March 11, 1889, and directing the issuance of a mandatory order requiring the defendant to remove from the channel of the river the slag and refuse deposited therein, etc. On hearing the exceptions to said report, the learned judge came to the conclusion that the facts of the case, to which reference is made in his opinion, did not justify the mandatory ordei; and he accordingly entered a decree making perpetual the modified injunction theretofore granted, and ordering the defendant to pay the costs. The errors assigned are (a)¦ refusal to grant the mandatory order prayed for; and (b) holding that the evidence was insufficient to justify said order. An examination of the testimony has satisfied us that, for the reasons clearly stated in his opinion, the learned judge was correct in his conclusions; and we accordingly adopt his opinion, and affirm the decree thereon. Decree affirmed, and appeal dismissed, with costs to be paid by the appellant.

BLACK V. BOYD, Tax Collector. (Supreme Court of Pennsylvania. Feb. 20, 1893.)

INJUNCTION-RESTRAINING COLLECTION OF TAXES. Injunction will not issue to restrain the collection of taxes, unless in the clearest cases of want of jurisdiction in the assessing and collecting officers.

Appeal from court of common pleas, Delaware county; Joseph Hemphill, Judge.

Bill by Mary M Black, administratrix of Edgar N. Black, deceased, against William Boyd, tax collector for Tinicum township, Delaware county, Pa., praying for a perpetual injunction against the said William Boyd from collecting taxes not properly assessed, and from selling her personal and private property. The court below decreed for the defendant, and the plaintiff appealed. Affirmed.

Francis Tracy Tobin and William W. Ker, for appellant.

The first assignment of error, that "the court below erred in dissolving the injunction," and the second, that "the court below erred in not continuing the injunction," may be considered together. Edgar N. Black died April 15, A. D. 1891. He died intestate, leaving a widow and four children, one of whom is a minor. Letters of administration were granted to bis widow, Mary M. Black, by the register of wills for Delaware county, Pa., on April 25, A. D. 1891. The board of assessors for Tinicum township, Delaware county, Pa.. April 20, A. D. 1891, met to hear objections and complaints to assessments. The law directs the tax collector to levy for taxes Dot paid, but such levy must be made on the property of the person owing the taxes. The tax collector levied on the personal and private property of Mary M. Black, who did not owe the taxes, and was not responsible for the same. There is sufficient property of the estate of Edgar N. Black, deceased, to pay the taxes, when properly assessed. Included in the levy were the taxes for 230 acres which did

not belong to the estate of Edgar N. Black, deceased. The plaintiff had the right, as the administratrix of the estate of Edgar N. Black, deceased, to work out the taxes the said estate legally and justly owed, but she had no notice or knowledge of the right for the year 1891 until it was too late for her to do so. The plaintiff, as administratrix of the estate of Edgar N. Black, deceased, has paid $75 of said taxes for the year 1891. The personal and private property of the plaintiff, Mary M. Black, is not liable for the taxes for the year 1891, as it is a debt she never contracted, and the taxes justly and legally due are owed by the estate of Edgar N. Black, deceased. The personal and private property of Mary M. Black, levied upon, have associations connected with it, and it is of priceless value to the plaintiff, for the loss of which no money value would compensate; and, if sold by the tax collector, she would have no adequate remedy.

Edward H. Hall and Isaac Johnson, for appellee.

There is very little in the argument that needs answering. In this argument the first allegation which it is worth while to notice is not an argument, but a state. ment of fact, entirely outside the record: "The board of assessors for Tinicum town. ship, Delaware county, Pa., April 20, A. D. 1891, met to hear objections and complaints to assessments." The assessment of real estate for taxation is made every three years under the provisions of the act of assembly of April 15, 1834, (Purd. Dig. p. 1582, pl. 2,) and act of April 22, 1846, (Purd. Dig. p. 1583, pl. 4.) The triennial assessment was made in the latter part of the year 1888, which forms the basis of taxation for the years 1889, 1890, and 1891. On this assessment the plaintiff's decedent paid for the years 1888 and 1890. This assessment remains until a new one is made in the latter part of 1891. The law provides for notice and an appeal, but, unless there was on appeal from the assessment made in 1888, there could be no change made. James v. Bucks County Comr's, 13 Pa. St. 72. The allegation is made that 230 acres of the land assessed did not belong to Edgar N. Black, and the plaintiff seeks to have the assessment revised through the medium of a bill in equity and an injunction. If the valuation was the same as it had been, Mr. Black had notice, and could not have had it revised. If the sale of 230 acres was after the assessment for 1891, the taxes cannot be apportioned. Shaw v. Quinn, 12 Serg. & R. 299. Taxes in Delaware county are collected under a special law. See act of April 1, 1873, (P. L. p. 511, § 5:) "Sec. 5. That it shall be the duty of each and every collector or supervisor or officer authorized to collect the taxes, rates, and levies aforesaid, mentioned in the first section of this act, to collect the same from any personal property that may be on the real estate, and property on which the said taxes, rates, and levies shall have, as aforesaid, imposed or assessed," etc. This law provides that the taxes shall be a lien for one year, and this

court decided in Anspach and Stanton's Appeal, 112 Pa. St. 28, 3 Atl. Rep. 378, that the lien is lost unless a formal lien is entered in the prothonotary's office. As no lien can be entered while there is personal property on the premises, out of which the taxes can be made, it becomes the duty of the collector to proceed by levy and sale. There is no question raised as to the defendant being without authority, nor that he is not the proper officer; nor is it alleged that the defendant was en. deavoring to collect the tax without allowing credit for the $75, nor that he was exercising the power of his office in an oppressive manner. It is therefore respectfully submitted that under the ruling in Hughes v. Kline, 30 Pa. St. 227, the action of the court below should be sustained. As is said in that case: "It will not do to permit the collection of taxes to be interfered with by such process, unless in the clearest cases of want of jurisdiction in the assessing and collecting officers." See, also, Clinton School District's Appeal, 56 Pa. St. 315; Van Nort's Appeal, 121 Pa. St. 129, 15 Atl. Rep. 473.

PER CURIAM. This was an appeal from the decree of the court below dissolving a preliminary injunction. The decree is affirmed, and the appeal dismissed, at the costs of the appellant.

INDIANA MANUF'G CO. v. HAYES. (Supreme Court of Pennsylvania. Feb. 20, 1893.)

SALE-ACCEPTANCE OF Goods.

One who takes goods consigned to him out of the possession of the carrier, and has them hauled to his own place of business, and afterwards sends his check to the consignor for other goods purchased by him, without any reference to the goods so taken possession of by him, is liable for their price, though he may not have ordered them.

Appeal from court of common pleas, Chester county.

Assumpsit by the Indiana Manufacturing Company against Robert L. Hayes for the price of a car load of refrigerators alleged to have been sold to defendant. The court directed a verdict in plaintiff's favor, and from the judgment entered thereon, defendant appeals. Affirmed.

The charge of the court (Hemphill, J.) is as follows: "As you have no doubt learned from the discussion here this morn. ing, there is a question of law involved in this case, and the view which the court takes of that question will necessarily take from you this case. It will be a mere matter of form, as far as the jury is concerned. If we are in error in our view of the law, we will be righted in another tribunal, so that the defendant will not suffer for any mistake we may make here. We have been requested by both the defendant and plaintiff to charge upon certain points. The defendant's points are as follows: (1) If the jury should find

that the defendant did not order the goods, and did not afterwards accept them, with the intention of taking them into his possession as owner, or appropri ating them to his own use, the verdict must be for the defendant. (2) Under all the evidence it is for the jury to determine whether the acceptance of the goods by the defendant was with the intention of becoming the owner of them.' Answer

of the Court: We say to you, gentlemen of the jury, that there is no question of intention involved here to be submitted to you. There is no disputed question of fact. The goods were shipped to Mr. Hayes in his name; and when he took control of them by ordering the railroad company to turn them over to his agent, Mr. Cooper, the carter, the law implied an intention on his part to accept, and, so far as the plaintiffs here are concerned, he became the owner, and we instruct you to that effect, and must so qualify their points. The plaintiff's points are as follows: (1) If the defendant gave no order to the plaintiffs for the goods sued for, and made no contract with them for furnishing him refrigerators, it was his duty, when the said goods came to him, to decline to receive them from the railroad company.' Answer of the Court: That point we affirm. (2) If the 64 refrigerators were shipped to Robert L. Hayes by the plaintiffs, relying upon his order, and he received the same from the railroad company at West Chester, thereby discharging the said railroad company from liability to the shippers, the plaintiffs. the defendant, Robert L. Hayes, is bound to pay for the same, whether he authorized the sending of the order or not.' Answer of the Court: That point we also affirm. '(3) If the defendant received these goods, and appropriated them to his own use, he is bound to pay for them, whether he made any bargain for their parchase or not.' Answer of the Court: That point is also affirmed. So that, gentlemen of the jury, it remains for you merely, under the instructions of the court, to find a verdict for the plaintiff for the full amount of the claim, $1,165.80. ”

Butler & Windle and Monaghan & Hause, for appellant. Thomas W. Pierce, for appellee.

PER CURIAM. Conceding that the defendant did not order the goods in question, yet when they arrived, and he was notified that they were upon the car, it was his duty to notify the plaintiffs of the alleged mistake. Instead of doing so, he took the property out of the possession of the railroad company, and had it hauled to his own place of business, and, after having been fully informed of the shipment and consignment to him, he sent a check to the plaintiff company for oth er merchandise purchased of it, without any reference to the goods in controver sy. The case was submitted to the jury under proper instructions.

Judgment affirmed.

GRONER V. DELAWARE & H. CANAL CO. (Supreme Court of Pennsylvania. March 6, 1893.)

INJURY AT RAILROAD CROSSING

INSTRUCTIONS

CONTRIBUTORY NEGLIGENCE.

1. In an action for damages, where the evidence tended strongly to show that defendant's negligence caused the injury complained of, and there were no admitted or undisputed facts that would warrant a conclusion, as matter of law, that plaintiff was guilty of any contributory negligence, the court properly refused to charge that, "under all the evidence, the verdict must be for defendant."

2. In such case a request to charge that, under certain facts and circumstances specified, plaintiff was guilty of contributory negligence, and could not recover, was properly refused where the facts and circumstances on which the request was predicated were neither admitted nor established by undisputed evidence.

3. In an action against a railroad company for damages resulting from negligence in running its train, and not protecting its crossing, where plaintiff approached the crossing when it was a physical impossibility for her not to see defendant's train, if she had looked, she cannot recover; but whether such impossibility existed is a question for the jury.

Appeal from court of common pleas, Wayne county.

Action by Mary Groner against the president, managers, and company of the Delaware & Hudson Canal Company, for damages resulting from the negligence of defendants in the manner of running their train and protecting their crossing, whereby plaintiff's horse plunged across the track in front of a moving engine, and ran into an obstruction, throwing plaintiff out of her carriage, and injuring her. From a judgment entered on a verdict for plaintiff for $700, defendants appeal. Affirmed.

Defendants' twentieth point, referred to in the opinion, was as follows: "If, as is shown by undisputed testimony, it was a physical impossibility for the engine house to have shut out the view of the entire train at any time during its approach to the crossing, from a person anywhere on the bridge, the plaintiff and her husband are guilty of contributory negligence in driving to the crossing as they did, and she cannot recover.

Homer Greene, for appellants. Chas. A. McCarty, for appellee.

STERRETT, C. J. If the jury's attention was not called to all the questions of law involved in this case, it was not the fault of learned counsel on either side. It appears that 42 points for charge-14 by plaintiff, and twice that number by defendants were presented, and fully answered by the learned president of the court. In the main, his answers appear to have been satisfactory to both parties; for the only subjects of complaint here are his refusal to affirm defendants' 19th, 20th, 23d, and 28th points, respectively, as presented. In the latter he was requested to charge: "Under all the evidence in this case, the verdict of the jury must be for the defendants." This be very properly refused to do, for the very good reason that the evidence tended strongly to show

that defendants' negligence caused the injury complained of, and there was no admitted or undisputed fact or facts in the case that would have justified him in declaring, as matter of law, that plaintiff was guilty of any negligence that contributed to her injury. An examination of the Somewhat voluminous testimony shows that defendants' liability depended on questions of fact which were clearly for the consideration and determination of the jury. These questions were fairly submitted to them, in a very clear and comprehensive charge, which appears to be free from error. For reasons above suggested, there was no error in the learned judge's answers to either of the points recited in the first three specifications, in which he was substantially requested to say that, under certain facts and circumstances therein stated, the plaintiff was guilty of contributory negligence and could not recover. The facts and circumstances, of which these points are respectively predicated, were neither admitted nor established by undisputed evidence, and hence it would have been manifest error to have affirmed them without qualification.

Referring to the twentieth point, the learned judge said, in substance: "If this means to ask us to say, as matter of law, that it was physically impossible for plaintiff not to have seen the train approaching the crossing, we cannot affirm it. If it means-and we so understand it to mean-that if you find that it was a physical impossibility for her not to see this train moving, if she looked, we think the point is well taken. As we read the point, we think it asks us to say that it is shown by the undisputed testimony that it was a physical impossibility, and we decline to say that. That is a matter for you, and not for the court." This was clearly correct. There is nothing in the un disputed facts of this case, as they appear from the testimony, to bring it within the principle of Carroll v. Railroad Co., 2 Penny. 159, and that line of cases. Neither of the specifications of error is sustained. Judgment affirmed.

FRITZ v. LEBANON MUT. INS. CO. (Supreme Court of Pennsylvania. Feb. 20, 1893.)

INSURANCE-WAIVER OF PROOFS OF Loss-Evi

DENCE.

In an action on an insurance policy a finding that a provision requiring proofs of loss within 15 days after the fire was waived is supported by plaintiff's evidence that an adjuster was appointed by an agent representing seyeral companies interested in the loss,-among them, defendant; that the adjuster took charge of defendant's interests, along with those of the other companies; that the adjuster held himself out to plaintiff as representing all the companies; that all the necessary proofs were made to him; and that defendant never objected to such proofs until long after the expiration of the 15 days; and such finding will not be disturbed, though both the agent and the adjuster testify that the adjuster's appointment did not embrace defendant.

Appeal from court of common pleas, Chester county.

Assumpsit by William H. Fritz against the Lebanon Mutual Insurance Company on a policy of fire insurance. There was a verdict in plaintiff's favor, and, from the judgment entered thereon, defendant appeals. Affirmed.

The court charged as follows:

"On the 22d day of September, 1890, the Lebanon Mutual Fire Insurance Company issued a policy of insurance to Lewis Warner, in the sum of $500, to protect his property from fire from the 16th day of Septeinber, 1890, until the 16th day of September, 1891. The policy, you will thus see, was to continue for one year. During the course of that year, Mr. Warner became pecuniarily embarrassed. Executions were issued against him. His property was levied upon by the sheriff, and sold by him to Mr. William H. Fritz, the plaintiff in this case. That sale took place ou or about the 15th day of January,-my recollection is, about the 14th of January; and on the 15th of January, the day following, Mr. Warner transferred to Mr. Fritz all his right, title, and interest in this policy. That transfer was approved by Mr. Cross, as agent for the Lebanon company. On the 28th day of May following this transfer, Mr. Fritz's property was burned,-the property which was covered by this insurance policy. He took certain steps to furnish the company with proof of his loss, and they, refusing to recognize his right to the amount due under the policy, declined to pay; and he has brought this suit, in order to recover the amount he says is due him, to wit, $492.19, if I am right in my recollection of the amount.

* The policy likewise requires the plaintiff, upon a loss taking place,-upon his property being burned,-to give the company notice of that loss, in writing, with certain particulars set forth in the policy, within fifteen days of the fire. That is another condition that the plaintiff must comply with. If he fails to do that, then the defendant is relieved of any liability, unless, by its actions, conduct, or declarations, it has waived also the right to enforce this condition. You will see, as I have said, that the policy imposes it upon the plaintiff, as a duty, to furnish the company with proof of his loss within fifteen days, and that proof must be in the way indicated by the condition. He failed to do this. That is clear. No proof of loss, as the condition required, was furnished this company until some time in July. The fire occurred in May. But the allegation on the part of the plaintiff is that this defendant, by its course, relieved the plaintiff from performing this condition within the time specified, and, if he performed it as soon as he reasonably could after the fire, then he complied with the conditions. If this defendant, by its conduct, relieved the plaintiff from furnishing it with a proof of loss in fifteen days, then it cannot take advantage of this condition in the policy. It was a waiver on its part of its rights under that condition. You will see that is made also a condition for its benefit, and it has a right to enforce it, or it has a right to waive it, as it may

think its interests require. If it sees fit to waive it, it may do so, and the plaintiff is entitled to take advantage of that waiver. But it is his duty to show you either that he furnished the proof of loss within the time prescribed, or that the defendant waived the right to have it within that time, and thus relieved the plaintiff from complying with the tondition contained in the policy. As I have said to you, the testimony seems to show that it was some time in July before Mr. Fritz got into their hands the proof of loss. The fire occurred on the 28th of May, and of course more than fifteen days had elapsed between the 28th of May and the 16th of July. Now, has the plaintiff satisfied you that the defendant waived this condition? He says that this policy of insurance was issued to Mr. Warner by Mr. Cross, and there is no doubt at all in the case that Mr. Cross was the agent of this company. He was recognized as its agent to do certain things that the plaintiff says he undertook to do. Mr. Cross, as the agent of this company, received this application, and issued this policy. The policy is signed by the officers of the company. The secretary of the company, who testified yesterday, tells you that they sometimes left blanks in Mr. Cross' hands,-blank policies signed by the officers of the company,-and thus authorized him to issue them on such risks as in his judgment were proper. That is, they did not require Mr. Cross to submit to them all applications. He could pass his judgment upon an application that might be made to the company for insurance; and if he approved of the risk he was authorized to issue the policy, use one of these blanks signed by the officers, and thus bind them by his action. cannot say whether this policy was one of those or not, but that was the course of business of the company. He cannot say that it was or was not, and it may have been one of these blanks. The plaintiff here says that he applied to Mr. Cross, and that Mr. Cross furnished him with this policy; that subsequently Mr. Warner applied to company for leave to use electric lights in his mill, and to make additions and alterations; that the application was left with Mr. Cross; that consent was given, as I understand it, by Mr. Cross himself. He authorized him to do that, and he has signed on the policy that authority. The company recognize that act by Mr. Cross; that he received the premium upon this policy; and that plaintiff claims that, by reason of Mr. Cross' conduct before this loss occurred, he had a right to presume that Mr. Cross was authorized to do anything and everything that was necessary to be done in connection with this particular risk. That being the case, the agent of the plaintiff applied to Mr. Cross, when the loss occurred, to ascertain who would adjust the loss for this company; in other words, who would act as their agent in ascertaining what loss Mr. Fritz had sustair.ed, and determine it in behalf of the Lebanon Mutual. That the plaintiff's agent was advised that Mr. Shattuck would look after the interests of this company, and that, in accordance with that information, he placed

He