
ner, is a question upon which there exists some diversity of 
opinion. . . . But the weight of authority seems in favor of 
admitting the party to show that the evidence has taken him by 
surprise and is contrary to the examination of the witness pre- 
paratory to the tiial or to what the party had reason to believe 



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198 GRAY V. HARTMAN. 

Opinion of the Court. [6 Pa. Superior Ct. 

he would testify, or that the witness has recently been brought 
under the influence of the other party and has deceived the 
party calling him." 

The allegation in this case is that the testimony of the wit- 
ness was not only contrary to his examination preparatoiy to 
the trial but that he had been brought under the influence of 
the opposite party. 

The authorities in Pennsylvania very clearly sustain the right 
of the party calling a witness under such circumstances to cross- 
examine him, for the purpose of showing that he had made 
statements dififerent from those to which he testifies on the stand 
on a previous occasion, not, it is true, for the purpose of making 
his previous statements substantive evidence of the facts there- 
in stated, but in order to neutralize the evidence given by the 
witness. 

This rule is clearly recognized in McNemey v. Reading, 150 
Pa. 611, in which Mr. Justice McCollum, delivering the opin- 
ion of the court, sajrs : " It is apparent that Boyer was an un- 
willing witness and that his evidence was a surprise to the 
appellee who called him to the stand. It was proper, therefore, 
for the learned trial judge, in the exercise of the sound discre- 
tion which the law allows him in such cases, to permit a cross- 
examination of the witness by the party calling him, to show 
that his previous statements and conduct were at variance with 
his testimony.'* 

The present Chief Justice, in Fisher v. Hart, 149 Pa. 232, 
distinctly recognizes the rule and the exceptions thereto which 
he says "were fully considered by Mr. Justice Thompson in 
Stearns v. Merchants* Bank, 63 Pa. 490," in which latter case 
the authorities upon the subject are very fully commented upon, 
and the reasons for the exceptions to the general rule fairly and 
as we believe soundly laid down. 

The facts of the present case warranted the court below, in 
the exercise of the sound discretion which the law allows in 
such cases, in permitting the cross-examination of the witness 
Bachman by the party calling him, and also in showing that his 
previous Statements were at variance with his testimony. 

This is not the case of Fisher v. Hart, supra, where the wit- 
ness testified to nothing prejudicial to the plaintiff, and where it 
did not appear that he manifested any bias. His answers were 



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GRAY V. HARTMAN. 199 

1897.] Opinion of the Court. 

" I don't remember." In this case, the witness Bachman was 
important. His testimony was directly contradictory to that of 
the plain tifif ; and, if the plaintifif's witnesses were to be believed, 
the very opposite of what he had stated in the preliminary ex- 
amination, when the case was being prepared for trial. The 
parts of his testimony to which exception was taken and which 
constitute the first three assignments of error, are not fairly rep- 
resentative of its vital character and its far-reaching influence 
in determining the plaintiff's case. 

The seventeenth assignment relates to the following portion 
of the charge of the trial judge in the court below : '' There is 
another principle of law, which I deem it my duty to give to 
you, with reference to the weight and preponderance of the tes- 
timony. It is your duty, gentlemen of the jur3% to carefully 
scrutinize and dispassionately weigh the evidence of all the 
witnesses in the case, and to give proper credit to the evidence 
of each and all of the witnesses and, if possible, to i*econcile all 
the evidence in the case with the presumption that each witness 
has intended to speak the truth, unless, by their manner of tes- 
tifying on the witness stand or inconsistent statements sworn 
to, or by testimony inconsistent with other credible witnesses in 
the case, you are led to believe, from a manifestation of influ- 
ence, bias or prejudice, that such witness or witnesses have been 
inclined to cover, distort or suppress the truth, or unless they 
have been impeached. It is your duty to carefully scrutinize 
the testimony, as it has been given upon the stand, in order to 
arrive at the truth of the matters in dispute at issue between 
the parties." This is a general statement proper to be made in 
every case where there is conflicting or contradictory oral testi- 
mony. 

The case seems to have been carefully and fairly tried and 
we see no reason to disturb the iudgment. It is, therefore, af- 
firmed. 



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200 COOPER V. EYRICH. 

Syllabus — AssigDment of Errors. [6 Pa. Superior Ct. 



John Cooper, Jr., and Abram Gordon, Administrators of 
Isaac W. Graham, deceased, v. James R. Eyrich and 
Calvin R. Eyrich, trading as James R. Eyrich & 
Brother, Appellants. 

Contrcust of decedent— Mispayment to widow — Set-off— Quasi adminiatra- 
tion. 

An executory contract was made by decedent to deliver pork to defend- 
ants. After his death, pork, belonging to the estate, was delivered by tlie 
widow and payment made to her and not to the administrator. Held, in 
a suit by the administrator to recover the price of the pork, that a vei-dict 
for the plaintiff would have been properly directed had allowance been 
made for a set-off of so much of the money received by the widow as was 
applied in quasi administration by her for the payment of debts due by the 
decedent, and which payments, if properly made, were in relief of the es- 
tate. 

Argued Nov. 18, 1897. Appeal No. 130, Oct. T., 1897, by 
defendants, from judgment of C. P. Chester Co., April T., 
1896, No. 42, on verdict for plaintifif. Before Rice, P. J., 
WiCKHAM, Beavee, Orlady, Smith and Pobtbb, J J. Re- 
versed. 

Assumpsit for goods sold and delivered. Before Wad- 
dell, P. J. 

Graham, the decedent, made a contract for the sale of pork, 
which was executed by the widow and payment made to her 
and not to the administrators, the plaintiffs in this suit. 

The widow subsequently claimed and was allowed her ex- 
emption, and the auditor surcharged the administrators with the 
price of the pork received by the widow and not accounted for 
by her to the administrators. 

There was evidence tending to show that the widow had ex- 
pended a portion of the money received by her for the pork in 
liquidation of certain debts of the decedent. The court directed 
a verdict for the plaintiffs. 

Verdict and judgment for plaintiffs for $170.23. Defend- 
ants appealed. 

Errors assigned among others were, (1) to the action of the 
court in directing a verdict for the plaintiffs. (6) Refusal of 



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COOPER V. EYRICH. 201 

1897.] Assignment of Errors — Opinion of tho Court. 

defendants' seventh point, which point was as follows : " If from 
the money received from Eyrich & Brother, the widow of 
Isaac W. Graham, paid the funeral expenses or any other debts 
properly due by the administrators, thereby relieving the estate 
from such payments, the defendants should have credit for that 
amount in this action, and be relieved to that extent from the 
claim of the plaintiffs.*' 

H. H. Gilkyson^ for appellants. 

J. Frank E. ffattse^ for appellees. 

Opinion by Beaver, J., December 13, 1897: 

Graham, the decedent, made a verbal contract with the defend- 
ants for the sale of pork, to be delivered at sundry times. One 
delivery was made during his lifetime, for which a check was 
given, payable to his order. After his death, of which the de- 
fendants had knowledge, the check so given was surrendered 
and, in its stead, another check, payable to the order of the per- 
son returning it, was given. Subsequent deliveries of pork were 
made by sundry persons and paid for at the time by checks 
made payable to the order of the persons delivering it. Three 
deliveries, aggregating in value $170.23, were made, the checks 
for which, as appears in the testimony, were all paid and the 
money received thereon delivered to the widow of the decedent 
who was in possession of his personal property from the time of 
lus death until letters of administration were issued, subse- 
quently to the delivery of the pork. The money so received by 
the widow was used, in part at least, in the payment of the 
funeral expenses of the decedent, which, as appears by the tes- 
timony of one of the administrators, exceeded $100. 

Upon this state of facts, the court below directed the jury to 
find a verdict for the plaintiffs, the administrators of the deced- 
ent, for the amount of their claim, $170.23, adding: " This may 
be wrong. It depends altogether upon the law involved in the 
case. My impression of the law, as it now exists, is in favor 
of the plaintiffs ; but, upon a review of the matters, we may be- 
come convinced that it is a mistake and, if so, we can correct 
this error, without a great deal of trouble." 

The contract between the decedent and the defendants is a 
purely personal one which was dissolved by the death of the de- 



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202 COOPER v. EYRICH. 

Opinion uf tho Court. [6 Pa. Superior Ci. 

cedent and did not bind his legal representatives. The change 
of the check, therefore, given the decedent in his lifetime and 
the payment for subsequent deliveries to the parties delivering 
the pork were made by the defendants at their peril, and if there 
were nothing else in the case, would justify the direction of the 
court to find a verdict for the plaintiffs : Dickinson v. Cala- 
lian's Admrs., 19 Pa. 227 ; White's Exrs. v. Comth., 39 Pa. 167. 

Letters of administration were issued subsequently to the de- 
livery of the pork and, upon the filing of their account, the ad- 
ministrators were surcharged with the amount of the value 
thereof, as claimed in the present suit ; and, in order to make 
themselves whole, they instituted this suit, so as to recover from 
the defendants the value of the pork already paid for by them, 
on the ground that the payment had been wrongfully made, or 
at least not rightly made, and that they are, therefore, liable to 
pay the amount a second time to the present plaintiffs. 

It does not clearly appear that either of the administrators 
had knowledge, at the time, of the delivery of the pork by the 
widow to the defendants and the payment of the same by them 
to her, through the parties who delivered it. It would seem, 
therefore, that the question of neglect on their part, either to 
compel the widow to account for the money so received or to 
charge her with it at the time, when she claimed the benefit of 
the act of 1851, has little significance. The plaintiffs were cer- 
tainly not guilty of laches in delaying their suit against the de- 
fendants until after the hearing before the auditor to whom 
their account was referred, and the surcharge by him against 
them of the value of the pork deliverd to the defendants. 

We are of the opinion, however, that the defendants' seventh 
point, namely : " If, from the money received from Eyrich & 
Brother, the widow of Isaac W. Graham paid the funeral ex- 
penses or any other debts properly due by the administi^ators, 
thereby relieving the estate from such payments, the defend- 
ants should have credit for that amount in this action and be 
relieved to that extent from the claim of the plaintiffs," should 
have been aflSrmed, with the possible qualification " if the estate 
were solvent or if there were assets of the estate to pay the pre- 
ferred debts which were paid by the widow." 

The widow was in possession of the personal property of the 
decedent between the time of his death and the granting of let-, 
ters of administration. As to the disposition of the pork sold 



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COOPER V. EYRICH. 203 

1«97.] Opinion of the Court. 

to the defendants she was undoubtedly acting as an administra- 
trix de son tort and, inasmuch as the estate received the benefit 
of at least a poi'tion of the money paid by the defendants, they 
should be relieved from the repayment, at least to that extent. 

From the dicta contained in Roumfort v. McAlamey, 82 Pa. 
193, and Gilfillen's Appeal, 170 Pa. 185, as well as from reason 
and the general principles of equity, the rule, that executors 
de son tort are entitled to have credit for valid debts of the 
decedent actually paid by them out of assets upon which they 
have intruded, would seem to be plainly deducible ; and, if this 
be so, it follows inevitably that those whose money afforded the 
relief which the decedent's estate secured by such payment 
should have the benefit thereof ; for, as was said by Mr. Justice 
Gordon in 82 Pa. 193, supra, "Under such circumstances, 
the property would have passed into a quasi administration which 
it would be inequitable to disturb.*' 

There is no injustice to the administrators in this, for, if 
they had shown before the auditor that the money paid by the 
defendants and received by the widow had been actually used 
by her in relief of the decedent's estate, it is safe to say that 
they would not have been surcharged with the amount. On 
the other hand, the injustice to the defendants, if there be a 
balance in the hands of the administrators for distribution, is 
plainly apparent, when it is considered that of that balance the 
widow would receive the one third of the amount which she 
had already wrongfully received from the defendants, although 
in a sense rightly appropriated to the payment of debts of the 
decedent 

The amount of the debts of the decedent paid by the widow 
does not clearly appear, nor does it affirmatively appear by the 
record that the estate was solvent or that there were sufficient 
assets to pay even the preferred debts. If the estate were sol- 
vent and it affirmatively appeared that the whole of the amount 
paid by the defendants to the widow had been expended in the 
payment of the debts of the decedent, it would not be neces- 
sary to retry this case ; but, inasmuch as we are not definitely 
informed in regard to these questions, we must send the case 
back for a retrial. The assignments of error are numerous. 
We have not discussed them specifically or in detail, but what 
we have said disposes of the case as fully as seems necessary. 

Judgment reversed and a new venire awarded. 



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204 SAFE DEPOSrr CO. v. RAILWAY CO. 

Syllabus— Statement of Facts. [6 Pa. Superior Ct. 



North Broad Safe Deposit and Storage Co. v. The Ches- 
ter^ Darby and Philadelphia Railway Co. et al., 
Appellants. 

Street raUways — Negligence—** Stop, look and listen^^— Question for Jury. 

In an action for damages resulting from an accident at a railway cross- 
ing, the case is for the jury where the evidence submitted by the parties is 
contradictory in most important particulars. 

Plaintiff's evidence tended to show tliat he stopped, looked and listened 
and could see no car approaching, and that his horses were struck by a car 
approaching over an undulating ti^ack at the i*ate of thiily-five miles an 
liour. Defendant's testimony tended to show that the wagon was visible 
for a long distance from the car, and was going in the same direction and 
turned suddenly to cross the tracks without any effective attempt to ** stop, 
look and listen," which must have disclosed the approaching car clearly 
visible from the crossing ; that the motorman had the current off and brake 
on and had sounded his bell. Held, that for the court to determine which 
of these statements is true, would be an usurpation of the power lodged in 
thejuiy. 

Argued November 16, 1897- Appeal, No. 33, Oct. T., 1897, 
by defendants, from judgment of C. P. Delaware Co., June T., 
1896, No. 30, on verdict for plaintiff. Before Rice, P. J., Wick- 
ham, Beaveb, Oelady, Smith and Poetee, J J. Affirmed. 

Trespass for damages resulting from a collision. Before 
Clayton, P. J. 

It appears from the evidence that defendants own and oper- 
ate an electric trolley railway on the Darby and Chester Turn- 
pike Road running in an eastwardly and westwardly direction. 
The road is about fifty feet in width. The telford construction 
occupies about eighteen feet in the middle of the road. The 
defendants' railway is constructed on the north side of the road 
between the telford construction and the north limit line of the 
road. The place where the accident occurred is in the borough 
of Glenolden where Ashland avenue crosses the turnpike road at 
right angles. 

On the morning of July 4, 1895, a wagon with four horses 
belonging to the plaintiff and in charge of their driver, was pro- 
ceeding westwardly on the turnpike road, approaching the Ash- 



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SAFE DEPOSIT CO. r. RAILWAY CO. 205 

1897.] Statement of Facts — Assignment of EiTor. 

land avenue crossing conveying a party of about twenty young 
people on a picnic excursion. The driver knowing that the place 
of destination was somewhere on Ashland avenue, either stopped 
or slowed up a short distance before reaching Ashland avenue 
and inquired whether he should turn to the right or the left. 
The conductor of the party directed him to turn to the right. Ac- 
cording to his statement, in order to make a long turn, he started 
pulling the horses first to the left to get the wagon on the left 
liand side of the road, and then turned to the right to go along 
Ashland avenue. When the lead horses had gotten upon the 
track and the pole horses had their front feet about on the 
south i-ail, the defendant's trolley car came along going west- 
wardly and struck the lead horses, injuring them. The evidence 
was conflicting. 

PlaintiflF introduced evidence tending to show that the driver 
before attempting to make the turn, stopped, looked up and 
down the track, listened for approaching cars and saw none ; 
that the car was running at a dangerous and unusual rate of 
speed, some of the witnesses testifying that it was running from 
forty to sixty miles an hour ; that immediately after the acci- 
dent the motorman admitted that he had not rung the bell and 
that his car was not under control. 

Defendants introduced testimony tending to show that the 
car had only left a switch at a distance of thirteen hundred feet 
from the place of the accident and that it was a physical impos- 
sibility for the car to attain a speed of more than twelve miles 
an hour in that distance from the starting point; that the 
wagon was visible from the track for some distance ; that the 
motorman had his brakes on and had been sounding his gong ; 
that the wagon made the turn into the track without stopping. 

The court left the question of defendants' negligence and 
plaintifPs contributory negligence to the jury, with proper in- 
structions as to the law and with fair and impartial comments 
on the evidence. 

Verdict and judgment for plaintiff for $800. Defendiints 
appealed. 

Error assigned was refusal to affirm plaintiffs first point as 
follows : " Under all the evidence in the case the verdict of the 
jury should be in favor of the defendants." 



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206 SAFE DEPOSIT CO. v. RAILWAY CO. 

Arguments — Opinion of the Coui-t. [6 Pa. Superior Ct. 

TT. B. Broomall^ for appellants. — It is the legal duty of the 
person about to cross the tracks of a street railway, when he 
reaches it, to look in both directions for an approaching car. 
This duty is as peremptory as the rule with reference to steam 
railroads to **stop, look and listen." His neglect to look at 
that point and listen is negligence per se : Ehiisman v. Railway 
Co., 150 Pa. 180; Myers v. R. R., 150 Pa. 386; Omslaer v. 
Traction Co., 168 Pa. 519; Davidson v. Railroad Co., 171 Pa. 
522 ; Seamans v. Railroad Co., 174 Pa. 421 ; Sullivan v. RaU- 
road Co., 175 Pa. 361 ; Hartman v. Railroad Co., 182 Pa. 172. 

The foregoing is a fair epitome of the plaintiff's evidence re- 
lating to the accident. A fair construction of it is that if the 
wagon was stopped at all it was at such a distance short of 
Ashland avenue, that if the driver looked in the direction of 
the approaching car tlie car at that time was not in sight. Then 
having made a long turn first to the left and then to the right 
this involved such a length of time as that it was his duty to 
look again before crossing. If he had done so the plaintiff's 
case shows plainly that the car was then in sight. Under these 
circumstances we maintain that the plaintiff is convicted by 
its own showing of contributory negligence. 

The road being level for a distance of four hundred feet be- 
fore reaching Ashland avenue it is obvious that the description 
of the accident given by the defendant's witnesses is the correct 
one, to wit: that the driver of the wagon when he came to Ash- 
land avenue suddenly pulled his horses in front of the approach- 
ing car, and that no prior indication was given of his intention 
to turn into Ashland avenue. 

Our cases uniformly hold that it is idle for a man to say that 
he did not see an approaching train, when if he had looked it 
would be impossible for him to avoid seeing it. 

Joseph W. Kenworthy^ with him Joseph H. Hinkson^ for ap- 
pellee. 

Opinion by Porter, J., December 13, 1897 : 

The only error complained of in this case is the refusal of the 

court below to affirm the defendants' point that " under all the 

evidence in the case the verdict of the jury should be in favor 

of the defendants." We have g^ven the testimony in the case 



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SAFE DEPOSIT CO. v. RAILWAY CO. 207 

1897.] Opinion of the Court. 

the examination which this assignment requires, and find that 
the court below committed no error in refusing the request of 
the defendants. 

On the morning of July 4, 1895, a wagon with four horses, 
belonging to the plaintiff, and in charge of a careful driver, 
was proceeding westwardly on the Darby & Chester Turnpike 
through the borough of Glenolden, in Delaware county. In 
the wagon were a party of about twenty young people, on a 
picnic excursion. Their destination was a grove north of the 
turnpike on Ashland avenue in the said borough. The driver, 
knowing that the place of destination was somewhere on Ash- 
land avenue, stopped before reaching the avenue and inquired 
of the conductor of the party whether he should turn to the 
right or to the left. He was directed to turn to the right, which 
required him to cross the tracks of the defendant company. 
According to the testimony for the plaintiff, in order to make 
a wide turn, he pulled his horses first to the left and then to 
the right across the tracks, to proceed along Ashland avenue. 
When the lead horses had gotten upon the track and the pole 
horses had their front feet about on the south rail, the defend- 
ants' trolley-car struck the lead horses, doing them serious in- 
jury. For these injuries and some damage to the harness and 
wagon, the suit was brought. 

It was testified by the plaintiff's witnesses, including the 
driver and a number of the occupants of the wagon, that before 
attempting to cross the tracks of the defendants, the wagon 
was stopped, and that the driver looked to the right and to the 
left more than once, and listened for the approach of a car; 
that several of the occupants of the wagon also looked and lis- 
tened, and that none of them saw or heard a car approaching. 
The stop was made within a short distance of the place of cross- 
ing, where the occupants of the wagon had an unobstructed 
view. The roadway upon which the car approached was an 
undulating descending grade. The car was proven to be in- 
visible at something over 1,300 feet, some of tibe plaintiff's wit- 
nesses saying at about 650 feet. The course of the wagon had 
been in the same direction as that of the car until the attempt 
to turn into Ashland avenue was made. 

It was testified by a number of witnesses for the plaintiff 
that the car approached at a rate of from thirty-five to forty-five 



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208 SAFE DEPOSIT CX). v. RAILWAY CO. 

Opinion of tlie Court. [6 Pa. Superior Ct. 

miles an hour on the down grade ; that no bell was rung and 
that the motornian admitted at the time of the accident that he 
had not rung the bell and that he had lost control of the car. 

On behalf of the defendants it was testified that the wagon 
was in sight of the occupants of the car an appreciable time 
before the attempt to cross the tracks was made ; that the motor- 
man had the current off and the brake on, and had sounded 
his bell as a warning. The motorman denied the alleged admis- 
sions that he had failed to ring his bell and had lost control of 
the car. 

No attempt is made by the defendants to argue in this court 
that negligence on their part was not sufficiently proven to sup- 
port the verdict. Their argument is directed to. a contention 
that such contributory negligence was showTi on the part of the 
plaintiff that there should have been no recovery. To this we 
cannot assent. It was, in our opinion, a case that must inev- 
itably have gone to a jury on the evidence submitted. Under 
the testimony on behalf of the plaintiff, the rule to look and 
listen and if necessary stop at a point from which proper obser- 
vation might be had, was complied with. Apart from this rule 
the degree of care to be exercised must vary in every case with 
the circumstances, and no unbending rule in this i-egard can be 
laid down. It was for the jury to say not only whether the 
facts were as alleged by the plaintiff's witnesses, but also whether 
under the circumstances the plaintiff's driver failed to exercise 
the care that would be expected of an ordinarily prudent man : 
Davidson v. Traction Co., 4 Pa. Superior Ct. 86. 

The language of Mr. Justice Mitchell in Ely v. Railway, 
158 Pa. 236, may be adopted as applicable to the present case : 

" The evidence in the present case shows that the plaintiff 
stopped, looked and listened before driving on the ti-ack. He 
was, therefore, not proceeding recklessly but with some degree 
of attention to the situation and his duty in regard to it. The 
mere act of stopping does not, it is true, of itself show that he 
stopped at a proper place, or that there was not another and 
better place where he should have stopped again, or that his 
duty of looking and listening was performed with the proper 
care and attention ; but stopping is opposed to the idea of neg- 
ligence, and unless notwithstanding the stop, the whole evi- 
dence shows negligence so clearly that no other inference can 



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SAFE DEPOSrr CO. V. RAILWAY CO. 209 

1897.] Opinion of the Court. 

properly be drawn from it, the court cannot draw that inference 
as a conclusion of law, but must send the case to the jury. . . . 
But in cases like the present, the plaintiff is not required to dis- 
prove contributory negligence, but only to make out a case clear 
of it Unless, therefore, his negligence appears affirmatively, 
he is entitled to go to the jury on the general presumption 
against it, and so, likewise, where the evidence is conflicting as 
it was here." It is true that the case from which the quotation 
is taken was a grade crossing of a steam road, but the proposi* 
tions stated have clear and direct application to the case in 
hand. 

The evidence submitted by the parties is contradictory in 
most important particulars. The plaintiffs witnesses say that 
they looked and could not see the car approaching. The de- 
fendant's witnesses upon the car say that they saw the wagon 
as they were approaching, for some distance. For the court to 
determine which of these statements is true, would be an usur- 
pation of the power lodged in the jury. We have no doubt that 
the refusal of the point was a correct ruling and therefore, the 
judgment of the court below is affirmed. 



Lancaster Trust Co/s use v. John E. Gouchenauer, Ap- 
pellant. 

Execution^Debior's exemption — Laches, 

The claim for the debtor^s exemption must not be unnecessarily delayed 
until costs have been incurred which otherwise readily might have been* 
avoided. Moore v. McMon'ow, 6 Pa. Superior Ct. 659, followed. 

A claim on the proceeds of land sold under a vend, ex., made after the 
sheriffs sale, is too late when the land had been levied on and coDdemne<ii 
under the fi. fa. the year previous and when the sale took place two yea4*s- 
after an assignment for the benefit of creditors, the assignor in the mean>- 
time having taken no steps to have his exemption set aside out of the reab 
estate by the assignee. 

Argued Nov. 10, 1897. Appeal, No. 17, Oct. T.^ 1807, by 
defendant, from decree of C. P. Lancaster Co., May T., 1895^ 
No. 11, refusing exemption in execution on judgment. Before 
Rice, P. J., Wickham, Beaver, Rbedbb, Oblady, Smith 
and PoBTEE, JJ. Affirmed. 
Vol. VI— 14 



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210 LANCASTER TRUST CO. v. GOUCHENAUER. 

Statement of Facts — Opinion of the Court. [6 Pa. Supeiior Ct. 

Rule to show cause why the sheriff should not pay to John E. 
Gouchenauer $300, which he claimed to be due him under the 
exemption act of April 9, 1849. Before Bbubakbb, J. 

It appears from the record that John £. Gouchenauer made 
an assignment for the benefit of creditors. At the time the as- 
signee made his appraisement, Gouchenauer said to him that 
he wanted none of the personal property and he then made no 
claim to have any real estate appraised to him under the deed 
of assignment, but he subsequently said to the assignee that he 
wanted $300 out of the real estate. 

The appraisement of the assignor's property amounted to 
$779.25 of which $537.50 was real estate, and $241.75 personal 
property. The assignee made public sale of the personal prop- 
erty, and sold the same for $207.67, of which amount John E. 
Gouchenauer became purchaser to the amount of $68.60, with 
the understanding that when the assignor received his $300 ex- 
emption he would pay the assignee for the goods purchased by 
him, the assignor, at the public sale. No other or further claim 
was ever made by the assignor from the assignee. The real es- 
tate was subsequently sold by plaintiff under a judgment ante- 
dating the assignment, and the proceeds amounted to about 
$278. After the vend. ex. had issued, and some two years from 
the time of the assignment, the defendant claimed from the 
sheriff the $300 debtor's exemption. 

The court discharged the rule. Defendant appealed. 

Error aBBigned was discharging rule* 

Charles L Landis^ for appellant. 

TT. U. Rensel, with him J, Hay Brown^ for appellee. — It has 
been expressly decided that, where an assignor who reserves 
the $300 worth of property does not promptly make his election 
and have his appraisement, he loses the benefit of it : Weaver's 
Appeal, 18 Pa. 307; Bowyer's Appeal, 21 Pa. 210; Neff's Ap- 
peal, 21 Pa. 243 ; Davis' Appeal, 34 Pa. 256 ; Shaeffer's Ap- 
peal, 101 Pa. 49. 

Per Curiam, December 13, 1897 : 

The appellant's oontention is, that the real estate having 
passed out of the hands of the assignee into the control and 



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LANCASTER TRUST CO. v, GOUCHENAUER. 211 

1897.] Opinion of the CJourt. 

custody of the sheriff, and the sheriff having sold it, the posi- 
tion of the parties was as if no assignment had been made, and 
the failure of the defendant to claim the $300 exemption at the 
time of the appraisement of the assigned estate was not a factor 
in the case. It seems unnecessary to discuss this proposition ; 
for, even if it were to be conceded, the defendant would be left 
in no better position. The fi. fa. issued on December 12, 1895, 
and the land was condemned. It was not until after the vend, 
ex. had issued, a year later, that the claim was made. These 
facts bring the case within the weU settled rule that the claim 
must not be unnecessarily delayed until costs have been in- 
curred which otherwise might have been readily avoided. The 
case cannot be distinguished from Moore v. McMorrow, 6 Pa. 
Superior Ct. 659. 

Order affirmed and appeal dismissed at the cost of the appel- 
lant 



Commonwealth ex rel. L. A. Hillegass, Appellant, v. 
Josiah Huffman, Jonas Imler and Joseph W. Boor, 
Commissioners of Bedford County. 

Taxatum^StaltUes — OenercU and local laws construed and sustained. 

The local law of April 13, 1868, P. L. 1017, providing for the collection 
of taxes in the county of Bedford recognized and retained by the Act of 
June 24, 1885, P. L. 187, is not repealed by the Act of June 6, 1893, P. L. 
333, entitled ** An act to authorize the election of tax collectors for the 
term of three years in the several boroughs of this commonwealth." 

There is no inconsistency between these local and general acts which 
can be cnfoix^ at the same time without in any material way interfering 
with each other. 

Argued Nov. 8, 1897. Appeal, No. 41, March T., 1898, by 
plaintiff, from order of C. P. Bedford Co., Sept. T., 1897, No. 31, 
for overruling demurrer to the return, etc., in an application 
for mandamus. Before Rice, P. J., Wickham, Beaver, 
Reedbr, Orlady, Smith and Pobtbr, JJ. Afl&rmed. 

Mandamus to the commissioners of Bedford county requiring 
them to deliver to plaintiff for purpose of collection duplicates 
of state and county taxes for the township of Juniata. Before 

LOKGENECKEB, P. J. 



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212 COMMONWEALTH v. COMMISSIONERS. 

Opinion of Couit below. [6 Pa. Superior Ct. 

The facts sufficiently appear from the opinion of the court 
below, as follows : 

L. A. HiUegass was elected tax collector for Juniata town- 
ship at the February election 1897, and on the 19th of April 
presented his bond to the court when the same was approved. 
On the same day and at the same time he filed his petition 
reciting the above facts and alleging that under the Acts of 
June 25, 1885, P. L. 187, and June 6, 1893, P. L. 333, he was 
entitled to have for collection the duplicate of state and county 
taxes levied and assessed in said township for the current year; 
that the county commissioners, on demand made upon them for 
said duplicate, had refused his request, stating they proposed 
to deliver it, with their warrant for collection, to Charles Reily 
the county treasurer. He therefore asked for a writ of manda- 
mus commanding them to deliver to him said duplicate. It 
was thereupon ordered that an alternative writ issue. 

Charles Reily, the county treasurer, after alleging his inter- 
est in the subject-matter in controversy, asked leave to become 
a defendant and to frame his return and conduct the subsequent 
proceedings at his own expense, upon which leave was granted 
him accordingly. He afterwards filed his return as did also 
the county commissioners. The return of Reily raised no 
issue of fact but denied the plaintiff's right to receive the dupli- 
cate on the ground that the local Act of Assembly approved 
April 13, 1868, P. L. 1017, entitled "An act to provide for the 
collection of state, county, poor and military taxes in the county 
of Bedford," makes it the duty of the county commissioners in 
each and every year, immediately after the assessment of taxes 
for state, county, poor and military purposes have been com- 
pleted, to cause duplicates to be made and to deliver the same 
to the county treasurer, and that the act further provides for 
the collection of the same by him ; that said act of 1868 was 
not altered, amended or repealed by any subsequent law, but is 
still in force, and that the plaintiff is not entitled to said dupli- 
cate, but that he, the said county treasurer, is entitled to have 
and collect the same. The return of the commissioners is in 
substance of the same import and therefore raises the same 
question of law. To these returns the relator demurred. 

The single question presented for determination is the effect 
of the act of June 6, 1893, on that of April 13, 1868. Does the 



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COMMONWEALTH r. COMMISSIONERS. 213 

1897.] OpioioD of Court below. 

act of 1893 repeal that of 1868? The act of June 25, 1885, 
left in full force the Bedford county system for collecting the 
taxes in question: Malloy v. Reinhard, 115 Pa. 30; Evans v. 
PhiUipi, 117 Pa. 226. 

The act of 1893 is entitled " An act to authorize the election 
of tax collectors for the term of three years in the several bor- 
oughs and townships of this commonwealth," and provides 
" that the qualified voters of eyery borough and township in 
the commonwealth of Pennsylvania shall, on the third Tues- 
day of February after the passage of this act and triennially 
thereafter, vote for and elect one properly qualified person for 
tax collector in each of said districts, who shall serve for the 
term of three years, and shall give a bond annually to be ap- 
proved by the court ; " and in a second section it says " all acts 
or parts of acts inconsistent herewith are hereby repealed." 

The act of 1886 had already provided for the election of a 
collector of taxes in e.ach borough and township in the common- 
wealth, and the only changes made by the act of 1898 are with 
reference to the length of the oflicial term, extending it from 
one to three years, and the giving of a bond annually, as in the 
former act, " to be approved by the court," instead of " by the 
court or a judge thereof in vacation," as by the act of 1886. 

The 13th section of the act of 1886, after declaring so much 
of all general acts as was inconsistent with it repealed, further 
provided, "but this act shall not apply to any taxes, the col- 
lection of which is regulated by a local law," thus showing ex- 
plicitly the legislative intent of preserving in force local statutes 
like that of 1868 prescribing a method for the collection of cer- 
tain taxes, as above stated, though the same result would no 
doubt have been produced had no such clause been inserted. 

When the act of 1893 was passed, its second section repealed 
not only the repugnant provisions of the act of 1886, but all 
other general or local acts inconsistent with the act of 1893. 
But is the act of 1868 inconsistent with it? The act of 1893 
deals alone with the election and qualification of the ofiScer and 
his official term, while that of 1868 relates only to the manner 
of gathering the particular taxes therein mentioned by an officer 
whose election and the right to whose office are in no way affected 
by the act of 1893. The question for our determination is not 
whether a tax collector in Juniata township shall be elected 



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214 COMMONWEALTH v. COMMISSIONERS. 

Opinion of Court below. [6 Pa. Superior Ct.' 

under the terms of the act of 1893 or shall be designated in 
some other way, but whether the county treasurer, whose title 
to his office is not and cannot be challenged, and is conceded, 
shall collect certain taxes as heretofore, in accordance with the 
act of 1868, or whether the township collector shall gather those 
taxes also, along with all others, notwithstanding the local stat- 
ute and the saying clause in the 13th section of the act of 1885, 
which clause refers merely to the taxes affected by local laws 
and not to the election of the collector. 

In all the decided cases construing the act of 1893 which we 
have seen, the issue presented involved the right or title to the 
office of borough or township collector. In Com. v. Middle- 
town Borough, 3 Dist. R. 639, the question for decision was 
whether, since the passage of the act of 1893, that officer could 
be appointed under the local act. In Com. v. Wunch, 167 Pa. 
186, the collector of the township who had been duly elected 
and qualified under the act of 1893, applied for the duplicates 
but was refused because a local statute provided for the selec- 
tion of a person as collector who should be the lowest bidder, a 
method of designating a township collector clearly inconsistent 
with that provided by the act of 1893. In the case of Com. v. 
Lindenmoyer, 5 Northampton R. 165, the contest was likewise 
as to which of the parties was rightfully the township collector. 
Koehler was made so under the provisions of the act of 1893, 
and Lindenmoyer claimed title to the position by virtue of an 
appointment after competitive bidding for it under a local act. 

Whatever might have been the views of the several courts 
determining those cases upon the question now before us, it was 
not necessarily involved in the cases they decided and is not, 
as we think, ruled by them. They were ruled as they were for 
other reasons which are quite apparent, which were in fact ir- 
resistible, and which have been already noticed. The act of 
1893 meant to provide the only way of selecting the officials 
known as tax collectors in the several boroughs and townships, 
namely, by election, and of course the office could no longer be 
filled by competitive bidding and appointment or on the mere 
preference of the municipal officers. A uniform method of 
filling the office was clearly effected by the repealing section of 
the act of 1893, which strikes down all local statutes supplying 
contrary methods of choice. 



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COMMONWEALTH v, COMMISSIONERS. 215 

1897.] Opinion of Court below. 

But neither the title nor the act itself seems to us to indicate 
an intention to repeal local laws pertaining only to the manner 
of gathering taxes. 

If it had been intended to repeal all such acts as well as those 
relating to the election of the oflBcers it would have been readily 
accomplished in a single line by saying so in express terms. 
On the contrary the last clear expression of the legislature on 
this branch of the subject is contained in the saving clause of 
the act of 1885 and it leaves for collection taxes thus provided 
for to the systems contained in the local acts. 

The argument is that the court should go beyond the clearly 
declared purpose of the legislature and impress upon the act of 
1893 an intention which its words do not seem to imply. It is 
proposed that by judicial interpretation we shall read into the 
act what the law making power omitted to insert. True, as 
stated in Com. v. Wunch, supra, the Supreme Court has " felt 
constrained to interpret statutes relating to these subjects in 
the light of the constitutional requirements," and a purpose is 
there expressed of adhering to the rules laid down in Com. v. 
Macferron, 152 Pa. 244 and Quinn v. Cumberland County, 162 
Pa. 55 ; but we do not understand these remarks to indicate an 
intention to effect uniformity in all matters pertaining to taxa- 
tion by judicial construction unless such a purpose fairly appears 
on the face of a statute under consideration. In Com. v. Mac- 
ferron, cited in that case, it was said, the rule " that a previous 
local statute is not repealed by a subsequent general statute 
inconsistent with it, unless words of repeal are employed for 
that purpose," was not questioned, but was held inapplicable 
because in classification acts, like that under consideration, the 
legislative intent is fully expressed. And so was the intent 
most clearly expressed in the act of 1893 as applied to the case 
of Com. V. Wunch. In Quinn v. Cumberland County, it was 
said by Mr. Justice Gbbbk, " it is evident the two acts cannot 
be executed together, and the act of 1893, in its 8th section, 
expi'essly repeals all acts or parts of acts inconsistent with or 
contrary to the provisions of this act." That was also' true of 
the act in Longswamp township, Berks county, for the selection 
of a township tax collector, to which the principle was applied. 

But is there any reason why the acts which we are consider- 
ing may not be executed together in Juniata township, where 



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216 COMMONWEALTH v. COMMISSIONERS. 

Opinion of Court below. [6 Pa. Superior Ct. 

the relator will collect all the taxes except those for state and 
county purposes ? If they can stand and be executed together 
we do not understand the courts to mean that we should 
depart from the well settled rules of interpretation and strike 
down the local act for the sole object of effecting that uniform- 
ity to which the constitutional provision points. The constitu- 
tional demand for uniformity was as imperative when Malloy v. 
Reinhard was decided as it is now, and yet it was there said, 
" rarely, if ever, does a case arise where it can justly be held 
that a general statute repeals a local statute, by mere implica- 
tion. The constitution of 1874, upon many subjects, prohibits 
local or special legislation, but it changes no rule relative to the 
repeal, by legislation, of local laws existing when it was adopted. 
Had section 13 of the act of 1885 been omitted, there would 
have been no repeal of the local statutes for the borough of 
Verona." 

While, therefore, it is very clear that another collector of 
taxes in Juniata township could not be appointed in the face of 
the act of 1893, it is not equally apparent that it entitles the 
relator to the right of collecting all taxes assessed in that town- 
ship. In no event could he collect taxes on unseated lands, for 
the 12th section of the act of 1885 expressly forbids it, and we 
do not understand that any one alleges that section is repealed. 
If it remains in force it destroys the argument of a legislative 
intent to commit all the taxes in Juniata township to a single 
individual for collection. 

The system furnished by the act of 1868 has operated most 
satisfactorily for nearly thirty years in Bedford county, and as 
we learn in a number of other counties in which taxes are to- 
day being collected under it, and a number of reasons might be 
advanced why it is preferable to that embodied in the act of 
1885, but we are quite well awai-e that such considerations 
would not warrant us in sustaining the local act, and yet we 
would for that reason feel less inclined to strain a point in order 
to arrive at the relator's interpretation of the repealing clause 
of the act of 1893. 

Now, May 13, 1897, the demurrer of the relator, L. A. Hille- 
gass, to the answers filed in this case is hereby overruled, and it 
is ordered, adjudged and decreed that the duplicate of state and 
county taxes levied and assessed hi the township of Juniata for 



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COMMONWEALTH v. COMMISSIONERS. 217 

1897.] Opinion of Court below— Opinion of the Court. 

tiie current year be delivered by the county commissioners, for 
the purpose of the collection thereof, in accordance with the 
provisions of the act of April 13, 1868, to Charles Reily, the 
county treasurer. 

Hrrors amgned were (1) overruling demurrer. (2) In order- 
ing that the duplicates of state and county taxes levied and 
assessed in the township of Juniata for the current year, be de- 
livered by the county commissioners, for the purposes of collec- 
tion thereof, in accordance with the provisions of the act of 
April 13, 1868, to Charles Reily the county treasurer. 

Daniel S. Horn^ for appellant 

John S. Welter and Frank E. Colvin^ with them S. B. Longe* 
neeker^ for appellee. 

Opinion Br Bbaveb, J., December 13, 1897 : 
Under the provisions of an act of assembly approved April 13, 
1868, P. L. 1017, entitled "An act to provide for the collec- 
tion of state, county, poor and military taxes in the county of 
Bedford," the treasurer of the said county has, since the passage 
of the act, collected the taxes therein named. An act of assem- 
bly approved the 25th day of June, A. D. 1885, P. L. 187, 
entitled " An act regulating the collection of taxes in the several 
boroughs and townships of this commonwealth," provides for 
the election of an officer, to be styled collector of taxes, by the 
qualified electors of each borough and township in the common- 
wealth on the third Tuesday of February of each year there- 
after, and provides, in its fourth section : " The several county, 
borough, township, school, poor and other authorities now 
empowered and which may hereafter be empowered to levy 
taxes within the several boroughs and townships of this com- 
monwealth shall, on or before the first day of August in each 
year, after the first election of collector of taxes under this act, 
issue their respective duplicates of taxes assessed to the col- 
lector of taxes of their respective boroughs and townships, with 
their warrants attached, directing him to collect the same, but 
road taxes may be worked out as heretofore," and in its thir- 
teenth section provides : " So much of all general acts hereto- 



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218 COMMONWEALTH v. COMMISSIONERS. 

Opinion of the Court. [6 Pa. Superior Ct. 

fore passed as is inconsistent herewith is hereby repealed, but 
this act shall not apply to any taxes the collection of which is 
regulated by a local law." 

An act of assembly, passed the 6th day of June, A. D. 1893, 
P. L. 333, entitled " An act to authorize the election of tax col- 
lectors for the term of three years, in the several boroughs and 
townships of this commonwealth," provides simply for such 
election and, in its second section, repeals all acts or parts of 
acts inconsistent therewith. 

It is claimed by the appellants that the act last above men- 
tioned repeals the act of April 13, 1868, supra, and that it, by 
necessary impUcation, repeals the 13th section of the act of 
June 25, 1885, supra, it being admittedly clear that, unless this 
latter section is repealed, the local act of 1868 is safe under its 
protection. 

It is admitted that the precise question raised here has not 
been decided in Pennsylvania. Com. v. Wunch, 167 Pa. 186, 
in which the decision of the lower court, affirmed in a Per 
Curiam opinion of the Supreme Court, relies largely upon 
Com. V. Middletown, 3 Dist. Rep. 639, is not directly in point. 
In both of these cases the question involved was, whether the 
tax collector elected under the provisions of the act of 1893, 
supra, should perform the functions and discharge the duties 
of the office to which he had been elected by the qualified elect- 
ors of the municipality, or whether these functions and duties 
should be performed and discliarged by officers or employees 
who by appointment or competitive bidding had secured the 
rights and privileges of tax collectors under the operation of 
local laws. It will be observed that the act of 1893, supra, pro- 
vides for the election, by the qualified voters of every borough 
and township in the commonwealth of Pennsylvania, on the 
third Tuesday of February after the passage of the act, and tri- 
ennially thereafter, of one properly qualified person for tax col- 
lector in each of said districts, who shall serve for the term of 
three years. It is very clear that the lowest bidder for the col- 
lection of taxes in the townships of Longswamp and Bethel, in 
Berks county, and the collector appointed by the town council 
of the borough of Middletown could not collect the taxes in 
those districts I'espectively, consistently with the rights and 
duties of the collectors of taxes elected under the provisions of 



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COMMONWEALTH v. COMMISSIONERS. 219 

1897.] Opinion of the Couii:. 

the act of 1893, supra, if the tax collectors so elected were to 
assume the obligations or discharge the duties of the office to 
which they had been severally elected. The latter act is plainly 
inconsistent with the local acts for Longswamp and Bethel 
townships and Middletown borough above referred to. The 
provisions of these several acts cannot be enforced at the same 
time and, therefore, cannot stand together. Under the plainest 
principles of construction, therefore, the general repealed the 
local acts. 

We have an entirely different question raised in the present 
case. The saving clause of the thirteenth section of the act of 
1885, supra, is ** But this act shall not apply to any taxes the 
collection of which is regulated by a local law." The treasurer 
of Bedford county can collect the state and county taxes, the 
latter by the Act of April 4, 1872, P. L. 929, being made to 
include/ the poor taxes, and the relator Hillegass, who was 
elected tax collector for Juniata township at the February elec- 
tion in 1897, can collect all the to^oiship taxes without in any 
way interfering with each other in the discharge of the duties 
of their respective offices and without abridging the rights or 
limiting the powers of the township collector, so far as they 
relate to the collection of township taxes. There is, therefore, 
no necessary conflict between the duties of these several officers, 
which are to be discharged under and by virtue of the provi- 
sions of the several laws under which they secure their rights 
and receive their authority respectively. The acts are not 
necessarily inconsistent with each other and, therefore, in ac- 
cordance with well known principles, can and ought to be con- 
strued together, so that full force and effect may be given to 
the provisions of each respectively. 

The titles of the acts of 1886 and 1893, supra, are significant. 
The first is entitled " An act regulating the collection of taxes 
in the several boroughs and townships of this commonwealth ; " 
the second " An act to authorize the election of tax collectors 
for the term of three years in the several boroughs and town- 
ships of this commonwealth." Nothing whatever is intimated 
in the title of, and nothing is said in the latter act in regard to 
any system for the collection of taxes. 

So many of the counties of the commonwealth have provi- 
sions practically similar to those of Bedford county for the col- 



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220 COMMONWEALTH v. COMMISSIONERS. 

Opinion of the Couit. [6 Pa. Superior Ct. 

lection of state and county taxes, under local laws, that this 
mode of collection may be almost regarded as a system, one 
which has worked well in practice, under which public inter- 
ests have not suffered, and may well have been in the mind of 
the legislature when the act of 1885, supra, was passed. Ai*e 
the state and county taxes in these several coimties included 
in, or do they constitute the " any taxes the collection of which 
is regulated by a local law " mentioned in the thirteenth section 
of the act of 1886, supra? If so, and there is no necessary in- 
consistency between the enforcement of the provisions of the 
general act of 1893, supra, and the several local acts, including 
the act of 1868, supra, their collection, as provided for in the 
several local acts, should not be interfered with. We think it 
apparent that there is no such inconsistency, and that the gen- 
eral and local acts involved in this controversy can be enforced 
at the same time, without in any material way interfering with 
each other. 

It is not necessary to add more to the well considered opin- 
ion of the presiding judge in the court below. We are of opin- 
ion that he reached the correct conclusion in construing the 
various statutes involved, and the judgment is, therefore, af- 
firmed. 



Commonwealth of Pennsylvania v. 6. Augustus Page, 

Appellant. 

Criminal law— Abortion — Adequate charge— Answer to point—Question 
for jury. 

Where the question is whether the defendant did or did not commit an 
abortion in manner and form as indicted it is exclusively for the juiy, the 
issue being dependent upon the credibility of the witnesses for the com- 
monwealth and accused respectively. The appellate court will not disturb 
the verdict of the jury on the ground that the charge of the court and an- 
swer to defendant's point were unfavorable to the defendant, and inade- 
quate in the presentation of the case for the consideration of the juiy, 
when the point in question is ingenious but argumentative and composed 
in part of a skilful combination of fact and inference which did not admit 
of an unequivocal answer; and where the charge was fair, impartial, 
adequate and sufficiently guai*ded the rights of the defendant 



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COMMONWEALTH v. PAGE. 221 

1897.] Statement of Facts—Charge of Court. 

Argued Oct. 19, 1897. Appeal, No. 84, April T., 1898, by 
defendant, from judgment of Q. S. Allegheny Co., Dec. Seas., 
1896, No. 446, on verdict of guilty. Before Rice, P. J., Wick- 
ham, Beaveb, Reedeb, Orlady, Smith and Pobteb, JJ. 
Affirmed. 

Indictment for abortion. Before Slagle, J. 

The facts sufficiently appear from the charge of the court 
below: 

The defendant, G. Augustus Page, is charged in this indict- 
ment under four counts. These counts are drawn under an act 
of assembly in relation to the crime of abortion, which, at com- 
mon law, was not regarded as of so very great importance, but 
which, in their wisdom, the legislature saw proper to specially 
provide for. The act of assembly is as foDows : 

" If any person shall unlawfully administer to any woman, 
pregnant or quick with child, or supposed and believed to be 
pregnant or quick with child, any drug, poison or other sub- 
stance whatsoever, or shall unlawfully use any instrument or 
other means whatsoever, with the intent to procure the mis- 
carriage of such woman, and such woman, or any child witli 
which she may be quick, shall die in consequence of either of 
said unlawful acts, the person so offending shall be guilty of 
felony." 

The second section is : " If any person, with intent to procure 
the miscarriage of any woman, shall unlawfully administer to 
her any poison, drug or substance whatsoever, or shall unlaw- 
fully use any instrument, or other means whatsoever, with the 
like intent, such person shall be guilty of felony." 

The difference between those sections being, that in the first, 
in order to make out the offense, it must follow that the child 
or woman died; in the second, merely the administering of 
poisons or the use of instruments, with intent to produce abor- 
tion, makes out the offense, whether or not the child or the 
mother died. 

In this case, as I say, there are four counts. The first count 
is drawn under the 88th section of the act of March, 1860, 
which charges the administering of poisons or other substances 
of that sort, merely with the intent to produce abortion. There 



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222 COMMONWEALTH v. PAGE. 

Charge of Court. [6 Pa. Superior Ct. 

is no evidence in this case that medicines were administered by 
the defendant with any such purpose, and therefore there can 
be no conviction under that count. 

The third count charges the administering of medicines, and 
alleges that in consequence of that the mother, Mrs. Martha M. 
Page, died. There is no evidence, as I say, of the administer- 
ing of medicine, and therefore there can be no conviction under 
that count. 

The second count alleges that an instrument was used, — 
^^ that the defendant did use a certain instrument and other 
means in and upon the body of one Martha M. Page, she, the 
said Martha M. Page, being then and there pregnant and quick 
with child, or supposed and believed to be pregnant or quick 
with child, with the intent to procure the miscarriage of the said 
Martha M. Page, contrary to the act of the general assembly." 
Now that count of the indictment is made out by the simple 
proof of the fact that an instrument was used, without regard to 
its consequences ; and if you find that the defendant used an 
instrument upon his wife for the purpose of producing an abor- 
tion, then he would be guilty under that count of the indict- 
ment 

The fourth count of the indictment alleges that an instru- 
ment or other means was used ^'with the intent to procure the 
miscarriage of the said Martha M. Page, and in consequence 
of the said unlawful act the said Martha M. Page did then and 
there die ; contrary to the form of the act of the general as- 
sembly;" so that under that count it is necessary that you 
should be satisfied from the evidence that Mrs. Page died in 
consequence of the use of this instrument. 

The only two counts of the indictment which you are to con- 
sider, therefore, are the second and fourth, and as the fourth 
includes the second — because in the fourth count of the indict- 
ment it is necessary that you should be satisfied that the defend- 
ant used the instrument and that that resulted in the death of 
Mrs. Page, of course the second count is included in it — and if 
you find, then, that he used the instrument and that Mrs. Page 
died from the effects of that attempted abortion, then you should 
find him guilty of the fouHh count and no more, because the 
fourth includes the second. 

Now, keeping these things in mind, it is necessary for me to 



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COMMONWEALTH v. PAGE. 223 

1$97.] Charge of Court. 

instaruct you as to the law bearing upon the various questions 
raised by the testimony. The counsel for defendant have asked 
me to instruct you upon certain questions of law, and before 
making any general remarks I will answer the points submitted 
to me. 

Here the court read and answered the defendant's points and, 
inter alia, point IV. 

rV. [In considering the testimony relating to the defendant's 
alleged admission to Dr. Pettit that he had used an instrument 
upon the person of his wife, Martha M. Page, the jury should 
bear in mind the infirmity of human recollection as to the exact 
words that were used, the interest, if any, which Dr. Pettit has 
in shielding himself from blame, the fact that on one of the two 
occasions of said alleged admissions Dr. Pettit himself admits 
that he is uncertain whether defendant said ^^ that is what I 
used " or " that is what was used," the testimony of Edward A. 
Woods that Dr. Pettit told him he was not certain whether 
defendant said he or she had used the instrument, and all other 
facts tending to show that Dr. Pettit may be mistaken in re- 
peating the language used by defendant more than a year ago, 
including the positive denial of the defendant that he ever 
used, or told Dr. Pettit that he used, an instrument upon his 
wife ; and, unless upon consideration of all the facts, the jury 
are convinced beyond a reasonable doubt that the defendant did 
certainly admit that he used the instrument upon his wife, and 
actually did use it, or assist in its use, their verdict should be 
not guilty. Answer : This is refused. I do not recall any evi- 
dence showing any interest of Dr. Pettit in this case. It is not 
alleged that he produced the abortion. The defendant said that 
the doctor had agreed to remove the foetus in case on examina- 
tion he found it dead. As to any alleged malpractice by him, 
it would make no difference by whom the instrument had been 
used. The matters mentioned in this point should be con- 
sidered in connection with the other evidence in the case, to 
determine whether or not the defendant did say to Dr. Pettit 
what he testified the defendant had said ; but the guilt of the 
defendant does not depend on that fact alone ; there is other 
evidence in the case which should be considered.] [1] 

Now, gentlemen, as you will observe, taking the fourth count 
of the indictment, which includes, as I have said, the second. 



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224 COMMONWEALTH v. PAGE. 

Charge of Court. [6 Pa. Superior Ct. 

there are a number of things that are necessary to constitute 
this offense. In the first place, the woman must be pregnant 
or quick with child, or supposed and believed to be pregnant 
or quick with child. An instrument, or other means of simi- 
lar character — it does not describe any particular instrument — 
some mechanical means — must have been used in order to pro- 
duce an abortion, that is, with the intent to procure the "mis- 
carriage " of such woman, as it Ls called in this act, and that 
word is probably used in the act because abortion at common 
law had a peculiar signification relating to the time at which it 
was attempted, that is, in relation to the length of time that the 
child had been conceived, and under our law whenever concep- 
tion has taken place and an attempt is made to produce a mis- 
carriage it is an offense under this law, so that the time at which 
conception had commenced is not material here, provided it 
was well defined. And, further, you must find under this in- 
dictment that Mrs. Page died from the effects of that operation. 
It is not alleged in the count that the child died from that, but 
it is alleged that Mrs. Page died from the effects of that opera- 
tion, and therefore you must find that fact, and it is not suflB- 
cient that you should find simply that the child died. 

A number of these facts are undisputed. The testimony is 
undisputed of all the witnesses who have any knowledge of the 
matter that Mrs. Page was pregnant at the time this act was 
committed. The testimony of the defendant is that she was in 
the course of pregnancy for about two months and a half ; the 
doctors testified that from the appearances it was from three to 
four months. The foetus was from three to four months old ; 
but there is no question about the fact that she was at 
that time pregnant. There is no dispute about the fact 
that an instrument was used. The defendant himself tes- 
tifies to that, so that that is beyond any question or dispute, 
that there was an instrument used for the purpose of producing 
this abortion. The testimony of the physicians indicates it. 
The testimony of the defendant himself is that his wife had 
used an instrument, and that she had told him what instrument 
was used, and he afterwards produced it, so that there is no 
question as to the fact that there was an attempt to produce an 
abortion by the use of an instrument, and that would make an 
offense under the second count of the indictment — I do not 



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COMMONWEALTH v. PAGE. 225 

1897.] Charge of Court. 

mean that it would make him guilty of the offense, but would 
constitute an offense under the act of assembly — but in order 
to convict under the fourth court of the indictment, you would 
have to find the further fact that this resulted in the death of 
Mrs. Page. I do not know whether there is, under the testi- 
mony, any great question as to that faot. The testimony of the 
doctors as to her condition at the time she was taken to the 
hospital — not only the testimony of Dr. Pettit, but that of the 
other doctors — would indicate a very bad condition. Dr. Pettit 
says that when he got thei*e on Thursday he discovered that 
she had been bleeding very profusely, and there were clots of 
blood» and that after making an examination he concluded that 
to save her life it was necessary that this fcetus should be re- 
moved ; that he had not been certain on the first examination 
on the Saturday and Monday preceding, that the child was 
dead ; that upon this examination on Thursday he withdrew 
one of the limbs out far enough for him to know that the child 
was dead and he then proceeded to remove it, and that it was 
necessary to do that in order to save her life, in that condition. 

Now, if you are satisfied from the testimony in the case that 
Mrs. Page would have died, then, if she died under an operation, 
which was necessary to save her life, still the death must be re- 
lated back to the original injury, and if you are satisfied from 
all the circumstances that the original injury would have caused 
her death— satisfied of all these facts, of course, beyond a rea- 
sonable doubt — that the original injury produced by the use of 
these instruments would have caused her death, then the fact 
that she died under an operation or in consequence of an opera- 
tion which was necessary to save her life would not change the 
effect of that condition. 

Then that would constitute the offense ; the woman was preg- 
nant, an instrument was used, and Mrs. Page died; but in 
order to convict, you must further find, beyond a reasonable 
doubt, that the instmment was used by the defendant in this 
case, or, as has been suggested in the point submitted and which 
I have answered in the afiirmative, that he assisted in doing it, 
because if he was present, assisting in its use by any peraon 
else — his wife or any other person — he would be equally guilty, 
if he was there assisting in the operation, though he didn't use 
the instrument himself ; but under the testimony in the case, 
Vol. VI— 16 



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226 COMMONWEALTH v. PAGE. 

Char^ of Court. [6 Pa. Saperior Ct. 

it seems to me, if there is any doubt about the fact of his using 
it at all, there would be the same doubt as to his assistance, be- 
cause there is no evidence as to any circumstances of that sort. 
The testimony on the part of tlie commonwealth goes to show 
that he did it himself, and if he did not do it himself the testi- 
mony would not justify any inference that he assbted in it, it 
seems to me ; however, that is all for you. 

[Now you have heard the testimony discussed fully by coun- 
sel and it is not necessary for me to repeat it. You have heard 
the testimony of Dr. Pettit as to what he said at the time the 
defendant first spoke to him in reference to this matter, and 
you have heard the positiveness with which he asserts that at 
that time the defendant said, '^ I used this instrument," and you 
have heard also the reason why he says he is certain of the lan- 
guage used at that time, because of the subsequent conversation 
in relation to the matter. Of course the change of one word 
would make a great difference, and if the circumstances were 
not such as to justify you in believing that Dr. Pettit remem- 
bered distinctly the language which was used that might raise 
a reasonable doubt in your minds ; but you will take his recol- 
lection in connection with all the other testimony in the case 
and say whether or not you are satisfied that Dr. Pettit now 
testifies to what actually occurred; and, hi connection with 
that, you have the testimony of Mr. Kress as to what was 
said to him, and it seems to me that that is in corroboration of 
what was said to Dr. Pettit, or what he alleges was said to him. 
Mr. Page denies that he said to either of these men what they 
testify that lie did say to him — denies that he used the word 
*' I," but says that he used the word " she ; " but you have the 
testimony of those witnesses, and you will remember what they 
said and about all the circumstances attending the conversa- 
tions, and if you are satisfied that they are telling the truth 
about it, then you have the admission of the defendant that he 
was the party who committed this offense. Against that you 
have his statement that he said nothing of the sort, and you 
will take into consideration, also, all the circumstances attend- 
ing the transaction, in order to determine on which side the 
truth lies. 

As I said, without going over all the testimony in the case 
upon this point, you must be satisfied after a full and fair con^ 



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COMMONWEALTH v. PAGE. 227 

1897.] Charge of Court — Argaments. 

sidoration of all the evidence — satisfied fully and beyond a rea- 
sonable doubt, not a mere possibility of doubt, but some reasonable 
difficulty in coming to and maintaining your conclusion as to 
his gmit. If you have such a doubt you will find him not 
guilty. If you are satisfied beyond such a doubt that he com- 
mitted this offense, then you would find him guilty on the fourtli 
count, if you find that the death of Mrs. Page was the conse- 
quence of this act ; or, if you have any doubt about that, you 
will find him guilty on the second count of the indictment— of 
an attempt.] [2] 

To which charge of the court counsel for defendant ex- 
cept. [3] 

Verdict of guilty and sentence thereon. Defendant appealed. 

Errors assigned were (1) refusing to affirm defendant's 
fourth point and in the answer thereto, reciting same. (2) To 
a portion of the judge's charge, reciting same. (3) The charge 
of the court as a whole is unfavorable to appellant, and inade- 
quate in its presentation of the case to the jury. (4) In enter- 
ing judgment upon the verdict founded upon the meager and 
uncertain evidence presented by the commonwealth in this case. 

2>. F. Patter soTiy with him Chas. A. Woods^ for appellant. — 
On the whole, and as a whole, it was a charge for conviction, 
in a typical case for acquittal on the ground of reasonable doubt. 

We contend that no judgment should have been entered upon 
a verdict founded, as this verdict must have been, upon the tes- 
timony of a single witness respecting the appellant's use of a 
single word. In Com. v. Cleary, 135 Pa. 64, Paxson, C. J., 
said : " When a man's life may depend on a single word, the 
use of language cannot be attended with too much care." This 
was said in reference to the language used iJy the court below 
in its charge, and is certainly no less applicable to language al- 
leged to have been used by party charged with crime. 

The note to page *826 of the 10th edition of Starkie on Evi- 
dence furnishes a valuable illustration of the damage likely to 
result from the misuse of a single word. 

We claim that even a stringent administration of justice does 
not require the punishment of a reputable citizen when the 
question of lus guilt or innocence depends upon a witness's 
understanding or recollection of whether he said " I did it " or 



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228 COMMONWEALTH v. PAGE. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct. 

^^ she did it," especially when there is so much in the case to in- 
dicate that as a matter of fact ^^ she did it." 

John C. Haymaker^ district attorney, for appellee. • 

Opinion by Beaveb, J., December 13, 1897 : 

This case afifords an illustration of the necessity for the ef- 
forts which organized society has made, through the laws which 
it has enacted, to protect itself — a necessity never more ap- 
parent and pressing than in these latter days of modem social 
life, when the moral tone in regard to crimes of this character 
has become lamentably lax. 

Were there facts fairly raised by the evidence for the consid- 
eration of the jury and was the testimony in regard to these 
facts presented for their consideration in such a way as to guard 
the legal rights of the defendant ? These, under various forms, 
are the questions raised by the assignments of error and admit 
of a very simple and direct answer. 

The defendant's fourth point, the answer to which is com- 
plained of, is ingenious, but it is argumentative and is com- 
posed in part of a skilful combination of fact and inference, 
which did not admit of a direct and unequivocal answer. The 
court undertook to answer it, however, and we think did so 
wisely and well. The charge was fair, impartial, adequate and 
sufficiently guarded the rights of the defendant. 

The principal witness for the commonwealth, Dr. Pettit, was 
clear in his recollection and emphatic in his declarations as to 
the defendant's admissions as to his personal connection with 
the principal fact upon which the commonwealth relied for his 
conviction, his recollection being fortified by the rebuke which 
he had administered to the defendant at the time, which would 
have been entirely out of place, except upon the theory of the 
defendant's personal participation in the operation which finally 
resulted in the death of his wife. The previously expressed 
intention of the defendant to another witness was, of course, 
powerfully corroborative of the commonwealth's case. The tes- 
timony of these witnesses, whose natural bias, if they had any, 
would, because of their previous friendship for him, have been 
with the defendant was opposed by the simple though emphatic 
-denial of the defendant. 



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COMMONWEALTH v. PAGE. 229 

1897.] Opinion of the Court. 

The issue was a very simple one. It was exclusively for the 
jury, under proper instructions from the court. Such instruc- 
tions we think they had. We are not prepared to say that the 
verdict of the jury was not warranted by the facts. We ai-e of 
the opinion that the judgment of the court below should be, as 
it now is, affirmed, and the record is remitted to the court 
below with directions that the defendant be remanded to the 
Western Penitentiary to serve that portion of the sentence yet 
unserved at the time this appeal was perfected, to wit: the 
81st day of July, 1897. 



W. S. Taylor v. John Sattler and George P. Bickel, Ap- 
pellants. 

Practice, Superior Court— Appeals— Defective assignment. 

An assignment of error is defective under Rule 15 of the Superior Court 
which assigns for error the whole charge without further specification. 

The purpose of an assignment of error is to place upon the records of 
the appellate court the specific ground of complaint on the part of the ap- 
pellant. 

Appeals— Beview— Theory of trial below foUowed. 

A case will be treated in the appellate court as it was tried below. It 
must be regarded as the trial judge was led, to view it from the pleadings, 
tlie evidence and the contentions of counsel. The appellate court ought 
not to consider whether it might or should have been tried on some theory 
that would have led to a different result ; when no radical error is mani- 
fest the appellate court will adhere to the theory of the case which the 
parties adopted, and in view of which the court instructed the jury. 

Appeals— Review— Appellant may not shift theory of the ease. 

Where tho yerdict of the jury established the liability of the defendants 
upon the theory of the case by which they chose to have it tested, they can- 
not be permitted on appeal to change their ground and allege that the case 
should have been treated in accordance with a view not presented on tlie 
trial. 

Attachment under act of \S69— Bond— Action— Damages. 

An action may be maintained on a bond given in an attachment proceed- 
ing under the Act of March 17, 1869, P. L. 8 as amended by the Act of 
May 24, 1887, P. L. 197, where there has been a failure to prosecute the 
action with effect or where the attachment has been quashed, but recovery 
in such action is limited to legal costs, fees and damages sustained by rea* 
•on of the attachment. 



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230 TAYLOR v. SATrLER. 

Statement of Facts — Charge of Couit. [6 Pa. Superior Ct; 

Argued April 12, 1897. Appeal, No. 7, April T., 1897, by 
defendants, from judgment of C. P. No. 3, Allegheny County, 
February Tenn, 1894, No. 534, on verdict for plainti£F. Before 
Rice, P. J., Willard, Wickham, Beaver, Reedeb, Oblady 
and Smith, JJ. Affirmed. Reedeb, J., dissents. 

Assumpsit on a bond given in a writ of attachment issued 
pursuant to the act of 1869. Before Kennedy, P. J. 

The facts sufficiently appear in the charge of the court below: 
On or about April 1, 1891, John Sattler, one of the defend- 
ants in the case, commenced an action against the plaintiff, 
Mr. Taylor, by an attachment and proceeding under one of our 
statutes, and that attachment was served or executed on or 
about the first of May following, attaching certain property of 
the plaintiff, W. S. Taylor. At the time of the issuing of the 
attachment, the plaintiff in that action, Mr. Sattler, as he was 
required to do, gave a bond, with the other defendant here, 
George P. Bickel, as surety, the condition of that bond being 
that he, Sattler, would prosecute his attachment and proceeding 
to success, or, failing therein, he would pay to Mr. Taylor any 
damage or loss accruing to him by reason of this attachment. 

The attachment was issued about the first of April, 1891, 
and served about the first of May of the same year. That attach- 
ment remained until May of 1893, upwards of two years, when 
it was dissolved or quashed by an order of court ; in other 
words, Mr. Sattler failed to sustain his attachment proceedings, 
and then Mr. Taylor, as he had a right to do, brought an action 
upon the bond that had been given by Mr. Sattler, with Bickel 
as surety, to recover the damages which he alleged he sustained 
by reason of the issuing and continuance of this attachment for 
something like upwards of two years, and that action you have 
been sworn to try in this case. It is admitted by the pleadings 
in this case by the defendants that this property of the plaintiff, 
was duly attached. In their affidavit of defense they do not 
deny that the property was attached under the proceedings com- 
menced by Mr. Sattler, and they do not deny that they failed to 
sustain that attachment proceeding. And hence Mr. Taylor is 
entitled to recover in this action damages, if any, which he has 
Buff6i*ed by reason of the attachment. The property attached, 



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TAYLOR r. SATrLER. 231 

1B97.] Charge of Court. 

consisted of tools used in the diilling of oil wells. You have 
heard them described ; and Mr. Taylor has given to you the 
cost of those tools, and his estimate of their value at the time of 
the attachment. The most of them were second-hand tools, but 
he alleges they were worth at least two thirds of their original 
cost, and he has given you in detail the cost of the tools that 
were attached. He claims that they were a total loss to him ; 
that this attachment remained in force for upwards of two years, 
and in the meantime the tools all went to destruction. He says 
that whatever was left there, if anything, was worthless, and he 
therefore asks at your hands a verdict for all the tools, because 
they were a total loss to him. 

It appears in the proceeding, gentlemen, that a portion of the 
tools, however, at the time of the attachment, were in the well 
which was in process of drilling, and were fast there and were 
never gotten out. Of course, for those the plaintiff is not 
entitled to recover. He does not suffer any loss by reason of 
the attachment upon those articles that were at the time fast in 
the well. Of course, the attachment proceeding did not increase 
that loss, or did not cause the loss of those tools, and as to. them 
he is not entitled to recover. The plaintiff admits that, and his. 
counsel frankly stated that you may omit those in your consid- 
eration in making up your verdict. But he claims, as to the other 
tools that were on the ground, to recover their full value at the- 
time, and his estimate of them, and the estimate of his witnesses,, 
is something upwards of $900. He claims, in addition,, for loss., 
of time, some $18.00, and railroad fare $10.00, making $28.00 
actual loss or outlay incurred by him by reason of the attach • 
ment, in having to attend it here. 

In substance that is plaintiff's claim, amounting in the aggre* 
gate to something like $900 or $1,000, and for that he asks a 
verdict at your hands. The defendants, while admitting by 
their affidavit of defense that these tools were attached, and that 
they did remain under the attachment for upwards of two years^ 
yet claim that a large number of the tools were in this well, and 
a total loss to the plaintiff irrespective of the attachment. They 
claim that there were other tools in the well besides those 
admitted to be there by the plaintiff. That is for your coosid- 
eration. Any tools you find were in this well, and lost by rea- 
son of being there, of coui'se the plaintiff is not entitled to 



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282 TAYLOR v. SATrLER. 

Charge of Court. [6 Pa. Saperior Ct. 

recover for. The plaintiff admits that ; but he gives you, as he 
claims, a complete list of those articles, and says that those are 
all the articles in the well, and only for those should there be 
any reduction made from his claim. 

The defendants claim, further, that these tools that were 
there, and attached — that were not in the well I mean, but 
that were taken under this attachment — were not of the value 
that the plaintiff puts upon them ; that they were second-hand 
tools and worth much less in value. That is another question 
for you to determine : what the tools were actually worth that 
were not in the well — what they were fairly and reasonably 
worth in the market. For that amount you are to allow the 
plaintiff, if they were not left there at the time the attachment 
was dissolved, and in the same condition that they were at the 
time the attachment was issued. In other words, if the goods 
were either lost or destroyed, or injured, by reason of the at- 
tachment, for that loss, destruction or injury the plaintiff would 
be entitled to recover in this action. But if they were there in 
the same condition when the attachment was dissolved that they 
were at the time the attachment was issued, and the plaintiff 
could have had them by going for them, then he did not suffer 
any loss. But the plaintiff claims that they were a total loss 
by reason of this attachment; and you will bear in mind that 
this attachment remained there for some two years. If the 
property was left without proper care for that time, of course 
it would be liable to deteriorate in value. 

Now, then, whatever loss or damage the plaintiff suffered by 
reason of this attachment, continuing in force for upward of two 
years, for that amount, if any, you will allow, by your verdict 
in this case, in favor of the plaintiff. 

Counsel for defendants have asked us to instruct you as 
follows : 

1. That to recover damages in this case by reason of the 
attachment, the same must be clearly proven. Answer : This 
point is affirmed. 

2. That if it appears to the satisfaction of the jury that the 
loss, if any, in this case, was caused by the negligence of the 
plaintiff himself, in not looking after his property when 
the attachment was dissolved, the plaintiff cannot recover. 
Anitter : This point is affirmed. 



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TAYLOR V. SATTLER 233 

1897.] Charge of Court— Opinion of the Court. 

8. That it was clearly the duty of the plaintiff to look after 
his property in some reasonable time after the attachment was 
dissolved. Answer: This point is aflSrmed. You will recollect 
in this connection that the plaintiff maintains that the property, 
whatever was there, was utterly worthless to him at the time of 
the dissolution of the attachment, while the defendants main- 
tain that it was as good as when the attachment was issued. 

4. That the sheriff's return in this case is not in evidence 
properly, and, while the attachment was issued, the alleged 
service of the same is denied by the alleged garnishee, Fred. 
Opperman, and is not binding on defendants. Answer : This 
point is refused. As I have said, the defendants have not 
denied, in their affidavit of defense, that the attachment was 
issued and served ; in other words, they have not denied that 
this property was attached, as claimed by the plaintiff. 

To which charge of the court counsel for the defendants 
except, and, at their instance, bill sealed. 

Error assigned was to the charge of the court reciting same. 

A. H, Rowand and James Fitzsimmons^ with them R. H. Row- 
andf for appellants. — The case discloses no evidence that will 
warrant the judge in submitting to the jury the question as to 
the amount of damages which were indirect and consequential. 
In this case the entire charge of the court, which is practi- 
cally assigned for error, shows that the court mistook the law 
of this case and allowed the plaintiff below, and appellee here, 
to recover for that which was not comprehended under the 
terms or provisions of that statute, or of the bond to be given 
thereunder. 

It is scarcely necessary to say anything more than to refer to 
the cases of the Com. v. Land and Improvement Co., 163 Pa. 
99; Berwald v. Ray, 165 Pa. 192. 

J. M. Stoner^ with him F, R. Stoner^ for appellee. 

Opinton by Smith, J., October 18, 1897 : 

In Com. V. Swayne, 1 Pa. Superior Ct. 547, this court ex- 
pressed its disapproval of the practice of assigning for error the 
entire charge, without further specification, for reasons thus 



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234 TAYLOR v. SATTLKR 

Opinion of the Court. [6 Pa. Superior Ct. 

tersely stated by our Brother Beaybb : " Rule 15 of this court 
provides that each error relied on must be assigned particularly 
and by itself. What is the error relied upon in this assign- 
ment? Is it that the charge of the court taken as a whole was 
inadequate, or that it was unfair to the defendant, or that it 
failed to state the evidence specifically and faiiiy, or that the 
conclusions of law therein set forth were erroneous ? We can- 
not tell. The particular error complained of should be specifi- 
cally set forth, so that the attention of the court may be directed 
thereto. This assignment, therefore, lacking as it does the 
essential element of particularity, is not considered." This 
ruling is the logical outcome and application of the proposition 
laid down by the Supreme Court that : " The purpose of an 
assignment of error is to place upon the records of this court 
the specific ground of complaint on the part of the appellant : " 
Rosenthal v. Ehrlicher, 164 Pa. 396, Williams, J. 

It is well settled that, in the absence of a request for specific 
instructions, mere errors of omission in the charge can be com- 
plained of in the appellate court only in exceptional cases ; as, 
for uistance, when the presentation of the question involved is 
so imperfect and inadequate as either to leave the jury practi- 
cally without direction on important points, or tends to mislead 
tliem, as in Tietz v. Traction Co., 169 Pa. 616 ; Richards v. 
Willard, 176 Pa. 181 ; when some aspect of the evidence de- 
mands that the attention of the jury should be called to it as 
involving material questions for them to consider and deter- 
mine, as in cases of which Herstine v. R. R. Co., 151 Pa. 244, 
is a type ; when prominence is given to evidence on one side, 
without adequate reference to evidence in contradiction, as in 
Herrington v. Guernsey, 177 Pa. 176; Lerch v. Bard, 177 Pa. 
197 ; or where, in a trial on indictment, it is the duty of the 
court to fully instruct the jury with respect to the ingredients 
of the offense and the evidence necessary to convict. As to 
errors of commission, there can be little difficulty in pointing 
them out, if not specifically, at least by description, as indicated 
in Com. v. Swayne, supm. Even in the rare instances in which 
the charge embraces but one point, or raises but one question, 
the practice of assigning it in lump is not to be commended. 
It is, in all cases, more in conformitj' with the spirit and pur- 
pose of the rule to present the portion alleged to be erroneous 



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TAYLOR V. SATTLER. 235 

1897.] Opinion of the Court. 

" particularly and by itself," separated from extraneous matter. 
If this cannot readily be done, the specific character of the 
alleged error can be clearly indicated. 

In the case before us, as in Voskamp v. Conner, 173 Pa. 109, 
the assignment is ^^ as far from being specific as it can well be 
made ; " and, as was said in Walls v. Campbell, 125 Pa. 346, if 
we are to consider it, " we must treat the case here as it was 
tried below." We must regard it as the trial judge was led to 
view it from the pleadings, the evidence, and the contentions 
of counsel. We are not to consider whether it might or should 
have been tried on some theory that would have led to a differ- 
ent result. When no radical error is manifest, this court will 
adhere to the theory of the case which the parties adopted, and 
in view of which the court instructed the jury : Griffith v. Knarr, 
1 Pa. Superior Ct. 379. "A judge who submits a case to a 
jury in the manner in which it is presented by counsel, ought 
not to be convicted of error for not presenting it in some other 
way to which his attention had not been called : " Hartley v. 
Decker, 89 Pa. 470, Paxson, J. To determine, therefore, 
whether the trial judge may be convicted of error in the charge 
before us, we must examine the case as it was presented on the 
trial, and decide, not whether the theory on which the parties 
chose to present it was the correct one, but whether the charge 
of the court, upon that theory, can justly be complained of by 
the appellants. 

The declaration alleges, as breach of the condition of the 
bond, that the obligors did not prosecute the attachment with 
effect, or recover a judgment therein, or pay the legal costs and 
damages which the defendant therein — the plaintiff here — sus- 
tained by reason of the attachment ; and f ui-ther avers, as the 
direct and specific cause of damages thus sustained, '^ that the 
defendant took under said attachment and afterward converted 
to his own use," the property attached. The plea of nonas- 
sumpsit, by which this was met, was merely a denial of the 
execution of the bond and the alleged breach of condition ; and 
as the affidavit of defense is not printed, it does not appear tliat 
anything else was in controversy. On the trial, the execution 
of the bond, with the failure to prosecute with effect, to recover 
judgment, and to pay the legal costs and damages, were not. 
controverted ; and the evidence left nothing in issue but the 



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236 TAYLOR v. SATTLER 

Opinion of the Court. [6 Pa. Superior Ct. 

nature, cause and extent of the damages, as specifically laid — 
that is to say, the loss to the defendant in the attachment from 
the alleged possession and conversion of the goods, under the 
writ, by the plaintiff therein. The possession taken by the 
plaintiff in the attachment, of the premises on which the de- 
fendant's goods had been left, included the custody of those 
goods, and as to the greater portion of them nothing further is 
shown. The plaintiff in this action contended, on the trial, that 
by reason of this possession they were lost to him. This was 
denied by the defendants. This was the only matter in con- 
troversy. The evidence on both sides was directed solely to 
the condition and value of the property when the attachment 
was issued or executed, and when it was dissolved. There is 
no assignment of error to the admission of evidence to main- 
tain this issue on the part of the plaintiff, nor to the rejection 
of evidence offered for the like purpose by the defendants. As 
the sheriff's return is not printed, it does jiot appear that the 
officer took possession of the property, or even saw it. Whether 
he had incurred any liability in the premises is a question not 
raised on the trial nor presented by the record. As already 
said, the case is to be treated here as it was tried below ; and 
as this question was not tried below, there is nothing to war^ 
rant its consideration here. 

With the pleading and evidence before him, and having heard 
the counsel as to the matters which, in their view of the case, 
were involved, the trial judge thus stated the issue to be deter- 
mined by the jury : " The plaintiff maintains that the property, 
whatever was there, was utterly worthless to him at the time 
of the dissolution of the attachment, while the defendants main- 
tain that it was as good as when the attachment issued." Since 
this portion of the charge is excluded from the assignment of 
error, it must be accepted as an accurate statement of the issue 
made by the parties. The trial judge further instructed the 
jury that the damages recoverable were such as accrued "by 
reason of the attachment; " and that, "if the goods were either 
lost or destroyed or injured by reason of the attachment, for 
that loss, destruction or injury, the plaintiff would be entitled 
to recover in this action. But if they were there in the same 
condition when the attachment was dissolved that they were at 
the time the attachment was issued, and the plaintiff could 



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TAYLOR V, SATTLKR. 237 

1897.] Opinion of the Court. 

have had them by going for them, then he did not suffer any 
loss." He further limited the extent of recovery by excluding 
from consideration tools which had become lodged in the well 
and could not be withdrawn. In the view of the case in which 
the parties united on the trial, this was certainly as favorable 
to the defendants as they had a right to expect. As to the 
measure of damages, it is entirely consistent with the law on 
that subject as stated in Com. v. Improvement Co., 163 Pa. 99, 
and in Berwald v. Ray, 165 Pa. 192. 

Thus the issue was joined, and the case submitted to the 
jury, on the theory of the rights and liabilities of the parties 
which their counsel presented ; neither the admission nor the 
rejection of evidence is complained of ; and the specific instruc- 
tions respecting the duty of the plaintiff, and the conditions 
under which he would not be entitled to recover, were such as 
the appellants in their points asked the court to give. The ver- 
dict established the liability of the appellants upon the theory 
of the case by which they chose to have it tested. They can- 
not now be pei-mitted to change their ground and allege that 
the case should have been treated in accordance with a view 
not presented on the trial : Gowan v. Glaser, 3 Cent. Rep. 109. 
Their responsibility for the seizure and retention of the prop- 
erty under the attachment having been settled by the verdict, 
it is too late for them to protest that they had no part in the 
course of action by which the plaintiff was injured, and that he 
should seek redress from the sheriff. 

Treating the case here as it was tried below, — on the theory 
upon which both parties proceeded, and which was substantially 
followed by the trial judge, — there is no error in the charge, 
the verdict was justified by the evidence, and the judgment 
must be affirmed. 

Judgment affirmed. 

Rbedeb, J., dissents. 



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238 BUILDING ASSOCIATION v. WAMPOLE. 

Syllabus— Statement of Facts. [6 Pa. Superior Ct. 



The No. 2 Assistance Building and Loan Association, 
Appellant, v. Henry K. Wampole. 

Appeals — Befiisal of judgment — Practice on review. 

The appellate court will not interfere, where rules for judgment have 
been refused, in doubtful and uncertain cases, but will do so where the 
case is clear and free from doubt. 

Practice, C P,— Sufficiency of affidavit—Landlord and tenant,— Sheriffs 
sate of leased property. 

The plaintiff's statement showing liability for rents accruing, subsequent 
to sheriffs sale, by tenant to sheriff's vendee, who was also assignee of the 
lease from the former owner, an affidavit is insufficient which admits no- 
tice of plaintiff's claim for rent, a payment of rent after such notice and 
a notice of intended discontinuance after expiration of the current year, 
and which attempts to limit and modify the effects of such acts by stating 
reasons which influenced such conduct at the Ume. Intentions in such 
cases are not the subject of inquiry. The couit can only inquire into the 
legal effect of admitted facts. 

Argued Oct. 6, 1897. Appeal, No. 29, Oct. T., 1897, by 
plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1896, 
No. 187, discharging rule for judgment for want of a suflScient 
affidavit of defense. Before Rice, P. J., Wickham, Beaver, 
Rbedeb, Orlady, Smith and Porter, JJ. Reversed. 

Appeal from judgment of magistrate in a suit for rent under 
a lease. 

It appears from the record that a statement of claim was filed 
by the plaintiff to which the defendant demurred. This de- 
murrer was overruled by the court below, with leave, where- 
upon the defendant filed an affidavit of defense ; upon which 
the plaintiff took a rule for judgment, which rule the court dis- 
charged and an exception was taken thereto by the plaintiff 
under the act of assembly. 

From the plaintiff's statement the following allegations ap- 
pear: 

Henry K. Wampole, the defendant, was the lessee under a 
lease for a factory building from James A. Weir, landlord, for 
one year from February 1, 1896, at the rent of f 100 per month 
(reduced by the parties to #76.00 per month). 



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BUILDING ASSOCIATION v. WAMPOLE. 239 

1897.] Statement of Facts. 

The premises were sold by the sheriff as of the landlord, Weir, 
to the building association, a mortgagee, the plaintiff herein, 
and the lease was assigned by Weir to the plaintiff,, after the 
sheriffs deed was acknowledged. After that assignment, Warn- 
pole paid the rent, $76.00 per month, to the building associa- 
tion for several months, and, afterwards, on August 26, 1896, 
gave written notice to the association that he wished the lease 
discontinued after the expiration of the current tei*m (Febru- 
ary 1, 1897), tlie lease containing a provision for renewal until 
notice should be given. 

He paid the rent up to and including that due October 1, 
1896, but refused to pay that falling due November 1, 1896, 
f 75.00, and it was for that amount that this suit was brought. 

To the statement, the defendant filed a special demurrer, and 
the court overruled it with leave, etc. He then filed an affi- 
davit of defense which was as follows : 

That he is the defendant in the above entitled cause and has 
a just and true defense to the whole of the plaintiff's claim, of 
the following nature and character, to wit : 

That at the time the lease was entered into by him with James 
A. Weir, on February 1, 1896, there was a mortgage executed 
by the said James A. Weir, against the said demised premises, 
dated September 1, 1891. 

That on March 24, 1894, a judgment was entered against the 
said James A. Weir, and that the said premises were sold at 
sheriff's sale, to the plaintiff, on the 2d day of March, 1896, and 
a deed therefor made by the sheriff to the said plaintiff, dated 
March 7, 1896. 

That the said defendant occupied said premises together 
with his partner, Frank V. Wireman, for a few months, but 
the said Henry K. Wampole and Frank V. Wireman dissolved 
partnership, and that deponent left said premises at least three 
months prior to the date of said sheriff's sale, so that when 
the said sale was made he was no longer in possession of 
said premises, and the rent for said premises had been paid by 
Frank V. Wireman to James A. Weir, the then owner of the 
building, and accepted by him, and subsequent to the sale he 
paid it to plaintiff, who thereby accepted said Wireman as their 
tenant. 

Your deponent did not know that said premises had been 



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210 BUILDING ASSOCIATION r. WAMPOLE. 

Statement of Facts — Arguments. [6 Pa. Superior Ct 

sold at sheriff's sale to the No. 2 Assistance Building & Loan 
Association, or to any one, until five months subsequent to said 
sale, to wit : on the 20th day of August, when the agent of plain- 
tiff called upon him and informed him of these facts, and he 
thereupon, being unadvised as to his rights, paid to said agent 
of plaintiff the sum of '1^25.00, and which was the only sum paid 
by your deponent to plaintiff. 

Your deponent did not pay this under the lease, or because 
he was bound by the lease, but because at that time he thought 
he might have been responsible for the occupancy of the prem- 
ises by his previous partner. 

That thereupon, or a few days thereafter, to wit : on the 26th 
of August, he notified the plaintiff that he was not responsible 
under said lease and wislied it discontinued. Such notice was 
not intended as, nor did it convey, any agreement or undertak- 
ing to be responsible under said lease or any engagement that 
he was so responsible, but that, on the contrary, your deponent 
neither made any agreement to become responsible under said 
lease, and never occupied said premises or paid any rent to the 
plaintiff under said lease. He has always i-epudiated any obliga- 
tion to be bound by said lease and still does. There was never 
any agreement between him and the plaintiff either by any com- 
munication or contract, verbal or written, whereby he agreed to 
be or become the tenant of said plaintiff, or be bound by the 
provisions of the said lease. 

All of which your deponent believes to be true, and therefore 
avers and expects to be able to prove upon the trial of the cause. 

Error asngned was refusal to enter judgment against tlie 
defendant for want of a sufficient affidavit of defense. 

J. H. Sloan^ for appellant. — It is submitted that, even if there 
had not been an assignment of the lease to the plaintiff, it had 
a right as sheriff's vendee to affirm the lease under the Act of 
June 16, 1836, sec. 119, P. L. 755, which gives the same rem- 
edies to recover rent as the defendant in the execution had. 
See 1 Pepper & Lewis' Dig. title *' Execution," page 1993, sec. 
164, and authorities cited. It is unnecessary, however, to con- 
sider this aspect of the question in view of the assignment of 
the lease by the defendant in the execution to this plaintiff. 



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BUILDING ASSOCIATION v. WAMPOLR 241 

1898.] Arguments — OpiDion of the Court. 

J. Campbell Lancaster^ for appellee. — There is but a narrow 
question of law raised by the facts in this case, and that is 
whether the Act of June 16, 1836, P. L. 755, par. 119 (1 P. & 
L. Dig. pp. 1993-4, par. 164), has altered the rule of the com- 
mon law as to the effect upon a tenant under a lease, by rea- 
son of the sale of the leased premises under an incumbrance 
antedating said lease. See on this point Funk v. Voneida, 11 
S. & R. 109, particularly the opinion of Mr. Justice Duncan, 
on page 112, citing the cases of Levett v. Withrington, 1 Lutw. 
97 ; Maule v. Ashmeade, 20 Pa. 482 ; Jackson & Gross on Land- 
lord and Tenant, par. 1015. 

While there are no cases on this doctrine precisely, the theory 
is borne out in Duff v. Wilson, 69 Pa. 316, in which it was held 
that there could be no recovery against the surety of a lessee, 
where the demised premises had been sold at a sheriff's sale 
under a mortgage antedating the lease. 

Opinion by Beaver, J., December 13, 1897 : 

The error complained of by the appellant is the refusal of 
the court below " to enter judgment against the defendant for 
want of a sufficient affidavit of defense." The grounds upon 
which this refusal was based are not given and we are left, there- 
fore, to seek them in the plaintiff's statement and the defend- 
ant's affidavit of defense. 

Appeals under the provisions of the act of April 18, 1874, 
P. L. 64, have not been favored by the Supreme Court. From 
Griffith V. Sitgreaves, 81* Pa. 378, one of the earlier cases, to. 
Paine v. Kindred, 163 Pa. 638, the decisions have been practi- 
cally uniform. We may say, in the language of the latter case t. 
" We do not mean to interfere where rules for judgment have 
been discharged in the lower courts in doubtful and uncertain 
cases, but only in such as are very clear and free of doubt. "" 
But where there is a case clear and free of doubt our duty is- 
not doubtful. 

The plaintiff^s statement shows it clearly entitled to the i*ents,. 
accruing subsequent to the sheriff's sale, under the lease from 
Wier to Wampole, in accordance with the provisions of the- 
119th section of the Act of June 16, 1836, P. L. 755. Doe» 
the affidavit of defense, giving the fullest effect to its statements,. 
Vol. VI— 16 



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242 BUILDING ASSOCIATION v. WAMPOLK. 

Opinion of the Court. [6 Pa. Superior Ct. 

raise any issue of fact between the plaintiff and the defendant? 
We think not. 

The plaintiff, as is admitted by the defendant, gave notice 
subsequently to the sale of its claim for rent, which was in 
effect an exercise of its option to make him its tenant. The 
defendant practically admitted the claim by paying part of the 
rent. He endeavored to limit or modify the effect of this pay- 
ment by stating the reasons which influenced him to make it. 
These, however, were based entirely upon mental states and 
processes which could not, in the nature of the case, be given 
in evidence on the trial of the cause. 

His acknowledgment of the lease and of his obligation there- 
under are further shown by the notice given by him to the plain- 
tiff, in accordance with the terms of the lease, of his desire to 
have it discontinued after the expiration of the then current 
year. What his intention may have been in giving this notice 
is not the subject of inquiry. We can only inquire as to the 
legal effect of the admitted fact. 

There can be no question as to the plaintiff's right to recover : 
Menough's Appeal, 6 W. & S. 432. It was not only the pur- 
chaser at sheriff's sale but was the assignee of the lease. The 
defendant admitted its right to the rent by a payment in part 
and by doing such acts under the lease as were inconsistent with 
the claim of non-liability thereunder. 

Under the statement and affidavit of defense, there are no 
facts for a jury and, as we view the law of the case, the plain- 
tiff is entitled to judgment. 

The decree of the court below is, therefore, reversed and judg- 
ment is now directed to be entered for the plaintiff and against 
the defendant for such sum as to right and justice may belong, 
unless other legal or equitable cause be shown to the court be- 
low why such judgment should not be so entered. 

A motion for reargument was made which was refused. 

Per Cubiam, January 18, 1898 : 

** The effect on the lease of the sale under a prior incumbrance " 
was not overlooked in the consideration of the case nor in the 
opinion filed therein* It is expressly stated that " The plain- 
tiffs statement shows it clearly entitled to the rents accraing 



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BUILDING ASSOCIATION v. WAMPOLR 243 

1898.] Opinion of the Couit. 

subsequent to ttie sheriflPs sale under the lease from Weir to 
Wampole in accordance with the provisions of the 119th sec- 
tion of the Act of June 16, 1836, P. L. 755." It is further 
considered in the latter part of the opinion, in which it is stated : 
" There can be no questiow f\& to the plaintiff's right to recover: 
Menough's Appeal, 5 W. & S. 432 (1843). It was not only the 
purchaser at the sheriff's sale but was the assignee of the lease. 
The defendant admitted its right to the rent by a payment in 
part and by doing such acts under the lease as were inconsist- 
ent with the claim of nonliability thereunder." 

Duff V. Wilson, 69 Pa. 316, has no possible application here. 
In that case the sheriff's vendee elected to disaffirm the lease 
and took possession of the premises, thereby evicting the ten- 
ant, but Mr. Justice Shabswood distinctly says that "The 
purchaser at the sheriff's sale might have affirmed the lease and 
required the rent to be paid to him, as assignee of the reversion." 
The purchaser at sheriff's sale under an incumbrance prior to 
the lease can affirm or disaffirm the lease at his pleasure. In 
this case the building association chose to affirm it and hold the 
defendant as its tenant and, in effect, exercised its option by de- 
manding the rent. 

The whole case was fully considered and all the points raised 
in the original hearing sufficiently met in the opinion already 
filed. The motion for the reargument is therefore denied. 



William T. Leader, to the use of Henry A. Ingram, d. 
Wilson W. Dunlap, John D. Dunlap and Anna S. Pettit, 
Appellants. 

AppeaU— Practice, S, C. — Dittcretion of court — Opening judgment. 

An application to open judgment is addressed to the discretion of the 
court which has not been taken away by the Act of May 20, 1891, P. L. 101. 

It is not an abuse of discretion for the court to refuse to open a judg- 
ment entered on a verdict after a regular trial, where defendants counsel 
did not notify him of the time of the tiial, and where the defendant had 
actual notice that the case would likely be placed on the trial list at the 
term it was tried, but gave no pei*8ona1 attention to the matter. 



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244 LEADER v. DUN LAP. 

Statement of Facts — Opinion of the Ckjurt. [6 Pa. Superior Ct. 

/ Argued Oct. 14, 1897. Appeal, No. 102, Oct. T., 1897, by 
defendants, from order of C. P. No. 1, Pliila. Co., March T., 
1894, No. 628, discharging rule to open judgment, set aside ver- 
dict and permit motion for a new trial to be filed nunc pro tunc. 
Before Rice, P. J., Wickham, Braver, Smith and Por- 
ter, JJ. AflSrmed. 

Rule to open judgment and set aside verdict. 

It appears from the record that plaintiff brought an action 
for alleged malicious conspiracy against defendants which was 
called for trial on February 2, 1897. The case was tried in the 
absence of defendants and their counsel, and verdict and judg- 
ment entered for the plaintiff for $500. Defendants entered a 
rule to open the judgment which was discharged. 

Other facts suflSciently appear in the opinion of the court. 

' Error aligned was discharging rule to show cause why judg- 
nient entered against defendants should not be opened, etc. 

Wendell P. Bowman^ for appellants. 

John McDonald^ for appellee. 

Opinion by Rice, P. J., January 18, 1898 : 

This is an appeal from an order discharging a rule to show 
cause why judgment upon verdict should not be opened, the 
verdict set aside and the defendants given leave to file a motion 
and reasons for a new trial nunc pro tunc. The petition or affi- 
davit upon which the rule was granted is not printed in the 
defendants' paper-book, but the grounds of the application, as 
disclosed in the depositions, were, that the defendants were pot 
present at, and had no actual notice of, the trial, until after 
judgment had been entered on the verdict. The reason alleged 
for their failure to appear at the trial is, that their attorney neg- 
lected to notify them of the time when it would take place. 
The allegation that illness was the cause of his failure to notify 
them is not sustained by any direct testimony or, indeed, by 
aiiy competent and satisfactory evidence of any kind. There 
is also an intimation that he was in trouble on account of some 
criminal charge and absconded, but tlie testimony of the con- 



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LEADER V. ©UNLAP. 245 

1S98.] Opinion of the Court. 

stable, who had the warrant for his arrest, shows, that, if he did 
abscond, it was not until after the date of the trial of the pres- 
ent case. Moreover, there is testimony, that, at a meeting 
between the plaintiff and one of the. defendants in December, 
1896, it was agreed, that both parties should endeavor to have 
the case ended at that term of court Therefore, the defend- 
ants not only had the constructive notice which the trial list 
gives, but also had actual notice that an effort would be made 
to have the case tried at the term it was tried. It was their 
duty to give some personal attention to the matter, but, <is f^ 
as appears, they neither examined the trial list for themselves, 
nor consulted their attorney. 

^ To sum up the whole case, judgment was regularly entered 
upon a verdict after a trial in due course of law. If the defend- 
ants were not present they and their attorney were alone to 
blame. To have opened the judgment and granted a new trial 
would seem to have been little less than a pure matter of grace. 
But granting to the court the most liberal discretionary pow^r 
to relieve parties from defaults due to the negligence of their 
attorneys that has ever been claimed, it must be remembered 
also, that the vigilant party, who has obtained a verdict and 
judgment, has rights, and that there can be no prompt dispatch 
of the business in the courts if they are to be ignored, and ver- 
dicts and judgments set aside in a mere spirit of benevolence 
towards the defaulting party. Certainly it would not be safe 
to lay it down as a rule (as we must if we revei'se) that it is 
an abuse of discretion for the court to refuse to open a judg- 
ment entered on a verdict after a regular trial, where the de- 
fendants' counsel did not notify him of the time of the trial, 
even though the defendant had actual notice that the case 
would likely be placed on the li6t at the term it was tried, and 
gave no personal attention to the matter. The application was 
addressed to, the discretion of the court, which has not been 
taken away by the Act of May 20, 1891, P. L. 101 : Kelber y. 
Plow Co., 146 Pa. 485; Pfaff v. Thomas, 3 Pa. Superior GU 
419, and cases there cited. An examination of the case fails to 
show that the discretion was improperly exercised; therefore it 
is unnecessary to discuss any other question. 

.The Qrder is affirmed and the appeal dismissed at the cost of 
the appellants. 



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24e HELLER'S ESTATE. 

Syllaboa-— Statement of Facts. [6 Pa. Superior Ct: 



Estate of Herman Heller, deceased. Appeal of Carter 

& Company. 

CofUract^Time is of essence of a contract to deliver ehaltels. 
In mercantile transactions, such as the sale of ^oods, time is generally 
held to be of the essence of the contract ; and where one of the terms of 
the contract provides a date for the shipment or delivery, shipment or de- 
livery at the time fixed will usually be regarded as a condition precedent, 
on the failure to observe such date the other party may repudiate the en- 
tire contract. 

Contract — Construction—Written and printed parts. 

When the written and printed parts of a contract cannot be reconciled, 
the former is presumed to have been separately and particularly con- 
sidered by the parties, and to express their exact agreement on the sub- 
ject. 

Argued Oct. 21, 1897. Appeal, No. 24, Oct. T., 1897, by 
Carter & Co., from decree of O. C. Phila. Co., Oct. Sess., 1890, 
No. 99, dismissing appellant's claim in distribution. Before 
Rice, P. J., Wickham, Bbayeb, Rbedbb, Orlady, and Fob* 
TEB, JJ. Affirmed. Pobteb, J., dissents. 

Exceptions to adjudication of Penbose, auditing judge. 

At the adjudication of the estate of Herman Heller, deceased, 
a claim was presented by Carter & Company for goods sold and 
delivered to decedent which was dismissed by Penbose, audii- 
ing judge, in an adjudication, which was, inter alia, as follows : 

The claim of Carter & Company, at whose instance the ac- 
count was so filed, was for goods sold, ♦113.49, with interest 
from April 23, 1889, under a contract with the decedent, of 
which the following is a copy : 

** No. 101. Phila., March 16th, 1888. 

" Carter & Co., Counter Check Book Makers, Niagara Falls, 
N. Y., will please ship me on or about one-half 

at once, one half within one year, via Freight on (25th March) 
88, Ten thousand " B " Counter Check Books, for which I agree 
to pay the sum of 2 J cents each. Total, f 225, at their office. 

" Payable as delivered. (Signed) H. Helleb, 

** Cash and Charge index* Ryan. 

** Send proof." 



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HELLER'S ESTATK. 247 

1898.] Statement of Facts. 

The contract is written on a printed blank; the fiist two 
lines, except the word " me " and the last two, except the words 
*il" 4*2J" and "$225" being printed, and all of the rest, ex- 
cept the word ** via " being in manuscript. 

The proof requested at the foot of the paper was sent, imd 
across it was written : " O. K., make 5000 yellow paper, 5000 
white, for use on alternate days. (Signed) H. Heller, Ryan." 

The first delivery in pursuance of this contract was made 
April 9, 1888. It was duly accepted and paid for (5,075 checks, 
$114.20). 

The decedent was a manufacturer of ladies' wear and white 
goods, wholesale and retail. The checks are slips used by sales- 
men for the purpose of having proper entries of sales made 
upon the books of the merchant. In the present case, the name 
of the decedent, his address and nature of business, were printed 
at the top of the paper or slip, and after this a blank for the 
name of the salesman, the amount of sale, and amount received ; 
and at the foot, the words : " In case of error, return this bill." 
It will be seen, therefore, that unless taken by the person for 
whom prepared, they were absolutely useless to the shipper, and 
incapable of being sold or disposed of to any other person. 

On April 23, 1889, the balance of the order, viz : 5,044 
checks, amounting to $113.49, were shipped from Niagara Falls 
to the decedent at Philadelphia, and upon their arrival were 
duly. tendered at his store, 780 Arch street; but he had died 
previously, viz : January 22, 1889, and his executors, who were 
then engaged in winding up the business, declined to receive 
them. In a letter dated April 25, 1889, they wrote to the claim- 
ants : " We were much surprised to receive the enclosed bill, as 
we never ordered the goods and know nothing about them. 
You have evidently made a mistake in the name." In reply to 
tliis the claimants wrote, April 27, 1889, (apparently in ignor- 
ance of the death of the decedent as the letter was addressed to 
him): 

" We hold your signed contract, dated March 16, 1888, for 
10,000 check books, half of which were to be shipped Mai*ch 25th 
and the balance within one year. This contract is signed 
* H. Heller, per Ryan.' The first part of this contract was duly 
sent and the goods invoiced ; the enclosed invoice is for the bal- 
ance of the contract. We enclose herewith copy of the original 
contract so that you can investigate the matter," 



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248 HELLER'S ESTATR 

Statement of Facts^ [6 Pa. Superior Ct. 

To this the executors replied, April 29, 1889, returning the 
bill and saying : " We .... must positively decline to accept 
the goods, for the following reasons : The contract calls for the 
balance to be shipped within one year from March 16, 1888. 
That time has now expired, and besides, owing to the death of 
Mr. Herman Heller, the executors have assumed charge and ai*e 
liquidating the busmess, and having no use for the books, must 
decline to accept them. We know nothing of any such con- 
tract, and had you notified us beforehand we would have ad- 
vised you in time." 

On May 1, 1889, the claimants wrote to the executors, deny- 
ing their right to refuse the goods, and asserting that both the 
letter and spirit of the contract had been complied with on their 
part — the first shipment of the books having been made April 9, 
1888, and the second AprQ 23, 1889. They added that the fact 
that the executors *' did not know that we were holding these 
books for Mr. Heller does not alter the facts of the case, nor 
does it relieve the estate of Mr. Heller from the responsibility 
of accepting and paying for the goods." 

In reply to this the executors wrote. May 2, 1889, referring 
the claimants to their solicitor, Mayer Sulzberger, ILsq. 

It must, of course, be conceded that the death of the pur- 
chaser did not put an end to the right of the other party to the 
contract to insist upon payment ; but this right was dependent 
upon performance by them in accordance with the terms of the 
agreement. When the case was presented to the auditing judge 
he was inclined to the opinion that such performance had been 
shown, and that the stipulation as to time, in view of the words 
" on or about," was not material ; but further reflection had led 
to a different conclusion. The words " on or about " are printed 
in the form given to the decedent to fill up, but it is clear they 
are no part of his contract and are to be regarded as if erased. 
They must give way to the terms as written, and they are 
express that the half not presently delivered must be shipped 
" within one year." Whether the period of one year is to be 
computed from the date of the contract or of the first deliveiy 
is immaterial ; more than a year from either having expired 
before the shipment was made. 

It is true that in general, time is not regarded as of the essence 
of a contract for the sale of lands, but this is because the con- 



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HELLER'S ESTATE. 249 

1898.] Statement of Facts — Opinion of Court below. 

tract itself yests the equitable estate in the vendee, and the com« 
pletion of the transaction by transfer of the mere legal title is, 
in equity, not of suflScient importance to interfere with the riglit 
to demand specific performance because of delay, more or less 
prolonged, in asking for it. But the reason does not apply to 
contracts with regard to personalty, as to which it appears to 
be well settled that, in the absence of waiver, strict performance 
in every particular — quantity, quality, place and time is essen- 
tial ; and this irrespective of actual loss to the opposite party : 
Addison on Contracts, 233 ; Hare on Contracts, 670 ; Pollock 
on Contracts, 464; Cleveland v. Sterrett, 70 Pa. 204. 

In the present case not only was there a failure on the part 
of the claimants to deliver at the stipulated time, but according 
to the testimony (Dr. Edwin A. Heller) there was actual incon- 
venience and loss to the estate of the decedent in consequence. 

The auditing judge is forced to the conclusion that the exec- 
utors of the decedent were not bound to receive the articles 
contracted for at the time they were tendered, and the claim 
must, therefore, be disallowed. 

The balance of principal in the hands of the accountants, as 
set forth above, $ will be held for the pur- 

poses mentioned in the will of the testator. 

Two commissions for the examination of witnesses were taken 
out on behalf of Carter & Company, the cost of execution of one 
of which, as stated by Mr. Cooper, was $16.00 and of the other 
f 10.00, As the claim has not been sustained, these costs cannot, 
of course, be charged against the decedent's estate. 

It is ordered and adjudged that the account be confirmed nisi 
on payment of clerk's fees. 

Exceptions to the adjudication disallowing the claim of Car- 
ter & Company were dismissed by the court in banc in the fol- 
lowing opinion by Hanna, P. J. 

The single question in this case is whether claimants were 
boimd by their contiuct with testator to deliver to him the 
remaining half part of the printed "counter check books" 
within one year from March 16, 1888. 

The evidence is the shipment was not made until April 23, 
1889. In the interval, testator died ; and upon the arrival of 
the goods in this city, his executors refused to receive them, 



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250 HELLER'S ESTATE- 

Opinion of Court below* [6 Pa. Superior Ct. 

upon the ground that claimants had not complied with the terms 
of the order given by testator or the contract entered into with 
them. The death of testator does not affect the right of the 
claimants to recover. The balance due is still a debt payable 
by his estate, provided the claimants performed their part of 
the contract. 

It will be observed, the contract in this case is with respect 
to personalty, and the rule as to the perfonnance of which 
differs from that applied to the specific performance of contracts 
with regai'd to the sale and conveyance of real estate. In such 
cases it seems that, in equity, time is not of the essence of the 
contract, except when controlled by other equities, as shown in 
Bispham's Equity (5th ed.), sees. 391, 392. But when a con- 
tract is made for the manufacture and delivery of ai*ticles of 
merchandise or other personal property on or before a certain 
day, or at a specified date, in the absence of proof of consent 
of the other party or waiver by him, strict performance of the 
terms and conditions of and compliance with the contract are 
required before recovery of the price agreed upon can be had. 

The " counter check books " were to be delivered " within 
one year," and this, by the terms of the contract, was a condi- 
tion precedent to the demand for payment. This being the 
case, no suit can be brought upon the contract, ^^ until the 
condition has been fulfilled or its nonfulfillment excused." 
Again, *' from the very nature of a condition precedent, it re- 
sults that it must be strictly performed before the party on 
whom its performance is incumbent can call on the other party 
to fulfill his promise : " Tiffany on Sales, 153 ; Anson on Con- 
ti-acts, 380. 

Upon a fair consideration of the language of the contract in 
this case, the intention of the parties seems very clear, that each 
was to be bound by the stipulation that the " counter check 
books" were to be printed and delivered "one-half at once, 
one-half within one year." The claimants had the right to de- 
liver at any time within one year, and the testator was bound 
to pay upon the delivery. The "check books " were to be used 
in testator's retail business, and having his name and his own 
peculiar trade blanks, symbols, etc., printed thereon, were abso- 
lutely valueless and unsalable to any other tradesman or in any 
other business. This the claimants must be presumed to know* 



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HELLER'S ESTATE. 251 

1898.] Opinion of Court below. 

The time thus fixed upon would appear to be considered by the 
parties as a mateiial factor of the conti^ict, and made by them 
an essential part thereof. Thus, ^^ of the essence of the con- 
ti-act," and consequently a condition precedent: Tiffany on 
Sales, 154. See also Addison on Conti-acts, 233, Hare on Con- 
timcts, 570, Pollock on Contracts, 464, and Blackburn on Con- 
tracts of Sale, 225-227. 

"In mercantile transactions, however, such as the sale of 
goods time is generally held to be the essence of the contract ; 
and where one of the terms of the contract provides for the 
shipment or deliveiy, shipment or deliveiy at the time fixed 
will usually be regarded as a condition precedent, on the fail- 
ure of which the other party may repudiate the entire contract : " 
Tiffany on Sales, 155 and cases cited in note. An " impossibility 
arising after die formation of the contract is not an excuse from 
performance, unless the impossibility results either (a) from 
the destruction of the specific goods which are the subject of 
the sale, or (6) from a change in the law : " Tiffany on Sales, 
158, 160 ; Anson on Contracts, *321, and cases in note. 

Furthermore, the contract was executory in its character. 
The " check books " were not printed and sold and delivered to 
the purchaser so that the title passed to him, as in the sale of 
wool in Kitchen v. Stokes, 9 W. N. 48, and the removal and 
payment therefor within thirty days were held not to be of the 
essence of the contract; but they were to be manufactured and 
delivered at a future date fixed upon by the contract, thus show- 
ing that time was in the contemplation of the pailies. 

In Cleveland v. Sterrett, 70 Pa. 204, the defendants agreed 
to deliver to plaintiff 240 barrels of oil of quality named, etc., 
" any time between July 1 and Dec. 1," and it was held the 
defendants were to be the actors, as the claimants in the pres- 
ent case must be held, and were bound to be ready to deliver 
the oil on December 1st. Agnbw, J., said : *' It is plain the 
contract fixed the time of delivery as Dec. 1, for beyond this 
date Cleveland & Co. had reserved no day of grace." They 
** were not ready then to deliver, and their failure gave Sterrett 
the right to rescind ;" and "not being ready to deliver the oil 
and comply with their contract, could not demand the money 
of the plaintiff, nor recover damage from the plaintiff for his 
refusal to receive the oil after Dec. 1.*' 



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2o2 HELLER'S ESTATE. 

Opinion of Court below — Assignment of Errors. [6 Pa. Superior Ct. 

In Depuy v. Arnold, 1 W. N. 157, carpets were bought on 
the express condition they should be delivered and put down 
by a certain day. The carpets were not delivered nor put down 
on that day, nor on a subsequent day promised by the plaintiff. 
The defendant accordingly refused to accept the carpets, and 
in an action brought to recover the price, plaintiff was refused 
judgment for want of a sufiBcient afiSdavit of defense. 

In the case before us there is no hardship to the claimants, 
except that arising from their own laches and oversight of the 
express conditions of the contract. They performed part of the 
contract, as did the testator by payment for half of the " check 
books " ordered, and they had full notice they could not demand 
payment for the remainder, unless they delivered them to him 
** within one year." 

We cannot reach any other conclusion than that the parties 
intended time to be "of the essence of the contract," and as 
claimants failed in performance within the time agreed upon by 
them, their claim is properly disallowed. 

The exceptions are dismissed and the adjudication confirmed* 

ErrorB assigned were (1) In dismissing appellant's first excep- 
tion to the adjudication of the auditing judge, which was as 
follows: "Because the learned judge erred in law in finding 
regarding the written contract of claimants, Carter & Company, 
Limited, with decedent, the words ' on or about ' are printed in 
the form given to the decedent to fill up, but it is clear they are 
no part of his contract, and are to be regarded as if erased." 
(2) In dismissing appellant's second exception to the adjudica- 
tion of the auditing judge, which was as follows : " Because the 
learned judge erred in law in finding that the written contract, 
under the circumstances of this case, was to be construed ex- 
actly according to its terms, with the erasure of the words 'on or 
about,' while it is apparent, both from the contract and the ad- 
mitted evidence, that the agreement was for the futui-e delivery 
of printed matter, the order for which had to be sent to Niagara 
Falls, New York, a proof made and I'etumed, the goods manu- 
factured and shipped, and under which it is admitted that the 
first shipment, which was received and paid for, did not take 
place until twenty-four days after the contract was signed, and 
the words in the contract ' on or about ' thus adopted and rati« 



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HELLER'S ESTATE. 253 

1898.] Assignment of EiTors — Arguments* 

fied by the decedent as a very part of the same. (3) In dis- 
missing appellant's third exception to the adjudication of the 
auditing judge, which was as follows : " Because the learned 
judge erred in law in finding as to the contract in this case, that 
•strict performance, in every particular — quantity, quality, place 
and time is essential ' when it was clearly in evidence without 
contradiction, that the decedent gave an order for twice as many 
goods as he needed in order to get the advantage of a reduced 
price, and that the goods were manufactured according to the 
order by the claimants, one half of them shipped to the decedent, 
as agreed, while the other half was held for his convenience, 
and subject to his order at any time, and no evidence was pro- 
duced to show that they had ever been called upon to make any 
shipment." (4) In dismissing appellant's fourth exception to 
the adjudication of the auditing judge, which was as follows : 
" Because the learned judge erred in finding from the testimony, 
tliat ^ there was actual inconvenience and loss to the estate of 
the decedent in consequence ' of the nondelivery of the bal- 
ance of the goods, when the testimony does not bear that evi- 
dence, and the letter written by the executors, when the balance 
of the goods was tendered stated : ' The executors have assumed 
chai-ge and are liquidating the business, and having no use for 
the books, we must decline to receive them'; showing conclu- 
sively that the reason they did not want them was because the 
decedent's business had passed into their hands, and the books 
were no longer appropriate for use in the store, and this is fur- 
ther shown by the testimony of Dr. Heller that the retail busi- 
ness was carried on until Christmas following the tender of the 
goods." (5) In dismissing appellant's fifth exception to the 
adjudication of the auditing judge, which was as follows : " Be- 
cause the learned judge disallowed the claim of Carter & Com- 
pany, Limited, as presented, and did not allow to them the full 
amount of their claim with costs of the commissions." 

Samuel W. Cooper^ for appellant. — The principles governing 
the point whether time is the essence of the contract in cases 
like this are so well settled and accepted by the mercantile com- 
munity that it does not appear that any case exactly in point 
has been brought into court. 

If no demand is made until after the time stipulated, the sell- 



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254 HELLER'S ESTATE. 

Arguments—Opinion of the Court. [6 Pa. Superior Ct. 

er is entitled to a reasonable time after such demand within 
which to deliver: Holt v. Brown, 63 Iowa, 319. 

Where it is the buyer's duty to designate the time of deliv- 
ery the seller is not bound to act until he has been notified of 
the place chosen : Shaw v. Grandy, 5 Jones (No. Car.), 56. 

In fact the vendor, under the conditions of the agreement in 
this case, is a bailor : Oakley v. State, 40 Ala. 372. 

Ephnsim Lederer^ for appellee. 

Opinion by Rice, P. J., January, 18, 1898 : 

The appellants argue, that the point of this case is whether 
time is of the essence of the contract, when the vendee of goods 
has them specially manufactured for his use and leaves them in 
the possession of the vendor subject to order. But we do not 
BO understand the question raised. The contract, as evidenced 
by the decedent's written order which was accepted by the 
ap|)ellants, contains nothing which indicates that the second 
instalment was to be held subject to order. Nor do we find 
any competent parol evidence that such was the understanding 
of the parties. The appellants were the actors and were bound 
to ship the goods within the time specified in the contract with- 
out further order unless performance within that time was 
excused or waived. 

The authorities cited in the opinions of the auditing judge 
and of the court upon exceptions, as well as others that might 
be cited, show that a stipulation as to the time of delivery in 
an executory contract for the sale of goods is an essential and 
not a collateral term. A distinction has been drawn in favor 
of contracts for work or skill, and the materials upon which it 
is to be bestowed, and as to such it has been said that ^^ a state- 
ment fixing the time of performance of the contract is not oi*di- 
narily of its essence, and a failure to perform within the time 
stipulated, followed by substantial performance after a short 
delay will not justify the aggrieved party in repudiating the 
entire contract but will simply give him his action for damages 
for the breach of the stipulation : " Beach on Contracts, sec. 619. 
We doubt whether this distinction would hold good in ordinaiy 
mercantile contracts although the goods were to be manufac- 
tured. Merchants are not in the habit of placing upon their 



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HELLER'S ESTATE. 255 

1898.] Opinion of the Coart. 

contracts stipulations to which they do not attach some value 
and importance, and that alone might be sufficient answer to the 
question why time of shipment should be deemed an essential 
term : Bowes v. Shand, L. R. 2 App. Cases, 456 ; Burdick on 
Sales, 142. The contract under consideration was not a mer- 
cantile contract, it is true ; that is to say, the goods were not 
ordered with a view to sell them. They were however of a 
special pattern and were ordered for a special purpose. They 
were valueless to any one but the purchaser, and would be of 
no value to him if he did not continue in the mercantile busi- 
ness he was then conducting. Ample time was allowed for the 
performance of the contract, and from all the circumstances it 
is reasonable to suppose that the parties actually intended that 
performance within that time should be a condition precedent 
to a right to recover the price. 

It is probable that the appellants agreed to furnish the books 
at a less price, because they could make them all at one time 
but we fail to see how this fact affects in any way the question 
of their duty to deliver them within the time specified. If it 
has any bearing it tends to show that the failure to deliver was 
without even plausible excuse. As the learned president of the 
court below well says : " In the case before us there is no hard- 
ship, to the claimants, except that arising from their own laches 
and oversight of the express conditions of the contract." 

When the written and printed parts of a contract cannot be 
reconciled the former is presumed to have been separately and 
particularly considered by the parties and to express their exact 
agreement on the subject. See Grandin v. Ins. Co., 107 Pa. 26 ; 
Haws V. Fire Assn., 114 Pa. 431 ; Duffield v. Hue, 129 Pa. 
94 ; Dick v. Ireland, 130 Pa. 299 ; Lane v. Nelson, 167 Pa. 602. 
This rule was properly applied in the present case. When the 
parties came to fix the time for delivery, instead of naming a 
specific date " on or about " which the second instalment should 
be shipped by the appellants and accepted by the purchaser, 
they designated a period within which it was to be shipped, 
leaving the precise date of shipment within that period to the 
option of the appellants. Whether the year was to be com- 
puted from the date of the conti-act (which is the more reason- 
able construction) or from the date of the first shipment, is 
immaterial ; because, in either case, the goods were not shipped 
within the time specified in the contract* 



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256 HELLER'S ESTATE. 

Opinion of the Court. [6 Pa. Superior Ct. 

For these reasons, in connection with those set forth in the 

able opinions of the auditing judge and of the court below the 

decree is affirmed and the appeal is dismissed at the cost of 

the appellants. 

Porter, J., dissents. 



Commonwealth v. A. L. Spencer and Thomas Aubrey, 

Appellants. 

Criminal law — Conspiracy — Jurisdiction. 

Conspiracy is a matter of inference deducible from the acts of the par- 
ties accused, done in pursuance of an apparent criminal purpose, in com- 
mon between them, and which rarely are confined to one place and if the 
parties are linked in one community of design and of interest there can be 
no good reason why both may not be tried where any distinct overt act is 
committed ; for he who procures another to commit a misdemeanor is guilty 
of the fact, in whatever place it is committed by the procuree. 

Conspiracy — Evidence of general motives. 

In order properly to comprehend the nature and circumstances of a par- 
ticular conspii*acy, charged in an indictment, evidence as to the motives 
and conduct of the alleged conspirators in promoting a conspiracy of the 
same kind to defraud the public genemlly, is properly admissible. 

Practice f Superior Court — Evidence admitted without objection. 
Where evidence is offered and admitted without objection in the court 
below it is improper to assign such admission for error. 

Practice, Superior Court-^Defective assignment of error. 
An assignment of error as to admission of evidence is defective under 
Rule 17 which neither quotes the full substance of the bill of exceptions 
nor copies the bill in immediate connection with the assignment. 

Practice^ Superior Court— Review — Refusal to grant new trial — Lack of 
exceptiofis. 

Errors to the refusal of the court below to grant a new trial will not be 
considered when no exception was taken to this action of the court. 

A new trial is properly refused where on the motion therefor the evi- 
dence adduced upon the trial is not shown to be incon*ect in any matenal 
matter by anything subsequently made to appear. 

Argued Oct. 11, 1897. Appeal, No. 23, Jan. T., 1898, by de- 
fendants, from judgment of Q. S. Luzerne Co., Nov. Sess., 1896, 
No. 39, on verdict of guilty. Before Rice, P. J., Wickham, 
Beavee, Rebdbr, Orlady, Smith and Porter, J J. AfiBrmed, 



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COMMONWEALTH v. SPENCKR. 257 

1898.] Statement of Facts— Assignment of EiTor. 

Indictment for conspiracy. Before Bennett, J. 

It appears from the record that the indictment charged tlie 
defendants, Spencer and Aubrey, with having conspired wil- 
fully and maliciously to cheat the firm of Koons & Company 
out of certain spikes, pipes, etc. 

The facts sufficiently appear in the opinion of the court. 

Verdict of guilty and sentence thereon that each defendant 
pay $100, costs of prosecution and be imprisoned in the Luzerne 
county jail for one year. Defendants appealed. 

Urrors assigned were (1) In admitting under objection evi- 
dence offered by the commonwealth as follows : " Commonwealth 
proposes to prove by the witness on the stand, both by oral con- 
versations and by letters to be subsequently offered, that he 
entered into an ai*rangement with the defendants, in the early 
part of 1896 and latter part of 1895, to organize a corporation 
under the laws of the state of New Jersey to be known as the 
Phoenix Contract Company, with power to buy and sell mate- 
rials, buy and sell stock, bonds and other paper ; with power to 
construct railroads, bridges, docks, etc., with a paid up capital 
of $1,000 and an authorized capital of $100,000. That after 
procuring said charter they would obtain a rating from a com- 
mercial agency which would give them credit in the business 
world, and that one office of the company should be in the city 
of New York, and another in the city of Scranton, Lackawanna 
county. Pa. ; the latter to be the main office. Thomas Aubi-ey, 
one of the defendants, the confidential clerk and employee of 
A. L. Spencer, the other defendant, was to be the secretary and 
treasurer of the company. That they would then proceed to 
buy materials, such as nails, pipe and the like in large quan- 
tities, wherever credit could be obtained on the fuitli of the 
incorporation and rating aforesaid." (2) In admitting under 
objection certificate of organization of the Phoenix Contmct 
Company issued by the state of New Jersey to be followed by 
evidence that there was not a dollar paid in to commence busi- 
ness with, the charter stating that the total amount of capitol 
stock of said company is $100,000, number of shares one thou- 
sand, to be followed by evidence that no moneys of this amount 
of $100,000 was ever paid in. Defendants' counsel object to 
this certificate, first, because it appears that the incorporator 
Vol. VI— 17 



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258 COMMONWEALTH v. SPENCER. 

Assignment of EiTora. [6 Pa. Superior Ct. 

were persons other than the defendants and that neither of the 
defendants is in any way referred to or mentioned in the certi- 
ficate. (3) In charging the jury as follows : " Indeed it may 
be necessary and proper to prove a conspiracy of such general 
character in order to establish the particular conspiracy charged 
in the indictment as the ofiFspring of the more general one. 
But, as we have also in a general way hitherto instructed you, 
if, as the offspring or succession of such a general conspiracy, 
these defendants entered into a distinct conspiracy to cheat and 
defraud Koons & Co., according to the second position taken 
by the commonwealth, then they may be convicted under this 
indictment, if overt acts have been committed in this county by 
■either of them or their innocent agent, as claimed by the com- 
monwealth. Again, it is argued in behalf of the defendants 
that tlie evidence on the part of the commonwealth which may 
tend to show the original or general conspiracy claimed by it, is 
irrelevant and immaterial on the real issue which you are trying, 
and that it should be disregarded by you in determining whether 
there was a conspiracy to cheat and defraud Koons & Co. In 
answer to this we say to you that while such evidence of the 
general conspiracy claimed is not suflBcient to establish the spe- 
cial one in issue, even though it should prove the existence of 
the former to your satisfaction ; yet, that such evidence is never- 
theless proper for your consideration as bearing upon the rela- 
tions existing between the defendants and M ilair, through this 
Phoenix Contract Company, upon the nature and character of 
the business methods they were pursuing, their purposes and 
motives at the time, and such evidence may be considered by 
you in connection with the testimony showing the transactions 
which led to the opening and conduct of business with Koons & 
Co., and as bearing upon the question whether there was an inde- 
pendent conspiracy upon the same general plan of execution as 
the original, yet having for its specific purpose the cheating and 
defrauding of Koons & Co. The defendant Spencer held no 
official relation to the company, yet was to act with the other 
parties in its l^half . These and his testimony, and in fact all of 
the evidence bearing on the subject of the purposes of this Phoe- 
nix Contract Company, are for you, and you are to determin3 
what is the truth in this matter." (4) The entii-e charge of the 
court to the jury was prejudicial, misleading and unfair to de- 



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COMMONWEALTH v. SPENCER. 259 

1S9S.] Assignment of Errors — Arguments. 

fendants, charged as they were with a crime. The court com- 
mitted error in admitting as evidence upon the trial under the 
indictment, the following letter, together with a very large num- 
ber of others of a like character, to be found in commonwealth's 
exhibits in appendix. Many of them having been written long 
before the defendants, or either of them, ever knew George W. 
Koons & Co., or heard of the Ph<Bnix Contract Co., and even 
before the inception of said company, and having no reference 
or relation to either of them. 

**ScBANTON, Pa., Nov. 18, 1895. 
** G. A. J. MiLAnt, Esq. 

" Room 472, 32 Liberty St., New York. 
" Dear Sir : I know now where I can get $20,000 worth of 
materials for good paper if you can get it here at once. Can't 
some Boston firm help you out? Wii*e me, as I must let them 
know. Here is a rare chance. Hope to see you Tuesday at 
farthest 

** Yours truly, 
(Signed) *^ A. L. Spencer." 

(5, 6) Refusing a new triaL (7) In continuing to take juris- 
diction of the case after the close of the evidence upon the trial. 
(8) The refusal of a new trial was an abuse of the discretionary 
power of the court. 

E. R. Shurtleff Mid L R, Burnn^ for appellants. — The accused 
defendants cannot be convicted of one offense by evidence of ^ 
former offense which had been completed before the inception 
of the second and which is not charged in the indictment i Hait- 
mann v. Com., 5 Pa. 60 ; Com. v. Harley, 48 Mass. 506 ; Com. 
V. Judd, 2 Mass. 329 ; Com. v. Kellogg, 61 Mass. 478 ; Hffx v. 
Roberts, 1 Camp. 399. 

So far as our research has extended we do not find that the 
precise point has been raised in this state, but in Collins v. 
Com., 3 S. & R. 220, the indictment was drawn in the precise 
form suggested in the Harley case and is at least persuasive 
evidence that our courts consider it correct. The court erred 
in refusing a new trial. 

In at least one case the Supi*eme Court has examined the trial 
evidence in order to determine the question of a retrial : Pilge^ 
V. Com., 112 Pa. 220. 



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260 COMMONWEALTH v. SPENGER. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct. 

Whatever may have been said in some of th^ older decisions 
in regard to granting new trials by appellate courts we take it 
that it is now the settled law that a refusal to set aside a ver- 
dict in the court below may be alleged for error : Smith v. Times 
Pub. Co., 178 Pa. 481. 

It is confidently asserted that there is no proper and legal 
evidence to prove the charge as laid in the indictment or to sus- 
tain the jurisdiction of the court of Luzerne county. Not only 
this, but the great change in the facts, as they would be pre- 
sented on another trial, is amply sufficient to justify this court 
in granting us a rehearing. 

John T, Lenahan and Henry A, Fuller^ with them Daniel A. 
Fell^ district attorney, for appellee. — Authorities are legion 
establishing the competency of distinct but connected offenses 
to prove guilty knowledge or criminal intent, some of which are 
considered by the court below, and others may be cited here : 
Kramer v. Com., 87 Pa. 299 ; Goersen v. Com., 99 Pa. 388 ; s. c. 
106 Pa. 477; Com. v. Johnson, 133 Pa. 293; Com. v. Place, 
153 Pa. 314. 

The court below have found that : 

\'The evidence adduced upon the trial has not been shown to 
be incorrect in any material matter by anything subsequently 
made to appear. Nor do the manner and circumstances under 
which at a very late period after the verdict the so-called correc- 
tion or retraction came about, serve to impress us with its im- 
portance or merit as a rei\son for a new trial." 

Jurisdiction in conspiracy is obtained by any overt acts done 
within the jurisdiction. 

Opinion by Wickham, J., January 18, 1898 : 
The defendants in this case were indicted and convicted for 
conspiring to cheat and defraud George W. Koons & Co. of 
valuable personal property. The evidence consisting of about 
four hundred and fifty-three pages of printed testimony, and 
one hundred and twenty letters and other documentary exhibits, 
reveals the philosophy and methods of one of the dangerous 
forms of dishonesty peculiar to modem business life. 

A. L. Spencer, living in Scranton, Pa., had been engaged, 
prior to 1895, in business dealings with one E, T, Day, of New 



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COMMONWEALTH v, SPENCER. 261 

.1898.] Opinion of the Court. 

York City, and as he- alleges, obtained through Day, as security 
for some indebtedness owing to him from the latter, certain 
notes issued by a corporation called the Southwestern Pacific 
Company. This was a speculative, insolvent concern of shad- 
owy outline, whereof G. A. J. Milair, also of New York, was 
president. How long it eked out an existence we do not know, 
but it is quite sure that it was defunct for some time before the 
Phoenix Contract Company was formed. Just what the precise 
nature of the relations between Spencer and Milair were before 
October of the year 1895, is hard to tell ; their testimony in 
regard to this matter is not as clear as it might be, and much 
is left for surmise, but from their letters appearing in evidence, 
it seems that they were on terms of close business intimacy, 
that Milair was procuring and trying to procure iron, lumber, 
and other materials for Spencer, to reduce Day's indebtedness 
to the latter and probably to help himself at the same time. 
For these purposes the Southwestern Pacific Company was used 
to some extent, and if Milair is to be believed, would have been 
fraudulently employed in an extensive way, at Spencer's sug- 
gestion, had not its credit utterly failed. When things had 
reached this pass, and it became evident to Spencer that the 
old company could no longer be made available for either honest 
or dishonest uses, we find him writing to Milair, under date of 
October 8, 1895, complaining that the latter had not sent lum- 
ber, iron and spikes aa he had promised, and suggesting as fol- 
lows : " I tell you the thing to do is to start a new Co. The 
old one, no matter what you may do, is hammered out of exist- 
ence and is carrying a bigger black eye than you will ever be 
able to heal. If you will pitch in, I will turn material into cash 
for you. I would like to handle the money end of it myself. 
What do you say ? " 

Before this letter was written, Spencer, Day and Milair had 
at least one conference in New York about organizing the new 
company, the real purpose whereof, as Milair, in effect admits, 
being to buy materials, to wit : iron, nails, spikes, lumber, etc., 
sell the same and divide the proceeds, Spencer to receive fifty per 
centum thereof. Whether he was to get more in the aggregate 
than would pay his debt, then alleged to be $8,500, is not quite 
clear, npr is it very material. The other fifty per cent was to 
go to the New York end of the concern. Aubrey was to get 



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i02 COMMONWEALTH v. SPENCER. 

Opinion of the Court. [G Pa. Superior CI. 

$1^500 a year for his services, seemingly -to be paid out of the 
gross receipts. 

On October 14, 1895, Spencer again writes Milair, saying: 
" Viewing your situation in the back ground and from past 
experience, I realize fully how diflBcult it is to buy with the 
credit of S. W. P. Co., and each report through the agencies 
reflects stronger and sti*onger on you and that Co. ; hence the 
necessity of forming a new one under a wholly new name that 
you can sit quietly back and manage. We are all discouraged 
at this end." On October 22, 1895, he writes Milair concern- 
ing a note, and says : " Your name and that of the S. W. P. Co. 
must not appear." In a letter to Milair, dated December 2, 
1895, he suggests that the title of the new company, the forma- 
tion of which was then under consideration, shall be "New 
York Construction & Fire Proofing Co." and adds, " As I am 
to use the material or dispose of it, it would seem that I should 

be out of the list Get up the new company under this 

head, and Aubrey as secretary or treasurer as you wish. Will 
look for your letter and small notes to-morrow. I am worried 
as the time to take care of the old ones is short. Do not forget 
that now is the time I need your aid." Aubrey was Spencer's 
bookkeeper and business confidant. 

Milair, recognizing the fitness of things, preferred the name, 
" The PhoBnix Contract Company," and so wrote Spencer, and 
the latter name was chosen. When asked by the defendants' 
counsel : " I suppose you suggested that because it was rising 
out of the ashes of your former enterprise ? " He replied, '* That 
was my idea, yes ; that is the reason I thought it was an appro- 
priate name." 

In a letter to Milair, dated December 13, 1895, Spencer states : 
" My attorney says I cannot be a director in any company with- 
out being liable for its debts, and I can't afford to do that" 
On December 28, he says in another letter: "A new company 
with Pelletreau and Hoffmire and several others with us, would 
make the thing go at once. This is the quickest way to get 
easy, and if they would authorize Aubrey to buy, we could be- 
gin now," etc. It may be remarked here, that throughout the 
voluminous correspondence, only brief extracts from which can 
be presented, Spencer appears anxious to get every one, that 



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COMMONWEALTH v. SPENCER. 263 

1898.] Opinion of tlie Court. 

might be made useful, into the new company, while determined 
to have no visible connection with it himself. 

In a letter of Januaiy 15, 1896, he complains to Milair that 
the latter is " too slow about the new company " and concludes 
as follows : " You cannot aflford to neglect this new company 
for something less reliable. When you get H. and P. to join, 
I will send ♦25.00 for charter. Now act quickly. Aubrey has 
become discouraged at your slow pace." The next letter, dated 
February 8, 1896, and referring to certain notes that he wanted 
Milair to send him for speculative purposes, contains the follow- 
ing : " It would be as well that the notes should bear no indorse- 
ment that would suggest the South Western Pacific Company. 
This deal has progressed so satisfactorily so far that I would 
not on any account have it imperiled now." Two days later, he 
writes Milair: ^'•Both myself and Aubrey are ready to take off 
our coats to make the new company a success, if we can only get 
it started, and I accordingly enclose a check as promised, pay- 
able to the secretary of state of New Jersey, amount $26.00, and 
shall be glad to know that the organization will be completed 
at an early date." It seems that Milair did not have the small 
sum of money needed to pay the fees on the issuing of tlie 
charter. On February 26, Spencer says in another letter to 
Milair : ** I wired you this morning to send me the name of th» 
new company, and the position assigned to Aubrey in it, as I 
want to work some of the matters I have on hand through the 
medium of the new organization." The telegram referred to is. 
as follows : " Wire name new company, Aubrey's position in it 
so can make purchases." In a letter, dated March 2, 1896, he- 
says: "I want Thomas Aubrey made secretary and treasurer of 
the Phoenix Contract Co., as he will do the buying and trading 
at this end." On March 7, 1896, he writes : " I hope you will: 
now lay aside every other scheme until this is perfected, and 
once in working order, I am sure it will be highly renumerative^ 
for you and me." The charter for the Phoenix Contract Company 
was obtained under the laws of New Jersey, on March 7, 1896,. 
and the capital stock was fixed at $100,000. Milair, Joseph P. 
Wiswall, and Charles R. Braine were the incorporators, all soi 
far as we can see, being financially irresponsible, nor does it ap- 
pear that James Kennedy, who was brought in later, concededly 
as a figure head, was in much better condition. The $26.00 check 



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264 COMMONWEALTH v. SPENCER. 

Opinion of the Court. [6 Pa. Superior Ct. 

was used in paying for the charter. Braine was made president, 
Kennedy vice-president, Aubrey secretary and treasurer with 
an office at Scranton, and Milair general manager, with an office 
in New York. Braine, as Milair says in his testimony, was the 
" Mr. B." referred to in the following extract from Spencer's let- 
ter to Milair dated October 14, 1895, " We are all discouraged 
at this end. Mr. B. has given up the idea of getting spruce lum- 
ber. I fear we shall not be able to bring him into use again.'* 
On March 17, 1896, Spencer says in a communication to Milair: 
** I enclose herewith check, #50.00, to cover rent of new offices 
at 156 Broadway, and hope to hear at once that you have 
closed arrangements for same. This must be done at once 
that we may proceed to get our stationery pnnted here and 
that you may antinge for a rating as suggested to Aubrey 
yesterday. Please lose no time in these matters. I am spe- 
cially anxious if possible to get some money this month to take 
up some of the old papers, and I see no other way to accom- 
plish it but through the medium of the new Co. Nothing can 
be done until these details are definitely fixed, and we must 
all act at once while trade remains dull." On the next day, he 
again writes, saying '•• I cannot too greatly emphasize the ne- 
cessity for promptly obtaining for the new Co. a good rating. 
Nothing can be done without it, and if it is delayed we can do 
no business here." Again on March 24th, he says : " I am very 
anxious on the question of rating for the new Co., of which you 
make no mention in recent letters. Please rush this matter as 
Aubrey and I are very desirous of getting down to business. 
Material is daily offered to me, which the Phoenix Co. could 
easily buy, given a good rating. We cannot make a move with- 
out it however, and I don't want to run the risk of making a 
mistake." Three days later, he writes Milair: "Now we have 
lots of business in the air. The delay on the rating hurts. The 
secretary sent out specifications (at a risk I think) for 822,000 
worth of nails. ... If you can get in new office do so at once, 
as inquiries may come there concerning the nails purchased." 

Before this time Aubrey had also been writing Milair hurry- 
ing him up. In a letter under date of March 21, 1896, he says : 
** We are all in shape here to proceed to business, but awaiting 
your advice as to rating. Please say when you can secure this, 
as it will certainly be the first question put to us in response to 



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COMMONWEALTH v, SPKNCER. 265 

1898.] Opinion of the Couit. 

inquiries for material. ... It will be advisable for each of us 
to keep the other informed of every move made, so that there 
may be no surprises sprung on either." On the 26th of the 
same month, he writes : " Seeing that Mr. S. will ultimately 
handle a large proportion of the material we shall buy, it will be 
inadvisable to use his name as reference whenever it is asked for." 
On the 30th of the same month, he again writes Milair, saying : 
*' Mr. Spencer wired you this A. M. to be here on Wednesday 
morning without fail. We have agreed to meet Dun's agent at 
3 o'clock on Wednesday afternoon to make a statement relative 
to the position of this Co. This must be done at once inasmuch 
as we have a big nail deal practically consummated, and if we 
can only nobble Dun's local man, we are safe to carry it through. 
Please do not fail to be here and bring along whatever you can 
that will establish us with Dun's. A rating can be more easily 
procured here than in N. Y. From what Mr. Spencer said in 
his letter to you on Friday, I concluded you would be on the 
lookout for nail men. I wrote to every nail mill in Penna., and 
have one quotation today that looks like positive business. 
Hence the necessity for your certain appearance on Wednesday. 
Anything in the shape of bonds, notes, or securities of any kind 
that you can get hold of, it would be very essential to bring 
along with you." 

It is significant that the "big nail deal" referred to was the 
one consummated with Koons later, as Aubrey admits in his 
cross-e^tamination. This matter has a most important bearing 
on the alleged particular conspiracy of Spencer and Aubrey to 
defraud Koons. Among the definitions of " nobble " a word 
little used here, but common in England, Aubrey's native 
country, the Century Dictionary gives the following, '' Circum- 
vent," "get the better of," "get hold of dishonestly," and a 
nobbier is "a thimblerigger's confederate." 

In response to the call from Spencer and Aubrey, Milair went 
from New York to Scranton, and met them at the company's 
office in the latter city. The three men, in order to get a good 
business rating through R. G. Dun & Co.'s agency, for the 
Phoenix Contract Company, prepared the following statement : 

" The authorized capital stock of the Company is ^100,000, 
of which $50,000 has been subscribed and paid for. The assets 
of the company is : 



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266 COMMONWEALTH v. SPENCER. 

Opinion of the Couit. [6 Pa. Superior Ct 

Cash in bank • 8,000.00 

Bills receivable 10,000.00 

Merchandise, about 17,000.00 

Stocks, Bonds, etc 20,000.00 

Total 850,000.00 

Liabilities None. 

"The banking of the company is done with the Traders' 
National Bank, Scranton, Pa. 

" The business of the company is that of general contractors 
for the construction of railroads, bridges, etc. etc., and has sev- 
eral lai-ge contracts pending." 

Not a dollar of the stock was at any time paid for, nor was 
it intended that it should be paid for, even in part. In what 
proportions it was held by the incorporators does not appear. 
Indeed, Aubrey, the secretary and treasurer, admits in his tes- 
timony that he did not know himself. But this was a matter 
of small moment, seeing that the division of the gross receipts 
in the manner agreed on, rather than of legitimate profits, was 
the chief aim and object of the confederacy. The company 
was organized mainly to get goods on credit, or for securities 
of little or no value, that Milair might pick up in New York 
and elsewhere by the questionable methods revealed by the evi- 
dence. That there was no intention to expend more money 
than was absolutely necessary to bait the traps from time to 
time is very apparent. The company had nothing in the way 
of assets or capital save $3,000 temporarily deposited by Spen- 
cer in the Traders' National Bank of Scranton to aid in making 
a false show and securing a fraudulent rating. This deposit, 
as is shown by the correspondence, had "a string to it," and 
was all withdrawn inside of thirty daj's. A statement more 
boldly and nakedly false was, perhaps, never before sought to 
be imposed on a mercantile agency. 

It failed to accomplish its intended purpose with R. G. Dun 
& Co., but misled Bradstreet's agency, which latter concern gave 
the company the desired rating. Everything was -now ready for 
the " big nail deal " with Koons, who lived in Audenreid, a 
town on the edge of Luzerne county, and was representing him- 
self and his partner George John. To bring about this deal 
speedily was evidently the main reason for the anxiety of Spen- • 



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COMMONWEALTH v. SPENCER, 2C7 

1898.] Opinion of the Court. 

cer and Aubrey to get Milair to Scranton and secure a rating, 
as the evidence shows that on the very day Aubrey wi^ote his 
letter hist quoted from, he had negotiated with Koons for a 
large lot of nails. Thereafter the two Scranton conspiratoiB 
followed Koons as the skillful hunter pursues his quarry. Au- 
brey's letters to his victim, wherein he assumes the tone of a 
strict and careful business man, who will not stand any remiss- 
ness, his complaints of delay, his intimations that only the great- 
est promptness on the part of Koons will save the latter from 
losing a valual^e customer, are models of cunning and effront- 
ery. 

By June 10, 1895, goods to the value of $10,050.27 had been 
obtained from Koons and his partner. They were secured 
through about a dozen shipments, all save two made to points 
in Luzerne county. Of the total price, #1,000 was paid in 
cash and about $950 by tuining over to Koons storage receipts 
for some goods in New York, the title to which he testified at 
the trial, was still in dispute. Beyond these amounts nothing 
was paid. On June 8, 1896, when only $15.00 stood to the 
credit of the company in the bank wherewith all its business 
was done, the other moneys collected from the sales of Koons's 
goods having been divided between Spencer and Aubrey, 
the latter negotiated with Koons for material to cost $12,000 
more. In a letter of that date to Milair he says : " It was the best 
policy to give Koons money, as I have now got his entire confi- 
dence, and yesterday closed a deal with him for $12,000 worth 
of material for prompt delivery." Before Koons shipped the 
goods last ordered, he suspected that he was being cheated and 
refused to go any farther. In an earlier letter Aviitten May 28, 
1896, to Milair, Aubrey sajrs, speaking of Koons, " I think you 
had better leave him to me, and if you reply to his letter give 
him to understand that you will not interfere between the Scran- 
ton office and his good self, inasmuch as his treatment of our 
orders has been so unbusinesslike and annoying to us. We can 
work him well enough from this end, and his zeal for prompt cash 
settlements will soon cool off. . . . Mr. Spencer has written a 
good letter to Lehigh Lumber Co." Spencer's letter to the Le- 
high Lumber Company was one recommending the Phoenix Con- 
tract Company-as entitled to credit, and falsely representing its 
business and assets. 



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268 COMMONWEALTH v. SPENCER. 

Opinion of the Court. [6 Pa. Superior Ct. 

What became of the material purchased from Koons ? This 
inquiry is fully answered by the evidence. No sooner were 
shipments commenced than a manufacturer's agent, or broker, 
Fred E. Turner, of Wilkes-Barre, a debtor of Spencer, was sent 
for and an arrangement made with him to sell the property. 
Spencer, Aubrey and Turner met, not at the office of the Phoe- 
nix Contract Company, but at Spencer's own office at Green 
Ridge Iron Works, Scranton. Turner says, *' They there in- 
formed me that the Phoenix Contract Company had been organ- 
ized, and that they had excess material that would be turned 
into cash, at a price below the market rate, in order to assist Mr. 
Spencer on some notes that he had indorsed for gentlemen in 
New York." They farther explained that the excess was from a 
large contract that the company had in the west, and that Spen- 
cer had put Aubi^y into the company as secretary and treasurer, 
to look after Spencer's interests. Turner immediately started 
for New York, to which city the first shipments had been made, 
where he sold one thousand kegs of nails at ten per cent below 
the then market rate, and the price agreed to be paid Koons 
only a few days before, his commissions, part of which were to 
be applied to his indebtedness to Spencer, to come out of the 
sums realized. 

After the material in New York had been disposed of, he 
went into Luzerne count}"-, pursuant to his authority, and from 
time to time, during the spring and summer of 1896, there sold 
the goods shipped by Koons into that county, at figures (some- 
times as much as fifteen per cent) below the ruling market 
prices. Most, perhaps all, of these goods were consigned by 
G.W. Koons & Co. to themselves, at Wilkes-Barre and Plymouth. 
The facts just recited are important in considering what overt 
acts were committed in Luzerne county by Spencer and Aubrey, 
or either of them, acting by authority express or implied of 
both, or by their agent Turner, in furtherance of the common 
design. The offenders may be indicted in any county where 
even a single overt act has been committed. Our Supreme 
Court, announcing the general rule on the subject, has said 
in Commonwealth v. Gillespie, 7 S. & R. 469, and the lan- 
guage is applicable to more than one branch of this case : " It 
must be recollected that conspiracy is a matter of inference, 
deducible from the acts of the parties accused, done in pursu- 



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COMMONWEALTH v. SPENCER. 269 

1898.] Opinion of the Court. 

ance of an apparent criminal purpose, in common between them, 
and which rarely are confined to one place, and if the parties 
are linked in one community of design and of interest, there 
can be no good reason why both may not be tried where one 
distinct overt act is committed, for he who procures another to 
commit a misdemeanor is guilty of the fact, in whatever place 
it is committed by the procuree." 

Turner usually made the Luzerne county sales while the 
goods were yet in the carriers' hands, consigned to G. W. 
Koons & Co., and therefore liable to stoppage in transitu: 
Hayes & Black v. Mouille & Co., 14 Pa. 48; Penna. R. Co. 
V. Amer. Oil Works, 126 Pa. 485; Tiffany on Sales, 216^ 
217. In such cases he reported the sales to the Scranton office, 
and orders of G. W. Koons & Co. to deliver were sent from 
tiiere to the carriers. Sometimes he had deliveries made di- 
rectly to himself. It cannot be denied that these transactions 
constituted overt acts, in furtherance of the scheme to defraud. 
It is urged, however, for the defense, tliat while Spencer may 
have been in the conspiracy to defraud the public genemlly, 
there is no sufficient proof that he conspired against G. W. 
Koons & Co., or that he authorized any overt act in Luzerne 
county, and that therefore the defendant could not be brought 
within the jurisdiction of the court of quarter sessions of that 
county. But Tuiiier testifies that he talked and communicated 
with both defendants regarding the business, that *^ he," Spen- 
cer, " advised with me on the sale of material that was under 
way. If I needed any instructions or advice I got it from either 
one of them, from either Mr. Spencer or Mr. Aubrey." It 
must be remembered that practically the only victim, or at least 
the only one worth mentioning that came into the net, was 
Koons, and that about the only business done, so far as the evi- 
dence shows, was getting hold of the goods of Koons and his 
partner, promptly selling them at less than cost and market 
prices, and dividing the proceeds between Spencer and Aubrey, 
the former getting most of the money. Everything that was 
realized went substantially to these two men. Their confeder- 
ates were completely ignored in the division of the spoils. 
Milair testifies, and his testimony in the main is borne out by 
other evidence, ** They got in I understand some eight or ten 
thousand dollars. They told me all the time they had not 



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270 COMMONWEALTH v. SPENCER. 

OpiDion of the Couit. [6 Pa. Superior Cti 

received it, but it seems they did receive it during June, July, 
and August. They told me the goods had not been delivered 
and had not received any money, could not even send money 
for the rent of the office in New York. In the meantime had 
taken thousands of dollars as it appears out of the treasury of 
the company." He also says, and there is no denial, ** I asked 
the secretary and treasurer for a statement repeatedly and re- 
peatedly ; never furnished it to me. I don't know how much 
money was paid in or what paid out, they would not allow me 

to see the books, or allow me, ^ to give me any information 

of any kind. They simply took the money and left me in New. 
York." 

Koons testifies that after he had made a shipment or two, he 
met Spencer, at Aubrey's request, and that the former assured 
him that Aubrey and the Phoenix Contract Company were all 
right and that ^^he would not hesitate to give them a line of 
credit himself." It will be observed, from the evidence, that he 
- did not do this, although the company was anxious to buy the 
very things he was manufacturing and selling. 

On one occasion Aubrey went to Wilkes-Barre, and told 
Spencer that Turner needed money the next day, and that they 
must go together and collect some of the bills for the goods sold 
by Turner. This they did and Aubrey went back to Scranton 
with the funds. It would be easy to refer to other evidence, in 
the case, tending still further to show the intimate connection 
and understanding between Spencer and Aubrey in regard to 
the transactions with Koons, and that from beginning to end 
Spencer's was the master mind. 

A motion for a new trial was made in the court below, one 
of the main reasons relied on being an affidavit made by Turner 
after the trial, that he did not mean to say in his testimony that 
Spencer had directed him to sell the material furnished by the 
Koons' firm. This was not in accordance with his story told the 
counsel for the commonwealth, or his testimony before the grand 
jury and the traverse jury, which was undenied by the defend- 
ants at the trial. His deposition was taken to be used at the 
argument of the motion, and it appears from it that, a month 
after the trial, Spencer had Turner go to Scranton, and, after talk- 
ing to him, secured the affidavit. Unfortunately for the defense, 
Turner, on cross-examination, was compelled, in his deposition 



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COMMONWEALTH v. SPENCER. 271 

1898.] Opinion of the Court. 

to explain the aflBdavit, and his explanation when analyzed 
Bimply means, to use his own language, that Spencer did not 
** actually and solely" employ him to make the sales. But 
even if we accept the affidavit as true, and meaning all that it 
says, there is still enough left in the circumstances, the umis- 
sadled and unretracted part of the testimony of Turner, and the 
other evidence, to amply justify the conviction. Turner's agree- 
ment to receive fSOO for furnishing information, which aided 
Koons in following the conspirators in their secret windings, 
throws no doubt on those portions of his testimony impliedly 
admitted to be true, and to which he still adheres. 

It is urged by the defense that the commonwealth should not 
have been permitted to go into the history of the formation and 
purposes of the Phoenix Contract Company, as by so doing a 
separate and indictable conspiracy to defraud the public at 
large was uncovered. For the same reason it might be ob- 
jected, in behalf of one indicted for killing or wounding an- 
other with a deadly weapon, that the commonwealth should 
be debarred from proving that the prisoner, for weeks before 
the commission of the crime, had, contrary to our statute, 
canied the weapon, concealed on his person, with the de- 
liberate intention of using it against any one whom he might 
select from a class of persons. In order to properly compre- 
hend the nature and circiimstances of the particular conspiracy 
charged in the indictment, and the motives and conduct of 
the two defendants, it was absolutely necessary to admit the 
evidence whereof complaint is made. Never in the history 
of English or American jurisprudence was there a time when 
an intelligent judge would have excluded it. The bogus com- 
pany was part of the juggling machinery created by the defend- 
ants to delude their victims, and was deliberately, skillfully and 
successfully employed as a means or instrument in deceiving 
Koons. Had it not been so used, by both defendants, thei-e 
would be reason in their objection. The case of Carroll v. 
Commonwealth, 84 Pa. 107, and kindred authorities fully sus- 
tain the admissibility of the evidence, but, even before these 
cases were decided, its relevancy could not have been fairly 
questioned. 

Coming now to a direct consideration of the assignments of 
error, we find that the first fails to comply with Rule 17 of this 



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272 COMMONWEALTH v. SPENCER. 

Opinion of the Court. [6 Pa. Superior Ct. 

court, as it neither quotes the full substance of the bill of excep- 
tions, nor copies the bill in immediate connection with the 
assignment. The offer of evidence and the ruling thereon are 
given, but the evidence itself is neither set forth nor incorpo- 
rated by reference. The second assignment, at least so far as 
it relates to the evidence outside of the certificate therein men- 
tioned, is open to the same objection, and the further one that 
it fails even to show the ruling of the court on the offer. The 
letters referred to in the fourth assignment only one of which 
is set forth or otherwise individuated were, so far as we can 
see, offered and admitted without objection ; hence it is unfair 
to the court below, as well as improper, to assign their admis- 
sion as error. The fifth, sixth, and eighth assignments com- 
plain of the refusal of the couii; below to grant a new trial. No 
exception was taken to this action of the court. The other, 
assignments, relating to the jurisdiction of the court, and alleged 
errors in the charge, cannot be sustained. .The statement quoted 
from the charge, in the third assignment of error, is fully war- 
ranted by Spencer's own undenied and unexplained letters. 

The peculiar character of the case has led us, as will be 
observed, to consider it more fully and broadly on its merits 
than a strict adherence to our rules, relating to assignments of 
error, demands. In doing so we have reached the conclusion, 
that the defendants were treated with the greatest fairness dur- 
ing the trial, every doubtful question raised by their counsel 
having been resolved in their favor, that the verdict was the 
only one the evidence would warrant, that a new trial was 
justly refused for the reasons set forth by the learned trial 
judge in his opinion, and that the sentences are very merciful. 

All the specifications of error are overruled, the judgments 
are affirmed, and the record remitted to the court below, to the. 
end that the sentences imposed may be duly enforced. And it 
is ordered that the defendants surrender themselves forthwith 
to the custody of the keeper of the jail of Luzerne county, and 
serve out so much of the periods of imprisonment, prescribed by 
the said sentences, as had not expired on Jime 30, 1897, the day 
the supersedeas allowed on this appeal took effect. 



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COM. V. YEISLEY. 273 

1898.] Sjllabos^-^tatement of Facts. 

Commonwealth of Pennsylvania ex rel. John T. Bald- 
win & Co. V. George Yeisley, Constable, and John R. 
Jeffries, Surety on his Official Bond, Appellants. 

Public officers — ConstabWs bonds — Cause of(icUonfor neglect. 

In an action of assumpsit on a constable's official bond a sufficient cause 
of action is disclosed where tiie breach alleged was that an execution was 
placed in the constable's hands by virtue of which he had made levy upon 
goods of the debtor which would have sold for more than enough to sat- 
isfy the execution but that he neglected and refused to sell them but made 
return ** no goods found subject to levy and sale.'^ 

PracUce^ C, P, — Amended sUUement and second rule for Judgment. 

It is not error to permit a plaintiff to withdraw his original statement 
and to file another, averring the elements of damage with greater partic- 
ularity and verified by affidavit as required by rules of court. No new 
cause of action being introduced such action is a proper exercise of the 
power to permit amendments. Nor is there error in granting a second 
rule for judgment after the defects in the original statement have been cured 
by amendment. 

Practice, C. P.— Suit on constable's bond demands affidavit qf defense. 
An action on a constable's official bund conditioned for the performance 
of collateral acts or official duties is within the affidavit of defense act. 

Constables — When demand requisite under act of 1772. 

The written notice or demand required to be made by the Act of March 21 , 
1772, 1 Sm. L. 865, only applies where the constable acts in obedience to 
his warrant or writ; it has no application where the cause of action is 
based on his open contempt of and disobedience to his writ. 

Constable's bond—Proper entry of judgment—Power of court to control. 

While there may be force in the contention that in strict practice two 
judgments should be entered in a suit on a constable's bond, one in favor 
of the commonwealth for the amount of the bond and one in favor of the 
plaintiff for his damages, it does not appear that the constable has reason 
to complain that judgment was not entered for the penalty, and in any 
event the court would have power to correct the judgment so as to make 
it conform to the statute had the question been raised by the assignments 
of eiTor. 

Argued Nov. 10, 1897. Appeal, No. 156, Nov. T., 1896, by 
defendants, from judgment of C. P. Lancaster Co., Feb. T., 1896, 
Nc. 47, for want of a sufficient affidavit of defense. Before 
Rice, P. J., Wickham, Beaveb, Rbbdeb, Oblady, Smith 
and PoBTEB, JJ. Affirmed. 
Vol. VI— 18 



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274 COM. V. YEISLEY. 

Statement of Facts— Arguments. [6 Pa. Superior Ct 

Assumpsit on constable's bond. Before Brubaker, J. 

It appears from the record that this suit was brought on bond 
of Yeisley, one of the defendants, to recover for losses incident 
to his failure to execute a writ. The record does not show that 
notice was given and demand made by plaintiffs in this case on 
the constable before suit was brought. Plaintiffs moved for 
judgment for want of a suflScient affidavit of defense which was 
refused. The court subsequently permitted plaintiffs to with- 
draw the statement and file an amended statement to conform 
to the rules of court. After the amended statement was filed 
a second rule for judgment for want of an affidavit of defense 
was taken and subsequently made absolute and judgment en- 
tered for $151.60. Defendants appealed. 

Errors assigned were (1) In enteiing judgment, viz : " We 
now direct judgment to be entered for the plaintiffs for the sum 
of one hundred and fifty-one dollars and sixty cents (*151.60).*' 
(2) In allowing plaintiffs to withdraw their statement filed 
April 18, 1896, and substitute in lieu thereof a second state- 
ment, filed June 4, 1896. (3) In allowing a new or second 
statement to be filed by plaintiffs in lieu of their first statement, 
after the court discharged the rule for judgment on the first 
statement. (4) In not discharging the rule for judgment giunted 
on the second statement filed. (5) In entering judgment on the 
statement, No. 2, filed, as there is not sufficient cause of action 
disclosed therein to warrant it. (6) In holding that the defend- 
ants are requii'ed to file an affidavit of defense to prevent judg- 
ment from being entered against them under the Act of May 25, 
1887, P. L, 271, for want of an affidavit of defense, the suit in 
this case being brought on a constable's official bond. (7) In 
entering judgment against the defendants for the reason that no 
notice was given the constable, George Yeisley, one of the ap- 
pellants, before tliis suit was brought, as required by the Act of 
March 21, 1772, sec. 6, 1 Sm. L. 365. 

J. W. Denlinger and A, J. Eberly^ for* appellants. — It was 
error to allow the plaintiffs to move for judgment after amended 
statement had been filed. The statement upon which the judg- 
ment was entered was deficient and did not warrant the entry 
of such judgment, in that judgment was asked to be entei'ed for 



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CX)M. V. YEISLEY. 275 

1898.] Arguments. 

the commonwealth for the use of Baldwin & Co. for the amount 
of their dam^es and not in favor of the commonwealth for the 
penal sura named in the bond which would accrue to all parties 
interested in said bond : Byrne v. Hayden, 124 Pa. 170. 

An affidavit of defense is not required in actions on official 
bonds : Endlich on Affidavits of Defense, sec. 109 ; Com. v. 
Hoflfman, 74 Pa. 105. 

Judgment in this case must be reversed, because Yeisley, 
constable, one of the appellants, did not receive the notice he 
was entitled to before this suit was brought, under the act of 
March 21, 1772, sec. 6, 1 Sm. L. 365 ; Com. v. Warfel, 157 
Pa. 444. 

A. F. Eontetter^ with him W. F. Beyer^ for appellees. — Per- 
mitting the withdrawal of the statement and filing an amended 
statement was the proper exercise of the power of amendment : 
Waite V. Palmer, 78 Pa. 192 ; Lance v. Bonnell, 105 Pa. 46 ; 
Kay V. Fredrigal, 3 Pa. 221. 

Nor is the fact that the court entered judgment for want of a 
sufficient affidavit of defense after having discharged a previ- 
ous rul^ an abuse of discretion: Wetherill v. Stillman, 65 Pa. 105. 

If an action sounds in contract its name is assumpsit and an 
affidavit of defense is required. The act of 1887 makes no 
exception as to official bonds : Bradley v. Potts, 33 W. N. C. 
570. 

The only seeming exception is in an action brought to recover 
statutory penalties: Osborn v. The Bank, 154 Pa. 184. 

Our case, however, is not a penal action nor is it an action ex 
delicto. It is an action on the defendant's bond which is a con- 
tract and is for a breach of the covenant of that bond. 

The precise objection made by the appellants that the law 
remains as it was before 1887 is met by the Supreme Court in 
Byrne v. Hayden, 124 Pa. 170. 

The case at bar is not the kind of case covered by the act of 
1772. It is manifest that the sixth section of that act is no pro- 
tection where the warrant, if legal, would furnish no justifica- 
tion and this section has no place where the injury complained 
of arises from an act which was not commanded by the writ : 
Mollison V. Bowman, 3 Clarke, 183 ; Lantz v. Lutz, 8 Pa. 405. 



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276 COM. V. YEISLEY. 

Opinion of the Court. [6 Pa. Superior Ct 

Opinion by Rice, P. J., Januaiy 18, 1898 : 

This was an action of assumpsit upon a constable's official 
bond. The breach alleged was that an execution having been 
placed in his hands by virtue of which he had made a levy up- 
on goods of the debtor which would have sold for more than 
enough to satisfy the execution ; he neglected and refused to 
sell them but falsely made i^etum "no goods found subject to 
levy and sale." The action was in substance, as well as in form, 
ex contractu, and by the express terms of the act of 1887 the 
plaintiff's statement in such a case " shall be replied to by affi- 
davit." Th^re is nothing in the objection, that an action upon 
a bond conditioned for the performance of collateral acts or 
official duties, is not within the affidavit of defense law. If the 
statement contains all the ingredients of a complete cause of 
action, averred in clear and unequivocal language, and the dam- 
ages are specifically set out, so that, upon a judgment by default, 
they may be liquidated with certainty, an affidavit must be filed 
to prevent judgment. See Byrne v. Hayden, 124 Pa. 170. 
The principle upon which Osbom v. First Nat. Bank, 154 Pa. 
134 was decided has no application to a case like the present, 
and the other cases cited by the defendant's counsel were de- 
cided prior to the act of 1887, which, as was said in Byrne v. 
Hayden, was intended to have a wider scope than the old affi- 
davit of defense law. 

It was not error to permit the plaintiff to withdraw his origi- 
nal statement and to file another, averring the elements of his 
damages with greater particularity, and verified by affidavit as 
the rules of court required. No new cause of action was intro- 
duced. It was, in effect, a proper exercise of the power to per- 
mit amendments : Kay v. Fredrigal, 3 Pa. 221. Nor was there 
error in granting a second rule for judgment after the defects in 
the original statement had been cured by amendment: Wether- 
ill V. StiUman, 65 Pa. 105. 

The act of March 21, 1772, 1 Sm. L. 365, declares : "No action 
shall be brought against any constable .... for anything 
done in obedience to any warrant under the hand and seal of 
any justice of the peace, until demand hath been made, .... 
in Writing, signed by the party demanding the same, of the peru- 
sal and copy of such warrant duly certified under his hand, and 
the same hath been neglected for the space of six days after such 



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COM. V. YEISLET. 277 

1898.] Opinion of the Court. 

demand." The purpose of this provision becomes plain wlien 
we look at the context. It was to protect constables in acts 
done in obedience to writs placed in their hands, notwith- 
standing a defect of jurisdiction in the justice or justices 
issuing them, and to inform the party aggrieved by such acts 
where to place the responsibility. The design of the section was 
to make the justice exclusively answerable for his own defaults. 
Where a constable has pursued his warrant, he can be affected 
with want of jurisdiction in the magistrate, only where he is 
sued alone, having, after a proper demand, refused for the space 
of six days to furnish a copy of the warrant : Jones v. Hughes, 
5 S. & R. 299, 803 ; Barr v. Boyles, 96 Pa. 81, and cases there 
cited. If, however, the constable acted not in obedience to his 
warrant but in open contempt of it, of course he could not 
plead the warrant as a justification, and such a case is not 
within the letter or the spirit of the statute. This was ex- 
pressly decided in Lantz v. Lutz, 8 Pa. 405, where the action 
was for an escape ; and although it has been held since, that 
the action cannot be maintained by the prosecutrix in a crim- 
inal case and to that extent the case has been overruled (Down- 
ing V. Com., 21 Pa. 215) the principle for which we cite the 
case as authority has not been questioned in any later decision 
which has come to our notice. It is supported by the English 
decisions upon a precisely similar statute collected by Judge 
Lewis in Mollison v. Bowman, 8 Clark, 281. The case of 
Com. V. Warfel, 157 Pa. 444, is not an authority to the con- 
trary. There the constable had in his hands an execution is- 
sued by competent authority commanding him to do just what 
was done. If proper demand had been made and complied with, 
the plaintiff would have seen that no action could be maintained 
against the constable, because he was protected by his writ in 
levying upon and selling the debtor's goods. Here the constable 
refused to obey the command of his writ, and for that he was 
exclusively liable. Undoubtedly, as the Chief Justice says, 
the demand must be made in all cases within the purview of 
the act ; but this case was not within its purview. 

The 29th section of the act of March 20, 1810, 5 Sm. L. 178, 
provided that constables' bonds should be "for the like purposes 
and uses for which sheriffs' bonds are usually given." Substan- 
tially the same provision was incorporated in the 112th section 



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278 COM. V. YEISLEY. 

Opinion of the Court. [6 Pa. Suijerfor Ct, 

of the Act of April 15, 1834, P. L. 657, and was interpreted to 
mean that the i-emedy should be the same as that upon sherifEs* 
bonds, which was regulated by the act of March 28, 1803, 4 Sm. 
L. 45. It was held upon a construction of these statutes that 
judgment was not to be entered for the penally for the use of 
those interested but for the damages sustained by the party suing: 
Campbell v. The Commonwealth, 8 S. & R. 414. But the act 
of June 14, 1836, P. L. 637, applies in express terms to '* every 
bond and obligation which shall be given to the commonwealth 
by any public officer," and it was said in McMicken v. Common- 
wealdi, 58 Pa. 213, that " so much of the act of 1803 as relates 
to proceedings upon the official bond of the sheriff is no doubt 
supplied and therefore repealed by this act," but it was held 
not to be so as to the recognizance. There is therefore much 
force in the defendants' contention that in strict practice two 
judgments should have been entered, one in favor of the com- 
monwealth for the amount of the bond, and the other in favor 
of the plaintiffs for their damages. It is not clear, however, 
what reason the defendants have to complain that judgment 
was not entered for the penalty, and upon a critical examina- 
tion it will be seen that the assignments of error do not dis- 
tinctly and unequivocally raise the objection. Even if they 
did, it would not be necessary to reverse the judgment; for 
we would have power to correct it so as to make it conform to 
the statute : Carman v. Noble, 9 Pa. 366, 372 ; Scarborough v. 
Thornton, 9 Pa. 451, 456; McMicken v. Commonwealth, 58 
Pa. 213, 219; Act of June 24, 1895, sec. 8, P. L. 212. 
Judgment affirmed. 



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SKINNER V. CHASE. 279 

1898.] Syllabus— Statement of Facts. 

Frank Skinner, to use, Appellant, v. George Chase. 

JudgmerUs as set off. 

Judgments are set off against each other by the inherent powers of the 
court immemorially exercised. 

Judgment — Set-off— Assignment of judgment — Discretion as to conflicting 
equities. 

The equity of a defendant to set off a judgment purchased by him 
against a judgment acquired by the plaintiff against him is equal to the 
secret equity of an assignee of plaintiff^s judgment prior in time to defend- 
ants acquisition of judgment sought to be set off where said assignee 
has neglected the precaution of having the judgment marked to use. The 
appellate court therefore will not disturb the exercise of the discretion of 
the court below in making absolute a rule to permit defendant to set off 
the judgment against the plaintiff acquired by him after suit brought. 

Assignment of chose — Subject to defense— Notice. 

An assignee of a chose in action not negotiable takes it subject to all 
the defenses to which it was subject in the hands of an assignor including 
the right of the debtor to set off any claim against the assignee before 
notice of the assignment. 

Practice, C. P. — Discretion of court — Duty of filing opinion. 

In cases appealing largely to the discretion of the court below where- 
oral testimony of witnesses is frequently heard and passed upon, an opin- 
ion should always be filed by the court setting forth at least briefly, its 
findings of fact and the grounds of its decision : Gump v. Goodwin, 172' 
Pa. 276. 

Argued Oct. 22, 1897. Appeal, No. 123, Oct. T., 1897, hy 
plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1895^ 
No. 52, making absolute rule to set off judgment held by defend- 
ant against plaintiff. Before Rice, P. J., Wickham, Beaver,. 
Reeder, Orlady, and Porter, JJ. Affirmed. 

Rule to set off judgment held by defendant against plaintiff 
against a judgment held by plaintiff against defendant. The 
rule was made absolute by the court below. Plaintiff appealed. 

The facts suflBciently appear in the opinion of the court.^ 

Hrror assigned was making absolute the rule of defendant 
permitting him to set off judgment which he obtained by pur- 
chase seven months after the plaintiff had assigned hi» ittteiest 
in suit against defendant. 



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280 SKINNER v. CHASE. 

Ai"g:uments— Opinion of the Court. [6 Pa. Superior Ct. 

J, M. Moyer^ for appellant. — If the assignments are good, 
then the purchase by Chase of the Kennedy judgment for the 
purpose of set-off comes like the doctor at the funeral, too late* 

As against Skinner, had he not previously assigned his inter- 
est in the Chase suit, the judgment not presented by way of 
set-off would be one thing, but as against Skinner's assignees 
it can only avail subject to their equities and rights : Weidner 
V. Schweigart, 9 S. & R. 387. 

Charles A. Chase^ for appellee. — The judgment was assigned 
to defendant who set it off against tlie judgment subsequently 
obtained against himself. He certainly had as much right to 
obtain redress as the original legal plaintiff who could have at- 
tached him as garnishee. The rule to set off one judgment 
against another had exactly the same effect as an attachment, 
was more expeditious, less expensive and placed the plaintiff 
under no disadvantage whatever: Hazelhurst v. Bayard, 8 
Yeates, 152 ; RusseU v. Spear, 4 W. N. C. 476 ; Rider v. John- 
son, 20 Pa. 190. 

If, however, the security offered as a set-off has been merely 
borrowed for the purpose, it will not be allowed : McGowan v. 
Budlong, 79 Pa. 472. 

The power to set off judgments has been exercised immemo- 
rially, and arises from the court's equitable powers over its 
suitors : Gamer v. Price, 4 Kulp, 10. See also discussion of 
the subject by Rice, P. J., in Shoemaker v. Flosser, 5 Kulp, 437. 

It has been decided in the following cases that a judgment 
can be set off against a judgment notwithstanding equities in 
third parties : Stout v. Moore, 7 W. N. C. 456 ; Hazelhurst v. 
Bayard, 3 Yeates, 152; Wain v. Hews, 5 S. & R. 468; Com- 
well's Appeal, 7 W. & S. 305. 

Opinion by Rice, P. J., January 18, 1898 : 

On May 9, 1895, Frank Skinner sued George Chase, and on 
December 6, 1895, obtained judgment for want of an appear- 
ance. 

On December 9, 1895, Chase applied to have the judgment 
opened. His application was granted, and on April 8, 1897, 
the plaintiff obtained a verdict for $223.97, upon which judg- 
ment was entered on April 13th. 



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SKINNER V. CHASE. 281 

1898.] Opinion of the Court. 

On the following day (April 14th) Chase was granted a rule 
to show cause why a judgment entered in common pleas No. 1 
in favor of Thomas Kennedy against Frank Skinner, and as- 
signed by Kennedy to Chase on December 11th, should not be 
set off against the judgment against him. Depositions were 
taken, by which the following facts were established : 

On December 16, 1895, Skinner borrowed of William P. 
Elder f 200, and as collateral security for the loan (which was 
renewed in June, 1895), pledged his wife's diamond earrings, 
and assigned the above-mentioned claim against Chase. On 
January 6, 1896, this claim was marked of record to Elder's 
use ; and so the record stood at the time of the trial and at the 
time tlie rule under consideration was granted. It appears, 
however, that on June 1, 1896, the loan was repaid by the check 
of Skinner's wife drawn upon her personal bank account, and 
the diamonds were returned to her. At the same time Elder 
executed the following receipt and assignment: "Received 
from Mrs. Sallie P. Skinner her check for two hundred dollars in 
full payment for a loan for that amount made by me to Frank 
Skinner on June 17, 1895. I hereby assign and transfer unto 
her all my interest in the claim of Frank Skinner against George 
Chase in common pleas No. 2, June term, 1895, No. 52, previ- 
ously assigned and marked to my use as collateral security by 
Frank Skinner, the plaintiff, and all benefit to be derived there- 
from and I direct that said claim be marked to the use of Sallie P. 
Skinner." 

It is said that this transaction was a fraud concocted by 
Skinner for the purpose of hindering and delaying his creditors 
by the use of his wife's name ; but this position is not sustained 
by any competent and satisfactory proof. On the contrary, the 
uncontradicted testimony is, that the diamonds were given to 
Mrs. Skinner by her father; that she had a separate estate which 
she inherited from him ; that the money which she advanced to 
pay the Elder loan did not come from her husband, and that he 
has not repaid her. 

It is urged, in the second place, that as she bought the judg- 
ment with notice that Chase owned the Kennedy judgment 
against her husband she took subject to the right of Chase to 
set off the latter judgment against the former. If she were a 
mere purchaser this would be true : Filbert v. Hawk, 8 W. 443 ; 



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282 SKINNER v. CHASE. 

Opinion of the Court. [6 Pa. Superior Ct. 

Clement v. Philadelphia, 137 Pa. 328. But the equity of Mrs. 
Skinner antedates the fonnal assignment to her. It had its 
inception when she permitted her diamonds to be pledged as 
security for her husband's debt, which was before Chase bought 
the judgment that he asks to use a setroff. When she advanced 
the money to pay the debt she became entitled to be put in the 
place of the creditor, upon the established principle of equity 
that a surety, or one who stands in the situation of a surety for 
one whose debt he pays, is entitled to have the benefit of the 
collateral securities which the creditor has taken as an additional 
pledge for his debt. The assignment was but the formal recog- 
nition of that equity by the parties concerned. 

Here, however, another difi&culty is encountered. Chase 
bought the Kennedy judgment without any notice whatever 
that there was an outstanding equity in any one which would 
prevent him from setting it ofiE against the judgment that was 
entered against him. Indeed, it was not until after this rule 
was made absolute that Mrs. Skinner filed her assignment or 
attempted to have the judgment marked to her use. 

In view of these facts was Mrs. Skinner's equity superior to 
that of Chase, and was the court bound to recognize it in the 
present proceeding? 

An assignee of a chose in action not negotiable takes it sub- 
ject to all the defenses to which it was subject in the hands of 
the assignor, including the right of the debtor to set off any 
claim against the assignor before notice of the assignment: 
Rider v. Johnson, 20 Pa. 190 ; Smith v. Ewer, 22 Pa. 116 ; 
Keagy v. Com., 43 Pa. 70, 73. Proof of no notice of the as- 
signment is not necessary to establish the right of set-off, but 
proof of notice is necessary to defeat the right : Burford v. Fer- 
gus, 165 Pa. 310. But a cross demand to be set off must belong 
to the defendant before suit brought : Pennell v. Grubb, 13 Pa. 
552 ; Speers v. Sterrett, 29 Pa. 192 ; Gihnore v. Reed, 76 Pa. 
462. For this reason alone Chase could not have offered the 
Kennedy judgment as a setoff on the trial of the issue. He 
nevertheless had a right to purchase it with a view to use it as 
a set-off against the judgment that had been entered against him 
or that might be entered after the trial of the issue. It was as 
available for that purpose as if he, personally, had obtained a 
judgment against Skinner on December 11, 1895, the date of 



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SKINNER V. CHASE. 283 

1898.] Opinion of the Couit. 

its assignment to him. Judgments are set off against each other, 
not by force of the defalcation act, but, as was said by Chief 
Justice Gibson, "by the inherent powers of the courts im- 
niemorially exercised, being almost the only equitable jurisdic- 
tion originally appertaining to them as courts of law remaining :" 
Ramsey's Appeal, 2 W. 228 ; Jacoby v. Guier, 6 S. & R. 448 ; 
Filbert v. Hawk, 8 W. 443 ; Horton v. Miller, 44 Pa. 256 ; 
Hazelhurst v. Bayard, 3 Y. 152 ; Bums v. Thomburgh, 3 W. 
78 ; Wellock v. Cowan, 16 S. & R. 318. The exercise of this 
power is not a mere matter of grace but is governed by equi- 
table principles. The right of the defendant, although not se- 
cured by the statute, cannot be arbitrarily denied. Being so, 
one, not a party to the record, who sets up a prior equity to 
defeat it, may justly be required to show that he has omitted no 
duty. In discussing the right of defalcation under the statute, 
Lewis, J., said : " If a debtor, in the lawful pursuit of his busi- 
ness, parts with his money or property in consideration of the 
transfer of a cross demand against his creditor, with a view to 
a setroff, it would be unjust to deprive him of this right by a 
previous assignment of which he had no notice at the time he 
parted with the consideration. He has as good a right to pur- 
chase a cross demand to extinguish the claim against himself 
by set-off, as he had to accomplish the same object by direct 
payment. In the latter case it is not pretended that he could 
be compelled to pay the debt a second time. The principle is 
precisely the same in each case. . . . The maxim, prior in tem- 
pore, potior in jure holds, it is true, whenever it has not been 
inverted by enactment, or where the benefit has not been lost 
by misconduct or imprudence; but it must not be allowed to 
protect a party who has neglected a requisite precaution to save 
others from imposition : " Rider v. Johnson, supra. These gen- 
eral principles are applicable here. The assignment to Chase 
antedated the assignment to Mrs. Skinner. He appears, there- 
fore, to be prior in time. She sets up a prior secret equity, but 
of this he had no notice whatever. It would seem, therefore, 
that his equity is equal to hers, and as she had not filed her 
assignment, or attempted to make herself a party to the record, 
we are not prepared to say that the court improperly exercised 
its discretion in making the rule absolute. 
- " In cases such as this — appealing largely to the discretion of 



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284 SKINNER v. CHASE. 

Opinion of the Court. [6 Pa. Superior Ct. 

the court below — where oral testimony of witnesses is frequently 
heard and passed upon, an opinion should always be filed by 
the court, setting forth, at least briefly, its findings of fact and 
the grounds of its decision : " Gump v. Goodwin, 172 Pa. 276. 
Order affirmed and appeal dismissed at the cost of the appel- 
lant. 



Commonwealth of Pennsylvania to use of Mary F. Chap- 
man V. Annie C. Rodgers et al., Appellants. 

PaHUion^BUtribuiion of proceeds-^Lien creditors of heir— Trustee* 8 re- 
spomdbility. 

Where the orphans* court in distribution of the proceeds of the sale of 
land by a trustee in partition proceedings, awai*ds to an heir only what 
would remain of her share of the fund after payment of the recoixl liens 
against her interest the trustee having given bond to appropriate the pro- 
ceeds of such real estate according to the trust and decree of the couit, the 
trustee cannot ignore a lien creditor of the heir and settle with the latter 
who has no authority to release the trustee from his du^ to pay such 
creditor under the deci*ee of the court. 

Pariition-^Judicial sale—Dieestiture of liens. 

Where proceedings in partition result in a judicial sale of the land, the 
lien which had been created by one of the tenants is divested from the 
land but continues on the money I'aised by the sale. 

Partition — Sale by trustee— Duty of trustee to take searches before distri" 
bution, 

A trustee who sold real estate under a decree in partition, and settled 
with one of the heii*s without taking out searches for liens of record, is 
liable to a mortgagee whose mortgage was discharged by the sale. 

Argued Oct. 13, 1897. Appeal, No. 97, Oct. T., 1897, by 
defendants, from judgment of C. P. No. 4, Phila. Co., March T., 
1897, No. 1030, for want of a sufficient affidavit of defense. Be- 
fore Rice, P. J., Wickham, Bbaveb, Oblady, Smith and 
PoBTER, JJ. Affirmed. 

Assumpsit upon the trustee's bond to recover for mortgage 
given by one of the heirs on the undivided interest in the es- 
tate of her father, the defendant being the administratrix of the 



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COM. V. R0DGER8. 285 

1898.] Statement of Facts — Arguments. 

trustee and the sureties on the bond in proceeding in partition 
in the estate of Francis Rodgers, deceased. 

Other facts appear in the opinion of the court. 

The rule for judgment for want of a suflScient affidavit of 
defense was made absolute in an opinion by Arnold, P. J., 
reported in 6 Dist. Rep. 453. 

Judgment for plaintiff for $509.10. Defendants appealed. 

Error assigned was making absolute the rule for judgment 
for want of a sufficient affidavit of defense. 

Edward A. Anderson^ with him John H. Fow^ for appellants. 
— Upon a distribution of a fund in partition, a confirmation of 
the audit is conclusive upon a judgment creditor of one of the 
heirs who failed to present his claim : Sutton's Est., 4 Kulp, 
297 ; Kennedy v. Borie, 166 Pa. 360. 

It is the well-settled doctrine in this state that where the land 
is divided the lien of the judgment against the heirs attaches 
to their respective purparts : Diermond v. Robinson, 2 Yeates, 
824, and that the purpose of partition is division and not con- 
version : Wright v. Vickers, 81 Pa. 122, and that upon a sale 
in partition the proceeds pass to a person entitled thereto as real 
estate : Wentz's App., 126 Pa. 541 ; Stoner's Est., 8 York, 27 ; 
and so it has been decided in a sister state, that an agreement 
between heirs that one buy at a partition sale for a certain price 
is legitimate and binding: Venti-ess v. Brown, 34 La. Ann. 
448 ; 17 Am. & Eng. Ency. of Law, 793. 

Charles A. Chase^ for appellee. — Where a proceeding in parti- 
tion results in a judicial sale of the land, the lien which had been 
created by one of the tenants is divested from the land, but con- 
tinues on the money raised by the sale : Reed v. Fidelity Ins. 
Co., 113 Pa. 574 ; Wright v. Vickers, 81 Pa. 122; Steel's Ap- 
peal, 86 Pa. 222 ; Stewart v. Bank, 101 Pa. 842. 

When the lien of a mortgage is divested by a judicial sale it 
IB not revived by a reacquisition of the title by the mortgagor: 
Ranch v. Dech, 116 Pa. 157. 

The orphans' court, therefore, had full authority to make the 
decree that it did. This case is similar to the case of Reed v. 
Ins. Co., 113 Pa. 574, and for these reasons and for those given 
by the president judge of the court below this judgment should 
be affirmed. 



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286 COM. v. RODGERS. 

Opinion of the Court. [6 Pa. Superior Ct. 

Opinion by Rice, P. J., January 18, 1898 : 

Real estate was sold by a trustee in partition proceedings to 
three of five heirs, one of the tliree having previously mort- 
gaged her interest to the present plaintiff. The sale was con- 
firmed upon the trustee giving bond with sureties conditioned 
" faithfully to execute the trust and properly to appropriate the 
proceeds of such real estate according to the trust and decree 
of the court, and according to law." On the adjudication of 
the account of the trustee the share of the heir who had given 
the mortgage was ascertained to be $3,057.70, which sum was 
awarded to her subject to the liens of record against her interest. 
In defense to this action brought by the mortgagee on the trus- 
tee's bond it was alleged, that, pursuant to an agreement made 
between the trustee and this heir before the sale, he settled with 
her, receiving from her on account of her bid only so much 
money as was necessary to pay her share of the costs and the 
amount due the other heirs, and she, in turn, discharging him 
from payment of the sum awarded to her in the adjudication of 
his account. In an opinion filed, to which little can be added, 
the court below held that the affidavit was insufficient to pre- 
vent judgment, and in that conclusion we concur. If the heir 
were suing for her share this might be a good defense, but we 
fail to see how the rights of her lien creditor can be prejudiced 
by an agreement to which he was not a party and of which he 
had no notice. No secret agreement between the heir and the 
trustee could compel him to i*esort to the land for the coUectioi^ 
of his debt if under the decree he was entitled to take it out of 
the fund. The general rule is, that where a proceeding in par- 
tition results in a judicial sale of the land, the lien which had 
been created by one of the tenants is divested from the land, 
but continues on the money raised by the sale : Wright v. 
Vickere, AdmV, 81 Pa. 122 ; Reed v. Fidelity Ins. Co., 113 
Pa. 674. In making distribution the orphans' court recognized 
and applied this general rule, and awarded to the heir only what 
would remain of her share of the fund after payment of the 
record liens against her interest. By the decree, fairly construed, 
these were continued against, and were first payable out of the 
fund into which her interest in the land had been converted, 
and she had no authority to release the trustee from his duty 
to pay them. 



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COM. V. RODGERS. 287 

1898.] Opinion of the Court. 

But it is argued tlmt a decree of distribution directing the trus- 
tee to pay to an heir his share of the proceeds of sale in parti- 
tion proceedings after deducting therefrom the record liens 
against his interest, without ascertaining and specifying what 
the liens are, their amount, and to whom payable, is not such a 
decree as is contemplated by the Act of March 27, 1832, sec. 49, 
P. L. 206. It is argued with much force, that that form of 
decree casts on the trustee a responsibility from which he is 
entitled to be relieved; that it compels him, not only to ascer- 
tain what the liens are, but to take the risk of deciding all 
disputes between the heir and the creditor; whereas, if the 
creditors were required to come before the auditor or the audit- 
ing judge and prove their claims (as undoubtedly they may) a 
final adjudication could be made which would protect every- 
body. Let it be granted that the court might have pursued 
this course, still the trustee is not in a position to complain 
because it did not do so. The plaintiffs' lien was on record. 
Its validity and amount are not questioned. The trustee might 
have procured searches to be made and thus furnished the court 
the means to make a specific distribution. It is not alleged that 
he did so, and, presumably he did not. And, even if he did, 
the place to complain was in the orphans' court; but he neither 
excepted to the adjudication nor appealed. Nothing remained 
for him to do but to appropriate the money in accordance with 
it. If the lien creditor had been ignored in the distribution 
and the whole sum awarded unconditionally to the heir (as was 
done in Sutton's Estate (4 Kulp, 297), a different question 
would be presented. Having acquiesced in the decree which 
clearly recognized the rights of the lien creditor the trustee 
could not ignore him, and settle with the heir and then claim 
to be discharged from further liability. 

Judgment affirmed. 



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288 INS. CO. V. STORAGE CO. 

Syllabus — Statement of Facts. [6 Pa. Superior Ct. 



Western Massachusetts Mutual Fire Insurance Company, 
Appellant, v. Girard Point Storage Co. 

Contrctct — Lex loci— Conflict of laws — ConsiUutioruU law. 
If a citizen of Pennsylvania, by a contract validly made outside of its 
boundaries, incurs a liability, no law of this state, can under tlie constitu- 
tion of tlie United States, prevent his fulfilling that obligation, even by an 
act done within the state. 

Insurance — Foreign companies — Lex loci — Prohibitive Pennsylvania 
sUUutes. 

The issuance and delivery of insurance policies in Massachusetts 
makes the contract a Massachusetts contract to be governed by the laws 
of that state free from the taint of illegality by reason of the existence of 
penal or prohibitive legislation in Pennsylvania. Com. v. Biddle, 139 Pa. 
605, followed. 

Policies for property in Pennsylvania were issued in Massachusetts. 
These policies were canceled and the insured received a return premium. 
Held^ in a suit to recover assessments imposed for losses, etc., incurred 
by plaintiff company while the policies were in force, that an affidavit was 
insufficient which set up as a defense that ** the plaintiff being a foreign 
company had not prior to placing the insurance complied with the acts of 
assembly of Pennsylvania regulating the way in which foreign insurance 
companies should undertake the insurance of property in Pennsylvania.^' 

Argued Oct. 12, 1897. Appeal, No. 79, Oct. T., 1897, by 
plaintiff, from order of C. P. No. 1, Phila. Co., Mar. T., 1896, 
No. 189, refusing judgment for want of a sufficient affidavit of 
defense. Before Rice, P. J., Wickham, Beaver, Reedeb, 
Orlady, Smith and Porter, J J. Reversed. 

Rule for judgment for want of a sufficient affidavit of defense 
in an action of assumpsit upon two policies of insurance to 
recover assessments levied upon the insured for losses and ex- 
penses incurred by the company during the life of the policies. 
Before Bettler, J. 

The facts sufficiently appear in the opinion of the court. 

The court below discharged the rule for judgment. Plaintiff 
appealed. 

Error assigned was discharging the rule for judgment. 

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INS. CO. V. STORAGK CO. 289 

1898.] Arguments. 

Franci% S. Laws^ with him Sharp ^ Alleman^ for appellant — 
A contract as to its validity, nature, obligation and interpreta- 
tion is to be governed by the laws of the place of performance : 
Story on Conflict of Laws, sec. 280; Bank v. Hall, 150 Pa. 466 ; 
Perlman v. Sartorius, 162 Pa. 320 ; Shattuck v. Ins. Co., 4 Caff. 
(Mass.) 599 ; Todd v. Ins, Co., 11 Phila. 355. 

The mere fact that the subject-matter of the contract (the 
property insured) was located in Pennsylvania is not sufficient 
to change what is otherwise a Massachusetts contract into a 
Pennsylvania contract : Lamb v. Bowser, 7 Bissell, 315. 

John Hampton BameSy for appellee. — A corporation being a 
creature of law, has no existence outside of the jurisdiction 
which created it. One state may therefore prescribe the terms 
and conditions upon which business may be conducted in that 
state by corporations of another state : Paul v. Virginia, 8 Wall. 
168; List v. Com-, 118 Pa- 322. 

Making such a contract or policy of insurance as the present 
is a carrying on of the business of insurance in the state of 
Pennsylvania, even though the negotiations, circulars, etc-, may 
have been carried on through the mails and the policy delivered 
by mail: Com- v. Long, 1 C. C. 190; 6 Thompson on Corps, 
par. 7968 ; Heebner v. Ins. Co., 76 Mass. 131 ; Thwing v. Ins. 
Co., Ill Mass. 93. 

AU foreign corporations are prohibited from going into oper- 
ation in Pennsylvania without having first complied with the 
Act of June 7, 1879, P. L. 112, sec. 1, and Act of April 4, 1873, 
P. L- 20. 

Every policy, contract, or guaranty of a foreign fire insurance 
company which sliall not have complied with the above and 
other laws of Pennsylvania in regard to foreign insurance com- 
panies, is illegal and absolutely void. See Act of February 4, 
1870, sec. 1, P- L. 14, Pur. 105. 

This act is constitutional and such contracts are void : Arrott 
V. Walker, 118 Pa. 249 ; Com. v- Vrooman, 164 Pa. 806: Act 
of May 1, 1876, sec. 47, P. L. 66, Pur. 1057, which is a supple- 
ment to act of April 4, 1873, supra. 

No foreign insurance company which has not complied with 
the laws of Pennsylvania with regard to foreign insurance com- 
panies can recover in the courts of Pennsylvania on a contract 
Vol. VI— 19 



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290 INS. CO. V. STORAGE CO. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct. 

made iii violation thereof : Ins. Co. v. Bales, 92 Pa. 352 ; Thome 
V. Ins. Co., 80 Pa. 15 ; Ins. Co. v. Heath, 95 Pa. 333 ; Lasher 
V. Stimson, 145 Pa. 30. 

Opinion by Pobtbr, J., January 18, 1898: 

This is an appeal from the court below, discharging the rule 
for judgment for want of a suiBcient affidavit of defense. 

The plaintifE is a corporation organized under the la^vB of the 
state of Massachusetts. The defendant is a Pennsylvania cor 
poration, to whom two policies of fire insurance were issued 
by the plaintifE, covering property in Philadelphia. These poli- 
cies were alleged by the statement of claim and admitted by 
the affidavit of defense, to have been "issued and delivered 
to the defendant at Springfield, Massachusetts." The insur- 
ance was to cover the period from June 25, 1894, to June 25, 
1895. On April 25, 1895, the policies were canceled and the 
defendant received a return premium. On May 25, 1895, an 
assessment was sought to be imposed upon the defendant for 
losses and expenses incurred by the plaintiff company while the 
policies were in foi*ce. The affidavit of defense denies liability 
on the ground that : " the said plaintiff being a foreign insur- 
ance company, had not prior to the placing of the said insurance 
complied with the acts of assembly of the state of Pennsylvania 
regulating and directing the way and manner in which foreign 
insurance companies should undertake the insurance of prop- 
erty in the State of Pennsylvania." And " that the placing of 
the said insurance and the issuing of the said policies by the 
plaintiff on the property of the defendant situated in the State 
of Pennsylvania as aforesaid was contrary to the provisions of 
the said statute " and " avers that under such circumstances 
the plaintiff is not entitled to recover from the defendant the 
assessments," etc. 

It is not necessary to a decision of this case to quote the 
numerous provisions of the several acts of assembly. The pur- 
pose of the sj'Stem of legislation in Pennsylvania respecting fire 
insurance has been, to limit the business to corporations created 
under the laws of the commonwealth and to foi'eign corpora- 
tfons which have complied with certain expressed regulations. 

The objects of the legislation have been for revenue and to 
protect the citizens of the commonwealth from irresponsible and 



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INS. CO. V, STORAGE CO. Wl 

1898.] Opinion of the Court. 

unsupervised insurers. The methods of enforcing the legisla- 
tive provisions are by the imposition of punishment upon the 
pereons (principals or agents) who fail to regard the prohibi- 
tions ; by imposing personal liability on agents atttempting to 
represent foreign insurance companies not complying with the 
law, and by declaring void, contracts made in violation of the 
several acts. 

In the case now before us there is nothing to indicate that 
the plaintiffs were doing an insurance business in Pennsylvania. 
They had neither office nor agent within the commonwealth. 
The policies in the present case are admitted to have been " is- 
sued and delivered in Massachusetts." 

True, the property insured was located in Pennsylvania. 
This, however, does not in our opinion bring the contract of 
insurance within the prohibitions of the statutes. The illustra- 
tion used in Story on Conflict of Laws, sec. 278a, is applicable. 
He sayB : " So a policy of insurance executed in England on a 
French steamship for the French owner on a voyage from one 
French port to another, would be treated as an English con- 
tract, and in cases of loss the debt would be treated as an En- 
glish debt. Indeed all the rights and duties and obligations 
growing out of such a policy would be governed by the law of 
England and not by the law of France, if the laws respecting 
insurance were different in the two countries." 

The issuance and delivery of the policies in Massachusetts 
made the contract a Massachusetts contract to be governed by 
the law of Massachusetts, free from taint of illegality by reason 
of the existence of penal or prohibitive legislation in Pennsyl- 
vania. To hold otherwise would be to give to these acts ex- 
tmterritorial effect, and to deprive the citizen of his constitu- 
tional right to make such contracts as he may desire beyond the 
boundaries of Pennsylvania: Allgeyer v. I^ouisiana, 165 U. S. 
578. 

In reaching the conclusion herein expressed we are guided by 
the opinion of the Supreme Court in the case of Commonwealth 
V. Biddle, 139 Pa. 605. It is true that there the case required 
only a construction of the penal acts. The expressions used, 
however, have direct application to the present case : " It may 
be readily conceded that an act which should attempt to prevent 
a non-resident owner of property in this state or a resident 



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292 INS. CO. V. STORAGE CO. 

Opinion of the Court. [6 Pa. Saperior Ct. 

owner not at the time within its territory, from insuring his 
property in any manner lawful in the place of contract, would 
be void as extra-territoriaL So, also, it may be conceded that 
if a citizen of Pennsylvania has, by a contract validly made out- 
side of its boundaries, incurred a liability, no law of this state 
can, under the constitution of the United States, prevent his 
fulfilling that obligation, even by an act done within the state. 
But, beyond the limitation imposed by the constitution, the 
power of the legislature to declare any acts done within the ter- 
ritory of the state unlawful or criminal cannot be questioned, 
and all considerations of wisdom or policy, of hardship, of diflS- 
culty or even impossibility of general enforcement, must be ad- 
dressed to the law-making branch of the government." 

The case of McBride v. Rinard, 172 Pa. 648, has been cited, 
as expressing a conclusion adverse to that reached by us in the 
present cause. That, however, was an action brought to hold 
a local agent of a foreign corporation personally liable as prin- 
cipal, and the remark contained in the opinion palpably refers 
to companies having an agency within the state. It cannot 
apply, in our opinion, to companies who have never come within 
the boundaries of the commonwealth, who have neither office 
nor agent here and who have but issued and delivered policies 
in another state in a particular instance to a citizen of Pennsyl- 
vania. 

Neither precedent nor authority can be found in the cases 
cited by the defendant for holding that the transaction in this 
case comes within the statutes forbidding the doing of business 
in Pennsylvania. 

The assignments of error are sustained ; the judgment of the 
court below is reversed, and the record is remitted with direc- 
tion to the court below to enter judgment against the defend- 
ants for such sum as to right and justice may belong unless 
other legal or equitable cause be shown to the said court why 
sucl^ judgment should not be so entered. 



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MYTON V. WILSON. 298 

1898.] Syllabus— Assignment of Errors. 



Benner R. Myton v. Jas. A. Wilson et al., Appellants. 

EasemetU — Way — Reservation of moiety of spring— Access thereto. 

A reservation in a eonyeyance of one half a spring and a moiety of the 
spot of ground whereupon it arises implies access to the spring in some 
manner for the purpose of taking water; but with an existing channel 
natural or artificial conducting the water, the parties must, in the absence 
of any provision for a different mode of conveyance, be understood as con- 
templating the use of such channel for that purpose. No implication 
arises that will warrant the grantor or his successors in title, in laying a 
pipe over grantee^s lands. 

Argued October 19, 1897. Appeal, No. 11, March T., 1897, 
by defendants, from judgment of C. P. Huntingdon Co., Dee. T., 
1895, No. 20, on verdict for plaintifE. Before Rice, P. J., 
WiCKHAM, Beaveb, Rebdeb, Oblady, Smith and Pobteb, J J. 
Affirmed. 

Trespass. Before Bailey, P. J. 

The facts sufficiently appear in the opinion of the court 

Verdict for plaintiflf for ^.00. A certificate having been 

filed that the value of the right or interest involved was less 

than $1,000, defendant appealed. 

Errors assigned were (1) In its answer to defendants* second 
point, as follows : " 2. The deed of the executor of William John- 
ston, Esquire, to George Rung in 1824 for the adjoining and re- 
maining portion of his farm under a power in his will to sell 
real estate vested in George Rung the title to one undivided 
half of the spring and spot of ground on which it rises as an ap- 
purtenance and constituent part of the tract of land therein de- 
scribed. Answer : Refused." (2) In its answer to defendants' 
fifth point, as follows: "5. If the jury believe that Thomas F. 
Stewart and James Myton, predecessors in the title of Benner R. 
Myton, claimed only one fourth each of the spring as testified 
by Bilger Shipton and John B. Frazier, Benner Myton is es- 
topped and cannot claim that James A. Wilson is a trespasser in 
entering upon the other undivided half, under a claim of right 
Anwoer: This point is refused as not material." (3) In charg- 



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294 MYTON r. WILSON. 

Assignment of En-ors. [6 Pa. Superior Ct. 

ing the jury as follows, to wit: "There is no phjrsical connec- 
tion of the spring with the land conveyed to Rung ; there is no 
evidence that William Johnston used the spring as an incident 
or appurtenance to this land ; or that he in any manner con- 
nected the one with die other in their use." (4) In instructing 
the jury as follows : "An appurtenance is defined to be ' a thing 
belonging to another thing as principal and which passes as in- 
cident to the particular thing.' It must be necessary to the 
full enjoyment of the thing gmnted, and in use at the time of 
the grant as incident thereto. In this state it is held that what 
is necessary to the enjoyment of the thing granted passes with 
it as an appurtenance, without express words ; but what is merely 
convenient to its enjoyment does not." (5) In instructing the 
jury as follows : " The property now owned by Wilson had been 
occupied by William Johnston and the several intermediate 
owners without any connection whatever between it and the use 
of the spring as an attachment to it. For eighty-five years each 
successive owner enjoyed the use of the water flowing from this 
spring by reason of his right thereto as riparian owner. There- 
fore, it could not at the time of the original grant, have been 
actually necessary to the enjoyment of the land now owned by 
the defendant Wilson. There was no act of William Johnston, 
no eidpress words in the deed of his executors to Rung convey- 
ing the interest of Johnston in the spring, or the water flowing 
from it, and we are of opinion that the general words conveying 
the ' appurtenances thereto belonging ' do not include the spring ; 
and therefore the interest of Johnston in it is not now owned by 
Wilson, and it is our opinion that he had no right to enter the 
land of the plaintiff, intervening between his land and the spring 
for the purpose of laying pipe to conduct water therefrom. It 
is not material that Johnston must have intended to use the 
water from the spring or convey it to his land as argued by the 
learned counsel for the defendant. The fact remains that he 
did not so use it, and that there was no connection whatever 
between the use of the spring and the use of the land until the 
defendant laid these pipes in 1895, except the use he was en- 
titled to of the water flowing from the spring down its natural 
channel by virtue of his being the owner of lands abutting on 
that channel. We feel bound to instruct you that the defend- 
ant had no right to lay down the pipes on the land of the plain* 



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MYTON V. WILSON. 295 

1898.] Assignment of En'oi-s — Arguments. 

ti£E, and that the plamtiflf may recover in this action, whatever 
damage he has sustained by reason of the defendant's entry on 
his land. If we are in error in our view of the law we feel grati- 
fied to know that such error may be corrected by a higher court 
on appeal." (6) In instructing the jury as follows: " The only 
question that remains for you to determine is the amount of 
damage the plaintifiE is entitled to under the evidence." (7) In 
charging the jury as follows : '* You will determine the amount 
of damage to compensate him for the injury done and render 
your verdict accordingly." (8) In charging the jury as follows : 
" The only question that remains for you to determine is the 
amount of damage the plaintiff is entitled to under the evi- 
dence." 

Charles Q: Broton and H, R. Waite^ for appellants. — A right 
reserved in a deed and spread on record is in the chain of title to 
the lands upon which the right is reserved, and is constructive 
notice to the persons who subsequently purchase the said lands : 
Bombaugh v. Miller, 82 Pa. 203; Hayes v. R. R. Co., 61 N. J. 
Eq. 345. 

To the same effect is the case of Whitney v. R. R. Co., 77 
Mass. 369 ; 71 Am. Dec. 716. 

An easement is not presumed to be a mere personal right or 
in gross, when it may be fairly regarded as appurtenant to some 
other estate : Gould on Waters, sec. 301 ; Dennis v. Wilson, 
107 Mass. 591. 

Mere nonuser for any length of time of an easement created 
by express grant, will not destroy or extinguish it. There must 
be some conduct on the part of the owner of the servient tene- 
ment, adverse to and in defiance of the easement, and the non- 
user must be the result of it and must continue for twenty-one 
years: Dill on Board of Education, N. J. 10, L. Rep. Ann. 
276; Hall v. McCaughey, 51 Pa. 43; Lathrop v. Eisner, 93 
Mich. 699. 

W. H. Woods and A. 0. Furst, with them J. S. Woods, W. 
McK, Williamson and T, W. Mi/ton^ for appellee. — But aside 
from this, an adverse user and possession of the servient estate 
coupled with nonuser by the dominant, when continued for the 
time of the statute of limitations, will destroy an easement or, 



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296 MYTON v. WILSON. 

Arguments— Opinion of the Couit. [6 Pa. Saperior Ct. 

to speak more accumtely, will raise a presumption of a release: 
Jemiison v. Walker, 77 Mass. 423 ; 4 Leading Cases Am. Law 
on Real Property, 156. 

It is confidently submitted : 

1. That the estate left in William Johnston, Sr., the grantor, 
under the deed of August 17, 1810, did not create an easement 
of any description. It is to be regarded as an estate remaining 
in him precisely as if he had never made the conveyance of the 
eighty-one acre tract. 

2. That William Johnston, retained such interest in the spring, 
and the water flowing therefrom, did not make the tract of land 
conveyed by him, a tenement servient to any other tenement or 
tract of land. 

3. That there was no connection or annexation of his estate in 
the spring to the tract of land, the title to a portion of which 
became vested in appellant. 

4. That there was no grant made by William Johnston, or 
any successor in title, by which his estate in the spring was con- 
veyed or annexed to appellant's land. 

6. That there never has been any prescriptive use of the said 
spring for the advantage or benefit of appellant's lands. 

6. That appellant, in entering forcibly into the close oi the 
plaintiff, breaking the soil, digging a trench, laying a pipe 
therein, and taking the water from the spring in the interior of 
plaintiff's tract, was guilty of a trespass, and was liable to the 
plaintiff as a trespasser. 

Opinion by Smith, J., January 18, 1898 : 

The trespass of which the plaintiff complains was the laying 
of a pipe through his land, by the defendant, for the conveyance 
of water from a spring thereon to the defendant's land adjacent. 
The defendant contends that the right to do this is an easement 
appurtenant to his land. 

William Johnston, in 1810, conveyed part of a tract of land 
to his sons, William and John, and by his will, executed later, 
authorized his executors to sell the residue. The plaintiff holds 
under the deed and the defendant under the will. The deed 
contains the following stipulation : " Provided always, never- 
theless, and it is hereby declared to be the express intent and 
meaning of the parties to these presents, that the right to one 



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MYTON V. WILSON. 297 

I.} Opinion of the Court. 

moiety or half part of a certain spring which rises on the above 
described land, opposite to and about ten perches east south 
east of a red oak, comer of the line, south eight degrees west 
twenty-four perches, and which crosses the said line, south eight 
degrees west twenty-four perches passing in a northwesterly 
course between the lines, south thirty-four degrees east twenty- 
four perches to a still house and south thirty degrees west 
eighty-six perches to a white oak, and the free use, liberty and 
privilege of the same shall still subsist in and continue and re- 
main unto the said William Johnston, esquire, his heirs and 
assigns. To have and to hold the said above described land 
hereby granted, or mentioned, and intended so to be with the 
appurtenances unto the said William Johnston, Junior, and the 
said John Johnston, their heirs and assigns, as tenants in com- 
mon, and not as joint tenants, to the only proper use, benefit 
and behoof of them the said William and John and their re- 
spective heirs and assigns forever. Excepting, nevertheless, 
the right to one half part of said spring and one moiety of the 
spot of ground whereupon it arises, which the said William 
Johnston, esquire, expi'essly reserves, as aforesaid, to himself, 
his heirs and assigns forever." 

The defendant contends that the water right thus described 
became appurtenant to the land retained by the grantor, and 
passed to his successors in title. As the case is presented, how- 
ever, a determination of this point is unnecessary. First, there 
is a question as to the identity of the spring described with that 
reached by the defendant's pipe. Next, it appears that a natu- 
ral outlet or channel existed, by which the water of the latter 
spring was conveyed to the defendant's land, and there is no 
allegation of interference therewith by the plaintiff. If the 
spring to which the defendant laid his pipe was not the one 
mentioned in the stipulation, it is clear that the pipe was laid 
without right. If it was that spring, the first question to be 
considered is whether the stipulation, if creating a right appur- 
tenant to the defendant's land, authorized him to lay the pipe. 
Access to the spring in some manner, for the purpose of taking 
water, it undoubtedly implied. But with an existing channel, 
natural or artificial, conducting the water, the parties must, in 
the absence of any provision for a different mode of conveyance, 
be understood as contemplating the use of such channel for that 



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298 MYTON v. WILSON. 

Opinion of the Court. [6 Pa. Superior Ct. 

purpose. There is no express provision for a departure from 
this channel, or for the laying of a pipe through the land con- 
veyed ; while the description, beginning with the spring, follows 
with courses and distances that apparently refer to its outlet, as 
if for the purpose of including it. Under the terms of the 
stipulation, therefore, the grantor had a right to so maintain the 
existing channel as to keep it adequate for the purposes of the 
stipulation. He had no right to construct a channel elsewhere. 
If such a right can be implied, it is without limit, and the 
grantor might change the channel as often as he desired. Such 
a construction would give him an unreasonable dominion in the 
pi^emises ; one beyond evident need and beyond the apparent 
intention of the parties. To say that he had a riparian right to 
the flow through the natural channel, independent of the stipu- 
lation, does not meet the case. This right was limited to the 
natural flow from the spring, which might have been less than 
the quantum stipulated for. The stipulation gave the right to a 
fixed proportion of the spring water, and must be construed as 
contemplating its conveyance by the existing channel, with a 
right to make such improvement or enlargement as might be 
found necessary to its sufliciency. This was the extent of the 
defendant's right, and the substitution of another mode of con- 
ducting the water through the plaintiffs land without his con- 
sent was unwarranted. Since this change in the manner of its 
enjoyment was without authority, the question whether the 
water right was appurtenant to the defendant's land becomes 
immaterial. 
Judgment aj£rmed« 



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ICE CO. V. PHILA. 299 

l^llabas— Statement of Foots. 



Commercial Ice Company, Appellant, v. City of Phila- 
delphia. 

Public officers— 'Necessary furnishing of public office. 
The furnishiag of ice is not one of the ** things necessary for the proper 
furnishing of the offices of the register of wills and orphans^ court.^' 

Argued Dec. 15, 1897. Appeal, No. 170, Oct. T., 1897, by 
plaintifE, from judgment of C. P. No. 4, Phila. Co., June T., 
1897, No. 1325, in favor of defendant on case stated. Before 
WiCKHAM, Beavee, Rbeder, Oblady, Smith and Portee, J J. 
Affirmed. 

Case stated. Before Arnold, P. J. 

1. The plaintiff, a corporation duly organized under the laws 
of the state of Pennsylvania, engaged in the business of selling 
ice, wholesale and retail, in the city of Philadelphia and vicinity, 
at the special instance and request of the register of wills for 
the county of Philadelphia, furnished ice for use in the offices 
of the register of wills and in the rooms of the orphans' court 
for said county from January 1, 1895, to June 30, 1897. 

2. The said register of wills is a county officer of the county 
of Philadelphia, and it was and is his duty, under an act of 
assembly of the state of Pennsylvania, to provide all things nec- 
essary for the proper furnishing of the offices of the register of • 
wills and the rooms of the orphans' court of said county. 

3. The value of the ice so furnished by plaintiff for this pur- 
pose during this period was $573.36. 

4. Said ice so furnished and services rendered by the said 
plaintiff were in all respects satisfactory to the said register of 
wills, and bills for the same were approved but were not paid by 
him as presented from time to time because no specific appro- 
priation had been made for the same by the councils of the city 
of Philadelphia, and the general appropriation made by the said 
council to defi-ay the incidental expenses of the offices of the 
register of wills had been exhausted. 

5. It is agreed between the plaintiff and the defendant that 
if the court be of opinion, upon the above statement of facts, 



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BOO ICE CO. V. PHILA. 

Statement of Facts— Arguments. [6 Pa. Superior Ct. 

that the plaintiff is entitled to judgment against the defendant, 
judgment shall be entered in its favor for $573.36} with interest 
thereon from June 30, 1897. 

Either party reserving the right of appeal. 

Judgment was entered on case stated in favor of defendant 
in the foUowmg opinion by Arnold, P. J. 

Payment of this claim by judgement of court is forbidden by 
the Act of April 21, 1858, sec. 5, P. L. 385, which provides that 
no debt or contract shall be binding on the city of Philadelphia, 
unless authorized by law or ordinance and an appropriation suffi- 
cient to pay the same has been previously made by councils. 

In this case an appropriation was made to defray incidental 
expenses, but it has been exhausted without paying the plaintiff. 
The claim is now made for the years 1895 and 1896 and half of 
1897. While ice may be considered a necessity, yet we do not 
consider it among the " things necessary for the proper furnish- 
ing " of a public office, such as may be paid for by mandamus. 
It has always been paid for out of an appropriation for inciden- 
tal expenses made by the city councils, who may if they see fit, 
ratify the plaintiff *8 claim and order the payment thereof. Judg 
ment for defendant 

Error oiiigned was entering judgment in favor of the de- 
fendant and in not entering judgpnent in favor of plaintiff on 
case stated. 

Howard TF. Page^ of Page^ Allinson ^ Penrose^ for appellant. 
—The Act of April 21, 1858, P. L. 385, does not apply to 
county officers. 

The distinction between contracts made by city and county 
officers is recognized : Bladen v. Phila., 60 Pa. 464 ; Wright v. 
Phila., 8 W. N. C. 141 ; Smith v. Phila., 5 Phila. 1. 

A careful examination of the case in which recovery was re- 
fused upon the ground that case fell within the provision of the 
act of April 21, 1858, will show that they are instances in which 
contracts were made by a city as distinguished from a county 
officer. 

Even admitting that the fifth section of the act of 1858 ap- 
plied, the act was not violated, as it appears from case stated 



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ICE CO. V. PHILA. aOl 

1898.] Argaments. 

that general appropriations were made from time to time by 
councils to defray the incidental expenses of the office of the 
register of wills, and that the only reason tb^t plaintiff's bills 
were not paid as presented, was that said appropriations had 
been otherwise exhausted. • The case, therefore, would seem to 
be analogous to McGlue v. Phila., 10 Phila. 848, and such di- 
yersion could hardly bar his claim under the principle laid down 
in Parker v. Phila., 92 Pa. 401. 

The case stated contains an express averment that it was the 
duty of the register of wills under an act of assembly, to pro- 
vide all things necessary for the proper furnishing of the offices 
of the register of wills and the rooms of the orphans' court. 

The word ** proper " has been defined as synonymous with "fit, 
suitable, appropriate:" Century Dictionary, title "proper," 
par. 3. 

The word " furnish " means to supply, or provide, or equip 
with anything necessary or useful : Webster's Dictionary. 

" To furnish " means " to provide with what is proper or suit- 
able, supply with anything ; fit up or fit out, equip, as to fur- 
nish a house, a library or an expedition: " Century Dictionary, 
title, " furnish," par. 8. 

" Furniture in general includes that with which anything is 
furnished or supplied to fit it for operation or use. That which 
fits or equips for use or action ; outfit, equipment, as the fur- 
niture of a war horse, of a microscope, table furniture : " Cen- 
tury Dictionary, par. 8. 

The phrase " furniture of ship" ex vi termini, includes every- 
thing with which a ship requires to be furnished to make her 
seaworthy : Winfield's Adjudged Words and Phi-ases, 279, cit- 
mg Weaver v. Owens, I Wallace, Jr., U. S. C. C. 859, 869. 

Provisions for the use of the crew are covered by a policy on 
the "ship and furniture:" Stroud's Judicial Dictionary, 816, 
citing Brough v. Whitmore, 4 T. R. 206 ; Hill v. Patton, 8 
East, 878. 

" The word furniture relates ordinarily to movable personal 
chattels, but is very general in meaning and application, and 
the meaning changes so as to take the color or to accord with 
the subject to which it is applied : " Anderson's Law Diction- 
ary, 488, citing Fore v. Hibbard, 68 Ala. 412. 

It may not be amiss to remark that the words of the case 



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802 ICE CO. v. PHILA. 

Arguments — Opinion of the Court. [6 Pa. Superior Ot. 

stated are not that the register of wills is authorized to pur- 
chase office furniture but to provide " all things necessary for 
the proper furnishing," a phrase general in its character and 
equivalent to all things necessarj'' for the proper equipment of 
the offices for the use intended. If ice water is a necessity, as 
admitted in the opinion of the court below, it is difficult to see 
how rooms intended for use by a great multitude of people at 
all times and under all conditions, could be properly equipped 
without it It is just as much one of the necessary expenses 
of the administration of justice within the language of Judge 
Sharswood in Bladen v. Phila., supra, as telephone service, 
stationery, fuel or janitor service, and the plaintiff's claim is as 
much entitled to the protection of the court. 

E, Spencer Miller^ with him John X. Kinsey^ for appellee. — 
It may be reasonable to infer that the ice in question was pur- 
chased to cool drinking water. This is a form of refreshment 
which may be a grateful relief in either winter or summer. It 
can hardly be regarded as indispensable, however. 

No authorities appear to exist upon the questions raised, 
where the commodity purchased was thus one of refreshment 
rather than necessity. The absence of authority in support of 
such a claim would seem to be a sufficiently strong negative 
assurance to equal an authority for the defense. 

Opinion by Porter, J., January 18, 1898 : 

The plaintiff at the request of the register of wills for the 
county of Philadelphia furnished ice for use in the offices of the 
register of wills and in the rooms of the orphans' court for said 
county from January 1, 1895, to June 30, 1897, and now sues 
the city of Philadelphia for 1573.36, the amount of the bill. 

The register of wills is a county officer and under legislative 
enactment, is required to provide " all things necessary for the 
proper furnishing of the offices of the register of wills and the 
rooms of the orphans' court of said county," as set forth in 
the case stated. 

We do not think it necessary here to determine whether the 
plaintiff, in order to a recovery against the city of Philadelphia, 
should be required to exhibit an ordinance and appropriation 
by the ci<y councils giving authority to contract the debt. 



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ICE CO. V, PHILA. 303 

1898.] Opinion of the Couit. 

The real question is whether the furnishing of ice is one of 
the " things necessary for the proper furnishing of the offices of 
the register of wills and the rooms of the orphans' court." 

To reverse the action of the court below would require us to 
determine judicially that the providing of ice is necessary for 
such furnishing. This we are not prepared to do. We con- 
strue the language of the act to cover only those things which, 
if absent, would obstruct or prevent the proper conduct of the 
business of the offices of the register of wills and of the said 
courts. While the use of ice may have come to be so prevalent 
as to make it to many people more than a luxury, we cannot 
hold that it is necessary to a proper furnishing of a public office 
or court rooDi. 

The city of Philadelphia has in the past periodically appro- 
priated a sum to incidental expenses, as appears by the case 
stated, out of which such claims as the present have been paid. 
The appropriation for the period during which the plaintiflf's 
claim was accruing, was exhausted before the presentation of 
the claim. Such a fund may with propriety be applied in part 
to the maintenance of the court rooms and register's offices with 
a due regard to personal convenience as well as to necessity. In 
the present case we are compelled to construe the language of 
an act of assembly which is too narrow in its terms to sustain 
the plaintiff's contention. 

The judgement of the court below is therefore affirmed. 



M. Zineman & Bro. v. William Harris, Appellant. 

Contract--Resci98ionfor frauds Evidence— Province of the court. 

The trial judge is justified in excluding from the jury the question of 
alleged fraud when the testimony of the witness called to corroborate the 
defendant was vague and unceitain and where all the testimony taken to- 
gether failed to answer the test of being clear, precise and indubitable. 

Contract — Rescission for fraud — Requisite proof. 

In order to resciqd a contnict on the ground of fraudulent representa- 
tions by the seller, it must be established by clear and decisive proof that 
the alleged representation was made in regard to a material fact ; that it 
was false; that the maker knew that it was not ti*ue; that he made it in 
order to have it acted on by the other party to his damage and in ignor- 
ance of its falsity and with a reasonable belief that it was true. 



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804 ZINKMAN v. HARRIS. 

Syllabus — Charge of Court. [6 Pa. Superior Cfc. 

Province of court and jury^QuesUon of reasonable time. 
The question of what is reasonable time or undue delay, when the facts 
are undisputed, is a question of law to be determined by the court. 

Argued Dec. 14, 1897. Appeal, No. Ill, Oct T., 1897, by 
defendant, from judgment of C. P. No. 4, Phila. Co., June T., 
1894, No. 1552, on verdict for plaintiff. Before Rice, P. J., 
WiCKHAM, Beaver, Reedbr, Orlady, Smith and Por- 
ter, JJ. AflBrmed. 

Assumpsit for goods sold and delivered. Before Thayer, P. J. 

It appears from the evidence that plaintiffs are manufacturers 
of spectacles, and had devised an outfit consisting of an instru- 
ment to determine the proper spectacles, and spectacles num- 
bered to correspond with marks on the instrument. The 
defendant a druggist without experience in dealing in specta- 
cles alleged that he had ordered goods of the plaintiffs on their 
representation that they had sold such outfits to another drug- 
gist in a similar neighborhood to the defendant's and that that 
druggist liad sold large quantities of them. 

The court, Thayer, P. J., charged the jury as follows : 
[This is a suit brought to recover the price of certain goods 
sold and delivered. The defendant relies upon an alleged re- 
scission of the contract on his part, which he attempts to justify 
by proof that he was induced to buy them by misrepresentation 
made to him by the plaintiffs, who sold them. The alleged 
misrepresentation consisted, according to the defendant's state- 
ment, in the plaintiff's representing that he had sold similar 
goods to Mr. Ogden. The evidence is that although the plain- 
tiff had not sold precisely these goods to Mr. Ogden, he had 
sold him somewhat similar goods — smoked eyeglasses it turned 
out to be.] [1] [At any rate, after receiving the goods and keep- 
ing them, as the defendant did, from the 17th of March to the 
28th of June, it was too late for him then to rescind the con- 
tract upon such an allegation as that. If he intended to re- 
scinci the contract he ought to have acted sooner. If he had 
returned them immediately, or within a reasonable time, after 
receiving the goods, there might have been at least some color 
for such a defense. But as matter of law, I instruct you that 
his offer to return the goods was entirely too late, and there- 
fore he is responsible to the plaintiffs.] [2] 



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ZINEMAN V, HARRIS. »05 

1898.] Verdict— Opinion of the Court. 

Verdict and judgment for plaintiff for $88.25. Defendant 
appealed. 

Errors assigned were (1, 2) portions of the judge's charge, 
reciting same. 

IF. 8, Ronet/j for appellant. — There being a mistake of fact 
material to the contract it is void : 2 Kent's Com. (18th ed.), 
, 477 ; Pollock on Contracts, 441 ; Fink v. Smith, 170 Pa. 124. 

These misrepresentations constituted a fraud. They come 
fully up to the standard laid down in Brown v. Eccles, 2 Pa. 
Superior Ct. 192. 

There was no assent of two minds meeting on common ground : 
Harding v. Lloyd, 8 Pa. Superior Ct. 298. 

An effort was made to return the goods as soon as the fraud 
was discovered : Hollingsworth on Contracts, 183 ; Lawson on 
Contracts, sec. 249. 

Irving JE. Zeiyler^ for appellees. — The right to rescind a con- 
tract must be exercised within a reasonable time after the breach. 
What is such a reasonable time is for the court : Morgan v. 
McKee, 77 Pa. 228. 

The act of the defendant in opening the package and selling 
therefrom, was such that rescission could not be made. 

Opinion by Beaver, J., January 18, 1898 : 
The contract in this case was in writing. It was an order to 
tlie plaintiffs signed by the defendant for certain goods which 
were actually delivered, which the defendant accepted and part 
of which he sold. He undertook to rescind the contract, on the 
ground that it was induced by representations which he alleges 
were false and fraudulent. When this action was brought by 
the plaintiffs to recover the value of the goods sold, the fraud 
80 alleged was set up as a defense to its payment. 

Two assignments of error cover the entire charge of the court 
to the jury, in which the court instructed the jury that the de- 
fendant's offer **to return the goods was entii-ely too late and, 
therefore, he is responsible to the plaintiffs." The charge is 
very brief. No reasons are given for the conclusions reached 
by the trial judge and we are, therefore, left to gather them from 
the testimony as it was developed in the trial. 
Vol. VI— 20 



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806 ZINEMAN v. HARRIS. 

Opinion of the Couit. [6 Pa. Saperior Ct 

If no fraud was practiced upon the defendant by the plain- 
tiffs, the conclusion reached by the trial judge is undoubtedly 
correct. The goods were sold on the 15th day of March, 1894, 
and were returned or offered to be returned on the 28th of June 
following, the defendant having in the meantime sold some of 
the goods and. In order to restore the status quo, having pur- 
chased from other persons what was sufficient, in his opinion, to 
make good the amount sold. , 

The question of " what is a reasonable time or undue delay, 
when the facts are not disputed, is, as is well settled, a ques- 
tion of law to be determined by the court : " Leaming v. Wise, 
73 Pa. 173; Morgan v. McKee, 77 Pa. 228. 

If the contract, however, were based upon a fraud practiced 
upon the defendant, he could rescind it within a reasonable 
time, after the discovery of the fraud ; and, if his testimony is 
to be believed, he rescinded the contract and offered to return 
the goods immediately after the discovery of what he alleged to 
be the fraud practiced upon him by the plaintiffs. It is mani- 
festly certain, therefore, that the trial judge in the court below 
eliminated the question of fraud entirely from the case. Was 
he justified in so doing? It has been very often held by the 
Supreme Court and this court that ^' when the execution of an 
instrument has been obtained by means of a fraud or where 
there has been an attempt to make a fraudulent use of the instru- 
ment in violation of a promise or agreement made at the time 
the instrument was signed and without which it would not have 
been executed, parol evidence could be given to prove the fraud, 
though it contradict the instrument ; " but in such a case ^^ the 
evidence must be clear, precise and indubitable — not indubitable 
in the sense that there must be no opposing testimony but in 
the sense that it must carry a clear conviction of its truth : " 
Honesdale Glass Co. v. Storms, 125 Pa. 268, and numerous 
cases therein cited. 

Admitting that the representations complained of amounted 
to a fraud of which the law will take cognizance, was the evi- 
dence of it sufficient to be submitted to the jury? We think 
not. It was sufficient in quantity, having the two witnesses 
necessary to establish the fraud ; but, after a careful reading of 
all the testimony upon the subject, we are clearly of the opinion 
that the witness who was called to coiToborate the defendant 



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ZINSMAN V. HARRIS. 807 

1898.] Opinion of the Court. 

was yague and uncertain in his testimony ; and, taking all of 
the testimony upon the subject together, it fails to meet the 
requirements herein set forth. Whether these considerations 
influenced the trial judge in failing to submit to the jury the 
question of fraud, we cannot, of course, determine. It may be 
that other considerations moved him. 

In Southern Development Co. v. Silva, 125 U. S. 247, it was 
held that ^' In order to rescind a contract for the purchase of 
real estate on the ground of fraudulent representation by the 
seller, it must be established by clear and decisive proof that 
the alleged representation was made in regard to a material fact; 
that it was false ; that the maker knew that it was not true ; 
that he made it in order to have it acted on by the other party 
and that it was so acted on by the other party to his damage 
and in ignorance of its falsity and with a reasonable belief that 
it was true." The rule is not essentially different as to personal 
property. Were the representations as to the sale to Ogden of 
a material fact? Admitting that the defendant acted upon 
those representations, did he do so to his detriment or damage ? 
These are questions which naturally suggest themselves as legiti- 
mately raised by the evidence but which need not be definitely 
answered, in view of the reasons heretofore given which may 
have influenced the court below in withholding the question of 
fraud from the jury and which, in our opinion, wad a sufficient 
justification for so doing. 

The judgment is affirmed. 



Samuel P. Ferree, trading as Street Railway Advertising 
Company, Appellant, v. Samuel Young. 

Practice, Superior Court — Refusal of judgment on affidavit. 

The appellate couits will not review the action of the courts below in 
discharging a rule for want of a sufficient affidavit of defense unless it be 
a veiy plain case of error of law. 

Practice, C, P.— Sufficiency ofaffidarnl ailegxng fraud. 
An affidavit is sufficient which alleges representations which were in 
effect fraudulent, made by plaintiff for the purpose of inducing the defend- 
ant to execute a contract and a rescission of alleged contract upon discov- 
ery of the alleged fi*aud. Such affidavit raises questions of fact which 
cannot be determined by an appellate court. 



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808 FERREE v, YOUNG. 

Statement of Facts— Opinion of the Qomt. [6 Pa. Superior Ct. 

Argued Dec. 15, 1897. Appeal, No. 156, Oct. T., 1897, by 
plaintifif, from order of C. P. No. 2, Phila. Co., June T., 1897, 
No. 686, discharging rule for judgment for want of a sufficient 
affidavit of defense. Before Wickham, Beaver, Reedbr, 
Orlady, Smith and Porter, JJ. Affirmed. 

Rule for judgment for want of a sufficient affidavit of defense. 

The plaintiff claimed on a conti'act for advertising in street 
cars the sum of f 112.50. The court below discharged the rule 
for judgment for want of a sufficient affidavit of defense, filing 
no opinion. Defendant appealed. 

Error assigned was to the order of the court discharging the 
rule. 

C, F. Gummey^ Ji\^ for appellant. — The principle involved in 
this case has already been decided by this court in Hand v. 
Russell, 1 Pa. Superior Ct. 165. A case almost identical with 
the one under discussion is Hallowell v. Lierz, 171 Pa. 577. 

Wm, H. Woodj for appellee. — Where the positive averments, 
considered with reference to the written conti'act, show that the 
oml agreement induced the signing of the written one, the affi- 
davit is sufficient : Keough v. Leslie, 92 Pa. 424. 

Plaintiff could not repudiate the fraud and yet retain thd 
benefit of the conti-act: Jones v. Bldg. Assn., 94 Pa. 215; Meyer- 
hoff V. Daniels, 173 Pa. 555. 

An order refusing judgment for want of a sufficient affidavit 
of defense, will only be reversed in a very plain case of error in 
law: Radcliffe v. Herbst, 135 Pa. 568; Ins. Co. v. Confer, 158 
Pa. 598 ; Paine v. Kindred, 163 Pa. 638. 

Opinion by Smith J., January 18, 1898 : 

The plaintiff appeals from the decree of the court below dis- 
charging a rule for judgment for want of a sufficient affidavit 
of defense. This court has followed the rule of the Supreme 
Court in this class of appeals : " It must be a very plain case of 
error in law, if we sustain appeals in such cases as this, from 
the decree of the common pleas discharging the rule : " ^tna 
Ins. Co. V. Confer, 158 Pa. 598. The affidavit of defense avers, 



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FRRREE V. YOUNG. 809 

1898.] Opinion of the Court. 

that the plaintiff's agent procured the defendant to advertise, 
on the representation that the plaintiff had room in the street 
cars for just one coal advertisement, and only one, and that if 
the defendant would place an advertisement with the plaintiff 
no other coal advertisement would be placed in the cars during 
the defendant's contract. The affidavit further avers that the 
defendant relied upon this assurance and was induced thereby 
to sign the contract; that the plaintiff, notwithstanding the rep- 
resentation and promise, put the defendant's advertisement with 
those of other coal dealers in the same cars ; and that the defend- 
ant notified the plaintiff, as soon as he could do so, to remove 
his advertisement, as it was obtained through fraud and mis- 
representation, and he would not pay for it. The affidavit is 
expanded with the elaborate phraseology frequently employed 
in those instruments, but we give the substance. The learned 
court refused to declare the affidavit insufficient, and we are 
therefore asked to hold that this ruling presents '' a very plain 
case of en*or in law," which calls for correction. This we can- 
not do. The affidavit alleges representations which were in 
effect fraudulent, made by the plaintiff's agent for the purpose 
of inducing the defendant to execute the contract, and a rescis- 
sion of the alleged contract upon discovery of the alleged fraud. 
This raises questions of fact which cannot be determined by an 
appellate court. 

ITie decree discharging the rule for want of a sufficient affi- 
davit of defense is affirmed. 



Hannah T. Omensetter v. Henry Kemper, Appellant. 

Evidence — Trespass — Res gestm — Measure of damages. 
The question being one of trespass in illegally closing plakitiflTs win- 
dow overlooking property belonging to wife of defendant, evidence is 
properly admissible as to conduct and declarations of the defendant in 
regai*d to consenting to the erection of the windows as bearing on a license 
from the wife as well as to alleged bad faith, recklessness or oppression 
of the defendant; the evidence being pertinent in any event, irrespective 
of the wife^s title and defendant's inability to bind her, if it appeared that 
plaintifTs property was built within her own line, tending as it did to fur- 
nish some guidance ais to the measure of damage. 



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810 OMENSETTER v. KEMPER. 

Syllabus— Statement of Facts. [6 Pa. Superior Ct. 

Evidence— Witness cannot be made the arbiter. 

Where the issue turned on the proper division line between two proper- 
ties a question is properly excluded when, to have allowed the witness to 
have answered it, would have made him the arbiter of the whole question 
of title, including the application of the statute of limitation. 

Practice, Superior Court — Unfair assignment — Excerpt from charge. 

An assignment of eiTor is unfair and defective which complains of an 
excerpt from the charge, wrested from its context, when, if all that was said 
in the instruction complained of had been quoted, it would appear that the 
matter in dispute had been left entirely to the jury. 

Practice— Beview— Charge of court— Comment on evidence. 

The" question turning on the accuracy of certain measurements made, on 
the one hand by trained surveyors and on the other, by unskilled persons, 
it was not error for the court to call the attention of the jury to the fact 
that defendant's measurements were made by ** a baker attended by a tin- 
smith under the supervision of a lawyer." This is not such departure from 
judicial gravity as to call for a reversal. 

Trespass — Title by possession— Burden of proof on defendant. 

Mere possession is in itself a form of title, and he who interferes there- 
with must be prepared to show a better title. Plaintiff having been in 
possession of her house and defendant having invaded her possession, by 
obstructing her windows, the burden devolved upon him to explain or jus- 
tify his acts. 

Division fence — Consentdble line — Statute of limitations— Burden of proof 
The mere calling a fence a division feiice does not make it one. It is 
the duty of a party, relying on a fence as a division one, to supply the juiy 
with the requisite facts. A consentable line is not established merely by 
an existing fence when its character is only accounted for during ten or 
twelve years. 

Argued Oct. 5, 1897. Appeal, No. 88, Oct. T., 1897, by 
defendant, from judgment of C. P. No. 4, Phila. Co., June T., 
1896, No. 665, on verdict for plaintiff. Before Rice, P. J., 
WiCKHAM, Beaver, Reedeb, Orlady, Smith and Porter, JJ, 
AflRrraed. 

Trespass quare clausum fregit to recover damages for obstruc- 
tion to plaintiff's light and air by nailing up her windows. Be- 
fore Audenreid, J. 

The facts sufficiently appear in the opinion of the court. 

Verdict and judgment for plaintiff for $183.33. Plaintiff 
appealed. 



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OMENSErrER V. KEMPER. 311 

1898.] Assignment of Errors. 

JErrors assiffned were (1-3) In admitting questions propounded' 
to plaintiff's witnesses as to conversations which had taken 
place between them and the defendant. (4) In overruling the 
following question propounded to Joseph Thorp : " Q. Assum- 
ing that the fence line as you have put it on the plan was the 
fence as it has been in existence as testified to by Mr. Kemper, 
and running that fence out upon the straight line as Mr. Kemper 
testified that the fence did run to Leverington avenue, state to 
the court and juiy whether or not that would show that the 
plaintiff's property was built over Mrs. Kemper's property." 
(5-8) In charging the jury as follows : " As Mrs. Omensetter 
was, undoubtedly, in possession of that house and every part of 
it, including not only its interior, but also the wall in which 
these windows were opened, it would appear that her possession 
has been invaded, and that she is therefore entitled to recover 
damages at your hands in this action, unless the defendant can 
explain and justify his acts. ... As the plaintiff is in the pos- 
session of the property No. 518 Leverington avenue you are 
bound to start out with the presumption that she is lawfully in 
possession of it, and that her title is co-extensive with her pos- 
session. It lies on the defendant to show that that house is not 
within the plaintiff's o\vn lot, and that the division line is not to 
the northeast of the wall in which the windows and doors open. 
. • . . The only question of doubt in Mr. Thorp's determination 
of the location of the southwest line of the Kemper lot is as to 
whether he carefully measured the distance of one hundred and 
ninety-six feet one inch from the comer of Ridge avenue. I do 
not think that there is chance for a mistake in this calculation 
at any other point. . . . The measui*ements made for the defend- 
ant were made by a baker, attended by a tinsmith, under the 
supervision of a lawyer. It does not appear that any of these 
gentlemen ever made a land measurement before." (9) In af- 
firming plaintiff's second point, which point is as follows : " If 
the jury believe from the evidence that the defendant gave a 
license to the plaintiff to erect the windows in question and in 
consequence of which license plaintiff went to an expense by 
building her house upon a different plan from that which she 
would have adopted if such license had not been given, then 
the license was irrevocable, and in no aspect has the defendant 
a right to nail the obstiTictions to plaintiff's window." (10) In 



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312 OMENSETTER v. KEMPER. 

Assignment of Errors — Argiinoents. [G Pa. Superior Ct.' 

refusing to charge the jury as requested for the defendant as 
follows : " It is the uncontradicted testimony of the defendant 
that the division line between the property of plaintiff and Cath- 
arine Kemper for upwards of twenty-one years next preceding 
the erection of plaintiff's house was marked by a straight fence 
as shown on the plan of survey which you have in evidence. 
I instmct you if you find the said fence to have existed as tes- 
tified to, and that the plaintiff's house is upon or over the line 
as so established, then your verdict must be for the defendant." 
(11) The damages found by the jury were excessive. 

W. Horace Hepburn^ for appellant. — The only question before 
tlie court below on the trial of this case was as to the location 
of the division line between the defendant's lot and the plain- 
tiff's property. The evidence admitted under the first three 
assignments of error were irrelevant and prejudicial and should 
have been excluded : Bank v. Gillespie, 115 Pa. 564. 

The affirmance of the plaintiff's second point as set out in the 
9th assignment of error, did not tend in the least possible way 
to enlighten and help the jury, but did tend to convey the im- 
pression that the defendant had committed a wrongful act. 

The burden of proof should be upon the plaintiff, and not, as 
stated by the court, upon the defendant: Wolf v. Wolf, 158 
Pa. 621. 

The line fence had been recognized for a period beyond the 
statute of limitations and should not have been disturbed: Mc- 
Cormick v. Barnum, 10 Wend. 104. 

Long acquiescence by one in a line assumed by the other is 
evidence of an agreement : Kip v. Norton, 12 Wend. 127 ; Hunt 
V. Johnson, 19 N. Y. 279. 

A great numl)er of cases confirming the doctrine as stated 
above may be found in Tyler's Law of Boundaries, Fences and 
Window Lights, at pages 288 to 294. 

The description of the persons testifying as to the measure- 
ments for defendant was couched in language by the trial judge 
tending to produce a mirthful effect upon the jur)', and it had 
that effect as it brought forth a laugh from them. 

. Francis S. Cantrell and Francis S. CantrelU Jr.^ for appellee. 
-r-There was no evidence in this case of a consentable line recog 



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OMENSETTER v. KEMPER. 818 

1898.] Arguments — Opinion of the Court. 

nized for a period long enough to invoke the statute of limita- 
tions. The evidence sufficiently established the proposition that 
plaintiff had built her house within her own line, and that the 
act of the defendant was an unwarrantable trespass. 

The comments of the court complained of in the assignments 
of error were mere proper expressions of opinion by the court : 
Com. V. Orr, 138 Pa. 276. 

Opinion by Wickham, J., January 18, 1898 : 
The plaintiff sued in trespass, for the alleged unlawful acts 
of the defendant in closing up two windows in the east wall of 
her house, which is situate on East Leverington Avenue, in the 
city of Philadelphia. The defendant tried to justify his acts by 
averring, and attempting to prove, that the wall extended over 
on the property of his wife, by whose authority he obstructed 
the windows. The only question, therefore, outside of the 
matter of damages, was whether or not the wall was built on 
the land of the defendant's wife. To make this question of 
fact still more definite and easy of solution, the defendant in his 
first point, which was affirmed, asked the court to charge that 
his wife was entitled to a lot fifty feet wide west of the western 
boundary line of another lot, adjoining and east of hers, known 
as the Shinkle or Morton lot. This boundary line was marked 
by an ancient fence which both parties agreed was the true 
eastern boundary of the Kemper lot. 

Under the instruction requested by the defendant and given 
by the court, it is apparent that if, measuring westwardly from 
the Morton fence to the Omensetter wall, Mrs. Kemper had a 
lot fifty feet in width, all she claimed under her deed, then the 
defendant was guilty of the trespass charged, unless through a 
consentable line, or imder the statute of limitations, the wife 
could justly claim more land. Such was the necessary effect 
of the way in which the defendant had the case submitted to 
the juiy. The jury, looking at all the evidence bearing on 
this point, found in effect, that Mrs. Kemper had the fifty feet 
referi'ed to east of plaintiff's house and west of the Morton fence, 
and therefore rendered a verdict against the defendant. The 
evidence shows, that the defendant intruded west of the eastern 
surface of the wall, the obstructions having been nailed to the 
wooden fiiimes set back in the window openings. 



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8U OMENSETTKR y. KEMPER. 

Opinion of the Court. [6 Pa. Superior Ct. 

The court had in its charge ruled, that there was not suffi- 
cient evidence to establish a consentable line, or to give title 
under the statute of limitations, to the land occupied by the 
wall or any part thereof. The defendant therefore had to stand 
on his wife's deed and the measurements made westwardly from 
the Morton fence, and the juiy found that she had fifty feet east 
of the plaintiff's building. 

Let us now look at the assignments of error. The first, sec- 
ond, and third relate to the admission of testimony showing that 
the plaintiff's husband, before she erected her house in 1889, 
consulted with the defen4ant, who encouraged the putting in of 
the windows. He talked and acted at that time in such a way 
as to lead one, not knowing that his wife held the title, to assume 
that he was the owner of the lot adjoining the plaintiff's. He 
alone was sued, and, at the time when the testimony objected to 
was offered, his defense was not developed. The testimony was 
therefore properly admitted as part of the history of the matter 
in controversy and as bearing on the question of license, as well 
as the alleged bad faith and recklessness, or oppression of the 
defendant. Even after the defense had been opened, and it 
appeared by the wife's deeds that she was the real owner of the 
property occupied by herself and husband, and that he therefore 
had no authority to bind her, the evidence was still pertinent, 
in case the jury found that the plaintiff's house was built in on 
her own lot. It tended to furnish some guidance as to the 
measure of damages. Omensetter, in the conversation detailed 
in the first assignment of error, asked Kemper, after showing 
him the plan of the house if he had any objection to it. Kemper 
replied, " No, John, I would rather have those windows there 
than a dead wall." Omensetter says farther, in giving his ver- 
sion of the conversation, " I told him I intended to keep within 
my own line which I am doing." The remark *' which I am 
doing " was volunteered by the witness, was not called out by 
any question, and in strictness was inadmissible. A motion 
was made by the defendant's counsel to strike it out, but as 
there is no assignment of error, based on the court's refusal to 
do so, the matter need not be further considered. 

To another witness Kemper said, '* I gave him " (Omensetter) 
" permission to put two windows in the gable end of this wall," 
and made a like statement to still another person. 



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GMENSETTER v. KEMPER. 815 

1898.] Opinion of the Coait. 

The learned trial judge told the jury, in language not to be 
misunderstood, that Kemper had no authority to represent his 
wife, and that no license had been proved. The jury found in 
effect that the plaintiff's building was inside her line. In view 
of this finding we fail to see why, in assessing the damages, 
they had not a right to consider the defendant's conduct from 
beginning to end so far as it related to the windows. He en- 
couraged the putting of them in. He was told by Omensetter 
that the house would be built west of the Kemper line, and as 
a matter of fact, it was so built and maintained. And yet, not- 
withstanding these things, the defendant, without a word of 
notice or warning, disfigured the plaintiff's habitation and closed 
up her handsome and costly leaded and plate glass windows 
by nailing over one an old pine batten door, and over the other 
" bagging covered with manure, horse manure," thus causing 
crowds of six to a dozen people to frequently gather, as the evi- 
dence shows, to view the odd decorations. 

We think that all the testimony of the three witnesses men- 
tioned in the assignments we have been considering, so far as it 
was responsive to the questions or suggestions of the plaintiff's 
counsel, was admissible. Anything objectionable and volun- 
teered should have been met, at the time, by a motion to strike 
out, and if such motion were overruled, the refusal, if excepted 
to, could have been assigned for error here. This has not been 
done, and at any rate, the irresponsive matter is so harmless as 
to be scarcely worth the trouble. 

The fourth assignment complains that the court overruled 
the following question, put for the defense to one of the sur- 
veyors on cross-examination : " Assuming that the fence line 
as you have put it on the plan was the fence as it has been in 
existence, as testified to by Mr. Kemper, and running that fence 
out upon the straight line as Mr. Kemper testified that the fence 
did run to Leverington avenue, state to the court and jury 
whether or not that would show that the plaintiff's property was 
built over Mrs. Kemper's property." This question was very 
properly disallowed for two reasons : first, it does not appear 
that the witness heard what Kemper had testified, about the 
fence and the length of time it had existed ; and second, to 
have allowed the witness to answer would have made him the 
arbiter of the whole question of title including the applicabil- 



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816 OMENSKTTER v. KEMPER. 

Opinion of the Court. [6 Pa. Superior Ct. 

ity of the statute of limitations. It was the province of the 
jury to determine whether the Omensetter wall was built on the 
Kemper property. The witness should have been asked as to 
the position of the fence with reference to the wall, or the Mor- 
ton line, or as to like matters within his art. 

The fifth and sixth assignments are based on the instructions 
given the jury to the effect that the plaintiff, being in posses- 
sion of her house, including of course the wall and windows, 
and the defendant having admittedly invaded her possession, it 
devolved on him to explain or justify his acts. As this is horn- 
book law, part of the very alphabet of the law of trespass, no 
authorities need be cited to sustain it. Mere possession, fortu- 
nately for the good order of society, is in itself a form of title, 
and he who interferes therewith must be prepared to show a 
better one. 

The seventh assignment is not quite fair to the court below. 
The instruction complained of is an excerpt, wrested from its 
context. Had all that was said, on the subject referred to in 
this instruction, been quoted, it would appear that the matter 
of the correctness of the conflicting measurements was left en- 
tirely to the jury. Even the expression of opinion, contained 
in the excerpt, was practically withdrawn near the close of the 
next paragraph of tlie charge. 

In the eighth assignment the appellant complains, that the 
court said to the jury that the defendant's measurements " were 
made by a baker attended by a tinsmith under the supervision of 
a lawyer." That the measurements were made by three persons 
of the respective callings mentioned, instead of by a surveyor, 
and that the lawyer superintended, is indubitable, but a careful 
examination of the testimony does not make it quite clear 
whether the baker, who was the defendant himself, was attended 
by the tinsmith, or the tinsmith by the baker. However, a 
slight mistake in stating the order of rank would be harmless 
error, as it is quite certain that the baker was at one end of the 
tape line and the tinsmith at the other. The plaintiff's evidence 
as to the disputed line came from professional surveyor's. The 
defendant first called in a surveyor, but being dissatisfied with 
the result, he rejected the artist's work. Then, instead of em- 
ploying another surveyor, he undertook, with the aid of his 
counsel and a neighbor, to make his own measurements, this 



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OMENSETTER v. KEMPER. 817 

1898.] OpiDion of the Court. 

being the first experience either of the three had in measuring 
land or finding boundaries. It was, therefore, not out of place 
for the court to call the attention of the jury to their vocations, 
and although it may have been done in a manner calculated to 
provoke a smile, there was not such a wide departure from judi- 
cial gravity as to demand a reversal. It may be mentioned 
here, that the testimony of Mr. Thorp, one of the sui'veyors, 
explains how easily these three gentlemen, ignorant of the 
courses of the lot lines and the angles at which they intersect 
the avenue, might make mistakes, although actuated by the most 
honest motives. 

It would have been better for the court to have simply refused 
the plaintiff's second point, set forth in the ninth assignment of 
error. The answer, however, taken as a whole, is equivalent to 
saying, '' It is true that if a license has been proved, then it is 
irrevocable, but there is no evidence that either Kemper or his 
wife gave any license." In the general charge, the jury were 
emphatically instructed that no license had been shown, the 
learned trial judge closing his remarks on this head with the 
words " Therefore as I say, the question of license is out of 
the case, and you need not consider it." In view of all this, 
the appellant, in our opinion, suffered no harm from the manner 
in which the court disposed of the plaintiff's second point. The 
jury must have understood that, in effect, the point was refused. 

The tenth assignment rests on the refusal of the court to 
charge as follows: "It is the uncontradicted testimony of the 
defendant that the division line between the property of plain-! 
tiff and Catharine Kemper for upwards of twenty-one years next 
preceding the erection of plaintiff's house was marked by a 
straight fence, as shown on the plan of survey which you have 
in evidence. I instmct you, if you find the said fence to have 
existed as testified to, and that the plaintiff's house is upon or 
over the line as so established, then your verdict must be for 
the defendant." To have afi&rmed this point would have been 
serious error. It is true the defense offered evidence as to the 
existence of a straight fence, running back from Leverington 
avenue, along or near the disputed line, and a part whereof was 
taken down by the plaintiff when she built her house. It was 
testified by the defendant and his wife, that the fence had been 
there some thirty-five years befoi*e the trial. Mrs. Kemper 



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818 OMENSETTER v. KEMPER. 

Opinion of tbe Court. [6 Pa. Superior Ot. 

bought in 1877, the Omensetter house was built in 1889. Kem- 
per testified that the plaintiff's husband, between the two years 
just mentioned, helped to maintain the fence. Under the proof, 
we have only a period of twelve years, at the most, during 
which the defendant's wife can be said to have claimed up to 
the fence. We are left utterly in the dark as to the history of 
the fence prior to 1877. It does not appear who built or main- 
tained it ; whether it was intended to mark the true line or a 
consentable line ; whether it was recognized by former owners 
as indicating the boundary, or whether Mrs. Kemper's prede- 
cessors in title had claimed and held up to it. The merely 
calling it a division or line fence by the defendant and his wife, 
in their testimony, does not make it one. It was their duty to 
supply the jury with facts. The measure of proof is indicated 
in Brown v. McKinney, 9 W. 565, and Reiter v. Mc Junkin, 178 
Pa. 82, the strongest cases that can be found in our reports in 
favor of the appellant's position. 

We may add, that where this fence stood with reference to 
the wall is, to say the least, left very conjectural. The only 
witness who testified directly in regard to the matter was the 
carpenter, who built the plaintiff's kitchen back of the main 
building, and who was called for the defense. He stated that 
he took down about twelve feet of the fence, but added that he 
built, inside the line, on the plaintiff's own lot. 

As to the eleventh and last assignment, we cannot say, look- 
ing at all the facts, that the amount of the verdict should lead 
us to interfere. 

Judgment affirmed. 



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KARAHUTA v. TRACTION CO. 819 

1898.] Syllabus— -ArgumeDts. 



Andrew Karahuta v. The Schuylkill Traction Company, 

Appellant. 

Question for jury — Negligence — Street railways— Duty ofmotonnan, 
Whei'e there is evidence of the failure to ring the bell and of failure to 
perceive the approach of the child who was killed by a trolley car, and 
that the motorman was engaged in conversation with one of the pas- 
sengers just before the accident and that his face was at one time turned 
away from the track, the case is for the jury on the question of the de- 
fendant's negligence. 

Negligence-rContributory negligence ofparent—Questtonforjury, 
A father left his little child of two and one half years of age on the 
front steps of his house facing a public street where electric cars and 
wagons were passing, while he took a still smaller child in to its mother. 
There was a hand organ playing upon the opposite side of the street and 
the child was enjoined not to leave the step. While the father was absent 
the child had wandered upon the track and had been killed. The parents 
wei*e people in humble circumstances and had no one else to take care of 
the children but themselves, ffeldt That the action of the parent was not 
such as compelled the court to pronounce it to be such contributory negli- 
gence on his part as to require the withdrawal of the case from the jury. 

Argued Dec. 9, 1897. Appeal, No. 160, Oct. T., 1897, by 
defendant, from judgment of C. P. Schuylkill Co., Jan. T., 
1896, No. 207, on verdict for plaintiff. Before Rice, P. J., 
WiCKHAM, Beaveb, Reedeb, Orlady, Smith and Porter, J J. 
Affirmed. 

Trespass by parent to recover damages for the death of his 
son, who was struck by car of the defendant company. Before 
Savidgb, P. J. 

The facts sufficiently appear in the opinion of the court. 

Verdict and judgment for plaintifif for $566.60. Defendant 
appealed. 

Error assigned was refusal of binding instructions for defend- 
ant. 

MacHenry Wilhelm^ for appeUant. — The fact that a child is 
injured on a public street does not of itself impose liability on 



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320 KARAHUTA v. TRACTION CO. 

Arguments— Opinion of the Court. [6 Pa. Supeilor Ct. 

the part of a driver or other person who has the vehicle in 
charge : Moss v. Traction Co., 180 Pa. 389 ; Johnson v. Rail- 
way Co., 160 Pa. 647. 

The fact that a child is found in the streets affords a strong 
presumption of negligence on the part of the plaintiff : P. & 
R. R. R. Co. V. Long, 75 Pa. 257 ; Cauley v. RaHway Co., 95 
Pa. 398 ; Glaasey v. Ry. Co., 57 Pa. 152. 

Chas. N, Brumrn^ with him George Dyson^ for appellee. — The 
principles of law that apply perfectly to this case are laid down 
in Henne v. Ry. Co., 1 Pa. Superior Ct. 311. 

The refusal of binding instructions is justified by Dunseath 
V. Traction Co., 161 Pa. 124. 

Opinion by Poeteb, J., January 18, 1898 : 

The only specification of error in this case is the refusal of 
the court below to give binding instructions to the jury to find 
for the defendants. This request is based upon the propositions 
first that the defendants were not guilty of negligence ; and sec- 
ond, that the plaintiff, (the father of the child who was killed) 
was guilty of contributory negligence. 

A decision of this case requires a consideration of the testi- 
mony. The plaintiff is a foreigner, having lived at the time of 
the accident, but seven years in this country. His residence 
was on Centre street in the borough of Mahanoy City. His 
family consisted of himself, his wife, his son Joseph, (who was 
killed) of the age of two years and a half, and a younger child 
about one year old. Centre street is about eighty feet wide from 
curb line to curb line and is traversed by the tracks of the de- 
fendant company, which operates an electrical sti-eet railway. 
The tittcks are laid in the middle of the street. One of the 
termini of the line is in Mahanoy City east of the house occu- 
pied by the plaintiff. The car which killed the child, Joseph 
Karahuta, had passed eastward to the terminus and was on its 
return trip. 

On August 7, 1894, the plaintiff left his house and proceeded 
directly across Centre sti*eet taking his two children, the younger 
in his arms and the older by the hand, to Hogan's store to be 
nearer an Italian who was there playing a hand organ. Having 
remained for a time listening to the music with a number of 



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KARAHUTA v. TRACTION CO, 821 

1898.] Opinion of the Court. 

other persons, adults and children, the plaintiff returned to his 
house with his two children. Having to go to the yaid of the 
house for a necessary purpose for a few minutes, he allowed 
the older boy to remain on the front doorstep and took the 
younger child into the house, placing the latter in the care of 
its mother. On his return to the house, in a few minutes, he 
found the older child dead in the arms of its mother, having 
been killed during his absence 1^ a car of the defendant com* 
pany. 

The allegations in respect to the negligence of defendants 
were that the car was moving at an extraordinary speed, that 
the motorman failed to ring his alarm bell, and that his atten- 
tion was not being properly given to the management of his car. 

The evidence does not satisfy us that, there was any undue 
speed. The car seems to have been moving at a rate of not 
more than four to six miles an hour at the time of the accident. 
The power was not on and the car was drifting on a slight down 
grade. 

As to the failure to give warning of approach it was shown 
that the accident occurred in the middle of the block and that 
the motorman had not rung his bell since leaving the street 
crossing to the east. While it is true that there is no necessity 
for a motorman to continually ring his bell, it is also true that 
when approaching a point whei-e he could see that a number of 
children and others had congregated upon the street it may 
well have been his duty to give notice with his gong of the ai)- 
proach of his car, and had he done so in the present case it might 
have been that the warning would have prevented the little 
child from crossing the track. 

In addition, however, there was evidence showing that the 
motorman was engaged in conversation with one of the passen- 
gers just before the accident, and that his face at one time was 
turned away from the track. This turning away was sought to- 
be explained by the fact that a number of persons called out to 
liim in warning to prevent the injury to the child. This is not 
a satisfactory explanation. If bystanders were able to see the 
impending accident and give warning, the motorman should 
have been able to see it himself, and if he had, the warning 
from others could not have diverted his attention nor would 
such warning have been necessary^ There was in our opinion 
Vol. VI— 21 



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S22 KARAHUTA v/ TRACTION 00. 

Opinion of the Court: [6 Pa. Saperipr Ct. 

sufficient evidence of the failure to ring the bell and of the fail- 
ure to perceive the approjwjh of the child, to require the case to 
go to the jmy, on the question of the defendants' negligence. 

The plaintiff allowed his little child of two and one half years 
of age to remain on the front step of the house facing on the 
public street where electric cars and wagons were passing. He 
allowed him to remain there for a few minutes with an injunc- 
tion not to go away. . The smaller child ;was left with the 
mother, who was in the front or back I'oom of the house. The 
family were in moderate circumstances. The child had no care- 
taker but the parents. It is true that the attraction of a hand 
organ was within sight and hearing of the child. He had 
however, been permitted to see the organ at a nearer view. It 
is true that its presence may have been a temptation to the 
child to leave the doorstep in defiance of the father's injunction. 
We are, however, not prepared to say that the action of the 
parent in this case was such as to require a court to pronounce 
it to be such negligence on his paH as to require the withdrawal 
of the case from the jury. The absence of the testimony of the 
mother upon this branch of the case is to be regretted, but it 
was explained by the statement at bar that she was dead at the 
time of the trial. 

This case differs from Johnson v. Passenger Railway Co., 160 
Pa. 647. There the mother stood at the open door of the house 
in conversation with relatives and permitted her child to pass 
her and escape into the street and be killed by a passing car. 
The facts in that case are tersely put by Mr. Justice Dean, "a 
child twenty months old, an open door, a dangerous railway 
track, within a few feet of the open door, the mother standing 
in full view of the door and the track, and the further fact that 
it would probably take the little child as long to toddle from 
the door to the tiuck before the eyes of its mother as it took the 
approaching car to come a square. Was this such care as was 
due from the mother to her child according to tbe circum- 
stances ? '^ The burden of that case fell upon the fact that the ac- 
cident happened under the eyes of the parent under circumstances 
where she might have intervened after, the child had started on 
its path to danger. This case comes rather within the ruling in 
Dunseath v. Pittsburg, etc., Traction Co., 161 Pa. 124, where 
it is said: ^^ We cannot assent to the proposition that the. court 



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KARAHUTA v, TRACTION CO. 323 

1898.] Opinion of the Court. 

■should have taken the case from the jury on the ground that 
the presence of the boy on the street under the circumstances " 
shown, constitute negligence on the part of the plaintiffs which 
contributed to his death.'* Mr. Justice McColltjm quotes 
with approval in the same opinion the language of the Supreme 
Court in P. & R. R. Co. v. Long, 75 Pa. 257, as follows : "To 
suffer a child to wander on the street has the sense of permit. 
If such permission or sufferance exist, it is negligence. This 
is the assertion of a principle. But whether the mother did 
suffer the child to wander is a matter of fact and is the subject 
of evidence, and this must depend upon the care she took of 
her child. Such care must be reasonable care, dependent on 
the circumstances. This is a fact for the jury." The opinion 
in the recent case of Woeckner v. Erie Electric, etc., Co., 182 
Pa. 182, applies this view of the law to facts similar in many 
respects to those presented here. 

The learned trial judge was thus compelled to send the case 
to the jury. This he did in a clear and able charge, quite as 
favorable to the defendants as they could have expected. 

The judgment of the court below is therefore affirmed. 



License of Lorenz Wacker. Appeal of D. C. Gibboney. 

Liquor law— 'Statutory period for acceptance of license cannot be extended^-. 

An applicant for a liquor license has, under the statute, fifteen days 
within which to accept or refuse his license when allowed. This time 
being definitely fixed by the statute cannot be extended by the oouii;. 

Liquor law — Appeals — Standing of remonstrant to appeal. 
The right of appeal belongs to every person in a legal sense aggrieved 
and whoever stands in a cause as the legal representative of interests 
which may be injuriously affected hj the decree made in a license case is, 
within the meaning of the law, aggrieved. One who is properly before 
the lower court as a remonstrant and who is heard by that tribunal, is ^. 
proper appellant. 

Argued Oct. 20, 1897. Appeal, No. 117, Oct. T;, 1897, by 
D. C. Gibboney, and as secretary of the Law and Order Society 
from the decree of Q. S. Phila. Co., granting a bottler's license 
to Lorenz Wacker. Before Rice, P. J., Wickham, BeavbRj 
RsEDSB, Orlady, Smith and Porter, J J. Reversed. 



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324 WACKER'S LICENSE. 

Statement of Facta— Arguments. [6 Pa. Superior Cl. 

It appears from the record that Lorenz Wacker filed an ap- 
plication for a bottler's license at 801 N. Forty-eighth street, 
Philadelphia. A remonstrance was filed of the Law and Order 
Society. On May 14, 1897, a bottler's license was granted. 
On May 30, 1897, in obedience to the Act of June 9, 1891, 
P. L. 257, the grant was revoked for nonpayment of license fee 
within fifteen days. On July 8, 1897, petitioner Wacker pre- 
sented petition dated June 17, 1897, to extend time of payment, 
which was granted the same day. On July 9, 1897, a receipt 
of the city treasurer for the license fee received fifty-six days 
after the legal grant, was filed. 

An appeal was taken to the Superior Court by D. C. Gib- 
boney and as secretary of the Law and Order Society, remon- 
strants. 

ErrorB a%%igned were (1) Granting the petition of Lorenz 
Wacker on July 8, 1897. (2) In granting an extension of time. 
(3) In making the order indorsed oji the application *' and now 
July 8, 1897, license granted." (4) In rehearing and regrant- 
ing in July term, 1897, a bottler's license on an application 
made to March term, 1897, heard March 31, 1897, wherein a 
final decree was made on May 14, 1897. (5) In rehearing and 
regranting to Lorenz Wacker an application for a bottler's li- 
cense for the license year commencing June 1, 1897, tlie said 
application previously granted May 14, 1897, to the same per- 
son, for the same business, at the same place, for the same time, 
having been revoked May 30, 1897, by the express provisions 
of the act of assembly approved June 9, 1891, sec. 7, P. L. 267, 
no new application having been filed. 

Lewis Z>. Vail^ for appellant. — The court of quarter sessions 
cannot repeal the express provisions of an act of assembly. The 
action of the court below was not an amendment of the order 
of May 14, 1897 : Riddle's Estate, 19 Pa. 431. 

John Dolman for appellee. — There is no case in which a tax- 
payer or citizen is allowed an appeal from the decision of the 
quarter sessions on a question affecting the police government 
of the city. The act of June 9, 1891, gives the court of quar- 
ter sessions authority to grant liquor licenses, the only restric- 



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WACKER'S LICENSE. 325 

1898.] Arguments— Opinion of the Court. 

tion being that they shall be for one year from a date fixed by 
rule or standing order. The action of the quarter sessions is 
clearly within its powers under the act. The sincerity of the 
applicant is unquestioned. He owns sufficient money to pay 
his license fee, but failed to have it in his immediate possession 
at the proper time through a mere accident. Although he 
failed to pay it in time, he neither "neglected" nor "refused" 
to pay it as the act provides. 

Opiniok by Oblady, J., January 18, 1898: 

The application for license in this case was resisted by the 
Law and Order Society of Philadelphia. A remonstrance was 
filed by the society in which legal and material objections were 
specifically averred, and these were attested by an affidavit. 
The record shows that the petition and the remonstrance were 
considered by the court on a hearing held March 31, 1897, and 
on May 14th the prayer of the petitioner was granted. 

The applicant did not comply with the provisions of sec. 7 
of the Act of June 9, 1891, P. L. 257. " If any person or per- 
sons shall neglect or refuse to pay to the city or county treas- 
urer the sum of money directed in sections one and three, within 
fifteen days after his, her or their application for license has 
been granted by said court, then and in that case the said grant 
shall be deemed and held revoked and no license issued. It 
shall be the duty of the person or persons whose application 
has been granted by the said court, to pay the said sum of 
money to the said treasurer within the said fifteen days and 
forthwith produce to, and file with the clerk of court, the re- 
ceipt of said treasurer thereof, and upon any default the said 
clerk shall forthwith mark the said application and grant 're- 
voked.'" The clerk of quarter sessions noted of record the 
default of the applicant as follows : " And now, to wit: May 30, 
1897 the application and grant to Lorenz Wacker for bottler's 
liquor license at 810 North Forty-eight street, thirty-fourth 
ward is hereby revoked for nonpayment of license fee within 
fifteen days.'* 

On July 8th fifty-six days after the license had been granted, 
Wacker presented his petition to the court in which he gave 
reasons for the default, and said that " he had been disappointed 
in securing the necessary money to pay the license fee from an 



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326 WACKER'S LICENSE. 

Opinion of the Couit. ' [6 Pa. Superior C£. 

expected source and had made a number of eflforts to get tli6 
money elsewhei-e but was unsuccessful." On this petition the 
court extended the time within which to pay the license fee and 
indorsed it " license granted." 

July 9th, Wacker paid to the counly treasurer the license fee, 
filed in the ofi&ce of the clerk of quarter sessions a proper receipt 
therefor, and received from that official a bottler's Uoense for 
one year from June 1, 1891. 

After the grant of the license the proceeding was ex parte, 
no rule was granted, nor notice given to the remonstrants. No 
objection is or could be taken to the action of the court in grant- 
ing the original license. The applicant had, under the statute, 
fifteen days within which to decide whether he would accept 
or refuse. That time is definitely fixed by the statute and can- 
not be extended by the court. The subsequent action of the 
court was without statutory authority. The whole proceeding 
is founded upon the statute, and the right to this license ceased 
when the applicant made default in not paying within the pre- 
scribed time. It is nowhere suggested that the decree of 
July 8th, was an amendment, or was made to correct an error 
of record in the knowledge of the court, and it cannot be 
construed otherwise than that the intention was to extend the 
statutory time for making payment of the license fee. The 
license was properly revoked by the clerk. The remonstrants 
were regularly on record and were heard without * objection 
by the court at the time the license was originally granted. 
The right of appeal belongs to every person in a legal sense 
aggrieved. Not only are those persons aggrieved in a legal 
sense, whose individual, peculiar rights are invaded, but also 
those whose representative claims are assailed. Whoever stands 
in a cause as the legal representative of interests which may be 
injuriously affected by the decree made is, within the meaning 
of the law, aggrieved : Green v. Blackwell, 32 N. J. Eq. 768. 
This is the law of the civil courts, and we feel that the same 
generous rule should apply in license cases. One who is prop- 
erly before the lower court as a remonstrant, and who is heard 
by that tribunal, is a proper appellant to this court. The re- 
monstrance is signed by the " Law and Order Society of Phila- 
delphia, D. C. Gibboney, Secretary," and the truth of the facta 



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WACKER'S UCErfSE. S27 

1898.] Opmidnof the Cfouit. 

'stated therein is vouched for under oath by C. B. Jones, "the 
same parties appear here as appellants. 

The decree of the court dated July 8, 1897, granting the 
license to Lorenz Wacker is reversed, the costs to be paid by 
the appellee. 



Hugh Kelly v. Frederick Baun, Appellant. 

CotUrctct— statute offrauds-^Original undertaking. 

Where the parainoant purpose moviDg a promisor in making a promise 
wab to subseiire his own interests, it becomes an original undertaking and 
is not within the statute oi frauds/ although the promise incidentally iiy- 
eludes the payment of the debt of another. 

Where plaintiff and defendant were creditors of B., and plaintiff bid in 
certain goods at a sheriffs sale of B/s business which was purc^hased by 
defendant, a promise by defendant that in consideration of a ti'ansfer of 
plaintiffs bid that he, the defendant, would pay B.^s debt to plaintiff, be- 
cause he could not run the place without the goods purchased by plaintiff, 
such promise although in form an assumption of B/s debt is what is termed 
an. original undertaking and is not within the statute. 

Argued Dec. 14, 1897. Appeal, No. 65, Oct. T., 1897, by 
defendant, from judgment of C. P. No. 8, Phila. Co., March T., 
1895, No. 345, on verdict for plaintiff. Before Rice, P. J.^ 
WicKHAM, Beavbe, Rbedeb, Oblady, Smith and Pob- 
TEB, J J. AflSrmed. 

Assumpsit. Before McMichael, J. 
The facts sufficiently appear in the opinion of the court. 
Verdict and judgment for plaintiff for $550. Defendant 
appealed. 

Error assigned was refusal of binding instructions for de^- 
fendant. 

Thomas Learning^ for appellant. The alleged promise in thid 
case is within the 1st section of the Act of April 26, 1855, P. L. 
808, the familiar statute of frauds. ' 

In order to convert a promise to pay a debt of another into an 
original undertaking so as to take it out of the statute of frauds. 



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828 KELLY v. BAUN. 

Arguments— Opinion of the Court. [6 Pa. Superior Ct. 

evidence must be clear and satisfactory, and this is a question for 
thecoui-t: Eshleman v. Harnish, 76 Pa. 97 ; Haverly v. Mercur, 
78 Pa. 257 ; Gable v. Graybill, 1 Pa. Superior Ct. 29. 

The test that this verbal promise was a guaranteeing of an- 
other's debt is the continued existence of the original debt; 
Maule V. Bucknell, 60 Pa. 89, 62 ; Dougherty v. Bash, 167 Pa. 
429; Branson v. Kitchenman, 148 Pa. 641; Machine Co. v. 
Cann, 173 Pa. 392 ; Burr v. Mazer, 2 Pa. Superior Ct 426. 

Thomas A. Fahy^ for appellee. 

Opinion by Smith, J., January 18, 1898 : 

The whole complaint in this case is based on the refusal of 
the court below to direct a verdict for the defendant. The 
appellant contends that the testimony showed, indisputably, that 
the plaintiff^s cause of action was upon the note of a third per- 
son to which the defendant was not a party and for which he 
was not liable; and that this suit is an attempt to hold the 
defendant responsible for the debt of another, under an oml 
promise, in contravention of the statute of frauds. 

It is admitted that both plaintiff and defendant were credit- 
ors of one Karl Hiller, who conducted a butchering establish- 
ment, and was a brother-in-law of the defendant. At a sheriffs 
sale of Hiller's property the greater part of it was bid in for the 
defendant. The plaintiff attended the sale and "hoping to 
save his claim of $600," bid in the shafting and machinery used 
in Hillers business. After the sale the defendant and tlie 
plaintiff met and arrived at an understanding whereby the plain- 
tiff surrendered his right to the property he had purchased, to 
the defendant, the latter paying the bid. 

The question submitted to the jury arose from the circum- 
stances under which the plaintiff transferred his right to the 
property. The plaintiff alleged that the defendant pi-omised, in 
consideration of the surrender, to pay the $600 which Hiller 
owed him. The only testimony on the subject was that of the 
parties. The plaintiff testified in chief that the defendant said 
to him : " Look here, Mr. Kelly, you had better let the machin- 
ery and shafting you bought stay here. We cannot run the 
thing without that shafting, and I will pay you myself that 
$600 of Hiller's ; " and on cross-examination, that the defend- 



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KELLY V. BAUN. 829 

1898.] Opinion of the Court. 

ant said to him : " I will pay that money to you myself, for that 
machinery, if you will leave it here," and that "he said that 
afterward, he said it twice over, and he said that to me." The 
defendant testified that he knew nothing about the note, and 
that nothing was said about paying it. The jury were instructed 
that if they believed the plaintififs version the plaintiff was en- 
titled to recover ; otherwise not. The verdict was for the plain- 
tiff. 

The machinery bid in by the plaintiff was turned over to and 
accepted by the defendant. He became the purchaser of all the 
property sold by the sheriff and continued the business in his 
own name. The sheriff's sale was made on executions in which 
he was the plaintiff. But it is contended that the promise to 
pay the plaintiff $500, in addition to the bid, for the portion bid 
in by the latter, is within the statute of frauds, because the 
agreement was to pay the amount Hiller owed the plaintiff, 
and because the latter held a note that was not surrendered, 
and upon which Hiller paid one year's interest, after the sher- 
iff's sale. We cannot assent to this view. The statute was 
passed to prevent fraud, and courts must not permit it to be 
made an instrument for the perpetration of fraud. Assuming 
as we must that the facts have been correctly found by the jury, 
the provisions of the statute are invoked to relieve the defend- 
ant from payment of part of the sum which he promised to pay 
for the property. 

The substantial question for our decision is whether the para- 
mount purpose of the defendant, in making the promise was 
to subserve his own interest, or to secure the debt of another 
person. If the former, it is what is termed " an original under- 
taking," although in form an assumption of the debt of another, 
and is not within the statute. The machinery transferred to 
the defendant was necessary, with that which he had already 
purchased, for the operation of the business there conducted. 
According to his own statement he " could not run the thing " 
without the shafting, and in order that this might be done he 
bought the plaintiff's right thereto for $500. True, he promised 
to pay the debt of his brother-in-law ; but it was to secure this 
that the plaintiff attended the sale and bid in the property, and 
the fact that he was willing to release his claim on Hiller can- 
not operate to discharge the defendant from his promises, made 



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330 KELLY v. BAUNl 

Opinioa Of the Couiti [6 Pa. Superior Cti 

manifestly for his own interest and purposes.: Substantially 
Killer's debt to the plaintiff was merely the measure of the sum 
which the defendant was willing to pay the . plaintiff for the 
property bid in by liim. It is clear that the plaintiff bid off and 
held the machinery because he sought thus to secure the debt 
Hiller owed him, and it therefore requires no stretch of the 
principle that '* it (the promise) .may be unaffected by the stat* 
ute, though the original debt remains, if the promisor has re- 
ceived a fund pledged, set apart, or held for the payinent of the 
debt," (Maule v. Bucknell, 50 Pa. 39), to hold that it covers^ 
the transaction under consideration. 
Judgment affirmed. 



Ross C. Collins v. The Morning News Company, Appel- 
lant. 

Libel-^Evidence — When record of a crime charged inadmissible 
Where the libel charged plaintiff :is indicted for a criminal offense, eyi- 
dence tending to show that plaintiff was on the bail of the real oflfender is 
properly excluded, it not being pretended that the publication was based 
upon knowledge of the facts as shown by the rejected testimony. The 
excluded record would have shown conclusively that every material fact 
stated in the publication was untrue. 

Libel^Measure of damages. 

Where there is no evidence that defendant in a libel suit had actual mal« 
ice in publishing the article complained of by the plaintiff, compensation 
for the injuiy done to the plaintifiTs character is the only legal measure of 
damages for which a recovery can be had. 

Libel— Privileged communication — Burden of proof, 

A communication to be privileged, must be made on a proper occasion, 
from a proper motive, and be based upon reasonable or probable cause. 
The immunity of a privileged communication is an exception, and he who 
relies upon an exception must prove all the facts necessary to bring him- 
self within it. 

It is not a privileged communication when a newspaper publishes that 
plaintiff '* was arrested on a bailpiece,^^ when an examination of the rec- 
oixl would have disclosed that it was plaintiff who, as bail, had surrendered 
the real offender. 

Libel— Probable cause — Failure to examine record. 

Probable cause is not shown where a newspaper publishes a libelouar 



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COLLINS ij. NEWS CO. 351 

1898.] Syllabtioa — Assignment of £iTors. 

charge against a citizen on information from the attoniey in a criminal 
case, whei'e such information made further information necessaiy to war- 
rant a cautious man in believing that the plaintiff was guilty of any of- 
fense. 

A cursory and insufficient examination of the record will not exempt 
from the charge of carelessness when a more particular investigation would 
have elicited the whole truth ; Still more is defendant responsible if he neg- 
lects to examine an available record choosing rather to remain in ignor- 
ance when he might have obtained full information. 

Argued Nov. 11, 1897. Appeal, No. 35, Oct. T., 1897, by 
defendant, from judgment of 0. P. Lancaster Co., Sept. T., 1893, 
No. 3, on verdict for plaintiff. Before Rice, P. J., Beaver, 
Reeder, Oblady, Smith and Porter, JJ. Affirmed. 

Trespass sur libel. Before Livingston, P. J. 

The facts sufficiently appear in the opinion of the court. 

Verdict for plaintiff for $650. Defendant appealed. 

Hrrora asaiffned were, inter alia (1, 2) In admitting, under 
objection, the following questions to witness for plaintiff, for the 
purpose of showing the amount of damages involved: " Q. What 
was the circulation of the Morning News at that time — 15th of 
August, 1893? A. About 3,500. Q. Did it or not circukte 
generally in this city and county? A. It did." (3) In over- 
ruling the following question by defendant in cross-examination 
of the plaintiff: "Defendant offers to ask the witness if there 
was not a prosecution against Howard Lehman for malicious 
mischief and ci-ueltv to animals, and whether Mr. Collins, John 
Cassidy and Behny Ross were not his bail for his appearance, 
and whether or not they hadn't taken out a bailpiece for him 
by Mr. Collins." (5-10) The substance of these assignments 
were errors assigned in disallowing, upon objection by the plain- 
tiflf, offers of defendant to prove by tiie records of the quarter 
sessions that one Lehman was charged with malicious mischief 
and cruelty to animals, and that plaintiff and others were sure- 
ties on the recognizance given by him before the magistrate to 
appear at quarter sessions. That a bailpiece was taken out in 
this case by plaintiff for the body of said Lehman ; to be fol- 
lowed by evidence that the I'eporter of the News had under- 
stood from information received from B. F. Davis, counsel for 



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832 COLLINS v. NEWS CX). 

Assignment of Enx)i-8. [6 Pa. Superior Ct. 

plaintiff, that this bailpiece had been taken out for the arrest of 
said Collins and in pui-suance of that information so obtained, 
the reporter caused a local item, which is the subject of this 
suit, to be published in the Morning News. (12) In answer to 
plaintiff's second point, as follows: "2. The uncontradicted 
evidence in this case is that the publication made was untrue. 
It is not privileged. It is libelous per se. It is actionable, 
and, therefore, it is presumed to be malicious. Answer : That 
is, malice in law. It is not shown. It is denied there was any- 
actual malice on the part of the defendant here in this pub- 
lication, and no proof." (14) In answer to plaintiff's fourth 
point: "4. Where the words published are in themselves ac- 
tionable, libelous and untrue, evidence need not be given of 
malice. The publication is presumed to be malicious. An- 
nwer : That is what I have stated to you in the general charge." 

(15) In answer to plaintiff's fifth point : " 5. The publisher of 
a newspaper and his reporters are bound to use extreme dili- 
gence to ascertain whether or not libelous matter which they 
publish is true, and when the publication and untruth of such 
matter are shown, they are required to prove extreme diligence 
to ascertain its truth before they are exempted from damages 
for such publication. Answer : We say that the publisher of a 
newspaper and his reporters are bound to use due care, reason- 
able care and diligence to ascertain whether the matter is libel- 
ous or not, libelous or true. And when the publication and 
untruth of such matter are shown, they are required to prove 
reasonable diligence and care to ascertain its truthfulness before 
they can be exempted from damages for such publication." 

(16) In answer to plaintiff's sixth point: "6. Under the law 
and the evidence the verdict must be for the plaintiff for such 
amount as will compensate him for the damages he has suffei'ed; 
and for malice or reckless negligence if proved, punitive dam- 
ages may be awarded. Answer : That may be affirmed. That 
would be the correct method of getting at it, provided he has 
not used proper care and diligence." (18) In charging the 
jury as follows : " And where there are several charges, it is 
said in Murr v. Book, several distinct charges, some privileged 
and some not privileged, those that are not privileged are not 
justified by the charges which are privileged. Where an arti- 
cle is libelous in itself, is not privileged in its character, pub* 



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COLLINS V, NEWS CO. 333 

1898.] Assignment of Errors — Arguments. 

lishers failing to establish its truthfulness are liable for damages, 
and if the communication contains expressions which exceed 
the limits of privilege, such expressions are evidence of malice, 
and the case must be given to the jury. Wherever one pub- 
lishes words which injure the reputation of another he must be 
taken to have intended the consequence naturally resulting 
therefrom. Malice is an essential element, but whenever a 
wilful, unprivileged publication is made embodying the other 
qualities of libel, legal malice may be inferred. Falsehoods are 
never privileged, and reasonable cause to believe the libelous 
charge to be true is no defense for its publication. The defend- 
ant in this case admits the publication was untrue, and states 
the fact that the next morning, as was read to you from their 
next morning's paper, they attempted to correct the error they 
had made the day previous without any request on the part of 
Mr. Collins. This is not in any sense a privileged communica- 
tion. It is not a report of a judicial proceeding. There were 
no proceedings against Mr. Collins in this court, and none shown 
to be. There was no suit in court against him. He had not 
been held to answer to the crimes stated, malicious mischief and 
cruelty to animals. He had not given bail for his appeai-ance 
to answer such charges. He had not been arrested on a bail- 
piece, and was not then put to jail, was not in jail. So that 
none of the charges against him in this paper were true. That 
is admitted by the attempt to correct the next day after they 
saw they were not true." 

George Nauman and JJ. M. Norths with them T. B, Holahan 
and Eugene O. Smithy for appellant. — The article in question 
waa a privileged communication: Briggs v. Garrett, 111 Pa. 
404; Jackson v. Pittsburg Times, 152 Pa. 406. 

A reasonable ground of suspicion, supported by circumstances 
sufficient to wan-ant a cautious man to believe that the party 
was guilty of the ofifense, is the basis for a privileged communi- 
cation : Coates v. Wallace, 4 Pa. Superior Ct. 253. 

The defendant had undoubted right to prove the circum- 
stances upon which probable cause of belief was based, witli 
the source of its information, as the latter bore on the good 
faith of its inquiry : Conroy v. Times, 139 Pa. 334. 

J. Hay Brovm and W. U. Henselj for appellee. — The fact that 

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334 COLLINS v. NEWS CO. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct. 

one man Is arraigned in court for a criminal offense certainly 
gives a newspaper no right to say that some other man had been 
so arraigned: Odgers on Slander and Libel, 187, *248; Shelly 
V. Dampman, 1 Pa. Superior Ct. 115; Ingram v. Reed, 41 
W. N. C. 123. 

The case at bar does not respond to the criterion of privilege 
as laid down by Thaybb, P. J., in McKay v. McClure, 8 
W. N. C. 58. See also Godshalk v. Metzgar, 23 W. N. C. 641 ; 
Press Co. v. Stewart, 119 Pa. 584 ; Collins v. Publishing Co., 
152 Pa. 187; Seip v. Deshler, 170 Pa. 234; O'Toole v. Pitts- 
burg Post, 179 Pa. 271. 

Opinion by Orlady, J., January 18, 1898 : 

The defendant published in its newspaper, the following: 
" Arrested on a Bail Piece. There are suits pending against 
R. C. Collins, John Cassidy and Behny Ross for malicious mis- 
chief and cruelty to animals, which will be tried at next week 
court. It was feared last evening that R. C. Collins would leave 
this locality and not turn up for trial. In consequence a bail 
piece was issued and he was committed to jail to await trial, un- 
less he secures other bail." On the day after this publication, 
the following appeared in the same newspaper : " A provoking 
Error. ' Through a mix of names The Morning News yester- 
day stated that R. C Collins, John Cassidy and Behny Ross 
had suits pending against them for cruelty to animals and mall* 
cious mischief, and that R. C. Collins had been arrested on a bail 
piece. Of course the public will understand that the item was 
a provoking error, and that such honorable and well known gen- 
tlemen are not defendants at all in any suit. The fact of the 
matter is that they are bondsmen for one Howard Lehman, who 
stands charged with the above offenses, and tiiey surrendered 
their bail, taking out a bail piece, upon which he was arrested." 

This action was instituted the same day that the alleged libel 
was published, and resulted in a verdict in favor of the plaintiff. 

It was not contended on the trial that the article was mali- 
ciously published, and the defendant's second point was affirmed. 
" As there is no evidence that the defendant in this case had 
actual malice in publishing the article complained of by the 
plaintiff, compensation for the injury done to the plaintiff's 
character is the only legal measure of damages for which a re- 
covery could be had in any event." 



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COLLINS V. NEWS CO. S35 

1898.] .Opiuron of .the Court. 

The evidence Represented by the third, fourth, fifth, sixth, 
seventh, eighth, ninth and tenth assignments of error was prop- 
erly excluded, as it was not pretended that the publication was 
based upoi;! the knowledge of the facts as shown by the rejected 
testimony. A proper examination of the record suggested in 
the several offers, or knowledge by the defendant of the facts 
as stated, previous to the publication, would have made it de- 
signedly malicious. The. excluded record would have shown 
conclusively that every material fact stated in the publication 
was untrue. The published retraction declares the plaintiff to 
be " an honorable and well known gentleman," and " of course 
the public will understand that the item was a provoking error." 
It is only when grave mistakes are made that newspapers so 
frankly declare that their news items are to be disbelieved. The 
only substantive question in the case was one of fact; was the 
publication of this admittedly erroneous statement made after 
a proper inquiry into the facts as therein detailed by the news- 
paper reporter? 

The reporter was a member of the bar, and by reason of his 
professional learning had special knowledge of the place in which 
to make search for the truth or falsity of the facts given. The 
investigation of the case could have been as easily made, prior 
to the publication as after, and if made, would have disclosed 
the facts to be as stated in the retraction and as found on the 
trial. There was no pending proceeding against the plaintiff^ 
he had not been held to answer ; he had not given bail for his 
appearance ; he had not been arrested on u bail piece ; he was 
not put to jail ; and no one feared or said he feared that " he 
would leave the locality and not turn up for trial ; " all of which 
was discovered within a few hours after the publication, and 
the defendants admit each and every one of the prejudicial facts 
to be untrue. 

, The reporter relied upon a brief and hurried interview with 
an attorney, which, from his testimony was incomplete and con- 
fusing as to the true relation of the plaintiff to the case about 
which the inquiry was made. The conversation with the attor- 
ney, under the facts of the case, instead of furnishing a reason- 
able and probable cause for the publication rather made a further 
examination necessary to warrant a cautious man in believing 
that the plaintiff was guilty of any offense. 



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336 COLLINS v. NEWS CO. 

Opimon of the Court. [6 Pa. Superior Ct. 

It was not a privileged connnunication. The authorities on 
which the appellant relies to sustain the argument that it was 
such, are considered in Coates v. Wallace, 4 Pa. Superior Ct 
253, and cannot relieve the defendant in this case. It \b not 
sufficient that the defendant believed the facts to be true at the 
time of publication ; the belief must have rested on reasonable 
and probable cause : Winebiddle v. Porterfield, 9 Pa. 137 ; Chap* 
man v. Calder, 14 Pa. 365 ; Smith v. Ege, 62 Pa. 419. 

In God^halk v. Metzgar, 23 W. N. C. 541, an offer was made 
of a record of a suit, not in justification, but to show probable 
cause, and rejected ; the court sajring: " The reporter may have 
written this paragraph for the pui*pose of giving spice to his 
paper, or from other motives. It is true no offense is named, 
but it is idle to say that a statement that a man has been arrested 
and committed to the county prison in default of bail does not 
mean anything, it means a great deal, and is the more damag- 
ing from what it leaves unsaid." In Ingram v. Reed, 5 Pa. 
Superior Ct. 550, this court held, under facts more favorable to 
the defendant than in the present case, that even a cursory and 
superficial examination of a record, will not relieve or exempt 
from the charge of carelessness, when a more particular investi- 
gation of the record or case would have elicited the whole truth. 
The zeal of the reporter for sensational news must be curbed by 
a careful investigation of the accessible facts which would 
throw light upon the subject-matter before the reading public is 
furnished with that which may be proper. 

This is the requirement of the law, and has been so i-ecog- 
nized in all the cases in which the question has been raised. If 
indeed there were means at hand for ascertaining the truth of 
the matter of which the defendant neglects to avail himself and 
chooses rather to remain in ignorance when he might have 
obtained full information, there will be no pretense of any claim 
of privilege : Shelly v. Dampman, 1 Pa. Superior Ct. 115 ; Con- 
roy V. Times, 139 Pa. 334. 

In the light of the facts in this case, the numerous decisions 
of the Supreme and Superior Couits stamp the article "Arrested 
on a Bail Piece " as entirely outside the pale of privileged com- 
munications, and that it was published without reasonable or 
probable cause of the truth of its facts. The assignments of 
error are overruled and the judgment is affirmed. 



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NEWLIN V. ACKLEY. 337 

1898.] Syllabus — Assignment of Errars. 

James W. M. Newlin, Appellant, r. J. Edward Ackley. 

Appeals — Weight to be given to referee'* sjifidings of fact. 
The appellate court cannot go behind the findings of fact by a referee, 
except whei-e the assignment of eiTor is such as could he heard and deter- 
mined if the trial had been according to the course of the common law, — 
before a jury. If the evidence is relevant and proper and the findings of 
fact are i*easonably inferable therefrom, the couit must, in the absence of 
fraud, accept the report as correct. 

Argued Nov. 18, 1897. Appeal, No. 121, Oct. T., 1897, by 
plaintifiF, from judgment of C. P. Bucks Co., Feb. T., 1898, 
No. 18, in favor of plaintiff as to a portion of his claim but dis- 
missing plaintiff's exceptions to the report of the referee re- 
jecting a portion of plaintiff's claim. Before Rice, P. J., WiCK- 
HAM, Bbaveb, Oelady, Smith and Poetbb, JJ. Atiirmed. 

Foreign attachment. Before Ybrkes, P. J. 

It appears from the record that this was an action brought by 
the plaintiff to recover from defendant for professional services 
two separate sums, to wit: one of $260 and one of $750. The 
case was referred to J. Percy Keating, who found for the plain- 
tiff as to the former sum and no exception having been filed 
judgment became final as to the $250. As to the claim for 
^750 the referee reported that the services had been rendered 
and that they were reasonably worth '$750, but that the condi- 
tions under which this contingent fee was to become payable 
had not been fulfilled, hence he rejected the plaintiff's claim for 
the $750. 

Other facts appear in the opinion of the court. 

Judgment for plaintiff for $250 with interest and costs. Plain- 
tiff appealed. 

JSrrora assigned among others were (6) In dismissing plain- 
tiff's sixth exception to the referee's supplemental report, whicli 
was as follows : " That plaintiff excepts to that portion of the 
referee's second conclusion of law, which reads as follows : * The 
burden of proving that such lack of ownership was through 
defendant's fault, and that the suit was definitely determined 
Vol. VI— 22 



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838 NEWLIN v, ACKLEY. 

Assignment of Eirora— Opinion of the Court. [6 Pa. Superior Ct. 

in consequence, likewise rests with the plaintiflf and this he has 
not established.' Because this finding is a mixed one of law 
and fact and is erroneous in law, and is not supported by the 
evidence in the cause." (11) In making the order confirming 
the referee's report. 

The other specifications of error related either wholly or par- 
tially to findings of fact, and in view of the opinion of the Supe- 
rior Court it is not necessary to set out same. 

Alex. Simpson^ Jr.^ with him Henry Lear^ for appellant. — 
Where the means of proving the negative are not within the 
power of the party alleging it, but all the proof on the subject 
is within the control of the .opposite party, who, if the negative 
is not true, can disprove it at once, then the law presumes the 
truth of the negative averment from the fact that such opposite 
party withholds or does not produce the proof which is in his 
hands, if it exists, that the negative is not true : Railroad Co. 
V. Bacon, 30 111. 347 ; Ins. Co. v. Kearney, 16 Q. B. 926 ; State 
V. Lipscomb, 62 Mo. 82 ; Sheldon v. Clark, 1 Johns. (N. Y.) 
618. 

J. Edward AcJdey^ with him Robb ^ Lang^ for appellee. — The 
contract was an entire one and until complete performance on 
his part the attorney cannot sue : Tenney v. Berger, 93 N. Y. 
524 ; Whitehead v. Lord, 7 W. H. & G. 691 ; Weeks on Attor- 
neys, sees. 255, 316 ; Cordeiy's Law of Solicitors, 62. 

Opinion by Smith, J., January 18, 1898 : 

The plaintiff, an attorney at law, brought this action to re- 
cover for professional services performed for the defendant in 
certain legal proceedings instituted in the United States cir- 
cuit court, and another suit in the court of common pleas of 
Philadelphia. Upon a reference under the act of May 14, 1874, 
the plaintiff's claim for services in the latter case was allowed, 
and his claim for services in the suit in the federal court was 
wholly disallowed. Exceptions to the report of the referee, 
filed on behalf of the plaintiff, were dismissed by the court be- 
low ; whereupon this appeal was taken. 

The proceeding in the federal court was by bill in equity, 
and the claim in dispute here is for services therein. The 



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NEWLIN V. ACKLKY. 339 

1898.] Opinion of the Ck)art. 

ground of action is too indefinitely stated in the declaration, 
but is given more specifically in the plaintiff's " history of the 
case," as follows: **The proceedings on Mr. Ackley's bill in 
equity were to be conducted for said Ackley until final deter- 
mination was had on the merits. That if the cause failed on 
the merits defendant was to be charged no further fee, but that 
if it was decided in his favor then he was to pay plaintiff (ap- 
pellant) a liberal contingent fee, the amount of which was not 
agreed upon, but which should be based upon the increased 
value of said Ackley 's stock." The plaintiff alleged that it 
became necessary to abandon the equity suit in the federal 
court, because the defendant failed to acquire, prior to its com- 
mencement, the personal ownership of the street railway stock 
which he held as administrator, and upon which the suit was 
based, as he had been instructed to do, and that this failure 
precluded a determination of tlie suit on its merits. " Wherefore 
he now sues for J<750 as a quantum meruit fee, because Ackley's 
default prevented the original agreement being carried out." 
The claim before the referee was supported mainly by the plain- 
tiff's testimony. The defendant-, testifying in his own behalf, 
denied the agreement set up by the plaintiff, and also denied 
that the equity case was abandoned by reason of any fault of 
neglect on his part, and he further asserted that the equity suit 
lias not been discontinued, but is still pending in the circuit 
court Defendant further alleged that proceedings in the 
equity suit were voluntarily suspended by the plaintiff here, who 
entered into an agreement whei-eby its final disposition was 
made to depend upon the result of another action by other 
parties against the railway company, in another court, and that 
this action also remains undetermined. 

The material questions in controversy would seem to be 
covered by the report of the referee. On the principal point 
he found that it was not shown that the equity suit in the fed- 
eral court, upon which the plaintiff's claim is based, was de- 
feated, or had to be abandoned, by reason of any default of the 
defendant, and that as a fact it is still pending, and may be 
proceeded with. He further reports that the plaintiff "waft 
himself responsible for the circumstance which he relies on here 
as an obstacle to his earning his fee. He has accordingly failed 
to substantiate his claim." The pUintiff's claim is not based 



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840 NEWLIN r. ACKLEY. 

Opinion of the Court. [6 Pa. Superior Ct 

on his fulfillment of the alleged contract with the defendant, 
but on the allegation that he could not fulfil it because of the 
defendant's default. He seeks, therefore, to recover for his ser- 
vices in its prosecution, without reference to the alleged agree- 
ment. He admits that this contract called for a trial of the 
equity case on its merits and a final determination by due course 
of procedure, to entitle him to further compensation ; but he 
contends that this termination was defeated by the defendant, 
and therefore he was entitled to compensation for what he had 
done. But the referee found, on adequate evidence, that this 
contention, essential to plaintiffs recovery, was unwarranted by 
the facts. If the facts left the main question in doubt, it might 
be worth while to inquire whether the agreement entered into 
by the plaintiff, whereby proceedings were suspended in the 
equity suit until the final determination of another suit by 
other parties, and to abide the decision thereof, could be con- 
sidered a final determination on the merits of the defendant's 
equity suit in the federal court, within the meaning of the 
alleged agreement, or, if without the concurrence of Ackley, it 
was within the scope of professional services at all. This agree- 
ment of the plaintiff postponing the equity case, was properly 
admitted in evidence by the referee. It tended to refute the 
gist of the plaintiffs claim under the issue raised by the evi- 
dence. 

The controversy here involves questions of fact, and the 
paper-books of both parties would indicate that the referee heard 
a large amount of testimony and based his conclusions of fact 
and of law thereon. These conclusions would seem to be war- 
i-anted by the evidence, and are therefore binding upon us. The 
power of the appellate court to deal with the facts has often been 
passed upon, and is clearly defined by the decisions. Thus, in 
Bradlee v. Whitney, 108 Pa. 362, it was said by Clabk, J. : " It 
has been frequently held in this court that a writ of error, in 
such case, brings up only questions of law. The court cannot 
go behind the findings of fact by the referee, except where the 
assignment of error is such as could be heard and determined 
if the trial had been according to the course of the common law 
— before a jury : Jamison v. Collins, 83 Pa. 359 ; Lee v. Keys, 
88 Pa. 175 ; Brown v. Dempsey, 95 Pa. 243. If the evidence 
is relevant and proper, and the findings of fact are reasonably 



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NEWLIN V. ACKLEY. a41 

1898.] Opinion of the Court. 

inferable therefi-om, we must, in the absence of fraud, ac- 
cept the report as correct. We cannot consider the weight or 
the conflict of the evidence, or the veracity of the witnesses ; 
this is the proper office of the referee, who performs the double 
function of court and jury. Such of the assignments of error 
as are directed solely to the facts must therefore be dismissed." 
Again, in Bidwell v. Railway Company, 114 Pa. 535, the same 
learned justice said : " The findings of fact by the referee are of 
course conclusive here; we cannot review them, they are as 
binding upon us as if they had been found by a jury in the form 
of a special verdict ; the case must therefore be considered upon 
the assumption of the facts stated." This view, supported by 
all the authorities touching the point, but enunciates the distinc- 
tion of the statutes regulating the procedure in referred cases. 
All the specifications of error relate, either wholly or partially, 
to findings of fact, except the sixth and eleventh. Even were 
we permitted to re-examine and refind the facts we could not 
do so because the evidence has not been printed. There is no 
error in the sixth or eleventh specifications. 

The assignment of eiTora is overruled and the judgment 
affirmed. 



Albert Snyder v. Steinmetz & Zearfoss, Appellants. 

Province of court as to whether there is a question for the Jury, 
It is true that there is in all cases at law a preliminary question for the 
couit whether there is any evidence of the facts sought to be established 
that ought reasonably to satisfy the jury. If there is evidence fi*om which 
the jury can properly find the question for the paily on whom rests the 
burden of proof, it should be submitted. If not it should be withheld 
from the jury. 

Contract — Presumption of payment — Question for Jury. 

Where there is more than a scintilla of evidence in the casCf from which 
a contract reasonably might be inferred, and a presumption of payment 
is not conclusive, and where if the testimony of the plaintiff is believed 
such contract is established and such presumption of payment is rebutted, 
the question of credibility is for the juiy. 



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342 SNYDER v. STEINMETZ. 

Syllabus — Assignment of Erroi-s. [6 Pa. Superior Ct; 

CofUract^lmplied contract — Extra wages — Rebuttable presumption^ of 
payment, 

A contract to do extra work may be implied from a request to do such 
work, and the subsequent performance thereof and the presumption of pay- 
ment arising from a delay in presentation of a claim for extra compensa- 
tion, coupled with a regular receipting for regulation wages may be re- 
butted by evidence which is, if believed, clear, complete and convincing. 

; Argued Dec. 9, 1897. Appeal, No. 161, Oct. T., 1897, by 
defendants, from judgment of C. P. Northampton Co., May T., 
1897, No. 71, on verdict for plaintiff. Before Rice, P. J., 
WiCKHAM, Beaver, Reedeb, Orlady, Smith and Porter, J J. 
AflBrmed. 

Appeal from magistrate. Before Schuyler, P. J. 
The facts sufficiently appear in the opinion of the court. 
Verdict and judgment for plaintiff for |i68.00. Defendants 
appealed. 

Errors assigned were, (1) The charge of the court below is 
misleading when he says to the jury that ^^ it is an undisputed 
fact that the plaintiff rendered the services for which he seeks 
to recover." The part of the charge where the court misleads 
the jury is as follows: "It is undisputed that beginning with 
the year 1895, on the 10th of December, and ending on the 29tli 
day of March, 1897, the plaintiff cared for the horses of the de- 
fendants on Sunday. If this service was rendered to the defend- 
ants, at their request, or at the request of either of them, or if it 
were rendered to the defendants without any request having 
been made upon the subject, if they knew that the services were 
being rendered, then, if there were nothing further in the case, 
the plaintiff would be entitled to a verdict at your hands for the 
value of these services. But these facts do not stand alone. 
It is contended on the part of the defendants that the plaintiff 
is not entitled to recover notwithstanding he rendered these ser- 
vices. The defendants deny that they requested the plaintiff 
or that either of them requested the plaintiff to render these ser- 
vices. They deny, at least impliedly, that these services were 
rendered for them, my recollection of the testimony being that 
they presumed the services were being rendered for the other 
drivers in their employ. If that be so then the plaintiff would 



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SNYDER V. STEINMKTZ. 343 

1898.] Assignment of Errora. 

not be entitled to recover for the services, if there were nothing 
further in the case than that fact. If the plaintiff rendered 
these services without being requested to do so, and if he ren- 
dered them for the other employees of the defendants, and they 
got the benefit of the services, and the defendants did not get 
the benefit of the services, then the plaintiff would not be en- 
titled to recover. . . . Now, I have said to you that if these 
sei'vices were rendered to the defendants at their request, or 
with their knowledge, that that standing alone would entitle 
the plaintiff to recover the amount which would compensate 
him for what tliose services were really worth. I leave all the 
facts with you. There are two facts and very important facts 
in the case that are wholly undisputed. The one is that these 
services were actually i-endered." (2) In that part of their 
charge where they say : ** The law upon this subject is this, that 
where settlements are made with employees from time to time, 
and the employee receives payment from time to time for the 
services which he has rendered, and does not complain that the 
amounts that he received wei-e too small, but accepts them 
without objection and without any remonstrance on his part, I 
say the law applicable to that condition of things is that it is 
very strong evidence that the claim of the plaintiff is not well 
founded. I have been asked to take the case away from you 
upon that point. I do not think that the law goes that far, but 
the law goes this far, that, as I have said to you, the fact of the 
receipt of so many payments without any hint at all of any 
omission, is strong evidence that a superadded claim is not well 
founded." (8) In their answer to the defendants' point. The 
point and answer thereto are as follows : " 1. The court is asked 
to say to the jury that the plaintiff's claim being for wages, and 
he having worked for the defendants from December 10, 1895, 
to March 29, 1897, and the defendants having paid him every 
Saturday night, and he never having demanded extra pay for 
Sundays, the presumption is that the wages paid him on Satur- 
day night was in full of all moneys due him up to the time of 
such payments. Answer : If you find the facts as stated in thin 
point, these facts furnish strong evidence against the claim set 
up by the plaintiff." (4) In their answer to the plaintiff's third 
point. The point and aiifswer thereto are as follows: "8. If 
there be substantial change in the nature or amount of the labor 



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S44 SNYDER v. STEINMETZ. 

Assignment of Erroi-s— Opinion of the Court. [6 Pa. Superior Ct. 

and service perfoiined by the plaintifif, the law presumes that 
the plaintiff is entitled to extra compensation, proportioned to 
the increased labor and services. Answer: That point I affirm 
with the same qualification." 

William Fackenthall^ for appellants. — The payment to the 
plaintiff every Saturday was a payment in full for the week, 
was so considered and accepted by the plaintiff and the court 
should have said so to the jury: Webb v. Lees, 149 Pa. 13; 
153 Pa. 436; McConnell's Appeal, 97 Pa. 31. 

A. B. ffowelly for appellee. — If the contract was not done by 
request, but the appellants knew that it was being done and 
received the benefits of it, the law implies an obligation on their 
part to pay for it: Swires v. Parsons, 5 W. & S. 357 ; Curry v. 
Curry, 114 Pa. 367. 

The presumption of pa3rment in this case is but a presump- 
tion of fact and may be rebutted: McConnell's Appeal, 97 
Pa. 31. 

If there be more than a mere scintilla of evidence in support 
of the appellee's case, even though it be weak, it is an error for 
the court not to submit it to the jury : Pattei-son v. Dushane, 
115 Pa. 334; Express Co. v. Wile, 64 Pa. 201 ; Bank v. Wire- 
back, 106 Pa. 37. 

Opinion by Beaver, J., January 18, 1898 : 

The plaintiff, a driver of a horse which he attended only dur- 
ing working days, being in the employ of the defendants at a 
stipulated rate of wages, which were paid at the end of each 
week, alleged that one of his employers had handed him the 
keys of the stable in which the four horses belonging to the de- 
fendants were kept, sa}n[ng " You take care of the horses and 
feed them and I will make arrangements witti you in a day or 
two." This was immediately after another employ^ in the ser- 
vice of the defendants, who had general charge of the horses 
and their exclusive care on Sunday, left that employment. 

As was said by the court below, it was " undisputed that be- 
ginning with the year 1895 on the 10th of December and end- 
ing on the 29th day of March, 1897, the plaintiff cared for the 
horses of the defendants on Sunday." This was testified to by 



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SNYDER V. STEINMETZ. 345 

1898.] Opinion of the Court. 

the plaintiff, by one or more of his co-employees and by others 
who had knowledge of the facts. It was not disputed. One 
of the defendants admitted his knowledge of the fact that the 
plaintiff was doing the work for which he claimed but added, 
by way of explanation, that he supposed he was doing it for and 
under some arrangement with the other drivers. There was no 
denial and no attempt at denial of the fact that the plaintiff ac* 
tually did the work. 

The defense was twofold: First, that the work was not done 
for the defendants under any contract, either express or im- 
plied, and that, therefore, they were not liable to pay for the 
same; and, second, that the weekly payments made by the 
defendants and accepted by the plaintiff raised the presumption 
" that the wages paid on Saturday night was in full of all moneys 
due him up to the time of such payments." 

It is not claimed by the plaintiff that there was any express 
contract between him and the defendants for the extra work 
for which he claims in the present suit. The contract must be 
inferred from the alleged request made by one of the defend- 
ants, when the keys were delivered to the plaintiff, to take 
charge of the horses and that he would make an arrangement 
in reference thereto in a day or two, and from the fact that 
plaintiff entered upon and continued to perform the extra work 
which the alleged employment contemplated and imposed. It 
is not alleged that such an arrangement ever was actually made. 
The plaintiff could recover, therefore, if entitled to anything, 
only what the services rendered in pursuance of this alleged 
i-equest were reasonably worth. As to their value there was 
ample evidence for the consideration of the jury. 

The presumption of payment, raised by the facts in evidence, 
was twofold : First, that arising from the delay in making de- 
mand for payment for the alleged extra services, until the plain- 
tiffs discharge ; and second, from the acceptance every week of 
the regular weekly wages which were paid subsequent as well 
as prior to the alleged employment for extra work, for which 
the plaintiff claimed. 

In McConnell's Appeal, 97 Pa. 81, where a domestic servant 
made no demand for the payment of wages, until after the death 
of her employer and several years after the services were ren- 
dered, it was held that this delay raised a presumption of pay- 



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346 SNYDER v. STEINMETZ. 

Opinion of the Couit. [6 Pa. Supedor Ct. 

ment, but it was said by Mr. Justice Paxson who delivered the 
opinion of the court, " It is, however, a presumption of fact 
merely and liable to be rebutted." In Webb v. Lees et al., 149 
Pa. 13, relied upon by the appellants, it was held that " When 
an employee is shown to have accepted wages from week to 
week for a period of months, at a rate in accordance with his 
own returns of time, it is convincing evidence that he was to 
be paid according to time, and not only should it be so set be- 
fore the jury but the jury should not be permitted to disregard 
it in the absence of an explanation equally clear, complete and 
convincing and made out by evidence that does and ought to 
carry conviction." The facts in both of these cases were, how- 
ever, different and easily clistiiiguished from those which we 
are considering. The evidence in the present case was such as 
was necessarily submitted to the juiy. If believed by them, as 
it evidently was, it rebutted the presumption of fact raised by 
the delay in making the demand and was sufficiently convinc- 
ing to satisfy the jury that the weekly envelope payments had 
not contained the wages earned by the plaintiff in the extra 
work alleged by him to have been done on Sunday in the sta- 
bles of the defendants for their benefit. The testimony of the 
plaintiff as to the emplojinent by one of the defendants was 
specific, the fact that he did the work was clearly proved and 
seems to have been known by both the defendants, Steinmetz 
testifying on cross-examination that the fact was communicated 
to him by his partner, and the plaintiff's explicit statement wa^ 
evasively met by Steinmetz in his cross-examination. There 
was, therefore, much more than a scintilla of evidence which 
could not be withheld from the jury : Patterson v. Dushane, 
115 Pa. 384. It is true that " there is in all cases at law a pre- 
liminary question for the court whether there is any evidence 
of the facts sought to be established that ought reasonably to 
satisfy the jury. If there is evidence from which the jury can 
properly find the question for the party on whom rests the bur- 
den of proof, it should be submitted. If not, it should be with- 
held from the jury : " McKnight v. Bell, 135 Pa. 358 ; but 
there was evidence in this case from which a contract might be 
reasonably inferred and the presumption of payment was not 
conclusive: Weaver v. Craighead, 104 Pa. 288; Cover v. 
Manaway, 115 Pa. 338. If the testimony of the plaintiff was 



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SNYDER v. STEINMETZ. 847 

1898.] Opinion of the Court. 

to be believed* the jury could well find in his favor and the 
question of his credibility was entirely for them. 

The instructions of the trial judge in the court below as to 
the implied contract under which the plaintiff sought to recover 
and as to the effect of the receipt of his weekly wages were not 
unfavorable to the appellants ; and, taking the charge and an- 
swers to points together, fully and fairly covered the case. 

The judgment is, therefore, affirmed. 



The R. Rothschilds Sons' Company, a corporation incor- 
porated and doing business under the laws of the state 
of Ohio, Appellant, v. E. F. McLaughlin. 

Province of court cu to whether there is question for Jury, 
There is in all cases at law a preliminary question for the court whether 
there is any evidence of the facts sought to be established that ouglit reu- 
8onal|]y to satisfy the jury ; if there is evidence from which the jury can 
properly find the question for the party on whom rests the burden of 
proof, it should be submitted. If not, it should be withheld from the 
juiy. 

Evidence— Parol evidence to reform written contract— Quantity and 
guaiity. 

To reform or contradict a written contract the evidence of fraud or mis- 
take must be sufBcient to move the conscience of a chancellor to reform 
the instrument ; that is as to quantity, there must be the testimony of two 
witnesses or one witness with corroborating circumstances equivalent to 
a second, and as to quality, the evidence must be clear, precise and indu- 
bitable. 

Province of court and jury— Inadequate charge as ground for reversal. 

Where the trial judge fails to give the jury proper instructions as to the 
vital question in the case and either entirely overlooks or disregards the 
same, it is ground for reversal. 

Argued Nov. 18, 1897. Appeal, No. 120, Oct. T., 1897, by 
plaintiff, from judgment of C. P. Delaware Co., June T., 1896, 
No. 141, on verdict for defendant. Before Rice, P. J., Wick- 
HAM, Beavbr, Rebder, Oelady, Smith and Porter, J J. 
Reversed. 



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348 ROTHSCHILDS CO. v. MoLAUGHLIN. 

Charge of Court. [6 Pa. Superior Ct. 

Replevin. Before Clayton, P. J, 

The facts sufficiently appear in the charge of the court below, 
as follows : 

" This is an action of replevin in which the plaintiff, when he 
issued his writ, claimed to be the owner of certain barroom fix- 
tures which he says he leased to Mr. McLaughlin. The real 
transaction between the parties was in the nature of a condi- 
tional sale. The plaintiffs were willing to sell the fixtures, the 
title to remain in them until they should be paid for ; that is 
the transaction between the parties, and it was a lawful trans- 
action ; the law permits agreements of that kind. It is in the 
natui'e of a conditional sale between the parties ; that is to say, 
the plaintiff agreed to lease these articles for what they call a 
rent, and after a certain amount of rent shall be paid equal to 
the value of the articles, then the title was to pass to Mr. Mc- 
Laughlin and not before. So, you see, the whole question for 
you is. Has the article been paid for ? If it has, then the title 
at the time of the issuing of this writ was in Mr. McLaughlin, 
and he is entitled to your verdiot. If the articles have not been 
paid for then the title was in the plaintiff, Rothschilds. Now, 
whether the full price has been paid or not, will depend upon 
all the circumstances of the cause. 

The defendant alleges that they did not send him the article 
he purchased ; that they sent him an inferior article, worth much 
less, and, as he had paid $100 down, and had paid $50.00 on the 
freight, or at the time it was delivered, he kept the articles with 
the understanding that they should make good to him what 
they represented the articles to be, or with the intention upon 
his part to set off the difference in value between the article he 
received and the article he was to receive. I say to you that 
under the operation of this peculiar action he has the right to 
do it The action of replevin in Pennsylvania is an equitable 
action. It will lie in every case to test the title to personal 
property. The operation of the action of replevin is to settle 
the title to personal property, and the title to this property is in 
Mr. McLaughlin if Mr. McLaughlin has paid for it. If he has 
not paid for it the title is in the plaintiff, Rothschilds, and Roth- 
schilds will be entitled to your verdict, and his verdict will be 
the value of Uie property. As a rule, all other circumstances 



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ROTHSCHILDS CO. v. McLAUGHLIN. 849 

1898.] Charge of Court. 

being equal, what the party agrees to pay for a certain article 
is its value ; but if the article contracted for was not sent, if an 
inferior article was sent, then there is an implied agreement 
only to pay the value of the inferior if the man accepts it and 
within a reasonable time makes his claim. If, therefore, you 
shall find, and the first question will be for you, did Roth- 
schilds send Mr. McLaughlin an inferior article ? Did he send 
the article that Mr. McLaughlin bought from him ? If he did 
not, what is the difference in the price ? That is the whole ques- 
tion. Now you will have no diificulty in regard to that. You 
will consider first whether the article that was received by Mr. 
McLaughlin was the article that he contracted for. If you find 
that it was, then the contract price is what your verdict should 
be, less what has been paid; and, in that event, your verdict 
would be for the plaintiff for $301.20. If you come to the con- 
clusion that the Rothschilds did not send the article that was 
bargained for, if you find that he sent an inferior article which 
was worth less money, then the implied contract would be that 
the title should vest in Mr. McLaughlin as soon as he paid what 
the article was reasonably worth ; and, if you find that it was 
reasonably worth less than the article that he agreed to pur- 
chase, then just what that is worth is what your verdict should 
be, deducting what has been paid. As I understand — what 
amount has been paid ? 

Mr. Baker: «380. 

The Court : $330 has been paid, and Mr. Gray and Mr. Mc- 
Laughlin say that the article received was not worth more than 
$330. If that is so and the bar received was not the one agreed 
to be leased, then the defendant is entitled to a verdict. If you 
find that the article sent was not the article bargained for, and 
that it was worth only $320 or $330 instead of $600, then, as 
the $330 has been paid the title is in Mr. McLaughlin ; he has 
paid for what he got. But if you find that they sent on to him 
the article he contracted for, if they kept their contract with 
him, then the price of the article purchased is the $600 agreed 
upon between the parties, and as $330 has been paid there 
will be $270 due. Now the plaintiff was entitled to have that 
money at the time that his action was brought, at least ; and 
therefore he should have damages for the detention, which, in 
this case, should not be more than six per cent, which would 



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850 ROTHSCHILDS CO. v. McLAUGHLIN. 

Charge of Court— Arguments. [6 Pa. Superior Ct. 

amount in this case to $301.30. Their claim, I say, is for $301.30, 
including the damages for the detention under the allegation 
they have sent what they agreed to furnish, and for that that 
is what they are entitled to, and if they have not, then you will 
deduct from the $301.30 whatever you think the difference is 
between the article contracted for and the article that was sent. 

Now, gentlemen, that is all the light that I can give you upon 
this case. The question is reduced to a simple point. Consider 
these two questions that I have laid before you, and if you come 
to the conclusion that the plaintiffs here have carried out their 
contract and have furnished Mr. McLaughlin with the fixtures 
he contracted for, then there would be due to the plaintiff the 
sum of $801.30. If, on the other hand, you find that they did 
not send him the article he bought, and that under the circum- 
stances the best that he could do was to keep what they did 
send him, then h^ is only to pay what the article was reasonably 
woi-th, and it will be for you to say what deduction should be 
made if you should so find. 

The contract and letters offered in evidence are sent to the 
jury. 

Verdict and judgment for defendant. Plaintiff appealed. 

En^or assigned among others was (22) the charge as a whole 
failed to give the jury instructions as to their duty in the case, 
and left them in ignorance of the law applicable thereto. 

A. B. Qeary^ for appellant. — Where parties, without any fraud 
or mistake, have deliberately put their engagements in writing, 
the law declares the writing to be not only the best, but the only 
evidence of their agreement : Thome, McFarlane & Co. v. Waf- 
flein, 100 Pa. 619 ; Baer's Appeal, 127 Pa. 360 ; Irvin v. Irvin, 
142 Pa. 271 ; Wodock v. Robinson, 148 Pa. 603 ; Hoffman v. 
Raiboad Co., 157 Pa. 174. 

The only ground upon which the court could submit to the 
juiy the power to find that the plaintiff did not send the article 
contracted for would be that there was suflScient evidence of 
alteration of the contract or evidence of fraud clear, precise and 
indubitable and so direct and clear that a chancellor would re- 
form the agreement, anything short of this ought not to be sub- 
mitted to the jury : McGinity v. McGinity, 63 Pa. 38 ; Rowand 



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ROTHSCHILDS CO. v. McLAUGHLIN. 851 

1898.] Arguments — Opinion of the Couit. 

V. Finney, 96 Pa. 192; Murray v. R. R. Co., 103 Pa. 87 ; Syl- 
vius V. Kosek, 117 Pa. 67; McClain v. Smith, 158 Pa. 49. 

If the charge is inadequate in its treatment of the question 
submitted, such defect will be ground for reversal : Young v. 
Merkel, 163 Pa. 613 ; Fineburg v. Railway Co., 182 Pa. 97. 
If no particular instructions be asked, the court is responsible 
for the general effect only of the charge ; and in considering 
the charge the whole of it must be taken together. If, when 
so considered, it has a tendency to mislead, though no partic- 
ular portion of it be erroneous, it is cause for reversal : Insur- 
ance Co. V. Rosenberger, 8 W. N. C. 16 ; Iron Co. v. Diller, 17 
W. N. C. 6. 

We respectfully submit that the charge was inadequate and 
misleading to the jury, and failed to present to them the real 
question for their consideration. 

No argument or paper-book for appellee. 

Opinion by Beaver, J., January 18, 1898 : 

Whilst it is always more satisfactory to us to have both 
appellant and appellee represented by counsel and to have, in 
most cases, written and oral arguments presented for our con- 
sideration, we are, nevertheless, enabled to reach a fairly satis- 
factory understanding of the position of the defendant in this 
case from the colloquies which occurred between his counsel 
and the coui't in the course of the trial below. The first im- 
pressions of the trial judge, as the case unfolded in the trial 
were correct and, if they had been adhered to and embodied in 
the charge to the jury, it is probable that this case would not 
have been presented for our consideration. 

The plaintiff company and the defendant, on the 14th of 
January, 1895, in the city of New York, entered into a written 
agreement in and by which the plaintiff leased to the defend- 
ant certain bar fixtures, therein fully described, upon the terras 
and conditions set forth in the lease. This agreement undoubt- 
edly constitutes a bailment and was so recognized by the court 
below. It is true that the tiial judge speaks of it in his charge 
as being ^* in the nature of a conditional sale between the par- 
ties " but he clearly recognized the true character of the trans- 
action in what follows : '' that is to say, the plaintiff agreed to 



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3&2 ROTHSCHILDS CO. v. McLAUGHLIN. 

Opinion of the Court. [6 Pa. Superior Ct 

lease these articles for what they called a rent and, after a cer- 
tain amount of rent shall be paid, equal to the value of the 
articles, then the title was to pass to Mr. McLaughlin and not 
before." If there were nothing else in the case, the appellant 
would have little to complain of. 

Twenty-two assignments of error are presented for our con- 
sideration. The twentynsecond is as follows : " The charge, as 
a whole, failed to give the jury instructions as to their duty in 
the case and left them in ignorance of the law applicable thereto." 
The discussion of this assignment will practically cover all that 
need be said in regard to the case. As we remarked in Snyder 
v. Steinmetz, ante, p. 341, in which an opinion has been this 
day filed, quoting McKnight v. Bell, 186 Pa. 358: "There is 
in all cases at law a preliminary question for the court whether 
there is any evidence of the facts sought to be established that 
ought reasonably to satisfy the jury ; if there is evidence from 
which the jury can properly find the question for the party on 
whom rests the burden of proof, it should be submitted. If 
not, it should be withheld from the jury," 

Was there any evidence in this case which should have been 
submitted to the jury, from the consideration of which, under 
any circumstances, they could find for the defendant? The 
agreement of the parties was in writing, the defendant's testi- 
mony showing that, when executed in the office of the plaintiff 
in New York, the only persons present were the defendant him- 
self and the agent of the plaintiff who is the subscribing witness 
thereto. It would seem also as if the defendant were the only 
person pi'esent, when the memoranda in the agreement, which 
constitute the description of the fixtures, were made. The 
effort was made to discredit and set aside the written agreement 
upon the theory and allegation that the fixtures shipped by the 
plaintiff to the defendant were not those which he purchased 
or leased. There was no effort to show that they did not cor- 
respond with the description contained in the written agree- 
ment. It was, thei*efore, incumbent upon the defendant at the 
outset to discredit the agreement which was in writing. This 
could only be done, under the circumstances, by proof of fraud 
or mistake. As has been held in very many cases, so familiar 
to the profession that they need not be recited here, the evi- 
dence of fraud or mistake must be sufficient to move the con« 



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ROTHSCHILDS CO. v. McLAUGHLIN. 853 

1898.] Opinion of the Court. 

science of a chancellor to reform the instrument ; that is, as to 
quantity there must be the testimony of two witnesses or one 
witness with corroborating circumstances equivalent to a sec- 
ond, and as to quality the evidence must be clear, precise and 
indubitable. A number of cases relating to this subject are 
collected in Honesdale Glass Co. v. Storms, 125 Pa. 268. It is 
scarcely necessary to say, in view of what we have already said 
on this subject, that it is at least doubtful whether either in 
quantity or quality the proof in this case came up to the re- 
quirements of the law in reference to the contradiction of a 
written instrument by parol evidence on the ground of fraud 
or mistake. This goes to the root of the case and should have 
been distinctly passed upon by the court below, but there is not 
a word said in the charge in regard to a written agreement nor 
as to the rules under which it is allowable to contradict it. 
Nothing is said to the jury as to the measure and quantum of 
proof required for that purpose. Indeed the case was left to 
the jury as if the purchase had been made by a parol agreement, 
and tlie witnesses were permitted to testify, without reference 
to the written agreement, that the article shipped by the plain- 
tiff and received by the defendant was not the article purchjised. 

Even if this had been so, what was the duty of the defendant, 
when the fixtures were received and the discovery made that 
they were not what he purchased ? It was clearly his duty, either 
to refuse to receive the goods ; or, having opened them before 
the mistake or fraud was discovered, to return them or offer to 
return them immediately. Instead of doing this, the defend- 
ant unpacked the fixtures, set them up in his place of business 
and used them continuously paying numerous instalments under 
the lease, apparently without objection, until the writ of replev- 
in, which is the foundation of this suit, was issued by the plain- 
tiff. The defendant seeks to avoid the discharge of this plain, 
legal duty by saying that he gave notice to the plaintiff's agent, 
his friend and witness, Gray ; but there is nothing in the case, 
except the defendant's own allegation, that Gray was in any 
sense the agent of the plaintiff, and his testimony on the sub- 
ject is very unsatisfactory and indefinite. 

The court below failed to give the jury proper instructions as 
to the duty of the plaintiff in regard to the return or offer to 
return of the fixtures, when received by him, and did not allude 
Vol. VI— 23 



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354 ROTHSCHILDS CO. v. McLAUGHLIN. 

Opinion of the Court. [6 Pa. Superior Ct. 

in any way to the measure of proof necessary to establish the 
agency of Gray. The vital questions in the case were, there- 
fore, entirely overlooked or disregarded by the court in its 
charge to the jury and the twenty-second assignment of error, 
which we have quoted, must be sustained. 

It is scarcely necessary to discuss in detail the various assign- 
ments of error. Enough has been said to indicate the general 
principles which should govern in submitting the case to the 
jury. These principles are fundamental, and if properly ob- 
served will doubtless govern in the admission of evidence as 
well as in the instructions to the jury. 

The judgment is reversed and a new venire awarded. 



F. A. North & Co., Appellants, v. Mrs. E. M. Yorke. 

Practice, C. P. — Sufficiency of affidavit of defense — Conditional sale. 

Under a contract, in form a bailment, but, as between the parties at 
least, a conditional sale, an affidavit is sufficient which, admitting a de- 
fault in the payment of instalments of purchase money due under the con- 
tract, aven*ed a surrender of the chattel in controversy, that it was at tlie 
lime of such return worth more than the balance due by defendant thereon, 
and finally that the vendor plaintiff accepted the organ in full settlement 
and satisfaction of any claims against the affiant. 

Argued Dec. 7, 1897. Appeal, No. 55, Oct. T., 1897, by 
plaintiffs, from judgment of C. P. Montgomery Co., Dec. T., 
1894, No. 102, refusing judgment for want of a suflScient affi- 
davit of defense. Before Rice, P. J., Wickham, Beaveb, 
Reeder, Orlady, Smith and Porter, JJ. Affirmed. 

Assumpsit for goods sold and delivered. Before SWARTZ, P. J. 

The plaintiffs, by a written agreement in the form of a lease, 
sold to defendant a symphony organ and from time to time sold 
to the defendant certain rolls of music for use in said organ. 
The defendant having become in arrears and the terms of the 
alleged lease having fully expired, plaintiffs demanded a settle- 
ment of the arrearages of the alleged rental, which defendant 
could not make. During the pendency of negotiations the or- 



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NORTH & CO. V, YORKE. 355 

1898.] Statement of Facts— Assignment of Errors. 

gan and music were returned, and the plaintiffs brought suit to 
recover the alleged arrearages of rental. 

Defendant filed an affidavit of defense as follows : 

E. M. Yorke, defendant above named, being duly sworn ac- 
cording to law, deposes and saith : 

That she has a full and complete defense against the whole 
of the claim on which suit has been brought against her in the 
above case, of the following nature, to wit : 

That on or about March 31, 1891, said plaintiffs sold to her 
the certain organ refened to in plaintiffs' claim, conditionally 
upon her payment therefor of the sum of four hundred and 
seventy-five dollars ($475), in monthly instalments on said 
organ. 

That said defendant paid between the Ist day of May, and 
the 28th day of January, 1893, on account of said monthly 
instalments the sum of one hundred and seventy-five dollars 
(♦175) on said organ, and finding herself unable to pay the bal- 
ance of said purchase money, surrendered and delivered said 
organ to said plaintiffs on or about July 31, 1893, and plaintiffs 
accepted the same ; and the said defendant is advised that by 
said acceptance she was forthwith released from further liability 
on said contract of purchase. 

And the said defendant further saith that at the time of the 
return to the said plaintiffs of said organ, the same was worth 
more money than the balance of the contract price for the pur- 
chase of the same after deducting therefrom the payments made 
by her, and that she verily believes and expects to be able to 
prove that said plaintiffs accepted said organ in full settlement 
and satisfaction of any claim they might have against her, by 
reason of her contract of purchase with them. 

All of which facts defendant believes to be true and expects 
to be able to prove on trial of above case. 

A former branch of this case was reported in 174 Pa. 349. 

The court below discharged the rule for judgment for want 
of a sufficient affidavit of defense. Plaintiffs appealed. 

Errors assigned among othera were (1, 2) In discharging 
plaintiffs* rule for judgment for want of a sufficient affidavit of 
defense, and not making the same absolute. (3) In holding as 
follows : " The contract was in reality a conditional sale, but 



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856 NORTH & CO. v. YORKE. 

Assignment of Errors — Arguments. [G Pa. Superior Ct. 

the law allows these contracts to be clothed in the di'ess of bail- 
ments, and sustains them as such in the interest of both the 
vendor and vendee." (4) In holding that "the penalty for 
nonpayment is a redelivery of the organ to the vendor, and the 
repossession is a discharge of the penalty. The vendor could 
have proceeded against the defendant for the overdue instal- 
ments ; he saw fit, however, to take the other remedy ; either 
was complete in itself, and the plaintiffs in default could collect 
the money or retake the organ. The two remedies were not 
cumulative ; they could not adopt both unless it was plainly 
expressed in the contract, or a necessary implication from its 
terms." (5) In holding that *' at the end of the term, if the 
payments were made, the organ was the property of the defend- 
ant, without the further payment of a penny." (6) In holding 
that " taking back the organ in default of payments was a I'e- 
scission of the contract, and an end of any personal obligation 
on the part of the lessee." (7) In holding that " the defend- 
ant says she returned tlie organ because she was unable to make 
the payments. This was a privilege as well as a duty under 
her contract. In default of any monthly payment the said les- 
see agrees to redeliver said organ to the party of the first part. 
Even if this provision was made for the protection of the lessors, 
and they alone could take advantage of it, still, as they accepted 
the organ, as alleged in the affidavit, it was a redelivery under 
the terms of the lease, because of default in payments." 

Chapman ^ Chapman^ with them Joseph Fomance^ for appel- 
lants. — This affidavit does not set out any agreement between 
plaintiffs and defendant, either to accept said organ as a partial 
or a total satisfaction. It can be presumed that there was no 
such agreement, otherwise it would have been set out, and it is 
therefore the more necessary for affiant to set out the facts on 
which she bases her statement, that she " verily believes " the 
plaintiffs accepted said surrender in full satisfaction. Her aver- 
ment of acceptance by plaintiffs, without any thing to show how, 
when, or in what manner, is a statement of a legal conclusion, 
and insufficient : Bank v. Stadelman, 153 Pa. 634. 

In holding that the contract is in reality a conditional sale, 
masquerading under the guise of a bailment, the learned court 
below has committed a serious eri'or : Edwards' Appeal, 105 Pa. 



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NORTH & CO. V. YORKE. 857 

1898.] Arguments— Opinion of the Court. 

108; Jones v. Wands, 1 Pa- Superior Ct 269; Rieker v. 
Koechling, 4 Pa. Superior Ct. 286. 

The contract contained the essential feature of a lease or con- 
tract of hiring, to wit : The provision for the return of the goods : 
Farquhar v. McAlevy, 142 Pa. 234. 

Henry Pleasants^ with him Montgomery Evans and George W. 
Reed^ for appellee. — Either remedy was complete in itself, and 
the plaintiffs, on default, could adopt either; but they were 
not cumulative ; they could not adopt both unless it was plainly 
expressed in the contract, or a necessary implication from its 
terms. 

Similar rulings were previously made by the Supreme Court 
in Campbell v. Hickock, 140 Pa. 290, Scott v. Hough, 161 
Pa. 680, and Durr v. Replogle, 167 Pa. 347. 

Opinion by Porter, J., Januarj^ 18, 1898 : 

Agreements of the kind disclosed in this case usually come 
before the courts for interpretation in controversies between the 
vendor of chattels and creditors of the vendee. Here we are 
required to construe the agreement as between the original par- 
ties to it. 

The form of the contract is one of hiring or bailment, but the 
parties evidently intended that the event should be an absolute 
purchase : Seanor v. McLaughlin, 165 Pa. 154. In construing 
this contract and in determining the rights and liabilities under 
it, we must look not so much to form as to substance and 
intention. The plaintiff under the form of a lease, in effect, 
sold to the defendant an organ on certain expressed conditions. 
Payment was to be made in periodic instalments covering a 
specified period. These instalments were called rent, but as 
between the original parties they were in fact payments on ac- 
count of the purchase money. On the failure to pay any in- 
stalment the defendant agreed to redeliver the chattel to the 
plaintiff. On a failure so to deliver the plaintiff had the right 
to reposses himself of the chattel, should he so desire. In this 
case the defendant fell into default and did not immediately 
redeliver to the plaintiff. The plaintiff did not exercise his 
right to take possession but allowed subsequent defaults to 
occur, and did not at any time during the running of the con- 



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358 NORTH & CO. v. YORKE. 

Opinion of tlie Court. [6 Pa. Superior Ct« 

tract repossess himself of the chattel. The only construction 
that can reasonably be placed upon this course of action is that 
the plaintiff extended the time for the payment of the instal- 
ments. 

At the expiration of the time when all the instalments should 
have been paid, the plaintiff was entitled to recover the total 
aniount stipulated by the contract to be paid with interest. 
Failing to immediately demand this, the organ seems to have 
remained with the defendant for a considerable time. Being 
unable to discharge the balance of her indebtedness she avers 
" That she surrendered and delivered said organ to said plain- 
tiffs on or about July 31, 1893." This was a right as well as 
an obligation under the conditions of the contract. 

The affidavit contains the further averment : " That at the 
time of the return to said plaintiffs of said organ the same was 
worth more money than the Imlance of the contract price." She 
further avers that " She believes and expects to be able to prove 
that said plaintiffs accepted said organ in full settlement and 
satisfaction of any claims they might have against her." 

While the affidavit might have been more specific in detail, 
yet we are satisfied that the averments are sufficiently set forth 
to prevent the entry of judgment, and we do not i*egard it as 
necessary at this stage of the cause to do more than indicate 
our views of the contract as above expressed. 

The order of the court below discharging the rule for judg- 
ment is affirmed. 



City of Chester v. Mary McGeoghegan et al., Appellants. 

Jurisdiction, J. P. — Reduction of municipal claim by remission of the 
penalty. 

A naunicipality having cause of action to recover a municipal assess- 
ment and penalty tliereon, may throw off the penally and thus bring the 
claim within the jurisdiction of an iilderman. 

Municipal law— Power to compromise claims. 

Municipal officers may compromise claims or remit them in whole or in 
part when delay and expense may be saved by so doing ; they are respon- 
sible at the pi^oper time and place for so doing, but a debtor being sued as 
such is not in position to call thera to an account. 



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CHESTER V, McGEOGHEGAN. 359 

1898.] Statement of Facts— Opinion of the Court. 

Argued Nov. 16, 1897. Appeal, No. 20, Oct. T., 1897, by 
defendants, from judgment of C. P. Delaware Co., Sept. T., 
1895, No. 226, in favor of plaintiff for want of a sufficient affi- 
davit of defense. Before Rice, P. J., Wickham, Bea^^r, 
Orlady, Smith and Porter, JJ. Affirmed. 

Assumpsit on a claim for paving. Before Clayton, P. J. 

The facts sufficiently appear in the opinion of the court. 

The court entered judgment for want of a sufficient affidavit 
of defense for #298.74, plaintiff having omitted that part of its 
claim for penalty prescribed by the act of assembly. Defend- 
ants appealed. 

Error aBngned was in making absolute plaintiff's rule for 
judgment for want of a sufficient affidavit of defense. 

J. V, McQeoghegan^ with him Charles A. Lagen^ for appel- 
lants. — The remedy given is not only specific, but it is the only 
remedy designated in the act for the adjudication of such claims : 
Campbell v. Grooms, 101 Pa. 481. 

In all cases where a remedy is provided the directions of the 
act of assembly must be strictly pursued : Beltzhoover v. Gol- 
lings, 101 Pa. 293. 

The plaintiff cannot reduce part of his claim and thereby give 
the justice jurisdiction: Collins v. Collins, 37 Pa. 387 ; McFar- 
land V. O'Neil, 166 Pa. 266. 

A, A, Cochran^ for appellee. — Interest is simply an incident 
of debt overdue which a person may claim or not at his pleas- 
ure. It follows that he may remit a penalty for the same pur- 
pose : Quigley v. Quigley, 10 W. N. C. 388 ; Evans v. Hall, 
46 Pa. 236. 

Opinton by Wickham, J., January 18, 1898 : 
The city of Chester had the right, under the Act of May 23, 
1889, P. L. 272, and an ordinance passed in accordance there- 
with, to sue for, and recover from the appellants, a municipal 
assessment of $220.66, together with interest and a penalty of 
five per centum, amounting in all to $308.76. 
Instead of suing for the latter sum, the city threw off the 



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860 CHESTER v, McGEOGHEGAN. 

Opinion of the Court. [6 Pa. Superior Ct. 

penalty, amounting to $11.02, and brought suit before an alder- 
man for the debt and interest only, the aggregate of both being 
less than $300. The only question before us is whether the 
plaintiff could give the alderman jurisdiction by waiving its 
right to the penalty, and thus bringing the claim below fSOO, 
the maximum amount for which an action could be brought 
before the magistrate. 

We have no hesitation in holding that this could legally be 
done. In Evans v. Hall, 45 Pa. 235, it was decided, that while 
one cannot by relinquishing a part of his debt give a justice of 
the peace jurisdiction, he may accomplish that result by refrain- 
ing from claiming interest, the reason assigned being that the 
interest is no portion of the debt proper, but merely an inci- 
dent thereof. There is much stronger reason for saying that 
the penalty, in the present case, is no more than an incident of 
the indebtedness. Interest, where it can be claimed as of right, 
is now popularly regarded as an outgrowth of the debt and 
therefore practically a part of it, whereas a penalty is something 
collateral and foreign tacked on to the principal thing. 

The appellants argue, however, that the city, because it is a 
municipality having its powers and duties defined by statute, 
cannot legally sue for less than the principal, with the interest 
and penalty attached. To this we cannot assent. The proper 
municipal officers may compromise claims, or remit them in 
whole or in part, when delay and expense may be saved by so 
doing, being responsible at the proper time and place for any 
breach of duty. The appellants are not in court as citizens 
defending the rights of the city, but as mere debtors refusing 
to pay a just debt, on the sole ground that the plaintiff might 
have sued for more. They cannot be heard to object, in this 
proceeding, that the city authorities have done what any private 
suitor might lawfully do, to secure a standing in the alderman's 
court. 

Judgment affirmed. 



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BELBER V. BELBER. 861 

1898.] Syllabus—Arguments. 



M. Y. Belber v. M. Belber. Appeal of Mayer Alsberg 

etal. 

ExectUio7i— Standing of judgment creditor to contest prior execution, 
A judgment creditor whose execution has been issued on a transcript 
from the judgment of a magistmte, has no standing to resist the right of 
a prior execution creditor to take the fund out of court when an appeal has 
been regularly taken in due time from the judgment of the magistrate. 

Judgment— Transcript filed pending time of appeal^ Practice, C, P. 

An appeal from the judgment of a magistrate regularly taken, ipso facto, 
destroys a judgment obtained by filing a transcript in the common pleas. 
A plaintiff cannot prevent this result, by humedly taking a transcript to 
the prothonolary^s office, provided the defendant, within the time allowed 
by law, take and enter his appeal. 

Argued Oct. 21, 1897. Appeal, No. 3, Oct. T., 1897, by 
Mayer Alsberg, from decree of C. P. No. 3, Phila. Co., Sept. T., 
1896, No. 747, discharging rule to show cause why the sheriff 
should not pay the funds into court and for an issue. Before 
Rice, P. J., Wickham, Beaver, Reeder, Orlady, and Por- 
ter, JJ. AfiBrmed. 

Rule to pay the fund arising from the sheriff's sale on sundry 
executions into court, and for an issue to determine the material 
facts in dispute relating to the distribution of said fund. 

The facts sufiBciently appear in the opinion of the court. 

The court below discharged the rule. Junior execution cred- 
itors appealed. 

Error assigned was in discharging the rule for the payment 
of the fund arising from the sheriff's sale into court, and in re- 
fusing to frame issues to determine the material facts in dispute 
relating to the distribution of the fund. 

Charles Hoffman^ for appellants. — Upon the aflSdavit of a 
subsequent lien creditor that prior judgments are without con- 
sideration and for the purpose of hindering, delaying and de- 
frauding creditors, the court, under the Acts of June 16, 1836, 
P. L. 755, and April 20, 1846, has no discretion but to award 
an appeal : Schwartz's Appeal, 21 W. N. C. 246. 



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362 BELBER i-. BELBER. 

Arguments — Opinion of the Court. [6 Pa. Superior Ct; 

John Monaghan^ with him David Phillips^ for appellee. — A 
transcript of the judgment of a justice of the peace filed in the 
common pleas, creates no lien upon the defendant's real estate, 
if an appeal be entered before the justice within the time limited 
by law: Hastings v. Lolough, 7 Watts, 540 ; Rubinsky v. Pat- 
rick, 2 Dist. Rep. 695. 

Opinion by Wickha^m, J., January 18, 1898 : 

The appellants obtained judgment before a magistrate against 
Mary Belber, on November 16, 1896, and three days later filed 
a transcript thereof in the court of common pleas No. 4, of Phil- 
adelphia county, having fii-st issued an execution in the magis- 
trate's court, to which there Wiis a return of nulla bona. 

The Act of June 24, 1885, P. L. 160, provides, " That in all 
cases where a judgment has l)een obtained before a justice of 
the peace, city recorder, magistrate or alderman, of this common- 
wealth, and no appeal or certiorari has been taken to said judg- 
ment, and a transcript of said judgment has been filed in the 
office of the prothonotary of the county where said judgment is 
obtained, such judgment shall thereafter be and have all the 
force and effect of a judgment originally obtained in the court 
of common pleas of said county." On the day the transcript 
was filed a fieri facias issued on the judgment thereby created, 
and a levy was made on personal property of the defendant, sub- 
ject to the lien of a prior fieri facias for $812.35, issued from 
common pleas No. 3, in favor of M. Y. Belber. The sheriff, a 
day later, sold this property on both Avrits and another issued 
contemporaneously with that of the appellants in favor of a third 
creditor, realizing $440. The appellants, before the return day 
of any of the writs, presented a petition in common pleas No. 3, 
alleging inter alia, that the judgment in favor of M. Y. Belber 
was given without consideration, to hinder, delay, and defraud 
the petitioners and other creditors of M. Belber, and praying 
that the proceeds of sale should be ordered into court and an 
issue granted. * On this petition the court granted a rule on the 
sheriff and M. Y. Belber to show cause. 

An appeal, from the judgment of the magistrate in favor of 
the appellants, was taken by the defendant, M. Belber, on No- 
vember 27, 1896, and filed the same day in common pleas No. 1. 
On November 28, 1896, the rule to show cauee issued in com- 



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BELBER r. BELBER. 363 

1898.] Opinion of the Court. 

mon pleas No. 3, was discharged. On December 3, 1896, the 
defendant took a rule, in common pleas No. 4, to strite ofif the 
appellants' judgment entered on the transcript, which rule, after 
hearing, was discharged, for what reasons we know not, nor need 
we here inquire. 

It will hardly be seriously contended that the taking and fil- 
ing the appeal did not ipso facto annul the judgment. The 
proceedings on the appeal are de novo : Hastings v. Lolough, 7 
W. 540 ; Felton v. Weyman, 10 Pa. 70. A plaintiff cannot pre- 
vent this result by hurriedly taking a transcript to the prothon- 
otary's office, provided the defendant, within the time allowed 
him by law, take and enter his appeal. 

If, by record evidence, the plaintiff in the first execution 
against Mary Belber was able to show that the appellants' judg- 
ment liad ceased to exist, and this it seems was done, the appel- 
lants had no right to an issue, for they had lost their standing 
to claim, as against the fii-st execution creditor, any part of the 
fund which was still in the grasp of the law. As Justice Shars- 
WOOD says, in Sheetz v. Hanbest's Executors, 81 Pa. 100, an 
execution creditor engaged in a contest regarding the distri- 
bution of the proceeds of a sheriff's sale may displace another 
creditor's lien by establishing " any matter of defense, arising 
subsequent to the judgment, which the defendant himself could 
do in an action of debt or scire faciiis upon it." A scire facias 
to revive may be defeated by proof of a collateral agreement 
that on the occurring of a cei-tain event, to take place after the 
entry of the judgment and which has so taken place, the judg- 
ment shall have no farther efficacy : Hartzell v. Reiss, 1 Binn. 
289 ; Bown v. Morange, 108 Pa. 69 ; or a discharge in bank- 
ruptcy, where the judgment was a provable debt, at the time of 
the adjudication, may be shown with like effect : Spring Run 
Coal Co. V. Tosier, 102 Pa. 342. So also release, accord and 
satisfaction, or payment may be successfully set up. 

In the present case the appellants' judgment died on Novem- 
ber 27, 1896, And their right to take out of court any part of 
the proceeds, realized from the sale of the defendant's goods, 
could be legally denied by any other creditor having a lien on 
the fund, the latter being insufficient to pay all the claims. 

Decisions to the effect that property, sold on execution under 
a voidable judgment^ or on a judgment appealed from, cannot 



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864 BRLBER v. BELBER. 

Opinion of the Court. [6 Pa. Superior Ct. 

be reclaimed from the purchaser, rest on a well known principle 
not applicable here. Patterson v. Peironnet, 7 W. 337, cited 
for appellants, when analyzed, does not conflict with the views 
on which we decide the case in hand. All that was actually 
decided there was that the buyer of goods regularly sold on 
execution by the constable before appeal taken, was entitled to 
retain them. No question as to the disposition of the proceeds 
of sale between parties claiming as lien creditors arose or was 
considered. The case also differs from the present one in other 
respects. 

We are of the opinion that had an issue been granted, M. Y. 
Belber might have successfully resisted the appellants' attempt 
to take any part of the fund out of court, hence there was no 
error in refusing the petition. 

The order discharging the rule to show cause is aflfirmed, and 
appellant directed to pay the costs. 



Estate of George Fitler, deceased. Appeal of David 
Fitler, Administrator of the Estate of Samuel Fitler, 
deceased. * 

DecedenVs estaU — In absence of creditors heirs may distribute among 
themselves. 

The mere legal estate passes to the administrator of a decedent, the equi- 
table descends upon the parties entitled to distribution. If there be no 
creditors, the heii*s have a complete equity in the property, and if they 
choose, instead of taking out letters, may distribute it by arrangement 
made and executed amongst themselves. 

Decedent's estate^ Distribution by family settlement — Presumption as to 
nonexistence of creditors. 

George, a son, the decedent, owed his father, Samuel, $2,000, repre- 
sented by four bonds of $500. The son's widow as administratrix of her 
husband paid his four brothers $100 each on account of above debt in an- 
ticipation of distribution, and received two bonds, one in consideration of 
the payment, and one for sei*vices rendered by her individually to SamueVs 
wife. No letters were taken out on the estate of the father, until sixteen 
years after his death and long after the above family settlement, when 
one of the sons administered. The account of George's estate showed a 
balance of $478.51. The father's administrator recovered judgment 



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FITLER'S ESTATE. 865 

1898.] Syllabus — ^AssignmeDt of Errors. 

against the administratrix of his brother George for the $1,000, and 
sought to recorer the full amount of the balance shown by her as admihis- 
tratiix of George. Held, that the decree against the administratrix was 
properly limited to the amount shown to have been in her hands, as such, 
less the $400 paid in distribution under the family settlement to the sons 
surviving the father, or in fact to $78.51, and that the lapse of sixteen years, 
with other circumstances, raised a presumption of the nonexistence of 
creditoi*s of the father Samuel, which sustained the family settlement by 
way of informal distribution. 

Argued Dec. 7, 1897. Appeal, No. 66, Oct. T., 1897, by 
David Fitter, administrator of the estate of Samuel Fitler, de- 
ceased, from decree of O. C. Schuylkill Co., Jan. T., 1897, No. 1, 
in distribution. Before Rice, P. J., Wickham, Beaver, 
Keedeb, Orlady, Smith and Porter, JJ. Affirmed. 

Exceptions to adjudication. Before Dunn, P. J. 

It appears from the record that the question arose at the audit 
of the first and final account of Sarah Fitler, administratrix of 
the estate of George Fitler, at which audit David Fitler, as the 
administrator of the estate of Samuel Fitler, claimed the balance 
of $478.51, shown by the accountant to be in her hands. The 
court, Dunn, P. J., allowed the accountant credit for $400 
theretofore paid to the heirs of Samuel Fitler, deceased, in pur- 
suance of a family settlement, and awarded the balance, only 
♦76.01, to the administrator of Samuel Fitler. 

Other facts appear in the opinion of the court. 

} 

Errors assigned among others were (1) In dismissing the 
exception taken by the appellant to the adjudication, which was 
as follows : '' The court erred in not regarding the judgment 
obtained by David Fitler against Sarah Fitler as final and con- 
clusive between the parties." (2) In permitting accountant, 
under objection from appellant, to submit evidence in support 
of the following offer of accountant's counsel : Mr. Gerber : " I 
propose to prove by cross-examination of this witness, and by 
such other evidence as may be produced hereafter, that Sarah 
Fitler, the administratrix in this estate, paid to the heirs of 
Samuel Fitler, out of the pei'sonal funds in her hands, as admin- 
istratrix of the estate of George Fitler, deceased, the sum of 
$400 ; that that sum was paid on account of the distributive 
shares of the four heirs of David Fitler (Samuel Fitler), and 



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366 FITLER'S ESTATE. 

Assignment of En-ors — Arguments. [6 Pa. Superior Ct. 

tliat said sum was paid prior to the recovery of judgment in 
this suit, and on a bond given by George Fitler to Samuel Fit- 
ler, which said bond was surrendered to the said Sarah Fitler 
at the time that the said $400 was paid or else an indorsement 
made on it whatever it is. This for the purpose of not disputr 
ing the judgment in the court of common pleas, but for the 
purpose of showing partial distribution of the fund in the hands 
of Sarah Fitler, the administratrix and accountant, now before 
the court. It is also further proposed to prove by evidence to 
be produced hereafter, that tender of the whole amount of the 
mone}^ arising from the personal pi-operty of George Fitler, was 
made to the said heii-s of Samuel Fitler, and a release requested 
from them, and it was refused ; said tender being made either 
in the fall of 1890 or the fall of 1891." (7) In dismissing the 
seventh exception taken by the appellant to the adjudication of 
the court below, which was as follows : '' The estate of Samuel 
Fitler, deceased, is not before the court and it is error to deter- 
mine what the sons did or did not do at this time." (9) In 
deciding as a matter of law that the WOO paid by the defend- 
ant to the four sons of Samuel Fitler, deceased, should be al- 
lowed to her in full, which decision is as follows : " We find as 
a matter of law that the accountant is liable for the sum of 
J5478.51, less $400 paid to David, John, William and Franklin 
Fitler. That the balance of the fund for which she is liable, 
after deducting the fees of the clerk of the orphans' court, must 
be paid to David Fitler, admuiistrator of Samuel Fitler, deceased, 
on account of judgment March Term, 1895, No. 281." (11) In 
finding as a fact that there were no creditors of the estate of 
Samuel Fitler, which finding of fact is as follows : " Creditors 
of their deceased father (Samuel Fitler) could call upon them 
as executors, de son tort, but there are no creditors of Samuel 
Fitler to complain." 

S. M, Enterline^ for appellant. — A judgment having been 
obtained in the common pleas by the administrator of Samuel 
Fitler against the administratrix of George Fitler, the account- 
ant's only remedy was to apply to the same court in which judg- 
ment was entered, to open or vacate it, or by writ of error or 
appeal : Otterson v. Middleton, 102 Pa. 78 ; McClain's Appeal, 
180 Pa. 231. 



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FITLER'S ESTATE. 867 

1898.] Arguments— Opinion of the Court. 

The learned judge below was in error in deciding that there 
could be no creditors of the estate of Samuel Fitler. He evi- 
dently lost sight of the fact that no letters of administration 
were taken out on this estate until February 18, 1895, and that 
the statute of limitations of the creditora against the estate did 
not begin to run until then. In fact there are still remaining 
over three years' time for them to present their claim : Mars- 
teller V. Marsteller, 93 Pa. 350; Levering v. Rittenhouse, 4 
Wharton, 130; Amoles' Appeal, 115 Pa. 356; Riner v. Riner, 
166 Pa. 617. 

In Yorks' Appeal, 110 Pa. 69, Judge Paxson (reversing the 
court below said) : "The administmtion of estates in Pennsyl- 
vania is a legal, and not an equitable system, resting as it does 
upon statutes." 

All assets of a decedent must come to the hands of his per- 
sonal representative. A payment of money to any one else is a 
mispayment. Eisenbise v. Eisenbise, 4 Watts, 134, is directly 
in line. 

Q. H, Gerber^ for appellee. 

Opinion by Wickham, J., January 18, 1898 : 
Samuel Fitler died in 1879. At the time of his death, his 
son George owed him $2,000, secured by four bonds of $500 
each. George died in 1884 leaving the bonds unpaid. His 
widow, Sarah, took out lettera of administration on his estate, 
and in September, 1887, filed her first and final account show- 
ing a balance nominally in her hands of $478.51. 

When the usual proceedings to make formal distribution were 
had in the orphans' court, the administratrix proved that she 
had, by way of anticipation, paid to David, John, William, and 
Franklin Fitler, at their joint request, each $100, about the year 
1890. These, her husband's brothers, were the only persons 
entitled as the heirs of Samuel Fitler, and as there were no 
creditors of his estate, they might legally divide it without 
administration. " No doubt the personal estate of a decedent 
vests in the administrator, but in trust for creditors and heirs 
or legatees. The mere legal estate passes to the administrator, 
the equitable descends upon the parties entitled to distribution. 
If there be no creditors, the heirs have a complete equity in the 



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868 FITLER'S ESTATE. 

Opinion of the Court. [6 Pa. Superior Ct. 

property, and if they choose, instead of taking letters of admin- 
istration, to distribute it by arrangement made and executed 
amongst themselves, where is the principle which forbids it?" 
Walworth v. Abel, 52 Pa. 370 ; Weaver v. Roth, 105 Pa. 408. 

At the time these payments were made, the heirs surrendered 
to Sarah one of the bonds, because of the money paid them, and 
gave her another for services rendered her husband's mother 
during the last years of her life. The debt was thus reduced 
to $1,000. 

In 1895, David Fitler took out letters of administration on 
the estate of Samuel, his father, and brought suit in the com- 
mon pleas for the $1,000 agamst Sarah Fitler and her children, 
heirs of George, with a view evidently to obtain a lien on 
George's real estate. He succeeded only in securing judgment 
against Sarah as administratrix, having delayed too long in 
instituting proceedings to i*each the land. This judgment was 
presented in the orphans' court by David, who claimed that 
Sarnh should be required to pay thereon the whole amount of 
the balance of $478.51 shown by her account. The learned 
auditing judge very properly, as we think, held that the $400 
a<lvanced earlier should be regarded as a partial distribution, 
and that therefore only the sum of $78.51 remained actually 
unpaid. This amount, less the clerk's fee, was awarded to the 
judgment. 

To have sustained David's contention would have resulted in 
compelling George's administratrix to pay the $400 twice to the 
heirs of Samuel, and made her liable for $878.41 instead of the 
true balance shown by her account. 

But it is contended, for the appellant, that there was not suffi- 
cient evidence to justify the court in holding that there were 
no creditors of Samuel's estate to whom David as administrator 
might be liable. We think the circumstances amply warranted 
the learned auditing judge's conclusion. Samuel died May 29, 
1879, and no letters of administration were taken out on his 
estate until February 18, 1895, and it does not appear that they 
were issued at the instance of any creditor. So far as we can see, 
they were secured by David merely to qualify himself to bring 
suit against George's estate. It is not likely that if Samuel 
were indebted, at the time of his decease, his creditors would 
have permitted his estate to go unadministered for nearly six- 



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FITLKR'S ESTATE. 869 

1898.] Opinion of Uie Court. 

teen years. The audit of Sarah's account took place on Feb- 
ruary 8, 1897, nearly eighteen years after Samuel's death. In 
the absence of any evidence or even intimation, at the audit, 
that any unpaid debts existed against Samuel's estate, the learned 
auditing judge, looking at all the circumstances, rightly assumed 
that they constituted prima facie proof that there were no such 
debts. 

The appellant's position that Sarah purchased the two bonds 
from the heirs is not sustainable. 

We have carefully considered all the assignments of error, in 
connection with the argument of the appellant's counsel, and 
deem none of them tenable. 

Decree affirmed at the cost of appellant. 



Commonwealth of Pennsylvania v. Dr. W. F. Mitchell, 
Appellant. 

Criminal laio — Refusal of new trial— Adequacy of charge. 

The refusal to' grant a new tiial in a criminal case is not en*or where on 
the whole evidence, if believed, no reasonable doubt is raised as to the de- 
fendant's guilt and where the trial was conducted with gi'eat care, the 
attention of the jury directed to the measure of proof necessary and to the 
presumption of innocence, and where Uie evidence was submitted in a clear 
and impartial manner. 

Criminal law — Evidence of letters, etc,, indicating an expected meeting. 
Where the ciime of abortion is charged as incident to the meeting of 
two people, which is admitted to have taken place, evidence is admissible 
as tending to prove a step in the commonwealth's case of the fact that de- 
ceased addressed and mailed a letter to defendant, and subsequently wired 
him to meet her on a certain train ; such evidence being admissible as 
tending to prove thai these two persons had been in communication prior 
to the subsequent meeting on the train designated in the telegram. 

Argued Oct. 20, 1897. Appeal, No. 85, April T., 1898, by 
defendant, from judgment of Q. S. Somerset Co., Feb. Sess., 
1897, No. 14, on verdict of guilty. Before Rice, P. J., Wick- 
ham, Beaver, Rebder, Orlady, Smfth and Porter, JJ. 
AflBrmed. 

Vol. VI— 24 



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870 COMMONWEALTH v. MITCHELL. 

Statement of Facts — Assignment of Erroi-s. [6 Pa. Saperior Ct. 

Indictment for procuring abortion. Before Longeneck- 
BR, P. J. 

It appears from the record and evidence that the defendant, 
Dr. W. F. Mitchell, a practicing physician in Petersburg where 
he was known among the front ranks of his profession, was in- 
dicted on the above charge. The commonwealth produced evi- 
dence to show that a letter and telegram addressed to defendant 
had been sent by the deceased ; that subsequently defendant 
called on the deceased at a hotel in Somerset ; that deceased 
subsequently went to Pittsburg where she died in a hospital as 
the result of a criminal operation. Defendant was examined as 
to what took place at the interview at the hotel and the condi- 
tion disclosed by his evidence appeared to be somewhat incon- 
sistent with the testimonies of the authorities of the hospital. 

Defendant denied having received either the telegi-am or the 
letter offered in evidence or that he had ever seen or heard from 
the deceased prior to having been called in by her in a profes- 
sional capacity at the one interview at the hotel in Somerset. 
He further denied performing any crimmal operation. 

Verdict of guilty and sentence thereon. Defendant appealed. 

Urrors assigned were (1) In admitting evidence on the fol- 
lowing offer and objection. Miss Lizzie Thomas, assistant in the 
post office at Scott Haven, Pa., being on the stand : " Mr. Ruppel : 
Let us have an offer. Mr. Kooser : Counsel for the common- 
wealth propose to prove by the witness on the stand that a few 
dajrs before the 30th of December, 1896, near about Christmas, 
Miss Sadie E. Beal handed to the witness a letter addressed to 
Dr. Mitchell, Addison, Pa. ; that that letter was mailed on the 
next mail going east, in the direction of Addison from Scott 
Haven. This to be followed by proof that the defendant was 
the only Dr. Mitchell resident at Addison in December, 1896, 
and to be followed by further proof that on the 30th of Decem- 
ber, 1896, Sadie E. Beal telegraphed Dr. Mitchell to Confluence, 
Pa., in these words : ' Will be on 6 instead of 14, meet me,' 
signing instead of her own name ' S. E. B. Andrews.' Mr. 
Ruppel: This is objected to for the following reasons: 1. It 
is not shown that the Dr. Mitchell so addressed is the defend- 
ant, as there were no initials on the letter. 2. It is not pro- 
posed to be shown by proof on part of the commonwealth that 
Dr. Mitchell, the defendant, received such a letter, 3. The 



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COMMONWEALTH r. MITCHELL. 371 

1898.] Assignment of Errors. 

defendant denies having received such a letter. 4. The evi- 
dence is irrelevant and immaterial. The Court : With regard 
to the testimony embraced in the offer tending to make out 
a step in the commonwealth's case, the evidence is proper for 
that puipose. We admit it and note an exception to the de- 
fense. The witness then testified as follows: 'Q. Did you 
know Sadie E. Beal? A. Yes, sir. Q. Who was with Mr. 
Madore in December last? A. Yes, sir. Q. Do you have any 
distinct recollection of her handing you a letter in the latter 
part of December, and if so, state about when it was and to 
whom addressed and to what point addressed. A. Well, I 
remember she came there one morning and handed me two 
letters, one addressed to Dr. Mitchell, and it was Somerset 
county ; I don't remember the address, but think it was Addi- 
son, and I sent it on the 2 o'clock mail." (2) In admitting 
evidence on the following offer and objection: "Mr. Kooser: 
We offer in evidence all the exhibits identified .... the tele- 
graphic message as written, signed S. E. B. Andrews, at Mc- 
Keesport and sent to Confluence, and the message received 
at Confluence, and the entries on the registers of the Hotel 
Vamiear in Somerset and of the Hotel Federal in Allegheny. 
Mr. Ruppel : We object to the telegram at McKeesport written 
by S. E. B. Andrews, as we got no such telegram. The Court : 
These exhibits are admitted. The exhibit marked 'F' which 
is objected to, is also admitted upon the testimony of the two 
operator, the one at McKeesport and the one at Confluence ; 
the testimony of the one being that she sent the message, 
the substance of the message, and that of the other being that 
she received it, and the two messages being the same in sub- 
stance and differing merely in the initials of the name attached, 
both being signed * Andrews.' We think they are sufficiently 
identified as the same message. Note an exception to the de- 
fendant as to the McKeesport telegram." (3) In charging the 
jury as follows : *' It is charged that the defendant met Sadie E. 
Beal on the 30th of December, by pre-ari-angement, for the pur- 
pose of a criminal operation, the theory being that he had been 
previously advised by letter and undei'stood the purpose of the 
meeting ; that the message of the morning merely apprised him 
of her coming by a particular train, and that the operation was 
in fact performed in the few moments he is shown to have been in 



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872 COMMONWEALTH r. MITCHELL. 

Assignment of EiTors. [6 Pa. Superior Ct. 

her room at the hoteL The only evidence produced of any com- 
munication prior to the message received by him at Confluence 
on that morning, related to a letter which the young lady acting 
as assistant postmistress at Scott Haven testified Miss Beal had 
mailed at her oflSce the latter part of December, and which was 
addressed to Dr. MitcheU, as she thought, at Addison, in this 
county. That letter she said she sent on the 2 o'clock east 
bound train that afternoon. With regard to a letter thus mailed 
and not shown to have been received, the law raises a mere 
presumption that the peraon addressed received it through the 
ordinary course of the mails. Against this presumption the 
defendant positively testifies that he never did receive it. If 
you believe him it takes out of the case all the significance at- 
tachdd to the alleged previous communication. If not, it might 
be a potent circumstance in construing the conduct of the 
parties on the meeting upon the tmin after the message from 
McKeesport. The facts connected with the message delivered 
to the defendant at Confluence have been veiy fully discussed 
on both sides, so I need not refer to them more at length." 
(4) In charging the jury as follows : " After the girl died in 
the hospital and it was manifest an abortion was produced by 
the criminal act of some one, it seems suspicion was directed to 
this defendant, and he, to relieve himself of that suspicion, 
went to the district attorney's office and related to those present 
his version of the visit he had made to the unfortunate woman's 
room. It is ai'ound this statement that the most serious aspects 
of the case gather. Just what his statement of the affair then 
was, has become the subject of serious conflict in the testimony 
of those who were present. Four of them unite substantially 
in saying that he stated his examination of the woman's parts 
developed tlie fact that a rupture of the sack containing the 
foetus had already occurred, that the waters had been draining 
from it and the discharge had in fact attained an offensive odor, 
while the os, or mouth of the womb, was already greatly dilated, 
as illustrated by the witnesses. These conditions, you will 
recall, are inconsistent \idth those described as found on hei 
arrival at the hospital. It will probably puzzle you to under- 
stand how a woman with that degree of dilation of the neck of 
the womb, and nature struggling to expel tlie foetus, could 
travel the many miles covered by Sadie E. Beal's journey that 



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COMMONWEALTH v. MITCHELL. 373 

1898.] Assignment of EiTors — Opinion of Court. 

day. However, it is only the statement which Dr. Mitchell is 
alleged to have made that day in which that condition is de- 
scribed, and the controversy is between the witnesses as to the 
manner in which he did describe it. On the part of the defense 
two witnesses were called who were present and they say no 
such dilation was exhibited as is stated by the witnesses of the 
commonwealth, but as they illustrated it with their hands the 
neck or mouth of the womb was almost closed. And the wit- 
nesses are also in conflict as to what he said about the condition 
of the waters coming from the woman and the nature of the 
discharge.'' (5) In refusing binding instructions for defendant 
(6) In the answer to the third point of defendant, as follows : 
" That all evidence in this case relating to the alleged mailing 
of a letter by Sadie E. Beal to the defendant must be entirely 
ignored by the juiy in the consideration and determination of 
the case. Amwer : Refused." (7) In overruling motion for a 
new trial. 

W, ff. Ruppel and W. H. Koontz^ with them J. H. Uhl and 
John B. Seott^ for appellant. — The prima facie proof that depos- 
iting at defendant's office a properly addressed, prepaid letter, 
raises a presumption that it reached its destination in due course 
of mail, may be rebutted by showing that it was not received. 
In all the cases, however, that have been ruled by the Supreme 
Court in this state, the oflfer to prove the contents of the letter, 
accompanied the offer to prove the mailing of it: Ins. Co. v. 
Toy Co., 97 Pa. 424 ; Jansen v. McCovkell, 164 Pa. 323. 

In the case now before the court, it was not proposed to show 
the contents of the letter, nor that it was received by the defend- 
ant, and the evidence in the case failed to show any previous 
acquaintance between Miss Beal and the defendant, and there 
was not a particle of evidence as to the contents of the letter. 
The evidence, however, went to the jury, from which they were 
led to infer that the contents of the letter were that the defend- 
ant should perform a criminal operation upon her. 

No argument offered or paper-book submitted for appellee. 

Opinion by Orlady, J., January 18, 1898 : 
The defendant was convicted on an indictment in which the 
crime of abortion was charged. Sadie E. Beal, an unmarried 



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374 COMMONWEALTH r. MITCHELL. 

Opinion of the Court. [6 Pa. Superior Ct. 

woman whose residence was at Sand Patch, Somerset county, 
Penna., died in Allegheny City as the result of a premature 
birth which had been induced by unnatuml causes. When the 
defendant learned through the newspapers that a criminal oper- 
ation had been performed on her at a hotel in Somerset, he 
went to the district attorney's office and made a statement that 
he had gone to the room of Miss Beal in the Hotel Vannear, 
and there made an examination of her person after refusing to 
aid her in procuring an abortion. 

The first and second assignments of error must be overruled. 
The contents of the letter were not offered, nor did the com- 
monwealth propose anything beyond establishing the fact that 
a letter had been sent. That fact standing alone was harmless, 
but taken in connection with the telegram, and the subsequent 
meeting of the parties, it was an item of evidence worthy of 
consideration. So also was the telegram. The testimony of 
the sending and receiving operator proved that her message 
had been received by the defendant, and however slight that 
link in the chain was, it was yet entitled to be received in evi- 
dence with the letter for the very purpose as suggested by the 
learned trial judge, — "as tending to make out a step in the 
commonwealth's case." 

The contents of the letter and the gene ml meaning of tlie 
telegram were not material, but they tended to prove that these 
two persons had been in communication prior to their meeting 
on the train, and that this meeting was the result of design and 
not of accident. Proof of any system or means which would 
suggest a previous acquaintance would be subject to a like 
objection. It was not so much what was written as the fact 
that the defendant did not meet Miss Beal on the train as an 
unexpected stmnger. In the authorities cited by appellant, 
the contents of the letter in each case was the important mat- 
ter, and they do not apply under these facts. 

The trial was conducted with great care, and the attention 
of the jury was fairly directed to the measure of proof neces- 
sary, and to the presumption of innocence to which the defend- 
ant was entitled, to wit : "Are there such circumstances proved 
beyond a I'easonable doubt in each instance, as to make out the 
separate elements necessary to prove that the defendant was 
guilty of the crime charged?" 



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COMMONWEALTH v. MITCHELL. 375 

1898.] OpiuKMi of the Court. 

The evidence was submitted in a clear and impartial manner. 
The high character of the defendant and misstatements of the 
dead girl were of great weight, and whatever of doubt there 
was when the commonwealth rested, it was removed by the 
damaging admissions of the defendant. On the whole evidence 
there was not such doubt of guilt as to warrant a new trial and 
it was properly refused. 

The judgment of the court below is aflSrmed, and it is now 
ordered that W. L. Mitchell be remanded to the custody of the 
keeper of the county jail of Somerset county, there to be con- 
fined according to law for the residue of the term for which he 
was sentenced, and which had not expired on the 5th day of 
August, 1897, and that the record be remitted to the said court, 
that this order may be effectual. 



Albert P. Reger, Appellant, v. Manhattan Brass Com- 
pany and William Wiler. 

Measure of damages — Claim property bond in sheriff'* s interpleader. 

The true measure of damages in a proceeding on a forthcoming claim 
property bond, given under sheriff's interpleader proceedings, where, on 
determination of the issue against the claimant, the goods have not been 
returned and the bond has thereby become forfeited, is the value of the 
goods, with interest, from the time the goods were to be forthcoming ac- 
cording to the tenor of the bond, and not from the date of the bond. 

Argued Oct. 5, 1897. Appeal, No. 12, Oct. T., 1897, by 
plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 
1891, No. 903, for want of a sufficient affidavit of defense against 
William Wiler. Before Rice, P. J., Wickham, Beaver, 
Reeder, Oblady, Smith and Porter, JJ. Affirmed. 

Sci. fa. sur recognizance. Before Pennypacker, J. 

This action is a scire facias sur recognizance given in sheriff's 
interpleader proceedings, in which the claimant had failed to 
sustain its title to the goods claimed. To the above scire facias 
the defendants, principal and surety, filed separate affidavits of 
defense. Plaintiff thereupon took rules for judgment for want 



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376 REGER v. BRASS CO. 

Statement of Facts — Arguments. [6 Pa. Superior Ct. 

of sufficient affidavits of defense, and the court, by special order, 
entered judgment for the plaintiff for the full value of the goods 
claimed and costs, with interest from the return day of the vend, 
ex., to wit: October 7, 1895. The plaintiffs claimed judgment, 
however, for the value of the goods, with interest from the date 
of their taking, October 23, 1891, and for defendants' costs in 
the interpleader proceedings, which was refused, and from the 
entry of this judgment the plaintiff has taken this appeal. 

The court below entered judgment in favor of the plaintiff 
for $1,634.24 with interest from October 7, 1895. Plaintiff 
appealed, alleging that judgment should have been entered in 
the penal sum of #3,200 to be released on payment of $1,611.74, 
together with interest thereon from October 23, 1891, and 
$22.50 defendants' costs in the interpleader proceedings and 
costs of suit. 

Errors assigned were (1) In making the following order for 
judgment, to wit: "And now, July 8, 1896, it is ordered that 
judgment be entered in favor of the plaintiff against the Man- 
hattan Brass Company in the sum of $1,634.23, with interest 
from October 7, 1895 ; that the plaintiff have leave to serve a 
copy of the amended scire facias upon William Wiler, the other 
defendant, and that the said Wiler have leave to file a supple- 
mental affidavit of defense within one week from the time of 
such service of the copy of the sci. fa." (2) In making the 
following order for judgment, viz : ** And now, October 7, 
1896, it is ordered that judgment be entered in favor of the 
plaintiff against William Wiler in the sum or $1,634.24, with 
inT;erest from October 7, 1895." (3) In not entering judgment 
in favor of the plaintiff, and against the defendants, the Man- 
hattan Brass Company and William Wiler, for the sum of 
$3,200, to be released on payment of $1,611.74, together with 
interest thereon from October 23, 1891, and $22.50, defendants' 
costs in the interpleader proceedings, and costs of suit. 

M. Hampton Todd, for appellant. — The plaintiffs are entitled 
to compensation, and the only means by which they can obtain 
compensation is to give them the value of the goods of which 
they were deprived, with interest from the date of the unlawful 
claiming: O'Neill v. WUt, 75 Pa. 266. 



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REGER V. BRASS CO. 377 

1898.] Arguments — Opinion of the Court. 

The measure of damages contended for here is sustained by 
the somewhat analogous proceedings in replevin : McCabe v. 
Morehead, 1 W. & S. 513. 

In Mclnroy v. Dyer, 47 Pa. 118, in an action of trespass the 
rule was laid down to be " what will make the plaintiff whole is 
the same in one form of action as in another. No distinction 
is recognized by the courts." To the same effect is Hill v. Can- 
field, 56 Pa. 454. 

John Weaver^ with him John Sparhawk^ Jr.^ for appellees. — 
Is the amount to be recovered upon the bond the value of the 
goods, with interest, from the date of the bond, or the value of 
the goods, with interest, from the time the goods were to be 
forthcoming, according to the tenor of the bond ? Bain v. Lyle, 
68 Pa. 60 ; Byrne v. Hayden, 124 Pa. 170 ; Sedgwick's Appeal, 
7 W. & S. 260 ; Passavant v. Gummy, 32 W. N. C. 217 ; White- 
sides V. Bordman, 39 Leg. Int. 347. 

Opinion by Orlady, J., January 18, 1898 : 

The sole question in controversy in this case is concisely 
stated by appellant's counsel. What is the true measure of 
damage in a proceeding on a forthcoming claim property bond, 
given under sheriff's interpleader proceedings, where, on the 
determination of the issue against the claimant, the goods have 
not been returned and the bond thereby becomes forfeited? 
The plaintiff claimed to recover the value of the goods as ap- 
praised, *1,611.74, with interest from the date they were taken 
from under his execution, namely October 23, 1891, and the 
defendant's costs, $22.50 in the interpleader proceedings. Judg- 
ment was entered for want of a sufficient affidavit of defense, 
as contended for by the plaintiff, except that interest was al- 
lowed only from the day on which the venditioni exponas was 
returned, eloigned, namely, October 7, 1895. 

The amount in dispute being the difference in interest on 
the amount of the judgment between the dates mentioned. 
The bond is in the penal sum of #3,200, and the condition is 
^Hhat if the goods so levied upon and claimed as aforesaid, 
shall be forthcoming upon the determination of the issue to 
answer the said writ of execution, if the said issue shall be 
determined in favor of the said Albert P. Reger et al., or if so 



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378 REGER %\ BRASS CO. 

Opinion of the Court. [6 Pa. Superior Ct. 

many of them shall be forthcommg as shall be determined not 
to be the property of the said Manhattan Brass Company, then 
this obligation to be null and void, otherwise to remain in full 
force and virtue." The goods were taken from under the plain- 
tiff's execution, and upon the filing of the claim property bond 
delivered into the possession of the Manhattan Brass Company, 
the claimants. As shown by the record, these goods were not 
forthcoming to answer the writ of venditioni exponas, and the 
sheriff made return of eloigned thereto. Compensation for 
being kept from what rightfully belongs to the plaintiff is not 
compensation for being kept out of the use of property, but for 
being kept out of the use of money. In cases of trover, re- 
plevin and trespass, interest on the value of property unlaw- 
fully taken or converted is allowed by way of damages for the 
purpose of complete indemnity of the party injured, and it is 
difficult to see why, on the same principle, interest on the value 
of property lost or destroyed by the wi*ongful or negligent act 
of another may not be included in the damages : Sedgwick on 
Damages (8th ed.), sec. 316 ; Mclnroy v. Dyer, 47 Pa. 118. 
The reasons for the decisions being that in these instances there 
is an absolute conversion of the property, and the possession is 
taken from its former owner. 

The judgment in this case is intended to represent the value 
of the propei-ty at the time it was subject to execution after the 
title to it had been disposed of in the interpleader proceeding. 

A claim property bond is security for the damages which may 
be recovered. Nothing but money can be recovered on it. 
That part of the bond usually given by the defendant which 
provides for a return of the property is a nullity. The judg- 
ment, if a verdict in found for the plaintiff', can only be for 
damages. The bond is not simply that the goods shall be forth- 
coming, but in order to answer the execution of the plaintiff — 
the execution upon which the levy is made — not an alias exe- 
cution with its necessary accompaniment of a new levy, but 
that identical execution or one following it up and perfecting 
it as a venditioni exponas : Bain v. Lyle, 68 Pa. 60. 

On the giving of the bond the property is placed in the cus- 
tody of the claimant. His custody is substituted for that of 
the sheriff. The property is not withdrawn from the custody 
of the law. In the hands of the claimant under the bond for its 



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BEGER V. BRASS CO. 879 

1898.] Opinion of die Court. 

delivery to the sheriff, the property is as free from the reach of 
other processes as it would have been in the hands of the sher- 
iff : Hagan v. Lucas, 10 Peters, U. S. 400; Lantz v. Worth- 
ington, 4 Pa. 153; Tefft v. Sternberg, 5 L. R. A. 221 and 
notes ; Curtis v. Ford, 10 L. R. A. 529 and notes ; Parsons v. 
Hartman, 30 L. R. A. 98 and notes. 

Had the goods in this case been held by the sheriff, the ap- 
pellant's argument would not contend for interest earlier than 
October 7, 1895, and if the claimant's custody is a mere substi- 
tute for that of the law the conclusion reached is the same. 

It has been repeatedly held that the execution and delivery 
of such bond does not discharge the goods from the lien of the 
execution or substitute the bond for the goods. It mei^ely op- 
erates as a transfer of the goods from the custody of the sheriff 
to that of the claimant, pending the issue as to their ownership : 
Bain v. Lyle, supra. 

If the condition of. the bond is performed, the goods are sold 
by the sheriff, and the proceeds, less costs, applied to the exe- 
cution creditor entitled thereto. On the other hand, if the con- 
dition is broken, the damage sustained by the creditor is the 
sum that would have been realized by the sale of the goods, and 
that presumptively is their value : Byrne v. Hayden, 124 Pa. 
170. What sale is here meant? Certainly the one on the ven- 
ditioni exponas which is under the levy of the original writ. 
The date of that sale could not have been earlier than October 7, 
1895, prior to which time, under the decisions, the property was 
in the custody of the law. The value of the property is not^- 
questioned, and the amount of that part of the judgment is ad- 
mittedly correct. 

The judgment entered should have been for the penalty named 
therein to be released upon payment of the ascertained amount 
of damages occasioned by the breach of the condition, as stated 
in Byrne v. Hayden, supra, but it is not a reversible error as 
this court has full power to enter judgment for the proper sum, 
and in the proper form to make it conform to the statute : Car- 
man V. Noble, 9 Pa. 366, 372 ; Act of June 24, 1895, P. L. 212 ; 
Commonwealth v. Yeisley, ante, p. 273, decided at this term. 

It is not necessary to dispose of the first assignment of error, 
the second is overruled, and the judgment as modified in form 
is affirmed. 



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880 RKGER v. BRASS CO. 

Opinion of the Couit. [6 Pa. Superior Ct. 

It is now ordered that judgment be entered in favor of the 
plaintiff and against the defendants, the Manhattan Brass Com- 
pany and William Wiler, for the sum of J3,200 to be released 
upon payment of the sum of tl,611.74 with interest from Octo- 
ber 7, 1895, and f 22.50 the defendant's costs in the interpleader 
proceeding, costs of suit and of this appeal. 



Kate Adam, wife of Abraham Adam, in the right of said 
Kate, V. Elizabeth Moll, Appellant. 

PracUce, C. P. — Amendment to statement^ the cause of <zction being the 
same. 

Plaintiff properly is allowed to amend his statement where the founda- 
tion of the action remains the same. 

In the case at bar, being trespass for wrongful diyei*sion of waters, 
the amendment was properly allowed ; the water affected was the same ; 
the means employed to effect the diversion are set out with more particu- 
larity in the first than in the second ; the fact of the diverting and obstinic- 
ing remained the same in each ; the use of tlie supply of water is the same ; 
and the alleged injury the same. 

Waters and water courses— Obstruction and diversion — Prescription. 

Where the obstiniction of a water course is complained of, instructions 
to the jury are proper to the effect that if the natural flow of a water course 
had remained as alleged for twenty-one years then the plaintiff^s right to 
the water became absolute. The testimony being contradictoiy as to the 
responsibility of defendant for the alleged diversion it was properly left 
to the jury, with directions t<» reconcile it if they could, and if not to deter- 
mine on which side the truth lay. 

Argued Nov. 9, 1897. Appeal, No. 162, Nov. T., 1896, by 
defendant, from judgment of C. P. Berks Co., Sept T., 1891, 
No. 54, on verdict for plaintiff. Before Rice, P. J., Wickham, 
Bbaveb, Orlady, Smith and Porter, JJ. Aflarmed. 

Trespass for obstruction of water course. Before Ermen- 

TROUT, p. J. 

It appears from the evidence that the defendant and the 
plaintiff owned property on opposite sides of a public road. 
The defendant alleged that plaintiff diverted the water flowing 



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ADAM r. MOLL. 881 

1898.] Statement of Facts — Assignment of EiTors. 

from springs located on defendant's land so as to change the 
point of discharge upon the land of the plaintiff. It was alleged 
by the plaintiff that the water was diverted from its natural 
course by a ditch dug by defendant's son. The testimony was 
conflicting as to what exactly was done by the son and also as 
to whether it was done with knowledge and consent of defend- 
ant herself. 

Verdict and judgment for plaintiff for fl.OO and costs. De- 
fendant appealed. 

JErrors assigned among others were (1) In overruling defend- 
ant's motion to strike out amended narr, as follows : " Mr. Ste- 
vens : Before the jury is sworn in this case the defendant asks 
the court to strike out the amended narr." Errors were as- 
signed to the charge of the court commenting on the evidence, 
and especially, (5) In charging the jury as follows : " There 
was some testimony on the part of the plaintiff that her first 
experience in not having the use of this water was after Or- 
lando dug that ditch, or, rather, five years ago. This is the 
language : * Q. Was the water pretty regular there prior to 
five years ago? A. Always; that is the way it was up to 
five years ago ; there was always water there. Q. How is it 
now ? A. Now it is gone ; there is none there.' She says the 
ditch was dug about five years ago. She says that she went 
to the old lady and complained about tliis thing, and that 
the old lady declined to do anything to give her relief. That 
evidence is submitted to the jury to find whether or not the old 
lady, the defendant, ratified, approved, assented to the act of 
Orlando in digging that ti-ench. If the jury find from that evi- 
dence that the act of Orlando was ratified, approved and assented 
to by her, then she would be responsible, otherwise not." 
(7) Iiji charging the jury as follows : " I have tried to make 
myself understood in this case. I have called the attention of 
the jury to the important points in the case. I will sum them 
up again. Did this sti'eam flow so that water was delivered 
upon the land of the plaintiff? Did the defendant prevent that 
water from being delivered at the exact point at which it was 
accustomed to be delivered ? If the defendant diverted it, and 
she failed to deliver that water back at that point, the plaintiff 
can recover ; otherwise not. As to the damages, $1.00 and costs 



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882 ADAM v, MOLL. 

Assio^nment of EiToi-s— Opinion of the Court. [6 Pa. Superior Ct. 

•will be just as effective as anything else. We always tell the 
jury in cases of this kind to find simply nominal damages." 

Wm, Kerper Stevens^ with him Ira P. Rothermel^ for appellant. 

John F. Smithy for appellee. 

Opinion by Orlady, J., January 18, 1898 : 

The plaintiff and defendant are owners of adjoining properties 
which are sepai-ated by a public road, and so related by the nat- 
ural conformation of the ground that the water rising and 
accumulating on the land of the defendant naturally flows across 
the public road onto the land owned by the plaintiff. This 
action was brought to recover damages alleged to be sustained 
by the plaintiff for the wrongful diversion of the water, which 
wholly deprived her of its use for necessary domestic and irri- 
gating purpases. The original statement was amended by leave 
of court under objection which alleged that a new cause of action 
was thus introduced. An examination of the two statements 
satisfies us that there was no error in permitting the amendment, 
as the foundation of the action is the same in each ; the water 
affected is the same: the description of the watercourse the 
same ; the means employed to effect the diversion are set out 
with more particularity in the fii-st than in the second ; the fact 
of obstructing and diverting is unchanged ; the use of the sup- 
ply of water the same ; and the alleged injury the same. The 
first assignment of en'or is not susttiined. 

The point submitted by the plaintiff embraced the material 
facts urged by the plaintiff, " If the juiy find from the evidence 
that the stream of water in contention in this suit, flowed over 
the lands of the defendant in a defined ditch or channel along 
the ledge of the hill in the defendant's meadow onto the pub- 
lic highway and thence across the public highway and onto the 
plaintiff's land for a period of twenty-one years and upwards 
prior to March, 1891, then the plaintiff's right to have the water 
discharged at this point became absolute " and warranted affirm- 
ance by the court. The disputed question of fact was limited 
to one item, — was the defendant responsible for the diversion 
of the water ? The jury was told "' The testimony upon that 
point is somewhat contradictory, it is for the jury to reconcile 



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ADAM V. MOLL. 883 

1898.] Opinion of the Court. 

all the facts, it is for the court to say what the law is, not to 
pass upon the facts. You will look at every bit of evidence in 
the case and reconcile it if you can. If you cannot reconcile it, 
then you must make up your minds which is to be believed and 
act accordingly. Now, what is the alleged diversion? The 
alleged diversion is that a ditch was dug connecting the stream 
in such a manner as to change its course and take it down to a 
certain stone culvert through which it was discharged onto the 
land of the plaintiff. Who created that diversion if such was 
created ? If the jury find from the evidence that the act of the 
son was ratified, approved and assented to by her then she would 
be responsible ; otherwise not." 

The facts were left entirely to the jury and the citation from 
the testimony of the defendant's witnesses was fairly made by 
the court. We fail to find anything in this record suflScient to 
warrant a reversal. The assignments of error are overruled and 
the judgment is affirmed. 



Moncure Robinson, Jr., and Lydia M. B. Robinson, Ap- 
pellants, V. The Pennsylvania Railroad Company. 

Bailroads — Eminent domain — Practice — Bes judiccUa — Construction of 
charter. 

The universal practice upon well settled law, under mode pointed out 
by the supplement to charter of the Pennsylvania Railroad Company, has 
been to assess all the damages done, or likely to be done, to the premises 
through which a railroad passes, including materials t;iken from adjoining 
land, and at a different time, although the bond, for appropriation of the 
strip for right of way, and the petition in the proceedings, set forth and 
are for damages for right of way only, and not for damages for materials 
so taken from adjoining lands. 

Under said supplement, a difTerent cause of action does not exist for 
materials so taken, and a petition for the appointment of a jury to assess 
such damages will, on motion, be stricken off, as res judicata. 

Argued Nov. 15, 1897. Appeal, No. 160, Nov. T., 1896, by 
plaintiffs, from order of C. P. Chester Co., Miscel. No. 1905, 
dismissing petition for appointment of a jury of view. Before 
Rice, P. J., Wickham, Beaver, Orlady, Smith and Poe- 
TEB, J J. Affirmed. 



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384 ROBINSON r. PKNNA. R. CO. 

Statement of Facts. [6 Pa. Superior Ct. 

Petition for jury of view to assess damages for materials al- 
leged to be due by the Pennsylvania Railroad Company. Before 
Waddell, p. J. 

It appears from the record that plaintiffs' petition filed July 6, 
1896, was as follows : 

The petition of Moncure Robinson and Lydia M. B. Robin- 
son respectfully represents : 

*'That the Pennsylvania Railroad Company, a corporation 
duly incorporated and existing under the laws of the Common- 
wealth of Pennsylvania, heretofoi*e surveyed, laid out, and con- 
structed a branch line of railroad through and upon the lands 
of your petitioners, in the township of Tredjrffrin, in said county, 
and in so doing said company took, used and occupied a strip of 
land containing about 7^o^ acres, more or less, which strip of 
land is particularly described by metes and bounds in a certain 
petition filed by said company in this court on March 26, 1895, 
wherein said company requested the appointment of five per- 
sons as viewers to assess the damages done to the petitioners by 
i-ejison of the entering upon and occupation of said strip of land. 

" That said company, in the construction of said branch line, 
entered upon the land of the petitioners adjoining and in the 
neighborhood of the strip above referred to, and quarried, dug, 
cut, took and carried away therefrom large quantities of stone, 
gravel, clay, sand, earth and other suitable materials necessary 
and proper for the construction and maintenance of said line. 

" That your petitioners and the said company have endeav- 
ored to agree, but cannot agree, upon the compensation to be 
paid for the damage done in consequence of the quanying, dig- 
ging, cutting, taking and carrying away of the materials afore- 
said. 

" Wherefore, your petitioners pray the court to appoint as 
viewers five disinterested persons, and fix a time not less than 
twenty or more than thirty days thereafter, for said viewers to 
meet upon said premises, and to order and direct that said view- 
ers, having been first duly sworn or affirmed by some power 
competent to administer oaths, faithfully, justly and impartially 
to decide and true report to make concerning all the matters 
and things to be submitted to them, and in relation to which 
they are authorized to inquire, and having viewed the said 
premises, to estimate and determine what damages have been 



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ROBINSON V. PENNA. R. CO. 885 

1898.] Statement of Facts— Arguments. 

sustained by the petitioners by reason of the quarrying, digging, 
cutting, using and carrying away of the materials aforesaid." 

On July 6, 1896, on motion of defendant's counsel a rule 
was granted on the above-named petitioners to show cause why 
the petition should not be dismissed. On September 7, 1896, 
the railroad company, defendant, filed its answer. On Octo- 
ber 12, 1896, the court made the above rule absolute. 

Other facts appear in the opinion of the court. Plaintiffs 
appealed. 

Error assigned was dismissing the petition filed by the appel- 
lants. 

C, H. Krumbhaar^ for appellants. — The decree of the learned 
court below amounts to the sustaining of the demurrer to the 
petition of the appellants. The record properly discloses no 
more than a petition by the appellants for the appointment of 
viewers and a rule to dismiss the same. If it was proper for 
the court below to dismiss the petition of the appellants for 
deficiencies appearing on the face thereof, the decree below was 
right. Othei-wise it was clearly wrong. The answer filed by 
the appellee, and the testimony heard on the return of the rule, 
cannot be considered in this court, and should not have been in 
the court below. They are not, properly speaking, apart of the 
record. They neither add to nor take away from the suflBciency 
of the petition of the appellants. 

The bar set up by the appellee is an alleged former recovery, 
an assertion that the damages claimed in this proceeding for 
materials were, or ought to have been, and therefore, in contem- 
plation of law, actually were, included in the judgment rendered 
for original land damages. Even in an affidavit of defense where 
res adjudicata, or former recovery, is set up as a defense, the 
former judgment must be set forth in the affidavit of defense 
ipsissimis verbis. So has said the Supreme Court of Pennsyl- 
vania : Richards v. Bisler, 8 W. N. 485. 

The right to have damages assessed for taking materials is 
specially provided for in the charter of the company. The first 
section of the company's charter (Act of April 18, 1846, P. L. 
312), confers upon the company three distinct powers as follows : 
(a) To "survey, ascertain, locate, fix, mark and determine" 
Vol. VI— 25 



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886 ROBINSON v. PENNA. R. CO. 

Arguments. [6 Pa. Superior Ct. 

the route of the road. (6) To *• lay down, erect, construct and 
establish a railroad" on the route determined, (e?) To ** enter 
upon any lands adjoining, or in the neighborhood of the said 
railroad so to be constructed, and to quarry, dig, cut, take and 
carry away therefrom any stone, gravel, sand, earth, wood, or 
other suitable material necessary or proper for the construction 
of said railroad." The fourth section of the Act of March 27, 
1848, P. L. 278, which act is a supplement to the charter 
of the company, also clearly indicates that tlie taking of ma- 
terials is a separate and distinct matter from the taking of 
the land for the right of way. 

It is incumbent upon the jury to set out in their report the 
quantity, quality and value of both the land taken and the 
" materials " as separate items : Reitenbaugh v. R. R. Co., 21 
Pa. 105 ; Pa. R. R. v. Bruner, 55 Pa. 318. 

The proceeding for the assessment of these damages was 
begun by the company, and the jury as a matter of law had no 
authority to take into consideration anything except what the 
petition described. 

The reason why the report of the jury should be specific and 
in the line of the requirements of the act, is stated in Zack v. 
Railroad Co., 25 Pa. 394, in these words : " It is important, in 
reviewing a cause tried out of the general course of the law, to 
see what matters have been inquired of, that it may be known 
that the cause has been fully and rightly considered." 

The same reasoning is applied in the case of Phila. & Erie R. 
R. V. Cake, 95 Pa. 139. 

But aside from this position, which goes to the merits of the 
case, the question raised by the company cannot be considered 
in this summar)^ manner. 

The answer to the present petition sets up, in substance, that 
damages have been paid for the injury described in the petition 
and the verdict in the former proceeding, its payment and satis- 
faction of record are stated as a bar to the right to have a jury 
appointed. 

All this, however, is matter of defense. It does not justify 
the court in refusing to appoint a jury. If the company has 
already paid the damages now claimed, the jury of view will so 
determine, and the jury to try the case on appeal has like au- 
thority. This question is for them, not for the court. A pre- 



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ROBINSON V. PENNA. R. CO. S87 

1898.] Argamento. 

cisely similar question has been passed upon in Hemer v. R. R. 
Co., 1 Pa. C. C. 43 ; Updegrove v. R. R. Co., 3 Pa. C. C. 74; 
Fulmer v. R. R. Co., 1 Pa. C. C. 46. 

John J. Pinkerton^ for appellee. — In the trial of this cause 
before a jury of the common pleas, under the pleadings, every 
species of demand enters, because the measure of damages is 
the difference between the mai-ket value of the land before and 
after the taking. 

In estimating the damages to a landowner, caused by the 
construction of a railroad, the rule as to the measure of dam- 
ages declared by Judge Gibson in 1821, has, ever since, been 
recognized and followed: Schuylkill Navigation Company v. 
Thoburn, 7 S. & R. 411 ; Railway Co. v. McCloskey, 110 Pa. 
436. 

The verdict of the jury in tliis case was for f 24,057.67, and 
it is to be presumed that every form of damage entered into it : 
Del. & Lack. Co. v. Burson, 61 Pa. 369, 381. 

The acceptance by the plaintiffs, of the amount awarded by 
the verdict of the jury, and satisfaction of the judgment entered 
thereon, is a bar to any future recovery for damages sustained 
by reason of tlie construction and maintenance of this railroad : 
Hoffeditz v. R. R. Co., 129 Pa. 264. 

The claim for damages for materials taken in the construc- 
tion of the railroad was embraced in the pleadings of the case 
tried in the common pleas ; it might have been recovered in 
that suit, and, for these reasons, cannot be recovered in a sec- 
ond proceeding: Hess v. Heebie, 6 S. & R. 57. 

The question will then be, how far have the jury in the first 
action tried, professed to pass on the matters put in issue by 
the pleadings ? It is the duty of the jury to find the whole 
issue, and if they fail in this, their verdict is bad. 

The matter I apprehend, depends not on the nature of the 
demand as it appeared in the evidence, but on the manner in 
which it was set out in the declaration. 

If a verdict, finding several issues, be produced in evidence, 
the opposite party will not be allowed to show that no evidence 
was given on one of the issues, and that the finding was in- 
doi'sed on the postea by mistake, the record being conclusive 
that the fact was as it is therein stated. 



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888 ROBINSON v. PENNA. R. CO. 

Arguments. [6 Pa. Superior Ct. 

Whether the present cause of action had been inquired into, 
was not the question, but whether the cause of action contained 
in the declaration was the same as that laid in the second suit : 
Carvill v. Garrigues, 5 Pa. 152. 

C. H, Krumbhaar in reply. — The proceedings being statutory 
must be strictly followed : Fehr v. Schyl. Nav. Co., 69 Pa. 161 ; 
Koch V. Williamsport W. Co., 65 Pa. 288. 

The proceedings being special, do not come within the ordinary 
power of the judge as such, but must be exercised by him under 
the statute: Lewis v. St. Paul Ry. Co., 58 N. W. Rep. 580; 5 
So. Da. Rep. 148. 

The proceedings provided by the charter meant a trial by 
jury. A trial would have given appellants an opportunity to 
meet defense of former recovery, and not have exposed them 
to the danger of being cast out of court on ex parte affidavit 

The claim for materials was not embraced in the pleadings. 

A plea of "not guilty" in trespass quare clausum fregit 
raises only the issue declared in the narr. The petition, in the 
present instance, takes the place of the narr ; otherwise, what 
issue would have been presented? What closie broken? The 
close, of course, described in the petition the right of way sixty- 
six feet in width. It is the statement in which the whole and 
only cause of action is embraced. Without it the proceedings 
would have been a hollow nothingness. 

The agreement, in question, to put the cause at issue, was 
only an agreement that the said cause shall be deemed at issue 
with like effect as though a declaration in trespass quare 
clausum fregit had been filed by the plaintiffs, and a plea of 
not guilty filed thereto by the defendant. The cause referred 
to was, of course, the cause of action contained in the petition, 
which was the basis of the proceeding instituted by the appel- 
lees, in which they had the unobstructed right and choice to set 
forth only one or as many other causes of action as fully and 
completely as possibly could exist. 

The judge cannot direct, or the jury inquire into, anything 
not set forth in a proper petition, consequential damages, grow- 
ing out of the act set forth, of course being included ; but not 
damages for or growing out of an act not set forth : Lewis v. 
St. Paul R. Co., 58 N. W. Rep. 580 ; 5 So. Da. Rep. 148. 



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ROBINSON V. PENNA. R. CO. 889 

1898.] Arguments — Opinion of the Court. 

Damages arising from the taking of the property desciibed 
in the bond, and subsequently in the petition, the sixtynsix feet 
wide strip was a question to be inquired into. 

A close examination of the authorities cited by appellee more 
strongly establishes the contention of appellant : 

1. That the bond fixed the date of appropriation of the right 
of way only. 

2. That the charter establishes two separate causes of action. 

3. That nothing within the view of this court shows more 
than one cause of action to have been declared upon. 

4. That the taking of material is a separate and distinct act 
from the appropriation for a right of way, done at a different 
time, and requiring compensation or security. 

5. That the plea of "not guilty" raised only the issue set 
forth in the petition filed March 26, 1895, i. e., right of way. 

6. That the damages for taking of said material could not be 
included in consequential damages resulting from the taking of 
the strip of land for right of way. 

There is no record before this court, or in fact before the 
lower court, in any of the proceedings heretofore had, which 
will show that the materials have ever been included in any 
issue, or paid for, or security given therefor ; but, on the con- 
trary, could they be examined, they would show that materials 
had been expressly excluded. 

Hess V. Heebie, 6 S. & R. 57, only confirms appellants' right 
to offer parol testimony to explain record under the circum- 
stances of the present case, and to disprove former recovery. It 
differs from the present case in that plaintiff there counted in 
solido, here appellants have not merged their two causes of ac- 
tion. 

The railroad company had not done all incumbent on it 
under charter (i. e., entered bond or condemned the materials 
taken), to place it in position to invoke proceedings thereunder, 
— consequently could not have raised the issue. Hess v. Heebie 
explained ; Carmony v. Hoober, 5 Pa. 307. 

Opinion by Beaver, J., January 18, 1898 : 

The appellants, in July, 1896, presented to the court of com- 
mon pleas of Chester county a petition setting forth that *' The 
Pennsylvania Railroad heretofore surveyed, laid out and con- 



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390 ROBINSON r. PENNA. R. CO. 

Opinion of the Court. [6 Pa. Superior Ct 

stracted a branch line of railroad thi'ough and upon the lands 
of your petitioners in the township of Tredyffrin, in said county, 
and in so doing said company took, used and occupied a strip 
of land containing about 7 yW\f acres, more or less, which strip 
of land is particularly described by metes and bounds in a cer- 
tain petition filed by said company in this court on March 26, 
1895, wherein said company requested the appointment of five 
pei-sons as viewers to assess the damages done to the petitioners 
by reason of the entering upon and occupation of said strip of 
land." It was further alleged in said petition: "That said 
company, in the construction of said branch line, entered 
upon the land of the petitioners adjoining and in the neigh- 
borhood of the strip above referred to, and quarried, dug, 
took and carried away therefrom large quantities of stone, 
gravel, clay, sand, earth and other suitable materials necessary 
and proper for the construction and maintenance of said liiie," 
and asking that the court appoint viewers " to estimate and 
determine what damages have been sustained by petitioners, by 
reason of the quarrying, digging, cutting, using and carrying 
away of the materials aforesaid." The reference in the petition 
to the former petition presented by the railroad company for 
viewers naturally attracted the attention of the court to which 
the petition was presented, an inspection of which discloses the 
fact that "The said railroad company, in pursuance of the 
authority vested in them by the act incorporating the said com- 
pany and by any and all acts of the General Assembly of the 
Commonwealth of Pennsylvania enabling them, desired to enter 
upon and occupy for the purpose of constructing thereon the 
said branch railroad, wnth the necessary slopes, embankments, 
bridges, turnouts, sidings, depots or stations, warehouses, offi- 
ces, engine and water stations or other buildings or appurte- 
nances, which may be necessary or convenient for the same, the 
following described piece or parcel of land, to wit:" (after 
which follows a description by metes and bounds of the land to 
be entered upon, containing seven and ^oW acres, more or less), 
and praying the court to appoint viewers " faithfully, justly and 
impartially to decide and true report to make concerning all the 
matters and things to be submitted to them, and in relation to 
which they are authorized to inquire and, having viewed the 
said premises, to estimate and determine the quantity, quality 



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ROBINSON V, PENNA. R. CO. 891 

1898.] Opinion of the Court. 

and value of the said land so taken or occupied, and what amount 
of damages have been sustained or may be sustained and to 
whom payable." 

Viewers were appointed, in pursuance of the said petition, 
four of whom on the 11th day of June, 1895, made a report 
filed in the court below September 7, 1896, in which they esti- 
mated the value of the land taken, as the same appears by the 
plot or draft of the route of said railroad thereto attached, at 
the sum of $5,133, and the damages done to the property at the 
sum of $9,867. 

An appeal from the award of viewers thus made was taken 
by the appellants and, upon the trial of that appeal in the court 
below, in which it was agreed " that the foregoing cause shall 
be deemed at issue with like effect as though a declaration in 
trespass quare clausum fregit had been filed by the plaintiff and 
a plea of not guilty filed thereto by the defendant," a verdict 
was rendered by the jury in favor of the plaintiffs, the appel- 
lants in this case, and against the defendant, the appellee, for 
the sum of $24,057.67, damages, and six cents costs, which 
judgment was satisfied by the plaintiffs' attorney April 27, 
1896. All these facts appear as matters of record in the pro- 
ceedings arising under the petition filed by the defendant, as 
alluded to by the appellants in their petition for the appoint- 
ment of viewers, and were fully set out in an answer to the 
petition made by the railroad company, duly sworn to, in re- 
sponse to a rule granted by the court upon the petitioners to 
show cause why the petition should not be dismissed. Testi- 
mony was also taken upon that rule, at the taking of wliich the 
appellants were represented by counsel, to show that in March, 
1895 (the date at which the original petition of the railroad 
company had been presented), " all the dirt had been taken and 
materials used and everything needed in the construction of the 
road." The question was, therefore, fully and fairly raised as 
to whether or not the petitioners had a right to the appoint- 
ment of viewers to assess damages for taking dirt and other 
materials used in the construction of the railroad passing through 
their property outside the limit of the right of way, after having 
recovered a verdict for damages under the proceedings had in 
pursuance of the petition presented by the railroad company in 
March, 1895. 



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392 ROBIiSSON v. PENNA. R. CO. 

Opinion of the Court. [6 Pa. Superior Ct. 

It would seem, from the report of Robinson v. Railroad, 161 
Pa. 661, that the railroad company had originally entered upon 
and taken a strip of land through the appellants' property one 
hundred and forty feet in width instead of the sixty-six feet ex- 
pressly allowed by its charter, which is contained in the Act of 
13th of April, 1846, P. L. 312, as amended by the Act of 27th 
of March, 1848, P. L. 273. In an ejectment brought by the 
plaintiffs against the railroad, they were allowed to recover all 
of the land outside a strip sixty-six feet wide, to which the rail- 
road was limited for right of way. The railroad was allowed 
to amend its petition descriptive of the land taken by it, so as to 
limit it to the sixty-six feet in width, and it was after this 
amendment that the appeal from the award of viewers was tried 
and the verdict for damages rendered. 

It is claimed by the appellants that the charter of the railroad 
company, as contained in the acts of 1846 and 1848, supra, is to 
be strictly construed against it, and this is undoubtedly true, 
and that by a strict construction of its charter, they are to be 
allowed separate sets of viewers to assess the value of the land 
taken for the purposes of the railroad and for the materials 
which it may enter upon, use or take away in pursuance of the 
authority given it by its charter. It is true, that in the fourth 
section of the act of 1848, supra, in which the mode in which 
damages are to be assessed is pointed out, authority is given to 
the viewers to assess the damages for lands or materials which 
the company may enter upon, use or take away, in pursuance 
of the authority given to it by the act, and the disjunctive con- 
junction " or " is used throughout the entire section in speaking 
of lands or materials, the duty of the viewers being prescribed 
in the following language : " And, having viewed the premises, 
they shall estimate and determine the quantity, quality and 
value of said lands so taken or occupied, or to be taken and 
occupied, or the materials so used or taken away, or to be used 
or taken away, as the case may be ; and, having due regard to 
and making just allowance for the advantages which may have 
resulted or which may seem likely to result to the owner or 
owners of said lands or materials, in consequence of the opening 
or making of said railroad or the construction of works con- 
nected therewith ; and, after having made a fair and just com- 
parison of said advantages or disadvantages, they shall estimate 



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ROBINSON V. PENNA. R. CO. 393 

1898.] Opinion of the Court. 

and determine whether any, and if any, what amount of dam- 
ages have been sustained or may be sustained, and to whom pay- 
able, and make report thereof to the court.'" 

In pursuance of the powers thus conferred upon viewers, the 
universal practice in Pennsylvania, so far as we know, — a prac- 
tice based upon the well settled law, — has been to assess all the 
damages done or likely to be done to the premises through 
which the railroad passes, includmg the use and occupation of 
the ground occupied, the materials taken from the land ad- 
joining the limits of the right of way, increased danger by fire, 
inconvenience from noise, additional burden imposed upon the 
land by reason of fencing, inconvenience of farming parts of 
lands separated from each other by the railroad, increased diffi- 
culty in reaching bams and other buildings, in the ordinary use 
of the property, damages likely to result from drainage and 
othet causes arising from the construction of the road and other 
similar disadvantages. These and such as these have always 
been held as proper subjects of inquiry by viewers and, on ap- 
peal from their award, by juries, in estimating the difference 
between the value of the land as it was before the railroad was 
constructed and its value after the construction. 

There has been no deviation from the general rule in regard 
to the measure of damages in cases of the character of that 
tried in the court below, in which the appellants were plaintiffs 
and the railroad company defendant, since the case of the 
Schuylkill Navigation Co. v. Thobum, 7 S. & R. 411, which, as 
we have lately remarked in another connection, was a leading 
case, down to Struthers v. Phila. & L. R. R. Co., 174 Pa. 291, 
in which latter case Mr. Justice Williams laj's down the rule 
as follows : " The true measure of damages has been held, in a 
long and unbroken line of cases, to be the difference in the mar- 
ket or selling value of the property entered, before the entry 
was made, and afterwards," (i^eferring to a number of well 
known cases) " but the juiy have no right to allow damages for 
distinct items, whether estimated by experts or other witnesses, 
and reach the amount of their verdict in that manner. Their 
duty is simply to ascertain the loss in the selling value of the 
property entered, due to the fact of the taking by eminent do- 
main. This loss stands for the measure of damages, because it 
embraces the effect of all the elements of depreciation taken 
together." 



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894 ROBINSON v. PENNA. R. CO. 

Opinion of the Court. [6 Pa. Superior Ct. 

If the railroad company went beyond the bounds of its right 
of way and took materials for the construction of its embank- 
ment, that was an element of depreciation which could have 
been, should have been and doubtless was taken into considera- 
tion, by both the viewers and the juiy, in reaching a conclusion 
as to the amount of damages suffered by the appellants in the 
construction of the railroad. In no other way could the differ- 
ence in the market or selling value of the properly entered upon, 
before the entry was made and afterward, be ascertained. If 
the appellants had been the owners of property adjoining that 
of anothel* person, through whose lands the railroad was located 
and built, and the railroad company had entered upon their land 
for the purpose of taking materials to be used in the construc- 
tion of the road, they would undoubtedly have been entitled to 
the appointment of viewere for the purpose of assessing the dam- 
ages so done to their property ; but, by their own showing, as 
is manifest from their petition and the reference therein to the 
former proceedings, the damages for the ascertainment and deter- 
mination of which they asked viewers to be appointed, must 
have been passed upon in the proceedings had in pursuance of 
that petition, otherwise we would be obliged to hold that coun- 
sel for plaintiff and defendant, viewers, court and jury, all failed 
in the discharge of a manifest duty. 

It is contended by the appellants that the only question for 
the court below, and the only one which is legitimately before 
us, is the sufficiency and regularity of the petition presented by 
them asking for the appointment of viewers ; but, as hereinbe- 
fore intimated, they have themselves introduced the record of 
the former proceedings by reciting the petition of the railroad 
company for the appointment of viewers. They were repi*e- 
sented in the proceedings which followed the granting of the 
rule to show cause why the petition should not be dismissed. 
They participated in the cross-examination of the witness whose 
testimony was taken in the proceedings had under that rule. 
We can see no reason why the court should not determine the 
question as to whether or not viewers should be appointed to 
assess the damages, as well at the time when the petition was 
presented as when, after an appeal from the award of viewers, 
in a trial before a jury, an effort was made to show the damages 
resulting from the taking of the material complained of, which 



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KOBINSON V. PENNA. R. CO. 895 

1898.] Opinion of the Court. 

could not have been allowed ; or when, after the plaintiffs had 
given in evidence testimony relating to the damages, the fact of 
a former recovery had been shown, in which event the court 
would, of course, have instructed the jury that no recovery could 
be had. 

Although the question was not distinctly raised in the court 
below, there is grave doubt as to the sufficiency of the petition 
presented by the appellants. It shows that the railroad company 
had " laid out and constructed a branch line of i-ailroad through 
and upon the lands of your petitioners in the township of Tre- 
dyffrin " and that " in the construction of said branch line, 
entered upon the land of the petitioners adjoining and in the 
neighborhood of the strip above referred to and quarried, dug," 
etc. There is no allegation that the materials taken for the 
construction of the road had been taken fi*om an adjoining tract. 
It must be presumed, tlierefore, that they were taken fix>m the 
same tract upon which the road had been laid out and con- 
sti'ucted. How could the viewers, therefore, if appointed, have 
complied with the provisions of the fourth section of the act of 
March 27, 1848, supra, in determining the damages to be awarded 
to the appellants, after making just allowances for the advan- 
tages which may have resulted or which may seem likely to 
result to the owner or owners of said lands or materials in con- 
sequence of the opening or making of said railroad or the con- 
struction of works connected therewith ? The petition stops 
short of what is required under the facts of the case and, if 
viewers were to be appointed in such a case, we can see no rea- 
son why another set of viewers might not be appointed to deter- 
mine what damages had been suffered by the appellants, by 
reason of the increased burden of fencing, or by reason of the 
inconvenience from noise and vibration of the plaintiff's resi- 
dence, by the running of trains, and every other element which 
enters into the determination of the question of damages, as reg- 
ulated by the well settled principles as hereinbefore referred to. 
How could the viewers in any such case consider the advantages 
accruing to the petitioner by reason of the construction of the 
railroad, in estimating the damages ? It is not necessary for us 
to pass upon this question, however, inasmuch as it is not pre- 
sented for our consideration. 

There is nothing in the objection made by the appellants that 



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396 ROBINSON v. PENNA. R. CO. 

Opinion of the Court. [6 Pa. Superior CL 

they were limited in the trial of the appeal from the award of 
the original viewers by the bond filed by the defendants in that 
suit. The condition of that bond was " to pay or cause to be 
paid unto the plaintiffs, or to their executors, administrators or 
assigns, such sum of money as they shall be entitled to receive 
for damages, in consequence of the taking and keeping of said 
land for tiie purposes aforesaid, said payment to be made after 
the amount of said damages shall be agreed upon by the parties 
or assessed in the manner prescribed by the laws in such case 
made and provided." If this bond had not been sufficiently 
broad to cover all the damages suffered or to be suffered by tlie 
plaintiffs, they could have required it to be enlarged or amended 
at the time by an application to the court below, but we think 
it was abundantly sufficient in every respect to cover all the 
damages which the plaintiffs suffered or were likely to suffer, 
in consequence of the taking of their land and the construction 
of the road» as provided in ordinary cases. 

It is incumbent upon courts to prevent litigation as far as 
possible, consistently with the rights of all parties in interest. 
The court of common pleas in this case had complete jurisdic- 
tion of the subject of controversy. The single question in dis- 
pute was as fairly and fully raised as it could have been, at any 
subsequent stage of the proceedings usually incident to the 
ascertainment and determination of damages in alike case. We 
see no impropriety whatever in the disposition made of the case, 
at the time and under the circumstances, when disposed of. 

The decree of the court below is affirmed and the appeal dis- 
missed, at the costs of the appellant. 



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FORNEY V. HUNTINGDON COUNTY. 897 

1898.] Syllabus— Statement of Facts. 



Mrs. E. M. Forney et al., Heirs of Henry B. Mytinger, 
deceased, Appellants, v. The County of Huntingdon. 

Practice, G. P. — Case stated rnust show jurisdiciion. 

A case stated must show the jurisdiction of the court over the parties 
and that it is a real dispute, not a colorable one, to obtain an opinion from 
the court. 

A case stated is defective where it fails to set forth the nature of the 
judgment to be entered in case the coun should find the law to be for the 
plaintiffs. 

Practice, Superior Court— Appeal quashed in absence of assignments of 
error. 

Where there are no assignments of error the appeal will be quashed. 

The appellate court will decline to roam at will over the whole domain 
of law and fact and enter such judgment at law or decree in equity as it 
might conclude the plaintiffs might have been entitled to. 

Argued December 14, 1897. Appeal, No. 35, March Term, 
1897, by plaintiffs from judgment of C. P. Huntingdon Co., 
May T., 1897, No. 22, in favor of defendant on case stated. 
Before Rice, P. J., Wickham, Beaver, Reedeb, Orlady, 
Smith and Porter, JJ. Appeal quashed. 

Case stated, raising the question of validity of assessment of 
county taxes for #46.34. Before Bailey, P. J. 

The case stated is as follows : 

That Henry B. Mytinger, of Morris township, died on or about 
the 21st day of November, A. D., 1884, leaving to survive him 
the above stated plaintiffs who are his heirs at law. 

That at the time of his death the said Henry B. Mytinger was 
seized of a certain farm or tract of land, situate in the township 
of Morris and known as the " Water Street Property," contain- 
ing 62 acres of improved land and 19 acres of unimproved or 
timber land. 

That among the improvements on said farm were a brick hotel 
building in which three of the said heirs now reside, a gristmill 
and mill tenant house, brick house and five other small tenant 
houses. That said farm was valued in the annual assessment 
for the year 1896 (a copy of which is hereto attached and marked 
exhibit " A "), at the sum of $1,659, and a tax for county pur- 



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898 FORNEY v. HUNTINGDON COUNTY. 

Statement of Facts. [6 Pa. Saperior Ct. 

poses of 123.22, being at the rate of 14 mills levied thereon by 
the county commissioners. A receipt for which tax is hereto 
attached and marked exhibit " B." That the other above men- 
tioned buildings and improvements located on said farm were 
valued and assessed in said assessment for the year 1896 as fol- 
lows : Geiser house, f 150 ; brick hotel, f 760 ; mill and house, 
f 1,150 ; minister's house, $300 ; house above gate, f 150 ; gate 
house, $100; double frame house, $100; brick house, $600; 
and a county tax at the rate of 14 mills was levied on each of 
the said buildings as above valued, making a total additional 
county tax of $46.34 levied on said farm by the said county 
commissioners. 

The following question is therefore submitted for the deter- 
mination of your honorable court. 

Whether the assessment of a county tax of $46.34 on the 
above stated buildings and improvements on said farm for the 
year 1896 was a legal or illegal tax and assessment. 

If the court shall be of the opinion that the said additional 
tax of $46.34 as well as the valuation of the buildings and im- 
provements by the assessor was illegal and should be stricken 
from the assessment and tax duplicate, then the court is respect- 
fully requested to enter judgment for the plaintiffs. 

If the court shall be of the opinion that valuation of the said 
buildings was lawfully made by the assessor and the said tax 
of $46.34 legally levied thereon by the county commissionera 
the court is respectfully requested to enter judgment in favor of 
defendant. 

It is hereby agreed by the parties hereto that the judgment 
of the court in this case stated shall be as binding as if made 
in a regularly instituted suit in law or equity. 

Each party reserves the right of appeal. 
L. H. Beers, Saml. I. Spykbr, 

Atty. for plaintiffs. County solicitor. 

Now May 21, 1897, it is hereby agreed that valuation and 
assessment of the real estate of H. B. Mytinger's heirs, men- 
tioned in the foregoing "case stated," is identically the same 
for the year 1897 as for the year 1896, on the said farm as well 
for the buildings and improvements on said farm. That tfa# 
county tax levied on said real estate is at tbrrate o£ 1^ mills. 



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FORNEY- 0. HUNTINGDON COUNTY. 399 

1898.] Statement of Facts — Opinion of Ck)urt below. 

That an additional county tax of $39.72 was levied on the 
buildings and improvements on said faim in addition to the 
county taxes on said farm. 

It is further agreed that the court shall enter judgment touch- 
ing and including the said county taxes and the assessment and 
valuation of the said real estate for the year 1897, in all respects 
and with same force and effect as in the above " case stated " for 
the year 1896. 

Saml. I. Spykbr, L. H. Bebbs, 

County solicitor. Atty. for plaintiffs. 

The court entered judgment for defendant, Bailey, P. J., 
filing the following opinion : 

The plaintiffs property is returned for taxation at a valua- 
tion of $5,169. The property consists of a farm, hotel, grist- 
mill and seveml tenant houses. The hotel, mill and tenant 
houses were erected on what was originally the farm. It is not 
alleged they were used in connection with the farm. It is 
true the assessor returns with his assessment, the manner by 
which he arrives at the aggregate valuation. That is, he arrives 
at the total valuation of the property as a whole by ascertaining 
the value of its several parts, and returns the separate values 
of these several parts to show how he reached the total valuation. 
Perhaps this was unnecessary ; we do not think it vitiated the 
assessment. It is not a double assessment and there is no alle- 
gation that the valuation is excessive. If it were too high or 
for any reason illegal the proper remedy of the plaintiff would 
have been by appeal: Moore v. Taylor, 147 Pa. 481. 

The triennial assessment was made in 1895. An inspection 
of the return of the assessor for Morris township shows that the 
plaintiff's property was valued in the same manner and at the 
same amount as in 1896 and 1897. It is presumed that the plain- 
tiffs had notice of this assessment and of the time of the appeal. 
No appeal was taken, and the tax was laid on the basis of the 
valuation as returned. It is too late to object to the manner of 
the assessment when the tax collector calls for the tax. If the 
assessment was not satisfactory it was the right and duty of the 
taxpayers to appeal in the manner and within the time fixed by 
law. Not having done so the assessment and valuation have 
the effect of a judgment. We have no jurisdiction to review 



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400 FORNEY v. HUNTINGDON COUNTY. 

Opinion of CJourt below — Opinion of the Court. [6 Pa. Superior Ct, 

the action of the assessor or the cominissionei*s, wherein they 
have authority to act, except on appeal taken within the time 
fixed by law. We have no original but only appellate juris- 
diction as to questions of excessive or illegal assessments in 
cases where the general power to assess exists in the assessors 
and commissioners : Clinton School District's Appeal, 56 Pa. 315. 

Equity will enjoin against the collection of a tax assessed for 
an illegal puipose, and in cases where the taxing authorities 
had no power to lay the tax : Harpers' Appeal, 109 Pa. 9 ; Kem- 
ble V. Titusville, 135 Pa. 141. 

In this case it is not claimed that the commissioners were 
without authority to lay the tax.or that it was laid for an illegal 
purpose. 

Let judgment be entered in the case stated in favor of the de- 
fendant. 

Judgment for defendant on case stated. Plaintiff appealed. 

There were no assignments of error set out in the paper-books. 

i. H, Beers, for appellants. 
Saml. I. Spyker, for appellee. 

Per Curiam, January 18, 1898 : 

These proceedings were irregular and defective in many es- 
sential particulars, but we need mention only two. A case 
stated must show the jurisdiction of the court over the parties, 
and that it is a real dispute, not a colorable one, to obtain an 
opinion from the court: Berks Countj'^ v. Jones, 21 Pa. 413. 
Not only was there no appeal from the decision of the county 
commissioners or board of revision and appeals, but it would 
also seem that the plaintiffs had not put themselves in position 
to take such appeal. The suggestion that the case stated was 
intended as a substitute for an appeal, and was to be disposed 
of as if a formal appeal had been taken is not borne out by the 
record and was not assented to on the argument. Therefore 
the court was without jurisdiction to enter any order, decree or 
judgment with reference to the assessment or collection of the 
taxes in question. 

In the second place the case stated fails to set forth the na- 
ture of the judgment to be entered in case the court should find 
the law to be with the plaintiffs. 



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FORNEY V, HUNTINGDON COUNTY. 401 

1898.] Opinion of the Court. 

Courts ought to encourage amicable submissions of real dis- 
putes, but the greatest liberality of practice will not justify 
parties in agreeing upon facts — no action or proceeding being 
pending or agreed to — and asking the court to enter such judg- 
ment at law or decree in equity as it may conclude the plaintiff 
might be entitled to. 

For these reasons the court below might well have dismissed 
the case stated. 

When the case reached this court there was the same disre- 
gard of form and orderly procedure. No assignments of error 
were filed and we are, in effect, asked to roam at will over the 
whole domain of law and fact, and enter such judgment at law 
or decree in equity as we may conclude the plaintiffs might 
have been entitled to. This we decline to do. 

The appeal is quashed. 



Estate of Samuel Royer, deceased. Appeal of Samuel 

Wolf. 

WiU-^Issue d. v, n,—When to be awarded or not. 

An issae d. v. n. is of right when the fact arising and in dispute is sub- 
stantive and material to the inquiry, unless the whole evidence of the fact 
alleged be so doubtful and unsatisfactory that a verdict against the valid- 
ity of the will should not be permitted to stand. 

WtU— Testamentary capacity— Degree of proof. 

Vague and indefinite indications of mental weakness will not suffice ta> 
deprive a maq of his dominion over his estate, or defeat his light to dis- 
pose of it by will. 

WiU—jPestamentary incapacity^Issue d.v,n. 

An issue will not be awarded where the evidence showed that while the 
testator was advanced in years at the time of making the will, and not ex- 
empt from the infirmities of age or the impairment of the mental faculties 
incident thereto, disclosed no positive mental disability or incompetence 
to act understandingly, and where the sole act complained of was the dis- 
placement of tlie appellant as executor who was then eighty-seven, andi 
the substitution of a younger man of unquestioned fitness. 

Argued Nov. 11, 1897. Appeal, No. 144, Oct. T., 1897, hj 
Samuel Wolf, from decree of O. C. Lancaster Co., refusing an- 
Vol. VI— 26 



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402 ROYER'S ESTATE. 

Statement of Facts — Argaments. [6 Pa. Superior Ct 

issue d. V. n. Before Rice, P. J., Beaveb, Rekder, Orlady, 
Smith and Porteb, JJ. Affirmed. 

Rule on executors of Samuel Royer, deceased, to show cause 
why an issue devisa\'it vel non should not be granted. Before 
Livingston, P. J. 

The facts sufficiently appear in the opinion of the court 
The court below discharged the rule. Samuel Wolf, the 
would be executor appealed. 

Errors asBigned were (1) discharging rule for an issue d. v. n. 
(2) In the opinion of the court as follows: ""Being of opinion 
that, as Samuel Wolf is neither legatee, heir, or next of kin, to 
Samuel Royer, deceased, but a stranger to him, and to the es- 
tate, having no interest therein whatever ; a mere in trader, hav- 
ing no right to object to the probate of the will or to take and 
enter an appeal therefrom, and having no right or standing in 
this court to demand or be made party to an issue devisavit vel 
non to test the validity of the instrument in writing purporting 
to be the will of Samuel Royer, deceased, the rule to show cause 
why an issue devisavit vel non should not be granted, etc., must 
be discharged and appeal dismissed. The rule is therefore dis- 
charged by the court and the appeal dismissed." 

John H, Fry and B. F. Davis^ for appellant. — If from any 
cause he is so enfeebled in mind as to be incapable of knowing 
the property he possesses, he is without the i-equired testamen- 
tary capacity: Wilson v. Mitchell, 101 Pa. 495 ; Shaver v. Mc- 
Carthy, 110 Pa. 339; Tawney v. Long, 76 Pa. 106; Thompson 
V. Kyner, 65 Pa. 368 ; Daniel v. Daniel, 39 Pa. 191 ; 1 Redfield 
on Wills, 104, 122, 123. 

Want of testamentary capacity once shown is presumed to 
continue until the fact of temporary capacity is established by 
convincing proofs : Leech v. Leech, 21 Pa. 67 ; Haixien v. Hays, 
9 Pa. 151; Titlow v. Titlow, 54 Pa. 216. 

J, Hay Brown and A. J. Eberly^ with them W. U. Hensel^ior 
appellees. — An issue will not be granted, if upon the whole evi- 
dence, a verdict against the will ought not to be sustained : 
Boyer's Will, 13 Phila. 254 ; Wainwright's Appeal, 89 Pa. 220 ; 
Winpenny's App?al, 8 W. N. C. 415. 



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ROYER'S ESTATE. 403 

3.3 Arguments— Opinion of tho Court. 

An issue devisavit vel non will not be awaixled unless suflfi- 
cient evidence be furnished, which, if uncontradicted, would sus- 
tain a verdict against the will : Corson's Estate, 2 Montg. 173 ; 
8. c, 3 Montg. 103. 

Evidence that the testator was old, intemperate and irascible 
is not sufficient to submit his mental capacity to a jury, in the 
absence of evidence that he was mentally unfitted to dispose 
intelligently of his property : Keating's Appeal, 17 Atl. 207 ; 
8. c. 36 P. L. J. 283, affirming McCullough's Will, 35 P. L. J. 
169. See Napfle's Estate, 134 Pa. 492, affirming s. c. 46 L. 1. 57. 
An issue as to testamentary capacity or undue influence will 
not be awarded upon mere evidence of old age, lessened mental 
activity or impaired memory. In such cases, the inquiry is 
always to be directed to the mental condition of the testator at 
the time of the execution of the will, and to the circumstances 
then surrounding him or affecting his action : Lennig's Estate, 
36 W. N. C. 118 ; Shreiner v. Shreiner, 178 Pa. 57 ; Boehm v- 
Kress, 179 Pa. 387. 

Opikign by Smith, J., January 18, 1898 : 

In October, 1884, Samuel Royer made his will, disposing of 
his entire estate, and appointed Samuel Wolf, Sr. and Adam 
Konigmacher executors. Subsequently, Adam Konigmacher 
died, and in July, 1890, his son Jacob Konigmacher was sub- 
stituted by codicil. In January, 1893, the testator executed 
another codicil, in which he revoked the appointment of Samuel 
Wolf and appointed Jacob Konigmacher and W. K. Seltzer 
executors, and expressly ratified the will in all other respects. 
The testator died about two months after the execution of the 
last codicil, and his will was duly proved before the register of 
Lancaster county. From the decree admitting it to probate 
Samuel Wolf, Sr., appealed, alleging that he was interested in 
the estate by " being named in will of date of October 9, 1884, 
and codicil of date of July 31, 1890, as one of the executors of 
the will of said Samuel Royer," and assigned as reasons for his 
appeal that the testator was not of sound mind when he exe- 
cuted the codicil of January 25, 1893, and that the codicil was 
procured by fraud, duress, and undue influence. Evidence w?w 
submitted to the orphans' court on the question of the testator's 
mental capacity, with special reference to his ability to make 



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404 KOYER'S ESTATE. 

Opinion of the Couit. [6 Pa. Superior Ct. 

the codicil by which the appellant's appointment was revoked. 
No attempt was made to invalidate the original will or the first 
codicil. The court made no comment on the effect of this evi- 
dence relating to the testator's mental capacity, but disposed of 
the case on the ground that the appellant was a stranger to the 
testator, — " a mere intruder " — not a " person interested " within 
the meaning of the statutes allowing interested persons to in- 
stitute a contest, and for this reason dismissed the appeal. 

Two questions are raised by this record : (1) Was the evi- 
dence produced sufficient to warrant the granting of an issue 
dfivisavit vel non ? (2) Has Samuel Wolf such an interest in 
the estate as entitles him to raise this issue? Vague and indefi- 
nite indications of mental weakness will not sufiice to deprive 
a man of his dominion over his estate, or defeat his right to dis- 
pose of it by will. The testator was advanced in years at the 
time of making his will, and was not exempt from the infirmi- 
ties of his age or the impairment of the mental faculties inci- 
dent thereto ; but there is nothing in the evidence that shows 
positive mental debility, or incompetency to act understand- 
ingly, when making the codicil of January 25th. The sole act 
complained of is the displacement of the appellant, who waa 
then eighty-seven years of age, and the substitution of a younger 
man of unquestioned fitness for the active discharge of the 
duties of the position. The appellant was not connected with 
the testator or his wife by blood or marriage ; and the heirs and 
legatees do not complain of the change. 

From a close examination of the evidence it fails, in our opin- 
ion, to show that the testator was not in the full possession of 
his senses and entirely competent to dispose of his estate when 
he made the last codicil. In this class of cases, where an issue 
is asked for by one who has a right to demand it, '• the issue is 
of right, under the 41st section of the act of March 15, 1832, 
when the fact arising and in dispute is substantial and material 
to the inquiry, unless the whole evidence of the fact alleged be 
BO doubtful and unsatisfactory that a verdict against the validity 
of the will should not be permitted to stand : " Schwilke's 
Appeal, 100 Pa. 628. This rule, so often repeated by the 
Supreme Court, has long been the established test as to whether 
an issue should be granted ; hence there is no difficulty, so far 
as the law is concerned, in determining the propet course to 



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ROYEB'S ESTATE. 405 

1898.] Opinion of tlie Court. 

pursue. An examination of the evidence in the present case 
leads unhesitatingly to the conclusion that it is "so doubtful 
and unsatisfactory that a verdict against the validity of the will 
should not be permitted to stand." The few incidents shown, 
and upon which the appellant relies to prove mental incapacity, 
are common in every day life, even in persons far younger than 
the testator ; but such casual departures from what men regard 
as the rational standard are not suificient to deprive such per- 
sons of the right to dispose of their property by will. 

Holding as we do that nothing was shown which would jus- 
tify the framing of an issue devisavit vel non, it is unnecessary 
for us to pass upon the other question presented. 

The decree is affirmed. 



Commonwealth v. R. Bruce Hutchinson, Appellant. 

Criminal law — Solicilalion to commit crime when an iiidictable offense. 

Solicitation to commit a felony is a misdemeanor. But the classification 
of a crime as a felony or a misdemeanor being wholly arbitrary, and gov- 
erned by no fixed or definite piinciples, it is not the criterion by which to 
determine the question whether solicitation to its commission is an offense 
in law. The true test is to be found in its effect on society, since all acts 
that injuriously affect the public police and economy are indictable at com- 
mon law. Solicitation to bum a store building is such an act ; incitement 
to incendiarism being a direct blow at security of property and even of life. 
It is therefore indictable as a misdemeanor. 

Evidence of crime not charged btU cognate when admissible. 
While an independent crime having no connection with that charged 
cannot be shown, evidence may be given of one so connected with the of- 
fense for which the defendant is on trial as to show motive, purpose, iden- 
tity or guilty knowledge. 

The evidence tending to show that a defendant, charged with soliciting 
another to burn a building, at or about the time of such alleged solicitations, 
addressed similar solicitations to other persons, is properly admitted. 
Such testimony does not fall within the rule excluding evidence of other 
offenses than that laid in an indictment. 

Argued Nov. 8, 1897. Appeal, No. 40, Oct. T., 1897, by 
defendant, from judgment of Q. S. Blair Co., Jan. Sess., 1897, 
No. 27, on verdict of guilty. Before Rice, P. J., Wickham, 



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406 COMMONWEALTH v. HUTCHINSON. 

Statement of Facts— Arguments. [6 Pa. Superior Ct. 

Beaver, Rbedee, Oblady, Smith and Pobtbb, JJ. Af- 
firmed. 

Indictment charging solicitation to bum a building. Be* 
fore Bell, P. J. 

It appears from the record and evidence that there was evi- 
dence tending to show that defendant made a proposition to 
Robert Williams that if he would set fire to the storeroom of 
Pheasant & Wagner, the defendant would pay him, Williams, 
i25.00. An offer of evidence was made and admitted, under 
objection, tending to show that similar offers were made to other 
persons about the same time to commit the same or similar of- 
fense connected with the same building. 

The opinion of Bell, P. J., refusing motion in arrest of judg- 
ment and a new trial, is reported in 6 Dist. Rep. 709. 

Verdict of guilty and sentence thereon. Defendant appealed. 

ErrorB assigned among others were (1) the indictment in the 
above case will not sustain a conviction in Pennsylvania, as it 
does not charge an offense indictable, either at common law or 
by statute. (4) The admission of the testimony of Frank Bow- 
den, Frank Moore and Harry Woods, tending to show that 
defendant had solicited them to bui*n this same building after 
the time he had solicited Robert Williams to burn it, being 
distinct and separate offenses (if offenses at all), having no con- 
nection with the crime charged in the bill of indictment, and 
occurring weeks after the solicitation laid in said indictment, 
and for which an indictment is still pending, the commonwealth 
having elected on motion of defendant's counsel to go to trial on 
bill No. 27, of January sessions, 1897, in which the names of 
Frank Bowden, Frank Moore and Harry Woods had been 
stricken off by the district attorney. (8) The sentencing of 
the defendant to pay a fine of $20.00, costs of prosecution, and 
to undergo an imprisonment in the jail of Blair county for a 
period of six months. (9) There is no warrant in law for the 
sentence imposed by the court upon the defendant, as there is 
no act of assembly authorizing it, and it is thei'efore illegal and 
void, 

A. V, Dively^ with him J, Banks Knrtz^ for appellant. — So- 
licitations to commit misdemeanors are not indictable in Penn- 



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COMMONWEALTH v. HUTCHINSON. 407 

1898.] Arguments — Opinion of the Couili. 

sylvania: Smith v. Com., 64 Pa. 209 ; Whar. Cr. Law, sec. 179 ; 
Stabler v. Com., 95 Pa. 318. 

The admission of the testimony of Bowden, Moore and Wood, 
tending to show that defendant had solicited them to bum this 
same building, after the time he had solicited Williams to bum 
being distinct and separate offenses, if offenses at all, having 
no connection with the crime charged in the bill of indictment, 
and occurring weeks after the solicitation laid, and for which 
an indictment is still pending was eiTor: Shaffner v. Com., 
72 Pa. 60 ; Com. v. Daniels, 2 Select Eq. Cases, 332 ; 2 Russ. 
on Crimes, 694. 

Wm. S. Sammond^ district attorney, with him Thomas S. 
Oreevy and R, A. Senderson^ for appellee. 

Opinion by Smith, J., January 18, 1898 : 

The defendant was convicted and sentenced on the charge of 
soliciting one Robert Williams to bum a store building. The 
material parts of the indictment are as follows : " That R. Bruce 
Hutchinson .... did unlawfully, maliciously and wickedly 
solicit and incite Robert Williams to unlawfully, wilfully and 
maliciously bum, attempt to set fire to with intent to bum a 
certain new building .... owned by the firm of Pheasant & 
Wagner, and used, on the first floor for a storeroom and post- 
office, on the second floor by the 'Young Men's Christian Asso- 
ciation and the Juniata Borough Council, and on the third floor 
by the Independent Order of Odd Fellows and the Patriotic 
Sons of America ; and did offer the sum of $25.00 to the said 
Robert Williams to pay him for setting fire .... with intent 
to bum the said building." 

It is contended, on the part of the defense, that solicitation to 
commit a misdemeanor is not indictable, and that, as the indict- 
ment charges only such solicitation, it sets forth no criminal 
offense. 

There seems no question that solicitation to commit a felony 
is a misdemeanor : Rex v. Higgins, 2 East, 5 ; Rex v. Hick- 
man, 1 Moody, 34 ; Reg. v. Quail, 4 F. & F. 1076 ; State v. 
Avery, 7 Conn. 266 ; People v. Bush, 4 Hill, 133 ; Com. v. 
M'Gill et al., Add. 21 ; State v. Bowers, 15 L. R. A. 199. This 
however cannot be affirmed of the broad proposition that solici- 



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408 COMMONWEALTH v. HUTCHINSON. 

Opinion of the Qouit. [6 Pa. Superior CU 

tation to commit a misdemeanor is itself a misdemeanor. On 
the contrary, it seems clear that with respect to various misde- 
meanora, involving little or no moral turpitude or prejudice to 
society, solicitation to their commission is not in law an offense. 
It is equally clear that as to certain others, it is an offense. The 
cases cited in Wharton's Criminal Law, sec. 179, show that such 
solicitations are indictable, "when their object is interference 
with public justice, as when a resistance to the execution of a 
judicial writ is counseled, or perjury is advised, or the escape 
of a prisoner is encouraged, or the corruption of a public offi- 
cer is sought, or is invited by the officer himself." In Rex v. 
Phillips, 6 East, 464, it was held that solicitation to commit a 
misdemeanor of an evil and vicious nature was indictable. Tlie 
authorities collected in the notes to Washington v. Butler, 25 
L. R. A. 434, embrace cases in which it was held indictable to 
solicit another to make a plate for counterfeiting bills of ex- 
change ; to commit assault and battery ; to commit perjury. 
There is also a class of cases frequently referred to in the dis- 
cussion of this question, but really without bearing on it ; solici- 
tations accompanied with the offer of a bribe, of which Rex v. 
Plympton, 2 Ld. Raymond, 1377, and Rex v. Vaughan, 4 Burr, 
2494, are leading instances. In these the act sought was law- 
ful ; the offer of a bribe to influence its perform