erence to the book, and by reference to the copy for what was contained in the lost pages of the book. It will be observed that the original copy was made by the daughter under the direction or supervision of the plaintiff, and he therefore knew it to be correct. Under these circumstances, it has uniformly been held that it is not error to permit the witness to refer to book entries or memoranda to refresh his recollection.

prior to the present contract he had worked | which she had made of it. The plaintiff was for the defendants for about a year and a permitted to refresh his recollection by refhalf at $100 per month. This was all the testimony that was introduced under the of fer. Standing alone it was irrelevant to the issue before the court, and there was no evidence in the case which made it competent. The plaintiff failed to prove the part of his offer that the defendants had admitted they were compelled to pay the plaintiff, under the present contract, more money than they had under the former contract. The competency of the offer as a whole was made to turn on proof of this part of it. without which the offer should have been excluded. So far as the plaintiff's right to recover in this action was concerned the consideration paid him for services rendered under a former and altogether different contract was wholly immaterial and irrelevant. The evidence introduced had no tendency to establish that part of the present contract relating to board, the purpose for which it was offered. It is not claimed that the offer was competent or relevant for any other purpose, and it follows that it should have been excluded.

[2] We construe the affidavit of defense as did the learned trial judge, and hence he was right in refusing to permit the defendants' counsel to cross-examine the plaintiff as to the items claimed for boarding. The affidavit admitted that the defendants had a contract with the plaintiff by which he was to do the hauling, and that they were to pay him $100 per month for his services, but denied that under the contract they were to pay the board of the teamster while away from home. The statement avers that the defendants were indebted to the plaintiffs for $415.03 for boarding. The affidavit simply denies that the defendants are indebted to the plaintiff in that sum or in any sum whatever. As suggested by the learned trial judge, the affidavit does not aver that the claim for board is excessive; nor does it allege any other defense to the claim than that the defendants, under their contract, had not agreed to pay the board. this view of the affidavit the cross-examination was properly excluded.

Under

[3] The court was right in permitting the plaintiff to refresh his recollection when testifying to the extra hauling he did for the defendants. As we understand the evidence, it shows that the plaintiff made a memorandum of the extra hauling while he was absent from home, that when he returned he gave the items, with the day and date to his daughter, which she then put down in a book. A few pages had been lost from the book at the time of the trial. Some months after the contract had expired the daughter made a copy of the original book which contained the items on the lost pages. The daughter proved the book and the copy

The learned judge was not accurate in that part of his charge embraced in the eighth assignment, in saying that the jury had the book of original entries before them. In the hurry of the trial, the fact that the book was not offered in evidence escaped the attention of the court. This of course will not occur on the next trial.

The tenth assignment of error is sustained, and the judgment is reversed, with a venire facias de novo.

(242 Pa. 603)

WELKER v. HAZEN.
(Supreme Court of Pennsylvania. Jan. 5,
1914.)

TRIAL ( 29*)-INSTRUCTIONS
REMARKS BY JUDGE.

MISLEADING

Where, in an action for alienation of affections, the court, before passing on certain requested instructions and charging the jury, stated in the jury's presence: "Gentlemen, I have changed my mind as to some of these points, but I am still somewhat in doubt," and the jury may have understood the remarks to have been addressed to them, this constituted ground for reversal.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 80-83, 508; Dec. Dig. § 29.*]

Appeal from Court of Common Pleas, Lawrence County.

Action by F. E. Welker against E. E. Hazen for alienation of wife's affections. From judgment for plaintiff, defendant appeals.

Reversed.

Argued before BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ.

J. Norman Martin, of New Castle, J. Sharp Wilson, of Beaver, and J. W. Rhodes, of New Castle, for appellant. C. H. Akens and James A. Chambers, both of New Castle, for appellee.

STEWART, J. The action was in trespass for recovery of damages for the alienation of a wife's affections. A careful examination of each of the matters to which our attention has been directed by the 26 assignments of error has satisfied us that the case was well tried, and but for the incautious remark of the trial judge, when answering the points submitted, we could have no reason to disturb the judgment entered.

After passing upon the points submitted on

Because this incautious remark may have affected the verdict rendered, we feel compelled to reverse the judgment and order a venire de novo. It is so ordered.

(242 Pa. 596)

SWAN v. BOROUGH OF INDIANA. (Supreme Court of Pennsylvania. Jan. 5, 1914.)

TIVE STREETS-PERSONAL INJURIES-LIABIL-
ITY.

Where a pedestrian is injured from a fall on ice formed on a sidewalk by the freezing of slush the night before the accident and only a few hours prior thereto, the borough is not liable for the resulting injury in the absence of actual notice to it of the condition of the sidewalk prior to the accident.

Corporations, Cent. Dig. §§ 1641-1643, 1646, [Ed. Note.-For other cases, see Municipal 1652; Dec. Dig. § 788.*]

Appeal from Court of Common Pleas, Indiana County.

Action for personal injuries by George W. Swan against the Borough of Indiana. From refusal to take off nonsuit, plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and STEWART, JJ. Harry White and John L. Getty, both of Indiana, Pa., for appellant. David Blair Taylor, John S. Taylor, Borough Sol., and Cunningham & Fisher, all of Indiana, Pa., for appellee.

behalf of the plaintiff, and when about to pass upon the points submitted on behalf of the defendant, the judge thus remarked from the bench in the presence of jury and counsel: "Gentlemen, I have changed my mind as to some of these points, but am still somewhat in doubt." So far as we are concerned, no assurance from the learned trial judge that this remark was intended for counsel and not for the jury was needed. In justice to him, however, we here give his ex- MUNICIPAL CORPORATIONS_ (§ 788*)-DEFECplanation of the occurrence as we find it in his opinion refusing a new trial. He there says: "Prior to the argument of the case to the jury considerable argument was had by counsel for the respective parties on the points submitted. During this argument the court made a number of observations and expressed an opinion as to the points. Some of these expressions were at variance with the final action of the court in passing upon the points of defendant. After the case had been argued by counsel to the jury the court delivered its charge and disposed of the plaintiff's points, then taking up the points of the defendant; and, remembering that our remarks to counsel during the arguments upon the points were at variance with the action we now proposed to take upon the points, and that we proposed to give the defendant more favorable answers to his points than we had previously indicated we would, the court looked at counsel for the defendant and said: 'Gentlemen, I have changed my mind as to some of these points, but am still somewhat in doubt.' This remark was addressed solely to the counsel, and from all the circumstances the jury did not have any reason to believe it was addressed to it, nor did it so believe." Whether the jury did or did not have reason to believe the remark was addressed to them is not a question so easily resolved by us as it seems to have been to the trial judge. How can we know that the jury did not accept the remark as intended for them? We can readily understand how the remark, made while the court was instructing the jury on the points raised, could have been appropriated by the jury as addressed to them. If they did so understand, the effect was to leave the jury without binding instructions on the law as raised by the points. If the instructions ask ed for were in accordance with the law of the case, the defendant was entitled to a positive affirmance of them, and anything short of this, coming from the court, would be proper subject of complaint. Covering every feature of the case as the points did, for the court to say, when about to answer them, that the court was uncertain as to the correctness of the answers about to be given was to leave the jury free to adopt or reject the answers. It would in effect leave them at sea without chart or compass, to make any port they might.

PER CURIAM. This appeal is from an order discharging a rule to take off a nonsuit entered on the trial of an action to recover for injuries caused by falling on ice that had formed a few hours before on the sidewalk of a borough street. The plaintiff lived at the end of a street on which there was little travel, and was accustomed to use the sidewalk several times each day in going to and from his place of business. The walk was eight feet wide, and on the side nearest the curb there was a cement walk four feet in width, and in good condition. Snow had not been cleaned from the walk, and there was along it a slight ridge of packed snow about a foot wide; but there was ample space on which to pass on the sides of the cement walk and on the four feet of earth level with it and nearer the house line, on which there was only a slight fall of snow not worn in ridges. On the day before the accident the snow had been turned to slush, and on the night before it had frozen. When the plaintiff, on the morning of the accident, reached a part of the walk a few feet from his house, he saw its condition, and considered it safe, and walked over the rough part of it.

These facts did not disclose negligence by the borough. The danger, if any, had existed but a few hours, and there was no evidence that the borough authorities had actual no

tice of it, and it had not existed for such a length of time that constructive notice could be imputed to them.

The judgment is affirmed.

(242 Pa. 522)

SPANGLER BREWING CO. v. MCHENRY. (Supreme Court of Pennsylvania. Jan. 5, 1914.)

PEL.

1. CORPORATIONS (§ 30*) - STOCK SUBSCRIPTION - LIABILITY FOR PAR VALUE ESTOPWhere stockholders at their first meeting recommended that the directors purchase certain realty from a promoter, who became treasurer of the corporation, and that payment be made therefor in capital stock which far exceeded the value of the realty, and where the directors acted on this recommendation and the stock thus transferred to such promoter was distributed among the stockholders in certain proportions, the corporation could not by bill in equity compel him to pay into its treasury the par value of such stock, less the actual value of the realty, especially where seven years had elapsed since the transaction, and many of the present stockholders were those among whom the stock was divided.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. § 30.*] 2. EQUITY (§_427*)-BILL FOR ACCOUNTING

SCOPE OF PROCEEDING-CORPORATIONS.

A bill by a corporation against its treasurer, which alleged only a failure by the de fendant to perform his duty and to account for money received by him as treasurer and prayed for an accounting, did not authorize a decree against defendant for the difference between the value of stock received by him in payment for realty which he had sold to the corporation at an excessive price; it being essential that the relief afforded by a decree in equity conform to the case made out by the pleadings, and that every fact essential to entitle plaintiff to the relief sought be averred in

his bill.

[Ed. Note. For other cases, see Equity, Cent. Dig. 88 1001-1014; Dec. Dig. § 427.*]

holders of said company reads as follows: "The treasurer shall be elected by the board of directors. He shall be the custodian of the funds of the corporation. He shall receive and receipt for stock assessments and shall sign certificates of stock fully paid up and ordered issued by the board of directors. He shall, in a book kept for that purpose, keep a full account of all moneys received by him belonging to the company, from whom received and from what source. He shall keep a like account of all payments made by him, and preserve the bills, vouchers or orders for same. He shall submit to the board at its regular monthly meeting an itemized statement of all receipts and payments for the past calendar month together with the bills, vouchers and orders on which payments were made; and he shall submit to the stockholders at their annual meeting a like report for the past year. He shall have power to receive and receipt for all bills, accounts, notes, etc., due the company and the same to sue for and recover in the corporate name. He shall keep the funds of the corporation in a bank or banks in the name of the corporation and present all checks to

the president or vice president exceeding $100.00 to be countersigned. He shall give bond in such sum as the board of directors shall from time to time require, with such security as they may approve of.'

"IV. That notwithstanding his duties in the premises said G. W. McHenry never sub

mitted to the board of directors 'an itemized statement of all receipts and payments together with the bills, vouchers and orders on which payments were made,' and he never submitted a like report at an annual meeting of the stockholders, although he was often requested to do so, whereby the board of directors and the stockholders have been kept

Appeal from Court of Common Pleas, Cam- in ignorance of the state of his accounts as

bria County.

Bill in equity for an accounting by the Spangler Brewing Company against George W. McHenry. From a decree dismissing exceptions to master's report, defendant appeals. Reversed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

C. Ward Eicher and J. S. Moorehead, both of Greensburg, and Harvey Roland and W. A. McGuire, both of Ebensburg, for appellant. M. D. Kittell, of Ebensburg, H. H. Fisher, of Greensburg, and Philip N. Shettig, of Ebensburg, for appellees.

BROWN, J. In the bill filed by the appellee for an accounting by George W. McHenry, its treasurer, the following are the material paragraphs:

"III. Section five of article two of the bylaws of the Spangler Brewing Company regularly adopted at a meeting of the stock

treasurer of said corporation.

"V. That notwithstanding his duty to 'keep the funds of the corporation in a bank or banks in the name of corporations, and present all checks to the president or vice presi

dent exceeding $100.00 to be countersigned,' yet, disregarding his duty in this respect said G. W. McHenry did not deposit or keep the funds in the name of the Spangler Brewing Company in any bank, and on many occasions he paid out large sums of money exceeding $100.00 in amount, without having the checks countersigned.

"VI. That said G. W. McHenry paid out large sums of money of the funds of your orator without authority of the board of directors, and in payment of bills wherein a secret advantage and gain accrued to the said G. W. McHenry, thereby defrauding your orator.

"VII. That said G. W. McHenry as treasurer, received large sums of money for your orator, which have not been accounted for

and placed to the credit of your orator either on the books of the company or in the banks In which the funds of your orator are de posited; and said G. W. McHenry kept no books of account as treasurer showing the amount of money received and paid out for your orator.

"VIII. That by reason of the negligent and fraudulent acts of said G. W. McHenry as above recited, your orator has lost large sums of money; and upon an accounting had of the management of said treasurer and his accounts, it will be shown that he is indebted to your orator in a large amount."

The prayers of the bill are:

“I. That said defendant be required to set forth an account of all and every sum and sums of money received by him, or by any person or persons by his order, or for his use, for or in respect of your orator, and when, and from whom, and from what in particular all and every such sums were received, and how the same respectively have been applied or disposed of.

"II. That the defendant may be decreed to pay to the plaintiff, what, upon such account, shall appear to be due to the plaintiff.

"III. That your orator may have such further and other relief in the premises as the nature and circumstances of the case may require, and to your honor may seem meet."

incorporators of the company, the stockholders, at the organization meeting of August 5, 1903, recommended that the directors purchase the said real estate from McHenry by delivering to him therefor full-paid capital stock of the company to the amount of $57,900. This action of the stockholders was duly recorded in the minutes of their proceedings. On the same day the directors, elected by the stockholders, held their first meeting, and, after organizing, it was resolved to purchase the said real estate from McHenry, as recommended by the stockholders. This action of the directors was duly recorded in their minutes. On October 6, 1903, certificates for $57,900 of the capital stock of the company were issued to McHenry in pursuance of the pre-existing arrangement between him and the other stockholders. He divided among them the stock thus issued to him for the real estate, each stockholder, with a single exception, receiving of the stock so íssued 60 per cent. of his original subscription. Under the arrangement, $6,000 of the stock went to McHenry. In this transaction no money came into his hands. On the stock issued to him the master and the court below credited him with the $850 which he had paid for the lots, and with $4,000 in addition, paid by him for other real estate which he turned over to the company, leaving the balance charged against him $53,050.

[1] The appellee failed to show that the appellant had not accounted for all moneys [2] A contention of the appellant in the he had received as its treasurer, or that he court below and here was and is that the had realized any secret advantage or gain stock transaction was not within the scope in disbursing its founds. On the contrary, and purpose of the bill, and that the decree after a protracted hearing and the taking of is utterly foreign to the relief prayed for. much testimony before a master, it affirma- The bill is a plain one, averring only a failure tively appeared that the appellant had ac- of the appellant to perform his duties as counted for every dollar he had received as prescribed in the by-laws and to account for treasurer for or on account of the appellee. moneys had and received by him in his caAfter charging him with all the moneys he pacity as treasurer of the company, and the had received, the master credited him with prayer is in the usual form for an accounting. payments exactly equalling the receipts. The But this simple bill, having but one clear account between the company and its treasur- purpose, was turned by the master and the er for all moneys received by him was court below into one for the investigation of square; but, notwithstanding this, there fol- the way in which a large amount of stock lowed, on June 13, 1913, a decree that he pay had been issued by the company itself; and, to the company the sum of $53,050, with in- after a finding that it had been unlawfully terest from October 6, 1903. This decree re-issued by the company to McHenry as an insulted from a state of facts found by the dividual, the decree in this proceeding master, which may be briefly summarized. against him as treasurer is that he is now In the spring of 1903 McHenry, the appellant, responsible to the company for the par value and others decided to establish a brewery at of the said stock, with interest from the date Spangler, Cambria county. Prior to the in- of issue. What averment in the bill supports corporation of the company, he had taken this decree? In answer to what prayer was title to certain lots of ground for which he it made? Proceedings in equity may be paid $850. The charter of the appellee was elastic, but there is a limit to their elasticity. left for record in the recorder's office on July They are not to be stretched to give relief 1, 1903, and the first regular meeting of the from a specific wrong not averred in a bill subscribers to the capital stock was held on of complaint, or to make a decree not in corthe 5th of the following month. At this formity to its prayers. This is just what was meeting all of the incorporators were present. done in the case before us, and it was done McHenry still held title to the real estate | in plain disregard of a rule of equity prowhich he had purchased for $850, and, carrying out a prearranged plan of the promoters

cedure laid down in all the text-books and repeated time and again in chancery reports.

tempt in their printed brief to justify this ir- whom is now the president of the company, regular proceeding.