ALLEGHENY COUNTY. them has ever been given to that construc- Court of Common Pleas No. 1, tion, there have been no steps taken to compel the owners to move their houses back. The houses are constructed on a sloping hillside, and the mistake in measurement was made by their measuring up the slant of the hill instead of straight back from the street. The houses were constructed in their present location before any of the plaintiffs knew that they were being built beyond the thirty foot building line. CONCLUSIONS OF LAW. The building restriction contained in the deeds of Guthrie to his purchasers of lots in this plan is a reasonable one, was evidently made for the benefit of all the lot holders, and equity will enforce a compliance with 'the restriction on the part of purchasers. There has been no such deviation from the original plan by the permission on the part of the plaintiff to the few lot owners on Mifflin street to build beyond the thirty foot line, or by the failure to compel the lot owners on Biddle street to remove their houses back, as would indicate an intention on his part to abandon his original plan of having the houses built at the uniform dis tance from the street. This defendant and his vendor purchased the lot when the situation was as it is now, and accepted the conveyance with the building restriction in the deed. There is no laches on the part of the plaintiff; for the defendant Johnson was notified before he purchased that this building restriction would be enforced, and the bill was filed promptly after he commenced the work of building his house. The defendant ought to be restrained from the construction of his building on the property line of the street; but in view of the fact that his immediate neighbors have built houses to within twenty feet of the street, and they have remained there for many years without objection, and that this is the last lot on Biddle street in the Wilkins plan, the defendant ought not be compelled to set his house back farther than the line of the houses of his neighbors, namely, twenty feet from the street. For plaintiff, R. A. & James Balph. In re Objections to Certificate of Nomination filed by a Body of Electors Purporting to Represent the Democratic Party or Policy of the Twentythird Ward, City of Pittsburg. Organization and conduct of convention to nominate party ticket-Violation of parliamentary rules. 1. 2. Objections to a nomination certificate will be sustained where the unparliamentary conduct of the chairman of the primary meeting to nominate candidates prevented a fair test of the sense of the meeting. Under the circumstances the subsequent organization at this meeting (of a large body of Democrats, who had opposed the action of the former chairman) and the nomination of a ticket was sustained. No. 488 March T., 1904. Opinion by BROWN, J. Filed January 30, 1904. It is not disputed that the primary meeting to nominate a Democratic ticket in the Twenty-third ward, of the city of Pittsburg, was duly called, and organized by its provisional chairman, Mr. Richard Horan. But the strong weight of the evidence satisfies us that the subsequent action of Mr. Horan as chairman, upon every material step in the conduct of the meeting leading up to the endorsement of the Citizens ticket, was violative of parliamentary rules essential to orderly methods and impartial results. At every stage of the contest (subsequent to the provisional organization)-(a) election of temporary officers; (b) election of permanent offiers, and (c) throughout the conduct of the meeting-motions and calls for division were ignored by him, all of which were of vital importanee in reaching with reasonable certainty the fair sense of the Democratic party. For these reasons the objections filed at No. 488 March Term, 1904, to the nomination certificate therein referred to, are sustained, and said nomination and certificate declared void. At the same meeting-immediately follow ing the action as declared by Chairman Horan, to which we have referred a large body of Democrats, who had persistently opposed his unparliamentary rulings and actions, duly organized with Mr. J. J. Carney, as chairman, and proceeded to make nominations. These nominations bear the impress of care and deliberation. The objections thereto, filed at No. 514 March Term, 1904, are dismissed, and the candidates upon said certificate (to which said objections at No. 514 March Term, 1904, were filed) are directed to be placed upon the official ballot. For Horan faction, W. S. Woods. For Carney faction, J. Boyd Duff. drove in a slow walk into Green street and upon the car track in that street. That just as the horses were fairly upon the car track they were struck by a west bound car, one being killed and the other injured to such an extent as to be of little or no value thereafter. The plaintiff's alleged negligence upon the part of defendant company and brought this action to recover compensation for their loss. The negligence imputed to defendant was that its car was run at an ususually high rate of speed. The testimony, however, failed to sustain the allegation. One witness said the car was going "very fast;" another, "pretty fast;" another, a passenger, said his "attention was not attracted to the speed of the car." This testimony was, in our Court of Common Pleas No. 2, opinion, wholly insufficient to establish ALLEGHENY COUNTY. PITTSBURGH IRON PAINT CO. v. UNITED TRACTION CO. Negligence-Evidence-Sufficiency-Contributory negligence-Time to look for car. The evidence as to defendant's negligence was that one witness said the car was going very fast; another, pretty fast, and a third said his attention was not attracted to the speed of the car. Held, the testimony was insufficient to establish negligent running of the car. A driver stopped his team 25 feet from a street, went ahead to look for a car, came back slowly got on his wagon and drove slowly to the street without looking again. The horses were struck by a car. Held, that the driver was guilty of contributory negligence. No. 462 April T., 1901. Motion to take off non-suit. negligent running of the car. But even if the testimony had shown negligence upon the part of defendant, in our opinion plaintiff's driver was guilty of contributory negligence in not looking just before driving upon the track. The driver testified that his team stopped twenty-five feet from the corner of Green street; that he walked to Green street where he had an unobstructed view to William street, a distance of 300 feet, and seeing no car coming went back to his wagon, climbed upon it and drove in a slow walk into Green street and upon the car tracks without again looking to see whether or not there was a car approaching. His failure to again look before driving upon the track was clearly negligence upon his part and brings the case within Keenan v. Traction Company, 202 Pa. 108, and the line of cases therein referred to. The motion to take off the non-suit must be refused. To which order plaintiff except Opinion by FRAZER, P. J. Filed Decem- and at their instance bill sealed. ber 17, 1903. On the evening of January 9, 1901, about 7:30 o'clock, plaintiff's driver, while returning to the stable with a two-horse delivery wagon, stopped in Church alley, about twenty-five feet from the line of Green street. He got off the wagon, and after fixing a trace that had become unfastened, walked to the corner of Green street, where he had an unobstructed view for one square each way, and not seeing a car coming in either direction walked back got upon the wagon and For plaintiff, J. A. Wakefield. For defendant, Reed, Smith, Shaw & Beal. THE diversion or altered transmission of surface water, caused by the erection of a building upon land over which it is accustomed to flow, is held, in Jessop v. Bamford Bros. Silk Mfg. Co. (N. J. Err. & App.) 58 L. R. A. 329, to afford no ground of action to a person who suffers injury by reason thereof. HOUSE OF REPRESENTATIVES. course, but few decisions construing the act January 28, 1904, Mr. ACHESON introduced the following joint resolution, which was referred to the Committee on the Judiciary and ordered to be printed: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following amendment to the Constitution of the United States be proposed for ratification by the legislatures in the several States, which, when ratified by the legislatures in three-fourths of the United States, shall be valid as a part of the State statutes, namely: "ARTICLE XVI. "SEC. 2. Congress shall have power to establish uniform laws on the subject of divorces throughout the United States. "SEC. 3. Congress shall have power to enforce this article by appropriate legisla tion." Book Notice. THE LAW OF BUILDERS IN PENNSYLVANIA, by WILLIAM K. SHISSLER L. L. B., of the Schuylkill County, Pa., Bar. T. & J. W. JOHNSON & Co., Publishers, Philadelphia, 1903. MRS. LYDIA C. WOLFF, agent, 510 Fourth avenue, Pittsburg. This work treats of the relation of the building contractor to his employer, material men and employes, and of the further relation of the contracting parties to the public. It is intended to give a plain statement of the law on these subjects and can be consulted to advantage by others than members of the legal profession. The innumerable questions arising out of contracts for buildings between the employer and his employes, the material men, the contractor and the public, and the rights and duties of each are continually before the active practitioner and are the subject of much litigation. Though perhaps not an exhaustive treatise on the subject, the book is well written, and the subject matter subdivided in a logical and satisfactory way. Only Pennsylvania cases are cited. The mechanics' lien law of June 4, 1901, is inserted in full and certain of its more important paragraphs are to some extent discussed, though, of can be cited as yet. A collection of forms for the use of contractors material, men and others is appended. The book will be found useful. Expert Evidence to Prove the Impossibility of the Birth of Heirs. This question was raised before the Court of Appeals in Maryland in Ricards v. Safe Deposit Company, 55 Atl. Rep. 384, and the court, after a full discussion, decided against the admissibility of such eveidence. The plaintiff had created a trust for the benefit of himself and wife during their joint lives, with a provision that, if said party should die leaving his wife and a child or children surviving him, the property should be distributed to the widow and child or children, as if said party had died intestate and owning the property, and that if said party should survive his wife, and had living children, the trust should be discharged and the children take absolutely. The present action was on a bill to have the trust set aside, there being no children. The argument advanced was that expert testimony was at hand to prove that it was impossible for the wife to bear children, and, this being the case, all the parties to the trust had consented to its annulment. The court quotes at length from Judge CHITTY in In re Dawson, L. R. 39 Chan. Div. 155, in which that learned judge discusses the question at length, and holds that to admit such testimony in a single case would open the door to its admission in many other cases where great harm might be done, Judge CHITTY in turn quoting at length from the English case of Jee v. Audley, 1 Coxe 324. The Maryland court says upon this point: "Can such evidence be received in a court of justice to affect the devolution of property or to divert the course marked out for it to follow? The admission of such evidence in a case like this, where the avowed purpose is to cut out or strike down an estate in remainder, would or might be productive of most disastrous results. A medical man may in a controversy involving title to an estate testify that a woman is incapable of bearing children, so that a trust, deliberately created for her benefit during her life only, may be brought uncomfortable for such willing workmen so to end with a view of vesting an absolute to work. This is an unlawful means. Fifth. interest in her. No one can foretell to what Another unlawful means in common use to length such a precedent would lead. A cer- hinder or prevent willing employes from tain surgical operation, for instance, would working and to compel employers to accede make it absolutely certain that no issue to terms which they would not otherwise could be born. If proof like that now under adopt is the boycott in its various forms. consideration were admitted, upon what The defendants in this case, being that of principle could evidence showing that an Martin v. McFall, 55 Atlantic Reporter 465, operation of the kind indicated had been denied that they were doing any of these performed be excluded, and, if not excluded, unlawful acts, and asked for the dissolution. what would prevent interested parties from of the injunction, to which the vice chancelresorting to such or similar operations if, by lor philosophically replies that if they do so doing, a mere equitable life estate could not intend to do the things forbidden by the be converted into an absolute interest?" restraining order, the order will do them no The court further states that, in considering harm. a case involving questions which have not been heretofore decided, it is necessary to examine and weigh the results that may lie beyond the disposition of the particular case, and to consider the moral aspects of the situation. It is obviously not the province of the court of equity to encourage in any way a resort to a method like that suggested above for defeating a settlement or terminating a trust, and upon the broad grounds of public policy evidence introduced to this end should be excluded. Rights of Unions and Employers. In disposing of a motion to dissolve an injunction restraining members of a union from interfering with an employer in the conduct of his business, by persuading or inducing others not to deal with him, Vice Chancellor PITNEY summarizes, in the following brief form, certain of the contentions between capital and labor which he states are now quite well settled: First. That all sorts of laborers may lawfully combine and form unions for their mutual benefit, and that they may use all lawful means to promote their own interests, being careful in so doing not to infringe upon the rights of others. Second. One lawful means to that end is the refusal to work on terms offered by the employer. Third. An unlawful means is to hinder or prevent others from working for an employer under such terms as they shall see fit. Fourth. One means of such hindering and preventing is in various ways to render it either difficult or Recent Bankruptcy Decisions. A LIQUOR license, in Pennsylvania, does not pass to a trustee in bankruptcy, and may be claimed as part of the bankrupt's exemption. In re Olewine, 11 Am. B. R. 40. AN ordinary building and loan association, organized under the laws of New York, is not subject to adjudication as a bankrupt. Matter of New York Building-Loan Co., 11 Am. B. R. 51. WHERE property is sold under an assignment for the benefit of creditors, made within four months of the assignor's bankruptcy, and no payment is made thereon, the title thereto passes to the trustee in bankruptcy. In re Knight, 11 Am. B. R. 1. PROPERTY which passed to an assignee for creditors under an assignment made subsequent to the passage of the Amendatory Act of 1903, and within the four months period, is recoverable by the trustee in bankruptcy of the assignor under section 67e, as amended. In re Knight, 11 Am. B. R. 1; see Sherman v. Luckhardt, 11 Am. B. R. 26. THE Supreme Court in New York County Nat. Bank v. Massey, 11 Am. B. R. 42, holds that a deposit of money with a bank upon an open account, subject to check, though made within the four months period, is not a preference which must be surrendered before the bank can prove its debt against the depositor, and that the deposit may be set off against its claim allowing it to prove for the balance. IN Sherman v. Luckhardt (Kas.), 11 Am. B. R. 26, overruling on rehearing 9 Am. B. R. 312, it is held that a conveyance of nonexempt property by a bankrupt to one of his creditors within four months prior to the filing of petition in bankruptcy by or against him, made with the intent and purpose on the part of the bankrupt alone to hinder, delay and defraud his creditors, is prohibited by clause "e" of section 66 of the Bankrupt Act of 1898, and such conveyance may be avoided by the trustee appointed in the bankruptcy proceedings. See In re Knight, 11 Am. B. R. 1. STATUTE OF FRAUDS.-Where a woman was induced to enter into a marriage contract on the faith of an oral promise made by the man she married to convey to her certain property, it has been held by the Supreme Court of Colorado, in Allen v. Moore, 70 Pacific Reporter 682, that his failure to keep his promise under such circumstances is such a fraud upon the wife as will take the promise to convey out of the statute of frauds, and as between them equity will enforce the contract, and authorize specific performance. ONE purchasing a round-trip railroad ticket good only on the day of purchase is held, in Illinois Cent. R. Co. v. Harris (Miss.) 59 L. R. A. 742, to be entitled to recover damages in case he is ejected from the only train passing his station on the return trip on that day, for the reason that the ticket is not good on that train because the train is not scheduled to stop at that IN Watertown Carriage Co v. Hall, 11 Am. B. R. 15, the New York Court of Appeals held that where the complaint in an action of conversion alleges that the defend-station. ant did wrongfully and fraudulently embezzle and misappropriate plaintiff's money, the legal import thereof is that defendant became possessed of the money in a fiduciary capacity, and, hence, his liability thereunder is a liability expressly excepted, by section 17, from debts released by a discharge, and defendant's answer setting up his discharge in bankruptcy as a defense to the ac tion is demurrable as insufficient in law. IN Benedict v. Deshel (N. Y. Ct. App.), 11 Am. B. R. 20, is is held that in an action by a trustee in bankruptcy against a creditor of the bankrupt to recover back preferential payments alleged to have been paid to him by the bankrupt, constituting an illegal preference under section 60, the plaintiff, in order to establish his cause of action, must prove insolvency at the time of payment, and that the creditor, when he received the money, had reasonable ground to believe that it was intended as a preference; but he need not prove such an intent on the part of the insolvent in making the payment. See Collier on Bankruptcy (4th ed.), 413 et seq., 2 Am. B. R. 518, note, Peck v. Connell, 8 Am. B. R. 500, and note. CONTRIBUTORY negligence of one injured by collision with a street car when attempting to drive across the tracks is held, in Keenan v. Union Traction Co. (Pa,) 58 L. R. A. 217, to prevent recovery where, at a distance of 35 feet from the track, he looks along the track 319 feet, and, seeing no car coming, walks his horse across the track without again looking for a car, his duty being to continue to look until the track is reached. held, in Franklin v. Durgee (N. H.) 58 L. THE Owner of land adjoining a highway is R. A. 112, to have no right to fill depressions in his land which are natural outlets to drain the water from the highway, if the effect will be to cast the water back onto the highway and injure it. THE joinder of master and servant as defendants in an action for injuries to another servant caused by the act of the defendant servant for which the master is responsible, is held, in Howe v. Northern P. R. Co. (Wash.) 50 L. R. A. 949, to be proper. |