Volume 219 — Pennsylvania State Reports

<p>Vendor and vendee — Satisfactory title — Time limit — Contract—Affidavit of defense.</p> <p>Where an agreement for the sale of land provides expressly that the title to the land shall be made clear and satisfactory to the purchaser within a period of time named, a failure on the part of the seller to prove the title good to the satisfaction of the purchaser within the time named, is good ground for the recission of the contract by the latter.</p>

<p>Nuisance — Operation of manufacturing plant — Noise, vibration and smoke — Manufacturing neighborhood — Injunction—Equity.</p> <p>While noise from a factory is an inconvenience and discomfort to adjoining property holders yet where it is of a class incident to the neighborhood when the complainant went into it, and not materially greater, there is no cause for injunction.</p> <p>On a bill in equity against a locomotive works complaining of a nuisance, noise, vibration, din, and smoke, it appeared that for twenty years prior to the filing of the bill, the works in question had' been operated day and night, and that they were situated in a manufacturing neighborhood. About seven years prior to the filing of the bill, the complainant leased a residence directly across a street from the works, and used the same as a boarding house. Four years prior to the filing of the bill, the defendant erected a new building opposite a part of complainant’s premises, and in it established a plant for riveting by pneumatic tools. This work was conducted day and night. Plaintiff continued in the occupation of the residence until the time of the filing of the bill and thereafter, without any material reduction in rent. In the year prior to the filing of the bill, complainant’s sister purchased the house, and was the owner at the time of the trial. Held, that the evidence was not sufficient to justify the court in granting an injunction.</p>

<p>Appeal, No. 368, Jan. T., 1904, by plaintiff,from decree of C. P. No 2, Phila. Co., March T., 1903, No. 4,519, dismissing bill in equity in case of Thirteenth & Fifteenth Streets Passenger Railway Company v. Broad Street Rapid Transit Street Railway Company and the Philadelphia Rapid Transit Company.</p> <p>Bill in equity for an injunction. Before Sulzberger, P. J. See Commonwealth, ex rel. v. Broad Street Rapid Transit Street Railway Company, next succeeding case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Street railways — Use of streets — Broad street in Philadelphia — Acts of March 23, 1866, P. L. 299 — March 27, 1873, P. L. 435 and June 7, 1901, P. L. 514 — Statutes—Repeal of statutes.</p> <p>The Act of March 23, 1866, P. L. 299, prohibiting the laying of any railroad or railway tracks on Broad street in the city of Philadelphia, was repealed by the Act of June 7, 1901, P. L. 514.</p> <p>The Act of March 27, 1873, P. L. 435, which provided that in consideration of the surrender by the Thirteenth and Fifteenth Streets Railway Company of its claims on Broad street, no franchise should be granted thereafter to any street railway company to lay tracks on Broad street, or upon Thirteenth or Fifteenth streets, was repealed by the Act of June 7, 1901, P. L. 514. The legislature could not by the act of 1873, grant away the state’s rights of eminent domain so as to bind future legislatures.</p> <p>When the Act of June 7, 1901, P. L. 514, opened Broad street to occupation by “any railway corporation chartered under this act, or by any company which had abandoned or discontinued the use thereof,” the Thirteenth and Fifteenth Street Railway Company had no superior right to the street, and the privilege of using it was open to all on equal terms, and prior action secured prior right.</p> <p>Constitutional law — Title of statute — Street railways — Act of June 7, 1901, P. L. 514.</p> <p>The Act of June 7, 1901, P. L. 514, amending prior acts relating to street railway companies is sufficiently comprehensive in its title to cover the provisions in the act by which the Act of March 23, 1866, P. L. 299, prohibiting the laying of railway tracks on Broad street in Philadelphia, is repealed.</p> <p>The title of an act need not be, and ought not to be, a complete index of its contents.</p>

<p>Appeal, No. 170, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1903, No. 409, on verdict for plaintiff in case of Frederick Brandmeier et al. v. Pond Creek Coal Company.</p> <p>Ejectment for coal in Foster township.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court gave binding instructions for plaintiffs.</p> <p>The jury returned a verdict “ in favor of the plaintiffs, and against the defendant for an undivided one-half interest of the premises described in the writ, and apportion said half as follows: an undivided one-fourth to Erederick Brandmeier and an undivided one-fourth to Mary Mills, subject to any interest or estate, if any, of George Fernau.”</p> <p>Error assigned was in giving binding instructions for plaintiffs and in entering judgment on the verdict,</p>

<p>Appeals — Interlocutory order — Quashing appeal — Production of books and papers — Act of February 27, 1798, 3 Sm. L. 303.</p> <p>Where in an action against a railroad company to recover treble damages for an alleged illegal discrimination in the distribution of cars among shippers, an order is made making absolute a rule on the defendant to produce distribution sheets, and the defendant takes an appeal before the plaintiff enters a judgment against the defendant by default, as provided by the Act of February 27, 1798, 3 Sm. L. 303, the appeal will be quashed, inasmuch as such an order is interlocutory.</p>

<p>Appeal, No. 176, Jan. T., 1907, by defendant, from judgment of C. P. Crawford Co., May T., 1906, No. 36, on verdict for plaintiff in case of Byrninnia Beckman v. Meadville & Cambridge Springs Street Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant. [1]</p> <p>The court charged in part as follows :</p> <p>[We say to you as a matter of law, as between Mr. Beck-man and his legal representatives and this defendant company, it could not relieve itself of its obligation to Mr. Beckman by giving a contract to some other company to repair its cars, or to operate its cars, and if the cars were being hauled on the contract of another company and results in an injury to Mr. Beckman, that would not relieve the defendant. You see, the companies operated by agents; a corporation cannot run a car ; they must have persons to do so; and when the Meadville & Cambridge Springs Street Railway Company hired the Meadville Traction Company to repair its cars, the Meadville Traction Company and the persons working for it were the servants or agents of the Cambridge Springs line and the Meadville & Cambridge Springs Street Railway Company is responsible for the negligence, not only of themselves, but for the negligence of those with -whom they have contracted to do work in and about their line and cars. Nor does it matter for the purpose of this case, whether the employees who were operating this car were employees of the Meadville Traction Company, or of the Meadville & Cambridge Springs Street Railway Company. It may be there is some obligation and rights existing between these companies, but if the agent of the company that undertook to take John F. Beckman over its line was guilty of negligence which resulted in the death of Mr. Beckman, the Cambridge Springs Company is responsible for that act of the Meadville Traction Company. It is responsible for the acts of its servants, and if the cars were being operated, as we say, it does not matter, for the purposes of this case, as to whether the persons operating those cars were at that time working for the Meadville Traction Company, or for the Meadville & Cambridge Springs Street. Railway Company, providing they were acting for the defendant company as their agent or servants, and providing further, that they were guilty of negligence which resulted in the death of Mr. Beckman. You can readily see that a trolley company could not delegate its right to use its road to some other person unless the legislature permitted it to do so, and thereby relieve itself from obligation to a person that it had obligated itself to carry safely over its line. The only possible question that might arise as to this is as to whether or not these men were acting under the authority of neither company.] [10]</p> <p>Verdict and judgment for plaintiff for $3,150. Defendant appealed.</p> <p>Errors assigned among others were (1, 10) above instructions, quoting them.</p>

<p>Appeal, No. 182, Jan. T., 1906, by defendant, from judgment of O. P. Lancaster Oo., Aug. T., 1902, No. 93, on verdict for plaintiffs in case of Downey Bros. Spoke and Bending Company, Incorporated, v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover, .damages for injuries to land, resulting from change of grade of a street.</p> <p>The opinion of the Supreme Court states the case.</p> <p>When Charles W. Bitner, a witness for the plaintiff, was on the stand, he was asked this question ;</p> <p>“Q. In front of the Downey property, as nearly as you can tell, how much did they raise the track, how many inches ? ”</p> <p>Objected to by the defendant, unless he measured it.</p> <p>The Court: The witness may answer if he knows.</p> <p>“ A. I couldn’t say to a certainty. I never measured it.”</p> <p>“ Q. Give us your best judgment.”</p> <p>Objected to by defendant.</p> <p>The Court: lie may answer that.</p> <p>Defendant excepts. Bill of exceptions signed and sealed. [4]</p> <p>“ Q. As nearly as you can tell. A. Possibly eight or nine inches I would suppose, as near as I can toll.”</p> <p>Defendant presented the following points :</p> <p>1. As the plaintiff in this case is seeking to recover damages alleged to have boon caused by water flowing from North Mulberry street into its property, it cannot recover unless the injuries were caused by some act of the defendant occurring after April 19, 1901, the date of the incorporation of the plaintiff, prior to which time the plaintiff had no existence. Answer : This point is affirmed, if it means that the injuries were suffered after April 19, 1901. If it means that the act of the defendant must have occurred after April 19, 1901, to entitle plaintiff to recover, then we refuse the point. [1]</p> <p>3. As the plaintiff in this case is seeking to recover damages, alleged to have been caused by water flowing into its property from North Mulberry street, it is not entitled to recover more than such sum as would have enabled it to prevent the water from flowing into its property. Answer: This point is affirmed, if you believe that the plans proposed, or one of them, would have protected the property, or prevented the injury complained of, and then it would only be the measure of damages for such injuries as the adoption of one of these plans would have prevented. [2]</p> <p>4. If the plaintiff was damaged by reason of the raising of the railroad tracks on North Mulberry street, it was the duty of the plaintiff, after its incorporation, to do all in its power to lessen such injury, and prevent any damages caused by reason of such raising, and is only entitled to such sum as would prevent water from flowing in from North Mulberry street. Answer : This point we affirm, if you believe this could have been done and the cost would have been less than the injuries sustained. [3]</p> <p>Yerdict and judgment for plaintiff for $2,274.21. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them; (4) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 273, Jan. T., 1906, by defendants, from judgment of C. P. York Co., Oct. T., 1903, No. 53, for plaintiff on trial by court without a jury in case of William H. Stilwell v. C. Elmer Smith, S. Fahs Smith, S. Perdon Miller and Susan E. Etnier, Executors of last will and Testament of S. Morgan Smith, deceased.</p> <p>Assumpsit on a foreign judgment.</p> <p>The case was tried by agreement by the court without a jury under the Act of April 22, 1874, P. L. 108.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned among others was (1) the admission of the record of the judgment of the Arizona court; (20) entry of judgment for plaintiff.</p>

<p>Appeal, No. 373, Jan. T., 1906, by J. H. Rathfon, Receiver of the City Saving Fund and Trust Co., from decree of O. C. Lancaster Co., Feb. T., 1905, No. 30, dismissing exceptions to adjudication in Estate of Charles H. Locher, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in refusing exceptions to adjudication.</p>

<p>Executors and administrators — Misconduct—Surcharge—Failure to realize on bonds.</p> <p>Where the administrators of a decedent's estate have an opportunity to realize cash for bonds owned by the estate, but instead of doing so exchange the bonds for stock of a corporation, which proves to be practically worthless, the administrators are properly surcharged with the loss.</p> <p>Where the administrator of an insolvent estate pays out of his own funds a note of the decedent, and redeems stock pledged as collateral for the'note, which stock the administrator knows to be worthless, and thereafter the administrator repays himself from the funds of the estate, he is properly surcharged with the wrongful payment of the note.</p> <p>A finding by the auditing judge that an administrator could have sold stock at a particular price, if he had made proper efforts, is a finding of fact, and as such is entitled to as much weight as the verdict of a jury, and will be set aside only for manifest error.</p> <p>Executors and administrators — Commissions—Estoppel.</p> <p>Where administrators are guilty of gross negligence in dealing with the assets of the estate, sacrifice the securities by sales under disadvantageous circumstances, and fail to deposit large sums of money in bank, they are properly deprived of all commissions or compensation for services.</p>

<p>Negligence — County bridge — Contributory negligence — Nonsuit.</p> <p>Where a woman riding in a wagon permits the driver to drive deliberately into a swollen stream in an attempt to find and cross a low sagging county bridge without guard rails, and hidden from sight by the muddy water, and as a result the woman is precipitated into the water and drowned, no recovery can be had from the county for her death, because of her contributory negligence.</p>

<p>Wills — Life estate — Widow—Power of sale — Consumption of estate.</p> <p>Where a will gives property by words which primarily import a fee, but adds restrictions inconsistent therewith, the question is whether the intent is to give a lesser estate, or to impose restraints upon the estate given. Cases of conflicting provisions are to be classified on this line of distinction.</p> <p>While a devise for life, with an unlimited power to consume, does not necessarily imply a fee, yet it does enable the devisee to convey in fee. The power to consume realty includes the power to convey.</p> <p>Testator directed as follows: “All the balance, or whatever may remain then of my estate, real, personal and mixed, I give, devise and bequeath to my beloved wife whom I desire to be the real owner thereof, and for her only proper use, benefit and behoof, during her natural life, or so long as she remains my widow, with, full permission to her to use and live therefrom as her necessities may-require and she to have the full ownership thereof, the same as I now have, and have had during my natural life. When my beloved wife dies, my will is, whatever may then remain of my estate, real, personal or mixed, I desire that the said remaining portion, if any, be given to my beloved daughter.” Held, that while the widow did not take a fee simple, she had a power to consume the real estate, and therefore a power to convey it, and make a good title.</p>

<p>Contract — Railroad—Agreement as to siding — Authority of president— Ratification of contract.</p> <p>Where an owner of land abutting on a railroad enters into an agreement with the president of the railroad company to erect a sawmill, for the consideration, among other things, of the company constructing a siding for the use of the mill, and the contract is completely carried out, and both parties enjoy the benefit of it for a period of nine years, it will be presumed that the railroad company ratified the act of the president in making the contract, although he may have had no legal power at the time to make it on behalf of the company.</p> <p>A corporation may not avail itself even of ultra vires as a defense, where a contract has been entered into and executed in good faith by the other party, and the corporation has received the benefit of the performance.</p>

<p>Appeal, No. 7, May T., 1906, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 373, for defendants in quo warranto in suit of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. Frederic P. Heller et al., Board of Water Commissioners of the City of Reading.</p> <p>Quo warranto to determine title to office.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment in favor of the defendants.</p>

Appeal, No. 1, May T., 1907, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1905, No. 316, on verdict for plaintiff in case of Mary Farner v. Massachusetts Mutual Accident Association. Assumpsit on a policy of accident insurance. At the trial the jury returned a verdict for the plaintiff for $2,056.60.

<p>Negligence — Damages—Exaggeration of injuries — Evidence.</p> <p>In an accident case where the defense charges simulation or at least gross exaggeration of injuries, and where the medical evidence is conflicting, it is proper for the trial judge in his charge to refer specifically to the subject of interest in the plaintiff, and to dwell somewhat on the weight of the other evidence; but he is not bound to do so. If he correctly instructs the jury as to their duty, in considering the weight of the evidence and the credibility of the witnesses, he cannot be charged with error in not going further.</p>

<p>Appeal, No. 348, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1903, No. 3,736, on verdict for defendant in case of Mary Kemper v. Thomas R. Fort, Jr.</p> <p>Trespass for libel.</p> <p>At the trial it appeared that one Austin W. Bennett, as guardian for Jesse C. Claggett, filed a petition in the orphans’ court as of January Term, 1896, No. 473, to review the accounts of William S. Price and Thomas R. Fort, Jr., executors and trustees under the will of Thomas W. Price, deceased. It was claimed by Jesse O. Claggett that as a child of Mary S. Claggett, daughter of the testator, and a remainder-man under his grandfather’s will, he had a standing to maintain the petition.</p> <p>The executors filed an answer in which they used the following language:</p> <p>“ And they further aver that the said Jesse O. Claggett denies that the said Jesse O. Claggett, minor, is his child, and aver that the mother of said minor, Mary S. Claggett, has confessed both by word of mouth and by writing that her son, the said minor, on behalf of whom this petition is presented, is not the son of the said Jesse O. Claggett; basing upon these and other facts known to the respondents the respondents aver that the minor represented by Austin W. Bennett as guardian is not the legitimate issue of Mary S. Claggett, but is an illegitimate child, and hence is in no wise entitled to take under the bequest in the will of Thomas W. Price, deceased, to the issue of Mary S. Claggett, and is not entitled to maintain the citation in this case.”</p> <p>The court gave binding instructions for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Negligence — Electric law — Telephone and telegraph companies — Master and servant — Fellow servant.</p> <p>In an action against a telephone and telegraph company to recover damages for death of plaintiff’s husband, a judgment for defendant will be sustained where the evidence shows that the deceased at the ’ time of his death was employed by the defendant in stringing wires, that his death was caused by a wire which he was stringing coming in contact with a heavily charged wire of an electric light company, and that the accident was caused either by the negligence of follow workmen in manipulating the wire with a rope supplied by the defendant which was apparently long enough for the purpose, or by the failure of the foreman of the gang to take from the defendant’s supply store, where a sufficient supply of rope was kept, an amount thereof sufficient for the work in hand.</p> <p>Prescott v. Ball Engine Co., 176 Pa. 459, followed.</p> <p>Negligence — Electric law — Telephone and telegraph companies — Rubber gloves — Failure to provide.</p> <p>The failure of a telephone and telegraph company to supply rubber gloves to an employee cannot be set up as negligence upon its part where it appears that the proximate cause of the employee’s death was the negligence of a fellow servant.</p>

<p>Contract — Offer and acceptance — Corporations—Subscription to stock.</p> <p>Where the owner of a store building offers to lease the same to a trading corporation, and as an inducement to the company to take the lease, offers to provide a large sum of money in cash for an issue of the preferred stock of the company, and such offer is accepted by the corporation, the transaction establishes a valid contract between the parties based upon sufficient consideration, and not lacking mutuality.</p> <p>In such a case an acceptance of the offer will be implied, apart from any formal acceptance by the board of directors, where it appears that the offer was made to the director and general manager of the company by whom it was communicated to several directors, that subsequently in pursuance of the offer the board summoned a stockholders’ meeting to increase the capital stock to furnish the preferred stock contemplated by the offer, that such increase was subsequently authorized by the stockholders, and that the person making the offer was elected a director, appointed on a committee to carry out the arrangement contemplated, and made statements in writing which indicated that he understood that the corporation had accepted his offer.</p> <p>Corporations — New Jersey corporations — Capital stock — “Capital paid in cash or property.”</p> <p>The provision in the New Jersey corporation act prior to the amendment of 1901, that “at no time shall the total amount of preferred stock exceed two-thirds of the actual capital paid in cash or property,” is to be construed as meaning that the preferred stock shall not exceed two-thirds of the actual property of the company. The words “actual capital” in the act do not mean capital stock.</p> <p>There is a distinction between the capital of a corporation and its capital stock, though they are often used as interchangeable terms. The capital stock is clearly not the same as property possessed by the corporation; for the capital stock remains fixed although the actual property of the corporation varies in value, and is constantly increasing or diminishing in amount. What the amount of the capital shall be is within the discretion of the managers, but the amount of the capital stock is limited and determined by the charter and the law governing it.</p> <p>Contracts — Breach of contract — Agreement to purchase stock of a corporation — Measure of damages.</p> <p>Where a person agrees to purchase the preferred stock of a corporation for a large sum in cash, but fails to carry out his contract, the measure of damages for the breach is the difference between the amount of the cash mentioned and the amount actually paid by the purchaser or procured to be paid through his efforts for the preferred stock.</p> <p>Practice, C. P. — Charge—Points.</p> <p>Where a trial judge properly answers points submitted to him, he is not obliged to repeat the same instructions in the general charge.</p> <p>Practice, C. P. — Sending out statement of claim with jury.</p> <p>It is not reversible error for the court to permit the statement of claim to go out with the jury, where the statement is a mere calculation of the amount claimed by plaintiff, and the court properly cautions the jury as to the use they are to make of it.</p> <p>Evidence — Foreign document — Foreign corporation — Certificate of increase of stock.</p> <p>It is no ground for refusing to admit in evidence the certificate of the increase of the stock of a New Jersey corporation, that the certificate of the secretary of state does not have upon it the great seal of the state of New Jersey, and is not in the form required by the act of congress.</p>

<p>Principal and agent — Purchase of stock — Compensation of agent— Continuance of the relation.</p> <p>Where a person offers himself as an agent for the purchase of stock of a corporation, and his offer is accepted, the fact that he is not to receive compensation from the principal, does not affect the relation of principal and agent.</p> <p>Where an agency has been once entered upon, except the contrary be shown, the law will presume that whatever was done in furtherance of the original scheme which the agency was created to effect, was done under and through the agency. The burden of showing that the relation was changed before or during the transaction, rests upon the party so affirming. »</p> <p>An agent to purchase cannot be allowed, except as his principal assents, to purchase for himself. He can acquire nothing by such adverse purchase, even though he contribute of his own means or credit to effect it; the product will belong to the principal exclusively.</p> <p>To relieve an agent from the duties and obligations which he has assumed as such, his renunciation of the agency must not only be positive and unequivocal, but it is essential that it be made known to the principal. An undisclosed purpose to renounce is without effect. As the intelligent assent of the parties is necessary to establish the relation, so its dissolution must rest upon the knowledge of both.</p> <p>Where a son without means of his own requests his mother to permit him to purchase in his own name with moneys provided by her, certain blocks of stock of a corporation in which the son is an official, and it appears that the stock is to be offered for sale at intervals, and that both parties know that the moneys of the mother will not be sufficient to purchase all of the stock, the son does not effectively renounce his agency by saying to his mother after her moneys are exhausted, that he is going out to do something for himself, and thereafter pledging with his own notes the stock previously acquired, and using the proceeds thereof to purchase the stock subsequently offered for sale.</p>

<p>Appeal, No. 20, Jan. T., 1907, by plaintiff, from decree of C. P. Luzerne Co., May T., 1903, No 5, dismissing bill in equity in case of The Hollenback Coal Company v. The Lehigh Wilkes-Barre Coal Company.</p> <p>Bill in equity for an injunction.</p> <p>The bill set forth :</p> <p>That on December 30, 1869, the plaintiff, a Pennsylvania corporation, leased, demised and to mine let unto the defend-, ant’s predecessor “ all that vein or seam of coal known as the-Baltimore vein, and the veins or seams of coal overlying the Baltimore vein,” upon certain lands of the plaintiff, together with certain surface, which lease and the several extensions thereof, ended October 1, 1900.</p> <p>That during the term of said lease a certain culm bank, known as the Diamond bank, accumulated on a portion of said surface as a result of the mining operations in the Baltimore and overlying veins.</p> <p>That under said lease only coal of such size as will pass over a five-eighths inch mesh was intended to be sold, and everything under that size and coal thrown out and not marketed by the lessee belonged to the lessor. That, even if this were not the case, said coal became the property of the lessor after the termination of the lease.</p> <p>That plaintiff leased to the defendant the veins of coal underlying the Baltimore on April 1, 1887, and also part of same surface, and that said surface was so again leased only to enable the lessee to mine the coal underlying the Baltimore.</p> <p>That on February 25, 1903, plaintiff notified defendant of its desire to reclaim a portion of said surface, and defendant made answer that the surface mentioned in said notice was almost entirely covered by culm owned by defendant, which it intended to screen, that such reclaiming would interfere with the business of defendant, and that defendant declined to accede to the request.</p> <p>The bill prayed.</p> <p>1. That a decree be entered declaring title to the said culm to be in the plaintiff.</p> <p>2. That the defendant be required to release to the plaintiff the land described in the reclaiming notice.</p> <p>3. That defendant be restrained from using, leasing, screening, selling or interfering with the rights of the plaintiff in the Diamond bank.</p> <p>The material portions of the lease are quoted in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Negligence — Railroads—Master and servant — Locomotive engineer— Locomotive cleaner — Fellow servant.</p> <p>A locomotive engineer is a fellow servant of a locomotive cleaner, and if the latter is injured by the iron door in front of the locomotive falling upon him, and the accident is due to the absence of pins or bolts from the hinges on which the door was intended to swing, he cannot recover from the railroad company for his injuries, if it appears that the engineer in charge of the locomotive had knowledge of the absence of the pins, and had failed to make a written report to the company of such fact, which he was required to do under the rules of the company, and which he had done on former occasions.</p> <p>If a master employs competent and skillful persons for the purpose of inspection, and affords them reasonable opportunity and facilities for the work under proper instructions, the master will not ordinarily be liable for the negligent performance of the work by such persons, to a fellow employee, unless the master knows, or by ordinary diligence ought to have known of the defective manner in which the inspection was conducted.</p> <p>When the employee’s duty to inspect or repair the apparatus, is incidental to his duty to use the apparatus in the common employment, he is not intrusted with the master’s duty to his fellow servant, and the master is not responsible to his fellow servant for his default.</p>

<p>Principal and agent — Scope of agency — Evidence.</p> <p>Where the fact of agency is not questioned, the agent is a competent witness as to the scope of the agency.</p> <p>Where a corporation places a person in charge of its general business in a particular city as manager or general agent, and holds him out by signs and other ways as manager or general agent, the company is liable on a contract made by such agent in the ordinary course of business, as business was conducted by such manager at the particular time and place.</p> <p>Evidence — Corporations—Treasurer—Minutes.</p> <p>Where a treasurer of a corporation is called as a witness as to circumstances leading up to the execution of a contract by the corporation, and it appears that the contract was not executed by the treasurer, and it also appears that the question as to whether the witness was treasurer, was immaterial on the main issue, it is not necessary to prove by the minutes of the board that he was in fact the treasurer.</p> <p>Contract — Rescission—Conditional acceptance.</p> <p>Where a person executes a contract with the owner of a patent, and the contract contains no reference to foreign patents, but by a letter with which the contract is inclosed it is stated that the paper was signed conditionally on the procuring of certain foreign patents, and shortly thereafter, and before the patents could be procured, the party executing the contract repudiates it on the ground of lack of authority in the agent who signed it, such party cannot thereafter in a suit on the contract, defend on the sole ground that the foreign patents had not been taken out.</p>

<p>Appeal, No. 191, Jan. T., 1907, by defendant, from judgment of C. P. York Co., Oct. T., 1906, No. 48, on verdict for plaintiff in case of Paul Wesley Stine v. S. Morgan Smith Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 64, Jan. T., 1907, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1905, No. 471, for defendants non obstante veredicto in case of Charles C. Craighead, surviving partner of the firm of R. R. Craighead & Bro., now for use of John A. Craighead, by W. P. Stuart, committee of said John A. Craighead, now for use of Margaret E. Craighead, Executrix of John A. Craighead, deceased, v. G. Wilson Swartz and R. W. Woods, Administrators d. b. n. c. t. a. of John W. Craighead, deceased.</p> <p>Assumpsit on promissory notes.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $6,025.31, subject to question of law reserved.</p> <p>The court subsequently entered judgment for defendants non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendants non obstante veredicto.</p>

<p>Appeal, No. 258, Jan. T., 1907, by defendant, from judgment of O. & T. Phila. Co., Dec. T., 1906, No. 366, on verdict of guilty of murder of the first degree in case of Commonwealth v. Luigi Ferruchi.</p> <p>Indictment for murder.</p> <p>The court charged in part as follows :</p> <p>The question for you to decide in this case is whether the commonwealth has made out its charge against this defendant. It has brought before you several witnesses regarding that. There is Dr. Wadsworth, the coroner’s physician, who testifies before you to the finding of the five bullet holes in this man’s body in vital parts; there is the testimony of the widow, who says she raised the window and saw the defendant fleeing from the house; there is the testimony of her sister, who heard the shrieks of the widow as she came down the stairs; there is the testimony of the saloon keeper, who came to the door after the shots had been heard, but he saw only the gathering of the people after the body was drawn from the alley upon the pavement outside; there is the testimony of the son of the saloon keeper, who says as he came to the door he saw this man, the prisoner, running, and he followed him and gave notice to the policeman, the prisoner having passed by the spot where the policeman was at the call box, and the prisoner was arrested as he reached Marshall and Bainbridge streets, and brought back; there is the testimony also of Antonio, who had been drinking with them, and who described to you that the last man seen with the dead man when Antonio was leaving was the prisoner, and that the two men were together and Antonio left them at the entrance to this house, No. 707 Kater street; there is also the testimony of the man who lives in the house opposite, 712 Kater street, who describes how he saw a certain man running from this house! Again, you have the testimony of officer Davis, who described the arrest of the defendant, and as Davis put his hand in the defendant’s pocket Davis drew from it his right hand, and in it was a revolver that was still hot, with the five shots discharged. There is also the testimony of the deputy coroner, Bainbridge, as well as Buckley and Lockhart, who tell you where the hat was found, and they trace it. Then you have the testimony of four other men connected with the police department as to the taking of the statement. [You will bear in mind that the prisoner was then charged and knew that the officers would make use of this statement for or against him. "What he said to them he now. admits before you was not the truth, and to my mind it tends to bear out what the commonwealth charges, that this was the act of a coward when he imbedded the five buliets in the body of his friend. For you will use your knowledge of human, nature and consider if the first thing a coward does is not to lie as one of the means to use to escape from the consequences of his act, and this statement, according to the testimony of the prisoner himself, was an untruth when he knew he was to be charged with having killed this man.] [8]</p> <p>Therefore, we return to the scene of this incident. You will recall that it is a small house of six rooms, and the entrance is by a door on Kater street, and then you enter a hallway, and on the left is one room, and as you walk back through the. hallway or entry there are stairs which run between the two rooms and the hallway still continued back into the yard. This to my mind becomes important, because you must bear in mind that the defense is that the dead man made an unprovoked assault upon the defendant, that the prisoner had no means of escape, and in order to save his life, being at the time under the mortal fear and dread of great bodily harm, or loss of life, that thereby it became compulsory on him to shoot. Now, if under the evidence you do not believe these facts, and if you believe the prisoner could have escaped, even though attacked ; if you believe he could have fled from the place and could have saved his life without the use of the pistol, then his defense falls to the ground, and you should consider the testimony on the part of the prosecution that it was a deliberate and willful murder. Now, therefore, you will keep in mind what his story is. Having admitted that the first story he told was not the truth, then he tells a second story, that as he stood there, having relieved himself and buttoning his trousers, his friend attacked him, and proceeded to rain the blows upon him, so many as thirty. Now, what would a man have dono, and I say you must weigh the credibility of his story. He says he had a moment before found the front door open and had passed through it. What would a man have done? You must consider that. It is for you to say, not for me. It is for you to weigh the probability and likelihood of his story. He had a revolver; he knew that he was armed. He knew he had a deadly weapon and he did not want to use it on his friend, as you will remember. What would he have done under those circumstances ? He would have gone out, possibly you will think, the way that he came, because he did not know at that time there was a gate that was bolted, as he claimed it was bolted. You must consider whether he Would have taken his chances in finding a bolted gate to stop his way, or whether he would have made an outcry, possibly you will think, but still he says he did not. He did not warn or caution his friend, continuing to beat him, that he was armed and would kill him. He says he did not do that. That is a fact for you to weigh on the credibility of his story. When it came to the point that there was the necessity to shoot, he does not tell you that he warned his friend that he would shoot, and he said he had not made an outcry at the moment he was going to shoot, as he says, to protect his life. That it was to protect his life is a fact for you to find, and if it is not in the evidence or in your belief from Ms evidence, then you must find against his plea of self-defense. After he drew the deadly weapon how did he fire ? Now, it is for you to consider, weighing the value of his testimony. You will consider what a man would do under such circumstances. Would he have fired to kill or have fired to alarm his assailant, his friend ? What would he do % It is for you to say. You are men of the world, and you have been in contact with men before. It is a point for you to decide. You must weigh that and decide where the truth is, because if you believe the commonwealth’s contention, it was a cruel and deliberate murder, and you should not hesitate to find it so. On the other hand, if you believe what the defendant says, that at the moment when he fired the first shot, or just after he fired it, his life was in danger, of course that would be self-defense, and you could acquit him, for that would be justifiable. Not only that, but you will consider, weighing the' further testimony upon this point, that he did not fire but once, but continued to put bullet after bullet into the man until after the fifth bullet was sent into vital parts, when he dropped. That is what the prisoner says. Then what did the prisoner do % This point is not denied by the prisoner. It is admittód that he ran. That is always a material point for juries to consider after the commission of a crime, if it is a crime. What was the action of the accused ? You will bear in mind that his claim before you is that he was absolutely innocent and took this means of saving himself. Now, that is what he wants you to believe here. Therefore, you should consider what his conduct was. Now, you will remember he was in a locality in which his language was spoken. It is an Italian quarter. He said nothing as he ran, but ran by the door of the saloon from which he had just come, where the son of the proprietor was standing. He did not accost the boy, but went on, trotting down Seventh street until he came to Bainbridge, where Policeman Davis was at the box; nor did he tell him about this, but turned and ran east and finally stopped where he was caught by the policeman, being about at a walk when the policeman took him. Is that the conduct and course of a man who is innocent, and who has killed another, as he claims, in self-defense ? If you believe it is, of course it should not weigh in your minds as against the truth, of his story. But I say what he did then, or failed to do, is for you to consider as bearing upon the value and truth of his story, and as to whether what he says was the fact.</p> <p>Defendant presented these points:</p> <p>2. The defendant having retreated until his means of escape were cut off, and only used the pistol to defend himself when he apprehended immediate danger and possible loss of life, the shooting was justified and your verdict should be not guilty. Answer: That point is refused, as it omits to refer to other facts in evidence necessary to be found by the jury to justify the shooting, and also requests the court to find facts within the province of the jury under the evidence. [4]</p> <p>3. The finding of defendant’s hat under the circumstances you have heard should be taken as a corroboration of defendant’s story. Answer: That point is refused, as finding the hat tends as much to confirm the contention of the commonwealth. [5]</p> <p>4. The condition of the gate should be taken by you as corroboration of defendant’s story. Answer : That point is refused for the same reason. [6]</p> <p>7. Defendant’s testimony is uncontradicted and should be accepted as true, and, if you find that this is so, your verdict should be not guilty. Answer: That point is refused. [7]</p> <p>Yerdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were (4, 7) above instructions, quoting them.</p>

<p>Will — Issue devisavit vel non — Undue influence — Evidence.</p> <p>On the trial of an issue devisavit vel non there was evidence that the will was dictated by testator t'o counsel, written out by the latter in testator’s presence, read over to him and approved, no one else being present during this time, unless the person named as executor may have passed in and out of the room, but there was no testimony that he took any part in the matter. Testator did not sign it at once, but after dinner, at which nothing was said about the will, witnesses who had been sent for came in, and the will was signed in their presence. The principal beneficiary was not present, and was not shown to have had anything to do with the making of the will, or even any knowledge of its provisions. The testator lived two years- and a hah afterwards, driving about alone, and visiting his other relatives, with ample opportunity to alter his will if not satisfied with it. Testator lived with the beneficiary, and there were some meager allegations that the latter had kept other relatives away from testator, had endeavored to persuade him that an attempt had been made to poison him, and that he should have a revolver to protect himself from injury. Held, that the court committed no error in taking from the jury the question of undue influence.</p>

<p>Appeal, No. 110, Oct. T., 1907, by plaintiffs, from decree of C. P. Armstrong Co., June T., 1905, No. 80, dismissing bill in equity in case of Sarah Osterman, by her Guardian, W. A. McAdoo, v. Lucy R. Patterson et al.</p> <p>Bill in equity to set aside a deed made by Mrs. Sarah Osterman to the defendants, her three daughters, on October 5, 1904.</p> <p>The complainant alleged that the deed was procured by coercion and undue influence.</p> <p>The court in an opinion by Patton, P. J., found as a fact that there was no coercion or undue influence, and dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Statute of frauds — Parol agreement to devise land — Evidence—Ejectment.</p> <p>In an action of ejectment it appeared that the plaintiff claimed title by a deed from a grantee of her deceased husband. The defendant had no paper title but relied upon a parol agreement of the plaintiff’s husband to devise the land in question to him if the defendant would remain and make his home with the promisor until he should be of age. The defendant, who was a nephew of the promisor, remained on the land until the latter’s death when the defendant was more than twenty-one years old. The uncle made a will by which he left the land in question to the defendant’s father for life subject to the widow’s rights with remainder to the defendant. The uncle prior to his death becoming financially embarrassed conveyed the land to a third person. The latter after the uncle’s death conveyed the land to plaintiff. Defendant did not establish an independent possession in himself, but his possession was under the plaintiff. Held, that the defendant’s claim was barred by the statute of frauds.</p>

<p>Corporations — Capital stock — Indebtedness—Subsequent creditor.</p> <p>Where a corporation, in dealing with its stockholders and creditors in good faith, reduces its liabilities $27,500 at a cost of less than $5,000 in reduction of real estate which is not needed in the operation of its plant, a subsequent creditor cannot complain that the transaction involved a reduction or impairment of capital stock which affected his rights.</p>

<p>Appeal, No. 191, Oct. T., 1907, by plaintiff, from decree of C. P. Jefferson Co., Aug. T., 1907, No. 4, dissolving preliminary injunction in case of Brock Railroad Company v. Brookville & Mahoning Railroad Company.</p> <p>Bill in equity for an injunction.</p> <p>In addition to the facts stated in the opinion of the Supreme Court it appeared that the plaintiff’s road was used exclusively for transporting coal from the Brock mines, and was only occasionally operated for that purpose, not more than one trip being made daily.</p> <p>The court entered a decree dissolving the preliminary injunction.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 154, Oct. T., 1907, by defendant, from decree of C. P. Greene Co., No. 105, in equity, on bill in equity in case of William K. Hatfield v. L. B. Clovis.</p> <p>Bill in equity for specific performance.</p> <p>From the record it appeared that on May 19, 1905, L. B. Clovis executed an option in writing to H. J. Price for certain coal lands.</p> <p>The option contained the following provision:</p> <p>“For and in consideration of the sum of $1.00, the receipt whereof is hereby acknowledged, the party of the first part agree that the party of the second part shall have until July 10, 1905, to accept the coal herein described, as the same may be determined by the engineers of the party of the first part (the party of the first part to furnish a complete abstract of title). And if the party of the second part does not give notice of such acceptance by the said date, this contract shall be void and of no further effect.”</p> <p>The option subsequently came into the ownership of William K. Hatfield, the plaintiff, by mesne assignments from Price.</p> <p>The court found, inter alia, the following facts:</p> <p>4. That on July 8, 1905, J. A. Phillips for H. J. Price and Smith Hood, Jr., gave notice to said L. B. Clovis of their acceptance and election to purchase said coal and mining rights on the terms set forth in said contract, and tendered the $100 to pay the expenses of surveying, making abstract, etc., as stipulated in said contract, which was refused by the said L. B. Clovis; and that again on July 10, 1905, H. J. Price and Joseph Phillips gave notice thereof, to the said L. B. Clovis, of the acceptance of said contract and at the same time tendered him the sum of $100, to pay the expenses of surveying, making abstract, etc., which said money so tendered the said L. B. Clovis refused to accept.</p> <p>The court entered a decree of specific performance.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeals, Nos. 221 and 222, Jan. T., 1907, by defendant, from judgment of O. & T. Phila. Co., Aug. Term, 1906, No. 303, on verdict of guilty of murder in the first degree in case of Commonwealth v. Jung Jow and Commonwealth v. Mock Kung.</p> <p>Indictment for murder.</p> <p>The assignment of error was in the following form:</p> <p>The error of the learned court consisted in its refusal to grant a new trial, such refusal constituting a clear abuse of its discretion.</p>

<p>Appeal, No. 328, Jan. T., 1907, by defendant, from judgment of O. & T. Phila. Co., Nov. T., 1906, No. 624, on verdict of guilty of murder of the first degree in case of Commonwealth v. William H. Johnson.</p> <p>Indictment for murder.</p> <p>At the trial it appeared that on October 20, 1906, the prisoner had a quarrel with a man named John Pritchett. About a quarter of an hour to half an hour afterward the prisoner went to Pritchett’s room and discharged a pistol at him, but shot and killed Rebecca Johnson. The prisoner claimed that he shot at Pritchett because the latter ivas about to shoot at him.</p> <p>The court submitted the case to the jury defining the various degrees of homicide, including manslaughter.</p> <p>Verdict of guilty. The defendant was sentenced to death.</p> <p>Errors assigned were in the following form :</p> <p>1. That the learned court erred in refusing to give the jury instructions for manslaughter.</p> <p>2. That the court erred in declining the instructions asked for by tho defendant.</p> <p>3. That the court erred in overruling the defendant’s motion for a new trial.</p> <p>4. That the court erred in permitting hearsay testimony set out in the bill of exceptions.</p>

<p>Appeal, No. 25, Oct. T., 1907, by Elsie E. Regan, Administratrix, from decree of O. C. Somerset Co., No. 41, 1903, dismissing exceptions to auditor’s report in Estate of Thomas F. Regan, deceased.</p> <p>Exceptions to report of H. L. Baer, Esq., auditor.</p> <p>The auditor’s report was in part as follows:</p> <p>Not having the care in assuming the responsibilities that her trust as administratrix cast upon her, she permitted the personal property of the decedent to be sacrificed. Property that was appraised by good and true men at $2,161.51 she sold for 1292.55, not acting judiciously in the sale, in that she permitted the auctioneer to sell nine barrels of whisky in bulk at and for the sum of $15.00, when, in fact, each barrel would have brought twice that sum if she had given proper attention to the sale. In this manner the creditors were deprived of their share of the assets which of right they were entitled to. And the next morning after the sale, Eichards, the purchaser of all the personal property set forth in the appraisement, excepting the pig, turned the property over to the administratrix without having removed any of it from the place where it was sold or paying any money over to the administratrix, and without receiving any profit from the transaction. Eichards, who was present at the audit, was not called to explain this transaction. The auditor is of opinion that it was the duty of the administratrix to call him as a witness to explain his connection with this sale, and her failure to do so, in connection with the other testimony, satisfies the auditor that there was an agreement between them by which he was to purchase the property for her.</p> <p>Under the circumstances the auditor deems it right and proper to surcharge the administratrix with the total amount of the appraisement, to wit: $2,161.51. This same property, which was turned over to her by William Eichards, the administratrix sold during the next ten months and realized therefor the sum of $3,000.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

Appeal, No. 62, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1901, No. 789, dismissing bill in equity in case of Martha Davidson v. Rev. Charles McCaslin et al. Bill in equity to cancel a deed. The court found the facts to be as follows : At the time this deed was executed Hugh Davidson was about sixty-eight years old.

<p>Wills — Devise—Legacy.</p> <p>Where a testator devises land to one person with a direction that if the devisee shall at any time sell the land for an amount in excess of a sum named, the overplus should be paid to another person, and the devisee dies without having sold the land, whatever interest the other person had under the will, comes to an end.</p>

Appeal, No. 305, Jan. T., 1907, by defendant, from order of C. P. Fayette Co., Dec. T., 1906, No. 325, discharging rule to open judgment in case of Daniel J. Johnson and Charles H. Gorley v. Royal Insurance Company of Liverpool. Rule to open judgment. The opinion of the Supreme Court states the case. Error assigned was the order of the court.

Appeal, No. 150, Oct. T., 1907, by plaintiff, from order of C. P. Butler Co., Dec. T., 1905, No. 55, refusing to take off nonsuit in case of L. O. Purvis v. Buffalo, Rochester & Pittsburg Railroad Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 73, Oct. T., 1907, by Fidelity Title & Trust Company, Ancillary Administrator of the Estate of James H. Hopkins, deceased, from decree of O. C. Allegheny Co., Oct. T., 1905, No. 236, dismissing exceptions to adjudication in Estate of Virginia Rahm, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Virginia Rahm died in 1870, leaving a will by which she appointed James J. Hopkins her executor. Hopkins subsequently became a trustee of the property left in trust by the will, and also thereafter a guardian of Edward Rahm, Jr., a son of Virginia Rahm. Edward Rahm, Jr., became of age on June 27,1881. Shortly thereafter Hopkins filed his final account as guardian, and made settlement with his ward. In 1905, Edward Rahm, Jr., filed a petition for a citation to the Fidelity Title & Trust Company, ancillary administrator of the estate of James H. Hopkins, deceased. He claimed that Hopkins, as executor, trustee and guardian, had omitted from his accounts securities aggregating in value $31,512.56.'</p> <p>The court in an opinion by Hawkins, P. J., sustained an adjudication in which the above amount was awarded to petitioner, together with interest from October 5,1875, compounded at four per cent, and amounting to $74,510.99, making an aggregating surcharge of $106,023.55.</p> <p>Miller, J., filed a dissenting opinion which is quoted in part in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Criminal law — Murder—Assault and battery with intent to kill — Twice in jeopardy — Autrefois convict — Habeas corpus.</p> <p>Where a person has been convicted of assault and battery with intent to kill, and thereafter his victim dies, and he is indicted for murder, he cannot plead autrefois convict as a defense, since he has not been placed twice in jeopardy'for the same offense,</p> <p>Where a person has been convicted and imprisoned for assault and battery with intent to kill, and thereafter his victim dies, he may be removed from the penitentiary by a writ of habeas corpus at the instance of the district attorney, and indicted and tried for murder.</p>

<p>Appeal, No. 91, Oct. T., 1907, by defendant, from judgment of C. P. Cambria Co., March T., 1903, No. 355, on verdict for plaintiff in case of D. A. Sipe v. Pennsylvania Railroad Company.</p> <p>Assumpsit, with statement of claim sounding in damages for trespass to real estate.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $13,250. Defendant appealed.</p> <p>Errors assigned were (1) in overruling demurrer to the form of action and statement filed thereunder; (2) in refusing to strike off appeal, and (29, 31) refusal to affirm points quoted in the opinion of the Supreme Court.</p>

<p>Appeals, Nos. 3 and 4, Oct. T., 1907, by defendants, from judgment of C. P. Cambria Co., Dec. T., 1905, No. 199, on verdict for plaintiff in case of Luke A. Byrne v. The Cambria & Clearfield Railway Company and The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for injuries to a milldam.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial when the plaintiff was on the stand he was asked this question : “ Qi About what amount of damage has been done to your mill property by reason of this filling up of the dam and the necessity for the cleaning of the race and injury to your mill ? ”</p> <p>Mr. Storey : Defendants’ counsel objects to the question for the reason that it is asking a question in bulk, without giving a single item of cost or damage for anything that he has heretofore stated, and the question in its present form is improper and objectionable.</p> <p>The Court: We cannot say that it is inadmissible because he has failed to state the items so far. We overrule the objection and admit the testimony; the question of the sufficiency is a question which we will not pass upon at this time. We note an exception and seal a bill for the defendants.</p> <p>“ A. Four thousand dollars, I claim.” [1]</p> <p>James Lantzy was asked this question: “ Q. What do you say that the damage has been that has been caused by the deposit of the mud that has gone into the dam and race since the opening of this original channel to that mill property, calculating the removal and the consequence that followed from that obstruction ? ”</p> <p>Objected to for the reason that it is improper, calculating consequential damages, and that the witness has not shown that he has sufficient information to give an estimate on that subject.</p> <p>The Court: We believe the witness can take into account any damage heretofore caused and any damages which will reasonably and directly follow from the action of the defendants in this case so long as it is likely to continue. We overrule the objection, note an exception, and seal a bill for the defendant companies.</p> <p>“ Q. What do you say the damage has been that has been caused by the deposit of the mud that has gone into the dam and race since the opening of this original channel to the mill property, calculating the removal and the consequences that followed from that obstruction? A. Four thousand dollars for the damage that has been and what will accrue, to the best of my knowledge.”</p> <p>Mr. Storey: We ask the court to strike out the last answer for the reason that future damages are not to be considered in this action; that the witness included in his answer future damages.</p> <p>The Court: We refuse that request and note an exception and seal a bill for the defendants. [6]</p> <p>Yerdict and judgment for plaintiff for $3,365.83. Defendant appealed.</p> <p>Errors assigned, among others, were (1, 6) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 77, Oct. T., 1907, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1906, No. 419, for plaintiff on quo warranto in case of Commonwealth ex rel. Joseph Boland v. William Topper.</p> <p>Quo warranto to determine title to office of tax collector of Cresson township.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Negligence — Death—Damages—Measure of damages — Widow.</p> <p>In determining the damages which a widow is entitled to recover for the death of her husband, the loss is to be ascertained by taking into consideration what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and would have gone for the benefit of his widow, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure. Under this rule it is the duty of the jury to ascertain the earning power of the deceased at the time of his death, not what he earned in any one year that the- jury may select, and make that the basis of his earning capacity during the period of his expectancy. In estimating the total damages the jury must consider the time the deceased is expected to live and also the fact that during that time his earning capacity will diminish as the years go on. Having thus ascertained the total sum, its payment must be anticipated and capitalized and the present worth obtained.</p> <p>In such a case a charge is erroneous which fails in these particulars: (1) in permitting the jury to select the amount earned by the deceased in any one year as the basis of ascertaining the amount of the verdict; (2) in permitting the jury to ascertain the amount of the damages by multiplying the amount earned by the deceased in any one year by the number of years of his life expectancy; and (3) in failing to tell the jury that the sum ascertained by considering the earning power of the deceased at the.time of his death,and the number of years of his life expectancy should be anticipated and capitalized so as to ascertain its value at the date of the rendition of the verdict.</p>

<p>Appeal, No. 93, Oct. T., 1907, by defendants, from judgment of C. P. Cambria Co., June T., 1905, No. 275, on verdict for plaintiff in case of Isaac Mahan v. H. E. Clark and S. T. Schrack.</p> <p>Replevin to determine ownership of logs and manufactured lumber.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendants.</p>

<p>Appeal, No. 182, Oct. T., 1907, by plaintiff, from judgment of C. P. Westmoreland Co., Nov. T., 1905, No. 277, on verdict for plaintiff in case of J. L. McKeever, Executor of Robert S. Robinson, deceased, v. Westmoreland Coal Company.</p> <p>Assumpsit for royalties, amounting to $20,453.10, under a coal lease.</p> <p>Yerdict and judgment for plaintiff for $7,048.08.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were to various rulings on evidence.</p>

<p>Trusts and trustees — Separate use trust — Equitable and legal estates— Estate tail.</p> <p>Where a deed to a trustee creates a separate use trust in favor of a wife, and uses words importing an estate tail in the wife, with a limitation over upon an indefinite failure of issue of the wife, the separate use trust comes to an end upon the death of the husband, and the legal estate vests in the wife. Such a case is not governed by the general rule that an equitable estate for life followed by a legal estate in remainder do not coalesce so as to vest absolute title in the holder of the equitable life estate.</p> <p>Where a deeS. of trust creates a separate use trust for a wife for life and gives, upon her death, a fee to “the children and heirs of the body of the wife,” the word “children,” coupled as it is with the words “heirs of the body,” is to be construed as a word of limitation, and the wife, upon the death of the husband, takes an estate tail which, by the act of 1855, is enlarged into an estate in fee simple.</p>

<p>Appeal, No. 10, Oct. T., 1907, by plaintiff, from order of C. P. Westmoreland Co., May T., 1905, No. 16, refusing to take off nonsuit in case of Bridget Green v. Pittsburg, McKeesport & Greensburg Street Railway Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Negligence — Master and servant — Explosion of dynamite — Defective fuse — Mines and, mining.</p> <p>In an action by a coal miner against his employer, the owner of a coal mine, binding instructions for the defendant are proper where the evidence shows that the plaintiff and a competent foreman were engaged in blasting with dynamite; that three fuses connected with charges were lighted at the same time; that within two or three minutes after the men had reached a place of safety two of the charges went off; that after waiting twenty or twenty-five minutes they started back to clear away the debris when the third charge exploded, and plaintiff was injured; that the cause of the delay was the absence of powder in some inside part of the fuse; that this defect in the fuse could not be ascertained by inspection; that the usual period of delay in an explosion did not exceed six or eight minutes, and the only instance of a longer delay was a single one in an experience of thirty-five years; that the plaintiff had worked many years in mines and knew that there was a possibility that the charge which had not exploded with the others might explode later; and that the appliances used for exploding the dynamite were those in common use in coal mines.</p>

<p>Will — Devise—Estate in fee — Substitutionary gift.</p> <p>It is a general rule that after an absolute devise in fee a provision that in case of the death of the devisee without issue, or without issue living at the time of his death, or similar phrase, then over to another, is not a limitation or curtailment of the prior devise but is alternative or substitutionary and to take effect only on the death of the first devisee in the lifetime of the testator.</p> <p>Testator after having devised one-half of his estate to his son “and his heirs and assigns” and the other half to his daughter “and her heirs and assigns,” directed as follows: “But if either of my said children shall die without leaving lawful issue living at the time of his or her death, then and in that event, the part or share of the child so dying shall go to and vest in the survivor and his or her heirs and assigns. And if both of my said children shall die without leaving lawful issue living at the time of the death of the survivor of them, then and in that event,- the shares or estates-of said children shall go to and become vested in my nephew and his heirs and assigns.” Held, that the testator’s children, surviving their father, took an absolute estate in fee.</p>

<p>Taxation — License tax — Municipalities—Boroughs—Natural gas company — Police power.</p> <p>A borough has the power to levy an annual mileage license tax on the pipes and mains of a natural gas company maintained within the limits of the borough.</p> <p>Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479, distinguished.</p>

<p>Statute of frauds — Memorandum in writing- — Parol evidence — Will— Parent and child — Description of land — Contract.</p> <p>In order to take a parol contract for the sale of lands out of the operation of the statute of frajuds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.</p> <p>Evidence of possession taken before an alleged parol contract for the sale of land is not sufficient to establish part performance. Such possession must be taken under and in pursuance of the contract, and it must be maintained as it is taken.</p> <p>The possession necessary to take a parol contract for the purchase of land, out of the statute, must be taken and maintained under and in pursuance of the contract, and must be exclusive in the vendee.</p> <p>Where an alleged parol contract of sale is between a parent and son, the evidence of the contract must be clearer and stronger than that of a similar contract between strangers, and the evidence to support it must be direct, positive, express and unambiguous. Not only must the terms and the condition of the contract and its subject be well and clearly defined, but the contracting parties must have been brought together face to face.</p> <p>In an action of ejectment, where the plaintiffs claim under a late will of their grandmother, and the defendants, a son of the decedent and his wife claim under an alleged parol contract by which they were given the land in controversy in consideration of the support and maintenance of the mother, a will and codicil made subsequent to the alleged parol contract are not memorandums in writing sufficient to take the parol contract out of the operation of the statute of frauds, where it appears that the estate specified in these papers was different from that claimed by the parol contract, that the consideration was also different, and that the will in favor of the defendants was entirely inconsistent with the contention that a parol gift of the land had been made to the defendants.</p>

<p>Appeal, No. 192, Oct. T., 1907, by defendant, from decree of C. P. Armstrong Co., Dec. T., 1906, No. 19, on bill in equity in case of Leechburg Borough v. Leechburg Water Works Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were various rulings on evidence, findings of fact, conclusions of law, and the decree in favor of the plaintiff.</p>

<p>Practice, G. P. — Judgment non obstante veredicto — Evidence—Act of April 22, 1905, P. L. 286.</p> <p>It was not the intent of the Act of April 22, 1905, P. L. 286, to disturb the line of distinction between the province of the court and that of the jury, and no judgment can be entered under the act against the verdict except where binding directions would have been proper at the close of the trial.</p> <p>Mortgage — Assignment of mortgage — Declaration—Evidence—Terretenant.</p> <p>Where a mortgagee assigns all his interest in a mortgage to another person, and at the same time delivers the mortgage and the bond accompanying it to the assignee, a statement made by the mortgagee to a person proposing to purchase the mortgaged premises, after he had parted with all interest in the mortgage as well as the indicia of ownership, to the effect that the mortgage was given for the same debt that was secured by two judgments which were prior liens on the property, is not binding upon the assignee of the bond and mortgage as against the purchaser who had made no inquiry as to whether the mortgagee owned the mortgage at the time he made the statement.</p>

<p>Appeal, No. 119, Oct. T., 1907, by defendant, from judgment of C. P. Greene Co., Sept. T., 1902, No. 49, on verdict for plaintiff in case of B. F. Sayers and R. A. Sayers et al. v. J. B. Pollock.</p> <p>Ejectment for a lot of land in the borough of Waynesburg.</p> <p>The court charged as follows :</p> <p>I have concluded to affirm the first point of the plaintiffs and this will relieve you from the consideration of the facts.</p> <p>I prefer, however, to briefly state my reasons for this action.</p> <p>Without any evidence from the defense, the plaintiffs upon their prima facie case would be entitled to recover in this action. The defendant, however, in much testimony that has been presented, contends that about 1866, I believe, there was a parol arrangement or agreement entered into between W. T. E. Webb, guardian of Mary C. Sayers, on the one part, and Elizabeth A. Sayers, later Elizabeth A. Hoskinson, which arrangement or agreement was made in the presence of Mary C. Sayers, then a minor, by which this property in dispute and another lot were to be taken by Elizabeth A. Sayers, the widow, absolutely and in fee, in consideration of her releasing her rights of dower and as life tenant to sundry other properties that had descended with these lots from E. Sealy Sayers, deceased, the husband of Elizabeth, and the father of Mary C., and that these facts establish what they call a parol partition between the widow and daughter by her guardian, acting for her, and that this partition being just and equal, and having been recognized continuously by the widow and the daughter, during the lifetime of the daughter, and claimed by the widow to her death in 1900, gave a good title to her in fee for the land in dispute.</p> <p>Mary C. Sayers died in her minority, and therefore there could be neither ratification of nor acquiesence in said parol partition or agreement by her. The interests and estate of the widow and this surviving child were totally different, the widow having a life estate only. Such division between them as appears by this agreement was not a partition, separation or setting apart of shares as is contemplated in law between tenants in common or coparcenary, and if sustained would be an alienation of the minor’s estate and the destruction of her fee in the land in dispute. On the other hand,it would be an acquisition by the widow of a new and wholly different title.</p> <p>We think this cannot be done in parol nor without the sanction of the orphans’ court.</p> <p>Defendant contends, however, that if no parol partition has been established, that yet as an exchange of interests or as a sale, it may be sustained in this proceeding, and the facts should be sent to the jury for determination, because the widow has been in possession, as the defendant claims for a period, in one way and other, exceeding thirty years, and has paid the taxes and made valuable improvements on the property.</p> <p>If this is to be treated as a contract of sale or exchange it is Avithin the statute of frauds and perjuries. And we think the evidence of possession offered by the defense, being the possession of Elizabeth A. Sayers, accepting it for all defendant claims, is not such proof of hostile and adverse possession as Avill enable the defendant to claim against the next of kin of Mary C. Sayers under such parol sale or exchange, because during the life of Elizabeth Sayers-Hoskinson she was entitled under her life estate to the possession, and the plaintiffs in this case had no claim they could assert in court against her possession during her life.</p> <p>Eor these reasons we affirm the plaintiffs’ first point which reads: Under all the evidence in the case the verdict of the jury must be for the plaintiffs.</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Error assigned was the charge of the court, quoting it.</p>

<p>Appeal, No. 169, Oct. T., 1907, by defendants, from decree of C. P. Greene Co., No. 73, In Equity, on bill in equity in case of James R. Barnes v. L. M. Rea, J. M. Hustead and I. W. Semans.</p> <p>Bill in equity for specific performance.</p> <p>The court found the following facts:</p> <p>L. M. Rea, one of the defendants, was seized in fee of a tract of land situate in Cumberland township, in Greene county, Pennsylvania, containing ninety-five acres, more or less, and being so seized thereof on June 2, 1899, entered into an agreement with J. M. Hustead and I. W. Semans, two other defendants named'in this bill, to sell and convey, by deed with an abstract of title, to said Hustead and Semans, their heirs and assigns, all the nine-foot or Pittsburg vein of coal under the said tract of land, with certain mining rights, and reserving the privilege of operating for oil and gas on the same, which agreement and contract was in writing, which is in the words and figures following, to wit :</p> <p>“ This agreement witnesseth, that L. M. Rea, of Greene county, Pa., hereby agree to sell and convey to J. M. Hustead and I. W. Semans, their heirs and assigns, all the nine-foot or Pittsburg vein of coal in and under that certain tract of land in Cumberland township, Greene county, Pa., bounded by lands of Swan heirs, R. L. Barly, C. A. Rea, Bell heirs and others, and containing ninety-five (95) acres, more or less: Giving the first parties the privilege of boring for oil and gas on said farm, with the right to mine and remove all and every part of the same, without being required to provide for the support of the overlying strata or surface, and without being liable for any injury to the same or to anything therein or thereon by reason thereof, and with all reasonable privileges for ventilating, pumping and draining the mines, and the right to keep and maintain roads and ways in and through said mines forever, for the transportation of the said coal, etc., and of coal from and to other lands. For which the party of the second part, their heirs or assigns, shall pay $60.00 per acre, for each and every acre, as follows : One-fourth of the purchase money at the time of making and delivering of said deed, and the balance in three equal annual payments from the date of said deed, with interest at the rate of five per cent, per annum on deferred payment. An abstract deed with a certificate of title to be made to said J. M. Hustead and I. W. Semans, their heirs or assigns, when the first payment is made, and the others are secured by ... . mortgage on the property hereby sold. The .... of the second part .... heirs or assigns, shall have the right to take .... by paying .... per acre therefor at the time of taking, and when a deed is made. It is expressly understood and agreed that if the first payment aforesaid is not •made on October 2, a. j>. 1899, or within ten days thereafter, this agreement shall be considered as rescinded, and neither party shall be bound thereby.”</p> <p>On September 6,1899, for value received, J. M. Hustead and I. "W. Semans assigned, transferred and set over to James R. Barnes, his heirs and assigns, all their right, title, interest, property, claim and demand whatsoever, of, in, to or out of the said agreement.</p> <p>On October 11, 1899, James R. Barnes caused a notice in writing to be served upon L. M. Rea to the effect that the contract had been assigned by Hustead and Semans to him, and further notifying him that he accepted to purchase said coal under the terms specified in said contract, which notice was in words and figures as follows :</p> <p>“ Mr. L. M. Rea : I hereby notify yon that the option dated June 3, 1899, given by you to J. M. Hustead and I. W. Semans for the coal therein mentioned in and under the tract of land in said option described, has been assigned to me by said Hustead and Semans, and I hereby further notify you that I accept to purchase said coal under the terms specified in said option.</p> <p>“ October 3, 1899. Jas. R. B aúnes.” ,</p> <p>On June 20, 1900, said James R. Barnes, plaintiff, caused a tender of $1,500 in gold to be made to defendant, and demanded a deed for said coal and mining rights, which money so tendered the said L. M. Rea, defendant, refused to accept, and he also refused to make, execute and deliver a deed and abstract of title, both of which (deed and abstract) he had agreed and bound himself to make.</p> <p>July 20, 1900, the said L. M. Rea, defendant, in due form of law, acknowledged the said contract to be his act and deed, and desired the same to be recorded as such.</p> <p>The court entered a decree for specific performance.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 170, Oct. T., 1907, by defendant, from decree of C. P. Greene Co., No. 74, in equity, on bill in equity in case of James R. Barnes v. J. L. Rea, J. M. Hustead and I. W. Semans.</p> <p>Bill in equity for specific performance.</p> <p>Taylor, J., found the facts to be as follows:</p> <p>1. That Jesse L. Rea, one of the defendants, was seized in fee of a tract of land situate in Cumberland township, in Greene county, Pennsylvania, containing thirty-nine acres, more or less, and being so thereof seized, on June 2, 1899, entered into an agreement in writing with J. M. Hustead and I. W. Semans, two other defendants, to sell and convey, by deed with an abstract of title, to said Hustead and Semans, their heirs and assigns, all the nine-foot or Pittsburg vein of coal under the said tract of land, with the right to mine and remove all and every part of the same, without being required to provide for the support of the overlying strata or surface, and certain other mining rights, and reserving the privilege of operating for oil and gas on the same, which agreement and contract in figures, printed and written words, is as follows, to wit:</p> <p>“This agreement witnesseth, That J. L. Rea of Green County, Penn., hereby agrees to sell and convey to J. M. Hustead & I. W. Semans, their heirs and assigns, all the Mne foot or Pittsburg vein of coal in and under that certain tract of land in Cumberland Township, Green County, Pa., bounded by lands of ... . and containing thirty-nine (39) acres, more or less: The first parties reserving the privilege of operating for oil and gas on said farm. "With the privilege of reserving one acre of coal under said farm ; with the right to mine and remove all and every part of the same, without being required to provide for the support of the overlying strata or surface, and without being liable for any injury to the same to anything therein or thereon by reason thereof, and with all reasonable privileges for ventilating, pumping and draining the mines, and the right to keep and maintain roads and ways in and through said mines forever, for the transportation of the said coal, and of coal from and to other lands. Por which the party of the second part, their heirs or assigns, shall pay sixty dollars per acre, for each and every acre, as follows : One-fourth of the purchase money at the time of making and delivering of said deed and the balance in three equal annual payments from the date of said deed with interest at the rate of 5 per cent per annum on deferred payments. An abstract of title to be made to said J. M. Hustead & I. W. Semans, their heirs or assigns, when the first payment is made, and the others are secured by ... . mortgage on the property hereby sold. The .... of the second part .... heirs or assigns, shall have the right to take .... by paying .... per acre therefor at the time of taking, and when a deed is made. It is expressly understood and agreed that if the first payment aforesaid is not made on the second day of October, A. D. 1899, or within ten days thereafter, this agreement shall be considered as rescinded, and neither party shall be bound thereby.</p> <p>“ Witness our hand and seal this second day of June, A. D. 1899.</p> <p> </p> <p>2. That in consideration of the said coal and mining rights said Hustead and Semans, their heirs and assigns, were to pay the sum of $60.00 per acre for each and every acre, as follows: “ One-fourth of purchase money at the time of making and delivering of the deed, and the balance in three equal annual payments from the date of said deed, with interest at the rate of five per cent per annum on deferred payments, said deferred payments to be secured by mortgage on the property sold.” That by the terms of said agreement said Jesse L. Rea agreed to convey said coal and mining rights and privileges to said Hustead and Semans, their heirs and assigns, and to make an abstract of title.</p> <p>3. That on September 1, 1899, for value received, J. M. Hustead and I. W. Semans, assigned, transferred and set over to James R. Barnes, his heirs and assigns, all their right, title, interest, property, claim and demand whatsoever, of, in, to or out of the said agreement.</p> <p>J. That on October 11, 1899, James R. Barnes caused a notice in writing to be served upon L. M. Rea to the effect that the contract had been assigned by Hustead and Semans to him, and further notifying him that he accepted to purchase said coal under the terms specified in said contract, which notice was in words and figures as follows:</p> <p>“Mr. J. L. Rea,</p> <p>“ I hereby notify you that the option dated June 2, 1899, given by you to J. M. Hustead and I. W. Semans, for the coal therein mentioned in and under the tract of land in said option described, has been assigned to me by said Hustead and Semans, and I hereby further notify you that I accept to purchase said coal under the terms specified in said option. “Oct. 3, 1898. Jas. R. Bashes.”</p> <p>And that that notice of acceptance was served on Rea by Barnes in this particular case for the reason that Barnes was traveling through Greene county on the date of said notice, accepting other tracts of coal on which he had options.</p> <p>5. That on Juno 20, 1900, said James R. Barnes, plaintiff, caused a tender of $600 in gold to be made to the defendant, Jesse L. Rea, and demanded a deed for said coal and mining rights, which money so tendered he refused to accept and he also refused to make, execute and deliver a deed and abstract of title, both of which (deed and abstract) he had agreed and bound himself to make; a record of said tender and refusal to accept on the back of the agreement is in words and figures as follows:</p> <p>“July 20th, 1900. As attorney for Jas. R. Barnes I this day tendered J. L. Rea the sum of $600.00 in gold, as first payment on within coal and he refused to accept said money but admitted the amount was correct.</p> <p>“Thos. S. Oeago.”</p> <p>6. That on July 20,1900, the said Jesse L. Rea, in due form of laiv, acknowledged the said contract to be his act and deed and desired the same to be recorded as such.</p> <p>Error assigned among others was decree of specific performance.</p>

<p>Contract — Option—Sale of land — Intention.</p> <p>Whether an instrument in writing agreeing to sell and convey real estate shall be considered as an absolute conveyance, or only an agreement to convey, or an option to purchase, depends, not on any particular words or phrases, but on the intention of the parties to be derived from the instrument itself by a consideration of all its parts, and when that is doubtful, from the circumstances attending it.</p> <p>An owner of coal agreed in writing to sell the same to another person for a certain sum per acre, payable on or before three months from date, one-third at the time of the presentation and delivery of the deed, and other payments subsequently. A clause in the agreement provided:</p> <p>“That in case payment is notmade as hereinbefore stipulated then this agreement to be null and void and of no effect whatever, and all parties hereto to be released from all liability hereunder.” Held, (1) that the optionor could not assert a forfeiture on the ground of failure to make the payment within the time specified, if he failed to first present a deed for delivery within that time; and (2) that a notice given by the optionee within the time specified of his election to purchase was sufficient to require the optionor to tender a deed before he could assert a forfeiture for failure to make the payment within the time specified.</p>

<p>Appeal, No. 175, Oct. T., 1907, by M. M. Palmer et al., from decree of O. C. Indiana Co., Sept. T., 1906, No. 78, refusing to admit a will to probate in Estate of Joseph Palmer, deceased.</p> <p>Appeal from decree affirming decree of register of wills refusing to admit to probate a paper purporting to be the will of Joseph Palmer, deceased.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree refusing to admit the will of the decedent to probate.</p>

Appeal, No. 177, Oct. T., 1907, by defendant, from judgment of C. P. Indiana Co., Sept. T., 1906, No. 323, on verdict for plaintiff in case of R. H. Cunningham v. First National Bank of Indiana. Assumpsit by a depositor against a bank to recover money paid on a forged indorsement of a check. The opinion of the Supreme Court states the case.

<p>Equity — Equity practice — Resident and nonresident defendants — Service —Act of April 6, 1859, P. L. 387.</p> <p>Where a bill in equity is filed against seyeral defendants, one a resident and the others nonresidents, and the service is had upon the resident defendant, the nonresident defendants may be served in the manner prescribed by the Act of April 6, 1859, P. L. 387, if the averments of the bill show on their face that the resident defendant is a principal defendant.</p> <p>Where a bill in equity for an accounting against several defendants shows transactions among all the parties so connected and so complicated as to render it necessary to bring all the parties before the court in order to enforce the plaintiff’s rights, one of the defendants who is a resident, will be deemed a principal defendant in support of a service on nonresident defendants under the Act of April 6, 1859, P. L. 387.</p> <p>Equity — Equity practice — Decree pro confesso — Jurisdiction—Motion to strike off service.</p> <p>Where a bill in equity is filed against several defendants, with the usual notice to appear and answer, and certain of the defendants move the court to strike off the service upon them, and proceedings remain in abeyance pending the motion, such defendants, after the court has overruled their motion, are bound to answer, and if they fail to do so they cannot allege as an excuse that they wore not served with a second notice requiring them to answer. In such a case a decree pro confesso is properly entered against them. If subsequently they enter a general appearance, and a hearing is had against them ex parte, and a decree is entered against them, they have no standing to move the court to strike off the judgment pro confesso or to raise a question as to the court’s jurisdiction.</p>

<p>Public officers — County solicitors — Compensation for services — Act of May 22, 1895, P. L. 101.</p> <p>Where an attorney at law is appointed county solicitor by the county commissioners, and his salary is fixed at a definite sum per annum, he cannot claim extra compensation for services rendered to the county in connection with litigation growing out of proceedings to condemn toll bridges; and this is the case although he had an agreement with the commissioners that his salary should only be for services as general counsel, and should not include payment for suits, litigation and special collections.</p> <p>Under the Act of May 22, 1895, P. L. 101, county commissioners are authorized to appoint a solicitor and determine the amount of his salary, and the appointee can simply accept or decline the appointment. There can be no conditional acceptance nor a contract between the commissioners and appointee which can legally authorize the payment to him of any sum additional to his salary for the performance of the services specified in the statute.</p>

<p>Appeal, No. 124, Oct. T., 1907, by defendant, from judgment of C. P. Lawrence Co., March T., 1906, No. 62, on verdict for plaintiff in case of Fred F. Wallace v. Pennsylvania Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Plaintiff presented the following points:</p> <p>4. In determining the nature and extent of the plaintiff’s injuries and whether he will be temporarily or permanently disabled and crippled, the jury will consider the injuries sustained by the plaintiff at the time of the accident a.nd the present condition of his injuries, and if the plaintiff in the selection of his physicians, surgeons and nurse and in compliance with their directions, used reasonable care, the defendant is still responsible in damages for the injurious results to the plaintiff, although physicians and surgeons may differ as to what treatment was best under the circumstances. Answer : Affirmed. [2] '</p> <p>5. Under all the evidence in this case the plaintiff is entitled to recover and his damages for the injuries he has sustained consist of three items: First, his loss of earning power, whether temporary or permanent; second, the pain and suffering naturally resulting from his injuries ; third, the expense to which the plaintiff is subjected to by reason of his injuries. Answer: Affirmed. [3]</p> <p>Defendant presented these points:</p> <p>3. That there is no sufficient proof in this case of the earning power of plaintiff to authorize the jury to fix damages for a future loss of earning power. Answer: Eefused. [4]</p> <p>4. That the earning power of plaintiff is so poorly shown that the jury should exercise care and caution in allowing damages for loss of wages and services in the past since plaintiff was injured. Answer: As stated we cannot affirm this point, but we say that- we do not believe the court should determine the quality of proof as stated in this request, but leave the weight to be given to the testimony on this question wholly with the jury. Eut we do say that the jury should exercise care and caution in determining whether there be a loss in earning power, and, if so, is it the result of the original injury. And in allowing damages for the loss of earning power in the past, as well as the future, you should determine whether any, all or part of the loss of earning power is the result of a condition which is a sequence of the original injury. [5]</p> <p>9. That there is not sufficient proof in this case showing the earning power of plaintiff to enable the jury to fairly estimate it and that part of the case should be withdrawn from the jury. Answer: Eefused. [6]</p> <p>Yerdict and judgment for plaintiff for $14,750. Defendant appealed.</p> <p>Errors assigned were (1) answer to plaintiff’s seventh’s point, quoted in the opinion of the Supreme Court; (2-6) above instructions, quoting them.</p>

Appeal, No. 152, Oct. T., 1907, by defendants, from decree of C. P. Lawrence Co., Dec. T., 1906, No. 6, on bill in equity in case of Cassius W. Ranney and Robert B. Ranney v. John P. Byers and S. C. Faddis. Bill in equity to declare a trust. The facts are stated in the opinion of the Supreme Court. Error assigned was decree in favor of plaintiffs.

<p>Bridges — Telegraph companies — Use of bridge — Condemnation of bridge by county — Equity—Remedy at law.</p> <p>Where a bridge company has given to a telegraph company the right to lay its cables and wires across a bridge for an annual rental, and the bridge is subsequently condemned by the county in which it is located, the county cannot maintain a bill in equity against the telegraph company to compel it to remove its wires and cables, or pay a rental for the use of the bridge. In such a case the county has an adequate remedy at law.</p>

<p>Appeal, No. 139, Oct. T., 1907, by the Pennsylvania Company, lessee of the Pittsburg, Fort Wayne & Chicago Railway, from order of C. P. Beaver Co., Sept. T., 1903, No. 186, dismissing exceptions to report of viewers In re Petition of the Ohio River Junction Railroad Company for connecting with the Pittsburg, Fort Wayne & Chicago Railway.</p> <p>Exceptions to report of viewers. Before Bouton, P. J., specially presiding.</p> <p>For the facts see the opinion of the Supreme Court and Ohio River Junction Railroad Company v. Pennsylvania Company, 216 Pa. 316.</p> <p>Errors assigned were in dismissing exceptions to report of viewers.</p>

<p>Appeal, No. 84, Oct. T., 1907, by defendant, from judgment of C. P. Butler Co., June T., 1905, No. 75, on verdict for plaintiff in case of Sarah C. Neely et al. v. Western Allegheny Railroad Company.</p> <p>Issue to determine the value of land condemned for railroad purposes.</p> <p>. Stewart Wilson, a witness for plaintiff, was asked on cross-examination the following question:</p> <p>“ Q. How much in the market was the Neely farm worth per acre more than the Fair farm before the railroad was constructed ? ”</p> <p>•Objected to as incompetent.</p> <p>The Court: I think, gentlemen, we would not hear that; in order to test his knowledge of values you might ask what it sold for, to test his knowledge of the fundamental basis upon which he must estimate the value of land.</p> <p>Mr. Bowser: We object to the question as incompetent.</p> <p>The Court: We think that the question of values is not to be ascertained by comparison with particular sales in the neighborhood and for that reason we will sustain the objection and seal a bill for defendant. .Exception. [1]</p> <p>“ Q. Mr. Wilson, you have spoken about a Wimer sale made about three years ago; what was the consideration by,the acre of that sale ? A. Fifty dollars an acre, I think. Q. How far away from this property was that ? A. It is down the creek a mile or two. Q. Is it on the creek ? A. Handy to it. Q. It don’t touch the creek ? A. I don’t think it touches the creek. Q. It is more valuable land than this ? ”</p> <p>Mr. Bowser : That is objected to ; you are going into a comparison again.</p> <p>The Court: I think we will sustain the objection and seal a bill of exceptions. The witness can be inquired of as to whether he knew, and, if so, what was the actual selling price of the farm now being inquired about, but we think it is not permissible to compare that farm or its value with the one in question, for the reason that it would open up an inquiry with which we have nothing to do in this case and would lead to an interminable consideration of this case and the issues growing out of it. Exception. [2]</p> <p>Verdict and judgment for plaintiff for $2,200. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.</p>

<p>Judgment — Opening judgment — Bond, of indemnity — Breach—Burden of proof — Evidence.</p> <p>A judgment entered upon a bond of indemnity will be opened where the plaintiff fails to sustain the burden of proving that a breach of the bond had been committed.</p>

<p>Wills — Probate—Subscribing witness — Testamentary capacity.</p> <p>Where a subscribing witness to a codicil knows that he is signing a testamentary paper, sees the testator sign it, and is asked by the testator or by the other witness in testator’s presence to sign as a witness, it is not necessary for him to hear the codicil read to the testator, or to know its contents.</p> <p>Where a will is written by counsel at one time, and a codicil by the attending physician at another time, both from dictation of the testator without aid or interference of any other person, there is a prima facie case in favor of the will and codicil, which can only be overcome by clear, definite, circumstantial and weighty evidence of facts not reconcilable with the possession of testamentary capacity. Opinions of experts, and the usual testimony as to the failings of age, lapses of memory, irritability, etc., are of little weight in such cases.</p> <p>A will is unnatural in a legal sense only when it is contrary to what the testator from his known views, feelings and intentions would have been expected to make. When it is in accordance with these it is never unnatural, however much it may differ from the ordinary actions of men in similar circumstances.</p> <p>A will passing over a daughter and leaving the bulk of testator’s estate to the daughter’s two children, is not to be considered an unnatural one, and evidence of undue influence, where it appears that the testator’s object was to prevent his estate from going into the hands or coming under the management of his son-in-law against whom he had a prejudice. In such a case the fact that the prejudice may have been without any just foundation is immaterial. A man’s prejudices are a part of his liberty.</p>

<p>Negligence — Railroads—Grade crossing — Collision between locomotive and wagon.</p> <p>The rule in Carroll v. Railroad Co., 12 W. N. C. 348, is in its nature only applicable to clear cases. It applies only when a person enters upon a railroad track and is struck by a moving train so instantaneously as to raise a legal presumption that he did not stop, look and listen, and to rebut any presumption that he had done so. Where there is doubt as to negligence upon the part of the plaintiff, the case is for the jury.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained by plaintiff in a collision between a locomotive and a wagon on which the plaintiff was riding, the case is for the jury where the evidence tends to show that plaintiff stopped, looked and listened at a point some fifteen or twenty feet from the track, which according to the evidence of the defendant, permitted of a view along the track in the direction from which the engine came for a distance of about 600 feet, and that when plaintiff stopped he looked up and down the railroad in both directions and listened for a train, and, not seeing or hearing a train, started over the tracks with the result that the wagon was struck at the rear end just as it was leaving the track.</p>

<p>Appeals — Error—Harmless erren — Charge of court.</p> <p>A judgment will not be reversed because of an error in the charge, which was not an erroneous statement of a fact upon a decisive point in the case, but a misstatement that was wholly unimportant, except, that it might tend to divert the attention of the jury from a ground of dispute collateral to the main question; and this is especially the case where the attention of the court was not called to the misstatement at the time.</p>

<p>Wills — Power of sale — Real estate — Time limit.</p> <p>Where a testator grants “unto my executor the term of five years in ■which to make sale of my estate as aforesaid, using said time as in the judgment of my executor and the family may be deemed best in the interest of my estate,” a sale by the executor within five years is discretionary, and thereafter it is mandatory, and if the executor sells after the expiration of five years he conveys a good title.</p>

<p>Appeal, No. 129, Oct. T., 1907, by defendant, from judgment of C. P. Washington Co., Aug. T., 1906, No. 55, on verdict for plaintiff in case of W. J. E. Harper v. Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 148, Oct. T., 1907, by plaintiff, from judgment of C. P. Washington Co., Aug. T., 1907, No. 19, for defendants on case stated in suit of Mary M. McDaniel v. Andrew McDaniel.</p> <p>Case stated on a rule to settle title under the Act of June 10, 1893, P. L. 415.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment for defendants.</p>

<p>Malicious prosecution — False imprisonment — Contempt proceedings— Collateral attack on judgment.</p> <p>In an action to recover damages for false imprisonment in contempt proceedings, a nonsuit is properly entered, because the decree of the court in contempt proceedings is not subject to collateral attack.</p> <p>A sentence for contempt is not essentially different from any other judgment, decree or sentence. It is a matter adjudicated, and it belongs to the very essence of governmental order that it cannot be reviewed except by the court that pronounced it, or by its official superior.</p> <p>Where a person has been adjudicated in contempt, but the court has discharged him on payment of costs only, he cannot maintain an action of malicious prosecution against the petitioner in the contempt proceedings on the theory that the discharge was the result of a failure to make out a case against the plaintiff. Such order was really in effect a sentence to pay the costs following an adjudication that the plaintiff was in contempt.</p>

<p>Ejectment — Proceedings to settle title to land — Possession—Act of June 10, 1893, P. L. 415 — Issue—Parties.</p> <p>The Act of Juno 10, 1893, P. L. 415, was intended to settle title to land as well as possession, and the requirement of sec. 2 as to the petitioner is that he shall be in possession of the land “claiming to hold or own possession of the same by any right or title whatsoever, which right or title or right of possession shall be disputed,” etc. It is not merely the petitioner’s possession which must be disputed and which he may defend under the acts but the title by which his possession is held. A claim of respondent to a contingent right upon the death of the life tenant, who is averred to be a person different from the petitioner although it refers to the future, is still a present dispute of the title by which the petitioner holds possession, and is therefore within the act.</p> <p>In an issue framed under the Act of June 10,1893, P. L. 415, the better practice is to make the petitioner the defendant in the issue, but it is not ground, to reverse the judgment because the respondent was made the defendant. The issue both as to substance and form is under the entire control of the court, to be moulded to fit the requirements of the real controversy between the parties.</p> <p>Deed — Fee tail special — Fee simple estate — Heirs of the body.</p> <p>Where the premises of a deed recite the deed as made between the grantor and his wife and the grantee and his wife “ for their natural lives, and afterward to the heirs begotten from their bodies in fee simple,” and the grant is “unto the said parties of the second part, their heirs and assigns,” the deed will be construed as conveying a fee tail special which the statute converts into a fee simple.</p>

<p>Appeal, No. 105, Oct. T., 1907, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1905, No. 18, on verdict for plaintiff in case of Somerset Colliery Company v. A. F. John.</p> <p>Scire facias sur mortgage.</p> <p>At the trial the whole of defendant’s case was as follows :</p> <p>Mr. Ruppel: I offer the agreement between A. F. John, of the first part, and John A. Clark and William A. Somerville, of the second part, dated August 28, 1901.</p> <p>We shall follow this by proof of another agreement of the same date between the same parties, relating to the same subject-matter, by which it was provided that the lessors, Clark and Somerville, or their successors to the lease, shall erect a mining plant or other improvements in connection with the mines at a cost of at least $8,000, and, in case of failure, to pay said A. F. John the said sum of $8,000.</p> <p>To be followed by proof that at the time the mortgage was given it was agreed between the parties that the question of damages to the mine under this lease and the question of payment of the $8,000 under the agreement between the same parties, should be adjusted between the parties when the payments of the mortgage fell due, and that at the time the mortgage was given the question of damages to the mine and the claim of John for $8,000 for failure to erect the mining plant, or mining improvements provided for, were discussed, and it was agreed between them that the matter should be left open till the payment of the mortgage fell due, and the matters then adjusted between the parties in connection with the payment — this agreement being in parol.</p> <p>Mr. Kooser: These offers of evidence are objected to as irrelevant, immaterial and incompetent; all matters arising under the lease or agreement offered are closed by the sale and mortgage in suit; it is not competent to prove by parol any such purpose as evidence — any matters to alter or contradict the written instrument.</p> <p>The agreement is further objected to for the reason that copies have not been furnished with the pleadings, as required by rule of court.</p> <p>Mr. Ruppel: In reply we wish to state that an affidavit of defense was filed and copies of the agreement given with it. Notice of special matter was filed and the agreements referred to and the statement made: “ A copy of said agreements, marked exhibit £ A ’ and exhibit £ B,’ is attached to said affidavit of defense, and is also in possession of the plaintiff.”</p> <p>The Court: The objection is sustained on the ground that the proposed oral testimony tends to contradict or change the written instrument upon which the plaintiff relies.</p> <p>Mr. Ruppel: Your honor, we move to amend the pleadings and give copies of the agreement.</p> <p>The Court: Very well, you may file the copies.</p> <p>Mr. Ruppel: We now renew our offer.</p> <p>Mr. Kooser : We renew the same objection.</p> <p>The Court: And we renew the same ruling, and note an exception and seal a bill as to both parties.</p> <p>Mr. Ruppel: We have nothing further, your honor.</p> <p>Verdict and judgment for plaintiff for $21,296.62. Defendant appealed.</p> <p>Error assigned was ruling on evidence, quoting the whole of the defendant’s case.</p>

Appeal, No. 156, Oct. T., 1906, by plaintiffs, from order of C. P. Venango Co., Nov. T., 1903, No. 31, refusing to take off nonsuit in case of Harry A. Henderson and Haney Henderson, his wife, v. Continental Refining Company, Limited. Trespass to recover damages for death of plaintiffs’ son. The circumstances of the accident are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

Appeal, No. 28, Oct. T., 1907, by defendants, from judgment of C. P. Venango Co., Nov. T., 1905, No. 25, on verdict for plaintiff in case of Archibald R. Osmer v. Charles H. Sheasley et al. Ejectment for land in Sandycreek township. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for plaintiff: . Verdict and judgment for plaintiff. Defendants appealed. Error assigned was in giving binding instructions for plaintiff.

<p>Appeal, No. 8, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, No. 371, on verdict for plaintiff in case of Ann C. Baker v. The Pittsburg, Carnegie & Western Railroad Company.</p> <p>Appeal from award of jury of view.</p> <p>At the trial the court permitted, under objection and exception, M. Peters to testify on behalf of the plaintiff as to the value of the coal in controversy [1, 3].</p> <p>Defendant presented the following points:</p> <p>1. Plaintiff, as the owner of the coal, has no right to go upon the surface overlying the coal to make shafts and openings to mine or remove the coal, for the reason that she has sold the surface without specifically reserving the right so to do. Answer : This point as a whole is refused. To the extent of making a shaft opening to reach the coal, the owner of the coal has the right to use the surface. [5]</p> <p>2. A mere reservation of the mining rights does not include the right to go upon the surface to dig for and carry away the coal. Answer: As put this point is affirmed, unless the intent to be conveyed by it is that the owner of the coal has no right to erect a shaft opening at the surface and take the coal away, in which case the point is refused. [6]</p> <p>4. The plaintiff having sold and warranted possession of the surface, reserving the coal with the usual mining rights, she has no right to take and occupy any part of the surface sold on which to locate a shaft or mining machinery. Therefore the plaintiff cannot recover damages to this coal based on its removal through the surface. Answer: This point, as a whole, in the alternative, “ shaft or mining machinery,” is ref used. [7]</p> <p>Yerdict and judgment for plaintiff for $4,337. Defendant appealed.</p> <p>Errors assigned were (1, 3) rulings on evidence, quoting the bill of exceptions ; (5-7) above instructions, quoting them.</p>

<p>Appeal, No. 113, Oct. T., 1907, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1905, No. 44, on verdict for defendant in case of Charles E. Bowen v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Criswell, P. J., gave binding instructions for defendant. In his charge he stated the circumstances of the accident to be as follows:</p> <p>It appears from the testimony of the plaintiff that there was a pole erected near one of the switches of the defendant company. When that pole was placed there does not appear.. The plaintiff, however, knew of it on and prior to December 30, 1904; he says so, and he says that on that date he called the attention of the supervisors to it, that that pole was too near the tracks. He says the supervisor promised to have the matter remedied ; he further says that he was not in the neighborhood of the pole again until January 20 following; he didn’t know whether it had been removed or not; this was his testimony in chief, and that on the 20th he was injured.</p> <p>On the part of the defendant Mr. Thompson, the engineer in charge of the shifting engine in the yard, was called, and he testified that on the same evening the plaintiff was injured, and about five minutes before he was injured, and possibly not to exceed two minutes before the accident happened, that the plaintiff, as he was moving the engine along, called to him to take his head in, that he would be hit by that pole ; Mr. Thompson says the plaintiff was then about twenty-five feet from the pole. Another witness, Mr. McMullin, testifies that the plaintiff said he had been notifying everybody about the pole; this was some little time before the accident; he is unable to fix the exact time of it, but it was some time before the accident.</p> <p>In rebuttal, the plaintiff comes on the stand and admits that he was on the side of the train upon which the pole was located, and he says he was about two car lengths from the pole, and that when in that position he did call to the engineer to take his head in, endeavoring to warn him against the proximity of the pole and the danger of being hurt. How, it appears that notwithstanding these facts and his knowledge that the pole was there, which cannot be questioned in view of this evidence, that he went on the car after it was disconnected from the engine, took his position on the front.platform of the car as it was going, applied the brakes, and while the way was open for him to go down on the other side of the car, and while the car was still moving but almost stopped, in fact he says it went only about two feet after he got off, he got off on the side of the car next the pole, right at the point where the pole was located, in such a shape as to be immediately caught between the pole and the car.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 18, Oct. T., 1907, by defendants, from order of C. P. No. 3, Allegheny Co., Aug. T., 1907, No. 720, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Thomas D. Brown v. R. E. Miles and John A. Wood, Jr., trading as Miles, Wood & Company.</p> <p>Assumpsit to recover for securities alleged to have been converted.</p> <p>Plaintiff in his statement of claim averred that R. E. Miles and John A. Wood, Jr., partners, doing business as Miles, Wood & Company, defendants, are indebted to him in the sum of $2,170.32, with interest from May 16, 1906.</p> <p>That some time prior to May 31, 1905, the plaintiff pledged with R. E. Miles 208 shares of United States Class stock and four shares of Guarantee Title & Trust Company stock to secure an indebtedness to the said R. E. Miles of $8,240.55.</p> <p>That in November, 1905, R. E. Miles and John A. Wood, Jr., formed a partnership under the firm name of Miles, Wood & Company, the terms of which are unknown to plaintiff.</p> <p>That on December 30, 1905, plaintiff received a statement showing him to be indebted to Miles, Wood & Company in the sum of $8,106.60, and having pledged as security therefor the above mentioned stock, which indebtedness and stock were the same account which had formerly been with E. E. Miles.</p> <p>Defendant firm continued to send monthly statements of this account up to and including April 30, 1906, during which period the firm of Miles, Wood & Company had charged against the plaintiff interest upon the above amount and collected dividends upon the stocks pledged, and on April 30 he received a statement in account with Miles, Wood & Company for $8,263.80.</p> <p>Shortly after the receipt of the last statement plaintiff was notified to take care of his account, and he went to the office of Miles, Wood & Company, ascertained the exact balance due on the account, and tendered the amount to John A. Wood, Jr., one of the defendants, who was then in charge of the office and business of the defendants, and then and there demanded the stocks that were pledged as security for the indebtedness.</p> <p>That John A. Wood, Jr., told plaintiff that he could not deliver said stocks, that they were pledged with the Real Estate Trust Company for a larger amount of money. That plaintiff went to the Real Estate Trust Company, found his stocks pledged with the Real Estate Trust Company to secure a very large note of Miles, Wood & Company, and the trust company declined to surrender the same unless it received for account of said note the sum of $10,453.40, which was $2,170.32 more than plaintiff’s indebtedness to Miles, Wood & Company on May 16, 1906.</p> <p>That in order to redeem and save his stocks he was compelled to pay the Real Estate Trust Company $10,453.40. Whereupon defendants became indebted to plaintiff in the sum of $2,170.32.</p> <p>John A. Wood, Jr., one of the defendants in the above case, in behalf of himself and the firm of Miles, Wood & Company, averred, in an affidavit of defense, that on November 1, 1905, he entered into partnership with R. E. Miles for the purpose of carrying on a general stock, bond and brokerage business; that for a long time prior to that date R. E. Miles had been carrying on a similar business in his own name, and had a largo number of customers with whom he had dealings. That by the partnership agreement affiant became in no way liable for any of the debts or obligations of the said R. E. Miles which had been created prior to the formation of the partnership.</p> <p>That Thomas D. Brown was a customer of R. E. Miles, and had dealings with him prior to the partnership between affiant and the said Miles. That the said plaintiff had pledged with Miles certain stocks to secure an indebtedness to the said R. E. Miles long before the formation of the partnership, and Miles in turn had pledged those stocks with the Real Estate Trust Company of Pittsburg to secure his personal indebtedness to the trust company, and they were so pledged at the time affiant entered into partnership with Miles.</p> <p>That on December 5, 1905, without the knowledge or consent of affiant, R. E. Miles lifted his several notes in the Real Estate Trust Company and gave one in the name of Miles, Wood & Company, and pledged the stocks which he had received from plaintiff^ together with others received from his former customers, as security for this note. That some time later R. E. Miles, on account of ill health, went to California, left his business and the business of the firm in the hands of affiant, and the said Miles never afterwards took any part in the business of Miles, Wood & Compan3^.</p> <p>That affiant then learned that Miles had become largely involved in his previous business, and had signed the firm name to certain notes, including the one above mentioned, the entire proceeds of which were received by Miles, and from which neither affiant nor the firm of Miles, Wood & Company received any benefit whatever. That said notes were for moneys for which neither affiant nor the firm of Miles, Wood & Company were in any way liable. That the note of Miles, Wood & Company, given by R. E. Miles to the Real Estate Trust Company as aforesaid, was given to lift notes which R. E. Miles had previously given to said trust company for his individual indebtedness. That said note was not a legal obligation against the firm of Miles, Wood & Company. That when Miles neglected to take care of his personal accounts affiant notified the various customers of R. E. Miles, prior to the date of the partnership, that it would be necessary for them to protect their own interests.</p> <p>That Thomas D. Brown, the plaintiff, never had any dealings with the firm of Miles, Wood & Company, and the stock in question was never in the possession of Miles, Wood & Company.</p> <p>Affiant denied that Miles, Wood & Company had charged against the plaintiff interest on the above accounts, and averred that all the accounts were kept in the original books of Ib E. Miles, and that the firm of Miles, Wood & Company had no connection whatever with plaintiff’s account.</p> <p>Affiant averred that all notices of dividends collected on plaintiff’s stock, after the formation, of the partnership, were sent to plaintiff on printed blanks of R. E. Miles, with the name of R. E. Miles stamped thereon, and that the dividends received on the stock held as collateral were used to pay the interest on the loans secured by R. E. Miles for the plaintiff’s benefit at the Real Estate Trust Company. That neither affiant nor the firm of Miles, Wood & Company received any benefit whatever from the dividends received from said stock.</p> <p>That in December, 1905, and in January, 1906, monthly statements were inadvertently sent to plaintiff upon paper containing the heading of Miles, Wood & Company. They were taken from the original books of R. E. Miles, showing plaintiff’s account. That plaintiff was in no way injured or prejudiced by the monthly statements sent out as aforesaid upon the firm paper of Miles, Wood & Company, or in any. other way by affiant or by Miles, Wood & Company ; and affiant denies any liability to plaintiff on his own account or on account of the firm of Miles, Wood & Company.</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>

<p>Appeal, No. 29, Oct. T., 1907, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 793, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles Henry Reis, Administrator c. t. a. of the Estate of Henry Reis, deceased, and Charles Henry Reis, Administrator c. t. a. of the Estate of Henry Reis, deceased, for the use of J. Erastus McKelvy, the County of Allegheny and Wilkinsburg Borough v. Mary McDevitt.</p> <p>Assumpsit for breach of contract.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals, Nos. 32, 33, 34, 35, 36 and 37, Oct. T., 1907, by Sidney A. Munson et al., from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1903, Nos. 284, 285, 286, 287, 299 and 300, on verdict for defendant in cases of Sidney A. Munson et al. v. William Crookston.</p> <p>Ejectment for land in borough of Pitcairn.</p> <p>At the trial it appeared that the plaintiffs claimed under the will of Agnes Crookston, deceased, while the defendant, the husband of the deceased, claimed possession as tenant by the curtesy, having elected to take against his wife’s will. The plaintiffs alleged that the defendant had deserted his wife, and that consequently the defendant was not entitled to his curtesy.</p> <p>The court, under objection and exception, excluded evidence offered by the plaintiffs of declarations made by Mrs. Crookston in the absence of her husband. [1-12]</p> <p>The court admitted, under objection and exception, the testimony of Wm. Crookston as to matters occurring in the lifetime of his wife. [13-16].</p> <p>The court charged in part as follows:</p> <p>[Now, as to the time they lived together, up to September 21, 1901 (1896)j or at least until the fall of that year, I think I shall have to say to you, there is no evidence which would justify you in finding that he neglected or refused to provide for her.</p> <p>We have here evidence that she paid bills, and perhaps she paid the larger part of them. We have some evidence that he paid bills, but where a man is living in his wife’s house and his wife has property or money and she chooses to pay the bills, and he does not pay any bills, that is not a neglect or refusal to provide for his wife, because his wife has as much right to give him the rent of a house, or to give him the groceries or things he eats as she has to give him anything else, and the presumption would be that if she did that she was giving them to him, and therefore there is no neglect or refusal on his part to provide. The question would, therefore, be as to what took place after that time, and I imagine there is very little difference between the questions as to whether he neglected to provide for her and whether he deserted her, because if he deserted her, of course he didn’t provide for her, and if what he did was not a desertion, and she claimed the right and undertook to stay where she pleased, without going with him, then he would not be bound to provide for her. So substantially the question is all one, whether or not he deserted her after this date in September.] [20]</p> <p>[Now if William Crookston, after he went away from his wife’s house on this occasion, had a place for his wife to come to, whether his children were with him or not, and she knew that, and he asked her to come there and she did not come to live with him, but persisted in living in her own house or going elsewhere, then he did not desert her, but, on the contrary, she would in that way have deserted him.] [21]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned among others were rulings on evidence [1-21], and above instructions, quoting them.</p>

<p>Appeals, Nos. 41, 42, 43 and 45, Oct. T., 1907, by Joseph Fleming & Son Company, John A. Staley, F. W. Mueller and North American Savings Company, from decree of O. C. Allegheny Co., Sept. T., 1906, No. 374, dismissing exceptions to adjudication in Estate of George S. Fleming, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 45, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1904, No. 26, refusing to take off nonsuit in case of Frank Clark v. A. Garrison Foundry Company.</p> <p>Trespass to recover damages for personal injuries.</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. 30 and 49, Oct. T., 1907, by defendant, from entry of judgments in C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 342, and No. 3, Feb. T., 1907, No. 269, in cases of Clarence Pettit et al., Executors of Adaline Marshall, deceased, v. Robert F. Clever.</p> <p>Entry of judgment on bond accompanying mortgage.</p> <p>Entry of judgment on return of two nihils.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned various reasons for holding the judgments irregular and erroneous.</p>

<p>Railroads — Merger—Parallel and competing lines — Equity—Act of June 19, 1871, P. L. 1360 — Constitutional law.</p> <p>An individual landowner has no standing to maintain a bill in equity under the Act of June 19, 1871, P. L. 1360, against a railroad company-to enjoin a condemnation of his land, on the ground that the condemning company was constituted by a merger of two other railroad companies under the Act of March 22, 1901, P. L. 53, that such companies before the merger were parallel and competing companies, and that the merger therefore violated article XVII, sec. 4 of the constitution of Pennsylvania, which forbids railroad companies owning parallel or competing lines from being consolidated. The question of the validity of such merger can only be raised in a proper proceeding by the commonwealth.</p>

<p>Assignment for creditors — Refusal of assignee to act — Title to property— Seat in stock exchange — Receiver—Act of June 14, 1836, P. L. 628.</p> <p>A deed of assignment for the benefit of creditors, duly recorded, vests in the assignee the title of the assignor, independent of the fact whether the assignee accepts or declines the trust. No trust will be permitted to fail or become noneffective by reason of the failure of the trustee to accept and perform the entries imposed by the trust. The deed of assignment conveys the property and creates the trust, and thereafter it is not in the power of the assignor or the assignee to defeat the trust. If the assignee renounces the trust, or refuses to act under or execute the same, sec. 23 of the Act of June 14, 1836, P. L. 628, provides that the court, shall appoint an assignee in his place.</p> <p>Where two copartners in a brokerage business make a voluntary assigriment as individuals and copartners for the benefit of their creditors, the title to a seat owned by them in a .stock exchange passes to the assignee, and a receiver subsequently appointed in an equity suit by a creditor against the partnership, can take no interest whatever in the .seat; and this is the case although the assignee named in the deed of assignment and a person appointed in his stead by the court, both refuse to accept the trust. In such a case the trust will not fail for want of a trustee.</p>

<p>Appeal, No. 59, Oct. T., 1907, by Marshall McClain, Receiver, from decree of C. P. No. 1, Allegheny Co., March T., 1906, No. 522, appointing Guarantee Trust & Title Company assignee of E. D. Gartner & Co., and directing the receiver to turn over assets to the substituted trustee in the matter of the voluntary assignment of E. D. Gartner & Company for the benefit of creditors.</p>

<p>Appeal, No. 89, Oct. T., 1907, by Marshall McClain, Receiver, from decree of C. P. No. 1, Allegheny Co., June Term, 1906, No. 688, directing receiver to turn over assets to the Guarantee Title & Trust Company, assignee of E. D. Gartner & Company, in case of D. W. Williams et al. v. E. D. Gartner & Company.</p>

<p>Adoption — Parent and child — Parol adoption — Contract—Married woman.</p> <p>The only methods of adoption of children known to the law of Pennsylvania, are those prescribed by the Act of May 4, 1855, P. L. 430, sec. 7, as re-enacted by the Act of May 19, 1887, P. L. 125, sec. 1, and the Act of April 2, 1872, P. L. 31, sec. 2. The former provides for adoption by petition to, and decree of, the court of common pleas; and the latter for adoption by deed duly executed and recorded. There is no such thing as a parol adoption.</p> <p>Where a husband adopts a child by proceedings in the court of common pleas, but the wife is in no way a party to the proceedings, the child does not became an adopted child of the wife, so as to inherit the wife’s estate.</p> <p>The measure of damages for a breach of contract to adopt is the value of the services performed, or outlay incurred on the strength of the promise.</p> <p>Where a husband adopts a child by proceedings to which his wife was not a party, services rendered in the household by the adopted child will be presumed to be on account of the adopted father, and not for the wife.</p> <p>In 1865 a married woman, living with her husband, had no power to enter into a contract to adopt.</p> <p>The right to take property by devise or descent is the creation of the law, and not a natural right. The legal act of adoption carrying with it the right to inherit, is purely statutory, and the statute must, in cases where its provisions are applied, be strictly followed.</p> <p>Mitchell, C. J., dissents.</p>

<p>Railroads — Condemnation proceedings — Expert witnesses — QualifLcartions — Evidence.</p> <p>Witnesses in railroad condemnation proceedings are not qualified as experts to express an opinion as to market value, where they state that they have no knowledge of the value of lands in the neighborhood based on sales, but only a knowledge of the value of coal leases, and a knowledge of royalties paid to the lessors of coal.</p> <p>Railroads — ■Condemnation proceedings — Farm crossings — Abolition of farm crossings.</p> <p>Where a railroad company condemns additional land along its right of way, and fails to extend farm crossings previously maintained, over the additional track to be laid on the newly condemned land, the jury may consider the loss of these crossings as a proper element of damage in making up their verdict.</p>

<p>Appeal, No. 72, Oct. T., 1907, by Charles Von Moss, from order of Q. S. Allegheny Co., Dec. Term, 1905, No. 79, issuing a certificate of election to George Wolff in the matter of the Election Contest of Charles Von Moss.</p> <p>Petition in an election contest.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 74, Oct. T., 1907, by defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1906, No. 276, on bill in equity in case of Liquid Carbonic Company v. William T. Wallace and People’s National Bank. Bill in equity for an injunction. The facts are stated in the opinion of the Supreme Court. Error assigned was decree awarding an injunction.

<p>Appeal, No. 88, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1905, No. 581-, dismissing bill in equity in case of State Council Junior Order of United American Mechanics of Pennsylvania v. William S. J. Emery et al.</p> <p>Bill in equity for an account. Before Oveb, J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Cemeteries — Cemetery lots — Burial of the dead — Partition.</p> <p>The heirs at law of the grantee of a cemetery lot have no right to a partition of the lot where it appears that the grant of the lot was subject to the rules and regulations of the cemetery company, and that among the rules was the provision that: “The heirs at law have jointly a right to the disposal and use of the property; neither of them alone has the right to the disposal of it.”</p>

<p>Appeal, No. 81, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1906, No. 5, dismissing bill in equity in case of William Latta v. C. C. Hax.</p> <p>Bill in equity for specific performance.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree of the court.</p>

<p>Appeal, No. 85, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1902, No. 615, refusing to take off nonsuit in case of C. I. McKee v. L. H. Smith.</p> <p>Assumpsit to recover money had and received for the defendant.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order to take off nonsuit.</p>

<p>Negligence — Street railways — Infant—Duty of parent.</p> <p>In an action against a street railway company to recover damages for personal injuries to a boy five years old, it appeared that at the time of the accident the boy got on a step of the platform of a car standing at a crossing. The platform was entirely closed by wooden doors with glass windows in the upper panels. He took hold of a horizontal' bar fástened to • the woodwork of the door a few inches below the glass. He testified that after the car was in motion the motorman looked through the glass, and saw him and shook the door and caused him to fall. This testimony was denied by the motorman: who testified that he did not see the boy nor shake the door. Held,, that on the conflicting testimony, -the case, was for the jury.</p> <p>In such a case it appeared that the boy had gone almost daily to the home of his aunt near by, and had on a few occasions' gone with his cousin, a boy sixteen; years old, to deliver papers in the street. His parents knew that he had done this once or twice, but did not know that he was in the habit of doing it, and on the occasion of his injury they did not know that he had left his aunt’s house, or was likely to do so. Held, that the father of the boy under the circumstances was not precluded from recovering because he permitted his son to go on the street in a business part of the city unattended.</p> <p>Negligence — Street railways — Improper remarks of counsel.</p> <p>In a negligence case against a street railway a judgment and verdict for the plaintiff will be reversed, where the counsel for the plaintiff in his address to the jury states, without any foundation in fact, that there had been a suppression of evidence and further says to the jury: “I ask you in money to make this company, with its earnings, and out of its earnings, out of its millions, for which it is in this business— it is not a charity, it is not a benevolence, it is a business just as hard and cold as any that can be estimated in dollars and cents — 1 ask you to make this company out of its millions to put on that stump a foot as good as the original. ... It is idle for them to cry for justice. Give it to him, that is what we want and that is what we ask. Give it to him, whatever we ask, five thousand, ten thousand, fifteen or twenty thousand dollars, whatever it is make them pay it, and give them the justice they want.”</p>

<p>Bailment — Pledgor and pledgee — Borrower and lender — Confidential relation — Fiduciary relation.</p> <p>Where the relation between the parties to a bill in equity is that of borrower and lender, and as to the collateral for the loan, that of pledgor and pledgee, the relation is not a confidential relation, and not in any but a very limited sense, if at all, a fiduciary relation, and in such a case there is no reason why the parties should not deal freely with each other in regard to the property held in pledge.</p> <p>The fact that the lender undertook and did in fact, not only advance money to the borrower, but assisted him in financing his affairs, and in pursuance thereof, through an agent, took part in the management of Ms business, does not change the status of the parties towards each other.</p> <p>Contract — Insanity—Mental depression — Suicide—Equitable duress.</p> <p>Where a man during a period of nervous depression from financial troubles, in which he is brooding over the idea of suicide, makes a contract, and thereafter actually commits suicide, the mere fact of suicide without other evidence, is not sufficient to support a finding that he was non compos mentis at the time he made the contract; and much more is this so where there is a large amount of evidence that he personally attended to many and diversified corporate interests with no hint from any business connection or associate of his incompetency, or even of impaired keenness. Insanity is not a legal deduction from suicide.</p> <p>Where a man during a state of nervous depression resulting from desperate financial straits, but with full mental capacity, secures the loan of a large sum of money, and the lender to protect himself against the great risk involved, requires the borrower to transfer to him all of his assets as collateral for the loan, the lender cannot be charged with equitable duress in the transaction.</p>

<p>Appeal, No. 126, Oct. T., 1907, by defendant, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 425, on bill in equity in case of George Fischer, Executor of John Fischer, deceased, v. Leonard Riehl.</p> <p>Bill in equity for an account.</p> <p>From the record it appeared that John Fischer and the defendant, Leonard Riehl, stood in the relation of father-in-law and son-in-law to each other. Riehl was also Fischer’s agent under a power of attorney. The bill sought for an accounting for various items, but the contest finally narrowed down to the question as to whether Riehl was entitled to retain for his services $2,000 out of moneys which he had collected. The court disallowed the claim and entered a decree against the defendant for $2,000.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 127, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 133, on verdict for plaintiff in case of John Murphy v. M. K. McMullin and F. A. Clark, trading as M. K. McMullin & Company.</p> <p>Assumpsit to recover the value of certain stocks pledged by the plaintiff to the defendants as collateral for a loan of $4,000. Before Young, J.</p> <p>At the trial it appeared that plaintiff borrowed from defendants $4,000 and pledged certain stock as collateral for the debt. Plaintiff claimed that subsequently he paid $2,000 on account of the loan and thereafter tendered the balance due, and demanded back his collateral. The defendants, however, cláimed that the $2,000 was paid, not on account of the indebtedness, but on account of a purchase of twenty shares of the Farmers’ Deposit Hational Bank stock at the rate of $1,750 per' share.</p> <p>F. A. Stolzing, a witness for the defendant, being upon the witness stand, exhibit 10 having been shown him, and he having testified that he first saw the exhibit on June 22, 1903, it being handed to him by Mr. McMullin for the purpose of entering it on the books, the following offer of evidence and ruling was made. (Exhibit 10 being as follows: “John Murphy bought 20 Farmers, $1,750 — $35,002.50'—6-22-03.”) ,</p> <p>Mr. Ferguson: I propose to prove by the witness on the stand that exhibit 10 came into his hands on June 22, 1903; that it is the ordinary charging memorandum of the office; that it was handed to him for entry upon the books, and that upon June 22, 1903, he did enter upon the books of M. K. McMullin & Co., a charge in pursuance of this memorandum; and I propose to produce the books in corroboration of that fact.</p> <p>Objected to as incompetent and irrelevant, and not competent for the purpose of proving a special contract for the purchase of this stock. What McMullin said to the bookkeeper or directed his bookkeeper to do would be no evidence to corroborate his statements as to the sale of the stock to Mr. Murphy. And it is further objected to, because' the testimony of the witness establishes the fact that the paper, whatever it may be, is not in the handwriting of the defendant.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for the defendants except, and thereupon at their request exception noted and bill sealed. [1]</p> <p>F. A. Clark, a witness on the stand, defendants’ counsel offers in evidence exhibit 10, a charging memorandum made by Mr. McMullin. (Exhibit 10 being as follows: “ John Murphy bought 20 Farmers $1,750 — -$35,002.50—6-22-03.”)</p> <p>Objected to as secondary evidence, and as incompetent and irrelevant, and as an attempt to corroborate the testimony of the defendant, and for the further reason that the evidence is that the paper is not in the handwriting of - the defendant, except partially.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for defendant excepts and thereupon, at his request, exception noted and bill sealed. [2]</p> <p>Verdict and judgment for plaintiff for $3,880. Defendants appealed.</p> <p>Errors assigned amongst others were (1, 2) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 50, Oct. T., 1907, by plaintiff, from judgment of Superior Court, April T., 1905, No. 229, affirming decree of C. P. Butler Co., June T., 1904, No. 3, dismissing bill in equity in case of James Follett v. Butler County et al.</p> <p>Appeal from Superior Court. See 30 Pa. Superior Ct. 21, and 31 Pa. Superior Ct. 571.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Charge — Points—Construction of contract — Fraud.</p> <p>Where in an action on a contract the plaintiff presents a point for the construction of the contract, and the court affirms the point, the defendant cannot assign as error an addition to the affirmance, to the effect that the mere fact of the affirmance would not of itself entitle the plaintiff to recover. Such an addition was obviously made by the court to prevent the jury from misunderstanding the answer to the prejudice of the defendant.</p> <p>Where a contract is attacked on the ground that one of the parties obtained it by stating that he was not acting for any corporation or trust, and the party avers that at the time he made the statement it was true, and that he was only acting for himself, the question of fraud on the conflicting evidence is for the jury; and the court would not be justified in taking the case from the jury because the party subsequently entered into an arrangement with a corporation or trust.</p> <p>Fraud in fact is always a question for the jury, and however convincing may be the evidence on the subject, it would be to confound the province of the two tribunals for the court to assume the decision of it.</p>

<p>Appeal, No. 130, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1906, No. 390, dismissing bill in equity in case of C. Jutte & Company v. P. M. Pfeil et al.</p> <p>Bill in equity for an injunction and to compel the transfer of stock.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 115, Oct. T., 1907, by defendant, from decree of C. P. No. 3, Allegheny Co., Aug. Term, 1906, No. 826, on bill in equity in case of Thomas Rinaker, Receiver of the Enterprise National Bank of Allegheny v. Dollar Savings Fund & Trust Company, a Corporation, Administrator c. t. a. of the Estate of T. Lee Clark, deceased.</p> <p>Bill in equity for an injunction, and to compel the surrender of bonds.</p> <p>Evahs, J., filed the following opinion:</p> <p>EmDLNGS OP PACT.</p> <p>1. The Enterprise National Bank has for many years been a corporation in the city of Allegheny, county of Allegheny, and state of Pennsylvania, and on October 18, 1905, said bank was declared to be insolvent by the comptroller of the currency, and on December 1, 1905, the plaintiff, Thomas Rinaker, was appointed receiver, with authority from the said comptroller to wind up the affairs of said bank.</p> <p>2. The defendant, the Dollar Savings Fund & Trust Company, is a corporation of Pennsylvania, and was in the month of October, 1905, appointed administrator c. t: a. of the estate of T. Lee Clark, deceased, who died on October 18, 1905, testate.</p> <p>3. On or about October 6, 1903, said Enterprise National Bank discounted the note of David G. Gregg for $2,100, who pledged with the bank as collateral security for the payment of the same three bonds of the Columbia Plate Glass Company, a corporation of Pennsylvania, in the denomination of $1,000 each, numbered 101, 102 and 103, respectively, dated July 1, 1901, payable twenty years after date, and bearing interest at the rate of sis per cent per annum.</p> <p>4. Some time between the date of July 1, 1903, and October 18, 1905, T. Lee Clark, who was the cashier of the said Enterprise National Bank, and while acting as said cashier, fraudulently abstracted from the said Enterprise National Bank the three bonds described in the foregoing paragraph, and appropriated the said bonds for his own use; and subsequently, on October 2, 1905, pledged the said stocks, inter alia, with the Bank of Pittsburg, National Association, as collateral security for the payment of his individual note for the sum of $5,946.87, and the said bonds were still in the possession of the said Bank of Pittsburg, National Association, pledged as the security of the said note of T. Lee Clark on the day of the death of said Clark, to wit: October 18, 1905.</p> <p>5. On May 9, 1906, the defendant, the administrator of the estate of said Clark, paid to the Bank of Pittsburg, National Association, the amount of the debt of said Clark evidenced by his note, and thereupon said three bonds of said Columbia Plate Glass Company were delivered to the defendant.</p> <p>6. David G. Gregg has never paid his indebtedness to the Enterprise National Bank for which he pledged the said bonds of the Columbia Plate Glass Company as collateral security.</p> <p>7. The defendant, as administrator of the estate of said Clark, has collected the coupons on said bonds maturing January 1, 1906, and July 1, 1906, amounting to $180.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The plaintiff, as receiver of the Enterprise National Bank and pledgee of David G. Gregg, is entitled to the possession of the three bonds of the Columbia Plate Glass Company, mentioned in the findings of fact, and the defendant has not right or title thereto as against the plaintiff and David G. Gregg.</p> <p>2. The plaintiff is entitled to a decree enjoining and restraining the defendant from, in any manner, selling or disposing of the said three bonds of the Columbia Plate Glass Company.</p> <p>3. The plaintiff is entitled to a decree adjudging that defendant deliver to him the three bonds of the Columbia Plate Glass Company, mentioned in the findings of fact, unconditionally, and shall pay to the said plaintiff the sum of $180, interest on the said bonds received by it.</p> <p>4. That the costs be paid by the defendant.</p> <p>Error assigned was the decree of the court.</p>

<p>Equity — Jurisdiction—Remedy at law — Parol agreement to reconvey— Deed — Mortgage—Trust and trustees.</p> <p>Where a mortgagor in arrears for interest conveys the mortgaged premises to the mortgagee without any reservation in the deed, or other writing between the parties, and the mortgagee conveys the premises to a relative without consideration, and the mortgagor subsequently files a bill against the mortgagee and his grantee for a reconveyance on the; ground that when the deed was made there was a parol agreement that the mortgagee might redeem within a year on payment of principal and interest, and that she had offered to do so, the bill will be dismissed, because (1) under the Act of April 22, 1856, P. L. 532, no trust could be enforced, and (2) the plaintiff had an adequate remedy at law for the breach of the alleged parol agreement. Moran v. Munhall, 204 Pa. 242, distinguished.</p>

<p>Vendor and vendee — Deed—Acreage—Estimate—Contract—Evidence— Amendment.</p> <p>A vendor and vendee of coal were both aware that the acreage mentioned in the deed of conveyance was only an estimate; it was agreed, therefore, that the coal should be surveyed, and if the acreage fell short, deduction was to be made from the purchase price at a certain amount per acreage, and if it overran, the surplus was to be paid for at the same rate. The agreement was set forth in a settlement certificate, and the deed was then delivered and the purchase money paid. A subsequent survey by the vendee showed that there was a deficiency in the acreage. A suit was then brought against the vendor to recover for the deficiency, but in this suit the settlement certificate was not set forth or annexed to the statement of claim. At the trial there was evidence that the parties had selected surveyors and met at the mine to survey the coal and determine the acreage. One of the defendants testified that he did not regard himself as called upon, under the contract, to make the survey and calculation; but this objection was not made until after a dispute as to the method of calculation had arisen. There was testimony of a conversation between one of the defendants and the attorney for the purchasers at the time the contract was signed, to the effect that the price per acre fixed for the coal was a mere formality. Held, (1) that the settlement certificate was properly admitted in evidence as the statement of claim would be considered as amended by incorporating in it the certificate after a trial on the merits; (2) that the parties by their action had so construed the contract as to show that a survey was to be made after the delivery of the deed, and a deficiency accounted-for if discovered; (3) that no weight was to be given to the stateménts of the defendants as to their understanding of the agreement; and (4) that a verdict and judgment for the plaintiff for the amount of the deficiency should be sustained.</p>

<p>Appeal, No. 97, Oct. T., 1907, by plaintiff, from judgment of C. P. Mercer Co., June T., 1901, No. 42, on verdict for defendant in case of Charles Himrod v. P. L. Kimberly, now George Baird, John C. Owsley and Ira B. Bassett, Executors of last will and testament of P. L. Kimberly, deceased.</p> <p>Assumpsit for breach of contract.</p> <p>The action was based upon a verbal contract.</p> <p>Facts made in 1892 and afterwards reduced to writing in two letters which passed between the parties, as follows:</p> <p>“ Oct. 22, 1892.</p> <p>“ Mr. P. L. Kimberly,</p> <p>“ Sharon, Pa.</p> <p>“ Dear Sir:</p> <p>“ As you have not been here, as expected, I write you my understanding of the agreement that we have made. A Company is to be organized to operate the West Duluth Furnace with a capital stock of say $45,000.00. Of this capital stock you and I are each to have one-third. The payment for this stock is to be made by you in iron ore, at price and terms hereinafter mentioned. The stock is to be issued to you or to any person you may designate, and all dividends paid on it to be paid to you until you have received pay for the ore furnished without any charge for interest. When you have received this sum of money the dividends or profits on the one-third of the capital stock taken by us shall be paid to us, and the stock shall belong to us. You are to furnish us with 16,666 tons of ore from the Biwabic mine containing an average of 64 per cent metallic iron when dried to a temperature of 212 Fahrenheit, and to be sufficiently low in phosphorus to make a pig iron with Connelsville coke, containing a maximum of not over .08 in phosphorus. The price to be paid to you for this ore is to be $3.00 per gross ton, delivered on the cars at the furnace. Of this $3.00 there is to be paid by the Furnace Company the freight and a sufficient sum in addition total of $1.00 per gross ton, the remainder $2.00 per gross ton to be applied towards the payment of stock, as heretofore mentioned, until $30,000 shall have been paid.</p> <p>“ Please advise me whether this is your understanding, as we are taking steps to operate the furnace at once.</p> <p>“Yours truly,</p> <p>“ Chas. Himbod.”</p> <p>“Nov. 1, 1892.</p> <p>“ Chas. Himbod, Esq.,</p> <p>“ Chicago, III.</p> <p>“ Dear Sir:</p> <p>“ In reply to your letter of the 22nd ultimo, my understanding of our conversation in Pittsburg is as stated in your letter. I will agree to furnish you the Ore upon terms stated providing the time of delivery of the Ore is extended until May 1893, if I so desire to extend it until that time, but will deliver the Ore sooner, if the Biwabik Ore Co. are in shape to mine it without any inconvenience to them.</p> <p>“Yours truly,</p> <p>“P. L. Kimbebly.”</p> <p>Himrod was a stockholder in the company that had been operating the West Duluth furnace and still held a lease on it. The furnace was not in operation at the time these letters were written.</p> <p>About a month after this correspondence the Minnesota Blast Furnace Co. was incorporated, with capital stock of $45,000, all paid in, of which Himrod «testified he contributed $30,000. The stock for this contribution was issued to Charles Himrod & Co. This company purchased ore of some of the mines in the neighborhood of the furnace and sold its manufactured products to the West Superior Steel Co. About May 1,1893, the steel company failed, and by its failure compelled the furnace company also to make an assignment. The latter never resumed business, nor operated its furnace.</p> <p>Subsequently to the original contract, the following letters passed between the parties.</p> <p>“Nov. 9, 1892.</p> <p>“ Chables Himbod, Esq.,</p> <p>“Chicago, III.</p> <p>“ Dear Sir:</p> <p>“In reply to your letter of the 7th inst. Iam pleased to know that you met with such good success while in Duluth, in securing Ore at satisfactory price for operating your furnace with. If you have secured all the Ore that you need to operate the furnace, I would just as soon withdraw, but if you can wait until such time as we are ready to ship the Ore, I will join you, as I wrote you some time ago, but I do not want to issue any paper as you suggest.</p> <p>“Yours truly,</p> <p>“P. L. Kimbebly.”</p> <p>“Nov. 12, 1892.</p> <p>“ Mr. P. L. Kimbebly,</p> <p>“ Siiabon, Pa.</p> <p>“ Dear Sir:</p> <p>“ I am in respect of yours of the 9th. While we have engaged such ores as we will want until you can mine yours, we will still expect yours as soon as you can supply them, and that the agreement with you will be carried out.</p> <p>“Yours truly,</p> <p>“ Chas. Himbod.”</p> <p>“Apeil 29, 1893.</p> <p>“ Mr. P. L. Kimbebly,</p> <p>“Shaboh, Pa.</p> <p>“ Dear Sir:</p> <p>“According to the terms of our agreement, you were to commence delivering the ore from the Biwabie mine in May. We wish that you would give the proper instructions to ship us about six cars a day of your Standard Bessemer ore to apply on this contract, and notify us how soon we may expect shipments to begin. The ore should be consigned to the Minnesota Blast Furnace Company, West Duluth, Minn.</p> <p>“Yours truly,</p> <p>“ Chas. Himbod.”</p> <p>“ May 11, 1893.</p> <p>“Mb. P. L. Kimbebly,</p> <p>“ Shaboei, Pa.</p> <p>“Dear Sir:</p> <p>“ On account of the temporary stoppage of the Furnace at West Duluth, we will not want any ore shipped on account of our contract with you. If you desire to ship immediately advise us, and we will make arrangements to take care of the ore by shipping to Lower Lake ports.</p> <p>“ I have requested Mr. Butler to call and see you, and he will explain the situation to you.</p> <p>“ Yours truly,</p> <p>“ Chas. Himrod.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in, charging the jury that if they found that suit was not brought within six years from May, 1893, the verdict should be for the defendant.</p>

<p>Appeals, Nos. 151, 171 and 207, Oct. Term, 1907, by Saint Peter’s Evangelical Lutheran Orphans’ Home of Allegheny County, Ethel Jacoby Crane and Mary H. Downs, from decree of O. C. Allegheny Co., Oct. T., 1897, No. 60, dismissing petitions for review in Estate of George T. Jacoby, deceased.</p> <p>Petition for review.</p> <p>From the record it appeared that George T. Jacoby, the decedent, died testate, without issue, leaving to survive him his widow, Caroline Jacoby. He left a valuable estate, which he disposed of as follows : One. thousand dollars to his executors and trustee, the income to be applied to keeping his cemetery lot in repair ; his library to the Lawrenceville branch of the Y. M. C. A.; $1,000 to his namesake, George T. J, Folk.</p> <p>In the fifth, sixth, seventh and ninth paragraphs of his will he provided as follows :</p> <p>“ Fifth. My wife, Caroline Jacoby, having without just cause entirely separated herself from me since 1881, and by every means in her power annoyed and sought to injure mo, and willfully neglected and refused to live with me as my wife, and believing that she has forfeited all rights as such, I give and devise nothing more than the law will grant to her under the circumstances, besides this she has received already more than her share of my estate.</p> <p>“ I especially direct my executors at the expense of my estate to contest any claim she may set up, and they must use all legal means and spare no expense in their efforts to defeat any dower or other interest in or to any of my estate, real or personal, that I may die possessed of, or that may be herein mentioned.</p> <p>“ Sixth. The balance of my estate, proceeds of real estate and personal property, I direct my executors to pay the same over unto the Safe Deposit & Trust Company of Pittsburg, as trustee in trust that it will invest the same in first bond and mortgage to be approved by the court, and pay out the net income annually as follows, to wit:</p> <p>“ One-half (reduced to one-fourth by the codicil) to the children of M.ary Downs, formerly Mary Goldinger, now residing in Greenville, Mercer county, Pennsylvania, share and share alike to all children that she may have living at the time of any annual distribution. The mother shall be entitled to receive and receipt for the interest of such of her children as shall be under the age of 21 years, provided she uses the same for educating her said children; her children at the present time are Lois Mary Downs, Inez Martha Downs, Sophia Ethel Downs, Sylvester Dewitt Downs, and John Paul Downs; as each child arrives at the age of 21 years he or she shall alone receipt for his or her interest, and as each arrives at the age of 27 years the said trustee shall pay to him or her the principal. These legacies not to lapse but go to the surviving children.</p> <p>“Seventh. I give, devise, and bequeath to Ethel Jacoby, daughter of my brother Frederick, one-eighth of my estate to be held by my said trustee in the same manner and upon the same conditions as to payment of interest up to 21 years and principal at her arrival at age of 27 years, as provided in the sixth clause.</p> <p>“ Hinth. The remaining portion of my estate is to be invested in mortgages so as aforesaid approved and be known as G. T. Jacoby Protestant Orphan Belief Fund, and the net income arising therefrom paid to the various Protestant orphan asylums and institutions wherein orphans are cared for within the county of Allegheny, but only to such as are strictly under. Protestant management and that teach the Protestant religion, also to the Concordia Home of Butler county, share and share alike.</p> <p>“ If by reason of death any of said legacies should lapse by reason of the death of the legatee before the principal is paid to him or her then his or her share shall be added to the relief fund, excepting only the case of the children of Mary Do whs.</p> <p>“Ho asylum shall be entitled .to its portion until due proof has been made that in it is taught the Protestant religion.</p> <p>“ The principal must not be impaired as it is my desire so far as I am able to establish a permanent relief fund.”</p> <p>The widow elected to take against the will. The court, after deducting the widow’s share, distributed one-eighth of the remainder of the estate to the trustee for Ethel Jacoby, one-fourth thereof to the trustee for the children of Mary Downs, and the remainder to the charity. All three of the appellants filed petitions for review.</p> <p>All the petitions were dismissed in opinions by Over, J.</p> <p>The opinion dismissing the petition of the charity was as follows:</p> <p>In the decree made in this case August 15, 1899, there was distributed to testator’s widow one-half of his personalty, and to the Safe Deposit & Trust Company, trustee, one-fourth of the residue for Mary Downs and her children, one-eighth for Ethel Jacoby and five-eighths for the Orphan Belief Fund. The petitioners, two of the beneficiaries under the latter trust, now claim that it was testator’s intention to give the Orphan Belief Fund five-eighths of his entire estate, and that the decree should be so modified. If this claim be well founded, as the widow took four-eighths of the personalty and there were but four-eighths left for distribution, the whole fund for distribution should have been given to the trustee for the Orphan Relief Fund. In the sixth paragraph the testator gave the residue of his estate, after paying debts, pecuniary legacies and satisfying all legal claims of his widow, to a trustee. He then sets apart one-fourth of the trust estate for the Downs’s children, one-eighth for Ethel Jacoby, and the remaining portion, viz.: five-eighths for the Orphan Relief Fund. There is surely nothing in the will indicating any intention on the testator’s part to give the Orphan Relief Fund five-eighths of his entire estate. His direction in the will that “ the principal must not be impaired ” refers only to the preservation of the corpus of the gift and not to its amount.</p> <p>For these and other reasons given in the opinion filed August 15, 1899, the petition must be dismissed.</p> <p>Errors assigned were in dismissing the petition for review.</p>

<p>Appeal, No. 202, Oct. T., 1907, by plaintiff, from decree of C. P. Somerset Co., Equity Docket, 1906, No. 13, dismissing bill in equity in case of Meyersdale & Salisbury Street Railway Company v. Pennsylvania & Maryland Street Railway Company.</p> <p>Bill in equity for an injunction.</p> <p>The bill prayed equitable relief, inter alia, as follows :</p> <p>3. That defendant, its agents, employees and servants be enjoined specially until hearing and permanently thereafter, from continuing or doing any further work of any kind upon the plaintiff’s right of way through the lands of S. P. Maust, John M. Wright, H. II. and F. A. Maust, and Joseph Miller and wife.</p> <p>4. That defendant be restrained from entering upon or laying its track or erecting its poles or placing any of its equipment, or doing any work on the plaintiff’s rights of way upon the lands of Catherine and William Engle upon the following streets in the borough of Meyersdale, namely : Eleventh street, in a southerly direction, to Beaehley street; Beaehley street, from Eleventh street to Center street; Center street, from Beaehley street to Broadway; Broadway south, from Center street to the borough line, at the bridge over the Casselman river; Fourth street, from Beaehley street to Salisbury street; Salisbury street, from southerly direction.</p> <p>'5. That defendant be ordered to remove from plaintiff’s rights of way, through the lands of S. P. Maust, John M. Wright, II. IT. and F. A. Maust, and J. S. Miller and wife, any track, poles, work of any kind, and any constructions whatsoever that it may have placed or erected thereon.</p> <p>The material facts are stated in the latter part of the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Street railways — Consent of owner — Construction of road — Notice— Laches — Injunction—Equity.</p> <p>Where a landowner by words and deeds, not in express language or specific acts, but in effect consents to the grading of a line of street railway and the laying of the track thereof over a public highway on which his lands abutted, and makes no objection to its construction, he is guilty of such laches as will prevent him from maintaining a bill in equity to compel the line to be torn up and its operation enjoined.</p> <p>In such a case, evidence to the effect that the complainant said to the general manager of the defendant company when the latter was looking over the proposed route “I know where you want to go, and go ahead, and I will see you in a few days,” is sufficient to base a finding that the complainant had in fact consented to the construction of the railway over the proposed route.</p> <p>Where street railway companies have been permitted to proceed in the construction of their lines by abutting property owners, or township officers, and largo sums of money have been expended thereon, it would be inequitable and unjust to compel the lines to be tom up or their operation enjoined at the instance of a party who either gave his written or oral consent, or who stood by and said nothing while the work of construction was going on and the expenditures were being made.</p>

<p>Equity — Specific performance — Misrepresentations—Innocent statements tending to mislead — Discrepancy in size of lot.</p> <p>Where one of two parties to an agreement for an exchange of lands innocently and unintentionally-misleads the other as to the size of the lot which he is to receive, equity will not specifically enforce the contract.</p> <p>On a bill- in equity for specific performance it appeared that plaintiff and defendant entered into an agreement to exchange real estate. Plaintiff’s land was a city lot. Plaintiff drew a rough sketch of it which was practically a rectangle. The southerly line was indicated to be 191- feet, the westerly line, 156 feet, and the easterly fine, 155 feet. The length of the northerly fine was not indicated. This sketch was delivered by the plaintiff to the real estate agent who was effecting the deal. The agent gave it to defendant. The sketch was made without fraud by plaintiff, and without knowledge of the length of the northerly line. There was no deed on record at the time the agreement was made which indicated the length of this line, nor were there any monuments, marks or corners upon the ground, and no buildings adjoining it, which in any manner indicated the northern or easterly lines. The defendant visited the lot on a cold and stormy day, when there was snow on the ground, and made only a casual examination of it. After the agreement was signed, and when the title was being examined, the deed to plaintiff was placed on record, and a survey was subsequently made, and there was found to be a discrepancy of about twenty-one feet between the real length of the northerly line and the length which the defendant supposed it to be. When plaintiff at first tendered a deed it was refused on the ground that the alleged shortage of the northerly line was five feet. Upon the filing of the bill the reason for refusing was that the northerly line of the property was twenty-one feet shorter than defendant expected it to be. Held, that the plaintiff was not entitled to specific performance.</p>

<p>Appeal, No. 143, Oct. T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1904, No. 502, on verdict for plaintiffs in case of George H. Deeds and James A. Deeds, Copartners as Deeds Brothers, v. Imperial Brick Company.</p> <p>Scire facias sur mechanic’s lien.</p> <p>Evans, J., charged in part as follows:</p> <p>[If you determine that the terms of the contract were that the plaintiffs were to superintend this building to its completion, then the plaintiffs are entitled to recover ten per cent upon the cost of construction of the building, exclusive of whatever items you will find it was agreed that they were not to receive ten per cent upon, the machinexy, the brick, and if you find that they were not to have it, ten per cent on the wages of the foreman.] [1]</p> <p>[If you find that the plaintiffs were subject to dismissal at any time then their rights would terminate at the time of that dismissal. If you find that their commissions were based upon the entire cost of the building and that no right to dismiss them was reserved in the contract, then their commission should be based upon the entire cost of construction, ehminating or taking out those items which by the terms of the agreement they were not entitled to receive commissions upon.] [2]</p> <p>Defendant presented this point. This being a proceeding upon a mechanic’s lien, the plaintiffs cannot recover in this action except for superintendence actually done up to the time they were discharged and material then purchased under the contract. Answer: Refused. [3]</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 146, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 13, refusing to take off compulsory non-suit in case of David S. Piatt v. The Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 153, Oct. T., 1907, by defendant, from order of C. P. No. 1, Allegheny Co., June T., 1907, No. 691, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Michael J. Cunningham v. James M. McCready.</p> <p>Scire facias sur mortgage.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of ’the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Contract — Municipal contract~-Rejected material — Title to property.</p> <p>Where a city contract provides that materials shall be subject to approval by the director of public works, and certain material furnished by a subcontractor is rejected, and subsequently sold at a sheriff’s sale, but allowed, by the purchaser to remain on the premises, a surety for the contractor who completes the work has no title to the material, and if he appropriates and uses it, he will be liable in damages to the purchaser.</p>

<p>Appeal, No. 138, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 833, for plaintiffs non obstante veredicto in case of the South Side Trust Company, Executor d. b. n. c. t. a. of the will of Margaretta McGlarran, deceased, and the Allegheny Trust Company, Committee of Amy E. Brubaker, a lunatic, v. Josephine K. McGrew, Newton McClarran, Lizzie W. Stoner and A. C. Kimmel.</p> <p>Issue devisavit vel non.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for plaintiffs non obstante veredicto.</p>

Appeal, No. 149, Oct. T., 1907, by plaintiff, from order of C. P. No. 3, Allegheny Co., May T., 1905, No. 738, refusing to take off nonsuit in case of Pamelia Ott v. Boggs & Buhl. Trespass to recover damages for death of plaintiff’s husband.

<p>Appeal, No. 161, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1904, No. 115, refusing to take off nonsuit in case of C. C. Mooar v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The circumstances relating to the accident are stated in the opinion of the Supreme 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>Deed — Plan of lots — Square—Park—Grove—Dedication.</p> <p>A sale oí lots according to a plan on ■which an open square is shown marked “Alliquippa Grove” colored in green, with serpentine paths through it, and an announcement to purchasers that the “grove” had been set apart as a public park, are sufficient to establish a dedication of the grove to public use as a public park. The fact that the word “grove” was used instead of the words “park” or “square” is immaterial. In such a case the lot owners have a standing to enjoin the use of the grove for any other than a public purpose, and they cannot be charged with laches because for a brief time they permitted it to be used for private purposes.</p>

<p>Negligence — Railroads—Station—Slippery steps — Hand rail — Contributory negligence.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained by falling on slippery steps descending to a railroad station, the plaintiff is not entitled to recover where the evidence shows that the defendant company had provided a hand rail along the steps for the convenience and safety of the public, that the plaintiff had at first used this hand rail, but because his glove had caught on some knobs or projections on the rail, he took the middle of the steps, although he knew of their slippery condition, and fell and was injured.</p>

<p>Appeals, Nos. 185 and 190, Oct. T., 1907, by W. C. Stewart and Margaret B. Laughlin, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1906, No. 102, on bill in equity in case of Margaret B. Laughlin v. H. M. Laughlin, Administrator, et al.</p> <p>Bill in equity to declare a trust in securities.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a decree declaring that certain stocks enumerated were the sole and separate property of the plaintiff, and directing the defendant administrator to execute proper assignments thereof to the plaintiff; and also adjudging that certain other shares were the property of the estate of P. B. Laughlin, and directing the plaintiff to deliver the certificates for such shares to the defendant.</p> <p>Error assigned, by William C. Stewart, was portion of the decree declaring a trust in favor of the plaintiff.</p> <p>Error assigned, by Margaret B. Laughlin, was the portion of the decree requiring her to deliver certain certificates to the defendant.</p>

<p>Street railways — Extensions and branches — Parties — Injunction— Equity.</p> <p>Individual citizens who have no right, legal or otherwise, to the use and occupation of the streets and highways covered by the branches or extensions of a street railway company, have no standing to ask a court of equity to enjoin the railway company from asserting its rights to such use and occupation.</p> <p>Individual citizens have no standing in equity to question the validity of extensions and branches of a street railway company which were secured in the manner provided by statute. The only remedy is by a writ of quo warranto sued out by the state at the suggestion of the attorney general.</p> <p>Individuals who have filed articles of association in the office of the secretary of the commonwealth for the purpose of procuring a charter, but to whom letters patent have not as yet been issued, have no standing to file a bill in equity under the Act of June 19, 1871, P. L. 1360, to question the right of a street railway company to maintain extensions and branches which were secured in the manner provided by statute.</p>

<p>Negligence — Electric light and power company — Live wires — Death-Evidence — Nonsuit.</p> <p>While electric companies are bound to use the highest degree of care practicable to avoid injury to everyone who may be in lawful proximity to their wires, yet the ordinary person is held to know that danger attends contact with electric wires, and it is his duty to avoid them so far as he may. If one heedlessly brings himself in contact with such wire, and is injured in consequence, his imprudence must be regarded as a contributing cause, and will prevent a recovery.</p> <p>In an action against an electric light and power company to recover damages for death, where the only witness to the occurrence testifies that when he observed the deceased from the pavement below, the latter was upon the roof of a building holding by his left hand a wire which was stretched along the wall of an adjoining building and secured against it by brackets, the wire being about breast high from the level of the roof, and the evidence reflects no light as to how or under what circumstances the deceased came in such contact with the wire, a nonsuit is properly entered.</p>

<p>Negligence — Master and servant — Fellow servant — Mistake of judgment —Dynamite—Explosion.</p> <p>An employer who uses dynamite in his business is bound to furnish a competent and experienced man to superintend the handling and management of such dangerous explosive, but if he does so, he is not bound to supervise every detail of the judgment exercised by the competent person whom he has placed in charge of the work. If such person makes a mistake of judgment resulting in an explosion, and another employee is injured, the employer is not liable for such injuries.</p> <p>Negligence — Master and servant — Extension of liability of employer— Statutes — Act of June 10, 1907, P. L. 523.</p> <p>The Act of June 10, 1907, P. L. 523, extending and defining the liability of employers in certain cases is not retrospective, and has no application to a cause of action which had its inception prior to the passage of the act.</p>

<p>Deeds — Recital—Mortgage—Notice—Purchase money mortgage.</p> <p>A recital in a deed stating that the deed is subject to a mortgage from a party named with interest from a certain date, is not such notice as will cause a purchaser from the grantee to take the property subject to an alleged purchase money mortgage, not recorded within the statutory period, and dated subsequent to the date from which the mortgage recited bore interest, if it appears that a recorded mortgage is found on the same property, made by the party named, and dated on the day from which the mortgage recited bore interest.</p>

<p>Will — Probate—Undue influence — Devisavit vel non.</p> <p>The mere fact, without more, that a testator gave the greater part of his estate to a woman with whom he had sustained illicit relations, and by whom he had a child bom after his death, does nqt of itself furnish sufficient evidence of coercion or restraint in connection with the making of the will.</p> <p>Where evidence has been offered showing some moral or physical constraint operating on the mind of the testator at the time the will was made, such circumstances as those above referred to may properly be considered in an issue of this kind; but to allow a jury from such circumstances alone to defeat a disposition a testator has made of his property, would be in open disregard of the unquestioned right which everyone master of himself has to give his property to whom he pleases.</p>