Volume 217 — Pennsylvania State Reports

<p>Party walls — Constitutional law — Police power.</p> <p>The right of the legislature to confer upon municipalities the power of regulating party walls is based upon the general police power of the state, and cannot be questioned.</p> <p>Every owner of a lot of ground in a city as to which such legislation applies, has the statutory right to make a party wall between himself and his neighbor, and may enter upon the adjoining lot for that purpose, not going beyond the prescribed limits. This right cannot be taken from him by the adjoining owner building exclusively upon his own land, either to the line, or a short distance therefrom.</p>

<p>Appeal, No. 174, Oct. T., 1906, by plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1906, No. 460, sustaining demurrer to bill in equity in case of John B. Heron, Jr., v. James W. Houston and Leo Reed, trading as James W. Houston & Company, and S. A. Dies, Superintendent of the Bureau of Building Inspection of the City of Pittsburg.</p> <p>Bill in equity for an injunction.</p> <p>Demurrer to bill.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree sustaining demurrer.</p>

<p>Equity — Injunction—Contract—Master and servant — Secret process.</p> <p>On a bill in equity by an employer against former employees to restrain the latter from using secret processes which they had contracted not to use except for complainant's benefit, where the evidence shows a clear prima facie case of fraudulent breach of contract, but the trial judge thinking that the proof was not technically sufficient without evidence of the secret process, which complainant refused to offer, refuses the relief sought, and after an appeal is taken the complainant applies for a reopening of the case on the ground of material after-discovered evidence, the appellate court will reverse the decree with directions to allow the case to bo reopened for further evidence.</p>

<p>Appeal, No. 186, Oct. T., 1906, by</p> <p>Welsbach Street Lighting Company of America, from decree of C. P. No. 1, Allegheny Co., June T., 1906, No. 149, on bill in equity in case of Harry C. Sawyer and E. H. Stoner v. City of Pittsburg, William B. Hays, Mayor of City of Pittsburg, and E. M. Bigelow, Director of the Department of Public Works of said City of Pittsburg, and Welsbach Street Lighting Company of America, a corporation of the state of Illinois.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree awarding an injunction.</p>

<p>Practice, G. P. — Amendment—Statement of claim — Trespass—Statute of limitations.</p> <p>An amendment to a statement of claim will not be allowed if a new cause of action is thereby introduced which is barred by the statute of limitations.</p> <p>In an action of trespass by a minor against his employer to recover damages for personal injuries, where the only matter complained of is a defect in a particular machine, the court will not permit the plaintiff after he has arrived at age, and more than three years after the accident happened, to amend his statement by charging a defect in another and different machine, failure to instruct as to the dangers incident to his employment, and failure to inspect.</p> <p>Practice, C. P. — Trespass—Minor—Intervention.</p> <p>Where an action of trespass has been brought by a minor through his father as next friend, and pending the action, the minor comes of age, there is no necessity for petition and an order of court allowing him to intervene but the record on motion may be amended so that the plaintiff may appear in his own right, instead of through his father as next friend.</p>

Feigned issue to determine the ownership of a fund paid into court. At the trial it appeared that Jackson & Fulton were general contractors for the building of a schoolhouse, and that Scott A. White was a subcontractor for the roofing of the building. On October 7,1901, Jackson & Fulton gave to Scott A. White an order on the school board for $4,000. This order was accepted.

<p>Appeal, No. 154, Oct. T., 1906, by defendant, from judgment of O. P. No. 3, Allegheny Co., Nov. T., 1904, No. 593, on verdict for plaintiff in case of North Braddock Borough ,v. Monongahela Street Railway Company.</p> <p>Assumpsit to recover the cost of building retaining walls for an approach to a bridge. Before Evans, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $3,203.86. Defendant appealed.</p> <p>Errors assigned were various instructions.</p>

Appeal, No. 160, Oct. T., 1906, by plaintiff, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1906, No. 754, for defendant on case stated in suit of Lucy O’Hara Schoyer v. Frederic G. Kay. Case stated to determine the marketable title to real estate. From the record it appeared that the plaintiff was formerly Mrs. Lucy Morrison, and a daughter-in-law of William Morrison. The latter by his will directed as follows : “ 9.

<p>Appeal, No. 180, Oct. T., 1906, by defendant, from decree of O. P. No. 2, Allegheny Co., April Term, 1904, No. 375, on bill in equity in case of Harry J. Graham v. Carnegie Steel Company, a corporation, Union Railroad Company, Monongahela Southern Railroad Company and Carnegie Steel Company, Limited.</p> <p>Bill in equity to reform a deed.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree reforming the deed.</p>

<p>Equity — Accounting—Profits—Trusts and trustees — Corporations.</p> <p>Where a corporation is organized with a large capital, and the organizers pay in in cash only one-tenth of the capital stock, and thereafter one of the organizers sells to his brother a portion of his stock holdings at par, paying himself with moneys which he had received from his brother for investment, and subsequently the organizers develop the company by means of moneys borrowed on the company’s notes with their own indorsements, and not by paying up the capital, and thereafter the company, together with certain subordinate companies which it owned, are sold at a very large profit, the organizer who sold stock to his brother must account to him for profits received in proportion to their respective holdings of capital stock, and not in proportion to the funds furnished by the brother to all the money invested in the enterprise whether paid on account of stock, or borrowed on the company’s notes.</p> <p>Equity — Master’s findings of fact — Accounting—Review.</p> <p>On a bill in equity against a trustee for an accounting, the appellate court will not review a master’s findings of fact that the defendant sold certain bonds at par, and not at a discount, where such findings are confirmed by the court below, and are based upon admissions of the defendant, the papers in the case, and other competent evidence.</p>

<p>Appeal, No. 142, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1903, No. 812, on verdict for plaintiff in case of Jonathan Clark & Sons Company for the use of The Mercantile Trust Company v. City of Pittsburgh.</p> <p>Assumpsit on a municipal contract. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the court refused binding instructions in favor of defendant as to certain items of extra work. [8, 9, 10]</p> <p>Defendant presented, inter alia, this point:</p> <p>5. If the foregoing points are refused, the court is respectfully requested to charge the jury that, unless the jury finds that the items of extra work and materials referred to above in the second, third and fourth points were merely incidental to the work, such items or so much thereof as found not to be incidental cannot be recovered in this case. Answer: Refused. [11]</p> <p>The court charged in part as follows :</p> <p>[As I said a moment ago, gentlemen, as we understand the law, this award if made by the director is binding upon the parties; they having agreed to submit any differences or disputes that arose between them to the director of the department of public works, it was their duty if any differences arose to submit them to that officer, and if the director heard the parties and made his award they would be bound by it, unless the award was fraudulent in some respect, or was made by accident, or there was some mistake in it; something like an error in adding up the figures, or something of that kind; but so long as there was no fraud, accident or mistake in arriving at the amount due, by the director, the parties would be bound by the award. Of course, if there was fraud upon the part of the director, or upon the part of either of the parties to the contract, the award would be invalid ; but in this case, as there is no evidence of fraud, accident or mistake, as we understand the law, if the director of the department of public works made an award under the agreement and found in favor of either of the parties, both parties would be bound by it, so that is practically the question you have to determine in this case. Was Dr. McCandless the director of the department of public works of the city of Pittsburgh on February 24, 1903 * If he was the director of the department of public works at that time, were the disputes arising under the contract submitted to him ? Did he act upon them and did he make the award admitted in evidence and read to you ?</p> <p>The uncontradicted testimony is that he was the director, and that he heard the parties, or one party, after affording both an opportunity to appear, and that he made an award. If you find this is his award, made under these circumstances, the plaintiff is entitled to recover.] [12]</p> <p>[The sole question, as I said a moment ago, is : Is that award the award of the director of the department of public works of the city of Pittsburgh, and was it made in accordance with the terms of the contract between the parties % The testimony is that it was, and if you believe the testimony, plaintiff would be entitled to a verdict in its favor and entitled to recover, first, the sum of $102,232.30, with interest from December 4, 1902, and also the sum of $56,960.86, with interest from February 18, 1903, and the balance of $28,334.65, with interest from December 4, 1903. If the award is not an award of the director of the department of public works the verdict should be for the defendant.] [13]</p> <p>Yerdict and judgment for plaintiff for $219,013.08. Defendant appealed.</p> <p>Errors assigned among others were (8-13) above instructions, quoting them.</p>

Appeal, No. 17, Oct. T., 1906, by defendant, from decree of O. P. No. 2, Allegheny Co., Oct. T., 1902, No. 314, on bill in equity in case of Milton D. Hays v. Tlie Colonial Trust Company, Administrator of the Estate of W. O. Jutte, deceased. Bill in equity for an account.

<p>Criminal law — Evidence—Good character — Charge.</p> <p>In charging the jury in criminal cases the trial judge is under no obligation to use any particular or set form of words. All that the prisoner is entitled to, even on trial for murder, is that the jury shall be accurately instructed as to the law applicable to every material phase of the ease which the jury may, under the evidence, be authorized to consider. ■</p> <p>Good character is an affirmative and substantive fact to be considered on the whole question of guilt, including reasonable doubt.</p> <p>The substance of the law as to good character is that it is not a mere makeweight but positive and substantive evidence in itself and entitled as such to go to the jury as a fact in the prisoner’s favor. If the jury is so instructed the duty of the judge is correctly performed, and if counsel for the prisoner want instruction in some preferred form they should request it in the usual way.</p>

Appeal, No. 88, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 1,780, for defendant on case stated in suit of Sallie B. W. Holmes v. John B. Stanhope. Case stated to determine title to real estate. From the record it appeared that the real estate in question belonged to Elizabeth P. Powell who died leaving a will as follows: “. . . .

Appeal, No. 228, Jan. T., 1906, by Margaret W. DaCosta, from decree of O. C. Phila. Co., Oct. T., 1905, No. 477, refusing an issue devisavit vel non in Estate of Margaret Mulholland, deceased. Appeal from register of wills. From the record it appeared that the register of wills directed a precept for an issue devisavit vel non to the court of common pleas to determine the question of the validity of the will.

Argued Jan. 10, 1907. Appeal, No. 242, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 190J, No. 861, on verdict for defendant in case of Frank V. Harding v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Martin, P. J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Error assigned was in giving binding instructions for defendant.

<p>Appeal, No. 79, Oct. T., 1906, by Winfield S. George, from decree of O. C. Mercer Co., April T., 1905, dismissing exceptions to auditor’s report in Estate of Ann Eliza Snyder, deceased.</p> <p>Exceptions to report of J. R. W. Baker, Esq., auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Criminal law — Murder—Confession.</p> <p>To exclude a voluntary confession of guilt some inducement must bo held out to prompt to falsehood, and of this the trial court must be the judge in the first instance, and its ruling will be set aside only for manifest error.</p> <p>On the trial of an indictment for murder it appeared that when the prisoner was in jail he sent for an acquaintance to become his bail. The latter refused. The acquaintance testified at the trial that when the prisoner started to tell about the killing he was told that he was not obliged to say anything unless he desired to do so, and that whatever he said might be used against him. After this caution he made a confession without any inducement or hope having been held, out to him. Held, that the confession was properly admitted in evidence.</p> <p>Criminal law — Murder—Principal—Accessory.</p> <p>A person may be convicted of murder of the first degree where it appears that he entered into a plot with another by which the latter was to do the killing, while he himself should wait some little distance from the house for about three-quarters of an hour to allow the actual murderer to escape, and then set fire to the house to conceal the crime, and that this plot was carried out.</p>

Appeal, No. 96, Jan. T., 1906, by defendants, from order of C. P. No. 1, Pbila. Co., Pec. T., 1895, No. 900, dismissing exceptions to report of referee in case of Thomas H. Wilson v. Theodore Wernwag and T. Russell Pawson, trading as Wernwag & Pawson. Assumpsit for breach of contract. The case was referred to Charles E. Morgan, Ji\, Esq., as referee under act of May 14, 1874. The referee filed a report in favor of plaintiff for $7,389.44.

<p>Negligence — Railroads—Master and servant — Fellow servant — Vice principal.</p> <p>A workman on a construction train was injured by the sudden starting of the train without warning upon the signal of the supervisor of the construction work who was not in charge of the train and was 175 yards away from it at the point to which he wanted it to advance for the purpose of unloading. The duty to give warning of any movement of the train did not rest with the supervisor but with those in charge of it. Held, that even if the supervisor were a vice principal (which is not decided) there was nothing to show negligence upon his part and that the plaintiff was not entitled to recover.</p>

<p>Negligence — Municipalities—Defective street — Dirt road.</p> <p>When an accident happens by reason of some slight defect in a street, from which danger is not reasonably to be anticipated, the municipality is not chargeable with négligence. The duty which the law imposes upon a municipality, is only to exercise ordinary care to see that the highway is safe for travelers.</p> <p>A city is not liable for personal injuries sustained by a woman in stepping into a rut in a dirt road while she was alighting from a street car, where it appears that the rut in question was such as was ordinarily made by wagons, was only a few inches deep, and extended along the edge of Belgian blocks which paved a space of a width of about one foot outside the rail of the street railway.</p>

<p>Appeal, No. 209, Jan. T., 1906, by-defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1903, No. 896, on verdict for plaintiff in case of Freda Unger v. Philadelphia, Baltimore & Washington Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before MoMichael, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $7,500. Defendant appealed.</p> <p>Error assigned was in entering judgment for the plaintiff on the verdict.</p>

<p>Appeal, No. 210, Jan. T., 1906, by defendant, from judgment of C. P. No. 3, Pbila. Co., Dec. T., 190J, No. 2,Y12, on verdict for plaintiff in case of Augusta C. Plodder v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before MoMiohael, J.</p> <p>The material portion of the charge of the court was as follows:</p> <p>Now then, gentlemen, you are to decide from the evidence, applying to it the rules which govern you in the ordinary affairs of life, whether or not this lady stepped from a moving car, or, as one of the witnesses said, jumped from a moving car ; or whether, having notified the conductor to stop the car, he gave the bell to stop the car, and the car having stopped, she then attempted to alight and the car was started forward before she got off and she was thrown from the car. Counsel, with great clearness and great fairness to each other and to us, have put that question before you, and that is a fact for you to decide.</p> <p>I shall say very little about the testimony of the witnesses, That is for you. You should reconcile it if you can ; if not, you must decide between the witnesses. On the one hand, it has been argued from the circumstances of the case that the lady’s story is hardly credible, but you have a right to believe it, and, if you believe it, to determine that the company was, through its employees, guilty of carelessness in that having stopped the car to give her an opportunity to alight, they did not give her time enough to alight. But if you believe the testimony of the defendant’s witnesses and believe she stepped or jumped from a moving car, she is guilty of contributory negligence. Of course the credibility of witnesses is for you. You should look a witness straight in the face, and you twelve men are to decide whether you believe or do not believe the witnesses. You heard the plaintiff, you heard her examined and cross-examined, and you have doubtless by this time come to a conclusion as to whether her recollection is accurate or whether her story is to be believed. And so as to the witnesses for the defendant. They are more numerous in number and agree pretty well that the lady stepped or jumped off the car while it was in motion, but when they come to describe the accident, it is for you to say whether you think their story holds together. I am not going into a disquisition on evidence, but where witnesses come in and tell exactly the same story to the letter, it is rather thought to be against their credibility than for it. That is, if people make up a story, they are apt to make it up exact in all the details. But I do not want to take up time on that. I want to get right at this case. You have got to decide, as these witnesses said this woman either jumped off the car or stepped off the car while it was in motion, whether their story is accurate or not, and first of all applying to her and her witnesses your careful consideration, critical consideration, do the same thing to the witnesses for the defendant. Because they seem to agree in this, that the lady jumped or stepped off the car while it was in motion, but you can test their accuracy by the testimony. The witness Southcott, who testified quite fully about it, when asked where he sat, was not quite sure of the seat but was back in the smoking seats, he thought it was the second from the back and on the same side, as I understood his testimony, though that is for you, as the lady was on, and he said there were two empty seats between him and the lady. We will pass over Smith and Meredith, the conductor and motorman. They testified simply and directly. The motorman was not cross-examined'. But you may test their testimony. Then we come to the testimony of the witness Siglang. Siglang first said that he was on the left side of the car, and then said he was on the right-hand side. That may have been a slip of the tongue or the memory. And the other witness, Oarlin, also said, “ I was on the east side; that is on the same side as the lady that I saw.” Now, you have got to test the accuracy of the recollection of those witnesses by their accuracy and by the way they stood cross-examination, because, while they did say — and one of the witnesses not having stated how the lady got off, in answer to a question, said she jumped off with both feet. The other witnesses described her getting off in a rather different way. I am not arguing this case ; I am simply putting to you the testimony of these witnesses. It is not always numbers, but it is whom the jury believe. However, I have called your attention first of all to the testimony of the plaintiff. Counsel for the defendant was accurate in his statement, that though the testimony of a witness who is interested is no longer excluded by the law, the jury must take into consideration the great interest she has in the case. At the same time, you heard her examined and cross-examined and you must determine whether her story was true and accurate, because her right to recover from this defendant company depends on the accuracy of her statement that the car had stopped and while she was in the act of alighting started forward suddenly and threw her down. And so you should apply the same critical analysis and care to the testimony of the defendant. They are both entitled to it. It has been well and fairly presented by counsel on both sides. There has been no attempt to either move your sympathy or to stir your indignation or to excuse anything. Your business in that jury box is not to decide for this lady because you sympathize with her, or against the company because, you have any prejudice, against it, but to determine the facts, and if you determine that her story is accurate and true and that the others are mistaken, you have a right to do it and to decide in favor of the plaintiff. That is the foundation of our government.</p> <p>Yerdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Frror assigned was that “ the learned court erred in that the charge as á whole was not a fair and adequate presentation of the case.”</p>

Appeal No. 212, Jan. T., 1906, by plaintiff, from order of C. P., No. 1, Phila. Co., Deo. T., 1905, No. 1M2, refusing to take off nonsuit in case of Frank J. Smith v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Beitler, J. The facts appear by 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 refusing to take off nonsuit.

<p>Appeal, No. 211, Jan. T., 1906, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 4,208, refusing to take off nonsuit in case of Edward J. McCafferty v. City of Philadelphia.</p>

<p>Negligence — Master and servant — Duty of master — Safe appliances.</p> <p>Where a master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom. The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged, through the neglect of the master, it is but meet that he should be recompensed. The employer is bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employees, and failing in this, he is liable for any damages flowing from such neglect of duty.</p> <p>In an action by a stevedore against his employer to recover damages for personal injuries sustained while engaged in' unloading iron ore from a ship, it appeared that the ore was being unloaded by means of buckets. The evidence showed that the bail or handle by which the bucket was attached to the hoisting tackle was torn from the side of the bucket, during an ascent, and the contents, about 4,000 pounds of ore, dropped back, some of it striking plaintiff. It appeared from the uncontradicted testimony of a naval architect, familiar with appliances for loading and unloading ships,' and having knowledge of the tensile strength of iron and steel, that the safety point for loading the bucket was 1,500 pounds, while the ultimate breaking point was 6,000 pounds, thus providing for the usual factor of safety of four to one. Held, that the case was for the jury and that a verdict and judgment for the plaintiff should be sustained.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, it is not error to reject evidence as to methods and appliances which were in ordinary and general use, where there is no offer to follow this by evidence tending to show that the method used by the defendants was unusual, and was more dangerous it itself than the ordinary method.</p>

<p>Res adjudícala — Ejectment—Equity—Trusts and trustees.</p> <p>In an ejectment a verdict for the defendant will be sustained, where it appears that in a previous equity suit in which the parties were the same, the properties were the same, and the equity set up against the legal title was the same, a decree was entered against the plaintiff.</p>

<p>Appeal, No. 266, Jan. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 3,450, on verdict for plaintiff in case of Allentown National Bank v. Clay Product Supply Company.</p> <p>Assumpsit on a promissory note. Before Audenried, J.</p> <p>The note in suit was in the following form:</p> <p>“ $1,500.00. Newark, N. J., Feb. 18, 1904.</p> <p>“ Four months after date we promise to pay to the order of Clay Product Supply Co. Fifteen hundred and 0-100 dollars, at Essex Co., National Bank.</p> <p>“ Value received, with interest.</p> <p>“(Signed) • Yan Keuren & Son,</p> <p>“Wm. Yan Keurbn, President.</p> <p>“ Endorsed:</p> <p>“Pay to the order of Hickory Run Brick Co.</p> <p>“ Clay Product Supply Co.,</p> <p>“ J. Mortimer West, Jr., Treasurer.</p> <p>“ Hickory Run Brick Co., S. N. Weaver, Treasurer.</p> <p>“ (Duly protested for non-payment; costs of protest, $1.85.)”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The trial judge gave binding instructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff for $1,695.60. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.'</p>

Appeal, No. 127, Jan. T., 1906, by defendants, from decree of C. P. No. 5, Phila. Co., Dee. T., 1904, No. 852, on bill in equity in case of Felix Isman, Agent, v. Edward E. Hanscom and Melville Hanscom, trading as Hanscom Bros. Bill in equity for an injunction.

Appeal, No. 249, Jan. T., 1906, by-plaintiffs, from order of C. P. No. 1, Phila. Co., June T., 1905, No. 1,015, refusing to take off nonsuit in case of Mary E. Mc-Cabe, a minor, by her father and next friend, John T. McCabe, and John T. McCabe in his own right v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Bregy, J. The circumstances of the accident are stated in the opinion of the Supreme Court.

Appeal, No. 197, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 1,764, on judgment for defendant non obstante veredicto in case of James M. Foster, Jr., v. American Bitumastie Enamel Company. Trespass to recover damages for personal injuries. Before Beitler, J. Verdict for plaintiff for $7,500. The court subsequently entered judgment for defendant non obstante veredicto.

Appeal, No. 168, Jan. T., 1906, by-defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 4,132, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Daniel S. Lindsay v. Lewis G-. Dutton. Assumpsit on a promissory note. The opinion of the Supreme Court states tbe case. Error assigned was the order of the court.

Appeal, No. 184, Jan. T., 1906, by Louisa T. Cochran, from order of O. P. No. 2, Phila. Co., Dec. T., 1897, No. 430, dismissing exceptions to auditor’s report in Assigned Estate of the Chestnut Street Trust & Saving Fund Company. Exceptions to report of auditor. The facts are stated in the opinion of the Supreme Court. Error assigned was in dismissing exceptions to report of auditor.

<p>Appeal, No. 275, Jan. T., 1906, by plaintiffs, from order of C. P. No. 1, Phila. Co., March T., 1906, No. 473, refusing to take off nonsuit in case of Wilmer Y. Henson and LeRoi Henson, by his father and next friend, Wilmer Y. Henson, v. Joseph W. Arthur, trading as Arthur Milk Company.</p> <p>Trespass to recover damages for personal injuries. Before Bjcitlee, J.</p> <p>The opinion of the Supreme Court states the facts of the case.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 191, Jan. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1905, No. 3,107, on verdict for plaintiff in case of Charles G. Meyers v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Martin, P. J. The facts relating to the accident are stated in the opinion of the Supreme Court. Yerdict for plaintiff for $10,000 on which judgment was entered for $d,000, all above that amount having been remitted.

Appeal, No. 171, Jan. T., 1906, by plaintiffs, from order of C. P. No. 5, Pkila. Co., March T., 1902, No. 2,076, refusing to take off nonsuit in case of Andrew Widger by his father and next friend, Samuel Widger, v. City of Philadelphia. Trespass to recover damages for personal injuries to a boy. Before Martin, P. J. The facts appear in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Public officers — Dairy and food commissioner — Statutes—Constitutional law — Quo warranto — Act of March 13, 1895, P. L. 17.</p> <p>As the Act of March 13, 1895, P. L. 17, providing for the establishment of á department of agriculture is constitutional, and as the appointment of a dairy and food commissioner under the act is a valid appointment, the incumbent of the office of dairy and food commissioner cannot be ousted from his office in quo warranto proceedings, merely because subsequent acts of assembly have conferred upon him illegal and unconstitutional powers.</p> <p>Where the courts have determined that a public officer is holding a lawful office, they will leave the question of his right to exercise alleged forbidden powers to be raised in some proceeding other than quo warranto, in which specific acts said to be performed by him under statutory powers prohibited by the constitution, may be set forth and inquired into, and restrained, if unlawful.</p>

<p>Appeal, No. 126, Oct. T., 1906, by defendant, from judgment of O. P. No. 1, Allegheny Co., Sept. T., 1901, No. 532, on verdict for plaintiffs in case of John D. Armstrong, Ancillary Administrator of L. R. Bacon, and John D. Armstrong, surviving partner of L. R. Bacon and John D. Armstrong, trading as Lathrop R. Bacon & Company,, v. Oharles Bickel.</p> <p>Assumpsit by a firm of brokers against their customer to recover a balance alleged to be due on a stock transaction. Before Maofarlane, J.</p> <p>In addition to the facts stated in the opinion of the Supreme Court it appeared that the order to purchase the 200 shares of the Northern Pacific Railroad Company’s common stock was executed at 2:45s.p. m. on May 9, 1901, at the rate of $350 per share. A part of the loss was made good by collateral which the plaintiffs held, and they sued to recover the balance.</p> <p>The court gave binding instructions for plaintiffs.</p> <p>Yerdict and judgment for plaintiffs for $31,075.65. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiffs.</p>

Appeal, No. 172, Jan. T., 1906, by II. Howard McNeile et al., from decree of O. C. Phila. Co., Jan. T., 1905, No. 188, dismissing a bill of review, and confirming the inquest for partition of the real estate of Hugh McNeile, deceased, under partition proceedings. Petition for bill of review and motion to confirm inquest in partition. The material portion of the will of Hugh McNeile was as follows : “ 2.

<p>Appeal, No. 339, Jan. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1906, No. 3,726, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary J. Jones, Executrix of the Estate of Silas Jones, deceased, v. George M. D. Beale.</p> <p>Assumpsit to recover balance of purchase money for real estate. Before MoMichael, P. J.</p> <p>The defendant declined to pay the purchase money on the ground that a tax sale through which plaintiff claimed title was fatally defective.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 320, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 5, Pbila. Co., March. T., 1904, No. 806, on verdict for defendant in case of John Meloy, Jr., by his father and next friend, John Meloy, Sr., and John Meloy, Sr., v. The Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries.- Before Ralston, J. The opinion of the Supreme Court states the facts. Yerdict and judgment for defendant. Plaintiff appealed.

<p>Practice, C. P. — Discontinuance—Leave to discontinue.</p> <p>A discontinuance in strict law must be by leave of the court, but it is the universal practice in Pennsylvania to assume such leave in the first instance.</p> <p>Causes which will move the court to withdraw its assumed leave and set aside the discontinuance are addressed to its discretion and usualjy involve some unjust disadvantage to the defendant or to some other interested party.</p> <p>The fact that a case is at issue on a plea of set-off, is not sufficient to prevent the plaintiff from taking a nonsuit; and without some other hardship, the samo rule applies to a discontinuance in actions at law. The practice in equity is somewhat stricter.</p> <p>Where a rule is taken by a defendant to strike off a discontinuance, and this rule is heard and discharged by the court, such action by the court is equivalent to a grant of leave to discontinue, and thereafter the court is under no obligation to reconsider the matter on a new and amplified application by the defendant. If the defendant failed to present his whole case at the hearing of the rule, as he was bound to do, the fault or misfortune was his own.</p>

<p>Principal and surety — Subcontractor—Contractor’s bond — City of Philadelphia — Judgment.</p> <p>In an action on a bond given to the city of Philadelphia by a contractor for a school building to secure subcontractors and material-men, whore it appears that judgment had been entered by default against the contractor for the price of the material furnished by plaintiffs, as set forth in the contract, the plaintiffs may offer in evidence the contract and the record of the judgment against the contractor to establish the amount of their claim, without producing any independent evidence as to the market value of the work and materials furnished. Independent evidence would only be required if mistake or collusion between the contractor and the plaintiffs to defraud the surety were shown.</p> <p>In such a case the defendant cannot claim that the action is premature because the contract provided that the plaintiff was to be paid only in proportion as the contractor received his payments from the city, and that five per cent was to be retained for a year after final payment by the city, and that this time had not expired. The surety’s undertaking is to pay what becomes due from the contractor to the plaintiff on the former’s default. The judgment against the contractor is therefore conclusive.</p> <p>In an action by a subcontractor against a surety in a penal bond given by a contractor, where the statement of claim avers distinctly that a bond of indemnity against costs had been given by the use plaintiff, and been approved by the city solicitor, and the defendant raises no issue as to this averment either by plea in abatement, or notice under special matter, but files the general plea, the plaintiff is not called upon at the trial to prove affirmatively the approval of the indemnity bond by the city solicitor.</p>

Appeal, No. 225, Jan. T., 1906, by Albert M. Sower, from decree of O. C. Piula. Co., Oct. T., 1902, No. 494, dismissing exceptions to adjudication in Estate of Charles G. Sower, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Supreme-Court. Error assigned was in dismissing exceptions to adjudication.

<p>Insurance — Life insurance — Tontine insurance — Assignment of policy— Beneficiary — Husband and wife — Gift.</p> <p>A decedent having a policy of insurance on his life payable to his estate, made a voluntary assignment of it, in writing, to his wife. The assignment provided that if the insured survived the tontine period of fifteen years, the assignment should be void. The policy gave to the insured an option at the end of fifteen years to withdraw in cash the accumulated surplus apportioned by the company. This option was to be exercised by the insured without the consent of the beneficiary. It was exercised by the insured, and after the payment the policy and the original assignment remained in the custody of the decedent. There was testimony tending to show that, at the time the insured exercised his option and received the accumulated dividends from the company, he and his wife went together to the office of the company in pursuance of notice sent to both, that she there joined with him in signing the papers necessary to effect the option exercised; that the agent of the company told them, in reply to their inquiries, that the policy would continue in force and that she would remain the beneficiary; that this was what the decedent desired, and that it was the understanding and agreement between him and his wife at that time. Held, that no formal reassignment of the policy to the wife was necessary, and that after the death of her husband she was entitled to the proceeds of the policy.</p> <p>Wherever a person has the legal right to dispose of property and means to do so, the form of the instrument adopted for the purpose, if at law ineffectual, will be disregarded, and it will be reformed so as to make it effectual.</p>

<p>Executors and administrators — Trusts and trustees — Compensation— Commissions — Services rendered.</p> <p>The rule as to commissions to trustees in all cases is compensation for the responsibility incurred and for service and labor performed. In arriving at the compensation to which a trustee in any capacity is entitled, it is necessary to consider the amount of the estate, the labor performed and the responsibility imposed. These are the elements which determine not only the amount of the compensation, but the right to compensation at all. The mere fact that a person is a trustee will not support a demand on his part for compensation.</p> <p>There is no rate of percentage fixed by-law as compensation for a trustee. In many cases a gross sum is awarded, and this is in some respects preferable, as it leads to an inquiry disclosing the extent of the services rendered by the trustee which greatly assists the court in fixing the true compensation due him.</p> <p>Where executors with a power to sell real estate with reservation of ground rent, sell real estate for part cash and part reservation of ground rent, and it appears that they have effected the sale through a real estate agent who has been paid out of the estate for his services, and it also appears that the executors have received commissions on the rentals for a considerable period, they will not be awarded commissions on the capitalized principal of the ground rents reserved.</p> <p>In such a case as to the consideration for the real estate represented by the ground rent reserved, there was no conversion of personal property, and the executors would have to deal with it and account for it in the future as real estate and not as personalty. In this view, therefore, they would have no right to commissions upon it.</p> <p>Mr. Justice Fell dissents.</p>

<p>Appeal, No. 91, Jan. T., 1906, by plaintiff, from decree of C. P. No. 1, Phila. Co., Deo. T., 1901, No. 1627, dismissing bill in equity in case of The Wolff Chemical Company v. City of Philadelphia, John Weaver, Mayor of Philadelphia, John AL Walton, City Controller, et al.</p> <p>Bill in equity for an injunction. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Constitutional law — Legislature—Extra session — Proclamation of governor — Act of February 7, 1906, P. L. 7 — Municipalities.</p> <p>Where the governor has issued a proclamation convening the general assembly in extraordinary session to meet on a day stated to consider legislation upon certain subjects designated, he may subsequently, before the date of the meeting, issue another proclamation sotting forth additional subjects for the consideration of the general assembly at its extraordinary session.</p> <p>The Act of February 7, 1906, P. L. 7, entitled, “An Act to enable cities that are now, or may hereafter be, contiguous or in close proximity, to be united, with any intervening land, other than boroughs, in one municipality; providing for the consequences of such consolidation., the temporary government of the consolidated city, payment of the indebtedness of each of the united territories, and the enforcement of debts and claims due to or from each,” is within the scope of one of the reasons stated by the governor for calling an extra session of the legislature in 1906, viz.: “to enable cities that are now, or may hereafter be contiguous, or in close proximity, including any intervening land to be united in one municipality in order that the people may avoid the unnecessary burdens of maintaining separate municipal governments.”</p> <p>Constitutional law — Local legislation — Municipalities—Union of municipalities — Act of February 7, 1906, P. L. 7.</p> <p>The Act of February 7, 1906, P. L. 7, entitled “An Act to enable cities that are now, or may hereafter be, contiguous or in close proximity, to be united, with any intervening land other than boroughs, in one municipality; providing for the consequences of such consolidation, the temporary government of the consolidated city, payment of indebtedness of each of the united territories, and the enforcement of debts and claims due to or from each,” dpes not violate section 7, article III of the constitution forbidding local or special legislation.</p> <p>The fact that at the time of the passage of the act of February 7, 1906, the cities of Pittsburg and Allegheny were the only ones in the state to which the legislation would technically apply, does not alone make the act unconstitutional. The act applies to coming years as well as to the present.</p> <p>Constitutional law — Due process of law-rAnnexation of cities.</p> <p>The Act of February 7, 1906, P. L. 7, is not contrary to that “due process of law,” guaranteed by the Federal constitution, in providing that the electors' of the consolidated territory shall determine the question of the annexation of the lesser city, instead of permitting the majority of the electors of the lesser city to decide it.</p> <p>Constitutional law — Article III, sec. 13 of the constitution — Extension of term of public officer — Annexation of cities.</p> <p>The tenth section of the Act of February 7, 1906, P. L. 7, which will have the effect of extending the term of councilmen in the city of Allegheny, does not violate article III, sec. 13 of the constitution, which provides that “ no law shall extend the term of any public officer.”</p> <p>The substitution of a new system for one under which government has been previously carried on is always accompanied with some shifting of offices and duties, and some inconvenience. To reduce this to a minimum by temporary adjustment of the changes is the province of a schedule.</p>

<p>Appeal, No. 384, Jan. T., 1905, by plaintiff, from decree of C. P. No. 1, Phila., Co. Sept. T., 1904, No. 891, sustaining demurrer to bill in equity in case of Philip Keane v. John W. Moffly, Simon G-ratz, Nicholas Brice, Charles W. Henry, Wm. H. Arrott, Samuel F. Houston, Wm. Botch Wister, E. J. Berwind, John T. Terry, Thomas J. Drummond and W. K. Stager, known as the “ Moffly Beorganization Committee of the Consolidated Lake Superior Company,” and the Lake Superior Corporation.</p> <p>BiHMo^equityJLr a, mandatorvJmyanddon.</p> <p>The avermentTof the bill and the grounds of demurrer are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was decree sustaining the demurrer.</p>

<p>Municipalities — Streets—Electric railway company- — Negligence.</p> <p>The legislature has authority to authorize an electric railway company to lay its tracks and operate its lines on the street of a municipality; and it may do so directly or by authorizing its agent, the municipality, to grant the authority, and it may empower the municipality to accompany the grant with such restrictions and limitations as may seem proper to protect the public in the use of the highways of the city. There is a duty, however, imposed upon the company, to exercise the power conferred by the municipality in such manner and way as not unnecessarily to obstruct the highway or interfere with the purpose for which it was primarily constructed.</p> <p>Legislative authority which will shelter an actual nuisance in a street must be express, or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the legislature must have Intended and contemplated the doing of the very act in question.</p> <p>If a city permits a street railway company to construct its railway on the streets of a city in such a way as to render the use of the streets by the public unsafe and dangerous, the city will be responsible for injuries resulting therefrom.</p> <p>Where a street railway company having authority from a city to use a street, plants a trolley pole in the middle of the street, and the conical base of the pole is about two and one-half feet in diameter at the street level, and about fifteen or eighteen inches in height and there is no artificial light on the pole nor in its vicinity, the city is responsible for the death of a man caused by the upsetting of a wagon on a dark night by the base of the pole. In such a case the fact that there was ample space between the curb and pole for teams to pass and repass, does not alter the case.</p> <p>Evidence — Opinion of witnesses.</p> <p>Where mere descriptive language is inadequate to convey to the jury the precise facts, or their bearing on the issue, a witness may be allowed to supplement his description by his opinion, to put the jury in position to determine the facts in issue; but when the circumstances are such that they can be fully and accurately described to the jury, and their bearing on the issue, estimated by persons without special knowledge or training, opinions of witnesses expert or other, are inadmissible.</p>

<p>Appeal, No. 192, Jan. T., 1906, by plaintiff, from order of C. P. No. 1, Pliiia. Co., March T., 1905, No. 576, refusing to take off nonsuit in case of Edward Perry v. George F. Payne and Charles G. Wetter, trading as George F. Payne & Company.</p> <p>Assumpsit on a bond. Before Beitler, J.</p> <p>The facts are stated in the opinion of the Supremo Court.</p> <p>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. 202, Jan. T., 1906, by plaintiff, from judgment of O. P. Montgomery Co., March T., 1905, No. 11, on verdict for defendant in case of Perkiomen Railroad Company v. Albert Bromer.</p> <p>Ejectment for land in Schwenksville. Before "Weand, J.</p> <p>At the trial, when the plaintiff was on the stand, the following offer was made:</p> <p>We propose to prove that anterior to the execution of the release offered in evidence by the plaintiff an agreement was entered into between him and the Perkiomen railroad, represented by Anthony IT. Seipt, its president, by which, in consideration of his executing that release they would pay him $1,500 and give him an overhead crossing to his lands on the eastward of the proposed railroad; that when the release was drawn up and brought to him for execution he objected to it because of the omission of any stipulation as to the crossing; that Mr. Seipt then informed him that the insertion of such a stipulation in that release was not necessary because the railroad company was bound to give him a crossing anyhow, and that it was not customary to insert such a stipulation in a release ; that thereupon, and upon the faith of Mr. Seipt’s state.ment, he executed that release; that thereafter, about four months, a subsequent agreement was entered into by him with the said railroad, in the person of its president, Anthony H. Seipt, by which it was stipulated and agreed, that if he would not insist upon the construction of that overhead crossing the railroad company would suffer him to use and occupy the land then in his possession and included in that release until the railroad company did build him an overhead crossing, and that he would not have signed said release except upon, the faith of •those representations by Mr. Seipt.</p> <p>Mr. Evans : Objected to.</p> <p>The Court: Are you basing this offer on the fact that Mr. Seipt was the president, or was the agent, or what ?</p> <p>Mr. Freedley : Basing it upon the fact that he was the person who represented the railroad company in these negotiations, being by office president of the railroad company and its authorized agent.</p> <p>The Court: I want to know whether you are basing it upon the fact that he was the agent who negotiated this transaction, or whether he was the president, or whether you are taking both %</p> <p>Mr. Freedley: We are taking both of them; taking the position that he was the only party that we knew in this transaction.</p> <p>The Court: The objection is, that the offer as made ought to be modified. Mr. Freedley in bis offer of the two transactions states that a contract was made; I suppose you mean a parol contract ?</p> <p>Mr. Freedley: Yes, sir.</p> <p>Mr. Evans: We object to this offer because it is an attempt on the part of the defendant to change and modify a written instrument; that all that is proposed has been swallowed in the deed that afterwards folloAved.</p> <p>The Court: The objection is overruled. Plaintiff excepts. Bill sealed. [10]</p> <p>Mr. Strassburger: “ Q. On the day that the release, was executed, Avhat took place, January 22, 1869 — Avhat took place then ? A. On that day Mr. Seipt, the president and agent of the Perkiomen Railroad Company, in company with ’Squire William Fox, came to my place of business and said, now we are ready to close up that transaction, and he said here is your release that you will have to sign. I read that release carefully, and I said, Mr. Seipt, this release don’t say anything about that crossing which you agreed that I should have; you don’t mention it at all. Mr. Seipt said the privilege of a crossing is not a matter of damages ; he said the law compels us to give any man a crossing whose lands were cut in two parts; that seemed plausible to me; I believed it at the time, and upon that explanation I signed the release.</p> <p>“ Now, about four months after that, some time in May, I think, I met Mr. Seipt, the president and agent of the Perkiomen Railroad Company. I met him on the cars. I said, Mr. Seipt — ”</p> <p>Mr. Evans : We object to this witness testifying to any matter that occurred betAveen him and Mr. Seipt relating to the construction of a crossing or to the use of this land unless •either it was in writing by the company or the authority that Mr. Seipt was acting under is shown.</p> <p>The Court: The objection is overruled for the present. Plaintiff excepts. Bill sealed. [11]</p> <p>Mr. Strassburger: “ Q. Well? A. I asked Mr. Seipt how about my crossing; he told me he would have it ready for me in time to get in my crops from the lowland; why, he said, Mr. Bromer, you know we are trying with all our might to have the railroad extended to Schwenksville and run the first train on the fourth of July morning; we are short in labor, and it is not hardly possible to get that crossing ready for you. lie said, Mr. Bromer, have you no way to get out; could you find a way to get down there to get your crops ? I said, yes, I can go over the bridge and the mill property and the Perkiomen, and get it off that way, but I said I could hardly haul a heavy load and it is very unhandy. Well, he said, Mr. Bromer, I wish you would do that, and in the next season you shall have your crossing ready in time for harvest. Well, I considered about this a little, and with the barn and yard as it was then, it was certainly of great importance to me, and especially the barn, and I said, Mr. Seipt, how would this do ; I -would be willing; I would be willing to do without a crossing as long as you let me use this ground and the barn ;. if I can have the use of that, I will go around and bring over my crops in that way, but, I said, whenever you make me a road, and you want to occupy this ground, I have no longer to build a barn except for the lowland which I have to fill up ; then I want my crossing and must have it. He said that was all right; he seemed to be very much pleased ; he seemed to be more pleased than I was; he extended his hand and said, Mr. Bromer, that is a bargain, and this was nearly thirty-six years ago, and I have kept- my side of the bargain forthwith.”</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (10, 11) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 122, Jan. T., 1906, by plaintiff, from judgment of C. P. Del. Co., Sept- T., 1904, No. 174, for defendant non obstante veredicto in case of Joshua C. Taylor, Administrator of the Estate of Edward L. Moudy, v. Penn Steel Castings & Machine Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict for plaintiff for $3,100. The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Street railways — Turnpike road company — Contract—Mandatory injunction.</p> <p>A court of equity will by mandatory injunction enforce specific performance of a contract between a street railway company and a turnpike road company, so as to compel the former to lay its tracks at the height and in the location specified in the contract, and to construct a solid and smooth surface between the track and the improved portion of the road as stipulated in the contract.</p> <p>Where such a contract provides that the external portion of the track shall be placed twenty feet from and parallel with the center line of the Telford portion of the road, except in running over or under bridges, or where it must of necessity be less than twenty feet, and it appears that the tracks were laid at one point in the center of the road, and it also appears that in many places the outside rail was laid with the knowledge and acquiescence of the turnpike company eighteen feet from the center line, the court will only enjoin the removal of the tracks only at the point where they were placed in the center of the road.</p>

<p>Appeal, No. 389, Jan. T., 1906, by plaintiffs, from decree of C. P. Del. Co., June T., 1905, No. 152, dismissing bill in equity in case of The Chester, .Darby & Philadelphia Railway Company, Union Railway Company and Tbe Chester Traction Company v. Borough of Darby, otherwise known as the Burgess and Town Council of Darby Borough.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in tbe opinion of tbe Supremo Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeals — Assignments of error — Railroads—Equity.</p> <p>. On an appeal from a decree dismissing a bill in equity filed to restrain a railroad company from constructing a siding in a street, where it appears that it was conceded in the court below that the company had the right to construct its main line in the street, and no assignment of error raises a question to the contrary, the appellate court will not consider an argument against such right.</p> <p>Railroads — Use of streets — Right to construct siding.</p> <p>A railroad company which has the right to maintain tracks in a street 100 feet wide, may construct a siding from its main tracks, if such siding wall not constitute an unreasonable obstruction to public travel.</p> <p>Mitchell, C. J., Brown and Mestrezat, JJ., dissent.</p>

Appeal, No. 198, Jan. T., 1906, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 3,228, dismissing bill in equity in case of Thomas Hutchinson v. Hugh Dennis and Margaret Dennis, his wife, and James Hutchinson and Margaret Hutchinson, his wife, and the Colonial Trust Company. Bill in equity to determine title to moneys deposited in a saving fund, to declare a trust in real estate and to cancel deeds. The bill alleged: 1.

<p>Appeal, No. 207, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila, Co., Sept. T., 1904, No. 301, on verdict for plaintiff in case of Mary Emma Wood v. Catherine Praul and Maud R. Praul.</p> <p>Ejectment for a store and dwelling at Logan, Philadelphia.</p> <p>At the trial it appeared that prior to March 20, 1904, George R. lindes was the record owner of the property in question. He died on that date leaving a will by which he gave all the residue of his estate to his sister, the plaintiff. The defendant offered testimony which tended to show that she and her daughter, the other defendant, went to live with testator, who was her brother, in the year 1892, and that she lived with him until his death. She claimed that in 1892 he gave the property to her by parol gift, and that after the gift the testator lived with her.</p> <p>The court charged in part as follows:</p> <p>On March 14, 1888, George R. Landes became the owner of the property in question, it having been conveyed to him by deed. On March 20, 1904, George R. Landes died, leaving a will dated January 25, 1901, which contains the following clause:</p> <p>“ All the rest, residue and remainder of my estate, real, personal and mixed, of what kind or nature soever, and wheresoever, the same shall he at the time of my death, I give, devise and bequeath unto my beloved sister Mary Emma Wood, her heirs and assigns forever.”</p> <p>There is no specific disposition by the yfill of the property in question, and consequently, under the will, Mary Emma Wood, the plaintiff in this case, acquired the title to the property.</p> <p>[The defendants rely upon a verbal contract made between Catherine R. Praul and Mr. Landes, the testator, iff 1892, whereby he gave the property to Mrs. Praul. Maud R. Praul, the daughter of Catherine R. Praul, testified that Mr. Landes invited his sister, Mrs. Praul, to come to .live in the house, permitting her to run the shop on her own account and that she kept house for him. This witness was, at the time this happened, fourteen or fifteen years of age, and her testimony is not satisfactory as establishing the title of Catherine R. Praul.] [4]</p> <p>Catherine R. Praul came to the house with her daughter in 1892, and remained there until the testator’s death, and until the present time. The testator, however, had lived in the house for some years before 1892, and continued to live there until the time of his death.</p> <p>[In the opinion of the court, the defendants have not made out such a title as would justify or support a verdict in their favor; consequently, I instruct you to render a verdict for the plaintiff.] [5]</p> <p>The plaintiff is further entitled to recover mesne profits during the time that this defendant occupied the premises after the death of Mr. Landes. The defendant’s real estate expert testified that the value of the property was $25.00 a month, and the plaintiff is willing to accept that as the correct amount; consequently, you will render a verdict for the plaintiff and assess mesne profits at the rate of $25.00 a month.</p> <p>Maud R. Praul is not to be considered as having been in possession of the premises, as she was simply there with her mother. [You will render a verdict in favor of Maud R. Praul, the defendant, and against the other defendant, Catherine E. Praul.] [7]</p> <p>Yerdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (2, 3) rulings on evidence, excluding opinion of neighbors and (4, 5, 7) portions of opinion as above, quoting them.</p>

<p>Appeal, No. 11, Jan. T., 1907, by plaintiffs, from judgment of C. P. Bucks Co., Sept. T., 1901, No. 21, for defendant non obstante veredicto in case of Simon V. Lefferts v. Richard L. Dolton.</p> <p>Assumpsit to recover a balance of purchase money on real estate. Before Stout, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict for plaintiff for $10,200.79. 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>Trusts and trustees — Adjudication—Confirmation of adjudication.</p> <p>Where a decree has been regularly made that a trustee shall turn over to his successor in the trust the balance found to be in his hands on the adjudication of his accounts, and no exception has been taken to the decree, and it has been confirmed absolutely, the court may make an order on the trustee to pay his successor, without a formal separate proceeding by the successor in the trust, showing service of a certified copy of the award, demand for payment, and noncompliance with the demand.</p>

<p>Negligence — Municipalities—Defective sidewalks — Contributory negligence.</p> <p>Where a woman carries a couch on a sidewalk of a city in such a way that her view ahead is obstructed, and she falls in a hole in the middle of the pavement, she is guilty of contributory negligence, and cannot recover from the city damages for her injuries.</p>

<p>Appeal, No. 253, Jan. T., 1906, by plaintiffs, from order of O. P. No. 5, Phila. Co., June T., 1904, No. 647, refusing to take off nonsuit in case of Josiab Kochesperger by his next friend, James ~W. Kochesperger, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries to a boy six years old. Before Martin, 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 in refusing to take off nonsuit.</p>

Appeal, No. 52, Jan. T., 1906, by defendant, from decree of C. P. York Co., Aug. T., 1905, on bill in equity in case of Simeon M. Jones v. Thomas Weir. Bill in equity to dissolve a partnership and for a receiver. See Jones v. Weir, 213 Pa. 135. From the record it appeared that defendant bought the York Candy Company’s factory for $51,000 worth of the American Stogie Company’s stock at par, paying no cash, but giving a mortgage on Altoona property for $20,000.

Appeal, No. 310, Jan. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1901, No. 1,919, dismissing exceptions to report of referee in case of Harry C. Findlay and George Findlay, by his father and next friend, Harry C. Findlay, v. City of Philadelphia. Exceptions to report of John M. Scott, Esq., referee. Errors assigned were in dismissing exceptions to report of referee.

<p>Insurance — Title insurance — Definition.</p> <p>Title insurance is an agreement whereby the insurer, for a valuable consideration, agrees to indemnify the insured in a specified amount against loss through defects of title to real estate wherein the latter has an interest, either as purchaser or otherwise.</p> <p>Where a person in possession of land, and claiming an absolute fee simple in it, applies to a title insurance company in good faith for insurance of the title, and the company issues to him a policy insuring him against defects, unmarketability, liens and incumbrances as of the date of the policy, and thereafter it is decided in partition proceedings in the orphans’ court that the insured has only a half interest in the land, and as a result of such proceedings the insured voluntarily surrenders the premises to the purchaser at a judicial sale therein, the insured may recover the value of the half interest from the company, and the latter will not be heard to allege that as the insured never had title to the half interest, he consequently suffered no loss.</p> <p>Fell and Brown, JJ., dissent.</p>

<p>Negligence — Automobiles—Ownership of machine — Negligence of employee — Evidence.</p> <p>In an action against an owner of' an automobile to recover damages for personal injuries resulting from being run down by the machine, the plaintiff must show not only the fact that the person in charge was defendant’s servant, but the further fact that he was at the time engaged on the master’s business, with the master’s knowledge, and by the master’s direction. Evidence of the mere ownership of the machine is insufficient.</p>

<p>Negligence — Municipalities—Evidence—Record.</p> <p>In an action by a woman against a municipality to recover damages for personal injuries, the plaintiff claimed that she was suffering from a particular physical disturbance resulting from a fall which was the foundation of the action. The defendant claimed that about ten years prior to the accident plaintiff had sued a borough to recover for personal injuries, and that in the suit against the borough she had claimed and recovered damages for the same physical disturbance. The plaintiff denied that she had made any such claim in a prior suit. The city offered in evidence the record of the prior suit, and also as a witness, the stenographer who had taken the testimony in that suit, to show by his notes that a physician, since deceased, had testified on behalf of the plaintiff that she was suffering from the physical disturbance complained of in the second suit. The first suit was brought prior to the Act of May 8, 1895, P. L. 54, which requires that the rights of husband and wife should in cases of injuries to the wife be redressed in one action. It was objected to the admission of the testimony that as the husband in the later suit was claiming to recover in his own right, the record of the earlier suit, which was solely for the wife’s benefit, was res inter alios acta, and consequently not admissible. Held, that the objection was not well founded, inasmuch as the testimony was not offered to prove the substantive fact of the existence of the physical disturbance, but to contradict the plaintiff, and to show that she adopted the declarations and admission of the physician as her own.</p> <p>A record may be admitted in evidence in favor of a stranger against one of the parties, as containing a solemn admission, or judicial declaration by such party in record to a certain fact. But, in that ease, it is admitted not as a judgment conclusively establishing the fact, but as the deliberate declaration or admission of the party that the fact was so. It is therefore to be treated according to the principles governing admissions, to which class of evidence it properly belongs.</p>

<p>Appeal, No. 90, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 2,324, on verdict for plaintiff in case of Harry Lee v. James Dobson.</p> <p>Trespass to recover damages for personal injuries. Before "WlLTBANK, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict for plaintiff for $12,000, upon which judgment was entered for $6,000, all above that amount having been remitted.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Landlord and tenant — Lease—Wharf property — Cost of cleaning dock— Repairs.</p> <p>Where land abutting on a navigable river is described in a lease as exactly coterminous with a pier-constructed thereon, and as extending into the river as far as the port warden’s low water line, and the lease contains an additional grant of wharf property extending into the river from the previously described premises from port warden’s low water line to port warden’s pier headline, “together with all water rights appurtenant thereto,” the landlord cannot compel the tenant to pay the cost of cleaning the adjoining dock required under the law to be paid by the owner of the pier.</p>

Appeal, No. 158, Jan. T., 1906, by William E. Fritz, from decree of O. O. Montgomery Co., Oot. T., 1903, No. 21, dismissing petition for an order to pay money in Estate of Sarah B. Dull, deceased. Petition for an order to pay the principal of a legacy charged on land.

Appeal, No. 195, Jan. T., 1906, by defendant, from judgment of C. P. Lehigh. Co., June T., 1905, No. 22, on verdibt for plaintiff in case of Eli Laubach v. The Coplay Cement Manufacturing Company. Trespass to recover damages for personal injuries. Before Trexler, P. J. The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $2,375. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Road law — Damages—When the right to damages accrues — Plotting a street — Opening a street.</p> <p>The right of the individual to compensation for land subjected by municipal authority to public use, can only arise when the land has been taken. Until this occurs the owner has not been disturbed in his possession, and is consequently without injury. The plotting of a street through the land of a private owner is not a taking of the land; it is simply the expression of a purpose to take it when occasion for the opening of the projected street arises.</p> <p>Where a street previously plotted has been actually opened for public use, the fact that no compensation can be recovered for the removal of any buildings erected on the bed of the proposed street after the same had been plotted, is not to be considered as a circumstance affecting the market value. Gamble v. Philadelphia, 162 Pa. 413, distinguished.</p>

<p>Appeal, No. 394, Jan. T., 1906, by defendant, from judgment of C. P. Montgomery Co., June T., 1906, No. 53, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Scott Manufacturing Company v. George C. Morgan.</p> <p>Scire facias sur mechanic’s lien.</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>

<p>Appeals, Nos. 345, 347, 350 and 351, Jan. T., 1906, by plaintiff, from decrees of C. P. Montgomery Co., June T., 1905, Nos, 8, 9, 11 and 16, on bills in equity in cases of Joseph W. Anderson et al. v. Board of Township Commissioners of Lower Merion Township.</p> <p>Bills in equity for an injunction.</p> <p>The court, Swartz, P. J., and Weand, J., filed the following adjudication:</p> <p>Lower Merion is a township of the first class. The board of township commissioners constructed sewers in certain sections of the township. Assessments for benefits were made under the act of February 23, 1905, against properties situate in said sections or districts to collect the cost of the construction of the service sewers. The several bills in equity were filed by property owners to restrain the collection of the assessments made against their properties. It is contended that the assessments are illegal because the proceedings under which they were made are based upon an act of assembly that is in conflict with the constitution of the state; secondly, that the sewers constructed were paid for'by loans created under a vote of the electors of the township and by an ordinance of the commissioners, and that such action was conclusive against any further assessment to pay for the construction of the sewers; and thirdly, that the methods of assessment invoked are illegal, and cannot be enforced even if the properties are liable to assessment.</p> <p>In our findings and conclusions we have not separated the cases. Bills Nos. 8, 9 and 16 relate to properties located within the limits of the third sewer district. Bill No. 11 relates to properties located either in the first district or in the second district.</p> <p>In districts one and two the assessments are made in proportion to the frontage of each property abutting oh a sewer, while in district three, the assessment against each property is determined by viewers appointed by the board of township commissioners.</p> <p>Where the findings and conclusions did not relate to all the bills there is no difficulty in referring them to the proper bill when we keep in mind the two district methods of assessments —the one the foot front rule; the other assessment by viewers appointed by the township commissioners.</p> <p>FINDINGS OF FACTS.</p> <p>1. Lower Merlon is a township of the first class and became such in the year 1900.</p> <p>2. On April 16, 1902, the board of township commissioners passed an ordinance to establish and maintain a system of sewers, culverts, pipes and drainage to dispose of domestic drainage and sewage in said township. A system of sewers was designated on plans and maps and was subsequently constructed. The work was completed prior to February 23, 1905, but within six months of said date. The action of the township commissioners was in pursuance of the authority conferred upon them by the act of the general assembly, approved May 24, 1901, P. L. 294.</p> <p>3. The township commissioners ascertained that the cost of the sewer system would amount to more than two per centum of the last preceding assessed valuation of taxable property in said township. They resolved to submit to the electors the question, whether an indebtedness of $250,000 should be incurred “ for the purpose of paying the cost of constructing a system of sewers and drainage in said township as heretofore planned and adopted, including the pumping engines and necessary appurtenances.” A majority of the votes polled in the whole township was in favor of incurring the said indebtedness. After this vote of the electors, the township commis- - sioners on May 20, 1903, accepted the bids of the contractors for the construction of a portion of the system of sewers. Bonds were issued for the purpose of securing the loan of $250,000, and these were negotiated and the money was realized by the township commissioners.</p> <p>4. On June 17, 1903, the board of township commissioners appropriated $250,000, or so much thereof as may be necessary, to the committee on health and drainage for the purpose of constructing a system of sewers for said township in accordance with an ordinance passed and approved April 16, 1902.</p> <p>5. It was ascertained that the loan of $250,000 was insufficient to pay for the projected sewer system, and on June 1, 1904, the board of township commissioners passed an ordinance authorizing an additional loan of $200,000 to complete the sewer system. Bonds to this amount were also negotiated, and on July 20, 1904, the board of township commissioners, by ordinance, appropriated $140,000 out of said second loan, to the committee on health and drainage for the purpose of sewer construction.</p> <p>6. The entire cost of the sewer sj^stem, including pumping stations, receiving tanks and discharge pipes was $424,741.75. All of this sum was paid or provided for from the proceeds of the two loans aforesaid. This sewer system so constructed and paid for is the identical system now in use. The assessments in controversy are for benefits, and the commissioners demand from the property owners the payment of over $300,000 of the said expenditure of $424,000.</p> <p>7. By ordinance of the board of township commissioners, property owners abutting on said sewers could bo required to connect with and use the sewers of the township. In pursuance of said ordinance the owners of property abutting on the said sewers were notified to connect their respective buildings with said sewers. Failure to observe the order subjected the property owner to certain penalties. The board of township commissioners .also established a rate of annual charges for all persons who connected with the sewers. These annual sewer charges will produce an amount somewhat in excess of the cost of operating and maintaining the sewer system. This action on the part of the township commissioners, requiring connections and annual rentals, was all taken prior to the passage of the Act of February 23, 1905, P. L. 22, and the action was taken by authority of the Act of May 24, 1901, P. L. 294.</p> <p>8. The ordinance providing for the issuing of the bonds also states that “ an annual tax is hereby levied upon the taxable property within the township of Lower Merion as the same shall appear by the assessment and valuation thereof,” .for the payment of the interest and the principal of said bonds as they shall mature. These taxes were so levied on June 24, 1903, and June 1, 1904, to cover a period of twenty-nine years, during which time the bonds were to be liquidated.</p> <p>9. The sewer system so constructed under the Act of May 24, 1901, P. L. 294, passed in part over private lands, the said act having given the authority for such construction. The act also provided a method of assessing the damages for land occupied where the lines of sewers were not located on public roads. The court of common pleas was to appoint the jury. Several juries were appointed by said court to assess the damages for injury to private property. The complainant for the estate of Wistar Morris (Bill No. 16) had a jury appointed, and the jury in that case awarded damages in the sum of $1,500. The report was filed on February 6, 1905 — that is, before the passage of the act of February 23, 1905. The township commissioners took an appeal from the award.</p> <p>10. The money to pay for the entire system of sewers was in the hands of the township commissioners as early as July 20, 1904, when the last appropriation was made to the committee on health and drainage. The annual rates for the use of the sewers were established apparently as early as December 2, 1903. The construction of the sower system was completed, the money for its cost was paid or provided for, and its operation was assured by the enforced connections and the rentals for its maintenance. This was the condition of affairs for some time prior to February 23, 1905, although less than six months intervened between the completion of the system and the date just named.</p> <p>11. On March 1,1905, an ordinance was passed by the township commissioners in pursuance of the act of the general assembly of February 23, 1905. According to this ordinance there is no change in the sewer system in the slightest degree, either in construction or operation, but liability of the property owners for the costs of construction is changed. Under the new ordinance the cost of the service sewers — $300,000— is to be paid by the property owners benefited, while under the original proceedings the entire cost was placed on all the landowners within the township.</p> <p>The sewer system embraces about 5,300 acres of ground. By the new ordinance this territory is divided into three sewer districts. No. 1 contains 900 acres, upon which 1,086 houses are erected. No. 2 contains 900 acres, and about 247 houses. No. 3 contains 3,500 acres, and about 150 houses.</p> <p>In sewer districts Nos. 1. and 2 the ordinance provides for the assessment according to the foot frontage rule. The assessment, however, is only for the cost of the construction of service sewers, that is, the large sewers when used as service sewers are computed at the cost of eight-inch branch sewers. No charge is made .for main sewers not used as service, sewers, and no charge is made for the costs of the pumping star .tions. The assessment, basis in No. 1 is $141,682, while the whole cost of the sewer system chargeable,to this district is nearly $224,000. The assessment basis for No. 2 district is $60,532, while the cost of the whole system in this district is over $64,000. In,No. 1 district the difference between the assessment basis and the actual cost of the system is very; marked, because the pumping stations, tanks and discharge pipes constitute a large part of the whole cost, while in sewer district No. 2 there are no expenses of this character; the sewage is carried off by gravity alone.</p> <p>In sewer district No. 3 the ordinance provides for an assessment according to benefits, these benefits to be determined by viewers appointed by the board of township commissioners. The assessment basis is $127,755, the whole cost $136,752.</p> <p>12. In. sewer district No. 2 the lines of pipes follow the streets, and do not pass over private land. With a few exceptions this is also true of sewer district No. 1. The only deviation from the streets for any extended distance occurs where a line of pipes runs through lands of Joshua L. Bailey. There is, however, no assessment for this line over private ground. Mr. Bailey'is assessed for the sewer line on. Lancaster avenue, and also for the line on Church street or Lin wood avenue, áñd his property abuts on these streets. The same is true where a line of pipes passes over a section of the Haverford college grounds. The college is not assessed for this through pipe line, but is assessed for the line along Rail Road avenue, upon which the college grounds abut.</p> <p>In sewer district No. 3 the pipe lines run over private property at numerous points. In many cases where the line runs through a private tract that property also abuts on a sewer line on a street. In some cases, however, a pipe line passes through a property where that property does not have a sewer line on a street or on any boundary line of the property. Properties, whether in the one situation or the other, were assessed for benefits by viewers appointed by the board of township commissioners.</p> <p>13. The properties assessed by the foot front.rule in sewer districts one and two are urban and not rural. The only property used for farming purposes that is assessed in No. 2 is the Lodge tract. This tract has a frontage of 610 feet on Bala avenue, a line wide street. The property is urban, notwithstanding its present use. The neighboring properties to the east and west and on the opposite side of the avenue are urban. The villages of Bala and Cynwyd form this sewer district. There are no farm lands in district No. 1, abutting on any sewer line. The villages of Eosemont, Bryn Mawr, Haverford and Ardmore constitute this sewer district, and there are no intervening rural lands between the end of one of these villages and the beginning of the next. The whole territory in districts Nos. 1 and 2 is devoted to or is ripe for residential purposes, although some of the owners may be unwilling to sell presently. Where the streets and roads are not lined with built up houses and stores, the lands are devoted to line residential homes, ornamented with trees and shrubbery, and enjoy all the comforts of city homes, so far as water pipes, street lights, police and fire protection, and fine streets are concerned. Tiiese houses are occupied very largely by business and professional men engaged daily In the city of Philadelphia.</p> <p>14. In assessing for benefits in sewer districts Nos. 1 and 2, the entire cost of the service sewer in each district was divided by the whole number of feet of sewer frontage in the district, and the quotient was taken as the benefit per foot to each property owner whose land abutted on the sewer system. By this computation each foot of frontage was charged a benefit of ninety cents. Apparently the computation in each district produced the same quotient of ninety cents.</p> <p>The natural surface of the various streets is somewhat irregular. There was diversity in the conformation of the ground, and upon some streets or lines the sewer trench at sections was more than thirty feet deep, while on other streets or lines the depth was less than three feet. At Thompson street the trench in parts had a depth of thirty-two feet, while at Wyoming avenue the depth was only three and six-tenths feet. In district No. 2 the trench on Bala avenue at some points had a depth of over eighteen feet, while on some of the other streets the depth did not exceed four or five feet. Necessarily the sewer cost on different streets was very disproportionate, even where the size of the pipes is the same. One street has a natural grade in the right direction for a sewer, another must be built through a wrong slope by deep excavation. “A ratio cost made up of the average of these is not an accurate measure of any one of them:” Witman v. City of Reading, 169 Pa. 375.</p> <p>15. Certificates have been presented from the clerks of the townships of the first class throughout the commonwealth, and according to these certificates there is no township of the first .class other than Lower Merion, in which a system of sewers or drains was finally completed within six months of February 23,1905.. , The certificates to that effect were offered in evidence from twenty townships of the first class.</p> <p>16. The following plaintiffs are owners of properties traversed by sewers or pipe lines. * We find this fact from the evidence and maps before us, but cannot vouch for the absolute correctness of our finding, as the evidence was not specially directed to this inquiry: The Girard Trust Company, trustees for the estate of Wistar Morris, deceased; -Bryn' Mawr Hotel Company, Charles E. Mather, Eulalie W. Leslie, I. Layton Register, Mary P. Ashbridge, Rebecca E. Ashbridge and Lida H. Ash-bridge, tenants in common. Some of the complainants’ properties may abut on private roads having sewers. If so, then in some of these cases their properties may not abut upon any public highway occupied by a sewer line.</p> <p>CONCLUSIONS OK LAW.</p> <p>1. Under the facts as found by us, the properties in sewer districts 1 and 2 are of such a character and situation that the foot frontruleof assessment is fairly applicable to them.</p> <p>2. To charge each property according to the average cost per foot frontage in the whole sewer district is not allowable where the cost of construction of one branch or line, as in the case before us, is entirely disproportionate with the cost of another branch or line. As this was the method used by the commissioners in applying the foot front rule, it follows that the assessments in districts Nos. 1 and 2 are incorrect. Some properties are charged too much, while others are not charged enough.</p> <p>3. The assessment of benefits by viewers appointed by the board of commissioners, against properties abutting on. a public street or highway, is not in violation of any provision of the constitution of the state where the benefits are assessed for service sewers located on such highways.</p> <p>4. The assessment of benefits against properties by viewers appointed by the board of township commissioners, where a sewer line passes over private property, is illegal. Such assessment must be made by a jury appointed by the court, as the assessment involves damages arising under the exercise of the right of eminent domain. The viewers appointed by the board of commissioners did more than assess benefits. They declare, “ where said sewer extends through private property' we have given due consideration to the question of possible damage to such property caused by the construction of the\ sewer and have weighed carefully the advantages and disadvantages thereof.”</p> <p>5. The legislature has the power and authority to impose a tax or municipal assessment for sewer benefits special to the property in townships of the first class, although the improvement for which the tax is assessed was made before the law was enacted which gives the right to assess the tax.</p> <p>6. The act of February 23, 1905, is not unconstitutional as to its retroactive feature, even if it be' a fact that this feature will not apply to any sewer system fully completed other than the one in the township of Lower Merion.</p> <p>7. The act of February 23, 1905, is applicable to the sewer construction in Lower Merion township, although the work was completed and paid for before the passage of the said act of 1905. The provisions of the act, to the extent that they were used or applied in the assessment of benefits, are not unconstitutional, but the foot front rule was not properly applied and the viewers appointed by the commissioners had no authority under the act to make the assessments as they were made in those cases where the sewer lines passed over private lands. The act does not confer upon the viewers appointed by the commissioners the right to assess damages where the land is taken under the right of eminent domain.</p> <p>8. We conclude that the following decrees and orders should be made in the several proceedings :</p> <p>And now, after due consideration, it is ordered, adjudged and decreed that the bill filed by Joseph W. Anderson and others, being No. 9, June Term, 1905, be dismissed at the cost of the plaintiffs.</p> <p>It is ordered, adjudged and decreed that the defendant commissioners be enjoined from proceeding in any manner whatever for the collection of any assessments set out in the proceedings against any of the properties of the plaintiffs in bill No. 8, June Term, 1905, where the sewer line passes over or traverses the private lands of any plaintiff, and the liens filed against such properties are hereby declared null and void and are stricken from the record.</p> <p>The defendant is directed to pay the costs of the proceedings under this bill.</p> <p>It is ordered, adjudged and decreed that the assessments made against the properties of plaintiffs in bill No. 11, June Term, 1905, were made upon an improper basis of assessment, and each plaintiff is allowed to show in any proceeding to collect the assessment that his property is charged more by the commissioners’ mode of assessment than its proper share for the sewer in front of it. The defendant is directed to pay the costs of the proceedings under this bill.</p> <p>It is ordered, adjudged and decreed that the defendant commissioners be enjoined from proceeding in any manner whatsoever for the collection of the assessment set out in the bill of the Girard Trust Company, trustees of the estate of Wistar Morris, deceased, bill No. 16, June Term, 1905, and the lien filed against the property of said estate is hereby declared null and void, and is stricken from the record, and the defendant is directed to pay the costs in this proceeding.</p> <p>On exceptions the court entered the following final decree:</p> <p>And now, October 29, 1906, the request for additional findings is refused, the exceptions filed in each case are dismissed, and it is now ordered, adjudged and decreed, after due consideration and deliberation, that the assessments made against the properties of the plaintiffs in bill No. 11, June Term, 1905, were made upon an improper basis, and each plaintiff must be allowed to show in any proceeding on the lien or other proceeding to collect the assessment that his property is charged more by the commissioners’ mode of assessment than its proper share for the cost of the construction of the sewer in front of it. The costs to bo paid by the defendant.</p> <p>Errors assigned were the decrees of the court.</p>

<p>Appeal, No. 55, Jan. T., 1906, by defendant, from judgment of C. P. Del. Co., June T., 1902, No. 137, on verdict for plaintiffs in case of Joseph B. Townsend, Jr., and J. Barton Townsend, Executors of the last Will and Testament of Joseph B. Townsend, deceased, and Charles C. Townsend, substituted executor of said last Will in the place and stead of James P. Townsend, deceased, v. Matthew M. Boyd.</p> <p>Ejectment for land in Upper Chichester township. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the defendant presented the following points:</p> <p>6. The defendant having acquired title to the leasehold by a sheriff’s sale is entitled to retain possession in this proceeding, and the verdict should be in his favor. Answer: That is refused. We cannot say to you the verdict should be in favor of the defendant. It will be for you to say under all the circumstances. [5]</p> <p>7. The mortgage of the plaintiffs being unrecorded in law and being a mere pledge of the land, with no transfer of possession to the mortgagee, is void, as against existing creditors, and it appearing by the uncontradicted evidence that the defendant was an existing creditor, said mortgage is fraudulent and void, as to him, and the defendant is entitled to your verdict. Answer: That is refused. The questions are for you under the instructions of the court. We cannot say, or do not say, to you who is entitled to the verdict. [6]</p> <p>The court charged in part as follows :</p> <p>[That if, from the evidence in the case, you find that there was a grant which has been lost from this old lessor in 1682 or his heirs, to the predecessors in title of Matthew Boyd, then your verdict should be for the plaintiff.] [7]</p> <p>[Now as bearing upon the question of whether or not there was such a (lost) grant, we call your attention to the testimony bearing upon that question — first, this was a leasehold, a tenancy. It was made in 1682 for 2,000 years. The consideration was, as you have been told, a peppercorn and so many shillings — five shillings. I believe it is for each 100 acres of land. Now you will say what bearing that has upon the question of presumption. There was a letting, a lease of 500 acres of land in the township of Upper Chichester to a son for 2,000 years, yielding and paying yearly during the said term unto William Withers, his heirs and assigns, one peppercorn at or upon the feast of St. Michael, the archangel, if the same be lawfully demanded. It was not to be paid outright, but it was to be paid if it should be demanded by the lessor, and also paying and discharging the aforesaid chief or quit rent of a shilling yearly as aforesaid, one shilling for each 100 acres. So you see the consideration of the old lease for 2,000 years, which was to a son, was, if the lessor should demand it, he should pay a peppercorn, and in addition one shilling for each- 100 acres of land. You will say what bearing a lease for 2,000 years, for a nominal consideration, has upon the question whether or not, when in 1823 the owner of this land began to convey it in fee simple — whether it is reasonable to suppose that there was a grant to them and that it had been lost.] [8]</p> <p>[When he (Erasmus Morton) died, the husband of one of his children, Thomas Marshall, came into court, in the (should be orphans’ court) court of common pleas of Delaware county in 1823 and filed a petition to have this property of Erasmus Morton parted and divided. In that petition he set out- that this land was real estate, and that Erasmus Morton died seized of it in fee, that is, had divided it^made a partition of it, as the lawyers say; and one of the heirs ■ of Erasmus Morton was awarded a tract, I think of about forty-four or five acres, part of the land in dispute, out of the Erasmus Morton estate. It was awarded to one of the sons, Aaron Morton, and this court made a decree that he should take and hold that property — it was awarded to him — -and' that was in effect awarding the title to him absolutely.] [10]</p> <p>[This tract was conveyed to Aaron Morton and Aaron Morton died. I think he died in Delaware. I am not sure. But before he. died he made this will, in which he willed a portion of this land, real estate ; he says : “ I order and direct that all my real and personal estate be sold by my executor either at public or private sale, within one year after my decease, &c., and I further authorize him to convey said real estate to Matthew Bojul at the price of $4,400, say $1,400 in cash,” and appointed John Larkin as his executor. So that this heir of Erasmus Morton, Aaron, made his will on which he recognized this property as real estate, and directed his executors to convey it to Matthew Boyd at a fixed price. John Larkin made a deed in 1858 — -Morton died in 1857 — in which he conveyed this tract of land, forty-four acres, in fee, absolute title, to the person named in the will, Matthew Boyd.] [11 ]</p> <p>[Now the plaintiffs ask you to say as to this tract which is included in the lands in dispute — ask you to say from this deed of 2,000 years — this deed of 2,000 years to a son for a peppercorn which he should pay if it was demanded and a shilling for every 100 acres, and from the fact that from 1831 down to 1892, when this land was mortgaged, all the owners of it conveyed it in fee simple, or if they died before conveying, willed it, and tliat it was sold by those in power under their wills and conveyed by the various assurances in fee simple, they ask you to find from that that there was a grant to them which has either been lost or mislaid. In other words, they ask you to presume to find that there was such a grant, and if you do find there was such a grant, then the plaintiffs are entitled to your verdict.] [12]</p> <p>[We also say to you that if the plaintiffs have for twenty-one years and upwards — for more than twenty-one years before the bringing of this suit — or those under whom they claim, did enter upon this land in hostility to the owner and did for over fifty years, as it is in this case, occupy it adversely, hostilely, exclusively as their own, then this plaintiff is entitled to your verdict.] [13]</p> <p>[Now if Matthew Boyd entered under the will of John Boyd in part and the deed from his brother as to one tract and the John Larkin deed upon the other, if he entered upon that property, hostiloly adversely, claiming to own it in fee simple, and has continued to do that for twenty-one years and upward, then this plaintiff is entitled to recover and in support of that proposition as to the character of his holding — because we say to you that if this entry was hostile, open, adverse possession, exclusive of the lessors, and it continued for upwards of fifty years, we say to you, that that gave Matthew Boyd a complete title to the land, he had a right to mortgage it and the plaintiffs are entitled to recover.] [14]</p> <p>Yerdict and judgment for plaintiffs. Defendant appealed.</p> <p>Errors assigned were (5-14) above instructions, quoting them.</p>

<p>Change of venue — Local prejudice — Intensity of prejudice — ■Question for judge.</p> <p>An application for a change of venue under paragraph five of section one of the Act of March 30, 1875, P. L. 35, on the ground that “a large number of inhabitants of the county in which the cause is pending have an interest in the question involved therein, adverse to the applicant ” raises a question of fact for the decision of the judge.</p> <p>What is a large number of inhabitants is a relative question depending on the circumstances. A few hundred might be a large number in some communities while as many thousand might not be in others. So in regard to the interest which is averred to be adverse to the petitioner in the application. Its intensity, its particular or general character, its diffusion throughout the county or confinement to one or more localities, are all elements bearing on its reaching the requirements of the statute. All of them, both as to number and interest, are addressed to the judicial discretion of the judge.</p>

Appeal, No. 305, Jan. T., 1906, by plaintiff, from order of C. P. Del. Co., June T., 1905, No. 150, refusing to take off nonsuit in case of John R. Peterson v. Philadelphia, Baltimore & Washington Railroad Company. Trespass to recover damages for personal injuries. Before Johnson, P. J. Plaintiff was employed on a repair train unloading telegraph poles. Settle, the boss or foreman of the train, gave a signal to the engineer to start it.

Appeal, No. 4, Jan. T., 1907, by defendant, from decree of C. P. Del. Co., June T., 1906, No. 266, granting preliminary injunction in case of City of Chester v. Baltimore & Ohio Railroad Company and the Baltimore & Philadelphia Railroad Company. Motion to continue preliminary injunction. Johnson, P. J., found the facts to be as follows: The plaintiff is a city of the third class. The defendant is a railroad company.

<p>Appeal, No. 359, Jan. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., March T., 1905, No. 212, on verdict for plaintiff in case of Rosa Heblich, Executrix of N. Heblich, deceased, v. Harry P. Slater.</p> <p>Assumpsit to recover for professional services as an attorney-at-law. Before Shay, B. J.</p> <p>At the trial the court admitted under objection and exception, testimony to the effect that John F. Whalen, Esq., an attorney at law, charged and received a fee of $4,000 in the will contest in which plaintiff’s decedent was engaged as an attorney. [1]</p> <p>When A. W. Schalck, a witness for plaintiff, was called he was asked this question:</p> <p>“ Q. Ton know the labor performed by Mr. Heblich in the hearings before the register, the hearings in the orphans’ court, and also know the fact that Mr. Whalen was employed to take Mr. Ryon’s place after the case had gotten through the orphans’ court and into the common pleas, and the fact that Mr. Whalen had charge of the paper-book and argued the case in the Supreme Court after Mr. Heblich’s death. Having knowledge of those facts, and knowing that Mr. Whalen charged and received as his compensation $4,000 for the value of his services that he rendered, what would you say the value of the services rendered by Mr. Heblich were ? ”</p> <p>Mr. Roads : Objected to as not a proper way of establishing the value of the services of the plaintiff in this ease by Mr. Heblich.</p> <p>The Court: Overrule the objection.</p> <p>Defendant excepts. Bill sealed. [2]</p> <p>“ A. At least $4,000. That is to say, that Mr. ITeblich rendered services continuously for five years, and his services were not limited to the trial of the case in court, but during that time we had various motions, rules, arguments of various kinds, while we were pending in the orphans’ court and while we were pending in the common pleas, which had to be argued and disposed of, and the papers are on the record. Considering not only the days actually spent in the trial of the case, but the amount of labor that was required in the preparation of those papers and of the arguments and all briefs, there was quite a number of them during those five years outside of what the record shows of actual trial and hearings in court. Q. You place a great deal of emphasis on the words, at least. State whether or not you do not consider that would be a small compensation for Mr. Heblich ? A. Moderate.”</p> <p>Defendant presented these points :</p> <p>2. Evidence of what services were rendered and fees charged by other attorneys employed upon the same side with the plaintiff is irrelevant and incompetent, therefore the jury should disregard all testimony in the case relative to the services rendered or charges made by other counsel in the litigation known as the Slater Will case. Answer : We instruct you, as we have instructed you in our general charge, that we did not admit the testimony of Mr. Whalen’s compensation as a criterion to base the charges upon or as evidence of what Mr. Heblich’s services were worth. We only admitted it as some evidence to be taken by the jury, along with all the other evidence in the case, in arriving at a conclusion of what Mr. Heblich’s services were worth. [4]</p> <p>3. The testimony as to the compensation charged by John E. Whalen, Esq., one of the defendant’s counsel in the litigation known as the Slater Will case, is incompetent and immaterial for the purpose of fixing the value of the services of N. Heblich, Esq., the decedent, and the jury should not consider it. Answer: We refer to our answer to the second point for an answer to this. '[5]</p> <p>4. Under the evidence in this case Anna S. Slater, the mother of the defendant, Harry P. Slater, and testatrix in, the wills in controversy framed by direction of the orphans’ court, did not die seized of the real estate known as the Centennial Hall and the homestead known as the Slater home, she having conveyed the said real estate to her son, the defendant in this case, by deeds executed, delivered and duly recorded, bearing dates respectively May 9 and July 9, 1894, and, therefore, the title to the said Centennial Hall and homestead was not directly or indirectly involved in the contest concerning said wills. Answer /We say to you in answer to this point, under the evidence in this case Anna S. Slater, the mother of the defendant, Harry P. Slater, and testatrix in the wills in controversy framed by direction of the orphans’ court, did not die seized of the real estate known as the Centennial Hall and the homestead known as the Slater home, she having conveyed the said real estate to her son, the defendant in this case, by deeds executed, delivered and duly recorded, bearing dates respectively May 9 and July 9, 1894, and, therefore, the title to the said Centennial Hall and homestead was not directly involved in the contest concerning said wills, but, as we have explained to you in our general charge, that property was indirectly concerned in this contest. [6]</p> <p>Yerdict and judgment for plaintiff for $3,013.43. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (4-6) above instructions, quoting them.</p>

<p>Appeal, No. 338, Jan. T., 1906, by defendant, from judgment of C. P. Berks Co., Oct. T., 1905, No. 40, on. verdict for plaintiff in clise of Commonwealth ex rel. Ira G-. Kutz, District Attorney, v. William Abbott Wit-man.</p> <p>Quo warranto for violating sec. 66 of tbe act of March 31, 1860. Before Endlich, J.</p> <p>Tbe facts are stated in tbe opinion of tbe Supreme Court.</p> <p>Tbe court gave binding instructions against the defendant.</p> <p>Yerdict for plaintiff upon which judgment of ouster was entered.</p> <p>Error assigned was tbe instruction of the court.</p>

<p>Wills — Devise—Rule in Shelley’s case — Heirs—Children.</p> <p>Testatrix devised as follows: “I give and bequeath to V. during her life time and the heirs of her body at her decease all of my real estate, and in case of her or her children dying without living issue, the said real estate I give to the Board of Home Missions of the United Presbyterian Church of North America.” Held, that V. took an estate in fee simple.</p> <p>The words, “heirs of her body,” are technical words and are presumed to be used in a technical sense, unless the context indicates a clear intention to the contrary and under these words the devisees in remainder take as heirs of the devisee of the particular estate and not as purchasers under the testatrix and hence as the stock of a new inheritance.</p> <p>Prima facie “children” is a word of purchase and not of limitation. But where it is clear that it is used in the sense of “heirs” or'“heirs of her body” used in a former part of the will, it must be so construed and the intention of the testatrix be permitted to prevail.</p> <p>The rule in Shelley’s case is not one of construction but of law, and it operates only after the intention of the testatrix has been ascertained from the language of the will.</p>

<p>Boroughs — Councils—Meeting—Election—Borough treasurer.</p> <p>Where eight members of a borough council assemble in the same room, and before any organization is- effected, and while all are engaged in a disorderly scramble to effect an organization, four of the members, apart from the others, go through the form of an election for a borough treasurer, the person so elected has no title to the office.</p>

<p>Appeal, No. 328, Jan. T., 1906, by plaintiff's, from judgment of C. P. Lackawanna Co., May T., 1905, No. 414, for defendant on question of law reserved in case of John Stout et. al., v. Ann Patterson Young.</p> <p>Ejectment for land in Ransom township. Before Edwards, P. J.</p> <p>At the trial the jury returned a verdict for defendant, subject to the question of law reserved, as follows :</p> <p>“ That as the will of Daniel Stout was duly, probated in the office of the Register of Wills of Luzerne County in conformity with law, in 1876, and as no caveat was filed or proceedings of any kind instituted to have the probate set aside, it became conclusive as to the real estate of said Daniel Stout after five years, and cannot now be attacked in this proceeding.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>• The court in an opinion by Edwards, P. J., entered judgment for defendant on the reserved ooint.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 71, Jan. T., 1907, by defendant, from decree of O. C. Lackawanna Co., No. 75, of 1905, dismissing appeal from register in case of Estate of James L. Crawford.</p> <p>Appeal from register of wills.</p> <p>Sando, P. J., filed the following opinion:</p> <p>The decedent, James L. Crawford, a resident of Scranton, Pennsylvania, died in Florida on February 19, 1905, leaving to survive him a widow, Huldah A. Crawford, and a stepson, James G. Shepherd. On February 27, a will dated September 13,1896, was probated and his widow appointed executrix. By this will, with the exception of an inconsiderable legacy to a sister and a comparatively small .devise to his stepson, his entire estate was given to his widow. The personal estate left by Mr. Crawford, as shown by the inventory and appraisement filed, amounted to $971,802. In addition, he left real estate as shown by the testimony, some of which was rented and yielding an income of about $750 per month, and the rest consisting of his Scranton and Florida homes. On June 27, 1906, sixteen months later, George B. Schooley took an appeal to the orphans’ court from the decision of the register, admitting to probate the will dated September 13, 1896, as the last will and testament of the decedent, and granting letters testamentary thereon.</p> <p>On June 30, 1906, Mr. Schooley presented his petition to the orphans’ court praying that a citation issue to Huldah A. Crawford and J. G. Shepherd commanding them to appear and answer the petition and to show cause why such appeal should not be sustained and an issue awarded. In this petition he averred that on January 30, 1905, James L. Crawford, at the city of Philadelphia made his last will and testament, a copy of which was attached as part of the petition. To this citation a suggestion was filed August 13, in which the respondents stated they were informed that there had been a codicil accompanying the proposed will and asking for a citation for its production before they should make answer. Such a citation was issued and in response to it on August 28, the petitioner presented the proposed codicil dated January 30, 1905. To this ' petition as thus completed the respondents filed their answer, in which they suggested, inter alia, that the alleged will and codicil produced by the petitioner were forgeries and that the signatures of James L. Crawford to the will and codicil had been forged.</p> <p>Upon the issue made up a hearing was had, the questions being, stating them in the language of the petition :</p> <p>“ (a) Whether said paper writing dated September, 1896, is the last will and testament of James L. Crawford, deceased.</p> <p>“(b) Whether the said James L. Crawford, deceased, executed the will dated New York, N. Y., December 16, 1904, and witnessed by A. N. Bahman and O. F. Riedel, and whether at the same time, on January 30, 1905, he executed a codicil thereto.”</p> <p>The rules of law governing this case are simple and well settled. The forty-first section of the Act of March 15, 1832, P. L. 135, declares: “ Whenever a dispute upon a matter of fact arises before any register’s court the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof.” The orphans’ courts possess all the jurisdiction and powers formerly vested in the “registers’ courts : ” Constitution of 1874, article 5, section 22; Act of May 19, 1874, section 6, P. L. 206. The construction given by the courts to this statute clearly leaves it in the discretion of the court to determine in any given case whether a substantial dispute as to material facts has arisen which must be submitted to a jury.</p> <p>The test by which the court is to determine whether such a substantial dispute has arisen is now well settled in a number of decisions. Substantially in the dispute is that a verdict could be supported by a trial judge upon a review of all the evidence: Dellaven’s Appeal, 75 Pa. 337; Harrison’s Appeal, 100 Pa. 458; Schwilke’s Appeal, 100 Pa. 628; as to whether or not a signature is genuine is that a verdict in favor of the genuineness could be supported upon a review of the whole evidence. There is only one safe and reliable test. If the testimony is such that after a fair and impartial trial resulting in a verdict against the proponent of the alleged will, the trial judge, after a careful review of all the evidence, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of the act, has arisen: Knauss’s Appeal, 114 Pa. 10; Sharpless’s Estate, 134 Pa. 250; Tallman’s Estate, 148 Pa. 286; Douglass’s Estate, 162 Pa. 567.</p> <p>It is not our purpose to review the numerous cases which have been decided, having a bearing on the matter under consideration. In some of the cases it is held that the granting of an issue is within the discretion of the court. This position renders it necessary that the court shall, to some extent at least, make judicial inquiry into the facts. The discretion to be exercised in such case must not be arbitrary or willful, but it must be based upon facts, the knowledge of which is judicially acquired. If this court has no power to judge whether there are in truth matters in dispute affecting the merits of the controversy, it has no duty to perform but to certify alleged facts to another court, to register the decision of that court yrhen it is returned, and to enter a decree in accordance therewith.</p> <p>After a careful consideration, aided by the light of the many cases cited upon argument, and others, we have no difficulty in reaching the conclusion that the court not only has the power, but is charged with the duty to ascertain from the evidence adduced by the parties, whether there are material disputed facts, and whether the character of such dispute is such that if the facts found by a jury in favor of one who requests the issue, such finding could upon consideration of the whole evidence in good conscience be sustained.</p> <p>Having reached a conclusion as to the correct rules to apply in a case like the present, our next duty is to apply them.</p> <p>Why in any event or under any circumstances refer evidence to a jury when, if their verdict should be against the weight of it, it would have to be set aside ? We have taken up the evidence to determine whether there is a substantial dispute demanding an issue. If evidence be so strong as necessarily to produce certainty and conviction, it matters not by what kind of evidence the effect is produced ; and the intensity of the proof must be precisely the same, whether the evidence be direct or circumstantial.</p> <p>When it is stated that a fact has been established by direct and positive evidence, it is meant that it has been testified to by witnesses as having come under the cognizance of their senses, and of the truth of which there seems to be no reasonable doubt or question; and when it is stated that a fact has been established by circumstantial evidence, it is meant that the existence of it is fairly and reasonably to be inferred from other facts proved in the case. When circumstances connect themselves closely with each other, when they form a large and strong body, so as to carry conviction, it may be proof of a more satisfactory sort than that which is direct.</p> <p>On the part of the petitioner it is claimed that to entitle him to an issue, all that is required of him is to establish by the proofs a prima facie case. On the part of the respondents it is claimed that an issue ought not to bo directed if upon the whole evidence as well that of the petitioner as that of the respondents a verdict ought not to be allowed to stand. We think the latter is the principle which must guide us in the disposition of the case.</p> <p>Applying the principles of law which are well established by the authorities, we are irresistibly led to the conclusion that the issue as prayed for must be refused. It is true that the petitioner and the two subscribing witnesses have testified that they saw the decedent sign his name to the alleged will and codicil, and ordinarily it might be said that such testimony should be sufficient to support a verdict in accordance with it, but upon consideration of the overwhelming evidence to the contrary we could not in conscience allow such a verdict to stand. We would subserve no purpose in discussing the circumstances which so convince us. It would require too much time and space. But we are satisfied that a disinterested reading and consideration of all the evidence cannot fail to satisfy anyone that it would be unrighteous to grant the issue prayed for. Appeal dismissed and demand for an issue refused.</p> <p>Error assigned was the decree of the court.</p>

<p>Public officers — School controller — School law — Quo warranto — Ouster.</p> <p>Judgment of ouster is properly entered against a person claiming to be a school controller in a city, where it appears that there was no properly constituted ward of the city which he could represent, and that there was no election district in which votes could be cast for him for this office.</p> <p>Not decided whetherthe Act of April 28, 1903, P. L. 332, is unconstitutional.</p>

Appeal, No. 18, Jan. T., 1907, by plaintiif, from decree of O. P. Lackawanna Co., May T., 1902, No. 1, dismissing bill in equity in case of John B. Law, for himself and such of the stockholders of the Girard Coal Company as care to join as plaintiffs herein, and Alexander B. Law v. E. L. Puller. Bill in equity for an account.

Appeal, No. 77, Jan. T., 1907, by plaintiffs, from decree of C. P. Lackawanna Co., Jan. T., 1906, No. 2, dismissing bill in equity in case of William Miles et. al., v. The Pennsylvania Coal Company. Bill in equity for an injunction. The facts are stated in tlie opinion of the Supremo Court. Error assigned was decree dismissing the bill.

<p>Negligence — Railroads—Grade crossing — Contributory negligence — Case for jury — “Stop, look and listen.”</p> <p>It is the duty of the employees of a train approaching a crossing to give such signal as will protect the traveler if he is in the exercise of ordinary care. It is not a conclusive answer for a railroad company to say that the bell was rung or the whistle was sounded in reply to a charge that a train negligently approached a grade crossing, unless it appears that under the circumstances of the case such signal was sufficient to give timely notice to travelers who were approaching the crossing on the highway. At such crossing the duties of the company and of the traveler are reciprocal. Each must approach the crossing with a due regard for the rights of the other, and when either fails to observe the care required, it is negligence for which the guilty party is responsible. Either party will only be absolved from the charge of negligence if he has done what the circumstances of that particular case required a prudent man to do.</p> <p>In determining the duty of a person approaching a dangerous grade crossing with restive horses, regard must be had not only to the conduct of the driver under the circumstances, but that of the railroad company in not giving proper signals at a point where the driver would have heard them in time to save himself from being placed in a dangerous position.</p>

Appeal, No. 214, Jan. T., 1906, by defendant, from judgment of C. P. Berks Co., Nov. T., 1905, No. 49, on verdict for plaintiff in case of S. JET. Chauvenet v. M. J. Person, Allen C. Smith, John Kaufman and Ilenry Kaufman. Ejectment for mineral land in Earl township. Before Ermentkout, P. J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 222, Jan. T., 1906, by plaintiff, from judgment of C. P. Northampton Co., Dec. T., 1904, No. 41, on verdict for defendant in. case of Onofrio Sacchetti v. Oliver L. Fehr. Trespass for libel. Before Scott, J. The opinion of the Supreme Court states the case.

Appeal, No. 83, Jan. T., 1907, by defendant, from judgment of C. P. Carbon Co., April T., 1901, No. 32, on verdict for plaintiff in case of Emma Jane Wehr v. Carbon County Electric Railway Company. Trespass to recover damages for death of plaintiff’s husband. Before Staples, P. J. The facts appear by the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $2,950. Defendant appealed.

<p>Equity — Jurisdiction—Cloud on title — Cancellation of written instrument.</p> <p>The jurisdiction of a court of equity to remove clouds from title is an independent source or head of jurisdiction, and whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree, which justice or the rights of the parties may require.</p> <p>A bill in equity to quiet title may be maintained where it appears that plaintiff has title to the premises, that by an agreement he had sold the property to another who is in possession of it but refuses to accept the title sold him by reason of an outstanding adverse title, and that the adverse title is in the defendant. In such a case as neither plaintiff nor defendant is in possession, ejectment will not give the plaintiff the remedy he desires and needs; nor will the Acts of May 25, 1893, P. L. 131, or April 16, 1903, P. L. 212, give him an adequate remedy, inasmuch as plaintiff is not in possession of the premises.</p>

<p>Parent and child — Gift—Presumption—Evidence.</p> <p>As between parent and child there is no presumption of the invalidity of a voluntary gift and unless there is evidence of undue influence or of circumstances that give rise to a suspicion, the burden is not on the donee to show the fairness of the transaction.</p>

<p>Contract — Sale—Rescission—W aiver.</p> <p>In an action of assumpsit to recover the price paid for two electric vehicles, it appeared that after the vehicles had been delivered to the plaintiff, and paid for, he found they were unsatisfactory, and so reported to the defendant. The latter requested him to ship them back, that they might be made satisfactory. They were sent back, and subsequently a test was made, which the plaintiff declared was unsatisfactory, and he demanded a return of his money which was refused. The vehicles remained in the hands of the defendant, and thereupon plaintiff addressed a letter to the defendant in which he stated that he had left with him the vehicles in question to sell for the plaintiff’s account and risk at a sum stated, and further assumed all risks in case of loss and damage to the vehicles by fire. Some months afterwards he again wrote to the defendant several letters telling him to sell the vehicles for the best price that could be got for them, and as quickly as possible. Subsequently the defendant notified plaintiff that he had an offer for the vehicles which was about one-third the price which plaintiff had paid for them. No response was made to this communication, and the vehicles continued to remain in defendant’s possession until three years after the original sale, when suit was brought to recover the purchase money. Held, that the plaintiff was not entitled to recover.</p>

<p>Receivers — Corporations—Executory contract — Equitable defense.</p> <p>In an action against a receiver of a corporation to recover for loss occasioned by the inability of the receiver to complete deliveries, through no fault of his own, on an executory contract for the future delivery of goods, with notice of such inability to the purchaser, an affidavit of defense is insufficient to prevent judgment, which fails to disclose equities in favor of other parties superior to the equities of the purchaser; and this is especially so where the receiver has not applied as provided by the act of congress of August 13, 1888, to the federal court, which appointed him, for equitable relief.</p>

<p>Appeal, No. 205, Jan. T., 1905, by defendant, from order of C. P. No. 2, Pbila. Co., March T., 1903, No. 1,381, dismissing exceptions to report of referee in case of The Chestnut Street Trust & Saving Fund Company to use of George H. Earle, Jr., and Richard T. Cook, Assignees for benefit of creditors, v. Henry G. Hart.</p> <p>Exceptions to report of James W. Laws, Esq., referee.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned, was in dismissing exceptions to report of referee.</p>

Appeal, No. 79, Jan. T., 1907, by defendant, from judgment of O. & T. Adams Co., Aug. T., 1906, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. William Eyler. Indictment for murder. Before Swope, P. J. The opinion of the Supreme Court states the case. Verdict of guilty of murder of the first degree. Errors assigned among others were in the admission of the opinion of nonexpert witnesses as to the degree of intoxication.

<p>Appeal, No. 105, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1903, No. 132, refusing to take off nonsuit in case of Catherine Rebman, Administratrix of the Estate of Mary W. Rebman, deceased, v. The General Accident Insurance Company of Philadelphia.</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.</p> <p>Error assigned was refusing to take off nonsuit.</p>

Appeal, No. 99, Jan. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T. 1906, No. 452, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph S. Keller v. Andrew J. Cohen. Assumpsit on two promissory notes, dated November 14, 1898, and February 21, 1899, each for $1,000. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 216, Jan. T., 1906, by plaintiffs, from order of C. P. No. 1, Phila. Co., March T., 1906, No. 2,236, quashing writ of quo warranto in case of Commonwealth ex rel. Frank B. Stewart, Charles 0.. Russell, Charles E. Ernes and James J. Finn, Individually and as Managers for the Relief and Employment of the Poor of the Township of Germantown, v. Walter Bowditch. Suggestion for quo warranto.

<p>Appeal, No. 217, Jan. T., 1906, by plaintiffs, from order of C. P. No. 1, Phila. Co., March T., 1906, No. 2,237, quashing writ of quo warranto in case of Commonwealth ex rel. v. Charles O. Roop, Walter Bowditch, Thomas J. Burns, A. L. Dewees, Owen B. Jenkins and J. George Mollenkof.</p>

<p>Appeal, No. 221, Jan. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., March Term, 1904, No. 662, on verdict for plaintiff in case of Harry Yant v. Henry II. Roelofs, trading as Henry H. Roelofs & Company.</p> <p>Trespass to recover damages for personal, injuries. Before McMichael, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $5,000, upon which judgment was entered for $4,000, all above that amount having been remitted.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Evidence — Proof of writing — Subscribing witnesses.</p> <p>Where a paper witnessed by two subscribing witnesses is offered in evidence, and it does not appear that any proper effort was made to secure the testimony of the two subscribing witnesses, the signature to the paper cannot be proved by a person familiar with the handwriting of the signer.</p> <p>Assignment — Equitable assignment — Notice.</p> <p>A written notice of an assignment of a chose in action served upon the debtor will protect the latter in making payments thereunder, although the assignment itself may not have been served upon him.</p> <p>Where a licenser of a patent notifies the licensee that he has assigned his rights to royalties under the license to a person named, and that royalties are to be paid to her, the plaintiff in an attachment execution against the licenser must show either that the direction to pay was to one who was the licenser’s wife and that she cannot show that it was not in fraud of creditors, or if the payee was not the licenser’s wife, that she was one to whom he assigned the royalties in fraud of his creditor’s rights.</p>

<p>Wills — Construction—Distribution—Intestate law.</p> <p>Testator by his will created a trust for his children for life in the residue of his estate, and directed that “ at and immediately after the death of any such child to pay the principal of said share to any widow, husband or children surviving any such child, in such proportions as are provided by the intestate laws of this commonwealth, and in default of such widow, husband or children, then to the brothers and sisters of such deceased child, share and share alike.” A son died leaving a widow but no children. Held, that the fund for distribution consisting of personalty should be distributed one-half to the widow of the deceased son, and the other half to the testator’s surviving children.</p>

<p>Arbitration — Award—Partnership—Certainty of award.</p> <p>Where an agreement for arbitration provides that the amount found by the arbitrator shall be considered a debt presently payable for which judgment may be entered, an award which provides that to an amount found to be due other items shall be added without fixing their amount, is void for uncertainty.</p> <p>The very essence of awards is certainty. They are to put an end to controversy between the parties and are to be certain and final.</p>

<p>Will — Construction—Devise—Trusts and trustees.</p> <p>Testator by his will created a spendthrift trust in favor of his son J. in one-sixth of a particular tract of land. He gave the remaining five-sixths to trustees for his other five sons, C., S., I., G. and H. H. survived all the others and died without issue. It was provided in the will that if “H. shall die without leaving a child or children or a grandchild or grandchildren living at his death then that one of the said five-sixth parts of the lands .... shall go to and be equally divided among my said other sons C., S., I. and G., or such of them as shall be then living and the trustees hereinafter mentioned for my said son’J. in equal parts so that the then survivors of my said four sons C., S., I. and G. shall each take one equal share and the trustees for my said son J. shall take the other equal share thereof, each of which said equal shares shall pass to and-vest in the trustees herein appointed and their heirs, respectively, subject to the restrictions and limitations and for the uses herein declared in like manner as if the same had been so devised in the first instance, that is to say, the trustees for my said sons C., S., I., G. and H. to take in trust for the use of my said sons C., S., I. and G. in equal parts and for the uses hereinbefore mentioned and the trustees for my said son J. to take the trust for the like uses that hereinafter mentioned.” Held, that the trustees of J. took the whole interest of H. to the exclusion of the descendants of the other brothers.,</p> <p>Mestrezat, J., dissents.</p>

<p>Will — Legacy-Gift of residuary estate — Codicil.</p> <p>Where a testator gives a legacy of a specified amount and also one-half of his residuary estate, to his sister, and by a codicil gives to two nieces and a nephew “the legacy which I have left to my sister,” share and share alike, the word “legacy” in the codicil will, in the absence of any ■ contrary intent, be construed to include not only the money legacy in the will, but the gift of half of the residuary estate.</p> <p>Wills — Disinheriting heirs — Presumption.</p> <p>The presumption against an intention to disinherit heirs is weakened by the fact that a testator by his will excludes four-fifths of his relatives from any participation in his personal estate. This presumption has force where no clear disposition has been made and one is to be inferred from some provision of a will; it is without application where it is apparent that the real intention of the testator, was to favor some to the exclusion of others.</p>

Appeal, No. 67, Jan. T., 1906, by plaintiff, from order of C. P. No. 5, Phila. Co., Deo. T., 1903, No. 1,751, refusing to take off nonsuit in case of Frank J. Lamb, by his mother and next friend, Eleanor A. Gordon, v. Philadelphia & Reading Railway Company. Trespass to recover damages for death of plaintiff’s son. Before Martin, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court.

<p>Beneficial associations — Forfeiture of membership — Notice of assessments — Police beneficiary association — Custom.</p> <p>The by-laws of a police beneficiary association provided that assessments should be paid by members of the police force who were members of the association, on the second Monday of the month; while ex-members of the police force who were members of the association should pay within thirty days after notice. Notice of the assessment was read over the desk at the station house to all the policemen, and a copy of the same was posted on the bulletin board in the station house. It did not appear that there was any provision of the by-laws as to the kind of notice to be given to an ex-member. There was evidence tending to show that for a number of years the posting of the notice on the bulletin board was the customary and usual method of informing ex-members that an assessment had been levied. An ex-member was expelled for the nonpayment of an assessment. He subsequently died, and his widow brought suit for death benefits. Held, (1) that the question as to whether a custom as to notice had been established was for the jury; (2) that the question whether the notice given was sufficient was for the jury; and (3) that a verdict and judgment for plaintiff should be sustained.</p> <p>In order to establish the validity of a custom or usage it must have existed so long as to have become generally known, and it must be clearly and distinctly proved.</p>

Appeal, No. 2, Jan. T., 1907, by defendant, from judgment of C. P. Del. Co., Sept. T., 1905, No. 55, on verdict for plaintiff in case of Jane E. Winterbottom, in her own right, and Francis Maurice Winterbottom, by his mother, Jane E. Winterbottom, v. Philadelphia, Baltimore & Washington Railroad Company. Trespass to recover damages for personal injuries to a boy twelve years old.

<p>Constitutional law — Article XVI, sec. 8 of the constitution — Property injured by public works — Speculative loss.</p> <p>Under article XVI, sec. 8 of the constitution, compensation for property injured by public works is not limited to abutting property, but applies to any works sufficiently near to make the injury proximate, immediate and substantial. But unless the injury is so obvious as to admit of comparatively easy calculation as to the extent of the diminution of the value of the property, it may not fairly be considered as covered by ihe constitution. Remote or speculative losses in the conduct of a business do not constitute a legitimate basis upon which to estimate damages to the real estate.</p> <p>Where a city builds a viaduct in order to do away with a dangerous grade crossing, and it appears that access to a mill is cut off in one direction so that patrons of the mill are required to make a detour of two squares, and no land is taken from the mill owners, a jury, in estimating the damages to the mill should be allowed to compare the situation as it was after the completion of the entire scheme of improvements in connection With the viaduct with that which existed before its construction.</p> <p>In such a case it is a fair question for the jury to determine whether or not the substitution of a safe way over the tracks, even though it be a little longer, does not fully compensate in its effect upon the market value of the property for the taking away of the nearer, yet dangerous method of approach, by means of the grade crossing as it existed before the viaduct was built.</p>

Appeal, No. 279, Jan. T., 1906, by defendant, from judgment of O. P. Lackawanna Co., May Term, 1905, No. 778, for plaintiff on demurrer to statement in case of Firemen’s Relief Association v. City of Scranton. Assumpsit to recover moneys alleged to be due under an ordinance. Newcomb, J., found the facts to be as follows: This action is assumpsit. The defendant has demurred to a statement disclosing the following facts: 1.

Appeal, No. 251, Jan. T., 1906, by plaintiff, from order of C. P. Berks Co., Jan. T., 1906, No. 48, refusing mandamus in case of W. B. Bechtel v. Henry H. Fry. Petition for writ of mandamus. Before Endlioh, J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal of mandamus.

<p>Appeal, No. 40, Oct. T., 1907, by plaintiff, from decree of O. P. No. 1, Allegheny Co., Sept. T., 1905, No. 839, dismissing bill in equity in case of Sibilla Kaufman v. Pittsburg & Castle Shannon Railroad Company, Pitts-burg Railways Company et al.</p> <p>Bill in equity for an injunction.</p> <p>Maoearlane, J., found the facts to be as follows:</p> <p>1. The Pittsburg & Castle Shannon Railroad Company, hereinafter called the railroad company, is a corporation organized under the general railroad Act of April 4, 1868, P. L. 62, and having by the special Act of February 21,1872, P. L. 142, the right to own real estate and mine coal therefrom, and by the special Act of April 5, 1873, P. L. 546, the right to construct an incline plane. The plaintiff was in August, 1905, and still is the owner of fifty shares of stock of the said company.</p> <p>2. The Pittsburg Railways Company, hereinafter referred to as the railways company, was incorporated by a special Act of assembly, May 25, 1871, P. L. 1170, under the name of the “ Surety Contract Company,” subsequently changed to the present name, and its principal business is that of operating traction lines and passenger railways in the county of Allegheny.</p> <p>3. The Pittsburg Coal Company, hereinafter referred to as the coal company, is a corporation under the laws of the state of New Jersey, having its principal office in the city of Pitts-burg, Allegheny county, and is engaged extensively in the mining and selling of .coal in the said and adjacent counties; and it is the owner of 7,756 shares of the stock of the Pitts-burg & Castle Shannon Railroad Company, out of a total of 9,628 shares.</p> <p>4. The board of directors of the railroad company, ten in number, is with one exception composed of officers and directors of the coal company, and the railroad company has been for several years controlled and managed by the coal company.</p> <p>5. The executive officers of the railroad company, its superintendent, engineer and accounting officers, were officers in a similar capacity of the coal company, which charged the railroad company for their services a reasonable amount, and the operating expenses of the railroad company were, in this respect, much less than they would have been if independently officered.</p> <p>6. The railroad operated by the railroad company extends from Arlington Station, Scott township, Allegheny county, to a point on Bailey avenue in the thirty-second ward in the city of Pittsburg, and then by an incline plane with the road running from Bailey avenue to Carson street in the city of Pitts-burg. It also owns and operates coal mines in Scott township. Prior to January 1, 1893, the railroad ran by a horseshoe curve track north of Washington avenue, in the thirty-second ward, in the city of Pittsburg, via a coal tunnel and coal incline to Carson street in the thirtieth ward, Pitts-burg, where there was and is now located a coal yard of the railroad company. About the last mentioned date the company constructed a shorter and more direct line diverging from the former route at a point near Washington avenue, in Montooth borough, and by incline planes reaching Carson street at a point adjoining the coal yard. Upon the completion of the new short line the horseshoe curve track, coal tunnel, etc., were used solely for the transportation of coal from the mines of the company to the yard, and were not used for the transportation of freight and passengers, except on several occasions prior to the year 1900, passengers were so transported on account of accidents to the incline planes on the shorter route, which from January, 1893, was used exclusively for passengers and freight and became the main line of the railroad. The horseshoe curve portions of the track were nsecl in connection with the coal yard as.apartof the terminal facilities of the railroad company in its mining and shipping of coal.</p> <p>7. On July 13, 1904, the railroad company leased to the coal company, at $30.00 a month, for the term of three years from July 1, 1904, a lot which had been used as a dump for refuse, and the coal company erected thereon a laboratory for its use and the use of the railroad company.</p> <p>8. For some time prior to any negotiations for the lease in this case, the coal company had erected telephone wires, at its expense, along the right of way of the railroad, and this line was used by the coal company and the railroad company without charge to the latter.</p> <p>9. The coal company has, and has had, no agreement or understanding with the railroad company for the use of the horseshoe curve portion of the tracks, and has not, at any time, used these tracks or any part thereof, and it does not own, control or operate in any way any mines or other property on or near the line of the railroad company.</p> <p>10. The railroad company was, in August, 1905, and had been for several years previous, insolvent. Its coal property was valuable and was capable of being operated with profit, but the railroad had for a long time been operated at a loss of more than $3,000 a month, which was almost an offset to the earnings of the coal business of the company.</p> <p>11. During the months of July and August, 1905, the railroad company began negotiations with one Baxmyer for the lease of the railroad, and a meeting of the stockholders of the railroad company was called on August 16, 1905, for the purpose of considering a proposition for the leasing or selling of certain of its property, and there was then presented to the stockholders a resolution authorizing the execution of a lease and it was then stated that the proposed lessee was the railways company, and that the proposed lease was in pursuance of a resolution of the board of directors, made on July 21,1905. Objections were made by some of the stockholders, including the plaintiff, and a verbal offer was made to take a lease at the rent of $20,000 per annum. The meeting adjourned to August 17, at which time William Kaufman, acting on behalf of a principal whose name he refused to disclose, but with whom the plaintiff had no privity, hut who was, some time after the execution of the lease, disclosed to be Robert C. Hall, a broker and promoter, of the city of Pittsburg, offered in writing that he, Kaufman, would, on or before August 24, bid at least $17,500 for the lease in the same form as that submitted, and as evidence of his good faith ho deposited three bonds of $1,000 each. The meeting was adjourned to August 24, at which time Kaufman did bid $17,500 per annum for the lease for a term of ninety-nine years, and for a further term of ninety-nine years at $20,000 per annum. This bid was in writing. The said bid was not submitted for the consideration of the stockholders, for the reason that the identity of the principal was not disclosed, although demanded, and it appeared on the bid that there w'as no corporation competent to take the lease; and it was known by the directors and by the plaintiff and most of the stockholders present that the railways company was ready and willing to execute the lease, and that it was a strong corporation, of a good credit, and capable of carrying out the terms of the lease.</p> <p>12. The action of the coal company as a majority stockholder, and of the officers of the railroad company, in voting for the lease and in subsequently executing it, was prudent and in good judgment and was advantageous to all of the stockholders, and the refusal of the Kaufman bid was in good faith and in the exercise of good judgment. It developed upon the trial of this case that Mr. Hall had no connection with or control over any corporation capable of taking a lease, and his purpose in desiring to acquire the lease was simply as a, speculation.</p> <p>13. At the last mentioned meeting an election was had upon the proposed lease. The coal company cast its stock in favor of the resolution, and out of a total of 9,628 shares 8,153' shares were cast in favor to sixty-six against the resolution, the affirmative vote being composed of the stock of the coal company and its officers, directors and employees, with the exception of 350 shares, and of the sixty-six shares, fifty were owned by the plaintiff and sixteen by E. F. Hays.</p> <p>14. Neither the coal company nor any of its officers nor any of its subsidiary companies or their officers have received or will receive any pecuniary or other benefit or advantage in consideration of voting its stock in favor of the lease, except such benefits and advantages as accrue equally to all of the stockholders of the railroad company.</p> <p>15. The lease dated August 25, 1905, was executed for the railroad company by its president on the morning of August 25, and by its secretary in the evening of that day, and was executed by the railways company on August 26; and as early as 12: 25 p. m. August 25, notice was served upon the railways company by plaintiff, requiring the defendant not to execute the lease or to pay on t any money on account thereof.. This bill was filed on August 30 and served the same day. The railways company entered into possession, and since that time has been operating the portion of the railroad leased to it.</p> <p>16. On or before September 1, 1905, the railroad of the defendant railroad company did not connect with nor intersect any other railroad nor .physically with the road or railway of any street railway company, and the railways company did •not own, control, lease or operate a railroad physically connected with that of the railroad company. The railways company’s tracks are situated, with reference to the railroad company’s tracks, at a number of points, as follows: at Carson street within sixty feet, at which point passengers have been for several years transferred between the respective companies under the terms in an agreement; on Bailey avenue, within four or five feet; near Arlington avenue the railways’ tracks cross the railroad above grade; the Washington avenue line parallels the railroad for more than a quarter of a mile, at a distance from twenty to sixty feet; at another point the lines are 150 feet apart, and the ■ intervening land is leased by the railways company; from Arlington to Castle Shannon the 'lines parallel for about half a mile, at a distance from twenty-five to 200 feet; and in Castle Shannon a spur of the railroad extends to within ten feet of the railways’ tracks. At all but one of these points the transshipment- of passengers from one road to the other is easy and convenient.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. There being no fraud or undue advantage, the lease is not void on that ground.</p> <p>2. The lessor has not violated any duty to the commonwealth.</p> <p>3. The lessee has the right to take the lease.</p> <p>4. The lessor has the right to make the lease.</p> <p>5. It is not necessary under the charter of the lessee that the lines bo mechanically connected, and it is sufficient that they are in proximhy so as to afford convenient transfer of passengers.</p> <p>6. The bill should be dismissed at the costs of the plaintiff.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 47, Oct. T., 1907, by Cochran Fleming, from decree of O. C. Allegheny Co., Sept. Term, 1904, No. 116, awarding an attachment in Estate of John Fleming, deceased.</p> <p>Petition for attachment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree awarding the attachment.</p>

Appeal, No. 313, Jan. T., 1906, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1905, No. 217, refusing to take off nonsuit in case of Mary Tilburg y. Northern Central Railway Company. Trespass to recover damages for death of plaintiff’s husband. Before Hart, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned, was refusal to take off nonsuit.

<p>Appeal, No. 332, Jan. T., 1906, by Fanny Harrington, from decree of O. C. Montgomery Co., March T., 1906, No. 15, overruling exception to adjudication in Estate of Lewis Royer, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in overruling exception to adjudication.</p>

<p>Election laws — Appeals—Certiorari.</p> <p>Where a case under the election laws is brought into the appellate court by certiorari, the court cannot review the findings of facts or merits of the case, but it has jurisdiction to inspect the whole record with regard to the regularity and propriety of the proceedings to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion.</p> <p>Election law — Registration—Failure to register — Act of February 17, 1906, P. L. 49.</p> <p>A person presented a petition to the court of common pleas averring that he had in his possession naturalization papers, but had mislaid them, and did not find them in time to present them to the board of registrars. That subsequently he appeared in person before the commissioners of registration, and produced all proofs of his qualifications as an elector, including a certified copy of his naturalization papers, but they refused to register him because he had not produced the papers on one of the three registering days. The court allowed the appeal and indorsed on the petition “name to be added.” It did not appear that he had presented a petition to the commissioners alleging error in the action of the registrars, nor did he allege that he was prevented from registering by illness, or unavoidable absence from the county. Held, that the common pleas had no jurisdiction, and that all of the proceedings before that court should be quashed.</p> <p>Mitchell, C. J., dissents.</p>

<p>Landlord and tenant — Bailment—Trade fixtures — Boilers.</p> <p>Where a tenant of premises in which are boilers owned by the landlord, takes out the boilers himself and places them on a neighboring lot, and for the purposes of his business installs other boilers which he has acquired on a bailment lease, and subsequently upon default in the stipulated rent for the boilers, the lessors in the bailment lease declare the lease terminated, and assert their right to the possession of the boilers, and thereafter the lessee is declared a bankrupt before the landlord of the premises had distrained for rent, the owners of the boilers have a right to resume possession of their property without being required to restore the old boilers to their former place; nor are they required to pay the landlord the arrears of rent due him by the tenant.</p>

Appeal, No. 99, Jan. T., 1907, by John W. Woodside, from decree of O. C. Phila. Co., April T., 1906, No. 152, dismissing exceptions to adjudication in Estate of George H. Colket, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Supreme Court. Error assigned was in refusing to sustain the claim of the appellant for contribution from the estate of the decedent.

Appeal, No. 387, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., Deo. T., 1904, No. 284, on verdict for plaintiff in case of Edna S. Leister, by her next friend, Stewart S. Leister, v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Staake, J. The circumstances of the accident are narrated in the opinion of the Supreme Court. Error assigned was in refusing binding instructions for defendant.