Volume 1 — Pennsylvania District & County Reports

<p>Rule for judgment for want of sufficient affidavit of defence. C. P. No. 3, Phila. Co., June T., 1921, No. 3887.</p>

<p>Municipal corporations — Eminent domain — Condemnation of land for municipal power plant — Necessary municipal buildings — Acts of March 26, 190S, July 20, 1917, and July 8, 1919.</p> <p>1. Municipal corporations have no inherent right of eminent domain, but can appropriate private property only to the extent authorized by some act of the legislature.</p> <p>2. The Act of March 26, 1903, P. L. 63, authorizing cities to condemn real estate, to construct "necessary municipal buildings," does not include real estate on which to erect a municipal power plant for power, heat and light.</p> <p>3. The Acts of July 20, 1917, P. L. 1143, and July 8, 1919, P. L. 783, give municipalities the power to condemn property for public libraries and certain other public buildings; but a municipal power plant, as an adjunct to any such building, is not itself a necessary municipal building within the meaning of the Act of March 26, 1903, P. L. 63.</p> <p>4. Such buildings as the Free Library, the Museum of Art, the Academy of Pine Arts and the School of Industrial Art are not included within the terms of the Act-of 1903, and a power plant, to be used as an adjunct to such buildings, is not indirectly included' within that act.</p> <p>5. Acts granting the right of eminent domain must be construed strictly, and questions of doubt should be resolved against the existence of the right.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., July T., 1921, No. 26.</p>

<p>School districts' — Indebtedness—Authority to increase — Special election— Return — Copies of resolution and advertisement — Tally-sheets—Mistake of election board.</p> <p>1. Where the returns of a special election to determine whether or not the bonded indebtedness of a school district shall be increased are certified to the Clerk of the Court of Quarter Sessions, as required by law, but without the certified copy of the resolution and advertisement providing for the election, such certified copies may be filed nunc ^¥0 tuno at a later date.</p> <p>2. A mistake of the election officers in a special election to determine whether or not the bonded indebtedness of a school district shall be increased, whereby they reported the number of favorable votes as 309 and the votes against 283, while in fact the correct number against was 238, is not fatal to the validity of the return. The tally-sheet showing the correct number of votes is the most important part of the return, and the election board was pr'operly allowed to come into court and correct the error on the return-sheets to make them correspond with the tally-sheets. To have done otherwise would have worked an injustice upon the electors.</p> <p>3. The return of a special election to determine whether or not the bonded indebtedness of a school district shall be increased is returnable to the Clerk of the Court of Quarter Sessions of the proper county, if the special election was held on a special date, not the date for holding general municipal elections.</p> <p>School districts — Indebtedness—Issuance of bonds — Injunction.</p> <p>4. An injunction will not be granted to restrain the issuance of bonds of a school district for the purpose of purchasing a proper site and erecting a high school thereon, where all the requirements of the Constitution and laws of the Commonwealth have been substantially complied with in the election necessary for the authorization of such an issue of bonds.</p>

<p>Attorney-General’s Department. Opinion to Hon. James Foust, Director, Bureau of Foods, Department of Agriculture.</p>

<p>Divorce — Cruel and barbarous treatment — Indignities to husband — Refusal of sexual intercourse — Act of June 25, 1895.</p> <p>1. Under the Act of June 25, 1895. P. L. 308, providing for a divorce to a wronged husband, “cruel and barbarous treatment” and “indignities to the person” are two distinct causes of divorce, and where “indignities to the person” only are alleged, cruel and barbarous treatment need not be shown.</p> <p>2. Refusal of sexual intercourse is not a ground for divorce in Pennsylvania.</p> <p>3. It is not sufficient ground for a divorce that when the husband made overtures to his wife or touched her when they were in bed together she would scream, loud enough to be heard by other persons in the house, and would cover herself up with the bedclothes and threaten to kill herself if her husband did not discontinue his approaches, or sometimes would jump out of bed and leave the room, at times going downstairs and out on to the porch in her nightclothes; that when her husband tried to reason with her she gave no excuse for her conduct, but requested him not to insist on having sexual intercourse with her, saying that then they would get along “fine;” that the wife told her mother and her husband’s mother that she never would have sexual intercourse with her husband; that upon one occasion she had her mother occupy the same bed with her and her husband, and at another time she took a young girl to bed with them; and that the situation was talked over generally by the mothers of the libellant and respondent.</p> <p>4. What acts or course of conduct will amount to such indignities as will justify the court in granting a decree of divorce seems to be nowhere defined, and they may be incapable of specification oi exact definition, but they must be such as, in the language of the act, render the libellant’s condition intolerable or life burdensome.</p> <p>5. A divorce will not be granted a husband where the indignities alleged are of a light and trivial nature, are such as the husband himself has provoked by his insistence upon having sexual intercourse with his wife, and are so unimportant in their effect as indignities under the law as to fail to justify the conclusion that the allegations in the libel have been sustained, and that the libellant’s alleged wrongs are such as to warrant the granting of a divorce.</p> <p>6. Divorce is purely a statutory right, and relief can be granted only where an actual statutory cause has been made to appear.</p>

<p>Rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., Nov. T., 1920, No. 15.</p>

<p>Workmen’s compensation — Statute of limitations — Dependent child having dependent parent — Act of June 2,1915.</p> <p>A was killed in an industrial accident May 11, 1917, leaving a widow, B, and C, an illegitimate daughter of D, daughter of A and B. The grandchild was under sixteen and wholly dependent upon her grandparents with whom she lived. B, the widow, died Dec. 7, 1918, having received compensation at the rate of 40 per cent, of A’s wages for eighty-two and four-sixths weeks. On the death of B, C’s guardian filed a petition under section 307 of the Act of June 2, 1915, P. Li 736. The defendant contended that the claim was barred because the petition had not been presented within one year from decedent’s death. The board allowed compensation. On appeal to Common Pleas: Held, that A and B stood m loco parentis to C, and that C’s right to compensation in her individual capacity began on the death of B, and, having filed her claim petition within one year from that date, she was clearly within her rights, and the award was affirmed.</p>

<p>Husband and wife — Divorce—Affidavit to libel — Affidavit must show that it was taken in the proper county — Act of June 1, 1915.</p> <p>Under the Act of March 13, 1815, P. L. 150, which, as amended by the Act of June 1, 1915, P. L. 674, requires the libellant to make affidavit to the libel before a judge or justice of the peace, or any person authorized to take acknowledgments, in the county where the injured party resides, the affidavit to the libel must show affirmatively that it was taken in the proper county.</p>

<p>Replevin — Stolen automobile — Affidavit of defence — Sufficiency thereof.</p> <p>Where the statement of claim in an action in replevin sets forth in detail facts showing a theft of the plaintiit's automobile and the present possession of it by the defendant, an affidavit of defence is insufficient to prevent judgment for the damages claimed which admits possession of the automobile but does not deny plaintiff’s title to it, or the loss of her possession of it in the manner alleged in her statement, or the damages she sets up therein.</p>

<p>Landlord and tenant — Representations of the condition of property — Premises unfit for habitation — Failwre of lessee to inspect premises — Affidavit of defence — Surrender of lease.</p> <p>1. In a suit for rent of a dwelling-house, the affidavit of defence averred that plaintiff expressly represented that the property was in good order and repair, and defendant signed the lease, relying on this representation, and that defendant did not know that the house and garage were uninhabitable, but it did not state why defendant failed to inspect the premises. The affidavit also averred that the range had been taken down or had fallen down and was unfit for use, but did not aver that it could not be put in place and made available; also that the heating apparatus was inadequate and unfit for use, but did not state how much it would cost to put it in condition; also that portions of the plumbing and the lighting fixtures had been removed and would have to be replaced, but did not describe them; that there had been a fire in the garage and portions of the ceiling and woodwork had been torn down and certain heating- apparatus had been removed, but the affidavit did not state the expense of installing new apparatus: Meld, the lessee’s eyes were her bargain, representations of the condition of the property, as distinguished from a warranty, could not affect the terms of the lease and the affidavit was insufficient.</p> <p>2. Where the lease reserved to the lessor the right to sell the premises during the term, lessor’s efforts to sell will not constitute an acceptance of surrender.</p>

<p>Wills — Construction—Will speaks from date — When gift to son’s wife does not include second wife.</p> <p>1. In ascertaining the identity of a beneficiary, a will speaks as of its date; ' hence, a reference to the wife of a legatee means one who occupied that relation at the time the will was made.</p> <p>2. A legacy in trust for testatrix’s son, A, for life, and upon his death in trust for A’s wife, B, “if his wife survive him, but if he shall leave no wife him surviving,” then this share to be paid to his children: Beld, not to include A’s second wife, whom he married after testatrix’s death.</p> <p>NOTE. — Compare Rogers’s Estate, 30 Dist. R. 448.</p>

<p>Unincorporated association — Executive board of — Rights of members of— Jurisdiction and power of court of equity over — Injunction of ultra vires and arbitrary acts of executive board — Qualification for office.</p> <p>1. The Court of Common Pleas has equitable jurisdiction over unincorporated associations, to preserve these associations and the tribunals created by their constitution and by-laws in the line of order, and to vindicate the rights of members therein against the illegal and arbitrary action of either the association or its executive officers and committees.</p> <p>2. If a proceeding of an unincorporated association, or of the executive board of Such association, against a member of the association, is not in accordance with the laws of the association, or if it is not a tona fide and fair exercise of the power given by the by-laws, a court of equity will interfere to redress the wrong.</p> <p>3. When an unincorporated association acts in a judicial capacity with reference to matters of which it has undoubted jurisdiction under its laws, its decisions are conclusive on members and all others who assert rights under such laws, but when an executive board of such an association acts beyond its powers, and in its procedure violates the elementary principles of due process of law, to the prejudice of a member, a court of equity will interfere.</p> <p>4. Where a district executive board of an unincorporated association declared that the name of a member who had been duly nominated for a district office should not be placed on the official ballot at a forthcoming election for said office, its action is ultra vires, and particularly where it appears that the board is a prejudiced tribunal and acted in an arbitrary and illegal manner, without due process of law, equity will by injunction restrain said district board from printing and distributing official ballots with the said candidate’s name omitted therefrom.</p> <p>5. The word “prior,” as used in a by-law declaring that a member “shall be eligible to hold office provided he has been a member of a local union for one year prior to his election,” is not synonymous with “immediately preceding.” “Prior” means “former,” “anterior,” “previous.” Hence, a member who has belonged to a union for more than one year at a time previous to his candidacy for office is eligible 10 office under such a by-law, even though his membership lapsed during a part of the year immediately preceding his candidacy.</p>

<p>Election laws — Parties entitled to nominate — Party -within a county — Act of July 12, 1913.</p> <p>1. The Act of July 12, 1913, P. L. 719, divides political parties into two classes, those within the State and those within a county; the second class may function when one of their candidates “at either the general or municipal election preceding the primary polled at least 5 per cent, of the largest vote cast for any elected candidate.” This alternative enables a party to test its Qualification to make nominations by either one of two preceding elections. A party within a county may, therefore, nominate candidates, although it may have had no qualified candidates at the last general election.</p> <p>2. A party within a county may nominate candidates for such offices as are to be voted for only by the electors of the county or of a political district therein, but has no power to make nomination for an office to be voted for by electors of the State at laz’ge.</p> <p>3. A party within a county may nominate candidates for delegate to the Constitutional Convention.</p>

<p>Decedents’ estates — Executors and administrators — Commissions — Cash assets.</p> <p>A 5 per cent, commission to an administrator on cash assets is excessive. A commission of 2% per cent, is a proper allowance for responsibility in all cases, with an additional percentage to be measured by the labor and trouble involved in the settlement of the estate.</p>

<p>.Roads — Opening of — Report of viewers — Damages—Appeal.</p> <p>Where viewers to lay out a public road state in their report that the benefits fully offset the damages, and, therefore, no damages are allowed, it is not necessary to state also what the damages and benefits were to each property owner. If a land owner was injured, he has his remedy in an appeal, but it is not a reason why the report should not be confirmed.</p>

<p>Sales of personal property — Failure to comply with terms of contract— Effect of delivery to carrier — Act of May 19, 1915.</p> <p>Under the Sales Act of May 19, 1915, P. L. 543, the contract must be strictly complied with in order to bind the purchaser. Therefore, delivery to a carrier is ineffective to fix liability upon the purchaser where a greater quantity of the articles than were ordered were shipped and lost, as otherwise the buyer would have no opportunity of exercising the options granted him in such cases by the 44th section of the act.</p>

<p>Chester City — Party-walls—Porch—Ornamental or special construction.</p> <p>1. The party-wall system Is applicable to the City of Chester.</p> <p>2. The purpose of party-walls is to afford economy of space and protection against fire, and that they may be beneficial to owners of adjoining tenements.</p> <p>3. The party-wall rule does not extend to porches or one-story buildings for ornamental or special use.</p>

<p>Divorce. C. P. Allegheny Co., July T., 1920, No. 883.</p>

<p>Rule for judgment for want of a sufficient affidavit of defence. C. P. No. 5, Phila. Co., June T., 1921, No. 5509.</p>

<p>Petition and answer. O. C. Phila. Co., Oct. T., 1921, No. 565.</p>

<p>Executors — Counsel performing duties of executor — Fees.</p> <p>1. Where an estate was much involved and required the constant attention of counsel, who performed many of the functions of the executor, greatly to the benefit of the estate, counsel may be compensated for services not strictly professional.</p> <p>Commissions — Executor dying before completing administration.</p> <p>2. When a deceased executor had partially administered the estate with the assistance of counsel, his estate was allowed commissions at less than the full rate of 5 per cent.</p>

<p>Trespass — Practice—Minority of plaintiff — Affidavit of defence — Practice Act of May Ik, 1915.</p> <p>In an action of trespass, the minority of the plaintiff cannot be taken advantage of by the defendant on a trial upon the merits of the case, but should be raised by affidvait of defence under the Practice Act of May 14, 1910, P. L. 483, a's it formerly should have been raised by a plea in abatement.</p>

Rule to show cause why a petition requesting an audit of a candidate’s election account should not be set aside. Q. S. Union Co., Jan. T., 1922, No. 1.

<p>Ejectment. Motion by defendant for judgment n. o. v. C. P. Fulton Co., Oct. T., 1919, No. 6.</p>

<p>Taxation — Corporations — Capital stock tax — Manufacturing — Act of June 1, 1889.</p> <p>A corporation engaged in the business of assembling, producing and installing heating and ventilating systems is not engaged exclusively in manufacturing, and is not, therefore, exempt from the capital stock tax under the provisions of section 21 of the Act of June 1, 1889, P. L. 420. It is immaterial that the corporation has the charter right to manufacture the machinery, devices and materials incidental to the business in which it is engaged, for exemption is extended only to corporations engaged exclusively in manufacturing.</p>

<p>Rule to quash writ of foreign attachment. C. P. Butler Co., Dec. T., 1920, No. 53.</p>

<p>In Divorce. C. P. Fayette Co., March T., 1920, No. 421.</p>

<p>Wills — Construction—Meaning of word “securities” — Gift to be construed according to context.</p> <p>Testator gave his trustees all his “stocks, honds and other corporate securities,” and the residue to his children. It was apparent from the context that the testator did not use the word “securities” in its technical sense, but as equivalent to "investments.” One of the assets of the estate was an account on the books of a land company, showing a sum of money due by it to testator: Meld, this debt was an investment and was included in the gift of “corporate securities” to the trustees.</p> <p>NOTE. — Exceptions were filed but subsequently withdrawn.</p>

Exceptions to adjudication. O. C. Phila. Co., April T., 1885, No. 430. Testatrix bequeathed a fund in trust, in ten equal portions, for designated persons, for their lives respectively: “And after the decease of the said tenants for life respectively in trust to assign his or her share to such person or persons as he or she shall appoint by Will and in default of such appointment to such of their children as may then be living in equal parts and shares.

<p>Practice Act, 1915 — Affidavit of defence — Sufficiency.</p> <p>1. Under the “Practice Act, 1915,” P. L. 483, an affidavit of defence must be specific, a clear, orderly and specific statement of the facts relied on by the defendant, and answer specifically all allegations of fact in the statement of claim.</p> <p>2. It is now an essential part of the pleadings and limits the admission of evidence on the part of the defendant to the issues raised thereby. Oversights may be cured by a supplemental affidavit.</p>

<p>Conversion — Bills of lading — Possession necessary to conversion — Duty of agent not in possession of goods purchased for principal to execute hill of sale to principal.</p> <p>1. There cannot be conversion of personal property without actual or constructive possession.</p> <p>2. Where defendant as agent bought goods upon order of plaintiff and delivered the evidence of title, viz., the bills of lading, to the party recognized by plaintiff in all the prior purchases as the one to whom they were to be delivered, and whose signature was necsesary to transfer the title to, and possession of. the goods to the plaintiff, if this party refuses to endorse such bills of lading, defendant is not guilty of conversion in refusing afterwards to execute a bill of sale for the goods to plaintiff.</p> <p>Corporations — Authority of officer to execute hill of sale.</p> <p>3. There is no implied authority in a secretary and treasurer of a corporation to execute bills of sale, nor is there any established custom from which as a matter of law he has such general authority.</p>

<p>Petition for mandamus. C. P. Dauphin Co., Sept. T., 1921, No. 237.</p>

Proceedings to take property for school purposes. Appeal from award of viewers. Petition for leave to withdraw proceedings. C. P. Lancaster Co., Trust Book No. 26, page 187.

<p>Attorney-General’s Department. Opinion to Hon. Bernard J. Myers, Secretary of the Commonwealth.</p>

<p>Injunction — Contract as to trade name.</p> <p>Plaintiff and defendant had been partners under the trade name of the "Paris Corset Shop.” Upon dissolution of the partnership, the defendant agreed that the plaintiff should have "the exclusive right” to the' trade name. Thereafter the defendant opened a shop within a few doors of the plaintiff's shop and made public announcement of herself as “formerly of the Paris Corset Shop:” Held, that such language merely identified the defendant by reference to her former connection, and was not a breach of the agreement as to the trade name. Preliminary injunction dissolved, with the suggestion that the defendant discontinue the exterior use of such language until final decree.</p>

<p>Res adjudicata — How far adjudication of one account is conclusive upon the audit of subsequent accounts — Law of case.</p> <p>1. A decree of the Orphans’ Court, based upon an award of distribution pursuant thereto, no appeal having been taken and no review granted, is res aiijvMcata in so far as the rights of the parties and their privies are concerned, not merely as to the principal of the fund and accrued income, which was the subject of the decree, but also as to the income thereafter accruing on the fund in the hands of the trustees and included in a subsequent account.</p> <p>2. Hence, where a clause of the will has been construed by the court in favor of the construction claimed by one of the distributees, and distribution of income made in accordance with that construction, the distributee's executor, being in privity with the distributee, cannot maintain a different construction of the will from that adopted by the court in the lifetime of his decedent where his claim relates to income accruing after the distributee’s death from the same share of principal which had been before the court in the former proceeding.</p> <p>NOTE. — See Lafferty’s Estate, 230 Pa. 496, reversing 19 Dist. R. 504, and Gould’s Estate, 270 Pa. 535.</p>

<p>Res adjudicata, — Judgment for plaintiff where set-off was pleaded by defendant in former action, conclusive in subsequent foreign attachment by defendant for sarnie cause of action.</p> <p>Where it appears from the affidavit of cause of action that the claim, upon which a foreign attachment was based is in substance the same as that alleged by the plaintiff in the attachment as a defence by way of set-off in a former action by the defendant in the attachment against him in which there was a judgment for plaintiff (the defendant in the attachment), the judgment is conclusive and the attachment will be Quashed, although the defence there pleaded is stated in the case at bar more minutely and in fuller detail than in the former suit.</p>

<p>Contracts — Reformation—Evidence—Insufficiency.</p> <p>1. One who, having made a valid' oral contract, subsequently enters into a written contract with the same party covering the same matter, cannot require a court to reform his written contract for him, in the absence of clear, precise and indubitable evidence that the contract as signed was different from his understanding of what it should be.</p> <p>Practice — Judgments—Warrant to confess — Rule to open — Ejectment.</p> <p>2. Where the defendant in a judgment in ejectment, which has been entered in pursuance of authority contained in a written contract, represents, upon a petition to open the judgment, that his contract was for a smaller total obligation than that which the plaintiff has set up against him, but it appears by the petition that he is in default even under his own statement of his undertaking, the rule to open will be discharged.</p>

<p>Appeal by defendant from summary conviction. Q. S. Luzerne Co., April Sess., 1921, No. 177.</p>

<p>Rule for a new trial. C. P. Lancaster Co., Aug. T., 1918, No. 143.</p>

<p>Rule to show cause why bail money should not be returned. C. P. Northampton Co., Nov. T., 1920, No. 98.</p>

<p>Assumpsit. Affidavit of defence raising question of law. C. P. Union Co., Jan. T., 1921, No. 47.</p>

Rule to show cause why service of summons should not be set aside and writ quashed. C. P. Allegheny Co., Jan. T., 1921, No. 2037.

<p>Female Labor Law — Employment of women in printing establishments after 10 P.M.</p> <p>under Section 4 of the Act of July 25, 1913, P. L. 1024, providing that no female shall be employed or permitted to work in any manufacturing establishment before the hour of 6 A. M. or after 10 P. M., with certain exceptions, women may not be employed to operate linotype machines in a printing establishment, as such estabment is a manufacturing establishment within the meaning of the act.</p>

<p>Indictment on return of constable. Motion to quash. Q. S. Susquehanna Co., Jan. Sess., 1921, No. 12.</p>

<p>Personal injuries — Contributory negligence — Case for jury.</p> <p>1. Plaintiff testified that he attempted to cross Broad Street from east to west at the southeast corner of Lehigh Avenue; just as he was leaving the sidewalk, he looked south and saw the lights of an automobile 300 feet away; he stepped into the cartway and, when from six to eight feet from the safety platform in the middle of the street, which divides vehicular trafile running north and south, he heard a buzzing sound to his left, and upon looking saw the lights of an automobile about twenty feet away. He was startled into a momentary stop: he then jumped toward the safety platform, but was struck by the automobile and sustained grievous permanent injuries. The driver did not sound his horn, but, nevertheless, through some defect of the engine, according to one of plaintiff’s witnesses, it made a noise which could be heard from 150 to 175 feet away. The jury brought in a verdict for 530,000. On motion for new trial: Held, that the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury, and new trial refused.</p> <p>Personal injuries — Dismissal of petition for medical examination — Appeal pending — Continuance.</p> <p>2. A continuance will mot be granted in an action for personal injuries upon the ground that an appeal is pending in the Supreme Court from the action of the Court of Common Pleas in dismissing a petition by defendant for a medical examination of plaintiff.</p> <p>New trial — Dismissal of petition for medical examination — Offer by plaintiff to permit medical examination on condition that defendant’s experts be called if favorable to plaintiff.</p> <p>3. Where, notwithstanding the refusal by the court of defendant’s petition for a compulsory medical examination of plaintiff, counsel for plaintiff offered to counsel for defendant an opportunity for examination upon condition that the latter would call the examining physicians as witnesses whether their findings were favorable or unfavorable to defendant’s cause, and defendant’s counsel declined the offer, a new trial will not be granted on the ground that the petition for examination was improperly refused.</p> <p>New trial — Personal injuries — Excessive damages.</p> <p>4. Where the plaintiff, a pedestrian, had been grievously and permanently injured by collision with defendant’s automobile in attempting to cross a city street, a verdict of $30,000 was sustained, and rule for new trial dismissed.</p>

<p>Vendor and vendee — Executory agreement — Interest of ‘parties.</p> <p>1. Upon the execution of an agreement for the sale of real estate the vendee becomes the equitable owner; any right claimed by the vendor must have been specifically conferred in the agreement.</p> <p>Bill for specific performance — Demurrer—Admission of construction of agreement averred in bill.</p> <p>2. A demurrer to a bill for specific performance admits the construction placed upon the agreement of sale by the bill in the absence of anything in the bill, or exhibits attached thereto, that would indicate a different meaning; the fact that the copy of the agreement of sale attached to the bill refers to a schedule which is not attached as an exhibit, and which might possibly have shown the construction placed upon the agreement as inadmissible, will not prevent the application of the principle.</p>

Exceptions to adjudication. O. C. Phila. Co., July T., 1879, No. 82.

<p>Municipalities — Boroughs — Water-works—Sale of power — Private use— Use of streets — Equity—Remedy—Recording in ordinance book — Submission to burgess — Advertising contracts — Act of May 14, 1915.</p> <p>1. A municipal corporation has no powers other than those expressly conferred hy legislative authority or fairly incident thereto or implied therefrom, or such as are indispensable for the purposes for which the corporation exists.</p> <p>2. Power in a municipality to enter into the business of providing and selling water and light to its inhabitants is not necessarily implied from the mere creation of the municipality. The power to do so must, like other powers, depend upon a grant of authority, general or special, express or implied, from the legislature.</p> <p>3. The power given to boroughs by the General Borough Act of May 14, 1915, P. L. 312, to “provide a supply of water for the use of the public within such borough,” must be exercised for the benefit of the inhabitants generally, and not any section or group of them.</p> <p>4. A borough owning a water plant with engines which, when properly operated, produce no more power than is necessary for the water system, has no power to make a contract with a limited partnership association by which the latter is given authority, for a consideration named, to install a generator and develop electricity from the excess power thus secured, for the use of the members of the association exclusively.</p> <p>5. The borough has no authority to grant such an association the use of the public streets with its poles and wires upon the condition that “electricity shall be furnished only for use of the members of the company or for the use of their tenants and lessees.”</p> <p>6. An enactment of a borough council, whether ordinance, resolution or motion, which provides for the permanent regulation of the government of the borough, or the creation of liability by contract, or permanent occupation of the streets, is legislative as distinguished from being merely ministerial, and, as such, falls within the statutory requirements as to being advertised and recorded in the ordinance book and submitted to the burgess for his approval.</p> <p>7. Where a borough council wrongfully contracts for the use of its water plant and public streets by private parties for their own use and advantage, citizens and taxpayers may maintain a bill in equity for an injunction to restrain the carrying out of such contract.</p> <p>8. The remedy provided by the Act of May 14, 1915, § 9, art. i, ch. vii, P. L. 312, 393, is not appropriate in such case, inasmuch as it was intended to apply to cases where the action was regular and authorized by statute, but in some way especially injures some particular person.</p> <p>NOTE. — An appeal was taken In this case, but was subsequently abandoned.</p>

<p>Breach of promise to marry — Oral or written promise — Statement signed by attorney — Amendment—Practice Act, 1915.</p> <p>1. tinder the Practice Act oí May 14,1915, P. L. 483, it is necessary for the statement in an action for breach of promise to marry to set forth whether the promise was oral or written.</p> <p>2. Under the act, a statement must be signed by the plaintiff’s attorney, if there be an attorney.</p> <p>3. The statement may be sworn to by some one other than the plaintiff having knowledge of the facts. If he alleges that he has such knowledge, the affidavit is sufficient without giving the source of his knowledge.</p> <p>4. Statements not signed by the plaintiff’s attorney or not stating whether the contract sued upon is oral or written may be corrected by amendment..</p>

<p>Costs — Practice, C. P. — Malicious prosecution — Statute of 22 and 23 Charles II, chap. 9.</p> <p>The British Statute of 22 and 23 Charles II, ch. 9, entitled “An act for laying impositions on proceedings at law,” does not apply to an action of trespass for malicious prosecution.</p>

<p>Taxation — Corporations—Tax on loans — Foreign corporations — Non-resident treasurer — Act of July 15, IS 19 — Constitutionality.</p> <p>1. The Act of July 15, 1919, P. L. 958, amending the Acts of 1885 and 1913, so as to impose on non-resident treasurers of foreign corporations the duty of acting as agents for the Commonwealth in collecting the tax due from the individual residents of Pennsylvania who own bonds of such corporations, is unconstitutional.</p> <p>2. The Commonwealth of Pennsylvania cannot constitutionally impose upon a foreign corporation the duty of requiring its non-resident treasurer, when paying outside of the State the interest on its bonds, to deduct from such interest the tax due to the Commonwealth from the holders of the bonds residing in Pennsylvania.</p>

<p>Bill to remove cloud from title. C. P. No. 1, Phila. Co., Dec. T., 1920, No. 5688.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1919, No. 351.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1897, No. 477.</p>

<p>Fixtures — Personal property attached to real estate — When such property becomes fixtures — Intention of vendor of real estate to treat personal property as fixtures — Question for the jury.</p> <p>1. Plaintiff sold and conveyed a mansion-house and lot to A, and left therein certain chandeliers, electroliers and lighting fixtures incident to the building, which were specially purchased for it and connected with it at the time it was built by plaintiff, and used and enjoyed by him while he occupied it for nine years. These articles were not mentioned in the deed, but they constituted a necessary part of the lighting system, and corresponded wüth the interior arrangement and color scheme of the various rooms. A sold and conveyed the real estate to defendant, and, after the payment of the consideration money, plaintiff notified defendant that the articles above referred to were his property and had not been included in his conveyance to A. He requested defendant to deliver them to him or to permit him to remove them. Defendant refused, claiming they belonged to him; whereupon plaintiff brought suit for damages for trover and conversion: HeM, it was a question for a jury whether or not plaintiff intended the articles to become part of the real estate and to pass by the conveyance of the property to A. If such was plaintiff’s intention, then the articles passed to defendant under the conveyance by A, and plaintiff could not recover.</p> <p>2. Under these circumstances plaintiff’s intention to sell the articles to A would be presumed, but this presumption could be rebutted by evidence of a contrary intention.</p> <p>3. The controlling intention was not the secret design which might have dwelt in the mind of the plaintiff and of which he alone could speak, but the intention, which flowed, apparent to all, from the character of the fixtures for permanency, the mode of their annexation, and the clear purpose to be served, the manifest relation which the fixtures bore to the realty, and the visible effect of their severance therefrom.</p>

<p>Equity practice — Jurisdiction attacked in limine by demurrer — Act of June 7, 1907.</p> <p>Where, in a bill in equity, the claim of the plaintiff is for damages for breach of a contract for the delivery of stone, and an allegation of fraud and a request for an accounting are only incidental thereto, upon a demurrer filed, setting up adequacy of the remedy at law, the cause will be certified to the law side of the court under the Act of June 7, 1907, P. L. 440.</p>

<p>Petition for partition. O. C. Schuylkill Co.</p>

<p>Criminal law — Rape and bastardy — Statute of limitations — Absence of defendant — Noru-residence—Evidence—Sufficiency.</p> <p>Where a prosecution for rape and bastardy Is not commenced until more than 1wo years after the alleged commission of the offence, and upon the charge that the defendant is a non-resident and fled the jurisdiction, the testimony of unsuccessful efforts to locate him is vague and indefinite, disclosing no real effort, no diligent search, no inquiry at his parents’ home, a verdict of guilty cannot be sustained in the face of defendant’s evidence that he was residing and employed in the State during the entire period, and could have been reached at any time upon inquiry at his parents’ home or among his friends.</p>

<p>Practice, C. P. — Affidavit of defence — Failure to serve — Failure to endorse address within county — Motion to strike off.</p> <p>Where a copy of an affidavit of defence has not been served in the manner provided by law, and no address within the county has been endorsed thereon, the remedy is not by a rule for judgment for want of an affidavit of defence, but by motion to strike the affidavit from the record.</p>

<p>Rule to vacate turnpike condemnation proceedings. Q. S. Bucks Co.</p>

<p>Wills — Construction—Gift to testator’s heirs — Distribution per stirpes to children and grandchildren.</p> <p>1. Where the will of the testator grave bequests to his living children and grandchildren, and then added “and should any balance remain thereafter, said balance to be equally divided among all my heirs:” Held, that the distribution to children and issue of a deceased child should be per stirpes and not per capita.</p> <p>2. When a devise or legacy is given to heirs or their representatives, distribution will be made in accordance with the general principles governing the descent of estates of intestates, unless a contrary intention appears in the will; and by the Act of April 8, 1833, P. L. 316, children and descendants of children take per stirpes.</p> <p>Ashton’s Appeal, 134 Pa. 390, distinguished.</p>

<p>Fire insurance — Statement of claim — Waiver of proofs of loss — Aver-ments of.</p> <p>1. In an action on a fire insurance policy which requires proofs of loss to be furnished within sixty days after the fire, unless such time be extended in writing, an averment in the statement of claim that plaintiff was informed that there was no necessity to file a proof of loss until a settlement should be arrived at is insufficient, as such averment fails to show from whom the information was received or what representative or agent misled the plaintiff or under what authority they acted.</p> <p>2. So, also, an averment in the statement that proofs were not furnished because plaintiff had been requested by defendant not to furnish them during negotiations for settlement is insufficient, in the absence of an averment that the alleged request extended the time beyond the sixty days.</p>

<p>Wills — Construction—Gift of one-half of whole estate, followed by general and residuary legacies.</p> <p>1. A gift of one-half of testator’s “whole estate” refers to the net estate, that Is, what remains after payment of debts and administration expenses.</p> <p>2. When such a gift is followed by general and residuary legacies, the general legacies are payable out of the remaining one-half of the estate before the residuary estate is ascertained.</p>

<p>Replevin. Motion for judgment for want of a sufficient affidavit of defence. C. P. Dauphin Co., Sept. T., 1920, No. 727.</p>

<p>Rules for new trial and for judgment n. o. v. on question reserved. C. P. Crawford Co., Sept. T., 1918, No. 107.</p>

<p>Rule to quash writ and petition to amend prtecipe, etc. C. P. Schuylkill Co., Jan. T., 1921, No. 36.</p>

<p>Sheriff’s sales — Setting aside — Standing of judgment creditor as except-ant — Inadequacy of price — Insufficient advertisement.</p> <p>1. A judgment creditor, whose lien has been discharged by a sheriff’s sale, which did' not produce sufficient funds to pay his judgment, has standing to complain of an irregular sale.</p> <p>2. A sheriff’s sale will be set aside where the price was inadequate, a bond is offered for a substantial increase on resale, and the following irregularities appear in the advertisement: (a) One messuage and two tracts are described as “two certain messuages and tracts of land.” (5) It does not state whether the tracts are contiguous, (c) It does not show upon which of the two tracts the messuage is situated, (d) While the description shows each tract to be bounded by a public road, it does not show whether it is the same road in each case, or what road, (e) It does not show the location of the property except by naming the township, county and state in which it is situated.</p>

<p>Workmen’s Compensation Act — Interstate commerce — Railroad car carried between points in this State over a road partly in another state.</p> <p>1. Claimant, while employed as a brakeman by the defendant company in its yards at Paekerton, Pa., fell from a car and was injured. This car was consigned to Philadelphia over a connecting road which passed through another state: Held, that he was engaged in interstate commerce, and not within the Workmen’s Compensation Act.</p> <p>2. To bring the transportation within the control of the State as part of its domestic commerce, the subject transported must be under the exclusive jurisdiction of the State during the entire voyage.</p>

<p>Divorce — Vacation of decree — Want of jurisdiction — Collusion.</p> <p>1. A respondent who entered an appearance In divorce proceedings, though it was subsequently withdrawn, cannot have the decree set aside for lack of jurisdiction, on the ground that neither the libellant nor the respondent was a resident of the county in which the suit was brought.</p> <p>2. A respondent who entered into an agreement with the libellant not to resist the divorce cannot have the divorce set aside for collusion.</p>

<p>Equity — Injunction—Common carriers — Competing bus line — Certificate of public convenience — Interstate commerce.</p> <p>1. The court will grant an injunction upon the petition of a street railway company to enjoin the operator of a competing bus line from operating any autobus, etc., for the transportation of passengers for hire until such operator has obtained a certificate of public convenience from the Public Service Commission.</p> <p>2. The injunction will be granted even though the defendant’s autobus line extends into an adjoining state and is engaged in interstate commerce, if there is no Federal legislation inconsistent with the granting of the same.</p>

<p>Landlord and tenant — Distraint—Jurisdiction, J. P. — Act of March 20, 1810 — Certiorari.</p> <p>1. In a proceeding before a justice of the peace by a tenant under the Act of March 20, 1810, § 20, 5 Sm. Laws, 161, 170, to establish a set-off against rent after a distress, the justice has no jurisdiction to enter any judgment, or to issue any process to enforce his decision. In such a case the justice simply notes his determination, but enters no judgment.</p> <p>2. Where, in such a case, the justice enters judgment and issues execution, a certiorari will not be quashed because it was not sued out within twenty days after judgment, as the judgment was void for want of jurisdiction.</p> <p>NOTE. — See Hilke v. Eisenkeis, 104 Pa. 514, and Fowler v. Eddy, 43 Legal Intell. 17.</p>

<p>Res judicata — Judgment in Municipal Court for property damages bars subsequent action in Common Pleas for personal injuries.</p> <p>1. Where by a single tortious act of the defendant the plaintiff has suffered injury to his property and person, he must include both claims in the same suit.</p> <p>2. In Pennsylvania the cause of action has no relationship to the items of damage; it is the negligent act or acts which occasioned the injury.</p> <p>3. Based on the doctrine of res judicata, the former recovery can be invoked at any time without pleading.</p> <p>4. A judgment in the Municipal Court for damages to plaintiff’s horse, wagon and harness by defendant’s negligence is a bar to a subsequent action in Common Pleas against the same defendant for personal injuries caused by the same collision, although the first action was brought exclusively for property damages.</p>

<p>Affidavit of defence — Precision required in averments — Automobile theft insurance.</p> <p>1. In an action on an insurance policy indemnifying the plaintiff against loss by theft of an automobile, where the statement avers that the automobile was stolen from plaintiff "without any act or design or procurement on his part or in consequence of any fraud or evil practice done or suffered by him," an averment in the affidavit of defence is insufficient which denies that the automobile was stolen from him and suggests that, if stolen, the theft may have been accomplished through his own “act or design or procurement;" there must be a distinct specification of such act or procurement, if relied on.</p> <p>Affidavit of defence — Denial of averments of damage — Precision required.</p> <p>2. In an action for loss of an automobile, where plaintiff avers that loss was in excess of $4000, an averment in the affidavit of defence that the automobile was not worth $4000 is insufficient, unless coupled with a statement of value to indicate whether or not a substantial difference exists between what defendant claims was the actual value and that averred in the statement.</p>

<p>Bill, answer, replication and proofs. C. P. No. 2, Phila. Co., June T., 1921, No. 3488, in Equity.</p>

<p>Jurisdiction, Q. S. — Venue of crime must be established.</p> <p>1. To sustain a conviction of crime, the locality of the crime must be proved to have been within the jurisdiction of the court, i. e., within the county.</p> <p>2. Where the evidence fails to show that the crime was committed within the county, and merely shows the location of certain streets and houses, without indicating in what county such streets and houses are, the court will grant a new trial after conviction, but will not arrest the judgment.</p> <p>NOTE. — The essential part of the opinion of Judge Bell, in Com. v. Julia, Q. S. Phila. Co., March Sess., 1920, No. 530, was as follows:</p> <p>“Concededly what occurred took place at these two points, and there is nothing in the evidence which indicates that this was in the County of Philadelphia, or City of Philadelphia, and there are’no other references in the testimony which indicate where these things occurred. Prom the reading of the testimony alone it would not he possible for anybody to know in what county these houses were. The other references to places are consistent with it happening in almost any city. 'While George L. Potter is referred to as an officer in the title, there is nothing to that effect in his testimony, and we are wholly unable to find any evidence here which shows that the offence was committed within the City or County of Philadelphia, or that the places mentioned are within that city or county, nor can we discover any circumstantial evidence that will sustain the conclusion. In the press of the trial, and, doubtless, everybody taking it for granted that the matter occurred within Philadelphia, there is neither direct or circumstantial evidence of the fact, unless it is to be found in the designation of those two places, 823 Pernon Street and 2064 Wharton Street. That this is insufficient has been held in various cases: State v. Schuerman, 70 Mo. App. 518; Kolman v. State, 124 Ga. 63 (52 S. E. Repr. 82); People v. 0:Gara, 271 Ill. 138 (110 N. E. Repr. 878); Brunson v. State, 4 Okla., Crim. App. (115 Pac. Repr. 606); Simpson p. City of Macon, 8 Ga. App. 535 (69 S. E. Repr. 1084.). '</p> <p>“We do not find any decision in Pennsylvania directly upon this Question, but we think to sustain this conviction would be going further than any authority in Pennsylvania has ever authorized. It follows, therefore, that the evidence was not sufficient, and that a new trial must be granted. The court cannot arrest the judgment because of insufficiency of evidence: Com. v. Gurley, 45 Pa. 392.”</p>

<p>Rule to strike off judgment of non-suit. C. P. Lancaster Co., Jan. T., 1919, No. 71.</p>

<p>Motion for judgment for plaintiff. C. P. Lawrence Co., Sept. T., 1918, No. 42.</p>

<p>Petition for counsel fees and alimony. C. P. Dauphin Co., March T., 1921, No. 59.</p>

<p>Appeal from justice of the peace. C. P. Snyder Co., Dec. T., 1920, No. 2.</p>

<p>Vendor and vendee — Executory contract — Defective title.</p> <p>1. In an action by vendor against vendee for purchase money, it is a good defence that part of the land which the vendor undertook to convey was reserved by his grantor for a burial lot.</p> <p>Cemetery companies — Sale of land — Rights of owners — Charters—Trusts —Act of June 7, 1917.</p> <p>2. Where a church holds title to land under restrictions, requiring it to use the ground for burial purposes, and the church has sold lots for burial purposes, it cannot sell the land thereafter without the consent of the lot owners; as to permit such a conveyance without the consent of the lot owners would be contrary to the trust imposed in the chain of title. Section 1 of the Revised Price Act of June 7, 1917, P. L. 388, has no application in such a case.</p>

<p>Citation for an order of removal. Q. S. Wyoming Co., Jan. Sess., 1921, No. 1.</p>

<p>Motion to strike off mechanic’s lien. C. P. Lackawanna Co., Mechanic’s Lien, No. 4711.</p>

<p>Equity — Demurrer—Laches.</p> <p>1. Only gross laches can be set up in a suit in equity by way of a demurrer.</p> <p>Equity — Injunction—No threatened injury — Beal ‘property — Patent of the Commonwealth — Effect on title.</p> <p>2. A patent, of the Commonwealth of Pennsylvania conveys only such title as the Commonwealth may possess. An injunction to restrain the issuance of a patent cannot be granted at the suit of one who claims the Commonwealth has no title, for the reason that the patent, if granted, will not affect either his title or his right to purchase money, and, therefore, does not threaten to do him any injury.</p> <p>Equity — Jurisdiction — Injunction — Public officers — Discretionary acts— Patents to real property.</p> <p>3. Courts cannot interpose by injunction or mandamus to limit or direct the discretion and action of departmental officers in respect to matters .within their jurisdiction and control. The Secretary of Internal Affairs, having express statutory discretion in the granting of patents to real property, cannot be enjoined from the exercise thereof.</p> <p>Equity — Jurisdiction—Title to real property.</p> <p>4. Equity courts of Pennsylvania have no jurisdiction to try title to real property except as the question of title is incidental and subordinate to other elements which call for the exercise of equitable remedies.</p> <p>Board of Property — Findings conclusive on caveator — Act of April S, 1792.</p> <p>5. Under section 11 of the Act of April 3, 1792, 3 Sm. Laws, 70, 74, the findings of the Board of Property are binding and conclusive against parties and privies to the oameat.</p>

<p>Scire facias to revive judgment. Affidavit of defence raising questions of law. C. P. Indiana Co., Sept. T., 1921, No. 219.</p>

<p>Distribution of fieri facias No. 20, June Term, 1921, and fieri facias No. 23, June Term, 1921. C. P. Beaver Co.</p>

<p>Petition for adoption. C. P. Warren Co., Sept. T., 1921.</p>

<p>Public officers — Tax collector — Appointment—Statutes—Repeal—Repeal by implication — Acts of May 17,1917, and July H, 1917.</p> <p>1. Under the General Township Act of July 14, 1917, § 183, P. L. 840, 861, the Court of Quarter Sessions has the power to fill a vacancy in the office of tax collector.</p> <p>2. The Act of May 17, 1917, P. L. 221, which vested the power in the county commissioners, is repealed by implication by the Act of July 14, 1917, F. L. 840, 861, inasmuch as the two acts are wholly inconsistent.</p> <p>3. The legislature had no power to provide, as it did in section 1501 of the Act of July 14, 1917, P. L. 840, 998, that “this act shall not repeal” any other act then in force, if the act was wholly inconsistent with an earlier act.</p>

<p>Collateral inheritance tax — Commonwealth’s right thereto not affected by renunciation of legatee — Acts of June 20, 1919, and May U, 1921.</p> <p>Under the Act of June 20, 1919, P. L. 521, direct and collateral inheritance taxes accrue immediately upon decedent’s death, and the Commonwealth’s right thereto is not affected by a subsequent renunciation of the legacy by- the legatee. Hence, where testatrix died after the passage of the Act of May 4, 1921, P. L. 341, and a collateral legatee renounced his legacy, which thereupon fell into the residue, bequeathed to lineal descendants, the Commonwealth is entitled to a tax of 10 per cent, notwithstanding such renunciation.</p>

<p>Certiorari. C. P. Lackawanna Co., Oct. T., 1920, No. 747.</p>

<p>Ejectment. Trial without jury. C. P. Crawford Co., Sept. T., 1920, No. 110.</p>

<p>Corporations of first class — Application for charter — Filing of proposed charter before application — Delivery of charter to the corporation after recording — Act of April 29,1871.</p> <p>1. Under the Act of April 29,1874, P. L. 73, a charter of a corporation of the first class, which has been approved by the court and recorded in the ofifice of the recorder of deeds, should be delivered to the solicitor of the corporation, to be delivered by him to its proper officer.</p> <p>2. The proposed charter ought to be lodged in the prothonotary’s office subject to public inspection, during the whole time of advertisement of notice of the application. After that period, when the application has been approved and recorded, it should be delivered to its owner, the corporation.</p> <p>3. The statute does not make the charter a part of the record of the court.</p>

<p>Workmen’s compensation law — Injury during noon hour — Injury in fire on premises — Negligence of claimant — Evidence—Sufficiency.</p> <p>1. The fact that the deceased workman had left the premises of his employer, the defendant company, because of a fire which broke out therein, during his noon hour, and afterwards returned to get property belonging to him, does not take him out of the course of his employment. He was on the premises where he was required by the nature of his employment to be, and his death was due to the condition of the premises at the time. Evidence of such facts is sufficient to support a finding by the referee that the employee was required by the nature of his employment to be on the employer’s premises. The question of his negligence in returning to the burning premises is immaterial. Compensation is payable to the dependents of an employee killed under such circumstances.</p> <p>Workmen’s compensation law — Injuries received while not actually engaged in the business or affairs of the employer — Workmen’s Compensation Act of 1915, sect. SOI.</p> <p>2. To make an injury compensable, where the employee is not actually engaged in the business or affairs of his employers, three requirements must be met: (X) The injury must have occurred "upon the premises occupied by, or under the control of, the employer, or upon which the employer’s business or affairs are being carried on.” (2) The employee’s presence on the premises must have been demanded by the nature of the employment. (3) The injury must have been caused either (a) by the condition of the premises, or (6) by the operation of the employer’s business or affairs thereon.</p>

<p>Practice, C. P. — Letters rogatory — Fishing expedition — Province of court— Act of April 8, 1888.</p> <p>1. The request by letters rogatory issued by a court of another state for appointment of a commissioner to take testimony in an action in that state between two corporations having their principal offices and places of business in Allegheny County, Pennsylvania, for damages for breach of contract, will not be honored where it appears that its purpose, as revealed by the interrogatories attached to the letters, is largely that of a "fishing expedition,” and particularly where the letters show that the testimony and records sought are to be used only “as plaintiff may elect.”</p> <p>2. The Act of April 8, 1833, P. L. 305, 308, does not confer jurisdiction upon our courts in cases of letters rogatory; it merely prescribes the manner of their execution when such letters are received from another state.</p>

<p>Question of law raised by affidavit. C. P. Lancaster Co., June T., 1914, No. 45.</p>

<p>Exceptions to the report of viewers. Q. S. Westmoreland Co., May Sess., 1920, No. 8.</p>

<p>Physicians and surgeons — Malpractice—Negligence—Burden of proof.</p> <p>1. A physician or surgeon who has given a patient the benefit of his best judgment is not liable for negligence, even if his judgment was erroneous, unless the error was so gross as to be inconsistent with reasonable and ordinary skill and care.</p> <p>2. In an action for malpractice by a patient against a physician or surgeon, the burden of proof is on the plaintiff to show that the defendant did not exercise reasonable care, skill and diligence in his treatment of the case. A jury may not infer negligence from the mere happening of the injury or the subsequent condition of the injured part of the body; no presumption of negligence arises from the fact that defendant failed to effect a cure. ’</p> <p>3. A jury may not be permitted to guess at the cause of the injury and find that the negligence of the defendant was the cause, where there were several other causes than the one alleged which might have produced the physical condition complained of by the plaintiff.</p> <p>4. The plaintiff, a violinist, having sustained a fracture of the wrist from a fall, on being recommended by a surgeon to have X-Ray treatment administered, employed defendant for that purpose. The X-Ray treatments were administered on or about July 5 and 19, 1918. Plaintiff’s wrist became worse some time afterward, exuding pus and sloughing flesh. He then consulted another physician and was recommended to use scarlet red ointment. He did so, and his wrist became worse. An operation was performed in December, 1919, his wrist became stiff and he was unable to follow his profession. He sued the surgeon who had given the X-Ray treatment on the ground that his whole trouble originated from an X-Ray burn. It appeared in plaintiff’s case that an X-Ray of less than ordinary strength had been administered; that scarlet red ointment applied to a surface already irritated might have produced the condition which rendered the operation necessary; and that for some time after the alleged injury he continued to play the violin: Held, that a compulsory non-suit was properly entered.</p>

<p>Practice, O. and T. — Murder—Trial—Continuance on ‘petition of counsel averring impossibility of preparing for trial by day fixed.</p> <p>Defendant, who had been indicted for murder, was arraigned Feb. 17th and pleaded not guilty; the court fixed Feb. 27th for the trial. On Feb. 23rd her counsel filed his personal petition under oath, averring, inter alia, that there were several witnesses, one in Western Pennsylvania, others outside the jurisdiction, and others Within the jurisdiction whom he had been unable to find, and whom he would have to serve with process and interview, and whose evidence he must consider in preparing the defence, and that it was impossible to do this before the day fixed for trial, and, hence, defendant could not have a fair and just trial if tried on the 27th. The averments in regard to the difficulty of getting in touch with witnesses were not denied by the answer filed by the district attorney: Held, that the case should be continued to a later date.</p>

<p>Appeal. C. P. Indiana Co., June T., 1921, No. 219.</p>

Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1899, No. 692. Testator died Nov. 9, 1890, leaving a will dated Dec. 17, 1889, duly admitted to probate. Frederick W. Knoppel, one of his sons, was paid by the testator $2988, for which sum he gave him his judgment note dated Oct. 10, 1890, payable one year after date. Other facts appear in the opinion of the court.

<p>Contracts — Consideration—Forbearance—Doubtful liability.</p> <p>1. An agreement to forbear constitutes sufficient consideration to support a contract if there is a right to sue and a Tiona -fide claim, even though the claim may not be valid.</p> <p>2. Compromise of a doubtful liability is sufficient consideration to support a contract where the contract would have constituted a complete defence to an action on the claim thus compromised.</p>

<p>Affidavit of defence — Sufficiency thereof — Sales—Warranty.</p> <p>1. An affidavit of defence should contain a clear and concise statement of the facts which constitute a basis for the assessment of damages under the legal rule by which they are measured. A warranty must be clearly stated and not left to inference.</p> <p>2. Defendant’s affidavit of defence to plaintiff’s statement of claim for a sale of 260 sacks of potatoes, less freight, admitted the shipment to, and receipt by, him of the potatoes at the price charged, but alleged the sale to him was of potatoes “good and marketable and fit for domestic use,” and admitted the sale by him of seventy-three sacks as good and salable, but averred that the remaining 187 sacks were mostly decayed and rotten, and were sold at prices representing losses: flew, that the affidavit was insufficient in not showing facts for the proper measure of damage, as for a breach of warranty or as for a breach of contract of sale.</p>

<p>Taxation of costs- — Jury fee — WitTiesses’ fees — Service of subpmna.</p> <p>1. A plaintiff may have his costs taxed on obtaining a verdict, before he has paid the jury fee-and had judgment entered, but costs can only be collected after the case is finally disposed of.</p> <p>2. Witness fees are properly charged for witnesses who were notified not to appear but failed to receive the notices, and for witnesses who were present but not called, and for serving a subpoena where the case was afterwards continued.</p>

<p>Practice — Sci. fa. sur mortgage — Parties — Terre-tenants — Default — Notice of.</p> <p>1. The only effect of a failure to name a terre-tenant in a soi. fa. sur mortgage is to leave him unaffected by the judgment on the writ, so that he can thereafter avail himself of any defence which he could have raised as a party to the writ.</p> <p>2. When a mortgage states that interest is due on a date certain, and that, upon default in payment, the whole debt shall become due and payable, no further notice to the mortgagor or terre-tenant is required, and, upon the happening of the default and the expiration of thirty days thereafter, the mortgagee may bring suit.</p> <p>Practice, C. P. — Effect of discontinuance of suit — Right to bring new suit.</p> <p>3. A voluntary discontinuance, dismissal or non-suit by a party plaintiff does not satisfy and discharge the debt or cause of action, and, hence, does not preclude him from bringing a new suit for the same cause, except where the basis of the dismissal is an agreement between the parties respecting the matters in controversy.</p> <p> Right of legal plaintiff to sue without joinder of equitable plaintiff. </p> <p>4. In the absence of an averment of payment of any part of the debt secured by the mortgage, it is no defence to aver that other persons besides the plaintiff are interested in the amount claimed.</p>

<p>Rule to vacate extra-territorial service as to Mabel Lesko. C. P. Crawford Co., Nov. T., 1920, No. 2, in Equity.</p>

<p>Appeal from decision of the Workmen’s Compensation Board. C. P. Schuylkill Co., Sept. T., 1921, No. 464.</p>

<p>Bill, answer, replication and proofs. C. P. No. 5, Phila. Co., June T., 1919, No. 2323, in Equity. _</p>

<p>Adjudication. Account of Charles J. Schaefer, surviving trustee, and Chelten Trust Company, substituted trustee. O. C. Phila. Co., Oct. T., 1909, No. 415.</p>

<p>Statute of frauds — Promise not within the statute — Promisor with funds— Estoppel.</p> <p>1. Where a person who promises to pay the debt of another has in his hands funds of such other applicable to payment of the latter’s debts, he is bound by such promise, although it is not in writing.</p> <p>2. Even if he has not such funds, yet if he. says at the time that he makes the promise that he has the funds, and property is released from attachment in consequence, he is estopped from denying his liability.</p>

<p>Practice, C. P. — New trial — Defective record — Omission by court stenographer.</p> <p>Where, upon a motion for new trial, it is impossible to ascertain just what the ruling of the court was upon a particular matter at the former trial, because the court stenographer has omitted the objections and rulings thereon from the record, a new trial will be granted in order that justice may be done.</p>

<p>Small Loans Act — Usury—Act of June 17, 1915.</p> <p>Under the Small Loans Act of June 17, 1915, F. L. 1012, a loan of more than $300 by any person, partnership, association or corporation to a single individual is unauthorized.</p>

<p>Foreign attachment. Rule to show cause on petition of S. S. McIntyre to intervene. C. P. Warren Co., March T., 1921, No. 18.</p>

<p>Justice of the peace — Transcript—Surety of the peace — Act of March 18, 1909.</p> <p>The justice of the peace is required by the Act of March 18, 1909, P. L. 42, to find on the record in surety of the peace cases that the prosecutor’s danger of hurt is actual. This requirement is jurisdictional, and without such a finding malicious threats with intent to do harm are not sufficient, and the information, return and transcript will be quashed upon motion.</p>

<p>Inheritance transfer tax — Resident trustee — Deceased non-resident cestui que trust — Act of June 20, 1919.</p> <p>1. Stocks in Pennsylvania corporations held by a resident trustee under a deed of trust providing that the income should be paid to a non-resident settlor for life, and on his death the corpus turned over to his executors or legal representatives, on the death of the settlor are subject to the inheritance transfer tax of 2 per cent, imposed by the Act of June 20, 1919, P. L. 521.</p> <p>2. Bonds and mortgages forming a part of the corpus are not liable to the tax.</p> <p>3. The court will not award the tax to the Commonwealth unless the property has been duly appraised as prescribed by the act; in the absence of such appraisement, the court will direct the trustee to retain the fund until the appraisement has been made.</p> <p>Semble. It is the duty of the trustee to apply to the Auditor General for an appraisement.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., July T., 1887, No. 137.</p>

Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 658.

<p>, Statute of limitations — Waiver—Testamentary acknowledgment of debt identified by declaration to residuary legatee.</p> <p>1. Where a. testator, who had borrowed money from his son, H., for which he had given him a written acknowledgment of indebtedness, directed in his will that H. should be paid 4 per cent, interest on all money borrowed from him, and subsequently told one of the residuary legatees that H. had the paper showing the amount of money that had been borrowed, which paper should be presented “if anything happened,” and H. should get his money, the testimony of the residuary legatee is competent, as it was against his interest so to testify, and sufficiently identifies the debt acknowledged in the will to waive the bar of the statute of limitations.</p> <p>Beneficial societies — Death benefits distinguished from funeral benefits.</p> <p>2. Whether a benefit paid the widow of a deceased member of a fraternal beneficial society is a funeral benefit or a death benefit depends upon the constitution, and by-laws of the society. Money paid as a funeral benefit is impressed with a trust for that purpose, and the estate of the deceased cannot be resorted to for payment of such expenses until the funeral benefits are exhausted.</p>

<p>Petition of electors of Blair County for contest of election of President Judge of the Court of Common Pleas. Before the Attorney-General.</p>

<p>Rule for new trial. C. P. Crawford Co., Feb. T., 1917, No. 126.</p>

<p>Practice, C. P. — Affidavit of defence — Sufficiency—Contracts.</p> <p>1. An affidavit of defence consisting of mere negations, evasive denials, aver-ments of ignorance and conclusions of law, without stating the inquiries made, is insufficient to prevent judgment.</p> <p>2. Under the facts admitted in the affidavit the broker was the authorized agent of both parties, and the transactions effected by the broker constituted binding contracts.</p> <p>Contracts. — Bequest for cancellation — Damages.</p> <p>3. A letter reading “We would thank you to cancel all the orders that you have on file for us for sugar,” is not a repudiation of the contracts, and, therefore, has no effect upon the measure of damages.</p> <p>Contracts — Broker’s memoranda — Attempt to vary.</p> <p>4. Where the terms of a contract are evidenced by a broker’s written memorandum, these terms cannot be varied by the interpretation placed upon them by one of the parties.</p>

<p>Practice, J. P. — Summary conviction — Right of the Commonwealth to appeal.</p> <p>1. The Commonwealth has the right to appeal from a decision of a justice of the peace acquitting the defendants on proceedings under a statute providing for a summary conviction.</p> <p>Trespass — Posted property — Separate offences — Joint action — Act of April 11, 1905.</p> <p>2. Upon an information against several defendants as joint trespassers on lands posted as private property under the Act of April 14, 1905, P. L. 169, where the evidence shows distinct offences as to time and place, with no concert of action, the justice of the peace properly dismissed the case, and an appeal from, such action will be quashed.</p>

<p>Attorney-General’s Department. Opinion to Hon. Edward Martin, Commissioner of Health.</p>

<p>Practice Act of 1915 — Affidavit of defence by fiduciary.</p> <p>An affidavit of defence by a fiduciary in an action of assumpsit, in which he avers that he has a just and legal defence to the whole of plaintiff’s claim, based upon the fact that he has no knowledge that decedent made any such contract as that alleged by the plaintiff, is not in compliance with the requirements of section 7 of the Practice Act of May 14, 1915, P. L. 483.</p>

<p>Practice — Practice Act of 1915 — Set-off — Endorsement on affidavit of defence — Omission—Amendment to correct.</p> <p>It is too late, upon the trial of a case two years after filing the affidavit of defence, to permit an amendment for the purpose of correcting a failure to endorse upon the affidavit the notice required by section 15 of the Practice Act of May 14, 1915, P. L. 483, when making a claim of set-oif.</p>

<p>Exceptions to adjudication. O. C. Phil a. Co., Oct. T., 1921, No. 699.</p>

Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1914, No. 44. Testator died Aug. 3,1912, leaving a will dated Feb. 27, 1909, to which was added a codicil dated May 15, 1912.

<p>Divorce. Exceptions to report of master. C. P. Dauphin Co., Sept. T., 1920, No. 105.</p>

<p>Practice, C. P. — Rule for new trial — Depositions—Non-suil—Negligence.</p> <p>1. A rule for a new trial on account of after-discovered evidence may be engrafted on a motion to take oft an order of compulsory non-suit.</p> <p>2. In such case the court may, in its discretion, hear or reject depositions filed in support of a new trial.</p> <p>Negligence — Railroads — Walking longitudinally on tracks — Evidence— Non-suit — Contributory negligence.</p> <p>3. In an action against a railroad company to recover damages for death of plaintiff’s husband, killed at night on defendant’s tracks without any one having seen the accident, where plaintiff claims that the accident happened at a street crossing, a non-suit will not be taken off where the evidence at the trial, and depositions taken thereafter, show that the body was found on the tracks south of the crossing, but that blood was found immediately after the accident on the tracks north of the crossing, indicating that the deceased was walking on the tracks at a point north of the crossing when killed.</p>

<p>Attorney-General’s Department. Opinion to Hon. Fred Rasmussen, Secretary of Agriculture.</p>

<p>Petition of committee ad litem for leave to join in compromise. O. C. Allegheny Co., Feb. T., 1921, No. 357.</p>

<p>Motion by defendant for judgment n. o. v. C. P. Cambria Co., Dec. T., 1918, No. 502.</p>

<p>Attomey’s-General Department. Opinion to Miss Mary F. Bogue, State Supervisor, Mothers’ Assistance Fund.</p>

<p>Road law — Petition—Intermediate points — Vacation of road — Laying out of new road — Quashing proceedings after confirmation — Defect on face of record.</p> <p>1. Where a petition for the vacation of a road and the laying out of a new road sets forth intermediate points, the proceedings will be quashed, even after the confirmation of the report of viewers and the entry of an order to open the new road.</p> <p>2. Such a defect is apparent on the face of the record, is a matter of substance, and by reason of it the proceedings may be quashed at any time prior to the opening of the road.</p>

<p>Conveyances in fraud of creditors- — Delaying and hindering — 13 Eliz., c. 13.</p> <p>A conveyance of real estate to a trustee In trust to sell the same at public or private sale, as he may deem best in the interest of the grantor, and, pending the sale, "to improve the same or any part thereof,” tends to delay and hinder existing creditors in the collection of their debts and, under 13 Eliz., c. 13, is of no effect as against them; hence, one who was a creditor when the conveyance was made may reduce his claim to judgment and proceed against the rents and the proceeds of the sale of the property by attachment execution, serving the trustee as garnishee.</p>

<p>Uniform bill of lading — Requirement that suit be brought, in case of failure to deliver goods, within two years and one day after reasonable time for delivery has elapsed.</p> <p>1. The clause in the uniform hill of lading requiring that in case of failure to make delivery, suit shall he brought within two years and one day after a reasonable time for deliverey has elapsed, is valid and will be enforced.</p> <p>2. Plaintiff shipped household goods at Huntingdon, Mass., consigned to herself (at Philadelphia, on or about Nov. 21, 1917. They were not delivered, and to her inquiries defendant replied that they had not arrived and could not be found. In 1919 the goods were found, but defendant’s agent demanded storage charges. Later, defendant offered to deliver the goods upon payment of hauling charges. This the plaintiff refused. On May 7, 1920, she made a formal demand, which defendant refused on May 8, 1920. On May 29, 1920, she brought suit: Held, that the suit was unreasonably delayed, and under the above clause could not be maintained.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1879, No. 448.</p>

<p>Partnership — Family name — Fictitious names — Act of June 28, 1917.</p> <p>A partnership between father and son, not registered under the Act of June 28, 1917, P. L. 645, but continuing a lawful business under the family name, was held not within the meaning of the act, and an appeal was allowed from the County Court, where a verdict had been directed in favor of defendant.</p>

<p>Liquor law — 18th Amendment — Constitutionality of Act of May 5, 1921 (Woner Act) — Art. Hi, sections 3 and 6, of Constitution.</p> <p>1. The Act of May 5, 1921, P. L. 407 (known as the Woner Act)r amending the Brooks High License Act of May 13, 1S87, P. L. 108, violates art. 3, § 3, of the Constitution, requiring the subject of a bill to be clearly expressed in its title, in that it attempts to amend other acts of assembly not referred to in the title.</p> <p>2. Section 1 of the Act of May 5, 1921, P. L. 407, which defines the phrase “vinous, spirituous, malt or brewed liquors” and the word “liquors” to “mean vinous, spirituous, malt or brewed liquors fit for beverage purposes other than such as are from time to time determined and found to be intoxicating by Act of Congress,” etc., and defines the phrase “intoxicating liquors” to mean “anything found and determined from time to time to be intoxicating by Act of Congress,” etc., violates art. 3, § 6, of the Constitution, in that it attempts to write into the statutes of Pennsylvania the present and future Federal legislation on the subject of intoxicating liquors by reference only, i. e., without re-enacting and republishing the statutes so attempted to be incorporated into the Pennsylvania law.</p> <p>3. Other sections of the Act of May 5, 1921, P. L. 407, relating to the petitions for licenses are also void, because they are so necessarily dependent upon, interlocked and connected with the first section that it may be presumed that the legislature would not have passed one without the other.</p> <p>4. The Act of 1921 being void, the petition must conform to the Act of 1887; and if it fails to allege that the place to be licensed is necessary or to contain the names of two sureties, it is defective, and license will be refused.</p> <p>5. The Act of 1887 places no restrictions or limitations upon the licensee concerning the alcoholic contents of the liquors which can be sold under the law, and, it seems, the court is without power in granting a license to impose such restrictions or limitations upon him without legislative authority.</p> <p>Semble. The ISth Amendment, while it has not repealed the prohibitory sections of the license law of Pennsylvania, does repeal that portion of the Act of 1887 which authorizes the courts to grant licenses for the sale of liquors.</p>

<p>Exceptions to distribution. C. P. Dauphin Co., Equity Docket, No. 665.</p>

<p>Practice, C. P. — Statement of claim — Affidavit of defence — Act of May lb, 1915.</p> <p>1. Under the Practice Act of May 14, 1915, P. L. 483, an affidavit of defence which consists of a bald denial of the several paragraphs of the statement of claim is insufficient.</p> <p>2. When a defendant denies the accuracy of a statement of fact, he must also aver the true fact.</p> <p>Set-off — Freight charges — Goods lost or damaged.</p> <p>3. In an action by a railroad company for freight charges, the defendant cannot set-off a claim for goods lost or damaged.</p>

Rule on William K. Miller, Master, to show cause why Mrs. Lillie S. Harter, a sister and blood relative of said Miriam O. Wagenseller, should not be permitted to inspect his notes of testimony, etc., and introduce testimony, etc., in her behalf, etc. C. P. Snyder Co., Oct. T., 1920, No. 39.

<p>Commodities — Packages — parking of packages — Acts of April 1, 1797, and July 24,1913.</p> <p>1. Under the Act of April 1, 1797, 3 Sm. Laws, 294, all packages of bread must be marked with the weight.</p> <p>2. Under the Act of July 24, 1913, P. L. 965, all other articles, not specifically mentioned in particular acts of assembly. If in package form, must be marked on the outside of the package in terms of numerical count, if such term of numerical count is applicable to the contents of the package, and will inform the purchaser of the package as to the quantity of the particular article therein contained.</p>

<p>Taxpayers’ bill to restrain alleged illegal payment of public money. C. P. No. 4, Phila. Co., June T., 1921, No. 8338.</p>

<p>Appeal from fine imposed for violation of regulation of Commissioners of Fairmount Park. Q. S. Phila. Co., March Sess., 1922, No. 16.</p>

<p>Promissory note — Stock subscription — Valuable consideration — Affidavit of defence — Act of May 16,1901.</p> <p>1. Under the Negotiable Instruments Act of May 16, 1901, art. ii, § 25, P. L. 19t, providing that an antecedent or existing debt constitutes value, a promissory note given by the maker to a corporation for a part of his unpaid subscription to its capital stock is sustained by a valuable consideration.</p> <p>2. It is no defence to an action upon such a note that the corporation refused to deliver the stock until the note was paid, holding it as collateral; or that the corporation had failed to comply with the directions of the act of assembly, which authorized it to allot the shares to other shareholders in the event of the nonpayment of subscriptions, and if they did not take the stock, to sell it at auction after due public notice.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1896, No. 330.</p>

<p>Private corporations — Colleges—Expulsion of students by faculty — Trial —Right of student to reinstatement by mandamus.</p> <p>1. Where a student is -wrongfully expelled from a college which is maintained by a private corporation of the first class that obtains all its funds from private benefactions and charges made against those who attend its courses, and receives no pecuniary aid from the State or the public, and the relation between the student and the college is solely contractual in character, the Court of Common Pleas, is without jurisdiction to issue a writ of mandamus to compel reinstatement.</p> <p>2. The law affords other adequate remedy for the wrong done.</p> <p>3. When the regulations of such a college, and one of the conditions under which the student obtained entrance to it, provide that “the college reserves the right to exclude at any time students whose conduct or academic standing it regards as undesirable,” the college Is not required, before it excludes a student whose conduct it regards as undesirable, to prefer charges and vouchsafe to her either trial or hearing.</p> <p>4. The principle of the preceding paragraph is not affected by the fact that before taking action the college afforded the student, who was reasonably suspected of improper conduct, an opportunity for explanation, even though the fact that she had been suspected and invited to explain her conduct became known to other students.</p> <p>5. To inform the relator that she was suspected of improper conduct, and to invite her to explain it, is not equivalent to charging her with such impropriety.</p> <p>6. Where, by the plan of government of a college, the actual exercise of the management, care and control of the college affairs has been delegated by the trustees to a board of directors, subject to the supervision and control of the former, and by the plan of government adopted by the board of directors the president, as principal executive, has power to impose the more serious penalties for all nonacademic offences, including suspension and expulsion of students without the right of appeal to either board, the court is without power to control the exercise of the president’s official discretion.</p> <p>7. A, who had been a student of Bryn Mawr College, a private corporation maintained by private bequests and gifts, after she had been in attendance about a year and six months, was informed, while away on her Easter vacation', that she should not return. It appears that shortly before leaving college she had been suspected of thefts of small sums of money from fellow-students. The matter had been investigated, ex parte by the Dean, and A had, on several occasions, been questioned before fellow-students, who held office under the students’ association for self-government, and did not request an opportunity to call witnesses in her favor, although there had never been a formal trial. The matter was then taken up informally. for further investigation by the members of the board of directors. The President finally decided that the aforesaid notice should become effective. A then proceeded by mandamus for reinstatement: Held, that, under the foregoing principles, a peremptory writ should be refused.</p>

<p>Building and loan associations — Power to borrow money — Certificates of indebtedness — Temporary loans — Act of June 25,1895.</p> <p>1. Under the Act of June 25, 1895, B. L. 303, a building and loan association may temporarily borrow money by the issue of certificates of indebtedness, where it is necessary to meet demands occasioned when a series of stock has matured, or when applications for loans shall exceed the accumulations in the treasury.</p> <p>2. The words “make temporary loans,” as used in the act, must be interpreted as meaning "borrow” or “secure a loan.”</p>

<p>Motion for judgment non obstante veredicto. C. P. Dauphin Co., Jan. T., 1917, No. 339.</p>

<p>Motion for judgment for want of a sufficient affidavit of defence. C. P. Dauphin Co., June T., 1920, No. 25.</p>

<p>Rule for judgment on question of law raised by affidavit of defence. C. P. No. 5, Phila Co., March T., 1921, No. 4980.</p>

Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1900, No. 130. The auditing judge, Thompson, J., said in his adjudication: “As appears from his affidavit hereto attached, Frank Moss is in his eighty-fourth year, was married on April 18, 1885, to Annie Bathhurst, who is still living and now seventy-six years of age, and there has been no issue of their marriage.

<p>Wills — Construction—Misnomer of legatee.</p> <p>Testator left the residue of his estate to his brother “Prank Ted Lewis and his sister Nan C. Lewis, share and share alike-’’ He never had a brother and sister of these names. He had a sister Hannah, who for thirty years had been married to Lewis C. Thompson. The relations between the testator and his sister and brothev-in-law were friendly, and he called Thompson by his first name. Hannah Thompson was generally known by testator and her friends as Nan; a brother Prank predeceased him: -Held, that Hannah Thompson was entitled to the entire estate.</p>

<p>Motion for certificate for costs. C. P. Butler Co., Sept. T., 1915, No. 25.</p>

<p>Petition for leave to revoke widow’s election. O. C. Allegheny Co., June T., 1921, No. 459.</p>

<p>Petition to enjoin sale and compel more detailed inventory. O. C. Washington Co.</p>

<p>Automobiles — Fines — When payable to Commonwealth — Special Act of March 17, 1865, relating to Franklin and other counties — General Act of June SO, 1919.</p> <p>1. Pines imposed in Pranklin County for violations of the provisions of the Automobile Act of June 30, 1919, P. L. 678, other than for those relating to weight and speed, are payable under the terms of that act to the State Treasurer, and not for the use of the county law library, as provided by the local Act of March 17, 1865, P. L. 40S.</p> <p>2. The two acts are not inconsistent, and the later does not repeal the earlier, inasmuch as they refer to different subjects.</p>

<p>Election law — Primary elections — Writing name in blank space — Cross-mark — Act of July 12, 1913.</p> <p>1. Where a voter writes the name of his candidate in the blank space provided for that purpose in the ballot, such vote must be counted.</p> <p>2. No cross-mark is necessary, inasmuch as the form prescribed by the Act of July 12, 1913, P. L. 719, does not provide a square for a cross-mark in such blank space.</p>

<p>A contested nomination for the office of burgess in a borough. Q. S. Lawrence Co., Sept. Sess., 1921, No. 169.</p>

<p>Liquor law — Application for license — Act of May 5,1921.</p> <p>1. Under the Amendment of 1921, P. L. 407, to the Brooks High License Law, two questions must be considered by the court, the fitness of the applicant and the fitness of the place.</p> <p>2. The fitness of the place embraces more than the fitness of the'building. The surroundings and everything that has a bearing upon the fitness of the place for the purpose as considered from a community standpoint should be considered.</p> <p>3. The fact that the prior holder of the license has violated the law will also be considered in passing on the application.</p>

Exceptions to adjudication. 0. C. Phila. Co., Jan. T., 1919, No. 437. The clause of the will in question is quoted in the opinion of the court in bdnc.

Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1887, No. 214. The facts and relevant provisions of the will appear from the adjudication of the auditing judge, Henderson, J.: “By the fifth item of his will the testator devised one-half of his real estate to his executors and directed them to pay the net income to his wife, Maggie W. Johnson, for life. She predeceased the testator.

<p>Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1922, No. 206.</p>

<p>Divorce — Libel by husband — Cruelty or indignities to person to be averred —Acts of May 8, 1854, March 9, 1855, June 25,1895, and April 13, 1911.</p> <p>1. A divorce can be granted only for the reason or upon the ground set out in the libel.</p> <p>2. A libel by a husband is insufficient which merely avers that respondent “has been guilty of such conduct on her part as to render his condition intolerable and his life burdensome.”</p> <p>3. Such an averment does not bring the case within the Acts of May 8, 1854, P. L. 644, and June 25, 1895, P. L. 308, providing for divorce where the wife has been guilty of cruel or barbarous treatment or indignities to the person of her husband.</p> <p>4. Nor is such libel covered by the Acts of March 9, 1855, P. L. 68, and April 13, 1911, P. L. 60, which did not create a new cause of divorce, but merely extended the jurisdiction of the courts to those cases in which the cause arose outside of the State.</p>

<p>Wills — Probate—Parties—Executor as party.</p> <p>Where an executor has been named as a party in an issue devisavit vel non awarded by the register of wills, although he is not interested in the distribution of the estate, the Court of Common Pleas will not strike off his name as a party in the suit.</p>

<p>Will — Devise—Construction—Description of real estate — Declarations— Evidence.</p> <p>1. A testator was the owner of a lot extending from West Main Street to South Street, in Uniontown. On the West Main Street end of the lot he erected a building, two stories high in front and one story in height in the rear, which he occupied with his jewelry business for many years, and was so occupying it at the time of his death. On the South Street end of the lot he erected a three-story brick building, which thereafter was occupied by a tenant, who used the first floor and basement for the storage and sale of green vegetables and provisions, and sublet the second and third floors for residence flats, that property being known as Hagan’s Market, No. 9 South Street. The rear ends of the buildings came within nine or ten feet of each other, leaving an area-way between them, which was used in connection with the jewelry store. The two buildings were not in any way connected with each other or used for any common purpose. In his will testator provided as follows: “I give, devise and bequeath to my son, Isaac Hunt, all of the real estate which I own at No. 7 West Main Street,” in Uniontown, and after making disposition of his residence property and personal estate, he continued: “All the rest and residue of my property not hereinbefore specifically disposed of, of every kind and description, real, personal or mixed, wheresoever situate, I direct shall be equally divided among my eleven children, or their legal heirs,” naming them. Isaac Hunt took possession of the South Street property, as well as the jewelry store, claiming to have taken the whole under the will. In an action of ejectment by the other heirs for the property fronting on South Street, alleged by them to be a part of the testator’s residuary estate: Held, That the devise of the testator to Isaac Hunt carried with it only the land, and the building erected thereon, extending from West Main Street back to the rear wall of the three-story brick building fronting on South Street, known as No. 9 South Street, and did not include the latter building or the land on which it stood, but that the South Street property constituted a part of the residuary estate of the testator.</p> <p>2. The intention of a testator is to be determined from the words written in his will. If his wishes with regard to the disposition of his property, as thus expressed, can be applied to the existing condition of that property, the result must be accepted. The question in expounding a will is not what the testator meant, but what is the meaning of his words.</p> <p>3. In such a case statements made by the testator in his lifetime as indicative of his intentions regarding the property are incompetent and irrelevant.</p> <p>NOTE. — No exceptions were filed and the nisi decree was made absolute.</p>

<p>Contract — Acceptance—Letters—Proviso as to acceptance — Construction —Ambiguity—Parol evidence — Evidence—Inspection of goods — Satisfaction of seller.</p> <p>1. When a written contract is not ambiguous in its terms, parol evidence of the interpretation put upon it by the parties themselves is irrelevant.</p> <p>2. Where an offer to buy lumber is made by letter, and the offeree accepts, "providing inspection is fair and satisfactory,” the proviso constitutes a new offer, which must be accepted by the original offerer before a complete contract becomes effective. The meaning of such a proviso is that the inspection is to be satisfactory to the party to be protected, i. e., in the case at bar, the seller.</p>

<p>Attorney-General’s Department. Opinion to Hon. William C. Sproul, Governor of Pennsylvania.</p>

Rule to show cause why prosecutor should not be relieved from payment of costs imposed by grand jury. Q. S. Dauphin Co., June Sess., 1921, No. 59.

Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1922, No. 164. The facts appear from the following extract from the adjudication of the auditing judge, Lamorelle, P. J.: “The Commonwealth of Pennsylvania presents a claim in the sum of $962.78, evidenced by the affidavit of the steward of the State Hospital for the Insane.

<p>Executors and administrators — Duty to convert assets — Surcharge.</p> <p>An administrator who retains the assets of the estate in kind on a falling market and sells them at private sale will he surcharged with the difference between the price obtained and the appraised value.</p>

<p>Adjudication of second account of Philadelphia Trust Company, substituted trustee for Helen F. Massey. O. C. Phila. Co., Jan. T., 1892, No. 578.</p>

<p>Attorney-General’s Department. Opinion to Hon. Fred Rasmussen, Secretary of Agriculture.</p>

<p>Appeal from judgment of justice of the peace. 1. Motion to dismiss proceedings or grant a retrial. 2. Motion to quash appeal. C. P. Greene Co., Sept. T., 1920, No. 94.</p>

<p>Equity — Jurisdiction—Legal remedy inadequate and inconvenient — Certificate of deposit — Gift.</p> <p>Plaintiff claimed deceased in his lifetime had given him a registered certificate of deposit on a trust company. The certificate was payable to bearer or the registered holder thereof. Deceased was the registered holder. No transfer of the certificate was made to the plaintiff on the books of the company. The executor of deceased told the trust company not to pay the coupons or principal to plaintiff, claimed no valid gift was made and that the certificate was still part of the estate. Plaintiff brought bill in equity to restrain executor from interfering with him in collecting the coupons and principal when due, for an order adjudging plaintiff to be the owner, and for an order on the company to pay him principal and interest when due. Defendants demurred on the ground that equity had no jurisdiction: Eeld, overruling the demurrer, (1) that legal remedies were not convenient or adequate; (2) plaintiff could not at law sue the trust company in his own name or force the executor to sue for him.</p>

Motion to quash indictment. Q. S. Bradford Co., Dec. Sess., 1921, No. 23. Defendant moved to quash the indictment for the following reasons: “1. The indictment was found without a previous binding over or commitment. “2. The indictment was found without the presentation of any petition for its necessity, requiring the extraordinary exercise of power on the part of the district attorney. “3.

<p>Motion to strike off and vacate the appeal of plaintiff from decision of the Workmen’s Compensation Board. C. P. Jefferson Co., Jan. T., 1921, No. 42.</p>

<p>Trespass. Rule for judgment for want of an affidavit of defence and statutory demurrer. C. P. Snyder Co., June T., 1921, No. 4.</p>

<p>Statutory demurrer. C. P. Bucks Co., Sept. T., 1920, No. 68.</p>

<p>Practice, O. C. — Counsel fees — Findings of auditing judge.</p> <p>1. Where a trust company has been appointed trustee to sell decedent’s real estate in partition proceedings and, before a sale is effected, the property is taken in condemnation proceedings and the award paid to the trustee, it is the duty of the auditing judge, under section 1 of the Act of April 27, 1864, P. L. 641, to regulate the fee of counsel employed by the trustee in the condemnation proceedings.</p> <p>2. When the expert called by the attorney in the condemnation proceedings fixes the value of the services at 10 per cent, of the amount recovered, or $3615.66, and the trust officer of the company, a member of the bar, testifies that $1000 is a “full, fair fee” for all services rendered, the conflict of testimony is an element to be considered and the finding by the auditing judge that $1000 is an adequate fee is conclusive in the absence of manifest error.</p>

<p>Wills — Construction of will and codicils.</p> <p>Testator devised real estate of which he died seised to his four children. His mother had devised her real estate to him for life, with remainder to his children. He directed in regard thereto, that his sons, J. and A., who were indebted to him, should pay their indebtedness out of their grandmother’s estate as soon as received. By a codicil, after reciting that his son A. had transferred to him his interest in. his grandmother’s estate, he provided that the income thereof should be held by A. and his wife for their lives, and the life of the survivor, and on the death of the survivor, should vest in A.’s children. By a subsequent codicil, after ratifying his will and former codicil, he directed as follows: “I order and direct in regard to my son A. that . . . my estate which is not part of the trust estate provided for in the first codicil shall be held in trust for” him, and “after his death, the principal thereof to vest absolutely in his children, share and share alike . . ." In, case of interference with the proper execution of the will or codicils by A., he devised “the above share” to his brothers and sisters. On petition for an inquest in partition, A.’s trustee set up by answer, that the second codicil revoked the will and first codicil and vested the entire estate in the trustee: HeM, that on consideration of the will and codicils together, it was apparent that the testator intended to benefit all four children equally, but for reasons satisfactory to himself had put A.’s share in trust, and that the inquest should be awarded.</p>

<p>Petition and answer. O. C. Phila. Co., April T., 1921, No. 251.</p>

<p>Lease — Assignment—Breaches of covenants — Act of 32 Henry VIII, eh. 3L.</p> <p>1. Where suit on account of breaches of covenants in a lease is brought in the name of the lessor to the use of his assignees, only such breaches may be shown as were committed before the assignment.</p> <p>2. The fact that by the Act of 32 Henry VIII, ch. 34, the assignees might have brought suit in their own names, and could thereupon enjoy the same benefits and remedies which their lessors or grantors had or enjoyed, does not have the effect of allowing breaches committed after assignment to be shown in an action brought in the name of the lessor.</p> <p>Lease — Covenant against unlawful business — Occasional events — Crap games — Pool.</p> <p>3. An occasional crap game or an occasional game of pool, in which the participants were betting, would not amount to an unlawful business. To come within the term so as to constitute a breach of covenant against unlawful business on leased premises, crap games or gambling would have to be so frequent as to amount to a habit, or of sufficient frequency to put the defendants or their agents on notice.</p> <p>NOTE. — See McNair, to use, «. Manuel, 29 Dist. R. 1154.</p>

<p>Practice, C. P. — Ejectment—Rule to bring ejectment — Act of April 16, 1903.</p> <p>1. Where a rule is issued under the Act of April 16, 1903, P. L. 212, to bring ejectment, and the respondent fails to enter an appearance or to answer, or to bring ejectment within the statutory period of six months, but, after the expiration of such period, brings an ejectment, judgment for the premises in dispute will be entered for petitioners.</p> <p>2. In such case, where respondent files an answer after the expiration of the six months, alleging negligence of counsel as the cause of the delay, and the petitioners file a general replication, the burden is on the respondent to sustain the averments of the answer, and if no testimony is taken, the averments of the petition will be regarded as true.</p>

<p>Parent and child — Custody of child — Father and grandmother — Costs— Habeas corpus.</p> <p>1. A father who has remarried, is able to support his family comfortably, and is conducting himself properly, is entitled to the custody of a little girl, six years old, as against her grandmother, who has supported her in her family for four years; especially is this the case where the child expresses a strong inclination to live with her father and have the company of her younger brother.</p> <p>2. In such case, where it appears that her father has abducted the child, he will be required to pay the costs of the habeas corpus proceedings brought by the grandmother.</p>

<p>Justice of the peace — Constable’s return — Contradiction of — Certiorari— Service of process.</p> <p>1. A constable’s return oí service, full and complete on Its face, cannot be set aside or contradicted! ori certiorari proceedings.</p> <p>2. Where a constable’s return of service of process upon a corporation is regular on its face, the defendant, on certiorari-, will not be permitted to show by depositions that it had no office in the county, and that the person upon whom the writ was served was not its agent.</p>

<p>Petition for assent of court to the purchase of land for a poorhouse. Q. S. Susquehanna Co., Aug. Sess., 1921, No. 9.</p>

<p>Land law — Mineral rights under navigable river — Failure to pay purchase money to Commonwealth — Laches—Statute of limitations — Act of April 11, 1848.</p> <p>Where a corporation has secured a warrant and survey for mineral rights under a navigable river, but has failed for fifty-seven years to pay the purchase money due the Commonwealth, it has been guilty of such laches that, both under the ten years’ limitation in section 3 of the Act of April 11, 1848, P. L. 533, and under the general principles of law, the Commonwealth has a right to consider that the company has abandoned its claim.</p>

<p>Affidavit of defence raising questions cSP law. Rule to strike off affidavit of defence. C. P. Bucks Co., Sept. T., 1921, No. 63.</p>

<p>Criminal law — Forfeited recognizance — Right of injured parties to share in distribution — False representations — Act of July SO, 1842.</p> <p>Where a person indicted for obtaining money under false pretences has forfeited his recognizance, the parties injured by such false pretences are entitled to participate in the distribution of the fund represented by the recognizance under the Act of July 30, 1842, P. L. 449, 454, although the false representations may have been involved in a gambling arrangement in which such parties participated.</p>

<p>Rule to strike off satisfaction. C. P. Dauphin Co., June T., 1918, No. 78.</p>

<p>Statutory demurrer to set-off or counter-claim — Practice Act of May lb, 1915.</p> <p>1. Under section 15 of the Practice Act of May 14, 1915, P. L. 483, a set-off or counter-claim may be attacked by a reply raising a question of law.</p> <p>2. Defects in the form of a pleading may be attacked by a motion to strike off; defects in substance, by a statutory demurrer.</p> <p>3. A set-off or counter-claim in the nature of a tort setting up a fraud practiced upon the plaintiff is bad and will be stricken off.</p>

<p>Inheritance transfer tax — Lineals and collaterals — Children of stepchildren — Acts of June 20, 1919, and May U, 1921.</p> <p>Under the Inheritance Transfer Tax Act of June 20, 1919, P. L. 521, as amended by the Act of May 4, 1921, P. L. 341, children of decedent’s stepchildren are not relieved from the payment of collateral inheritance tax, and their interests in the estate are, therefore, subject to the tax of 10 per cent, imposed by the latter act.</p>

<p>Banks and banking — Commissioner of Banking — Visitorial powers — Private banks — Acts of June 19,1911, and May 5,1921'.</p> <p>1. An individual, partnership or unincorporated association, exempted from the operation of the Private Banking Act of June 19, 1911, P. L. 1060, as provided in section 8 of the act, is not subject to any visitorial power, inspection, examination or regulation by the Commissioner of Banking.</p> <p>2. A corporation or person exempted from the operation of the Act of May 5, 1921, P. D. S74, as provided by section 12 of the act, is not exempt from supervision by the Banking Department under the powers vested in it by law.</p> <p>3. The Banking Department should not undertake the supervision of the business and affairs of persons, partnerships and corporations exempt from such supervision by law, although requested to do so.</p> <p>4. If any of those who operate under the provisions of the law exempting them from supervision by the Banking Department should advertise that they are subject thereto, notice should be served upon them by the department that, unless they discontinue such practice, public notice will be given that they are not under such supervision.</p>

<p>Motion to quash indictment. Q. S. Fayette Co., Dec. Sess., 1921, No. 44.</p>

<p>Appeal from assessment of inheritance transfer tax. O. C. Warren Co., March T., 1921, No. 39.</p>

<p>Transfer inheritance tax — Persons presumed to be dead — Deduction for payment within three months — Acts of June 7,1917, and June 20,1919.</p> <p>1. A discount of 5 per cent, will be allowed from the amount of transfer inheritance tax due from the estate of a person presumed to be dead, if such payment be made within three months from the date of the final confirmation of the decree of the Orphans’ Court wherein the presumption of death was adjudicated'.</p> <p>2. The Acts of June 7, 1917, P. L. 447, and June 20, 1919, P. L. 521, considered.</p>

<p>Case stated. C. P. Schuylkill Co., Jan. T., 1922, No. 192.</p>

<p>Statutory demurrer to statement of claim. C. P. Washington Co., May T., 1918, No. 227.</p>

<p>Motion for a new trial. Q. S. Dauphin Co., June Sess., 1921, Nos. 98 and 99.</p>

<p>Petition of the Attorney-General for payment of unclaimed moneys into the State treasury without escheat. C. P. No. 5, Phila. Co., Sept. T., 1920, No. 4578.</p>

<p>Practice, O. C. — Sale of real estate by executor — Setting aside for inadequacy of price — Exercise of power after time specified in will.</p> <p>Testatrix directed her executor to sell the real estate within one year after her death. She died April 4, 19X8. On July 26, 19X9, her executor sold the real estate in Question for ¥2900. On petition by a distributee to set the sale aside on the ground that the executor exceeded his authority in making the sale after the specified time, and that he (the distributee) had found a prospective purchaser who was willing to pay ¥3200, to which an answer was filed, averring that ¥3200 was the market value at the time of sale, and explaining the delay: Held: 1. That the executor had not exceeded his power. 2. That the sale would not be set aside for inadequacy of price. 3. That the petition should be dismissed without prejudice to the petitioner’s right to raise the question of the inadequacy of the price upon the audit of the executor’s account of the proceeds.</p>

<p>Petition for issue devisavit vel non. O. C. Allegheny Co., June T., 1921, No. 415.</p>

<p>Motions by defendant for judgment non obstante veredicto and for a new trial. C. P. Delaware Co., Dec. T., 1920, No. 305.</p>

<p>Corporations of first class — Merger—Transfer of property and franchises to another hospital — Act of April 17, 1876.</p> <p>A corporation of the first class owning and operating a hospital has no power to sell, assign and transfer all of its property and franchises to another hospital and merge itself therein, without complying with the provisions of the Act of April 17, 1876, P. L. 30.</p>

<p>Rule for more specific bill of particulars. C. P. Dauphin Co., March T., 1921, No. 68.</p>

<p>Practice, J. P. — Affidavit of claim — Act of July 7, 1879.</p> <p>1. Where the record shows that summons and affidavit of claim under the Act of July 7, 1879, P. L. 191, were issued at the same time to a constable, and the record shows return of the service of the summons and affidavit of claim at the same time, there is a sufficient compliance with the act as to time.</p> <p>2. The treasurer of a corporation or the assistant treasurer may make the affidavit of claim under the act without setting forth that he is cognizant of the facts constituting the cause of action. It is to be presumed that the holder of the office is cognizant of the facts.</p> <p>3. The affidavit of claim must set forth in a concise and summary form the material facts on which the plaintiff relies for its claim.</p>

<p>Wages — Preference—Decedents’ estates — Acts of April 9, 1872, June 18, 1883, and May 12,1891.</p> <p>1. The Act of April 9, 1872, P. L. 47, and its amendments of June 13, 1883, P. L. 116, and May 12, 1891, P. L. 54, provide a lien for wages to mechanics, employees, servants and others in like capacity. Where one is engaged in a business which does not confine his dealings or activities to one person or firm, but may extend to an unlimited number of persons, and receives a fixed amount from each for the services rendered, he cannot be regarded as an employee or servant within the meaning of the act.</p> <p>2. A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who in such services remains entirely under the control and direction of the latter.</p>

<p>Motion to strike off non-suit. C. P. Schuylkill Co., Sept. T., 1920, No. 110.</p>

<p>Practice, J. P. and Q. S. — Prosecutions for surety of the peace — Justice’s transcript — Acts of March 18, 1909, and April 27, 1909.</p> <p>The proceedings in a prosecution for surety of the peace will be quashed where the justice’s record does not set forth that the evidence shows to the satisfaction of the justice that the prosecutor’s danger of being hurt in body and estate is actual and that the threats were made by the defendant maliciously and with intent to do harm; that the justice afforded an opportunity and suggested to the parties the propriety of compromising their differences before entering into a hearing in the case, as required by the Act of March 18, 1909, P. L. 42; and where the record shows that the recognizance was taken for appearance of the defendant to the next term of the Court of Quarter Sessions of the Peace, instead of forthwith, as required by the Act of April 27, 1909, P. L. 260.</p>

<p>School law — Directors—Improper contracts — Failure to advertise bids— Surcharge — Minutes.</p> <p>1. School directors will be surcharged where they pay a bill for furnaces in excess of 5300, where the contract has not been advertised in the manner provided by the Act of May 18, 1911, P. L. 309, as amended by the Act of June 10, 1919, P. L. 889.</p> <p>2. School directors will be surcharged for a bill for coal in excess of ?100, where their minutes fail to show how each member voted on the subject.</p> <p>3. Under the Act of May 18, 1911, P. L. 309, a school director cannot receive compensation for services except as provided in the act.</p> <p>School law — Auditors—Appeal from audit — Time—Act of May 18, 1911.</p> <p>4. The filing of the report of auditors of a school district is not completed until a copy of the report is filed with the Clerk of the Court of Quarter Sessions. An appeal taken on the same day that the report is filed with the Clerk is taken in time.</p>

<p>Escheat — Payment of moneys held by banking institutions into State Treasury without escheat proceedings — Acts of May 16, 1919, and July 12, 1919 — Pennsylvania Constitution, art. i, sects. 8, 9 and 17 — Amendments Jt, 5 and U, Constitution of the United States.</p> <p>1. The Act of May 16, 1919, P. L. 177, providing for the payment into the State Treasury without escheat of money or property, held by any person, etc., national bank, etc., subject to escheat under the provisions of the Act of July 12, 1919, P. L. 926, amending earlier escheat statutes so as to make them applicable to moneys on deposit or securities or other property held for safekeeping by national banks, is not in violation of sections 8, 9 or 17 of art. i of the Constitution of Pennsylvania, or the 4th, 5th or 14th Amendments to the Constitution of the United States, in so far as it applies to national banks.</p> <p>2. To a petition by the Attorney-General, filed at the suggestion of the Auditor General in accordance with the procedure outlined by the Act of May 16, 1919, P. L. 177, an answer by a national bank, averring that, although no checks had been drawn against the accounts of certain depositors (to recover which for the State Treasury proceedings had been instituted) for fourteen years and upwards, the moneys had not been abandoned by the depositors, and that all persons so named in the petition as such depositors could be found if living, or, if dead, their next of kin or special representatives, and that, although the advertisement made was in accordance with the requirements of the act, it was not calculated to give actual notice to any of the persons included in the list or to others interested as beneficiaries, is insufficient.</p>

<p>Exceptions to master’s report. O. C. Phila. Co., Oct. T., 1920, No. 63.</p>

<p>Children — Adoption—Welfare of child — Abandonment by father — Act of May 28, 1915.</p> <p>H. was born May 16, 1909; his mother died in 1911. From 1911 until June 29, 1912, he lived with his paternal grandparents; from June 29, 1912, until May, 1917, he lived with his father "and stepmother. In May, 1917, he was placed by his father in the custody and care of his maternal uncle and aunt, with whom he has since resided in Kent County, Del. On Dec. 5, 1921, his father was killed in a railway accident, and the widow recovered $6000, and H. $3000, which was paid to his guardian. Neither his father nor his stepmother had made any substantial contribution to his maintenance while with his uncle and aunt, by whom he was supported and well cared for. On March 21, 1922, his stepmother filed a petition under the Act of May 28, 1915, P. L. 580, for leave to adopt him. Answers were filed by his paternal grandparents and his uncle and aunt, averring, in substance, the above facts and objecting to such adoption: Held, (1) that, as the boy had been placed with his uncle and aunt by his father, had been well cared for by them in the past, and their custody had been approved by his paternal grandparents, it did not appear that his welfare would be promoted by his adoption by his stepmother, and the petition should be refused. (2) That by placing the boy in the custody of his uncle and aunt and withdrawing his guidance and protection from him, his father had constituted his uncle his next friend under the act, and so made his consent to the adoption essential .</p>

<p>Certiorari to justice of the peace. C. P. Schuylkill Co., Sept. T., 1921, No. 264.</p>

<p>Liquor laws — Transportation of liquor into State — Woner Act of May 5, 1921 — Reed Amendment.</p> <p>1. Under the Act of May 5, 1921, P. L. 407, Pennsylvania is a state “the laws of which . . . prohibit the manufacture or sale therein of intoxicating liquor for beverage purposes” within the meaning of the Reed Amendment of the Volstead Act of Congress (U. S. Stat., vol. 39, page 1069).</p> <p>2. A person moving his residence into this State, and attempting to bring liquor with him for beverage purposes, violates the laws of Pennsylvania.</p>

<p>Motion by plaintiffs for a new trial. C. P. Delaware Co., June T., 1917, No. 397.</p>

<p>Practice, C. P. — Assumpsit—Plaintiff’s statement — Copies of contract— Practice Act of 1915.</p> <p>1. It is an indispensable prerequisite to entitle a plaintiff to demand an affidavit of defence or to ask for judgment in default of such, that he set forth his claim in the precise manner indicated and prescribed by the Practice Act of May 14, 1915, P. L. 483.</p> <p>2. Plaintiff, in an action of assumpsit to recover balance due on a sale of whiskey, is not entitled to judgment for want of a sufficient affidavit of defence where he fails to attach to his statement copies of certificates which are a material part of the contract on which the action is based, as required by section 5 of the Practice Act of 1915.</p>

<p>Detectives — Application for license — Discretion of the court — Act of May 28, 1887.</p> <p>The Act of May 23, 1887, P. L. 173, relating to the issuance of licenses to engage in the business of a detective for hire or reward, is permissive and not mandatory or imperative. In passing upon petitions for license under that act, the court has discretionary power to grant or withhold a license with regard to the necessity for additional detectives in the community. In case the court is of the opinion that there does not exist a necessity for an increase in the number of detectives, applications for license to engage in that business will be refused.</p>

<p>Audit and distribution. O. C. Allegheny Co., Nov. T., 1921, No. 70.</p>

<p>Petition for appointment of guardian. O. C. Schuylkill Co.</p>

<p>Motion for judgment n. o. v. C. P. No. 1, Phila. Co., June T., 1919, No. 6483.</p>

Reargument of exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 236.

<p>Wills — Construction—Gift to wife as long as she lives — Absence of gift over.</p> <p>A devise to a wife as long as she lives or remains testator's widow, with no Qualifying words or context to indicate that a fee was intended, gives her only a life estate, even if there be no gift over. Such gifts are to be distinguished from a primary gift to the wife of a fee, Qualified by such words as “as long as she lives or remains my widow” or “until she remarries,” or words of similar import.</p>

<p>Appeal from settlement by the Commonwealth of tax on loans. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 71.</p>

<p>Appeal from settlement by the Commonwealth of tax on loans. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 72.</p>

<p>Rule for judgment for want of a sufficient affidavit of defence. C. P. Fayette Co., June T., 1921, No. 235.</p>

<p>Mandamus to county commissioners to file certificate of substituted nomination. C. P. Luzerne Co., Dec. T., 1920.</p>

<p>Equity — Jurisdiction—Remedy at law — Culm—Mines and mining.</p> <p>1. A hill in equity for an injunction to prevent interference with the removal of culm from a culm bank, will not lie where the bill does not aver that the plaintiff is the owner of the real estate on which the culm has been placed.</p> <p>2. Culm is personal property, and a bill in equity is not the proper remedy to prove title to it.</p> <p>3. The plaintiff in such case has an adequate remedy at law by trespass to recover the value of the culm which the defendant has prevented him from taking.</p>

<p>Decedents’ estates — Real estate — Judgments improperly indexed — Judgment notes — Identity of maker — Lien.</p> <p>1.'Decedent, prior to her death, took title to property under the name of Annie Phillips Siegfried. Having been divorced, she sometimes used her maiden name of Annie R. Phillips, and executed three judgment notes by that name, which were recorded. She also gave a promissory note in the name of Annie R. Siegfried. At audit the holder of the promissory note objected to the allowance of the judgments as preferred claims against the fund, on the ground that they were improperly docketed and were not a lien upon the real estate: Held, that the identity of the person being the same, the real estate was bound by the judgments, and that they were entitled to payment before the claims of common creditors.</p> <p>2. The purpose of the judgment docket and judgment index is to give notice to purchasers, subsequent encumbrancers, and all others in interest, but where no one has been harmed or misled by the want of proper notice, the validity of the judgment is not impaired, and it is good against the defendant. An unsecured creditor holding a promissory note has no standing to question the lien of such judgments unless he specifically shows that he dealt with the maker of the note on the credit of the real estate.</p>

<p>Attomey’s-General Department. Opinion to Col. Edward Martin, Commissioner of Health.</p>

<p>Practice, C. P. — Pleading—Promissory notes — Protest notice — Manner of service — Statement of claim — Act of May U, 1915.</p> <p>1. It is not necessary, under the Practice Act of May 14, 191S, P. L. 483, to attach a copy of the protest notice to the statement of claim in a suit upon a promissory note.</p> <p>2. The statement of claim must set forth the manner in which the notice of protest was served upon the defendant.</p> <p>3. An averment in the statement of claim that “the defendant was duly notified on the 31st day of March, A. D. 1921, of the said protest,” is not sufficient.</p>

<p>Accord and satisfaction — Payment on condition — Landlord and tenant— Termination of lease — Notice of intention to terminate.</p> <p>1.' To constitute a good accord and satisfaction there must be a dispute, payment offered in satisfaction, accompanied with a declaration equivalent to a condition that if accepted it shall be in satisfaction, and the payee must be informed at the same time it is to be in full settlement.</p> <p>2. Where a tenant sends to his landlord a check for less than the stipulated rent, with an entry on its face that it is in payment of rent, less a deduction for a credit claimed, the use of the check constitutes an accord and satisfaction, notwithstanding the landlord, before using the check, endorsed on it that it was accepted on account.</p> <p>3. Where a written lease provides that it is for a term of one year and until a notice of ninety days is given, and thereafter from year to year, and an agreement is made by the parties at the end of the term for a further term of one month, and if the lessee continues after such period, then the lease to continue for a further term of eleven months, and all other provisions of the lease to stand, it is not necessary for the lessee to give ninety days’ notice prior to the expiration of the eleven months’ term. The special agreement constituted such notice.</p>

<p>Practice, C. P. — Removal of case in trespass to Federal court — Time limit —Fifteen days — Time for filing affidavit of defence — Act of May 14, 1915.</p> <p>1.The petition for the removal of a cause from a state to a Federal court must he filed in the state court at or before the time when the defendant is required to make any defence whatever, either in bar or in abatement.</p> <p>2. As the Act of May 14, 1915, P. L. 483, requires a defendant in trespass to file an affidavit of defence within fifteen days from service of statement, or in default thereof certain matters averred in the statement will be taken as admitted and the case be automatically at issue, the fifteen days is the time limit within which the petition for removal must be filed.</p> <p>3. In such case the point of time is fixed and certain, irrespective of the defendant’s action or non-action.</p>

<p>Criminal law — Motor-vehicles — Bailments — Refusal to furnish des&rip-tions — Act of June SO, 1919.</p> <p>1. The bailee of a motorcycle, held under lease with option to purchase, is not punishable under the Act of June 30, 1919, P. L. 702, for failure or refusal to give to the bailor, after forfeiture of the lease and repossession of the machine, the descriptions of such motorcycle specified in the act.</p> <p>Practice, Q. S. — Motion in arrest of judgment — Insufficiency of evidence— Conversion of motion in arrest of judgment into rule for new trial.</p> <p>2. A motion in arrest of judgment can be granted only upon defects apparent on the face of the record, and never on an allegation of insufficiency of evidence. Where, however, the evidence does not warrant a conviction, the motion should be converted into a rule for a new trial, and as such made absolute.</p>

<p>Pleading and practice — Practice Act of 1915 — Affidavit of defence — Counter-claim — Notice—Expenses of trial — Damages.</p> <p>1. A counter-claim alleging damages caused by the filing of the suit cannot be set-oil.</p> <p>2. Under the Practice Act of May 14, 1915, P. L. 483, where an affidavit of defence is not endorsed and plaintiff not notified to reply, plaintiff is not required to reply and defendant cannot prove his set-off.</p>

<p>Collateral inheritance tax — Intangible assets of foreign decedent upon ancillary accounting — Act of May 6, 1887.</p> <p>1. Where the accounting: is ancillary, the determining factor as to liability for collateral inheritance tax is whether distribution is to be made within and under the law of the Commonwealth.</p> <p>2. If, upon the accounting of an ancillary administrator of a foreign decedent, the legatees request distribution to be made directly to them by the Pennsylvania court, without paying the fund to the foreign executor, intangible assets, so distributed, are subject to collateral inheritance tax.</p>

<p>Petition and answer. O. C. Phila. Co., Oct. T., 1917, No. 34.</p> <p>On Nov. 30, 1917, a decree was entered granting a citation to show cause why the decree of the Register of Wills should not be set aside and an issue awarded. On March 5, 1918, an answer thereto was filed. On April 4, 1922, a replication was filed. On April 21, 1922, a decree was entered to show cause why the appeal from the Register of Wills should not be dismissed. On May 2, 1922, an answer thereto was filed.</p> <p>The petition prayed that the appeal be dismissed on the ground of laches, but did not aver that the petitioner had been injured in any way. The answer averred that the respondent had taken the appeal in good faith, and not for delay, and averred that the petitioner had suffered no loss or injury, because the appeal had not been prosecuted more expeditiously, and that she had not been put to any disadvantage by reason of the delay. Respondent also denied that he had been guilty of laches, because he had repeatedly requested his attorney to have the case disposed of.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 443.</p>

<p>Attorney-General’s Department. Opinion to Hon. P. O. Cameron, Second Deputy Commissioner of Banking.</p>

<p>Rule to open judgment. C. P. Schuylkill Co., Nov. T., 1921, No. 319.</p>

<p>Workmen’s compensation — Railroads—Interstate and intrastate commerce.</p> <p>Where a brakeman is injured while shifting a freight car, which is to be carried to another station by a local train, from which station it is to be loaded for an interstate shipment, the workman is engaged in interstate commerce and cannot recover compensation under the Pennsylvania act.</p>

<p>Practice Act, 1915 —. Statement — Evidence — Material allegations — Exhibits.</p> <p>1. The Practice Act of May 14, 1915, P. L. 483, requires the filing of copies of all notes, contracts or book entries when the same are a part of the cause of action. Whether the copies will become evidence in the case depends upon the subsequent developments.</p> <p>2. A statement of claim is defective that contains the evidence of a cause of action, and a rule to strike it off will be made absolute.</p> <p>3. The undisputed facts in the statement, affidavit of defence and plaintiff’s reply will be admitted in evidence, provided they are relevant to the issue raised thereby.</p> <p>4. Buehler v. U. S. Fashion Plate Co., 269 Pa. 428, contains the rules that are to be followed with reference to admissions in the pleadings.</p> <p>5. Exhibits filed with the pleadings should not contain advertising matter, and the items should follow each other consecutively, to the end that the record of the exhibits may be as concise as other parts of the statement, and a statement will be stricken off that offends in this respect.</p> <p>6. The Practice Act of 1915 is mandatory, and the provisions of the 5th section thereof must be strictly followed. Evidential matters and irrelevant matters cannot be treated as mere surplusage.</p> <p>7. A material allegation in a pleading is one essential to the claim or defence which could not be stricken from the pleading without leaving it insufficient.</p>

<p>Election law — Nomination papers — Amendment — Eligibility of candidate — Act of July 12, 1913.</p> <p>1. The courts cannot take into consideration the eligibility of a candidate for public office in a proceeding to set aside a nomination paper.</p> <p>2. Under the Act of July 12, 1913, P. L. 719, the court may, in its discretion, permit an amendment of the affidavit to a nomination paper.</p>

<p>Mandamus, petition and return. C. P. Dauphin Co., Commonwealth Docket, 1921, No. 22.</p>

<p>Practice, C. P. — Contract not to engage in same business — Breach—Measure of damages — Sufficiency of evidence.</p> <p>The measure of damages for the breach of a contract not to engage in a certain business in competition with plaintiff for a term of years is not what amount of business the defendant has done in violation of his contract, but how that has affected plaintiff’s business to his damage; and where the evidence is not of sufficient certainty and exactness to have enabled the jury to estimate the damages according to this standard, the verdict will be set aside and a new trial will be granted.</p>

<p>Motion to quash indictment. Q. S. Fayette Co., Dec. Sess., 1921, No. 166.</p>

<p>Statutory demurrer to affidavit of defence. C. P. Potter Co., Sept. T., 1921, No. 106.</p>

<p>Appeal from summary conviction. Q. S. Bucks Co.</p>

<p>Separate-use trust — Divorce and second marriage of beneficiary before testatrix’s death.</p> <p>Where testatrix creates a separate-use trust for her daughter, described as the wife of a particular man, and the daughter, before testatrix’s death, obtains a divorce and marries another man, the second marriage not being the marriage contemplated, the trust is inapplicable, and the daughter will be entitled to her share of the estate absolutely.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1885, No. 323.</p>

<p>Corporations — By-laws—Contracts for service in violation of by-laws.</p> <p>Persons dealing with a corporation are hound by the restrictions imposed by the by-laws upon its officers. Hence, where a by-law provides that no contract of employment for services to be rendered to the company shall be of greater duration than two weeks unless in writing, signed by the officers of the company and approved by the board of directors, there can be no recovery by a former employee of a balance due under an alleged oral contract for his services for a term of three years made by the president and treasurer, although acquiesced in by the directors as individuals.</p>

<p>Practice, C. P.- — Pleading — Statement of claim — Contracts — Writings— Oral contract — Act of May H-, 1915.</p> <p>1. Under the Act of May 14, 1915, P. L. 483, plaintiff’s statement must set forth whether the contracts involved in the suit were written or oral.</p> <p>2. If they were written, copies thereof should he attached to the statement, omitting copies of letters, memoranda of sales, etc., which are not parts of the contracts, but merely instruments of evidence for the proof of other facts.</p> <p>3. If the contracts are oral or partly oral and partly written, they belong to the class of parol contracts and should be so declared upon, and their terms and conditions should be accurately and specifically averred in the statement.</p> <p>4. The defendant is entitled to full and specific information as to all the details of the alleged contracts, the breach of the same and the damages claimed, so that he may determine whether to admit or deny them in whole or in part, and thereby avoid trial entirely or reduce its trouble and expense.</p>

<p>Appeal from settlement by the Commonwealth of tax on gross receipts. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 3.</p>

<p>Negligence — Railroads—Automobile—Father and son — Negligence of son imputed to father as owner.</p> <p>Where a father owns an automobile for the pleasure and convenience of his family, and permits his minor son to use the car for such pleasure and convenience, and the son, in so using: it, is grossly negligent at a railroad crossing and the car is injured, the negligence of the son is imputed to his father as owner.</p>

<p>Bill for dissolution of partnership. C. P. Berks Co., Equity Docket, 1921, No. 1300.</p>

<p>Negligence — Automobiles — Statement of claim — Conclusions of law — Claim for damages — Practice Act, 1915.</p> <p>1. An allegation in a statement of claim that the operator of the plaintiff’s car was “a duly qualified operator of automobiles,” is not pleading a conclusion of law in violation of the Practice Act of May 14, 1915, P. L. 483.</p> <p>2. It is not necessary to allege in a statement of claim for damages resulting from a collision that the plaintiff’s car was licensed.</p> <p>3. To allege in a statement of claim, in an action for damages resulting from a collision of automobiles at the intersection of two country roads, that the defendant drove his car at an ‘‘illegal rate of speed,” is not pleading a conclusion of law in violation of the Practice Act of 1915.</p> <p>4. A claim for damages in an amount “upwards of $1000” is sufficiently definite to comply with the requirements of the Practice Act of May 14, 1915.</p>

<p>Practice Act, 1915 — Statement of record of foreign judgment — Affidavit.</p> <p>1. Where the plaintiff’s cause of action is founded upon the record of a judgment in a court of a sister state, and the copy of the record, attached to, and forming a part of, the statement of claim, shows on its face personal service on the defendants, the statement is not defective, although the copy of the record attached does not contain copies of the promissory notes upon which the action in the sister state was brought.</p> <p>2. The plaintiff referred to in the 9th section of the Practice Act of 1915 is the legal plaintiff, who alone has the cause of action. Where the affidavit is made by another, his knowledge of the facts should be set forth in accordance with the doctrine of Krajnetz v. Milwaukee Mechanics’ Ins. Co., 29 Dist. R. 382; Corosu et al. v. Allegheny River Mining Co., 26 Dist. R. 379, and Savitz v. Massachusetts Bonding and Ins. Co., 26 Dist. R. 505.</p>

<p>Equity — Jurisdiction — Parties — Subject-matter of prior pending suit— Mines and mining — Contamination of waters — Multiplicity of suits — Multifariousness.</p> <p>1. In equity the pendency of a prior suit will not be a bar to a subsequent suit if the latter embraces more as to parties and subject-matter than the former.</p> <p>2. If all the matters and causes of action alleged in a bill in equity can be covered by one decree, the bill is not multifarious.</p> <p>3. In order to authorize the joinder of defendants in equity there must be some community of interest between them with respect to the subject-matter of the controversy. But it is sufficient if all have a common interest centered in the point in issue, or are interested in the general subject of the litigation.</p> <p>4. Numerous defendants operating coal mines, separately and independently of each other, in the drainage basin of a stream, and each draining the mine water from his or its mine, highly impregnated with sulphuric acid, into the pure waters of the stream above a storage dam, may be joined as defendants in a bill in equity by incorporated water companies owning the dam, to restrain the drainage of said mine waters into the stream, thereby rendering the waters of the stream, when they reach the storage dam, unfit for domestic use or for commercial or manufacturing purposes, to which uses the owners of the dam have been devoting them, on the ground that each of the mine owners co-operates in fact in producing the effect complained of by plaintiffs, and also on the ground of preventing a multiplicity of suits.</p>

<p>Constitutional law — Constitution of United States, art. i, sect. 10, par. 3— Agreements between State and foreign country — Consent of Congress — Act of May 27, 1921 — Soldiers’ monuments.</p> <p>1. Under the Act of May 27, 1921, P. L. 1173, the Commission created hy the act has no authority to take title to lands in Belgium and Prance, but can only make agreements with those nations to secure permission for the State of Pennsylvania later to purchase suitable land at the places designated by the Commission for the erection of monuments.</p> <p>2. Such agreements may be made without the consent of the Congress of the United States.</p> <p>3. If the Commission should proceed further and undertake anything which might in any way affect the political influence or standing of the Commonwealth of Pennsylvania in its relation to the National Government, it would be necessary to have the consent of Congress.</p>

<p>Motion to strike off statement of claim. C. P. Schuylkill Co., Nov. T., 1921, No. 15.</p>

<p>Sales in bulk — Proceedings against purchaser — Ninety days’ limit — Act of May 23, 1919.</p> <p>The limitation contained in the proviso of the 3rd section of the Sales in Bulk Act of May 23, 1919, P. L. 262, that “no proceeding at law or equity shall he brought against the purchaser to invalidate any such sale after the expiration of ninety days from the consummation thereof,” runs from the date of the consummation of the sale, and not from the time the creditor first had knowledge of it, unless such want of knowledge on the part of the creditor was due to the fact that the transaction was actually concealed from him in some way by the vendor.</p>

<p>Rule for judgment for want of sufficient affidavit of defence. C. P. No. 2 Phila. Co., March T., 1922, No. 8535.</p>

<p>Practice, G. P. — Pleading — Pleas to the jurisdiction and in abatement — Act of May lb, 1915.</p> <p>1. It was not the intention of the Practice Act of May 14, 1915, P. L. 483, in abolishing "pleas in abatement,” to prevent the raising of questions of jurisdiction, misjoinder of parties and the like in limine, and where it is necessary to aver matters of fact in raising such questions, what is in substance a plea to the jurisdiction or a plea in abatement may still be filed in advance of a statutory demurrer or an affidavit of defence as to the merits.</p> <p>2. It was the intention of the Act of 1915 to deal with matters of form only; matters of substance and the fundamental principles of pleading are in no wise affected thereby.</p> <p>3. Under the Act of 1915, matter going to the jurisdiction or in abatement of the action may still be pleaded in Mmkie, but may more properly be in the form of an affidavit, stating the facts relied on concisely and clearly, than in the formal language of the old plea, and may be properly styled an “affidavit to the jurisdiction” or an “affidavit in abatement.”</p>

<p>Petition for interpleader. C. P. Jefferson Co., Jan. T., 1921, No. 6.</p>

<p>Motion to quash indictment. Q. S. Clearfield Co., Dec. T., 1921, No. 23.</p>

<p>Corporations — Water companies — Eminent domain — Waters—Contamination of water by mining company — Intervention by Commonwealth — Equity— Parties — Acts of May 28,1915, and July 7, 1919.</p> <p>1. Under the Act of May 28, 1915, P. L. 616, as amended by the Act of July 7, 1919, P. L. 731, the Commonwealth will be permitted to intervene as a party in any case where it is shown to have any interest.</p> <p>2. The Commonwealth has an interest entitling it to intervene as a party plaintiff in a suit in equity, where two water companies, whose stock is owned by a railroad company, claim to have made legal appropriation of certain of the waters of a stream for their corporate purposes, and have erected a storage dam into which the waters are collected, and allege that a coal company is operating a mine and is draining its mine water, containing large quantities of sulphuric acid, into the stream above the storage dam, thereby rendering the waters of the stream, as they flow into the storage dam, unfit for domestic use, or for commercial or manufacturing purposes, to which uses plaintiffs have been devoting them, and an injunction is prayed for restraining the coal company from draining its mine water into the pure waters of the stream.</p> <p>3. In such case, the Commonwealth has a right to intervene to protect the health and comfort of the citizens of the State.</p>

<p>Attorney-General’s Department. Opinion to Charles D. Wolfe, Bureau of Fire Protection, Department of State Police.</p>

<p>Action for. false imprisonment. Rule for judgment for defendant n. o. v. C. P. Lancaster Co., April T., 1921, No. 50.</p>

<p>Justices of the peace — Issue of commitment on Sunday — Damages for— Subsequent appearance — Act of Jan. 12, 1705.</p> <p>The commitment to jail on Sunday of a defendant arrested on a warrant issued on Saturday is a violation of the Act passed Jan. 12, 1705, 1 Sm. Laws, 25, and the justice of the peace who issued such commitment is liable for damages to the injured party, although the latter subsequently appeared, plead guilty and paid a fine.</p>

<p>Statutory demurrer. C. P. Berks Co., Aug. T., 1921, No. 27.</p>

<p>Appeal from collateral inheritance tax appraisement in estate of Lydia Ann Hyde. O. C. York Co.</p>

<p>Costs — Criminal law — Costs on prosecutor — Discretion of court over verdict — Act of March SI, 1860.</p> <p>1. The Act of March 31, 1860, P. L. 427, 445, giving the jury, in cases of acquittal, the power to determine who shall pay the costs, does not take away from the court the power to set aside so much of the verdict as relates to the payment of the costs in a proper case.</p> <p>2. The court will not set aside the imposition of the costs upon the prosecutor, where the evidence shows that a ease of probable cause was not made out against the defendants, and that the prosecutor, although a special policeman of a railroad company, was not a public officer, and was represented by private counsel.</p> <p>3. Where a prosecutor seeks to set aside an imposition of costs upon him, he should obtain a rule upon the county and upon the defendants to show cause, etc.</p>

<p>Sale — Sales in bulk — Notice to creditors — Time—Speaking demurrer— Act of May 23, 1919.</p> <p>1. The limitation in the Sales in Bulk Act of May 23, 1919, F. L. 262, of ninety days within which suit must be brought after the sale, begins to run from the time at which the creditor has notice of the sale, and not from the date of the sale.</p> <p>2. In an action under the Act of May 23, 1919, by a creditor against the purchaser of goods in bulk for a debt due by the seller to the plaintiff, an affidavit of defence which does not admit plaintiff’s statement as to the date of the sale, but sets up a different date, raises an issue of fact and not a question of law, and, therefore, is bad as a demurrer.</p> <p>NOTE. — See Fibre Tarn Co., Inc., v. Tiberio; Saracenyi, Garnishee, 1 D. & C. 645.</p>

<p>Auctioneers — Sale of real estate subject to lessee’s option to buy — Hand-money.</p> <p>1. When real estate Is sold at public sale, subject to a lease containing an option to the lessee to buy the property at the price bid within a specified time, the bid is merely an offer which is automatically rejected when the lessee signifies his intent to buy at the price bid within the time specified, and, thereupon, it becomes the duty of the auctioneer to return the entire hand-money to the bidder and seek compensation from the vendor who engaged him.</p> <p>2. The fact that the lessee subsequently failed to buy the property does not affect the bidder’s right to a return of the hand-money; his election to buy released the bidder.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 384.</p>

<p>Deeds — “Under and subject” to judgments — Liens—Judgments—Assigned estate — Distribution of proceeds of real estate.</p> <p>1. A deed conveying land “under and subject” to the payment of an encumbrance created by the grantor constitutes, only as between the grantor and the grantee themselves, a covenant of indemnity to the grantor on the part of the grantee, but the holder of the encumbrance acquires neither right nor remedy under the deed.</p> <p>2. Where a person conveys land “under and subject” to judgments which are at the time liens upon the land, and thereafter the grantee makes an assignment for the benefit of creditors, and his real estate is sold, but the proceeds thereof are not sufficient to pay all the liens thereon, the judgments referred to in the deed cannot share in the distribution if it appears that they had not been revived and that their lien had been lost at the time of the sale.</p>

Rule to show cause why distribution of an assigned estate should not be made under an order from which an appeal has been taken. C. P. Washington Co., May T., 1916, No. 190.

<p>Rule to strike off lien for reasons appearing of record. C. P. Crawford Co., Sept. T., 1921, No. 2.</p>

<p>Divorce — Practice, C. P. — Amendment of libel — Desertion—Insufficient statement.</p> <p>1. A libel in divorce for desertion is insufficient which does not aver that the desertion was “without just or reasonable cause.” The mere averment of non-support is insufficient.</p> <p>2. Such a libel, as it fails to state any cause of action whatever, cannot be amended.</p> <p>3. Amendments at common law, independent of any statutory provision on the subject, are in all cases in the discretion of the court for the furtherance of justice.</p> <p>4. Even if an amendment could be allowed in such a case, it would not be granted without notice to the respondent in the manner in which service of the original libel was made.</p>

<p>School law — Treasurer—Compensation—Payment to treasurer on his own orders — School Code of May 18,1911 — Act of July 21,1919.</p> <p>1. Under the School Code of May 18, 1911, P. L. 309, the treasurer cannot be allowed compensation on account of any balance in his hands paid over to his successor.</p> <p>2. The treasurer is entitled to payment of commission on proper orders for his own compensation.</p> <p>3. A treasurer elected before the Act of July 21, 1919, P. L. 1076, which amended the Act of May 18, 1911, P. L. 309, is entitled to commissions on repayment of loans or redemption of bonds, inasmuch as he would be entitled to such commissions if it were not for the amendment.</p> <p>4. In such case the treasurer is protected by art. iii, § 13, of the Constitution, which prohibits the reduction of the compensation of a public officer during- his term of office.</p> <p>School law — Repairing buildings — Three-hundred-dollar limit — Act of July 10, 1919 — Advertising.</p> <p>5. The Act of July 10, 1919, P. L. 889, amending section 617 of the School Code of 1911, and limiting certain expenditures to $300, will not be strictly construed as to repair or patch jobs, where the proof of total expenditure is not clear, where no fraud is alleged, and where circumstances point to an economical use of the money.</p> <p>6. The Act of July 10, 1919, does not require school directors to advertise for competitive bids on all repairs as a single job. It is not necessary where the costs for repairs of a single building for material and labor are less than $300.</p> <p>7. The practice of buying plumbing material for different buildings in a lump way is subject to censure, unless it is accompanied by a system under which the final disposition of the material and its use can be ascertained and stated by the auditors.</p> <p>School law — Expenses to conventions — Act of April 18, 1919.</p> <p>8. The expenses of only one delegate to a school directors’ convention will be allowed under the Act of April 18, 1919, P. L. 56, and the account of such expenses should be stated in detail and not lumped.</p>

<p>Judgments — Rule to open — Warrant of attorney — Legal capacity of lunatic — Confession of judgment by lunatic.</p> <p>1. Where judgment has heen entered upon a judgment note against one who had previously heen adjudged a lunatic, the court will open the judgment so entered upon petition of the committee of the lunatic to allow the committee to show whatever defence there is to the claim of the plaintiff.</p> <p>2. One who has been adjudged a lunatic is legally dead while he remains in that status, and is destitute of legal capacity to execute a warrant of attorney.</p>

<p>Judgments — Set off of judgment against judgment — Requisites.</p> <p>1. The right to set oft judgment against judgment does not rest upon statute, but upon the general jurisdiction of courts over the suitors in them. It is an equitable jurisdiction.</p> <p>2. In order to entitle one to be set off against the other they must be of the same or equal grade. The court will not allow a judgment entered on a bond, restricted in its collection to designated real estate, to be set off against a general judgment. Such judgments are not of the same grade.</p> <p>3. There is a clear distinction between stipulations restricting the collection of the judgment to designated real estate and stipulations simply restricting the lien of the judgment to such. The latter can be set off because the personal obligation remains.</p>

<p>Practice, C. P. — Statement of claim — Signature of attorney — Act of May U, 1915.</p> <p>Where plaintiff is represented by an attorney, the statement of claim must be signed by such attorney. The Act of May 14, 1915, P. L. 483, is mandatory in this respect.</p>

<p>Motion for judgment n. o. v. C. P. Blair Co., Oct. T., 1921, No. 89.</p>

<p>Attorney-General’s Department. Opinion to Hon. John R. Morrison, First Deputy Banking Commissioner.</p>

<p>Exceptions to master’s report. C. P. No. 2, Phila. Co., Sept. T., 1919, No. 183.</p>

<p>Election law — Petition for contest — Qualifications of signers — Payment of taxes — Women voters — Marriage after registration — Change of name.</p> <p>1. A signer of a petition for contest of an election must have been assessed for taxes within two years prior to the election.</p> <p>2. If the tax books of the county in which he resides show no such assessment, the burden is upon him to show assessment within two years in some other county of the Commonwealth.</p> <p>3. An unmarried woman, whose name appears on the registration list prior to the primary election, who subsequently marries before the election day, cannot, without having filed an affidavit as to such marriage, sign a petition for a contest as a qualified voter.</p> <p>NOTE. — The order of the court below was affirmed by the Supreme Court (273 Pa. 410) upon the ground that the lower court had correctly held that the facts averred did not justify the rejection of the entire vote of the 4th Ward; the ruling of the court below as to the alleged disqualification of the three signers of the petition was not passed upon.</p>

Replevin. Rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. C. P. Jefferson Co., Aug. T., 1921, No. 190.

<p>Trespass for damages. Rule for new trial and for judgment n. o. v. C. P. Lancaster Co., Jan. T., 1921, No. 82.</p>

<p>Criminal law — Indictment—Arrest of judgment — Matters of form.</p> <p>1. Matters of form In an indictment are not a ground for arresting judgment on a conviction thereunder by a jury, unless such defect of form amounts to a failure to charge an indictable offence.</p> <p>Liquor law — Constitutional law — Title of act — Incorporation by reference to Act of Congress — 18th Amendment of the Federal Constitution — Act of May 5, 1921.</p> <p>2. As soon as the 18th Amendment of the Constitution of the United States became operative, the Brooks Act of May 13, 1887, P. L. 108, became inoperative in so far as it authorized the licensing of the sale of intoxicating liquor, although in so far as it regulated and sanctioned the sale under licenses of alcoholic liquors that are not intoxicating, it continued in operation unaffected by the amendment.</p> <p>3. Under the 18th Amendment Congress has power to legislate for the regulation of both interstate and intrastate commerce in intoxicating liquors, and is in no wise dependent upon, or affected by, action or inaction on the part of the several states or any of them.</p> <p>4. The Volstead Act is a part of the supreme law of the land, and as long as it remains in force and unamended, the states cannot license the sale of beverages containing one-half of one per centum of alcohol by volume, although they may license the sale of liquors having a smaller alcoholic content.</p> <p>5. The purpose of the Woner Act of May 5, 1921, P. L. 407, was to regulate the sale of those beverages over whose sale the State has control, and to co-operate with the Federal Government in enforcing the law as to the sale of those whose alcoholic content is such as to place them beyond the licensing power of the State.</p> <p>6. The Wóner Act does not violate article iii, section 3, of the Constitution of Pennsylvania, because it applies to two classes of alcoholic liquors which are not separately referred to in the title of the act.</p> <p>7. The Woner Act does not violate article iii, section 6, of the Constitution, by making the distinction between intoxicating and non-intoxicating liquors dependent on the action of Congress in defining such liquors and thus attempting to incorporate an Act of Congress by reference, nor does it violate article ii, section 1, by attempting to delegate legislative power to Congress for future action.</p> <p>Com. v. Dougherty, 39 Pa. Superior Ct. 338, distinguished.</p> <p>8. The operation of a statute may be properly made contingent on an extraneous fact, and when such fact is the change in legislation paramount to and controlling the State law as to the subject-matter in question, the action of the legislature is clearly competent.</p> <p>9. An act of assembly should not be stricken down as unconstitutional unless it clearly, plainly and palpably violates some provision of the fundamental law.</p>

<p>Mechantes’ liens — Notice of filing lien — Filing of affidavit of service within one month — Failure of prothonotary to record — Petition to amend record.</p> <p>Plaintiff filed a mechanic’s lien against defendant’s property on June 13, 1919, and notice of its filing was served on defendant by the sheriff, who, on July 7, 1919, executed an affidavit of service and left it with the prothonotary’s office for filing. The paper presumably became lost and no record of the filing was made. Subsequently the real estate covered by the lien was sold at receiver’s sale, and, prior to the distribution of the fund, the defendant filed a petition to strike off the lien because of the failure of the record to show the filing of the affidavit within one month after the filing of the lien. The plaintiff thereupon filed a petition, praying that the record be amended so as to show the filing of the notice and return of service thereof as of the time when the sheriff actually left it in the prothono-tary’s office: Beld, that the requirement of section 21 of the Act of June 4, 1901, P. L. 431, as amended by the Act of April 5, 1917, P. L. 42, was mandatory, subject to the power of the court to grant relief, where to hold the party to the strict letter of the statute would lead to inequitable results, and that to strike off the plaintiff’s lien in this case would be to penalize him for an accident for which he was in no degree • accountable. The rule to amend the record was made absolute and the rule to strike off the lien was discharged.</p>

<p>Practice, C. P. — Affidavit of defence — Statement of claim — Exceptions to statement — Act of May 14, 1915.</p> <p>1. A motion for judgment for want of a sufficient affidavit of defence, entered while exceptions to the statement of claim are still pending, is premature and will be overruled.</p> <p>2. Section 21 of the Act of May 14, 1915, P. L. 483, relating to extension of time, takes effect only at the stage when the substance, and not the mere form, of the claim or counter-claim must be met, whether on legal grounds or those of fact. In either case the party is then taking defence to the adversary’s demand.</p> <p>3. Such is not the case where a party moves to strike off for informality. That step is authorized by section 21, where nothing is said about obtaining additional time to plead.</p> <p>4. In its nature a question of form is strictly preliminary. In order to serve its appointed purpose it must operate as a quasi-stay of proceedings so far as concerns the merits.</p> <p>5. Where a party excepts to the form of proceedings under section 21 of the act, he does not incur the consequences of default for not having secured an extension of time pending the disposal of his exceptions.</p>

<p>Equity — Evidence—Jurisdiction—Trusts—Account — Funds derived from condemnation.</p> <p>1. Where it appeared that real estate was conveyed by a father to his son for the purpose of conserving the property, and this fact was established by parol evidence and statements of the son at various times that he held the property for the use of his brothers and sisters, the son was decreed a trustee.</p> <p>2. Where a bill was filed to have defendant declared a trustee for plaintiffs, who were sisters and co-heirs with defendant, and it appeared that the real estate in question had been condemned by the Government, no accounting was necessary, as the amount due each heir could be definitely determined from the fund received from the real estate.</p>

<p>Workmen’s Compensation Act — Non-resident aliens — Right to compensation — Treaty between the United States and Italy — Act of June 2, 1915.</p> <p>1. Section 310 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, provides, in part, that alien parents, not residents of the United States, shall not be entitled to compensation under that act.</p> <p>2. The treaty between the United States and Italy proclaimed Nov. 23, 1871, as amended in 1913, provides that citizens of each of the high contracting parties shall receive, in the states and territories of the other, the same rights and privileges as are or shall be granted to natives, including the right of action for death given relatives of the injured party.</p> <p>3. That part of section 310 of the-Workmen’s Compensation Act referred to is in conflict with, and in violation of, the treaty with Italy, which is a part of the supreme law of the land, and is, therefore, with reference to non-resident aliens who are subjects of Italy, unconstitutional and void.</p> <p>NOTE. — In Soiaeono v. Labaty Bros., cited above, Puller, J., said, as to the alleged conflict between the treaty and section 310 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736: “The treaty was made in 1871, long before the idea of compensation was even conceived and forty-four years before the enactment of the Pennsylvania statute. It contains nothing which can possibly be construed to contravene the provisions of our statute denying compensation to non-resident aliens.”</p>

<p>Appeal from justice of the peace. C. P. Beaver Co., Dec. T., 1921, No. 376.</p>

<p>Widow’s exemption — Wife living under agreement of separation — Fiduciaries Act of June 7, 1917.</p> <p>A wife living at the time of the death of her husband apart from him under a written agreement of separation is not entitled to the ?S00 exemption allowed under section 12 (a) of the Fiduciaries Act of June 7, 1917, P. L. 417; the existence of the family relation is essential to the allowance of the exemption, except where its severance was the fault of the husband. Section 6 of the Intestate Act of June 7, 1917, P. L. 429, which expressly provides that a wife who has wilfully and maliciously deserted her husband for a period of one year before his death has no right to claim any interest in his property under that act, has no application to the construction of the above clause of the Fiduciaries Act.</p> <p>NOTE. — Rudolph’s Estate, October Term, 1920, No. 619, was not reported because it turned on special facts, and is of little or no value as a precedent. The case, however, is a good illustration of the distinction between the principles governing’ the right of a widow to participate in the distribution of her husband’s estate and her right to the widow’s exemption. In that case claim was made by I the ’ widow to take against the will and also for her exemption. The residuary legatee contested the right so to do on the ground that she had been living separate from her husband for twenty-three years preceding his death and had been guilty of desertion. There was no satisfactory evidence of the cause of the separation. The first auditing judge held that the separation being established, the inference arose therefrom that it was unwarranted and that she was guilty of desertion. The matter was subsequently referred back by the court in Txmc for further testimony to a second auditing judge, who held that desertion could not be inferred from the separation, and that she was, therefore, entitled to participate in the distribution though disentitled to her exemption. The court in Tumo sustained the latter award on the ground that the widow, having testified, without objection, that her husband told her to “get out” of the house, she could not be regarded as guilty of desertion under the authority of Olson v. Olson, 27 Pa. Superior Ct. 128. It is significant, however, that there was no question that under Post’s Estate, 27 Dist. R. 748, her claim to the widow’s exemption must be denied.</p>

<p>Motion for leave to inspect mines, etc. C. P. Lackawanna Co., May T., 1919, No. 452.</p>

<p>Motion to strike off plaintiff’s statement. C. P. Lehigh Co., Jan. T., 1922, No. 80.</p>

<p>Indictment for fraudulent conversion. Demurrer and motion to quash. Q. S. Lancaster Co., Nov. Sess., 1921, No. 15.</p>

<p>Motion to strike off plaintiff’s statement of claim. C. P. York Co., April T., 1921, No. 56.</p>

<p>Attorney-General’s Department. Opinion to Hon. Fred Rasmussen, Secretary of Agriculture.</p>

<p>Rule for judgment for want of sufficient affidavit of defence. C. P. Berks Co., Sept. T., 1921, No. 35.</p>

' Rule to show cause why one still, one three-gallon jug and two quarts of whiskey should not be returned by the sheriff who took possession of the same when the defendant was arrested for violation of the liquor law. Q. S. Clearfield Co., Feb. Sess., 1922, No. 26.

<p>Scire facias to revive judgment. C. P. Snyder Co., Feb. T., 1922, No. 67.</p>

<p>Practice, C. P. — Trespass—Affidavit of defence — Waiver of objection to statement of claim — Act of May 3, 1917.</p> <p>The filing of an affidavit of defence in an action of trespass constitutes a waiver of defendant’s right to attack the regularity or sufficiency of the statement of claim, even though the defendant, being a municipality, was relieved from filing an affidavit of defence by the Act of May 3, 1917, P. L. 149.</p>

<p>Decedent’s estate — Insolvency—Transfers by decedent to executrix and legatee — Setting aside — Issue to Common Pleas.</p> <p>1. Where decedent, a short time before his death, conveyed to his executrix and residuary legatee real and personal property, and the real estate was converted into cash by the executrix, the Orphans’ Court is without jurisdiction to surcharge her with the value of the personal property and cash received from the sale of the realty at the request of a creditor upon the ground that decedent, being insolvent at the time of the transfers, they were void as against creditors.</p> <p>2. Under such circumstances, the court should direct an issue to the Common Pleas to determine the validity of the transfers as provided by the Act of March 29, 1832, P. L. 190, thus preserving the right of the transferee to trial by jury.</p>

<p>Statuory demurrer. C. P. Lancaster Co., April T., 1915, No. 49.</p>

<p>Divorce — Proclamation—Publication — Legal periodicals — Advertisements —Act of April 5, 1917 — Dauphin County.</p> <p>1. A proclamation in divorce is an advertisement required by law to be published in one or more newspapers.</p> <p>2. The Dauphin County Reporter is the weekly legal periodical for Dauphin County, and Dauphin County has more than 150,000 inhabitants.</p> <p>3. It is a statutory requirement, under the Act of April 5, 1917, P. L. 49, that a proclamation in divorce must be published in the legal newspaper, if such newspaper exists, in all counties having a population of 150,000 or more.</p> <p>4. The act of assembly provides that the court may dispense with such publication by special order, and in this case such publication was dispensed with in order not to work confusion and hardship, although it is stipulated that hereafter such publication will be required.</p>

<p>Petition for removal of executor and trustee. O. C. Schuylkill Co.</p>

Hearing on transcript of justice of the peace. Q. S. Washington Co., Nov. Sess., 1921, No. 35. In re hearing on transcript of W. S. Miller, justice of the peace, wherein the above-named defendant is charged with “operating a motor-vehicle on the public road in Carrol Township, Washington County, Pa., in a reckless manner, thereby endangering the lives of the general public, contrary to an Act of Assembly, No. 283, § 19, P. L. 1919.”

<p>Rule to amend statement of claim. C. P. Schuylkill Co., Sept. T., 1920, No. 215.</p>

<p>Husband and wife — Sheriff’s interpleader — Proof—Act of May 26, 1897.</p> <p>1. Under the Act of May 26, 1897, P. L. 95, and the amendments thereof, the Court of Common Pleas may not inquire into the merits of the respective claims more than to see that they are not colorable, frivolous or collusive, but may be the basis of tona fide suits. If they be, the interpleader must be granted, even though upon the merits the court be of the opinion the claim cannot finally prevail.</p> <p>2. Where goods levied upon as property of the husband are claimed by the wife, and on an interpleader rule the wife testifies that she purchased the goods through money obtained from an inheritance and through allotments made for her support by the Government while her husband was in the army, an issue will be awarded, even though there are circumstances which throw grave doubt upon the good faith of certain transactions.</p>

<p>Municipalities — Cities of the third class — Judgment against -city — Mandamus execution — Acts of April 15, 188%., and June 27, 1918.</p> <p>Notwithstanding- that no appropriation has been made by the council of a third class city, under the Third Class City Act of June 27, 1913, P. L. 568, for the payment of a judgment against the city, a writ in the nature of a mandamus execution for the payment of the judgment, under section 6 of the Act of April 15, 1834, P. L. 537, will be directed to the city treasurer.</p>

<p>Application for retail licenses to sell vinous, spirituous, malt and brewed liquors. Q. S. McKean Co., June Sess., 1922, Nos. 1 and 12.</p>

<p>Practice, equity — Specific performance — Coverture—Restoration of purchase money — Prayers.</p> <p>1. Where, in a proceeding in equity against man and wife for specific performance of the wife’s contract for the sale of her real estate, the defence is coverture and plaintiffs’ laches, and the defendants succeed on hoth pleas, the court may decree the return of the purchase money, notwithstanding there was no prayer for restoration.</p> <p>2. In such case, the duty to restore is involved in the plea of coverture, and, therefore, the court acquires jurisdiction of restoration. .</p>

<p>Justice of the peace — Failure of plaintiff to appear — Judgment for defendant — Non-suit.</p> <p>1. Where a plaintiff in a suit before a justice of the peace fails to appear, and judgment is entered against him with costs, such judgment will be affirmed on appeal.</p> <p>2. In such case, the dismissal of the case by the justice is practically the entry of a non-suit, and the plaintiff may proceed <te novo if he desires.</p>

<p>Motion for judgment non obstante veredicto for defendants. C. P. No. 5, Phila. Co., March T., 1920, No. 1783.</p>

<p>Practice, C. P. — Pleadings—Statement of claim — Demurrer—Trespass.</p> <p>1. A demurrer filed to a statement of claim in trespass must fie deemed to operate as a waiver of any objection for informality.</p> <p>2. In an action in trespass for death of plaintiff's wife, caused by a fall from a balcony in a house of which the defendant was owner, and of which plaintiff alleged that he was tenant, a statement of claim is fatally defective which avers that the house was of a certain street number, but fails to aver of what the premises consisted; or whether the plaintiff was a tenant of the whole or parcel thereof, or if the latter, of what parcel; when the tenancy began; what were its terms as to repairs; and whether the demised premises included the balcony.</p>

<p>Statute of frauds — Memorandum in writing — Parties and prices to be disclosed — Sales Act of May 19, 1915.</p> <p>1. Under section 4 of the Sales Act of May 19, 1916, P. L. 643, which provides that a contract to sell or a sale of any goods or choses in action of the value of ?500 or upwards shall not be enforceable by action . . . unless some note or memorandum in writing of the contract or sale is signed by the party to be charged, etc,, a memorandum is insufficient which does not disclose the seller either by name or description, although signed by the buyer, the party to be charged, since, unless the names of both parties appear, the contract may be foisted upon any one by perjury, which is the very thing the statute was enacted to prevent.</p> <p>2. Subsequent papers are inadmissible to supplement an incomplete memorandum unless they are signed by the party to be charged or referred to in the incomplete memorandum signed by him; hence, in the case at bar, the omission of the name of the seller in the original memorandum could not be supplemented by letters written by him to the buyer confirming the alleged contract.</p> <p>3. A memorandum which does not necessarily show the prices is insufficient.</p>

<p>Rule for judgment. C. P. Luzerne Co., Oct. T., 1920, No. 607.</p>

<p>Interstate commerce — Act of Congress of Aug. 29, 1916 — Order bill of lading — Negotiation—Rights of holder.</p> <p>An order bill of lading, issued by carrier under instructions from the shipper to hold the goods until such time as shipper gave orders for forwarding-, was thereafter negotiated, and on suit against the carrier by the holder of the order bill of lading, on a claim for shrinkage in weight and value, it was held, under the Act of Congress of Aug. 29, 1916, 36 Stat. at L. 538 (Interstate Commerce): 1. That section 8, providing that a carrier, in the absence of a lawful excuse, is bound to deliver the goods to the holder of an order bill of lading, does not require the carrier to deliver, in the absence of order for shipment, even though the order bill of lading has been issued and endorsed over to the holder. 2. That section 81, providing for transfer of title to the endorsee of an order bill of lading, and creating an obligation in the carrier to hold possession of the goods for him, creates no more than an obligation of the carrier to the holder “according to the terms of the bill.” 3. That section 39, forbidding a seller’s lien or right of stoppage im transitu, does not preclude a contract between the shipper and carrier to withhold shipment of the goods, to which contract the holder of an order bill of lading becomes a party by purchase of the bill, it being provided that the carrier should not be held responsible for damages caused by the act of the shipper. 4. In a suit in assumpsit upon a bill of lading instituted by the holder thereof against the carrier, such holder is bound by the terms thereof, and if the damages complained of were due to the act of the shipper, the clause of the bill exempting the carrier from liability for damages caused by the act of the shipper will prevent recovery.</p>

<p>Attorney-General’s Department. Opinion to Hon. Peter G. Cameron, Deputy Commissioner of Banking.</p>

<p>Upon trial and final hearing. C. P. Berks Co., Equity Docket, 1920, No. 1267.</p>

<p>Demurrer to bill in equity. C. P. Schuylkill Co., March T., 1922, No. 3.</p>

<p>Capias — Fraud—When warrant will issue — Act of July 12, 1812.</p> <p>1. Where a plaintiff: has an election between an action ex contractu and an action ex cleUcto, capias will not lie.</p> <p>2. Under the Act of July 12, 1842, par. 3, P. L. 339, a warrant of arrest, where an obligation has been incurred through fraud, can issue only on an order of court after the production of satisfactory evidence in support of the allegations of fraud.</p>

<p>Rule to show cause why actions should not be consolidated and tried together. C. P. York Co., April T., 1920, No. 32.</p>

<p>Exceptions to decree of hearing judge dismissing appeal from the Register. O. C. Phila. Co., July T., 1921, No. 155.</p> <p>Testatrix, Margaret J. Narr, who had resided for many years in Philadelphia, owning real estate in that city, on April 28, 1921, because of ill-health, sold her real estate and a large part of her furniture and went to live with relatives at Ocean City, New Jersey. On July 18, 1921, she returned to the University Hospital, Philadelphia, for a serious operation, which was performed on the 20th, and on the 24th she died. Upon an appeal from the Register of Wills who had admitted the will to probate, Gummey, J., the hearing judge, held that there had been no abandonment of her residence in Philadelphia, and dismissed the appeal. Exceptions were taken to his ruling.</p>

Exceptions to adjudication. O. C. Phila. Co., April T., 1921, No. 464. The facts appear from the following extract from the adjudication of Judge Henderson: “The testator died on Jan. 11, 1917, leaving a will, dated Jan. 25, 1915, duly admitted to probate, upon which letters testamentary issued to the' accountant on July 5, 1917. . . . “By his will the decedent gave his widow a legacy of $10,000, and another legacy, clear of tax, to Edward Hampton of $500.

<p>Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1912, No. 568.</p>

<p>Wills — Codicils—Residuary legatees — Legatees named in codicil but not in will.</p> <p>Testatrix having named Dr. H. as one of the legatees in her will and after his death having substituted his widow, by codicil, to take the legacy originally made to him, the widow is entitled to share in the residuary estate designated for distribution “to the legatees” in the will.</p>

<p>Habeas corpus. C. P. Dauphin Co., Jan. T., 1922, No. 163.</p>

<p>Rule for, permission to intervene. C. P. Schuylkill Co., May T., 1921, No. 157.</p>

<p>Habeas corpus. C. P. Somerset Co., Sept. T., 1921, No. 408.</p>

<p>Motion for judgment n. o. v. C. P. Montgomery Co., June T., 1920, No. 158.</p>

Rule to show cause why defendant should not be discharged from arrest on a capias ad satisfaciendum sur judgment on a verdict. C. P. Northampton Co., Feb. T., 1920, Nos. 27 and 28.

<p>Justice of the peace — Appeal—Justice as agent of appellant — Forwarding transcript — Use of mails.</p> <p>1. An arrangement with a justice of the peace by a defendant in a judgment for the former to send the transcript to him for purposes of appeal constitutes the justice his agent, and if the justice forwards the transcript by mail and it is never received, the defendant cannot perfect his appeal after the statutory period has elapsed.</p> <p>2. The procedure on appeal is strictly statutory, and the court is without power to enlarge the time for action prescribed by the statute.</p>

<p>Petition for the appointment of a guardian for a woman alleged to be weak-minded. C. P. Snyder Co., June T., 1922.</p>

<p>Statutory demurrer. C. P. Jefferson Co., April T., 1921, No. 71.</p>

<p>Demurrer. Indictment for impersonating officer. Q. S. Lancaster Co., Jan. Sess., 1922, No. 9.</p>