text:
    Foy’s Case.

      Election law — Primary election — Nomination—Exceptions—Rehearing — Record—Certiorari—Appeals.
    On. an appeal from the refusal of the common pleas to grant a rehearing of an order sustaining exceptions to nomination for public office, the appellate court can pass only upon the regularity of the record, and if nothing appears from the record showing that the lower court erred or abused its discretion in refusing the rehearing its action will be affirmed.
    Argued Feb. 15, 1909.
    Appeal, No. 191, Jan. T., 1908, by P. C. Foy, from order of C. P. Schuylkill Co., March T., 1908, No. 180, refusing a rehearing of an order sustaining exceptions to the nomination of P. C. Foy to the office of school director of the Borough of Girardville.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for rehearing of an order sustaining exceptions to nomination.
    The opinion of the Supreme Court states the case.

      Error assigned was order refusing a rehearing.

      Wm. Wilhelm, with him E. J. Maginnis, for appellant.

      William G. Devitt, for appellee.

      April 12, 1909:
   Per Curiam,

P. C. Foy, the appellant, was returned to the office of the county commissioners of Schuylkill county as having been nominated in the middle ward of the borough of Girardville at a primary election held on January 18,1908. Exceptions were filed to his nomination February 6 following, which, four days later, were sustained by the court. This appeal is not from the action of the court sustaining the exceptions, but from the refusal to grant a rehearing on the petition of the appellant presented February 24, 1908 — eight days after the election. The single assignment of error is the refusal to rehear the case. On this certiorari we pass only upon the regularity of the record, and as nothing appears from it showing that the court erred or abused its discretion in refusing the rehearing, its action is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Hallock, Appellant, v. Lebanon City.

      Municipalities — Municipal contracts — Arbitration—Water supply— City engineer’s report.

    Where a contract with a city for a water supply provides that all tests shall be made by the city engineer, whose report shall be final, and conclusive and equally binding upon both the contractors and the city, a report by the engineer, after a test made by him, to the effect that there was neither a complete nor a substantial performance of the contract, is binding on the contractors, and will be a bar to their recovery of the contract price.
    Argued Feb. 15, 1909.
    Appeals, Nos. 234 and 235, January T., 1908, from order of C. P. Lebanon Co., No. 163, March Term, 1900, and No. 10, Dec. T., 1904, refusing to take off non-suit in case of L. G. Hallock and James Kinney, Jr., late co-partners, trading as Hallock & Kinney, v. Lebanon City.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit upon a contract for furnishing a supply of water to a city.

      At the trial the court entered compulsory nonsuits which it subsequently refused to take off, Ehrgood, P. J., filing the following opinion:
    By agreement of the parties the above-entitled two suits were tried as one and the motion to take off the nonsuit re- ■ lates to the consolidated suit.
    The foundation of the suit is a written contract entered into between the plaintiffs and the defendant city in which the plaintiffs, for a stipulated consideration, agree to furnish to the defendant city daily 1,000,000 gallons pure soft water from wells or springs other than those already owned by the said city.
    The plaintiffs sought to recover in this case, or in these two consolidated cases:
    First, upon entire performance of the contract.
    Second, or upon substantial performance of the contract; or third, that the defendant city accepted part performance of the contract.
    After an extension of time of almost a year by the defendant city to plaintiffs to comply with and completely perform "the contract, the city of Lebanon demanded a test to be made as to quantity, but the plaintiffs still wanted and were given more time and thereafter paid no attention to notices received as to tests. Under the specifications, a part of the contract, all the tests of the amount of pure soft water furnished by the said contractors, were to be made by and entirely in charge of the city engineer of Lebanon, Pa.; and his assistants, and the report of the said city engineer upon the same shall be final and conclusive and equally binding upon both the said contractors and the city of Lebanon.
    The report of the city engineer of the city of Lebanon as offered in evidence is as follows:
    “Lebanon, Pa., February 5, 1900. “To the Board of Water and Lighting Commissioners, Lebanon, Pa.
    “ Gentlemen: — In accordance with the request of yourselves the Special Water Committee of City Councils and the City Solicitor, I have carefully tested the rate of flow of the Hal-lock & Kinney wells at various times between December 6, 1899 and January 31, 1900, inclusive, and I would most respectfully make the following report; the various tests occupied in all nearly two weeks, and while making them, between 900 and 1000 weir measurements were taken.
    “The greatest rate of flow for the Hallock & Kinney wells was obtained on December 7, 1899, when they gave at the rate of 825,100 gallons in 24 hours. The least rate of flow for the Hallock & Kinney wells was obtained on December 14,
    1899, when they gave at the rate of 506,000 gallons in 24 hours.
    “The mean rate of flow for the Hallock & Kinney wells
    based upon dividing the sum of the rates of flow for the different days of testing, by the number of days of testing, amounts to the rate of 674,700 gallons in 24 hours. The average daily rate of flow for the Hallock & Kinney wells, based upon the assumption that there was a uniform increase or decrease (according to circumstances) in the rate of flow between any two consecutive tests, amounts to the rate of 648,163 gallons in 24 hours.
    “Yours Respectfully,
    “George W. Hayes,
    “City Engineer.”
    This report conclusively shows that there was neither a complete performance nor a substantial performance of the contract on the part of the plaintiffs. This report is binding on the plaintiffs as well as on the defendant.
    There was no evidence submitted by the plaintiffs from which the jury would have been justified in finding or inferring that there was an acceptance of the water supply plant of Hallock & Kinney; on the contrary, as soon as the report of the city engineer was received, which was on February 19,
    1900, the water board immediately, on the same evening, reported to councils and the contract was then rescinded and whatever use was made of said plant, or any part of it, prior, was done in accordance with the provisions of the contract. We are of the opinion that the plaintiffs have failed to sustain any one of the three propositions for which they contended at the trial and their motion ought not to be granted.
    April 12, 1909:
    And now, June 23, 1908, the motion to take off nonsuit is refused.

      Error assigned was the order of the court.

      Warren G. Light, with him Fred. Spriggs, for appellant.

      Walter C. Graeff, city solicitor, with him Gobin & McCurdy, for appellee.
   Per Curiam,

The judgments in these cases are affirmed on the opinion of the court below, refusing to take off the nonsuits.


author: Mr. Justice Brown,

text:
    Commonwealth v. McDermott, Appellant
    (No. 1).

      Constitutional law — Oleomargarine—Criminal law.

    The Act of May 29, 1901, P. L. 327, prohibiting the manufacture and sale of oleomargarine, butterine and other similar products when colored in imitation of yellow butter, is constitutional.
    Argued Oct. 26, 1908.
    Appeals, Nos. 194 and 195, Oct. T., 1908, by defendant, from judgments of Superior Court, April T., 1908, Nos. 190 and 191, affirming judgments of Court of Quarter Sessions of Washington Co., Nov. T., 1907, Nos. 11 and 108, on verdicts of guilty in cases of Commonwealth v. M. M. McDermott.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.

      Error assigned was the judgment of the Superior Court affirming the judgment of the court of quarter sessions sustaining the constitutionality of the Act of May 29,1901, P. L. 327.

      April 12, 1908:

      John M. Haverty, with him R. H. Meloy, for appellant.

      Alex. M. Templeton, with him C. L. V. Acheson, district attorney, and Cyrus Gordon, for appellee.
   Opinion by

Mr. Justice Brown,

These appeals were manifestly taken for the purpose of re-arguing the question of the constitutionality of the Act of May 29,1901, P. L. 327, prohibiting the manufacture and sale of oleomargarine, butterine and other similar products when colored in imitation of yellow butter. We ought hardly to be again called upon to declare that act constitutional. In Commonwealth v. Caulfield, 211 Pa. 644, we said there was no reason “why we should stuff the reports” with a repetition of the decisions sustaining it.

The assignments of error are overruled and the judgments of the Superior Court are affirmed.


text:
    Commonwealth v. McDermott, Appellant
    (No. 2).

      Criminal law — Oleomargarine—Second offense — Verdict—Sentence— Act of May 29, 1901, P. L. 327.
    Where a person is found guilty by a jury of violating the oleomargarine Act of May 29, 1901, P. L. 327, but is not sentenced, the mere verdict of guilty does not establish a conviction within the meaning of sec. 7 of the act, and if such person commits a second offense before he has been sentenced for the first offense, and is tried therefor and a verdict rendered against him, he cannot be sentenced to the penalties imposed by the act for a second conviction.
    Argued Oct. 26, 1908.
    Appeal, No. 196, Oct. T., 1908, by defendant, from judgment of Superior Court, April T., 1908, No. 203, affirming'judgment of Q. S. Washington Co., Feb. T., 1908, No. 159, on verdict of guilty in case of Commonwealth v. M. M. McDermott.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.

      April 12, 1909:
    Appeal from the Superior Court.
    The opinion of the Supreme Court states the case.

      Error assigned was the judgment of the Superior Court affirming the judgment of the court of quarter sessions sustaining a verdict of guilty against the defendant.

      Owen C. Underwood, with him John M. Haverty and B. H. Meloy, for appellant. —
    Conviction means a judgment and not merely a verdict: Smith v. Com., 14 S. & R. 69; Rauch v. Com., 78 Pa. 490; People v. Butler, 3 Cowen (N. Y.), 347.

      Alex. M. Templeton, with him C. L. V. Acheson, district attorney, and Cyrus Gordon, for appellee. —
    Sentence on a verdict of guilty is not essential to conviction, in order to support a conviction for a second offense, where it is imposed before trial and averred in the indictment: Wright v. Donaldson, 158 Pa. 88; York County v. Dalhousen, 45 Pa. 372; Macdonald v. Schroeder, 28 Pa. Superior Ct. 128.'
   Opinion by

Mr. Justice Brown,

M. M. McDermott was tried and found guilty in the court of quarter sessions of Washington county on November 21,1907, on an indictment charging him with having sold oleomargarine in violation of the Act of assembly of May 29, 1901, P. L. 327. Motions were made in arrest' of judgment and for a new trial, which were overruled on January 31, 1908, and on February 10, 1908, he was sentenced for a first offense under the statute. On January 30, 1908, complaint was made against him, charging him with having unlawfully sold oleomargarine on December 11, 1907, in violation of the act of 1901, and averring that he had previously been convicted of a similar offense at the preceding November Term of the court of quarter sessions of the county. On February 11, 1908, a true bill was returned against him, containing a count that his sale of oleomargarine on December 11, 1907, was his second offense under the statute, as he had been found guilty of having unlawfully sold that article on November 21,1907, and, on the verdict of the jury, had been sentenced on February 10, 1908, to pay a fine of $200 and costs. On the indictment charging the second offense the appellant was found guilty, and, after a motion in arrest of judgment was overruled, was sentenced to pay a fine and undergo imprisonment in accordance with the provisions of sec. 7 of the act of 1901. The court below was of opinion that the verdict of guilty, returned November 21, 1907, was, in itself, without judgment upon it, a conviction within the meaning of the act of assembly, and if the defendant subsequently before judgment on the verdict, unlawfully sold oleomargarine, he was guilty of a second offense within the meaning of the statute, but that, even if this was not correct, he had been sentenced the day before the bill was returned, charging him with the commission of the second offense. On appeal to the Superior Court this view was sustained, and, on the appeal to us, the question for our consideration is, whether one can be convicted of a second offense under the act of 1901, if, before the time of the alleged commission of that offense, he had not been subjected to judgment on a verdict finding him guilty of a first offense of the same kind.

The sale of oleomargarine, when colored in imitation of butter, is made a misdemeanor by the act of 1901, carrying with it punishment by a fine or imprisonment. A distinct and substantive offense under that act is the sale of colored oleomargarine by one who had previously so offended against the law, and the punishment for this offense is fine and imprisonment. This, of course, means a sale after a former conviction of the same offense, for a law can never be judicially said to have been offended against until the offense against it is established in a court of competent jurisdiction.

The word “conviction” has a popular and a legal meaning. In common parlance a verdict of guilty is said to be a conviction : Smith v. Com., 14 S. & R. 69; Wilmoth v. Hensel, 151 Pa. 200; and this popular meaning has been given to it when rights other than those of the one who has been found guilty have been before the courts. Such are the cases relied upon by the Superior Court in affirming the judgment below. In York County v. Dalhousen et al., 45 Pa. 372, the question was as to the liability of the county to pay costs after there had been a verdict of guilty against a defendant who was pardoned before sentence; and so of Wright v. Donaldson et al., 158 Pa. 88, in which Wright, the plaintiff, sued for his fees as a witness on behalf of the commonwealth upon a trial of a prisoner found guilty of a misdemeanor. But a very different situation is presented when one is confronted with an indictment charging him with a prior conviction of a similar offense and the statute makes his alleged repetition of it a distinct crime, for which, upon conviction of it, severer penalties are to be imposed. In such a case the word “conviction” must be given its strict legal meaning of judgment on a plea or verdict of guilty. The severer penalty is imposed by the legislature because that imposed for the first offense was ineffectual. The second offense, carrying with it severer penalties is, therefore, not committed in law until there has been judgment for the first. “When a statute makes a second offense felony, or subject to a greater punishment than the first, it is always implied that such second offense ought to be committed after a conviction for the first; for the gentler method shall first be tried, which, perhaps, may prove effectual: ” Hawkins’s Pleas of the Crown, ch. 40, sec. 3. “Clearly the substantive offense, which draws to itself the greater punishment, is the unlawful sale after a former conviction. This, therefore, is the very offense he is called upon to defend against. He cannot complain if, after suffering a former conviction and sentence, he commits a second offense of the same kind: ” Rauch v. Com., 78 Pa. 490.

The offense of which the appellant was convicted on this indictment was committed on December 11,1907. It is not to be doubted, for the jury have so found, that on that day he unlawfully sold oleomargarine and offended against the act of 1901 in selling it; but this indictment does not charge him with that mere offense. He is charged with another and distinct one — the unlawful sale of the article after having been once before convicted on the charge of having unlawfully sold it. If he was guilty of this separate, substantivé offense, his guilt was complete on December 11, 1907. Nothing that he subsequently did nor anything that was subsequently done in a pros-. ecution then pending against him could have made his simple sale of colored oleomargarine on December 11, 1907, the separate and distinct offense for which he was indicted. Unless at that time it had been judicially determined that he had sinned once before, he was not guilty of a second offense. On that day there was no such determination. On the contrary, his motion for a new trial and in arrest of judgment were in the hands of the court, which, later on, might have awarded him another trial, to be followed by an acquittal. If he had been tried on the second indictment, with the motion for a new trial pending, could the court have allowed him to be convicted on the count charging him with the second offense? It is no answer to this, that before he was tried sentence had been passed on the first indictment, for, in the end, he was tried for what he did on December 11, 1907, when, if at all, his offense was committed, and that was just two months before the court finally disposed of the first indictment against him by entering judgment upon the verdict. -Before that time no one could tell whether he had been guilty of a first offense. In Com. v. Kiley, 150 Mass. 325, the court had before it for consideration a statute which provided that the conviction by a court of competent jurisdiction of a person licensed to sell intoxicating liquors should in itself make his license void, and it was said: “Nothing less than a final judgment, conclusively establishing guilt, will satisfy the meaning of the word ‘ conviction ’ as here used. At any time before a final judgment of the court, a motion in arrest of judgment may be made, or the verdict may be set aside upon a motion for a new trial, on the ground of newly discovered evidence, or for other good cause; and upon further proceedings it may turn out that the defendant is not guilty. At the time of the sale relied on in the present ease, the verdict of the jury in the former trial had not been followed by a judgment, and the defendant had not been convicted within the meaning of this statute.” In the very recent case of People v. Fabian, 192 N. Y. 443, the indictment charged the defendant with the crime of knowingly voting at an election, “not being qualified therefor.” By the election laws of the state of New York no person who has been “convicted” of a felony shall register or vote unless he shall have been pardoned and restored to the rights of citizenship. The indictment against Fabian set forth the fact that he had been previously indicted for burglary in the first degree, and, upon his trial, a verdict of guilty had been rendered against him, but it did not appear that judgment had ever been entered upon the verdict. The court of appeals, in sustaining the demurrer to the indictment, said: “Where the reference is to the ascertainment of guilt in another proceeding, in its bearing upon the status or rights of the individual in a subsequent case, then a broader meaning attaches to the expressions, and a ‘conviction’ is not established or a person deemed to have been ‘convicted’ unless it is shown that a judgment has been pronounced upon the verdict.” At'common law one convicted of an infamous crime was disqualified from testifying, but he was not deemed to have been convicted unless the record showed the rendition of judgment upon the verdict. It was the judgment, and that alone, which was received as legal and conclusive evidence of the party’s guilt for the purpose of rendering him incompetent to testify: 1 Greenleaf on Evidence, sec. 375. “When the law speaks of conviction, it means a judgment, and not merely a verdict, which, in common parlance, is called a conviction:” Tilghman, C. J.., in Smith v. Com., 14 S. & R. 69. “WThen conviction is made the ground of some disability or special penalty, a final adjudication by judgment is essential:” Com. v. Miller, 6 Pa. Superior Ct. 35.

As the judgment of the court of quarter sessions on the second count of the indictment must be reversed for the reasons stated, the other questions raised by the assignments of error need not be considered. So much of the sixteenth assignment as complains of the sentence imposed upon the appellant, is sustained, and said sentence or judgment is reversed.


author: Mr. Justice Potter,

text:
    Seltzer v. Boyer, Appellant.

      Appeals — Assignments of error — Opinion of court — Exceptions to sheriff’s sale.

    1. An assignment of error to the opinion of the court is improper. It is the decree, and not the opinion of the court, which is assignable as error.
    2. An assignment of error to the dismissal of exceptions to a sheriff’s sale, and a refusal of a motion to set the sale aside, is improper where none of the exceptions are set forth. The dismissal of each exception should be set forth in a separate assignment.
    3. On an appeal from the dismissal of exceptions to a sheriff’s sale of real estate in foreclosure proceedings against a married woman, the court cannot consider or review a decree appointing a committee ad litem for the insane defendant, or the dismissal of a motion to set aside such appointment, where no appeal was taken from such decree or dismissal of motion, and neither the exceptions nor the assignments of error raise the question of their validity.
    Argued Feb. 16, 1909.
    Appeal, No. 246, Jan. T., 1908, by defendants, from order of C. P. Lebanon Co., March T., 1906, No. 62, dismissing exceptions to sheriff’s sale of real estate in case of Rebecca H. Seltzer v. Ellen B. Boyer, and her husband, Bassler Boyer, Mortgagors, and Ellen Boyer, Terre-Tenant, with notice to other terre-tenants.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to sheriff’s sale of real estate. Before Ehrgood, P. J.
    The opinion of the Supreme Court states the case. ■

      Errors assigned were in the following form:
    First Specification of Error. — The court erred in its finding and holding, in its opinion dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows:

      “In this proceeding judgment upon which the Levari Facias was issued, was entered prior to the time when the said Ellen B. Boyer became insane, and subsequently Bassler Boyer, her husband, was appointed her committee ad litem under the Act of June 26, 1895, P. L. 381, to whom notice of the intended sale was given.”
    Second Specification of Error. — The court erred in its finding and holding, in its opinion, dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows:
    “In this proceeding judgment upon which the Levari Facias was issued, was entered prior to the time when Ellen B. Boyer became insane; and subsequently Bassler Boyer, her husband, was appointed her committee ad litem, under the Act of June 26, 1895, P. L. 381, to whom notice of the intended sale was given. The notice given to Bassler Boyer, committee ad litem, was a sufficient notice to Ellen B. Boyer, the lunatic.
    Third Specification of Error. — The court erred in its finding and holding, in its opinion, dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows :
    “As to inadequacy of price at which the property was sold by the sheriff, it is only necessary to carefully consider the testimony of Mr. Reinoehl, a witness produced and examined by the exceptant, to show that such exception cannot be sustained.”
    Fourth Specification of Error. — The court erred in entering its order and decree; dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows:

      April 12, 1909:
    “And now, July 9, 1908, the exceptions to the confirmation of the sheriff’s sale are dismissed, the motion to set aside said sale is overruled, the sale is confirmed, and the sheriff is ordered and directed to execute and deliver a deed to the purchaser in accordance with the Act of Assembly.”

      Bassler Boyer, with him Charles T. Hickernell, - for appellants.

      Gobin & McCurdy, with them H. Rank Bickel, for appellee.
   Opinion by

Mr. Justice Potter,

This appeal is from the order of the court below dismissing exceptions to the confirmation of a sheriff’s sale of real estate, confirming the sale and directing the sheriff to execute and deliver to the purchaser a deed for the premises sold.

Rebecca II. Seltzer issued a scire facias upon a mortgage of Ellen B. Boyer and her husband, Bassler Boyer, and obtained judgment against the defendants for want of an affidavit of defense. On February 5, 1908, a pluries levari facias was issued upon this judgment, and the sheriff levied thereunder upon the mortgaged premises and advertised them for sale. On February 12, the defendant, Bassler Boyer, filed a petition alleging that his wife and codefendant, Ellen B. Boyer, was insane, and had been so for over a year, and was confined under due process of law as an insane person in the Pennsylvania Hospital for the Insane at Philadelphia, and that a commission in lunacy had been awarded against her by the court of common pleas of Lebanon county, but that no committee in lunacy had been appointed for her and no person was authorized to represent or act for her in regard to her estate or receive notice, as required by law, of the intended sale of her real estate under the execution issued against it. Upon presentation of this petition, the court granted a rule to show cause why the writ of pluries levari facias should not be stayed and set aside. Thereupon, before hearing upon the rule, the plaintiff stayed the pluries levari facias.

On February 27, the plaintiff filed a petition averring that Ellen B. Boyer, one of the defendants, had been insane for upwards of a year and was an inmate of the Pennsylvania Hospital for the Insane at Philadelphia and that no committee had been appointed to take charge of her estate, and praying that the court appoint a committee ad litem for her, upon whom might be served all process, notice and pleadings in relation to the judgment and pluries levari facias. To this petition was appended a sworn statement by the physician in charge of the hospital, that Mrs. Boyer was committed according to law, and was insane. Thereupon the court appointed Bassler Boyer, husband of Ellen B. Boyer, and also a defendant, committee ad litem as prayed for in the petition.

On February 27, the sheriff served on Bassler Boyer a certificate of the order of court, appointing him committee ad litem of Ellen B. Boyer, and on March 2, Boyer filed a protest and exceptions to such appointment, and the jurisdiction of the court to make it, and moved the court to set aside the appointment. On March 4, the motion to set aside the appointment was refused.

On February 28, another pluries levari facias was issued, and on March 28, the mortgaged premises were sold by the sheriff in pursuance of such writ. The sheriff returned that he had given “due notice of said sale to Bassler Boyer, one of the defendants; to Bassler Boyer, committee ad litem of Ellen B. Boyer, the other defendant (said Bassler Boyer being designated on the record of this proceeding as having been appointed by the court of common pleas as such committee ad litem of Ellen B. Boyer); to Ellen Boyer, terre-tenant .... by serving upon each of the above named, personally, more than ten days prior to the sale, a printed handbill giving notice of said sale, the day and hour when and the place where the same shall be, and what lands and tenements are to be sold, where they lie, and a proper description of the premises.” He also returned that he had served a handbill as above described, more than ten days prior to the date of the sale, on John B. Chapin, an adult in charge of the place of residence of the defendant, Ellen B. Boyer, and upon Ellen B. Boyer personally.

The sheriff’s sale took place, Bassler Boyer giving notice that the requirements of the law as to notice of the sale had not been complied with, and therefore the sale would be without authority of law and void. The property was sold to Christian Gingrich for $5,70.0, and the sheriff so returned. Bassler Boyer as a defendant and as husband of Ellen B. Boyer, moved to set aside the sheriff’s sale on the grounds of insufficient notice and inadequacy of price, and filed exceptions to its confirmation. The court dismissed the exceptions and confirmed the sale. Defendants have taken this appeal.

The first three assignments of error are to the opinion of the court below. It has been repeatedly pointed out that it is the decree of the court below, which is assignable as error, and not the opinion: Johnston’s Estate, 222 Pa. 514; Fullerton’s Estate, 146 Pa. 61. These specifications will therefore be disregarded.

The fourth assignment is to the dismissal of appellants’ exceptions to the sheriff’s sale, and the refusal of the motion to set the sale aside. But none of the exceptions are set forth. The dismissal of each exception which appellants desire to press, should have been set forth by a separate assignment. The decree of the court below does, however, appear in this assignment. In his argument, counsel for appellants complain of the appointment of a committee ad litem. The appointment was made under the provisions of the Act of June 10, 1901, P. L. 553, sec. 1. The fact of the insanity of the defendant, Mrs. Boyer, was first put upon the record by the petition filed by her husband for the purpose of having the prior pluries levari facias set aside on that express ground, and subsequently by the petition of the plaintiff and the affidavit of the physician.

Neither the appointment of the committee ad litem, nor the dismissal of the action to set aside such appointment is here assigned for error. The record shows an appointment made under authority of the act of assembly, and the refusal of a motion to set such appointment aside, both unappealed from. On this appeal, and under the assignments of error filed, the validity of the appointment of the committee ad litem cannot be questioned. That question could be raised only by a direct attack on the decree making the appointment. Counsel further complains that the action of the judge in appointing the committee was taken in chambers. But the record does not show that such was the fact.

We find nothing in the record of this case to justify the claim that there was any failure to comply with all the requirements of the law, as to notice of the sale, and as to the manner of serving the notice. Nor is there anything in the evidence to show any abuse of discretion by the court below, in its refusal to set aside the sale, because of alleged inadequacy of price.

The judgment is affirmed.


text:
    Huppert v. Huppert, Appellant.

      Judgment — Opening jvdgment — Oath against oath — Evidence.
    A judgment entered upon a judgment note will not be opened where the defendant’s allegation of fraud is not corroborated- by any other witness, and is denied by the oath of the plaintiff.
    Argued Feb. 16, 1909.
    Appeal, No. 363, Jan. T., 1908, by defendant, from order of C. P. Schuylkill Co., July T., 1899, No. 319, discharging rule to open judgment in case of Annie P. Huppert v. Charles Huppert.
    Before Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Rule to open judgment. Before Marr, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was order discharging rule to open judgment.

      W. F. Shepherd, with him L. D. Haughawout, for appellant.

      C. E. Berger, for appellee.

      April 12,1909:
   Per Curiam,

On June 12, 1899, the appellant executed and delivered to his wife a judgment note for $1,294.66, which, on the following day, was entered in the court of common pleas of Schuylkill county. In 1908, after a sci. fa. had been issued to revive it, he presented his petition to the court below, asking that it be opened, on the ground that it had been fraudulently obtained from him and had been executed and delivered to his wife without any consideration. To this an answer was filed by the appellee, now the divorced wife of the appellant, denying the allegation of the fraudulent procurement of the judgment and averring that it had been given to secure to her moneys which she had received from the estates of her father and grandfather and advanced to her husband or in his behalf. In support of his petition to open the judgment the appellant was examined as a witness. His testimony was not corroborated by that of the only other witness called in support of the rule. The case as presented to the court below was practically appellant’s oath against the oath of his former wife and the written instrument under seal, and the rule to open was properly discharged: Cloud v. Markle, 186 Pa. 614; Cruzan v. Hutchison, 210 Pa. 88. Appeal dismissed at appellant’s costs.


text:
    Mahanoy City, etc., Railway Company, Appellant, v. Ashland Borough.

      Municipalities — Paving streets — Street railways — Equity.
    A court of equity will not enjoin a municipality at the instance of a street railway company from paving a street in a particular way where the court finds that such paving is a municipal improvement and betterment, intended for the better and modern accommodation of the traveling public, although such paving will increase the difficulty of operating street cars when weather conditions are bad, without, however, rendering the operation of the cars wholly.impossible.
    Argued Feb. 17, 1909.
    Appeal, No. 13, Jan. T,, 1909, by plaintiffs, from decree of C. P. Schuylkill Co., July T., 1908, No. 7, dismissing bill in equity in case of Mahanoy City, Shenandoah, Girardville and Ashland Street Railway Company and Schuylkill Railway Company v. Ashland Borough, Lidyd T. Creasy et al.
    April 12, 1909:
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Bechtel, J.
    The opinion of the Supreme Court states the case.
    The conclusion of law referred to in the opinion of the Supreme Court was as follows:
    That the defendant borough’s control over and right to improve its streets, by paving, is above any privilege plaintiff company may have under its ordinance and that the proposed paving being for the benefit and advantage of the said community and traveling public it cannot be restrained by plaintiff.

      Error assigned was decree dismissing the bill.

      B. H. Koch, with him F. J. Laubenstein, for appellants.

      M. M. Burke, with him W. C. Devitt, for appellee.
   Per Curiam,

Counsel for appellants fairly criticise the statement in the opinion of the court below that it is not alleged in the bill nor contended by complainants that the proposed paving of Centre street up to the rails of the Mahanoy City, Shenandoah, Girardville and Ashland Street Railway Company will render it impossible to operate its cars upon the said street. There is an averment in the eighth paragraph of the bill that by the paving of the street up to the tracks the right of the company to operate cars will be unlawfully interfered with and frequently entirely prevented; and one of the requests for a finding of fact was that paving the street with vitrified brick against or near the rails of the track will increase the danger ' of operating the cars and is likely to render such operation wholly impossible when weather conditions are bad on account of the slipping of the wheels. The court, however, refused to find as so requested. On the contrary, it found that, while the paving of the streets will increase the difficulty of operating the cars when weather conditions are bad, the operation of the cars will not be rendered wholly impossible. A fact found at the request of the defendants was that the paving of the street is a municipal improvement and betterment, intended for the better and modern accommodation of the traveling public. On the first conclusion of law, found at the request of the appellees, the decree is affirmed and the appeal dismissed at appellants’ costs.


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    Leiby, Appellant, v. Lutz.

      Affidavit of defense — Practice, C. P. — Act of April 18, 1874, P. L. 64.
    1. The Act of April 18,1874, P. L. 64, authorizing an appeal from the refusal of the court of common pleas to enter judgment for want of a sufficient affidavit of defense, is intended to reach only clear cases of error in law. In doubtful cases, and especially in those requiring broad inquiry into facts, the matter in controversy should go to a jury.
    2. In an action brought against two persons as partners for work done where it appears that the action was brought four years after the completion of the work, and that no statement was filed until twenty years after the action was brought, an affidavit of defense made by one of the partners is sufficient to prevent judgment where he avers on information and belief that within six months after the work was done the plaintiff “was settled with and paid in full for all his services,” by the other partner.
    Argued Feb. 17, 1909.
    Appeal, No. 24, Jan. T., 1909, by plaintiff, from order of C. P. Schuylkill Co., March T., 1889, No. 173, discharging rule for judgment for want of,a sufficient affidavit of defense in case of William N. Leiby v. James L. Lutz and Frank Schwartz, trading as Lutz & Schwartz.
    Before Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.

      April 12, 1909:
    Rule for judgment for want of a sufficient affidavit of defense. Before Bechtel, J.
    • The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      J. O. Ulrich, for appellant.

      H. B. Craeff and R. J. Graeff, for appellees.
   Per Curiam,

This action was brought in 1889 for work alleged to have been done by the plaintiff for the defendants between December, 1883, and September, 1884. After waiting for more than four years to bring this suit, he waited until November 2,1908, to file his statement. More than twenty-four years after the last work is alleged to have been done the plaintiff for the first time filed his claim and called upon the defendants to file an affidavit of defense. In it there is an averment by Schwartz that he has been informed and believes that within six months after the work was done Leiby “was settled with and paid in full for all his services” by James L. Lutz, one of the defendants. Under the circumstances, the court did not err in holding that this affidavit of defense was sufficient to prevent a summary judgment. The Act of April 18, 1874, P. L. 64, authorizing an appeal from the refusal of the court of common pleas to enter judgment for want of a sufficient affidavit of defense, is intended to reach only clear cases of error in law. In doubtful cases, and especially in those requiring broad inquiry into the facts, the matter in controversy should go to a jury: Griffith et al. v. Sitgreaves, 81* Pa. 378. This is clearly such a case, and the order of the court in discharging the rule for judgment is affirmed.


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    Pellio, Appellant, v. Bulls Head Coal Company.

      Corporations — Fraud by corporation — Purchase of stock from stockholders.

    Where a stockholder of a corporation has been induced by the fraudulent representations of the officers of the company to sell his stock to the company at a price much below its real value, a court of equity will direct a reassignment of the stock to the stockholder on his repayment to the company of the purchase price, but it will not in the same proceeding inquire into the business of the company, order an accounting and compel the repayment to the company of money fraudulently taken from it by the officers under the guise of salary.
    Argued Feb. 22, 1909.
    Appeals, Nos. 28 and 290, Jan. T., 1908, by plaintiff and defendants, from judgment of C. P. Lackawanna Co., May T., 1907, No. 1, on bill in equity in case of John W. Pellio v. Bulls Head Coal Company and David J. Whiteford.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to compel the reassignment of stock of a corporation.
    Edwards, P. J., filed the following opinion:
    FINDINGS OF FACT.
    1. The Bulls Head Coal Company was organized and incorporated in January, 1901, for the purpose of mining coal in the city of Scranton. The authorized capital stock was $25,000, divided into 250 shares each of the par value of $100. The evidence shows that $22,500 of the stock was issued and that some time after the organization of the company the stock was
    held as follows:
    Charles A. Burr..........................100 shares.
    David J. Whiteford....................... 90 shares.
    William M. Whiteford..................... 10 shares.
    W. E. Stibbs.............-................ 10 shares.
    Ira T. Brown............................ 5 shares.
    Eugene F. Marsh......................■... 5 shares.
    J. W. Pellio (plaintiff)..................... 5 shares.

      2. The company after its incorporation proceeded to mine coal. Charles A. Burr was president of the company, and David J. Whiteford was secretary and treasurer. The company had directors — Burr, David J. Whiteford, William M. Whiteford, Marsh and Pellio — but the business of the company was carried on in a very informal way, the president and the secretary (Burr and D. J. Whiteford) being in charge of the business and conducting it as they saw fit. There were no stated meetings of the board of directors except the annual meeting held when the parties met as stockholders. Mr. Burr died in June, 1904, and from that time to September, 1906, the business of the company was managed by David J. White-ford, aided in an informal way by Mrs. Burr who became the owner of the Burr stock — 100 shares.
    3. The plaintiff, at the solicitation of David J. Whiteford, sold his five shares of stock to the Bulls Head Coal Company for the sum of $1,000, on August 17,1906. The plaintiff himself does not know whether Whiteford or the company was the purchaser, the transfer of the stock certificate having been signed in blank; but the evidence shows that the stock was paid for with the company’s check, signed by Whiteford as treasurer. The plaintiff, claiming that fraud had been practiced upon him and that he had been deceived as to the financial condition of the company and as to the value of the stock, demanded a reassignment of his stock, tendering to White-ford, and through him to the company, on March 18, 1907, the sum of $1,000 and interest from August 17, 1906. The reassignment of the stock was refused.
    4. The offer to buy plaintiff’s stock came from Mr. Bradbury, who was acting for one or both of defendants. Before agreeing to sell his stock, plaintiff consulted Whiteford as to the condition of the mine and the value of the stock. The substance of the information given plaintiff was that the mine was about worked out and that $300 would be a good price for his stock. This information was not only misleading; it was false; and the evidence pointing to this conclusion is of a very convincing character, as will be seen from our next finding.

      5. The mining operation carried on by the defendant company was a small one. When the operation was started the president and treasurer each had a salary of $75.00 per month as compensation for managing the affairs of the company. Some time afterwards these two officers each received $500 per month. Up to April, 1904, they had drawn from the treasury of the company in salaries the sum of $25,000. In April, 1904, the salary of each of the two persons named was $1,000 per month, and we find that the sum of $49,000 was paid out in this way from May, 1904, to July 10, 1906. The $1,000 per month, was paid to Mr. Burr a month or two before he died, and the same sum was continued to his widow. Whiteford received the same sum. The payment of these large sums in the guise of salaries was without the authority of the board of directors and without the knowledge of some of the directors. The evidence shows further that at the time Whiteford was arranging to buy plaintiff’s stock and when Whiteford said the stock was worth only $300, the company had a large amount of cash in the treasury; that is, on July 31, 1906, the cash balance was $14,496.01, and on August 31, 1906, it was $13,278.38.
    6. It is established by the evidence that the defendants, one or the other of them, purchased the stock of Mr. Marsh, five shares, and that an effort was made to buy the stock of Ira T. Brown, five shares, from the executor of Brown, through Mr. Reynolds, attorney for the estate. Whiteford made the same kind of representations to Mr. Marsh and Mr. Reynolds that he had made to the plaintiff. He said that the property of the company was exhausted and that the assets of the company consisted of some old mine cars, some mine mules and some wornout machinery. There seems to have been a systematic effort on the part of the defendant Whiteford to buy out the small stockholders at as low a price as possible, and, to accomplish this purpose, that the property was, to say the least, unduly depreciated and the actual condition of the company concealed. Nothing was said as to the distribution of $49,000 in salaries in about two years to two of the officers of the company, without authority of law.
    7. It is not necessary for us to ascertain the precise value of

      plaintiff's stock when he sold it to the company. It is sufficient to state that the value of the stock was much in excess of the amount paid for it, and that the plaintiff was induced to part with his stock by means of false representations made by the defendant who was acting in his own interest and in the interest of the other large stockholder.-
    8. About November, 1906, David Spruks became interested in the Bulls Head Coal Company. He bought 100 shares of stock from the Burr estate, paying $15,000 for them; five shares from E. F. Marsh and five shares from the Brown estate. For the 110 shares he paid altogether over $19,000. He knew that the company had purchased the plaintiff's five shares, because he saw the certificate of stock, marked “cancelled” in the treasury. Spruks reorganized the company in the sense that the company had new stockholders, a new board of directors and new officers, and the company continued to mine coal. The company, as a corporation, was the same. ■
    9. When Spruks and his fellow stockholders took charge of the company the money in the treasury was a part of the assets. The new stockholders had the benefit of all the assets, and the testimony of Spruks is that there was about $13,000 in the treasury.
    10. I can find no laches on the part of the plaintiff in the assertion of his rights. As soon as he discovered the unlawful acts of the officers of the company, he proceeded with reasonable diligence to secure a reassignment of his stock.
    CONCLUSIONS OF LAW.
    - The only question that can be considered in this case is the right of the plaintiff to a return of his stock to him on payment to the company of the sum tendered to it on March 18, 1907. Having found as a matter of fact that plaintiff was deceived by an officer of the company as to the value of the stock, and that an intentional fraud was committed by the company upon the plaintiff, I have no hesitation in concluding that the plaintiff is entitled to a reassignment of his stock.
    Plaintiff's counsel claims that the court has the power in the present case to inquire into the business of the company; to order an accounting, and to compel the repayment into the company’s treasury of the large sums of money fraudulently taken therefrom under the guise of salaries. This position is untenable. These questions may arise as soon as the plaintiff becomes again a stockholder. The defendant company at the instance of a stockholder may be compelled to take legal measures to recover moneys unlawfully appropriated by its officers; and on the failure of the company to do so, after notice, a stockholder possibly may do so. But this question is not before us now. The prayer of the plaintiff for such relief is denied.
    The final decree was as follows:
    Now, September 22, 1908, this cause came on to be heard, and was argued by counsel, and on consideration thereof, it is ordered, adjudged and decreed as follows:
    1. That the Bulls Head Coal Company, through its proper officers, is directed and commanded to transfer and reassign or issue to John W. Pellio, five shares of the capital stock of said company, assigned or surrendered to said company by the plaintiff on August 17,1906, on the payment by the plaintiff to said company of $1,000, with interest from August 17, 1906, to March 18, 1907.
    A decree is refused against said David J. Whiteford.
    2. An injunction is awarded against the Bulls Head Coal Company, restraining said company and its officers from selling, transferring, or issuing the five shares of stock aforesaid to any other person than the plaintiff. Bond required in the sum of $500.
    3. The Bulls Head Coal Company, defendant, is directed to pay the costs of these proceedings.

      Error assigned by defendant was the decree of the court.

      Error assigned by plaintiff was in overruling various exceptions to refusal of plaintiff’s requests for an accounting against the company and a decree against D. J. Whiteford.

      C. Comegys and I. H. Burns, for the Bulls Head Coal Company. —
    A bill in equity does not lie, under the facts in this case, and should have been dismissed. The position and action of the plaintiff precludes him from relief in this form of action: Phœnix Iron Co. v. Com., 113 Pa. 563; Com. v. Phœnix Iron Co., 105 Pa. 111; Com. ex rel. Wolf v. Penna. R. R. Co., 6 Pa. Dist. Rep. 266; Beach on Modern Equity Jurisprudence, p. 18; Dent v. Ferguson, 132 U. S. 50 (10 Sup. Ct. Repr. 13); Bartle v. Nutt, Admr. of Coleman, 29 U. S. 184; Bangor, etc., Ry. Co. v. Slate Co., 203 Pa. 6; Kimmel v. Stoner, 18 Pa. 155; Coleman v. Columbia Oil Co., 51 Pa. 74.

      Samuel B. Price, for John W. Pellio. —
    In all business relations and contracts, a party has the right to rely on the express statement of an existing fact or facts, the truth of which is known to the opposite party and not known to him: Smith on Law of Fraud, sec. 87; McClellan v. Scott, 24 Wis. 81.
    Where there is a relation of trust and confidence, a person may rely on the truthfulness of the representation made by the person in whom he trusts: Smith on Law of Fraud, sec. 87.
    The court should have entered a decree against Whiteford: Max Meadows Land & Imp. Co. v. Mendinhall, 4 Pa. Superior a. 398.
    A stockholder may sue the corporation when notice to the officers would have been useless: Wolf v. Penna. R. R. Co., 195 Pa. 91; Knoop v. Bohmrich et al., 49 N. J. Eq. 82 (23 Atl. Repr. 118); Bohmrich v. Knoop, 50 N. J. Eq. 485 (27 Atl. Repr. 636); 3 Cook on Corporations, sec. 741; Peabody v. Flint, 88 Mass. 52; Brewer v. Boston Theater, 104 Mass. 378; Davis v. Gemmell, 73 Md. 530 (21 Atl. Repr. 712); Treat v. Insurance Co., 203 Pa. 21; Wickersham v. Crittenden, 93 Cal. 17 (28 Pac. Repr. 788); Moyle v. Landers, 83 Cal. 579 (23 Pac. Repr. 798).
    The directors and officers of a corporation may be sued personally for misappropriation of funds: Watts’s App., 78 Pa. 370; Spering’s App., 71 Pa. 11; Cunningham v. Pell, 5 Paige (N. Y.), 607.
    In equity a suit should include and conclude the whole subject: McGowin v. Remington, 12 Pa. 56; Souder’s App., 57 Pa. 498; Orr v. Peters, 197 Pa. 606; Allison’s App., 77 Pa. 221.

      April 12, 1909:
   Per Curiam,

The decree directing the issue of shares of stock to the plaintiff is affirmed, and his cross appeal is dismissed on the findings of fact and conclusions of law by the learned judge of the common pleas.


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    Day, Appellant, v. Allen.

      Partition — Irregularities in proceedings — Equity rules of 1865.
    Where a bill for partition filed when the equity rules of 1865 were in force, bore an indorsement signed by all the parties defendant, admitting service, consenting to a decree pro confesso, and the appointment of a master without further delay or notice, such decree cannot be subsequently attacked on the grounds that the bill was not printed when served; that there was not indorsed on it a notice to appear, that it did not set forth the interest of the parties; that after the entry of the decree pro confesso the case was not placed on the equity argument list before the appointment of a master; and that an unprinted amendment containing more than 100 words was filed and not served.
    Argued Feb. 22, 1909.
    Appeal, No. 310, Jan. T., 1908, by plaintiff, from judgment of C. P. Wyoming Co., Oct. T., 1906, No. 59, for defendant on case tried by the court without a jury in suit of John P. Day v. F. E. Allen and George Bobinson.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for an interest in land in Tunkhannock township.
    The case was tried by Fuller, J., specially presiding without a jury.

      Error assigned was in entering judgment for defendant.

      Ernest K. Little and H. S. Harding, for appellant.

      James Wilson Piatt, with him Joseph Wood Piatt, for appellee.

      April 12, 1909:
   Per Curiam,

This was an ejectment to recover an undivided interest in land sold under proceedings in partition, instituted in 1893. The defendant was the grantee of the purchaser at the master’s sale. Before the proceedings were begun, the plaintiff had been adjudged a lunatic and his estate was in the hands of his committee, who represented his interest in the partition. The case was tried by the court without a jury. It appears from the facts found by the court that on the plaintiff’s restoration to reason he took possession of his property, settled with his committee, and has since exercised exclusive ownership in respect to the land allotted to his committee in the partition; that, “he has not reconveyed, nor repaid, nor restored, nor offered to do so,” and that, “in the ejectment he virtually asks that the partition be ignored so far as it operated to transfer his interest to his coheirs, while it is sustained so far as it operated to transfer their interest to him. ”

The plaintiff sought to recover on the ground that the partition was void because of irregularities in the proceeding. The irregularities pointed out were the failure to comply strictly with the equity rules of 1865, then in force. The principal irregularities were that the bill was not printed nor served, nor was there indorsed on it a notice to appear and answer, nor did it set forth the interests of the parties; that after the entry of a decree pro confesso, the case was not placed on the equity argument list before the appointment of a master; and that an unprinted amendment containing more than 100 words was filed and not served. How unsubstantial in point of merit these technical objections were appears from the fact that the bill filed bore an indorsement signed by all parties defendant, admitting service, consenting to a decree pro confesso and the appointment of a master without further delay or notice. The court held that the irregularities were curable and were cured by the concurrence of all the parties in interest. In this there was no error. There were no defects in the proceeding that would invalidate the deed.

The judgment is affirmed.


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    Delaware & Hudson Company v. Olyphant Borough, Appellant.

      Equity — Injunction—Preliminary injunction — Appeal.
    1. On an appeal from a decree awarding or refusing a preliminary injunction, the appellate court does not consider the merits of the case, except to determine whether there was reasonable ground for the action of the court.

      Equity — Injunction—Mines and mining — Surface rights — Plot of streets.

    2. Where an owner of coal leases the same with a right of way over the surface for mining purposes, and thereafter lays out a plan of lots with streets which are subsequently adopted by a borough as public streets, the borough has no right under the ordinance adopting the streets, to interfere with the owner of the coal in its enjoyment of the right of way, and if it attempts to do so it will be restrained by an injunction.
    Argued Feb. 23, 1909.
    Appeal, No. 368, Jan. T., 1908, by-defendant, from decree of C. P. Lackawanna Co., Sept. T., 1908, No. 32, awarding a preliminary injunction in case of Delaware & Hudson Company v. Olyphant Borough.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Newcomb, J., found the material facts to be as follows:
    7. It is not disputed that the plaintiff and its immediate predecessor in title have since 1858 held, and been engaged in mining, the coal under the Pierce warranty tract in the township of Blakely — now the borough of Olyphant — together with surface rights exercised in connection with the mining operations; that these rights were acquired by grant from William Hull, the former owner; that in 1858 he demised the coal to Abel Barker and others to be held until “ all veins of suitable character” were mined out; that by its terms the lease was made subordinate to a contract which the lessees then had to furnish the coal to the plaintiff company; and that the right of the lessees to assign the lease to the plaintiff was therein expressly mentioned. The leasehold rights were so assigned in 1864. Both papers were duly recorded in Luzerne county. As between the parties to it the lease is still operative. The grant from Hull includes the “ right of way across said tract for every description of necessary road and also the use and enjoyment in the fullest manner of such portion of the surface of said tract as may be required for the erection of all necessary shops, barns, offices, engine houses, etc., and for the deposit of props, culm or other material accumulated in their business,” etc. The area of the tract is not shown, but it is believed to be about 400 acres.
    8. Some years after the demise to Barker and others Hull plotted a portion of the surface into .village lots with streets and ways. Two of these were Short and Thirteenth, also called respectively Second and Third streets. What, if anything, was ever done by him to open or define the streets on the ground does not appear. There is evidence that some work, indefinite in character, was done some years ago on a portion of Thirteenth street by a street commissioner of the borough. The neighborhood is only sparsely built up and at the point in question nothing appears to have ever been done to lay out or improve the streets. Indeed such.travel as there is in that direction leaves the course of Thirteenth street before reaching that point and takes its way across the open fields, apparently because that is the line of least resistance.
    9. The trestle in question was projected by the plaintiff's engineers upwards of a year ago, in connection with a new opening deemed necessary to get out a portion of the coal. It is designed to cross Thirteenth street, as plotted, diagonally at an elevation of about fifteen feet in order to carry cars conveying the rock and other waste from the new opening to the dumping grounds on another portion of the tract. The work of construction was stopped in August by the borough officials acting by authority of the council. The workmen were arrested and prevented from going on with the work by being threatened with further arrest, the borough claiming the structure was-a nuisance. This claim is based on the effect of a borough ordinance of April 7, this year. The ordinance is as follows: “Sec. 1. That Second street, between Valley avenue and Agnes avenue, in the First ward of the borough of Olyphant, and Third street, between Valley avenue and Avenue E, in the First ward of the borough of Olyphant, be and they are hereby adopted as public streets of the borough of Olyphant.”
    April 12, 1909:
    No other corporate action in the premises has ever been taken by the borough.

      Error assigned was decree awarding preliminary injunction.

      A. A. Vosburg and P. L. Walsh, with them I. H. Burns, for appellant.

      James H. Torrey, of Welles & Torrey, for appellee.
   Per Curiam,

The appeal is from a decree awarding a preliminary injunction restraining the defendant from interfering with the plaintiff in the exercise of a right acquired by grant from the owner of the fee, to use the surface in mining and removing coal. As pointedly stated by the learned judge who heard the case: “The right which it asserts here is the' right to the use and enjoyment of certain of its land and tenements in accordance with the terms and purposes of the grant under which they are held. The injury which it seeks to prevent is the taking of some part of the property for public use without due process of law and just compensation.” On an appeal from a decree awarding or refusing a preliminary injunction we do not consider the merits of the case except to determine whether there was reasonable ground for the action of the court. The only claim of right by the defendant that is open for consideration at this time is that by ordinance it has adopted certain streets plotted by the owner of the fee after his grant of surface rights. This ordinance gave it no right as against the plaintiff.

The decree is affirmed at the cost of the appellant.


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    Frey, Appellant, v. Stipp.
    April 12, 1909 :

      Equity — Equity practice — Pleading—Evidence.
    The relief afforded by a decree in equity .must conform to the case made out by the pleadings as well as to the proofs. Every fact essential to entitle a plaintiff to the relief which he seeks must be averred in his bill. Neither unproved allegations nor proof of matters not alleged can be made a basis for equitable relief.
    Argued Feb, 23. 1909.
    Appeal, No. 379, Jan. T., 1908, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1908, No. 7, dismissing bill in equity in case of Henry Frey v. Mathias Stipp.
    Before Fell, Brown, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a contract void. Before Edwards, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree of the court.

      8. B. Price and T. F. Wells, for appellant.

      John P. Kelly, of O’Brien & Kelly, and R. A. Zimmerman, for appellee.
   Per Curiam,

The plaintiff sought by bill to have set aside on the ground of fraud a written contract for the purchase of stock, into which he had entered with the defendant. It was found by the judge who heard the testimony that the plaintiff had failed to substantiate the material allegations of his bill; that his testimony was far from being clear and precise and was substantially nullified by his admissions on cross-examination; that it was uncorroborated by other evidence direct or circumstantial. It was not alleged that the defendant made any statement in relation to the organization of the company at the time the contract was entered into, and no question as to the manner of its organization was involved in the issue raised; the offers of testimony in relation to it were properly rejected. In Luther v. Luther, 216 Pa. 1, it was said by our Brother Brown: “The relief afforded by a decree in equity must conform to the case made out by the pleadings as well as to the proofs. Every fact essential to entitle a plaintiff to the relief which he seeks must be averred in his bill. Neither unproved allegations nor proof of matters not alleged can be made a basis for equitable relief."

The decree is affirmed at the cost of the appellant.


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    Bonner, Appellant, v. Jennings.

      Public officers — Borough solicitor — Term of office — Act of April 25, 1907, P. L. 103.
    Where an attorney at law is employed by a borough for one year, and about six weeks thereafter the Act of April 25, 1907, P. L. 103, is passed, creating the office of borough'solicitor and fixing the term of office at three years, such attorney does not become borough solicitor at the end of his year of employment without an election as provided by the act, and an ordinance enacted subsequent to the passage of the act fixing the amount of his bond, is not the equivalent of an election under the act.
    Argued Feb. 24, 1909.
    Appeal, No. 4, Jan. T., 1909, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1908, No. 1,107, for defendant on case tried by the court without a jury in suit of Commonwealth ex rel. J. H. Bonner v. W. A. Jennings.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for quo warranto.
    Newcomb, J., filed the following opinion:
    The relator asserts title to the office of solicitor for the borough of Old Forge in this county. The writ was issued at his instance for the purpose of ousting the defendant who is alleged to be unlawfully holding and exercising the office. The cause being at issue on a traverse of the averments of relator’s petition it was submitted to the court for trial without a jury under the act of April 22, 1874, and its supplements, by stipulation of counsel filed May 4, instant. The trial thereupon proceeded, and from the evidence I find the following:
    FINDINGS OF FACT.
    1. How and when the borough of Old Forge was created is not shown. The case was tried on the assumption that before the inception of the cause it had been organized under the general borough laws and was governed accordingly at all times with which the case is concerned.
    2. March 4, 1907, being the first Monday in the month, the annual reorganization of the town council was effected. Among other things, action was then taken for the appointment of a solicitor. As recorded on the minutes the action was as follows: “The next order of business was the election of borough solicitor. The following names were presented: John H. Bonner and W. A. Jennings. On roll call the following voted for J. H. Bonner ” (the names follow). “For W. A. Jennings” (the names follow). “The result was as follows: Bonner 7, Jennings 3. John Bonner was declared the borough solicitor for the ensuing year.”
    3. From that time until the first Monday of March this year the relator served as the attorney or solicitor for the borough. June 24, 1907, action was taken with respect to his salary. The minute of the action is as follows: “Motion of Patrick Burke that the borough solicitor’s salary be $350 a year for his term. Motion carried.” At the same meeting action was taken with reference to the solicitor’s bond. The minute is as follows: “An ordinance fixing the borough solicitor’s bond at $1,000 a year was offered and passed final reading.” The minutes of the meeting further show that his bond in that sum was accepted and filed.
    4. The ordinance providing for the bond was recorded on the ordinance book and is as follows: “An ordinance fixing the amount of the borough solicitor’s bond in the borough of Old Forge, county of Lackawanna and state of Pennsylvania. Be it ordained by the council of Old Forge, and it is hereby enacted by authority of the same, that in compliance with the act of assembly of 1907 requiring the borough solicitor to give a bond for the faithful performance of his duties the same be fixed at one thousand dollars.” The “act of assembly of 1907” therein referred to is the act of April 25,1907, P. L. 103.
    5. This act is entitled a supplement to the general borough Act of April 3,1851, P. L. 320, “providing for the election of a borough solicitor, fixing his term of office, and prescribing his duties, and authorizing the town council to fix his compensation.”
    ' Section 1 is as follows: “That the town council of each of said boroughs on the first Monday of March, 1907, or as soon thereafter as practicable, may elect, by a vote of a majority of the members, one person, learned in the law, who shall be styled the borough solicitor, and shall serve for the term of three years from the first Monday of March succeeding his election, and until his successor shall be duly qualified; and the town council shall also fix the compensation he shall be allowed for said term. Vacancies in said office shall be filled by the town council for the unexpired term. He shall give bond to the corporation, with two or more sufficient sureties, to be approved by the town council, in such sum as they shall by ordinance direct, conditioned,” etc. The remaining sections relate to the solicitor’s duties.
    6. In connection with the record of the ordinance of June 24, in the ordinance book the clerk certified, “That the foregoing ordinance was given to the burgess, Ed. Garvin, at least ten days before the next regular meeting, that he returned the same to the next regular meeting without his signature or his veto.” Under the clerk’s testimony it could be found that in respect to the action of the burgess the certificate is inaccurate, and thus the validity of the ordinance might be open to question. As the point is not essential to the proper disposition of the case we do not at this time undertake to decide it.
    7. At the reorganization of the council the first Monday of March this year, the defendant was appointed borough solicitor for one year and from that time has been acting and recognized as such although he gave no bond, none being required by the council. At the meetpg of March 23 action was taken with reference to his salary as shown by the following minute: “Motion of Hapgood that the rest of the officers receive the same salary as last year, the officers being clerk, treasurer, solicitor and janitor. Motion carried.”
    8. Excepting the ordinance fixing the amount of the relator’s bond in June, 1907, no action appears to have been at any time taken by the council with reference to the act of April 25, 1907.
    The defendant presented several requests for findings of fact, but as they are substantially covered by the foregoing findings they need not be specifically answered.
    As applicable to the facts I state the following:
    CONCLUSION OP LAW.
    1. At the time of relator’s appointment the office of borough solicitor did not exist. His election was nothing more or less than an employment, the term of which expired by limitation on the first Monday of March, 1908.
    2. The subsequent attempt to change the character of his appointment by merely requiring a bond in accordance with the Act of April 25, 1907, P. L. 103, was of no effect.
    3. Hence, the relator never-took title to the office in question and for- that reason cannot recover possession.
    4. Whether defendant has any title to the office is at least questionable. But that need not now be decided, as the relator must recover, if at all, on the strength of his own title.
    5. Judgment should accordingly be entered for defendant with costs.
    The defendant presented certain requests for conclusions of law which are practically covered by the foregoing, and more specific answers are deemed unnecessary.
    DISCUSSION.
    Prior to the act of April 25, 1907, there was no express legislative authority for the election of a borough solicitor. There was no statute either creating or recognizing such office. That the town council was clothed with implied power to employ an attorney by the year if in its discretion it saw fit, has never been doubted, and, indeed, would hardly seem to admit of a doubt. That, however, will not sustain the theory that the attorney so appointed became a public official, and his position a public office. Such office can only be created by the legislature or by municipal action in pursuance of express legislative authority. When the relator was appointed in March, 1907, he was at liberty to accept or reject an employment tendered him by the borough. Having accepted, he took it with the limitations annexed, namely, for the term of one year. That fixed the status of the parties to the appointment. The status was not changed by the act of April 25, 1907. It may, at least for the purpose of this case, be assumed that the effect of the act was to create the office of borough solicitor with a tenure of three years. The office, however, could only be filled by an election in pursuance of the act. That did not pretend to make the borough attorney the incumbent of the newly created office. Neither does it purport to give the town council power to make him the incumbent otherwise than by election. Such election has never been held, unless the one of this year could be so construed, which we do not undertake to decide. It is not sound legal reasoning to say that the subsequent ordinance requiring a bond from relator and fixing its amount was equivalent to his election under the act. Like all statutory proceedings, to be effective the statute must be followed with substantial strictness. Here the statute was not in existence when the relator was appointed in March, 1907. There has been no attempt to rescind that action nor to proceed with another election until the end of the year for which the appointment was made. Then the defendant was elected. If the case turned on the validity of his title a different judgment might have to be rendered.
    It may be the act does not make the election of a solicitor compulsory on the borough. But there is ground for the argument that if the town council sees fit to have a solicitor they must now elect in accordance with the act. The defendant is confronted with the fact that there was no attempt in his case to conform to the statute, but his appointment was apparently-made on the theory that it is optional with the borough whether to elect according to the act or to appoint an attorney from year to year as heretofore. While we may have power to pass on the defendant’s title, and, if neither party is found to have title, to declare the office vacant, we do not think the case is of such character as to call for that, and it is accordingly decided against the relator on the want of title in him. We cannot see how he has any standing to claim an office which did not exist at the time of his appointment, especially in view of the limitation of his term of service to “the ensuing year.”
    Let judgment ,be entered for the defendant with costs, unless exceptions be filed within thirty days after- notice to the parties or their respective attorneys, which is to be forthwith served by the prothonotary or his clerk as provided by the Act of April 22, 1874, P. L. 109.

      Error assigned was in entering judgment for defendant.

      A. A. Vosburg, with him Chas. W. Dawson, for appellant.—
    We submit that, under the Act of assembly of April 25,1907, P. L. 103, and his election by the council of Old Forge borough on the first Monday of March, 1907, and by the several acts of said borough council subsequent to the passage of said act of assembly, recognizing the same, John H. Bonner was the legally elected solicitor of Old Forge borough, and that his term of office as such does not expire until the first Monday of March, 1911: Com. v. Moir, 199 Pa. 534; Hawkins v. Com., 76 Pa. 15; Com. v. Weir, 165 Pa. 284; Com. v. McCombs, 56 Pa. 436; Lloyd v. Smith, 176 Pa. 213; Philadelphia v. Fox et al., 64 Pa. 169.
    We submit that minutes of a municipal corporation cannot be attacked in a collateral case unless fraud or' corruption is alleged in the pleadings.: Com. ex rel. v. Schubmehl, 3 Lacka. Leg. News, 186; Whitehead v. School Dist., 145 Pa. 418; McCrea v. School Dist., 145 Pa. 550.

      April 12, 1909:

      M. J. Martin, with him Robt. J. Murray, for appellee.—
    There is nothing in the act of April 25, 1907, making it retroactive or applicable to any mere hiring of counsel, which took place on the first Monday.of March, 1907: State v. City of Kearney, 49 Neb. 337 (70 N. W. Repr. 225); Bauer-Grocer Co. v. Zelle, 172 Ill. 407 (50 N. E. Repr. 238); Brady v. Wilkes-Barre, 161 Pa. 246; Thomas’s Election, 198 Pa. 546; Sproul v. Standard Plate Glass Co., 201 Pa. 103.
   Per Curiam,

The judgment is affirmed on the opinion of Judge New-comb.


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    First National Bank of Reading v. Ferguson, Appellant.

      Bailment — Pledge of stock — Impairment of value — Banks and banking — Corporation.
    Where a national bank owning the majority of the stock of a corporation' accepts as collateral from a debtor other stock of the same company, and subsequently the entire value of the stock is destroyed in consequence of a change in the business made by the directors prior to the pledge, the bank may recover its debts from the debtor, although it could have prevented the change in business, but honestly failed to do so.
    Argued March 1, 1909.
    Appeal, No. 314, Jan. T., 1908, by defendant, from order of C. P. Berks Co., Aug. T., 1908, No. 51, making absolute rule for judgment for want of a sufficient affidavit of defense in case of First National Bank of Reading v. Nathaniel Ferguson.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense.
    Endlich, P. J., filed the following opinion:
    Conceding the general principle upon which the defense set up in this case is claimed to be founded — that if collateral in the hands of the creditor is impaired in value through the creditor’s negligence he is liable to the pledgor to the extent of the loss — it is impossible to perceive how it can be applied to the facts alleged in this affidavit. On October 24, 1907, defendant became indebted to plaintiff upon a note for $2,500, payable February 24, 1908. As collateral security he pledged to the plaintiff seventy shares of the preferred stock of the Keystone Wagon Works, a corporation the majority of whose stock was owned by the plaintiff, and which the plaintiff had been instrumental in organizing in order to protect itself against loss upon heavy advances made by it to the Keystone Wagon Company. Prior to February, 1907, the wagon works had built up and was doing a profitable business manufacturing wagons. About that time, against the defendant’s protest, this business was abandoned and that of manufacturing metal bodies for automobiles entered upon. The departure proved disastrous, so that the stock pledged by defendant to plaintiff became worthless, entailing upon him a loss greater than the amount of his indebtedness to plaintiff. Whilst the affidavit declares that the plaintiff made the change that wrecked the wagon works, it does not allege or point to any corporate act on the part of the plaintiff corporation as in any way directing or connected with it. What is meant is obviously to be gathered from the averment that the plaintiff owning the majority of the stock was, as such stockholder, through the majority of the directors of the wagon works, in control of its business and affairs. After all the change was brought about by the action of the management of the wagon works, and the most that can be charged against the plaintiff, according to this affidavit is, that it did not exercise its influence upon the management to prevent the change. It is not asserted that the failure to do so was actuated by any fraud or wrongful purpose, much léss by any design to depress or destroy the value of the collateral pledged by defendant (which might be a defense: see Ritchie v. McMullen, 79 Fed. Repr. 522). The question thus presented is therefore simply this, whether a stockholder in a company who accepts as collateral from his debtor other stock of the same company loses his debt by the destruction of the value of the entire stock of the company consequent upon the action of its directors which he was in a position, but honestly failed to prevent? There can be but one answer. The plaintiff could not be expected as pledgee of defendant’s stock to understand the interests of the company differently from what be understood them as a stockholder. In assenting as a stockholder, honestly, however mistakenly, to a change in the business of the company by its directors, the plaintiff certainly did not make itself liable to defendant for the loss resulting to him in common with it and all other stockholders in proportion to their holdings.
    But in addition to this, the change of business had been made long before the plaintiff became the holder of defendant’s stock as collateral security. The improvidence or negligence he imputes to it antedated by eight months the inception of the relation of pledgee and pledgor, trustee and cestui qui trust. There is nothing in the affidavit indicating any act or omission on plaintiff’s part entitling defendant to redress after the defendant’s stock came into plaintiff’s hands. There is therefore nothing alleged which, in any view, could ground a defense in this action. To go behind the date of the pledge and hold the defendant entitled to a release from his debt by reason of the injury resulting to him from plaintiff’s previous acts and omissions would be to hold the plaintiff responsible to defendant for the consequences of what it did, not as the bailee of defendant’s, but as the owner of its own stock. Of course that cannot be, because in what plaintiff did or did not do as a stockholder in the wagon works it was dealing with its own and not accountable to the defendant by reason of any privity between them.
    Notwithstanding the earnest and interesting argument made in behalf of the defendant, there seems to be no choice but to enter the judgment demanded by the plaintiff.
    The rule to show cause is made absolute.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      April 12, 1909:

      C. H. Ruhl, with him Richmond L. Jones, for appellant.

      J. Bennett Nolan, for appellee.
   Per Curiam,

The judgment is affirmed on Judge Endlich’s opinion.


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    Landis, Appellant, v. Curtis & Jones Company, Incorporated.

      Negligence — Master and servant — Dangerous machine — Contributory negligence — Fellow servant — Evidence.
    In an action by a boy fifteen years old against his employer, a corporation, to recover damages for injuries to his hand while working at a dangerous machine, binding instructions for defendant are proper where, it appears by the plaintiff’s own testimony that the danger he incurred in putting his hand into the machine (1) was not one involved in the work to which he was put by defendant or anyone representing it; (2) was one so apparent as not to require specific instructions in order to observe and avoid it; and (3) became the occasion of plaintiff’s injury through the act of a fellow employee in prematurely starting the machine.
    Argued March 1, 1909.
    Appeal, No. 58, Jan. T., 1909, by plaintiff, from judgment of C. P. Berks Co., March T., 1907, No. 53, on verdict for defendant in case of Stuart R. Landis, by his next friend and father, Levi S. Landis, v. Curtis & Jones Company, Incorporated.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ermentrout, P. J.
    At the trial the jury under binding instructions returned a verdict for defendant.
    On rule for a new trial Endlich, P. J., filed the following opinion :
    At the close of the evidence on the trial of this cause before the late President Judge Ermentrout, he affirmed a point submitted by defendant that “under all the evidence in the case the verdict must be for the defendant,” and directed a verdict accordingly. The plaintiff, in support of this rule for a new trial, contends that there was evidence requiring the submission of the case to the jury on the question of defendant’s neglect properly to instruct the plaintiff concerning the dangers incident to the operation of the machine at which he was put to work and by which he was injured, — that being the ground whereon, according to the declaration, his case rested.
    Putting upon the evidence of the plaintiff the construction most favorable to him, it appears that he was a little over fifteen years old; that he was put to work at the machine in question on Monday morning, June 25, 1906; that he worked at it until late on Tuesday afternoon when the accident occurred; that his business about it was to receive, take away and keep a tally of paper boxes formed by the machine, expelled by it automatically, and sliding down an inclined plane to a table at which plaintiff was to stand; that the machine was operated, fed, started, stopped and controlled by an operator; that occasionally a box would be spoiled and lodge in the machine, which would then be stopped by the operator while plaintiff removed the obstruction; that on the occasion in question a box thus caught in the machine; that the same was stopped; that plaintiff pulled part of the obstructing box out of the machine and reached in again to get the rest; that at that moment the machine was started by the operator, caught the plaintiff and cut off four of his fingers; that he had had no. specific instructions concerning the dangers incident to the operation of the machine or concerning his conduct and duties about it; and that on this occasion, when the machine was stopped the operator motioned to him to remove the obstruction (an allegation explicitly denied by the operator). It is, however, perfectly clear from plaintiff’s own testimony that when he was put to work at the machine all he was directed to do about it was to remove the boxes as they were expelled by it and that in so doing at the place assigned him he was in a position of perfect safety beyond the possibility of any harm or danger and too far from the machine to reach into it. Whatever other orders he took, if any, he took from the operator, a mere fellow servant and not at all the representative of the employer. Neither can there be any doubt that the risk of injury from reaching into the machine was manifest to any person possessed of the ordinary intelligence of one of plaintiff’s age. It is conceded that an employee’s knowledge that a machine is dangerous does not in itself relieve the employer of the duty of instruction where there may be a safe and unsafe way of working at it: Welsh v. Butz, 202 Pa. 59. But, as declared in Vant v. Roelofs, 217 Pa.'535, as regards a danger “obvious to anyone with reasonable intelligence,” “perfectly obvious to anyone,” there is no requirement of warning or instruction. It would thus appear by the plaintiff’s own testimony, accepted as verity, that the danger he incurred in putting his hand into the machine (1) was not one involved in the work to which he was put by defendant or any one representing it; (2) was one so apparent as not to require specific instructions in order to observe and avoid it, and (3) became the occasion of plaintiff’s injury through the act of a fellow employee in prematurely starting the machine. In these circumstances it needs no discussion to show that the plaintiff was not entitled to recover.
    But the correctness of the direction of the verdict for defendant is not to be judged of exclusively by the evidence adduced by the plaintiff. It was not based upon that, but upon the defendant’s right to a verdict under “all the evidence in the case.” An impartial view of the evidence in the case shows it to be overwhelmingly to the effect that the plaintiff was amply instructed and warned over and over again to keep his hands out of the machine and stay at the place assigned him at the table; that at the time when he put his hand into the machine and got caught the machine was running and had not been stopped at all; and that there was no obstruction of it nor anything to indicate the recent removal of an obstruction, which might have caused a stop or accounted for plaintiff’s leaving his proper place and reaching into the machine. On all these points the testimony is so abundant in quantity and so persuasive in character that it would seem to have been imperative upon the court to accept it. It is true that where the plaintiff’s evidence in support of his right to recover amounts to more than a scintilla it is bound to be submitted to the jury. But whether it amounts to more than a scintilla is sometimes a question to be decided with reference to the character and degree of the evidence opposing it, Mead v. Conroe, 113 Pa. 220, 228; Hauser v. R. R. Co., 147 Pa. 440, 447, and in connection with the admitted facts in the case and those established by undisputed evidence: Fisher v. Scharadin, 186 Pa. 565, 568. As pointed out in Newhard v. R. R. Co., 153 Pa. 417, 420, the controlling facts may thus be so clearly made out that a court in the due administration of justice, must treat them as facts, for the same reason that it assumes the fact of plaintiff’s injury, — because of proof that convinces an unprejudiced mind beyond a reasonable doubt. Such is the state of the evidence here, looked at as a whole, and however unfortunately for the plaintiff, it leaves him without a claim upon the defendant.
    April 12, 1909:
    The rule to show cause is discharged.

      Error assigned was in giving binding instructions for defendant.

      Cyrus G. Derr, with him Edward S. Kremp, for appellant.
    <7. H. Buhl, with him G. B. & J. B. Stevens, for appellee.
   Per Curiam,

It is demonstrated by the opinion of the learned judge of the common pleas that the plaintiff failed to make out a case.

The judgment is affirmed.


text:
    Fleishman, Appellant, v. Swentek.
    April 12, 1909:

      Landlord and tenant — Illegal distress — Lease—Evidence.
    In an action to recover damages for illegal distress for rent it appeared that the plaintiff purchased a stock of goods from a former tenant and went into possession of the building. There was evidence that the landord had made a new lease with plaintiff, under the terms of which no rent was due at the time of the distress, and there was also proof of facts consistent with an intention on the part of the landlord to accept the plaintiff as a tenant from month to month. The defendant, however, testified that he had made no new arrangement, and that he had refused to do so. Held, that the case was for the jury, and that a verdict and judgment for defendant should be sustained.
    Argued March 2, 1909.
    Appeal, No. 255, Jan. T., 1908, by plaintiff, from judgment of C. P. Montour Co., Dec. T., 1903, No. 38, on verdict for defendant in case of Simon Fleishman v. Paul P. Swentek.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for illegal distress. Before Evans, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for defendant.

      H. M. Hinckley, with him Edward Sayre Gearhart, for appellant.

      Grant Herring, with him William Kase West, S. P. Wolverton, and S. P. Wolverton, Jr., for appellee.
   Per Curiam,

This action was to recover damages for illegal distress and sale of the plaintiff’s goods. The defendant leased a' store building to Dreifuss, who during the term sold his stock of goods to the plaintiff, who went into possession of the building. It was not disputed that under the terms of the lease to Dreifuss the goods were liable to distress. The plaintiff’s contention at the trial was that he was not bound by the Dreifuss lease, but that he had made a new arrangement with the defendant and had become a tenant under a verbal lease by the terms of which no rent was due. Upon this issue the case was submitted to the jury. The assignments of error'are based on the proposition that there was not sufficient evidence that the plaintiff occupied the building under Dreifuss to warrant the submission of that question to the jury. This contention is not sustained by the record. There was testimony tending to show that a new lease was made and proof of facts consistent with an intention on the part of the defendant to accept the plaintiff as a tenant from month to month; but the defendant testified that he had made no new arrangement and that he had refused to do so. This raised an issue that was necessarily for the jury.

The judgment is affirmed.


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    Rowe v. Western Maryland Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — “Stop, look and listen”— Death.

    1. The rule that one who goes on a railroad track immediately in front of a moving train which he saw or must have seen if he had looked, will be conclusively presumed to have been negligent is from its nature applicable only to clear cases, where neither the facts nor the inferences to be drawn from them are in doubt.
    2. In an action against a railroad company to recover damages for death of plaintiff's husband who was killed in a collision at a grade crossing, between freight cars running wild and the wagon in which he was riding, the case is for the jury where the evidence shows that the accident happened before sunrise on a damp and cloudy morning when it was so dark that objects could not be readily distinguished, and that the cars made only a low rumbling sound.

      April 12, 1909:
    3. Where cars are owned or under the exclusive care of a railroad company run with no one in charge of them over a public crossing at high speed, and an accident results at the crossing, the burden is on the company to show the exercise of due care. Whether such care was observed is a question for the jury.
    Argued March 8, 1909.
    Appeal, No. 90, Jan. T., 1908, by defendant, from judgment of C. P. Franklin Co., Feb. T., 1907, No. 88, on verdict for plaintiff in case of Elizabeth Rowe v. Western Maryland Railroad Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Gillan, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $8,838.75. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. B. Buthrauff and O. C. Bowers, with them W. O. Nicklas, for appellant.

      Charles D. Wagaman, with him Frank C. Wagaman, Abraham C. Strife and J. A. Strife, for appellee.
   Per Curiam,

The plaintiff’s husband was killed on the second track at a crossing of the defendant’s road, in a collision between freight cars running wild at a very high speed and the wagon in which he was riding. No witness at the trial saw the accident. The appellant’s first contention is that the presumption that the deceased exercised the care that the law requires before attempting to cross is overcome by the fact that at the edge of the tracks there was an unobstructed view for some 2,000 feet in the direction of the cars. The accident happened before sunrise on a damp, cloudy morning, when it was so dark that objects could not be readily distinguished, and there was testimony that the cars made only a low rumbling sound. The rule that one who goes on a railroad track immediately in front of a moving train which he saw or must have seen if he had looked, will be conclusively presumed to have been negligent is from its nature applicable only to clear cases, where neither the facts nor the inferences to be drawn from them are in doubt. It could not be applied to this case.

The second contention is that there was no evidence that the accident was caused by any negligent act or the omission of any duty by the appellant’s employees. It was not necessary to the plaintiff’s case that there should be proof of a specific act of negligence by which the cars were allowed to pass from the siding on which they had been placed to the main track. It was shown that cars owned by the appellant or under its exclusive care ran, with no one in charge of them, over a public crossing at a high speed. The circumstances connected with the accident amounted to evidence from which negligence in the management of the cars might be inferred by the jury, and placed on the appellant the burden of showing the exercise of due care. Whether that was done was for the jury.

The judgment is affirmed.