tially sever the femoral artery, and deep enough in the abdomen to reach the peritoneum. The mortal wound thus inflicted was in a vital part of the body, and death speedily ensued. It has been said by this court that "he who uses upon the person of another, at some vital part, with manifest intention to use it upon him, a deadly weapon, such as an ax, a gun, or a knife, must, in the absence of qualifying circumstances, be presumed to know that it is likely to kill, and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act." Lanahan v. Com., 84 Pa. St. 80, 88. In view of what has been said, the first specification of error cannot be sustained.

A careful review of the law and the evidence has satisfied us that there was properly before the jury in this case competent evidence tending to prove all the facts or "ingredients" necessary to constitute the crime of murder of the first degree. That evidence, together with all the other evidence in the case, was rightly before the jury for their exclusive consideration in determining the facts submitted to them. The action of the trial court, in denying the prisoner's motion for a new trial, shows that it was satisfied with the jury's findings of fact, as well as their application of the law to the facts thus established.

The subjects of complaint in the second to the eighth specifications, inclusive, are to the charge of the court, mainly on the grounds that it was inadequate, not sufficiently specific, etc. We have already had occasion to refer at some length to the evidence, charge of the court, etc. As to the charge, we characterized it as "clear, impartial, comprehensive, and free from substantial error"; and we may now add that it is neither inadequate nor lacking in sufficient precision. The 30 requests for instructions, submitted by the prisoner's counsel, 9 of which are quoted above, were doubtless intended to cover every phase of the case as presented by the evidence. If additional instructions were required or desired, they should have been requested. Com. v. Zappe, 153 Pa. St. 498, 26 Atl. 16; Com. v. Boschino, 176 Pa. St. 115, 34 Atl. 964. We find nothing in the record that would justify us in sustaining any of these seven specifications; nor do we think either of them requires further notice.

The ninth, tenth, and eleventh specifications relate to single sentences taken from the general charge, and depend largely on the punctuation of the stenographer to sustain the objections of the prisoner's counsel. Considered in connection with the context, and the charge generally, as delivered by the court, they are free from error. In his opinion refusing the motion for a new trial, the learned judge refers to and satisfactorily explains the stenographer's errors of punctuation. It may be suggested, in passing, that such errors should be corrected by the court below before the record is certified to us.

There was no reversible error in not offering in evidence the garment referred to in the twelfth specification. There is nothing to indicate that the prisoner was in any way prejudiced by the commonwealth's omission; nor does it appear that it was not equally in the power of the prisoner to put it in evidence himself, if he so desired.

There is no merit in the thirteenth specification. What was done for the comfort and convenience of jurors who were temporarily indisposed during the trial was a matter resting on the sound discretion of the court, and there is not a particle of evidence to show any abuse of that discretion.

The fourteenth specification cannot be sustained. The clerical error of the court's officer in writing the wrong number of the term, in recording the sentence, did not in any way injure the prisoner.

In view of what the learned trial judge has said in his opinion denying the motion for a new trial, further comment on the specifications of error is not required. The case appears to have been carefully and ably tried on the part of the court as well as counsel. The responsibility of determining the facts, and applying to them the law as laid down by the court, devolved on the jury. Under the instructions given to them, it was their exclusive duty to weigh and consider all the evidence, and determine whether the prisoner was guilty of murder of the first degree, or of murder of the second degree, or of manslaughter, or not guilty of any crime included in the indictment. That duty was fairly and forcibly enjoined upon them by the learned trial judge in the concluding paragraph of his charge. That it was faithfully and conscientiously performed we have no reason to doubt.

We have given to this case that careful consideration which, in view of the gravity of the judgment, its importance to the prisoner demands, and the result is that we find no error in the record that would justify us in disturbing the verdict or the judgment entered thereon. The judgment is therefore affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution.

LEIBERT v. HEITZ.

(Supreme Court of Pennsylvania. Dec. 30, 1899.)

ASSUMPSIT-GROUND RENT-EVIDENCE-SET

OFF.

1. In defense to assumpsit for ground rent, defendant pleaded as a set-off the breach of plaintiff's oral agreement, inducing the conveyance, to procure a syndicate to open a street adjoining the premises, in accordance with an agreement which it was alleged plaintiff had stated the syndicate had made with him. In proof, he offered evidence of an agreement to procure the syndicate to dedicate land for such street, and of a demand for its performance. Held, that the offer was properly rejected, as it was not germane to the set-off pleaded.

2. In assumpsit for ground rent, a set-off based on unliquidated damages which would not only

satisfy the arrears of ground rent sued for, but would extinguish the principal, ought not to be allowed.

Appeal from court of common pleas, Philadelphia county.

Assumpsit by William W. Leibert against Jacob R. Heitz. From a judgment in favor of plaintiff, James Arthur, intervener, appeals. Affirmed.

The following are the specifications of er

ror:

"The court below erred:

"(1) In overruling the defendant's offer of proof by James Arthur, a witness and terretenant, which was as follows: 'I offer to prove by this witness that he is the terretenant and owner of the lot of ground mentioned in the ground-rent deed given by William W. Leibert to Jacob R. Heitz, dated May 15, 1896, recorded in Deed Book W, M, G, No. 52, p. 465, under a deed from Jacob R. Heitz and wife to himself, bearing the same date, recorded in Deed Book W, M, G, No. 14, p. 410; that prior to the execution of this deed there was an agreement in writing between the plaintiff and defendant, and that the said agreement provided for the conveyance by Leibert to Arthur of the lot of ground in question, for the consideration of twenty-six thousand six hundred dollars, and that the said Leibert agreed in said agreement to loan to the said James Arthur, or his assigns, the sum of sixteen thousand two hundred dollars upon the ground which he was by said agreement to convey, and to be secured by reserving at the time of said conveyance a yearly ground rent of nine hundred and seventy-two dollars; that the name of Jacob R. Heitz, in said conveyances, was simply used as a channel of title, for the purpose of reserving the said ground rent; that prior to the execution of the said agreement, and at the time of the execution thereof, and as an inducing cause for its execution by James Arthur, the said Leibert stated to the said Arthur that he had a contract in writing with the Drexel Syndicate, to whom he had conveyed a tract of land adjoining the tract of land in question, whereby they agreed to open Mower street at any time upon his (Leibert's) demand, and that he (the said Leibert) would procure the Drexel Syndicate to open the said Mower street at any time upon his (Arthur's) demand or request; that the said statement thus made by Leibert was the inducing cause for the said agreement, and that the said James Arthur made the said agreement upon the faith of the said statement; that subsequently, when it was ascertained by Mr. Leibert that his said agreement was not in writing, he made the statement to the said James Arthur, prior to the execution of the deed in suit, that he had such an agreement with the Drexel Syndicate, and that they would open Mower street at any time upon his (Leibert's) demand, and that he (Leibert) would have the Drexel Syndicate open Mower street at any time upon Mr. Arthur's demand; that

the said James Arthur parted with the consideration of the said deed upon the faith of the said statement, and subsequently demanded of Mr. Leibert that he have the Drexel Syndicate open the said Mower street to Carpenter street, which the said Leibert has not done; that the value of the said land without Mower street opened into Carpenter street is about $13,000, and that the value of the said land with Mower street opened into Carpenter street is about $30,000; and that the said James Arthur has been damaged by the breach of this contract on the part of Leibert in the sum of $17,000.'

"(2) In overruling the defendant's offer of proof by James Arthur, a witness and terretenant, which was as follows: 'Defendant also offers to prove by the witness that at the time of the settlement, and delivery of the deed upon which this suit is brought, there were present, besides the plaintiff and defendant Arthur, Mr. Samuel C. Diehl and Mr. Rigby, an officer of the Land Title & Trust Company, and that it was stated by Mr. Leibert, in response to the question by Mr. Rigby whether he had yet found the agreement respecting Mower street, that he had not found it, but that it was part of his agreement to open Mower street through the ground of the Drexel Syndicate when demanded by Arthur, and that the defendant James Arthur parted with the consideration expressed in the said deed and in the said contract relying on this statement and promise, and then and there requested Mr. Leibert to have the Drexel Syndicate open the said Mower street; that upon request of Mr. Arthur subsequently the said Leibert, by his acts and writing, made an effort to have the Drexel Syndicate open the said Mower street into Carpenter street; and that by his letter to James Arthur, under date of January 21, 1897, he stated as follows: "I have yours of the 20th inst. I am of the opinion that the letters to which Mr. Ritter refers,-one to Wendell & Smith, the other to me at the time of the purchase of lot on Cresheim road, the latter of which is a myth; the other as not having been quoted as he wrote to them, has been for some object, and it may be to crawl out of the position he took and as expressed by him in his letter to W. & S. He now sees he is an antagonist to Drexel Syndicate, whose agent he was. I declined to sell the lot unless this was conceded,-the opening of Mower street; and I have no letter from Mr. Ritter declining to accede to this, nor have I any recollection that any objection was made to this. The other demand made by me was to have the earth taken from the cellars of my houses erected on the lots to be placed in the hollow part of my lot. This they concluded not to accept, and, as soon as it is seen by me that there might be enough dirt taken from cellars of houses that might be dug on my own premises, I yielded to that portion; but to the other it was never done. He has changed front, and is afraid even of the copy

of the letter written, as he knows he agreed with me that the syndicate was to open the street whenever demanded by me, and to sign a petition to open, as did not wish the street only put through as far as the Orphans' Home property, but to be cut through both the Orphans' Home and Garret properties, to the upper end of said street, as my object in this was two frontages on Mower street, on a street cut through and open each end from Carpenter to Mount Pleasant. Make contract with a responsible person to build as he may propose, conditioned for the opening of Mower street; then I will try and get it opened, and it may be I will give bond to the city for any damages sustained. It appears now as if it would be better to do this than fail to have the opening, but this is not desirable if you cannot find a purchaser for the lot. Now, move in the matter at once, find your man, and I will see what can be done to help you. Yours, W. W. Leibert." "(3) In directing the jury to render a verdict for the plaintiff.

999

"(4) In permitting judgment to be entered for the plaintiff in $515.16."

Frederick J. Geiger, for appellant. William C. Hannis, for appellee.

MCCOLLUM, J. This was an action of assumpsit for the recovery of arrears of ground rent. It was brought against Jacob R. Heitz, to whom the deed in which the ground rent was reserved was made by the plaintiff. Heitz interposed no defense to the action, but James Arthur, under a deed from him, intervened as terre-tenant. The plaintiff put in evidence his deed to Heitz, and rested. Thereupon Arthur made two offers of evidence, which were rejected; and, there being no other offer made, the court directed a verdict for the amount of the plaintiff's claim. From the judgment entered on the verdict this appeal was taken.

It appears that there was a contract entered into between Leibert and Arthur on the 24th of April, 1896, by which the former agreed to sell, and the latter to buy, the lot described in the deed from Leibert to Heitz, and in the deed from Heitz to Arthur. The contract was prepared by Arthur, and it was provided therein that Leibert, upon the demand of Arthur, should dedicate by deed, at his own cost, to the city, the whole bed of Mower street, 50 feet wide, adjoining the lot above referred to, and lying between the same and other ground of Leibert. This provision in the contract is noted herein as proper for consideration in connection with the rejected offers. It should also be noted here that it was agreed on the trial that Leibert had complied with the provisions aforesaid. The offers did not allege fraud, accident, or mistake on the part of Leibert, but averred that he stated to Arthur, prior to and at the time of the execution of the contract, and as an inducement to the execution of the same,

that he had a contract with the Drexel Syndicate, by which they were to open Mower street at any time upon his demand, and that he would procure them to open it at any time on Arthur's request that he should do so. It is a singular circumstance that the party who prepared the contract with Leibert, and included in it the provision hereinbefore referred to, omitted from it an oral agreement which induced him to enter into said contract, and a breach of which he now alleges would entitle him to damages in the sum of $17,000, from which he could pay the arrears of the ground rent sued for, and for the balance of which he could have a certificate under the defalcation act. It is also noticeable that the rejected offers contain no denial by Arthur of the existence of an agreement by the syndicate to open Mower street, nor any assertion by Arthur of a refusal by Leibert to demand of the syndicate performance of their agreement with him. It should also be noted here that the offers of evidence were not germane to the defense set up in the notice of special matter, and that an agreement of the syndicate to dedicate to the city of Philadelphia so much of their land as formed the bed of Mower street was not an agreement to open said street. Besides, it is quite clear that the rejection of evidence not relevant to the defense presented by the pleadings furnishes no ground for reversing a judgment.

We have duly considered the rejected offers, and are unable to find in them any sufficient warrant for the appellant's claim as made. There is no such measure of damages admissible in the suit as is contended for. The allowance of it might result in a set-off which would not only satisfy the arrears of ground rent sued for, but would extinguish the principal. A set-off based upon unliquidated damages, measured as proposed, is not applicable to this action. Set-offs are allowed in order to prevent multiplicity of actions, and ought not to be allowed so as to be themselves the cause of new disputes. If allowed, they might "throw open a perpetual rent to a perpetual dispute by an unwritten alteration of its amount, and thus make set-offs to be the cause of strifes, instead of a way of ending them." Mangle v. Stiles, 31 Pa. St. 72, and Trust Co. v. Fiss, 147 Pa. St. 232, 23 Atl. 560. The specifications of error are overruled, and the judgment is affirmed.

SAUERS v. UNION TRACTION CO. (Supreme Court of Pennsylvania. Dec. 30, 1899.)

STREET RAILROADS-COLLISIONS-NEGLI

GENCE.

Where the speed of a street car is not unreasonable, and the motorman spares no effort to check it, so as to avoid collision with a person, who, while proceeding near the track, suddenly attempts to cross ahead of the car, the company is not negligent.

Sterrett, C. J., dissenting.

Appeal from court of common pleas, Philadelphia county.

Action by Charles Henry Sauers against the Union Traction Company to recover damages for injuries sustained through the alleged negligence of defendant. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff was riding a bicycle along the track of a street-car company. On reaching the center of an intersecting street, he saw a car approaching on an adjoining track. Without any warning, he turned sharply to cross such other track, but was impeded by a wagon proceeding in the same direction as himself, but on the far side of both tracks. In an effort to escape the wagon, he suddenly swerved towards the car, and collided with it.

M. Hampton Todd, for appellant. William Henry Lex and Thomas Leaming, for appellee.

MCCOLLUM, J. In this case the court below, upon a careful consideration of all the evidence, directed the jury to render a verdict for the defendant. The direction was based on the failure of the plaintiff to establish negligence on the part of the company. The court was also of the opinion that the alleged speed of the car was not the cause of, or had anything to do with, the accident. It being clear to the court that the testimony of the plaintiff and that of the witnesses called by him was not sufficient to charge the motorman with negligence, it was not deemed necessary to determine whether the plaintiff was . properly chargeable with it. His failure to establish a fact essential to the maintenance of his suit was in itself sufficient to defeat a recovery. A careful examination of the evidence in the case shows that the plaintiff was partially, if not wholly, responsible for a condition which resulted in the collision complained of. It was sudden and unexpected, and the motorman could not have foreseen it. Previous to the discovery of it, he had a clear track, and no reason for apprehending the disaster that immediately followed it. The probability is that the plaintiff, on discovering the position and direction of the wagon, which he seems to have regarded as an obstruction to his passage in the direction he was riding, lost his self-possession, and dashed in the direction which brought him in contract with an approaching car. The moment he appeared near to or upon the defendant company's track in his effort to cross ahead of the car, the motorman, observing his position, and the danger he was exposed to, did all in his power to prevent a collision. His efforts in this direction were unavailing, and the plaintiff was struck by the car a moment before it was stopped.

The court below did not err in the conclusion reached there respecting the charge of negligence on the part of the defendant company or its employé. It was not shown that the speed of the car, when the plaintiff turned to cross the track in front of it, was unrea

sonable. but it plainly appeared in the evidence presented by him that no effort was spared by the motorman to stop it. It was the close proximity of the car to the plaintiff in his attempt to cross the track ahead of it that made the collision inevitable. It was not the fault of the motorman that the plaintiff suddenly and unexpectedly came upon the track in front of the car. We are of the opinion, therefore, that the court below rightly held that the plaintiff's suit was not maintainable on the evidence presented by him. The cases are numerous which deny a recovery upon such a state of facts as is disclosed in the case at bar. Judgment affirmed.

Plaintiff was riding a bicycle down a steep hill, and at a sharp turn in the road, which he knew was dangerous, he collided with a team ascending the hill. The evidence conflicted as to whether he was on the right or left side of the road, but it clearly established that there was sufficient room for the bicycle to pass on either side. Held, that he could not recover for injuries sustained.

Appeal from court of common pleas, Philadelphia county.

Action by James Rowland, Jr., by his next friend and father, James Rowland, against John Wanamaker and others, trading as John Wanamaker. From a judgment for defendants, plaintiff appeals. Affirmed.

Charles H. Pile and S. Edwin Megargee, for appellant. Jones, Carson & Beeber, for appellees.

McCOLLUM, J. This suit was instituted for the recovery of damages for personal injuries caused by a collision with one of the defendants' delivery wagons. On the day of the accident, plaintiff and a schoolgirl acquaintance were riding on their bicycles on the road leading from Ashbourne to Cheltenham, a short distance north of the city of Philadelphia. Not quite halfway down a hill on this road is a sudden bend in the road, which obstructs the view of travelers approaching from either direction. The curve was dangerous, also, from the fact that the grade was steep. Several other bicycle riders, on different occasions, in riding rapidly down this hill, had been unable to turn on reaching this point, and had ridden over the wall on the further side of the road. Plaintiff testified that he knew of this danger, and was accordingly riding slowly, and back pedaling. He testified as follows with regard to the accident: "The gear on my wheel was larger than the one on hers, so that I got to the top of the hill first. When I got down to

this turn, I just had a glimpse of the horses, and I did not know anything after that. Q. What side of the road were you on? A. The right side, my right-hand side." His companion testified as follows: "I was going down, and using my brake, when I heard some sort of a commotion, and men calling, and I got there just in time to see him falling, it seemed, under the horses' feet, and near the wheel of the wagon. I rode down on the right-hand side, and when I got there he was right in front of me. Q. Where was the wagon? A. The right wheels were about in the center of the road, and the left front wheel of the wagon was right at his body." None of the plaintiff's other witnesses saw the accident, but several of them were in the vicinity of it, and reached the place soon after it occurred. Neither their testimony, nor that of the plaintiff or his companion, considered separately or combined, established negligence on the part of the defendants, or furnished ground for an inference of it. This is the conclusion reached by the learned court below, and in it we concur. The concurrence is the result of a careful reading and consideration of all the testimony presented by the plaintiff. If the defendants had moved for a nonsuit at the close of the plaintiff's evidence in chief, it would have been the plain duty of the court to grant it. No motion for a nonsuit having been made, the testimony on the part of the defendants was presented, and, at the conclusion of it, it was followed by the testimony of the plaintiff in rebuttal. The testimony of the four witnesses called by the defendants showed that the plaintiff, on nearing the curve, turned from the righthand side across the road, to the left-hand side, where he came in contact with the horses and wagon then ascending the hill. It was not controverted in rebuttal. It is not, however, a matter of vital importance to determine at what point in the road the horses and wagon were at the time of the collision. There was sufficient room for the bicycle to pass to the right or left of the team. The evidence clearly established this fact, and did not admit of a different conclusion. The testimony of the plaintiff's companion in the ride towards Cheltenham was alone sufficient to sustain it. There is no evidence in the case on which to base a charge of negligence against the defendants or their driver. The question whether the plaintiff was properly chargeable with negligence need not, therefore, be determined. Judgment affirmed.

out the knowledge of defendants or authority of his employer. His work had no connection with the work for which the scaffold was built, and his presence there was voluntary. Held, that there could be no recovery for his death, caused by the scaffold breaking.

Appeal from court of common pleas, Philadelphia county.

Action by Margaret L. Brady against Prettyman & Parish. From a judgment for defendants, plaintiff appeals. Affirmed.

Charles L. Smyth, Christopher H. Murray, and Thad. L. Vanderslice, for appellant.

MCCOLLUM, J. While Charles Brady, with Hoffner and Rowan, were upon a scaffold erected by direction of defendants, it gave way, and they, with it, fell to the ground. The injuries which Brady received by his fall resulted in his death three days after the occurrence, and this suit was brought by his widow to recover damages therefor. On the trial of the case evidence was admitted to show that the scaffold was not properly constructed, and this was answered by evidence showing that the scaffold was built for the use of the cornice men, and that it was constructed in the usual and ordinary way that scaffolds for such purposes are built. It is not necessary, however, to consider this evidence in detail, because the material and controlling question is whether Brady was lawfully upon the scaffold at the time it gave way. It is conceded that he was not an employé of the defendants, and that they were not aware of his presence upon the scaffold before or at the time of its fall. He was at no time in their service, nor authorized by his employers to go upon the scaffold. His presence there was voluntary, and an unwarranted act on his part. He was in the service of Simpson & Murray, who had a contract with the defendants to do the slag roofing and the tin work to complete 66 houses. The work that Brady was employed to do had no connection with the work for which the scaffold was built. The work done by the cornice men was entirely distinct from the work done by the men who did the slag roofing and tin work under the contract of Simpson & Murray with the defendants.

Brady was not called to the scaffold in the performance of any work under said contract, and, strictly speaking, he had no right or business there. Upon the admitted and established facts in the case, the plaintiff was not entitled to recover. The assignment of error is therefore overruled, and the judgment entered by the court below is affirmed.

BRADY v. PRETTYMAN et al. (Supreme Court of Pennsylvania. Dec. 30, 1899.)

NEGLIGENCE-MASTER AND SERVANT-TRESPASSERS.

Defendants erected a scaffold for the use of cornice men, and deceased, an employé of one having a contract with defendants to do certain roofing and tin work, went on the scaffold, with

FODELL v. MILLER. (Supreme Court of Pennsylvania.

1899.)

Dec. 30,

BENEFICIAL ASSOCIATIONS-FRAUDULENT

REPRESENTATIONS-JUDGMENT.

A beneficial association was authorized to create a fund for relief of members and their families. Its constitution recited its purpose to