SAMPTER et al. v. TACK et al. (Supreme Court of New Jersey. June 9, 1902.) Error to circuit court, Essex county. Action by Jean Tack and others against Michael Sampter and others. There was a judgment for plaintiffs, and defendants bring error. Affirmed. Argued February term, 1902, before GUMMERE, C. J., and VAN SYCKEL, GARRISON, and GARRETSON, JJ. Abner Kalisch, for plaintiffs in error. Riker & Riker, for defendants

in error.

PER CURIAM. The liability of the plaintiffs in error in this case depended upon whether they were guarantors of or indorsers upon the note sued upon. This question was properly left to the jury by the trial judge, who, in his rulings and in his charge to the jury, followed Cadwallader v. Hirshfeld, 62 N. J. Law, 747, 42 Atl. 1075, 72 Am. St. Rep. 671.

should have established his liability beyond the amount allowed by the verdict. It was not contradicted. The defendant's demeanor when before the jury and his deportment when out of court being shown to us by the proofs taken under this rule, we are satisfied that the defendant was shamming in the presence of the jury, and that the verdict was improperly affected thereby. A new trial is granted.

case cited rules the one now under consideration, so far as the legal principles involved are concerned. The judgment below should be affirmed.

SHARPE v. WARNER. (Supreme Court of New Jersey. June 9, 1902.) Action by Allenia C. W. Sharpe against Donald T. Warner. Verdict for plaintiff. Rule to show cause discharged. Argued February term, 1902, before GUMMERE, C. J., and VAN SYCKEL, GARRISON, and GARRETSON, JJ. Alan H. Strong, for the rule. Willard P. Voorhees, opposed.

PER CURIAM. The underlying question in this cause was whether a paper writing which purported to be the last will and testament of Allen C. Warner was, in fact, his last will and testament. It was attacked by the plaintiff before the jury on the ground of testamentary incapacity, and also on the ground of undue influence exerted by one of the defendants. The court practically instructed the jury that the evidence submitted would not justify the conclusion that Allen C. Warner lacked testamentary capacity, but left it to them to say whether, on the evidence submitted, the will was the product of undue influence. They found that it was; and a careful consideration of all the testimony in the cause satisfies us that this finding is not against the weight of the evidence. The rule to show cause will be discharged.

WARSHAWSKY V. RARITAN TRACTION CO. (Supreme Court of New Jersey. June 9, 1902.) Action by Bennett Warshawsky against the Raritan Traction Company. Demurrer to the declaration overruled.

PER CURIAM. The demurrer in this case will be overruled, for the reasons stated by us in the case of Warshawsky v. Traction Co. (argued at the present term) 52 Atl. 296.

On

WILSON v. ADAMS. (Supreme Court of New Jersey. June 9, 1902.) Action by William H. Wilson against John J. Adams. Judgment for plaintiff for a part of his claim. plaintiff's rule to show cause. New trial granted. Argned at February term. 1902, before GUMMERE, C. J., and VAN SYCKEL, GARRISON, and GARRETSON, JJ. W. H. Morrow, for plaintiff. J. M. Roseberry, for defendant.

GARRISON, J. This is the plaintiff's rule to show cause. The verdict was for a part of the claim for which suit was brought. The defense interposed at the trial was the mental incapacity of the defendant. The defendant was not called as a witness; but he was in the court during the trial, and was confronted by testimony, which, if uncontradicted,

BROWN, J. The appellant here is the ap pellant in the preceding case (52 Atl. 18), and the same matter is in controversy. Her pres ent appeal is from a decree made on a bili which she filed, alleging that the certificate issued to McGee belonged to her, and praying for an injunction to restrain the defendants from doing anything inconsistent with her ownership of it; that the Lehigh Coal & Navigation Company be enjoined from paying to any other person than herself the sum due on it; and that the company be directed to pay the same to her. Answers were filed by the de fendants, and, on final hearing, it was agreed that the testimony taken in the preceding ease should be considered by the court in this proceeding in equity as if taken in it. The same learned judge presided in each case, and, having approved the finding of the jury in the common-law suit, he properly adopted it for the purpose of a decree in this one. It was not only his finding, but that of a jury as well: and, in view of it, the complainant was entitled to no relief. Decree affirmed, and appeal dismissed, with costs.

GROW v. BUFFALO, R. & P. RY. CO. (Supreme Court of Pennsylvania. June 4, 1902.) Appeal from court of common pleas, McKean county. Action by G. N. Grow against the Buffalo, Rochester & Pittsburg Railway Company. From an order refusing to award a change of venue, defendant appeals. Reversed. C. H. McCauley, John G. Johnson. J. W. Bouton, and F. D. Gallup, for appet lant. W. E. Burdick, Geo. A. Berry, and Robt. L. Edgett, for appellee.

MESTREZAT, J. The reasons assigned in the application for a change of venue in this case are the same as those in Willoughby v. Railway Co., 52 Atl. 188, in which an opinion has this day been filed. The same learned judge heard both applications, and refused them for the same reasons. We are therefore compelled to reverse the order of the court below, and remand the case for a rebearing of the application in accordance with the views expresed in the opinion filed in the Willoughby Case. Order reversed, with a procedendo.

GRUBB et al. v. PENNSYLVANIA STEEL CO. (Supreme Court of Pennsylvania. Jane 4, 1902.) Appeal from court of common pleas Lebanon county. Suit by Charles B. Grubb and another, trustees under the will of Clement B Grubb, deceased, against the Pennsylvania Sted Company, for specific performance of a contract for sale of real estate, authorized by court der Act April 18, 1853 (P. L. 503), in whi defendant was vendee and plaintiffs vendors Decree for plaintiffs. Defendant appeals. ATfirmed. W. F. Darby, H. C. Shirk, and Wayne

MacVeagh, for appellant. John G. Johnson, for appellees.

MITCHELL, J. The legal questions involved in this appeal are substantially the same as in Brock v. Steel Co. (opinion filed herewith) 52 Atl. 190. The testator here gave his trustees a power of sale, but expressly excluded the Cornwall ore banks; his language being, "but not to make any sales of the principal, which I forbid," and the power to sell being limited to his estate "other than Cornwall ore banks." As said in Brock v. Steel Co., there is no express prohibition of sale by order of court, and it would have been ineffectual, if there had been. For the reasons set forth in the opinion in that case, the decree is affirmed.

KEEFER v. MODERN WOODMEN OF AMERICA. (Supreme Court of Pennsylvania. May 19, 1902.) Appeal from court of common pleas, Cumberland county. Action by Alice Grace Keefer, to use of John Hays, against the Modern Woodmen of America. There was judgment for defendant, but it makes a crossappeal, questioning the holding that, so far as plaintiff is concerned, it is a mutual assessment life insurance company. Appeal dismissed. J. W. White, E. B. Wickersham, and Wetzel & Hambleton, for appellant. W. F. Sadler and Hays & Hays, for appellee.

PER CURIAM. The judgment having been affirmed on the appeal by the plaintiff (No. 296, January term, 1901; 52 Atl. 164), this crossappeal by the defendant raises no material question, and is dismissed.

Appeal

of

In re KLAPP'S ESTATE. GOODMAN. (Supreme Court, of Pennsylvania. June 4, 1902.) Appeal from orphans' court, Berks county. In the matter of the estate of Daniel Klapp, deceased. From a decree dismissing petition of Charles C. Goodman for the awarding of an inquest to make partition of real estate of which deceased died seised, petitioner appeals. Affirmed. Henry Maltzberger, for appellant. Isaac Hiester, Horace A. Yundt, and Cyrus G. Derr, for appellees.

PER CURIAM. This appeal presents the same question that was raised and decided in Goodman's Appeal, 199 Pa. 1, 48 Atl. 809, in which it was held that the clear intention of the testator was that the bequest to his daughter Catharine should go to his son Joseph and his children in the event that Catharine died unmarried, or married and without issue. The decree is affirmed, at the cost of the appellant.

LASHER v. MEDICAL PRESS CO. (Supreme Court of Pennsylvania. Feb. 20, 1901.) PER CURIAM. Judgment affirmed.

PENNSYLVANIA CANAL CO. v. LEWISBURGH, M. & W. PASS. RY. CO. (Supreme Court of Pennsylvania. June 4, 1902.) Appeal from court of common pleas, Northumberland county. Suit by the Pennsylvania Canal Company against the Lewisburgh, Milton & Watsontown Passenger Railway Company to enjoin defendant from crossing plaintiff's canal on an overhead bridge which is part of a pubiie

1135

highway. From judgment of the superior court, reversing decree of the court of common pleas of Northumberland county dismissing the bill, defendant appeals. Affirmed by divided court. Richard C. Dale, W. H. Hackenburg, and George S. Graham, for appellant. J. C. Bucher and Cyrus G. Derr, for appellee.

PER CURIAM. The judges who heard this case being equally divided in opinion, the judg ment is affirmed.

PHILADELPHIA

(Su

TRUST, SAFE DEPOSIT & INS. CO. et al. v. LODER. preme Court of Pennsylvania. May 19, 1902.) Appeal from court of common pleas, Philadelphia county. Suit by the Philadelphia Trust, Safe Deposit & Insurance Company, trustee under the will of George W. Conarroe, deceased, and another, against Constantine G. A. Loder, for injunction. Decree for plaintiffs Defendant appeals. Reversed. Henry J. Scott and John G. Johnson, for appellant. Rowland Evans and R. L. Ashhurst, for appellees. James Alcorn and John L. Kinsey, for city of Philadelphia.

MITCHELL, J. This case involves the same question as Bornot v. Bonschur (opinion filed herewith) 52 Atl. 44, and must be reversed for the reasons there given. Decree reversed, with directions to dismiss the bill, with costs.

SPRING BROOK WATER SUPPLY CO. v. CITY OF PITTSTON. (Supreme Court of Pennsylvania. June 4, 1902.) Appeal from court of common pleas. Luzerne county. Action by the Spring Brook Water Supply Company against the city of Pittston for water furnished defendant from April 1, 1896, to January 1, 1899. Judgment for plaintiff. Defendant appeals. Affirmed. George F. O'Brien, City Sol., and Cormac Francis Bohan, for appellant. Henry W. Palmer, for appellee.

PER CURIAM. For the reason that the city of Pittston continued to use the water of the appellee after notice that it would have to pay for the same, the judgment against it for what the referee found the water was reasonably worth is affirmed.

In re SUNDERLAND'S ESTATE. Appeal of WALKER. (Supreme Court of Pennsylvania. May 26, 1902.) In the matter of the estate of John Sunderland, deceased. From the decree dismissing exceptions to adjudication in the account of the executors, Martha S. Walker appeals. Affirmed.

PER CURIAM. The decree is affirmed, on the opinion of Judge PENROSE. See 52 Atl. 167.

KAFAFIN v. NORTH HUDSON COUNTY RY. CO. (Supreme Court of New Jersey.) Argued November term, 1900, before VAN SYCKEL and FORT, JJ. John I. Weller, for plaintiff. Walter L. McDermott, for defendant.

PER CURIAM. This case presents no ground upon which this court can legally set aside the judgment below. The judgment is affirmed. with costs. Traction Co. v. Heitman's Adm'rs, 61 N. J. Law, 682, 40 Atl. 651.