although it relates to a mere question of practice.

And now Feb. —, 1905, the rule to show cause why the appeal in the above case should not be stricken off is made absolute, at the costs of the defendant.

IN RE CONDEMNATION OF LAND OF HENRY KUNTZ.

Condemnation of Land for School Purposes. Act of April 9, 1867, P. L. 51. Regularity of Proceedings.

Where a petition for the appointment of viewers for the fixing of damages for lands condemned for school purposes is signed Board of Directors of the School District by its secretary and president, in the absence of proof to the contrary, it is a sufficient indication that corporate action had been taken by the school board. The "opinion" of the school board could only be expressed by corporate action.

In the Court of Common Pleas of Lehigh County. In the matter of the condemnation of land of Henry Kuntz by the Slatington School District. No. 20 April Term, 1905. Exceptions to report of viewers. Exceptions dismissed.

Frank Jacobs for School Board.

Erdman and Diefenderfer for Exceptants.

Trexler, P. J., June 5, 1905. There are four exceptions filed to the proceedings but all can be considered under the particular exception that the proceedings do not show the necessary successive steps entitling the school district to take the said land.

The act of April 9th, 1867, P. L. 51 provides:

"Whenever the board of directors or controllers of any school district in this commonwealth, shall be unable to procure such eligible sites, for the erection of school houses thereon, as they may deem expedient, by agreement with the owner or owners of the land, it shall and may be lawful for the board of directors, in behalf of the district, to enter upon and occupy sufficient ground for the purpose, which they shall designate, and mark off, not exceeding, in any case, one acre, and to use and occupy the same for the purpose of erecting thereon a

school house, with its necessary or convenient appurtenances; and for all damage done and suffered, or which shall accrue to the owner or owners of such land, by reason of the taking of the same, for the purposes aforesaid, the funds of the district, which may be raised by taxation, shall be pledged and deemed as security; and it shall and may be lawful for the court of common pleas of the proper county, on application thereto, by petition, either by the said school district, through the president and secretary of the board of directors, or by the owner or owners of said land, or any one of them, in behalf of all, to appoint a jury of viewers," etc.

The petition in this case sets forth that in the opinion of the said school board the acquisition of the land in question is necessary for the accommodation of the public; that they are unable to procure the land by agreement with the owner and is signed by the Board of Directors of the School District of the Borough of Slatington by its secretary and president as required by the act.

The exceptant claims that the corporate action taken by the board should have been set forth in the petition. No depositions have been taken to show the absence of the proper corporate action.

To my mind, the fact that the president and secretary have signed the name of the school district together with their own signatures and the designation of their official character, respectively, would sufficiently indicate that corporate action had been taken by the school board.

The "Opinion" of said school board could only be expressed by corporate action.

I think the petition sufficiently gives every fact which is requisite in order to give the court jurisdiction in the appointment of viewers and the proceedings subsequent thereto.

Now June 5, 1905, exceptions are dismissed.

OCHS VS. KRAMER ET. AL.

Contract-Bond-Forfeiture of Bond-Work to be done to Satisfaction

of Owner.

Where a contract for the erection of a heating apparatus provides for the making of certain tests, and a bond for the faithful performance of the work refers to the written contract and contains a clause that the work is to be done to the satisfaction of the owner. Held: That the fact that the plant had to be satisfactory to the owner could not be taken in the absolute sense but that it had to be considered in relation to the contract and schedule.

In the Court of Common Pleas of Lehigh County. M. T. J. Ochs vs. Chas. H. Kramer and W. H. Kramer. No. 22 September Term, 1903. Assumpsit on bond. Verdict for plaintiff for $59.49. Motion by plaintiff for new trial. Motion overruled.

The principal reason assigned for a new trial was: The Court erred in not instructing the jury that if the heating plant was not satisfactory to the plaintiff, then the condition of the bond was forfeited and recovery could be had thereon for the amount of the damages proved.

Erdman and Diefenderfer for plaintiff.
Lewis and Schantz for defendants.

Trexler, P. J., June 5, 1905. This action was brought to recover the amount of a bond, being the sum of twelve hundred dollars, a breach of the condition of said bond being alleged.

The bond was given by the defendant to the plaintiff and the condition of it was that the obligor should provide a good and perfect heating plant, guaranteeing the proper and satisfactory working of said plant and to the satisfaction of M. T. J. Ochs, the obligee. It makes specific reference to the contract and specifications and schedule.

At the trial of the case, counsel assumed, and the court also held, that the bond must be considered in connection with the contract.

I held that the fact that the plant had to be satisfactory to the owner could not be taken in the absolute sense but that it had to be considered in relation to the contract and schedule.

If the bond had made no reference to the contract then satisfaction of the owner would have been the ultimate test but the contract provides for a test and for other matters which would be inconsistent with the idea that the mere satisfaction of the owner was what was intended.

In the articles of agreement the contractor agreed to heat the house according to the schedule which contained the temperature required in each room. It provides for the testing at the option of the owner. If, after the testing is made, the house is not heated in accordance with the contract and proves unsatisfactory to the owner, he must give notice thereof to the contractor who thereafter has a chance to remedy it and put it in proper condition for the owner, within five days and on failure on the part of the contractor to do so, the owner has the right of condemning the heating plant.

The specifications contain a number of matters which are apparently inconsistent with what is set forth in the contract.

It provides that the capability of the plant must be tested with the proper quality and size of fuel. It provides for the acceptance of the plant if the specifications have been complied with. It provides for the payment of extra prices for labor and materials not included in the plans. In fact the whole matter of the erection of the plant was in a mixed-up condition and the verdict was somewhat in the nature of a compromise between the conflicting claims of the parties,

The case involved a large amount of detail and the jury could, under the evidence submitted, find that the plaintiff did not fix the liability on the contractor in the manner set forth in the agreement.

Whilst the verdict for the plaintiff should perhaps have been for a larger amount, I do not think it was against the evidence.

Now June 5th, 1905, motion for a new trial is overruled.

EDWARDS VS. KROLL FURNITURE CO.

Appointment of Receiver for Insolvent Partnership Association—Winding up by Three Liquidating Trustees-Hypothecation of Individual Assets for Debts of Partnership Association.

A Court of Equity has power to appoint a receiver for an insolvent partnership association created under the Act of June 2, 1874.

Section 2 of the Act of May 10, 1889, which provides that the affairs of a partnership association shall be settled and its assets distributed by three liquidating trustees elected by the members of the association, does not apply where the association is insolvent.

One who has hypothecated his assets for debts of a partnership association is entitled to equitable relief.

In the Court of Common Pleas of Lehigh County, sitting in equity. Between Charles H. Edwards, Sr., Plaintiff, and The Kroll Furniture Company, Limited, Defendant. No. 2, April Term, 1905. Bill in Equity for Receiver. Appointment of interlocutory interlocutory receiver. Demurrer to bill. Demurrer overruled. Answer and replication. Decree making appointment of receiver permanent.

Marcus S. Hottenstein, Solicitor for Plaintiff.

Harry G. Stiles and Harry A. Cyphers, Solicitors for Defendant.

Opinion of Court upon demurrer.

Trexler, P. J., April 24, 1905. The defendant is a limited partnership association created under the Act of second day of June, 1874, P. L. 271; the stock thereof being owned, with the exception of a few shares, by John W. Sepp and the plaintiff, Sepp having four hundred and sixty-two shares and the plaintiff three hundred and seventy-eight shares. The association owns real estate upon which there is a mortgage of twenty thousand dollars.

The plaintiff has made himself responsible for debts of the association and has placed as collateral security for the same all his real estate and also certain life insurance policies.

The bill alleges that the company is mismanaged and is insolvent; that a number of judgments have been recovered against it; that the building, including all the