Volume 216 — Pennsylvania State Reports

<p>Equity — Equity pleading — Equity practice.</p> <p>The relief afforded by a decree in equity must conform to the case as made out by the pleadings as well as to the proofs. Every fact essential to entitle a plaintiff to the relief which he seeks must be averred in his bill. Neither unproved allegations nor proofs of matters not alleged can be. made a basis for equitable relief.</p> <p>A decree declaring one of the defendants a trustee of real estate for the benefit of the complainant cannot be sustained where the only prayer of the bill was for a decree of specific performance against another defendant and the averments of the bill show that this was the only relief sought.</p>

<p>Appeal, No. 113, Jan. T., 1906, by plaintiff, from decree of C. P. Blair Co., No. 455, in equity, in case of Louisa Luther, widow of Chrysostom Luther, v. Standard Building and Loan Association et al.</p> <p>Bill in equity for specific performance. Before Bell, P. J.</p> <p>For the facts see Luther v. Luther, ante, p. 1.</p> <p>Error assigned was in refusing to enter a decree of specific performance.</p>

Appeal, No. 292, Jan. T., 1905, by plaintiff, from decree of C. P. Crawford Co., No. 2, Nov. T., 1902, dismissing bill in equity in case of H. P. White and Carl Bender, trading as Trowbridge Chocolate Chip Company, v. W. S. Trowbridge. Bill in equity for an injunction. Thomas, P. J., found the facts to be as follows : 1.

<p>Appeal, No. 77, Jan. T., 1906, by plaintiff, from order of C. P.. McKean Co., Oct. T., 1904, No. 96, refusing to take off nonsuit in case of Michael J. Dwyer v. Port Allegheny Borough.</p> <p>Trespass to recover damages for personal injuries. Before Bouton, P. J.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 68, Oct. T., 1906, by defendant, from judgment of Superior Ct., April T., 1905, No. 179, reversing judgment of C. P. Cambria Co., June T., 1904, No. 410, on verdict for plaintiff in case of Samuel Len-hart v. Cambria County.</p> <p>Appeal from the Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court and by the report in 29 Pa. Superior Ct. 350.</p> <p>JError assigned was the judgment of the Superior Court.</p>

<p>Negligence — Explosion in brewery — Evidence—Contributory negligence— Previous act.</p> <p>In an action against a brewing company to recover damages for death of plaintiff’s husband resulting from an explosion caused by some unknown person tampering with the steam appliances of the brewery, it is reversible error for the court to admit evidence to the effect that the deceased himself had on a previous occasion tampered with the steam appliances for the purpose of hastening his work in filling beer barrels, where there is no evidence in the case whatever to connect the deceased with the act which was the immediate cause of the explosion.</p> <p>It is an established rule applicable alike to civil and criminal inquiries that the commission of the act charged cannot be proved by showing a like act to have been committed by the same person.</p>

<p>Negligence — Master and servant — Vice principal — Fellow servant.</p> <p>Where an oil company establishes a boiler repair works as a distinct branch of its business, and intrusts the sole charge of it to a superintendent, who hires and discharges workmen, and gives orders about the work to be done and repairs to be made, the superintendent is a vice principal of the company, and not a fellow servant of the workmen employed in the repair shop.</p> <p>In an action against an oil company by one of its workmen to recover damages for personal injuries sustained by the explosion of a boiler under a testing process, it appeared that the boiler had been repaired in a repair shop of the defendant, and that after having been removed from the shop it had exploded while being tested. A witness for the plaintiff testified that before the boiler left the shop he directed the attention of the superintendent, who was the vice principal of the company, to the unsafe and dangerous condition of the crown sheet and stay bolts of the boiler. The superintendent replied that he thought them all right. This testimony was uncontradicted. There was evidence that during the test the pressure against the crown sheet caused the stay bolts to give way, and the explosion occurred as a result. There was no evidence that the plaintiff had any knowledge of the dangerous or defective condition of the boiler. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Ground rents — Merger—Extinguishment—Mortgage—Recording acts— Notice.</p> <p>Where an owner of a ground rent purchases the ground itself and subsequently executes a mortgage without indicating an intention in the mortgage to prevent a merger of the rent in the title to the land, and thereafter executes an assignment of the ground rents to another person, one who takes title under foreclosure of the mortgage takes the fee in the land with the ground rents extinguished, and the assignee of the ground rents takes nothing by his assignment.</p> <p>Ground rent — Merger—Intervening estate — Mortgage—Secret lien — Notice. A ground rent does not merge by the purchase of land out of which it issued by the owner of the rent where there is an intervening estate in, or charge on, the land, held by a third party, a stranger to the title to the fee; but this .does not apply to a secret trust or equity of which a subsequent purchaser has no notice.</p> <p>The fact that the sheriff sells land subject to ground z’ents does not prevent the subsequent merger of the ground rents, where the purchaser is the owner of the ground rents; nor is it notice to a subsequent mortgagee that they were subsisting encumbrances when he took his mortgage.</p> <p>Mitchell, C. J., and Fell, J., dissent.</p>

Appeal, No. 289, Jan. T., 1906, by plaintiff, from judgment of Superior Court, April T., 1905, No. 1, reversing judgment of C. P. Fayette Co., Dec. T., 1900, No. 253, on verdict for plaintiff in ease of E. D. Fulton v. Allen S. Walters. Appeal from Superior Court. The facts appear by the opinion of the Supreme Court, and by the report of the case in 28 Pa. Superior Ct. 269. Brror assigned was the judgment of the Superior Court.

<p>Appeal, No. 362, Jan. T., 1905, by plaintiff, from judgment of C. P. Union Co., Jan. T., 1903, No. 45, on verdict for defendant in case of Hiram H. Hetzel, Administrator of the Estate of Mary A. Hetzel, deceased, v. John W. Lincoln, Administrator of the Estate of Richard Y. B. Lincoln, deceased, with notice to Anna M. Lincoln, Terretenant.</p> <p>Scire facias to revive a judgment. Before McClure, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Plaintiff presented the following points :</p> <p>1. That the evidence raises the fair presumption that it was the intent of Richard V. B. Lincoln and Anna M. Lincoln to hold the lands conveyed to' them by Robert Reed and wife, by deed dated March 31, 1874, not as an estate by entireties, but in equal undivided interests as tenants in common; and that under the laws of Pennsylvania effect will be given to such intent, and the title be regarded as held by them accordingly; and that the undivided interest which passed from Richard V. B. Lincoln to Anna M. Lincoln by the deed of June 25, 1894, was subject to the lien of the judgment of Mary A. Hetzel v. Richard V. B. Lincoln, No. 94, of March Term, 1893, revived to No. 42, of March Term, 1898, with notice to said Anna M. Lincoln as terre-tenant, and now sought to be revived in the present proceeding. -Answer: Refused. [1]</p> <p>2. That if the law makes the estate conveyed by Robert Reed and wife to Richard Y. B. Lincoln and Anna M. Lincoln an estate by tbe entireties, the deed of Richard V. B. Lincoln of June 25, 1894, to Anna M. Lincoln and its acceptance by her; her subsequent dealing with the land so conveyed; and her allowing said judgment No. 94, March Term, 1898, to be revived against her as terre-tenant, show an intent to sever said estate by entireties, and an arrangement between Richard V. B. Lincoln and herself to hold said lands in undivided interests; and that, if the jury believe that there was such an arrangement, then said arrangement amounted to a partition ; and when in pursuance of said arrangement Anna M. Lincoln received from Richard Y. B. Lincoln a conveyance of his undivided one-half of said lands, she took the same subject to the lien of the Hetzel judgment, now sought to be revived. Answer: Refused. [2]</p> <p>3. That Anna M. Lincoln was bound to defend against the revival of the judgment No. 94, March Term, 1893, when she was served as terre-tenant with adversary process, if she had any defense thereto; but having alloweda judgment of revival to be entered against her on March 19, 1898, to No. 42, March Term, 1898, it became conclusive, and she will not be allowed to convert the lien of said judgment against the undivided half interest in the lands conveyed to her by the deed of June 25, 1894, by said Richard Y. B. Lincoln, but judgment of revival must be entered against her as terre-tenant in the proceeding now pending. Answer : Refused. [3]</p> <p>4. Under all the evidence the verdict must be for the plaintiff. Answer: Refused. [4]</p> <p>The court gave binding instructions for defendant. [5]</p> <p>Plaintiff appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

<p>Appeal, No. 150, Jan. T., 1906, by defendant, from judgment of C. P. York Co., Jan. T., 1905, No. 27, on verdict for plaintiff in case of L. A. Marshall v. August Sonneman.</p> <p>Assumpsit on a promissory note. Before Bitteng-er, P. J.</p> <p>At the trial it appeared that the note in suit was as follows :</p> <p>“•$4000 York, Pa., Nov. 2,1903</p> <p>“ One hundred twenty days after date I promise to pay to the order of A. Sonneman at L. A. Marshall</p> <p>& Co., Bankers, York, Penna.</p> <p>Four thousand Dollars without defalcation for</p> <p>value received, waiving the benefit of the Exemption and Stay laws.</p> <p>“No. Post Office</p> <p>“ Due March 29, Feb. 29 24099 M. Fink</p> <p>Mar. 1.</p> <p>“ Endorsers. A. Sonneman „ “L. A. Marshall.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,756.14. Defendant appealed.</p> <p>Hrror assigned amongst others was (2) in rejecting the notice of the protest offered in evidence by the defendant.</p>

<p>Appeal, No. 131, Jan. T., 1906, by defendant, from judgment of Superior Court, Oct. T., 1905, No. 211, affirming judgment of Q. S. Schuylkill Co., Sept. T., 1905, No. 905, on verdict of guilty in case of Commonwealth v. John T. Shoener.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Superior Court, 80 Pa. Superior Ct. 821, was as follows:</p> <p>The first specification alleges that the court below erred “ in overruling the third paragraph of defendant’s demurrer, which paragraph is as follows : That the offense charged in said indictment is barred by the statute of limitations, the same having been found more than two years after the moneys alleged to have been received by the defendant, and which he failed to pay over, came into his hands.” The indictment charged in apt language that the defendant had been duly elected and qualified as clerlr of the court of quarter sessions of the peace for the county of Schuylkill, and exercised the duties, powers, rights and privileges of said office from the first Monday of January, 1900, until January 5, 1903; and that he had by virtue of his office collected and received from applicants for license to sell liquor in said county fees amounting to the sum of $7,243.28 and upwards, for and in the name of and on account of the county of Schuylkill; and that F. J. Noonan, the treasurer of said county of Schuylkill, did on June 30, 1905, demand and require him, the said John T. Shoener, to pay over to him, the said treasurer, the said sum of money, and the said John T. Shoener did unlawfully fail to pay over the said sum unto the said treasurer when thereunto lawfully required, by said treasurer, he, the said F. J. Noonan, being the proper officer authorized to demand and receive the same.</p> <p>The indictment was drawn under the provisions of the 65th section of the Act of March 31, 1860, P. L. 382, which provides that: “ If any state, county, township or municipal officer .... shall convert to his own use, in any way whatsoever, or shall use, by way of investment in any kind of property or merchandise, any portion of the public money intrusted to him for collection, safe-keeping, transfer or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the state, county or township treasurer, or other officer or person authorized to demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement of so much of said money as shall be thus taken, converted, invested, used or unaccounted for, which is hereby declared a misdemeanor.” The present Chief Justice construed this section of the statute in Commonwealth v. Mentzer, 162 Pa. 646, and there said: “ The section clearly specifies four distinct and separate facts with reference to public money, which shall constitute the offense of embezzlement, to Avit, conversion to the officer’s own use, investment in property or merchandise, becoming a defaulter, or failing to pay over on proper demand. These are clearly enumerated in the disjunctive, and it is further declared ‘ that every such act ’ shall be deemed and adjudged an embezzlement. Each of these acts, therefore, though of very Aarying character and degree of moral turpitude, is of equal legal import, and by itself constitutes the full statutory offense.</p> <p>“ Prima facie, therefore, each of such acts charged is a separate crime, and where such is the fact no two can be charged in the same count. But .... where .... two or more of the enumerated acts are in truth only successive steps in one appropriation or embezzlement of the same money, it would be contrary to the fundamental principles of our criminal jurisprudence to hold that they had not merged and become but one offense.” This indictment charged the defendant with only one of the acts by the statute made a misdemeanor: the failure to pay over the money when thereunto legally required by the county treasurer, the proper officer authorized to demand and receive the same. This statute did not make it a misdemeanor for a county officer to fail to pay over public money as soon as he received it, nor as soon as it became his official duty to pay it over; under its provisions it is only after the official who has collected the money has been legally required to pay by the county treasurer or other proper officer or person authorized to demand and receive the same, that a failure, to make the payment becomes a misdemeanor. That a demand must be made before this offense can be committed; that the demand must be an actual one, and that no constructive demand will meet the requirements of this statute, has been definitely settled by the decision of the Supreme Court in Commonwealth v. Shoener, 212 Pa. 527. This indictment averred that the demand by the treasurer was made on June 30, 1905. If the other averments of the indictment were true the defendant was still civilly liable to the county for the money, and the treasurer had the lawful right to make the demand; bad the defendant then paid the money he would never, so far as the averments of this indictment are concerned, have been guilty of the offense with which he is now charged. It was only his failure to pay when the demand was made upon him that brought him within the operation of this statute; the right of the commonwealth to prosecute then arose, and from the date of the demand the statute of limitations began to run. The first specification of error is dismissed.</p> <p>The defendant raised in various forms the question as to when the statute of limitations, as to this offense, began to run, by his first, second, third and fourth written requests for instructions to the jury. These points presented but one question in different forms, and by them the court was requested to instruct the jury: that the Act of March 31,1876, P. L. 13, made it the official duty of the defendant to pay into the county treasury on the first Monday of each month during his term, and the first Monday of the month next after the expiration of his term, all fees received by him during the preceding month, and that the defendant was required by law to pay the $7,243.28 mentioned in the indictment into the county treasury on the first Monday of January, 1903; and if the jury found that he had failed to do so, “ the offense of failure to pay over under this indictment was then complete,” and it immediately became the duty of the county treasurer to demand payment of said money, and the commonwealth was bound to bring the indictment within two years from the time when the county treasurer could have so legally demanded payment of said money: that the failure of the treasurer to make that demand could not stop the running of. the statute of limitations, and that the indictment not having been found within two years, the verdict must be not guilty. The fourth point added “ That any agreement or stipulation entered into between the county of Schuylkill and the defendant for the purpose of legally determining the legal ownership of said money or any part thereof in a civil proceeding in the courts of the state did not arrest the running of the statute in favor of the defendant, but the statute became a bar to this indictment in two years after the first Monday of January, 1903, when defendant’s term of office expired and he failed to pay over.” The defendant was not indicted under the provisions of the act of 1876. It cannot be seriously contended that the act of 1876 repealed the 65th section of the act of March 31, 1860. The third section of the act first mentioned does, it is true, provide penalties for violation of some of its provisions, but it expressly provides that such penalties shall be “in addition to the other penalties for such offenses.” We must, for the reason so clearly stated by Mr. Justice Bkown in Commonwealth v. Shoener, 212 Pa. 527, hold that in order to complete and render liable to indictment the crime witli which this defendant stands charged, there must be an actual demand made upon him by a proper officer, and “ a failure to pay that which, at the time the demand is made, clearly belongs to the county making the demand.” The offense had no existence until after a lawful demand within the meaning of the statute was made, and from the date of that demand the statute of limitations began to run. Had the defendant produced evidence that some officer having authority to do so had, at a time when the defendant was legally liable to have such demand made upon him, actually demanded that the defendant pay the money to the county treasurer, -that evidence would have raised a question of fact as to the time when the first regular and lawful demand was made and the statute of limitations would begin to run from that date. No such evidence was offered. The question attempted to be raised by the fourth point was not involved in this case; the agreement referred to did not arrest the running of the statute of limitations after it had once commenced to run, but that agreement having been made before the defendant had received the money involved in this proceeding, he had the right from the moment he received it to hold it until the question of the ownership of the fees was determined by the final judgment of the Supreme Court, and it was not until after that final judicial determination that the county treasurer had any right to demand payment of the money. This was expressly ruled in Commonwealth v. Shoener, 212 Pa. 527.</p> <p>The fifth and sixth specifications of error may be properly considered together. The defendant interposed a special plea in bar, setting forth at length the record of the proceedings in the case of the Commonwealth v. John T. Shoener, No. 75, March Term, 1903, of the court of quarter sessions of the county of Schuylkill, and the review thereof by the Supreme Court of Pennsylvania, on appeal to No. 286, January Term, 1904, reported. 212 Pa. 527, and upon the record so pleaded prayed judgment of the court if he ought to be put further to answer the present indictment. The commonwealth demurred to the plea and the court sustained the demurrer, which ruling is the subject of the fifth specification of error. The defendant then entered a general plea of autrefois acquit and not guilty. The only evidence offered under the plea autrefois acquit was the same record which had been specially pleaded in bar, there being no dispute that the defendant was the person charged in the former indictment; and upon that issue the jury, under the instructions of the court, rendered a verdict in favor of the commonwealth. The instruction of the court directing the jury to find for the commonwealth on that issue is the subject of the sixth specification of error. On demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled thereto. If the plea is former acquittal, the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom : Murphy v. Richards, 5 W. & S. 279 ; Heilces v. Commonwealth, 26 Pa. 513. The record pleaded in bar showed a prosecution for embezzlement commenced on January 3, 1903, an indictment found on November 14, 1903, containing thirteen counts, a trial which resulted in the acquittal of the defendant on the first, second, third, fifth, sixth, seventh, ninth, tenth, eleventh and thirteenth counts, and a verdict of guilty on the fourth, eighth and twelfth counts, a judgment of the court of quarter sessions upon the eighth and twelfth counts, and a reversal of that judgment, and discharge of the defendant from his recognizance by the Supreme Court. Upon the trial of the issue formed by the record pleaded in bar the burden was upon the commonwealth to prove that prior to the commencement of that prosecution a proper officer had made demand upon the defendant that he pay to the county treasurer money which, at the time the demand was made, it was the legal duty of the defendant to so pay, and that the defendant had failed to pay upon such demand. No evidence of a demand made after the finding of that former indictment -would, upon the trial thereof, have been admissible. In the present indictment it was necessary for the commonwealth to prove that there had been a demand made by the county treasurer on June 30, 1905, that the defendant pay, to said treasurer, money belonging to the county at that time in the bands of the defendant and which the treasurer at that time had the lawful right to require him to pay.</p> <p>The true test to ascertain whether the plea of autrefois acquit be a good bar is whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction on the first: Commonwealth v. Tadrick, 1 Pa. Superior Ct. 555 ; Commonwealth v. Rockafellow, 3 Pa. Superior Ct. 588 ; Commonwealth v. Montross, 8 Pa. Superior Ct. 237 ; Commonwealth v. Hazlett, 14 Pa. Superior Ct. 352; s. C., 16 Pa. Superior Ct. 534; Hilands v. Commonwealth, 114 Pa. 372. The plea averred the offenses to have been the same, but the effect of this was to change the record, and the record must stand: Commonwealth v. Trimmer, 84 Pa. 65. There was no error in the judgment of the court upon the demurrer to the special plea in bar. The instruction of the court to the jury to find for the commonwealth upon the issue raised by the defendant’s plea of autrefois acquit might he sustained upon the same grounds alone, but as the facts, although absolutely undisputed, are somewhat involved it may be well to briefly state them. The defendant offered in evidence the record of the indictment and proceedings thereunder against him above referred to, and in immediate connection therewith the record of the case of the County of Schuylkill v. John T. Shoener, No. 61, January Term, 1902, of the court of common pleas of Schuylkill county; No. 6, January Term, 1903, of'the Supreme Court of Pennsylvania, and especially the agreement in the nature of the case stated between the county and Shoener, included in the latter record. These two records, taken together, establish all the facts considered by the Supreme Court in Commonwealth v. Shoener, 212 Pa. 527.</p> <p>The verdict of the jury at the former trial found the defendant not guilty upon ten counts of the indictment and guilty upon three counts.</p> <p>The verdict as to the counts upon which the defendant was acquitted established that he had not prior to that time converted the money to his own. use, or invested it in property of merchandise. These are offenses distinct from the mere failure to pay over on proper demand, and the acquittal as to them would not shield the defendant against the present prosecution: Commonwealth v. Mentzer, 162 Pa. 646. The three counts upon which the defendant was found guilty were the fourth, eighth and twelfth. The fourth count charged him with failure to pay over upon demand the moneys received by him as license fees on January 7,1901; the eighth count charged a like offense with regard to money received on January 6, 1902, and the twelfth count charged him with failure to pay on demand moneys received by him on January 5, 1903 ; the failure to pay over on demand the money received by the defendant for license fees in the month of December in each year of his term as shown by his report filed on the first Monday of January following, being laid in a separate count. The court of quarter sessions did not sentence the defendant upon the fourth count of the indictment, which charged the failure to pay over the fees received in January, 1901. The court did sentence the defendant on the eighth and twelfth counts, which respectively charged the failure to pay over on demand the fees included in his official reports for January, 1902, and January, 1903. That judgment was reversed by the Supreme Court, without a new venire (Commonwealth v. Shoener, 212 Pa. 527), for the reason that because of the then pending civil proceeding and the agreement in the case stated to which the county and the defendant were patties, the defendant had the right to retain all these license fees; that they did not become payable to the county and neither the county nor any of its officers had a right to demand that the defendant should pay them to the county treasurer, until after the question of the ownership of the fees had been determined by the Supreme Court, which final determination was not had until May 4,1903, in the decision reported in Schuylkill County v. Shoener, 205 Pa. 592. In reversing the judgment of this court and of the court of quarter sessions, the Supreme Court, who spoke by Mr. Justice Brown, in reference to the failure of the defendant to pay, said : “ In refusing to comply with the notice to pay, he was standing on his right not to do so until it was determined that the county was entitled to receive the money.”</p> <p>The record offered in evidence did not show an adjudication that the defendant had not received the money, nor that, having received it, he had paid it over. It did show an adjudication by the court of last resort that the defendant had the right to retain this money and could not legally be required to pay it over until May 4,1903. The agreement in the nature of a case stated, which was thus conclusively determined to vest in the defendant the right to retain these fees until the question of their ownership was determined by the Supreme Court, was made, executed and filed of record in the court of common pleas of Schuylkill county of November 21,.1901. The fees involved in the present indictment were not received by the defendant until after that date, a part of them within two months and the remaining portion over a year after the agreement had been filed of record. The agreement was in force at the time the defendant received the fees. There never was a time when a lawful demand could have been made upon the defendant to pay these fees, until after the question of their ownership was determined by the Supreme Court on May 4, 1903. This was distinctly held with regard to the twelfth count of the indictment in the former proceedings, which distinctly charged the receipt of the fees to have been in January, 1903, and which was supported by evidence that the money was actually received by the defendant in December, 1902, and that he acknowledged said receipt in his official return on the first Monday of January, 1903.</p> <p>The defendant had received the money in question by virtue of his office. When the question of its ownership was determined by the decision of the Supreme Court on May 4,1903, it became his duty to pay the money to the county treasurer, but his failure to pay it did not, under the provisions of the 65th section of the act of March 31, 1860, become criminal until after the county treasurer had made demand. When the treasurer did make such demand, the offense was complete. The instruction of the court below to the jury to render a verdict in favor of the commonwealth upon the issue raised by the plea of autrefois acquit was, under the records and evidence presented, correct: Solliday v. Commonwealth, 28 Pa. 13, and the cases hereinbefore cited. In this view of the case we do not deem it necessary to consider the question of the constitutionality of the Act of June 12, 1878, P. L. 196, section 6, nor ■whether the period of limitation of prosecutions in cases of this character is by that statute extended to four years. All the assignments of error are dismissed.</p> <p>The judgment is affirmed, and it is ordered that the defendant appear in the court of quarter sessions of Schuylkill county and by that court be committed until such part of the sentence as bad not been performed when this appeal , was made a supersedeas, be complied with.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 93, Oct. T., 1906, by defendant, from judgment of O. & T. Allegheny Co., March T., 1905, No. 41, on verdict of guilty of murder of the first degree in the case of Commonwealth v. Cornelius Combs. Indictment for murder. Before Brown, J. At the trial it appeared that the prisoner was indicted for the killing of Mary Elizabeth Dickerson by shooting her on February 8, 1905.

Appeal, No. 174, Jan. T., 1906, by defendant, from judgment of O. & T. Warren Co., March T., 1906, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Antonio Frucci. Indictment for murder. Before Lindsey, P. J. Verdict of guilty of murder of the first degree. Errors assigned were (1, 2) instructions quoted in the opinion of the Supreme Court. .

Appeals, Nos. 175 and 176, Jan. T., 1906, by defendants, from judgment of O. & T. Warren Co., March T., 1906, No. 1, on verdict of guilty of murder in the first degree in eases of Commonwealth v. Frank Ieradi and Commonwealth v. Petro Notaro. Before Broto, Mestbezat, Potteb, Elkin and Stewart, JJ. Reversed. Indictment for murder. Before Lindsey, P. J. Verdict of guilty of murder of the first degree. Error assigned was instructions quoted in the opinion of the Supreme Court.

<p>Negligence — Boroughs—Pavement—Evidence—Question for jury.</p> <p>In an action against a borough to recover damages for personal injuries sustained by falling on a slippery pavement, the case is for the jury where the evidence tends to show that at the place of the accident there were offsets, and irregular and rough places which were permitted to become filled with snow and ice to such an extent as to make it unsafe for public use, and that this condition had existed for several weeks. In such a case it was for the jury also to determine whether the dangers of the situation were so obvious as to cause a prudent man to avoid them.</p> <p>Negligence — Borough—Pavement—Abutting owner.</p> <p>If a borough fails in the performance of its duties to keep or cause to be kept, its pavements in a reasonably safe condition for public use, it is liable in damages for such injuries as result from its negligence, and its liability is not affected by the question of the non-liability of an abutting property owner.</p>

<p>Insurance — Life insurance — Suicide—Proofs of death.</p> <p>In an action on a policy of life insurance where the company sets up as a defense that the deceased committed suicide within two years from the date of the policy, in violation of its terms, proofs of death are admissible as prima facie evidence of the fact of suicide, where such proofs show that the cause of death was suicide; but they are not conclusive of that fact.</p> <p>In an action on a policy of life insurance the company set up suicide as a defense. The coroner was called and testified that he found the deceased sitting in his office chair with the top of his head blown off, his arms down, and a shot gun resting between his legs, with a loop of twine through the trigger guard around his right foot. This testimony was not contradicted. Held, that it was sufficient to justify a verdict in favor of the company.</p>

<p>Appeal, No. 166, Jan. T., 1906, by plaintiff, from judgment of C. P. Mifflin Co., Aug. T., 1903, No. 38, on verdict for defendant in ease of Philip G. Raymer v. Standard Steel Works.</p> <p>Trespass to recover damages for personal injuries. Before Saviege, P. J., specially presiding.</p> <p>The facts relating to the accident are stated in the' opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 167, Jan. T., 1906, by plaintiff, from order of C. P. Northumberland Co., Sept. T., 1904, No. 415, refusing to take off nonsuit in casepf Joseph A. Miller v. The Northern Central Railway Company, Lessee of the Shamokin Valley & Pottsville Railroad Company. Trespass to recover damages for death of plaintiff’s son.

Appeal, No. 2, May T., 1906, by plaintiff, from judgment of (L P. Dauphin Co., Commonwealth Docket, 1900, No. 181, on case tried by the court without a jury in suit of Commonwealth ex rel. Attorney General v. Monongahela Bridge Company. Quo warranto to forfeit the franchises of a corporation. Before Weiss, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant.

Appeal, No. 1, May T., 1906, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1904, No. 240, on verdict for plaintiff in case of William F. Weber v. City of Harrisburg. Trespass to recover damages for personal injuries. Before Kunkel, J. At the trial it appeared that on March 10,1904, in the morning, plaintiff was injured by falling over an iron cable stretched across a path along the river front in the city of Harrisburg. The cable was partly buried in the path.

<p>Appeal, No. 4, May T., 1906, by defendant, from judgment of C. P. Fulton Co., June T., 1899, No. 57, on verdict for plaintiff in case of N. C. Trout and C. N. Trout, Executors of William F. Trout, deceased, substituted plaintiffs for the deceased, v. The President, Managers and Company of the Waynesburg, Greencastle & Mercersburg Turnpike Company.</p> <p>Trespass to recover damages for personal injuries. Before Swope, P. J.</p> <p>The facts relating to the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,600. Defendant appealed.</p> <p>Error assigned, amongst others, was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 108, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1906, No. 162, refusing mandamus in case of Commonwealth, ex rel. Welsbach Street Lighting Company of America v. John B. Larkin, Controller of the City of Pittsburg.</p> <p>Petition for mandamus. Before MacFarlane, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing mandamus.</p>

<p>Street railways — Roads—Consent—Condition subsequent — Impossibility of fulfillment.</p> <p>Where a township has granted a franchise to a street railway company to lay its tracks on a public road, with a condition subsequent that when required by the township it should remove its track from the side to the center of the road, the township cannot, after the construction of the road, declare a forfeiture of the franchise, where it appears that it was impossible for the company to fulfill the condition by reason of the refusal of the landowners abutting on one side of the road to give their consent to the construction of the railway in the center of the road.</p>

Appeal, No. 222, Jan. T., 1905, by defendant, from judgment of C. P. Lebanon Co., June T., 1903, No.-9, on verdict for plaintiff in case of John Kaylor v. Cornwall Railroad Company. Trespass to recover damages for personal injuries.

Appeal, No. 204, Jan. T., 1905, by defendant, from decree of C. P. Luzerne Co., Feb. T., 1904, No. 4, on bill in equity in case of Justus Fellbush v. Frances Fellbush and Frances Fellbush, Guardian ad litem of Lewis Fellbush et al. Bill in equity to cancel a paper, in form a deed, but alleged to be a will. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 136, Oct. T., 1906, by defendant, from judgment of O. & T. Indiana Co., June T., 1905, No. 1, on verdict of guilty in case of Commonwealth v. Carmene Renzo. Indictment for murder. Before Telford, P. J. Verdict of guilty upon which judgment of sentence was passed. Errors assigned were as follows: 1.

<p>Appeal, No. 290, Jan. T., 1906, by-defendant, from judgment of O. & T. Fayette Co., Dec. T., 1905, No. 4, on verdict of guilty of murder of the first degree in case of Commonwealth v. Wilbur Minney.</p> <p>Indictment for murder. Before Beppeet, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in sustaining various challenges, and portions of the charge.</p>

<p>Constitutional law — Construction—Conflicting provisions — Sections 1, 2, 7 of article XIV of the constitution — Public officers — County commissioners— Vacancy in office.</p> <p>In construing a constitution, the object is to give effect to the intent of the people adopting it. This is to be ascertained from the instrument itself, and by giving to its words and terms their ordinary and usual signification, unless it appears from the context, or entire instrument, that another meaning was intended. If different portions seem to conflict, the courts must harmonize them, if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.</p> <p>As there is no constitutional or statutory provision for determining which of the three predecessors in the office of county commissioner is the predecessor of a commissioner elect who refuses to qualify, the provision in section 2 of article XIV of the constitution, that a county officer shall continue in office until his successor shall be qualified, cannot apply where one of the county commissioners elected under section 7 of article XIV declines to qualify and accept the office. That provision was manifestly intended to apply to cases where a single individual filled a county office, and where, therefore, it is enforceable and gives an opportunity to continue in office an elective, instead of an appointive official. Where a commissioner elect refuses to qualify a “casual vacancy” occurs which may be filled in the manner provided by section 7 of Article XIV. The Act of April 15, 1834, sec. 16, P. L. 537, has no application to such a situation.</p>

<p>Appeal, No. 144, Oct. T., 1906, by defendant, from judgment of Superior Court, April T., 1906, No. 4, affirming judgment of C. P. Cambria Co., Dec. T., 1903, No. 336 on verdict for plaintiff in case of M. C. Waltz v. The Pennsylvania Railroad Company.</p> <p>Appeal from Superior Court. See 31 Pa. Superior Ct. 286.</p> <p>Trespass to recover damages for death of a minor son.</p> <p>Verdict and judgment for plaintiffs for f1,446.56. Defendant appealed.</p> <p>The opinion of the Superior Court, Orlady, J., was as follows :</p> <p>The plaintiff’s son, aged about fifteen years, was killed at Cresson station on the defendant’s railroad on November 20, 1902, about five o’clock in the evening.</p> <p>It is undisputed that the Union News Company, under an arrangement with the defendant, had a booth or stand, for the sale of papers, periodicals, etc., on the platform of Cresson station, and received its supplies at that point by baggage car service, the goods being delivered at the car door to the employees of the Union News Company, and by them taken to the .booth. John F. Parrish was the local agent of the Union News Company, and, as a personal enterprise, operated a small business in the name of the Cresson News Company, by delivering papers, magazines, etc., in Cresson, at points away from the station.</p> <p>Plenry Waltz was employed by Parrish for $2.50 a week to deliver papers received at the booth around the town, and to perform such other work as he was directed.</p> <p>On November 20, Parrish was obliged to go away from Cresson for the night, and requested his father to take care of the evening business at the booth, lock it up, and open it for business the next morning.</p> <p>The morning daily papers arrived at six and eight thirty o’clock by east and west trains. The news stand was generally kept open until about eight o’clock p. M. On this evening, Parrish, the father, who was there representing his son, testified as follows: “ Q. Did you see Henry Waltz around there?- A. Yes, sir. Q. Where was he? A. Standing at the outside window; I was inside. Q. What was Henry Waltz doing there ? A. He was there for the purpose of helping that evening. Q. What were you doing there? A. I was tending to the news stand for the evening. Q. What was Henry doing ? A. Well, he intended — his idea was to bring the papers from the train, as the train pulled in there, he was to bring the papers to the stand to me. That is what he was there for, to bring the papers up to the stand. Q. You were in charge of the news stand that evening? A. Yes, sir. Q. Did you invite Henry Waltz down there that evening? A. Yes, sir ; I asked him to help me out that evening. Q. You asked him to come down ? A. Yes, sir. Q. What were John Parrish and Mr. Waltz talking about? A. About newspapers. Q. What was the conversation? A. Mr. Parrish told him to go and get the newspapers when the train would come in from the west. He was to get them and distribute them among the customers. To get them ready. Q. What train did he look for the papers on? A. It was No. 84 (a passenger train).”</p> <p>The boy was standing on the station platform near to the news booth, with baggage trucks in his immediate vicinity when, as the appellant in his history of the case states, “ The accident occurred by an engine running east on track No. 1, while the passenger train was standing on track No. 2, going in the same direction, striking a baggage truck, which was thrown against the deceased.”</p> <p>This engine had become disabled while hauling a train of cars from South Fork eastward and was obliged to leave the train at Portage, and from there the engineer reported its defective condition to the superintendent of the division. Orders were issued to the engineer to proceed to Altoona with the engine and tender alone, and while he was approaching Cress on station, owing to the escaping steam which filled the cab, he was unable to see along the line of the track and distinguish the passenger train standing at Cresson station. When quite near to the station he endeavored to bring his engine to a standstill, but found that the throttle would not work, and before he could apply the brakes successfully, the engine had passed through the station on the track between the one on which the passenger train was then standing and the station platform, striking the truck, and causing the death of the boy. This occupancy of the track by the engine was in direct violation of Rule No. 114, as follows: “ Trains approaching stations where a passenger train is receiving or discharging passengers must be stopped before reaching the passenger train.”</p> <p>The only explanation of the violation of this rule was, that by reason of the defective freight engine, it could not be controlled. On the trial a prominent contention was that the boy was a trespasser on the track of the company, and unnecessarily exposed himself to a manifest danger by being there. This question was largely one of fact, and was fairly submitted to the jury, in the general charge as follows: “ If he was not there for a lawful purpose, if he was a trespasser and was not in some lawful pursuit, or was careless and that contributed in any degree to his death, then the plaintiff, in this case, could not recover.”</p> <p>There was abundant evidence to justify the jury in finding that as an employee of the Union News Company, he -was acting under orders of the representative of that company in doing its necessary work, and at the very place and time where the railroad company provided that it was to be done, by delivering the papers at the car door, and that he was not a trespasser, but was 'there under his right as an employee of the Union News Company.</p> <p>This action was brought in the name of the father. The defendant’s first point being, “ Inasmuch as Martha Waltz, the mother of the deceased, is living, and is not a party to this action, the plaintiff cannot recover,” which was refused by the court. The defendant’s fifth point was as follows : “ The defendant requests the court to instruct the jury that if they find for the plaintiff, to state in their written verdict whether the damages so found are for full compensation for both parents of the deceased.” This was answered as follows: “We instruct you, if you find for the plaintiff to find full compensation and damages, so far as it affects both parents, and you must say in your verdict that you so find. That is, you will find full compensation in damages, whether due the father, or due the mother, or due both the father and the mother.” The verdict returned was as follows: “Sept. 9, 1904. We, the jurors impaneled in the above-entitled case, find for the parents, the sum of $1,446.56. Total damages for the death of their son.”</p> <p>The plaintiff filed a formal motion to amend by adding the name of Mary Waltz, the mother of the deceased, as one of the parties entitled to recover. On April 4, 1905, the amendment was allowed, and judgment was then entered on the verdict in favor of the plaintiff.</p> <p>Whatever of irregularity there was in the pleadings, it was relieved by this amendment. In Huntington & Broad Top Mountain Railroad Company v. Decker, 84 Pa. 419, the proper practice to be followed, under the act of 1855, is fully considered so that there should be no controversy in the profession as to who are the proper parties, and how their demand should be stated. See also Kerr v. Pa. R. R. Co., 169 Pa. 95; Weaver v. Iselin, 161 Pa. 386; Haughey v. Pitts. R. R. Co., 210 Pa. 367; Hughes v. Williams, 17 Pa. Superior Ct. 229.</p> <p>The addition of the name Mary Waltz did not change the form of the action, and while her name should have been included in the statement as a person entitled to participate in the damages, its omission did not in any way harm the defendant in the light of the verdict returned by the jury.</p> <p>The negligence of the company in allowing the dismantled engine to proceed on its way to Altoona, when it could not be controlled by the engineer, was a proper matter for the consideration of the jury in determining whether that act was negligent or not. It would be straining the judgment of com-. mon-sense jurors to hold under the testimony of the engineer who had it in charge that it was not negligent. This act of negligence was in the carrying out of the direct order of the superintendent of the division, after he was advised, “ That the engine was in no condition to haul the train. The packing was blown out of the throttle.”</p> <p>In view of the character of his employment, the boy was not a trespasser while he was receiving the papers from the baggage car, and, conceding that he was engaged or employed about the depot within the meaning of the Act of April 4, 1868, P. L. 58, the plaintiff was entitled to recover by reason of the negligence of the company in permitting the freight engine to run through the station while the passenger train was standing at that point.</p> <p>The case was carefully tried in the court below and after a fair submission to the jury of all the disputed facts, no sufficient reason has been shown to warrant our disturbing the verdict as returned by the jury.</p> <p>The judgment is affirmed.</p> <p>JSrror assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 16, Oct. T., 1906, by defendant, from judgment of C. P. Mercer Co., Oct. T., 1906, No. 6, on verdict for plaintiff in case of Joseph Black v. The Bessemer & Lake Erie Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s wife. Before Miller, P. J.</p> <p>At the trial it appeared that on December 2,1903, plaintiff’s wife, and her father, Anson Curry, were driving in a one-horse buggy on a public road which crossed under the defendant’s railroad. As they approached the crossing they had a clear view of the railroad for a distance of nearly 1,500 feet in the direction from which a train was coming. When under or near the crossing the horse took fright, and Mrs. Black was thrown out, and received injuries from which she died a few days afterwards. There was no evidence that a signal was given by the blowing of a whistle or the ringing of a bell.</p> <p>Defendant presented these points :</p> <p>1. The court is requested to instruct the jury that the evidence in this case shows so clearly and conclusively that a locomotive on the railroad at any point between the crossing and a distance, say 1,000 feet, west of the crossing, was plainly visible from every part of the public road from the opening of the crossing for 300 feet or more back in the direction from which Mr. Curry and Mrs. Black were driving, there can be no doubt of the ability of the two occupants of the buggy to have seen the locomotive if they had looked, and, therefore, there can be no recovery in this case. Answer: Refused. [1]</p> <p>2. That under all the evidence in, this case there can be no recovery. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions quoting them.</p>

<p>Equity — Equity practice — Failure to find facts.</p> <p>In an equity suit the judge should find and state in connected and para-graphic form his findings of fact and conclusions of law. Failure to do so is a plain disregard of Equity Rule 62.</p> <p>Corporations — Water companies — Boroughs—Exclusive right in streets.</p> <p>A water company incorporated since the passage of the Act of June 2, 1887, P. L. 31Ó, is not possessed of any exclusive privilege in the use of the streets of a municipality in the absence of an agreement between the company and the municipality to that effect. The mere grant by the municipality to the company of the right to enter upon streets and lay pipes cannot be construed into an agreement to give the company an exclusive right to the streets, so as to prevent the municipality from subsequently installing a water system of its own.</p>

Appeal, No. 99, Oct. T., 1906, by plaintiff, from decree of C. P. Lawrence Co., March T., 1905, No. 2, dismissing bill in equity in case of Thomas W. Dickey, Executor of the Estate of Jane Roberts, deceased, v. Judson O. Norris, Elmer P. Norris and Sarah J. Patterson. Bill in equity to rescind a deed.

<p>Appeals, Nos. 63 and 64, Oct. T., 1906, by defendant, from judgment of C. P. Venango Co., Jan. T., 1904, No. 26, on verdict for plaintiffs in case of Marion Cameron and Alexander Cameron, her husband, v. Citizens Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Criswell, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for Marion Cameron for $2,900 and for Alexander Cameron $2,600. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions, but not referring to the page of the paper-book where the matter could be found; (2) refusal of binding instructions for defendant and (3) answer to defendant’s second point, referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 56, Oot. T., 1906, by-defendant, from judgment of C. P. Cambria Co., Dec. T., 1904, No. 47, on verdict for plaintiff in ease of Abram C. Weaver v. Berwind-White Coal Mining Co..</p> <p>Trespass to recover damages for injuries to land alleged to have been caused by failure to provide proper surface support. Before O’Connor, P. J.</p> <p>At the trial when plaintiff was on the stand, the following question was asked him:</p> <p>“ Q. From your knowledge of the plaintiff’s premises and the depressions of the soil and the effects of such disturbances, what, in your judgment, is the amount of damages he has actually sustained ? ”</p> <p>Counsel objects to the testimony sought to be introduced by the question for the reasons:</p> <p>First. That it is speculative; second, that it is incompetent; third, that the measure of damages is the actual and real injury to the property; fourth, that the witness admits that he has no sufficient knowledge of this property from which he would be warranted in testifying or making a comparison.</p> <p>.■ The Court: The objection is overruled, exception noted, and bill sealed for the defendant company. [6]</p> <p>The court refused to strike out similar testimony offered by Silas Fry, Andrew Bourgardner, Levi Weaver and Stephen Hostetler. [7-11]</p> <p>Abram Hostetler testified as follows:</p> <p>“ Q. You have testified to the condition you found on the premises of the plaintiff before and after the removal of the coal from under the same. I wish you would state what actual damages the plaintiff’s property has sustained by reason thereof, excluding everything in the way of speculative damages for future use of the property and giving merely actual present damages to the property? A. I would say from $15,000 to $20,000.”</p> <p>The court refused motion to strike out exception. [4]</p> <p>R. L. Watt testified as follows:</p> <p>“ Q. From your knowledge of the plaintiff’s premises and the depressions of the soil and the effects of such disturbances, what, in your judgment, is the amount of damages he has actually sustained ? ”</p> <p>Counsel objected to the testimony sought to be introduced by the question for the reasons :</p> <p>First, that it is speculative; second, that it is incompetent; third, that the measure of damages is the actual and real injury done to the property; fourth, that the witness admits that he has no sufficient knowledge of this property from which he would be warranted in testifying or making a comparison.</p> <p>The Court: Objection overruled, exception noted, and bill sealed for the defendant company. [5]</p> <p>Plaintiff was further questioned as follows:</p> <p>“ Q. State in detail the actual losses you have sustained to your land through the mining operations of the defendant company as carried on under the surface? A. Well, by breaking the surface and having all these dips and kettles, $20,000 would be the damage what was done to the surface and to the water. Just of late we had lots of those depressions. I can’t keep no cows; after the loss of the water I lost every week three pounds of butter each week.”</p> <p>On motion the court refused to strike out the answer. Exception. [8]</p> <p>“ Q. To what extent had you followed the business of raising cattle and grazing? ”</p> <p>Objected to for the reason that it is incompetent and speculative in its character, the measure of damages in this case being the injury sustained and the cost of replacing or repairing that injury.</p> <p>The Court: The objection is overruled, an exception noted, and bill sealed for the defendant company. [2]</p> <p>“ A. Oh, we raised quite a lot of young cattle and cows, and we had water enough there to water twenty head of horses. I used to have twenty head of horses every winter on that farm and twenty-five head of horned cattle, and now I have five head of horses and haven’t water to water five head of horses without hauling it,' and have seven head of cows. I had to put away all that stock and can’t raise any young cattle on account of that. We had some young cattle last summer and could not sell them to the butcher. I fed them the milk off the other cows just to keep them three head in the stable. I fed them the milk off the cows just on account of hauling water until I got them ready to sell to the butcher and got them away.”</p> <p>“ Q. How has your land been affected, if any at all, in respect to its ability to raise and sustain cattle by reason of the injuries occasioned by the mining and removal of the coal? ”</p> <p>Objected to as being incompetent, as being speculative in its character, and in addition thereto the prospective profits of which he might be deprived would not be a matter competent to be proven.</p> <p>The Court: The objection is overruled, an exception noted, and bill sealed for the defendant company. [1]</p> <p>“ A. By the mining of the coal and the breaking of the surface, they took that water that supplied my stock and my cellar was like an icehouse. I never needed ice and I had the water; we had water there as good as ice-cool, and we could make butter; and we had to put away with the stock; we pretty nearly sold all the stock on account of that.”</p> <p>Plaintiff presented the following points:</p> <p>2. That under the deed of conveyance as made and executed by Abram O. Weaver and wife to Robert H. Sayre, which deed severed the coal strata from the surface land and under which defendant claims the right to mine and remove the coal, it was, and is, the absolute duty of the defendant, in mining and removing said coal, to do so in such manner as not to interfere with or injure the surface land and the estate of the plaintiff. Answer: We have so instructed you and we affirm the point. [12] '</p> <p>Defendant presented these points:</p> <p>4. It appearing from the deed of conveyance from Abram C. Weaver, the plaintiff, and Mary Ann, his wife, dated March 29, 1898, and recorded in Cambria County in Deed Book, vol. 89, page 109, etc., he sold and conveyed all the merchantable coal underlying the premises described in the plaintiff’s statement of claim, inter alia, to Robert H. Sayre, his heirs and assigns, “ excepting and reserving five acres of the ‘ D ’ bed of coal underlying the buildings and springs,” and it further appearing in said deed of conveyance that the grantors conferred upon the grantee therein named, his heirs and assigns, “the right to mine and carry away all of said coal,” the defendant company, which is now and has been operating or mining and removing said coal have the right to mine and carry away all of said coal without being required to leave in the mine any coal or other artificial pillars to support the superincumbent estate, and that under the clause mentioned granting the right to mine and carry away all of said coal, the defendant company would not be liable in damages by reason of the subsidence of said premises or any part thereof, loss of water in springs, opening of crevices and depressions on the surface, and such being the case, the verdict should be for the defendant company. Answer: Refused. [18]</p> <p>9. Even if under the instructions of the court the jury believe that the plaintiff would be entitled to recover damages for injuries sustained, yet as the plaintiff has failed to produce evidence which would enable the jury to properly assess such damages, therefore the plaintiff has failed to make out his case and the verdict must be for the defendant. Answer: Refused. [14]</p> <p>8. That under all the evidence in this case there can be no recovery for loss of water. Answer: The eighth point is denied ; it is practically the same as the fourth. [15]</p> <p>3. That under all the evidence in this case the verdict should be for the defendant.■ Answer: Refused. [16]</p> <p>Verdict and judgment for plaintiff for $6,000. Defendant appealed.</p> <p>Errors assigned were (1-11) rulings on evidence; (12-16) above instructions, quoting them.</p>

Appeal, No. 162, Oct. T., 1906, by-defendant, from order of C. P. Cambria Co., March T-, 1906, No; 355, making absolute rule to bring ejectment in case of Thomas J. Fearl v. City of Johnstown. Rule to bring ejectment to determine title to a strip of land claimed by the city of Johnstown as a portion of a public street, and by the plaintiff as his own individual property. Before Holt, P. J., specially presiding.

<p>Vendor and vendee — Sale of land — Rescission—Election to rescind.</p> <p>Where a vendor sells real estate and thereafter it is discovered that he has but an undivided interest therein, the purchaser, if he desire may elect to accept such interest as the vendor can convey, or he may decline to accept and may rescind the contract. When the purchaser makes his election it is irrevocable, and thereafter he cannot change it.</p> <p>Where a decedent in his lifetime agreed in writing to sell and convey all of the coal under a tract of land, and after his death his administrator supposing that the decedent had only five-sixths interest, tenders a deed for that amount which is refused by the vendee because a conveyance of the entire interest is not offered, the administrator, on subsequently discovering that the decedent owned a six-sevenths interest, is not required to make another tender of the larger interest. The action of the vendee in refusing the offer of the smaller interest on the ground that he was entitled to the whole, effected a rescission of the contract.</p> <p>Where a decedent agreed to sell and convey an entire interest in coal, and it was ascertained after his death that he had only an undivided interest, the widow and heirs of the decedent are not required to purchase an outstanding interest in the coal to enable the administrator to convey a fee simple title; nor can they be required to convey any interest they held or had purchased subsequent to the vendor's death, in order to perfect the title. An ancestor’s warranty can only be enforced against his heirs to the extent of the land acquired by descent. Beyond that they are not liable on his warranty or his contract.</p>

Appeal, No. 19, Oct. T., 1906, by defendant, from order of C. P. Somerset Co., May T., 1904, No. 62, discharging rule to open judgment and set aside execution in case of Keystone Coal Company v. N. Winslow Williams, trustee in bankruptcy of the Continental Coal Company. Rule to open judgment and set aside execution.

<p>Appeal, No. 41, Oct. T., 1906, by-plaintiff, from decree of C. P. Westmoreland' Co., No. 384, of 1900, dismissing bill in equity in case of Ligonier Valley Railroad Company v. Latrobe Borough.</p> <p>Bill in equity for an injunction. Before Doty, P. J.</p> <p>From the record it appeared that on September 13, 1898, ordinances of the borough of Latrobe were approved by which Weldon street and Spring street were opened of the full width of fifty feet across the Ligonier Valley Railroad. In 1900 the Ligonier Valley Railroad Company was served with notice by the borough, to provide and lay proper crossings at the intersection of the railroad with Weldon and Spring streets. The company failed to comply with the notice and the borough took steps to put down the crossing. This bill was then filed for an injunction to restrain the borough from constructing grade crossings at the points in question.</p> <p>The court made the following findings of fact as to the situation at the crossing.</p> <p>8. That the Welden and Spring street crossings, like all grade crossings, are dangerous ; that because of reasonable proximity • to other crossings, there is no great necessity for their construction, but, if opened, it will be a matter of convenience to citizens of the borough now living on both sides of the railroad; that the actual opening of the crossings to public travel will seriously inconvenience the plaintiff company, but will not work irreparable injury. The scale tracks and switches were constructed after the adoption of the ordinances and after notice to the plaintiff company of the opening of said streets.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Railroads — Eminent domain — Widening road — Evidence—Licensed saloon property — Harmless error.</p> <p>In an action against a railroad company to recover the value of a hotel property appropriated in the widening of a railroad, it is improper to admit in evidence a record of the quarter sessions showing that an application for a license had been filed after the bond to secure the owners had been approved, and that a remonstrance had been filed by the defendant. Damages in such a case are to be ascertained as of the date of the filing and approval of the bond. The admission of such evidence, however, will, not be cause for reversal, if it appears that the defendant was not injured by it.</p> <p>On the trial of a railroad condemnation case, where the plaintiff in his examination in chief has placed the market value of his. property at a sum named, he cannot on cross-examination be asked what other properties on the same street had been sold for within two years for the purpose of having his answer go to the jury as affirmative evidence of value.</p>

Appeal, No. 90, Oct. T., 1906, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1903, No. 33, on verdict for plaintiff in case of Julia F. Davis v. George L. Davis. Assumpsit for money had and received for the use of the plaintiff.

Appeal, No. 155, Oct. T., 1906, by defendant, from decree of O. C. Westmoreland Co., Nov. T., 1905, No. 150, awarding specific performance in case of Jennie G. Baldridge v. Homer J. George, Administrator of Isaac George, deceased, et al. Petition for specific performance.

<p>Trusts and trustees — Resulting trust — Husband and wife — Evidence.</p> <p>To establish a resulting trust in favor of a wife in real estate purchased in the name of the husband, it must appear by clear proof that the wife’s money went into the property at the inception of the title; that the purchase was made by her, or for her account, and that the placing of title in her husband was in violation of an agreement by which the deed was to be made to her. The intention of the parties may be shown by their actions, their claims or declarations in the presence of each other, and other cotemporary circumstances; and the necessary facts must not only be shown, but must also be averred in the pleadings. The length of time that the title has stood in the husband’s name is a circumstance of weight in determining the validity of the challenge to his title.</p>

Appeal, No. 175, Oct. T., 1906, by defendant, from order of C. P. Westmoreland Co., Feb. T., 1906, No. 228, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel L. Gorgas v. Marcus W. Saxman. Scire facias sur mortgage. Before Doty, P. J. The facts are stated in the opinion of the Supreme Court. The court made absolute rule for judgment for want of a sufficient affidavit of defense'. Error assigned was the order of the court.

<p>Appeal, No. 59, Oct T., 1906, by defendant, from order of C. P. Armstrong Co., June T., 1897, No. 63, refusing to take off nonsuit in case of Algernon Edward Sydney, Ancillary Administrator of Samuel Lewis, to use of H. A. Colwell v. Elwina Linton.</p> <p>Foreign attachment in assumpsit. Before Smith, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Mines and mining — Coal lease — Title—Judgment—Sale—Lease.</p> <p>Coal or other minerals may be severed from the surface of the land, and may run in its own different line of title without reference to the other.</p> <p>A contract regarding coal in place may be a sale absolute, a conditional sale, or a lease.</p> <p>An owner of land leased to another “all the coal known as the upper Free-port seam, lying or being in, upon or under” a certain tract of land “with the sole and exclusive right” of talcing coal, etc., in consideration whereof the lessee agreed to pay the lessor, “the sum of six cents per ton for each and every ton of 2,240 pounds of coal mined or dug from the premises, during the continuance of this lease, which rent or royalty shall be paid monthly.” It was further agreed that if sufficient coal was not obtained to make the royalty $50.00 per month, yet the second party was to pay the $50.00 per month, and the payment over and above the royalty earned, was to be considered as an advance payment for coal afterwards mined during the year. The lessee had the right to surrender the lease at any time on payment of all royalties due, and on the other hand the lessor could declare the lease forfeited if the royalty should remain unpaid for three months after it should be due. Held, that the lessor had a continuing interest in the land which would be bound by a judgment against him, and that under a sheriff’s sale of the right, title and interest of the lessor, the right to the royalties passed to the purchaser,</p>

Appeal, No. 148, Oct. T., 1906, by Martha A. Shirley, from decree of O. C. Armstrong Co., revoking letters of administration, etc., in estate of Robert Miller, deceased. Appeal from register of wills. Patton, P. J., filed the following opinion: By the statement of the somewhat complicated facts, in their chronological order, and the law, as we understand it, governing the same, we may be able to arrive at a fair and just conclusion.

Appeal, No. 176, Oct. T., 1906, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1906, No. 146, on case stated in suit of Minerva Blaney et al. v. Milton Sin Clair. Case stated to in assumpsit on contract to purchase land. Defense title not marketable. Before Patton, P. J. The opinion of the Supreme Court states the case. Error assigned was in entering judgment for defendant.

Appeal, No. 39, Oct. T., 1906, by plaintiff;, from order of O. P. Clarion Co., Aug. T., 1900, No. 19, refusing to take off nonsuit in case of L. C. Boyd v. Thomas Kerr and S. H. Raster. Trespass to recover damages for malicious prosecution. Before Lindsey, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was the order of the court.

<p>Appeal, No. 164, Oct. T., 1906, by defendants, from judgment of O. P. Armstrong Co., March T., 1906, No. 34, on verdict for plaintiff in case of E. J. Bartlick v. C. M. Wortman and C. A. Replogle, partners.</p> <p>Assumpsit for tbe price of furniture in a hotel.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,354.10. Defendants appealed.</p> <p>Errors assigned were (1-16) various rulings on evidence and various instructions, including a refusal of binding instructions for defendants.</p>

Appeal, No. 15, Oct. T., 1906, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1905, No. 135, on verdict for plaintiff in case of Pearce Manufacturing Co. v. Lebanon Mutual Insurance Co. Assumpsit on a policy of fire insurance. Before Williams, P. J. The facts are stated in the opinion of the Supreme Court. Plaintiff presented these points : 1.

Appeal, No. 143, Oct. T., 1906, by R. H. Murray, executor et al., from decree of O. O. Clarion Co., distributing royalties from sale of coal under a coal lease in Estate of W. P. Murray. Exceptions on adjudication upon issue awarded by tbe orphans’ court to the common pleas.

Appeal, No. 71, Oct. T., 1906, by plaintiff, from order of C. P. Forest Co., Feb. T\, 1905, No. 8, discharging rule to bring ejectment in case of James C. Welsh v. L. S. Clough. Rule to bring ejectment under Act of April 16, 1903, P. L. 212. The opinion of the Supreme Court states the case. Error assigned was order of the court discharging the rule.

<p>Appeal, No. 25, Oct. T., 1906, by defendant, from’ judgment of C. P. Lawrence Co., June T., 1902, No. 67, on verdict for plaintiff in case of Prank G.' Foster •vriNationfil-Steel'.Company..</p> <p>Trespass to recover damages for personal injuries. Before Poetes, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for f4,781.25. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

Appeal, No. 87, Oct. T., 1906, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1901, No. 14, on verdict for plaintiff in case of Edward Cole v. Ellwood Power Company. Appeal from report of jury of view. Before Porter, P. J. At the trial it appeared that plaintiff had a parol lease, reserving royalties, of the bowlders and stone in and on a tract of land in the borough of Ellwood. He claimed that defendant had entered upon and seized the stone thereon.

Appeal, No. 40, Oct. T., 1906, by defendants, from judgment of C. P. Greene Co., Feb. T., 1902, No. 38, on verdict for plaintiff in case of John S. Douglas v. James M. Hustead et al. Ejectment for land in Greene township. Before CrawEORD, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Vendor and vendee — Option—Coal land — Construction of agreement.</p> <p>Where a vendor sells at the option of the vendee, and agrees to convey coal by good and sufficient deed within eighteen months from date, and the vendee agrees to pay, apart from hand money, one-third in nine months, and the balance in eighteen months, deferred payment to be secured by mortgage, “in case the land upon examination is found satisfactory,” the option is to be exercised within nine months from the date of the agreement,</p>

<p>Appeal, No. 66, Oct. T., 1906, by plaintiff, from order of C. P. Lawrence Go., discharging rule for judgment for want of a sufficient affidavit of defense in case of M. S. Marquis v. Robert I. McKay et al.</p> <p>Assumpsit on a promissory note. Before Porter, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 28, Jan. T., 1906, by-defendant, from judgment of C. P. Fayette Co., March T., 1905, No. 247, on verdict for plaintiff in case of Connellsville Gas Coal Company v. Baltimore & Ohio Railroad Company. Ejectment for land in Dunbar township. Before Rep-pert, P. J. At the trial the court gave binding instructions for plaintiff. Verdict and judgment for plaintiff. JError assigned was in giving binding instructions for plaintiff.

<p>Appeal, No. 172, Oct. T., 1906, by defendant, from decree of C. P. Lawrence Co., Dec. T., 1904, No. 1, on bill in equity in case of F. W. Wallace and M. L. Wallace, trading as Wallace Brothers, v. Baltimore & Ohio Railroad Company.</p> <p>Bill in equity for an injunction. Before Porter, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered the following decree :</p> <p>That the said defendants be, and they hereby are, severally ' perpetually enjoined and restrained from refusing, neglecting or delaying to deliver to the plaintiffs the cars of lumber and freight consigned to the said plaintiffs upon the siding mentioned in the plaintiff’s bill of complaint, upon payment or tender of the freight charges due on said cars, and that defendants be, and they hereby are, severally specially required, ordered and directed to deliver to the plaintiffs, upon their siding mentioned in the bill of complaint; ■ all cars of freight consigned to the plaintiffs, and now or hereafter to come into the possession or control of the defendant company, upon payment or tender of the freight charges thereon.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Street railways — Grade crossings — “Stop, look and listen”— Evidence — Province of court and jury.</p> <p>In an action to recover damages for personal injuries sustained at a grade crossing, plaintiff testified that at the brow of a hill above the crossing, he looked both ways and “saw nothing in sight.” At that point he could see 500 feet in the direction from which the electric car came. He then drove down and near the crossing, stopped his horse, looked, listened, and there being no car in sight or hearing, “ drove a natural gait across.” An account of the accident given by a witness for the plaintiff was not reconcilable with the account given by the plaintiff. Plaintiff also testified that if there had been any car on that hillside he could have heard it. Held, that it was for the jury to pass upon the irreconcilable conflict of testimony, and the inferences to be drawn from plaintiff’s testimony.</p>

Appeal, No. 37, Oct. T., 1906, by defendant, from decree of O. P. Beaver Co., June T., 1903, No. 6, on bill in equity in case of Ohio River Junction Railroad Company v. Pennsylvania Company. Bill in equity for an injunction. The opinion of the Supreme Court states the case. Error assigned was decree awarding an injunction.

Appeal, No. 27, Oct. T., 1906, by Elmira Atkinson, from decree of O. C. Beaver Co., Dec. T., 1904, No. 8, sustaining exceptions to distribution in Estate of Isaac Williams, deceased. Exceptions to distribution of a fund raised by the sale of real estate. Before Wilson, P. J. From the record it appeared that the real estate in question was part of the estate of Isaac Williams, deceased.

Appeal, No. 44, Oct. T., 1906, by plaintiff, from decree of C. P. Beaver Co., Dec. T., 1903, No. 2, dissolving preliminary injunction in case of Rochester Borough v. The Pennsylvania Company, Lessee. Bill in equity for an injunction. Before Wilson, P. J. The facts are stated in the opinion of the Supreme Court. Jthror assigned was decree dissolving preliminary injunction.

Appeal, No. 101, Oct. T., 1906, by defendant, from judgment of O. P. Beaver Co., June T., 1904, No. 183, on verdict for plaintiff in case of Amos E. Sturgeon v. Beaver Valley Traction Company. Trespass to recover damages for personal injuries. Before Holt, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. ■ Verdict and judgment for plaintiff for $1,600. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Negligence — Master and servant — Dangerous machinery — Infant—Case for jury.</p> <p>In an action by a boy thirteen years old against his employer to recover damages for personal injuries, it appeared that the plaintiff had been employed in the defendant’s rope factory three weeks at work not connected with the machinery. Two or three days before he was injured he was put to work by the defendant’s foreman at a drawing frame. At this machine strips of hemp wound on spools were placed in cans three feet deep. The ends of the strips were passed over the drawing frame to the machinery above by means of which they were twisted into rope or twine. The boy was required to watch twenty-four of these cans, to remove empty ones and place full ones in position, and when the strips should break to unite their ends. While he was engaged in this work, a strip broke in a can that was nearly •empty. In reaching down to the bottom of this can with his left hand, his right hand was raised and his sleeve was caught by the cogwheels in the overhead machinery. These cogwheels were exposed and unguarded, and an operator of the machine might come in contact with them if he should pass under the head of the drawing frame. The plaintiff testified that he did not know of the existence of the cogwheels and that he had not been instructed where to stand in doing his work. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p> <p>Practice, C. P. — Trial—Charge.</p> <p>If the trial judge has inadvertently erred in commenting on testimony not properly in the case, it is the duty of counsel to call his attention to it at the time, in order that he may make any necessary correction.</p>

<p>Appeal, No. 129, Oct. T., 1906, by defendant, from judgment of O. P. Beaver Co., Dec. T., 1903, No. 630, on verdict for plaintiff in case of Calvin B. Mortimer v. Beaver Valley Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Holt, P. J.</p> <p>The facts relating to the accident are set forth in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,725. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 158, Oct. T., 1906, by plaintiffs, from judgment of C. P. Beaver Co., Sept. T., 1905, No. 302, on verdict for defendant in case of J. A. Barto and A. I. Barto, his wife, v. Beaver Valley Traction Company. Trespass to recover damages for personal injuries. Before Holt, P. J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

<p>Equity — Equity pleading — Demurrer—Speaking demurrer.</p> <p>When a defendant in an equity suit interposes a demurrer as a- defense he admits the truth of the material facts set out in the bill, but denies that they are sufficient to justify the court in granting the relief prayed for by the plaintiff. The defense must be made out from the allegations of facts in the bill which, so far as material, are taken as verity. It is a settled rule of equity pleading that the defendant is not permitted to introduce averments of fact in his demurrer, and if he does so, and the facts thus averred are necessary to support the demurrer, it constitutes a speaking demurrer, and is bad.</p> <p>A demurrer to a bill in equity filed in the common pleas setting up that the case had been adjudicated at law in the court of quarter sessions, is bad as a speaking demurrer, and will not be sustained where there is no reference in the bill to the proceedings in the quarter sessions.</p>

<p>Municipalities — Boroughs—Water supply — Water rates.</p> <p>A municipal corporation in supplying water, or any other commodity, to its inhabitants individually, acts in a private, and not in a public capacity, and the relation established with the individuals with whom it deals is purely one of contract.</p> <p>A borough which has established waterworks of its own has a right to impose by ordinance reasonable rates and charges for the supply of water furnished by it to the residents of the borough.</p> <p>Water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity. The obligation to pay for the use of water rests either on express or implied contract on the part of the consumer to make compensation for water which he has applied for and received, on the terms and conditions made public.</p>

<p>Malicious prosecution — Charge—Cuilt or innocence of plaintiff.</p> <p>On the trial of an action for malicious prosecution, it is reversible error for the court to charge in such a way that the jury may be led. to believe that the crucial test of the plaintiff’s right to recover was his guilt or innocence; and this is the case although the court may have correctly stated the law in other parts of the charge, and the language, complained of was an inadvertence.</p> <p>Malicious prosecution — Advice of counsel.</p> <p>The advice of counsel operates as a defense in an action for malicious prosecution only when sought in good faith and founded on a complete and accurate statement of all the facts within the knowledge of the prosecutor.</p>

<p>Appeal, No. 167, Oct. T., 1906, by plaintiff, from order of C. P. Washington Co., Feb. T., 1906, No. 204, entering judgment for defendant non obstante veredicto in case of John L. Roney v. John S. Westlake, Executor of Jane R. Herron, deceased.</p> <p>Assumpsit on a promissory note.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict for- plaintiff for $4,241. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 245, Jan. T., 1907, by defendant, from judgment of O. & T. Lackawanna Co., Feb. T., 1906, No. 8, on guilty of murder in the first degree in case of Commonwealth v. Saverio Curcio.</p> <p>Indictment for murder.</p> <p>The circumstances of the killing are stated in the opinion of the Supreme Court.</p> <p>Defendant presented these points:</p> <p>13. Manslaughter is defined to be the unlawful killing of another without malice, expressed or implied. And if the jury believe that this killing was done with sufficient cause of provocation, and the defendant was in a state of rage and passion, without time to cool, placing the defendant beyond the control of his reason and suddenly impelling to the deed, then he cannot be convicted of any higher crime'than manslaughter. Answer : The thirteenth point asks us to give you a definition of the crime of manslaughter, and it is refused as inapplicable in this ease, because under the evidence there can be no conviction of manslaughter. [4]</p> <p>The court charged, inter alia, as follows:</p> <p>[Under the view which I take of the law and the evidence in this case there can be no conviction in any event upon the count for manslaughter and you may disregard that count. If the defendant is guilty he may be convicted of murder but not of manslaughter, and if found guilty it would be your duty to determine whether he is guilty of murder in the first degree or in the second degree.] [9]</p> <p>[Having admitted that he shot this man to death, the defendant is guilty of murder unless he did it in self-defense. To show that it was done in self-defense the burden is upon him of showing some necessity, either real or apparent, for firing the shots; or else show that he was in danger, either real or apparent, of being robbed by the assailant, the deceased, with threats of violence by which he was put in fear.] [10]</p> <p>Verdict of guilty of murder in the first degree. Defendant appealed.</p> <p>Errors assigned were (4, 9, 10) above instructions, quoting them.</p>

Appeal, No. 106, Oct. T., 1905, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1903, No. 32, refusing, to take off nonsuit in case of Lorenzo Kuhns v. H. C. Frick Coke Company. Trespass to recover damages for personal injuries. Before McClung, J. The facts relating to the accident are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off, ' Error assigned was refusal to take off nonsuit.

Appeal, No. 33, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July Term, 1905, No. 432, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Industrial Savings & Loan Company v. Samuel W. Hare and Hannah J. Hare, his wife. Scire facias sur mortgage. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 28, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1901, No. 799, on verdict for plaintiff in case of Walker, Stratman & Co. v. David P. Black, surviving partner of the firm of Black & Gloninger. Assumpsit for the negligent performance of a contract to place fire insurance. Before Frazer, P. J. The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $5,916.91. Defendant appealed.

<p>Appeal, No. 48, Oct. T., 1906, by plaintiff, from order of O. P. No. 3, Allegheny Go., Aug. T., 1904, No. 418, refusing to take off nonsuit in case of Maria Guiseppa Raffaelo Maiorano v. Baltimore & Ohio Railroad Co.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before McOlung, J.</p> <p>Prom the record it appeared that plaintiff’s husband was killed on the railroad of the defendant on December 23, 1903, near Conn ells ville, in the state of Pennsylvania. The plaintiff alleged in her statement that she was a resident of the Kingdom of Italy, and a subject of the King of Italy. The court followed the case of Deni v. Pennsylvania Railroad Co., 181 Pa. 525, and entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 96, Oct. T., 1906, by plaintiff, from order of C. P. Mercer Co., Oct. T., 1903, No. 2, refusing to take off nonsuit in case of R. A. Canon v. The Sharon & Wheatland Street Railway Company. Trespass to recover damages for malicious prosecution.

Appeal, No. 46, Oct. T., 1906, by plaintiff, from judgment of Superior Ct. April T., 1905, No. 171, reversing decree of O. P. No. 1, Allegheny Co., Dec. T., 1903, No. 215, in case of Boyd G. Cubbage v. Pittsburg Coal Company. Appeal from Superior Court. Tbe facts appear from the opinion of the Supreme Court and from the report in 29 Pa. Superior Ct. 341.

Appeal, No. 50, Oct. T., 1906, by-defendant, from judgment of O. P. No. 3, Allegheny Co., May T., 1904, No. 356, on verdict for plaintiff in case of Mary Elizabeth Ellis v. Pennsylvania Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Evans, J. The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $3,700. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Wills — Construction—Intention of testator.</p> <p>The purpose in construing a will is to ascertain the intention of the testator so that it may be carried out in the disposition which he has made of his property. Technical rules of construction should only be resorted to and applied in the interpretation of wills when found to be necessary in determining the meaning of the instrument so as to effectuate the purpose of the testator. If the language employed by him in disposing of his estate is plain and clearly discloses his intention, the will interprets itself, and hence no rules of construction are necessary to aid in its interpretation.</p> <p>A universal rule in construing a will requires that, if possible, effect shall be given to every word, and every part of it.</p> <p>The usual and ordinary meaning is to be given to words and terms in a will, unless the context shows that such was not the meaning intended by the testator.</p> <p>Wills — Remainder—Tested and contingent estates — Construction of will.</p> <p>Where property is limited by will to one for life, and after his decease to the testator’s next of kin or heirs or other classes of persons similarly described, the persons who answer that description at the death of the testator and not those who answer it at the death of the tenant for life shall take, unless a contrary intent clearly appears from the will; but when it clearly appears that the testator intended his heirs or next of kin at the death of the tenant or legatee for life to take, such intent will prevail.</p> <p>Testator after having given the income of his estate to his wife and three sisters for their lives directed as follows: "Upon the death of my said wife and all of my first named three sisters, I will, devise and bequeath the one-third of the real estate and moneys from the personal estate in the hands of my said trustees to my nephew and my niece in fee, equally; the other two-thirds thereof to such child or children as I may leave, and the issue of such child or children as may be deceased. And in default of such child or children or issue, then to those who would then be entitled thereto under the intestate laws of this state.” Held, (1) that it was the intention of testator to devise the two-thirds of the remainder of his real estate to those who should be his heirs at the expiration of the particular estate, and not to those who were his heirs at the time of his death; and (2) that upon testator dying without leaving children, or the issue of children, but leaving his wife and sister surviving, his heirs at the time of his death could not make a good title to the testator’s real estate.</p>

Appeal, No. 67, Oct. T., 1906, by defendant, from order of O. P. No. 1, Allegheny Co., Dec. T., 1904, No. 1,162, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Punxsutawney Iron Company v. Fort Pitt Malleable & Grey Iron Company. Assumpsit for breach of contract of sale.

<p>Appeal, No. 151, Oct. T., 1906, by plaintiff, from judgment of C. P. Beaver Co., Dec. T., 1904, No. 218, on verdict for defendant in case of V". Wyss-Thalman v. Beaver Yalley Brewing Company.</p> <p>Scire facias sur mechanic’s lien. Before Holt, P. J.</p> <p>At the trial the following agreement in writing was offered in evidence by the defendant:</p> <p>“ This article of agreement, made and entered into this tenth day of August, A. D. 1904, by and between Wm. H. Cox, party of the first part, and V. Wyss-Thalman and Gothard Wyss, parties of the second part, and the Beaver Yalley Brewing Company, party of the third party.</p> <p>“Witnesseth: That for the consideration hereinafter mentioned on the part of the party of the first part, the said Beaver Yalley Brewing Company, a corporation, etc., had at a meeting of their directors, approved selling the balance of their Bond issue, viz: $170,000, and $85,000 stock of said company to said party of the first part, for the total sum of One Hundred Thirty-six Thousand Dollars, in manner following; and in order to accomplish the execution of the above agreement, the parties of the second part agree as follows:</p> <p>“ First: The architect fees for which a bill has been presented by Y. Wyss-Thalman against said company for $15,040.48, shall be assumed by Gothard Wyss and paid by him to Y. W yss-Thalman.</p> <p>“Second: The said Gothard Wyss agrees to take the difference between his part of his contract with the Beaver Yalley Brewing Company and all claims of his subcontractors for material or labor furnished, in a second mortgage, payable in ten years with six per cent, interest, payable semi-annually, dated August 1st, 1904, with the privilege of paying the samé at par at any time upon six months’ notice to the mortgage holder.</p> <p>“ Third: Y. Wyss-Thalman agrees to retain $80,000 bonds which he now holds and not to sell the same less than par.</p> <p>“ Fourth. Y. Wyss-Thalman and Gothard Wyss agree to give a good and sufficient release from liens of said company; each taking the stock already alloted to them.</p> <p>“ Fifth. The said Gothard Wyss agrees to give the said Wm. H. Cox the thirty-five thousand dollars stock already alloted to said Gothard Wyss in the said company.</p> <p>“ Sixth. The said party of the first part agrees to pay unto the Beaver Yalley Brewing Company ten thousand dollars upon account of said purchase of stock and bonds upon the execution of this agreement.</p> <p>“ Seventh. The said party of the first part agrees to pay unto the Allegheny National Bank of Pittsburg, Pa., on the account of the Beaver Yalley Brewing Company, upon the twenty-second day of August, 1904, one hundred twenty-six thousand dollars, the balance of the purchase money for the $170,000 bond and $85,000 stock.</p> <p>“ Eighth. The Beaver Yalley Brewing Company shall give an option to Wm. H. Cox for the balance of treasury stock, to be sold at par, as follows :t The said party of the first part agrees to sell fifty thousand dollars of the treasury stock by January first, 1905, the balance within one year from date; and the money paid for the stock to be paid into the said company’s treasury.”</p> <p>The court charged as follows:</p> <p>The plaintiff in this case has filed a mechanic’s lien against the property of this company for $15,220.31. There is no contradictory evidence on the side of the plaintiff in this case, and the court says to you as matter of law, that if the defendant company had not offered any evidence in .the case, the court would have given binding instructions to you to find a verdict in the full amount of his claim, with interest from the time the work was completed. But the defendant has offered in evidence a contract, and certain other evidence in the case, concerning which there is no contradiction whatever, so far as the proofs before you are concerned, and tbat is a contract to this effect, so far as it concerns that part particularly, that the fees of the architect, which are the sums of money that the plaintiff seeks to recover in this action, for which a bill had been rendered and presented by Y. Wyss-Thalman against the defendant company, for $15,040.43, should be assumed by Got-hard Wyss and paid by him to Y. Wyss-Thalman.. This, gentlemen, was a novation, or a new contract, by which under the law, Gothard Wyss, the contractor, assumed to pay the plaintiff the sum of $15,040.43, and the plaintiff, Y. Wyss-Thalman, agreed to accept it. Now, gentlemen, if this amount of money, $15,040.43, was not the full amount of the plaintiff’s claim, the plaintiff would not lose that amount, — he could recover that in another form of action, an action of assumpsit as against the company. In this instrument of writing, Exhibit No. 1, there is also another section. In the fourth section V. Wyss-Thalman and Gothard Wyss agree to give a good and sufficient release from liens of said company, each taking the stock already alloted to him. Now, gentlemen, this contract is a matter for the court to interpret to you, and the court says to you as a matter of law that this section which the court has just read, did, if not in form cover a release or relinquishment of the right to file liens, amount to such conduct upon the part of the plaintiff as equitably estops him from filing or maintaining a mechanic’s lien against the terms of his agreement; section 15 of the act of 1901, in relation to mechanics’ liens, reads in part as follows : “ The right to file a claim may be waived by agreement between the claimant and the party with whom he contracts, or by any conduct which operates to equitably estop the claimant; ” and we say to you that under the contract exhibit 1 of this date the plaintiff has no right under the law to maintain this action. We therefore instruct you to render a verdict in favor of the defendant.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed. .</p> <p>Errors assigned were (1) in refusing to direct a plea to be entered.in the case before the jury was sworn ; (6) the whole charge.</p>

Appeal, No. 152, Oct. T., 1906, by plaintiff, from judgment of C. P. Beaver Co., March T., 1905, No. 85, on verdict for defendant in case of Gothard Wyss v. Beaver Valley Brewing Company. Scire facias sur mechanic’s lien. Before Holt, P. J. The facts appear by the report of the case of Wyss-Thalman v. Beaver Valley Brewing Company, ante, p. 435. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 4, Oct. T., 1906, by the Provident Trust Company, from order of C. P. No. 1, Allegheny Co., June T., 1905, No. 127, dismissing exceptions to sheriff’s return of distribution in case of E. A. Willets, Administrator c. t. a. of the Estate of Isaac Willets, deceased, now for use of Robert W. Sutton v. Frank Metcalf. Exceptions to sheriff’s return. The facts .are stated in the opinion of the Supreme Court.

Appeal, No. 6, Oct. T., 1906, by defendant, from order of C. P. No. 3, Allegheny Co., Feb. T., 1905, No, 432, making absolute rule for judgment for want of a sufficient affidavit of defense in case of State Bank of Pitts-burg, in the hands of John F. Steel, Receiver, v. Thomas T. Kirk. Assumpsit on promissory notes. Rule for judgment for want of a sufficient affidavit of defense. One of the several notes in suit was in the following form; “ $3,000.

Appeals, Nos. 75 and 76, Oct. T., 1906, by plaintiff, from decree of O. P. No. 2, Allegheny Co., April T., 1905, No. 464, on bill in equity in case of William K. Given v. J. D. Sands and Sarah E. Sands. Bill in equity for an account and to establish a trust. Before Frazer, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Appeal, No. 94, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1903, No. 71, refusing to take off nonsuit in case of Harry McAleer, by his mother and next friend, Elizabeth McAleer, v. Albert R. Good, Frederick Lamp and John, alias Brocky, Moore.</p> <p>Trespass for unlawful arrest and false imprisonment. Before Brown, J.</p> <p>At the trial it appeared that Frederick Lamp and John Moore were police officers of the city ■ of McKeesport. On October 9, 1902, they went to the house where the plaintiff, a boy of nineteen years of age, resided, and in some way induced him to go to the office of the chief of police. There he was charged by the chief of police with stealing diamond earrings .belonging to tbe wife of Albert Good, another of the defendants. There was evidence that the arrest was made at the instance of Good. The ■ plaintiff was searched and imprisoned for over twenty-four hours, and then discharged after the diamonds had been found by the owner in her own house.</p> <p>The-court entered a compulsory ■ nonsuit which it subsequently refused to take off, Brown, J., filing the following opinion:</p> <p>The compulsory nonsuit was entered because the testimony failed to establish a joint act by the three defendants (Good, Lamp and Moore)- charged with the false arrest and imprisonment of the plaintiff.</p> <p>On October 9, about nine o’clock in the morning, Lamp and Moore went to the residence of the plaintiff, and Lamp, without producing a warrant, or saying that he had one, or that he had come to arrest him, said to the plaintiff that Chief Morrisy wished to see him; and thereupon the plaintiff went with them to the private office of the chief.</p> <p>Chief Morrisy, after fifteen or twenty minutes’ talk with the plaintiff, had him locked up. But there is not a syllable of testimony that Lamp or Moore had anything to do with arresting or locking him up. Their connection with the affair, so far as the testimony shows, was nothing more than the act of messengers sent to deliver to plaintiff' a message that Chief Morrisy wished to see him. Motion to take off nonsuit.is refused.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 104, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, No. 523, on verdict for plaintiff in case of Rosa Klenke v. West Homestead Borough. Appeal from jury of view. Before Macearlane, J. The facts are stated in the opinion of the Supreme Court. The defendant presented the following points: 1.

Appeal, No. 110, Oct. T., 1906, by Jobu S. King, from decree of O. O., Allegheny Go., Sept. T., 1905, No. 8, awarding partition in Estate of Thomas King, deceased. Petition for partition. The facts are stated in the opinion of the Supreme Oourt. Error assigned was decree awarding partition.

<p>Negligence — Master and servant — Contributory negligence.</p> <p>In an action against a steel company to recover damages for death of plaintiff’s husband, it appeared that the deceased was foreman of a gang of men employed in defendant’s yard in breaking scrap iron and molds. The appliance used was a tripod thirty feet high, to the top of which a heavy iron ball was raised and allowed to drop on the pile of iron beneath it. To protect the workmen from the fragments of iron that would be thrown about when the ball fell, a rough shed had been constructed at one side of the base of the tripod and a few feet from it. Deceased had been foreman of the day gang two and a half years, and he and his men with the assistance of a carpenter had built the shed about a year before. Its sides were made of railroad ties bolted together and the top of heavy sheet iron. Other railroad ties were kept in the yard for use in strengthening or protecting the building when necessary to do so. Deceased had entire charge of the work during the day and directed what should be done and how it should be done. When he came to his work on the morning of the accident he found a large pile of broken scrap left by the night gang engaged in the work. He applied to someone in authority in the yard, known as the labor boss, for buggies to remove the scrap, and told him the shed was weak. He was told by this man that the buggies were all in use at the time, and to go on with his work. Without removing any of the scrap iron left by the night gang, he broke other iron on the top of it for two hours, thus adding to the pile. The ball glanced or rolled from the pile, struck the shed and broke one of the timbers, which fell upon and injured deceased, causing his death. It was undisputed that the accident was caused by allowing the pile of scrap to become too high, and to slope towards the shed. Held, that the deceased was guilty of contributory negligence, and that plaintiff was not entitled to recover.</p>

Appeal, No. 70, Oct. T., 1906, by plaintiffs, from judgment of O. P. No. 3, Allegheny Co., May Term, 1903, No. 158, on verdict for defendants in case of S. J. Meanor et 'al. v. Mary A. Goldsmith, Owner, and Mary Meyers, Tenant. Ejectment for a lot in the borough of Tarentum. Before McClung, P. J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendants. Error assigned, was in giving binding instructions for defendants.

<p>Appeal, No. 80, Oct. T., 1906, by defendant, from judgment of C. P. No. 8, Allegheny Co., Feb: T., 1904, No. 140, on. verdict for plaintiff in case of James McMillin Printing Company v. Pittsburg, Carnegie & Western Railroad Company.</p> <p>Appeal from report of jury of view. Before Kennedy, P. J.</p> <p>The court charged in part as follows:</p> <p>' [If they are entitled to recover here, they are entitled, as I have already intimated to you, to recover the value of that lease, its fair market value, at the time it was appropriated by the railroad company. They are entitled, in addition to that, to the actual expenses necessarily incurred through this enforced removal from one place to another. The first item of damages is this matter of the expenses of the enforced removal. They are entitled under that item for the actual expenses necessarily incurred, as I have already stated, in removing from one building to the other. You have the figures making up the different items of expenses, making the total amount some $1,600. You have heard the various items making up that amount, and you have heard the objections or answers to some of them. You will consider the testimony with reference to all the items going to make up that amount claimed here, and for such expenses as you believe or find the plaintiff company actually incurred in that enforced removal, for that amount you will allow them compensation by your verdict.] [6]</p> <p>[Now, one item is the difference in the rent they had to pay for the new premises, more than they paid for the old. That item is not submitted to you, and it is not claimed they are entitled to that as a matter of damages, but the difference is submitted here as showing that the lease was of material value. You are to ascertain from all .the testimony, if you can, what this lease ivas worth, what it was actually worth, what was its market value, and you will consider all the circumstances with reference to the lease and the premises there, and the occupation of them, and if you can find out, from this testimony, what that lease was actually worth in dollars and cents, for such amount you will allow the plaintiff, in addition to the cost of removal.</p> <p>There is no question in regard to the cost of removal from one place to the other, as I have already told you. They are to be allowed for that, and your verdict must be for that amount in any event. But this question of the value of the lease is submitted for your serious consideration, and all the testimony in regard to it. .1 have mentioned one item, the loss of the rent, and the claim for the actual expense or loss in the stoppage of the machinery; that element is submitted. They say that the stopping of their business, or the stopping of their machinery during the timé of removal was an expense to them.] [2]</p> <p>[Then they claim to have lost by the difference in the terms of the lease with reference to the power to be furnished. You have heard a great deal of testimony about the power that was furnished for the running of this business, the printing establishment of the plaintiff company. In the lease from Bair & Gazzam to the plaintiff company there was a provision fixing certain terms upon which they could use the power out of ordinary business hours, at night for instance, while they obtained no such privilege by the lease made in the new quarters. It appears, however, from the testimony, that they were to be allowed the use of the power at night, or at any time outside of the usual working hours, on the payment of a larger sum of money,- — -instead of $1.00 an hour as in the old premises, it was $5.00 for the first hour and $1.00 an hour afterwards. That is claimed as a valuable provision in the first lease which they did not have in the lease for the new premises. From the testimony it appears that they did not use it at night in the new premises, and hence they have not suffered any loss. I think one witness said they used it two or three times, at any rate they used it very little, if any, so that an actual loss has not been incurred by this plaintiff company in the failure to. have this provision in the lease.' That illustrates.to you the mistake you would make if you would allow this plaintiff company for the loss of these various items, .the amounts that have been stated here as the amounts of the loss incurred to this plaintiff company. In other words, it shows the necessity of your not considering these various items of damages,, or items going to make up the measure of damages which you are to allow the plaintiff, but only to consider them in finding out, if j^ou can, what the fair market value of this lease was. Was that lease of value over and above the conditions which the tenant, the plaintiff, were obliged to perform; what was its fair market value? I only mention this matter in regard to the difference in the cost of the power to be furnished outside of the regular working hours, as illustrating to you the mistake you would make in allowing the plaintiff these items which he claims, ■ the various items he claims to have lost by reason of this destruction of the lease, except the item of actual expense incurred in moving. That is an item constituting a measure of damages, do not make a mistake in that. But as to the other items you are only to consider them in your efforts to ascertain what market value this lease had, if any. Counsel for plaintiff has properly said to you that he does not claim them as items going to make up the measure of damages, yet they are items for you to consider in ascertaining the market value of this lease, if any. I need not go over the other items, for they are all of the same nature, — one is the difference in the operation of this machinery on one floor instead of on two, as in the new building.] [3]</p> <p>Plaintiff presented this point:</p> <p>2. In estimating the value of the plaintiff’s leasehold, the jury should take into consideration the costs of removal to and the fitting up their printing plant in the new location, the loss and interruption of its business during the removal, the increase of rent including the increased cost of power, the loss of the privilege of power for working at night, the inconvenience and increased costs of doing business at the new location, and any other facts and circumstances in evidence injuriously affecting plaintiff’s property as the direct and necessary result of the appropriation of their leasehold by the defendant. Answer : This is affirmed. This is, as you will observe, if you notice carefully its meaning, in the line of my instruction to you ; not that you are to take those items, except the item of the cost of removal, as a measure of damages, but only for your consideration in ascertaining what, if anything, was the fair market value of this lease, which the plaintiff has lost. Has he lost anything by it 1 It would seem, from the testimony, that the machinery is substantially as good as it was before the removal, but the loss there, as it turns out from the claim made afterwards, was not actual loss, or the injury to the machinery in moving, but the loss which they claim in the operation of the machinery on the two floors instead of the one. But those are simply matters for your consideration in ascertaining if this lease has a market value, and if so what. [9]</p> <p>Defendant presented these points:</p> <p>1. It appearing from the evidence that the defendant railroad company, by due corporate action, had by resolution of its board of directors, adopted July 29,1901, appropriated the property of Henry C. Bair for railroad purposes, and on November 22, 1902, the court of common pleas No. 1 of Allegheny county, Pennsylvania, at No. 182, December Term, 1902, approved absolutely a bond to Henry C. Bair, conditioned to pay him his damages occasioned by the appropriation made July 29, 1901, as aforesaid, the defendant company acquired a complete title to the property of Henry C. Bair for railroad purposes, subject to the right of the various lessees and sub-lessees therein to compensation for the value of the then current term of their several leases, if any ; and, subject to such leases and subleases, the right of entry and exclusive possession of the entire property, as of date November 22,1902. Answer : Refused. [10]</p> <p>2. That by virtue of the adoption by the board of directors of the defendant company of the resolutions of July 29, 1901, appropriating the premises at the southwest corner of Ferry street and Third avenue, first ward, city of Pittsburg, then owned by Henry C. Bair and in the possession of ■ said Bair, his lessees and their sublessees, said premises became the property of, and title therein vested in the defendant railroad company, subject only to the payment of, or securing to, the parties interested, the damages accruing by reason of said appropriation, and any lease made subsequent to that date would be invalid as to the defendant railroad company. Answer: Refused. [11]</p> <p>4. There being no evidence offered in this case, upon the part of the plaintiff, of the value of the unexpired term of the leasehold of the plaintiff in the Bair building, alleged to have been appropriated by the defendant, the measure of damages, under all the testimony, — if the plaintiff is entitled to recover at all, — is the actual amount shown to have been necessarily expended by the plaintiff in the removal of the machinery and other property of the plaintiff from the Bair building to the Imperial building; and if the jury should find that the plaintiff is entitled to recover, your verdict should be for that amount. Answer: Refused. [13]</p> <p>Yerdict and judgment for plaintiff for $3,093.79. Defendant appealed.</p> <p>Errors assigned were (6-11, 13) above instructions, quoting them.</p>

<p>Railroads — Eminent domain — Leasehold estate — Extension of lease— Damages — Measure of damages — Evidence—Notice to quit.</p> <p>In an action by a tenant against a railroad company to recover damages for the loss of a leasehold, it is error to submit to the jury the depreciation in value of fixtures in place, and the reasonable cost of removal, as separate and independent items for which a recovery may be had; but if it appears that no objection to such submission was made and that no specific instructions on the subject were asked for at the trial, the judgment will not be reversed.</p> <p>A railroad company which condemns a building in the possession of a tenant under a lease, and at the same time the leasehold interest, cannot exercise the right reserved by the landlord in the lease to require the tenant to vacate the building on ten days’ notice. If such a notice was served before the bond to secure the owner was filed and approved, it was given at a time when the company had no right in the property; if given after the bond to secure the tenant was filed, the status of the parties had become fixed, and the defendant could not, in relief of its obligation, destroy the value of the thing taken.</p>

Appeal, No. 12, Oct. T., 1906, by defendant, from decree of C. P. No. 2, Allegheny Co., July Term, 1903, No. 815, on bill in equity in case of Eobert Klein v. The Pennsylvania Savings Fund & Loan Association. Bill in equity for an account.

Appeal, No. 115, Oct. T., 1906, by plaintiff, from judgment of O. P. No. 1, Allegheny Co., Sept. T., 1903, No. 937, on verdict for defendants in case of Hettie EL Neeld et al. v. John T. Cunningham et al. Ejectment for land in the nineteenth,ward of the city of Pittsburg. Before Macfarlane, J. The opinion of the Supreme Court states the case. Verdict and judgment for defendants. Plaintiffs appealed. Error assigned was in giving binding instructions for defendant.

<p>Appeal, No. 141, Oot. T., 1906, by Anna Melazina Spring, Trustee, from decree of O. C. Allegheny Co., Jan. T., 1906, No. 151, declaring a trust at end in Estate of Mary O’Hara Spring.</p> <p>Petition to declare a trust at an end.</p> <p>From the record it appeared that the trust was created by the sixth paragraph of the will of Mary O’Hara Spring, deceased, which was as follows :</p> <p>“ 6. I do hereby give and devise one other of said parts or shares, being the one-third part of said rest and residue of my estate, to Guilielma Fell Alsop, Reese Denny Alsop, Mary Alsop and Elizabeth Febiger Alsop, children of my deceased daughter, Mary Lee Alsop, and their heirs and assigns forever, who shall take and hold the same share and share alike, subject, however, to the following conditions :</p> <p>“ The one-third share or part thus designated for the children of my deceased daughter, Mary Lee Alsop, shall be held in trust by my daughter, Anna Melazina Spring during the lifetime of my said daughter Anna Melazina Spring, she, the said Anna Melazina Spring, to have the sole control and management of said last mentioned one-third share of the residue of my real estate and to collect and receive the income therefrom, and to pay out, at her discretion, from said income to the said children of my deceased daughter, Mary Lee Alsop, or their heirs, according to their respective interests, such sums as she, the said trustee, may from time to time deem to be for their best interests; with power, however, to said trustee to terminate said trust with respect to any one or all of the said children of my deceased daughter, Mary Lee Alsop, at^any time that she, the said Anna Melazina Spring may deem-it for the best interests of my grandchildren, or their heirs, so to do. Any such termination of said trust to. be evidenced by writing under-the hand and seal of the said Anna Melazina Spring in the nature of a quit claim deed, or deed of release, declaring such purpose.”</p> <p>Reese Denny Alsop, testatrix’s grandson, one of the beneficiaries named in the above-quoted provisions, was the petitioner, Having attained his majority, he petitioned the or-phans’ court to adjudge as at an end as to him the trust created by his grandmother’s will.</p> <p>The trustee, Anna Melazina Spring, daughter of the testatrix, filed her answer denying the petitioner’s contentions.</p> <p>The court in an opinion by Over, J., held that the trust was terminated.</p> <p>On exceptions Oyer, J., and Miller, J., were divided in opinion, and the trustee’s exceptions were dismissed. A decree was entered in accordance with the prayer of the petition.</p> <p>Error assigned was the decree of the court.</p>

<p>Railroads — Eminent domain — Competency of witness — Evidence.</p> <p>In the trial of condemnation proceedings the competency of witnesses is' a preliminary question to be passed upon by the court after proper examination, before a witness is permitted to testify as to value.</p> <p>In such a case the witness should have some special opportunity for observation, and to a reasonable extent, have in his mind the data from which a proper estimate of value ought to be made. He should be familiar with, the property upon which he is asked to fix a value, its area, the uses . to which it may be put, the extent and condition of its improvements and in addition thereto should have some knowledge of the values in the neighborhood and the general selling price of property in the locality at or near the time of the appropriation.</p>

Appeal, No. 84, Oct. T., 1906, by defendant, from judgment of O. P. No. 2, Allegheny Co., Jan. T., 1904, No. 242, on verdict for plaintiff in case of Herman Markowitz v. Pittsburg & Connellsville Railroad Company. Appeal from award of jury of view. Before Frazer, P. J. The opinion of the Supreme Court states the case. Error assigned was in overruling objections to the competency of James A. Griffith. Yerdict and judgment for plaintiff for $10,695. Defendant appealed.

Appeal, No. 78, Oct. T., 1906, by defendant, from judgment of O. P. No. 3, Allegheny Co., Nov. T., 1904, No. 206, on verdict for plaintiff in case of Charles C. Enamel v. Pittsburg Railways Company. Trespass to recover damages for personal injuries. Before Kennedy, P. J. At the trial it appeared that in the evening on March 26, 1904, plaintiff, while driving a wagon along Isabella street, in the city of Allegheny, approached Anderson street.

<p>Appeal, No. 111, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co.', Sept. T., 1904, No. 160, confirming auditor’s report in case of Westmoreland Guarantee Building and Loan Association of Pennsylvania v. Charles D. Connor with notice to J. A. Wakefield, terretenant.</p> <p>Scire facias sur mortgage.</p> <p>Exceptions to report of J. McF. Carpenter, Esq., auditor, appointed to make distribution of a fund arising from a sheriff’s sale of real estate.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

<p>Beneficial associations — Death benefits — Change of beneficiary.</p> <p>Where a beneficial association has paid death benefits into court, and a contest has arisen between a minor daughter of the deceased member representing her deceased mother, and a brother of the member, a judgment for the daughter will be sustained where it appears that the mother was originally named the beneficiary, that she was given the certificate of membership by her husband with the assurance that he would never change it, that the wife relying on this assurance paid out of her separate estate the assessments and charges upon the certificate until a time when, without her knowledge or consent her husband surrendered it to the association for a new certificate, in which his brother was substituted as the beneficiary.</p>

Appeal, No. 125, Oct. T., 1906, by defendants, from judgment of O. P. No. 3, Allegheny Go., May T., 1902, No. 109, on verdict for plaintiff in case of Somerset Borough v. Charles Ott et al. Assumpsit for breach of contract to construct a. sewer. Before McClung, J. See 207 Pa. 539. At the trial it appeared that the defendants had a contract with the plaintiff to construct a sewer.

<p>Appeal, No. 147, Oct. T., 1906, by plaintiff, from decree of C..P. No. 2, Allegheny Co., Jan. T., 1906, No. 135, dismissing bill in equity in case of Allegheny County Light Company v. Walter W. Booth and C. E. Reichard, trading as Booth & Reichard, Harry Kerr and William Fox, trading as Kerr & Eóx, and Reed JVI. Yincent, John A. Scott and James E. Booth, trading as Yincent, Scott & Company.</p> <p>Bill in equity for an injunction to restrain defendants from interfering with a conduit under the sidewalk of the property of Yincent, Scott & Co.</p> <p>Cross bill for a mandatory injunction for the removal of the conduit.</p> <p>From the record it appeared that Vincent, Scott & Co., by their contractors, Kerr & Fox, were making an excavation for a vault under their sidewalk, and in doing so caused a part of the plaintiffs’ conduit to fall and break. Plaintiffs claimed a vested right to maintain a conduit under the sidewalk. The defendants denied this right.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Young, J., after finding the facts and conclusions of law, entered the following decree.</p> <p>And now, to wit: July 13, 1906, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows:</p> <p>1. The preliminary injunction entered October 24, 1905, is dissolved.</p> <p>2. The original bill of complaint is dismissed.</p> <p>3. The Allegheny County Light Company, the defendant in the cross bill, is ordered and directed, within thirty days from the date hereof, to remove its conduit from beneath the sidewalk on the west side of Beatty street, from Penn avenue to Kirkwood street, in the city of Pittsburg.</p> <p>4. That the Allegheny County Light Company pay the costs of this case.</p> <p>Error assigned among others was the decree of the court.</p>

Appeal, No. 12, Oct. T., 1907, by-defendant, from judgment of O. P. No. 1, Allegheny Co., Dec. T., 1906, No. 286, for plaintiff on case stated in suit of Eliza Ann Kennedy v. Pittsburg & Lake Erie Railroad Com.pany. Case stated to determine the title to real estate. Brown, J., filed an opinion in which he held that plaintiff had a right to make a conveyance of real estate under the provision of the will quoted in the opinion of the Supreme Court.

<p>Contract — Option—Coal lands — Construction of contract.</p> <p>An owner of options on coal land having a right to sell the same, entered into an agreement in writing by which he agreed to “grant, bargain and sell, all the coal and land owned and optioned by him.” The agreement further provided as follows: “In consideration whereof said second party, for himself or his assigns, agrees to pay to said first party the sum of One dollar, the.receipt whereof is hereby acknowledged, in full for this option, and in the event of this agreement being absolute by the election and notice above mentioned, then and not otherwise, said second party agrees to pay. said first party the sundry sums between the prices mentioned in said options to the individual farmers and the sum of forty dollars per acre for each and every acre which may be taken up, and to which good titles are to be had, payable as follows: When the deeds are delivered from the present owners the payments to the farmers to be as stipulated in the options and the same may be determined by surveys.” The purchaser subsequently elected, to accept the option, and so notified the seller. The purchaser failed to exercise his right to purchase from the farmer's after he became the owner of the options. Held, that he was liable to the seller for the difference between the option price and $40.00 per acre.</p>

<p>Negligence — Street railways — Getting on car — Moving car.</p> <p>In an action against a street railway company to recover damages for personal injuries, the case is for the jury, where the evidence for the plaintiff, although contradicted, tended to show that plaintiff boarded a summer car; that when he saw the car coming about 100 feet distant he waved his hand to the motorman to stop, who at once put on the brakes so that when it reached the plaintiff it had almost stopped, and he stepped up on the running board and was about to go into the body of the car after the car had actually stopped, when the conductor rang the bell for the car to start; that it was instantly started with a jerk and threw him off and injured him.</p>

<p>Negligence — ■Street railways — Runaway car — •Evidence.</p> <p>In an action against a street railway company to recover damages for personal injuries resulting to the plaintiff from being struck by a piece of wood which was torn from a telephone pole by the impact of a runaway electric car with the pole, the evidence showed that plaintiff was standing on a railroad station platform near the pole in question. The railway tracks ran down a public street at a grade of six per cent for a considerable distance, and terminated immediately opposite the station. The car in question was in good condition, properly equipped with brakes and was provided with sand; but the tracks were so incased in ice, that when the motorman attempted to apply the sand, the wheels did not take hold even when reversed. In consequence the car slid down the grade. There was no evidence that the motorman was not a prudent man, and it was shown affirmatively that he was of long experience in running electric cars. The motorman had no difficulty when he started on the grade, and it was not until he was a considerable distance down the grade that he began to lose control. He testified that he thought that he would have no difficulty in taking the car down the whole distance. The testimony showed that the •weather at the time was of extraordinary character, and that owing to the ice on the rails the sand could not cling to the rail. Held, that there was no evidence of defendant’s negligence to submit to the jury.</p> <p>Negligence is not to be presumed upon the happening of an occurrence which is the result of exceptional and extraordinary conditions.</p>

<p>Appeal, No. 74, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 653, on verdict for plaintiff in case of Marie B. Crooks v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Brown, J.</p> <p>The facts are stated in the opinion of the Supreme Court. Verdict and judgment for $7,913.56. Defendant appealed.</p>

Appeal, No. 97, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1902, No. 371, refusing to take off nonsuit in case of R. ~W. McClelland v. Pittsburg Railways Company. Trespass to recover damages for personal injuries. Before Brown, J. The facts are stated in the opinion of the Supreme Court. ' Error assigned was refusal to take off nonsuit.

Appeal, No. 114, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1901, No. 506, on verdict for plaintiff in case of William P. Armstrong v. Consolidated Traction Company. Trespass to recover damages for personal injuries. Before Collier, P. J. The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $5,975. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 128, Oct. T., 1906, by John H. Musgrave, from order of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 305, refusing a rule to show cause in the matter of the Petition of John H. Musgrave for admission to the Bar. Petition for rule to show cause.

<p>Husband, and wife — Tenants by entirety — Municipal lien.</p> <p>Where a husband and wife are registered owners by entireties of a lot in a city, and a municipal lien is filed against the wife alone, upon which judgment is entered against her only, the lien as to the husband is a nullity and a sale thereunder passes no title. In such a case if the wife buys at the sale, she buys nothing that she did not have before, her own right of survivorship.</p> <p>Husband and wife — Tenancy, by entireties — Divorce.</p> <p>Where a husband and wife hold an estate as tenants by entireties, and they are subsequently divorced, the divorce does not change the tenancy by entireties into a tenancy in common.</p> <p>Husband and wife — Tenancy by entireties — Divorce—Ejectment—Rule to bring ejectment.</p> <p>Where a husband and wife holding an estate by entireties, are divorced, the wife is not entitled as against the husband to a rule to bring ejectment, and if the court allows the rule, the failure of the husband to appear and answer is immaterial, because the face of the record already answered the requirements of the rule by showing “cause why the ejectment cannot be so brought;” '•</p>

<p>Negligence — Street railways — Infant—Duty of motorman.</p> <p>The duty of a motorman requires him to exercise care and vigilance in</p> <p>operating his car. He should give close attention to his duties so that he may protect those who without negligence are occupying the track in front of him, as well as those who are passengers in the car who may be endangered by a collision with persons or objects on the track.</p> <p>Where a motorman is running his car at such speed that he could stop it within a car’s length, and the view of the track is so unobstructed that if he looked he could see a small boy at a point at least 100 feet from where the boy is about to cross the track, and he fails to do so, and the boy is struck as he is about leaving the track, the motorman is guilty of negligence, and the company employing him is liable in damages for injuries to the boy.</p>

<p>Negligence — Master and servant — Safe place — Safe tools — Erroneous charge.</p> <p>It is not an accurate definition of the duty of a master to his servant to say that he must furnish “a safe place to work and safe tools with which to work.” Employers are only required to furnish a reasonably safe place in which, and reasonably safe tools, with which to work.</p> <p>It is reversible error for the court to charge: “If there is any neglect upon the part of the employer in furnishing a safe place to work or in furnishing safe tools with which his employees are required to work, then the employer is liable.”</p>

<p>Appeal, No. 89, Oct. T., 1906, by defendant, from judgment of O. P. No. 1, Allegheny Co., Dec. T., 1902, No. 993, on verdict lor plaintiff in case of Louis B. Whitney v. Frank Haskell.</p> <p>Assumpsit to recover back money paid for mining claims. Before Brown, J.</p> <p>From the record it appeared that on April 19, 1902, Frank Haskell sold to Louis B. Whitney as trustee, by a written contract, certain quartz lode gold mining claims in the Thunder Mountain mining district, state of Idaho. Plaintiff alleges that he executed this contract upon the faith and representations made to him by the defendant, and by William McKinley, the alleged agent of the defendant, that the mining properties were quartz lode gold mining claims, that they were duly located by discovery holes, and that fifty pan tests had been made showing gold running from $3.00 to $15.00 per ton. These representations the plaintiff alleged he subsequently discovered were false, and therefore claimed the right to rescind the contract and demand the return of his money.</p> <p>Plaintiff presented these points :</p> <p>1. If no vein, lode, ledge or rock in place bearing gold was ever found in the discovery holes of the Sunset or Sunset Fraction claims, the plaintiff had the right to rescind the contract for the purchase of these claims if he used due diligence to discover this fact, and rescinded it promptly on learning this fact. Answer: Affirmed. [2]</p> <p>2. In order to make a valid location of a quartz gold mining claim, a vein or lode filled with rock in place bearing gold must be discovered. It is not enough to discover detached pieces of quartz or mere bunches of quartz not in place. Answer: Affirmed. [3]</p> <p>Defendant presented these points :</p> <p>1. That the plaintiff has joined in this suit two distinct incongruous causes of action, to wit: An allegation that defendant agreed to sell to plaintiff certain mining claims as described in the agreement between the parties, and that he had no such claims to convey in which particulars no fraud or misrepresentation is alleged, but merely failure of consideration, and an allegation that plaintiff was induced to purchase the mining claims in question by false and fraudulent misrepresentations as to their richness in gold; that the first cause of action sounds in contract and the second is tort, and, therefore, cannot be joined ; and plaintiff, therefore, cannot recover. Answer: Refused. [4]</p> <p>2. That under all the evidence in the case the plaintiff is not entitled to recover upon the allegation that the consideration for the mining claims in question failed as between him and the defendant. Answer : Refused. [5]</p> <p>3. That the plaintiff has not shown any such failure of title in the defendant to the mining claims in question as would entitle him to recover on that ground. Answer ; Refused. [6]</p> <p>9. That the only material fact (a) tending to show fraud given in evidence in this case is the allegation that McKinley, alleged to be defendant’s agent, stated that fifty pan tests had been made, some showing gold at the rate of from $3.00 to $15.00 per ton, which statement is alleged to have been concurred in by the defendant at the closing of the contract as options of sale, and if the jury believe that the statement was not made as a fact within the knowledge of said McKinley, or of said defendant, but was a mere statement as to a report made by Saxman, then plaintiff cannot recover, even though the jury may find that only four pan tests were made by Sax-man, yielding very small traces of gold, unless the jury further find that Saxman never made the statements to McKinley which it is alleged McKinley made to plaintiff. Answer : (a) If this statement were correct (namely, that there is but one material fact tending to show this fraud), it would be affirmed; but, as there are several matters of fact on the question of fraud to be passed upon by the jury, it is refused. [Y]</p> <p>13. That there is no sufficient evidence of any false or fraudulent representations upon which the plaintiff is entitled to recover. Answer: Refused. [8]</p> <p>14. That under all the evidence the verdict must be for the defendant. Answer : Refused. [9]</p> <p>The court charged in part as follows :</p> <p>[The plaintiff’s right of action, or right of rescission and right of recovery, if he is entitled to recover as he claims, runs along two lines. One right upon which he claims the right to rescission is a right based upon the contract, the deed, which provided for a good title as to all parts except the government of the United States. That meant a good title, not to a mere bit of property out there, a mere waste piece of property, but to a property containing a quartz lode gold vein, or, in substance, that is the idea. ... So that there are two lines, one line based upon the deed and allegation of fraud, the other based upon representations which sound in fraud.] [10]</p> <p>Yerdict and judgment for plaintiff for $17,325. Defendant appealed.</p> <p>Errors assigned were (1) in refusing to require the plaintiff to elect whether he would proceed on the allegation as to fraudulent misrepresentation contained in his statement, or upon the allegation of the failure of consideration; (2-10) above instructions, quoting them.</p>

Appeal, No. 140, Oct. T., 1906, by Thiel College, from decree of C. P. Mercer Co., June T., 1905, No. 70, dismissing appeal to amend a charter in the Matter of the Petition of Thiel College to amend its charter. Petition to amend charter.

<p>Appeal, No. 135, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 872, on verdict for plaintiff in case of Eli II. Johnstin v. City of McKeesport.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $4,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for plaintiff.</p>

<p>Divorce — Alimony—Lien on real estate — Cruel and barbarous treatment.</p> <p>Alimony decreed to a wife where a divorce has been granted to the husband on the ground of cruel and barbarous treatment, is not a lien upon his real estate.</p>