with, and that the labor for which suit is brought was contracted for with citizens of the United States. The statement does not set forth these facts. Deponent is informed, so believes, and here avers that none of the parties mentioned in the said statement as performing the labor sued for was such a citizen as required by the said act of assembly. Deponent further avers that the said defendant and surety, the Union Surety & Guaranty Company, upon receipt of notice of the claims in suit, called upon and demanded of the plaintiff that the money it then had on hand, and which was due the said McLinden, be applied to the payment of said claims, or should be paid to the said surety company that the same might be so applied if required by law; and that the plaintiff declined said request, and paid said money to said McLinden, although it had on hand sufficient to pay said claims in suit." In a supplementary affidavit of defense the Union Surety & Guaranty Company averred: "Deponent is informed, and so believes, that the use plaintiffs named in the plaintiff's statement of his cause of action were general employés and laborers employed by said James McLinden, and your deponent is informed, so believes, and here avers that none of the said parties mentioned in said statement as performing the labor sued for was a citizen of the United States, as required by the ordinance of councils as of December 16, 1896, a copy of which is hereto attached and made part of this affidavit."

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Alex. Simpson, Jr., and David J. Myers, Jr., for appellants. Eugene Raymond, for appellee.

FELL, J. This action is by the city of Philadelphia, to the use of a number of persons who were employed as day laborers in grading streets. It is founded on two bonds (included in the same action by agreement of the parties) given to the city by the contractor and his surety to secure the prompt payment of all amounts due "for labor and materials furnished and supplied or performed in and about the work." The work was done in accordance with the contract, and the contractor was paid in full by the city. The surety notified the city, at a time when the amount due the contractor exceeded the amount of the claims for labor, not to pay the balance due him until he had paid the claimants. This notice was disregarded by the city. Three grounds of defense were presented by the affidavit filed by the surety: (1) That the use plaintiffs, being day laborers, were not entitled to the protection of the bond; (2) that the surety was released because of the payment to the contractor by the city after notice; (3) that

the laborers were aliens, employed by the contractor in violation of the act of assembly of June 25, 1895 (P. L. 269), and of the ordinance of December 16, 1896, and of the terms of the contract.

The ordinance of March 30, 1896, provides that all persons entering into contracts with the city for the construction or repair of public works shall give, in addition to the usual bond for the faithful performance of the work, another bond with the condition that they shall pay all persons supplying them with labor or materials; and it authorizes such persons to bring suit in the name of the city for their benefit against a defaulting contractor and his surety. The power of the city to exact the additional bond was upheld in Philadelphia v. Stewart, 195 Pa. 309, 45 Atl. 1093, in which it was decided that the condition was not ultra vires and contrary to public policy, as it was the right of the city to protect itself against the risk of defective materials and workmanship in the construction of its public works, against which there is no right of lien, by exacting assurance from the contractor that he will pay the debts which he incurs. It is now argued in support of the defendant's first contention that, as the purpose of the ordinance and bond is to give to those supplying materials and labor the same protection they would have if the supply had been to a private party, the construction which precludes a mechanic or laborer from maintaining a mechanic's lien should be adopted, and that it should be held that one who performs labor is not within the intent of the ordinance or of the bond given to carry out its provisions. This contention cannot be sustained. The municipal policy was to protect the city by securing the claims of those who furnished materials or labor, and the language of the bond to pay those who performed labor is too clear to admit of doubt.

The notice not to pay the contractor would have exonerated the surety if the payment was one which the city ought to have withheld; but it was not. The city was under no obligation to pay the claimants, nor to see that they were paid. They had no claim upon the fund in its possession which could be enforced, and the city could not retain the money in order that the creditors of the contractor or his surety could reach it by any process. Lesley v. Kite, 192 Pa. 268, 43 Atl. 959. The city had no direct financial interest in the bond, for, although it was a nominal plaintiff, it was merely a trustee for those who might become beneficially interested. Philadelphia v. Stewart, 201 Pa. 526, 51 Atl. 348. It is equally clear that the surety cannot set up the violation of the law and of the contract forbidding the employment or alien labor by its principal as a defense in an action on the bond.

The judgment is affirmed.

(205 Pa. 168)

MILLER v. CURE et al. (Supreme Court of Pennsylvania. March 9, 1903.)

EJECTMENT-INSTRUCTIONS-BOUNDARIES -PROVINCE OF COURT AND JURY.

1. Where, in an action to determine the boundaries of land, the existence of a natural object is clearly proven, an instruction that it corresponds to the description in the writing, and that the jury should so find, is properly given.

2. A deed called, as one of the boundaries of the land reserved, for an "outcrop of the conglomerate rock." There was a conspicuous ledge of such rock, over 1,000 feet in length, which closed the boundaries of the reservation. Held not error to instruct that this ledge was the boundary called for, though there was a small, inconspicuous ledge of the same rock, about 200 feet long, which did not close up the boundary, and which was a spur from the large ledge.

Appeal from Court of Common Pleas, Lackawanna County; Newcomb, Judge.

Action by W. G. Miller against John Cure and George W. Cramer. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

Argued before DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

A. A. Vosburg, S. B. Price, and C. W. Dawson, for appellant. W. S. Diehl, for appellees.

PER CURIAM. This was an ejectment for about 13 acres of land in the borough of Blakely, Lackawanna county. Both parties claimed under one Hartwell, who on December 19, 1882, conveyed by written agreement to plaintiff a tract of 110 acres, but excepting and reserving thereout all that portion on the east corner bounded on two sides by the Oakley and Sherrard lands, and then follows this language: "And on the remaining sides by the outcrop of the conglomerate rock." Afterwards this piece reserved was, on June 2, 1888, conveyed by almost exactly the same description to defendants. When Hartwell conveyed to Miller, they went upon the land and viewed its boundaries. There was a ledge about 50 feet high, of what was undisputedly the conglomerate rock, extending for 1,300 feet, almost up to the Oakley lot. Several rods east of this there was another small ledge, apparently a spur from the larger ledge, but it only extended about 200 feet, and did not nearly reach the Oakley and Sherrard land. The identity of the boundary rock in the contract with that on the ground gave rise to the dispute. If the boundary meant in the writing was the large ledge, the reservation contained about 18 acres; if the small ledge, only 4.

The court decided that the large ledge was meant by the description, which, of course, gave the verdict to defendants. is argued that the court erred in not leaving

2. See Boundaries, vol. 8, Cent. Dig. §§ 42,43. 54 A.-46

It

this question to the jury. In nearly all cases where there is a dispute, the identity of a monument on the ground with that in the deed, contract, or survey is a question for the jury; but there are exceptions. Where the existence of a natural or artificial object on the ground is undoubtedly proven or admitted, the court may say to the jury that it corresponds to the description in the writing, and they should so find. Where there is doubt as to its identity, or conflicting evidence, it is clearly a question of fact for the jury. Here the writing called for the outcrop of the conglomerate rock. The fifty-foot ledge, obviously, was the real outcrop of that rock. It was plainly in sight when Hartwell, the grantor, and Miller, the grantee, were determining the boundary to be written in the contract. Hartwell testified that was the only outcrop he saw, and the one he tried to insert in the contract. It was about 1,300 feet in length, and closed the boundaries of the reservation. While there was evidence of the small ledge, and that its composition was, geologically, conglomerate rock, it was inconspicuous, and a mere spur from the large ledge, which was the real outcrop of the conglomerate. Besides, it was only about 200 feet long, and did not reach to close up the boundary to either the Stewart or Sherrard lots. We think the court was right in holding that, on the undisputed evidence, the description in the contract could be applied only with certainty to the large ledge, and could not, except on merest conjecture, be applied to the small one, and therefore properly directed a nonsuit.

The judgment is affirmed.

(205 Pa. 159)

LUTZ et al. v. ROYAL INS. CO. OF LIVERPOOL.

(Supreme Court of Pennsylvania. Feb. 23. 1903.)

FIRE INSURANCE-ACTION ON POLICY

DEFENSES.

1. In an action on an insurance policy covering photographic supplies there was evidence of a provision that the policy should be void if there was kept on the premises gunpowder or other explosives. It was customary for dealers in photographic supplies to sell small packages of flashlight powder, but not to manufacture it on the premises. It appeared that the firm manufactured it in a portion of the building which they occupied, without the knowledge of the insurance company. Held, that a binding instruction for defendant should have been given.

Appeal from Court of Common Pleas, Philadelphia County; Wiltbank, Judge.

Action by Francis A. R. Lutz and others against the Royal Insurance Company of Liverpool. Judgment for plaintiffs. Defendant appeals. Reversed.

Argued before MITCHELL, DEAN, BROWN, MESTREZAT, and POTTER, JJ.

Henry P. Brown and Thomas W. Barlow, for appellant. S. Edwin Megargee and E. Hunn Hanson, for appellees.

DEAN, J. The policy issued by defendant to plaintiffs on which this suit was brought is dated January 4, 1900, and indemnifies plaintiffs in sum of $6,000 for one year against loss by fire on building No. 123 South Eleventh street, in Philadelphia. It was a renewal of a one-year policy on same building issued January 4, 1899. After the first policy was issued, in July, 1899, plaintiffs let three of the floors to the Thomas H. McCollin Company, a company engaged in the business of dealing in photographic supplies, and that company continued as tenants down to March 22, 1900, at which date there was an explosion, immediately followed by a fire, which destroyed the building. Charles Warren, who was an employé of the McCollin Company, and mixed explosives for that company, was on the fifth floor, at work, at the time of the explosion, and was killed. Among other articles used in the photograph business and sold by the company was a flashlight powder called "Blitz Pulver," a high explosive. The company not only dealt in and sold this powder, but also manufactured it on the floor occupied by it. For the greater part, the policy was on the usual printed form of the company, and among other printed conditions is the following: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if (any usage or custom of trade to the contrary notwithstanding) there be kept, used or allowed on the above described premises * * gunpowder exceeding 25 pounds in quantity, naphtha, nitroglycerine or other explosives," etc. In addition to this printed condition, there was the typewritten provision: "Privilege to be occupied as at present or for purposes not more hazardous." It was customary for dealers in photographic supplies in Philadelphia to put up and sell in small packages the flashlight powder called "Blitz Pulver." It was not customary for dealers to manufacture it on the premises where sold.

The insurance company refused to pay the loss, on the ground that the conditions quoted had been violated, and thereupon this suit was brought. At the trial but few other material facts appeared than those already stated. The defendant requested the court to charge the jury in its second and third written points as follows: "If the jury believe that an explosive was manufactured on the premises in question at the time of the explosion, this was contrary to the contract of insurance, and avoided the policy, and there can be no recovery thereon. Answer. For answer to that point I refer you to my general charge." "Under all the evidence in the case the verdict of the jury must be for defendant. Answer. That point I refuse."

He

Although the learned judge of the court below left it as a question of fact for the jury to find whether the McCollin Company was at the time manufacturing the flashlight powder, the evidence that it was was practically undisputed, and he says "it would seem that there could be no question" about it. really might very properly have instructed them that the fact was established. So we shall treat it as a fact, the same as if found by the jury. The court's reference to its general charge on the subject embraced in the second point is thus stated: "If you find that the ordinary conduct of the business in which the Thomas H. McCollin Company was engaged at the time the risk was accepted by the insurance company involved the manufacture of flashlight powder, and if, on the first point, under my instructions, you find in favor of the plaintiff, then your verIdict should be for the plaintiff. If the ordinary course of the business, however, was that it involved dealing in flashlight powder, and did not involve its manufacture, then I instruct you that an explosive was kept, used, or allowed on the premises, contrary to the provisions of the policy, and that in such case your verdict should be for the defendant." This, although not a peremptory negative or affirmative, is a very clear answer, fully responsive to the points. There was a verdict for plaintiffs, and defendant appeals, and complains of the answers to the two points as

error.

Counsel for appellees here rely on Citizens' Ins. Co. v. McLaughlin, 53 Pa. 485, and Lancaster Silver Plate Co. v. Fire Ins. Co., 170 Pa. 151, 32 Atl. 613, for the law vindicating this instruction. We think there is a clear distinction in the facts between those cases and this. In both cases cited-one a leather factory, the other a silver-plate factory-the prohibited articles, benzole and gasoline, were in constant use in the manufacture of the product of the factories, and absolutely necessary in small quantities to carrying on the business. We held that, if the use was a necessary one in carrying on the business, it must be presumed that the intent of the parties was to insure the subject of the contract as it then existed, and as it would continue to be during the life of the policy, notwithstanding the printed condition. In this case, as the learned judge said to the jury, there 'was no "direct evidence" that the insurance company knew that the McCollin Company was manufacturing its own flashlight powder on the premises when the policy was issued. Under the evidence it might fairly be presumed that the photograph supply company dealt in that article, and kept it in small quantities for sale on the premises. But, as there is no presumption from the nature of the business and the subject of the contract that the insurance company knew it was also manufactured on the premises, the burden was on plaintiffs to establish by

satisfactory evidence that the company actually did know. It might be presumed to know the ordinary methods and customs of such dealers and just here comes in the question, what was the custom? Not one dealer or manufacturer-and a number were called-testified that it was a necessary or usual part of the business of a dealer in photographic supplies to manufacture flash powder on the premises where sold. On the contrary, the evidence was that it was neither usual nor necessary, the custom of dealers being to buy it of manufacturers, whose factories were generally located in the suburbs of the city, in small quantities, then put up and sell it in small half-ounce packages. Not a single witness except McCollin testified it was customary for the dealer to manufacture the powder, and the substance of his testimony is that it was his custom to do it. The testimony wholly failed to show such custom, hence there could be no inference that the insurance company knew of a custom which did not exist. Nor is there any evidence, direct or indirect, that it knew as a fact at the date of the contract that the McCollin Company manufactured the powder upon the premises.

Was, then, the building at the date of the explosion and fire occupied "for a purpose more hazardous" than at the date of the policy? As before noticed from the subject of the contract, it would be fairly presumed that the insurance company knew, or ought to have known, that a dealer in photographic supplies kept on the premises and sold small quantities of flashlight powder, but there is no presumption, and no evidence, that the insured knew he manufactured it there. Then, did the use of the premises for manufacture increase the hazard, within the typewritten condition of the policy? Flashlight powder is composed of quite a number of chemical materials, which, when compounded in certain proportions, it is testified by chemists, become a high explosive. It scarcely needed further proof that the bringing together in one room of a number of materials which separately were comparatively harmless, yet together made a high explosive, greatly increased the peril of fire from explosion, though further evidence on that point by manufacturers and others was given. One manufacturer (Buchanan) testified that he had stopped manufacturing it altogether because there were too many coroner's juries to keep it up in his establishment. There was other testimony to the same effect, and there was none to the contrary. The case was well and carefully tried on the theory adopted by the learned judge of the court, but, in our view, there was not sufficient evidence to support it. The defendant's second and third points should have been affirmed without qualification.

The judgment is therefore reversed, and judgment entered for defendant.

STATE. EATON.

(97 Me. 289)

(Supreme Judicial Court of Maine. Feb. 5, 1903.)

INTOXICATING LIQUORS ILLEGAL SALESKNOWLEDGE AND BELIEF-INTENT.

1. If a person, other than those having statutory authorization, sells liquors which are in fact intoxicating, but which he believes and has good reason to believe are not intoxicating, he nevertheless violates the statute prohibiting the sale of intoxicating liquors, and is subject to the statutory punishment therefor. The prohibition is not limited to knowingly selling without authority. It is absolute, without exception.

(Official.)

Exceptions from Supreme Judicial Court, Franklin County.

Clarence Eaton was convicted of a sale of intoxicating liquors, and excepts. Exceptions overruled.

The defendant, after conviction, was allowed a bill of exceptions as follows:

There was evidence tending to show that on July 3, 1902, the respondent put up a case of beer of some kind, and sent it to one Augustus H. Bradford; also that Bradford delivered a bottle of the same to his son, who delivered the same to one Nelson Gould, who delivered the same to Prof. W. G. Mallett, who claimed to analyze the same, and found it contained 5.44 per cent. alcohol. Respondent testified that the beer he sent to Bradford was what is known in the market as "Uno Beer," that it was not intoxicating, and that if Mallett made a correct analysis of a bottle of beer which contained 5.44 per cent. alcohol, which came from that case, there must have been some mistake in putting up the beer; that he did not intend to sell anything but Uno beer, which is not intoxicating.

On this point the presiding Justice instructed the jury as follows:

"It is unnecessary, I presume, to instruct you, but I will do so, that if there was any misapprehension or error on the part of the defendant or any of his agents in delivering a strong beer, a beer unadulterated, when he intended to deliver an adulterated beer, that would not relieve him from the responsibility of selling liquor which was intoxicating, if you find it to be intoxicating in fact."

Argued before WISWELL, C. J., and EMERY, STROUT, SAVAGE, and SPEAR, JJ. H. S. Wing, Co. Atty., for the State. H. L. Whitcomb, for defendant.

EMERY, J. The defendant was convicted of selling intoxicating liquor without any lawful license or authority therefor. He claimed that he did not know the liquor (beer) was intoxicating, had good reason to believe it was not intoxicating, and did not intend to sell anything intoxicating. The presiding justice ruled that this claim, if

established, was no defense. The defendant excepted.

The question presented is practically this: Is a person permitted by the statute to sell without license intoxicating liquor if he believes, and has reason to believe, that it is not intoxicating? Certainly not. The prohibition is not limited to knowingly selling without license. It is absolute, without exception. While many statutes make knowledge or wicked intent, or both, essential to constitute the offense forbidden, the statute forbidding the sale of intoxicating liquor does not. It is like those statutes considered in State v. Goodenow, 65 Me. 30, and State v. Huff, 89 Me. 521, 36 Atl. 1000, where the act was held to constitute the offense, though the defendants did not think they were violating the statute.

A person proposing to sell liquor must make sure, at his peril, that it is not intoxicating. If it be in fact intoxicating, his erroneous belief that it is not intoxicating, however sincere and apparently well founded, will not save him from punishment. It has been repeatedly so held in Massachusetts under similar statutes. Com. v. Boynton, 2 Allen, 160; Com. v. Hallett, 103 Mass. 452; Com. v. O'Kean, 152 Mass. 584, 26 N.. E. 97.

Exceptions overruled. Judgment for the

state.

(97 Me. 293)

RICH v. HAYES.

(Supreme Judicial Court of Maine. Feb. 5, 1903.)

EVIDENCE-ADMISSIBILITY - PRIVATE MEMORANDA-PRACTICE-JURIES-NEW TRIAL. 1. A written statement of a third party containing material evidence against one of the parties to a suit is not admissible in evidence.

2. If such a written statement, though not admitted in evidence, is allowed at the close of the trial to be taken by the jury to their room with other papers, it is prejudicial error, and a new trial will be granted.

3. That such written statement is upon the same paper as a statement which is admissible, and was formally admitted in evidence, and which may properly be allowed to be taken to the jury room, it must nevertheless be withheld from the jury, either by separation, or complete obliteration, or in some other effectual mode.

(Official.)

Exceptions from Supreme Judicial Court, Kennebec County.

Action by Abraham Rich against Alvah R. Hayes. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Action of assumpsit on a promissory note. Besides the count on the note, there was a money count, with a specification making reference to the note.

The plea was the general issue, with a brief statement of special matter of defense, upon which, however, the decision in no way turned.

1. See Evidence, vol. 20, Cent. Dig. § 1193.

EMERY, J. This was an action against an administrator representing the deceased partners of the late firm of Dingley Bros. One of the issues was whether certain indorsements or entries in the handwriting of the plaintiff upon the back of a $3,000 note given to him by the Dingley Bros. were made accidentally and erroneously. The plaintiff claimed they were, and that he had written and personally delivered to the Dingley Bros. in their lifetime a letter stating that the indorsements or entries were erroneous, and explaining how they happened to be made, and that they orally assented to the statement and explanation as correct and satisfactory. A copy of this letter was admitted in evidence, the original not being produced in response to due notice to do so.

At the top of this copy of letter was the following memorandum, signed by R. W. Rich, a son of the plaintiff, viz.:

"The original letter from Abraham Rich to Dingley Brothers of this date of April 18th, 1895, of which this is a true copy, was handed by Abraham Rich to Fuller Dingley of Dingley Brothers in their (Dingley Brothers) office in Gardiner, Maine, in my presence at about three o'clock p. m., of this ‘afternoon' of April 18th, 1895. Fuller Dingley read the letter and said, 'Your explanation in this letter of your erroneous entries on our $3000.00 note is satisfactory to and agreed to by us, Captain.'

"Attest: R. W. Rich." The plaintiff was known as "Captain Rich." It does not appear that this memorandum was read or offered in evidence, or used at the trial by any witness to refresh his memory.

When, at the close of the trial, the various documentary exhibits admitted in evidence were about to be passed to the jury to take to their room for use in their deliberations, the defendant objected to the above memorandum, signed by R. W. Rich, going to the jury with the copy of the letter, but, the plaintiff insisting, it was allowed to be taken by the jury to their room with the copy of the letter. The defendant excepted.

The written memorandum was merely a private one, not even made in the course of business. It contained a statement of material and damaging admissions of the defendant's intestate, yet it was allowed to go to the jury not only as evidence, but as documentary evidence, with practically more probative force than the oral testimony of R. W. Rich to the same admissions would have had. It should need no argument to