and reasonable search, is not called upon under an agreement with the payee to prove more in the first instance. that the latter shall deposit the check and Where a stranger in the community com- use the pro eeds for a particular purpose, mits an offence and flees to escape pun- cannot afterwards recover from the bank ishment, the commonweath is not re- the amount of the check-the payee havquired to ascertain and prove where his ing misapplied the money and the bank, residence was, and that he absented him- without notice of the secret trust, having self from it.-Commonwealth vs. Bates suffered loss by giving the payee an and Shaw, (Montgomery O. T.) 12 extended credit on account of his appaMontgomery Co. Law Reporter 41. rent ownership of the check. The maker of a bank check which is charged with a trust should note upon the face of the paper the purpose for which it is to be used.-Ersman v. The Delaware County National Bank, (Delaware C. P.) 7 Delaware County Reports 313.

Possession of Land-Conflicting TitleAdequate Remedies—Act of June 10, 1893. -Where petitioners for an issue to de

Justice of the Peace-Record-Certiorari. Where the record of the justice does not show five days' service of the summons upon the defendant, nor that the defendwas a non-resident of the county, so as to make four days' service sufficient, the proceedings will be reversed on certiorari. -Overshire vs. Cook, (Luzerne C. P.) 8 Kulp, 164. Judgment--Opening of.-- Where a judg-termine the right of ownership or possession of land are manifestly manoeuvering ment, by confession, has been of record many years, it will not be opened for an advantage in legal position, and to allow defence of minority except on clearest proof. Matters of defense arising puted possession the Act of June 10, subsequent to judgment, are not grounds for opening it, but shouid be produced on trial of scire facias.-Ziegler v. Evans et al, (Luzerne C. P.) 8 Culp 180.

where the evidence fails to show undis

The

1893 can not properly be invoked. Its plain purpose is to afford a party in the undisputed possession of land the means to compel the holder of an outstanding and conflicting title to come into Court, Justices of the Peace-Docket-When and try out the true ownership. The sufficiently specific.—The judgment of a adequate remedies of the petitioners are justice of the peace will not be set aside ejectment, recognizing the possession on certiorari because the record does not which the defendant claims; or tresspass, show at what hour the hearing was had for the invasion of their own possession, or the judgement was entered, or does of which the defendant is clearly guilty, not show that the account for advertising if they really have possession. on which the plaintiff claimed was against Court can not be used to aid in eliminatthe defendant, or that he ever promised ing disputed questions of possession, and to pay for it, or that it was done for him, must be satisfied that the petitioners, or does not show that the summons was without controversy, are in possession, served on the defendant, merely saying before an issue can be direct d under this that it was endorsed as served. The Act.-Loveland, et al., vs. Howe (Lackrecord of a magistrate is not required to be as full and accurate as though drawn by one having legal training. Matters of defense set forth in an exception cannot be considered on certiorari.-Missemer v Trout, (Lancaster C. P.) 13 Lancaster Law Review, 93.

awanna C. P.) 2 Lackawanna Legal News 34.

adding defendants.-1. The grade of a Practice-Tresspass- Amendment by public road along improved land was raised to make an approach to a county bridge but no land was taken. An elecNegotiable paper-Bank check-Secret tric railway company did the work under trust-Liability of Bank acting without direction of the county commissioners, notice of trust -The maker of accommo but the latter fact was not known by dation paper cannot, as against a third plaintiff. The land owner brought tressperson who, without notice of the equities pass against the railway company; the between the parties, has taken it in pay statement was vi et armis quare clausum ment of an antecedent debt, set up as a fregit;-Held, that the county could be defence that it was misappropriated by added as defendant by amendment tothe payee. One who gives a bank check gether with other parties and a recovery

had against the county alone under an last will and testament, even if material amended statement, averring vi et armis alterations were subsequently made therequare clausum fregit and also an injury in, this would not vitiate the rest of the without a taking of said land by all the will, but the writing having been purged defendants jointly, although the county of any improper changes, the remainder was liable for the injury without taking representing the real will of the testator in case only, but the judgment must ex- would stand. So long as a person is able clude costs incurred before the issuing of to understand the character and effect of the alias summons against the added de his act, the extent and nature of the fendants and for service on the de end property of which he is disposing, and ants other than the county.-Miller vs. the disposition he desires to make of it, County of Lehigh et al., (Lehigh C. P.) as well as the persons and objects of his 5 Northampton County Reporter 158. bounty, he is thoroughly capable of makRiparian rights- Damages. Where ing a will. Where it is alleged, for the an upper riparian owner diverts or uses purpose of establishing the fact, that the the water of a creek, not for ordinary do mind of a testator was unbalanced by a mestic purposes such as are inseparable delusion as to those who might be supto and necessary for the use of his land, posed to be among the natural objects of but for manufacturing or other purposes his bounty; Held, that in order to set having no necessary relation to his use aside the will of the testator on such of his lands, he has only the right, as grounds, the evidence must show, that against a lower proprietor, to use so much the delusion was such as to overthrow the of the stream as will not materially or natural balance of the testator's mind and sensibly diminish its quantity. Where render him mentally incapable of making the flowage of a creek is not sensibly di- a rational disposition of his property. minished equity will not enjoin an upper Such delusions must be shown to have owner's use of the water. It may be that been more than a mere prejudice, howunder such facts the lower owner in a ever unreasonable, or a mistake of fact, suit at law is entitled to nominal damages however absurd. Undue influence of on the ground that the diversion of the that kind which will affect the provisions water, although exceedingly small, is an of a testament must be such as subjugates infringment of the lower owner's rights. the mind of the testator to the will of the Myers and Ervien Company v. Philadel person operating upon it; and in order to phia, Jenkintown and Cheltham Passenger establish this, proof must be made of Railway Company, (Montogomery C. P.) some fraud practiced, some threats or 12 Montgomery County Law Reporter 46. misrepresentations made, some undue Sale-Insolvency of vender- Conceal flattery or some physical or moral coerment. The knowledge of and conceal- sion employed so as to destroy the very ment by mere silence of his insolvency by agency of the testator, and these influena vende at the time of the sale, withou ces must be proved to have operated as a any active misrepresentation or other present constraint at the very time of trick or articifice, is not such fraud as making the will. Where a will appears upon its face to have been altered by erasures and inter-lineations, the presumption being against the changes which appear, the proponents of the will must account for such alterations and vouch them, and unless this is satisfactorily done, they cannot stand. If such alterations are not sufficiently explained the presumption against them is enough to carry the case to a jury, but if the proout and they do not effect the general ponents agree that they may be stricken scheme of the will an issue is not necesout and they do not effect the general

will avoid a sale of personal property against the vendee's execution creditors -Shirk v. Konig macher, (Lancaster C. P.) 13 Lancaster Law Review 109.

Wills-Testamentary Capacity-Fraud and Undue Influence-Alteration-Forg. ery.-Where a petition was filed for is sues to determine the validity of a will, it was held, that the charge that the will is a forgery could not be sustained and that an issue in this form, could not, in any event, be directed, where the alleged forgery consists merely of alterations. Where it appeared that the testator signed sary.-Overdorf s Estate, (Northumberhis name to the writing in question as land Co. O. C.) 2 Lackawanna Legal originally written, intending it to be his News 43.

Louck v. The Reading Fire Insurance Co. Insurance-Agent-Waiver.

inquiry that a policy taken out under those circumstances would be binding upon the company.

The reservation is as follows: "In the case of the Reading Insurance Company the following facts are undisputed; Mr. Deininger was the general agent for the defendant at this point; assuming for the present that the verdict of the jury is for the plaintiff upon the issue submitted to them, the question is reserved upon the terms of the policy, which are made a part of this reservation, whether he was competent to waive any provision of the policy except by writing attached to or made a part of the policy; and whether in fact whatever he did"-this being now determined by the verdict as above indi

The policy of insurance contained a proviso that "No officer, agent or other representative of this company shall have power to waive any provisions or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no of ficer, agent or representative shall have the power or be deemed or held to have waived such provisions or conditions unless such waiver if any shall be written upon or attached hereto, nor any privilege or permission affecting the insurance under this policy exist or be claimed cated-"amounted to a waiver upon the by the insured unless so written or attached." HELD, that a parol waiver of any of the policy's conditions by the company's agent will bind the company.

A proviso of the policy was that the policy "shall be void if the subject of insurance be a manufacturing establishment and cease to be operated for more than ten consecutive days" The property was a manufacturing establishment, but was unoccupied at the time of insurance, and continued so unoccupied till its destruction by fie. HELD, that as the defend ant's agent knew that the premises were vacant at the time the insurance was taken, and were likely to remain so for an indefinite period, the plaintiff was entitled to recover, notwithstanding the conditions of the policy.

If the company deliberately insured an idle establishment, well knowing the extent of the hazard, it is estopped from complaining because that hazard continued until the happening of

the loss.

Motion for judgment on reserved point. The Court's opinion gives the reserved point.

N. M. Wanner and Geise & Strawbridge for plaintiffs.

Niles & Neff for defendant.

March 20, 1896. MCPHERSON, J., specially presiding. The verdict of the jury establishes the fact to be that the conversation to which the plaintiff testified, did take place between himself and Mr. Deininger, the defendant's agent at York; and it must now be assumed therefore, that before the policy in suit was taken out the agent was informed by the plaintiff that the distillery was not in operation and would not be operated for an indefinite period, and that the agent there upon declared in reply to the plaintiff's

part of the company of the provision in reference to the non-operation of a manufacturing establishment." The policy declares: "No officer, agent or other rep. resentative of this company shall have power to waive any provisions or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have the power or be deemed or held to have waived such provisions or conditions unless such waiver if any shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” The provision of the policy under which the defendant alleges that the policy became void before the loss occurred is as follows; "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the subject of insurance be a manufacturing establishment * * *if it cease to be operated for more than ten consecutive days." It was undisputed that this distillery, which is conceded to be a manufacturing establishment, had not been operated for several months before the policy was taken out and was not operated during the month which intervened between the date of the issue and the day of the fire. If therefore the terms of the policy which have just been quoted are properly applicable to the undisputed facts and to the facts as the jury has found

them, the plaintiff has no case and the defendant is entitled to judgment.

the contract effective for the protection of the insured. In other words, the contract should be liberally construed in aid of the indemnity which was in contemplation of the parties who made it;" Machine Co. v. Ins. Co., 173 Pa. 56.

In Pennsylvania however it has been often decided that in spite of provisions in the policy quite as stringent as those above quoted an agent may bind his company by a parol waiver: Ins. Co. v. Acording to the exact meaning of the Dunham, 117 Pa. 460; McFarland v. Ins. clause, the manufactory cannot be said to Co., 134 Pa. 590; Burson v. Fire Asso have ceased operation, because it was not ciation, 136 Pa. 267; McGonigle v. Ins. in operation when the insurance was_efCo., 167 Pa. 364; Dowling v. Ins. Co., fected. What happened was this: The 168 Pa. 234; Mix v. Ins. Co., 169 Pa. company through its agent was asked to 639. This rule is founded in considerations insure an idle manufactory; it did so with of justice and equity. It cannot be per- full knowledge of the facts, and therefore mitted that the conduct of a knavish or the continuance of a condition of idleness blundering agent shall mislead the insur- in no respect changed the contract which ed acting in good faith, and that the the company had voluntarily made. The company shall enjoy the fruit of its agent's provision of the policy which was intendmisconduct or mistake, but without being ed to protect the company against a bound thereby. Therefore, since the change of condition was not applicable, policy in suit was obtained by Deininger's because no change took place. If the representation that the company would company deliberately insured an idle esbe bound although the distillery was not tablishment, well knowing the extent of in operation and was not intended to be the hazard, it is estopped from complainoperated, the company must stand by ing because that hazard continued that representation in spite of the fact until the happening of the loss. If the that it was made by parol and was not case is thus regarded, the agent did not attached to the policy. waive any provision of the policy, and therefore the clauses above quoted do not apply.

In either view I think the company is bound by the act of its agent. It is bound either by his representations regarded as a waiver, in spite of the provision that a waiver must be in writing and attached to the policy; or (irrespective of the reserved point) it is bound by his conduct in accepting a risk of this description to which the provisions of the policy do not apply.

This aspect of the case assumes that the "manufacturing establishment" clause of the policy would have applied to the subject of insurance, if its effect had not been waived by the declarations and conduct of the agent. But there is another way of looking at the facts as they have now been found by the jury, which does not raise the question of waiver at all. It was presented in the charge on pages 40 and 41, and I refer to it now in order to point out that if it is correct it is decisive, and entitles the plaintiff to judgment upon Judgment is direct for the plaintiff upon the verdict without regard to the reserv- the reserved point on payment of the ed question. In this view the terms of jury fee. (Exception to the defendant.) the policy which are quoted above do not apply at all because the insurance was knowingly issued upon a manufactory Insurance-Agent-Waiver. which was not in operation and was not intended to be operated within any defi nite period; and because therefore the manufactory did not "cease to be operat ed" within the true meaning of that phrase. If it did not "cease to be operated" no provision of the policy was vio lated, and the question of waiver does not arise. As was said in a very recent case: "If (the policy's) provisions are susceptible of two or more interpretations, that one should be adopted that will make

Louck v. The Orient Insurance Co.

The policy contained the same stipulations relative to occupancy as in the preceding case. A, who procured the insurance, being unable to place it in his own company, offered it to other agents who placed it in defendant company, presentations or statements made by the first whose agents they were. HELD, that the reagent could not bind the defendant company.

Presumably defendant company had made no inquiries as to A's character or competency, and had no opportunity to decide whether it would put any part of its business into his hands.

If a company is to be bound by the represen

Mr. Deininger at that time did know ut did take place; and accordingly that that the subject of insurance was a manfacturing establishment which was not in operation and was not intended to be operated for an indefinite period; and, having that knowledge, that he undertook to place the insurance, and informed the plaintiff that it would make no difwhether the distillery was in operation or not.

N. M. Wanner and Geise & Straw- ence as to the binding force of the policy bridge for plaintiffs.

Niles & Neff for defendant.

March 20th, 1896. MCPHERSON, J., The questions to be decided in this case specially presiding-The reserved point arise upon certain provisions of the policy in this case is as follows: "Mr. Deininger which are identical with the provisions was an insurance agent doing a general quoted in the opinion just filed in Louck insurance business in this place (York) v. Reading Insurance Co. The difference but he was not the agent of the Orient between the cases consists in the different Insurance Company; Messrs. White & relation which Mr. Deininger sustained Jessop were the general agents of that in the two companies. Admittedly, he company in the City of York. Before was the agent of the Reading Insurance the issuing of the policy in suit they had Company for the purpose of procuring at various times done business with Mr. insurance; and he was therefore able to Deininger in the following way: Intend- bind it by representations and conduct ing insurers had applied to Mr. Deininger which concerned the subject of his emfor insurance; he was not able to place their risks but offered them to Messrs. White & Jessop, by whom they were ac cepted and placed in companies whom they represented; in The Orient Insurance Company among others but only one policy had previously been placed in that company. (The clause immediately preceding was added by agreement of the parties since the trial.) These companies returned the policies to Messrs. White & Jessop, by whom they were delivered to Mr. Deininger, who delivered them to the assured; the premium reaching the company by the same course. Upon such business Mr. Deininger was paid a certain proportion of the commission allowed by the companies respectively This was the course pursued in effecting the insurance now in question. Upon these facts and upon the provisions of the policy-which is made a part of this reservation-we reserve the question whether Mr. Deininger was so far an agent of the defendant company as to be able to bind it by a waiver of any of the conditions of the policy, either by statements in parol or by waiver in writing." In addition to the facts thus stated, the verdict of the jury has established that the conversation testified to by the plaintiff as having tak en place between himself and Mr. Deininger before this insurance was taken

159 Pa. 9—

ployment. But in the case now being considered his relation to the company was much more slight. He was not the agent of The Orient Insurance Company at any time or in any sense, except for the single and limited purpose of delivering its policy and receiving and forwarding the premium. With reference to this contract he was an insurance broker and acted as the agent of the plaintiff, except for the purpose just described. Under the decisions in Pennsylvania,-notably Arthurhold v. Insurance Co. an insurance company which issues a policy without demanding immediate payment of the premium, putting it in course of delivery to the assured through the intermediate agency of one person or of several persons, arms each hand in the line with authority to deliver the policy and receive the premium. To this extent but no further Mr. Deininger was the agent of the company, and in this respect his duty was fulfilled. But this agency (which arose by implication) was limited to a particular subject, and I have seen no authority which permits it to be extended so as to make the company responsible for Deininger's previous statements and conduct in reference to a different subject.

Upon principle also the company ought not to be responsible generally for his