the allegations of fraud contained in the bill; issue been opened and execution stayed, are estopped from
was joined upon the answer and the case partly denying the ownership of the goods as stated in the
tried. Plaintiff not having rested his case, accord-bond. (Super. Ct.) Ingram v. Harris, 550.
ing to the record, defendant moved to dismiss the Where the defendant in an action on a municipal
bill upon the ground "that the plaintiff here has a lien for paving was one of the signers of a petition
remedy at law and that a bill in equity will not lie." which represented that the petitioners were "two-
This motion was allowed and the bill dismissed with-thirds of the owners of the property representing
out any findings of fact or any finding of law except not less than two-thirds in number of feet of the
that there was a full and adequate remedy: held, that property fronting or abutting" on the street in which
the case having been brought to trial on the issues the paving was done, he is estopped from defending
of fact should have been allowed to proceed until a scire facias on the claim on the ground that the
the proofs were all in, and the court should have original petition did not in fact contain the neces-
stated, even if briefly, the reasons for its conclu- sary number of signers and that there was an in-
sion. (Super. Ct.) Cairns v. Ingram, 211.
formality in the treatment of the ordinance before
The sheriff is not a proper party defendant in a the work was done. Borough of Beaver v. Davidson,
bill to restrain an execution creditor from proceed-426.
ing to sell. Natalie Anthracite Coal Co. v. Ryon,
265.
The record, however, may be amended, even at the
hearing of an appeal in the Supreme Court, by strik-
ing out the sheriff's name. Id.
A bill which is filed against a trustee of realty,
praying an account, and also partition of the land,
may be sustained; it is not multifarious and is not
objectionable as an ejectment bill; the estate being
equitable, chancery will take jurisdiction of the
whole matter. Hanna v. Clark, 281.
Objection to the jurisdiction of a court of equity
must be taken before answer, unless the case is one
in which under no circumstances could the court
have jurisdiction. (Super. Ct.) Megarge & Green Co.
v. Ziegler, 466.
See AMENDMENT. Fricke v. Quinn, 292.
Where an insurance company, after notice of loss
by the insured is received, sends to the insured its
secretary as a representative, the insurer will be
bound by agreements made by such a person with
the insured, and, after the loss under the policy is
fixed between the insured and the insurer, under
agreement, no condition in the policy can be set up
to defeat the claims made to recover the amount
agreed upon. (Super. Ct.) Todd v. Insurance Co., 477.
A receipt is not an estoppel as between the origi-
nal parties, or as to persons not misled by it, but
acts as an estoppel as to one who is so misled. At-
kins v. Payne, 486.
If a defendant, by his action, misleads the plaintiff,
as to a certain line of defence, he may be estopped
from bringing forward that defence at the trial, but
he is not thereby estopped from requiring the plain-
tiff to prove the ground on which he is allowed to
Penn Plate Glass Co. v. Spring Garden Ins.
ESTOPPEL. A plaintiff in an action on a policy
of life insurance is not estopped by admissions con-recover.
tained in proofs of death. Fisher v. Fidelity Mut. Co., 516.
Life Assn., 95.
Where a defendant undertakes to accept and pay
for the stock of a corporation and his subsequent
acts are in accordance with that undertaking, he is
estopped from questioning the validity of his con-
tract, even if it be only by parol. Perkiomen Brick
Co. v. Dyer, 98.
Long acquiescence by all parties in interest in the
dealing with an estate by the executrix, who is also
life tenant of the whole, while it may be considered
by the court as a reason against surcharging the
executrix, does not estop parties in interest or their
assignees from demanding an account. (0. C.)
Smith's Estate, 248.
Where the lessee accepts a lease from the lessor
in actual possession, takes possession, is not evicted,
nor her position disturbed by any title paramount to
the lessor's, the rule estopping a lessee from deny-
ing the title of the lessor applies both to the lessee
and her surety, and cannot be avoided by a voluntary
removal by the lessee. (Super. Ct.) Ewing v. Cott-
man, 525.
A holder of a policy in a mutual benefit society,
who has a knowledge in a general way that
the society intends to dissolve and re-insure its
members in a regular life insurance company, by
transferring to the latter all its assets, and who
intentionally absents himself from the meetings
A corporation which through the action of its di- with the purpose and intention of refusing to be
rectors has co-operated in the action of its trustee bound by the action taken there, is barred from
in making a mortgage in good faith of the corporate coming into court, a year after a decree dissolving
realty cannot, after having received the loan, claim the corporation and directing such transfer and re-
seven years later that the act of the trustee in mak-insurance has been made and carried out, with the
ing a mortgage for an amount in excess of that per- claim that the decree should be opened and vacated
mitted by statute is not binding upon it. Union
Trust Co. v. Mercantile Library Hall Co., 337.
Where the owner of stock has delivered the same
as collateral to a broker with power of attorney to
transfer, executed in blank, he is estopped from as-
serting any title to it as against a third person who
has given value for it; where, however, a broker
pledges such stock to a bank, which actually knows
that the ownership is not in the broker, the bank
is bound to inquire whether the broker had the right
to repledge, and on failure to make such inquiry, the
owner may recover the said stock from the bank.
Westinghouse v. German National Bank, 349.
The obligors in a bond given to the sheriff for the
production of personal property, when judgment has
so far as relates to the transfer of the assets. In re
Mutual Benefit Co. of Penna., 561.
EVIDENCE. When the matter concerned is an
ancient transaction, the rule that the best evidence
must be given, means the best evidence procurable
at the time of trial. Howell v. Mellon, 361.
The agent of a life insurance company who nego-
tiates a risk is a competent witness, under either
the act of April 15, 1869, P. L. 30, or the act of May
23, 1887, P. L. 158, in an action of assumpsit upon
the policy, to prove facts alleged to be connected
with the issuing of the policy. Sargeant v. National
Life Ins. Co., 490.
The acts of 1869 and 1887 exclude parties, not
agents. Id.
The act of May 23, 1887, P. L. 158, makes com- they are not bound to accept his statements because
petent as witness one who has been previously con- he is unimpeached and uncontradicted by other wit-
victed of murder and who, when called, is under nesses. (Super Ct.) Troxell v. Malin, 547.
sentence of death. Com'th v. Clemmer, 539.
Evidence relating to the character of a witness,
four years before the trial at which he testifies, is
too remote to impeach his credibility. Miller v.
Miller, 81.
In an action of trespass for damages to plaintiff's
infant child, it is improper to admit as evidence the
answer to the question: "Q. Considering that the
car was almost to a standstill and that the child had
turned and was running away from the car, did the
motorman exercise good judgment in loosening the
brake to allow the car to go ahead?" Woeckner v.
Erie Electric Motor Co., 50.
If the circumstances of the case are fully dis-
closed by the testimony and no special knowledge
or training is required to determine their bearing
on the issue, there is no ground for permitting a
witness to supplement his description of what oc-
curred by his opinion. Id.
The opinion of a witness as to what caused trou-
ble between a testator and his wife is not receivable
in evidence in an issue devisavit vel non. Miller v.
Miller, 81.
Where an offer to prove a confession is made, the
defendant has not the right to interpose evidence to
show that a previous confession had been obtained
by undue means. Com'th v. Van Horn, 37.
Where it appears from the prisoner's confession
that, previous to his saying anything, he had been
cautioned as to the prosepect that the confession
would be used against him, it may be admitted
against the defendant even though it was made to
the district attorney, alone, for it is the manner by,
and the circumstances under, which the confession
is procured, not the person to whom it is made, that
determine its admissibility. Com'th v. Eagan, 564.
Where a woman whose throat has been cut, and
is running away from a man who is pursuing her,
makes declarations to the effect that the said man
"did it," such declarations are admissible in evi-
dence as part of the res gestae; so, also, her declar-
ations made to a person to whom she had gone im-
mediately after her throat had been cut. Com'th v.
Van Horn, 37.
In an action on a promissory note between maker
and payee, declarations made by the promisee to
to the former in any sum whatever, and that he
would return the note in suit, are admissible in evi-
dence. McCarty v. Scanlon, 111.
Whether the thread with which certain stitches the promisor that he (the latter) was not indebted
have been made is the same as certain other thread
is not a subject of expert testimony; anyone may
testify to the peculiar characteristics of the thread,
the stitches or the articles containing them, and it
is for the jury to compare them. Com'th v. Farrell,
43.
An undertaker who has made no special study of
the question of the time within which the rigor mor-
tis may be expected to set in, is not competent to
testify as an expert as to the length of time that a
person has been dead, basing his testimony on an
examination of the body. Id.
A witness who testifies that he has been in the
real estate business for six or eight years and has a
general knowledge of the value of property in the
neighborhood of the land in question, and had
known of sales of real estate in the vicinity, is com-
petent as an expert to testify to the value of the
land, whose value is in question, before and after the
municipal improvement which gives rise to the ac-
tion. Darlington v. Allegheny, 442.
When the defence in a criminal case is insanity,
and evidence of acts of a certain character has been
given in support thereof, the warden of the peniten-
tiary, who has had extensive experience with pris-
oners, may be called to testify that acts of a simi-
lar character are commonly performed by criminals
feigning insanity. Com'th v. Wireback, 506.
In a homicide case, a person, not an expert, who
has testified that she had seen the defendant on sev-
eral occasions; that he was excited and said that
he had been wronged, but that L. (the person whom
he afterwards killed) would do the right thing, is
not competent to give an opinion as to defendant's
sanity or insanity. Id.
A letter, speaking of the habits of a person, writ-
ten by one who is not a party to the action and who
had no personal knowledge of the matter stated in
the letter, is a mere declaration by one not a party
and is inadmissible in evidence. Miller v. Miller, 81.
A written declaration of a third person, deceased
some time before the trial, is not admissible in evi-
dence. Id.
Public documents, duly filed in the proper office,
are admissible in evidence, on a question of bound-
ary, and they are conclusive as to the matters there-
in set forth. Smucker v. Pa. R. R. Co., 225.
When such documents are muniments of title and
of great antiquity, it is not necessary to prove that
they were prepared at the exact time that the bound-
ary was set off. Id.
An ancient survey which purports to have been
made by a deputy surveyor, the writing on which
is testified to be in the hand of said deputy, which
is found in the place in which the official papers be-
longing to the deputy surveyor's department are kept
and which corresponds with the official return of
the tract mentioned in it and the description con-
tained in the patent therefor, is admissible in evi-
dence where the question is as to the extent of the
tract mentioned. Mineral Railroad & Mining Co. v.
Auten, 158.
Where a book of original entries includes work
and materials furnished, not only to the buildings
against which a lien is filled, but also to another
house, in an action on the lien the plaintiff may tes-
tify from the books as to what has in fact been fur-
Where the defence is insanity, witnesses who tes-nished to the houses covered by the lien, having
tify to having known the defendant and to having given the reason for the apparent variance between
had business with him a short time before the homi- his books and the bill of particulars. (Super. Ct.)
cide, as far back as six months, may be asked wheth- Brown v. Kolb, 26.
er from their observation of the prisoner's conversa-
tion, conduct, manner or appearance, they discovered
anything which would lead them to believe he was
of unsound mind. Id.
The law relating to book entries in a commercial
transaction cannot be applied with the same strict-
ness to physicians' accounts where nearly all medi-
cines furnished are compounded by the physician
The credibility of a witness is for the jury, and himself. (Super. Ct.) Staggers's Estate, 79.
Proofs of loss are not admissible as evidence of used by the defendant in cross-examination, it is
loss or of its amount. Cole Bros. v. The Manchester too late to except to their admission after the evi-
Fire Assurance Co., 256.
dence has closed. Id.
When the proofs of death include a copy of a coro-
ner's inquest, by which it is found that the deceased
committed suicide, and the plaintiff accompanies
the same with an assertion that he declines to be
bound by the finding, he is not bound by the finding.
Fisher v. Fidelity Mut. Life Ass'n, 95.
When questions which are overruled, when asked
by defendant's counsel while the defendant is on the
stand on the call of the plaintiff, on the ground that
they introduce the defence at an improper time, are
afterwards answered by the defendant during the
presentation of his own case, it is immaterial wheth-
er they were admissible in the first instance or not.
Id.
Receipts in full are not conclusive and are open
to explanation, but where there is no explanatory
testimony they have a defined legal meaning and To modify a written contract by a parol agree-
cannot be set aside except for weighty reasons, such ment, decisive testimony is necessary. Gaynor v.
as fraud, accident or mistake, and such causes for Railroad Co., 321.
disregarding them must be made to appear distinct-
ly. Rhoads's Estate, 368.
Evidence tending to show compliance with the re-
quirements of specifications of a contract should be
admitted, although it does not go to show a literal
Testimony to contradict a receipt for premiums,
imprinted on the margin of a policy, may be admit-compliance. (Super. Ct.) Gallagher v. Philadelphia,
ted on a trial on a life insurance policy. Id.
A plan in order to be legal evidence, must be sup-
ported by proof of the passage of the ordinance of
councils whereby the plan was adopted. (Super. Ct.)
Borough of Oakley v. Sterling, 123.
The stenographer's notes of testimony at a former
trial of the same case are admissible in evidence
when their correctness is not impeached. Giberson
v. Patterson Mills Co., 239.
Although cross-examination should be confined
to the matters stated in the examination in chief,
yet when the court has permitted a departure from
a strict compliance with the rule, there must have
been an extreme case of abuse of discretion in order
to bring about a reversal. (Super. Ct.) Hunter v.
Voight, 197.
Where a defendant is put on the stand, with a view
to develop a defence of insanity, it is not error to
allow him to be asked by the prosecution the ques-
tion, You don't say you are insane, do you?"
Com'th v. Van Horn, 37.
When the issue is fraud, all circumstances in the
relation and condition of the parties, and all acts
and declarations of the persons charged with fraud,
are competent evidence, which, in the opinion of the
judicial mind, bear such a relation to the transac-
tion under investigation as is calculated to persuade
the jury that the allegation of fraud is or is not well
founded. (Super. Ct.) Troxell v. Malin, 547.
In a suit for damages for change of grade, evi-
dence is competent to show that plaintiff had de-
clined to have the grading, the cost of which is made
an item in the damage, done for nothing. Darling-
ton v. Allegheny, 442.
See EMINENT DOMAIN. Shano v. Bridge Co., 387.
Conversations, between the claimant of a water
right and one who is alleged to have violated it, are
admissible in evidence for the purpose of showing
that the former had not acquiesced in the violation
of his rights, although his estimate of the damage
suffered be stated, provided the court caution the
jury that the said estimate is not to be considered,
and instruct them as to the only purpose for which
the conversation is to be regarded. Mott v. Consum-
ers' Water Co., 182.
Where a private detective testifies for the prosecu-
tion, it is competent to ask him as to his connection
with the case, what his contract with the county is
and how his pay is to be adjusted, its amount, and
whether it is conditioned upon or to be affected in On a trial for murder, committed on April 7, 1895,
any way by the result of the trial. Com'th v. Far-evidence that the defendant, with others, conspired
in 1894 to rob the deceased, and, afterwards, on
Where defendant, a purchaser of goods, has de- February 21, 1895, assaulted and endeavored to rob
clined to accept them on the ground of their un- him and failed, and on the evening of the same day,
merchantability, it is competent for plaintiff to ask the defendant proposed to renew the attack and said
of defendant's witnesses in cross-examination, he would get the deceased's money if he had to kill
whether, afterwards, the defendant had not pur- him, is irrelevant. Com'th v. Farrell, 43.
chased the same goods from a third party to whom
plaintiff had sold them, after defendant had refused
to accept. (Super. Ct.) Germain Fruit Co. v. Roberts,
Where a pocketbook sewed with thread, resembling
that used in the repair of one owned by the deceased,
has been found, some six months after a murder,
in the bed of F., who is accused of the crime, it is
Where a party, without objecting to testimony on error to charge: "If the pocketbook in question, to
the ground that it is hearsay evidence, proceeds to wit, the pocketbook found in the bed at Allequippa,
cross-examine the witness, such a party has no was the pocketbook of H. B. (the deceased), and was
standing to object, on appeal, that the testimony stolen at the time of his death in April, 1895, and
was improperly admitted. Hannum v. Pownall, 48. was taken to Allequippa, by F. and was concealed in
No advantage can be taken of the fact that a his bed, then there would be a strong presumption
question, which has been admitted, was leading, arising from the possession of stolen property that
unless specific objection on that ground were made F. was the robber or one of the robbers who stole
at the time, so that the examining counsel might said pocketbook; and, inferentially, it would strong-
have an opportunity to change the form of his in- ly tend to show that he is guilty of being concerned
terrogatory. Id.
The order of testimony is within the control of
the court trying the case. (Super. Ct.) Corkery v.
O'Neill, 420.
When a lien and bill of particulars have been ad-
mitted in evidence, unobjected to, and have been
in the death of H. B.," and the error is not cured
by adding: "On the contrary, if you have a reason-
able doubt as to whether this pocketbook ever be
longed to H. B., you should dismiss the circumstance
of finding of the pocketbook from the case and allow
it to have no weight against the defendant." Id.
subject to levy at the suit of another
(Super. Ct.) Rees v. Chantler, 445.
Where there is a case of sufficient doubt to justify
the opening of a judgment, upon which execution
has been issued, the court should not, ordinarily,
when it opens the judgment set aside the execution,
but should preserve the lien thereof pending fur-
ther proceedings, unless security equivalent thereto
is given with the approval of the court. Adams v.
Leeds Co., 485.
In a case of an assignment by the members of a
firm, as a firm and as individuals, where it appears
that B., one of the firm, had owned all the assets,
that he then took into partnership his sons, who
contributed nothing but their services; and it ap-
pears that the business continued without any inter-
ruption, and B. testifies that his only contribution
to the firm was a certain amount of money, and that
its only assets up to the time of its failure were
cash on hand and book accounts, an auditor is jus-
tified in finding that stock certificates and bonds EXECUTOR. An executor or administrator is
which stood in the name of B., and which had never not required to file an affidavit of defence in a suit
been claimed by the other parties, are individual on a contract made by the decedent where the cause
and not partnership assets and must be applied pref- of action arose before the decease of the latter, and
erentially to the payment of B.'s individual debts, no valid judgment can be entered in such a case
notwithstanding that the stocks and bonds have been for want of an affidavit of defence. Mutual Life Ins.
entered on the firm books under the head of "securi- Co. v. Tenan, 193.
ty account," and that B., after the assignment, made
declarations capable of construction as an admission
that they were firm assets. Re Assigned Estate of
Bailey, 133.
Where evidence properly part of a case is within
the control of a party whose interest it would natur-
ally be to produce it and, without giving a satisfac-
tory reason, he fails to do so, the jury may draw an
inference that it would be unfavorable to him; this
principle is not confined to documentary proof, but
extends to living witnesses. (Super. Ct.) Ginder v.
Bachman, 120.
The filing of an account by an executor in the
Orphans' Court, whether under compulsion of a cita-
tion sur petition or by a voluntary act, tolls the run-
ning of the statute, as to the fund brought into court
by the account, in respect to claims presented before
final adjudication. (Super. Ct.) Ritchey's Appeal,
194.
Long acquiescence by all parties in interest in the
dealing with an estate by the executrix, who is also
life tenant of the whole, while it may be considered
by the court as a reason against surcharging the
executrix, does not estop parties in interest or their
assignees from demanding an account. (0. C.)
Smith's Estate, 248.
Where one party attempts by insinuation in an an-
swer and by a line of questions to blacken the char-
acter of the other, and the insinuations are not sup- | An executor, by paying part of a claim against his
ported by testimony, it is not error for the judge decedent's estate, and asking credit for the pay-
to characterize the attempt as discreditable, and to ment, does not bind the estate to pay the balance,
charge that when parties traduce, practically, the and may show that the claimant is not entitled
character of another party by insinuations which to recover. (O. C.) Wireman's Estate, 334.
they bring no evidence whatever to support, the jury
have a right to take notice of it. Id.
When a contract in writing is plain and free from
ambiguity, it will not be construed by the acts and
admissions of the parties in reference to it, but,
where the intention is obscure or doubtful, no evi-
dence is more reliable or entitled to greater con-
sideration, as manifesting what that intention was,
than the acts and conduct of the parties themselves.
(Super. Ct.) Lummis v. Devine, 575.
A reasonable time is allowed to the accountant to
retain the funds awaiting the appointment of an ad-
ministrator for a deceased distributee, but after
that has expired interest is chargeable upon the
fund. (Super. Ct.) Bear's Estate, 469.
EXEMPTION. See TAXATION. White v. Smith,
FARE. See STREET RAILWAY COMPANIES. (Su-
per. Ct.) Muldowney v. Pittsburgh & Birmingham
Traction Co., 52.
EXECUTION. A chose in action cannot be FEE BILL. Under the act of May 23, 1893, P.
levied upon and sold under a writ of fieri facias. L. 117, a constable is entitled to a fee of fifty cents
(Super. Ct.) Tradesmen's B. & L. Ass'n v. Maher, for each person served. Price v. County of Lancas-
422.
ter, 286.
The interest of an owner of a policy of fire insur-
ance, being only a right to compensation in case of
fire or to a return of a portion of the premium in
case of cancellation, cannot be levied upon and sold
under a fi. fa. Id.
FENCES. The act of 1700, making it the duty
of the owner of premises to fence them for the pur-
pose of keeping out roving cattle, as well as re-
straining his own, was repealed by the act of April
4, 1889, and the common law rule now prevails,
whereby it is the duty of the owner of cattle to pre-
vent them from roving, and he is bound to confine
them upon his own land. (Super. Ct.) Erdman v.
Gottshall, 405.
While a bill in equity will not, ordinarily, lie to
restrain an execution creditor from proceeding to
sell, in satisfaction of his claim, real estate alleged
to belong to his debtor, if the process of the law is
being used, against right and justice, to the injury The act of March 11, 1842, relating to party line
of another, it is the undoubted right of the latter fences was not repealed, however, and it is still nec-
to invoke, in this way, the intervention of a essary for an owner of cattle to make such fence
court of equity. Natalie Anthracite Coal Co. v. "sufficient" to restrain their tendency to rove, and
Ryon, 265.
the question of the sufficiency of such fence is for
the jury. Id.
FIXTURES. When not a part of realty.
REALTY; COAL LEASE. Wick v. Bredin, 323.
FOREIGN ATTACHMENT. The bond given to
Where, by agreement between the execution cred-
itors, the sheriff, and an assignee for the benefit of
creditors of the defendant, the sheriff who has levied
on property, turns the same over to the assignee,
for the purpose of sale, and the assignee, to carry a sheriff in a foreign attachment, though marked to
out the purpose of the agreement, removes the prop- the use of defendant in the writ, cannot form the
erty into another county, the property there becomes basis of a claim for damages incurred by such de-
FOREIGN ATTACHMENT-Continued.
fendant by reason of issue of the writ and the fail- Where a bank, or other depositary, being insolv-
ure of the plaintiff to "prosecute said plea against ent, obtains money, giving therefor its check upon
the said defendant with effect according to law," another institution, such action is a fraud, and if
unless he has a cause of action against the sheriff, the money have not been used or mixed with the
as to which such bond is an indemnity. (Super. Ct.) common funds of the bank, the title remains in the
Clements v. Courtright, 262.
original owner. Corn Exchange National Bank v.
Solicitors' Loan & Trust Co., 184.
FOREIGN CONSUL. See BENEFICIAL SOCI-
ETY. (Super. Ct.) Ameisen v. National Slavonic So-
ciety, 54.
Describing himself as owner in a building agree-
ment, by one who holds title in fee simple to the
land concerned in the agreement, limited by a duly
is not such a fraud as will invalidate a covenant in
the agreement that no mechanics' liens shall be
filed. (Super. Ct.) In re Assignment of Brumbaugh,
271.
FOREIGN CORPORATIONS. Where a for-
eign corporation seeks to enforce in the courts of recorded declaration of trust in favor of his wife,
this state a demand arising from the transaction of
business within the state, it must show as part of its
case that it has complied with the act of April 22,
1874, P. L. 108. Phoenix Silk Mfg. Co. v. Reilly, 136.
If, after the filing of a certificate as provided in
the act of 1874, facts occur which cause the certifi-
cate to be no longer a true statement, it must be
corrected, and until such correction is made the cor-
poration has no standing to do business in this
state. Id.
Where a plaintiff in a bill to compel the retransfer
to himself of certain stock testifies that his inten-
tion in making the transfer to the defendant was to
put the legal title in him so that his (the plaintiff's)
creditors could not reach it, equity will afford him
no relief. Hukill v. Yoder, 347.
Where it is sought to set aside a deed for fraud
and undue influence upon the grantor, a contest be-
gun in his lifetime may be renewed, after his death,
by his devisee or by his heir at law. Stobert v.
Smith, 364.
A., a corporation of Maryland having its principal
office in Baltimore, failed to pay the taxes due to
that city, whereupon receivers were appointed who
were sued for the total taxes due by the company,
a judgment was obtained and the amount subse-
quently paid by the receivers to the proper authori- FRAUDS, STATUTE OF. Where an agree-
ties. A suit was then brought against the defend- ment for sale of real estate is within the statute of
ant, a stockholder resident in Pennsylvania, to re- frauds, if the vendee refuse to comply with his
cover from him an amount of the tax in proportion agreement, the vendor may not retain the property
to his holding of stock: held, there could be no re- and sue to recover the value of vendee's interest.
covery, because the tax when paid by the receivers On vendee's default vendor has a right to rescind
of the insolvent company to the proper persons au- the contract; a retention of the land acts as a rescis-
thorized to receive it, ceased to have existence as sion and this puts an end to the contract as the
a tax against the property of its stockholders; and basis of an action for substantial damages. (Super.
because the receivers could not follow a stockholder Ct.) Carver v. Peters, 261.
into Pennsylvania and secure a personal judgment A contract guaranteeing the completion of a build-
against him unless the charter contract between the
corporation and its stockholders specially recog-
nized such remedy. (Super. Ct.) Mercantile Trust &
Deposit Co. v. Mellon, 258.
ing is not within the statute of frauds. German-
American T. & T. Co. v. Citizens' T. & S. Co., 553.
GRADE CROSSINGS. The acts of June 19,
1871, P. L. 1361, and May 14, 1889, P. L. 211, must
A foreign corporation which, without being regis- be considered together, and the duty still remains
tered according to the act of April 22, 1874, P. L. 108, upon the court to prevent grade crossings wherever
holds a meeting within this state and receives sub- it is reasonably practicable to avoid them. Penna.
scriptions for stock, cannot recover on such sub- R. R. Co. v. Warren Street Ry. Co., 153.
scriptions, even if the persons on whose subscrip-
tions it is sought to recover reside in Pennsylvania
and the meeting is there held in order to accommo-
date them. (C. P.) Wildwood Pavilion Co. . Hamil-
ton, 303.
FORFEITURE. Of right to benefits. See BENE-
FICIAL SOCIETY. (Super. Ct.) Murray v. Iron Hall,
357.
The jurisdiction to prevent grade crossings given
by the act of June 19, 1871, § 2, is not in any way
restricted by the act of 1889, permitting street rail-
ways to cross railroads at grade. Id.
The reasonable practicability intended by the act
of 1871 is physical practicability. Id.
An overhead crossing could have been made by
erecting at a cost of $4000 a trestle sixteen feet wide
FRAUD. When the issue is fraud, all circum- in a forty feet wide street, the whole structure being
stances in the relation and condition of the parties, some 700 feet in length along the street, the struc-
and all acts and declarations of the persons charged ture would have been unsightly and the damages
with fraud, are competent evidence, which, in the which might have to be paid to private owners were
opinion of the judicial mind, bear such a relation to unascertained: held, the overhead crossing was rea-
the transaction under investigation as is calculated sonably practicable and the attempt to make a cross-
to persuade the jury that the allegation of fraud is ing at grade should have been enjoined. Id.
or is not well founded. (Super. Ct.) Troxell v. Malin, That the point at which it is desired to cross the
547.
tracks of a railroad by the track is one which is al-
A bill of sale made in fraud of third parties, is, ready a crossing for vehicles, and that the only way
nevertheless, binding between the parties thereto, in which such a grade crossing may be avoided is by
at least to the extent of precluding the fraudulent the erection of a structure elevated on pillars to the
vendor from recovering, by the aid of court, the height of 21 or 22 feet, which would interfere with
property from the vendee. (Super. Ct.) Jones v. teams on the highway are not sufficient to justify a
Shaw, 168.
court in finding that it is not reasonably practicable
Where a plaintiff in replevin cannot impeach the to avoid a grade crossing. N. Y. C. & H. R. R. Co.
opponent's title without alleging his own fraud he v. Warren Street Ry. Co., 157.
cannot recover. Id.
Under § 2, act June 19, 1871, which provides: "If
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