Pleas No. 2, of Allegheny County, in an action sound, judicial discretion, would be compelled to The facts of the case appeared at the trial, before GREER, J., as follows: Peter Schwartz, the husband of the plaintiff, on the 18th of September, 1893, took out a policy for $500 in the defendant company. The policy contained a provision, "That no obligation is assumed by this company prior to the date hereof, nor unless on said date the insured is alive and in sound health." Eister v. Paul, 54 Pa. 196. Schempp v. Fry, 165 Id. 510. The condition of the health of the insured when the policy was issued was essential and entirely a question of fact to be decided upon the evidence, and involving the credibility of witnesses. Dietz v. Metropolitan Life Ins. Co., 168 Pa. 504. Knickerbocker Life Ins. Co. v. Trefz, 104 U. S. 197 Facts material to the risk made known to the There was evidence that the insured, before the taking out of the policy, in December, 1891, agent before the policy issued, are constructively had been treated for diabetes and that he had known to the company, and cannot be set up to been treated for the same complaint from De- defeat a recovery on the policy. So, if the deceas cember, 1891, on several occasions, up to and in-ed, at the date of the policy, was so far gone in cluding August 31, 1893. No examination of the disease that he suffered from general debility ininsured was made by the company's physician at cident to the disease, it would have been ap the time of the taking out of the policy such as parent to the company's doctor and the company would show the presence of the disease, and the as principal will be presumed to have such knowlmedical witnesses differed as to the possibility edge as its agents obtained in negotiating this and probability of his being afflicted with diabe- particular transaction. bes at the time the policy was issued. He died on the 12th of April, 1895, of the disease in question. The defendant requested binding instructions in its favor, which was refused. Verdict for plaintiff and judgment thereon. The defendant took this appeal and assigned as error, the refusal to give binding instructions in its fa vor. May on Insurance, 2d Ed., sec. 132. July 23, 1897. ORLADY, J. The husband of the plaintiff was insured in the defendant company, under a policy containing a stipulation as follows: "Provided, however, that no obligation is assumed by this company, prior to the date hereof, nor unless on such date the insured is living W. K. Jennings, (H. G. Wasson with him), for and in sound health," which furnishes the basis appellant. for the defence in this action. It was contended by The plaintiff made no attempt to contradict the the company that at the time of the issuance of evidence of the defendant as to the condition of the policy (and for a considerable time prior the insured shortly before the policy was issued. thereto), Peter Schwartz, the husband of Mrs. The medical testimony was that of doctors chosen Bertha Schwartz, had been suffering from diabeby the insured and not by the company. tes; and proof was adduced on the trial to show Since the scintilla doctrine has been exploded that in 1891, Peter Schwartz consulted Dr. A. both in England and in this country, there is a Blumberg, and was informed by him that he had preliminary question, in all cases, for the Court, diabetes; also that he consulted Dr. Charles Emnot whether there is literally no evidence, but merling, who testified that in December of 1891, whether there is any that ought reasonably to January, March, April and June, of 1893, he was satisfy the jury, that the fact sought to be found consulted by Peter Schwartz, and he arrived at is established; if there is evidence, from which the same conclusion as the other witness. the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted; if not, it should be withdrawn from the jury. Hyatt v. Johnston, 91 Pa. 196. The statement of the attending physician of the insured gives as the chief or primary cause of death, diabetes militus; the dates for treatment of diabetes were from December, 1893, to April, 1895; that the contributory or secondary cause of death was the same; and that the duration of the disease was two years prior to death. The policy The Court may withdraw a case from the jury is dated September 18, 1893, and it was urged that altogether and direct the verdict where the evi- "under all the evidence the verdict should be for dence is undisputed, or is of such conclusive the defendant." This was refused by the Court, character that the Court in the exercise of a and in submitting the case to the jury, it was Longenecker v. Pa. R. R. Co., 105 Id. 328. said, "The whole question turns on whether he excessive discharge of the urine, and he had too had this trouble in September of that year." high a degree of sugar in the urine, a specific "Now this just comes down to an honest, square gravity which was too high; lost flesh, and there contract between the parties. The plaintiff must was general disturbances, general debility; there have complied with the requirements of the con- was excessive thirst; he also had at times a tract, or her husband before her. The defend- slight cough. Q. Doctor, what was the possiant has set up the defence that at the time this bility or probability of his recovering from the policy was taken this man was not in good disease of diabetes within twenty days after you health, that he had diabetes, and that therefore last saw him? A. Well, the probabilities were the policy is void so far as he is concerned. This against the recovery from diabetes. The patient is a perfectly good defence if it is made out, and will improve, even in fatal cases, once in a while, it is for you to say whether or not it is made and sugar is missing from the urine. For three out." or four weeks the sugar is missing, but all the In the analysis of the testimony of the eminent same the diabetes is there, because in fatal cases, physicians called on the part of the defence, we there may be other causes brought on by diabeare struck with the want of certainty, from their tes, or the patient may make a recovery partially, professional standpoint as to whether or not under the treatment, but the relapse will follow. Peter Schwartz could or could not be, under There are two forms of it, one superinduced their knowledge of his condition, in sound health, chiefly by a diseased condition of the nervous on the date of the policy. Doctor Blumberg tes- system, and the other by the condition of the tifies, viz.: "Q. Doctor, if any man had diabetes in action of the liver. Q. Then you cannot state November and December of 1891, what would be what it is? A. Not exactly. It is still in susyour opinion as to the likelihood of its continu- pense what the real cause of diabetes is, but there ing until the 18th of September, 1893? A. Well, are two forms of it, that is the hepatic form and I should say, as a rule, that diabetes is incurable, the nervous form." but there are cases where it has been cured. A Doctor Emmerling says that persons of lean, man might have diabetes in 1891, and be in per-spare physique die more quickly than robust fect health in 1893, and not have it. As a rule, persons, when affected with diabetes, while it is not curable, but there are cases that have Doctor Blumberg says that, as a rule, fat people been cured. Q. Well, then, without deciding as die quicker. to whether a case is incurable or not, would not Doctor Stewart, the physician who made the information that he had the disease again in 1895, examination of Peter Schwartz at the time the have any bearing upon your opinion as to the policy was issued, says that he made no examinacondition of his health in 1893? A. Even then tion of the urine, because in policies for this it would not have any bearing, because he might amount it was not required; that it was not have had sound health when he in 1893, when he waived because it was not necessary; it was not took out the policy, and then when he had it the called for, and in answer to the direct question: disease might have come back again in 1895. Q. "You did not see anything in this case which led What kind of a disease is diabetes? Q. It is a you to believe that the urine should be examdisease concerning which the medical profession ined?" answered, "No, sir, I did not. Q. After is not entirely sure. It is caused by various your examination of the man? A. No, sir. Q. If causes. Some people claim that it is a disease of the brain; some that it is a disease of the liver. There are various kinds of diabetes, some get it from a disease of the liver and some from the blood. It depends on the degree, in some cases In view of the vital differences in the testimony there is a slight amount of sugar in the urine and of the defendant's witnesses, who are learned it don't amount to anything, and in other cases, doctors in diagnosis and prognosis, and of the where the sugar is more heavy they die. Q. testimony of the examining physician of the comWell, was a man likely to have diabetes and be pany, who saw nothing at the time the policy healed, and then have it again, inside of the was issued to indicate that Peter Schwartz was space of two or three years? A. Well, it is not suffering from diabetes, or that an examination as a rule. As a rule they generally have it and of his urine should be made to ascertain that fact; die with it, but there are exceptions to those it would be asking too much to have the trial rules." Judge reconcile these clinical differences and deDoctor Emmerling testified that Peter Schwartz termine as a fact that Peter Schwartz was in had diabetes on August 31, 1893. "He had an sound or unsound health at the time this policy you had been asked then at that time whether or not he had diabetes, how would you have answered it? A. I would have said that I had no evidence of it at that time." was issued, when the examining physicians ex- maintained as a place of divine worship by the pressed such grave professional doubts as to the ministry and membership of the Evangelical Ascertainty of either condition. "When doctors sociation of North America, with power to disdisagree, the soundest casuists doubt," and the case was properly submitted to the jury to ascertain that fact. pose of and convey the same, subject to the discipline, usages and ministerial appointments of said church or association as from time to time The assignment of error is overruled and the authorized and declared by the general conferjudgment is affirmed. W. D. N. March '97, 21. Certain property was conveyed to G. and W., in trust, to be "kept, used and maintained as a place of divine worship by the ministry and membership of the Evangelical Association of North America, subject to the discip line of said association." Subsequently they seceded from that association and united with another: ence of the said association, and the annual conference in whose bounds the said premises are situate." The conveyance by the grantor to the original trustees was manifestly for the mere purpose of vesting the property in the congregation, they being at the time an unincorporated society. At the time of the filing of this bill, it is practically undisputed that the plaintiffs were no longer members of the Evangelical Association of North America. They seceded from that association and united with an association called "The United Evangelical Church." They were subsequently expelled from the church, and were cut off from all church rights and privileges by the regular ecclesiastical authorities of the Evangelical Association of North America. Their offices as trustees had been forfeited, and were, Held, that they thereby forfeited their trust and were no longer entitled to the control of the church property. Appeal of Henry E. Nace and Edward H. Houck, defendants, from the decree of the Common Pleas of York County; that they "place the premises described in the same order and therefore, vacant before the filing of their bill. condition in which they were on the 12th day of By their secession from the church, they were no September, 1895, immediately before they relonger entitled to the control of the church propmoved therefrom the doors, windows, pews and erty. This congregation collected among themchurch furniture from the same; by the return and selves the consideration which was paid to Garproper placing in position said portions of the church and church furniture, before the 15th day for the property. rett, the original grantor, as the purchase money of September, 1896, at 10 o'clock A. M., or in It was subsequently provided in the deed that default thereof they pay to the plaintiffs the sum the church was to be subject to the discipline, of two hundred dollars, which is assessed as damusage and rules of the Evangelical Association of ages for the trespass done by the said Henry E. North America. These trustees were selected by Nace and Edward H. Houck to the said premises the original association when they were members of the plaintiffs, and injury to the said church in full standing of the one ecclesiastical body, but property," as prayed for in a bill filed by Andrew held the empty title merely of this property for W. Garrett and Adam R. Warner, trustees. this unincorporated society. When they first seThis decree of the Court, BITTENGER, P. Jceded, and were afterwards expelled from the was assigned as error and the ground of this ap-association who had full control of this church, peal, the facts being stated in the opinion of the it was a virtual renunciation by them of their Superior Court. right to exercise the power of trustees, and their control of any portion of the church property Nevin M. Wanner, (John W. Heller with him), for appellants. Henry C. Niles, (George E. Neff with him), for appellees. ceased. They, therefore, have no standing to come into Court as plaintiffs in a bill in equity and ask for July 23, 1897. REEDER, J. This was a bill in an injunction as trustees of the said congregation equity, asking for an injunction to restrain the to enjoin anybody from doing anything which defendants from the further use of, or injury to, affects in any way the interests or property of the certain property claimed by the plaintiffs, as trus- said church. tees of the Trinity Evangelical church, of West Manheim township, York county. The decree of the Court below is, therefore, reversed and the bill dismissed at the cost of The plaintiffs claimed title as trustees of the the plaintiffs. This action makes it unnecessary Trinity Evangelical church under a deed from for us to consider the different assignments of Oliver Garrett, in trust to be "kept, used and error in any further detail. W. C. S. come: held, (1) the accumulation, having resulted from careful management, and having been retained to meet possible deficiencies in the income, was not in violation of the Act of April 18, 1853; (2), that the accumulation fell into the general residuary estate and went to the ment created by a deed cannot be inferred from a rare some forty years later, there was an accumulation of inuser by the grantee. (Super. Ct.) Twibill v. Lombard and South Sts. Ry. Co., 134. ABATEMENT. Under the provisions of the Act of April 15, 1851, an action begun for injuries to the person does not abate by reason of the plaintiff's death, but survives by substitution of his personal representatives. granddaughter. Howell's Estate, 151. Maher . Philadelphia Traction Co., 477. ADMINISTRATOR. The Orphans' Court will not ABORTION. While it is not good practice to sub-order an administrator to account for personal estate remit a case to the jury on a trial for abortion on the un-ceived by him while an equity proceeding is pending in corroborated testimony of the woman upon whom the the Common Pleas, wherein the issue is raised whether abortion was performed, yet the appellate court will not or not the personal estate as well as the real estate bereverse for that reason. (Super. Ct.) Com'th v. Bell, longed to the administrator in his own right, the answer 496. alleging the decedent's title to have been as trustee only. (O. C.) Marschall's Estate, 303. ACCIDENT. Accident is an unusual or unexpected result attending the operation or performance of a usual or necessary act or event. Hey v. Guarantors Liability Indemnity Company, 423. Destruction of a building by flood or freshet is as clearly accidental as the destruction of it by lightning; and the exception of the latter from a contract of insurance is a recognition by the insurer of liability for loss arising from other causes of the same nature. Id. ACCOMMODATION NOTE. Want of consideration is not a delence in an action on an accommodation note, in the hands of a third party, who has taken it as collateral security for an antecedent debt. Smith v. Wachob, 15. A power to sell real estate given to executors for the purpose of distribution belongs to them virtute officii, and may be exercised by an administrator d. b. n. c. t. a. Potts v. Breneman, 464. M. gave the income of the remainder of his estate to his wife for life, subject to an annuity, and upon her death he gave "said residue and remainder of all my estate, real, personal and mixed, unto my brothers and sisters then living and the issue and descendants of any of them then dead." He made his wife executrix "with power and authority to sell and dispose of and convey in fee simple any or all of my real estate." He further directed that his wife should not be "required to give entitled in remainder to any portion of my estate." The wife having died, an administrator d. b. n. on M.'s estate was appointed. He entered into articles of agreement for the sale of certain land of the testator M.; held, the title was good and the administrator d. b. n. had a power of sale. Id. ACCOUNT. Where a bill is filed praying an ac-security to secure the interest of the person or persons count, and, specially, that a certain part of an account stated be set aside, a decree refusing the prayer to set aside the account stated and directing an account to be taken of the business, from the time covered by the account stated, is an interlocutory decree and cannot be appealed from by the plaintiff. It does not fall within the Act of June 24, 1895, P. L. 243, which is for the benefit of the defendant when required to account. Lauer v. Lauer Brewing Co., 173. Where, at his request, a summary of amounts collected, and to be collected, is rendered by one partner to another and no objection has been made to it, it may be taken as prima facie evidence of all that was stated in it, but liable to be overcome by proof of fraud or mistake in any item therein. McGinn v. Benner, 260. ACCUMULATION. A. bequeathed to his executors, "such a sum as would yield a yearly income of $2500," in trust to pay said income to his wife for life, and, at her death, $10,000 thereof to her appointees, and the residue to nieces and nephews living at her death, etc., and left the residue of his estate to his granddaughter. The trustees, under an order of Court, set aside a specific sum to meet the annuities and, at the death of the widow, ADMISSIONS. See EVIDENCE. Folk v. Schaef fer, 298. AFFIDAVIT OF DEFENCE. In an affidavit of defence where an allegation of fraud is relied upon, the facts constituting the fraud should be fully set out. (Super. Ct.) Max Meadows Land and Improvement Co. v. Mendenhall, 348. Copies of papers referred to in an affidavit of defence should be appended thereto, except where the affidavit alleges that false representations were made by plaintiffs themselves, as well as in the paper referred to, sufficient to sustain the affidavit without reference to the papers. Id. Where an affidavit of defence has not been offered in evidence on the trial, it cannot be commented on by counsel in addressing the jury. Mullen v. Union Central Life Ins. Co., 529. (577) AFFIDAVIT OF DEFENCE-Continued. An allegation, in an affidavit of defence to an action brought to recover for the erection of a glass mill, that defendant held certain shares of stock which were depreciated at the rate of "about $5 per share" by reason of the failure of the plaintiff to complete the mill upon the day named in the contract, is insufficient, in that it does not specify the value of the shares before and after the date when the mill was to be completed, the time when the depreciation took place, how the extent of depreciation is ascertained, how long it continued and the value of the stocks when the action was brought. Berlin Iron Bridge Co. v. Bonta, 127. An allegation in an affidavit of defence that notes were given in settlement of plaintiff's claim, without alleging that they were accepted as payment, or had been paid at maturity, is not sufficient to prevent judgment. Id. When it is sought by an association to reduce the amount recoverable by a withdrawing stockholder, on the ground that part of the sum paid in had been appropriated to the expenses of the association, the affidavit of defence must set out the by-laws, under which such appropriation has been made, the cause of the expense and the gross amount thereof. (Super. Ct.) Lepore v. Twin Cities National Building and Loan Association, 548. In an action against executors, for goods bought by them, they must file an affidavit of defence. (C. P.) Reakirt v. Flanagan, 375. McAleer, See CONTRACT. (Super. Ct.) Brightly v. 107. AGENT. The fact that a person has authorized another to sign his name to a power authorizing a sale or transfer of securities, other than those so transferred by virtue of a forged power under consideration by the court, and having no connection with the same, or the company liable thereon, will not warrant an inference that authority was given to make the transfer under consideration. Pennsylvania Co. v. Franklin Fire Ins. Co., 145. APPEAL- Continued. A decree appointing a master to organize a corporation meeting, supervise a corporate election and report to the Court the objections made to the votes of any stockholders, the facts thereof and the decision of the master, is not a final decree from which an appeal may be taken. National Transit Co. v. United States Pipe Line Co., 51. Where a bill is filed praying an account and, specially, that a certain part of an account stated be set aside, a decree refusiug the prayer to set aside the account stated and directing an account to be taken of the business, from the time covered by the account stated, is an interlocutory decree, and cannot be appealed from by the plaintiff. It does not fall within the Act of June 24, 1895, P. L. 243, which is for the benefit of the defend. ant when required to account. Lauer v. Lauer Brewing Co., 173. An order of Court dissolving an attachment under the Act of 1869, because the condition of the bond given by the plaintiff is not in accordance with the requirement of the Act of Assembly, is interlocutory and not reviewable in the appellate court. (Super. Ct.) Johnston v. Menagh, 187. There is no appeal from the refusal of the Quarter Sessions to remit a forfeiture of a recognizance. (Super. Ct.) Commonwealth v. Fogelman, 17. The right of appeal given by statute is confined to the jurisdiction of the courts of Common Pleas. Id. The Act allowing appeals from interlocutory orders is intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. (Super. Ct.) Max Meadows Land and Improvement Co. v. Mendenhall, 348. The proceeding in cases of desertion is out of the ALIEN. A non-resident alien has no right, under course of common law, no appeal is given by statute, and the act of April 26, 1855, P. L. 309, to recover damages such cases can be reviewed only by certiorari. (Super. for the death of her son, a resident of the State, occa- Ct.) Commonwealth v. Tragle, 350. sioned by the negligence of another person. Deni v. APPEAL FROM JUSTICE. The practice on Pennsylvania Railroad Co., 281. appeals from magistrates in the Common Pleas is the same as in cases commenced in that court, i. e., under the Act of 1887. (C. P.) Potts v Benzenhafer, 407. ALLEGHENY COUNTY. The office of the assistant district attorney in Allegheny county is an anomaly. It was created for a special purpose, and has been continued because it is difficult to repeal such an Act. The officer is in no way dependent on the district attorney, or accountable to him, and cannot be called on officially to assist him. He is not a first assistant district attorney within the scope and meaning of the Act of 1891. Edwards v. Allegheny County, 566. AMENDMENT. Amendments beyond plea are not as of right, under the Act of 1806, but are at common law, to be tested by a legal discretion. Varyan Co. v. Pennsylvania Glue Co., 175. APPLICATION OF PAYMENT. An insurance company cannot forfeit a policy for non-payment of premium, when there is due to the insured an amount of reversionary interest greater than the amount of premium due. Matlack v. Mutual Life Ins. Co., 73. Where an action is brought upon a promissory note more than six years old, and it appears that, within that time, interest was paid, the receipt for which does not expressly refer to the note in suit, which was one of two of the defendant, held by the plaintiff, but the plaintiff swears that the payment was on the note in suit, and there A judgment will be entered against one partner who is further evidence that, at a settlement between the par has been served with the process, if it appear that the writ ties, the defendant agreed to pay interest on said note and has been returned nihil habet as to the other partner, and continued paying interest, until the date of the payment if the record shows such has been the case, and the plain-relied on by the plaintiff, and the defendant does not deny tiff's statement fails to contain a reference to such fact, a on the stand that the payment was made on account of judgment will not be set aside because of such failure, the note in suit, the payment is sufficiently applied to said but plaintiff will be allowed to amend in the Supreme note to remove the bar of the statute of limitations. C. and C. Electric Co. v. St. Wright v. Jordan, 219. Court, nunc pro tune. Clair, 401. A lumping charge in a mechanic's lien, filed by a subcontractor, is incurably bad, and not subject of amend ment. Wharton v. Real Estate Investment Co., 33. APPEAL. Where owners of land, through which a sewer is laid, claim damages before a jury of view, even though the jury find no damages have been sustained, and assess benefits upon the land, the provisions of the ARBITRATION. The jurisdiction of the arbitration committee of the Philadelphia Stock Exchange ex tends only to transactions between members thereof, arising in or relating to the business of banker or stock broker, and where it is sought to extend the jurisdiction to a matter between a member of the exchange and a firm containing other members thereof, it must appear that the indebtedness which is the subject of dispute was |