3. The heir of a decedent filed a bill to secure a reassignment of a mortgage held to have been procured from the decedent by fraud. The bill showed that the will of the decedent had been admitted to probate, and that a contest was pending to set the will aside. Held, that the bill was properly dismissed, as the remedy of plaintiff was under Act May 19, 1874 (P. L. 206), giving the orphans' court power to protect property of which they may have jurisdiction in the future.

4. The next of kin of a decedent sued to secure the reassignment of a mortgage executed by the decedent in his lifetime, and alleged that decedent had deeded land to another and taken a purchase-money mortgage from his grantee, which defendants had procured him to assign by fraud and duress. A supplemental bill averred that the grantee named in the deed from decedent was a fictitious person, and had transferred the land. Held, that the amended bill was demurrable where the parties to whom the alleged fictitious grantee had conveyed were not made parties.

Appeal from Court of Common Pleas, Allegheny County.

Bill by Finley Gilkeson against S. Thompson and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, POTTER, and THOMPSON, JJ.

Edwin W. Smith and Alexander Gilfillan, for appellant. M. W. Acheson, Jr., for appellees.

BROWN, J. By his original bill the appellant asked that the Mt. Washington Savings & Trust Company be restrained from collecting a certain mortgage of which it was the holder, and that a decree be made directing it to reassign the same and the accompanying bond to some trustee for the estate of John Long, deceased. These had been given to Long to secure the payment of the balance of purchase money for land which he had sold to one O. P. Phillips. The appellant, as the next of kin and heir at law of Long, alleged, as grounds for the relief sought, that the decedent had been induced to assign the bond and mortgage to Euphemia and Rebecca Blanche Thompson, through fraud and duress, at a time when he was so enfeebled by his advanced age and physical condition as not to be capable of transacting business and of knowing the purport and meaning of the assignment; and a further averment was that Andrew G. Smith, having knowledge of this assignment, afterwards procured the one from the Thompsons to the Mt. Washington Savings & Trust Company, of which he was one of the principal organizers, a director, a large stockholder and solicitor, and its representative in the assignment to it. There is then an argumentative allegation that "the said Mt. Washington Savings & Trust Company had, therefore, full and complete knowledge of the whole transaction of the said assignments."

A demurrer was filed to the bill by the trust company, which, while admitting its

distinct allegation, did not admit the argumentative conclusions in it. Getty et al. v. Pennsylvania Institution for Instruction of the Blind, 194 Pa. 571, 45 Atl. 333. It is admitted by counsel for appellant that the bill does not charge the trust company with direct notice of the fraud alleged to have been practiced on Long, but it is insisted that the deduction just quoted is to be regarded as an admission by the demurrant that it had notice. The deduction would be so regarded if, from the averments as to notice, it was the only conclusion to be drawn. But a pleader need make no formal averment of a conclusion if he distinctly avers facts from which it must follow.

The demurrer was sustained because, though the plaintiff alleged fraud and duress on the part of the Thompsons in procuring the assignment of the mortgage, he did not allege knowledge of the fraud on the part of the trust company, nor by Smith as its agent, but averred only the conclusion of its knowledge. The court might have gone further, and properly said that there is not even an averment that Smith knew the assignment was fraudulent and had been procured by duress. The allegation is simply that it had been made with his knowledge. There is no averment that he knew of the fraud alleged to have been practiced upon the assignor." But if the averments were broad enough to cover such knowledge by him before he acted for the trust company, there is no allegation of knowledge by it brought to it through him when he acted for it in procuring the assignment of the mortgage to it. No matter what he may have known before he acted as its agent in procuring the assignment, such knowledge is not to be imputed to it when he subsequently did act for it, unless the knowledge was reimparted to him, as its representative, while acting for it. This is the settled law. "To visit the principal with constructive notice, it is necessary that the knowledge of the agent or attorney should be gained in the course of the same transaction in which he is employed by his client." Hood v. Fahnestock, 8 Watts, 489, 34 Am. Dec. 489. Among our many later cases recognizing and enforcing this rule are Houseman v. Girard Mutual Bldg. & Loan Ass'n, 81 Pa. 256; Barbour v. Wiehle, 116 Pa. 308, 9 Atl. 520; and Lohr v. Philipsburg Borough, 156 Pa. 246, 27 Atl. 133. In Houseman v. Girard Mut. Bldg. & Loan Ass'n, supra, it was said by Sharswood, J.: "It is only during the agency that the agent represents, and stands in the shoes of his principal. Notice to him is then notice to his principal. Notice to him twentyfour hours before the relation commenced is no more notice than twenty-four hours after it had ceased would be. Knowledge can be no better than direct actual notice. It was incumbent on the plaintiff to show that the knowledge of the agent, to use the accurate language of one of our cases, 'was gained in

the transaction in which he was employed.'" The first three grounds of demurrer were properly sustained.

The fourth ground of demurrer, not passed upon by the court, is that the bill discloses that the plaintiff had no standing to maintain it. His complaint is as next of kin and heir at law of John Long, deceased, but there is an averment that he died testate, and that a paper purporting to be his last will was admitted to probate more than a year before the bill was filed. True, there is an averment that an appeal had been taken by the appellant from the probate, but there is no averment that, if the will should be sustained, he would have any interest in the estate of the testator. If the will stands it is to be assumed, in the absence of any allegation to the contrary, that he has no interest to be protected, and it is not to be assumed that the will will be set aside. The case of the appellant, as presented by him, is that of one admittedly having no standing at the time he makes his complaint; but because he hopes for the successful ending of the contest to have the will of his kinsman set aside-in its very nature most uncertain-he asks to be heard. While the failure of the court below to consider the fourth ground of demurrer relieves us from saying anything about it, we are of opinion that if it had been sustained there would not have been error. This is especially true in view of the act of May, 19, 1874 (P. L. 206), the seventh section of which provides that the orphans' courts shall have power to prevent, by order in the nature of writs of injunction, acts contrary to law or equity, prejudicial to property over which they shall have jurisdiction. Though this jurisdiction for the protection and preservation of property may be concurrent and not exclusive, it is the one to which the appellant ought to have resorted, for there his appeal from the probate of the will was pending, and there, if he was entitled to any relief, it could have been given him by a proper order during the pendency of his appeal, intelligently made by the same court that was to dispose of the appeal. If he were to obtain the decree asked for in the common pleas, and his appeal in the orphans' court should fail, the decree would become a dead letter, and the proceedings instituted to procure it would have to be regarded as having been useless and vexatious.

mental bill was filed, in which the appellant alleges that there was no such person as O. P. Phillips, the grantee named in Long's deed and the grantor in the deed to Craig and Glenn; and the prayer of the amended bill is that the mortgage held by the trust company be declared null and void, and that it be restrained from proceeding for the collection of the same. To this supplemental bill all of the defendants demurred, the fifth ground of demurrer being that the amendment was defective for want of parties. Neither Craig nor Glenn is a party to the original or supplemental bill, and neither would be bound by a decree made. Under his amendment the complainant would wipe out the mortgage, the security for which is the land owned by Craig and Glenn. If there should be a decree striking down the mortgage, and, in an ejectment subsequently brought against Craig and Glenn, they should retain the land under a verdict in their favor, there would be, as is well contended by counsel for appellees, the anomalous and astonishing result that their title would stand, though the mortgage against it, given for the payment of the purchase money by their own grantor, subject to which they took it and against which they had no defense, had fallen. The land would be theirs without paying for it.

The allegations in the amended bill as to notice by the trust company are no stronger than in the original, and we need not discuss this again. We affirm the decree, sustaining the demurrer to the amended or supplemental bill, because, as was very properly said by the learned judge below: "The plaintiff would still be left to try his title as against Glenn and the heirs of Wesley I. Craig by his action of ejectment. The only effect of the granting of the prayer of the plaintiff in this supplemental bill would be to leave the title to the land in dispute in Glenn and the heirs of Wesley I. Craig free of the incumbrance of the mortgage which their grantor gave. That would be a foolish thing to do. If the deed from Long to Phillips was a fraud, then the root of the evil is the outstanding title purporting to be conveyed by the deed; and, until that is stricken down, no court of equity would interfere with the mortgage in the hands of an innocent purchaser."

Decree affirmed and appeal dismissed at

(77 Conn. 358)

BECKER v. ATCHASON. (Court of Er-
rors and Appeals of New Jersey. Nov. 14,
1904.) Error to Supreme Court. Action by Ja-
cob G. Becker against Thomas Atchason. A
judgment in favor of plaintiff was affirmed by
the Supreme Court (56 Atl. 172), and defendant
brings error. Affirmed. C. N. Williams, for
plaintiff in error. William A. Lord, for defend-
ant in error.

PER CURIAM. The judgment of the Su-
preme Court is affirmed, upon the grounds
stated in the opinion of Mr. Justice VAN
SYCKEL in that court. 56 Atl. 172.

(67 N. J. E. 620)

EVANS v. NEW AUDITORIUM PIER CO.
(Court of Errors and Appeals of New Jersey.
Nov. 14, 1904.) Appeal from Court of Chan-
cery. Bill by Charles Evans against the New
Auditorium Pier Company. Decree for com-
plainant (58 Atl. 191), and defendant appeals.
Reversed. See 53 Atl. 99, 111. Bedle, Ed-
wards & Thompson, for appellant. Colt, How-
ell & Ten Eyck, for respondent.

PER CURIAM. This case is controlled by
the decision rendered at this term in the case of
Atlantic City v. Same Defendant, 59 Atl. 158,
upon the two points indicated in the headnotes
to the opinion delivered in that case.

PER CURIAM. The judgment in this cause
is affirmed, for the reasons given in the opinion
of Mr. Justice VAN SYCKEL in the Supreme
Court, reported in 69 N. J. Law, 551, 55 Atl.
104.

(71 N. J. L. 342)

KEHOE v. STAGMEIER et al. (Court of
Errors and Appeals of New Jersey. Nov. 14,
1904.) Error to Supreme Court. Certiorari by
John Kehoe against Henry Stagmeier and oth-
ers, to review a recount held by a justice of
the Supreme Court. There was a judgment of
the Supreme Court setting aside a certificate
of revocation issued by the justice (for opinion
see 56 Atl. 252), and prosecutor brings error.
Affirmed. Ernest Koester, for plaintiff in er-
ror. Peter W. Stagg, for defendants in error.

PER CURIAM. The judgment of the Su-
preme Court in this cause is affirmed, for the
reasons given in the opinion of Mr. Justice
FORT, reported in 70 N. J. Law, 175, 56 Atl.
252.

(70 N. J. L. 824)

LEMBECK & BETTS BREWING CO. v.
MIDDLESEX & S. TRACTION CO. MAN-
LY v. SAME. (Court of Errors and Appeals
of New Jersey. Nov. 14, 1904.) Error to Su-
preme Court. Actions by the Lembeck & Betts
Brewing Company and by William H. Manly
against the Middlesex & Somerset Traction
Company. From a judgment of the Supreme
Court (56 Atl. 1133), affirming a judgment for
plaintiffs, defendant brings error. Affirmed.
Willard P. Voorhees, for plaintiff in error.
George S. Silzer, for defendants in error.

PER CURIAM. These cases were argued
together, and they involve the same questions.
The judgments are affirmed, for the reasons
given in the per curiam opinion in the Su-
preme Court. 56 Atl. 1133.

(71 N. J. L. 339)

LEWIS v. PENNSYLVANIA R. CO. (Court
of Errors and Appeals of New Jersey. Jan. 20,
1905.) Error to Suprem Court. Action by
Gustav Lewis against the Pennsylvania Rail-
road Company. Judgment for plaintiff was re-
versed by the Supreme Court (56 Atl. 128), and
plaintiff brings error. Affirmed. Guild, Lum &
Tamblin, for plaintiff in error. Vredenburgh,
Wall & Van Winkle, for defendant in error.

PER CURIAM. The judgment in this case
must be affirmed, on the grounds stated in the
opinion of Mr. Justice SWAYZE in the Su-
preme Court, reported in 70 N. J. Law, 132, 56
Atl. 128.

PITNEY and BOGERT, JJ., dissent.

(70 N. J. L. 826)
NEW JERSEY JUNCTION R. R. et al. v.
MAYOR, ETC., OF JERSEY CITY. (Court
of Errors and Appeals of New Jersey. Nov. 14,
1904.) Error to Supreme Court. Certiorari by
the state, on the prosecution of the New Jersey
Junction Railroad and others, against the may-
or and aldermen of Jersey City, was dismissed
(52 Atl. 352), and prosecutors bring error. Af-
firmed. James B. Vredenburgh, for plaintiffs
in error. Robert Carey, for defendants in error.

PER CURIAM. The judgment in this cause
must be affirmed, for the reasons given in the
opinion in the Supreme Court by Mr. Justice
FORT, reported in 68 N. J. Law, 108, 52 Atl.
352.

(70 N. J. L. 828)

O'REILLY v. PENNSYLVANIA R. CO.
(Court of Errors and Appeals of New Jersey.
Nov. 14, 1904.) Error to Supreme Court. Ac-
tion by Bridget O'Reilly against the Pennsyl-
vania Railroad Company. Judgment for de-
fendant was reversed by the Supreme Court (54
Atl. 233), and defendant brings error. Affirmed.
Alan H. Strong and Charles E. Gummere, for
plaintiff in error. James L. Kelly and Clarence
S. Biddle, for defendant in error.

PER CURIAM. The judgment in this cause
is affirmed, for the reasons given in the opinion
of Mr. Justice DIXON in the Supreme Court,
reported in 69 N. J. Law, 119, 54 Atl. 233.

(70 N. J. L. 825)

PATERSON & P. GAS & ELECTRIC CO.
v. STATE BOARD OF ASSESSORS et al.
(Court of Errors and Appeals of New Jersey.
Nov. 15, 1904.) Error to Supreme Court. Cer-
tiorari by the state, on the prosecution of the
Paterson & Passaic Gas & Electric Company,
against the state board of assessors and others,
to review an assessment. From a judgment
(54 Atl. 246) affirming the tax, prosecutor
brings error. Affirmed. R. V. Lindabury and
Hobart Tuttle, for plaintiff in error. Vivian
M. Lewis, for defendant in error city of Pater-

son.

PER CURIAM. The judgment in this cause
is affirmed, for the reasons given in the opinion
of Mr. Justice DIXON in the Supreme Court,
reported in Paterson & Passaic Gas Co. v.
Board of Assessors, 69 N. J. Law, 116, 54 Atl.
246.

(71 N. J. L. 240)

SCHLESINGER v. KESSELL. (Court of
Errors and Appeals of New Jersey. Nov. 14,
1904.) Error to Supreme Court. Action by
Louis Schlesinger against Frederick Kessell.
Judgment of nonsuit was affirmed by the Su-
preme Court (56 Atl. 1134), and plaintiff brings
error. Affirmed. Guild, Lum & Tamblyn, for
plaintiff in error. Charles F. Herr, for defend-
ant in error.

PER CURIAM. The nonsuit disclosed by
the record was sustained in the Supreme Court
(56 Atl. 1134), upon the authority of Stout v.
Humphrey (N. J. Err. & App.) 55 Atl. 281.
We think this conclusion correct, and the judg-
ment must therefore be affirmed.

STATE v. BLOCK. (Court of Errors and
Appeals of New Jersey. Jan. 20, 1905.) Er-
ror to Supreme Court. Frank Block was con-
victed of an offense. Judgment of conviction
was affirmed by the Supreme Court (57 Atl.
391), and he brings error. Affirmed. J. Emil
Walscheid, for plaintiff in error. William H.
Speer, for the State.

PER CURIAM. The judgment in this case
must be affirmed, upon the grounds stated in
the opinion of Mr. Justice HENDRICKSON
in the Supreme Court, reported in 57 Atl. 391.

STATE v. LEE et al. (Court of Errors and
Appeals of New Jersey. Jan. 20, 1905.) Er-
ror to Supreme Court. Uriah S. Lee and oth-
ers were prosecuted for illegally dredging oys-
ters. From a judgment of the Supreme Court,
affirming a conviction (57 Atl. 142), they bring
error. Affirmed, on opinion of Supreme Court.
James B. Potter and Jonathan W. Acton, for
plaintiffs in error. J. Hampton Fithian and
Walter H. Bacon, for the State.

PER CURIAM. The judgment brought up
by this writ of error must be affirmed, on the
grounds stated in the opinion of Mr. Justice
DIXON in the Supreme Court, reported in 57
Atl. 142.

STATE v. SIMON et al. (Court of Errors
and Appeals of New Jersey. Jan. 20, 1905.)
Error to Supreme Court. Jacob Simon and
another were prosecuted for selling stolen goods.
From a judgment of the Supreme Court, affirm-
ing a conviction (58 Atl. 107), they bring error.
Affirmed, on opinion of Supreme Court. Vivian
M. Lewis, for plaintiffs in error. Eugene Em-
ley, for the State.

PER CURIAM. The conviction in this case
must be affirmed, for the reasons given in the
opinion of Mr. Justice HENDRICKSON, de-
livered in the Supreme Court, and reported in
58 Atl. 107.

(70 N. J. L. 827)

STIVERS V. MAYOR, ETC., OF JERSEY
CITY. (Court of Errors and Appeals of New
Jersey. Nov. 14, 1904.) Error to Supreme
Court. Certiorari by the state, on the prosecu-
tion of William P. Stivers, against the mayor
and aldermen of Jersey City, to review a reso-
lution of the board of street and water commis-
sioners. From an order affirming the resolu-
tion (57 Atl. 143), prosecutor brings error.
Affirmed. McEwan & McEwan, for plaintiff in
error. Robert Carey and J. Faerber Golden-
horn, for defendants in error.

PER CURIAM. The judgment in this cause
must be affirmed, for the reasons given in the
opinion of Mr. Justice GARRETSON in the
Supreme Court. 57 Atl. 143.

(71 N. J. L. 338)

TIPPETT v. MCGRATH, Tax Collector.
(Court of Errors and Appeals of New Jersey.
Nov. 14, 1904.) Error to Supreme Court. Cer-
tiorari by Edward Tippett against John C. Mc-
Grath, collector of taxes for the borough of
Rockaway, to review an assessment. A judg-
ment was rendered affirming the levy, and rela-
tor brings error. Affirmed. Charlton A. Reed
and William A. Cotter, for plaintiff in error.
John F. Stickle, for defendant in error.

PER CURIAM. The judgment brought by
this writ of error is affirmed, for the reasons
given by Mr. Justice GARRISON, in his opin-
ion in the Supreme Court, reported in 70 N. J.
Law, 110, 56 Atl. 134.

GREEN, J., dissents.

(66 N. J. E. 454)

VREELAND v. VREELAND, et al. (Court
of Errors and Appeals of New Jersey. Nov.
14, 1904.) Appeal from Court of Chancery.
Bill for partition by J. Warren Vreeland
against Wallace N. Vreeland and others. From
a decree for complainant, defendants appeal.
Affirmed. John Griffin, for appellants. James
A. Gordon, for respondent.

PER CURIAM. We agree with the opinion
of Vice Chancellor Stevenson in this case (56
Atl. 1089), to the effect that the memorandum
dated December 28, 1893. amounted to an agree-
ment between the testator and his two sons,
that in dividing his estate at his death the ad-
vancement of land then made to each of them
should be treated as the advancement of mon-
ey, so many dollars; that this agreement is one
of the circumstances in the light of which the
testator's will should be interpreted; and that
in this light the reference in the will to "sums
of money advanced" appears to have been in-
tended to include those advances of land. The
decree below should be affirmed.

AVELLA v. VALENTINO. (Supreme Court
of New Jersey. Nov. 14, 1904.) Appeal from
District Court of Newark. Action by John Av-
ella against Filomena Valentino, administrator.
Judgment for plaintiff, and defendant appeals.
Reversed. Argued June Term, 1904, before

FORT and REED, JJ. Gaetano M. Belfatto, for appellant. Henry Hahn, for appellee.

PER CURIAM. The facts in this case are the same as in the case of Natalizzio v. Valentino, 59 Atl. 8; and, for the reasons given in the opinion in that case, the judgment is reversed.

GLOUCESTER GINGHAM MILLS V. GLOUCESTER COTTON MILLS CO. (Supreme Court of New Jersey. Nov. 7, 1904.) Action by the Gloucester Gingham Mills against the Gloucester Cotton Mills Company. On rule to show cause. Discharged on condition. Argued February term, 1904, before GUMMERE, C. J., and DIXON, GARRISON, and SWAYZE, JJ. John W. Wescott and James E. Hays, for plaintiff. Joseph H. Gaskill, for defendant.

PER CURIAM. We think that the verdict in this case is excessive. It is, of course, impossible to tell for what items the jury allowed, and what it allowed for each; but the evidence is convincing that at least $13,635 should have been deducted from the plaintiff's claim of $32,825.31. If the plaintiff will remit the damages in excess of $19,190, the rule will be discharged; otherwise, it will be made absolute.

J. C. FIFIELD & SONS CO. v. KIENZEL. (Supreme Court of New Jersey. Nov. 7, 1904.) Appeal from District Court of Camden. Action by the J. C. Fifield & Sons Company against George M. Kienzel, administrator. From a judgment for defendant, plaintiff appeals. Reversed. Argued November term, 1904, before GARRISON and GARRETSON, JJ. W. T. Boyle, for appellant. Lewis Starr, for appellee.

PER CURIAM. This cause is controlled by the_memorandum filed in the case of Pederson v. Same Defendant (filed of June term, 1904) 58 Atl. 1088. Judgment is reversed, in order that there may be a venire de novo.

STATE v. MEEKER. (Supreme Court of New Jersey. Nov. 7, 1904.) Error to Court of Quarter Sessions, Essex County. Francis J. Meeker was convicted of a crime, and brings error. Affirmed. Argued June term, 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and SWAYZE, JJ. Charles Hood and Frank E. Bradner, for plaintiff in error. Henry Young, for the State.

PER CURIAM. We find no error in the refusal of the trial court to strike out the first count of the indictment, nor in its refusal to direct a verdict of acquittal, nor in the charge to the jury. The evidence offered by the state, objected to by the defendant, was legally admitted, and the questions asked on the crossexamination of one Astley, a witness produced on behalf of the state, were properly excluded. The judgment should be affirmed.

STATE v. WALLACE. (Supreme Court of New Jersey. Nov. 14, 1904.) David Wallace was convicted of being a disorderly person, and brings certiorari. Reversed. Argued June term, 1904, before FORT and REED, JJ. J. H. Fithian, for prosecutor. Louis Miller and J. W. Wescott, for defendant.

PER CURIAM. Instead of a finding, the entire evidence is sent up. It fails to show any obstruction of or interference with the prosecutor below, within the meaning of the third section of the disorderly act (Act June 14, 1898; P. L. p. 943). It fails to show that there was addressed to the prosecutor below any offensive or indecent language, within the meaning of the said section. The complaint does not charge that any such "loud" language was used. The

complaint does not charge that defendant was not under the influence of intoxicating liquors. The conviction must be reversed.

SUTTON v. CAMDEN & S. RY. CO. (Supreme Court of New Jersey. Nov. 7, 1904.) Action by Charles Sutton against the Camden & Suburban Railway Company. On rule to show cause. Rule discharged. Argued June term, 1904, before GUMMERE, Č. J., and GARRISON, GARRETSON, and SWAYZE, JJ. Joseph H. Gaskill and Nelson B. Gaskill, for the rule. Ralph W. Donges and John W. Wescott, opposed.

PER CURIAM. The plaintiff claimed that the injury which he received, while operating the defendant's car, in a collision between the car and a train of the West Jersey Railroad Company, was partly due to the improper condition of an appliance upon the car known as a "circuit breaker," by reason of which he was unable "to reverse his power" and bring his car to a prompt stop. The jury found that the "circuit breaker" was not properly "set," and that this condition aided in producing the accident. We cannot say that the evidence did not justify them in so finding. We think, too, that the conclusion reached by the jury that the plaintiff was not guilty of contributory negligence is in accordance with the facts proved. The verdict, although large, is not excessive. in view of the serious and permanent nature of the plaintiff's injuries. The rule to show cause should be discharged.

(210 Pa. 97)

HARVEY v. ERIE R. CO. (Supreme Court of Pennsylvania. Dec. 31, 1904.) Appeal from Court of Common Pleas, Venango County. Action by Thomas B. Harvey against the Erie Railroad Company. From a judgment of nonsuit, plaintiff appeals. Affirmed. Argued before MITCHELL, C. J., and DEAN, FELL, BROWN. MESTREZAT, POTTER, and THOMPSON, JJ.

FELL, J. The appellant in this case is the father of the appellant in Harvey v. Railroad Co. (Oct. term, 1904, No. 2) 59 Atl. 691, and the cause of action is the same in each case. For the reasons stated in the opinion filed in No. 2 (210 Pa. 95, 59 Atl. 691), the judgment is affirmed.

(210 Pa. 310)

MONONGAHELA RIVER CONSOL. COAL & COKE CO. v. JUTTE. (Supreme Court of Pennsylvania. Dec. 31, 1904.) Appeal from Court of Common Pleas. Allegheny County. Bill by the Monongahela River Consolidated Coal & Coke Company against William C. Jutte. From the decree, plaintiff appeals. Affirmed. Argued before MITCHELL, C. J., and DEAN, FELL. MESTREZAT, POTTER, and THOMPSON, JJ.

DEAN, J. In this case the court below refused an injunction to restrain defendant from what, under the authority of the anti-trust act of Congress and the exposition of that act by the United States Supreme Court, would have been an interference with interstate commerce. At the same time it did enjoin him from violating his agreement with plaintiff so far as that agreement operated in the state of Pennsylvania. From the first-mentioned part of this decree, plaintiffs have brought this appeal. We think the decree was right, and have said so as fully as we care to in the opinion handed down this day on appeal by defendant from same decree. 59 Atl. 1088. Decree affirmed.

(210 Pa. 349)

SMITH V. PITTSBURG, C., C. & ST. L. RY. CO. (Supreme Court of Pennsylvania. Dec. 31, 1904.) Error from Court of Common