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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